Galdhan Sangai & Anr vs University Of Delhi & Ors
2015 Latest Caselaw 1708 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 27th February, 2015.

+      LPA 39/2015 & CM No.1508/2015 (for condonation of delay)

       GALDHAN SANGAI & ANR                    ..... Appellants
                  Through: Mr. V. Shekhar, Sr. Adv. with Mr.
                            Kameshwar Singh, Mr. Nishant
                            Anand & Ms. Rushna Saif, Advs.

                                Versus

    UNIVERSITY OF DELHI & ORS                  ..... Respondents
                  Through: Mr. Sudhir Nandrajog, Sr. Adv. with
                           Mr. Mohinder J.S. Rupal, Adv. for R-1.
                           Mr. Ankit Jain, Adv. for R-2 to 5.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 11 th July, 2014 of

the learned Single Judge in W.P.(C) No.5162/2013 filed by the respondents

No.2 to 5 namely Dr. Veena Gaur, Dr. Ashok Jain, Dr. Sanjay Kumar

Singh and Jagbir Singh. Vide the said judgment, the selections for the post

of Assistant Professors in the Department of Buddhist Studies made by the

respondent No.1 University of Delhi pursuant to advertisement dated 11th

January, 2012, were set aside, however with the caveat that those who had

joined pursuant to the interim order dated 23rd October, 2013 in the said writ

petition, would continue in their posts, subject to no equities being claimed

by them and the respondent No.1 University was granted liberty to

recommence the procedure for filling up the posts from the stage of receipt

of applications. The entire process was ordered to be completed

expeditiously, not later than eight weeks.

2. This appeal as well as certain other appeals being LPAs No.521/2014,

546/2014 & 38/2015 also preferred against the same judgment came up

before us on 29th January, 2015 when finding that this appeal need not be

clubbed with the other appeals, we decided to deal with this appeal

separately and on 12th February, 2015 heard the senior counsel for the two

appellants, senior counsel for the respondent No.1 University and the

counsel for the respondents No.2 to 5. The counsel for the respondents

No.6 to 8 though had appeared on 29th January, 2015, chose not to appear on

12th February, 2015. Though the report of service of notice issued of the

appeal to the respondents No.9 to 11 had not been received till then but the

parties were ad idem that the respondents No.9 to 11 are not concerned with

the subject matter of this appeal. We may also notice that the other appeals

against the impugned judgment are still pending consideration and vide

interim order therein, the operation of the order of the learned Single Judge

has been stayed.

3. The writ petition from which this appeal arises was filed by the

respondents No.2 to 5, challenging the procedure followed by the

respondent No.1 University for selection to the post of Assistant Professor

in the Department of Buddhist Studies pursuant to the advertisement dated

11th January, 2012 inviting applications therefor. The said advertisement

was inter alia for filling up of nine posts, of which five were in the

unreserved category, two were in the Other Backward Classes (OBC)

category and one each was in the Scheduled Castes (SC) and Scheduled

Tribes (ST) category. The respondents No.2 to 5 writ petitioners belong to

the unreserved / OBC category and were by way of the writ petition seeking

appointment to the posts meant for unreserved / OBC category and to which

they claimed to be entitled to.

4. The two appellants herein namely Mr. Galdhan Sangai and Mr.

Dharmendra Kumar belong to the ST and the SC category respectively and

had been selected for the two reserved posts for the said categories. The

respondents No.2 to 5 / writ petitioners, who as aforesaid were claiming

appointments to the unreserved posts, while filing the writ petition

challenging the procedure followed for selection, did not even implead the

appellants as parties to the writ petition. However since vide ad-interim

order dated 21st August, 2013 in the writ petition, the respondent No.1

University was restrained from finalising the selection process and the

recommendations made for issuing appointment letters was also stayed, the

appellants applied in the writ petition for impleadment and were so

impleaded vide order dated 9th September, 2013. The appellants then

applied for vacation of the ad-interim order and on which application, on

31st October, 2013 inter alia the following order was made:

"It is clarified that since there are four petitioners who challenge selection process, only for the four posts in the categories to which the petitioners had applied, the interim order will operate, and rest of the posts can be filled in by the respondent No.1 in accordance with law."

The said interim order continued till the disposal of the writ petition.

5. The appellants were thereafter appointed to the two posts reserved for

the ST and SC category.

6. The learned Single Judge, in the impugned judgment also, has in

paragraph 3 thereof, observed:

"In this petition, we are only concerned with the post advertised in the unreserved and OBC category"

and in para 3.5 observed:

"Though, we are not concerned with SC and ST category in this case, for the sake of record, it may be noted that for SC category, 62 candidates and for ST category, 29 candidates were short-listed."

7. However, the learned Single Judge in the impugned judgment, while

allowing the writ petition, has set aside all the selections made pursuant to

the advertisement dated 11th July, 2012 and directed fresh appointments to

be made.

8. The contention of the senior counsel for the appellants is that though

in the scenario aforesaid, the challenge in the writ petition was confined to

the appointments made to the unreserved / OBC posts only, while allowing

the writ petition, the appointments made to the SC and ST category posts,

have also been set aside.

9. Though the appellants highlighting the said facts sought review from

the learned Single Judge but the review application was dismissed vide

order dated 13th November, 2014, merely observing that "no case is made

out for review". Accordingly, relief in this appeal of setting aside of the

impugned judgment insofar as against the appellants, is claimed.

10. The senior counsel for the respondent No.1 University has supported

the appellants.

11. The counsel for the respondents No.2 to 5 / writ petitioners has

argued:

(i) that no sufficient ground for condoning the delay of 125 days

in filing the appeal (and for which purpose CM No.1508/2015 is

filed) is made out;

(ii) that no explanation for the delay in filing, even after the

dismissal of the review, is given;

(iii) that the learned Single Judge having found an error in the

procedure followed for appointment, has rightly set aside the entire

appointment process and it is not possible to set aside the said process

vis-a-vis unreserved / OBC posts and to not qua the SC and ST

category posts;

(iv) that even at the time of hearing before the learned Single Judge,

no such distinction was made out and such a contention was raised by

the counsel for the appellants for the first time in review;

(v) that the appellants in the prayer paragraph in this appeal, have

not even sought setting aside of the order of dismissal of review

application;

(vi) reliance is placed on State of Uttar Pradesh Vs. Arvind Kumar

Srivastava (2015) 1 SCC 347 laying down that the normal rule is that

when a particular set of employees is given relief by Court, all other

identically situated persons should be treated alike by extending same

benefit since not doing so would amount to discrimination and would

be violative of Article 14 of the Constitution of India; it was further

held that this principle needs to be applied in service matters more

emphatically as the service jurisprudence postulates that all similarly

situated persons should be treated similarly and that merely because

other similarly situated persons did not approach the Court earlier, is

no ground for treating them differently; the only exception being of

laches, delays and acquiescence i.e. those persons who did not

challenge the wrongful action in their cases and acquiesced into the

same and woke up after long delay, only because of the reason that

their counterparts who approached the Court in time succeeded in

their efforts, cannot claim the benefit of the judgment, being fence-

sitters; however this exception would not apply, when the judgment

of the Court is in rem;

(vii) reliance is also placed on Senior Law Manager, Indian Oil

Corporation Limited Vs. Guru Shakti Singh (2011) 15 SCC 140

laying down that if the finding was that the marks were wrongly

assigned and owing whereto somebody had benefited, merely because

the complainant had died, the said illegality could not be brushed

aside or ignored and such a selection process cannot be saved. On the

basis of the said judgment, it is contended that once the learned Single

Judge has found the process of selection adopted by the respondent

No.1 University to be flawed and the same process having been

followed qua the appointment to the post reserved for SC and ST

categories also, the said flawed procedure cannot be allowed to

govern the appointments and the learned Single Judge has rightly,

notwithstanding the challenge being confined to the unreserved and

OBC category posts, set aside the appointments made to the posts

reserved for SC and ST category also.

12. We however enquired from the counsel for the respondents No.2 to 5

/ writ petitioners, whether any aspirant to the post reserved for SC and ST

category had challenged the appointment of the appellants thereto.

13. The answer was in the negative.

14. The respondents No.2 to 5 / writ petitioners cannot obviously be

allowed to hold the brief for the other aspirants to the posts reserved for SC

and ST category.

15. The senior counsel for the respondent No.1 University contended that

there were no averments also in the pleadings of the respondents No.2 to 5 /

writ petitioners qua the selection to the SC and ST category posts and that in

fact the criteria of screening for the purpose of interview, adopted for

selection for the unreserved / OBC category posts and which criteria was

challenged in the writ petition and which has found favour with the learned

Single Judge, was not even applied to SC and ST category posts. It is stated

that no such screening was done, while calling the SC and ST category

candidates for interview.

16. The senior counsel for the appellants has also contended that since the

learned Single Judge vide interim order dated 31st October, 2013 supra in

the writ petition had confined the ad-interim order dated 21st August, 2013

supra only to four posts in the unreserved / OBC category, the appointment

of the appellants was not even subject to the decision in the writ petition and

thus the decision in the writ petition cannot affect the appointments already

made of the appellants.

17. The counsel for the appellants, in accordance with our direction while

reserving judgment, has supplied copy of the counter affidavit filed by the

appellants to the writ petition and which also supports the arguments

hereinabove of the appellants and the respondent No.1 University. We have

also perused the writ record.

18. We find considerable weight in the contentions of the appellants

supported by the respondent No.1 University. It is obvious from the way

the writ petition proceeded before the learned Single Judge that the

challenge made by the respondents No.2 to 5 / writ petitioners was confined

to the unreserved / OBC posts and the SC and ST category posts were

specifically excluded. There is nothing in the impugned judgment or in the

writ record to indicate that the said posts were at any subsequent time

included in the challenge in the writ petition. That being the position, the

decision in the writ petition cannot be allowed to affect the SC and ST

category posts. Once it is found so, the impugned judgment, insofar as qua

the SC and ST category posts, has but to be held to be non-est and that being

the position, the delay by the appellants in preferring this appeal does not

come in the way of the appellants. We accordingly condone the delay.

19. As far as the judgments relied upon by the counsel for the

respondents No.2 to 5 writ petitioners are concerned, Arvind Kumar

Srivastava supra itself carves out an exception qua persons who do not

challenge or who are fence-sitters. Here, no other aspirant to the SC / ST

categories posts has till date come forward. Moreover, therein as well as in

Guru Shakti Singh supra, the Supreme Court found the same process of

selection / appointment, which was found to be irregular, to have been

followed for filling up all the posts. That is not the position here. We have

no reason to doubt the statement of the senior counsel for the respondent

No.1 University that the screening criteria for interview, finding which to be

faulty, the learned Single Judge has set aside the selection / appointment,

was not followed qua the SC and ST category posts. In fact, the

respondents No.2 to 5 / writ petitioners, since prior to the said advertisement

were working on the said posts on ad-hoc basis. Inspite of our asking

whether there were any ad-hoc appointees to the SC and ST category posts

also, the counsel for the respondents No.2 to 5 / writ petitioners could not

reply. It is obvious that the writ petition was not concerned with SC and ST

category posts. Thus, the judgments cited by the counsel for the

respondents No.2 to 5 / writ petitioners, have no application.

20. The Supreme Court, in State of U.P. Vs. Satya Narain Kapur (2004)

8 SCC 630, though not in context of selection / appointment, found merit in

the contention that where the issue arising for decision in the writ petition

before the Court was confined to two shops only, then eight government

orders with respect to eight shops could not have been nullified. It was held

that if the High Court, in public interest, felt that allotment of other shops

also should be nullified, it should have raised that specific issue. Similarly,

the writ petition from which this appeal arises was not filed in public

interest and in any case there can be no public interest litigation in service

matters (see Dr. Duryodhan Sahu Vs. Jitendra Kumar Mishra (1998) 7

SCC 273 & B. Srinivas Reddy Vs. Karnataka Urban Water Supply &

Drainage Board Employees' Association AIR 2006 SC 3106). The learned

Single Judge also, neither in the impugned judgment nor in the order on

review petition, has given any reason whatsoever for extending the

judgment to the posts reserved for SC and ST category.

21. We also drew the attention of the counsel for the respondents No.2

to 5 writ petitioners to the judgment also of the Supreme Court in Delhi

Administration Vs. Gurdip Singh Uban (1999) 7 SCC 44, though in

relation to the land acquisition, holding that the benefit of the challenge

made to the acquisition notification has to be confined only to those who

preferred objections to the acquisition and cannot be extended to those who

had not preferred objections, though their land was also acquired vide the

same notification which was set aside qua those who had approached the

Court.

22. We are therefore of the view that the appeal deserves to be allowed.

23. The counsel for the respondents No.2 to 5 / writ petitioners lastly

contended that allowing this appeal may affect the decision in the other

appeals against the same judgment which are pending consideration.

24. Though in view of the reason given hereinabove, in our opinion, that

possibility does not arise but nevertheless we clarify that none of the

observations made herein would affect the decision of the other appeals

impugning the said judgment.

25. The appeal therefore succeeds and is allowed; the judgment of the

learned Single Judge, to the extent of setting aside the appointments to the

post of Assistant Professor in the Department of Buddhist Studies reserved

for SC and ST category, is set aside on the ground that the appointments to

the said posts were not under challenge in the writ petition.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE FEBRUARY 27, 2015 „bs‟