Ashok Kumar & Anr vs Mcd & Ors.
2011 Latest Caselaw 667 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.8246/2010

%                      Date of Decision: 04.02.2011

Ashok Kumar & Anr                                        .... Petitioners

                       Through Mr.Rajeev Sharma, Advocate.

                                  Versus

MCD & Ors.                                             .... Respondents

                       Through Mr.Mukesh Gupta for respondent Nos.1
                               to 5.
                               Ms.Reeta Kaul, Advocate for the
                               respondent No.6.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers may            YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?           NO
3.      Whether the judgment should be                   NO
        reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners have challenged the order dated 20th August,

2010 passed by the Central Administrative Tribunal Principal Bench,

New Delhi in an application under Section 19 of the Administrative

Tribunal Act, 1985 titled Sh. Ashok Kumar and Anr. vs. Municipal

Corporation of Delhi & Ors. dismissing their application seeking change

of their seniority viz-a-viz other respondents.

2. Brief facts to comprehend the dispute between the parties are

that for the post of Assistant Engineer (Civil) a test was conducted by

Delhi Subordinate Staff Selection Board (hereinafter referred to as

"DSSSB"). The petitioners and others were selected for appointment to

the post of Assistant Engineer (Civil). Subsequent to the selection

DSSSB had sponsored the petitioners to the MCD for appointment to

the post of Assistant Engineer (Civil) along with others.

3. After selection the DSSSB had to make sponsoring, however,

sponsoring was done in piecemeal for the posts. A combined merit list

of all the candidates who had been selected was not sent to the MCD

while sponsoring the names of the candidates.

4. On the basis of names sponsored by the DSSSB though all the

names were not sponsored, the respondent No.1 Municipal Corporation

of Delhi had to prepare a seniority list. Therefore a seniority list dated

31st October, 2007 of all the Assistant Engineers (Civil) whose names

had been received was prepared. In the seniority list dated 31st October,

2007 it was categorically specified that the seniority was tentative and

was subject to receipt of the select panel/merit list from the selecting

agency, that is, DSSSB.

5. Later on by letter dated 4th December, 2008 the respondent No.1

received a merit list/select panel from DSSSB which led to revision and

redrawing of the select panel/merit list which was finalized by the

respondent No.1 and was circulated by circular dated 30th July, 2010.

While finalizing the select panel/merit list the relevant OMs of the

Government of India including O.M dated 3rd July, 1986 of DOPT were

followed with.

6. In the final seniority list the names of respondent No.7 to 14 were

placed above the petitioners, as their names also appeared above the

petitioners in the merit list/select panel which was received from

DSSSB. The petitioners, however, challenged the seniority list dated

30th July, 2010 alleging inter-alia that they were offered letter of

appointment dated 18th January, 2005 and they had joined in 2005

itself. According to the petitioners the respondent No.1 had issued

appointment letter to them on the recommendation of DSSSB letter

dated 14th October, 2004. It was also pointed out by the petitioners that

the selection test which was conducted by DSSSB was challenged in

respect of two posts of general category in the High Court and the

appointment based on such test was stayed by the High Court in writ

petition being W.P(C) No.5178/2003 along with CM No.11316/2005. By

order dated 23rd September, 2005, the High Court was pleased to direct

the respondent No.1 to keep two posts of Assistant Engineer (Civil) in

general category out of the four available vacant posts and had

permitted the remaining candidates to join the other 15 available posts

in order of their merit. Petitioners contended that in the select panel of

2004 their names were at serial Numbers 6 & 8 respectively. After

joining as Assistant Engineer (Civil) they were confirmed on completing

the probation period vide office order dated 22nd April, 2008. A seniority

list was declared in 2007 where all the Assistant Engineers (Civil)

appointed up to 3rd August, 2007 were included and the name of the

petitioner No.1 was at seniority No.501 and petitioner No.2 was at 503.

The petitioners made a grievance that thereafter another final seniority

list dated 19th February, 2010 was issued in which certain officers who

were not in the seniority list dated 31st October, 2007 have been shown

senior to the petitioners. From this the petitioners inferred that certain

officers who had actually joined subsequently in 2007 have been shown

senior to the petitioners.

7. According to the petitioners, knowing the usual practice that the

objections invited at the time of finalizing the provisional seniority list

are generally not noticed and considered and the final list is issued,

they directly filed an original application being OA No.1079/2010 before

the Tribunal which was considered without issuing notice to respondent

No.1 and direction was given to treat the application of the petitioners

before the Tribunal as supplementary representation and decide the

same by passing a reasoned and speaking order.

8. Consequent to the order of the Tribunal the representations of the

petitioners were considered and rejected. According to the petitioners

while rejecting their representations the respondent No.1 ignored the

order of the High Court and also did not implement the DOPT O.M

dated 3rd July, 1986. The petitioners contended that the respondents

who have been placed above them had deficiencies and, therefore, their

appointments were delayed and so if their appointments were delayed

they could not be placed over them. The petitioners, therefore,

challenged the circular of the respondent No.1 dated 30th July, 2010

categorically stipulating that DSSSB had sent panel of successful

candidates in piecemeal and in accordance to their merit list which

resulted into placing certain candidates who were below in merit list but

whose dossiers were sent by the DSSSB prior to the candidates having

higher merit position. Consequently they were placed over the

candidates whose merits were higher but whose dossiers had not been

received.

9. The application was opposed contending inter alia that later on

after the complete dossiers and all the details were received the final

seniority list was drawn. While drawing the final seniority list the OM

dated 3rd March, 2008 and OM dated 3rd July, 1986 of DOPT were

taken into consideration stipulating that merit rule would be bypassed

only if the candidates do not join the service within the stipulated time

of six months of issuance of appointment letter. However, the DSSSB

had sent the panel of successful candidates in the piecemeal and not in

accordance to their merit position because of pendency of Court cases

etc and, therefore, there was no delay/fault on the part of candidates

and consequently on the grounds as alleged by the petitioners they

could not challenge the final seniority list drawn by the respondent

No.1.

10. The Tribunal has noted these facts and dismissed the original

application by order dated 20th August, 2010 relying on Balwant Singh

Narwal & Ors v. State of Haryana & Ors, 2008 7 SCC 728 holding that

candidates who were selected against earlier vacancies but who could

not be appointed along with others of the same batch due to certain

technical difficulties and not on account of any fault attributable to the

candidates, when appointed subsequently, will have to be placed above

those who were appointed earlier.

11. We have heard the learned counsel for the parties in detail. Before

us also the petitioners‟ counsel has raised the same grounds which

have been repelled by the Tribunal. The learned counsel for the

petitioners insisted that some of the respondents were appointed after

the petitioners have been appointed in 2005. The learned counsel,

however, was unable to show the reason for late appointment

attributable to the candidates who were higher in merit list than that of

petitioners. The learned counsel has not been able to repel the plea of

the counsel for the respondent No.1 that the seniority list of 31st

October, 2007 was tentative and subject to receipt of select panel/merit

list from the selecting agency, that is, DSSSB. In the facts and

circumstances, it cannot be disputed that in the merit list/select panel

sent by DSSSB the respondent Nos.7 to 14 appear above the

petitioners. They could not be appointed on account of their dossier not

sent in time and before the petitioners though they were lower than that

of petitioners. Consequently placing the respondent nos. 7 to 14 above

the petitioners in accordance with the merit list/select list cannot be

faulted by the petitioners. The learned counsel for the petitioners have

not been able to refute that no fault can be attributed to respondent

Nos.7 to 14 whose dossiers were sent later resulting into delayed

appointment in joining the substantive post, however they had joined

before the expiry of time limit of panel. If there was a delay in the

appointment of respondent nos. 7 to 14 which is not attributable to the

them but on account of delay in receiving their complete dossiers by the

concerned authorities, they cannot be made juniors to the petitioners.

The plea of the petitioners is based on the tentative seniority list issued

by the respondent no.1 in 2007. Tentative seniority list issued by the

respondent no.1 was not a final seniority list and it cannot be held that

the seniority list of 2007 could not be corrected or the name of those

who were higher in the merit list/select panel of the DSSSB could not

be placed above petitioners.

12. Reliance can be placed on Balwant Singh Narwal & Ors v. State of

Haryana & Ors, 2008 7 SCC 728 in which Supreme Court was

concerned with the case where an advertisement for the 18 post was

issued by Haryana Public Service Commission which were subsequently

increased to 37. The Commission declared the merit list of 30 selected

candidates on 30-9-1993 (published on 1-10-1993), which included

Respondents 4 to 16 in that case. However, before the State

Government could make appointment in terms of the said list, a non-

selected candidate filed WP No. 12700 of 1993 contending that only 18

posts were notified and the Commission could not make

recommendations for selection of 30 candidates. The said writ petition

was allowed by a learned Single Judge of the Punjab and Haryana High

Court and the recommendations in excess of the 18 vacancies were

quashed on the ground that the Commission could not make

recommendations beyond the number of posts advertised. A Division

Bench dismissed the appeal against the judgment of the learned Single

Judge. The State Government appointed only 16 as against 18

permitted by the High Court, not for want of vacancies but on account

of some technical difficulty in appointing the other candidates. The

candidates who had been selected and who were denied appointments,

though their names were in the selected merit list of 30 candidates,

challenged the order. The Supreme Court reversed the judgment of the

High Court and set aside the judgment of the Single Judge and held

that the recommendation made by the commission were in accordance

with law and all the 30 names recommended were entitled for

appointment. Consequent thereto State Government appointed other

candidates also. In dispute about the seniority, the said respondents

pointed out that but for the litigation they would have been appointed

along with others who had been selected and in the circumstances they

should be given seniority above those who were appointed against

subsequent vacancies. The State Government considered the plea of

these persons but did not agreed to their request. Aggrieved by the

decision of the State Government the earlier appointees filed a writ

petition contending that the selection by commission was merely

recommendatory and does not imply automatic employment and thus

they cannot claim seniority. High Court rejected the writ petition which

was challenged in the Supreme Court which upheld the decision of the

High Court relying on Surendra Narain Singh v. State of Bihar (1998) 5

SCC 246 holding that candidates who were selected against earlier

vacancies but who could not be appointed along with others of the same

batch due to certain technical difficulties, when appointed

subsequently, will have to be placed above those who were appointed

earlier of the same batch. In Surendra Narain Singh (supra) it was held

by the Supreme Court that when appointment is delayed, the

candidates can not be allowed to suffer for no fault of theirs and their

seniority would be protected. Similarly the respondent nos. 7 to 14 who

were selected with petitioners who were appointed because their

dossiers were sent by the DSSSB but the respondent nos. 7 to 14 could

not be appointed on account of their dossiers not sent by the DSSSB,

would be entitled for seniority over those who were lower in merit

list/select panel of the DSSSB but could not be appointed on account of

lapses on the part of respondent nos. 1 to 6 nor the petitioners can

claim seniority on the basis of tentative seniority list issued by

respondent no.1 in 2007.

13. No other grounds have been raised by the petitioners. In the

circumstances, the learned counsel for the petitioners has failed to

make out any such illegality or unsustainability in the order of the

Tribunal which will impel us to interfere with the matter in exercise of

our jurisdiction under Article 226 of the Constitution of India.

14. The writ petition in the facts and circumstances is without any

merit and it is, therefore, dismissed. Parties are, however, left to bear

their own cost.

ANIL KUMAR, J.

FEBRUARY 04, 2011                              VEENA BIRBAL, J.
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