{"id":85322,"date":"1998-12-18T00:00:00","date_gmt":"1998-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandra-ballabh-anr-vs-delhi-development-authority-on-18-december-1998-3"},"modified":"2016-04-07T03:21:53","modified_gmt":"2016-04-06T21:51:53","slug":"chandra-ballabh-anr-vs-delhi-development-authority-on-18-december-1998-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandra-ballabh-anr-vs-delhi-development-authority-on-18-december-1998-3","title":{"rendered":"Chandra Ballabh &amp; Anr. vs Delhi Development Authority &amp; &#8230; on 18 December, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Chandra Ballabh &amp; Anr. vs Delhi Development Authority &amp; &#8230; on 18 December, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1999 IIAD Delhi 838, 77 (1999) DLT 327, 1999 (48) DRJ 23<\/div>\n<div class=\"doc_author\">Author: V Jain<\/div>\n<div class=\"doc_bench\">Bench: V Jain<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Vijender Jain, J.<\/p>\n<p>1.<br \/>\n     Two writ petitioners aggrieved by the selection of respondent No. 2 to the  post of Commissioner (Planning) by the respondent No.1 has  filed  the present writ petition.\n<\/p>\n<p>     Mr.  G.D.  Gupta, learned Counsel appearing for the  petitioners,  has contended  that  in  terms of column 10 of the Regulation,  the  method  of recruitment  for  the post of Commissioner (Planning) is  &#8216;by  transfer  on deputation\/promotion  failing  which by  direct  recruitment&#8217;.  Recruitment Regulation  is  at page-52 of the paper book. In column 11 in the  case  of transfer on deputation the following requirement is given:\n<\/p>\n<p>     By transfer on deputation of officers holding:\n<\/p>\n<p>     (i)   Analogous post;\n<\/p>\n<p>     (ii)  Post in the scale of Rs.1800-2000 with two years service in      the grade;\n<\/p>\n<p>     (iii) Post in the scale of Rs. 1500-2000 with five years  experience  in  the  grade. Under the Central or  State  Government  of Development\/Planning  Authorities and  possessing  qualifications prescribed for the post of Commissioner (Planning); the  Director (Planning)\/Chief  Architect  in the Delhi  Development  Authority with  two years service in the grade rendered  after  appointment thereto  on regular basis will also be eligible to be  considered and if the departmental officers mentioned above is selected  for appointment to the post it will be treated as having been  filled by promotion (Period of Deputation ordinarily not exceeding three years).\n<\/p>\n<p>2.   On the basis of the aforesaid Clauses of the recruitment  regulations,Mr.  Gupta has contended that the process of selection to the post of  Commissioner  ( Planning) by direct recruitment without first  exhausting  the channel of promotion\/deputation was illegal, mala fide and unreasonable. In support of his arguments, Mr. Gupta has relied upon S.S. Sodhi Vs. State of Punjab &amp; Ors.,  and Gujarat Housing Board Engineers Association &amp; Anr. Vs. State of Gujarat &amp; Ors., 1994 (1) SLR 55. The second  bone of  contention  of  the learned Counsel for the petitioners  was  that  the Establishment Order dated 21.1.1997 is illegal, arbitrary and discriminatory as the senior selection board was wrongly constituted by the  respondent No.  1-Delhi Development Authority (for short &#8216;DDA&#8217;) and it was in  contravention  of the recruitment regulations. It was also contended before  this Court by the learned Counsel for the petitioners that for the same post the constitution of DPC is provided in column 12 of the said Regulation,  which includes:\n<\/p>\n<pre>       Vice-Chairman, DDA                 - Chairman\n     Finance Member, DDA                - Member\n     One Expert on planning to\n     be nominated by Ministry\n     of Works Housing                   - Co-opted Member\n     Secretary, DDA                     - Member\n     Director (Personnel), DDA          - Member\n \n\n\n<\/pre>\n<p>3.   Mr. Gupta has contended that on the basis of the constitution of  DPC, having been provided under column 12 of the Regulations, the senior  selection board ought to have consisted of the members as mentioned in the  said Schedule. Mr. Gupta has contended that, as a matter of fact, in the  senior selection board the provision is provided for the inclusion as a member  of a Joint Secretary\/Director (DD) from Ministry of Urban Affairs and  Employment,  however,  contrary to the said provision, one  Mr.  S.P.S.  Parihar, Deputy Secretary Ministry of Urban Development in the pay scale, which  was lower than the post for which selection was to be made, participated in the interview as a member of selection board. Mr. Gupta has contended that  the participation of Mr. Parihar in the selection board has vitiated the recommendation of the selection board. Another point on which the recommendation of  the selection board has been challenged by Mr. Gupta is the  participation  of one Mr. A.P. Konvinde. Counsel for  s  has  contended that  as  per the practice followed by the  respondents,  senior  selection board  to  select  a suitable candidate for  the  purpose  of  Commissioner (Planning) comprises of the following:\n<\/p>\n<pre>       (i)       Vice-Chairman, DDA       - Chairman\n     (ii)      Finance Member, DDA      - Member\n     (iii)     Engineer Member, DDA     - Member\n     (iv)      Jt. Secretary\/Director (DD)   - Member\n               Ministry of Urban Affairs\n               and Employment\n     (v)       Shri EFN Riberio, Former\n               Chief-Planner, TCPO &amp; \n               Former Commissioner \n               (Planning) DDA           - Expert\n     (vi)      Shri Mesh Ram,\n               Chief Planner, TCPO      - Expert\n     (vii)     Commissioner (Personnel)\n               DDA                      - Member\n                                          Secretary\n \n\n\n<\/pre>\n<p>4.   Mr.  Gupta, therefore, has contended that absence of the Joint  Secretary\/Director (DD) on the panel of selection board and participation of Mr. Parihar, who was Deputy Secretary as well as participation of Mr.  Konvinde in the Selection Board has vitiated the selection of respondent No. 2.\n<\/p>\n<p>     The  third limb of the arguments of the learned Counsel for the  petitioner  was that Mr. Konvinde was not even qualified planner, who  was  allowed to participate as third expert on planning. He has contended that Mr. Konvinde was not a post graduate in town\/city\/urban planning and had  close connection  with the candidate, who was actually selected and had  personal commercial interests in the DDA and in support of his arguments, Mr.  Gupta has cited the case of Raj Kumar &amp; Others Vs. Shakti Raj &amp; Others, .\n<\/p>\n<p>5.   On  the other hand, Mr. Ravinder Sethi, learned Counsel appearing  for the  respondent  No.  1-DDA, has contended that the  Vice-Chairman  of  the respondent No. 1-DDA with the approval of Lt. Governor of Delhi inducted an additional expert, i.e. Mr. Konvinde, from M\/s. Konvinde Raj &amp; Chowdhary in the Selection Board. According to the respondent No. 1, Mr. Konvinde was  a known reputed and distinguished professional in the field of  architecture, planning  and  urban  design and enjoys considerable national  as  well  as international fame.\n<\/p>\n<p>     As a matter of fact, the Court directed the Vice-Chairman, DDA to file an additional affidavit as to in what circumstances, Mr. Konvinde was added in the selection board. Pursuant to the directions of the Court  additional affidavit  was  filed on behalf of Mr. P.K. Ghosh, Vice-Chairman,  DDA  and this  is  how  he has dealt with this aspect in para-6  of  the  additional affidavit:\n<\/p>\n<p>     &#8220;That  the  deponent  was appointed as  Vice-Chairman,  DDA  vide      Government Order dated 3.1.1997. The deponent had taken over  his      appointment  as Vice-Chairman of the DDA on 16th  January,  1997.      The selection to the post of Commissioner (Personnel) was  scheduled to be held on 20.1.1997. The deponent had come from  Ahmedabad and did not know any one in the Delhi Development  Authority. The  deponent had thought it fit in these circumstances  to  have another expert Shri A.P. Konvinde, an Architect of M\/s.  Konvinde Rai &amp; Chowdhary also included as one of the experts in the Selec-tion Panel. Mr. A.P. Konvinde is known reputed and  distinguished person in the field of architecture planning and urban design who enjoy  considerable national and international fame. The copy  of the  Govt. order dated 3.1.1997, charge-report  dated  16.1.1997, and Establishment Order of the Personnel Branch of the DDA  dated 16.1.1997 are annexed hereto and marked as Annexures-R1, R2 &amp;  R3 respectively.&#8221;\n<\/p>\n<p>6.   However, the deponent on enquiry was informed that Shri E.F.N.  Rebeiro,  one of the experts was an ex-employee of the DDA and deponent  keeping in  view  all  the circumstances felt proper to  have  another  independent expert on the selection panel. It was in these circumstances that Shri A.P.Konvinde  was invited to be a member of the Selection Board consists  of  8 members  including three experts. After Selection Board had  recommended  a panel  of  three  persons in order of merit for the  post  of  Commissioner (Planning). The file and also the records were sent to the Lt. Governor  of Delhi and it was put up in the note that Shri A.P. Konvinde was also called as expert with the approval of the deponent herein and approval in  respect thereto was sought from the Lt. Governor. The Lt. Governor gave his approv-al on 20.1.1997 itself. That there were no mala fide in respect of  includ-ing  Shri  A.P. Konvinde in the Selection Board as also  in  the  selection process. The decision of the Selection Bord was unanimous.\n<\/p>\n<p>7.   With regard to the contention of the petitioners that a Deputy  Secretary,  Mr. Parihar, participated in the said selection board, the stand  of the respondent was that a request was sent to Ministry of Urban Affairs  to nominate  one Joint Secretary\/ Director (DD) for the said  Selection  Board and the Ministry nominated Shri S.P.S. Parihar, Deputy Secretary to participate  in  the said Selection Board on behalf of Ministry vide  its  letter dated  17.1.1997.  The copy of the same has also been filed on  record.  In view  of  the aforesaid contention, learned Counsel appearing for  the  respondent has contended that no favouritism was shown to the respondent  No. 2  by bringing in Mr. S.P.S. Parihar or Mr. A.P. Konvinde in the  Selection Board.\n<\/p>\n<p>8.   Learned  Counsel  for the respondent has further  contended  that  the power  of  recruitment by promotion was first considered but  none  of  the Additional  Commissioner including petitioners were found eligible  on  ac-count  of non-completion of two years service in the grade as  provided  in Regulation.  As none of the departmental officers were found  eligible,  it was  decided  by  the Chairman, DDA to fill up  the  post  of  Commissioner (Planning)  by  way  of direct recruitment and accordingly  said  post  was advertised  by a Press Note dated 3.12.1996. It would be evident  from  the noting  on the file of the respondent that, as a matter of fact, it was  in order  to accommodate the petitioners direct recruitment was  resorted  to. The  note  of the then Vice-Chairman dated 26.12.1996 is to  the  following effect:\n<\/p>\n<p>     &#8220;The  post of Commissioner (Plg.) would fall vacant in the  month      of January when Shri Arun Mhaisalkar would revert back to  CIDCO.      We,  therefore, need to fill up the post of  Commissioner  (Plg.)      early.\n<\/p>\n<p>     2.   As pointed out by Commissioner (Pers.) in his note on  prepage, this post cannot now be filled up by promotion as the  three  Addl.  Commissioners (Plg.) have not yet completed two  years  in  their grade. The post of Commr. (Plg.), therefore, would need  to be filled up on deputation\/direct recruitment basis.\n<\/p>\n<p>     3.   As  was suggested by L.G., I checked up with Shri Mesh  Ram, Chief  Town  Planner,  TCPO; he is not willing to  a  shift  from Central  Organisation  to DDA. I also discussed the  matter  with Secretary  (UD),  who suggested the name of Shri  R.C.  Aggarwal, Chief  Regional Planner, NCR Planning Board. A copy of  the  bio-data  of  Shri Aggarwal is placed opposite. He has  a  very  good reputation, both as a professional as well as a manager. No other person appears to be in sight. Under the circumstances, we  shall need  to evaluate the case of Shri Aggarwal vis-a-vis  our  three Addl. Commissioner (Plg.) who possess more or less equal  experi-ence and qualifications and are also eligible for appointment  on direct  recruitment  basis. This evaluation can best be  done  by inviting applications through open advertisement as was done last time  when  we selected Shri Arun Mhaisalkar to be  appointed  on deputation basis.\n<\/p>\n<p>     In view of the above, L.G. may kindly approve our initiating  the process of direct recruitment to the post of Commr. (Plg.) <\/p>\n<p>     Sd\/  <\/p>\n<p>     (Anil Kumar) <\/p>\n<p>     Vice-Chairman, <\/p>\n<p>     26.11.96<br \/>\n      L.G.                               All right.\n<\/p>\n<p>     (in c.c.)<\/p>\n<p>     Sd\/ <\/p>\n<p>     27.11.96 <\/p>\n<p>     (P.K. Dave) <\/p>\n<p>     Lieut. Governor <\/p>\n<p>     Delhi.\n<\/p>\n<p>9.   Controverting  the argument of the petitioners that respondent  No.  2 was not eligible for consideration for the post of Commissioner  (Planning) as  respondent No. 2 was not Additional Commissioner but was only  Director (Planning),  respondent  has contended that in the direct  recruitment  re-spondent   No.  2  was  eligible  to  be  considered  as  per   Recruitment Regulation  .  It was further contended that respondent No. 2  as  well  as petitioners who were holding the post of Director (Planning) and Additional Commissioner (Planning) respectively were within the same grade of pay i.e. Rs.  4500-5700. Lastly, it was contended on behalf of the  respondent  that having  participated  in the interview without any demur  and  protest  the petitioners  cannot now turn round and challenge the selection by the  same Selection  Board before whom they have also taken their chances for  selection and in this connection, Counsel for respondent has cited Dr. G.  Sarna Vs. University of Lucknow &amp; Ors.,  and Madan Lal &amp; Ors. Vs. State of J&amp;K &amp; Ors., .\n<\/p>\n<p>10.  I  have given my careful consideration to the submissions advanced  by the learned Counsel appearing for both the parties. The Recruitment Regulations provided the procedure for filling up the post by transfer on deputation\/promotion failing which by direct recruitment. In the present case, as per the stand of the respondent, they first tried the first method i.e.  by promotion.  Petitioners, who have not completed two years in  their  grade, were  not eligible for being considered to the post of Commissioner  (Planning),  therefore, the challenge of the petitioners that  respondents  have directly gone for direct recruitment is wrong. From the perusal of the file of the respondent, it has also been seen that the respondent wanted to fill up the post by transfer on deputation also. In the note dated 26.11.1996 of the  Vice-Chairman  of  the respondent No. 1-DDA, it is  recorded  that  as suggested by the Lt. Governor, it was checked up that Shri Mesh Ram,  Chief own  Planner, TCPO was not willing to shift from Central  Organisation  to DDA. The matter was further discussed with the Secretary, Urban Development who  suggested the name of Shri R.C. Aggarwal, Chief Regional Planner,  NCR Planning  Board. However, at that stage the other three Additional  Commissioners  (Planning)  were  also considered for  the  post  of  Commissioner (Planning), who were possessing more or less equal experience and  qualifications and were also eligible for appointment on direct recruitment basis. It  was thought and considered that they should also be given a  chance  to participate through open advertisement. No mala fide could be attributed to this  act  of  the respondent as it was with the intention  of  giving  the petitioners  a fair chance to be evaluated and considered by the  selection board  for appointment to the post of Commissioner (Planning). Pursuant  to the  advertisement, the petitioners participated in the process  of  selection,  having  failed in the selection after taking their chances  can  the petitione  maintain this petition ? The Selection Board met on  20.1.1997 and  interviewed the petitioners and the petitioners were not found fit  by the  Selection  Board.  Petitioners cannot be permitted  to  challenge  the composition of selection board and appointment made pursuant thereto.\n<\/p>\n<p>11.  The authorities cited by the learned Counsel for the petitioners, i.e. S.S.  Sodhi Vs. State of Punjab &amp; Ors., (supra) and Gujarat  Housing  Board Engineers  Association &amp; Anr. Vs. State of Gujarat &amp; Ors.  (supra),  cannot help the case of the petitioners. There cannot be any dispute to the proposition of law as enunciated by the Supreme Court in the aforesaid  authorities. Question is whether the petitioners who took chance to get themselves selected  by  the Selection Board having find  themselves  not  successful, whether they can initiate this petition. Supreme Court in Madan Lal &amp;  Ors. Vs. State of J&amp;K &amp; Ors.&#8217;s case (supra) dealt with same question and held:\n<\/p>\n<p>     &#8220;Before  dealing with this contention, we must keep in  view  the salient  fact  that  the petitioners as well  as  the  contesting successful  candidates being respondents concerned  herein,  were all found eligible in the light of marks obtained in the  written test, to be eligible to be called for oral interview. Up to  this stage  there is no dispute between the parties.  The  petitioners also  appeared  at the oral interview conducted  by  the  Members concerned  of the Commission who interviewed the  petitioners  as well as the contesting respondents concerned. Thus the  petition-ers  took  a chance to get themselves selected at the  said  oral interview.  Only  because they did not find  themselves  to  have emerged successful as a result of their combined performance both at  written test and oral interview, they have filed  this  peti-tion.  It is now well settled that if a candidate takes a  calculated chance and appears at the interview, then, only because the result  of the interview is not palpable to him, he cannot  turn round and subsequently contend that the process of interview  was unfair  or the Selection Committee was not properly  constituted. In the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination  with-out protest and when he found that he would not succeed in exami-nation he filed a petition challenging the said examination,  the High Court should not have granted any relief to such a petition-er.&#8221;\n<\/p>\n<p>12.  Even  in Dr. G. Sarna Vs. University of Lucknow &amp; Ors.&#8217;s case  (supra) Supreme Court held:\n<\/p>\n<p>     &#8220;We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real  likelihood  of bias as despite the fact that the appellant  knew  all<br \/>\nthe relevant facts, he did not before appearing for the interview or  at  the time of the interview raise even  his  little  finger against the constitution of the Selection Committee. He seems  to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is  not now open to him to turn round and question the  constitu-tion  of the Committee. This view gains strength from a  decision of  this Court in Manak Lal&#8217;s case where in more or less  similar circumstances,  it was held that the failure of the appellant  to take  the identical plea at the earlier stage of the  proceedings created  an  effective bar of waiver against him.  The  following observations made therein are worth quoting:\n<\/p>\n<p>     &#8220;It  seems  clear that the appellant wanted to take a  chance  to secure a favourable report from the Tribunal which was constitut-ed and when he found that he was confronted with an  unfavourable report,  he adopted the device of raising the  present  technical point.&#8221;\n<\/p>\n<p>13.  Petitioners can be non-suited on this score alone that they have taken their  chances  before the Selection Board have appeared  and  after  being unsuccessful  have challenged the appointment of respondent No. 2 and  have challenged the constitution of the Selection Board. Having taken chance  to participate  in  the Selection Board, the petitioners are now  estopped  to challenge the constitution and result thereof. From the additional  affidavit  filed by the Vice-Chairman, DDA, I have no hesitation in holding  that induction of Mr. A.P. Konvinde in the Selection Board was neither mala fide nor arbitrary. The reliance placed by the learned Counsel for the petitioners on the constitution of DPC has no relevance for the constitution of the Selection  Board which in this case was done by the Chairman of  respondent No.  1-DDA,  who happens to be the Lt. Governor Delhi and who was  the  Appointing Authority of the post. Even otherwise, for the previous  Selection Board sometimes 7, sometimes 8 persons wer ers of the Selection Board  as  per the documents filed on record by the respondent  along  with their counter affidavit. Petitioners did not bring on record any  statutory rule  or  regulation restricting the power of Appointing Authority  in  the matter  of constitution of Selection Board which puts fetters on the  power of  Chairman, DDA not to have three experts but only two. I do not see  any infirmity in the impugned order of, appointment of respondent No. 2.\n<\/p>\n<p>     For  the reasons stated above, the writ petition is dismissed with  no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Chandra Ballabh &amp; Anr. vs Delhi Development Authority &amp; &#8230; on 18 December, 1998 Equivalent citations: 1999 IIAD Delhi 838, 77 (1999) DLT 327, 1999 (48) DRJ 23 Author: V Jain Bench: V Jain JUDGMENT Vijender Jain, J. 1. Two writ petitioners aggrieved by the selection of respondent No. 2 to the [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-85322","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Chandra Ballabh &amp; Anr. vs Delhi Development Authority &amp; ... on 18 December, 1998 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandra-ballabh-anr-vs-delhi-development-authority-on-18-december-1998-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandra Ballabh &amp; 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