Shri Debasish Nayak vs Dedicated Freight Corridor ...
2015 Latest Caselaw 1317 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.9071/2014

%                                                    12th February, 2015

SHRI DEBASISH NAYAK                                        ..... Petitioner
                  Through:               Mr. Biraja Mahapatra, Advocate with
                                         Mr. D.K. Pradhan, Advocate.
                          versus

DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD.
(DFCCIL)                               ..... Respondent

                          Through:       Mr. J.K. Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.           By this writ petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner challenges the action of the respondent

in denying the petitioner the post of Assistant Manager (Signal and

Telecommunication) and which is denied only on the ground that the

petitioner was required to have three years experience of working but the

petitioner's experience was alleged to be less by one day.

2.           The facts of the case are that the petitioner is a physically

challenged person because he is physically handicapped to the extent of 42%

in the left arm. The petitioner applied for the post of Assistant Manager

(Signal and Telecommunication) advertised by the respondent vide

WPC No.9071/2014                                                Page 1 of 4
 advertisement no.5/2014 in the reserved category of physically handicapped

candidates. The written test was held on 3.10.2014 and the petitioner and

one other person were only two physically handicapped persons who were

called for the interview.    Since two posts were reserved for physically

handicapped persons, petitioner was therefore almost assured for the job,

however, he has been denied the appointment on the ground that the

experience of the petitioner is short by one day.

3.           The question is, is the experience of the petitioner short by one

day? The petitioner has filed with the writ petition his appointment letter

dated 25.3.2008 with the earlier employer being a government organization

i.e ITI Limited and which appointment letter shows that the tenure of

employment of the petitioner with ITI Limited was three years and three

years commenced on 11.4.2008. Petitioner has also filed the relieving order

dated 06.6.2011 issued by the erstwhile employer which shows that the

contractual period of service stood completed on 10.4.2011 and the

petitioner has been relieved w.e.f 9.4.2011. It may be noted that 10.4.2011

was a Sunday and therefore obviously relieving order would relieve the

petitioner from 9.4.2011.     Admittedly, the documents which have been

referred to above and which are filed with the writ petition, were given by

the petitioner at the time of interview and which documents were asked for

by the respondent for being given only at the time of interview.
WPC No.9071/2014                                                   Page 2 of 4
 4.            Counsel for the respondent relies upon the service certificate

dated 08.7.2011 issued to the petitioner and which is filed as Annexure P-5

to the writ petition, to argue that since the date of relieving is mentioned as

9.4.2011, therefore, the service of the petitioner will be short by one day,

however this argument ignores two vital aspects. First aspect is that at page

24 of the writ petition the petitioner has filed the relieving order which states

that the contractual period of service will be ending on 10.4.2011 and not on

9.4.2011. Also, the second aspect is that it is an undisputed fact on record

that 10.4.2011 was a Sunday and consequently the date of relieving was of

9.4.2011 but the period of service in any case will be three years not only

because the relieving order/Annexure P-4 dated 6.6.2011 issued by ITI

Limited shows that the contractual service is ending on 10.4.2011 and not on

9.4.2011 but also because of the fact that Sunday being not a working day,

the said day will automatically be included as a working day of experience.

This is all the more so in view of Section 10 of the General Clauses Act,

1897 which provides that if on a certain day within the prescribed period the

office is closed, and which is the last date of the prescribed period, the

requisite action can be taken on the next working day. The spirit of the

provision of Section 10 of the General Clauses Act, 1897 will thus apply if

not its literal language.


WPC No.9071/2014                                                  Page 3 of 4
 5.           In view of the fact that action of the respondent is wholly

illegal, arbitrary and beyond any acceptable reasonable logic, the same is

violative of Article 14 of the Constitution of India and is accordingly struck

down. The writ petition is allowed and the respondent is directed to give

employment to the petitioner to the post of Assistant Manager (Signal and

Telecommunication) by issuing an appointment letter in favour of the

petitioner within six weeks from today, however subject to the petitioner

clearing the interview as stated below. Petitioner is also entitled to costs of

Rs.10,000/- for this writ petition. Costs shall be paid by the respondent to

the petitioner within four weeks from today.

6.           I may clarify that if in accordance with the requirement of the

advertisement, petitioner has to undergo an interview, petitioner will be

bound to undergo the interview process, and, the appointment letter will be

issued on the petitioner clearing the interview for the post of Assistant

Manager (Signal and Telecommunication).         Petitioner within a period of

one week from the conduct of the interview will be given the detailed marks

obtained by the petitioner in the entire selection process comprising of the

written test and the interview.



FEBRUARY 12, 2015                                 VALMIKI J. MEHTA, J.

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