Rajbir Khatri vs Govt. Of Nct Of Delhi And Ors
2013 Latest Caselaw 884 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of decision: February 21, 2013

+      W.P.(C) 899/2013

       RAJBIR KHATRI                                       ..... Petitioner
                            Represented by: Mr.Sourabh Ahuja, Advocate

                   versus

       GOVT. OF NCT OF DELHI AND ORS             ..... Respondents
                     Represented by: Mr.Anjum Javed, Advocate for R-
                     1 & 2.
                     Ms.Avnish Ahlawat with Ms.Latika Choudhry,
                     Advocate for R-3 & 4.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J.

1. By way of this petition under Article 226/227 of the Constitution of India, petitioner has challenged the order dated October 10, 2011 passed in OA No.3271/2009 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as `the Tribunal‟) whereby the application of petitioner for appointment to the post of Driver with DTC has been dismissed.

2. Briefly the facts relevant for deciding the present petition are as under:-

Respondent-Delhi Transport Corporation (hereinafter referred to as „the DTC‟) advertised 10000 posts of Driver through Delhi Subordinate Services Selection Board (in short referred to as `the DSSSB‟) in the year

2008. Out of 10000 posts, 4303 were earmarked for candidates belonging to unreserved (UR) category and out of 4303 posts mentioned hereinabove, 430 posts were earmarked for ex-servicemen category. Petitioner applied in the general category candidate for the said post. A written test was conducted by the DSSSB on August 12, 2008. Petitioner qualified the said written test. Thereafter, respondent appeared in the skill and driving test on August 20, 2008. Petitioner also qualified the same. Final result was declared by the respondent on September 30, 2008 wherein petitioner did not find his name. The petitioner made various representations to the respondent but he did not receive any response. Thereafter, he sought the information under Right to Information Act, 2005 in order to know reasons for non inclusion of his name in the merit list. Respondent - DSSSB gave him information on January 12, 2009 disclosing that petitioner had secured 55 marks out of 100 marks and the last unreserved candidate who was appointed, has also got the same marks. It was also mentioned that the said candidate has been offered appointed and preferred over the petitioner because he was elder/senior to him in age. Respondent-DTC informed him that only 3859 candidates have been selected through DSSSB in general category. As per petitioner, 14 posts are still lying vacant and these posts were not filled up by the respondent-DTC despite availability of candidates.

3. The petitioner made representation to the respondent for appointment to the post of Driver but his request was not considered. Thereafter he approached the Tribunal by filing aforesaid OA which has been rejected vide order dated September 15, 2010. Thereafter, petitioner filed a review application being RA no.292/2010 seeking review of the order dated September 15, 2010. The same was allowed on June 3, 2011 and the aforesaid O.A. was re-fixed for hearing. However, the Tribunal without dealing with the contention of petitioner has rejected the O.A. vide

impugned order dated October 10, 2011. Aggrieved with the same, the present petition is filed.

4. Learned counsel for the petitioner has submitted that petitioner had cleared the written test as well as skill test and has also secured 55 marks out of 100 marks. It is submitted that candidates who have secured 55 marks out of 100 marks have been selected. It is further submitted that few vacancies are still available with the respondent-DTC and there is no justification in denying appointment to him. Learned counsel has submitted that petitioner also possess Heavy Motor Vehicle Licence for the last three years prior to closing date of submission of application, as such there was no justification in denying appointment to him.

5. The stand of the respondent is that petitioner did not possess the valid Heavy Motor Vehicle Licence for a period of three years on the closing date of submissions of application as per advertisement, as such he was not eligible for appointment. However, during arguments, learned counsel for the respondent has submitted that some selected persons have not joined. It is also recorded by the Tribunal while allowing the review application that learned counsel for respondent-DTC has submitted that 14 candidates had not cleared in the medical examination and as such, appointment could not be offered to them. Learned counsel for the respondent has further submitted that petitioner could not be offered the appointment as he as he did not possess the requisite Heavy Motor Vehicle Licence which was pre-requisite for appointment and due to the said reason, his dossier was not forwarded to the DTC.

6. Perusal of the advertisement which is at page 81 of the paper book, shows that one of the requirements for application to the post of Driver (DTC) is as under:-

"2. Holding a valid Heavy Motor Vehicle Licence for at least 3

years and PSV Badge issued by Licencing Authority, Delhi (as per criteria/conditions applicable to commercial drivers of PSV(s) for issue of Authorisation cards.)

For the time being, while filing application form it is not necessary for the candidates to possess PSV badge, which is essential for obtaining `Authorisation Card‟ by Commercial Drivers."

7. Learned counsel for the petitioner has submitted that the last date of submission of application form was January 21, 2008 and on that date, petitioner was having requisite licence as per the aforesaid advertisement. Learned counsel for the petitioner has referred to page 78 of the paper book showing the requisite Heavy Motor Vehicle Licence. Learned counsel for the petitioner has submitted that petitioner was possessing Heavy Motor Vehicle Licence since 1999 and the said licence was valid till September 18, 2011. It is submitted that initially petitioner was possessing Light Motor Vehicle since 1994 and thereafter the petitioner had undergone course of training with Haryana Roadways and thereafter RTO has converted the LMV licence to HMV licence w.e.f. September 17, 1999 and there is a certificate to that effect. Learned counsel has referred to page 75 of the paper book to substantiate the stand that petitioner possess the valid driving licence of HMV for more than three years on the last date of submission of application form. Learned counsel has taken us to the rejoinder wherein the aforesaid plea was taken before the Tribunal. It is submitted that relevant documents were also filed before the Tribunal.

8. The impugned judgment shows that the aforesaid stand of the petitioner has not been examined by the Tribunal though his stand has been recorded in the impugned judgment. It is also noticed that petitioner had also filed a review application i.e. R.A. No.292/2010 wherein also the said plea was taken and the Tribunal after allowing Review application did not

examine the stand while re-hearing O.A.No.3271/2009.

9. In view of the above discussion, the impugned order dated October 10, 2011 is set aside. Consequently, O.A.No.3271/2009 is restored. The Tribunal will consider the aforesaid aspect of the matter on the basis of material on record and thereafter shall redecide the issue involved in the O.A.

10. O.A.No.3271/2009 shall be listed before the Registrar of the Tribunal on April 2, 2013 on which date, counsel for both the parties shall appear. The Registrar would thereafter list the matter before the appropriate bench for consideration.

11. Writ petition stands disposed of.

12. No costs.

VEENA BIRBAL, J.

PRADEEP NANDRAJOG, J.

FEBRUARY 21, 2013 ssb