Supreme Court of India
DELHI TRANSPORT CORPORATION versus SANDEEP KAUSHIK AND ORS. on 3 August 2022
848
SUPREME COURT REPORTS
[2022] 6 S.C.R.
DELHI TRANSPORT CORPORATION
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v.
SANDEEP KAUSHIK AND ORS.
(Civil Appeal Nos. 4920-4921 of 2022)
BAUGUST 03, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Service Law – Appointment / Recruitment – Of Drivers inappellant-transport Corporation – High Court while holding theentire recruitment process to be bad as the appointments were madeCsolely on the basis of marks allotted in the viva test, directed theappellant-transport corporation to appoint respondent no.1 asDriver with seniority as per his merit position without any backwages – Plea of appellant–transport corporation before SupremeCourt that 14 years have passed from the date of the recruitmentDand there are changed circumstances due to which it is not possiblenow to actually reinstate/appoint respondent no.1 on the post ofdriver – Held: On facts, as on today, no post of driver is available– All the subsequent appointments are now being made oncontractual basis and through contractors – As on today, the ageof respondent No.1 would be approximately 49 years while theEretirement age of a driver is reported to be 55 years – If respondentNo.1 is to be appointed now as driver, he will have to clear thedriving test to drive the bus on the road – Considering the overallfacts and circumstances, at this stage, actual appointment ofrespondent No.1 is not possible – However, with a view to doFsubstantial justice, respondent No.1 awarded lumpsum compensationof Rs.7.5 lakhs in lieu of actual appointment with 6% interest fromSeptember, 2013 onwards till the actual payment is made torespondent no.1.
Partly allowing the appeals, the CourtG
HELD:1.1. Considering the fact that the appointments weremade solely on the basis of the marks allotted in the viva test,the impugned judgment and order passed by the High Court,insofar as holding the entire recruitment process bad, does notcall for any interference. [Para 5][851-D]
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1.2. It is however pointed out that as on today, no post ofdriver is available. All the subsequent appointments are now beingmade on contractual basis and through contractors. As on today,the age of the respondent No.1 would be approximately 49 years.The retirement age of the driver is reported to be 55 years. Ifrespondent No.1 is to be appointed now as driver, he will have toclear the driving test to drive the bus on the road. Consideringthe overall facts and circumstances of the case, at this stage, theactual appointment of respondent No.1 is not possible. Therefore,if respondent No.1 is awarded a lumpsum compensation in lieu ofactual appointment as a driver with reasonable interest, the samecan be said to be in larger interest and can be said to be doingsubstantial justice. [Para 5][851-E-H]
2. The appellant-transport corporation shall pay a sum ofRs.7.5 lakhs to respondent No.1 as compensation with 6 per centinterest from September, 2013 onwards till the actual payment ismade. It will be open for the appellant to recover the same fromrespondent No.2. However, the initial liability to pay the aforesaidamount would be on the appellant. [Para 6][852-C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4920-4921 of 2022.
From the Judgment and Order dated 13.09.2013 of the High Courtof Delhi at New Delhi in W.P. (C) No.3510 of 2012 and Order dated05.09.2014 in Review Petition No.195 of 2014 in W.P. (C) No.3510 of2012.
Dr. Monika Gusain, Adv. for the Appellant.
Manish Bhardwaj, Piyush Sharma, Nachiketa Joshi, Shiv MangalSharma, Om Prakash Shukla, Amit Sharma, G. S. Makker, Advs. for theRespondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 13.09.2013 passed by the High Court of Delhi at NewDelhi in Writ Petition No. 3510 of 2012 and the order dated 05.09.2014
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Apassed in Review Petition No. 195 of 2014 in Writ Petition No. 3510 of2012, the Delhi Transport Corporation has preferred the present appeals.
1.1 By the impugned judgment and order, the High Court hasallowed the writ petition and directed the appellant to appoint the privaterespondent herein – original writ petitioner in the writ petition namely,BSandeep Kaushik as Driver with seniority as per his merit position withoutany back wages.
2. Dr. Monika Gusain, learned counsel appearing on behalf of theappellant – Delhi Transport Corporation (DTC) has vehemently submittedthat in the present case, the appellant sent a requisition to the respondentCNo. 2 for recruitment of drivers as far as back in the year 2007. It issubmitted that the advertisement was issued to fill up the post of driversin the month of January, 2008 and thereafter 14 years have passed andthere are changed circumstances due to which now it is not possible toreinstate/appoint the private respondent herein – original writ petitioneron the post of driver.D
2.1 It is vehemently submitted that as on today there is no post ofdriver available on which the private respondent herein – original writpetitioner can be accommodated and/or reinstated. It is pointed out thatnow, all the appointments on the post of drivers are being madecontractually. It is also submitted that the retirement age of the drivers isE55 years and the original writ petitioner, at present, would beapproximately of 49 years of age and even if he is to be reinstated/appointed on the post in question – driver, he has to clear the driving test.It is pointed out that therefore, at this stage, no actual appointment canpossibly be made.
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2.2 It is also vehemently submitted by Dr. Monika Gusain, learnedcounsel appearing on behalf of the appellant that in fact there was nofault and/or illegality on the part of the appellant – DTC. It is submittedthat the entire process of recruitment was handed over to respondentNo.2, who conducted the examination and the entire recruitment processGand the appellant – DTC was to make the appointment as per therecommendations made by respondent No.2.
3. Shri Nachiketa Joshi, learned counsel appearing on behalf ofrespondent No.2 is not in a position to support their action making theappointments only on the basis of the marks allotted in the viva test andwithout there being any guidelines to bifurcate the marks on differentH
aspects. However, he has submitted that subsequently now the entiresystem has been changed.
4. Mr. Manish Bhardwaj, learned counsel appearing on behalf ofrespondent No.1 - original writ petitioner has vehemently submitted thatas such the original writ petitioner has succeeded before the High Courtand the Hon’ble High Court has specifically observed and held that theentire recruitment process was bad as the appointments were madesolely on the basis of the marks allotted in the viva test. It is submittedthat the respondent No.1 – original writ petitioner is fighting since theyear 2008/2009 and even the Hon’ble High Court has directed to appointthe respondent No.1 – original writ petitioner without back wages.Therefore, it is prayed not to interfere with the same.
5. Having heard the learned counsel appearing on behalf of therespective parties and the impugned judgment and order passed by theHigh Court and considering the fact that the appointments were madesolely on the basis of the marks allotted in the viva test, the impugnedjudgment and order passed by the High Court, insofar as holding theentire recruitment process bad, does not call for any interference by thisCourt.
However, at the same time, the question, which is required to beconsidered is whether the respondent No.1 is to be appointed now aftera period of 14 years from the date of initial recruitment and when thereare changed circumstances due to which it is now not possible to actuallyappoint the respondent No.1 – original writ petitioner. It is pointed outthat as on today, no post of driver is available. All the subsequentappointments are now being made on contractual basis and throughcontractors. As on today, the age of the respondent No.1 would beapproximately 49 years. The retirement age of the driver is reported tobe 55 years. If the respondent No.1 – original writ petitioner is to beappointed now as driver, he will have to clear the driving test to drive thebus on the road. Considering the overall facts and circumstances of thecase, we are of the opinion that at this stage, the actual appointment ofrespondent No.1 – original writ petitioner is not possible. Therefore, weare of the opinion that if the respondent No.1 – original writ petitioner isawarded a lumpsum compensation in lieu of actual appointment as adriver with reasonable interest, the same can be said to be in largerinterest and can be said to be doing substantial justice. We are of theopinion that if in lieu of actual appointment, the respondent No. 1 –
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Aoriginal writ petitioner is awarded a sum of Rs. 7.5 lakhs as compensationwith 6 per cent interest from September, 2013 onwards till the actualpayment is made, the same will meet the ends of justice. To the aforesaidextent, the impugned judgment and order passed by the High Court is tobe modified.
B6. In view of the above and for the reasons stated above, thepresent appeals succeed in part. The impugned judgment and order passedby the High Court is hereby modified and it is directed that the appellantshall pay a sum of Rs.7.5 lakhs with 6 per cent interest from September,2013 till the actual payment is made to the respondent No.1 – originalwrit petitioner by way of compensation in lieu of actual appointment, toCbe paid within a period of eight weeks from today. It will be open for theappellant to recover the same from respondent No.2. However, the initialliability to pay the aforesaid amount would be on the appellant – DTC.The impugned judgment and order passed by the High Court is modifiedto the aforesaid extent.
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Present appeals are accordingly partly allowed to the aforesaidextent. However, in the facts and circumstances of the case, there shallbe no order as to costs.
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Bibhuti Bhushan Bose
Appeals partly allowed.
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