Delhi High Court
Shri Subhash Chand vs Municipal Corporation Of Delhi on 27 February, 2012
Author: Badar Durrez Ahmed
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 27.02.2012
+ W.P.(C) 1146/2012
SHRI SUBHASH CHAND ... Petitioner
versus
MUNICIPAL CORPORATION OF DELHI ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr K.D.Saini
For the Respondent : Ms Mansi Gupta
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
BADAR DURREZ AHMED (ORAL)
1. Before the Central Administrative Tribunal, Principal Bench, New Delhi, the
petitioner filed an Original Application No. 818/2010 wherein he sought a direction
that he be promoted to the post of Chaudhary inasmuch as he had qualified in the
written test and his name had figured at serial No.198 in the combined list. He
sought promotion with retrospective effect from 21.4.2005 with all consequential
benefits. The Tribunal rejected the petitioner's said Original Application by virtue
of the impugned order dated 22.9.2011.
2. First of all, the Tribunal rejected the said Original Application on the ground
of limitation and secondly, even on merits, the Tribunal did not find in favour of
the petitioner.
3. The petitioner had joined the MCD as a Mali on 11.07.1972. He had applied
for the post of Chaudhary and had qualified in the written test and as such was
called for the interview. After that, the combined merit list was prepared. His
name figured at serial No.198. According to the petitioner, even though he was
fourth in the seniority of Malis, no advantage of seniority was given to him. It was
also contended by him that out of the 50 persons, who were appointed as
Chaudharies, two of them were Chowkidars and night watchmen. Another point
that was taken by the petitioner before the Tribunal was that the written test,
practical test and viva voce were not conducted by the department itself but the job
had been entrusted to a private agency (Educational Consultant India Limited)
which, according to the petitioner, had no knowledge of the working of the
department and, therefore, the selection was not proper.
4. Insofar as the question of limitation is concerned, the Tribunal noted that the
trade test was conducted in the year 2005 and the promotion orders were also
issued on 15.04.2005. But, the Original Application had been filed by the
petitioner before the Tribunal almost four and a half years later, on 18.02.2010.
Thus, according to the Tribunal, the application was barred by time inasmuch as it
had been filed beyond the period of limitation of one year from the date of the
cause of action as stipulated in Section 21 of the Administrative Tribunals Act,
1985. However, the Tribunal did not stop at this point and even considered the
merits of the case. The Tribunal noted that the post of Chaudhary was a selection
post and could not be claimed simply on the basis of seniority. It also observed
that as per the Recruitment Rules, the post of Chaudhary had to be filled after a
trade test and, consequently, seniority alone was not relevant. As regards the point
raised by the petitioner that certain Chowkidars had been promoted, the Tribunal
noted that this submission had been given up during the time of arguments.
5. The objection that the selection was carried out by a private agency was also
rejected by the Tribunal after noting that the matter had been dealt extensively in
the case of Bachchu Singh v. MCD and Others decided by the Tribunal on
03.08.2011 in TA No.1319/2009. In the said decision in Bachchu Singh's case
(supra), it was specifically recorded that since thousands of Malis/Chowkidars had
to be considered for promotions based on a trade test, the test ought to be entrusted
to an independent agency. It is, in this backdrop, that the independent agency,
namely, Educational Consultant India Limited, which is a Government
undertaking, was called upon to conduct the trade test so as to ensure impartiality
in the trade test. The learned counsel for the petitioner had also raised the plea that
the relevant Recruitment Rules did not refer to any practical test or viva voce.
However, we find that this aspect of the matter had also been considered by the
Tribunal in the case of Bachchu Singh wherein the Tribunal had noted that upon
perusal of the Recruitment Rules, it was apparent that the post of Chaudhary was a
selection post and that the selection had to be done on the basis of a trade test. It
also noted that the manner in which the trade test was to be conducted had not
indicated. However, it was for the independent agency to conduct the trade test in
three parts, that is, written, practical and viva voce. The independent agency
having done so, would not vitiate the selection. The Tribunal also observed that
the conduct of the practical test and viva voce was also the best way to know how
much a Mali who was contemplating promotion to the post of Chaudhary actually
knew.
6. Based on the detailed examination of the very same selection process in the
case of Bachchu Singh, the Tribunal, in the present case, also found that there was
no illegality in the selections carried out in the year 2005.
7. We also find that once the selections are held to be proper, the petitioner has
no case inasmuch as his name figures at serial No.198 in the combined list whereas
there were only fifty vacancies. Consequently, the petitioner could not have been
given the appointment to the post of Chaudhary in respect of those fifty vacancies.
Thus, the view taken by the Tribunal, on merits, cannot be faulted. The writ
petition is dismissed.
BADAR DURREZ AHMED, J
V.K.JAIN, J
FEBRUARY 27,2012
'sn'
