Delhi High Court

Shri Shiv Kumar vs Union Of India & Ors on 27 October, 2014

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) 7243/2014 & CM No.16993/2014

                                                Decided on : 27.10.2014

IN THE MATTER OF

SHRI SHIV KUMAR                                   ..... Petitioner
                              Through: Mr.Hari Prakash, Advocate

                        versus


UNION OF INDIA & ORS.                          .... Respondents
                    Through: Mr. Ripu Daman Bhardwaj, Advocate
                    for R-1/UOI
                    Mr.Mohinder J.S.Rupal, Advocate for University


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition has been filed by the petitioner praying inter

alia that the respondents No.1 to 4/University and the respondent

No.5/College be directed to withdraw the post of Section Officer

(Administration) from the advertisement dated 4.2.2014 published in

the daily newspaper (Annexure P-4). Further, the petitioner seeks a

declaration to the effect that he is entitled for promotion to the post of

Section Officer (Administration) and therefore, the process of making

direct recruitment to the subject post ought to be stayed by the

respondents.

2. Learned counsel for the petitioner submits that the petitioner

had joined the respondent No.5/College as a temporary Junior

Assistant-cum-Typist on 12.4.1999 and was confirmed to the said post

in March, 2002. In the month of March, 2006, the petitioner was

promoted to the post of Assistant. In February, 2008, the respondent

No.5/College sought a clarification from the respondents No.1 to

4/University regarding promotion to the post of Senior Assistant. Vide

letter dated 28.2.2008, the University had clarified to the respondent

No.5/College that no candidate with less than three years' experience

would be considered for promotion to the post of Senior Assistant.

Thereafter, in the year 2009, the respondent No.5/College had again

approached the respondent No.4/University seeking approval for

promotion of the petitioner to the post of Senior Assistant

(Administration), which was once again turned down by the

respondents No.1 to 4/University, vide letter dated 1.9.2009,

reiterating inter alia, its earlier decision on the same issue

communicated to the respondent No.5/College vide letter dated

3.7.2009. It is relevant to note that the petitioner did not challenge

the aforesaid decision taken by the University in the court of law.

3. The petitioner was finally promoted to the post of Senior

Assistant on 1.2.2012. Now, he claims that he ought to have been

promoted to the post of Senior Assistant (Administration) w.e.f. 2009

and the rejection by the respondents No.1 to 4/University of the

recommendation made by the respondent No.5/College is illegal and

arbitrary and liable to be set aside.

4. Mr. Rupal, learned counsel for the respondents No.1 to

4/University, who appears on advance copy, opposes the present

petition and states that it is misconceived and liable to be rejected for

the reason that even as per the averments made in the petition,

particularly in para 14 thereof, the petitioner has admitted having

participated in the written test prescribed for the post of Section

Officer (Administration) which is to be filled up through direct

recruitment in terms of the impugned advertisement dated 4.2.2014.

He submits that having participated in the selection process, now the

petitioner cannot be permitted to approach the Court for quashing of

the very same advertisement only because he has failed to clear the

written test. In support of the aforesaid submission, learned counsel

relies on the decision of the Supreme Court in the case of

Manish Kumar Shahi vs. State of Bihar & Ors., reported as (2010) 12

SCC 576.

5. Learned counsel for the respondents No.1 to 4/University further

contends that the petition is hit by delay and laches insofar as the

second relief is concerned and if the petitioner was truly aggrieved by

the decision of the respondent No.4/University that was communicated

to the respondent No.5/College as long back as in August/September,

2009, then he ought to have taken legal steps to challenge the same

within a reasonable time and having failed to do so for over five years,

he cannot claim entitlement to promotion to the post of Senior

Assistant particularly after publication of the impugned advertisement

issued for direct recruitment to the post of Section Officer

(Administration) in response whereto he had elected to participate in

the process without demur.

6. It is not denied by learned counsel for the petitioner that

pursuant to issuance of the impugned advertisement by the

respondent No.5/College inviting applications for filling up the post of

Section Officer (Administration), amongst others, through direct

recruitment, his client had applied through proper channel in February,

2014 and as per the said result, he had participated in the written test

that had taken place in August, 2014. On enquiry, counsel for the

petitioner submits that the result of the written test was declared by

the respondent No.5/College on 20.9.2014 and as per the said result,

the petitioner had failed to clear the said test. A perusal of the paper

book reveals that the petitioner had filed the present petition three

days thereafter, i.e., on 23.9.2014, but the same had remained under

objections and is listed for admission today. In other words, the

petitioner decided to approach this Court only after finding out that he

had failed to clear the written test for the subject post.

7. Having taken his chance by applying for the subject post in

terms of the impugned advertisement and having participated in the

written test prescribed by the respondent No.5/College for direct

recruitment to the said post, the petitioner cannot be permitted to

approach this Court to question the very same advertisement after

discovering that he had not cleared the test. If the petitioner had a

genuine grievance with regard to the decision taken by the respondent

No.5/College to fill up the post of Section Officer (Administration)

through direct recruitment instead of through promotion as claimed by

him, then the petitioner ought to have approached the Court at the

first available opportunity, i.e., immediately after issuance of the

advertisement in February, 2014. Instead, the petitioner chose to

apply for the subject post through proper channel in February, 2014,

and after having applied, he sat for the written examination that was

conducted in August, 2014.

8. It was only after finding out that he has not passed the written

examination, that the petitioner has chosen to lay a challenge to the

mode adopted by the respondent No.5/College for filling up the subject

post, which is impermissible. The aforesaid conduct of the petitioner

disentitles him from approaching the Court under Article 226 of the

Constitution of India and questioning the selection process adopted by

the respondent No.5/College in which he had elected to participate.

Similar conduct on the part of the petitioner in the case of Manish

Kumar Shah (supra), was frowned upon by the Supreme Court and the

following observations were made :-

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the

criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

9. In the case of Madan Lal and Ors. v. State of J & K and

Ors. Reported as (1995) 1 SCR 908 , the Supreme Court had

observed that if a candidate takes a calculated chance and appears at

the interview, then, only because the result of the interview is not

palatable to him, he cannot turn round and subsequently contend that

the process of interview was unfair.

10. As for the grievance of the petitioner that the respondents No.1

to 4/University have wrongly turned down his representation

submitted through the respondent No.5/College for approving his

promotion to the post of Senior Assistant, it was for the petitioner to

have challenged the said decision within a reasonable time from the

date the rejection order was passed by the University some time in