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Judgment
A.K. Sikri, J.—The Petitioners who are three in number and Respondents 3 to 7 are all working in the Office of Director, Central Hindi Directorate (respondent No. 2). They were all appointed as Lower Divisional Clerk (LDC) in the Office of the Respondent No. 2 and the date of appointments are as under:
Sangeeta James
Petitioner No. 1
23.1.1989
Rita Dev
Petitioner No. 2
15.12.1987
Pankaj Rana
Petitioner No. 3
14.12.1987
Asha Rani Kalra
Respondent No. 3.
15.6.1972
Shanti Bala
Respondent No. 4
23.12.1976
Dharamvir Singh
Respondent No. 5
7.12.1976
Rooma Shara
Respondent No. 7
14.5.1985
Sita Chopra (dead)
-
15.12.1992
The method of appointment, recruitment and qualification in the Central Hindi Directorate is governed by the Central Hindi Directorate Rules (hereinafter referred to as ''the Rules''), which have been notified vide GSR No. 696 dated 4th June, 1977. As per the Rules, the posts of Upper Divisional Clerk (UDC) is required to be filled up 75% by promotion from amongst LDC working in the Central Hindi Directorate (CHD)/Commission for Scientific & Technical Terminology (CSTT) having eight years experience in the grade and the remaining 25% posts of UDC are to be filled up by promotion on the basis of competitive examination from amongst LDC working in CHD/CSTT and having at least five years service in the grade. The first vacancy under 25% quota became available in 1982, which was reserved for Scheduled Tribe (ST). The next vacancy became available in 1989 and efforts were made in 1990 to hold the Test, but it could not be held on account of administrative reasons. That the vacancies falling under 25% quota could not be filled up on regular basis, but were filled on ad hoc basis.
The Petitioners have learnt that the vacancies under 25% quotas fell vacant in the following years:
1984
Reserved Category
1987
General Category
1990
General Category
1993
General Category
1994
General Category
1995
General Category
1996
Anticipated General Category
In 1995, the CHD issued a Circular stating that the proposed Test of LDC for filling up the post of UDCs in CHD would be held on 8th and 9th July, 1995. There were 20 candidates, who had applied for the Written Test. The said Test was postponed due to administrative reasons and the same was directed to be held on 29th and 30th July, 1995. It was again postponed. The Respondent No. 2 issued a Circular on 26th December, 1995 stating that Departmental Test of LDC for filling up the posts of UDC in Central Hindi Directorate/Commission for Scientific and Technical Terminology would be held on 6th and 7th January, 1996. The said Test was to be held in 4 subjects, i.e., English, Noting & Drafting, Office Procedure and General Knowledge and Hindi. All 20 candidates appeared in the Departmental Competitive Examination. The Petitioners, Respondent Nos. 3, 4, 7 and one Smt. Sangeeta Chopra also appeared in the examination. On 23.1.1996, the Petitioners were declared unsuccessful in the Departmental Competitive Examinations and were placed at serial No. 2 to 4 in the Merit List. It may be stated at this stage that the Respondent No. 3 and 4 failed to clear the Written Test whereas the Respondent No. 5 did not appear in the said examination. Thereafter, necessary promotion orders(s) were issued by the Respondent No. 2 in the month of March, 1996 and the Petitioners and the other two selected candidates started discharging their duties as UDC in the office of Respondent No. 2.
In April, 1996, the Respondent Nos. 3 to 5 filed an application challenging the promotion of the Petitioners and other selected candidates to the post of UDC. The Central Administrative Tribunal (hereinafter referred to as ''the Tribunal'') vide its judgment dated 23rd January, 2000 allowed the O.A. and quashed the promotion order of the Petitioners and other selected candidates. The Tribunal directed the official Respondents to hold a review departmental promotion committee for the purpose of conducting fresh limited departmental competitive examination in the light of the observations made in the judgment. The Tribunal was of the view that the clubbing of posts was illegal and void.
Against the judgment passed by the Tribunal, the Petitioners had filled a writ petition in this Court. The said petition came to be numbered as W.P. (C) No. 945/2000.
This Court vide orders dated 6th November, 2011 allowed the petition of the Petitioners herein holding that the O.M. dated 24th December, 1980 was inapplicable to in the present case inasmuch as the said O.M. applied to selection posts whereas the posts in question were non-selection posts. However, this Court did not consider the applicability of O.M. dated 10th April, 1989 since the same was not placed before the Tribunal. This Court while setting aside the judgment dated 21st January, 2000 remanded the matter back to the Tribunal to consider the applicability of the O.M. dated 10th April, 1989. This Court directed that it shall be open to private Respondents to amend their counter and to take up the new plea. This Court further directed that the Petitioners'' present position and status shall remain undisturbed and interim order passed by this Court shall remain intact till the disposal of the O.A.
Vide impugned judgment, the Tribunal has held that the O.M. dated 10th April, 1989 was substantially the same like O.M. dated 24th December, 1980. The Tribunal has also held that the said O.M. dated 10th April, 1989 applied to non-selection posts as well. The Tribunal, accordingly, held that the selection by the DPC was in contravention of instructions contained in O.M. dated 10th April, 1989. The Tribunal directed the department to hold review DPC for the purpose of conducting Limited Departmental Competitive Examination for each year when the vacancy had arisen separately.
Challenging the aforesaid order, the present writ petition is filed under Article 226 of the Constitution of India seeking judicial review of the orders passed by the Tribunal. In this petition, the Petitioners have also stated subsequent developments, which have taken place, viz., Respondent No. 3, Asha Rani Kalra was promoted as UDC under 75% quota as far back as in 1998. She is also given two financial upgradations under the scheme of Assured Carrier Progression (ACP). Respondent No. 4 is also given two financial upgradations, one after the completion of 12 years and another after 24 years of service under the same ACP.
It is clear from the aforesaid narration of facts that the dispute relates to promotion from the post of LDC to UDC in respect of 25% quota has to be filled up on the basis of LDCE. As selection in this behalf was made by the DPC on 6th and 7the January, 1996, which pertained to vacancies that had arisen during the period 1992 to 1996. The grievance of the applicants in O.A., Respondent Nos. 3 to 7 herein was that one singular examination by bunching of the vacancies for the period 1982 to 1986m was contrary to O.M. dated 10th April, 1989. It was the grievance of the Respondent Nos. 3 to 7 in the said O.A. that by the aforesaid procedure of conducting one examination relating to these vacancies, their interest had been adversely affected for promotion to UDC at each of the stage. Para 3.1 and 6.4.1 of the said O.M. are relevant for our purposes, which are extracted below:
3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilized on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, Integrity Certificates, Seniority List etc. for placing before the DPC. DPCs could be convened every year if necessary on a fixed date, e.g. 1st April or May. The Ministries/Departments should lay down a time-schedule for holding DPCs under their control and after laying DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that Recruitment Rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the Recruitment Rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since amendments to Recruitment Rules normally have only prospective application, the existing vacancies should be filled as per the Recruitment Rules in force.
6.4.1 where for reasons beyond control, the DPC could not be held in a year(s) even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures:
(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a ''Secret List'' by placing the select list of the earlier year above the one for the next year and so on.�
On the reading of these paras, the Tribunal has come to the conclusion that these instructions relate to promotion of selection as well as non-selection posts, which clearly mandate that actual number of regular vacancies in each of the previous year(s) shall be determined and officers who come within the field of choice with reference to the vacancies of each year shall only be considered. The Tribunal also took support from the judgment of the Apex Court in the case of Union of India and others Vs. N.R. Banerjee and others, , where Court, after considering similar instructions as contained in O.M. dated 10th April, 1989 has held as under:
If the annual panel cannot be prepared for any justifiable reason, year-wise panel of all the eligible candidates within the zone of consideration for filling up of the vacancies each year should be prepared and appointments made in accordance therewith.
In the writ petition filed by the Petitioners, contention raised is that the O.M. dated 10th April, 1989 would not apply to the promotional posts under LDCE and it applies only to those posts where the promotion is based on length of service and not where the candidates are promoted on the basis of Written Test.
Another submission of the Petitioners is that the Respondent Nos. 3 to 7 have appeared in the Departmental Examination and taken a calculated risk for promoting to UDC, cannot now turn around and challenge the selection process as held by the Supreme Court in the case of Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others, , Madan Lal and Others Vs. State of Jammu and Kashmir and Others, and Om Prakash Shukla v. Akhikesh Sukla 1986 SCC (supp.) 285.
We are of this opinion that the present petition warrants to be allowed accepting the alternate submission of the Petitioners. It is not in dispute that except the Respondent No. 5, other private Respondents had appeared in the competitive test without any reservations or questioning the course of action taken by the official Respondents in clubbing the vacancies. In the identical circumstances, in the case of Chandra Prakash Tiwari (supra), the Supreme Court held that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise. That was also a case where the major grievance raised, after examination, was that the Selection Committee failed to prepare the list of each year, keeping in view the number of vacancies in that year for promotion of Police Officer from Sub-Inspect to Inspector. In the case of Om Prakash Shukla (supra) and Madan Lal (supra) were dealt with in the following manner:
Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of J&K and Ors., wherein this Court as below:
Before dealing with this contention, we must keep in view the salient fact that the Petitioners as well as the contesting successful candidates being Respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the Petitioners as well as the contesting Respondents concerned. Thus the Petitioners took a chance to get them selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of the combined performance both at written test and oral interview, they have filed this petition. it is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the Petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a Petitioner.
Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds him to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had not been assessed at the oral interview nor can the Petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.
There is thus no doubt that while question of any estoppels by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not ''palatable'' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.
In that view of the matter, while we are not in a position to record our concurrence with the applicability of the doctrine of estoppels by conduct but by reason of the decisions as cited from the Bar, we do feel it required to lend our concurrence to the submissions of Dr. Dhawan, on that score as noticed above.
The issue of Selection and clubbing was also answered, which is as follows:
It cannot thus be treated to be void but any irregularity which is of curable nature and can be cured. Dr. Dhawan made some comments as regards the situation in Uttar Pradesh in support of not having annual selections and thus clubbing. We are not, however, inclined to dilate thereon neither any credence can be put thereto by reason of our views expressed above. Clubbing in a later year may not be treated as fatal but as noticed earlier, curable, more so having regard to the fact that initiation of a selection process throughout the State would further take a considerable period of time and the Court''s attitude presently being pragmatic and justice oriented should do away with technicalities as technicalities ought not to out-weigh the course of justice.
For the aforesaid reason alone, we allow this writ petition making the rule absolute and set aside the judgment of the Tribunal. As a consequence, O.A. filed by the Respondent Nos. 3 to 5 before the Tribunal is dismissed. However, there shall be no orders as to costs.