ORDER
Dalveer Bhandari, J.
1. This appeal is directed against the judgment dated 18.12.1998 passed by the learned Single Judge in C.W.P. No. 1187/97. The appeal has been primarily preferred on the following grounds:-
(a) The appointment of Shri Vijay D. Risbud as Commissioner (Planning) has been made in contravention of the rules as respondent No. 1 has failed to exhaust the mode of transfer on deputation/promotion as provided by RRs of 1982 before reverting to the process of direct recruitment.
(b) The constitution of Senior Selection Board was illegal because of eleventh hour inclusion of Shri A.P. Konvinde, who participated as an expert in the Selection Board.
2. During the pendency of this Letter Patent Appeal (L.P.A.) an affidavit has been filed by the appellant in which it is alleged that the appointment of respondent No. 2 is illegal and bad in law because no prior approval of the Central Government has been obtained before making appointment to Class I/Group A post of the Commissioner (Planning) which is mandatory.
3. This point has neither been taken in the writ petition nor any arguments relating to this ground were advanced before the Single Judge nor any ground has been taken in the LPA, but has been raised for the first time by way of an affidavit while this L.P.A. was pending.
4. Mr. Madan Bhatia, learned Senior Advocate on behalf of the appellants urged that this is purely a legal argument and the appellants be permitted to urge this ground even at this belated stage. Mr. Mukul Rohtagi, the learned Additional Solicitor General appearing for the DDA and Mr. Rajiv Dhawan, learned Senior Advocate appearing for the respondent No. 2 strongly opposed it. According to them, it is total abuse of the process of law. The appellants cannot be permitted to get the judgment of the learned Single Judge set aside on the grounds which were neither taken in the writ petition nor argued at the time of hearing of the writ petition. It would be pertinent to mention that there is no foundation of this argument even in the Letter’s Patent Appeal. During the pendency of this appeal the appellants have prayed for adjournment to produce certain relevant rules and in the grab of producing those rules the appellants have filed an additional affidavit in which for the first time they tried to urge that the appointment of respondent No. 2 is illegal and bad in law because no prior approval of the Central Government was taken. It may be pertinent to mention that at no point of time when the LPA was pending permission of this Court was sought to take this new plea.
5. We have carefully considered the rival submissions of the parties. At this belated stage, the appellants cannot be permitted to make out an entirely new case. The appellants cannot be permitted to get the appointment of respondent No.2 set aside on this ground after an unexplained delay of more than three years, we do not find any merit in this submission and it is accordingly rejected.
6. Mr. Bhatia, the learned Senior Advocate in his next submission challenged the constitution of the Selection board on the ground of participation of Shri A.P. Konvinde as third expert. He further submitted that Mr. Konvinde was not an expert in the filed of Town Planning and he was biased in favor of respondent No. 2.
7. Mr. Rohtagi, the learned ASG in reply submitted that the second submission of the appellants that the constitution of the selection board was illegal because of the inclusion of expert No. 3 – Shri A.P. Konvinde is also without any merit and deserves to be rejected.
8. Mr. Rohtagi submitted that there is no statutory selection board for direct recruitment. The board was constituted in January 1997 consisting of the following:-
(i) Vice Chairman, DDA - Chairman (ii) Finance Member, DDA - Member (iii) Engineer Member, DDA - Member (iv) Jt. Secretary/Director (DDA), - Member Ministry of Urban Affairs and Employment. (v) Shri E.F.N. Riberio, Former - Expert Chief-Planner, TCPO & former Commissioner (Planning) DDA. (vi) Shri Mesh Ram, Chief-Planner TCPO - Expert (vii) Commissioner (Personnel) - Member DDA. Secretary..
9. Apart from the two experts, the board included one representative from the Ministry of Urban Affairs and another expert was the former Commissioner (Planning) of DDA. The board also consisted of the top officials of the DDA, including its Vice Chairman, Finance Member, Engineering Member.
10. The Vice Chairman of the DDA, at the instance of the Court, filed an affidavit in which it is mentioned that he joined on 16.1.1997 and the selection for the post of Commissioner (Planning) was scheduled to take place on 20.1.1997. It is further mentioned in the affidavit that he came from Ahmedabad and did not know any one in the DDA. Under these circumstances, the Vice Chairman thought it fit to have another expert, Mr. A.V. Konvinde, an Architect of M/s Shaukat Rai and Morad Chowdhury Associates, and got him included as one of the experts in the selection board. He mentioned that Mr. Konvinde is very well known and a distinguished person in the filed of architecture planning and urban designs. He also mentioned that Mr. Konvinde enjoys considerable national and international fame in his field. Mr. Rohtagi submitted that Mr. Konvinde is almost a father figure in the field of architecture Mr. Konvinde’s bio data shows that he has done his Masters in Architecture from the Harvard University most prestigious and a leading American university. He is also a Fellow of the Indian Institute of Architects and a Fellow of the American Institute of Architects. He is responsible for integrated design in town planning. Some of the important buildings designed by him are as follows:-
(a) Indian Institute of Technology, Kanpur 1966 (b) Housing for Rajasthan Atomic 1968 Power Project, Kota (Rajasthan) (c) Campus Building for National Diary 1970 Development Board, Anand (Gujarat) (d) Mahatma Phule Agricultural University 1978 Rahuri (Maharashtra) (e) University of Agricultural Sciences, 1978 Bangalore (f) Nehru Science Centre, Bombay-Phase I 1980 (g) National Institute of Bank Management, 1985 Pune. (h) National Insurance Academy, Pune 1991 (i) National Science Centre, New Delhi 1991 (j) Sher-I-Kashmir Institute of Medical 1997 Sciences, Soura (Kashmir) (k) Urban Design Proposal for the Central Business District at Trans Yamuna area, Delhi - ongoing project. l) Temple & Vedic Institute for 1998 ISKCON at Delhi.
11. Mr. Rohtagi submitted that Mr. Konvinde has held a number of important positions. He is a visiting professor to many accredited American Universities. He was awarded Padma Shri in 1975 in recognition of his outstanding contribution in the filed of architecture. He is a recipient of a gold medal from the Indian Institute of Architects. He is also a recipient of national award for architectural engineering from the Institution of Engineers. Number of his articles and papers have been published in various accredited Indian and International Journals. He has been associated with the DDA for a very long period in a large number of projects.
12. Mr. Rohtagi submitted that there is no merit in the submission that Shri A.P. Konvinde is not an expert in the field of town planning. It is submitted in the additional affidavit filed by the DDA that the name of Shri A.P. Konvinde figures under the heading of Urban Design and Conceptual Planning in the project of development of Papankala complex – one of the largest projects ever undertaken by the DDA. This project report was initiated by none other but appellant No. 2 A.K. Jain himself as the Project Manager of Papankala project under the main caption of the ‘Urban Design and Conceptual Planning’ the very first name, apart from other distinguished names is that of A.P. Konvinde. It is mentioned in the proposal that “we had several meetings with various experts in the above mentioned discipline such as ‘urban design and conceptual planning” etc. Mr. Rohtagi also placed reliance on another report dated 12.3.1990 in which appellant No. A.K. Jain was the Project Planner. Number of consultants have been engaged to work as Members of Advisory Group and Working Group on Papankala project. In this report also A.P. Konvinde is shown as No. 1 Architect-Advisor, Delhi Urban Arts Commission. This also shows that appellant No. 2 has worked along with Shri A.P. Konvinde.
13. The appellants have also challenged the appointment of respondent No. 2 because for one project titled as the International Hotel Complex – Vasant Vihar National Urban Planning & Design Competition, respondent No. 2 was acting as a Project Manager whereas, Mr. A.P. Konvinde was on the Board of Assessors. Mr. Rohtagi submitted that Mr. Konvinde has been the most distinguished Architect in Delhi for more than four decades and has been associated with the majority of the important projects in Delhi. Most of the architects in Delhi at one point of time or the other have been associated with him in one project or the other. Respondent No. 2 was also associated in one of projects of the DDA with Mr. Konvinde in the same manner as the appellants have been associated with Mr. Konvinde in the same projects. Merely because of his association in one of the DDA projects can not lead to the inference that Mr. Konvinde was biased towards respondent No. 2 He submitted that it is hardly appropriate and fair for the appellants, to allege bias against a person of the stature of Mr. Konvinde. It is also unfortunate that the appellants have levelled the allegations that Mr. Konvinde had any vested interests in selection of respondent No. 2. In support of his submission he placed reliance on two judgments of the Hon’ble the Supreme Court, namely, Siya Ram vs. U.O.I. & Ors. and Dalpat Abasaheb Solunke and Others vs. Dr. B.S. Mahajan and others .
14. According to Mr. Rohtagi such frivolous allegations ought to have been avoided against a person of Mr. Konvinde’s stature and seniority. Mr. Rohtagi submitted that the entire Selection Board unanimously selected respondent No. 2 which consisted of top officials of the DDA and other experts. According to Mr. Rohtagi this challenge of the appellants is also totally devoid of any merit.
15. Mr. Rohtagi also submitted that the appellants did not protest about the constitution of the Board when they found Mr. Konvinde in the Selection Board. The appellants having unsuccessfully taken part in the selection are now estopped from challenging the constitution of the Selection Board. He submitted that inclusion of Mr. Konvinde in the Selection Board was actuated with the consideration to have the most experienced and knowledgeable person in the Selection Board so that the best available candidate can be selected on the important position.
16. Mr. Bhatia next submitted that the respondents have illegally and in violation of the Recruitment Rules without first exhausting the mode of transfer on deputation/promotion have straight away resorted to the method of direct recruitment whereas in the Recruitment Rules for the post of Commissioner (Planning) it has been specifically stated that it is only after exhausting of the aforesaid two modes of recruitment, i.e., transfer on deputation and promotion that the respondents can resort to the third and the last source of recruitment, i.e., by way of direct recruitment.
17. Mr. Rohtagi submitted that in the present selection there has been no violation of the relevant rules of recruitment. He invited attention of the court to the notification dated 23.9.1982. According to the Schedule, for the post of Commissioner (Planning) which is a group ‘A’ post, the mode of recruitment is ” by transfer on deputation/promotion failing which by direct recruitment”. He emphasised that according to the Notification, the appointment has to be by transfer on deputation/promotion, failing which by direct recruitment. He submitted that the transfer on deputation/promotion is one composite channel of the mode of selection and not two as suggested by the counsel for the appellants. He submitted that in this main channel there are two sub-channels; one is deputation and other is promotion. Admittedly, eligible for consideration in the sub-channel of promotion because none had two years experience in the grade, consequently there was substantial failure as far as the first channel of promotion is concerned. Therefore, this channel of deputation/promotion had to be given a go-by and the DDA was left with no choice but to resort to another channel of selection, i.e., by direct recruitment. Incidentally by resorting to this channel doors were opened for much larger participation. In fact by restoring to the direct recruitment, candidates belonging to all the channels could participate. The appellants have failed to appreciate the main advantage for resorting to this mode of selection in correct perspective. The entire exercise was undertaken to get the best available candidate for the important post of Commissioner (Planning).
18. In the instant case, the DDA was fully justified in resorting to the second mode of selection when there was a substantial failure in the first mode of selection. The discretion also vests with the concerned authorities and when according to their assessment when there was substantial failure of the first mode of selection. They were fully justified in resorting to the second mode of selection.
19. Mr. Rohtagi submitted that the direct recruitment was resorted to without violating the rules. This method was adopted to have much wider participation so that a very good candidate is selected for such a high position and appellants and respondent No. 2 may also get a chance of participating in the selection. Otherwise, the internal candidates had no chance of being considered for appointment. The entire exercise was done bona fide with a view to select the best candidate for the post while keeping the interests of departmental and the internal candidates in mind including the appellants. It is unfortunate that these appellants after participating in the selection process have now turned around and are saying that the appointment is not according to the rules.
20. Mr. Rohtagi also submitted that in the direct recruitment mode of selection a very large number of deputationists along with internal departmental candidates were considered. He submitted that by resorting to direct recruitment, in fact, there is substantial compliance of the first mode of selection, i.e., transfer on deputation/promotion. Ultimately, the zone of consideration was much larger and it helped the authorities to select the best available candidate out of a very large number of candidates representing all branches.
21. Mr. Rohtagi submitted that from whatever angle it is seen, the decision of the DDA in resorting to the method of direct recruitment for appointment to the post of Commissioner (Planning) cannot be called whimsical or arbitrary by any stretch of imagination. According to him, the DDA has undertaken the entire exercise to have the best available person for the post.
22. Mr. Rohtagi has also placed reliance on the affidavit of Mr. D. Sarkar, OSD (Personnel) & Director (Sports), DDA in which it is mentioned that appellant No. 1 had applied and was considered in the selection which took place in 1995 for the same post. In that selection appellant No. 1 was declared unsuccessful. Appellant No. 1 was again considered for the second time and was again declared unsuccessful in the year 1997. In the affidavit it is also mentioned that similarly appellant No. 2 A.K. Jain was considered for selection in the years 1989, 1995 & 1997 but was also declared unsuccessful. It is also mentioned in the affidavit that on these occasions, both the appellants had appeared before the Selection Board for direct recruitment.
23. It is also submitted that there were similar Selection Boards on all earlier selections consisting of 7-8 members in the years 1989 & 1995. These appellants had appeared in all these selections and never challenged them. It is beyond comprehension why the appellants are aggrieved with this selection particularly when they were also permitted to participate in the selection.
24. In the said affidavit of D. Sarkar it is also incorporated that the experts, Shri Rebeiro (former Chief Planner, TCPO) and Shri Mesh Ram (Chief Planner, TCPO) were also present in the Selection Boards of 1989, 1995 & 1997. It is also mentioned that the appellants never protested the inclusion of the other two experts and chose only to challenge the inclusion of Shri A.P. Konvinde (with whom they have interacted in the past and) who is the most distinguished and acknowledged leader in the field of architecture planning and urban design, apart from being the recipient of Padam Shree Award from the Government of India.
25. Mr. Rohtagi has placed on record minutes of the Selection Board held on 20.1.1997. In the Selection Board, 18 candidates were interviewed. It is further mentioned that 8 candidates who were serving in the various departments of the State Governments, Central Government organisations and Municipal Corporation were also considered. It is also incorporated in the affidavit that a large number of the DDA officers also participated that a large number of the DDA officers also participated in the selection and the list of the DDA officers was not confined to the appellants and respondent No. 2 only.
26. It is also mentioned that the process of selection by direct recruitment was really the most appropriate and fair mode of selection because from the channel for the internal promotion no one was found eligible including the appellants and respondent No. 2. It is also mentioned in the affidavit that 8 outsiders who were considered for the selection belonged to the category of the deputationists and remaining candidates were inhouse candidates belonging to the category of promotees. Therefore, by resorting to the method of direct recruit all the available candidates from all the categories were considered. It is submitted that the DDA in fact had undertaken to select the candidates by direct recruitment method (after exhausting the first channel) with a view to select the best available person. It is also mentioned in the affidavit that the case of Arun T. Mhaisalkar who was appointed as Commissioner (Planning) in the year 1995 was considered. He applied under the direct recruitment process. He was taken as a serving officer of CIDCO, a state of Maharashtra undertaking. He was selected as a direct recruit yet he was treated as a deputationist on his request. It is also mentioned that the appellants had never urged the aspect of deputation as distinct form that of promotion from within the department.
27. It is submitted that the appellants had been urging repeatedly, even prior to the filing of the writ petition, that the channel of internal promotion should not be by-passed. The appellants who were otherwise ineligible in terms of the recruitment rules could also be considered by adopting the method of direct recruitment. Both the appellants and respondent No. 2 got a chance of being considered which was otherwise not available to them. Mr. Rohtagi submitted that it is difficult to comprehend the grievance of the appellants. They wanted to be considered for selection and by resorting the method of direct recruitment the appellants along with respondents No. 2 were in fact considered. The appellants legitimately cannot have any grievance. No one can be heard to say that he or she must be appointed. The only grievance, if any, can be regarding an opportunity of being considered. The appellants had availed the opportunity and were duly considered but could not be selected. He also submitted that the appellants who had taken the chance and participated in the selection and on their non-selection now they cannot be permitted to turn around and find fault with the constitution of the Selection Board.
28. Mr. Rajiv Dhawan, the learned Senior Advocate who appeared on behalf of respondent No. 2 has adopted the arguments of the learned Additional Solicitor General Mr. Rohtagi and submitted that no interference is called for in the well reasoned judgment of the learned Single Judge.
29. Mr. Dhawan strongly submitted that the main prayer in the writ petition before the learned Single Judge was that the appellants should also be considered for the appointment to the post of Commissioner (Planning). The appellants after having been considered in the selection, now cannot be permitted to say that the selection was bad and be set aside just because they were not selected.
30. Mr. Dhawan also submitted that the appellants, in fact, have abandoned their right of challenging the selection after participating in the selection. Their only other surviving grievance was regarding the bias of A.P. Konvinde and in appeal no other grievance could be urged. He placed reliance on of Union of India and another Vs G. Ganayutham; and particularly stressed on para 4(a) at page 479, to buttress the agrument whether the relevant considerations were ignored or irrelevant considerations were taken into consideration in the appointment. He has also placed reliance on Union of India and another Vs. N. Chandrasekharan and others; and drawn the attention of the court to para 14 at page 700. In the said decision, their Lordships of the Supreme Court observed that in the absence of any mala fides pleased and established and in the facts and circumstances of this case, the importance given to the interview cannot by any means be termed as arbitrary or violative of Article 14 or 16 of the Constitution.
31. Mr. Dhawan submitted that the appellants want this court to set aside the judgment of the learned Single Judge on entirely new grounds which were neither taken in the writ petition nor urged before the learned Single Judge nor taken in the L.P.A Mr. Dhawan termed the additional affidavit filed by the appellants as another writ petition before this Court and submitted that a new writ petition cannot be used to get the judgment of the learned Single Judge set aside (based on original petition). He submitted that this ground was not taken even in the L.P.A. The appellants have strongly urged to get the judgment of the learned Single Judge set arise on a plea taken for the first time in an additional affidavit.
32. He submitted that the new argument of non-exhausting the channel of deputation as a mode of selection was neither taken in the writ petition nor argued before the learned Single Judge and the appellant cannot be permitted to take this ground.
33. He also submitted that the appeal deserves to be dismissed on the ground of latches. The appointment was made in 1997 and he cannot be permitted to challenge the appointment after three years by filing an additional affidavit in pending L.P.A.
34. Mr. Dhawan submitted that this appeal does not fall within the purview of Gurcharan’s case; and even if this court takes a view that this case falls within the ambit of Gurucharan’s case then also on the facts and circumstances of the case this appeal deserves to be dismissed. Mr. Dhawan submitted that the appellants who had participated in the interview and were declared unsuccessful cannot now be permitted to challenge the selection process. He submitted that the judgment of the learned Single Judge cannot be set aside on entirely new pleas and additional affidavits filed for the first time in appeal.
35. Mr. Dhawan also invited our attention to the court proceedings of this court. He submitted that even before the admission of this Latters Patent Appeal the appellants prayed for the time to produce certain relevant rules and under the grab of producing the rules that they have filed additional affidavit and want to argue the case on entirely new grounds for which no permission has been granted by this Court. He submitted that apart from the preliminary submissions regarding the maintainability of the appeal, even on merits this appeal deserves to be rejected with costs.
36. Mr. Dhawan He submitted in the alternative the appointment had to be made according to the rules of transfer by deputation/promotion failing which by direct recruitment. He submitted that when there was substantial failure of the first channel, therefore, authorities resorted to the second channel, i.e., promotion by way of direct recruitment. This was done while keeping the public interest in view, so that much larger number of persons can participate and the best available candidate could be appointed to the post. it is also submitted that while doing so, the DDA has kept in view the interest of internal candidates, i.e., appellants and respondents No. 2, who could not have otherwise been considered for appointment. He submitted that the exercise undertaken by the DDA is not a mechanical one and the discretion has been properly exercised by the authorities. He placed reliance on Shankarsan Dash Vs Union of India; . To demonstrate that the bias is entirely different from mala fide, he submitted that the mala fide cannot be merged with bias. In law the principle of Wednesbury has to be taken into consideration. All allegations against Mr. Konvinde are totally devoid of any merit. Mr. Dhawan adopted the arguments advanced by the learned Additional Solicitor General Mr. Rohtagi on this point also.
37. Respondent No. 2 has been functioning on that post for about four years. We see no ground to set aside the selection of respondent No. 2 on any of the grounds submitted by the appellants. No interference is called for.
38. The appeal being devoid of any merit is dismissed. In facts and circumstances of the present case, we left the parties to bear their own costs.