K.K. Miglani v. Govt. of NCT of Delhi

16. Lastly, Mr. Rohatgi, ld. Counsel argues that the term of the empanelment at the time when the Petitioner had first applied i.e., for 2022- 2025, has itself come to an end and hence, the writ petition is infructuous. Analysis and Findings

17. This Court has heard ld. Counsel for the parties and considered the matter.

18. Section 71 of the DCS Act contemplates reference of disputes to arbitration by the RCS. Sub-section (2) of Section 71 states that the manner, method and appointment of arbitrators etc., would be as prescribed under the DCS Rules. The relevant portion of Section 71 of the DCS Act reads as under: “Reference of disputes to arbitration.

71. (1) The Registrar may, on receipt of the reference of dispute under section 70 – (a) decide the dispute himself, or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf, or (c ) refer it for disposal to an arbitrator. (2) The method, manner of selection, appointment of arbitrators, their qualifications, terms and conditions of appointment and fees payable to them shall be as prescribed under the rules.

19. Section 137 of the DCS Act which permits framing of rules by the government, specifically empowers the government to make rules for selection and appointment of arbitrators. The said provision reads as under:-

20. Section 137(2) of the DCS Act also requires every Rule made by the government under the DCS Act to be laid before the Legislative Assembly, GNCTD. The said rule reads under: “(2) Every rule made under this Act shall be laid as soon as may be after it is made, before the Legislative Assembly of the National Capital Territory of Delhi while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, the Legislative Assembly agrees in making any modification to the rule or the Legislative Assembly agrees that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”

21. Rule 87 of the DCS Rules, which prescribes the persons who may be considered for appointment as an arbitrator also reads as under:

22. A perusal of the above provisions would show that whenever, there are disputes which are brought before the RCS, the same may be referred to an arbitrator for adjudication. In this regard, the RCS has the option to consider appointment of arbitrators from different categories of persons as mentioned under Rule 87 of the DCS Rules. It is noted that in Rule 87, no outer age limit has been prescribed for empanelment as an arbitrator.

23. The subject advertisements which were issued by the RCS for empanelling of arbitrators have to be considered in light of the statutory position as mentioned above. The advertisement dated 11th March, 2022 which was initially issued for empanelling the arbitrators reads as under: “OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OLD COURT BUILDING, PARLIAMENT STREET, GOVERNMENT OF NCT OF DELHI, NEW DELHI -110001 Website https://rcs.delhigovt.nic.in Emai[1]: ararbitrationrcs@gmail.com

24. The above advertisement did not contemplate any maximum age limit.

25. After the said advertisement was issued, depending upon the various applications which were received, it appears that the Selection Committee took a decision to prescribe a cut-off age limit of 70 years. The Selection Committee which had met on 06th July, 2022, approved certain resolutions that are as under: “The Committee was further apprised that an advertisement in this regard was published in leading English and Hindi Newspapers inviting applications from the interested and eligible persons. A total of 332 application were received. The Selection Committee has unanimously approved the following points: -

1. To consider candidates only from categories given below:- A- Gazetted Officers including retired of any department under the Government. B- Officers/Co-operators, serving or retired of Cooperative Societies having Experience of 10 years and having graduate degree preferably a diploma in Cooperative. C- Officers of Local Bodies and PSUs of the Government.

2. To consider candidates upto 70 years of age.

3. To obtain undertaking from all the selected candidates regarding any FIR & Criminal proceedings pending against them.

4. Those Arbitrators whose performance is poor in past will not be selected.

5. To ensure fair play, it is decided that such officers who are at present working within RCS will not be assigned any arbitration cases till the time they are posted in the RCS office. In case any officer who is empanelled as Arbitrator and is subsequently posted to the RCS office, the assignment of arbitration cases will be withdrawn from him on joining the RCS office and the case allotted to somebody else.”

26. As can be seen from the above Minutes of Meeting, the Selection Committee appears to be concerned by the fact that a total of 332 applications were received and in order to prepare some kind of shortlist, further decisions were taken unanimously including the prescribing of age limit of 70 years, bad performance previously, criminal proceedings against candidates etc.,.

27. Some of these conditions may be quite reasonable for disqualification such as that the candidate ought not to have any criminal proceedings against him or poor performance in the past, etc. However, the issue that the Court is presently dealing with is about fixing the cut-off age of 70 years. While there can be no doubt that the Selection Committee has considerable discretion in selecting arbitrators for empanelment, the legality of such post-application criteria, could render the process of selection writ with allegations of bias, favouritism etc.,

28. Ld. Counsel for the RCS has argued that Rule 87 of the DCS Rules itself does not limit the kind of persons that may be chosen for appointment as an arbitrator. A bare reading of the said Rule would support this position. However, whenever any advertisement for appointment is issued, such an advertisement should clearly spell out any further conditions that the Selection Committee wishes to impose including disqualification due to age, due to criminal cases, relationship with any officers serving at the RCS etc.

29. Once a candidate has filed an application based upon the eligibility criteria set out in the advertisement, prescribing additional criteria thereafter, that too in closed doors would not be permissible. Such a practice would be contrary to basic principles that have laid down in judicial precedents. The Constitution Bench of the Supreme Court in Tej Prakash Pathak (supra) has been relied upon by the ld. Amicus. The relevant portion of the said judgment is extracted below: “Analysis

21. To effectively analyse and adjudicate upon the questions referred, we would divide our discussion into following parts:

21.1. (a) When the recruitment process commences and comes to an end;

21.2. (b) Basis of the doctrine that “rules of the game” must not be changed during the course of the game, or after the game is played;

21.3. (c) Whether the decision in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512: (2008) 1 SCC (L&S) 841] is at variance with earlier precedents on the subject;

21.4. (d) Whether the above doctrine applies with equal strictness qua method or procedure for selection as it does qua eligibility criteria;

21.5. (e) Whether procedure for selection stipulated by Act or Rules framed either under the proviso to Article 309 of the Constitution or a statute could be given a go-by;

21.6. (f) Whether appointment could be denied by change in the eligibility criteria after the game is played. xxxx xxxx xxxx xxxx

23. The doctrine proscribing change of rules midway through the game, or after the game is played, is predicated on the rule against arbitrariness enshrined in Article 14 of the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the concept of equality in all matters relating to public employment. These two articles strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles alike to all similarly situate and not to be guided by any extraneous or irrelevant considerations. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest.

24. The principle of fairness in action requires that public authorities be held accountable for their representations. Good administration requires public authorities to act in a predictable manner and honour the promises made or practices established unless there is good reason not to do so.

25. Candidates participating in a recruitment process have legitimate expectation that the process of selection will be fair and non-arbitrary. The basis of doctrine of legitimate expectation in public law is founded on the principles of fairness and nonarbitrariness in government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. This doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure.

26. However, the doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision. The courts are generally cautious in interfering with a bona fide decision of public authorities which denies legitimate expectation provided such a decision is taken in the larger public interest. Thus, public interest serves as a limitation on the application of the doctrine of legitimate expectation.”

30. Prescribing of an age after applications have been invited could result in exclusion of a large number of candidates and reduce the pool of applicants. The process would then be unfair on the applicants who are excluded. In light of the above well-settled legal position, the prescribing of the age criteria of 70 years after the issuance of the advertisement and after the applications having been submitted, would be contrary to law.

31. The term of the initial empanelment advertisement i.e., 2022-2025 has already elapsed. Presently, the advertisement which is operating in which the applications are being considered is the advertisement dated 30th June, 2025 for the term 2025-2028.

32. The amended prayer in the writ petition is that the Petitioner ought to be considered for the empanelment for the term of 2025-2028 and be exempted from the 70 year age limit which the Selection Committee has imposed.

33. It is noted that in the new advertisement also, there is no new age limit which has been prescribed, accordingly, the Petitioner’s candidature may be considered by the Selection Committee without considering the age limit of 70 years.

34. The remaining selection process would be purely within the domain of the Selection Committee.

35. In future, if the Selection Committee wishes to impose any eligibility criteria upon candidates for empanelment of arbitrators to be appointed by the RCS, such conditions may be prescribed in the advertisement itself so as to avoid any allegations of illegality or impropriety, bias or favouritism.

36. It is further clarified that the cut-off age of 70 years shall not be made applicable in respect of any candidate who may have applied for the term of 2025-2028.

37. The office of the RCS is also free to consider expanding the zone of consideration of persons eligible in terms of Rule 87(2) of the DCS Rules by allowing persons with legal expertise who would be willing to act as arbitrator. If such a zone of consideration is expanded, the same shall be spelt out in the advertisement itself.

38. The petition is disposed of in the above terms. Pending applications, if any, are also disposed of.

PRATHIBA M. SINGH JUDGE VIKAS MAHAJAN JUDGE JULY 8, 2026/nsa/dss/msh