Surender Pal v. High Court of Delhi & Ors.

1. The petitioner seeks a direction for quashing the merit list and the appointments to the post of Private Secretary, made in 2006.

2. The brief facts are that the petitioner competed for the post of Private Secretary pursuant to an advertisement issued on 24.02.2006. The advertisement, inter alia, stated as follows: 2014:DHC:5883-DB “Mode of Selection Selection shall be made on the basis of written examination comprising one paper in English language (Essay, Grammar and Translation) to be held on Sunday, 30th April 2006. Successful candidates in English language paper shall be called for a Shorthand dictation to be transcribed on computer. The shortlisted candidates would also undergo a viva-voce test.”

3. Relying upon the reply to the application under the Right to Information Act (RTI) queries, the petitioner submits that the recruitment process undertaken to finalise the select list was flawed and opaque. It is pointed out that a textual reading of rule regarding the mode of appointment clearly shows that selection is on merit on the basis of written examination comprising of one paper in English language. It is submitted that the Shorthand dictation test is only a qualifying process, and that there is no indication regarding the weightage to be provided to the interview. Thus, the Committee could not have assigned marks, and picked up people who were lower down in the list prepared on the basis of the marks obtained in the written examination.

4. Learned counsel argues that the petitioner was placed at Serial. No.4 in the list on the basis of written test, and had scored 128 marks as against Mr. Gagan Nagpal, who scored 157 marks and was the topper. The petitioner had committed ten mistakes in the Shorthand test, and Mr. Nagpal had committed four mistakes. Pointing out that one Mr. Satya Sheel Bhatnagar was placed at Serial No.45 on the list with 104 marks in the written test and 14 mistakes in the Shorthand test, he was ultimately placed at Serial No.7 by the Selection Committee. It was urged that the minutes of the meeting which finalized the select list nowhere indicated how the petitioner was ranked lower at Serial No.20, whereas Mr. Bhatnagar was placed at Serial No.7.

5. Learned counsel relied upon the decision of the Supreme Court reported as Tukaram Kana Joshi & Others Vs. Maharashtra Industrial Development Corporation & Others, (2013) 1 SCC 353, to say that delay cannot defeat a right and as long as there is a cause for injustice, such injustice would override any other consideration. Learned counsel highlighted that the consideration of justice would be paramount and delay cannot defeat the petitioner’s right to the relief sought.

6. The respondent is present on advance notice. It relies upon Rule 9 of the records managements of Swamy’s Complete Manual on Establishment & Administration. Learned counsel highlighted that the concerned records pertaining to the final selection process, i.e. applications and answer sheets and other related papers in respect of various competitive examinations, including the examination for Private Secretary held in 2005-06 have been weeded out/ destroyed. Copy of the relevant note sheet, approved by the Chief Justice sometime in 2008 permitting destruction of the records, has been produced.

7. This Court has carefully considered the submissions. As to the interpretation of the mode of selection, it is clear that the petitioner is not correct in contending that the merit list is to be drawn entirely and only on the basis of written examination. Whilst results in the written test would be an important component, equally the result of Shorthand dictation and vivavoce test was also taken into consideration. The entire mode of selection has to be read as comprising a single and complete process and cannot be read in a disjointed manner. Reply to the RTI queries provided to the petitioner, no doubt, indicates that he was at Serial No.4 of the list prepared on the basis of the marks obtained in the written test. The sixth column – which reflects the mistakes committed by the candidate in the Shorthand test, apparently was not taken into consideration while compiling that list. However, these materials were taken into consideration by the Selection Committee, which interviewed, or conducted the viva-voce of all the said candidates. The Selection Committee comprised of three Judges of this Court. The absence of any material – by reason of weeding of the records – cannot, in the opinion of this Court, lead to any presumption that the Selection Committee did not weigh the relative merit of the candidates and give weightage to the marks obtained by them in the interview. Nor can there be any assumption, as suggested, that the maximum marks being unknown, some candidates were favoured, or preferred over the others.

8. The petitioner’s argument that delay and laches should not influence the Court in its decision, may be correct in an abstract sense but, in the circumstances of the case, certainly his decision – and a conscious one, not to approach the Court for over eight long years, has led to a situation where the records are not available. In the absence of the relevant material as to the maximum marks assigned for viva-voce test and interview, and the relative marks obtained by each candidate, or for that matter, maximum marks assigned for the written test, no conclusions can be drawn as to the unfairness, or arbitrariness of the selection process. In other words, whilst the contention with respect to the delay not being the over arching principle applicable to the Court exercising discretion under Article 226 of the Constitution of India is correct, in the circumstances of the present case, the petitioner’s inaction in seeking his remedies, in effect, defeats the Court’s ability to make any effective enquiry.

9. In these circumstances, this Court declines to entertain the present petition, which is, accordingly, dismissed.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J. NOVEMBER 11, 2014 B.S. Rohella