SURESH KUMAR AND ORS vs NEW DELHI MUNICIPAL CORPORATION AND ANR

$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 12.02.2024
+ W.P.(C) 8362/2020 & CM APPL. 27160/2020 -Addl. doc.
SURESH KUMAR AND ORS ….. Petitioners
Through: Mr. M. K. Bhardwaj, Advocate (through video conferencing) with Ms. Priyanka M. Bhardwaj and Mr. Arun Prakash, Advocates.

versus

NEW DELHI MUNICIPAL CORPORATION AND ANR
….. Respondents
Through: Mr. Abhinav Bajaj, ASC with Mr. Vikrant Pachnanda, ASC and Mr. Saksham Ojha, Advocate for NDMC/R-1.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
REKHA PALLI, J (ORAL)

1. The present writ petition under Articles 226 and 227 of the Constitution of India seeks to assail the order dated 07.01.2020 passed by the learned Central Administrative Tribunal in O.A. No. 3577/2014. Vide the impugned order, the learned Tribunal has dismissed the original application preferred by the petitioners by rejecting their claim for appointment to the post of Clerical Assistants.
2. At the outset, we may note that vide circular dated 28.01.2013 the respondents invited applications for the post of Clerical Assistant to be filled by way of departmental promotion against the 10% quota prescribed under the said head. In terms of the said circular, the written test was conducted on 23.02.2014, the result thereof was declared by the respondents on 04.03.2014. Though all the petitioners emerged successful in the written test, they were not issued any appointment letters. Being aggrieved, the petitioners approached the Tribunal.
3. Upon notice being issued in the original application, the respondents filed a counter affidavit before the Tribunal, explaining therein that upon various complaints being received, the matter was examined and it was found that the selection process was not conducted in accordance with the recruitment rules. Consequently, a considered decision was taken on 09.07.2014 to cancel the entire selection process and carry out a fresh promotional exercise strictly in accordance with the Recruitment Rules. It was further urged by them that clause 12 of the Recruitment Rules, on which the petitioners were relying to contend that departmental promotion to the post of Clerical assistant was permissible without a typing test, had been already deleted pursuant to resolution dated 20.04.2011 of the respondent corporation.
4. Upon considering the rival stands of the parties, the learned Tribunal took note of the qualifications prescribed in the Recruitment Rules and came to a conclusion that once the very exam in which the petitioners had appeared had been cancelled, they could not seek promotions to the post of Clerical Assistants on the basis of the result of that exam. The learned Tribunal, therefore, rejected the original application. The relevant extracts of the impugned order, as contained in paragraph nos. 5 to 8 thereof, read as under:
“5. In clause 12, provision is made for appointment of candidates without typing test, by imposing a condition that the increment will not be granted, till the test is cleared. It is brought to our notice that the said clause has since been dropped. The result is that, a departmental candidate cannot be appointed, unless he clears the written test and the typing test.
6. It is no doubt true that the test was held on 23.02.2014. However, complaints are said to have been received alleging the irregularity in the very conducting of the examination. This was the subject matter of the detailed inquiry and ultimately, the Commissioner passed an order dated 16.06.2015, which reads as under:-
“With the approval of Competent Authority, the Group ‘C’ posts of Clerical Assistant, to be filled on promotion amongst the eligible Group “D” Departmental employees, circulated vide no. S. O(E)/174/SA-XIV dated 28.01.2013 is henceforth cancelled.”
7. Once the examination in which the applicants are declared successful is cancelled, the very basis for seeking promotion disappears. Added to that, the applicants are yet to clear the typing test. The only alternative for the applicants is to appear in the written test as well as the typing test, as and when they are held. Since the test was not conducted for the past several years, the applicants cannot be left in the lurch.
8. We, therefore, dispose of the O.A directing the respondents to consider the feasibility of holding the written test and typing test for selection of the Group ‘D’ employees for promotion to the post of Clerical Assistant against 10% quota at the earliest, if the vacancies exist.
5. Being aggrieved, the petitioners have approached this Court by way of the present petition.
6. In support of the petition, learned counsel for the petitioners submits that the impugned order is wholly perverse as the Learned Tribunal has failed to appreciate that once the petitioners had emerged successful in the departmental exam conducted in terms of the circular dated 28.01.2013, they could not now be denied their promotion merely because the respondents failed to conduct the typing test as prescribed under the Recruitment Rules. Furthermore, the Tribunal has also failed to appreciate that there is no absolute embargo in the Recruitment Rules for granting departmental promotion without a typing test. The Recruitment Rules only specifies that candidates appointed as Clerical Assistants without qualifying the typing test, would not be granted any annual increment till they qualify the said exam. He further submits that the decision to cancel the entire selection process was taken only on 16.06.2015 i.e much after the petitioners had, in September 2014, approached the Tribunal with a prayer for completion of the selection process. He, therefore, prays that the writ petition be allowed by directing the respondents to appoint them on the basis of the result declared on 04.03.2014.
7. On the other hand, Learned Counsel for the respondents vehemently opposes the said prayer and submits that after a detailed inquiry it was found that the proposal to grant departmental promotion to the post of Clerical Assistant without a typing test was contrary to the Recruitment Rules. Consequently, a considered decision was taken by the respondents to cancel the entire selection process. He submits that this decision was duly approved by the Chairman of the respondent corporation on 09.07.2014. Pursuant whereto, an order was issued on 16.06.2015 cancelling the selection process commenced vide circular dated 28.01.2013. He, therefore, prays that the writ petition be dismissed.
8. Having considered the rival submissions of the parties and perused the record, we are inclined to agree with the learned Tribunal that once the exam conducted for promotion of the candidates in terms of the circular dated 28.01.2013, vide which applications were invited for appointment for departmental promotional quota, itself stands cancelled, the petitioners could not claim any benefit despite having cleared the written exam. The petitioners have vehemently urged that the decision to cancel the selection process was taken on 16.07.2015, i.e much after they had approached the Tribunal and is, therefore, mala fide. Having perused the original record produced by the respondent, we find this plea to be totally misplaced as we find that the decision to cancel the entire selection process, in order to maintain compliance with the Recruitment Rules and transparency, was taken much earlier and was in fact approved by the Chairman of the respondent corporation on 9.07.2014.
9. We have also considered petitioners plea that since clause 12 of the Recruitment Rules provides that candidates who are promoted without passing the typing test would not be granted increments, it was evident that the typing test was not mandatory. As noted hereinabove the respondents have categorically stated that this clause stands deleted in 2011 itself and, therefore, it is evident that as per the applicable Recruitment rules typing test was a mandatory requirement for departmental promotion to the post of Clerical Assistant.
10. Further having perused the circular dated 28.01.2013 vide which applications were invited, we find that this circular itself clarified that candidates will have to qualify not only in the departmental examination, but also in the typing test. The respondents however declared the result without conducting this typing test. Learned counsel for the petitioners has vehemently urged that it is only due to the failure of the respondents in not conducting the typing test in terms of the circular dated 28.01.2013 that the petitioners could not be promoted as Clerical Assistants. No doubt, there was a lapse on the part of the respondent in not holding the typing test after conducting departmental written examination but this alone cannot be a ground to uphold the selection made only on the basis of the departmental exam. In any event, we also find from the record that the decision to cancel the selection process initiated vide circular dated 28.01.2013 was taken after due consideration of all the relevant factors with which decision we see no reason to interfere.
11. For the aforesaid reasons, we find no ground to interfere with the impugned order. The writ petition being meritless is, accordingly, dismissed.
12. Needless to state that as directed by the learned Tribunal, the respondent will proceed to carry out fresh appointment process at the earliest.

(REKHA PALLI)
JUDGE

(RAJNISH BHATNAGAR)
JUDGE
FEBRUARY 12, 2024
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