Ganesh Sagar Dimbar vs President'S Secretariat ... on 30 August, 2022

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Delhi High Court - Orders

Ganesh Sagar Dimbar vs President'S Secretariat ... on 30 August, 2022

1. The petitioner, who was an aspirant for the post of Mali Grade III in the Work Charged Establishment of the President's Gardens, President's Secretariat, Rashtrapati Bhavan, New Delhi, has approached this Court seeking the following reliefs:

"(i)Pass an Order directing the Respondent no 1 to give appointment to the petitioner for the post of Mali Grade III in the Work Charged Establishment of the Presidents Gardens, Presidents Secretariat Rashtrapati Bhavan at New Delhi and set aside the illegal appointment of Respondent no 2;

(ii) Pass an Order directing stringent and exemplary actions against Respondent no 1 authorities involved in the illegality of the appointment of Respondent no 2;

(iii) Pass such other order or orders that may be deemed fit and proper in the facts and circumstances of the case."

Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57

2. The petitioner, who belongs to the OBC category, applied for the post of Mali Grade III in response to the advertisement issued by the respondent no.1 on 13.01.2017. As per the advertisement, the selection of candidates was to be done on the basis of a written examination of 100 marks, which was to be followed by a skill test, in which only candidates obtaining the minimum qualifying marks in the written test were eligible to appear. The clause '4' of the advertisement which lays down the selection procedure, reads as under:

"Selection Procedure: The Exam will be for 100 Marks containing questions on general awareness, 10th Class Science and Trade related questions followed by a Skill Test only for those who score minimum qualifying marks (to be fixed later) in the written test. Duration of Exam: 60 Minutes."

3. It is the petitioner's case that he obtained 31 marks in the written examination but has not been selected for appointment even though, respondent no.2 who had obtained 30 marks, has been selected and appointed to the post. Aggrieved by his non-selection, the petitioner approached this Court by way of W.P.(C) No. 3721/2018 which was disposed of with liberty to him to make a representation before the respondents. Consequently, the petitioner preferred a representation dated 27.04.2018, which has been rejected by respondent no.2 on 27.06.2018. It is in these circumstances that the present petition came to be filed.

4. Despite service, none has been appearing on behalf of the respondent no.2. A counter affidavit has been filed by respondent no.2 opposing Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57 the petition primarily on the ground that the petitioner was not selected as he failed to qualify the skill test which was conducted by a four-member Board. It has therefore, been urged that the petitioner despite having obtained the requisite marks in the written test, was rightly not appointed as a Mali Grade III.

5. Learned counsel for the petitioner submits that as per the advertisement, the selection was to be based on the result of the written examination and not on the basis of the result of the skill test. He submits that in fact, the advertisement was silent on the weightage to be given to the skill test and therefore, it was evident that the selection was to be based on the written test alone. He submits that once, it is an admitted position that the petitioner had obtained more marks than the respondent no.2, he should have been given preference for appointment vis-à-vis respondent no.2, who, he contends, has been unduly favoured. His submission, thus, is that the respondent no.1, in order to favour certain candidates like the respondent no.2, decided to give undue weightage to the skill test, thereby selecting candidates, who had obtained lesser marks than the petitioner in the written test, which he contends, was not permissible.

6. Learned counsel for the petitioner finally submits that it is only because of the ambiguity in the advertisement that the petitioner, who belongs to the lower strata of the society, has not only been ousted from the select list, but has also lost four valuable years of his life, as he has been before the Court for the last more than four years. He therefore, prays that the petitioner be at least granted age relaxation so as to enable him to apply in the next selection process for the post of Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57 Mali in the respondent no.1 organisation.

7. On the other hand, Ms. Nidhi Mohan Parashar, learned counsel for the respondent no.1, seeks to defend the impugned action by contending that the procedure followed by the respondents was fair and just as the same was based on the merit obtained in the written test by the candidates, subject to their qualifying for the skill test. She submits that a Mali is required to carry out practical work in the garden, and therefore, the respondent no.1 was justified in taking into account the performance in the skill test, while declaring the final select list. She submits that this position was made clear in the advertisement itself, and therefore, prays that the writ petition be dismissed.

8. Having considered the submissions of the parties and perused the record, I am unable to agree with the respondent that the advertisement made it clear that the selection would be based not on the result of the written exam, but also the candidate's performance in the skill test. In fact, the use of the words 'Duration of Exam: 60 Minutes' in the advertisement appears to suggest that the selection was to be based solely on the merit position in the written test. Even though the respondents cannot be held to be unjustified in holding a skill test, if the performance in the skill test was to be taken into consideration for determining the final merit list, it was incumbent upon the respondents to make the said position clear at the time of issuing the advertisement itself, which, unfortunately they failed to do. There was, thus, some ambiguity in the advertisement regarding the selection procedure, insofar as the candidates were concerned. However, having said so, taking into account that almost five years Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57 have elapsed since the selection was carried out, and all the 66 candidates have joined the post of Mali Grade III in the respondent organisation, it would be unjust to disturb their appointments at this belated stage and that too when the petitioner has not impleaded anyone except one candidate, who he claims was selected despite having obtained lesser marks than him. Moreover, it is not as if the procedure adopted by the respondents was per se arbitrary. In fact, the action of the respondents in selecting only candidates who qualified in the skill test cannot be said to be unfair or unreasonable in any manner.

9. In these circumstances, even though there appears to be some ambiguity in the description of the selection procedure in the advertisement, it would not be appropriate to disturb the appointments made pursuant to the said selection. However, taking into account that the petitioner has been before this Court for the last more than four years, it would be in the interest of justice to grant some age relaxation to the petitioner, so that he is not deprived of the opportunity to at least apply for the said post in the next selection process.

10.The writ petition is, accordingly, disposed of by directing the respondent no. 1 that in case any fresh advertisement is issued for appointment to the post of Mali Grade III in the respondent no. 1 organisation within the next two years, the petitioner, if required, will be granted age relaxation and subject to his meeting other prescribed qualification(s), his candidature will not be rejected on the ground of his being overage.

Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57

11.The writ petition, alongwith pending applications, is disposed of in the aforesaid terms.

REKHA PALLI, J AUGUST 30, 2022 acm Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:31.08.2022 14:26:57

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Delhi High Court - Orders