Sanjay Kumar vs Employees State Insurance ...
2011 Latest Caselaw 97 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P(C) No.8753/2010

%                       Date of Decision: 07.01.2011

Sanjay Kumar                                             .... Petitioner
                      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 petitioner has challenged the order dated 11th November,

2010 passed by the Central Administrative Tribunal, Principal Bench in

O.A No.3721/2010 titled 'Sanjay Kumar v. Employees State Insurance

Corporation' dismissing the original application of the petitioner seeking

direction to the respondent to declare the petitioner as selected and to

appoint him to the post of Nursing Orderly 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 selection list after combining the

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

interview.

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 petitioner alleged that he fulfilled the qualification

and applied against the OBC category and the result was declared in

March, 2009 and 945 candidates were declared qualified for interview.

The petitioner appeared for interview in April, 2009 but when the select

list was issued, his name did not appear in the select list of 201

candidates which was issued on 11th May, 2009.

The applicant challenged the select list of 201 candidates which

was issued on 11th May, 2009 by filling an original application on 1st

November, 2010. The Tribunal noted the judgment dated 20th May,

2010 in T.A No.39/2010 titled Sh.Rohtash Dabas & Ors v. UOI & Ors

which was relied on by the petitioner. It was noticed that the High

Court had set aside the directions given by the Tribunal in the case of

Rohtash Dabas (Supra) and the matter was amicably resolved.

Consequently, it has been held by the Tribunal that the petitioner

cannot claim relief on the basis of the directions which were given by

the High Court in the case of Rohtash Dabas on the basis of settlement.

Certain other candidates also filed applications in the writ

petition which was filed against the order passed by the Tribunal in the

case of Rohtash Dabas (supra) which application was rejected holding

that it is a 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 in the facts and circumstances has declined the

relief to the petitioner on the ground that he did not come at the

appropriate stage and all the candidates similar to the petitioner have

already been declined relief by the High Court. Reliance was also placed

on the order passed in O.A No.3175/2010 filed by Sh.Shammi against

dismissal of his original application being O.A No.3175/2010 and

declining the relief to him. Against the order passed by the Tribunal in

O.A no. 3175/2010, a writ petition was also filed seeking similar relief

which writ petition was also dismissed by the High Court.

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

petitioner who had filed the original application on 1st November, 2010.

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

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

2009 and pursuant to which appointment process has already been

concluded.

The learned counsel for the petitioner 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 the

part of the petitioner in the facts and circumstances. 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 of the Tribunal dated 11th November, 2010 dismissing the

application of the petitioner seeking a direction to the respondent to

declare him as selected and appoint him to the post of Nursing Orderly

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

been claimed by the petitioner.

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'