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2006 DIGILAW 1029 (DEL)

MEHTAB SINGH v. INDIAN AIRLINES LTD

2006-06-02

SHIV NARAYAN DHINGRA, T.S.THAKUR

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T. S. THAKUR, J. ( 1 ) THIS Letters Patent Appeal arises out of an order passed by a learned single Judge of this Court whereby WP (C) No. 2826/2001 filed by the appellant seeking a mandamus directing the respondents to allow the petitioner to appear in the examination for the post of Trainee Technician has been dismissed. The facts giving rise to the writ petition and the present appeal lie in a narrow compass and may be summarised as under :- ( 2 ) THE appellant is an ex-serviceman. He was discharged from the military service on account of his being a ?permanent low medical category? case. He appears to have applied for appointment as a Helper (Engg.) with the respondent indian Airlines and was selected and appointed to that post in September, 1986. He was in due course promoted as Senior Helper (Engg.) and then Head Helper (Engg.) which post he is holding even now. ( 3 ) ON 4th October, 1999, the respondent appears to have issued a notification for recruitment to the post of Trainee Technicians. The petitioner was one of those who applied for appointment against the said post. On the completion of the selection process, he was informed that since he had been appointed in the category of ?physically handicapped persons?, he could not be considered for appointment as a Trainee Technician. The petitioner s representation that he was not a physically handicapped person and that his selection should be treated to have been made in ex-serviceman category having evoked no response, he filed WP (C) No. 2826/2001 for a mandamus directing the respondent to allow the petitioner to appear in the examination for the post of trainee Technician to be held on 5th and 6th May, 2001. That petition was heard and dismissed by a single Bench of this Court primarily on the ground that the appellant had not come with clean hands and had sought to mislead the Court by making a false statement. The Learned single Judge was of the opinion that the petitioner-appellant had actually applied for appointment as a Helper (Engg.) in the category of physically handicapped persons and that he had, subsequent to his appointment, addressed a letter to the appointing authority expressing his gratitude for having been appointed against a vacancy in the quota of physically handicapped persons. The Learned single Judge was of the opinion that the petitioner-appellant had actually applied for appointment as a Helper (Engg.) in the category of physically handicapped persons and that he had, subsequent to his appointment, addressed a letter to the appointing authority expressing his gratitude for having been appointed against a vacancy in the quota of physically handicapped persons. Both these documents, according to the learned single judge, were contrary to the averments made in the writ petition according to which the appellant had shown ignorance about his appointment being in the handicapped quota till he was informed about the same in March, 2001. ( 4 ) APPEARING for the appellant, Mr. Srivastava strenuously argued that the conclusion drawn by the learned single Judge was erroneous in as much as the appellant had at no stage either applied for the job of a Helper (Engg.) in the quota for handicapped candidates nor had he acknowledged the said appointment to have been made against that quota. He submitted that the assertion made by the petitioner-appellant in para 2 (viii) of the petition was not belied by the said document nor was the conclusion drawn by the learned single Judge about the bona fides of the appellant, legally justified. ( 5 ) THERE is, in our view, no merit in that submission. We say so because not only in the application form which has been placed on record by the respondents but also in the representation referred to by the learned single judge, it is clearly stated that the appellant s appointment was claimed and was made in the quota for handicapped candidates. In the application form submitted by the appellant, he had scored out other categories, namely, SC and ST and indicated that he was a physically handicapped candidate. Not only that the appellant had enclosed with the application form the disability certificate issued by the competent army officer in support of his being a handicapped person. The certificate enclosed by the petitioner was as under:-"certified that No. 14348896 Rank Ex. Gnr. Name : Mehtab Singh was invalided out of service with effect from 31st March, 1984 of BRONCHIAL ASTHAMA. His disability has been accepted as attributable to/aggravated by military service at 20% with effect from 31. 3. 1984 to 22. 1. 1986. Station : Nasik Road Camp Sd/- dated : 02 Jan, 86 Asstt. Gnr. Name : Mehtab Singh was invalided out of service with effect from 31st March, 1984 of BRONCHIAL ASTHAMA. His disability has been accepted as attributable to/aggravated by military service at 20% with effect from 31. 3. 1984 to 22. 1. 1986. Station : Nasik Road Camp Sd/- dated : 02 Jan, 86 Asstt. CGO Record Officer for Commanding Officer" ( 6 ) MORE importantly the appellant had after getting selected clearly acknowledged his selection and appointment to be in the quota of physically handicapped persons, while claiming seniority over other disabled ex-servicemen. The relevant portion of the representation acknowledging the appointment to be against the quota for physically handicapped persons runs as under :-"respectfully, I beg to state that you have selected me as an Engg. Helper under the quota of physically handicapped for which I am very much grateful to you. " ( 7 ) CONTRARY to what was stated by the appellant in the application for appointment and the representation extracted above the petitioner had made the following assertion in para 2 (viii) of the writ petition :-"that in the second week of March, 2001, the petitioner came to know from the office of respondents that preparation of the final list of the candidates are in progress and his name is not being included as a selected candidate to appear in the examination. On enquiry the petitioner was told by the office of the respondents to his utter surprise that his existing appointment is in the category of physically handicapped persons and due the said reason his name is not included in the list of the selected candidate to appear in the examination. " (Emphasis Supplied ). ( 8 ) THE learned single Judge was in the light of the above justified in holding that the appellant s claim that he had never applied for nor was he appointed against the quota for physically handicapped candidates was false and that the appellant had tried to mislead the Court. The submission of Mr. Srivastava that the appellant had not made any factually incorrect assertion in the writ petition must in the light of the above be rejected. ( 9 ) MR. The submission of Mr. Srivastava that the appellant had not made any factually incorrect assertion in the writ petition must in the light of the above be rejected. ( 9 ) MR. Srivastava next submitted that there was a reservation of 24% for ex-serviceman and that since the appellant could as well have been appointed on account of his being an ex-serviceman, his appointment should have been counted in the category of ex-serviceman rather than in the category of handicapped candidates. There are two reasons why that argument cannot be accepted. Firstly because the petition has been dismissed and in our opinion rightly so on the ground that the appellant had not come to the Court with clean hands and that he had made assertions which were factually incorrect. In the second place, the question whether there was any reservation for ex-serviceman and if so whether the appellant could have been appointed in that category or the same should be deemed to have been made against the vacancy for ex-serviceman was never urged in the writ petition or at the bar before the learned single Judge. No foundation in the pleadings has been laid for the argument advanced before us by Mr. Srivastava. It is not, therefore, open to the appellant to urge that argument for the first time in the present appeal nor is it necessary for us to examine whether the petitioner appellant could as well have been treated as a candidate appointed against the ex-servicemen quota. ( 10 ) IT was next contended by Mr. Srivastava that there was no reservation for physically handicapped candidates for the post of Helper (Engg.) The argument was that since no reservation for handicapped candidates was available for posts of Helpers (Engg.), the appellant s appointment could not be deemed to be against the quota for such candidates. ( 11 ) WE find no merit in that submission either. There is not even a murmur in the writ petition filed by the appellant that there was no reservation for handicapped candidates. That apart, the appellant having expressed his gratitude for being appointed in the category of handicapped candidates cannot after availing of the benefit flowing from such an appointment turn around to argue that the appointment itself was illegal or impermissible as no reservation was available in favour of handicapped candidates against the post of Helper (Engg. ). That apart, the appellant having expressed his gratitude for being appointed in the category of handicapped candidates cannot after availing of the benefit flowing from such an appointment turn around to argue that the appointment itself was illegal or impermissible as no reservation was available in favour of handicapped candidates against the post of Helper (Engg. ). Allowing the appellant to do so would amount to allowing him to approbate and reprobate which is legally impermissible. Reliance placed by Mr. Srivastava upon the decisions of the Supreme Court in Dr. M. V. Nair Versus Union of India and Others, 1993 (2) SCC 429 ; Hindalco Industries Ltd. Versus Union of india and Others, 1994 (2) SCC 594 and U. P. Public Service Commission U. P. , allahabad and Another Versus Aplana, 1994 (2) SCC 723 , is of no avail to the appellant. ( 12 ) THERE is yet another aspect to which we may advert before parting. The relief prayed for by the appellant was in the nature of a mandamus directing the respondents to permit him to appear in the examination for the post of trainee Technician to be held in the year 2001. The said examination has since been held and those selected have since been appointed to the available post. The appellant has not impleaded the selected candidates as parties to the writ petition nor have they been impleaded as parties to the present appeal. In the absence of a challenge to the appointments made on the basis of the said examination, there is no vacancy against which the appellant can possibly claim an appointment. That apart, the qualifications required for the appointment to the post of the Trainee Technicians have undergone a change. As on date, the qualifications prescribed by the respondents are admittedly not possessed by the appellant. In the circumstances, a mandamus to the respondents to appoint the appellant would run in the teeth of the qualifications prescribed by the relevant rules. No such direction can, however, be issued. ( 13 ) IN the result, this appeal fails and is hereby dismissed but in the circumstances, without any orders as to costs. .