Full Judgment
Sudhir Kumar, Member (A):
The applicant was a candidate for appointment in the Delhi Police, against the post of Constable (Exe) Male, and cleared the physical and written examination conducted for recruitment in the year 2009. However, later his candidature for the post of Constable (Exe.) Male was cancelled by the Deputy Commissioner of Police, Recruitment Cell, Delhi, on behalf of Commissioner of Police. The applicant represented against that on 29.04.2011, but the respondents have through their order dated 17.06.2011 rejected his appeal/representation also, through Annexure A-1, page 19 of the OA. Hence the applicant is before us with the following prayers:-
“a) Direct the respondents to withdraw their orders of cancellation of the candidature of the applicant as Constable (Exe.) Male in Delhi Police and grant him an appointment of constable in Delhi Police;
b) Direct the respondents to grant him the appointment from the back date as that of his other counterparts/batchmates;
c) Grant all consequential relief(s) to the applicant relating to the issue;
d) Award cost of the proceedings in favour of the applicant and against the respondents;
e) To pass any such other order(s) as this Honble Tribunal may deem fit and proper in the interest of justice and in favour of the applicant.
2. The applicant had been assigned a Roll Number for the said test conducted for the recruitment for the year 2009, and he first cleared physical test prescribed, and later on cleared the written examination also. Thereafter, he was called on 18.06.2010, to appear for the verification of his documents in original, through Annexure A-2 page-20 of the OA dated 25.05.2010. The applicant, apparently, did not attend for verification of the documents on the appointed date of 18.06.2010. Thereafter, the respondents issued another letter to him on 18.10.2010 (Annexure A-3), page 21 of the OA, again directing him to appear on 26.10.2010 for verification of his original documents, and to collect the offer of appointment with regard to his joining. The applicant has stated in Para 4.6 of his OA that as luck would have it, he had fallen ill with a stroke of typhoid, and later he got typhoid relapsed, and, therefore, could not reach at the designated and stipulated place, date and time, for verification of his original documents, either on 18.06.2010, or four months later on 26.10.2010, or on 28.10.2010, in respect of which a telegram had been sent to him. The applicant has submitted that on 14.06.2010, his father had approached the office of Recruitment Cell, and had submitted an application in writing, explaining the facts and circumstances of the illness of the applicant, but the application given by his father was not acknowledged, and no receipt was given to his father in this regard, despite a request.
3. As per Para 4.8 of the OA, the applicant subsequently received a Show Cause Notice on 04.03.2011 for cancellation of his candidature, issued through the letter dated 25.02.2011 (Annexure A-4), asking him to show cause as to why his candidature for the above said post should not be cancelled, and that his reply should reach within 10 days, failing which it will be presumed that he had nothing to say in his defense, and his candidature will be cancelled. The applicant has submitted that he had remained under treatment for typhoid at a private hospital, at Rewari in Haryana, from 14.06.2010 to 05.03.2011, which he has sought to prove through the prescriptions dated 17.06.2010, 18.06.2010 and the blood test report dated 18.06.2010 produced by him through his representation dated 07.03.2011, which was given in response to the said Show Cause Notice dated 25.02.2011 (Annexure A-4). However, the respondents did not accept his explanation, and did not consider his reply dated 07.03.2011 as tenable, and cancelled his candidature for the said post through their order dated 22.03.2011 (Annexure A-6).
4. The applicant thereafter gave another representation by way of an appeal against the said order on 29.04.2011 (Annexure A-7), in response to which the impugned Annexure A-1 dated 17.06.2011 has been issued.
5. The applicant has taken the ground that his candidature has been rejected arbitrarily, and in violation of principles of natural justice, as many of the candidates, who had joined subsequent to the prescribed dates of joining, have been allowed to join in the service, and that the respondents have adopted a pick and choose policy in his case, which is contrary to the Articles 14 and 16 of the Constitution of India.
6. The applicant has further taken the ground that the cancellation of his candidature is not in consonance with the statutes and rules, and nothing has been laid down in the Recruitment Rules to state that the candidature of the candidate would be cancelled despite unavoidable circumstances of serious illness, which prevented him from joining and collecting the offer of appointment, and that the genuine ground of the illness of the applicant has been discarded by the respondents, without any rhyme and reason. He has further taken the ground that while issuing the Show Cause Notice and the order dated 22.03.2011, the respondents have wrongly presumed and speculated that the applicant is not interested in joining and collecting his offer of appointment, and in the process of cancelling his candidature, they have wielded discretionary powers not provided for in the Recruitment Rules, because of which their orders are ultravires and against the principles of natural justice and fair play. He has further assailed the impugned order on the ground that it is not a speaking order, and no explanation has been given as to how and why the medical certificate of his illness had been turned down. He has, therefore, prayed that the OA be allowed, and made the prayers as already reproduced above.
7. Respondents filed their counter reply on 03.01.2012, and the applicant thereafter filed his rejoinder on 16.03.2012.
8. In their counter reply, the respondents submitted that when the applicant failed to turn up on 18.06.2010, with all the original documents, and to collect the offer of appointment letter for joining the post in response to the letter dated 25.05.2010, a telegram was issued to him on 17.06.2010, but still the applicant did not appear. Later on, he had submitted an application that due to illness he could not join the Department, and had requested to be allowed to join with the next batch. Thereafter, he had also been issued another letter dated 18.10.2010 (Annexure A-3) for joining on 26.10.2010 but again he could not collect the offer of Appointment Letter, and as a result his candidature had to be cancelled.
9. The respondents have further pointed out that the Medical Certificate has been submitted in respect of his illness in the month of June, 2010, and that was considered, with the revised directions being issued to him to report in Recruitment Cell on 26.10.2010, for joining training with the next batch. When he failed to report for joining with the next batch also, a Telegram was also sent to him on 28.10.2010, but he still again failed to collect the offer of Appointment Letter for joining training with the next batch. They have further justified their actions by saying that a proper Show Cause Notice was also issued to the applicant to give him an opportunity of personal hearing as to why his candidature for the post of Constable (Exe.) Male should not be cancelled, but since he had already been given opportunities twice for joining in Delhi Police, and he had failed to join the training, as such, considering all the facts and circumstances, his candidature was cancelled through order dated 22.03.2011, which was perfectly legal and justified, and gave the reasons in sufficient detail for the rejection of his candidature. Therefore, they had prayed for the OA to be dismissed with heavy costs.
10. In his rejoinder filed on 16.03.2012, the applicant annexed a copy of the Standing Order No.212/2009 regarding Recruitment of Constables (Executive) of Delhi Police, and also produced copy of the reply received by him in response to an RTI query, giving a list of successful candidates of the Recruitment years 2007, 2008 and 2009 (PH), who were allowed to join in the year 2011, and also a list of six other candidates, who were entertained and allowed to join with the next batch, and another list of candidates who had joined on 10.10.2011, including those who had cleared the examination in the years 2007,2008 and 2009. He, therefore, submitted that the cancellation of the candidature of the applicant is not legal and justified, and that the respondents have adopted an indifferent attitude towards his illness, and have not adopted a humane attitude, and rather took unilateral, biased and indiscriminate action.
11. It was further submitted that the relevant Standing Order has been issued by the respondents themselves, and when in many other cases candidates have been allowed to join late, and 163 candidates of his batch were also allowed to join on 10.10.2011, it is strange that the respondents have not allowed him to join, since there is no mention of any time frame or limitation at any stage in the Recruitment Rules of the Constables of Delhi Police, as given in the Standing Order No.212/2009. He further submitted that the respondents cannot be allowed to arrive at the presumption that the applicant was not interested in joining, and that the discretionary powers of the respondent authorities should be exercised with reasonableness and within the bounds of statutes, and within the bounds of the rules prescribed in this regard.
12. He further submitted that the order of cancellation of his candidature is not a speaking one, as it nowhere mentions that his illness endorsed with medical certificate was either considered or not considered by the respondents, and, therefore, again prayed that the impugned order be quashed, and that he may be allowed to join service, and that the seniority be maintained above and below the names where the name of the applicant appeared in the list of selected candidates in the relevant year.
13. Heard. We have given our anxious consideration to the facts of the case. As is apparent from the records, and not denied by the respondents also, that in respect of the first date given to the applicant for joining on 18.06.2010, he has been able to produce medical records from a private hospital regarding his suffering from typhoid fever. Therefore, the applicant having not reported on 18.06.2010 to collect the offer of appointment and verification of documents cannot be held against him. The only thing that can be held against the applicant is his failure to attend on the second opportunity, which was granted to him on 26.10.2010 for verification of documents and for collection of the Appointment Letter, as per the letter dated 18.10.2010 issued by the respondents. The respondents have also issued a Show Cause Notice as per procedure, and considered his representation before passing the order dated 22.03.2011, by which his candidature was originally cancelled.
14. Strictly speaking under law, the scope of judicial review of such administrative decisions is very limited.
15. In the case of ‘Chief Constable of the North Wales Police vs. Evans : (1982) 3 ALL E.R. 141, Lord Haltom observed as follows:-
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court”.
16. The powers of the Tribunal are bound by the comments of the Honble Apex Court in Divisional Manager Aravali Golf Club and Another Vs. Chander Hass and Anr. : (2008) 1 SCC 683, in which the Honble Apex Court had an occasion to state that the powers of judicial review are limited, and must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. The judicial activism has to be resorted to only in exceptional circumstances, with in-built limitation.
17. Further, it has been held by the Honble Apex Court in the case of Biswa Ranjan Sahoo and Ors. vs. Sushanta Kumar Dinda and Ors.: AIR 1996 SC 2552, judicial review is normally not concerned with correctness of the decisions, but if the decision making process is held in such circumstances which so warranted, the decision itself will form the subject matter of consideration.
18. It has also been held that the Courts and Tribunal cannot decide the cases on the basis of compassion, against the law. We do not find anything technically wrong with the orders as passed by the respondents in this case. However, the fact remains that once the respondents have accepted that the applicant could not be present on the first occasion on 18.06.2010 on account of his illness, they cannot hold that first absence of the applicant on 18.06.2010 against him. Therefore, it is only his absence/failure to appear on 26.10.2010, which can be held by the authorities to be against him. Perhaps, the applicant was entitled to more compassion at the hands of the respondents, before they rejected his candidature in the manner in which has been done. Also, there is nothing prescribed in the Standing Order No. 212/2009 as to how many such opportunities can be granted to an applicant.
19. Therefore, while it is held that the applicant is not entitled to grant the reliefs, as prayed for by him, on any legal grounds, in response to his prayer at Para 8(e), in the interest of justice, the respondents are directed to consider the case of the applicant once again, recognizing the fact that they have admitted that he had actually failed to avail of only one effective opportunity on 26.10.2010 to present himself before them for verification of the documents and collection of offer of appointment.
20. With these directions, in response to the prayer of the applicant in Para-8 (e), the OA is partially allowed, but there shall be no order as to costs.