Rajesh Agarwal vs Union Of India And Ors
2014 Latest Caselaw 6326 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
 s
+                      W.P.(C) 3596/2014

                                             Decided on : 01.12.2014

IN THE MATTER OF:
RAJESH AGARWAL                                     ..... Petitioner
                       Through: Mr. Jawahar Raja, Advocate with
                       Ms. Sahana Manjesh, Advocate with petitioner
                       in person.

                       versus

UNION OF INDIA AND ORS                           ..... Respondents

Through: Mr. V.S.R. Krishna, Advocate for R-1 and R-2/UOI.

Ms. Maninder Acharya, Senior Advocate with Mr. Dipak Bhattacharya and Mr. M.S.Mukherjee, Advocates for R-3.

CORAM HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

1. The petitioner, who is presently working on the post of Principal

Chief Engineer, Konkan Railways Corporation Ltd., Navi Mumbai,

seeks quashing of the decision/order of the respondent No.1/Ministry

and the respondent No.2/DOPT of declining to appoint him to the post

of Director (Way and Works), Konkan Railways Corporation Ltd., and

further, seeks directions to the respondent No.1/Ministry to appoint

him to the subject post.

2. The undisputed facts of the case are that on 28.05.2013, the

Public Enterprises Selection Board (in short 'PESB') had issued an

advertisement for making an appointment to the post of Director

(Ways and Work), Konkan Railway Corporation Ltd., which is a Board

level appointment. On 19.06.2013, the petitioner had applied for

being considered to the said post and on 29.07.2013, he was

informed that he had been shortlisted and would be interviewed for

the subject post on 01.08.2013. On 01.08.2013, interviews were held

by the PESB and the results of the selection that were announced on

the same day, revealed that the petitioner was recommended for

selection to the subject post.

3. The grievance of the petitioner is that in terms of its Circular

dated 13.05.2011, the PESB is required to send only one name to the

Appointments Committee of the Cabinet (in short 'ACC') for

consideration and the reserved name is required to be kept in a

sealed cover with the PESB, to be disclosed only upon specific orders

by the ACC and, contrary to the procedure prescribed in the said

guidelines, the respondent No.3, who was the Member Engineering

Railway Board, New Delhi and a part of the interview panel convened

by the PESB, in an advisory capacity, had revealed the name of the

reserved candidate.

4. When the matter was listed for admission on 28.5.2014, it was

submitted by the counsel for the petitioner that two contrary pieces of

information were received by the petitioner, the first being that the

panel had been scrapped and the second being that the ACC had

issued directions for opening of the sealed cover. Taking into

consideration the submissions made by the counsel for the petitioner,

notice was issued in the writ petition returnable on 24.07.2014.

5. On 24.07.2014, it transpired that the respondent No.1/Ministry

of Railways had not taken any step to file the counter affidavit. This

was despite the fact that the respondents No.1 and 2/UOI and the

respondent No.3 were duly represented through counsel on the date

of admission. On the said date, counsel for the respondents No.1 and

2/UOI had stated on instructions that a recommendation was made

by the ACC to the Ministry of Railways on 01.04.2014 for appointing a

candidate to the aforesaid post in the reserved panel, wherein the

petitioner's name did not feature. Thereafter, the Ministry of Railways

which is the administrative Ministry in this case, had forwarded the

name of the reserved candidate to the CVC for clearance. However,

learned counsel was unable to furnish the date when the file had been

forwarded by the Ministry to the CVC.

6. In view of the fact that the respondents No.1 and 2/UOI had not

taken a stand on the merits of the case by filing their counter

affidavits, it was deemed appropriate to direct them to maintain

status quo with regard to the appointment to the subject post. Now,

pleadings have been completed.

7. It transpires from a perusal of the counter affidavit filed by the

respondents No.1 and 2/UOI that the PESB had recommended the

name of the petitioner for appointment to the subject post. However,

after considering the feedback given by the respondent No.3, the

respondent No.1/Ministry decided that the panel recommended by the

PESB may be scrapped and the name of the reserved panel be

obtained. The said file was forwarded by the respondent No.1/Ministry

to the respondent No.2/DOPT for obtaining approval of the ACC and

the ACC had approved the aforesaid proposal forwarded by the

Ministry to scrap the panel of the PESB and allowed the Ministry to

approach the PESB for obtaining the name from the reserved panel.

Subsequently, when the Ministry approached the PESB with such a

request, the name of the candidate from the reserved panel, namely,

Shri Rajendra Kumar, ex-IRSE, KRCL was obtained and the clearances

from the CVC in respect of the said candidate were sought and

received vide communication dated 12.08.2014. It is at the said stage

that the matter rests today.

8. Counsel for the respondents No.1 and 2/UOI submits that the

file is still with the respondent No.1/Ministry after obtaining the advice

from the CVC and it has yet to be placed before the ACC with the

name of the candidate from the reserved panel. He further states that

the input as received in the selection process for scrapping the panel

was processed and was forwarded to the ACC with a proposal that the

panel recommended by the PESB be scrapped. It is urged that the

present petition is flawed inasmuch as the petitioner has failed to

implead the candidate in the reserved panel as a co-respondent in the

present proceedings, though he is a necessary and a proper party in

the lis. He further states that if the petitioner had a grievance, he

should have made a representation to the competent authority and

only if such a representation would have been rejected, could he have

approached the Court for relief, but in view of the fact that the

selection process is still on and no name has been finalized for

appointment to the subject post, the present petition is premature

and ought to be rejected on the said ground.

9. Counsel for the petitioner submits that while formulating the

aforesaid proposal for being placed before the ACC, the respondents

No.1 and 2/UOI have been prejudiced by the views expressed by the

respondent No.3 who has gone on to compare the candidature of the

petitioner with that of the candidate in the reserved panel, which is

impermissible. He submits that the petitioner, being the sole person

recommended by the PESB, only his name should have been

forwarded to the ACC for consideration without any proposal

formulated by the respondent No.1/Ministry to scrap the panel

recommended by the PESB and having done so, grave damage has

been caused to the candidature of the petitioner.

10. Learned counsel for the petitioner also draws the attention of

the Court to the Circular dated 31.03.2011 issued by the respondent

No.2/DOPT with reference to fresh appointments to be made by the

ACC, wherein it has been directed that the PESB shall send only one

name to the Ministry for consideration and the reserved name shall be

kept in a sealed cover with the PESB to be disclosed only upon orders

of the ACC. He states that the aforesaid guidelines have been violated

by the respondent No.1/Ministry in the course of formulating its

proposal to scrap the name recommended by the PESB and the

petitioner has been given to understand that the reserved name kept

in the sealed cover has been disclosed to the ACC.

11. In the course of arguments, it is clear that as of now, the

subject post is lying vacant and the file in question is still retained at

the end of the Ministry after having been returned by the ACC upon

approving the recommendations made by the Ministry for scrapping

the panel of the selected candidate, as per the recommendations

made by the PESB. In such circumstances, counsel for the petitioner

has been asked if his client would be willing to submit a

representation to the ACC through proper channel for considering his

request, when the Ministry places the file back before the ACC.

12. Counsel for the petitioner states on instructions that his client is

agreeable to the aforesaid suggestion.

13. Accordingly, without prejudice to the rights and contentions of

the parties, it is deemed appropriate to permit the petitioner to

submit a representation in respect of his candidature to the subject

post, within ten days from today. The respondent No.1/Ministry shall

place the said representation in the concerned file to be forwarded to

the ACC alongwith their comments through proper channel, so that

the same can be taken into consideration by the ACC at the time of

considering the proposal of the Ministry, for making an appointment

to the subject post.

14. The petition is disposed of alongwith the pending application,

while leaving the parties to bear their own costs.

A copy of this order be given dasti to the counsel for the

respondents No.1 and 2/UOI to make compliances.

                                                      (HIMA KOHLI)
DECEMBER 01, 2014                                        JUDGE
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