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.