Delhi High Court
Pawan Kr.Kalra vs The Registrar General, Delhi High ... on 17 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17th August, 2017
% W.P.(C.) No.7367/2012
PAWAN KR. KALRA ..... Petitioner
Through: Mr.Ashwin Vaish & Mr.Vinod
Pandey, Advocates.
versus
THE REGISTRAR GENERAL, DELHI
HIGH COURT & ORS. ..... Respondents
Through: Mr.Sanjoy Ghose, ASC for DHC.
Mr.Arun K. Sharma, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J. (ORAL)
1. The Petitioner who is presently a Joint Registrar in the Delhi High
Court has, by way of the present writ petition, challenged the decision dated
04.08.2008 of the Selection Committee, vide which the Petitioner was
superseded for appointment to the post of Assistant Registrar by the
Respondent Nos.2 & 3.
2. The brief facts relevant for the adjudication of the present petition are,
that the Petitioner joined services of this Court as a Senior Stenographer in
the year 1994 and was promoted as an Administrative Officer (Judicial) in
the year 2002. From 2005 to 2009, the Petitioner worked as a Court Master
and his next promotional avenue was that of Assistant Registrar. On
04.08.2008, the Selection Committee comprising of four Hon'ble Judges of
this Court considered eligible candidates for promotion, inter alia, to the
post of Assistant Registrar. There were 7 vacancies of Assistant Registrars
and, accordingly, the names of 12 senior-most eligible Court Masters and 8
senior-most Private Secretaries were considered by the Committee. The
consideration was based on the service record of the candidates, including
the ACRs for the preceding five years. Based on his seniority, the Petitioner
was placed at Serial No.5 of the list of candidates being considered for
promotion by the Committee. Upon consideration of the merit of all the 20
candidates, the Selection Committee recommended names of seven
candidates, including the Respondent Nos.2 and 3 for promotion as
Assistant Registrar. The Committee, however, graded the Petitioner and two
other candidates namely Mr.Mukesh Bhambri and Ms.Sadhna Gupta- as
being 'unfit' for promotion, even though based on their seniority they had
been placed at Sl. Nos.1 and 2 in list of candidates being considered for
promotion.
3. At this stage, we may take note of the Petitioner's ACR gradings. The
Petitioner earned a 'Very Good' grading in his ACR for the year 2002, but
in his subsequent ACRs for the year 2003 to 2006, he had been graded as
'Good'. In the year 2007, he was again upgraded to 'Very Good'. It further
transpires from the record, that based on his representation, the Petitioner's
ACR for the year 2006 was subsequently-on 22.01.2009, upgraded from
'Good' to 'Very Good'. With this change in his ACR grading for the year
2006, the Petitioner was once again considered for promotion on
23.07.2009. This time, the Selection Committee graded him as 'fit' for
promotion, and he was accordingly promoted as Assistant Registrar on
23.07.2009.
4. Before dealing with the contentions raised on behalf of the Petitioner,
it would be apt to note that promotion to various posts in the establishment
of the High Court of Delhi is governed by the Delhi High Court
Establishment (Appointment and Conditions of Service) Rules, 1972
hereinafter referred to as the 'Rules'. The mode and qualifications for
appointment to the various posts is prescribed in Schedule II; Entry No.3 of
this Schedule dealing with the post of Assistant Registrar (Selection Post)
prescribes that the appointment would be made by selection from confirmed
officers holding the posts of Private Secretary, Administrative Officer
(Judicial) and Court Masters, on merit. The relevant extract of Schedule-II
reads as under:-
Schedule -II
S.No. CATEGORY OF MINIMUM Mode of Appointment
POST QUALIFICATIONS
PRESCRIBED FOR
APPOINTMENT
TO THE POSTS
3 Assistant Registrar - By selection on merit from
(Selection Post) confirmed Officers of (Selection
Post) the Categories 5, 6 and 7 of
Class II mentioned in Schedule I in
the ratio of Category 7 of Class II
mentioned in Schedule I (Private
Secretary) and from the Officers of
the Categories 5 and 6 of Class II
mentioned in Schedule-I
(Administrative Officer (Judicial)
and Court Master). The first vacancy
shall be filled in from the Officer of
Category 7 of Class II mentioned in
Schedule -I (Private Secretary) and
thereafter by rotation dependent on
the strength of the Cadres.
Provided that if there be no officer
available or found fit for promotion
out of the officers falling in
consideration zone in any one of the
above said categories, the vacancy
may be filled from the other category
by rotation as above subject to
adjustment at the future
selection/selections but without
prejudice to the seniority of the
person(s) already appointed.
EXPLANATIONS:
The present cadre strength of Private
Secretaries and Admn. Officer
(Judl)/Court Master is 61 and 78
respectively. Thus, the rotation of
the vacancies in the cadre of
Assistant Registrar will be filled in
the ratio of 3 (PS): 4(AOJ/CM); that
is first vacancy from PS, second from
AOJ/CM, third from PS, fourth from
AOJ/CM, fifth from PS and sixth and
seventh from AOJ/CM and so on and
so forth.
(emphasis supplied)
5. The rules, thus, provide for merit based selection, without prescribing
any specific criteria or benchmark for determining the merit. Every
Selection Committee was, therefore, entitled to devise its own methodology
to determine the merit of the candidates. This position prevailed when the
Selection Committee met on 04.08.2008 to consider selections for filling up
the seven posts of Assistant Registrars. However, in the meeting of the
Selection Committee held on 23.12.2009, upon finding that no formal
benchmark had been laid down for promotion to the various posts under the
Rules, the Committee recommended that a benchmark of at least three 'Very
Good' ACRs during the past five years, should be prescribed for
consideration of candidates for the post of Assistant Registrar/Deputy
Registrar/Joint Registrar. The Committee, accordingly, recommended that
only those candidates who fulfilled this benchmark, should be considered
and assessed for promotion in accordance with the Rules. This
recommendation of the Selection Committee was accepted by the Hon'ble
Chief Justice on 26.12.2009 and thus, from 26.12.2009 onwards, only the
candidates fulfilling the criteria of having at least three 'Very Good' ACRs
during the preceding five years are being considered for selection to the
aforesaid posts of Assistant Registrar, Deputy Registrar and Joint Registrar.
The selection, however continues to be based on merit.
6. Though the Petitioner had not raised any grievance regarding his
supersession in August 2008,after his promotion as Assistant Registrar on
23.07.2009, he submitted a representation dated 27.11.2009 praying for
restoration of his seniority as Assistant Registrar. The main plea raised by
the Petitioner in his representation was that his ACR for the year 2006-
which had been considered at the time of his supersession in August 2008,
now stood upgraded in January 2009 and, therefore, his case for promotion
ought to be reconsidered with effect from the date on which his juniors had
been promoted as Assistant Registrar in August 2008. Receiving no
response to his representation dated 27.11.2009, the Petitioner submitted
another representation dated 15.04.2010 which was rejected on 25.05.2010.
Pertinently for more than 2 ½ years, the Petitioner neither made any further
representation, nor challenged the minutes dated 04.08.2008 of the Selection
Committee, or the order dated 25.05.2010 rejecting his representation. It was
only on 09.11.2012 that the Petitioner preferred the instant writ petition
challenging the decision of the Selection Committee taken more than 4 years
earlier.
7. Arguing for the Petitioner, Mr.Ashwin Vaish, Advocate has
challenged the supersession of the Petitioner in 2008 on four grounds-the
first and foremost being that till 26.12.2009, there was no prescribed
benchmark for promotion. Mr. Vaish submits that keeping in view the four
'Good' and one 'Very Good' ACRs that he had earned, his supersession in
the meeting of 04.08.2008 was wholly arbitrary. He contends that once there
was no specified benchmark, and the Petitioner had four 'Good' and one
'Very Good' as his last five ACRs, he could not be superseded as there was
nothing adverse in any of his ACRs. The second submission urged on behalf
of the Petitioner is that the Selection Committee has erred in disregarding
the inter se seniority of the candidates, and has failed to consider the effect
of DoPT's Office Memorandum dated 8th February, 2002. He has relied on
Paras 3.1 and 3.2 of the said Office Memorandum in support of his argument
that candidates had to only be assessed as either 'fit' or 'unfit' with
reference to the relevant benchmark prescribed in the OM. The plea is that
after issuance of this OM dated 08.02.2002, the only requirement is to see
whether the candidate meets the benchmarks, and there can be no
supersession of candidates meeting the benchmark prescribed in the OM.
The said Office Memorandum read as under:-
"3.1 Mode of Promotion
In the case of „Selection‟ (merit) promotion, the hitherto existing
distinction in the nomenclature („selection by merit‟ and „selection-cum-
seniority‟) is dispensed with and the mode of promotion in all such cases is
rechristened as „selection‟ only. The element of selectivity (higher or lower)
shall be determined with reference to the relevant bench-mark ("Very Good" or
"Good") prescribed for promotion.
3.2 `Bench-mark‟ for promotion
The DPC shall determine the merit of those being assessed for promotion
with reference to the prescribed bench-mark and accordingly grade the officers
as 'fit' or 'unfit' only. Only those who are graded 'fit' (i.e. who meet the prescribed
bench-mark) by the DPC shall be included and arranged in the select panel in
order to their inter-se seniority in the feeder grade. Those officers who are
graded 'unfit' (in terms of the prescribed bench-mark) by the DPC shall not be
included in the select panel. Thus, there shall be no supersession in promotion
among those who are graded 'fit' (in terms of the prescribed bench-mark) by the
DPC.
3.2.1 Although among those who meet the prescribed bench-mark, inter-se
seniority of the feeder grade shall remain intact, eligibility for promotion will no
doubt be subject to fulfilment of all the conditions laid down in the relevant
Recruitment/Service Rules, including the conditions that one should be the holder
of the relevant feeder post on regular basis and that he should have rendered the
prescribed eligibility service in the feeder post.
3.3 Promotion to the revised pay-scale (grade)
of Rs.12,000-16,500 and above
(i) The mode of promotion, as indicated in paragraph 3.1 above, shall be
'selection'.
(ii) The bench-mark for promotion, as it is now, shall continue to be 'very
good'. This will ensure element of higher selectivity in comparison to
selection promotions to the grades lower than the aforesaid level where
the bench-mark, as indicated in the following paragraphs, shall be 'good'
only.
(iii) The DPC shall for promotions to said pay-scale (grade) and above,
grade officers as `fit‟ or 'unfit' only with reference to the bench-mark of
'very good'. Only those who are graded as 'fit' shall be included in the
select panel prepared by the DPC in order of their inter-se seniority in
the feeder grade. Thus, as already explained in paragraph 3.2 above,
there shall be no supersession in promotion among those who are found
'fit' by the DPC in terms of the aforesaid prescribed bench-mark of 'very
good'.
3.4 Promotion to grades below the revised pay-scale (grade) of Rs.12,000-
16,500 (including promotions from lower Groups to Group 'A'
posts/grades/services)
(i) The mode of promotion, as indicated in paragraph 3.1 above, shall be
'selection'.
(ii) The bench-mark for promotion, as it is now, shall continue to be 'good'.
(iii) The DPC shall for promotion to posts/grades/services in the aforesaid
categories, grade officers as `fit‟ or 'unfit' only with reference to the
bench-mark of 'good'. Only those who are graded as 'fit‟ shall be
included in the select panel prepared by the DPC in order of their inter-
se seniority in the feeder grade. Thus, as already explained in paragraph
3.2 above, there shall be no supersession in promotion among those who
are found 'fit' by the DPC in terms of the aforesaid prescribed benchmark
of 'good'.
3.5 Zone of consideration
The guidelines relating to the 'zone of consideration' in its existing form
(twice the number of vacancies plus four) shall continue to have general
application. However, in view of the modifications in promotion norms
indicated in paragraph 3.3 above, the following stipulation [as is already
applicable in the case of promotions below the revised pay-scale (grade)
of Rs.12,000-16,500 vide DoP&T O.M. no.22011/8/98-Estt(D) dated
November 6, 1998] is also made in the regard to the zone of
consideration for promotion to the revised pay-scale (grade) of
Rs.12,000-16,500 and above:
"While the zone of consideration would remain as already
prescribed, the DPC, in the aforesaid category of cases,
may assess the suitability of eligible employees in the zone
of consideration (in the descending order) for inclusion in
the panel for promotion up to a number which is
considered sufficient against the number of vacancies.
With regard to the number of employees to be included in
the panel, the DPC may also be required to keep in view
the instructions issued vide Department of Personnel and
Training Office Memorandum No.22011/18/87-Estt(D)
dated April 9, 1996 relating to norms for Preparing
extended panel for promotion. In respect of the remaining
employees, the DPC may put a note in the minutes that
"the assessment of the remaining employees in the zone of
consideration is considered not necessary as sufficient
number of employees with prescribed bench-mark have
become available."
8. Mr. Vaish submits that with reference to the promotions granted to
Mukesh Bhambri, Usha Kiran Gupta and Ms Sadhna Gupta, no specific
benchmark was followed by the Selection Committee, leading to
inconsistency in the criteria adopted by the various Selection Committees. It
is contended that all these three persons, after being superseded on the first
occasion, were promoted in the very next Selection Committee meeting,
even without there being any change in their ACR Profile. Based on the
minutes of Selection Committee relating to these three persons, the
Petitioner has raised his third ground to contend that he has been
discriminated against, as all the three aforesaid persons were promoted on
basis of their seniority, even when they had one or two 'Very Good' ACRs.
However, promotion was denied to the Petitioner by ignoring his seniority,
and that too when he had two 'Very Good' ACRs.
9. The last submission made on behalf of Petitioner is that his
uncommunicated ACRs for the years 2003 to 2005 & 2007 containing below
benchmark grading of 'Good' have been used to grade him as 'unfit' for
promotion. He, thus, contends that in view of the judgment of the Supreme
Court in the case of Devdutt vs. Union of India 2008 (8) SCC 725, the
ACRs for the period 2003 to 2005 & 2007 which were admittedly not
communicated to him, should be ignored and he ought to be reconsidered for
promotion, as on 04.08.2008, by the Selection Committee.
10. On the other hand, Mr. Sanjay Ghose appearing for the Respondent/
High Court has firstly contended that the Writ Petition is grossly barred by
delay and laches, as the same has been filed after four years of the
Petitioner's supersession. He relies on various judgments of the Apex Court
in support of his submission that in service matters, a belated challenge after
more than three/four years ought not to be entertained, as it results in
unsettling the settled seniority position.
11. Mr. Ghose has further argued that once the rules specifically provide
for selection on merit, in the absence of a laid down criteria, the Selection
Committee had the authority to lay down the criteria to judge the relative
merit of the candidates. In the absence of any allegation of bias or mala
fides, no fault could be found with the recommendation of the selection
committee made on 04.08.2008. His submission is that, even otherwise, the
Petitioner cannot raise any grievance qua the selection of Respondent 2 and
Respondent 3-who, even as per his own showing, had a much better service
record/ACR gradings. The ACR grading of the candidates found 'fit' for
promotion by the Selection Committee in its meeting held on 04.08.2008,
from amongst the Private Secretaries/Administrative Officers (Judicial)/
Court Maters, and that of the Petitioner were as follows:
S. Name of Officer Education ACR Remarks
No qualificati-
2003 2004 2005 2006 2007
on
1. Mr. Mukesh B.A Good Good Good Good Outstanding
Bhambri
2. XXX
3. Mr. Kamlesh Matric Very Outstan- Very Very Very Good
Chand Good ding Good Good
4. Mr. Meenu Gupta B.A Very Very Very Very Very Good
Good Good Good Good
5. Mr. Pawan M.A. B.AL Good Good Good Good Very Good
Kumar Kalra
6. Mr. Atul Kumar B.A. Good Very Very Very Very Good
Sharma (Hons) Good good Good
L.L.B. (Jan
05 to
7.10.2
005.)
7. Mr. Pramod B.A. Outstan- Outstan- Outst- Outst- Outstanding
Kumar ding ding anding nding
8. XXX
9. XXX
10. XXX
11. XXX
12. XXX
12. In response to the plea of the Petitioner regarding the promotion of
Mukesh Bhambri, Usha Kiran Gupta and Ms Sadhna Gupta who, like the
Petitioner, also had only 1 or 2 ACRs with grading of 'Very Good', the
submission of the counsel for Respondent is, that it was for the Selection
Committee to devise its own criteria to determine the relative merit of each
of the candidates, and the mere comparison of ACRs cannot be used as the
test to determine merit. He submits that, it will not be appropriate for this
court to try and fathom the factors which weighed with the different
Selection Committees in determining relative 'merit' from time to time,
when there is no challenge to the promotions of any of the candidates.
Placing reliance on the judgment of the Supreme Court in the case of State
of U.P. vs. Neeraj Awasthi & Ors. (2006) 1 SCC 667, Mr.Ghose contends
that even if the Court were to find any irregularity in the selection of the
aforesaid three persons, the same cannot be a ground for quashing the
supersession of the Petitioner in August, 2008. He contends that Article 14
is a positive concept, and no equality can be claimed in the so called
irregularity.
13. We have considered the submissions made by both sides, and with
their assistance, perused the record.
14. Before dealing with the rival contentions of the parties, it would be
appropriate to note that the applicable Rules capitulated hereinabove, in no
uncertain terms provide that the determining factor for selection is merit
alone. The core issue which, thus, needs to be decided in the present case is
as to whether the decision of the Selection Committee which met on
04.08.2008-and more particularly the manner in which the seven candidates
were selected to the post of Assistant Registrar by superseding the
Petitioner, is fair, reasonable and in consonance with the Rules. The
question which we need to address is whether the decision of the said
selection can, in any manner, can be held to be not based on merit.
15. Once it is an undisputed position that the applicable service Rules
provide for selection on the basis of 'merit', it follows as a necessary
corollary, that the decision of the selection committee had to lay emphasis
on merit alone, and seniority could not be a determinative factor in making
the selection from amongst the eligible candidates falling within the zone of
consideration. In our view, the only limited role which seniority has to play
in such a selection process, is that the zone of consideration has to be
prepared on the basis of seniority, whereafter, the field is levelled for all the
candidates being considered, irrespective of their inter se seniority, and their
selection is made solely on the basis of relative 'merit'. Of course, the
seniority would be maintained by the Selection Committee while preparing
the panel of selected candidates i.e. those who are found 'fit' for promotion.
16. Once it is found that selection was to be based solely on merit, which
was to be determined by the Selection Committee, we are unable to agree
with the submission of the learned counsel for the Petitioner, that in the
absence of a prescribed criteria, no supersession was permissible. The
contention of the Petitioner that he being senior, he ought to have been
selected in preference to Respondent nos.2 and 3-who were, admittedly,
junior to him but more meritorious is liable to be rejected . We find no merit
in the submission of the Petitioner's counsel, that in the absence of a
prescribed benchmark, seniority alone should have been the determinative
factor for selection. In our view, this submission would negate the very
concept of 'merit' based selection-which the recruitment rule provides.
17. We have also considered the submission of the Petitioner that the
DoPT's OM dated 8th April, 2002 while providing the framework within
which the promotion by merit is to be judged, states that the element of
merit shall be determined with reference to the relevant benchmark, and
these candidates are to be only graded as 'fit' or 'unfit'-meaning thereby,
that there is no room for supersession. We are, however, unable to agree
with this submission of the Petitioner, as it has to be kept in mind that it is
the Rule providing for selection on merit, which is the ultimate guiding
factor for the Selection Committee, and not the OM. Once the Rule clearly
provides for selection to be based on merit, it is for the Selection Committee
to devise its own criteria to decide in its discretion, as to what constitutes
merit.
18. We may also refer to the decision dated 23.05.2014 of this Court in
the case of R.P. Tolani v. Union of India & Ors on W.P.(C) No. 8639/2010,
in which a Coordinate Bench of this Court upon consideration of a similar
provision, namely, Rule 7 (C) of the Income Tax Appellate Tribunal
Member (Recruitment and Conditions of Service Rules), 1963-providing for
merit based selection, had rejected the plea to invoke the provisions of
Office Memorandum dated 08.04.2002 into the specific recruitment rules for
ITAT members. Reference may be made to paras 37,38 & 40 of the
judgment in the case of R.P Tolani (supra) which read as follows:-
"37. In considering this issue, while the Court must remain conscious that the
Office Memorandum in question marks a departure from the previous
nomenclature, and prescribes a clear procedure for „selection‟, as grading
followed by seniority, it is important first and foremost to note the terms of Rule
7C, which is the primary rule applicable in this case. Rule 7C notes that the:
"Selection Committee ...based on merit, shall
recommend persons for appointment as...
Vice-Presidents." (emphasis supplied)."
38. Thus, Rule 7C itself gives specific guidance on the criterion on which the
Selection Committee is to base its decision, leaving little scope for either the
Selection Committee to devise its own criterion (as the order of the CAT
indicates) or incorporate the Office Memorandum dated 8th February, 2002 (as
the petitioner argues). While, concededly, the Selection Committee may decide -
in its discretion - what constitutes „merit‟ for the purposes of appointing an
individual to the post of Vice-President, the fact that the criterion is merit, and
merit alone, is prescribed within Rule 7C, which is mandatory and cannot be
departed from.
40. Yet, the crucial issue is that while this may be the case generally under the
concerned rules, the Court must construe the text of the rules before it in each case,
which are the specific law applicable, rather than incorporating general principles to
bypass those precise prescriptions. Indeed, the Supreme Court has recognized at
various point, in cases concerning service rules, the Court must "read the Rules as
they are", even more so when the rules are clear and explicit (Ref, Nair Service Society
v. Dr. T. Beermasthan and Ors., (2009) 5 SCC 545, paragraphs 21, 41-2). In this case,
Rule 7C states in no uncertain terms that the determining factor for the Selection
Committee (while determining suitability of candidates for the post of Vice President of
ITAT) is the merit of the candidates. Indeed, if it was the intention to include any other
factors are determinative, or relevant, to the Selection Committee‟s consideration, they
would have been included as such. In reading the general selection procedure under
the Office Memorandum dated 8th February, 2002, for Government posts, into the
specific rules for ITAT members, would not cohere with the text of the rules."
19. The third submission of the learned counsel for the Petitioner
regarding discrimination vis-a-vis three candidates named hereinabove who
were promoted with similar ACR gradings as the Petitioner, is equally bereft
of merit. We find that none of the candidates whose cases have been
referred to by the Petitioner, were selected in the Selection process which is
in question. No reliance, therefore, can be placed on those cases, which
pertain to a different selection process even otherwise, each selection is
based on a comparative assessment of the merit of the candidates being
considered in that selection process. The Petitioner cannot claim that merely
because candidates with similar profile as his were selected in a subsequent
or prior selection, he has any vested right to be selected, since the selection
is based on comparative merit of the candidates falling within the zone of
consideration. We also find force in the submission of the counsel for the
Respondent that, even if-hypothetically, it is accepted that any person was
wrongly given promotion, the Petitioner cannot claim relief by introducing
the concept of negative equality. In this regard, we may refer to the decision
of the Supreme Court in the case of State of Bihar v. kameshwar [2000] 9
SCC 94. In this decision the Supreme Court reiterated the well settled
principle that the concept of equality is a positive concept which cannot be
enforced in a negative manner Para 30 of this decision reads as under:-
"30. The concept of equality as envisaged under Article 14 of the Constitution
is a positive concept which cannot be enforced in a negative manner. When any
authority is shown to have committed any illegality or irregularity in favour of
any individual or group of individuals other cannot claim the same illegality or
irregularity on ground of denial thereof to them. Similarly wrong judgment
passed in favour of one individual does not entitle others to claim similar
benefits. In this regard this Court in Gursharan Singh v. NDMC
[1996]1SCR1154 held that citizens have assumed wrong notions regarding the
scope of Article 14 of the Constitution which guarantees equality before law to
all citizens. Benefits extended to some persons in an irregular or illegal
manner cannot be claimed by a citizen on the plea of equality as enshrined in
Article 14 of the Constitution by way of writ petition filed in the High Court.
The Court observed (Para 9):
"Neither Article 14 of the Constitution conceives within the equality
clause this concept nor Article 226 empowers the High Court to
enforce such claim of equality before law. If such claims are
enforced, it shall amount to directing to continue and perpetuate an
illegal procedure or an illegal order for extending similar benefits to
others. Before a claim based on equality clause is upheld, it must be
established by the petitioner that his claim being just and legal, has
been denied to him, while it has been extended to others and in this
process there has been a discrimination."
Again in Secy., Jaipur Development Authority, Jaipur v. Daulat Mai Jain this
Court considered the scope of Article 14 of the Constitution and reiterated its
earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires
and illegal policy of allotment made to some other persons wrongly,
would not form a legal premise to ensure it to the respondent or to
repeat or perpetuate such illegal order, nor could it be legalised. In
other words, judicial process cannot be abused to perpetuate the
illegalities. Thus considered, we hold that the High Court was
clearly in error in directing the appellants to allot the land to the
respondents."
20. The last plea raised by the Petitioner to contend that his
uncommunicated ACRs for the years 2003 to 2005 and 2007 containing
below benchmark grades of `Good' ought to be ignored, is self
contradictory. On the one hand, the Petitioner has contended that there was
no prescribed benchmark for selection as on the date of the selection i.e. 4th
August, 2008 and, on the other hand, he has contended that these ACRs
contained below benchmark grading and, therefore, should have been
ignored as they were not communicated. We find that selection was based
solely on merit. The record shows that till 23.12.2009, there was no
specifically provided benchmark and, thus, there was no question of any
ACR being considered below benchmark. There being no specific
benchmark, the selection was made by the Selection Committee by
independently assessing the comparative merit of such candidate. The plea
of the Petitioner for ignoring his ACRs for the years 2003 to 2005 & 2007
on the ground that these ACRs contained below Benchmark gradings, is also
liable to be, and is rejected.
21. We cannot lose sight of the settled principle that in matters of
selection, the primary responsibility is of the Selection Committee, and the
Courts have a limited power of judicial review. The evaluation and
assessment of merit by the Selection Committee is an administrative
function, and unless bias or malafide is alleged, it is not for the Courts to sit
in appeal over the decisions of the Selection Committee. It is not for the
Court to examine the relative merits of the candidates. The Court cannot,
and should not, tinker with the selections, merely because the Selection
Committee has chosen not to give any reasons for selecting particular
candidates, and rejecting others. The record does not disclose a patent error,
or arbitrary exercise of its authority by the selection committee.
We are fortified in our aforesaid conclusion by the observations of the
Supreme Court in para 18 of the case of Major General, IPS Dewan Versus
Union of India & Ors. reported as (1995) 3 SCC 383, which reads as
under:-
"18. Sri Ramaswamy then relied upon the decision in The Manager,
Government Branch Press and Anr. v. D.B. Belliappa in support of his
submission that administrative orders affecting the rights of citizens
should contain reasons therefore. We are afraid, the said principle
cannot be extended to matters of selection. Unless the rules so require,
the Selection Committee/Selection Board is not obliged to record reasons
why they are not selecting a particular person and/or why they are
selecting a particular person, as the case may be. If the said decision is
sought to be relied upon with respect to the adverse remarks made
against the appellant, the attack should fail for the reason that the memo
containing adverse remarks in this case does set out the particulars in
support of the same. It is equally relevant to note that no allegation of
mala fides or arbitrariness has been leveled against the Chief of the
Army Staff who made the said remarks." (emphasis supplied)
22. We also find force in the submission of the learned counsel for
the Respondent, that the present Petition is liable to be rejected on the
ground of delay and laches. The impugned selection pertains to
August 2008, and the present Petition was filed after more than 4
years in November 2012.
23. We may also refer to the decision of the Supreme Court in the case of
K.R. Mudgal v. R.P. Singh 18 (1986) 4 SCC 531, wherein the Supreme
Court while dealing with a challenge to a seniority list held as under:-
"2 ..... A government servant who is appointed to any post ordinarily should
at least after a period of 3 or 4 years of his appointment be allowed to
attend to the duties attaches to his post peacefully and without any sense of
insecurity....."
* *
7.......Satisfactory service conditions postulate that there should be no sense
of uncertainty amongst the government servants created by writ petitions
filed after several years as in this case. It is essential that anyone who feels
aggrieved by the seniority assigned to him should approach the court as
early as possible as otherwise in addition to the creation of a sense of
insecurity in the minds of the government servants there would also be
administrative complications and difficulties. ..... In these circumstances we
consider that the High Court was wrong in rejecting the preliminary
objection raised on behalf of the respondents to the writ petition on the
ground of laches."
Reference may also be made to the decision of the Supreme Court in the
case of Mohd. Siddiq Ali v. High Court of A.P (2005) 13 SCC 207, where
the Supreme Court upheld the rejection of a similar claim by the High court
on the ground of delay. Para 9 of the decision reads as under:-
9. In Civil Appeal No. 3006 of 2001, the writ petition was dismissed by the
High Court on the ground that though the notification had been issued on
23.10.1996, but the writ petition wherein reservation in favour of women
was challenged was filed in November, 1998 and, therefore, the writ
petition was highly belated. Learned Counsel for the appellant has
submitted that the writ petition should not have been dismissed on the
ground of laches. In support of his submission learned counsel has placed
reliance on Ramchandra Shankar Deodhar v. State of Maharashtra,
wherein it has been held that the Rule which says that a court may not
inquire into belated or stale claims is not a rule of law but a rule of practice
based on sound and proper exercise of discretion and there is no inviolable
rule that whenever there is delay, the Court must necessarily refuse to
entertain the petition. The question is one of discretion to be followed on the
facts of each case. On the strength of the aforesaid authority it is submitted
that the High Court has erred in dismissing the writ petition on the ground
of laches. We are unable to accept the contention raised. In the authority
cited, the dispute related to inter se seniority of Mamlatdars/Tehsildars in
the newly constituted State of Bombay by virtue of the provisions of the
States Reorganization Act, 1956. The inter se seniority of persons holding
the same rank has a great bearing at the stage of promotion to a higher post
and in such a situation it was held that in the facts and circumstances of the
case, the writ petition could not be dismissed on the ground of laches. In the
present case the persons selected had already joined as District Munsiffs
long back and the challenge has been raised to their selection after the
decision had been rendered by the A.P. High Court Mohd. Iqbal Ahmad v.
High Court of A.P on 31.8.1998. We, therefore, do not find any infirmity in
the order passed by the High Court.
The Petitioner, for reasons best known to him chose to wait for over 4 years
and has, belatedly, approached the court during which period, many other
employees may have earned further promotions and stolen a march over the
Petitioner. We also find that except for some intermittent periods, during
which the Petitioner's son was unwell, there is no justification at all given
by the Petitioner for this inordinate delay in challenging the selection
process. In view of the aforesaid settled legal position, the present petition
is liable to be dismissed on the ground of delay and laches, as well.
24. For all the aforesaid reasons, it cannot be said that there was any
infirmity in the decision of Selection Committee taken on 4th August, 2008.
25. We find no merit in the present Petition and the same is dismissed,
with no order as to costs.
REKHA PALLI, J
VIPIN SANGHI, J.
AUGUST 17, 2017
gm/saurabh
