Central Administrative Tribunal - Delhi
Puran vs The Chairman on 9 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A.NO.1465 OF 2009 New Delhi, this the 9th day of January, 2014 CORAM: HONBLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Puran, S/o Shri Shiv Narain, R/o RZ-31, Dwarkapuri, Palam Road, Delhi . Applicant (By Advocate Shri S.B.S.Vashishtha) Vrs. The Chairman, New Delhi Municipal Council, Palika endra, Parliament Street, New Delhi .. Respondent (By Advocate Mrs.Jyoti Singh) O R D E R
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER This T.A. is directed against the judgment and decree, dated 16.10.2008, passed by the learned Civil Judge, Delhi, in Suit No.716 of 2006 (earlier numbered as Suit No.42 of 1998). The Civil Suit filed by the applicant for declaration and mandatory injunction with regard to regularization of his services as Driver under the respondent-NDMC having been dismissed, RCA No.1 of 2009 was filed in the court of the learned Senior Civil Judge-cum-RC, New Delhi. Consequent upon issuance of notification by the Central Government under Section 14(2) of the Administrative Tribunals Act, 1985, making the respondent-NDMC amenable to the jurisdiction of the Central Administrative Tribunal in relation to service matters, the said RCA No.1 of 2009 was transferred to this Tribunal under Section 29 of the Act and registered as TA No.1465 of 2009. A Division Bench of this Tribunal, vide order dated 28.10.2009, while deciding the T.A. in favour of the applicant and setting aside the judgment and decree passed by the learned Civil Judge, issued certain directions to the respondent for regularizing the services of the applicant. In W.P. (C ) No. 5591 of 2010 filed against the Tribunals order dated 28.10.2009, the Honble High Court of Delhi, vide order dated 19.10.2010, set aside the said order of the Tribunal and restored the TA for fresh adjudication by the Tribunal. Another Division Bench of this Tribunal considered the T.A. afresh and disposed of the same, vide order dated 4.7.2011, directing the respondent to comply with the order dated 28.10.2009 passed by the earlier Division Bench within a stipulated period. W.P.( C) No.1538 of 2012 was filed by the respondent-NDMC challenging the Tribunals order dated 4.7.2011.The Honble High Court of Delhi, vide order dated 19.3.2013, disposing of the writ petition, observed as under:
9. Suffice would it be to state that as per Section 22 the procedure relates to disposal of the Original Applications filed before the Tribunal. Since the mandate of law prohibits suits to be filed, in relation to service related matters, the said section vests the power of a Civil Court in the Tribunal.
10. But, where in furtherance of the mandate of Section 29 of the Act the Tribunal has to decide Regular First Appeals against judgments and decrees passed by Trial Court Judges, the Tribunal cannot absolve itself of the obligation to discuss the evidence and return findings issue-wise, as was done by the learned Trial Judge.
11. Disposing of the writ petition and quashing the impugned order dated July 04, 2011, TA No.1465/2009 is restored for adjudication before the Tribunal with a direction that the same shall be decided keeping in view that what came to be registered as TA No.1465/2009 before the Tribunal was RCA No.01/2009 challenging a judgment and a decree dated October 16, 2008 passed by the learned Senior Civil Judge, Delhi. Hence, the T.A. is considered by the present Division Bench for the third time.
2. The brief facts of the plaintiff-applicants case are that he has been working as Muster Roll Driver since 16.03.1985 and discharging his duty as Heavy Motor Vehicle Driver. On the basis of trade test conducted by the defendant-respondent, a select list of Muster Roll Drivers for regularization of service was prepared in August 1988, and he was included in that list at Serial No.32. But services of only 30 Muster Roll Drivers were regularized out of the select list of 32 Muster Roll Drivers, although more vacancies were available at that time. In the year 1992, the defendant-respondent framed the Recruitment Rules for recruitment to the post of Light Motor Vehicle Driver directly. Prior thereto, only Muster Roll Drivers were absorbed/appointed as regular Drivers by the defendant-respondent. In the year 1993, the defendant-respondent invited applications from Muster Roll Drivers for appointment to the posts of Light Motor Vehicle Driver-cum-Fitter. Accordingly, the plaintiff-applicant was interviewed in January 1994. Although he passed the said trade test, he was denied regular appointment as Light Motor Vehicle Driver-cum-Fitter on the ground that he did not possess the educational qualifications prescribed in the Recruitment Rules. A civil suit was filed by the applicant in the year 1994 to restrain the respondent from making appointment to the post of Driver on the basis of the list declared on 22.2.1994 which was prepared on the basis of the trade test conducted in January 1994. In the year 1996, the defendant-respondent notified the vacancies in the post of Heavy Motor Vehicle Driver. The trade test conducted by the defendant-respondent in the year 1997 was also cleared by the plaintiff-applicant, but he was again denied regularization although services of other Muster Roll Drivers, who passed the trade test along with him, were regularized by the respondent after relaxing the Recruitment Rules. Hence, he filed Suit No.42 of 1998, which was subsequently renumbered as Suit No.716 of 2006, praying for the following relief:
a) That a decree of Declaration be passed in favour of the plaintiff thereby declaring him eligible for regularization to the post of J.C.B.Driver/Heavy Motor Vehicle Driver-cum-fitter/Light Motor Vehicle Driver-cum-fitter
b) That a decree of Mandatory injunction be passed in favour of the plaintiff thereby directing the defendant to regularize the services of the plaintiff in the regular scale of pay of Drivers (Heavy/Light Motor Vehicle/G.C.B.driver) w.e.f. 16.3.1985 along with all other benefits including equal pay for equal work in the interest of justice.
c) Any other relief which this Honble Court deemed fit and proper be also granted in favour of the plaintiff, and against the defendant.
3. In the Written Statement, it is contended by the defendant-respondent that the present suit is barred by res judicata as CS No.618/94 filed by the plaintiff-applicant for regularization of service was dismissed. It is stated that in the year 1988 a trade test for selection to the post of Driver (Outside quota) was conducted by the Board of Examiner. Sixty-three candidates were declared qualified in the trade test. Out of 63 candidates, only 31 candidates were found eligible. The case was laid before a Committee and it was decided that those candidates who had completed 500 days as on 31.12.1987 might be selected on regular basis in order of their seniority. Accordingly, a panel of 34 candidates was formed. As the applicant had worked for less than 500 days up to 31.12.1987, he was not included in the panel. As per the Recruitment Rules framed vide Resolution No.3(ii) dated 18.5.73 read with resolution No.32 dated 23.7.74, the educational qualification for recruitment to the post of Driver from outsider/M.R.workers was 8th Class pass with 6 years experience valid license for driving heavy vehicle and tractors without any punishment with 2 years practical experience along with proof in this respect subject to qualifying the trade test. Two separate cadres of Drivers designated as LMV Driver and HMV Driver-cum-Fitter were created vide Resolution No.17, dated 10.7.92 read with resolution No.1 dated 15.7.92 and accordingly, Recruitment Rules for LMV Driver-cum-Fitter were framed prescribing educational qualification and experience as follows:
6. Qualification for direct recruitment: 8th Class pass.
Valid license of LMV without any punishment during preceding 2 years under Motor Vehicle Act.
Two years practical experience of driving vehicles and its repairing & maintenance subject to qualifying trade test.
7. Educational & other qualification for Valid license of LMV for 3 Departmental rectt. 3 years will be put to literacy test and trade test For driving and repairing maintenance. It is stated that appointment to the post of Driver is made according to the above approved Recruitment Rules. Vide circular No. 1885/EE-II/SC-I dated 24.5.1993 applications were invited from RMR/TMR Drivers and from persons sponsored by the Employment Exchange for filling up of the posts of LMV Driver-cum-Fitter. All the eligible candidates were called to appear in the trade test and those who passed the trade test were interviewed by the Selection Committee. On the basis of the recommendation of the Selection Committee and approval of the Administrator, 70 candidates were appointed as LMV Drivers-cum-Fitters and as the plaintiff-applicant was not included in the panel, his service was not regularized. In the year 1996-97, only those Muster Roll Drivers who passed the trade test and were selected after interview by the Board were appointed as Heavy Motor Vehicle Drivers-cum-Fitters.
4. In view of the above pleadings, the following issues were framed by the learned Civil Judge:
1. Whether the plaintiff is entitled to the declaration that he is eligible for regularization of post of JCB driver/Heavy Motor Driver? OPP.
Whether the plaintiff is entitled to the decree of mandatory injunction for regularization of his service w.e.f. 16.03.1985?OPP.
Whether the plaintiff is entitled to consequential benefits? If so from what date? OPP.
Whether the present suit is resjudication in view of suit no.618/94 was dismissed on 04.05.1994?OPD.
Whether the plaintiff is not entitled for regularization as per to the resolution of recruitment rules of the defendant? OPD.
Relief.?
5. The learned Civil Judge, vide judgment dated 16.10.2008, first considered issue No.4. It was found that CS No.618/94 was not decided on merits and was dismissed in default for non-prosecution. Therefore, the learned Civil Judge held that the suit at hand was not barred by res judicata and hence was very much maintainable. Accordingly, issue No.4 was decided against the defendant-respondent and in favour of the plaintiff-applicant.
5.1. After deciding issue No.4 in favour of the plaintiff-applicant, the learned Civil Judge took up issue nos.1,2, 3 and 5 together as they were inter-related. It was found by the learned Civil Judge that the relief claimed by the plaintiff-applicant of declaration and mandatory injunction directing the defendant-respondent to regularize his service in the regular scale of pay of Drivers (Heavy/Light Motor Vehicle/JCB Driver) w.e.f. 16.3.1985 purportedly in view of his having passed the trade test and/or interview conducted by the defendant-respondent in the years 1988 and 1994, was barred by limitation as the suit was not filed by the plaintiff-applicant within a period of three years from the date(s) of cause of action.
5.2 While finding as above, the learned Civil Judge considered the other aspect of issue nos.1,2,3 and 5 as to whether the plaintiff-applicant was entitled to a decree of declaration and mandatory injunction and for consequential benefits w.e.f. 1997 on the basis of the trade test passed by him in the year 1997. The learned Civil Judge, upon analysis of the materials and evidence available on record, found that the applicant did not place any document on record to show that he was eligible to be regularized as per the Recruitment Rules. It was also found by the learned Civil Judge that in the year 1997 the applicant did not figure in the panel as he lacked educational qualification and as such, his service was not regularized and that the applicant failed to place on record any resolution passed by the defendant-respondent to show that any relaxation was granted to others 5.3 On the above findings, the learned Civil Judge decided issue nos.1,2,3 ad 5 against the plaintiff-applicant and in favour of the defendant-respondent and dismissed the suit.
6. In the RCA/T.A., as already stated, the applicant impugned the judgment and decree dated 16.10.2008 passed by the learned Civil Judge. The findings recorded by the learned Civil Judge on issue nos.1,2,3 and 5 were assailed by the applicant on the grounds of non-consideration of Exts.PW2/A and PW2/B, i.e., the certified copies of the judgment and decree passed by the learned Commercial Civil Judge, Delhi, in the suit filed by one Suraj and others in the year 1994, on the basis of which the defendant-respondent relaxed the prescribed educational qualification in favour of the said Suraj and regularly appointed him as Light Motor Vehicle Driver. As regards the findings of the learned trial court that the applicants claim for regularization of service w.e.f. 1985 and 1994 was barred by limitation in as much as the suit for declaration and mandatory injunction was filed in the year 1998, i.e., after three years from the date(s) of cause of action, the applicant has submitted that the said findings are unsustainable, because the defendant-respondent did not regularize the service of the applicant arbitrarily and without any justification. The applicant has also assailed the said findings on the grounds that the learned Civil Judge did not take into consideration the Muster Rolls from 16.4.1985 to 15.5.1985 which show that he was initially appointed as Muster Roll Driver w.e.f. 16.3.1985. Had the number of days of service put in by the applicant been counted from 16.3.1985, instead of 15.7.1986 as claimed by the defendant-respondent, he would have been held to have completed more than 500 days of service as Muster Roll Driver as on 31.12.1987. The applicant has also submitted that the learned Civil Judge erred in law by not taking into account the case-law, namely, AIR 1990 SC 371, Bhagwati Prasad v. Delhi State Mineral Development Corporation, which was cited by the applicant in support of his submissions.
7. In the Reply to the RCA, it is stated by the defendant-respondent that the services of Sh. Suraj were regularized as per the judgment of the civil court and that the said judgment was not applicable to the applicant.
8. Shri S.B.S.Vashistha, the learned counsel for the applicant, submitted that when the Muster Rolls show that the plaintiff-applicant was initially appointed as Muster Roll Driver by the defendant-respondent w.e.f. 16.3.1985 and completed more than 500 days of service as Muster Roll Driver as on 31.12.1987, and when admittedly the plaintiff-applicant passed the trade tests conducted by the defendant-respondent in 1988 and 1994, the denial of regularization of his service by the defendant-respondent was arbitrary and without any justification and therefore, the learned Civil Judges finding that the relief of declaration and mandatory injunction directing the defendant-respondent to regularize the service of the plaintiff-applicant w.e.f. 1985 or 1994 is barred by limitation, is unsustainable and warrants interference by this Tribunal. He also submitted that the defendant-respondent relaxed the Recruitment Rules and regularized the services of one Shri Suraj, who was engaged as Muster Roll Driver and passed the trade test, like the applicant, as per the judgment and decree passed by the civil court. The judgment and decree passed by the civil court were exhibited as PW2/B and admitted into evidence. The learned trial court did not take into account the said material piece of evidence while recording its findings that the plaintiff-applicant failed to place on record any evidence showing that any relaxation was granted to others. Therefore, the said finding of the trial court being unsustainable warrants interference by this Tribunal.
9. Mrs.Jyoti Singh, the learned counsel for the respondent, on the other hand, submitted that the learned Civil Judge rightly held that the relief of declaration and mandatory injunction directing the defendant-respondent to regularize the service of the applicant w.e.f. 16.3.1985 or 1994, as claimed by the plaintiff-applicant, was barred by limitation; the civil suit having been filed more than three years after the date(s) of cause of action. She also submitted that as per the Recruitment Rules, the plaintiff-applicant admittedly did not possess the educational qualification for being appointed to the post of Driver on regular basis and that the service of Shri Suraj was regularized after relaxing the Recruitment Rules as per the judgment and decree passed by the civil court in the suit filed by the said Shri Suraj and others. The plaintiff-applicant being not a party to the said suit, the judgment and decree passed therein were not applicable to the applicant and therefore, non-consideration of the said material/evidence cannot, in law, make the findings of the learned Civil Judge on issue nos.1,2,3 and 5 vulnerable so as to be interfered with by this Tribunal.
10. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
11. No argument was advanced by the learned counsel for the parties before us regarding issue no.4. We have gone through the judgment of the learned Civil Judge. The learned Civil Judge came to the conclusion that since the previous suit was not decided on merits and was dismissed in default for non-prosecution, the instant suit is not barred by res judicata. The settled position of law is that an order or judgment in a case, which has not been decided on merits, cannot operate as res judicata. Therefore, the findings of the learned Civil Judge on issue no.4 are as per law, and we reaffirm the same.
12. Admittedly, the plaintiff-applicant passed the trade test conducted by the defendant-respondent in 1988 for appointment to the post of Driver on regular basis. According to the plaintiff-applicant, the defendant-respondent, while regularizing the services of other Muster Roll Drivers who passed the trade test, did not regularize his service despite availability of vacancies in the post of Driver. The defendant-respondent submitted that the services of Muster Roll Drivers, who had completed 500 days of service as on 31.12.1987 and passed the trade test, were regularized. As the applicant did not complete 500 days of service as Muster Roll Driver, he was not selected and his service was not regularized. As regards the applicants claim for regularization of service consequent upon his having passed the trade test in 1994, the admitted position is that the applicant did not possess the educational qualification prescribed in the Recruitment Rules for appointment to the post of Driver. If at all the applicant was aggrieved by non-regularization of his service, despite his having passed the trade tests in 1988 and 1994, the cause of action for remedying the wrong, if any, caused to him arose in 1988 and 1994, and therefore, as rightly held by the learned Civil Judge, the relief of declaration and mandatory injunction directing the defendant-respondent to regularize his service from 1988 or 1994, as claimed by the plaintiff-applicant in the civil suit filed in 1998, was barred by limitation. Therefore, the findings of the learned Civil Judge on this aspect of issue nos.1,2,3 and 5 are eminently just, and we reaffirm the same.
13. Now we take up the other aspect of issue nos.1,2, 3 and 5 as to whether the applicant is entitled to the relief of declaration and mandatory injunction directing the defendant-respondent to regularize his services consequent upon his qualifying the trade test conducted in the year 1997. It is the applicants case that he passed the trade test conducted by the defendant-respondent in the year 1997, but his services were not regularized because he lacked the educational qualification prescribed in the Recruitment Rules for appointment to the post of Driver, although the defendant-respondent relaxed the educational qualification in favour of several other Muster Roll Drivers including one Mr.Suraj and appointed them to the post of Driver on regular basis. It is admitted by the defendant-respondent that as per the judgment and decree passed by the learned civil court, the educational qualification was relaxed in favour of Shri Suraj and his services were regularized. It is claimed by the defendant-respondent that since the plaintiff-applicant was not a party to the said suit, the said judgment of the learned civil court was not applicable to his case. The finding of the learned Civil Judge is that the applicant failed to place on record any material to show that any relaxation was granted to others. The applicant has assailed this finding of the learned Civil Judge, as being perverse. In this connection, the learned counsel for the plaintiff-applicant invited our attention to the deposition of Shri Dharamvir, Sr.Assistant Electric Estt., Unit-II, N..M.C., Delhi (P.W.1) who produced different records of the defendant-respondent as per the summons issued by the learned trial court. The certified copy of resolution/minutes of the Selection Sub Committee meeting held in the chamber of the Secretary on 29.8.1990 to select candidates for the post of Drivers was produced by P.W.1 and marked as Ext.P.W.1/C. In the said minutes, the Selection Sub Committee observed as follows:
The Selection Sub Committee also noticed that in respect of some of the candidates who have qualified in the trade test at the time of their appointment on muster rolls, some of them were not conforming strictly to the RRs in that as either they were lacking to the Educational Qualification and in experience or were over age etc. It was brought to the notice of the Selection Sub Committee that in such cases the Administrator has granted them relaxation in Educational Qualification at the time of conducting the trade test. In view of the same, Selection Sub Committee recommends that necessary relaxation may be granted in such cases wherever necessary for regular apptt. as they have completed 240 days service on muster roll in one single year. P.W.1 also stated in his examination-in-chief and cross-examination that in the year 1997 a large number of Heavy Motor Vehicle Driver-cum-Fitters were appointed on permanent basis, but the plaintiff-applicant was not selected and regularized. The defendant-respondent did not elicit anything from the cross-examination of P.W.1 disproving the minutes of the Selection Sub Committee, as referred to above. The plaintiff-applicant in his affidavit evidence stated that in the year 1996-97 a large number of Muster Roll Drivers were regularized as Heavy Motor Vehicle Driver after a trade test was conducted. In the year 1997, on the direction of the court, a trade test was conducted by the defendant-respondent. In that trade test, he and S/Shri Mahavir Singh, Jagbir Singh, Bhim Singh, Ram Kumar, Om Prakash, and Suraj qualified. The result of the said trade test was filed in the court of Shri Tej Singh Kashyap, Commercial Civil Judge, Delhi and the name of the plaintiff-applicant was at sl.no.5 of the result sheet. All the aforesaid Muster Roll Drivers were regularized including one Shri Suraj who was illiterate and was much junior to the plaintiff-applicant, but the plaintiff-applicant was denied regular appointment. During examination-in-chief on solemn affirmation, the plaintiff-applicant tendered into evidence the certified copy of the relevant portion of the record in Suit No.155/94 filed by Mahavir Singh and others against NDMC (Ext.P.W.2/A) and the certified copy of the judgment in Suit No.161/94 filed by Shri Bhim Singh and others against NDMC (Ext.P.W.2/B). The said Exts.P.W.2/A and P.W.2/B were admitted into evidence without any objection by the defendant-respondent.
14. Ext.P.W.2/A contains the cause-title of Suit No.155/94 filed by Shri Mahavir Singh and others against the defendant-respondent and a tabular statement showing the particulars of the R.M.R.Drivers for recruitment to the post of L.M.V.Driver, in which the results of the trade test conducted by the defendant-respondent have been indicated. It is seen therefrom that in total six persons, namely, (1) Sh.Jagbir Singh, (2) Sh.Om Parkash, (3) Sh.Harpal Singh, (4) Sh.Suraj, (5) Sh.Puran (applicant), and (6) Shri Jai Ram appeared in the trade test and except Sh.Jai Ram (at sl.no.6), the other five RMR Drivers including the applicant (at sl.No.5) passed the trade test.
15. Ext.P.W.2/B is the order-sheet and the judgment dated 30.10.1997 passed by Shri Tej Singh Kashyap, Commercial Civil Judge, Delhi, in Suit No.161 of 1994 filed by (1)Shri Bhim Singh, (2) Shri Ram Kumar, and (3) Shri Suraj against N.D.M.C. (defendant-respondent). The issue in that suit was: Whether the defendant should be directed to appoint plaintiff no.3 by relaxing the minimum educational qualification? The learned Civil Judge, in paragraph 4 of the judgment, observed as follows:
4. I have perused the authorities and orders passed by Honble High Court in CWP No.646/94. It is admitted case that plaintiff No.3 has been performing his duty as regular muster roll driver with the defendant since 24.10.86 although he is 5th pass whereas the minimum qualification required for the post of light motor vehicle driver-cum-fitter has been prescribed as 8th class. It is also admitted by the defendant that plaintiff no.3 appeared in the trade test conducted by the defendant and was qualified as per the select list. Mr.Major Upmanyu, Transport controller of the defendant had stated before the court on 24.4.97 that defendant shall provide training to the plaintiffs so as to enable them to qualify in the trade test and plaintiff No.3 after undergoing the said trade training had again qualified the test conducted by the defendant as reported to the Court on 28.5.97. Other colleagues of plaintiff No.3 have already been appointed, but the defendant has not issued appointment letter to plaintiff No.3 on the ground that he lacks the minimum prescribed qualification. There is no complaint of any kind against plaintiff No.3 and, therefore, the only impediment against his appointment is lack of minimum prescribed qualification and in view of the authorities reported as AIR 1990 S.C. 371, AIR 1987 S.C.2342 and the order dated 8.10.96 passed by Honble High Court in WP No.646/94, CW 4125/95 and CW 4760/95 wherein one Shri Vijay Kumar has been granted relief under the similar circumstances and Honble High Court has held:
Keeping in view the facts that said Sh.Vijay Kumar has been engaged on muster roll basis by the respondent, NDMC from1987 till date with intermittent breaks and has been performing his job to the satisfaction of the respondent and has also successfully passed the trade test, the mere fact that he does not fulfill the requisite educational qualification, cannot be treated as a bar for not providing him regular job. We direct that in this case, the educational qualification will be duly relaxed. Plaintiff No.3, Sh. Suraj, as per record and as claimed by him is working as regular muster roll driver with the defendant since 24.10.86, i.e., prior to said Sh.Vijay Kumar and has also qualified the trade test and there is no complaint of any kind against him. Although in the present suit, the relief has been prayed for permanent injunction against the defendant from making any appointment to the post of drivers, but by such injunction no useful purpose shall be served and, therefore, the remedy has to be moulded because it is expedient and in the interest of justice that necessary directions be given to the defendant for relaxation of educational qualification in the case of Sh. Suraj, plaintiff No.3 for his appointment on regular basis to the post of driver-cum-fitter of light motor vehicles provided he is otherwise fit in other regards. Accordingly the defendant is directed to relax the educational qualification in respect of plaintiff No.3 for his appointment to the post of light motor vehicle driver-cum-fitter and to appoint him against the said post as per rules. Decree sheet be prepared accordingly and file be consigned to Record Room. The defendant-respondent admittedly implemented the said judgment and relaxed the educational qualification in favour of Sh. Suraj and regularized his services.
16. On analysis of the above evidence, both oral and documentary, we have no hesitation to hold that the plaintiff-applicant had placed on record sufficient materials showing that the defendant-respondent had on several occasions and particularly in the year 1997 regularized the services of Muster Roll Drivers by relaxing the educational qualification prescribed in the Recruitment Rules for appointment to the post of Driver on the basis of the approval of the Administrator and the judgments of the Honble High Court and Civil Court. Therefore, the finding of the learned Civil Judge that the applicant failed to place on record any resolution passed by the defendant-respondent to show that any relaxation was granted to others is perverse and liable to be set aside.
17. The defendant-respondent, being a State within the meaning of Article 12 of the Constitution of India, ought to have treated the plaintiff-applicant at par with other Muster Roll Drivers whose services were regularized by relaxing the educational qualification.
18. In Bhagwati Prasads case (supra), the Honble Supreme Court, in paragraph 6 of the judgment, held as follows:
.Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualifications prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications..
19. In the light of the above discussions and in view of the law laid down by the Honble Apex Court in Bhagwati Prasads case (supra), we set aside the judgment and decree impugned in the R.C.A./T.A. and partly allow the plaintiff-applicants suit as well as the R.C.A./T.A.. The defendant-respondent is directed to regularize the services of the plaintiff-applicant as Light Motor Vehicle Driver, by relaxing the educational qualification prescribed in the Recruitment Rules for the said post, with effect from the date when the services of Shri Suraj were regularized. On such regularization, the defendant-respondent shall grant all consequential benefits to the plaintiff-applicant. The direction contained in this order shall be complied with by the defendant-respondent within a period of three months from the date of receipt of copy of this order. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN