Delhi High Court
Rajesh Kapoor vs Public Enterprises Selection ... on 16 July, 2015
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 16, 2015
+ W.P.(C) 6759/2015
RAJESH KAPOOR ..... Petitioner
Through: Mr. J. R. Chaudhary, Adv.
with Mr. Sagar Saxena, Adv.
& Mr. Suraj Prakash and Ms.
Swati, Advs.
versus
PUBLIC ENTERPRISES SELECTION BOARD AND ANR.
..... Respondents
Through: Mr. Arun Bhardwaj, CGSC,
Mr. Vikas Mahajan, CGSC
for R-1 &2
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
CM No.12340/2015
Exemption allowed subject to all just exceptions.
Application stands disposed of.
W.P.(C) 6759/2015
1. The present petition has been filed by the petitioner inter alia
challenging the advertisement/circular issued by the respondent No. 1
dated February 5, 2015 being contrary to the DPE OM dated October
20, 2005.
2. The petitioner is working as Director (Technical) in
Telecommunications Consultants India Ltd (TCIL). On February 5,
2015, the respondent No. 1 published a circular requesting the
respondent No. 2 to provide seniority-wise candidature of officials
bearing required qualifications, who would be found suitable for the
post of Chairman-cum-Managing Director, TCIL, in the pay scale of
Rs. 80,000 to Rs.1,12,000/-. Based on the said circular of the
respondent No.1, the respondent No. 2 vide its letter dated February
12, 2015 requested the eligible public sector enterprises, including
TCIL to forward all names of all willing and eligible candidates
seniority-wise who are found suitable for the said post. According to
the petitioner, he being very much suitable as internal candidate for
the post, applied for the said post vide his application dated March 10,
2015 through proper channel. On July 9, 2015 when a list of short
listed candidates was issued for interview, his name did not feature in
the said list. Being aggrieved by the aforesaid, the petitioner
immediately submitted a representation to the respondent No. 1.
According to the petitioner, in the said representation, the petitioner
inter alia, pointed out that he clearly qualifies the age requirement
prescribed by the advertisement/circular dated February 5, 2015. It is
his case that the representation has not been responded to and the
respondents are going ahead with the Interview as per schedule on
July 17, 2015.
3. Mr. J.R.Chaudhary, learned counsel appearing for the
petitioner would submit that the advertisement/circular issued on
February 2, 2015, limiting the upper age limit to 58 years for internal
candidates is contrary to the DPE OM dated October 20, 2005, which
inter alia, stipulate that for internal candidates the residual service
shall be of 2 years. In other words, it is his case that the date of
retirement of the petitioner is January 31, 2018 and the vacancy
getting accrued only when the incumbent demits the office on January
31, 2016, the petitioner has two years service before his
superannuation and the purported ground, on which his name has not
been included in the list, of having less than two years of service is
illegal. He would take support of the judgment of this Court in the
case of Anand Darbari Vs. Union of India and Anr., 84 (2000) DLT
718 to contend that once, the govt. has issued guidelines or policy, in
the absence of any statutory rule governing the situation, the govt. is
bound to act as per the said guideline(s). He would also rely upon the
judgment of the Supreme Court in the case of Dr.Amarjit Singh
Ahluwalia Vs. The State of Punjab and Ors., AIR 1975 SC 984 to
contend that even an administrative instruction would have the effect
of law and if deviated, would be violative of Article 14 & 16 of the
Constitution of India.
4. On the other hand, Mr. Bhardwaj, learned counsel for the
respondents has drawn my attention to clause 3 of the
circular/advertisement dated February 2, 2015, which prescribes the
eligibility condition with regard to age for the said post as under:
" ELIGIBILITY
I AGE: On the date of occurrence of vacancy:-
(i) Minimum 45 years.
(ii) Not more than 58 years for internal candidates and not
more than 57 years for others.
(iii) The age of superannuation is 60 years" .
5. According to him, the advertisement clearly stipulates that the
eligibility with regard to age would be considered on the date of
occurrence of vacancy, which in this case, is January 31, 2016 but, an
internal candidate should not be more than 58 years of age on that day.
According to him, the petitioner would be more than 58 years i.e. 58
years 21 days to be precise, as his date of birth is January 10, 1958.
He would state, even if the petitioner has residual period of two years,
as he is above 58 years, he does not fulfil the eligibility as is required
under the circular/advertisement.
6. Having heard the learned counsel for the parties, I am in
agreement with the submission of Mr. Bhardwaj inasmuch clause 3 of
the circular/advertisement dated February 2, 2015 of the respondent
No. 1 is clear and unequivocal that an internal candidate should not be
more than 58 years of age on the date of occurrence of vacancy which
is January 31, 2016. No doubt the DPE OM dated October 20, 2005
stipulates that an internal candidate should have residuary period of
two years, which he has, the said clause cannot be read in isolation,
overlooking Clause 3 of the circular/advertisement, which relates to
the eligibility with regard to the age. A reading of both the provisions,
would mean that a candidate must not be more than 58 years of age
and should have two years of residual service.
7. Insofar as the judgments relied upon by the learned counsel for
the petitioner are concerned, there is no dispute on the proposition that
in the absence of any statutory rules, the guidelines would have the
effect of law. It is not the case of the petitioner that the
circular/advertisement is contrary to any statutory rule. In the absence
of any statutory obligation with regard to eligibility, it must
necessarily follow that the circular/advertisement need to be given
effect to by harmoniously reading with the instruction issued by the
DPE dated October 20, 2005. I do not see any merit in the petition.
The same is dismissed.
8. Dasti under the signatures of Court Master.
CM No.12339/2015 (interim stay)
In view of the order passed in the writ petition, the present
application seeking interim stay is dismissed.
(V.KAMESWAR RAO)
JUDGE
JULY 16, 2015/akb
