Dr. Dhruw Sharma vs Lt. Governor Of N.C.T. Of Delhi
2007 Latest Caselaw 532 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties, this writ petition is taken up for final hearing. This writ petition challenges the order of the Central Administrative Tribunal (CAT) dated 5th June 2006 passed in O.A. 1213/2002 filed by the petitioner. It is not in dispute that on 9th November, 2005 in Writ Petition (C) 4516/2003, the issue of petitioner's qualification of M.Sc. (Bio-technology) being equal to the requisite qualification was decided in favor of the petitioner on the basis of the affidavit furnished by the Respondent No. 2 UPSC. The only direction for remand of the matter to the CAT by the judgment of this Court dated 9th November, 2005 is to be found in the following terms contained in the said judgment and was only to determine whether the petitioner satisfied the norms of qualifying service:

This subsequent aspect regarding possession of the norms of qualifying service as prescribed in Clause 12(a)(iii) was never agitated before the Tribunal nor the same was considered by the learned Tribunal. It is also pointed out by the counsel appearing for the respondent that before the Tribunal no statement was made to the that the nature and duties of the post of Senior Scientific Assistant in UP is similar to that of the post of Senior Scientific Assistant in Delhi. In absence of such pleadings before the Tribunal, the Tribunal could not have considered all the issues that are raised in respect of the aforesaid subsequent issue which now arises for consideration and in that view of the matter we deem it appropriate to set aside the judgment and order passed by the learned Tribunal as it is now admitted position that the petitioner possesses the minimum educational qualification, on which ground the original application was dismissed by the Tribunal.

The matter shall now be reconsidered by the Tribunal in respect of the issue of qualifying service of the petitioner in accordance with law, as expeditiously as possible after giving the parties opportunity to file further pleadings, if any, in respect of the contentions raised in respect of the subsequent issue which relates to the qualifying service prescribed in Clause 12(a) (iii) of the recruitment rules. The parties shall appear before the Tribunal on 28th November, 2005 for obtaining further date. Status quo with regard to the status of the petitioner as of today shall be maintained till the case of the petitioner id disposed of by the Tribunal. One post of the Senior Scientific Officer may not be filled up by the concerned respondent till the matter is taken up by the learned Tribunal. It shall be open to the Tribunal to pass necessary interim order, if any, in the matter after hearing the parties.

2. Pursuant to the above directions a post had been kept vacant for the petitioner, and such vacancy of the post had been continued by the orders of this Court dated 8th November, 2006. Accordingly, one post of Senior Scientific Officer (Biology) is presently available for being filled. The remand of the matter to the CAT was only to determine whether the petitioner possessed the requisite qualifying service. The issue of qualifying service of the petitioner has been held in favor of the petitioner by the impugned judgment dated 5th June 2006. The said judgment has not been challenged by the respondent and qua them has become final. The Petitioner's only grievance arises from the finding of the CAT in its favor that the petitioner possessed the requisite qualifying service, but nevertheless, relief was denied to him in spite of the fact that a post had been kept vacant under the orders of this Court. The relevant portion of the CAT's judgment reads as under:

17. There is no dispute that one post is available to be filled up by transfer on deputation. In view of the above discussion, the applicant seems to have fulfillled all the requirements for being considered to the post of Senior Scientific Officer. Accordingly, whenever there would be an advertisement for filling up the posts on transfer/deputation, he may submit an application and the UPSC can consider his suitability in accordance with the observations stated above.

3. Ms. Bhattacharya, learned Counsel for the respondent No. 1 submits that this opportunity granted to the petitioner by virtue of the judgment to apply pursuant to an advertisement is available to him de hors and regardless of the judgment of the CAT. Thus, her plea is that the petitioner is being denied consequential benefits by the CAT pursuant to her success with CAT based upon the finding of the CAT of the requisite qualifying service being possessed by the petitioner. The learned Counsel for the respondent No. 1 Ms. Bhattacharya also submitted that the directions of the CAT cannot be faulted as the petitioner can always apply whenever there is an advertisement for the post of Senior Scientific Officer (Biology).

4. We are of the view that this plea though innocuous, nevertheless fails to take note of the fact that pursuant to the order of this Court one post of Senior Scientific Officer (Biology) had been kept vacant by this Court upon finding that the petitioner fulfillled all the requirements and the directions permitting him to apply for the said post on fresh advertisement which in any case, the petitioner is entitled to apply for, amounts to denial of justice to him and failure to exercise jurisdiction vested in the CAT. We fail to see the purpose of the remand of the matter to the CAT by this Court's Order dated 9th November, 2005 for a limited purpose of determining the qualifying service of the petitioner and keeping a post vacant for him if the petitioner even after being found to have possessed the qualifications was nevertheless to avail the vagaries of the issue of an advertisement by the Respondent No. 1 We accordingly, affirm the CAT's judgment dated 5th June 2006 up to paragraph 16 and modify the underlined portion as directed below.

5. Accordingly, the petitioner is entitled to writ of mandamus which shall issue directing and commanding the Respondents 1 and 2 to consider the petitioner's case for the Senior Scientific Officer (Biology) not later than 15th May 2007. The transmission of appropriate record required by the Respondent No. 2 UPSC shall be done to the Respondent No. 2 by the Respondent No. 1, not later than three weeks from today. In case, the petitioner is found successful in consideration in light of the judgment of this Court dated 9th November, 2005 and the CAT's judgment dated 5th June 2006, the consequent relief of absorption as Senior Scientific Officer (Biology) shall follow not later than 1st June 2007.

6. With the above directions, the writ petition is allowed and stands disposed of along with CM 13628/2006.

7. A copy of this judgment shall be given dusty under the signatures of the Court Master.