Narender Singh Rana vs Director, Nehru Memorial Museum & ...
2015 Latest Caselaw 901 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 2761/2014 & CM 5725/2014 (stay)

%                                                          2nd February, 2015

NARENDER SINGH RANA                                        ..... Petitioner

                          Through:       Mr. Sanjiv Joshi, Mr. Birender Singh
                                         Rawat, Advocates

                          versus

DIRECTOR, NEHRU MEMORIAL MUSEUM
& LIBRARY                                                     ..... Respondent

                          Through:       Mr. Chetan Gupta, 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 Article 226 of the Constitution of

India, the petitioner seeks a writ in the nature of mandamus or any

appropriate writ for setting aside the advertisement dated 22nd to 28th June,

2013 for the post of Senior Technical Assistant - STA (Museum). Relief in

the writ petition is claimed on the ground that the post of Senior Technical

Assistant - STA (Museum) cannot be filled in by direct recruitment but can

only be filled by promotion from departmental candidates. Relief is also

prayed for promoting the petitioner to a post as per his eligibility and

seniority position and take appropriate steps to fill up the vacancies in

accordance with law and as per the existing notified recruitment rules by

holding a Departmental Promotion Committee (DPC).

2. The facts of the case are that the respondent/employer/Nehru

Memorial Museum & Library issued the subject advertisement in June 2013

for appointment to the post of Senior Technical Assistant - STA (Museum).

Petitioner in terms of the selection process participated in the written test and

just before the interviews were to be conducted, filed this writ petition

questioning the selection process on the ground that appointment of a Senior

Technical Assistant - STA (Museum) in terms of the relevant rules of the

respondent has to be by means of promotion and not by direct recruitment.

The recruitment rules are filed as Annexure P-4 to the petition at page 29.

Petitioner, therefore, contends that the entire selection process is flawed, and

therefore has to be quashed because Senior Technical Assistant - STA

(Museum) can only be appointed by promotion and not by direct

recruitment.

3. In the counter affidavit, respondent has raised three main contentions

in defence and which are as under :

(i) The recruitment rule which is relied upon by the petitioner is not the

relevant recruitment rule because the relevant recruitment rule now entitles

appointment to the post of Senior Technical Assistant - STA (Museum) by

direct recruitment and by promotion in the ratio of 50% : 50% and that the

Executive Council of the respondent in terms of its meeting dated 19.2.2013

has passed a resolution to this effect. This resolution dated 19.2.2013 with

its agenda item no. 7 and the decision taken by the Executive Council has

been filed from internal pages 24 to 28 of the counter affidavit filed by the

respondent.

(ii) Respondent also contends that even if the post of Senior Technical

Assistant - STA (Museum) has to be filled in only by means of promotion,

yet, petitioner cannot seek appointment because the feeder cadre for the post

of Senior Technical Assistant - STA (Museum) is a Senior Guide whereas

the petitioner is working at a one step lower post of a Guide only, and

therefore, the petitioner cannot make a claim to the subject post of Senior

Technical Assistant - STA (Museum) by promotion.

(iii) Finally, it is contended in the counter affidavit that petitioner has

participated in the selection process by appearing in a written test and petitioner

is hence estopped from questioning the selection process in view of the

judgment of the Supreme Court in the case of Manish Kumar Shahi Vs.

State of Bihar and Ors., (2010) 12 SCC 576.

4. On behalf of the petitioner, the following arguments are urged before

this Court:

(i) Amendments made to the Recruitment Rules/Service Bye Laws of the

respondent are illegal because the respondent in terms of its memorandum of

association can only do so with the prior approval of the Central

Government and which approval is missing.

(ii) The vacancy in the present case is of the year 2011, and therefore,

recruitment rule which has been amended w.e.f 2013 cannot apply with

respect to the vacancy of the year 2011.

(iii) There were other persons who were appointed directly from the posts

of Guide to the posts of Senior Technical Assistant - STA (Museum) viz Sh.

Omprakash and Sh. Ranjit Kohli, and therefore, since such persons have

been illegally given appointment to the posts of Senior Technical Assistant -

STA (Museum), the petitioner should be given the appointment.

5. All the arguments urged on behalf of the petitioner are without any

basis whatsoever and the writ petition is an abuse of the process of the law.

6. The first ground urged on behalf of the petitioner that the relevant rule

has not been correctly amended by the Executive Council of the respondent

is misconceived in view of the letter dated 4.4.2003 filed by the respondent,

of the Government of India, Ministry of Tourism & Culture (parent Ministry

of the respondent) and which shows that the respondent through its

Executive Council is entitled to amend its Service Bye Laws and

Recruitment Rules in case no financial implications are involved in the

proposal. Therefore, once the parent Ministry of the respondent allows the

respondent to generally amend the bye laws in terms of letter dated 4.4.2003

if there are no financial implications upon the Government, I do not think

that the petitioner is entitled to argue on the basis of a clause in the

memorandum of association that the respondent's Council could not have

amended the Service Bye Laws. The Council of the respondent had the

necessary powers to amend the bye laws, and so far as the prior approval is

concerned, the letter of the Ministry of Tourism & Culture dated 4.4.2003

gives general approval and entitlement to amend the Service Bye-Laws and

Recruitment Rules in case no financial implications are involved in the

proposal. The first argument urged on behalf of the petitioner is, therefore,

rejected.

7. The second argument urged on behalf of the petitioner that the

vacancy in the present case is of the year 2011, and therefore, Recruitment

Rules which have been amended w.e.f 2013 cannot apply with respect to the

vacancy of the year 2011 is an argument which has to be rejected in limine

because there is not even a whisper of this argument in the entire writ

petition. If any aspect is argued before this Court, necessary foundation has

first to be laid in the pleadings and which pleadings have to be supported by

the relevant documents. Since in this case neither there exist the requisite

pleadings nor the documents in support of the argument, the argument urged

on behalf of the petitioner is therefore without any merit and is rejected. In

fact, though the rejoinder affidavit need not be considered once the same

would raise a new case, but at the request of the counsel for the petitioner I

went through the rejoinder affidavit, however, even in the rejoinder affidavit

no case is pleaded or made out that the vacancy in this case is of the year

2011, and therefore, the Executive Council has no entitlement in the year

2013 to amend the Recruitment Rules for a post which is of the year 2011.

Therefore, the second argument urged on behalf of the respondent is also

rejected.

8. The third argument raised on behalf of the petitioner that two other

persons namely Sh. Omprakash and Sh. Ranjit Kohli, both of whom were

working as Guides and were appointed to the posts of Senior Technical

Assistant - STA (Museum), and thus even the petitioner should also be

appointed is once again a ground which is without any merit whatsoever

because except stating this aspect in the rejoinder affidavit, no documents

have been filed to substantiate this argument of the petitioner that Sh.

Omprakash and Sh. Ranjit Kohli were only Guides when they were

appointed as Senior Technical Assistants - STA (Museum). Self-serving

averments in the absence of relevant documents cannot help the petitioner.

Also, it is settled law that Article 14 of the Constitution is a positive concept

and not a negative concept. A petitioner before the court of law cannot

invoke Article 14 of the Constitution to commit an illegality by arguing that the

petitioner be appointed directly from the post of a Guide to the post of Senior

Technical Assistant - STA (Museum) allegedly because in the past two persons

being Sh. Omprakash and Sh. Ranjit Kohli were illegally appointed as Senior

Technical Assistants - STA (Museum) from the posts of Guide. I thus find no

merit even in this argument, and the same is also rejected.

9. It is obvious that the petitioner after participating in the selection

process viz the written test, came to know that he would not be successful in

the process. After participating in the selection process petitioner suddenly

in the middle of the selection process cannot turn around and question the

selection process and which he could only have done at the time of issuing

of the advertisement and not in the middle of the selection process.

10. In view of the above, the writ petition is a gross abuse of the process

of the law and the same is dismissed with costs of Rs. 25,000/-. Respondent

is entitled to recover the costs from the petitioner in accordance with law.

FEBRUARY 02, 2015                                  VALMIKI J. MEHTA, J
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