JUDGMENT Vijender Jain, J.
1. Rule.
2. The petitioner had registered his name with the Employment Exchange, Delhi which sponsored the name of the petitioner to the Municipal Corporation of Delhi for appointment to the post of Junior Engineer (Civil). Petitioner was asked by respondent/MCD to send all his testimonials and experience certificates to the respondent/MCD. On 15th July, 1996 petitioner submitted all his testimonials and certificates with the respondent. When the petitioner did not hear anything from the respondent/MCD he made representation as to why the case of the petitioner was not considered in spite of the fact that person who has secured less percentage than the petitioner was considered and appointed. The petitioner filed the writ petition being C.W. 1105/97. The Court disposed of the writ petition issuing direction to the respondent/MCD to appoint the petitioner to the post of Junior Engineer. The Court recorded that original documents were submitted for verification to the respondent on 14.8.1997. In spite of submitting the original documents, the respondents have not considered and appointed the petitioner to the post of Junior Engineer (Civil) although the name of the petitioner was shown in the merit list at Serial No. 21. In the said writ petition it was observed as under:
"It is the case of the petitioner that even though the petitioner has fulfillled the criteria laid down by the respondent still in an arbitrary, discriminatory and illegal manner, the respondent has not appointed the petitioner as Junior Engineer (Civil). Various opportunities were granted to the respondent to verify the documents filed by the petitioner. On 12.03.1998 at the request of counsel for the respondent time was granted to the respondent to verify the original documents submitted by the petitioner and report back the matter to the court. Nothing was done by the respondent. Again on 10.7.1998 time was sought by the respondent to verify the original documents again by the petitioner to the respondent. On 5.8.98 again last opportunity was granted for the purpose of verification of the original documents submitted by the petitioner with the direction that the report thereof be submitted to this Court. In spite of that nothing has been done by the respondent."
3. The argument in the said petition raised by the counsel for the respondent was that original documents were not submitted by the petitioner at the time of submission of the application form. However, Court took the view that those documents were submitted by the petitioner pursuant to the order passed by the Court. Several opportunities were granted to the respondent to verify the documents submitted by the petitioner but the respondent neither verified the documents submitted by the petitioner nor submitted any report to the Court. Therefore, the Court allowed the writ petition and issued direction to the respondent to appoint the petitioner as Junior Engineer (Civil) from the date he was entitled to with all benefits. Aggrieved by the said order respondent/MCD filed LPA No. 118/99 which was decided on 24.4.2001. In paragraph 7 of the said judgment, the Division Bench observed as under:
"On a careful consideration of the entire matter, we feel that the MCD has not considered the case of the respondent in its correct perspective. As noted above, after the rejection of respondent's representation on 25th April, 1997 on the ground that he lacked sufficient experience, the respondent had moved an application for revival of the writ petition. The main ground for revival was that though the respondent had filed the requisite experience certificates, including for the period from 16th April 1994 to 31st January, 1996, which was stated to be not available on MCD's record, the MCD had failed to take the same into account. Accepting the prayer, the writ petition was revived and the MCD was time and again directed to verify the documents and submit its report to the Court. Till the last date, when the impugned order was passed, time was being sought by the MCD to verify these documents. Even according to its afore-extracted reply affidavit, the case of the respondent was under process for consideration, but, as noticed in the impugned order, the MCD did not verify the documents submitted by the respondent. In our view, after the revival of the writ petition, vide order dated 24th January, 1997, which order was not challenged by the MCD, and in the light of various orders passed subsequently, the MCD was obliged to examine the stand of the respondent taken in the revival application and verify the genuineness of certificates produced and filed in response to MCD's letter dated 1st August, 1997."
4. In paragraph 9 of the said order, Division Bench observed that directions issued by this Court were not complied with in letter and spirit. However, in paragraph 10, the Division Bench relying upon the judgments of Supreme Court in State of Mysore v. Syed Mahmood , State of Mysore v. C.R. Seshadri & ORs. and State Bank of India & ORs. v. Mod. Mynuddin set aside the judgment of the Writ Court and sent the matter for reconsideration of the respondent/MCD in the light of respondent's stand in CM. 4165/97 and the documents furnished by the petitioner in response to MCD's letter dated 1st August, 1997 within two months from the date of the judgment of the Division Bench which was passed on 24th April, 2001.
5. From the perusal of the counter affidavit and the documents placed on record what has been done by the respondent is clearly in gross violation of the order passed by the Division Bench. It seems that although the respondent understood the intent of the Division Bench's order as respondent itself has observed that the case of the petitioner was to be reconsidered in the light of its stand in C.M.4165/97 and the documents furnished by the petitioner in response to MCD's letter dated 1.8.1997, but from the nothings at page 147 of the paper book it is evident that what they were considering were not the documents filed as per averments in C.M. 4165/97 but reiterating its earlier stand, same shows scant respect respondents have for Court ordeRs. It was an excuse to hoodwink the Court and lip sympathy to the order passed by the Division Bench of this Court. To deal with this kind of attitude in spite of specific directions having been passed by the Division Bench to consider the matter in terms of C.M. 4165/97, Supreme Court in Badrinath v. Government of Tamil Nadu & ORs. held as under:
" We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interest of justice in extraordinary cases cannot be doubted. In Controller and Auditor General of Indid v. K.S. Jagannathan, such a power on the part of this Court was accepted by a three Judge Bench. Madon, J. referred to the observations of Subba Rao, J. ( as he then was) in Dwarkanath v. ITO, : wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to 'reach justice wherever found necessary' and ' mould the reliefs to meet peculiar and complicated requirements of this country'. Justice Madon also referred to Mayor of Rochester v. Regina, 1858 EB and E 1024, Kind v. Revising Barister for the Borough of Hanley, (1912) 3 KB 518 Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 1997 and to a passage from Halsbury's Laws of England, 4th Ed. Vol.1, p.59. Finally Madon, J. observed (Para 20 of AIR and Lab IC):
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or have wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
6. We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three Judge Bench in B.C. Chaturvedi v. Union of India regarding disciplinary cases. Verma, J. (as he then was) observed (at p. 782, para 19\8) as follows:
".... The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellant authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
7. Squarely applying the ratio of Badri Nath's case (supra), I have to consider whether it is a fit case where this Court should issue a mandamus or again sent back the matter to the respondent. The first writ petition being C.W.1105/97 was filed by the petitioner in the year 1997. The said writ petition came up for admission on 14.3.97. On 25.3.1997, the learned Single Judge of this Court disposed of the said writ petition with the direction to the Administrative Officer of the respondent to consider the representation of the petitioner by a reasoned order within four weeks from the date of the receipt of the Court order. As nothing was done by the respondent, the petitioner filed an application being C.M. 416/97. Paragraph 10 & 11of the said application is reproduced below:
"10. That the writ petition which has been filed by the applicant had been disposed of vide order dated 25.4.1997 by this Hon'ble Court with the direction to the respondent to consider the case of the petitioner and to pass a reasoned order within four weeks from the date of receipt of the said order. The respondent vide office order dated 25.4.1997 has rejected the case of the petitioner owing false ground which even against the record of the respondent. The respondent has rejected the case of the applicant on the ground that the applicant has not submitted his experience certificate for the period w.e.f. 16.4.1994 to 31.1.1996. This fact is absolutely against the record and the details given by the applicant in his application form. A copy of the order dated 25.4.1997 is enclosed herewith as Annexure P-9.
11. That the reason given by the respondent in its order dated 25.4.1997 is absolutely false because the experience certificate of the applicant has not even been submitted by the applicant to the respondent Along with its application to the respondent but was also registered with the Employment Exchange and that is why after satisfying itself the Employment Exchange has sponsored for the post of J.E.(Civil). In fact the respondent even otherwise would have asked the applicant to submit the experience certificate if the same was misplaced by the respondent during scrutiny. It is further submitted that the applicant filed his experience certificates w.e.f.1.6.1993 to 15.4.1994 and 16.4.1994 to 31.1.1996 and 1.2.1996 to 14.7.1996 to the respondent and the copies of all the 3 experience certificates are also annexed to the writ petition as Annexure P-3 and P-4 respectively."
8. Reply to this application was filed. The respondent did not deal with the averments made in the paragraphs 10 & 11 of the said application except bald denial that the petitioner has submitted only two experience certificates. In last paragraph of para 7 of the said reply it was stated as under:
"Accordingly, a letter regarding verification of documents was written to Shri Ajay Kumar Jain vide office letter No. HC-II/Engg./Estt./97/1760 dated: 01.08.1997 in response whereof Shri Jain has shown his original documents and has also submitted the certified copies vide application dated 14.08.1997.
The cases of such candidates are however still under process."
9. Keeping this fact in mind the writ petition was disposed of on 22.10.1998. In the LPA No. 118/99 which was filed by the respondent, the Division Bench directed that the respondent has not considered the case of the petitioner in correct perspective as the main ground of revival in C.M.4165/97 was that though the petitioner had filed the requisite experience certificates including for the period from 16th April, 1994 to 31st January, 1996 which was stated to be not available on MCD's record, the MCD had failed to take that fact into account and after observing that MCD has not verified in spite of various opportunities granted by the Court, the MCD was directed to verify the genuineness of the certificates produced and filed in response to MCD's letter dated 1.8.1997. Nowhere the MCD has considered or verified the genuineness of the documents in terms of the order passed by the Division Bench. From 1997 we are in 2003. It is such an extra ordinary case where this Court cannot abdicate its constitutional responsibility by asking the petitioner to go back to the respondent for redressal of his grievances. After carefully considering the matter I am of the opinion that a Mandamus be issued commanding the respondent as the respondent has failed to reconsider the matter in spite of various opportunities having been granted to the respondent in the earlier writ petition as well as in spite of specific direction given by the Division Bench of this Court to consider the matter of the petitioner in its right earnestness. The case of the petitioner as set out in C.M.4165/97 for revival of the earlier writ petition is that the petitioner has given the details in the application form and the further averment of the petitioner that the experience certificate of the petitioner was submitted by the applicant to the respondent along with his application to the respondent not only to the respondent but the same was also registered with the Employment Exchange and that is why after satisfying itself the Employment Exchange sponsored the name of the petitioner for the post of Junior Engineer (Civil). It was further stated in paragraph 11 of the said application that the petitioner filed his experience certificates w.e.f. 1.6.1993 to 15.4.1994 and 16.4.1994 to 31.1.1996 and 1.2.1996 to 14.7.1996 to the respondent and the copies of all the 3 experience certificates were also annexed with the said application. Normally this Court would not have substituted its own conclusion on the decision but the method and manner and in a cavalier fashion the decision arrived at by the respondent is based on no material and the same is totally irrational. Therefore, the Court directs the respondent to appoint the petitioner as Junior Engineer (Civil) from the date he was entitled to the said post within four weeks.
10. Writ petition is allowed.