IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : APPOINTMENT MATTER Date of decision: 11th July, 2012 W.P.(C) No.1343/1998.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : APPOINTMENT MATTER Date of decision: 11th July, 2012 W.P.(C) No.1343/1998 SRI GURU TEGH BAHADUR KHALSA POST GRADUATE EVENING COLLEGE Through: None.... Petitioner Versus UNION OF INDIA & ORS. Through: None.... Respondents CORAM :- HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J 1. The petition impugns the decision dated and the letter dated of the respondent No.2 National Commission for Scheduled Castes and Scheduled Tribes (since, National Commission for Scheduled Castes) (hereinafter referred to as Commission), holding the Principal of the petitioner College (since known as Sri Guru Nanak Dev Khalsa College, as borne out from the website) to have willfully and deliberately avoided to follow the Department of Personnel & Training (DOPT) circular to fill up the post of Administrative Officer and Senior Personal Assistant to the Principal earmarked for Scheduled Caste incumbents and consequently cancelling the appointment made to both the said posts and seeking a compliance report from the petitioner College. Notice of this petition was issued and vide ex parte order dated the impugned decision dated of the Commission and directions contained in the letter dated of the Commission stayed. Counter affidavits have been filed by the Commission and the respondent No.4 Delhi University & Colleges Scheduled Castes / Scheduled Tribes Employees Welfare Association. No counter affidavit is filed by the respondent No.1 UOI. Rule was issued in the petition on and the interim order

2 made absolute till the disposal of the writ petition. The petition was listed for hearing last on , and when none appeared for either of the parties. Today also, inspite of the matter having been kept pending for a considerably long time, none has appeared for either of the parties. Considering that the writ petition is of the year 1998 and further considering the Vision Statement announced by the Chief Justice of India for the current year, of ensuring that the Courts are free of arrears of more than five years old cases, it is not deemed expedient to await the parties any longer. Though the petition is liable to be dismissed for non prosecution but considering the fact that Rule was issued, it is deemed expedient to express opinion on merits. With this intent the record has been gone through. 2. The impugned decision dated of the Commission is inter alia as under: The post of Administrative Officer following R&P Rules provides 50% direct recruitment and 50% departmental promotion of the internal candidate. Following the 40 point roster, the post of Administrative Officer is at point No.1 and reserved for Scheduled Caste. The post of Administrative officer had fallen vacant due to the retirement of Sardar H.S. Sandhu in October 1990, but this post was filled up on 1st November 1990 by Sardar Devender Singh, a general candidate and the post was carried forward for next recruitment year and the carried forward post meant for Scheduled Caste was given to general candidate namely Mrs. Kusum Saxena in 1997 again in the end of 2nd recruitment year. This is a clear violation of the reservation policy willfully and deliberately. As regards to fill up the post of Sr.P.A. to the Principal, following the R&P, it provides 100% direct recruitment. Following the 40 and 200 point Rosters, this post is also reserved for Scheduled Caste, but it appears from the records itself as well as from the report of the Liaison Officer that this post has also been filled up by general candidates in two recruitment years even without being carried forward. The appointments of Administrative Officer and Sr.P.A. to the Principal are in violation of reservation policy. These appointments ought to have been cancelled failing which the Scheduled Caste candidates shall not be able to avail opportunity of reservation in the 3rd recruitment year. It will be lapsed as per DOPT norms. It, however, appears from the case itself that there is no departmental suitable candidate for the post of Administrative Officer and Sr.P.A. to the Principal.

3 The mode of recruitment proves itself that Principal, SGTB College (Evening), Karol Bagh willfully and deliberately avoids to follow the DOPT s circular to fill up these posts earmarked for Scheduled Caste incumbents. The Commission is of the opinion that both the appointments are liable to be cancelled forthright failing which the Commission has got no alternative but to fix the responsibility on the concerned authority following the DOPT s circular. The authority is also directed to report compliance. Copy of the findings be sent to the Registrar, Delhi University and the Principal of the concerned college along with Sh. H.H. Baa, Liaison Officer, Delhi University to pursue the findings. Gist of the findings may be communicated to Mr. Lakhan Singh, General Secretary, Delhi University and Colleges SC/ST Employees Welfare Association, the petitioner for information. 3. The impugned letter dated of the Commission to the petitioner is as under: To The Principal S.G.T.B. Khalsa College (E) Dev Nagar, New Delhi Sub: Representation from Delhi University & Colleges SC/ST Employees Welfare Association regarding non-following of reservation in S.G.T.B. Khalsa College in filling up the post of A.O. Sir, I am to refer to the above mentioned subject and to enclosed herewith findings of this Commission. Compliance report may please be furnished to this Commission within 30 days of the receipt of this letter for the information of the Hon ble Member. 4. The challenge by the petitioner to the aforesaid decision and letter of the Commission is three fold. Firstly, it is stated that the post of Administrative Officer to which objection is taken was filled up in accordance with the rules, guidelines and procedure prescribed by the University of Delhi; that the post was advertised and a Selection Committee constituted which on the basis of written test and interview filled up the said post; that it was noted by the Departmental Promotion Committee that even though this point in the 40 Point roaster is for a scheduled caste candidate, a

4 general category candidate was being promoted as there was no scheduled caste candidate in the feeder post and the scheduled caste point was carried forward to the next point in the roaster. With respect to the post of Senior Personal Assistant to the Principal, it is stated that the same was also filled up on the basis of recommendations of the Selection Committee. Secondly, it is contended that Article 338 of the Constitution of India under which the Commission has been constituted, does not empower the Commission to issue any declaration, mandate, injunction or order to any educational institution or authority as has been done in the impugned decision / letter; Article 338 only empowers and authorizes the Commission to make reports, recommendations as to the measures that should be taken by the Union or any State for the effective implementation of the safeguards and other measures for protection, welfare and socio-economic development of the Scheduled Castes; that the impugned decision / direction is thus without any jurisdiction and beyond the purview of Article 338 of the Constitution of India. Reliance in this regard is placed on All India Indian Overseas Bank SC and ST Employees Welfare Association Vs. Union of India (1996) 6 SCC 606. Lastly, it is contended that the directions even if valid are in violation of the law laid down in Chakradhar Paswan Vs. State of Bihar (1988) 2 SCC 214 to the effect that there can be no reservation, either for recruitment at initial stage or for filling up future vacancy under Article 16(4) of the Constitution, when there is only one post in cadre, as excessive reservation to the extent of 100% cannot be upheld. 5. The Commission in its counter affidavit, though has justified its decision dated , has pleaded that it has therein simply observed that it is of the opinion that both appointments are liable to be cancelled. Thus, the Commission / respondent No.2 has given an opinion that the appointments are not in accordance with law and nothing more than that. It is thus the plea of the Commission that having not issued any direction, it is not in violation of the dicta of the Apex Court in All India Indian Overseas Bank SC and ST Employees Welfare Association (supra). Rather it is expressly stated that no direction has been issued. 6. The respondent No.4 Delhi University & Colleges Scheduled Castes / Scheduled Tribes Employees Welfare Association, on whose complaint the Commission had acted, in its counter affidavit has sought to justify the order of the Commission on merits relying on Union of India Vs. Madhav (1997) 2 SCC 332 holding that reservation to single post by applying rule of rotation is not violative of Article 14 and 16(1) and that reservation could be

5 provided even to isolated posts on the basis of rule of rotation. The respondent No.4 also however in its counter affidavit has admitted that the jurisdiction of the Commission and the impugned communication dated of the Commission, is merely recommendatory in nature. It is further pleaded that the earlier judgments of the Apex Court in Chakradhar Paswan (supra) and Bhide Girls Education Society vs. Education Officer, Zila Parishad, Nagpur 1993 Supp (3) SCC 527 are no longer good law in view of Madhav (supra). 7. It would therefore transpire that the respondent No.4, on whose complaint the Commission passed the order and issued the letter dated as well as the Commission itself have admitted that the impugned decision and the letter do not issue any direction to be mandatorily complied with by the petitioner College, as the language thereof would suggest. In view of the said admission of the contesting respondents, the apprehension with which the writ petition was filed stands allayed. 8. As far as the challenge on merits to the decision / finding of the Commission is concerned, need is not felt to adjudicate the same particularly when no aspirant to the either post, belonging to Scheduled Caste has come before this Court in the last so many years seeking quashing of the appointments held by the Commission to be bad and seeking his / her own appointment in lieu thereof. Also, there are other subsequent developments, of which judicial notice can be taken, which also dissuade this bench from ruling on the merits of the findings of the Commission. 9. Even though no plea to the said effect is taken in this petition but the petitioner now claims to be a minority educational institution, also held so by the order dated by the National Commission for Minority Educational Institutions established under the National Commission for Minority Educational Institutions Act, Rather, the petitioner and certain other Institutions under the management of Delhi Sikh Gurdwara Management Committee constituted under the Delhi Sikh Gurdwaras Act, 1971 have filed writ petitions in this Court averring that they are not bound by the guidelines issued by the University of Delhi regarding reservations for OBCs in appointments and recruitments. In intra-court appeals arising out of the said writ petitions (being LPA No.464/2012 preferred by the petitioner), a Division Bench of this Court has vide order dated granted interim relief.

6 10. Once the petitioner is found to be a minority educational institution, the Supreme Court in Re: The Kerala Education Bill case [1958] 1 SCR 995 and in The Ahmedabad St. Xavier s College Society Vs. State of Gujarat AIR 1974 SC 1389 has held minority educational institutions to be having a right to administer i.e. right to choose its own teachers. Subsequently, in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, it has been held that aid cannot be denied to such minority educational institutions for the reason of not fulfilling guidelines as to reservation. Reference may also be made to Sindhi Education Society Vs. Chief Secretary, Government of NCT of Delhi (2010) 8 SCC 49 holding that the Delhi School Education Rules, 1973 providing for reservation in the matter of appointment are inapplicable to minority aided schools. The said judgments have been followed by a Division Bench of this Court in Queen Mary s School Vs. UOI (2011) 185 DLT The aforesaid would also show that the controversy in which decision has been rendered by the Commission and which decision is challenged in this petition, may now no longer be surviving. 12. For all the aforesaid reasons, the writ petition is allowed to the extent of holding that the petitioner College is not under compulsion to comply with the impugned decision dated and the impugned letter dated of the Commission and the Commission has also admitted that it is not intending to take any action against the petitioner College for such non compliance. However, if in future any other authority takes any action against the petitioner on the basis of the said decision, the petitioner shall be entitled to contest the same on all grounds available to it. No costs. Sd/- RAJIV SAHAI ENDLAW, J JULY 11, 2012

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