Full Text
HIGH COURT OF DELHI
JUDGMENT
& CM APPL. 45730/2023 SANJAY SINGH YADAV ..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Ms. Pooja Dhar, and Mr. Pratul Pratap
Singh, Advocates For the Respondents : Mr. Digvijay Rai, Mrs. Chetna Rai, Mr. Archit Mishra and Mr. Yatinder Choudhary, Advocates for R-1
Ms. Anjana Gosain and Mr. Nippun Sharma, Advocates for R-2/UOI
1. This is a writ petition under Article 226 of the Constitution of India, 1950 seeking, inter alia, the following reliefs:- “(a) Declare that the refusal of the Respondents to to consider Petitioner's candidature for physical measurement and endurance test for the post of Junior Executive (Fire Services) under 25% Departmental Examination Quota, is arbitrary and violates the fundamental rights of the Petitioner as guaranteed under Articles 14, 19 and 21 of the Constitution of India; (b) Issue a writ of mandamus or any other appropriate writ order or direction commanding the Respondents to consider the Petitioner's candidature for physical measurement and endurance test for the post of Junior Executive (Fire Services) under 25% Departmental Examination Quota;
(c) Issue a writ of mandamus or any other appropriate writ order or direction commanding the Respondents to appoint the Petitioner at the post of Junior Executive (Fire Services) under 25% Departmental Examination Quota subject to the outcome of physical measurement and endurance test
(d) Issue a writ of certiorari or any other appropriate writ order or direction declaring the emails dated 27.6.2018, 4.7.2018 and 12.7.2018 sent by Respondent No.1 to the Petitioner to be illegal, arbitrary and declare the same null and Void; (e) Pass such other or further orders as this Hon'ble Court may deem fit.”
2. The facts as culled out from the petition, shorn of all unnecessary details and germane and relevant to decide the dispute are as under:-
(i) In 2002, the Petitioner joined the Respondent Airport
(ii) The Petitioner got a job offer for appointment as Fire Officer in Civil Aviation Authority, State of Qatar on 11.12.2016 and a revised offer on 19.04.2017. This was a Government organization recognized by ICAO, and the Petitioner had applied for the same after duly taking permission from the respondent. Thereafter, on 01.05.2017, the Petitioner submitted a letter citing the above appointment and sought to be relieved from the post and requested the respondent/AAI for grant of lien.
(iii) The Manager, HR, Northern Region on 29.05.2017, wrote a letter to Executive Director, HR for approval of Competent Authority for retention of lien of the Petitioner.
(iv) On 29.06.2017, the respondent Airport Authority of India invited applications for the post of Junior Executive (Fire Services) under the 25% Departmental Examination Quota. The Petitioner filed his application in terms of the advertisement.
(v) On 31.07.2017, the Petitioner sent a letter to the respondent
(vi) On 23.08.2017, the respondent authority conveyed the in principle approval of the Competent Authority for grant of ‘lien’ for three years to the Petitioner.
(vii) Further, on 13.11.2017, the respondent authority accepted the
Technical Resignation letter of the Petitioner and relieved him from duty w.e.f. 02.11.2017. The letter accepting the resignation also stated that the petitioner shall remain on ‘lien’ w.e.f. 02.11.2017 for a period of 3 years.
(viii) The Airport Authority of India, Department of Human
Resources, on 11.01.2018, issued the list of eligible candidates to appear in the online examination for the post of Junior Executive (Fire Services) under 25% Departmental Examination Quota. The list was issued pursuant to the advertisement dated 29.06.2017. The Petitioner’s name was at
┌───────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Serial No.l of the list of eligible candidates. │ │ (ix) The Petitioner appeared for the Departmental Examination │ │ conducted on 26.03.2018, pursuant to the advertisement dated │ │ 29.06.2017. │ │ (x) On 24.05.2018, the Recruitment Cell, Directorate of HRM, │ │ Airports Authority of India declared the results of the │ │ Departmental Examination for the post of Junior Executive │ │ (Fire Services). The number of vacancies circulated was stated │ │ to be 6 and the Petitioner was shown provisionally shortlisted │ │ for Physical Measurement and Endurance Test. │ │ (xi) On 27.06.2018, the Recruitment Cell, Airport Authority of │ │ India vide an email to the petitioner stated that the petitioner’s │ │ candidature for the post of Junior Executive (Fire Services) │ │ under the Departmental Quota is not being considered for │ │ further selection process as he had resigned from the services │ │ of the Airport Authority of India and that he was presently not │ │ on its payrolls. │ │ (xii) On 27.06.2018 itself, the Petitioner sent a request letter vide │ │ email to the Human Resources Cell of the respondent Airport │ │ Authority of India marking a copy to the concerned officers, to │ └───────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
30. It is apparent from the perusal of the aforesaid orders that this Court had granted an opportunity to the petitioner to rejoin the services of the respondent on 23.07.2018. The counsel for the petitioner was only to inform the Court as to when the petitioner would join the respondent. Despite the direction, the petitioner neither joined nor passed any instructions to his counsel, as is clear from the subsequent orders passed by this Court. The submission of Ms. Dhar that since the petitioner was under a contract with the institution at Qatar, he could not have left the same without giving sixty days notice to the employer as per the terms of the contract does not appeal to this Court. This is for the reason that on no occasion after 23.07.2018, did the petitioner ever file any application to seek extension of time for rejoining the services of the respondent nor even made an oral mention of the same, which is intriguing to say the least. In case the petitioner was earnest in his efforts to rejoin the services of the respondent, he would have undertaken remedial steps to protect his interests. There is nothing on record, nor could Ms. Dhar point out to any steps taken by the petitioner in that regard.
31. In this context, it would be relevant to also consider the averments in the additional affidavit filed by the respondent no.1 on 05.09.2023. The relevant paragraphs are extracted hereunder:- “5.I state that when the matter was listed before the Hon'ble Court on 23.07.2018, the counsel for the Respondent No.1 informed the Department that this Hon'ble Court directed the Counsel for the Petitioner to seek instructions whether he is willing to join on his post in AAI within a week and for this purpose alone, the matter has been adjourned for 02.08.2018. When the matter was listed on 02.08.2018, the counsel for the Respondent No.1 informed AAI that the counsel for the Petitioner sought an adjournment on the ground that she could not get instructions from her client as Petitioner was presently in Qatar. Copies of the emails dated 23.07.2018 and 02.08.2018 are annexed herewith and marked as
6. I state that, pursuant to Order dated 23.07.2018, when the counsel for the Petitioner sought time to seek instructions as to whether the Petitioner is willing to come back and join organization of Respondent No. 1, one post was kept pending. However, a perusal of the order sheets show that the Petitioner chose not to come back to India and not to join Respondent organization during the relevant period.
7. I state that on 04.10.2018, the roll numbers of 05 candidates who qualified Physical Measurement and Endurance Test results of the examination for JE (Fire Service) was declared and one post was unfilled in view of the pendency of the present Writ Petition.
8. I state that since there was no interim directions by this Hon'ble Court to keep one post vacant, and in view of the fact that the Petitioner had not rejoined the Respondent No.1 / AAI and further that the vacant posts could not be kept vacant any further, the next candidate in merit was given offer of appointment and hence the panel was closed on 05.09.2019 and there is no vacancy available for the post of JE (Fire Service) in furtherance of the Circular No. A12026/01/2016- Rectt.Cell(Pt.IV) dated 29.06.2017.” Apart from the aforesaid statement that the panel was closed way back on 05.09.2019 and that there is no vacancy available for the post of JE (Fire Service), the submission of learned counsel for the respondent no.1 that the respondent could not have waited till eternity for the petitioner to rejoin the services of the respondent coupled with the fact that the final select list would have expired in the month of September, 2019, appeals to this Court. In that, it cannot be expected of the respondent to wait for the final select panel to lapse in the month of September, 2019 and re-initiate the entire process involving further time and colossal amounts of public money. A litigant, who is lethargic and not vigilant to avail the benefit of the directions passed by this Court cannot be granted any discretionary relief. More so, when the petitioner let the selection procedure reach its logical conclusion without a demur.
32. Apart from drawing attention of this Court to Article 2 of the Contract executed between the petitioner and the institution at Qatar regarding sixty days notice period for termination of such contract, Ms. Dhar had no answer in respect of the aforesaid facts, which obtain from the record of this Court.
33. This appears to be a classic case of what one would call “operation successful, patient dead”.
34. In a last ditch effort, Ms. Dhar submits that this Court can issue Mandamus directing the respondent to create a supernumerary post in view of no vacancy being available against the Departmental Examination under the circular dated 29.06.2017. This submission is noted to be rejected. This is for the reason that it is only under exceptional and compelling circumstances, that the Constitutional Courts may direct issuance of such Mandamus. The present case is not one where such discretion is to be exercised, particularly, in view of the conduct of the petitioner, as noted above. This Court is fortified in its view by the judgement of the Supreme Court in Himachal Road Transport corporation v. Dinesh Kumar and Another reported in (1996) SCC 4 560. The relevant para of the same is extracted hereunder:
35. In that view of the matter, though the impugned letters dated 27.06.2018, 04.07.2018 and 12.07.2018 is found to be untenable in law, however, on facts, no relief can be directed in favor of the petitioner.
36. The petition along with pending application(s) is disposed of in the above terms with no order as to costs.
TUSHAR RAO GEDELA, J. FEBRUARY 12, 2024 rl/nd