Surjit Rai @ Surjit Gaur vs National Bal Bhawan and Others

Valmiki J Mehta, J.—This writ petition is filed by the petitioner Sh. Surjit Rai seeking two reliefs. The first relief is for quashing of the appointment of respondent no. 4 as Supervisor in the respondent no. 1/employer/National Bal Bhawan. The second relief claimed is that the post of Supervisor which has been filled in by the respondent no. 4 as a direct recruitment post, is illegal because the post in question cannot be filled by direct recruitment as it had to be by means of promotion from the existing employees of the respondent no. 1. In my opinion, the second relief seeking to quash the appointment of respondent no. 4 can only be available if relief is granted to petitioner of whether the post could not be filled in by direct recruitment but only by promotion as canvassed on behalf of the petitioner. Of course, independently, the issue of entitlement of the petitioner to the post of Supervisor as an aspirant in the direct recruitment process will also be subsequently examined.

The admitted fact is that petitioner applied for being appointed as a Supervisor of the respondent no. 1 under the direct recruitment process initiated by the advertisement dated 24.6.1996. As on this date, petitioner was not a regular employee of the respondent no. 1. Petitioner was only a part time instructor appointed purely on temporary basis and whose services could be terminated at any time without notice. This is clear from the appointment order no. 47 dated 24/25-2-1989 pertaining to appointment of six part time instructors including the petitioner. Once petitioner is not a regular employee of the respondent no. 1, surely there does not arise the issue of the petitioner claiming an entitlement through promotion for being appointed to the post of Supervisor inasmuch as promotion to higher posts is only available to regular employees. Also, in my opinion, petitioner is estopped from claiming appointment by promotion to the post of Supervisor because admittedly petitioner participated in the direct recruitment process for the post of Supervisor, but he was found unsuccessful in the selection process. Therefore, I reject the claim of the petitioner that the post in question had to be filled in by promoting the petitioner to the post as the post can only be filled in by promotion. Admittedly, no recruitment rules of the respondent no. 1 existed as on the date of advertisement, however, in service jurisprudence entitlement to promotion can only be of a regular employee and not of a temporary employee/part time employee such as the petitioner.

Let us now examine the argument seeking quashing of respondent No. 4''s appointment. The claim of the petitioner for quashing of the appointment of the respondent no. 4 has two facets. The first facet is the challenge to the appointment on the ground that respondent no. 4 did not meet the qualifications. On this aspect, I may note that the present writ petition is not a public interest litigation whereby appointment of respondent no. 4 is sought to be quashed. The appointment of respondent no. 4 is sought to be quashed because the petitioner claims appointment to the said post which is filled in by the respondent no. 4. If the petitioner is not found capable of being appointed to the post, this petition need not be decided as a PIL with respect to fulfilling of qualifications by the respondent no. 4 for being appointed as a Supervisor. Also, the argument on behalf of the petitioner that petitioner is entitled to quo warranto writ in this petition itself, this argument is a misconceived argument because exercise of writ jurisdiction under Article 226 of the Constitution of India is discretionary and more so in the facts of the present case, where the present petition is not a PIL but the same seeks to enforce personal rights of the petitioner, and which personal rights the petitioner does not have. Further the writ of quo warranto being a discretionary relief under Article 226 of the Constitution of India I am not inclined to exercise the same after a lapse of time of as many as 16 years.

The petitioner participated in the selection process for being appointed as Supervisor pursuant to the direct recruitment process initiated through the advertisement dated 24.6.1996. After the respondent no. 4 was declared a selected candidate one other person namely Ms. Yogendra Budhiraja was kept in waiting list as the only wait listed candidate. If the appointment of respondent no. 4 is illegal, the only right which would then arise is of the said Ms. Yogendra Budhiraja who was the only person put in the waiting list. Admittedly, there is no waiting list as per which other persons who could be appointed in case the respondent no. 4 was not appointed. In fact, petitioner has also not placed on record the entire merit list and nor has he claimed in the writ petition that in the merit list he was at serial number immediately after Ms. Yogendra Budhiraja. Therefore, even assuming for the sake of argument that respondent no. 4''s appointment is quashed, petitioner cannot have entitlement because it is only Ms. Yogendra Budhiraja who would have got appointment. Merely because Ms. Yogendra Budhiraja is said to have subsequently left the services of the respondent no. 1 cannot mean that at the relevant point of time if she was offered the post of Supervisor by the respondent no. 1 she would not have opted to be appointed to the post because after all she had participated in the selection process and was put as a wait listed candidate in the waiting list. In my opinion, as stated above, unless the petitioner averred that he at least was immediately next in the merit list after Ms. Yogendra Budhiraja, even if, the appointment of respondent no. 4 is sought to be set aside, the writ petition cannot succeed because petitioner cannot automatically claim appointment.

I may also state that lot of water has flown under the bridge since 1996-1997. Respondent no. 4 would have obviously worked all this while in the said post. Accordingly for the minor infractions in the selection procedure adopted by the respondent no. 1, more so considering the fact that there were at the relevant time no recruitment rules, I do not find in the facts of the present case Court should exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. There is no illegality that direct recruitment process could not be taken up through advertisements inasmuch as the counter-affidavit of respondent no. 1 and 3 shows that advertisements were issued after employment exchange repeatedly failed to respond. Also the contention that direct recruitment is faulty because Director was not a member of the Selection Committee as required by the rules, is a misconceived contention as Annexure R-8 with the counter-affidavit shows that the Director was a member of the Selection Committee. At best there is discrepancy only of the aspect of same experience qua respondent no. 4, and which aspect in itself does not persuade me to quash the appointment of respondent no. 4. In view of the above, the writ petition being without merit is dismissed, leaving the parties to bear their own costs.