SHAILENDRA PATHAK Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) By this writ petition under Art. 226 of the Constitution of India, the petitioner/Sh. Shailendra Pathak seeks appointment to the post of Assistant Registrar with the respondent no.2/University of Delhi. Petitioner seeks appointment to the post of Assistant Registrar with the respondent no.2/University of Delhi under the Persons with Disabilities (PWD) quota. Also, it is not that the petitioner seeks appointment to the post under the PWD quota on the ground that he has been wrongly not selected, because petitioner admits that the respondent no.5/Sh. Pradeep Kumar who has been appointed in the PWD quota has received more marks i.e 276 marks whereas the petitioner has obtained 268 marks, but what the petitioner pleads and argues is that the respondent no.5/Sh. Pradeep Kumar though he only applied for the post of Assistant Registrar in the PWD category, and was selected in the PWD category, respondent no.5/Sh. Pradeep Kumar was also otherwise an OBC person, and though respondent no.5/Sh. Pradeep Kumar did not apply as an OBC candidate, yet respondent no.5/Sh. Pradeep Kumar should be selected to the post of Assistant Registrar not in the PWD category but in the OBC category inasmuch as the person selected in the OBC category namely respondent no.4/Sh. Prashant Nagar received more marks than the general category candidate who got selected and accordingly once respondent no.4/Sh. Prashant Nagar is appointed as a general category candidate, the OBC post to which respondent no.4/Sh. Prashant Nagar is appointed will get vacated for the appointment of respondent no.5/Sh. Pradeep Kumar who has been selected in the PWD category, and therefore, since a post gets vacant in the PWD category on vacation of the same by respondent no.5/Sh. Pradeep Kumar, the petitioner hence should be appointed to the post of PWD category of Assistant Registrar with the respondent no.2/University of Delhi. I would like to simplify the aforesaid issue raised by the petitioner by simply stating that the petitioner states that respondent no.4/Sh. Prashant Nagar who applied for and is selected in the OBC category should be taken as selected in the general category because respondent no.4/Sh. Prashant Nagar has received more marks than the selected candidate in the general category, and that simultaneously what then should happen is that respondent no.5/Sh. Pradeep Kumar who is the selected candidate in the PWD category (and though he only had applied as PWD category and not as OBC category) is also an OBC person, respondent no.5/Sh. Pradeep Kumar should be shifted to the post of Assistant Registrar to the OBC category which respondent no.4/Sh. Prashant Nagar will vacate on being appointed as a general category candidate, and therefore, petitioner is entitled to the post of Assistant Registrar in the PWD category because the post of PWD category which has been given to respondent no.5/Sh. Pradeep Kumar will fall vacant.

(2.) Learned counsel for the petitioner in support of his arguments states that since there has been a common selection process i.e common written test and interview on the same date taking place of all the three posts of Assistant Registrar with the respondent no.2/University of Delhi in the three categories of PWD, OBC and general, hence, merger and automatic shifting from the post of OBC to general and PWD to OBC must take place. I may clarify that two advertisements were issued with the first advertisement which was issued on 30.9.2009 was only for one post of Assistant Registrar under the PWD category and the second advertisement dated 13.4.2010 was for two posts of Assistant Registrar under the OBC category and the general category i.e there was a separate advertisement for the two posts of Assistant Registrar dated 13.4.2010 for general and OBC category and another earlier advertisement dated 30.9.2009 for the post of Assistant Registrar in PWD category, but the written test took place together of all the three posts as also interview process for all the three posts of the Assistant Registrars was conducted on the same date.

(3.) Learned counsel for the petitioner in support of his arguments places reliance upon the observations of the Supreme Court made in para 4 of the judgment in the case of R.K. Sabharwal and Others Vs. State of Punjab and Others (1995) 2 SCC 745 along with Rule 17 of the Gazette notification dated 25.2015 of the Ministry of Personnel, and it is accordingly argued that there has to be automatic shifting i.e thus the appointment of the selected candidate in the post of OBC category should take place in the general category and there is no option in respondent no.4 /Sh. Prashant Nagar deciding/having an option whether or not to continue his appointment in the OBC category to which he had applied and was selected, and that respondent no.4/Sh. Prashant Nagar must automatically shift for appointment to the general category as he has received more marks than the candidate selected in the general category. Learned counsel for the petitioner in support of the argument with respect to the result of all three posts of Assistant Registrars having to be common and lateral shifting to take place between such posts once there is a common admission test and common selection process, relies upon the Division Bench judgment of this Court in the case of Amit Singhal & Ors. Vs. The Chairman, DSSSB & Anr. in W.P.(C) No.3603/2010 decided on 26.5.2010.