Delhi High Court
Himanshi Anand vs University Of Delhi on 22 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.4060/2014
% 22nd February, 2017
HIMANSHI ANAND ..... Petitioner
Through: Mr. Vikas Mahajan, Advocate
with Mr. S.S.Rai, Advocate.
versus
UNIVERSITY OF DELHI ..... Respondent
Through: Mr.Santosh Kumar, Advocate
with Mr. Abhinav Sharma,
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 under Article 226 of the Constitution
of India, though the petitioner had sought two reliefs, today counsel for
the petitioner confines the relief prayed only to prayer (b) of the writ
petition and which is for direction to the respondent/University of
Delhi to reserve posts for Persons with Disabilities (PWD) for
recruitment for the posts of Junior Assistants to be done in terms of
advertisement dated 6.11.2013. Petitioner is an Orthopedically
Handicapped (OH) person and he pleads that since recruitment did not
take place by first reserving posts for PWD candidates, hence the entire
recruitment process has to fail.
2. Counsel for the respondent argues that this writ petition is
liable to be dismissed by applying the principle of estoppel against the
petitioner because petitioner participated in the subject selection
process under the subject advertisement dated 6.11.2013 in the general
category for the post of Junior Assistant with the respondent but
petitioner was not successful, and therefore, having participated in the
selection process as a general category candidate and failing to secure
appointment in that process, petitioner now cannot be allowed to turn
around and question the selection process on the ground that there was
no reservation of posts under the PWD category. The principle of
estoppel is argued against the petitioner more so because from 1996 till
the year 2013 when the subject advertisement was issued, it is pleaded
that a total of nine persons have been adjusted against the reserved
posts under the PWD category under the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995 (hereinafter referred to as „PWD Act‟) and hence there was no
requirement of reserving posts for PWD candidates and which posts
were already filled up as per the roster point system when the subject
advertisement was issued for general posts on 6.11.2013. The relevant
paras in his regard of the short counter affidavit of the respondent are
paras 3 to 6, and which paras read as under:-
"3. It is respectfully submitted that the petitioner applied as a general
category candidate, participated in the appointment process started by
advertisement dated 6.11.2013 and failed. Thus she accepted the terms
of the advertisement and voluntarily made the application as a general
category candidate. It is settled law that a candidate after participating in
the appointment process can not challenge the very same appointment
process and its terms.
4. Further the appointment process started by the advertisement dated
6.11.2013 is already complete and the selected candidates have joined.
The petitioner cannot seek quashing of the appointment process started
by the advertisement dated 6.11.2013 without impleading these people
whose rights will be affected and thus present petition is not
maintainable.
5. The present petition is also liable to be dismissed for delay and laches.
6. On the date of issuing the advertisement (6th November, 2013) for 259
Group-C vacancies on various posts, including 255 vacancies on the post
of JACT, there were as many as 20 persons with disabilities who were
appointed on various Group-C posts between 1.1.1996 and 6.11.2013.
These 20 PWDs were appointed on various Group-C vacancies out of a
total number of 174 vacancies which were filled during the above-
mentioned period. As the mandate of Section 33 of the PWD Act is to
provide 3% reservation for persons with disabilities, the number of PwDs
appointed between 1.1.1996 and 6.11.2013 far exceeded this 3%. Even if
the 259 vacancies on various Group-C posts advertised vide
advertisement dated 6.11.2013 were to be counted the total number
would come to 433 which would require the appointment of 13 persons
with disabilities against which 20 PWDs had already been appointed.
Thus as there was a surplus of Persons with Disabilities in Group-C, no
reservation for this category on 255 vacancies of JACT could be
provided. Therefore the writ petition has no merit and is liable to be
dismissed." (underlining added)
3. The respondent has also thereafter furnished further
details in terms of order dated 20.5.2015 passed by this Court, and
which arises on account of adjustment by the respondent of persons in
the PWD posts, and which persons were either given compassionate
appointments or were regularized from their appointments as ad hoc
appointments or daily/casual workers. It is seen that before the
recruitment under the subject advertisement nine appointments have
been made by the respondent with respect to reserved category posts
under the PWD category and the same are as under:-
Sr. Name of the Designation Date of Category Mode of
No. employee appointment appointment
1. Sh. Ramesh Chander Office 19.08.1998 OH Engaged on Daily
Attendant Wage bases then
regularized
2. Sh. Mahesh Kumar Office 16.05.2007 OH Engaged on Daily
Attendant Wage bases then
regularized
3. Sh. Dal Chand Farash 24.08.2005 OH Engaged on
compassionate
ground on daily
wage basis and
regularized
4. Sh. Jagmohan Office 16.05.2007 OH Engaged on
Attendant compassionate
ground on daily
wage basis and
regularized
5. Sh. N. Office 17.07.2008 OH Engaged on
Raghunandeshwar Attendant compassionate
ground on daily
wage basis and
regularized
6. Sh. Prabhakar Library 14.01.2010 OH Appointed through
Kumar Attendant advertisement
7. Sh. Chander Mohan Laboratory 16.12.2010 OH Appointed through
Attendant advertisement
8. Sh.V.P. Shukla Laboratory 21.12.2010 OH Appointed through
Attendant advertisement
9. Sh. Somanna Mali 01.03.2000 OH Engaged on daily
wage basis &
regularized
4. (i) It is not disputed on behalf of the petitioner that petitioner
had participated in the subject selection process, however, counsel for
the petitioner pleads that petitioner is not estopped from filing of the
writ petition. It is argued that respondent as per the requirement of 1%
(total of 3% reservation under the PWD category of which sub-
category of 1% is for OH persons and thus out of 26 appointments
required to be made to PWD category, four were thus to be in the OH
category) reservation of posts for the Orthopedically Handicapped
(OH) persons, had to appoint four persons in this OH category, but
admittedly only three persons have been appointed by the respondent
by the direct recruitment process from the OH category with the rest
six persons having been adjusted by compassionate/ad
hoc/regularization of daily wage workers against PWD posts although
they were not appointed by the direct recruitment method. This
procedure of not appointing of the fourth person by the direct
recruitment is argued to be violative of para 2(i) of the O.M. dated
29.12.2005 of the Government of India, Ministry of Personnel, Public
Grievances & Pensions, Department of Personnel & Training, and
which para reads as under:-
"2. QUANTUM OF RESERVATION
(i) Three percent of the vacancies in case of direct recruitment to
Group A, B, C and D posts shall be reserved for persons with disabilities
of which one per cent each shall be reserved for persons suffering from
(i) blindness or low vision, (ii) hearing impairment and (iii) locomotor
disability or cerebral palsy in the posts identified for each disability;"
(ii) Reliance is also placed upon paras 7 and 19 of this O.M., and
which paras read as under:-
"7. ADJUSTMENT OF CANDIDATES SELECTED ON
THEIR OWN MERIT: Persons with disabilities selected on their
own merit without relaxed standards alongwith other candidates, will not
be adjusted against the reserved share of vacancies. The reserved
vacancies will be filled up separately from amongst the eligible
candidates with disabilities which will thus comprise physically
handicapped candidates who are lower in merit than the last candidate in
merit list but otherwise found suitable for appointment, if necessary, be
relaxed standards. It will apply in case of direct recruitment as well as
promotion, wherever reservation for persons with disabilities is
admissible.
19. HORIZONTALITY OF RESERVATION FOR PERSONS
WITH DISABILITIES: Reservation for backward classes of
citizens (SCs, STs and OBC) is called vertical reservation and the
reservation for categories such as persons with disabilities and ex-
servicemen is called horizontal reservation. Horizontal reservation cuts
across vertical reservation (in what is called inter-locking reservation)
and persons selected against the quota for persons with disabilities have
to be placed in the appropriate category viz. SC/ST/OBC/General
candidates depending upon the category to which they belong in the
roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a
given year there are two vacancies reserved for the persons with
disabilities and out of two persons with disabilities appointed, one
belongs to a Scheduled Caste and the other to general category then the
disabled SC candidate shall be adjusted against the SC point in the
reservation roster and the general candidate against unreserved point in
the relevant reservation roster. In case none of the vacancies falls on
point reserved for the SCs, the disabled candidate belonging to SC shall
be adjusted in future against the next available vacancy reserved for
SCs."
5. I cannot agree with the arguments urged on behalf of the
petitioner because petitioner after participating in the selection process
as a general category candidate, and being unsuccessful in the same,
thereafter cannot turn around and seek quashing of the entire selection
process. There is a catena of judgments of the Supreme Court that if a
person has participated in the selection process, thereafter such a
person cannot question the selection process. One such judgment of
the Supreme Court is in the case of Manish Kumar Shahi Vs. State of
Bihar and Ors. (2010) 12 SCC 576.
6. I may note that the challenge to the recruitment process by
an unsuccessful candidate after participating may be on various
grounds and one such ground in the case of Manish Kumar Shahi
(supra) was challenging the viva-voce marks. Another challenge can
be to the recruitment process on the ground that there was no
reservation of PWD category posts, and which is the case of the
petitioner in the present writ petition.
7. Indubitably there were a total of 399 posts from the years
1996 to 2013 and when 1% vacancies are taken in the OH category
candidates, then admittedly as per both the parties, a total of four
persons had to be appointed in the OH category. Three persons have
been appointed by direct recruitment process and which is not a matter
of dispute. The dispute is only with regard to fourth vacancy which
has been filled in on account of the compassionate appointment or by
appointment from persons who were on ad hoc basis with the
respondent or were working in daily wages capacity.
8. In my opinion, in the facts of the present case, petitioner is
estopped because petitioner participated in the selection process. If the
petitioner before participating in the selection process which has
concluded would have objected to non-reservation of the fourth post by
direct recruitment, and therefore, pleading disentitlement of the
respondent to regularize a total of nine persons to the PWD category
including the four in the OH category, then, petitioner may possibly
have had a case, however, it is noted that the respondent has both in
letter and spirit complied with the 1% reservation in OH category
required in terms of the PWD Act and the only grievance of the
petitioner is that the fourth appointment in the OH category is not as
per the regular recruitment process, but, by wrongly adjusting the
fourth person who has come in not by direct recruitment but by
adjustment made of OH candidates and who were either already ad hoc
appointees or casual workers with the respondent or compassionate
appointments made by the respondent. Effectively therefore it is seen
that only the mode of recruitment is being challenged, and not the spirit
of the provision which requires 1% reservation and which was
admittedly complied with by the respondent. I therefore do not find
that the petitioner is entitled to question the selection process by now
seeking reservation of the fourth post also by direct recruitment, once
petitioner is unsuccessful in the recruitment process after participating
in the same.
9. Learned counsel for the petitioner relies upon a judgment
of this Court in the case of Ranveer Singh Rajpoot Vs. Govt of NCT of
Delhi & Ors. (2009) 165 DLT 558 to argue that petitioner is not
estopped, however, it is seen that the judgment which is relied upon
does not lay down any ratio and in fact the judgment is an order of this
Court without discussing the ratio as regards the law of estoppel. In
any case, the facts of the case in the case of Ranveer Singh Rajpoot
(supra) were different because there were no facts in the said case of
persons not having already appointed and posts already filled up in the
OH category, whereas in the present case all the posts in the OH
category stand duly filled up with only the fourth post being argued as
not being filled up as per the appropriate recruitment process. Since in
the case of Ranveer Singh Rajpoot (supra) the vacancies existed
without actually the same having been filled up as per the required
reservation category posts under the PWD Act, hence in the case of
Ranveer Singh Rajpoot (supra) directions were given for appointment
of the persons to the reserved category PWD posts whereas in the
present case the OH category posts are already filled up. Therefore,
the petitioner cannot take any benefit of the judgment in the case of
Ranveer Singh Rajpoot (supra).
10. In view of the above, the petitioner is estopped from filing
of the writ petition and the same is therefore dismissed, leaving the
parties to bear their own costs.
FEBRUARY 22, 2017 VALMIKI J. MEHTA, J
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