Hariom vs Commissioner Of Police & Anr
2016 Latest Caselaw 3739 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       W.P.(C) 10489/2015
                                   Date of decision: 18th May, 2016


    HARIOM                                            ..... Petitioner
                        Through    Ms. Rekha Palli, Sr. Advocate with
                        Ms. Punam Singh, Ms. Ankita Patnaik, Ms. Shruti
                        Munjal and Ms. Garima, Advocates.

                        versus

    COMMISSIONER OF POLICE & ANR          ..... Respondent
                Through   Mr. Santosh Kr. Tripathi, ASC for
                GNCTD.

    CORAM:
    HON'BLE MR. JUSTICE SANJIV KHANNA
    HON'BLE MR. JUSTICE NAJMI WAZIRI

    SANJIV KHANNA, J. (ORAL)

Hariom, a Head Constable in Delhi Police, impugns order dated

17th August, 2015 passed by the Principal Bench of the Central

Administrative Tribunal, whereby his OA No.4266/2014 has been

dismissed on the ground of limitation.

2. The petitioner who was working as a head constable, pursuant

to the advertisement for filling up 19 vacant posts of Sub-Inspectors

(Exe.), had participated in Phase-II, 2009 Examination. The general

public had also participated for filling up 380 open posts. Thus,

Phase-II, 2009 Examination was a common examination for selection

by way of direct recruitment from general public, and against 10%

quota earmarked for departmental candidates, i.e., Constables, Head

Constables and Assistant Sub Constables working in the Delhi

Police.

3. The petitioner had secured 157 marks but did not qualify as a

departmental candidate because other departmental candidates had

higher marks. The last selected departmental candidate had secured

163 marks. However, the petitioner had secured higher marks than

the last open unreserved selected candidate who had secured 155

marks. As the petitioner had not applied in the open category, he was

not selected in the open category.

4. Two other unsuccessful departmental candidates like the

petitioner, who had secured higher marks than the last selected open

candidate, filed Original Applications before the Tribunal. Their

claim was that although they had appeared as departmental

candidates, they had secured higher marks than the last selected

candidate in the open unreserved category and, therefore, they should

be considered for appointment in the open category. The Original

Applications were dismissed by the Tribunal. The said order was

challenged before the High Court in W.P. (C) 5220 of 2012 and other

connected matters. The writ petitions were initially dismissed vide

order dated 22nd May, 2013. Subsequently, review petitions were

allowed by order dated 22nd August, 2013, and the two writ

petitioners were directed to be appointed as Sub-Inspectors

(Executive) under the unreserved category from the general

public/open category.

5. The petitioner had not challenged or questioned his non

selection as an open candidate in the Phase-II, 2009 Examination. It

has been accepted and admitted that the results/select list was

published in October, 2010. The petitioner claims that he had made

oral representations in the year 2010, but we are not inclined to

accept the said contention in the absence of any documents.

Admittedly, no written communication was addressed between 2010

and December, 2013.

6. The petitioner filed OA No.182 of 2014 in January 2014. This

OA was disposed of on 21st January 2014 with a direction to the

respondent authorities to decide the representation. By order dated

9th September, 2014, the representation was rejected, observing that

the vacancies against which the petitioner was claiming appointment

had been carried forward to the next stage of the recruitment process.

The next recruitment was in the year 2012.

7. Aggrieved, in November, 2014 the petitioner filed OA No.4266

of 2014 in which the impugned order has been passed.

8. The petitioner relies on the information furnished under the

Right to Information Act, 2005, to assert that there were at least

16/14 vacancies in the open category, that were not filled up after the

Phase-II, 2009 examination and were carried forward. The petitioner

has also drawn our attention to information furnished on 7th January,

2016 with reference to the 2012 examination, and submits that all

vacancies could not be filled up and were carried forward. The

argument however misses the point that vacancies notified for the

2012 examination would include vacancies and new posts created

between the 2009 and 2012 examinations. The petitioner cannot per

se claim right of consideration for the said vacancies not included in

the Phase II, 2009 examination. At best the petitioner's claim would

be restricted to unfilled vacancies advertised and for which the 2009

Phase II examination was held. This claim was made, post 2012

examination.

9. In light of the aforesaid position, we had asked the respondent

authorities to file an affidavit. The respondent authorities have filed

their response/reply dated 10th March, 2016. It is stated that on

completion of recruitment, all vacancies as advertised for the post of

Sub-Inspector (Executive) in the 2009 Examination were filled up

and were not available as on 21st January, 2014. An order passed by

the Joint Commissioner of Police, Headquarters, the first appellate

authority under the Right to Information Act has been enclosed. The

order quotes and includes tables, details etc. and states that all the

advertised vacancies for the Phase-II, 2009 Examination were duly

filled up and were not vacant. The two candidates appointed pursuant

to the direction given by the High Court in W.P.(C) No.5220 of 2012

were accommodated against future vacancies to ensure compliance

of the order/direction as the selected candidates had already joined

against the advertised vacancies in the Phase II, 2009 examination.

10. We may have gone deeper and examined the question of

vacancies in greater detail, albeit we find that in the present case the

OA has rightly been dismissed on the ground of limitation. The

select list was published in the month of October, 2010. The

petitioner was notified and was aware that he had secured 157 marks

and was not considered for appointment against unreserved vacancies

in the open category. He was also aware that the last selected

unreserved candidate from the open category had secured lower

marks, i.e., 155 marks. Two police officials similarly situated had

objected and had filed an OA, which was dismissed. Their writ

petitions were also dismissed, but thereafter the review application

was allowed and they were directed to be appointed vide order dated

22nd August, 2013. The petitioner filed the first OA i.e. OA No.182

of 2014 in 21st January, 2014, nearly four years after the select list

was published in October, 2010. Thus the petitioner had invoked and

initiated the legal process after substantial delay and long after the

declaration of results. The cause of action had arisen when the results

were published. The invocation was beyond the time stipulated as per

the limitation period in Section 21 of the Administrative Tribunals

Act, 1985.

11. The petitioner relies on State of Uttar Pradesh and Ors. Vs.

Arvind Kumar Srivastava and Ors. (2015) 1 SCC 347. Having

examined the factual matrix, we observe that the petitioner had failed

to act at the relevant time and had woken up after a long delay,

whereas his two counterparts in the Delhi Police had approached the

Court at an earlier point of time and after a long battle had succeeded

in August, 2013. The petitioner should not be given the benefit of

the judgment as he was a fence sitter. In the meantime, in 2012,

another examination was held, and vacancies were filled. We have

already observed that the petitioner cannot claim any right on the

vacancies or new posts of Sub Inspectors (Exe.) created post the

vacancies, included in the Phase II, 2009 examination. There are

other pertinent reasons as to why the bar of limitation would be

attracted. As per the list available at page No.138 of the paper book,

there were at least fifteen other departmental candidates, who had

secured marks between 155 and 163 i.e., marks of the last open

category general candidate and the last selected candidate under 10%

departmental quota. Two unsuccessful candidates had approached the

Tribunal in 2010 and order dated 22nd August, 2013 has been passed

in their favour. Thirteen others including the petitioner would be

entitled to a similar benefit in case the present writ petition is

allowed. The respondents would have to redo and rework the entire

exercise of finding out who would or would not have qualified from

the open category. Law of limitation, sometimes perceived as

technical and iniquitous, serves an important public purpose. It

ensures certainty and negates ill effect when settled positions are

sought to be altered. At the distinct point of time in 2014, about four

years after the results of the 2009 examination were declared, the

said exercise would create unforeseen complications and possibly

litigation on issues like seniority. The open category candidates

selected in the 2009 Examination have already joined. They are not

impleaded. Question of seniority etc. with those selected in 2009 and

2012 would be an issue. This is not the case of an illiterate or denied

person not aware of his rights, who for economic and social reasons

possibly had limited resources or had hesitated in approaching

courts/tribunals/authorities.

12. In view of the above, we do not find any merit in the present

writ petition and the same is dismissed. There will be no order as to

costs.

SANJIV KHANNA, J.

NAJMI WAZIRI, J.

MAY 18, 2016 NA