Full Text
W.P.(C)No.1922/1996
Date of Decision: 21st December, 2010 VIJAY SINGH ..... Petitioner
Through : Mr. Lekh Raj Rehalia, Adv.
Through : Ms. Barkha Babbar, Adv.
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. Whether Reporters of Local papers may NO be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO reported in the Digest? GITA MITTAL, J. (Oral)
1. By way of this writ petition, the petitioner has assailed his rejection for appointment as Firemen Grade-II by the respondents in the selection process which was conducted by them in the year 1995.
2. The factual narration giving rise to the present writ petition is in a narrow compass and is undisputed.
3. The respondents had issued an advertisement inviting applications for two vacancies of Firemen Grade-II which were civilian in defence services Group „D‟ (Non Gazetted, Non- Industrial) posts having a pay scale of `200-3-206-4-234-EB-4- 2010:DHC:6183-DB years. These vacancies were released to 9 FOD C/o 56 APO amongst other units/depots vide the Army HQ letter dated 1st May, 1995 for direct recruitment through the employment exchange.
4. The writ petition is premised on a contention that Major S.R. Chowdhary and Brigadier Asil Singh arrayed as respondent Nos.[4] and 6 had disputed the petitioner‟s qualification as well as the certificates which were relied upon by the petitioner and that he was denied the proper consideration. It has further been contended by the petitioner that inasmuch as the land belonging to the family of the petitioner in District Gurdaspur had been acquired for defence purposes by the Government, the petitioner was entitled to a prioritized consideration for employment by the respondents.
5. In this background, the present writ petition has been filed by the petitioner resting the challenge to his non-selection on these two grounds.
6. We have carefully heard learned counsel for the parties at length and also scrutinized the available record. Having regard to the nature of challenge, we can deal with the first contention of the petitioner premised on failure to consider his qualifications or certification. We may note that the respondents have also filed an affidavit dated 18th March, 2009 enclosing therewith the photocopy of the complete record of the selection process commencing from the advertisement, requisition for application from employment exchanges as well as the Board of officers proceedings and their recommendations before us.
7. It is pointed out on affidavit by the respondents that the requisition in this behalf dated 6th June, 1996 was sent to the local employment exchange at Indora, Himachal Pradesh for sponsoring eligible candidates on 26th June, 1995 for interview/selection for the post of Firemen Grade-II.
8. The employment exchange at Indora had circulated the demand to other employment exchanges of District Kangra, Himachal Pradesh. The selection process was accordingly scheduled and date of interview was fixed for 19th July, 1995.
9. So far as two posts for which total applications have been invited, it has been pointed out by the respondents that there was only one vacancy in the General category while the other one was reserved for a candidate in the Scheduled Caste category. The petitioner had made an application for appointment to post as a general category candidate.
10. A Board of officers consisting of Major S.R. Chowdhary as Presiding Officer with Captain Ranjan Kumar and Captain Manish Bakshi as members was constituted to interview the candidates. The candidates sponsored by the employment exchanges were interviewed on 19th July, 1995 by this Board.
11. The respondents have pointed out that the petitioner‟s name for consideration was forwarded by two employment exchanges and it appears that he was registered with not only the employment exchange of Indora, Himachal Pradesh but with employment exchange of Pathankot as well.
12. Be that as it may, there is no dispute that the petitioner was duly called for undergoing the selection process.
13. It appears that in order to obviate any error or mistake in scrutiny of the documents which were produced on 19th July, 1995 before the Board of officers, all candidates were recalled on 7th August, 1995 when a scrutiny of their documents was again effected. The petitioner could not be selected for appointment.
14. Our attention has been drawn to the applicable recruitment rules for the post of Firemen Grade-II. The relevant portion thereof reads as follows:- Name of post No. of posts Classification Scale of pay Fireman Grade II 7 Civilians in Defence Services, Group‟D‟ (Non- Gazetted, Non- Industrial) Rs.200-3- 206-4-234- EB-4-250 Test as to physical fitness etc. referred as in column 8 shall be as under:-
1. Height without shoes …... 165 cms provided that a concession of 2.[5] cms in height shall be allowed for members of the Scheduled Tribes.
2. Chest (un-expanded)……. 81.[5] cms.
3. Chest (on expansion)……. 85 cms.
4. Weight ……... 50 kgs. (minimum)
5. Endurance Test: distance of 183 metres within 96 minutes). (b) Clearing 2.[7] metres wide ditch landing on both feet (long jumps).
(c) Climbing 3 metres vertical rope using hands and feet.”
15. We may note that the original proceedings of the Board of officers dated 19th July, 1995 have also been produced before this court and have been scrutinized by us. Learned counsel for the petitioner has also placed the photocopy of these proceedings which are available with him. The record relating to the selection process shows that a total number of 32 candidates had appeared before the Board of officers in the test for recruitment as Firemen Grade-II which was on the 19th of July, 1995. The Board has recorded detailed proceedings based on physical fitness; practical test as well as interview on this date. Separate marks have been awarded for the various criterion which have been placed before this court. Based on the said testing and marks secured by the candidates, the Board of officers had drawn-up the following merit list of the candidates. The same reads as follows:- “MERIT LIST
┌───────────────────────────────────────────────────────────────────────────────────────────┐ │ “MERIT LIST │ │ Sl. Name of Candidate Class Total Remarks │ │ No and father’s name Marks │ ├───────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Sh. Balwinder Singh Gen 51 ½ % │ │ S/o S h. Devi Singh │ │ 2. T. No.697 Maz Gen 50 ½ │ │ Sh. Bachan Singh │ │ 3. Sh. Pritam Chand S/o SC 50 │ │ Sh. Garib Dass (Ex.Ser) │ │ 4. Sh. Surinder Singh, SC 47 ½ │ │ S/o Sh. Amar Nath │ │ 5. T. No.660 Maz SC 45 ½ │ │ Sh. Bhupinder Pal │ │ 2010:DHC:6183-DB │ │ Sh. Amar Nath │ │ 7. Sh. Pyar Chand, S/o SC 42 │ │ Sh. Prabhdayal │ │ Presiding Officer Sd/- │ │ (IC-39481N Major │ │ SR Choudhary) │ │ Member 1. Sd/- │ │ (IC-44356N Capt │ │ Ranjan Kumar) │ │ 2. Sd/- │ │ IC-51247A Capt │ │ Manish Bakshi)” │ │ 16. We find that the proceedings of the Board of officers were │ └───────────────────────────────────────────────────────────────────────────────────────────┘
17. The merit list has duly been signed by the presiding officers along with three members of the Board of officers and stands approved by the Commandant of 9 Field Ordnance Depot. As noticed above, the Board of officers were required to make a recommendation for appointment to one post in the General Category and one in the Reserved Category. Accordingly, the Board had made the following recommendations for appointment:- “RECOMMENDATIONS BY THE BOARD OF OFFICERS The bd of offrs having carried out scrutiny of the docume like sponsorship of candidates by respective emp exchanges, pl of SC/ST/General Class, academic qualifications, date of birth and physical fitness test as prescribed vide SRO 145/76 follow by a written test and interview draw an overall merit list as per Appx. „A‟.
2. Keeping in mind the two vacancies available e.g. one for SC/S and one for unreserved cat and the overall posn in the merit. recommends the u/m candidates for the recruitment of firemen G (a) Sh. Balwinder Singh S/o - General Class (unreserved) Sh. Devi Singh (b) Sh. Pritam Chand S.o - SC Sh. Garib Dass Presiding Officer Sd/- (IC-39481N Major SR Choudhary) Member 1. Sd/- (IC-44356N Capt Ranjan Kumar)
2. Sd/- IC-51247A Capt Manish Bakshi) APPROVED Sd/- (Raj Kapoor) Colonel Commandant”
18. In view of the above factual narration, there can be no manner of dispute that so far as the petitioner was concerned, he had appeared in the recruitment process and was found fit for consideration. On a consideration of the overall record before the Board of officers and the marks secured by the petitioner in detailed testing, we find that he was at serial no.3 in the merit list.
19. The above narration also shows that the allegations against respondent Nos.[4] and 6 are not substantial. We also find that the grievance of the petitioner that his certification had been doubted and had not been considered by the respondents is misconceived and unsupported by the record.
20. In this background, so far as the recommendation of the candidate who was at No.1 in the meritorious General Category applicants for appointment to the post in question cannot be faulted without any reason.
21. It becomes necessary for us to consider the contention of the petitioner that in view of the land of his family having been acquired for defence purposes, he had an absolute right for consideration of such appointment. In this regard, reliance has been placed on certain instructions issued by the National Employment Service to employ officers which bears LSM No.1/88/1.11 and relates to the subject of “priority in submission to the persons/dependents whose land is acquired for Central Government projects”. The relevant extract of the same reads as follows:- “2. It has now been decided in consultation with the Bureau of Public Enterprises to restore the earlier instructions issued vide EEM No.14/84/1.11. Para 11.66 of N.E.S.M. Vol-I may, therefore, be replaced by the following:- “11.66(a) When persons are evicted from their land on account of acquiring their land for the purpose of Defence projects/Industrial projects in the public sector (Government Exchange will register such evictees on the production of certificates from land & Revenue Authority of the area. The Employment Officer may also go for mobile registration of such applicants on receipt of the request from the employers for whom the land is acquired. However, the condition of producing the certificates of eviction of his land from Land Revenue Authority of the area will also be applicable in such cases. (b) On receipt of vacancies from such employers, the Employment Exchange will give to that employer who acquired the land for the project. In case of Defence Projects, application whose land has been acquired for the project would get over-riding priority in priority III for appointments in projects as skilled or unskilled workers, clarks and against will non-technical posts on comparatively other low scales of pay. This benefit will be applicable only in the project for which the land is acquired and will be the project. The concessions should be made available to all persons who have been displaced as a result of coming up of the projects in a particular area irrespective of the fact whether they are land owners or their dependents.”
22. We find that the respondents have not doubted the certificates produced by the petitioner from the Special Land Acquisition Collector, Amritsar which certified that the land of Shri Amar Nath S/o Shri Bakha Ram at Village Punjupur, HBN No.323, Tehsil Pathankot, District Gurdaspur has been totally acquired for defence purposes by the Government vide Punjab Government notification No.11/9/85-54(V)/1934[3] dated 31st July, 1987.
23. The question which arises for consideration is as to whether the instructions by the National Employment Exchange confers the right of consideration for such appointment was noticed by the respondents.
24. Perusal of the clause „B‟ as extracted hereinabove shows that such prioritization was to be effectuated in the case of appointments being effected for defence projects which are being raised on the very land which stood acquired. The benefit under the said instructions is also restricted only up to the construction of such project. No material has been placed before this court which would enable us to arrive at a conclusion that the petitioner has been deprived consideration or appointment for a post relating to a project which was coming up on acquired land which belongs to the petitioner‟s family. There is nothing on record also to suggest that there was any such construction or project on the acquired land.
25. Be that as it may, it needs no elaboration that the prioritization under these instructions does not confer an absolute right for appointment. The same would entitle a person for consideration for the appointment. In this behalf, the pronouncement of the Supreme Court reported at V-2001 (2) of All India Services Law Journal in the case of Balbir Kaur and Anr. etc. vs. Steel Authority of India Ltd. & Ors. may be usefully referred to. This case related to appointment to compassionate appointment.
26. The aforenoticed factual narration shows that the respondents were considering appointment to a single post in the General Category. It certainly cannot be contended or held that consideration for appointment to such single post had to be confined to the petitioner for the reason that his family land had been acquired.
27. Learned counsel for the petitioner has also placed reliance on the pronouncements reported at 2001 (9) SCC 525 titled Dinesh Chandra Gahtori vs. Chief of Army Staff & Anr. and 1989 (3) Supreme Court Rulings page 45 titled Smt. Sushma Gosain & Ors. vs. Union of India & Ors. in support of his contention that the objection of the respondents relating to the territorial jurisdiction is misconceived.
28. In this background, certain facts also deserve to be noticed. The writ petition relates to a selection process which was completed in the year 1996. The present writ petition was filed on or about 10th May, 1996. We find that rule was issued in the matter on 2nd December, 1997. On a consideration of the fact that the writ petition had remained pending in this court for over 14 years, learned counsel for the respondents has not pressed this objection of territorial jurisdiction.
29. The time frame noticed above is also relevant in view of the fact that the petitioner is seeking appointment and initial induction into service in a post which was advertised in 1995. Long period of almost 15 years has passed while the writ petition has remained pending. It would remain a moot point as to whether initial induction or fresh appointment can possibly be made 15 years after the entire selection process has been over.
30. We may also note that no challenge is laid with regard to the selection which was effected. There is no impleadment of the aforenoticed person who was selected and appointed to the only General Category post for which applications were invited.
31. It is necessary for us to notice certain events which transpired. When hearing in the petition commenced, learned counsel for the petitioner had got extremely excited and started making submissions in a very high pitched voice which rendered them incomprehensible. We were therefore compelled to request him not to raise his voice to such a level to enable us to appreciate his arguments which he had complied with.
32. We may note that hearing in this matter had commenced at about 11:15am. After we had heard the matter for almost one and a half hours and counsel for the respondents had also made submissions, learned counsel for the petitioner had started insisting that the matter be transferred on the ground that this court was not granting him hearing because of the request by this court to him not to raise his voice inasmuch as the same was impeding a fair hearing in the matter. Having heard both parties in the matter at great length for over one and a half hours, the request for transfer in this writ petition of 1996 after counsel for the parties had concluded submissions, was considered unfair and inappropriate and, therefore, rejected.
33. We may note that after rejection of the said request, counsel for the petitioner has responded to queries and assisted in the dictation of the present order. In view of the above discussion on the challenge raised by the petitioner, we find no merit in this writ petition which is hereby dismissed. GITA MITTAL, J J.R. MIDHA, J DECEMBER 21, 2010 aj