Delhi District Court
Mca No. 17/19 (27/19) vs Association Of State Road Transport ... on 20 August, 2019
IN THE COURT OF SH. NAROTTAM KAUSHAL,
DISTRICT & SESSIONS JUDGE : SOUTH WEST DISTRICT
DWARKA COURTS : NEW DELHI.
MCA No. 17/19 (27/19)
Vanarla Nagasivudu
S/o Sh. V. China Naganna,
R/o Door No. 2F, SVM Plaza,
Padmavathi Puram,
Tiruchanur Road,
Tirupati, Andhra Pradesh .....Appellant
Versus
1. Association of State Road Transport Undertakings
Through its Executive Director
2. Executive Director, ASRTU
Office at:
ASRTU Bhawan,
Plot No. 4A, PSP Block,
Pocket 14, Sector 8,
Dwarka, New Delhi-110077 .....Respondents
Date of Institution : 14.08.2019
Date of Arguments : 14.08.2019
Date of Decision : 20.08.2019
ORDER
Argued by: Sh. Sandeep Mahapatra, Counsel for the appellant.
Ms. Tanupriya Gupta and Sh. Sugam Kumar Jha, Counsels for the respondents.
1. Challenge in the present miscellaneous civil appeal is to Order dated 18.07.2019 passed by Ld. Civil Judge, S/W vide which the application under Order 39 Rules 1 and 2 CPC has been MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 1 of 7 dismissed.
2. Brief facts necessary for disposal of appeal are that plaintiff/appellant has challenged the advertisement dated 4.06.2019 issued by the defendants/respondents inviting application for the post of Director (Technical) on 'deputation basis'. It is the case of plaintiff that ASRTU/CIRT Employees Recruitment Regulations, 1992 (hereinafter referred to as Recruitment Regulations) provides for appointment for the aforesaid post vide two methods viz 'contract basis' and 'deputation basis'. The defendants/respondents in contravention of the Recruitment Regulation has issued impugned advertisement inviting applications only by one method i.e Deputation basis. Plaintiff/appellant who has since retired and cannot apply on 'deputation basis', has been deprived of his right of applying for the post by the alternative method i.e. on 'contract basis' . It is further the case of plaintiff/appellant that in the past, advertisements have been issued for appointments by both methods. Further that the criteria for age eligibility has also been changed.
3. On the aforesaid pleadings, declaration for the advertisement as illegal and arbitrary has been sought. The defendants/respondents have also been sought to be injuncted from conducting interviews on the basis of impugned advertisement.
4. Defendants/respondents contested the application before the trial court by filing reply to the same. It was pleaded in reply to the application that the Executive Committee has plenary powers for administration, directions and management of business and affairs of the Association. As per Sub-rule V, the Executive Committed is over MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 2 of 7 all supreme in the Selection procedure. It is next pleaded that the selection procedure is transparent and bonafide. The advertisement has been issued in consonance with the Regulations. On the basis of pleadings and submissions made, the Ld. Civil Judge vide impugned order did not find the action of defendants to be arbitrary or violative of Recruitment Regulations. Thus, observing that neither the plaintiff had primafacie case nor balance of convenience and further there was no likelihood of any irreparable loss, application was dismissed.
5. Aggrieved by the impugned order, present appeal has been filed.
6. Sh. Sandeep Mahapatra, Ld. Counsel for the appellant has argued that the Ld. Trial court has failed to appreciate that Recruitment Regulations provides for the appointments to be made on contractual basis as well; which practice had previously been followed by the defendants/respondents. There is no justifiable reason on record for the respondents to have given up the previous practice. Further reduction in the age bar to 58 years from the age limit of 60 years, as provided in the advertisement in the Recruitment Regulations debars the appellant from applying for the post. Ld. Trail court has further committed an error by holding that the appellant/plaintiff does not have a prima-facie case in his favour. It is submitted that though the Ld. Civil Judge has observed that the appointment shall be subject to outcome of the suit; however, without an injunction, the observation would be infructuous as appointment would have been made depriving the appellant right to be considered. Ld. Civil Judge erred by holding that the Regulations of the society have a binding effect only on the members of the Society.
MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 3 of 77. Ld. Counsel for the respondent Ms. Tanu Priya has submitted that the Order does not call for any interference and same ought to be upheld.
8. I have heard Ld. Counsels and with their assistance perused the impugned Order and copies of pleadings, which have been filed along with the appeal.
9. A perusal of Recruitment Regulations reveal that for appointment to the post of Director (Technical); two methods for recruitment have been provided I.e by 'Deputation' or 'contract'. To be precise, the method of recruitment as recorded in the Employment Regulations is; 'deputation/contract'. The Regulation is silent as regards, the manner in which these two methods are to be adopted. It is nowhere provided in the Regulation whether both the methods of recruitment are to be simultaneously adopted or one method is to be adopted after exhausting the other. Thus, the impugned advertisement which is issued for recruitment by one of the methods, provided under the Recruitment Regulations cannot be said to be arbitrary or illegal. This court is of the opinion that it is the prerogative of the employer to adopt any of the two methods provided for in the relevant Regulations. It is not the case of the plaintiff/appellant that the method of recruitment adopted by the defendants/respondents is foreign to the Recruitment Regulation. Therefore, this court does not primafacie find the advertisement to be bad for having adopted only one method of recruitment.
10.1 Challenge to the advertisement is also on the ground that MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 4 of 7 eligibility age has been provided as 58 years to deny the appellant right to be considered. This challenge is absolutely frivolous as study of Regulations reveal that the stipulation as regard age limit provided for in the advertisement is exactly the same as provided for in the Recruitment Regulations. The age limit criteria in the advertisement and the Regulations is as under:
'Age limit- Should not have been completed 58 years on the last date of application'.
10.2. It is noticed that the appellant has concealed his age in the plaint. The affidavit in support of the application under Order 39 Rules 1 and 2 CPC describes his age to be about 58 years. It was on the court query that appellant/plaintiff informed that he had superannuated after attaining the age of 58 years. Surprisingly, the defendants/respondents, in their reply to the application under Order 39 Rules 1 and 2 CPC or in any other pleading, have not raised objection regarding plaintiff's eligibility, being hit by age. It seems that defendants are either in cahoots with the plaintiff/appellant or are contesting the suit/appeal half heartedly.
A study of age criteria as provided in the Recruitment Regulations reveals that suit is absolutely misconceived and frivolous. The appellant/plaintiff has already superannuated after attaining the age of 58 years. He is, thus, not eligible to apply for the post of Director (Technical), for which post the applicant should not have completed 58 years on the date of application. This stipulation is dehors the method of recruitment, whether by deputation or by contract. The appellant/plaintiff is thus not eligible to apply for the post and has instituted the present suit and appeal to disrupt the MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 5 of 7 recruitment process.
11. For the reasons noticed above, this court is of the opinion that primaficie the impugned advertisement does not seem to be in contravention of the Recruitment Regulation. The plaintiff/appellant, therefore, does not have primafacie case in his favour. The findings by the Ld. Civil Judge to this effect, are affirmed.
12. Court also finds no infirmity in the finding of Ld. Civil Judge that the balance of convenience is also not in favour of plaintiff/appellant. The advertised post is lying vacant and is being presently occupied by an incumbent, who is holding dual charge. Defendants/respondents need to fill up the vacancy which is for a senior responsible post and same cannot be kept vacant for long. The recruitment process has already commenced and holding of interview cannot be stalled, only because the second method of recruitment in which appellant/plaintiff becomes eligible to apply has not been adopted by the defendants/respondents.
13. The third necessary ingredient for grant of temporary injunction I.e irreparable loss to the plaintiff/appellant is also not made out as the plaintiff/appellant has no vested right to be considered for employment, when he is not eligible for the method of recruitment adopted by the defendants/respondents.
14.1 On all the three counts the findings of Ld. Civil Judge are well reasoned and justifiable. Finding no infirmity in the impugned order, the same is upheld.
MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 6 of 714.2 For the reasons recorded in para 10.2 above, the court is of the opinion that suit as well as the present appeal are misconceived and have caused unnecessary drain on the judicial time. Appeal is therefore dismissed with cost of Rs. 20,000/- payable to the Prime Minister Relief Fund.
15. A copy of this order be sent to Trial court.
16. Appeal file be consigned to record room.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL
KAUSHAL
Announced in open court Date: 2019.08.21
On 20.08.2019 (Narottam Kaushal)
15:48:51 +0530
District & Sessions Judge:
South West District
Dwarka Courts/Delhi
MCA No. 17/19 Vanarla Nagasivudu Vs. Association of State Road Transport Undertakings Page 7 of 7