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2014 DIGILAW 3269 (DEL)

Abhishek v. University Of Delhi

2014-12-16

HIMA KOHLI

body2014
Judgment Hima Kohli, J. 1. The present petition has been filed by the petitioner praying inter alia for quashing and setting aside the order dated 24.11.2014 issued by the respondents/University, cancelling the offer of appointment issued to him for the post of Junior Assistant with immediate effect. 2. The brief facts, as stated in the writ petition, are that on 06.11.2013, the respondents/University had invited applications from eligible candidates for different posts including that of Junior Assistants. In response to the aforesaid advertisement, the petitioner had applied for the subject post on 23.02.2014. The selection process structured by the respondents/University comprised of a written test followed by a test of computer typing and then an interview. Only the selected candidates were required to undergo the medical test. 3. It is an admitted position that in terms of the notice dated 23.04.2014, the petitioner had passed the written test conducted by the respondents/University and thereafter, he had qualified in the test of computer typing that was conducted on 10.05.2014. The third and final stage was that of the interview. The petitioner and other successful candidates were required to participate in the interview on 25.06.2014. However, the petitioner did not participate in the interview. 4. On 02.08.2014, when the list of selected candidates for the subject post was displayed, the petitioner’s name had featured at Sr.No.129, against the total vacancies of 255. This was followed by an appointment letter dated 21.08.2014, issued in favour of the petitioner. In the aforesaid letter, it had been clarified that the appointee would remain on probation for a period of one year from the date of his joining duty and he would be considered for confirmation during the said period or during the extended period of probation. 5. Subsequently, a One Man Enquiry Committee was constituted by the respondents/University in terms of Clause 21 of the General Conditions of the advertisement that stipulated as below:- “21. In case of any inadvertent mistake in the process of selection, which may be detected at any stage even after the issue of appointment letter, the University reserves right to modify/withdraw/cancel any communication made to the candidate.” 6. As per the averments made in para 10 of the writ petition, the petitioner was called to appear before the Enquiry Committee on 20.11.2014 and he had duly appeared and replied to the queries raised. As per the averments made in para 10 of the writ petition, the petitioner was called to appear before the Enquiry Committee on 20.11.2014 and he had duly appeared and replied to the queries raised. Thereafter, the impugned order dated 24.11.2014 came to be passed, whereby the petitioner was informed that the offer letter was issued to him for the subject post inadvertently and as per the findings of the Enquiry Committee constituted for the said purpose in terms of Clause 21 of the General Conditions of Recruitment, his offer of appointment was cancelled for the post of Junior Assistant with immediate effect. 7. The grievance of the petitioner is that the report of the Enquiry Committee was not communicated to him and he was never issued a notice to show cause before the intended action of terminating his services was taken by the respondents/University, which is in gross violation of the principles of natural justice. 8. Mr. Rupal, learned counsel for the respondents/University, who appears on advance copy, disputes the aforesaid stand and counters that the petitioner was well aware of the General Conditions of the advertisement and Clause 21 had made it clear that in case of any inadvertent mistake in the process of selection, which may be detected at any stage and even after issuance of the appointment letter, the respondents/University reserves its right to modify/withdraw/cancel any communication made to the candidate. He submits that it is the petitioner’s own case that he had been summoned to appear before the Enquiry Committee constituted by the respondents/University for the purpose of verifying as to whether any of the appointment letters were issued inadvertently and the petitioner had duly participated in the said proceedings. He further submits that the petitioner has not denied the fact that he had elected not to participate in the interview process, which was a part of the selection process laid down by the respondents/University and that was the obvious reason for cancelling his offer of appointment. 9. The Court has heard the counsels for the parties. 10. The only explanation offered by the petitioner for absenting himself from the interview was that he did not consider it a mandatory requirement for selection and he had proceeded to join the services of the respondents/University on the basis of his selection. 9. The Court has heard the counsels for the parties. 10. The only explanation offered by the petitioner for absenting himself from the interview was that he did not consider it a mandatory requirement for selection and he had proceeded to join the services of the respondents/University on the basis of his selection. Counsel for the petitioner seeks to rely on clause 2 of the General Conditions of the advertisement that states that the University reserves its right to conduct a written test and submits that it was in view of the aforesaid condition that the petitioner had assumed that he was not required to participate in the interview. If this was the impression that the petitioner had carried, then by the same logic, he should not have participated in the computer typing test as well and ought to have sat for the written test alone. 11. What emerges from the above is that the petitioner had elected to participate only in a part of the selection process prescribed by the respondents/University, while choosing to skip the stage of interview. Therefore, he was well aware of the fact that the letter of appointment that was issued in his favour was a mistake on the part of the respondents/University. Further, the petitioner cannot claim that the principles of natural justice have been violated by the respondents/University inasmuch as he does not deny the fact that before the impugned order dated 24.11.2014 was issued, he was called to appear before the Enquiry Committee constituted by the respondents/University and the said Committee had duly interacted with the petitioner and verified the correct position on facts. It is in this background that the petitioner now seeks to explain his absenteeism during the interview process by raising a specious plea that he did not consider it a mandatory requirement for selection to the subject post. 12. Before considering the arguments advanced by learned counsels for the parties, it is necessary to clarify the settled legal position with regard to the exercise of the power of judicial review in matters pertaining to recruitment, qualifications, selection criteria etc. which is that when an employer invites applications for appointment to a particular job, it is entirely his prerogative to stipulate the educational qualifications, experience, age limit and the other criteria for selection to the said post. In the case of UOI vs. Pushpa Rani & Ors. which is that when an employer invites applications for appointment to a particular job, it is entirely his prerogative to stipulate the educational qualifications, experience, age limit and the other criteria for selection to the said post. In the case of UOI vs. Pushpa Rani & Ors. reported as (2008) 9 SCC 242 , the Supreme Court had laid down the parameters within which the courts ought to exercise the powers of judicial review in service matters and had made the following pertinent observations:- “37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.” (emphasis added) 13. In the case of Rajya Sabha Secretariat & Ors. Vs. Subhash Baloda & Ors. reported as 2013 Lab. I.C. 2612, the Supreme Court had again observed that it is not the job of the court to substitute what it thinks to be appropriate for that which the selecting authority has decided as desirable and while taking care of the rights of the candidates, the court cannot lose sight of the requirements specified by the selecting authority and nor should the High Court re-write the rules of selection. 14. 14. Having regard to the legal position that it is the sole discretion of an employer as to the manner in which it proposes to structure a selection process for the purposes of recruiting its employees and that the courts ought to refrain from stepping into the shoes of the employer to examine the procedure prescribed for appointment or substitute it with what it thinks is more appropriate, this Court declines to engage itself in the debate of whether the interview was extraneous or dispensable for selecting candidates to the subject post. In the instant case, the petitioner did not have any option but to follow the three step selection process charted out by the respondents/University, which included participation in the interview. The assumption drawn by the petitioner that his participation in the interview was not mandatory in terms of Clause 2 of the General Conditions of the advertisement, is found to be fallacious and is turned down. 15. In view of the aforesaid facts and circumstances and particularly, in view of the terms and conditions stipulated in Clause 21 of the General Conditions of advertisement that have been duly quoted in the impugned letter of cancellation of the offer of appointment issued to the petitioner and further, having regard to the fact that an opportunity of hearing was afforded to the petitioner by the Enquiry Committee specifically constituted for this purpose and only thereafter was his letter of appointment cancelled, this Court does not find any illegality, arbitrariness or perversity in the impugned order for interference. 16. Accordingly, the present petition is dismissed in limine and being devoid of merits alongwith the pending application.