Delhi High Court
Shri U.B Singh & Anr. vs North Delhi Power Ltd. & Anr. on 19 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19.04.2011
+ RSA No.303/2007
SHRI U.B SINGH & ANR.
........Appellants
Through: Ms. Avinash Ahlawat and Mr. N.K.
Jha, Advocates.
Versus
NORTH DELHI POWER LTD. & ANR.
.......Respondents
Through: Mr. S.K. Dubey, Mr. Tungesh &
Mr. K.D. Bhagat, Advocates for
respondents No. 2.
Mr.Manish Srivastava and Mr.
Diwakar Sinha, Advocate for
respondent No. 15
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. Oral
1. This appeal has impugned the judgment and decree dated
05.09.2007 which had endorsed the findings of the trial Judge
dated 16.02.2005 whereby the suit filed by the plaintiffs seeking
mandatory injunction against the defendants with a direction that
the defendant/ North Delhi Power Ltd. (NDPL) be deemed to
appoint the plaintiffs as Assistant Accountants w.e.f. 18.11.1989 or
in the alternative w.e.f. 15.02.1994 had been dismissed.
2. Contention of the plaintiff is that he had filed suit No.
523/1988 which had been decreed in his favour on 19.05.1989. In
the judgment of 19.05.1989, the trial Judge had noted that there
were 171 posts of Assistant Accountants with the defendant; the
same were vacant; decree dated 19.05.1989 had directed the
defendant to make appointments to these 171 posts of Accountants
within six months in accordance the Recruitment and Promotion
Rules, 1978. The appeal filed by the department against this order
has been dismissed on 02.12.1992. The judgment and decree dated
19.05.1989 had become final. The department however did not
comply with the aforenoted directions. Execution petition was filed;
examinations were thereafter held by the department on
26.12.1993. The plaintiffs had appeared in the aforenoted
examinations; they were declared successful and were ranked at
serial Nos. 131 & 126 respectively. They were appointed to the
post of Assistant Accountant vide order dated 13.10.1997.
Contention in the present suit is that the decree dated 19.05.1989
which had become final had not been executed by the Department
in true letter and spirit. The plaintiffs were deemed to be appointed
as Assistant Accountants w.e.f. 18.11.1989 or latest by 15.02.1994
for which the present proceedings were filed.
3. In the written statement it was stated that the examination
had been held only in December, 1993 wherein the plaintiffs had
qualified. Initially the result of 79 successful candidates had been
declared; the plaintiffs were not in that list; they were in the
second list of 92 candidates which result had been declared under
the orders of the Supreme Court dated 05.09.1997. The plaintiffs
had been promoted as per rules time to time; no case was made out
in their favour. The Recruitment and Promotion Rules had been
amended in 1995; pursuant to this amendment 80% post had to
been filled in on the basis of seniority and 20% post through
departmental competitive examination. Suit was liable to be
dismissed.
4. On the pleadings of the parties, the following four issues
were framed:-
1. Whether the plaintiff can be deemed to be appointed to the post of
Assistant Accountant w.e.f. 18.11.1989 or 15.02.1994?OPP
2. Whether the plaintiffs are entitled to promotion to the post of AFO in
contravention of R & P Rules, 1978? OPP
3. Whether the suit is bad for mis-joinder of parties? OPD
4. Whether the plaintiff is entitled to any relief, if so, what relief?
5. Oral and documentary evidence was led. The trial Judge was
of the view that there was no question of deemed appointment as
has been claimed by the plaintiffs; their result had been declared
pursuant to the examination which had taken place in December,
1993; result had been declared only after the orders of the
Supreme Court which orders were passed on 05.09.1997; the
plaintiffs had been appointed as Assistant Accountant vide office
order dated 13.10.1997.
6. This order of the trial Judge had been affirmed in the first
appeal.
7. These are two concurrent findings of fact against the
appellant. Until and unless a perversity is pointed out, no
interference is called for. The scope of interference by the High
Court in terms of Section 100 of the Code of Civil Procedure
(hereinafter referred to as the 'Code') is limited. Only if a
substantial question of law arises, interference is called for.
8. This is a second appeal. It is yet at its admission stage. The
order of the Supreme Court has been read and various paragraphs
have been highlighted by learned counsel for both the parties.
Paras 4, 5, 9 & 11 are relevant from the point of view of both
learned counsels. The Apex Court had in para 4 noted that the
decree dated 19.05.1979 had been appealed which appeal had
been dismissed on 21.12.1992; decree had become final. The Apex
Court further noted that there were admittedly 171 posts which
were required to be filled by the defendant department; these
vacancies had to be filled in as per rules made in 1978; rules of
1995 which were the amended rules would not apply to vacancies
which had to be filled in terms of the Rules of 1978; para 11
specifically states that out of 171 vacancies, 70 posts have been
filled and 91 posts are yet the balance; the respondent i.e.
defendant department had been directed to fill these 91 vacancies
on the basis of December, 1993 examination which had been
conducted by them. Admittedly, the plaintiffs had appeared in this
examination of December, 1993 wherein they had been placed at
serial No. 131 & 126 respectively. The Apex Court had specifically
given a direction to the department to declare the result of
December, 1993 examination within four weeks from the said date;
the judgment had been delivered on 05.09.1997; the plaintiffs had
thereafter been appointed vide office order dated 13.10.1997; this
was in terms of the directions of the Apex Court; question of
deemed appointment of the plaintiffs i.e. w.e.f. 18.11.1989 or
15.02.1994 would therefore not arise; Question of they being
deemed appointees was thus rightly rejected; if this argument of
learned counsel for the appellant is accepted, it would create a
havoc and would disturb the seniority of other persons who had
been working in this intervening period of 1989 to 1997; this is not
permissible. The impugned judgment is in consonance with the
directions of the Apex Court.
9. Substantial questions of law have been embodied on page 2
of the body of the appeal. No such substantial question of law has
arisen. There is no merit in this appeal. Dismissed.
.
(INDERMEET KAUR)
JUDGE
APRIL 19, 2011,
A
