Sube Attri And Ors. vs Mcd
2006 Latest Caselaw 331 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The undisputed facts of this case are that the petitioners are working as Staff Nurses. They were directly recruited to those positions and at the relevant time were in the pay-scale of Rs.1400-2600. The post of Public Health Nurse, in terms of recruitment regulations formulated by the respondent Municipal Corporation of Delhi (MCD) carries a higher pay-scale (Rs. 455-700), (later revised as Rs.1640-29000.

2. The petitioners applied in response to a circular dated 24.2.1992 for appointment to the post of Public Health Nurse. The educational qualifications indicated were B.Sc. in Nursing or that the candidate should have worked as 'A' Grade Nurse with Health Visitors Training from a recognised Institution. The age limit as notified in the circular read as follows:

Age Limit: Not exceeding 30 years.

(Relaxable by 15 years for MCD Employees.

3. It is the admitted case of the parties that all the petitioners were issued interview letters/calls and were found suitable for appointment. However, the MCD did not issue the appointment orders.

4. The petitioners are aggrieved by the inaction of the respondents in regard to the issuance of the appointment letter even though they underwent the selection procedure successfully, and they were held suitable for the posts in question.

5. Mr. G.D. Gupta, learned senior counsel for the petitioner submits that the inaction of the respondent-MCD or the decision to withhold appointment letters to the petitioners is arbitrary. He relies upon the circular by which the applications were called for and submits that all the petitioners were fully eligible for appointment in accordance with the circular. He also relies upon office order/memorandum dated 28.1.1991 issued by the Central Government; that document raised the age limit for direct recruitment of Nurse to 45 years from the pre-existing 30 years.

6. Learned counsel submits that the MCD had resolved to follow the Central Government pattern. He relies upon the decision No. 1955/GW/MP dated 27.1.1992 of the MCD by which the age limit for Nursing Staff for direct recruitment was decided to be raised to 45 years specifically in respect of the post of Public Health Nurses carrying the pay-scale of Rs.1640-2900. The circular, calling for applications dated 24.2.1992, followed that decision.

7. Learned counsel submitted that besides arbitrariness, the decision is also discriminatory. He cites the instance of Ms. Suman Sikka and Ms. Usha Sedha who were appointed as Public Health Nurse in 1985; they were overaged and beyond the relaxable age limit as per the MCD norms.

8. Mr. Kanth, learned counsel appearing on behalf of the respondents states that the MCD does not dispute the basic facts about the suitability of the petitioners and that they were interviewed and found eligible for the post. He also submits that in accordance with the norms of the MCD, the petitioners held the qualifications prescribed. The averments of the MCD contained in the counter affidavit also do not dispute these facts as well as the circular which was issued on 24.2.1992 indicated that the age limit would be relaxable by 15 years in the case of the MCD employees.

9. Learned counsel submitted that the MCD's decision for withholding appointment was solely based upon the facts that an appropriate amendment was not carried out to the recruitment regulations. As per the recruitment regulations, the age limit for direct recruits was 30 years and was relaxable by 5 years for Central Government and employees of the MCD. The concerned regulation, formulated in the year 1983 reads as follows:

Age limit for direct recruits : Not exceeding 30 years.

(relaxable by 5 years for Government servants and employees of M.C.D. in accordance with the instructions issued by the Central Government.

Note:- The crucial date for determining the age limit shall be the last date fixed for sending names by Employment Exchange.

10. It was also submitted that the issue was referred to the UPSC which returned the reference by stating that recruitment to the concerned post was not within its domain and as far as the amendment to the regulations was concerned, that was within the exclusive jurisdiction of the MCD.

11. It was submitted on behalf of the MCD that during pendency of these proceedings in the year 1995, the petitioners were given appointment on ad hoc basis and that regular appointment should not be given due to the pendency of these proceedings.

12. The above factual narrative raises a short controversy for decision of the Court i.e. whether the inaction of the MCD in issuing the appointment letter on the grounds indicated in the counter affidavit are justified.

13. It is well settled that ordinarily a selected candidate does not have a indefeasible right to be appointed to the post; he or she has a right to be fairly treated in accordance with the norms and the regulations in a non-arbitrary manner. The question is, therefore, whether the decision of the MCD in the facts of this case can be characterised as unreasonable or arbitrary.

14. The petitioners were undoubtedly employees of the MCD working as Staff Nurses; holding prescribed qualifications as per the regulations; answering the description as per the circular issued in the year 1992 both with regard to the qualification as also with regard to the age limit; the only ground made out by the MCD for not issuing the appointment letters is its inaction in carrying out an appropriate amendment. It is not disputed that the MCD consciously had taken a decision through a resolution on 27.1.1992 and circulated it to all concerned that the age relaxation for Public Health Nurses on the pattern of the Central Government which had earlier on 28.1.1991 raised the age limit to 45 years. That being undisputed position, the stand of the MCD vis-a-vis non appointment of the petitioners is because of its own inaction or omission in amending the regulations, is not only strange but irrational.

15. If the Courts were called upon to issue a mandamus merely on this ground, that would have led to certain serious consequences. However, a close look at the relevant regulations also establishes that the stand of the MCD is not justified. Undoubtedly, the age limit indicated is 30 years and in the case of those working in the Central Government and MCD it is relaxable by 5 years. But, that is not the end of the matter. The regulation regarding age limit goes on to say that relaxation should be in accordance with the circulars issued by the Central Government. It is not disputed that the instructions of the Central Government issued on 28.1.1991 clearly indicated that the age limit was to be 45 years. The MCD correctly understood this position and by the circular calling for applications stated that the age limit would be relaxable by 15 years. In view of these peculiar facts and undisputed position as to the decision taken by the MCD, I am of the opinion that withholding appointment letters to the petitioners who were otherwise qualified in all respects cannot be justified in law. The MCD, at least in this case did not have to hold up appointments because relaxations of age limit were permissible under the existing Rule.

16. In view of the above finding, a direction is issued to the respondent MCD to issue appropriate appointment letters to all the petitioners having regard to the position secured by them in the merit list, effective from the dates when the others were appointed as per the selection list. These appointment letters shall be issued within a period of eight weeks from today. The petitioners shall also be entitled to consequential fitments, fixation of salary and arrears constituting the balance of what was paid and what would be payable, including all consequential benefits. These amounts shall be paid within eight weeks.

17. It is made clear that this order is in the peculiar facts and circumstances of the case. The writ petitions are disposed off in the light of the above directions. Rule made absolute to the extent indicated above. No costs.