Kumar Gupta & Ors Vs. Municipal Corporation of Delhi & Ors  INSC
400 (24 November 1999)
M.Jagamdha Rao, M.Srinivasan M. JAGANNADHA RAO J.
condoned in all the Special Leave petitions.
granted. Transposition application in SLP(C) Nos. 289- 292/99 allowed.
these appeals, the correctness of the judgment of the Delhi High Court in
L.P.A. 95/94 and Writ petitions batch dated 12.5.1998 is involved. The
appellants ( except in SLP(C)..CC.3960/99) are the various candidates seeking
appointment as Assistant Engineer (Civil) in the Municipal Corporation of Delhi
(hereinafter referred to as MCD) and whose claims for appointment have been
accepted by the High Court. We shall describe them as "appellants" in
this judgment. The Civil Appeal arising out of SLP(C)..(CC.
is filed by the contesting respondents in the above appeals. These are those
whose selections have been upheld by the High Court though there was some
"irregularity" but whose seniority is in question now. We shall call
them 'respondents' for convenience.
brief resume of the events which have led to the filing of these appeals is
necessary. ON 30.6.1989, the MCD invited applications for filling up 60 posts
of Assistant Engineer (Civil) in the Engineering Department of the MCD.
applications were to be received before 31.7.89. The essential qualifications
for appointment were (a) degree in Civil Engineering and (b) two years'
professional experience. Age was not to exceed 30 years ( relaxable for
government servants and MCD employees). 412 applications were received from the
departmental candidates as well others. The Selection Board of the MCD had to
follow the following norms for awarding marks:
Qualifications: 10 marks Break up Upto 50% marks 5 marks 51% to 60% marks 6
marks 61% to 70% marks 7 marks 71% to 80% marks 8 marks 81% to 90% marks 9
marks 91% TO 100% marks 10 marks
Experience Break up 5 marks (i) Upto two years' experience Nil (ii) 3 to 12
years and above experience at the rate of 1/2 marks i.e. for 10 years 5 marks
(iii) Viva-voce 15 marks The MCD prepared a list of Sixty candidates and all of
them had scored 16 marks or more. 44 were placed in the waiting list. Some of
the candidates who were not selected, filed writ petitions and the said
petitions were dismissed by a learned Single Judge of the Delhi High Court by
common judgment dated 10.8.94. (Only one WP ( by S. Negi) was allowed). Letters Patent Appeals were preferred. Some
fresh Writ petitions were also filed by candidates not selected and these
petitions were tagged along with the appeals.
23.11.95, the High Court passed an order referring to Justice G.C. Jain,
Retired Judge of the Delhi High Court the question whether the allocation of
marks by the MCD to the various candidates was in accordance with the norms
fixed. Justice G.C. Jain gave hearing and finally prepared a list of first 60
candidates and also a list of next 40 candidates. He also prepared a list of
those who became eligible after the cut-off-date (i.e. 17.7.89) and before
31.7.89, the last date for receipt of application. He also prepared a list of
candidates who enrolled after 1.7.89 and 31.7.89.
result was that the Court had before it two select lists, one prepared by the
MCD and another by Justice Jain.
were candidates whose names were found in the MCD select list as also in the
list prepared by Justice G.C. Jain. Justice Jain had held that, in his view,
some candidates who were ineligible by the cut off date or the last date for
receiving application, were wrongly included in the MCD list. Some other
persons who were not eligible according to the MCD list were found to be
eligible by Justice G.C. Jain.
receiving the report of Justice G.C. Jain, the Division Bench of the High Court
went into various issues.
now concerned only with those who have been held eligible by the MCD but who,
according to the appellants, are not eligible on the relevant date. In the High
Court the question arose whether those who were selected in spite of crossing
the age limit or because of not having necessary experience, should be dropped.
The appellants contended that the names of these irregularly selected
candidates should not have been included in the main select list. The Division
Bench, when it decided the appeals, observed that if these selected candidates
were to be asked to go home, they would suffer serious prejudice inasmuch as
most of them had been in service for nearly ten years and had even got
promotions. The Division Bench felt that this was a humanitarian issue. The
Court then put the matter before the parties. It appears that there was
`consent' between the parties that the services of these candidates need not be
terminated but could be continued. The Division Bench observed:
in view, the human problems involved in the case, learned counsel for the
parties consented to an order being made disposing of these appeals/Writ
petitions on the basis of the following criteria:
Candidates, who were earlier found eligible and appointed by the MCD and are
later found by Mr. Justice Jain to be ineligible for appointment may be allowed
to continue in service.
Candidates, who were really found ineligible by the MCD and are later found by
Mr. Justice Jain to be eligible for appointment and who have approached the
Court within reasonable time, should be accommodated by giving them employment
against existing vacancies.
Candidates, who are found by Mr. Justice Jain to be ineligible for appointment
on the ground that they had obtained employment by producing false/fictitious
certificate, should be cashiered." The High Court then took up certain
cases of candidates who fell under category (c) and found that Sunil Tyagi was
eligible as the certificate of experience produced by him could not be termed
as false or fictitious. Dalip Ramnani was also to be treated as having
requisite experience as the certificate produced by him could not be treated as
fictitious. Mahabir Prasad and Ajay Gautam were also similarly declared as
eligible. The High Court, to that extent, differed from Justice Jain.
as candidates who were found entitled to selection on the basis of marks as
awarded by Justice Jain were concerned, it was declared that though they could
now be appointed, they were to be treated as appointed in 1989 but without
arrears of pay. Inter-se-seniority of the candidates now selected as per
Justice Jain's list and in respect of those whose names were common to that
list and the MCD list, was to be based on their ranking in the merit list as prepared
by Justice Jain and this was to be done after giving due opportunity to the
was how the Letters Patent Appeals and Writ petitions were disposed of by the
these appeals by some of the selected candidates, it was contended by learned
senior counsel Sri Rakesh Dwivedi, Sri Ravinder Sethi and Sri S.B. Sanyal and
others that Justice Jain was wrong in taking into account the pre- degree
experience of respondents and that the candidates who were ineligible either on
account of age or on account of not having experience as on the cut-off date -
even if continued in service - should not be ranked in the merit list as per
their marks but ought to have been placed at the bottom of the list. There was
some argument before us whether the `consent' between the parties related not
merely to the continuance of the respondents who were "irregularly"
selected by the MCD but who were given ranking as per their marks. The
appellants contended that there was no 'consent' regarding the grant of
seniority to these candidates. The respondents contended otherwise.
that as it may, in the end it has become unncessary to decide the question as
to the extent of the `consent'.
was because learned senior counsel for the contesting respondents, Sri P.P.Rao
contended alternatively that so far as the contesting respondents in regard to
whom the appellants raised the question of their ineligibility and their
seniority, they were all fully qualified and their appointments were not
"irregular" nor "tainted" as observed by the High Court.
They had the necessary degree qualification or experience of two years by the
due date and they were fully eligible. The observations of the High Court about
their ineligibility or their appointments being "irregular or
tainted" was, according to learned senior counsel, wholly unwarranted. So
far as their age was concerned, it was agreed before us that there was
`consent' to that extent. Sri P.P.Rao contended that in case of diploma
holders, Justice Jain rightly took into account the experience of the
respondents gained before they obtained the degree. But Counsel argued that
Justice Jain went wrong in omitting the experience gained before the date of
issuance of the marks certificates or experience gained before the actual
announcement of degree results. In reply to the said contentions, learned
senior counsel for the appellants contended that the respondents had not filed
any Special Leave petition in time to attack the finding of the Division Bench
that the respondents' appointments were "irregular" or were
"tainted". It was argued that respondents could not be allowed to
contend that they had the necessary experience of two years. To get over this
argument, the respondents have preferred an independent appeal, i.e., Civil
Appeal arising out of SLP(C)..(CC.3960/99), with an application to condone
of course also submitted for respondents that even without filing an appeal
they could attack the adverse observations made by the Division Bench of the High
those contentions, the points that arise for consideration are as follows: (1)
Whether the respondents can justify the final order of the High Court on other
grounds upon principles referable to Order 41, Rule 22 of the C.P.C. without
filing an appeal in time? (2) Whether, while deciding whether the respondents
had two years' experience, the experience gained while holding diplomas could
also be counted in addition to the experience gained after obtaining degree?
(3) Whether, in some cases, Justice Jain was right in excluding the period of
experience gained before the publication of result, or experience gained before
issuance of the certificate of experience? (4) Whether, on the basis of the
answers to Points 2 and 3, the respondents were eligible for appointment as
Assistant Engineers? Point 1: In view of the recent judgment of this Court (7)
SCC 435], it is, in our opinion, open to the respondents to attack the adverse
findings arrived at or observations made by the High Court, even if the respondents
had not filed a separate appeal against that part of the judgment.
the respondents can contend that the finding or observations that their
appointments were tainted was not correct. We have also condoned the delay in
filing the Special leave petition (CC. 3960/99) and therefore, for both
reasons, it will be open to them to attack the said finding in the appeals of
the appellants or as appellants in their own Civil appeal arising out of SLP
1 is decided accordingly.
2: On this question, the learned senior counsel Sri P.P.Rao for the selected
candidates contended that the experience of the respondents while holding
Diploma has to be counted in addition to the period of experience which they
obtained after getting their degrees. Reliance in this of India (1997(4) SCC 753). On the other
hand, learned senior counsel for the appellants, Sri Rakesh Dwivedi, Sri Ravinder
Sethi and Sri S.B. Sanyal contended that the experience of the respondents
while holding diploma, could Union of India (1992 Supple. (1) SCC 584).
point out that in the present case, the relevant provisions applicable and the
notification dated 30.6.89 inviting applications refer to essential
qualification as (i) Degree and (ii) 2 years' 'professional' experience. As
stated earlier, experience upto 2 years is the minimum and those above 2 years,
get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum
marks being 5 for experience. We may at the outset state that the provision regarding
experience speaks only of "professional experience" for two years and
does not, in any manner, connect it with the degree qualification. In our Maharashtra
(1995 Supp.(3) SCC 332) where, while considering Rule 3(e) of the relevant
Recruitment Rules, namely, the Maharashtra Motor Vehicles Department
(Recruitment) Rules, 1991, this Court pointed out that the rule 3(e) which
required one year experience in registered Automobile Workshop did not make any
difference between acquisition of such experience prior to or after the
acquisition of the basic qualification. It is true, in N. Suresh Nathan's case,
the experience of a candidate while holding diploma was not counted. There the
relevant rules stated:
Officers possessing a recognised Degree in Civil Engineering or equivalent with
three years' service in the grade failing which Section Officers holding
Diploma in Civil Engineering with six years' service in the grade" This
Court based its decision initially on the practice obtaining in the department
over a long number of years when the rules were understood as requiring full
service of three years after obtaining the degree On that basis it was held
that service was not to include service while holding a diploma. Suresh
Nathan's case was, however, distinguished in M.B.Joshi's case. In the latter
case the relevant rule referred to (i) Diploma holder Sub Engineers completing
12 years of service 35% (ii) Draftsman & Head Draftsman completing 12 years
of service (iii) Graduate Sub- Engineers completing 8 years of service 10%. The
Court was concerned with category (iii). It was pointed out that the Rule did
not contemplate any equivalence between a degree with particular number of
years of service as in N.Suresh Nathan's case. It was observed that the Rules
in M.B.Joshi's case "clearly provide that the diploma holders having
obtained a degree of engineering while continuing in service as Sub-Engineers
shall be eligible for promotion to the post of Asst. Engineer in 8 years of
service and quota of 10 per cent posts has been earmarked for such category of
persons". The judgment in M.B.Joshi's case supports the case of the
respondents. The above ruling in M.B.Joshi was followed in D.Stephen's case. In
that case, this Court again distinguished N.Suresh Nathan's case. This Court
however cautioned that any practice which was de hors a Rule could be no
justification for the department to rely upon.
past practice must relate to the interpretation of a rule in a particular
manner. This Court then followed M.B.Joshi's case as being one where the
language of the rule was specific that "if a particular length of services
in the feeder post together with educational qualification enables a candidate
to be considered for promotions, it will not be proper to count the experience
only from the date of acquisition of superior educational qualification because
such interpretation will violate the very purpose to give incentive to the
employee to acquire higher education".
decision in D.Stephen's case also supports the case of the respondents.
Therefore, on the language of the notification dated 30.6.89, we are of the
view that the 2 years professional experience need not entirely be experience
gained after obtaining the degree.
true that in one of the counter-affidavits in CWP 606/1985, the MCD took the
view that the experience ought to be after acquiring degree. But the
clarification of the UPSC dated 13.9.85 addressed to the MCD made it clear that
the entire service including the service rendered before obtaining degree was
to be taken into consideration.
letter has, in fact, been relied upon by the learned Single Judge of the High
Court for holding that service rendered before acquiring the degree was to be
counted. For the aforesaid reasons, we hold that the service rendered by the
Diploma holders before obtaining degree can also to be counted. Point 3 &
dispute regarding ineligibility centres round 18 candidates before us. Here,
there are two categories. In regard to some of them, Justice Jain held that
they were beyond 30 years by the cut off date while in regard to others he held
that they did not have the required professional experience of two years. So
far as the first category is concerned, they were all MCD employees earlier and
age was relaxable as per the advertisement. Further, in view of the `consent'
between parties in the High Court and before us, those who were selected by the
MCD in spite of exceeding 30 years and who otherwise were held by Justice Jain
as having secured the necessary marks, are to be retained. There is no
difficulty so far as these persons are concerned.
to the second category, so far as Dalip Ramnani was concerned, rejection of his
case by Justice Jain was based mainly upon the suspicion regarding the genuineness
of two certificates of ICMCP Ltd.,Gurgaon as regards his experience. Now, the
High Court has held that Justice Jain was wrong in suspecting these
certificates. On that finding of the High Court, the position will be that he
will have to be treated as having more than two years experience, for the
entire period of ten months from 1.4.86 to 31.1.87 in ICMCP will have to be
counted rather than only two months and 14 days in ICMCP as done by Justice
Jain. According to Justice Jain, his experience otherwise came down to 1 year,
7 months, 1 day. If, therefore, the entire ten months and not merely 2 months,
14 days period is taken into consideration, that will add up 7 months, 16 days,
more making the experience 2 years, 2 months, 17 days. Coming to Sri R.K. Ailawadi,
Justice Jain held that he got his degree on 29.7.87, the marks sheet is dated
24.7.87. Justice Jain considered his experience in Bhasin Construction Co. for
the period 2.7.87 to 22.8.88 as 1 year, 1 month, 22 days and as JE in MCD from
23.8.88 to 31.7.89 as 11 months, 9 days, in all 2 years, 1 month, 1 day.
Justice Jain excluded the experience prior to 24.7.87. Similarly, in the case
of Naresh Gupta, the marks certificate is dated 24.7.87 and the service in Aggarwal
& Co. is from 15.6.87 to 30.11.88 (1 year, 5 months, 16 days) and as JE in
MCD is from 1.12.88 to 31.7.89 (8 months). If the service from 15.6.87 to
23.7.87 is not to be considered, the candidate will be ineligible.
issue relating to Mr. Ailwadi and Mr. Naresh Gupta is a common issue. In the
case before us, the words used in the rules and notification are `professional
experience' of two years. The narrow question is whether the experience gained
after the examination and before the publication of results, can be taken into
account. We may point out that this issue does not concern itself with a
question sometimes raised in relation to cases where the result of the
examination is not declared before the date of advertisement or last date of
receipt of application and is announced after such date. Such cases may stand
on a different footing. We are aware that, in regard to those cases, there are
various rulings of this Court as to which is the crucial date. Here we are not
concerned with such an issue because the advertisement is of 1989 and long
before that in all the cases, the degree results were announced and degree
certificates/marks sheets were also obtained. We are here concerned with a
limited question as to whether the experience gained after campus selection,
i.e., after final examination in BE was over and before publication of result
of BE examination/or marks certificate, could be treated as `professional
context of the advertisement in this case and the facts - including the rival
pleas as to `consent' in the High Court, we are disinclined to hold that the
experience rendered before actual announcement of results is to be excluded. We
are dealing with a case in which no argument as the one raised before us was
advanced in the High Court on this issue. Added to this, the rival claims as to
`consent' of parties in the High Court remain. We are, therefore, not inclined
to disturb the conclusion of the High Court so far as these two officers are
Jain has found Sri Dinesh Yadav, Sunil Kumar, Saminder Negi, Ramesh Kumar, A.K.
Mittal S.K. Mehta eligible by counting their experience while they held
Diploma. These officers passed BE or AMIE later but long before the
advertisement. Our decision on Point 2 holds good and Justice Jain was right in
counting their pre-degree service.
regards Dalip Ramnani, we have upheld the view taken by the High Court that he
had the requisite experience for appointment. But at the end of the judgment,
the High Court has observed that the inter se seniority of the candidates will
be according to their ranking in the merit list prepared by Mr. Justice Jain. Mr.Justice
Jain has not given any rank to Dalip Ramnani as he suspected his certificates
and held him 1 to be ineligible, though he was awarded 182 marks by the Selection
Board. Now that the High Court has accepted the certificates and he becomes
eligible, we direct that the seniority given by Justice Jain will stand amended
by placing Dalip Ramnani at the relevant 1 place treating him as having secured
as Girish Chand, D.S. Danda, M.S. Rana, Manohar Diwani, S.N.Gupta, S.K. Sindhwani,
N.K. Gupta, Pushkar Sharma are concerned, Justice Jain held that they were
above 30 years and hence their appointments were irregular. But, in view of the
fact that they were already working in MCD and for such candidates the age was relaxable
and there was `consent' in the High Court for their continuance, the appellants
cannot raise any dispute in this Court, so far as these candidates are
concerned. No specific argument was advanced in respect of other respondents.
the aforesaid reasons, we hold in favour of the respondents and against the
appellants on Points 3 and 4.
appeals arising out of S.L.P.(C) Nos.14160/98, 287-288/99, 289-292/99 are
dismissed. Appeal arising out of S.L.P.(C).....(CC 3960) is allowed, subject
however to the modification pointed above in respect of the inclusion of Dalip Ramnani
in the seniority at the 1 point of 182 marks.
order as to costs.