V.K. Singh And Anr. vs Municipal Corporation Of Delhi
2006 Latest Caselaw 1176 Del

JUDGMENT

Manju Goel, J.

1. The petitioners-Mr. V.K. Singh and Mr. P. Pant, were working as Junior Engineers with the Municipal Corporation of Delhi (hereinafter referred to as the 'MCD') when in June, 1989 the MCD, the respondent herein, invited applications for the posts of Assistant Engineers (Civil). The petitioners applied for the posts. After interviews, a panel of 60 candidates was formed. The petitioners' names did not figure in the panel. In 1991 several writ petitions were filed challenging the selection process. Those writ petitions were dismissed by a common judgment and several Letters Patent Appeals were filed against the common judgment. While the LPAs were pending, the petitioners filed a writ petition, being WP(C) 4927/1997. During the pendency of the LPAs, the High Court appointed Mr. Justice G.C. Jain (Retd.) to verify the case of each candidate and find out whether allocation of marks for qualification and experience had been correctly done and, if not, in what manner it should be done. Pursuant to the directions, Mr. Justice G.C. Jain (Retd.) examined the records of all the candidates who obtained 12 or more marks and prepared a list giving the comments regarding each candidate. The selection Board had prescribed the following criterion for allocation of marks: qualification-10 marks, experience-5 marks and viva voce-15 marks. The Division Bench took into account the report of Mr. Justice G.C. Jain (Retd.) in which he corrected the marks given to the candidates for experience and qualification. It was found that one Mr. Ajay Gautam to whom 14.1/2 marks had been allotted was placed at Serial No. 51 in the select list whereas according to the report of Mr. Justice Jain (Retd.), he ought to have been placed at position No. 26 in the waiting list. Since Mr. Ajay Gautam had been appointed by the MCD, the candidates, namely Mr. M.K. Singhla, Mr. R.K. Jain, Mr. B.B. Jaiswal, Mr. A.K. Batra, Mr. Nasrul Islam, Mr. M.M. Khan, Mr. Mandir, Mr. S.K. Mittal, Mr. D.K. Chadha, Mr. Ashwini Kumar, Mr. R.K. Gupta Mr. M.M. Dahiya and Mr. Ansar Alam, who had approached the Court within a reasonable time and had obtained not less than 14.1/2 marks were also held to be entitled to similar treatment. Accordingly, they were directed to be given appointments for the posts in question from the date they were entitled to as per the original selection in 1989 without any monetary benefit for the period between the date they became entitled to appointment and the date they actually got the appointment. The petitioners' writ petitions were dismissed on the ground of delay and laches vide a judgment dated 12.5.1998. A writ petition filed by another candidate-Mr. N.C. Sharma, being WP(C) 5087/1997 was also dismissed on the same ground.

2. On account of the dismissal of the writ petition, petitioners Nos. 1 & 2, who had 15.1/2 marks each, filed a Special Leave Petition before the Supreme Court, which was dismissed. After the dismissal of the writ petitions of the petitioners as well as the petition of Mr. N.C. Sharma, Mr. N.C. Sharma was appointed to the post of Assistant Engineer (Civil). Mr. N.C. Sharma's writ petition was WP(C) 5087/1997 and he also had asked for the appointment to the post of Assistant Engineer (Civil) in the same selection process. This writ petition met the same fate as that of the writ petitions filed by the petitioners. His SLP (SLP Civil No. 14451/1998) was also dismissed by the Supreme Court. Mr. N.C. Sharma also filed a review before the Supreme Court, which was also dismissed. Mr. N.C. Sharma was appointed to this post on the basis of the selection of 1989 vide an appointment letter issued on 12.2.1999. The petitioners claim that they are similarly situated as Mr. N.C. Sharma in as much as they also fulfill all the eligibility criteria and were entitled to selection to the post of Assistant Engineers just as Mr. N.C. Sharma was. They say that after having come to know of the appointment of Mr. N.C. Sharma, the petitioners made a representation to the MCD for their appointment. The respondents, however, did not appoint the petitioners despite repeated representations and, hence, the present writ petitions. It is alleged that the action of the respondent/MCD is violative of Article 14 of the Constitution of India. It may be mentioned here that a writ petition, being WP(C) 2547/2002 titled R.P. Gupta and Ors. v. MCD and certain other petitions were also filed claiming similar relief by certain other candidates who also claimed to have obtained more than 14.1/2 marks in the same selection. The writ petitions of Ram Prasad Gupta and others, being WP(C) 2547/02; the writ petition of Vikram Rai, being WP(C) 4770/2002; the writ petition of Ajay Kumar and others, being WP(C) 4769/02, were disposed of by a common judgment dated 24.2.2004. In this judgment the petitioners in WP(C) 2547/02 were granted appointment on parity with N.C. Sharma. However, the writ petitioners (except one) in WP(C) 4769/02 and 4770/02 were not shown similar favor. The writ petitioners in WP(C) 2547/02 were found to have been agitating their claim along with N.C. Sharma whereas the petitioners in the other writ petitions were found to have slept over their claim. Thus, two writ petitions were dismissed. It is now required to be also noticed that WP(C) 3836/98 was filed by another petitioner claiming appointment on parity with N.C. Sharma. This writ petition was dismissed by the Division Bench on 21.7.2000. The MCD took the plea that the petitioners had started agitating for their relief as late as 1998 and, therefore, their cases suffer from delay and laches. The Division Bench found that the stand taken by the respondent Corporation was wholly justified and since the petitioner had slept over the matter for nearly five years and the number of posts were limited and the apple cart could not be allowed to be disturbed, the petition was dismissed. The task before this Court is to identify in which of the categories the present petitioners will fall. They may fall in the same category as those in writ petition No. 2547/02 who were granted appointment by the judgment dated 24.2.2004 or in the category of the writ petitioners in WP(C) Nos.4770/02, 4769/02 and 3836/98.

3. Learned Counsel for the respondent vehemently argued that the judgment of the single Bench dated 24.2.2004 allowing WP(C) 2547/02 was erroneous and also that it contradicted the Division Bench judgment in WP(C) 3836/02 dated 21.7.2000. His invitation to the Court is not to follow the decision in WP(C) 2547/02 and to follow the decision of the Division Bench dated 21.7.2000 and dismiss the writ petition on the ground of delay and laches.

4. It is also pointed out that there is distinction between the case of N.C. Sharma and that of the present petitioners in as much as N.C. Sharma had actually secured 16 marks and, therefore, had a right to the appointment and it was only the laches which were condoned by the MCD in granting the appointment whereas the petitioners had secured only 15.1/2 marks and, therefore, were not within the original appointment criterion where the last candidate was selected with 16 marks. According to Mr. Raj Birbal, learned senior counsel appearing for the MCD, the petitioners having secured only 15.1/2 marks could not have claimed their appointment on the same criterion as N.C. Sharma. Further, delay and laches on the part of the present petitioners is pointed out in as much as despite the appointment of N.C. Sharma in 1999, the present writ petition was preferred only in the year 2003.

5. Another ground for opposing the writ petition is that the petitioners have no vested right in the appointment of public service and, as such, a writ of mandamus does not lie. The petitioners again refute the objections raised by the respondent and claim to be entitled to these posts on the ground of parity and right to equality. Learned Counsel for the petitioner, Ms. Janani, claims that the petitioners are on a better footing of fundamental rights than to a right to posts.

6. This Court is not in a position to say that the judgment of this Court dated 24.2.2004 is erroneous. This Court, therefore, has to proceed on the premise that the judgment dated 24.2.2004 as well as the judgment dated 21.7.2000 are correct. The peculiarity of the dispute and litigation is that the theory of delay and laches, despite condensation for N.C. Sharma and for Ram Prasad Gupta, does not agree to fade out. The theory has remained alive for the petitioners in WP(C) Nos.4770/02 & 4769/02 as well as for the writ petitioner in WP(C) 3836/98. It can be argued that the cause of action for the writ petitioners after the appointment of N.C. Sharma arose on account of appointment of N.C. Sharma. The claim, therefore, is that since N.C. Sharma, who was earlier denied appointment on account of delay and laches has been appointed in the year 1999, others whose claim also were defeated on account of delay and laches, who were within the qualifying marks, were also entitled to be appointed. But the Court has drawn a distinction between the case of N.C. Sharma and others in that. N.C. Sharma had been pursuing his claim all through but the other joined the fray only later. The petitioner Mr. J.P. Jain in WP(C) 3836/1998 started agitating his claim in 1998. Petitioner No. 1 in WP(C) 2547/02 had filed his civil writ petition No. 1871 in the year 1996 and petitioner No. 2 of writ petition 2547/02 had filed his civil miscellaneous petition (C.M. No. 6675/96) in WP(C) 4819/94. Petitioner No. 3 in that writ petition had also filed his civil miscellaneous petition (C.M. No. 6787/96) in the same writ petition in 1996. The writ petitioners in WP(C) 2547/02 were found to have made representations in the year 1999 and 2000. In the judgment dated 24.2.2004 the learned single Judge has observed that the writ petitioners in WP(C) 2547/02 and writ petitioners in WP(C) 4769/02 were sailing in the same boat. However, the Court still observed that there was some delay and laches for the petitioners other than petitioner No. 1 in WP(C) 4769/02 and, accordingly, WP(C)4770/02 and WP(C) 4769/02 qua petitioners Nos. 2 & 3, were dismissed. Another important factor to be taken note of in the present case is that the present petitioners who were Junior Engineers with the respondent along with N.C. Sharma and others who have been agitating before the Court in this matter left the services of the respondent some 7 or 8 years back and joined the sister organization, namely, Delhi Vidyut Board, as Assistant Engineers and by now they have themselves gained their own seniority in the cadre of Assistant Engineers in the organisation of DJB. Mr. Raj Birbal, learned senior counsel for the MCD, submits that this is another distinguishable feature between the case of N.C. Sharma and the present petitioners.

7. Two most important considerations that now arise for consideration are whether the case of the petitioners can be distinguished from those of WP(C) 2547/02 and, second, whether the writ petitioners should now be allowed to join the post of Assistant Engineers in parity with N.C. Sharma and thereby unsettle the apple cart. So far as the first question is concerned, a distinction is clear in as much as the present writ petitioners waited much longer than the writ petitioners in WP(C) 2547/02. This is understandable because the present writ petitioners perhaps found the DJB more attractive than the respondent and gave up the services with the respondent to join DVB. It appears that they actually lost interest in pursuing their claim for the posts and, accordingly, allowed much water to flow under the bridge. Secondly, in my opinion the apple cart should not be allowed to be disturbed at this stage particularly because their appointment at this stage will not bring for them much benefit as they have already found suitable alternative employment and have made progress in their new employment.

8. It may be mentioned here that Ms.Janani during argument submitted that the petitioners be appointed from the date of their petition. This obviously indicates that the petitioners are not much interested in taking the appointment from the date of their joining and are intending to take their appointment w.e.f. 2003. This will certainly disturb the current position of appointments & seniority of Assistant Engineers as in the meanwhile there are likely to have been some appointments by promotion or otherwise in these posts.

9. Accordingly, I am not inclined to allow the writ petition and disturb the status quo. Writ petition is, accordingly, dismissed.