Sanjay Kumar vs University Of Delhi & Ors.
2024 Latest Caselaw 4922 Del

Delhi High Court

Sanjay Kumar vs University Of Delhi & Ors. on 30 July, 2024

Author: Suresh Kumar Kait

Bench: Suresh Kumar Kait

                          $~57
                          *          IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                                  Date of Decision: 30.07.2024
                          +          LPA 663/2024
                                     SANJAY KUMAR                                           .....Appellant
                                                         Through:      Mr. Vikalp Mudgal, Mr. Vignesh Raj
                                                                       T and Mr. K.V. Sriwas Naryanan,
                                                                       Advocates

                                                         versus

                                     UNIVERSITY OF DELHI & ORS.               .....Respondents
                                                   Through: Mr. Vijay Pratap, Mr. Saurabh Kumar
                                                            and Mr. S.D. Tiwari, Advocate
                                     CORAM:
                                     HON'BLE MR. JUSTICE SURESH KUMAR KAIT
                                     HON'BLE MR. JUSTICE GIRISH KATHPALIA

                                                       J U D G M E N T (ORAL)

CM APPL.41475/2024 (exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

LPA 663/2024, CM APPL.41473/2024, CM APPL.41474/2024 & CM

3. The present appeal has been filed under Clause 10 of the Letters Patent of Lahore High Court (as applicable to this court) with the following prayers:

"

a) set aside and quash the impugned order/judgment dated 13.05.2024 passed by the Hon'ble Single Judge in W.P (C) No. 6435/2013 titled "Sanjay Kumar versus University of Delhi & Ors."; AND

b) quash and set aside the order/letter dated 17.01.2013 bearing No. BNC/ADMN/13/3836 issued by the Respondent No.2 and consequently

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set aside the entire direct recruitment process which ensued thereafter; AND

c) direct Respondents No.1 and 2 to consider the Appellant for promotion to the post of Assistant at the Respondent No.2-college in terms of the University of Delhi Rules and Regulations (Non Teaching Employees), 2008; AND d) call for entire records of W.P (C) No. 6435/2013 titled "Sanjay Kumar versus University of Delhi & Ors.".

4. Learned counsel appearing for appellant submits that he is confined to grounds (C), (E), (G) and (O) of his appeal, which are being reproduced as under:

"C. BECAUSE the impugned order did not consider that Limited Department Examination is defined under Rule 2(e) as a "competitive test limited to certain category or categories of holders of posts in the Schedule conducted by the University for Promotion to a higher post" and hence is a part of promotion.

E. BECAUSE the impugned order did not consider that from the Schedule of the Recruitment Rules it is amply clear that the process of recruitment by way of promotion is to mandatorily be exhausted first and only thereafter the method of promotion is to be taken recourse to. G. BECAUSE the impugned order did not consider that he Appellant had completed 3 years of regular service on the post of Junior Assistant as on 17.01.2013 when the process of direct recruitment was initiated and completed 5 years as on 28.09.2013 when Respondent No.3 was appointed through the same process.

O. BECAUSE as per EC resolution no. EC (7) dated 02.03.1994 of Respondent No.1-University it was specifically observed that any advertisement is infructuous on the expiry of 18 months. However, in the present case, Respondent No. 2 conducted the alleged examination after the lapse of 22 months and the impugned appointment is made after about 26 months. True copy of the EC resolution no. EC (7) dated 02.03.1994 of the Respondent No.1 University is annexed hereto as ANNEXURE A-26."

5. The appellant was initially appointed to the post of Office Attendant by the respondent no.2 on the recommendations of the Selection Committee on 27.06.1996 in the pay scale of Rs. 750-12-870. By the letter dated 20.11.1997, the appellant was confirmed by the respondent No.2 w.e.f. the

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date of his initial appointment. On 27.04.2004, the appellant was promoted to the post of Daftari on the basis of skill test conducted by respondent no.2. Subsequently on 19.09.2008, the appellant was promoted to the post of Junior Assistant on the basis of written as well as typing test conducted by respondent no.2.

6. The case of the appellant is that on 23.04.2011, the respondent no.2 had issued an advertisement inviting applications for the post of Assistant (Non-Teaching) Staff vide advertisement dated 23.04.2011. On 01.06.2011, the appellant claims to have been called for the written examination for the post of Assistant pursuant to the aforesaid advertisement. The examination is stated to have been conducted on 27.06.2011. The Governing Body was constituted on 21.01.2012 to conduct the interview of the incumbents for the post of Assistants. However, due to numerous complaints, the same was postponed.

7. On 17.01.2013, the respondent no.2 issued a fresh advertisement, which is impugned before the learned Single Judge for filling up of single post of Assistant by way of an examination scheduled to be held on 09.02.2013. The appellant claims to have not participated in the said examination. The said notification for filling up the post was kept open for Direct Recruitment and not for promotion.

8. The grievance of the appellant arises from the fact that the impugned notification restricted the participation for the promotional post of Assistant to that of Direct Recruitment, which is contrary to the Rules and Regulations of the year 2008 (hereinafter referred as "RRs") in respect of the non- teaching employees.

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9. Learned counsel appearing for the appellant has invited the attention of this Court to the RRs, particularly Rule 6(ii) and (ix)(b) to submit that so far as the departmental candidates are concerned, the RRs would not preclude the Upper Age Limit as per Rule 6(ii). Learned counsel for the appellant has relied upon the sub-Rule (ix) of Rule 6, particularly Clause (b), which stipulates that when the number of sanctioned posts in the cadre of Assistant and Senior Assistant is less than „4‟, there will be no Direct Recruitment and the posts shall be filled by promotion. If there is no qualified person with minimum number of years of service available in the feeder cadre, the post shall be filled by Direct Recruitment.

10. The case of the appellant is that on 17.01.2013 he was qualified to participate in the said examination on the basis that he was a departmental candidate and under the category of „Limited Departmental Examination‟ (hereinafter referred as "LDE"), he was fully eligible to participate in the said examination since it required only three years regular service in the cadre. Since the impugned advertisement was restricted only to the Direct Recruitment, the appellant was deprived from participating in the said examination by way of LDE.

11. Learned counsel also laid emphasis on the definition of LDE, which according to him, categorically indicates that the recruitment by way of LDE is stated to be the part of the „Promotion Quota‟ and not „Direct Recruitment‟. On that basis, learned counsel submits that the appellant‟s deprivation is violation of his rights.

12. The question before the learned Single Judge was for interpretation of clause (b) of sub-Rule (ix) of Rule 6 of the NTE Rules, 2008. It is not in

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dispute that the Clause (b) of the aforesaid Rules stipulates that wherever the number of sanctioned post in the cadre of Assistant or Senior Assistant, is less than „4‟, the recruitment would be only by promotion and the method of direct recruitment is prohibited. However, the said stipulation had a default clause that in case where there is no employee found eligible or qualified with the minimum number of years available for the feeder grade, the post would in default then be filled by Direct Recruitment.

13. So far as the advertisement of the year 2011 is concerned, the appellant does not dispute that he neither had 5 years of regular service for the purpose of promotion nor did he have the 3 years regular service in the said cadre for the purpose of LDE.

14. The learned Single Judge observed that since the original recruitment process was scrapped by the Delhi University and by the letter dated 21.11.2012, the Delhi University directed respondent no.2 to proceed with the recruitment procedure as laid down in the Recruitment Rules, 2008 for the post of Assistant, the impugned advertisement dated 17.01.2023 was issued in pursuance and in compliance of the aforesaid letter of the University.

15. The learned Single Judge further observed that to consider the Schedule attached with the Recruitment Rules by way of which various stipulations have been indicated. The Schedule for the Recruitment Rules in respect of the post of Assistant is at page 86 of the case file. If one were to examine the method of recruitment at Serial No.9, it has been stipulated as 50% by promotion, failing which by Direct Recruitment, 25% by LDE, failing which by Direct Recruitment and 25% by Direct Recruitment. On a

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closer scrutiny of the said Schedule, it would apply strictly where there are atleast 4 posts, where this distribution would be 50% by promotion, failing which by Direct Recruitment and 25% by LDE, failing which by 25% Direct Recruitment.

16. In the present case, since there was only one post, as per the Clause

(b) of sub-Rule (ix) of Rule 6 of said Recruitment Rules, 2008, the post ought to have been filled by promotion.

17. The learned Single Judge also noted that Serial No.10, which stipulates that in case of recruitment by promotion, the grades for which promotions/deputations have been stipulated are in two categories; the first being by promotion from amongst the Junior Assistant working in the pay scale of Rs.3050-4590 with minimum period of 5 years regular service in the cadre and the second being by LDE amongst the Junior Assistants, Care Takers working in the pay scale of Rs.3050-4590 with minimum period of 3 years regular service in the cadre.

18. It is also not in dispute that since only one post was available, the respondents had to apply the same against Promotional Quota first. Having regard thereto, the respondents have averred that as on the date of the advertisement, there was no Junior Assistant employed in the respondent no.2, who was found eligible with a minimum period of 5 years of regular service in the cadre. The appellant too does not dispute this situation, since his 5 years‟ regular service was completed only in September 2013, by which date, the recruitment by way of Direct Recruitment had already concluded.

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19. In view of the above discussion, we find no perversity and infirmity in the order passed by the learned Single Judge and find no merit in the present appeal. Appeal as well as all the pending applications are accordingly dismissed.

(SURESH KUMAR KAIT) JUDGE

(GIRISH KATHPALIA) JUDGE

JULY 30, 2024/as

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