*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th May, 2011.
+ W.P.(C) 7430/2009 & CM No.3372/2009 (for stay)
% RAVINDRA DEWAJI DURGE ..... Petitioner
Through: Mr. Hrishikesh Baruah & Mr. Nishant
Das, Advocates
Versus
ONGC LTD. & ORS. ..... Respondents
Through: Mr. Rakesh Sawhney and Mr. S.
Sirish Kumar, Advocates for R-1.
Mr. Navin Chawla & Gaurav
Kaushik, Advocates for R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Yes
be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition has been filed impugning the appointment of
respondent No.5 Mr. Ravinder Pal Gupta as the Chief Manager (Security) in
the respondent No.1 ONGC.
W.P.(C)7430/2009 Page 1 of 9
2. Both, the petitioner and the respondent No.5 were at the relevant time
employed with the respondent No.1 ONGC as Manager (Security), an E-4
post. The petitioner claims and it is not disputed in the counter affidavits of
the respondent No.1 ONGC and the respondent No.5 that as per the seniority
list, the petitioner was senior to the respondent No.5.
3. The respondent No.1 ONGC on 22nd March, 2008 published an
advertisement inviting applications for the post of Security Officer (an E-1
post) and DGM (Security) (an E-6 post). The respondent No.5 applied for
the post of DGM (Security). The petitioner claims that he was not eligible
to apply for the post of DGM (Security).
4. The respondent No.1 ONGC though did not find the respondent No.5
eligible / suitable for the said post of DGM (Security) but posted him as
Chief Manager (Security), an E-5 post. It was then that the present petition
was filed averring that the respondent No.5 could not, in pursuance to the
advertisement aforesaid, be appointed to the post of Chief Manager
(Security) which was not even advertised.
W.P.(C)7430/2009 Page 2 of 9
5. Notice of the petition was issued and vide order dated 13 th March,
2009 the appointment of the respondent No.5 to the post of Chief Manager
(Security) was made subject to the final outcome of the writ petition.
Counter affidavits have been filed by the respondent No.1 to 4 ONGC and
its officials and the respondent No.5 and the counsels have been heard.
6. The counsel for the petitioner besides the ground aforesaid, that the
post which was not advertised could not be filled up has also invited
attention to the Recruitment and Promotion Regulations, 1980 of the
respondent No.1 ONGC to contend that the post of Chief Manager
(Security) is a promotional post and not a post for direct recruitment for
which vide advertisement aforesaid applications were invited. It is
contended that the procedure for filling up of the post of Chief Manager
(Security) has not been followed. It is further contended that the petitioner
being senior to the respondent No.5 was eligible for the post of Chief
Manager (Security), if at all the same were to be filled up and no
opportunity was granted to the petitioner to seek appointment to the said
post. Reliance is placed on Ashok Kumar Sharma Vs. Chander Shekhar
W.P.(C)7430/2009 Page 3 of 9
(1997) 4 SCC 18 to contend that posts cannot be filled up in contravention
to the representation made in the advertisement.
7. The only reason for which the respondent no.1 ONGC has sought to
justify the apparently illegal appointment, is the following clause in the
advertisement supra inviting applications to the post of Security Officer and
the DGM (Security):
“Number and level of posts may vary.”
8. The counsel for the respondent no.1 ONGC has contended that in
view of the aforesaid clause in the advertisement, respondent no.1 ONGC in
pursuance to the advertisement for the post of Security Officer and DGM
(Security) could fill up any other posts also which had not been advertised
and for which no applications even had been invited. It is contended that
such has been the practice in ONGC.
9. The argument is preposterous and has to be necessarily negated and
rejected. Such practice, if prevailing in ONGC is also illegal and is
deprecated. Respondent no.1 ONGC merely by advertising one post cannot
W.P.(C)7430/2009 Page 4 of 9
fill up all the other posts for which the applications have not even been
invited and without giving opportunity to all those eligible to apply therefor.
It has been enquired from the counsel for the respondent no.1 ONGC as to
whether notice of filling up of the post of Chief Manager (Security) was
given to all persons eligible therefor. No cogent answer has been
forthcoming. It is quite apparent that the post of Chief Manager (Security)
has been filled up by appointment of respondent no.5 thereto, illegally.
Similarly, there is an admission that the post of Chief Manager (Security) is
a promotional post. If it is admitted to be a promotional post, it is
inexplicable as to how it was filled up pursuant to the clause aforesaid in the
advertisement inviting applications for direct recruitment. In fact both
counsel for the petitioner and the counsel for the respondent no.5 state that
as per the Rules produced before the Court, even the post of DGM
(Security) is a promotional post.
10. The counsel for the respondent no.5 has contended that the respondent
no.5 was eligible for and had applied for the post of DGM (Security) and in
fact had secured the highest marks in the selection process for the said post
W.P.(C)7430/2009 Page 5 of 9
but others with lower marks were accommodated for the said post and the
respondent no.5 posted as Chief Manager (Security). It is further stated that
the respondent no.5 immediately on appointment, has made a representation
that he was eligible to be appointed as the DGM (Security).
11. I find that the Supreme Court in K. Shekar Vs. Indiramma (2002) 3
SCC 586 was concerned with a clause in the advertisement published by
National Institute of Mental Health & Neuro Sciences (NIMHANS) inviting
applications for various posts as under:
“If the candidate is not found suitable to the post applied for, the
Section Committee may recommend the candidate for a lower
post. In case of a highly qualified candidate, the Selection
Committee may recommend to a higher post other than the one
advertised.”
The Supreme Court inspite of noting that NIMHANS is an Institution
of repute held that there can be “no islands of insubordination to the rule of
law” and actions of Institutions, however highly reputed, are not immune
from judicial scrutiny. It was indeed held that to preserve the high
reputation there is a greater need to avoid even the semblance of
arbitrariness or extraneous consideration colouring the Institution’s actions.
W.P.(C)7430/2009 Page 6 of 9
It was further held that the clause aforesaid could not enable the
appointment of the recommended candidate against an unadvertised post
and an interpretation to the contrary would render the stipulation violative of
Articles 14 & 16.
12. Reference may also be made to Bhanu Prasad Panda Vs.
Chancellor, Sambalpur University (2001) 8 SCC 532, where also it was
held that though the Department concerned was of “Political Science and
Public Administration” but since the advertisement invited applications for
the post of lecturer in Political Science, on selection in pursuance thereto the
candidate could not have been appointed as Lecturer in Public
Administration. (The said judgment was recently clarified in Dr. Rajbir
Singh Dalal Vs. Chaudhari Devi Lal University (2008) 9 SCC 284 without
however affecting the principle laid down). The Supreme Court recently in
Rakhi Ray Vs. High Court of Delhi (2010) 2 SCC 637 and State of Orissa
Vs. Rajkishore Nanda (2010) 6 SCC 777 also held that appointment made
beyond number of vacancies advertised is without jurisdiction, being
violative of Articles 14 & 16.
W.P.(C)7430/2009 Page 7 of 9
13. All the aforesaid shows a sad state of affairs in the matter of
recruitments/promotions in the respondent no.1 ONGC. It appears that the
respondent no.1 ONGC has been making appointments without following
the procedure laid down under the Rules or as per the principles for filling
up of the said posts. The authorities concerned of respondent no.1 ONGC
appear to have chosen to turn a blind eye towards such illegalities in the
organization.
14. In the circumstances while allowing the writ petition and quashing the
appointment of the respondent no.5 to the post of Chief Manager (Security),
the Chairman and Managing Director (CMD) of the respondent no.1 ONGC
is directed to conduct/have conducted an inquiry into the aforesaid incident
and to fix the responsibility for the same and to initiate proceedings against
those found guilty and to submit a report to the PIL Committee of this Court
within six months of today.
15. A copy of this order be forwarded to the PIL Committee of this Court
for ensuring compliance by the CMD of the respondent no.1 ONGC and for
further action if deemed necessary.
W.P.(C)7430/2009 Page 8 of 9
16. The petitioner is also awarded costs of this writ petition of `20,000/-
payable by respondent no.1 ONGC within six weeks of today.
17. The counsel for the respondent no.5 seeks clarification that the
respondent no.5 will be entitled to seek his separate remedies qua the denial
of appointment to the post of DGM (Security). This matter being not
concerned therewith, it is clarified that the respondent no.5 will be entitled
to so seek his remedies.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 13, 2011
gsr/bs
(corrected and released on 18 th May, 2011)
W.P.(C)7430/2009 Page 9 of 9