Sanjay & Ors vs Employees State Insurance ...
2011 Latest Caselaw 103 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P(C) No.8754/2010

%                       Date of Decision: 07.01.2011

Sanjay & Ors                                            .... Petitioners
                      Through Mr. Avadh Bihari Kaushik, Advocate

                                 Versus

Employees State Insurance Corporation                     .... Respondent
(ESIC)
                   Through Nemo.

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.

*

The petitioners have challenged the order dated 7th September,

2010 passed by the Central Administrative Tribunal, Principal Bench in

O.A No.2913/2010 titled 'Sh.Vikas & Ors v. Employees State Insurance

Corporation' dismissing the original application of the petitioners

seeking direction to the respondent to declare the petitioners as selected

and to appoint them to the post of Nursing Orderlies or alternatively to

set aside the selection process and the select list dated 11th May, 2009

and to direct the respondent to make a fresh select list after combining

the marks obtained by candidates in the written examination and in the

interviews.

The respondent had advertised the filling up of number of

vacancies of Nursing Orderly a Group 'D' post by notification dated 13th

October, 2007. The petitioners alleged that they fulfilled the

qualifications and applied for the same and the result was declared in

March, 2009 and 945 candidates were declared qualified for the

interview including the petitioners. A final select list of a total 201

candidates was issued. On the basis of the performance of the

candidates in the interview only, 9 candidates who were called for the

interview but had failed, challenged the select list dated 11th May, 2009

by filing writ petitions before the Hon'ble High Court of Delhi on the

ground that the selection could not have been done on the basis of

marks obtained by the candidates in the interview alone. Marks should

have been given on the basis of written as well as interview both. The

said writ petitions were transferred to the Tribunal and numbered as

T.A Nos.39/2010, 40/2010 and 41/2010. All the T.As were allowed by

the Tribunal by order dated 20th May, 2010 declaring the selection

process as illegal. Respondents were directed to re-compute and

recalculate the marks obtained by the 945 candidates in the written as

well as interview both and prepare a new merit list. However, the said

judgment was challenged before the Hon'ble High Court of Delhi, and

the orders of the Tribunal was modified directing the respondents to

accommodate 8 out of 9 candidates who had filed the O.A and issue

them appointment letters within a period of four weeks.

The petitioners then filed an O.A No.2409/2010 on the ground

that 4 posts of Nursing Orderlies were still lying vacant because out of

201 candidates invited for interview, 189 posts and 8 post pursuant to

the settlement and direction of the High Court had been filled in. Rest of

the posts remained vacant. The said O.A was dismissed as withdrawn

vide order dated 30th July, 2010 with liberty to approach the

department. A representation was made requesting the extension of the

benefit of judgment dated 14th July, 2010, however, the request was

rejected because of which the petitioners had filed O.A No.2913/2010

before the Central Administrative Tribunal, Principal Bench, New Delhi.

The main relief sought by the petitioners in this original

application was to extend the benefit of order dated 14th July, 2010,

however, on perusing the same the Tribunal observed CM

No.9122/2010 filed by the petitioners in W.P (C) No.4255/2010 wherein

the Hon'ble High Court had rejected their CM observing that they had

chosen to sit by and accept their fate. It was further observed that it is

settled law that law does not come to the rescue of those who sleep and

do not assert their rights at the right time. The High Court had also

held that the act of the respondent which was to be challenged came to

light in the month of April, 2009 when the select list was published and

some of the candidates filed W.P(C) No.4255/2010; 4256/2010 and

4257/2010, however, the candidates who had moved the application for

impleadment in the writ petition did not do so and, therefore, their

applications were dismissed.

The Tribunal, therefore, has declined to give any relief to the

petitioners, who had filed the original application on 30th August, 2010.

In the circumstances, it has been held that the applicants would not be

entitled to challenge the select list which was finally declared in April,

2009.

The learned counsel for the petitioners is unable to disclose any

sufficient or cogent reason for not approaching the Tribunal and High

Court when the select list was declared and for the undue delay on their

part. In the circumstances, there is no illegality or any ground which

will make the order of the Tribunal unsustainable or perverse in any

manner. In the facts and circumstances, this Court finds no ground to

interfere with the order dated 7th September, 2010 dismissing the

petition of the petitioners seeking a direction to the respondent to

declare them selected and appoint them to the post of Nursing Orderly

or to carry out a fresh selection after preparing a merit list as has been

claimed by the petitioners.

The writ petition in the facts and circumstances is without any

merit and it is, therefore, dismissed.

ANIL KUMAR, J.

VEENA BIRBAL, J.

JANUARY 07, 2011 'k'