Central Administrative Tribunal - Delhi
Sanjay Kumar vs Employees State Insurance Corporation ... on 11 November, 2010
Central Administrative Tribunal Principal Bench O.A. No.3721/2010 New Delhi, this the 11th day of November, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Sanjay Kumar S/o Shri Balbir Singh R/o H.No.602, A/35, Janta Colony, Near Namdev Mandir, Rohtal *Haryana)-124001. Applicant By Advocate: Shri Avadh Bihari Kaushik. Versus Employees State Insurance Corporation (ESIC) [Through: Its Chairman] Office of the Directorate (Medical) Delhi ESI Scheme, ESI Dispensary, Tilak Vihar Complex, Near Tilak Vihar Nagar Police Chowki, Delhi-110 018. ..Respondents O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has sought the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order directing the respondent to declare the applicant as selected and appoint him on the post of Nursing Orderly:
Or/alternatively
(ii) Set aside the selection process adopted by the respondent thereby quashing the select list dated 11.5.09 and direct the respondent to make afresh selection after preparing a merit list calculating the combining the marks obtained by the candidates in written examination and interviews.
Direct the respondent that while making fresh selection on the basis of merit list prepared after calculating the marks obtained by the candidates in written examination and interview, the maximum marks for interview be not allotted more than 15% of the total marks;
(iv) Any other relief, order or directions which this Honble Tribunal considers just and fit in the circumstances of the case may also be passed in the interest of justice.
2. The brief facts, as alleged by the applicant are that Notification dated 13.10.2007 was issued for filling up number of vacancies including that of Nursing Orderly, a Group D post. Since applicant fulfilled the qualification, he applied against OBC category and was issued an Admit Card bearing Roll No.2300059 and was allowed to appear in the written examination held on 31.1.2009. The result was declared in March 2009 whereby 945 candidates were declared qualified for the interview. Applicant appeared in the interview in April, 2009 and had done well but his name did not figure in the final select list issued for 201 candidates on 11.5.2009.
3. It is submitted by the applicant that this list was based only on the result of interview as written examination marks were not taken into consideration. He moved an application under Right to Information Act to know the basis of selection and marks obtained by him. The said information was given to the applicant on 15.7.2010 whereupon he was informed that he had got 184 marks in the written examination as well as 33 marks out of 100 in the interview.
4. It is stated by the applicant that he approached the respondents by way of written representation dated 20.9.2010 requesting to declare him selected for the post of Nursing Orderly in view of the fact that his name was included in the list of 945 candidates who were called for the interview and also in view of the undisputed fact that he had got more marks in written test as well as in aggregate as compared to the candidates originally selected and those 8 candidates who were subsequently accommodated by the respondent. Applicant was told that since selection process is already over, nothing could be done at this stage. In these circumstances, he had no other option but to file the present OA. He placed reliance on judgment dated 20.5.2010 in TA No.39/2010 in the case of Shri Rohtas Dabas and Others Vs. U.O.I. & Others.
5. We have heard counsel for the applicant and perused the pleadings as well as the relied upon judgment.
6. It is correct that in the case of Rohtas Dabas, this Tribunal had cancelled the selection for the post of Nursing Orderlies and had directed the respondents to complete the selection process by computing the marks both in the written test as well as in the viva voce and finalise the list within a period of 2 weeks from the date of receipt of a certified copy of this order. However, when this matter was carried to the Honble High Court of Delhi by those persons, who were already selected or by the department, Honble High Court of Delhi was pleased to pass the following order:-
1. Without going into the merits of the impugned order, Mr.Yakesh Anand, learned counsel for ESIC states that to find an equitable solution to the problem at hand which solution would not create administrative chaos and would preserve the rights of the candidates who have been empanelled, ESIC has a ready solution.
2. The 8 surviving claimants, (excluding Surender Kumar respondent No.4 in WP(C) 4257/2010 who, as noted above, has abandoned his claim), i.e. the remaining 8 applicants before the Tribunal, viz. the remaining respondents in WP(C) Nos.4255/2010 to 4257/2010 can be offered the letters of appointment for the reason all of them had obtained marks high enough in the written examination evidenced by the fact that out of 3160 candidates who appeared, their names were in the list of 945 candidates.
3. Counsel further points out that these candidates have done reasonably well on an overall purview i.e. the aggregate marks at the written examination and at the interview and that ESIC agrees to take them under employment for the reason not all posts which were advertised got filled up for the reason many candidates on the select list did not accept the offer and as of today there are 10 vacancies which are available.
4. Taking note of the fact that only 9 persons challenged the selection process, meaning thereby that the other candidates acquiesced in whatever happened; noting that ESIC could not have resorted to a selection process which made it extremely subjective; further taking note of the fact that the 8 persons who would be getting the benefit of the concession made by the ESIC were in the top 25% of the candidates, who took the written examination and as per marks obtained by them which has been shown to us at the interview have done reasonably well, to bring the curtains down on litigation which can be amicably resolved by satisfying the claim of those candidates who asserted their rights and preserving the rights of those who were selected and were given appointment letters, we feel that ends of justice would be met by passing the following directions:-
(i) WP(C)No.4255/2010, WP(C)No.4256/2010 and WP(C)No.4257/2010 stand disposed of setting aside the directions issued by the Tribunal vide impugned order dated 20.5.2010.
(ii) The respondents of WP(C) Nos.4255/2010, 4256/2010 and 4257/2010, save and except Surender Kumar S/o Om Prakash, respondent No.4 in WP(C) No.4257/2010, would be issued appointment letters offering them employment as Nursing Orderlies. The petitioner shall do the needful within 4 weeks from today.
(iii) The said 8 persons would rank junior to the existing Nursing Orderlies and would not be entitled to any back-wages and their service shall be reckoned with effect from the date when the letter of offer is issued to them and their inter se seniority would be as per their date of birth. It is thus clear that the directions given by this Tribunal were set aside and matter was amicably resolved by the Honble High Court, therefore, applicant cannot claim relief on the basis of same directions which were set aside.
7. It is also relevant to note that in the said Writ Petition certain persons, who were not applicants before the Tribunal had filed CM for being impleaded in the Honble High Court of Delhi so that they could also get the same benefit but that CM was rejected by observing as follows:-
8. The applicants of CM No.9122/2010 were also in the list of 945 candidates called for interview but were not in the final select list. It is apparent that they chose to sit by, and accept their fate. They never took recourse to legal remedies. They seek to reap the harvest of the labour put in by somebody else.
9. It is settled law that law does not come to the rescue of those who sleep and do not assert their rights at the right time.
10. From the facts noted herein above, it is apparent that the offending act of the petitioner came to light in the month of April 2009 when the select list was finally published and as respondents of WP(C) No.4255/2010, WP(C)No. 4256/2010 and WP(C)No.4257/2010 promptly asserted their rights in the month of May 2009, the applicants did not do so.
11. It is apparent that the applicants have acquiesced whatever rights they had.
12. The application is accordingly dismissed.
8. From above it is clear that those persons who had not come to the court at appropriate stage were not given any benefit by the Honble High Court of Delhi on the ground that law does not come to the rescue of those who sleep and do not assert their rights at the appropriate time. It was also noted that the select list was finally published in April, 2009 and those who were aggrieved promptly asserted their rights in the month of May, 2009 whereas applicants did not do so, therefore, they had acquiesced to whatever rights they had. Finally, the relief was restricted to only those applicants who had approached the court in time.
9. After the above matter was decided another person, namely, Shri Shammi had approached the Tribunal by filing OA No. 3175/2010 claiming the same relief. The said O.A. was dismissed on 22.9.2010 in view of the orders passed by the Honble High Court of Delhi. The said order has also been affirmed by the Honble High Court of Delhi.
10. The case in hand would be still worse because applicant did not approach the Honble High Court even at that time when others had filed CM in the Writ Petition. This OA has been filed by the applicant only on 1.11.2010, i.e., much after the judgment was passed by the Honble High Court of Delhi, therefore, we cannot entertain this OA as that would amount to overreaching the order already passed by the Honble High Court of Delhi.
11. In view of above, the present OA is dismissed at the admission stage itself. No order as to costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh