Virender Singh Yadav vs State of Haryana and Others

Rajiv Narain Raina, J.—The State Consumer Disputes Redressal Commission, Haryana at Punchkula notified recruitment process of staff of

various posts including single post of Assistant for its establishment and on the establishments of different District Consumer Disputes Redressal

Forums in the State of Haryana vide its circular letter dated 25.11.2011. The letter was circulated to the Registrar of this Court, all the District and

Sessions Judges in the State of Haryana and the Presidents of the District fora under the Consumer Protection Act, 1986. The posts were to be

filled by transfer/deputation. A corrigendum was issued on 25.1.2012 inter alia calling applications for two further posts of Assistants for the

district fora, against one post of Assistant advertised earlier. This petition concerns the post of Assistant alone.

The petitioner belongs to the ministerial staff of District Courts at Narnaul. He is presently working as a Civil Nazir in the Court of Civil Judge

(Senior Division), Narnaul. He applied through proper channel for appointment by transfer on one of the three advertised posts of Assistants. At

that time he was working as a Translator. The appointment was by way of selection on the basis of service record, ACRs and interview. Seven

candidates appeared and were interviewed on 3.4.2010 before the Committee set up by the State Commission consisting of the Hon''ble President

and the Hon''ble Judicial Member. The petitioner remained unsuccessful. Private respondents No. 4 to 6 were recommended for appointment on

merit. They joined the posts and are working.

Aggrieved by his non-selection the petitioner first made a representation complaining that less meritorious candidates have been selected under

the circular dated 25.11.2011 and corrigendum dated 25.1.2012. He claimed that he was senior to the selected candidates and had more

experience than them and that he was arbitrarily ignored. This was not the first time that he was not selected. In 1997-98 as well he pleads that he

was discriminated by the Commission and ignored for appointment by way of transfer/deputation and dissatisfied with the selection, he filed CWP

No. 16934 of 2006 before this Court which is said to be pending.

The representation of the petitioner has been rejected by order dated 21.8.2012. It is stated that the petitioner was not found suitable for

appointment to the post of Assistant in the District fora by the selection committee. The selection has been made on the basis of the performance at

the interview and merit was accordingly determined and appointments offered to the selected candidates for the posts of Assistants and other

posts.

Learned counsel for the petitioner submits that in the rejection order (P-11) he has wrongly been described as ""Examiner"" a lower post than

Translator whereas he had applied for the post through proper channel as ""Translator in the Court of Sh...."". In his resume submitted with the

application (P-4) he had listed the various posts held by him from 31.5.1986 till 15.12.2011. He had remained an Examiner from 7.1.2004 to

30.6.2008 in the pay scale of Rs. 5000-7850/- and a Translator from 30.6.2008 till the date of the application in the higher pay scale of Rs. 9300-

34800/- with basic pay of Rs. 12900/- + 3200 Grade Pay.

Mr. Sanjay Mittal, learned counsel appearing for the petitioner submits that mischief has been played by someone and the petitioner''s

candidature has been considered in the recruitment process and in the interview by assuming he the lower post of Examiner, whereas he should

have been considered from his rank and status as a Translator. The assessment of his merit has, therefore, been warped by projection of

diminished rank and pay resulting in arbitrary action. In this manner the private respondents have gained an edge and have secured appointment as

Assistants by transfer vide three orders all dated 7.5.2012. In these letters, Harminder Singh has been referred to as Examiner and Ashok Kumar

as Translator, which is the correct position.

I asked Mr. Mittal to show to the Court the interview call letter received from the Commission. From his papers, he has produced a Xerox

copy of letter dated 15.12.2011 in which the petitioner has been referred to as Translator. The same is taken on record as Mark ""A"".

Mr. Mittal then relies on a comparison of ACRs of the selected candidates and his own to show that he has superior record. He prays that the

appointment letters Annexures P-6 to P-8 of respondents No. 4 to 6 all dated 7.5.2012 be quashed on the ground that they are junior to the

petitioner.

There appears to be no merit in the submissions of Mr. Mittal on both counts. The petitioner was called by the Commission for interview vide

letter Mark ""A"" in which he has been described correctly as Translator. The petitioner''s application was forwarded through proper channel as

Translator. Merely because the word ""Examiner"" has been used in the impugned rejection order (P-11) that would not give rise to a suspicion that

he was rejected on a mistake of fact. Harminder Singh-respondent too was an Examiner. The use of the word ""Examiner"" would not make any

material difference in the selection process by interview where many factors would have come into play in determining inter-se merit. The

argument, therefore, merits rejection.

The next question also should not detain this Court for long since appointment by transfer or deputation to foreign service or cadre is not a

matter of right and the question of seniority would not arise. When appointment and promotion are involved in combination can seniority step in.

Transfer is a well known method of recruitment which does not comprehend promotion. Therefore, insistence on rule of seniority or that the

selected candidates are junior to the petitioner in one or the other sessions division would not come to the petitioner''s rescue. The selection cannot

be dubbed as unfair because of it. Besides, the petitioner has no statutory right to appointment as Assistant under the Service Rules governing his

service. It is not a case, to repeat, of promotion where seniority may be relevant and that too different for selection and non-selection posts. The

State Commission remains within its right to choose from a pool of candidates who have applied and face interview, the ones it thinks best-in its

subjective satisfaction, would serve its establishment and administration of the Institution to its best advantage. They are the best judges of the

needs of their working and to pick from those who according to them fit the bill.

The petitioner approached this Court on 19.8.2013 praying for quashing of appointment letters dated 7.5.2012 which shows a certain amount

of non-seriousness in pursuing remedy of judicial review, though the petitioner cannot be non suited only because of it. The petitioner having

participated in the selection process should normally not be permitted to turn around to challenge the selection on the basis of disappointment and

that too on insufficient grounds. No malafides has been alleged against anyone in making the selection. This petition is devoid of merit and is

dismissed.