Jitendra Singh Chahar vs Union Of India And Ors.
2015 Latest Caselaw 5862 Del

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         DECIDED ON: 12.08.2015

+                         W.P. (C) 7605/2015
                          CM APPL.14766/2015

       JITENDRA SINGH CHAHAR                      ..... Petitioner
                     Through: Mr. R.K. Saini, Advocate.

                          versus

       UNION OF INDIA AND ORS.                ..... Respondents

Through: Mr. Dev P. Bhardwaj, CGSC for UOI with Mr. Vivek Sharma, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner is aggrieved by the refusal of the respondents to revive the offer of appointment. He was selected to the Border Security Force ("BSF") to the post of Assistant Commandant (DE) after he secured 118th rank in the examination. He was successful in the other recruitment processes including physical endurance test etc. His appointment letter required him to report for training on 23.12.2013. He expressed his inability to do so on 18.12.2013 to the BSF through a letter stating that he had been suffering from jaundice and was advised two months‟ rest. The BSF rejected the request for extension on 30.12.2014. He, however, sought intervention of the DG,

W.P.(C)7605/2015 Page 1 BSF for reconsideration of the decision on extension. This was refused on 29.01.2014. Ultimately, the petitioner reported to the BSF Academy on 03.02.2014. The Academy, however, refused to accept him.

2. Mr. R.K.Saini, Advocate sought to urge that the extension which was denied on 30.12.2013 and 29.01.2014 was erroneous and relied upon the terms of Rule 7 (3) (c) (ii) and submitted that both the rejection letters were premised on the fact that extension has to be from a different date contrary to the terms of the provision.

3. This Court is unimpressed with this submission made by Mr. R.K.Saini, Advocate with respect to the refusal to extend the time. The previous order of the Court in W.P.(C)3395/2014 when the present petitioner had earlier approached this Court amply clarifies that only a limited direction is issued to the respondents with respect to consideration of the "exceptional circumstances and in public interest" condition. This is evident from reading of paragraphs 13 & 14 of the order dated 08.04.2015 made in the said writ petition. The said paragraphs read as follows: -

"13. Thus, we quash the order dated October 16, 2014 passed by the Hon'ble Home Minister and simultaneously direct the respondents to prepare a proper note for consideration of the Hon'ble Home Minister. The note would draw attention of the Hon'ble Home Minister to his power under para (iv) of 7(3)(c) of the BSF Group 'A' (General Duty Officers) Recruitment Rules, 2010.

14. The representation of the petitioner in which he brings out, as per his claim, equity in his favour on basis of which facts he requires his case to be considered as per para (iv) of 7(3)(c) of

W.P.(C)7605/2015 Page 2 the BSF Group 'A' (General Duty Officers) Recruitment Rules, 2010 would also be brought to the notice of the Hon'ble Home Minister.

15. The fresh decision shall be conveyed to the petitioner within 8 weeks from today."

In this view of the matter, the petitioner cannot now urge that the extension refused was erroneous and the time period calculable was different.

4. Learned counsel submits that in terms of the BSF Group „A‟ (General Duty Officers) Recruitment Rules as amended in 2012, the maximum period permitted for officers to join would be ordinarily four weeks which can be extended to six weeks. He particularly relied upon Rule 7(3)(c)(iv) which reads as follows: -

"(iv) An order of appointment which has lapsed should not ordinarily be revived later, except in exceptional circumstances and on grounds of public interest. Such offer can be revived after obtaining the approval of the Ministry."

5. It is contended that in the circumstances of the case, the facts clearly illustrated that it was a public interest in reviving the offer of appointment and permitting the petitioner to join in a later batch. He had also represented in this regard. The request was, however, finally declined. Learned counsel secondly urged that a strict construction of the "public interest" would lead to oppressive results because the petitioner would be treated as a selected candidate and precluded from participation in any later recruitment process.

6. The BSF who appeared on advance notice contended that the petitioner‟s submissions are unfounded. According to its counsel

W.P.(C)7605/2015 Page 3 "public interest" has to be in exceptional cases where the public at large is affected due to objective circumstances. In other words, the health of a particular individual which prevents him/her from reporting itself cannot be considered as an exceptional circumstance or a ground of public interest as to exercise the discretion in the candidate‟s favour and permit revival of offer of appointment. As far as the operation of the rule with respect to the precluding of a selected candidate in further participation is concerned, learned counsel submitted that this rule always existed and was part of the recruitment process and thus known to the petitioner.

7. The petitioner had relied upon a medical certificate dated 10.12.2013 to say that he was advised rest for two months. The rules, particularly, Rule 7 (3) (c) (ii) which reads as follows allows the period of four weeks extendable by further two weeks for every candidate to join duties: -

(ii) If, however, within the specified period of four weeks, a request is received from the candidate for extension of time and after due consideration by the Ministry he may be granted extension for a maximum period of two weeks in addition to the four weeks if facts and circumstances deem it necessary to do so. The candidates who joins within a period of six weeks shall have their Seniority fixed as per sub-rule (3) (b)."

8. Here, the petitioner chose to remain content by merely addressing letters - one in December and one more in January. Had he in fact reported for duties, the terms of his appointment, particularly clause-8 would have in fact facilitated his case because there would have been a medical examination to determine his fitness to join duties

W.P.(C)7605/2015 Page 4 at that stage. He did not do so. In these circumstances, the only question is whether it can be said that the facts of this case fall within the exceptional circumstances and on grounds of public interest, condition stipulated under Rule 7(3)(c)(iv), the Court is inclined to accept the respondents‟ submissions on that exceptional circumstances on ground of public interest cannot relate to the subjective circumstances of a particular candidate and would always depend upon the objective facts of a given case which prevents a class of employees or a particular employee from reporting to duty for reasons beyond his control in an emergency such as flood, riots, breakdown of communication etc. An overly liberal construction of "public interest" in these circumstances is not warranted.

9. The above observations, however, do not finally dispose of the present proceedings. The second grievance of the petitioner is that the condition which completely extinguishes his further chance of participation will operate and has to be appropriately relieved in the circumstances of this case. Now, there is no dispute about the respondents‟ arguments that the petitioner was aware of the condition

- with respect to restriction of further participation. However, such further participation is precluded if the selected candidate in our opinion deliberately does not report or negligently does not report for duties. However, if a candidate is precluded by reasons of illness no doubt he may lose the chance of availing of the offer of appointment but to prevent his further participation would be extremely harsh. In these circumstances, the respondents are hereby directed to carry out the medical test or procedure to determine whether the petitioner in

W.P.(C)7605/2015 Page 5 fact had suffered from jaundice and/or typhoid as is being alleged by him through an appropriate test and after considering the medical reports including the line of treatment etc, pass appropriate orders as to whether he should be allowed to participate in future recruitment. In other words, if the petitioner is determined to have suffered from the illness which he claims, the respondent would permit him to participate in the future recruitment, subject to other terms and conditions.

10. Writ Petition stands dismissed in the above terms.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) AUGUST 12, 2015 /vikas/

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