Delhi High Court
Govt Of Nct Of Delhi vs Sibi Thomas on 7 August, 2020
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 5083/2020
GOVT. OF NCT OF DELHI & ORS. ..... Petitioners
Through: Mrs. Avnish Ahlawat, Standing
Counsel, GNCTD (Services) with
Mr. Nitesh Kumar Singh, Advocate.
versus
SIBI THOMAS ...... Respondent
Through: Mr. J.L. Joel, Advocate.
% Date of Decision: 07th August, 2020
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
MANMOHAN, J: (Oral)
CM Appl. 18332/2020
Allowed, subject to all just exceptions.
W.P.(C) 5083/2020 & CM Appl. 18331/2020
1. The petition has been listed before this Bench by the Registry in view
of the urgency expressed therein. The same has been heard by way of video
conferencing.
2. Present writ petition has been filed challenging order dated 31st
January, 2020 passed by Central Administrative Tribunal in OA No.
3757/2017 whereby the Tribunal has allowed the respondent's OA and
directed the petitioner to consider respondent's application for appointment
against the vacancy arising due to non-acceptance of the post of Speech
Therapist by Ms. Deepti M. or against future vacancies. The relevant portion
of the impugned order is reproduced hereinbelow:-
"4. Counsel for the respondents submits that the dossier of one
selected candidate who was sent offer of appointment letter on
07.10.2016, returned back by the user department on 04.01.2017
for the reason of her non acceptance and it was received in DSSSB
office on 25.01.2017, i.e., beyond one year from the date of
declaration of result notice, which is referred to as Annexure A-5.
The relevant portion of the submissions are extracted below:
"4.7 That the contents of para 4.6 & 4.7 are denied. As
per official records, the results for the Speech Therapist (post
code 03/14) was declared by DSSSB in January 2016
(Annexure -1) and same was forwarded to Dept. of H.FW,
GNCTD, with the letter dated 09.09.2016 (Annexure-2), after
a time lapse of almost 8 months after result notification.
Accordingly, nomination of candidate recommended for
Appointment to the post of Speech Therapist with the approval
of Competent Authority was issued from Dept. of H&FW in the
name of Ms. Deepthi M. on 07.10.2016 (Annexure-3), against
which as appointment letter was issued to the candidate by
LNH in the month of Nov. 2016. She sent her non acceptance
on 02.12.2016 (Annexure-4) and her Dossier was returned by
the LNH on 04.01.2017 (Annexure-5) to Department of H&FW
and further it was returned to DSSSB on 25.01.2017
(Annexure-6). Since, Department of H&FW, GNCTD, has not
delayed the matter at any stage, hence denied."
5. Counsel for the respondents referred to para 11 of the
advertisement notice which is extracted below:
11. The DSSSB shall draw a reserve panel/waiting list upto the
extent of 10% of the posts notified, in addition to the number of
candidates selected as per the notified vacancies. The reserve
panel/waiting list shall be valid for a period of one year from
the date of declaration of result and the vacancies arising due
to non-acceptance of the offer of appointment, not joining the
post after acceptance of appointment, the candidate not found
eligible for appointment or due to resignation of selected
candidates, within one year of joining the post, shall be filled
up from this reserve panel/waiting list."
(Emphasis supplied)
6. From the perusal of para 11 extracted above, it is clear that that
if the vacancies were to arise on account of non joining of the
post within one year, the said vacancies shall be filled up from the
reserve panel/waiting list.
7. In view of the second portion of para 11 extracted above as also
in view of the fact that the said Ms, Deepthi M, had sent non
acceptance on 07.10.2016 and counting one year from that date
would be 06.10.2017. But even though her dossier was received on
25.01.2017, the applicant was denied appointment.
8. Admittedly the applicant is at S1. No.1 in the wait list. In view of
the facts and circumstances narrated above, the OA requires to be
allowed. Accordingly, the OA is allowed and the respondents are
directed to consider the applicant for appointment against the
vacancy arising due to non acceptance of said Ms. Deepthi M. or
against the future vacancies."
3. Mrs. Avnish Ahlawat, learned counsel for the petitioner, submits that
the Tribunal has failed to appreciate that the Notification dated 13th June,
2013 categorically states that the life of waitlist will be one year only from
the date of publication of results and the said Notification nowhere states
that the one year period will start from the date when a candidate refuses to
accept the offer of appointment. In support of her submission, she relies
upon the judgment of Supreme Court in Gujarat State, Dy. Executive
Engineers' Association Vs. State of Gujarat & Ors., 1994 Supp (2) SCC
591 as well as the judgment of this Court in Kavita Vs. Government of NCT
of Delhi and Others, WP (C) 13185/2019.
4. Having perused the paper-book, this Court is in agreement with the
submission advanced by Mrs. Ahlawat that the reasoning given by the
Tribunal in para 7 of the impugned order is contrary to settled law and
in particular the aforesaid judgments relied upon by her.
5. However, keeping in view the fact that Ms. Deepti M., the successful
candidate, had informed the Medical Superintendent, Lok Nayak Hospital,
that she would not be accepting the offer of appointment and would not be
joining the post vide letter dated 28th November, 2016 i.e. within one year of
declaration of the result on 06th January, 2016, this Court is of the view that
the vacancy arose within one year of the declaration of the result.
Consequently, in the opinion of this Court, the petitioners should have
offered the vacant post to the respondent as the vacancy arose within one
year of declaration of the result in accordance with para 11 of the
advertisement notice, as extracted in para 5 of the impugned order.
6. Accordingly, the present writ petition and application are dismissed
and the order of the Central Administrative Tribunal is upheld, albeit on a
different ground.
7. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
SANJEEV NARULA, J
AUGUST 07, 2020
sb
