http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

ANIL KUMAR GUPTA AND ORS.

Vs.

RESPONDENT:

MUNICIPAL CORPORATION OF DELHI AND ORS.

DATE OF JUDGMENT: 24/11/1999

BENCH:

S.B.Majmudar, M.Jagamdha Rao, M.Srinivasan

JUDGMENT:

M. JAGANNADHA RAO J.

Delay condoned in all the Special Leave petitions.

Leave granted. Transposition application in SLP(C) Nos.

289- 292/99 allowed.

In all 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.

3960/99) 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.

A 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.

The 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:

1. For 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

2. For 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

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.

On 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.

The result was that the Court had before it two select

lists, one prepared by the MCD and another by Justice Jain.

There 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.

After receiving the report of Justice G.C. Jain, the

Division Bench of the High Court went into various issues.

We are 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:

"Keeping 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:

(a) 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

(b) 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.

(c) 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.

So far 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 affected candidates.

That was how the Letters Patent Appeals and Writ petitions

were disposed of by the High Court.

In 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.

Be that as it may, in the end it has become unncessary

to decide the question as to the extent of the `consent'.

This 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

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 delay.

It was 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 Court.

On 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

in Shri Ravindra Kumar Sharma Vs. The State of Assam [1999

(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.

Hence, 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 (CC. 3960/99).

Point 1 is decided accordingly.

Point 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

behalf was placed upon M.B. Joshi Vs. Satish Kumar Pandey

(1993 Supple (2) SCC 419) and D. Stephen Joseph Vs. Union

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

not be counted. They relied upon N. Suresh Nathan Vs.

Union of India (1992 Supple. (1) SCC 584).

We may 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

view, the case on hand is similar to Subhash Vs. State of

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:

"Section 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.

Such 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

such interpretation will violate the very purpose to give

incentive to the employee to acquire higher education".

This 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.

It is 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.

This 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 & 4:

The 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.

Coming 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.

The issue relating to Mr. Ailwadi and Mr. Naresh Gupta is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

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 experience'.

In the 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 concerned.

Justice 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.

As 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 182 marks.

So far 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

respondents.

For the aforesaid reasons, we hold in favour of the

respondents and against the appellants on Points 3 and 4.

The 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.

No order as to costs.