Nirmal Negi vs The Municipal Corporation Of ...
2011 Latest Caselaw 775 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 7377/2010

%                   Date of Decision: February 9, 2011

Nirmal Negi                                                    .... Petitioner
                    Through Mr. N.Parashar, Advocate

                                  Versus

The Municipal Corporation of Delhi                  .... Respondent
                   Through Mr. Gaurang Kanth, Advocate

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

1.   Whether 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


Veena Birbal, J.

*

1. By way of this petition, petitioner has challenged the impugned

order dated 19th February, 2010 passed by the Central Administrative

Tribunal, Principal Bench, Delhi (hereinafter referred to as `the

Tribunal') in T.A.No.841/2009 wherein aforesaid T.A has been

dismissed being devoid of merits.

2. Petitioner was appointed as L.D.C with respondent in 1990 and

was confirmed on 16th April, 1993. The respondent invited applications

from the departmental candidates for unspecified posts of `Hindi

Translator' vide circular dated 19th February, 2003. The examination

for the aforesaid posts was held on 14th February, 2004. The result was

declared on 25th March,2004 and select panel of four persons was

prepared and from May 21, 2004 to June 17, 2004, the vacancies on

the basis of aforesaid panel were filled.

Petitioner has alleged that vide letter dated 25th October, 2005,

under RTI, he was informed that he had secured 109 in the said

examination and his rank was 5th. The case of the petitioner is that

against the five vacancies of `General category' including two

anticipated vacancies which were to arise on 30th April, 2004 & 1st

August, 2004 respectively, only panel of four persons was prepared and

as such, petitioner was affected by the decision of the respondent in not

including the 2nd anticipated vacancy. Petitioner made representation

for inclusion of his name in the panel but no action was taken by the

respondent. Petitioner filed a WP(C) 7707/2007 before this court. Vide

order dated 29th October, 2007 of this court, the said petition was

disposed of with the direction to the respondent to dispose of the

representation of the petitioner dated 1st March, 2006 within two weeks

by passing a speaking order. Thereafter, respondent on 21st November,

2007 passed a speaking order and rejected the representation of the

petitioner. Aggrieved with the same, petitioner filed another petition

being WP(C) 9154/2007 before this court. Pursuant to the Government

Notification dated 1st December, 2008 by which service dispute in case

of MCD were to be heard by the Tribunal and accordingly, the aforesaid

petition was transferred to the Tribunal where it was registered as TA

841/2009.

3. The stand of the petitioner before the Tribunal was that

respondent ought to have prepared a select panel keeping in view not

only the actual existing vacancies but also the anticipated vacancies. It

was contended that respondent took only one anticipated vacancy as

against two. It was contended that one anticipated vacancy was to arise

on the retirement of Mr.Gopi Chand Bhadwaj and other on the

promotion of Mr.Prem Chand Sharma in August, 2004. It was

contended that the action of the respondent in not taking the

anticipated vacancy of August, 2004 in preparing the select panel had

affected the petitioner who was 5th in position. Petitioner contended

that when one anticipated vacancy of April, 2004 was taken into

consideration, respondent ought to have taken the other anticipated

vacancy of August, 2004 into consideration while preparing the select

panel.

4. The stand of the respondent before the Tribunal was that out of

seven vacancies existing at the relevant time, four belonged to UR

category and a panel for the financial year 2003-04 was drawn. The

vacancies which the petitioner is contending arose only in the financial

year 2004-2005 and those vacancies could not have been included in

the panel of 2003-2004. Respondent-MCD had also filed its additional

affidavits dated 15.9.2009 and 13.1.2010 respectively to substantiate

its stand before the Tribunal.

5. The Tribunal dismissed the TA vide impugned order dated 19th

February, 2010 by holding that the respondent had correctly filled up 4

vacancies as only four vacancies in the UR category existed when the

circular was issued for the year 2003-04 and respondent was right in

its decision in not including the two anticipated vacancies which were

for the year 2004-05. Aggrieved with the aforesaid impugned order of

the Tribunal, the present petition is filed.

6. Learned counsel for the petitioner has contended that the

Tribunal committed illegality in holding that four vacancies in the UR

category were available in the year 2003-04. It is contended that four

posts in UR category included one anticipated vacancy of 2004-05, as

such there was no reason why the other anticipated vacancy of 2004-05

was not taken into consideration by the respondent as petitioner stood

5th in the merit. It is contended that petitioner could have been

appointed against the post which had fallen vacant in August, 2004 if

the second anticipated vacancy was taken into consideration while

preparing the select panel. It is contended that act of respondent is

arbitrary and contrary to the law.

7. Learned counsel for the respondent has contended that when

circular dated 19th February, 2003 was issued inviting applications for

filling up the posts of `Hindi Translator' by way of Limited Departmental

Competitive Examination from concerned eligible candidates, four

vacancies in UR category were available and those vacancies were filled

up on 25th March, 2004 and the persons had also joined their duties in

May and June, 2004. The respondent has also contended that seven

vacancies arose after 1.4.2004 for which another selection process was

initiated in the year 2007 wherein also petitioner appeared but could

not qualify the same.

8. We have heard learned counsel for the parties. Petitioner is

relying upon letters dated 20th April, 2007 and 25th October, 2006 in

support of his contention that in the selection process of `Hindi

Translators' by way of Limited Departmental Competitive Examination,

three existing vacancies and one anticipated vacancy were taken into

consideration whereas stand of the respondent throughout i.e before

the Tribunal as well as before this court has been that when the

circular inviting applications on 19th February, 2003 for filling up the

posts of Hindi Translator by way of limited Departmental Competitive

Examination was issued, seven vacancies were existing i.e UR 4, SC 2 &

ST 1 and as per Government of India Department of Personnel &

Training (DOP&T) O.M.No.22011/09/89-Estt(D) dated 17.10.1994

"Ministries/ Departments may calculate vacancies for reporting to

D.P.C financial year wise where ACRs are written financial year wise

and calendar year wise where ACRs are written calendar year wise" and

that MCD is following the financial year with regard to A.C.Rs. Their

further stand in the additional affidavit before the Tribunal was that the

two anticipated vacancies which the petitioner is talking about i.e one

vacancy arose on the retirement of Shri Gopi Chand Bhardwaj on

30.4.2004 and another on 31st August, 2004 on the retirement of Shri

Prem Chand Sharma, the said two vacancies could not have been

taken for the financial year 2003-04 and the same were counted for the

subsequent financial year.

9. This court vide order dated 16.11.2010 directed the respondent

as follows:-

"Ld. counsel for the MCD is directed to file an affidavit indicating as to against which vacancy were the persons short-listed/adjusted by way of promotion......."

In compliance of the same, respondent has filed an additional

affidavit dated 12th January, 2011, the relevant portion of which is as

under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

7. That it is most respectfully submitted that vacancies occurred in the post of Hindi Translator between 1.4.2004 and 31.3.2007 (3 General, 2 SC and 1 ST = 7 vacancies) and for which another selection process was initiated in the year 2007 wherein the applicant was also appeared but could not qualified for the same. It is further submitted that only 3 candidates of General category qualified in the said exam and they joined their duty during the year 2009.

8. That it is again submitted that from the record, it appears that the while initiating the selection process in the year 2003 (Departmental Exam-2004), no anticipated vacancies were taken into consideration. The said selection process was for the existing vacancies at that point of time. Further the vacancies arose from 1.4.2004 and 31.3.2007 are considered for the selection process initiated in the year 2007 (Departmental Exam- 2009). "

From the affidavits of respondent on record, it is clear that no

anticipated vacancies were taken into consideration in respect of posts

of `Hindi Translators' for which applications were invited vide circular

dated 19.2.2003. Though, petitioner has alleged that respondent has

given evasive reply in the affidavits, however, by perusing the affidavits,

it cannot be said that evasive reply has been given, as is alleged. The

stand of respondent to the effect that no anticipated vacancy was taken

into consideration is very categorical.

The letter dated 20th April, 2007 relied upon by the petitioner

does not support the stand of the petitioner. In column no.11 of said

letter, wherein petitioner had asked from respondent "On 25.3.2004

how many posts of Hindi Translator were lying vacant in the

Corporation", the respondent had replied "seven" vacancies and only

those vacancies had been filled up. The other letter dated 25.10.2006

also does not substantiate the stand that one anticipated vacancy had

been taken into consideration as is alleged.

Simply because the name of petitioner was there in the merit list,

petitioner has no indefeasible right for appointment. Reference in this

regard is made to Shankarsan Dash Vs. Union of India (1991) 3 SCC 47

and Punjab State Electricity Board Vs. Malkiat Singh (2995) 9 SCC 22.

In Union of India & ors Vs. Kali Dass Batish & another (2006) 1 SCC 779, the Supreme Court has held has under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the select list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right."

Moreover, as per settled law, MCD was under no obligation to fill

up the vacancy as is contended nor the petitioner had any right to ask

the respondent to fill the same.

10. In view of the above discussion, we find no illegality or perversity

in the findings of the Tribunal which calls for interference of this court

in the exercise of writ jurisdiction under Article 226 of the Constitution

of India. Writ petition is dismissed with no order as to costs.

VEENA BIRBAL, J.

ANIL KUMAR, J.

February 9, 2011 ssb