Delhi High Court
Municiapal Corporation Of Delhi vs Ajay Kumar Jain on 24 April, 2001
Equivalent citations: 2001VAD(DELHI)311, 92(2001)DLT173, 2001(59)DRJ366
Author: D.K. Jain
Bench: Arijit Pasayat, D.K. Jain
ORDER D.K. Jain, J.
1. This appeal under Clause 10 of the Letters Patent of the Lahore High Court, as applicable to the High Court of Delhi, is directed against the order of the learned Single Judge dated 22nd October, 1998 whereby the appellant Municipal Corporation of Delhi (for short 'the MCD') has been directed to appoint the respondent as Junior Engineer (Civil) from the date he was entitled to with all benefits, within a period of four weeks from the date of the order.
2. To appreciate and adjudicate on the controversy involved, it would be necessary to briefly notice the material facts.
Pursuant to the requisition, name of the respondent was sponsored by the Employment Exchange for the post of the Junior Engineer (Civil). There was no written examination for selection but the following criteria for selection was evolved:
"FOR DIPLOMA HOLDERS WITH TWO YEARS MINIMUM EXPERIENCE (AFTER DECLARATION OF RESULT OF THE DIPLOMA EXAMINATION up to 08.03.1996 I.E. LAST DATE FOR SPONSORING THE NAMES OF THE CANDIDATES.
The weightage shall be worked out on the basis of percentage of marks obtained in class Xth/Higher Secondary Examination conducted by a recognised Board multiplied by the percentage of marks obtained in Diploma Examination on the basis of which Diploma is awarded divided by hundred, calculated to two places of decimal."
On 3rd July, 1996, the respondent was asked to submit his testimonials with the experience etc., if any, within 15 days. According to the respondent, those were duly submitted. Feeling aggrieved that some applicants who were much lower in the merit list had been appointed and he had been ignored, the respondent filed a writ petition (No.1105/97), inter alia, seeking a direction to the MCD to consider and appoint him to the post of Junior Engineer (Civil). Vide order dated 25th March, 1997 the writ petition was disposed of with a direction to the MCD to consider and dispose of respondent's representation by a reasoned order within four weeks from the date of the receipt of the said order, with liberty to the respondent to have the petition revived if he was still aggrieved. In pursuance of the said order, by letter dated 25th April, 1997, the respondent was informed that his candidature for the post of Junior Engineer (Civil) had been rejected by the Selection Committee due to less experience and non-submission of experience certificate for the period with effect from 16th April, 1994 to 31st January, 1996.
3. Being dissatisfied with the said communication, the respondent filed an application (CM 4165/97) for revival of the writ petition, inter alia, contesting the stand of the MCD that experience certificate for the period from 16th April, 1994 to 31st January, 1996 was not furnished. It was asserted that he had filed three experience certificates for three different periods namely, (i) from 1st June, 1993 to 15th April, 1994; (2) 16th April, 1994 to 31st January, 1996 and (3) 1st February, 1996 to 14th July, 1996. Alleging that the certificate for the intervening aforesaid period had been misplaced by the MCD, it was pleaded that these certificates were filed even with the employment exchange. The writ petition was revived vide order dated 24th January, 1997. MCD was directed to file its counter affidavit and the case was adjourned to 12th March, 1998. In its reply affidavit, filed on 2nd December, 1997, while reiterating its stand that the respondent was ineligible for appointment to the post in question, because he had failed to submit experience certificate for period from 16th April, 1994 to 31st January, 1996, in paragraph 7 of the reply affidavit it was stated thus:
"It is further submitted that the selection committee in its meeting held on 30.06.1997 decided that for considering the representations received from some candidates as regards the appointment to the post of Junior Engineer (Civil) the original documents/certificates ought to be verified by the office and only thereafter the case be put up for consideration.
Accordingly, a letter regarding verification of documents was written to Shri Ajay Kumar Jain vide office letter No.HC-II/Engg/Estt/97/1760 dated 01.08.1997 in response whereof Shri Jain has shown his original documents and has also submitted the certificate copies vide application dated 14.08.1997.
The case of such candidates are however still under process."
4. It seems that on respondent's filing the revival application some time in May, 1997, the Selection Committee met on 30th June, 1997 and directed the office to verify the documents/certificates and submit the representation for consideration. Pursuant to the said decision, vide its letter dated 11th August, 1997, the MCD directed the respondent to produce the original documents. It appears from the afore-extracted reply that original documents were shown and certified copies thereof were submitted. As noted above, the case was listed on 12th March, 1987. On 12th March, 1998 at the request of counsel for the MCD time was granted to the MCD to verify the original documents submitted by the respondent and report back the matter to the Court. Nothing was done by the MCD. Again on 10th July, 1998 time was sought by the MCD to verify the original documents. On 5th August, 1998 again last opportunity was granted for the purpose of verification of the original documents submitted by the petitioner with the direction that the report thereof be submitted to the Court. In spite of it, nothing was done by the MCD. Instead at the time of hearing learned counsel for the MCD again raked up the plea that original documents were not submitted by the respondent at the time of submission of the application form. On this, counsel for the respondent, produced before the Court a copy of the letter addressed to the Administrative Officer showing the receipt dated 14th August, 1997 as proof of submission of documents. Noticing that in spite of orders passed by the Court the MCD had not considered the original documents and verified the same, the Court felt that the original documents having been submitted, the respondent had nothing more to do insofar as the verification was concerned, the writ deserved to be allowed. Accordingly, the impugned order was passed.
5. In the aforenoted factual matrix, two questions arise for consideration in this appeal namely, (1) whether after the decision of the Selection Committee to get the certificates verified for the purpose of consideration of respondent's representation in terms of various orders passed by the Court, the MCD was justified in taking the stand that as, according to it, the respondent had failed to file the experience certificate for a part of the period, it was not necessary for it to verify the genuineness of the experience certificate submitted by the respondent in response to its letter dated 1st August, 1997 and (2) whether the learned Single Judge was justified in straightway directing appointment of the respondent instead of directing the Selection Committee to reconsider his case in the light of the documents shown and submitted with his application dated 14th August, 1997.
We have heard Mr.Raman Duggal, learned counsel for the MCD and Mr.K.K.Sharma, learned counsel for the respondent.
6. Assailing the impugned order, it is submitted by Mr.Raman Duggal that the respondent having failed to submit his experience certificate for the period 16th April, 1994 to 31st January, 1996 within the time stipulated in MCD's letter dated 3rd July, 1996, submission of the certificate subsequently on 14th August, 1997 was of no consequence; there are number of other similarly situate candidates, whose representations have also been rejected and, further, even the certificate produced does not appear to be genuine. Mr.Sharma, learned counsel for the respondent, on the other hand, while strongly defending the order passed by the learned Single Judge, has reiterated that the requisite certificates were not only filed with the MCD within the stipulated time, the same were also filed with the Employment Exchange and that is why, finding the respondent eligible in every respect, his name was sponsored by the employment exchange. It is also contended that if the experience certificate for the intervening period was missing, the respondent should have been given an opportunity to furnish the same and in any case, in view of the orders passed by this Court on 25th March, 1997, while disposing of the petition, the Selection Committee was dutybound to consider respondent's representation in the light of the entire material placed before it, particularly when, rightly, it took a conscious decision to get the documents verified and communicate its final decision on this aspect to the Court. Having failed to do so despite a number of opportunities, the Court was left with no option but to accept the stand of the respondent and pass the impugned order.
7. On a careful consideration of the entire matter, we feel that the MCD has not considered the case of the respondent in its correct perspective. As noted above, after the rejection of respondent's representation on 25th April, 1997 on the ground that he lacked sufficient experience, the respondent had moved an application for revival of the writ petition. The main ground for revival was that though the respondent had filed the requisite experience certificates, including for the period from 16th April 1994 to 31st January, 1996, which was stated to be not available on MCD's record, the MCD had failed to take the same into account. Accepting the prayer, the writ petition was revived and the MCD was time and again directed to verify the documents and submit its report to the Court. Till the last date, when the impugned order was passed, time was being sought by the MCD to verify these documents. Even according to its afore-extracted reply affidavit, the case of the respondent was under process for consideration, but, as noticed in the impugned order, the MCD did not verify the documents submitted by the respondent. In our view, after the revival of the writ petition, vide order dated 24th January, 1997, which order was not challenged by the MCD, and in the light of various orders passed subsequently, the MCD was obliged to examine the stand of the respondent taken in the revival application and verify the genuineness of certificates produced and filed in response to MCD's letter dated 1st August, 1997.
8. Further, in this appeal the MCD has placed on record an undated report indicating the details of the representation of the respondent dated 28th February, 1997, apparently prepared after the passing of the impugned order. The said note seems to have ben prepared for consideration of respondent's representation by the Selection Committee, after the respondent filed a contempt petition against the MCD for not giving effect to the impugned order. The note questions the genuineness of the experience certificate for the period from 16th April, 1994 to 31st January, 1996. The said note was placed before the Selection Committee in its meeting held on 4th March, 1997 and the Selection Committee, while rejecting the representation of the respondent, passed the following order:
"Reconsidered. As per Recruitment Regulations, diploma holders to the category to which the applicant belongs require two years of experience towards consideration for the post of Jr.Engineer. Along with the application for the post of Jr.Engineer, the individual had submitted one experience certificate from Jain Bros. for the period 1.6.1993 to 15.4.1994-10 months and 15 days and the second certificate from Super Builders and Suppliers dated 15.7.96 for the period 1.2.96 to 14.7.96 - 5 months 14 days. The experience is required to be calculated only up to 6th March 1996 i.e. total admissible experience of the individual works out to 11 months 23 days against the minimum eligibility experience of two years and as such the individual was not eligible to be considered on the due date and as such his request may be rejected."
9. From the aforenoted minutes it is evident that the Selection Committee merely reiterated its decision, which was communicated to the respondent on 25th April, 1997. It is clear from the minutes that the documents submitted by the respondent pursuant to MCD's letter dated 1st August, 1997 were not even adverted to, let alone these being considered and not accepted for some reason. Thus, even the events subsequent to the passing of the impugned order would show that the directions issued by this Court were not complied with in letter and spirit.
10. The next question for consideration is whether in view of the aforesaid conduct of the MCD, the learned Single Judge was correct in directing the appointment of the respondent to the post of Junior Engineer (Civil). It is well settled that there is no right to claim appointment to a post by way of mandamus. The nature of writ that can be issued in such cases was considered by the Supreme Court in the State of Mysore v. Syed Mahmood .. It was held that where the State government or a Statutory authority is under an obligation to promote an employee to a higher post, which has to be filled up by selection, the concerned authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the Court should not ordinarily issue a writ to these authorities to promote an officer straightway. The power to appoint or promote an officer belongs to the Executive and the power of judicial review may control or review Government's action in this behalf but it cannot extend to acting as if it were the Executive. The Court may direct the Executive to consider the case of the concerned candidate for appointment or promotion, having regard to his qualification, fitness and seniority. While holding that the Court can only issue direction to the Government to consider the question of promotion of the person concerned, in State of Mysore v. C.R.Seshadri & Ors. the Supreme Court observed as follows:
"While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document."
Similar views were expressed in State Bank of India & Ors v. Mohd. Mynuddin .
11. In the light of the principle enunciated in the aforenoted decisions of the Supreme Court, in our opinion, the best course would have been to direct the MCD to reconsider the representation of the respondent within a fixed time frame, although the conduct of the MCD cannot be appreciated and in fact it was such that the Learned Court was compelled to direct the appointment of the respondent as Junior Engineer (Civil).
12. We accordingly set aside the impugned judgment to that extent. We further direct that the MCD shall reconsider the case of the respondent in the light of respondent's stand in CM 4165/97 and the documents furnished by him in response to MCD's letter dated 1st August, 1997 within two months from today. We, however, make it clear that we have not expressed any opinion on the genuineness or otherwise of the documents submitted by the respondent.
The appeal is allowed to the extent indicated above. There will, however, be no order as to costs.