Surat Singh vs Municipal Corporation of Delhi

S. Muralidhar, J.—The Petitioner, who was a Male Staff Nurse Grade A in the Municipal Corporation of Delhi (MCD), filed this writ petition more than 22 years ago for a direction to the MCD to advance the date of his appointment from 1st May, 1981 to 15th March, 1981. He also sought consequential directions to amend the provisional seniority list circulated by the MCD on 30th January, 1985 with respect to Staff Nurse Grade A and place the Petitioner in the appropriate place in the said seniority list.

Through a regular selection process the Petitioner was selected for appointment to the post of Staff Nurse Grade A in the Hindu Rao Hospital (''HRH'') under the MCD. By a letter dated 6th March, 1981 the MCD informed him of his appointment and that in the order of merit his name was at serial No. 1. He was asked to submit his willingness to accept the appointment within seven days so that he could be sent for medical examination. On 15th March, 1981 the Petitioner submitted a certificate of willingness and this was acknowledged by the MCD. The Petitioner was directed to the HRH for medical examination on the same day. The doctors there examined the Petitioner on 16th and 17th March 1981 and declared him fit for the post. The medical fitness of the Petitioner was duly informed to the Matron''s Office at the Town Hall on 18th March, 1981. Since No. other formality was required to be completed, the Petitioner enquired of the Matron as to when he was to be taken on duty. He was informed that some recruitment rules had to be amended and that the appointment letter would be given to him after a week. The Petitioner states that he reported after a week to the Matron''s office but was asked to come the following day. He was made to report to the said office day after day for about 44 days and it was only on 30th April, 1981 at about 4 pm that he was issued a joining letter of that date directing him to join duty at the HRH.

After joining duty the Petitioner was surprised to find that most of the candidates who had been interviewed along with him, and were obviously below him in the order of merit, had been appointed earlier. The Petitioner made a representation to the MCD on 23rd June 1982 stating that despite his submitting a joining report on 15th March, 1981 the formalities of medical fitness and posting took about 45 days for No. fault of his. He requested that the date of his joining duty be corrected as 15th March 1981 instead of 1st May 1981 and that the arrears of salary should be paid for the said period. He received No. response to this representation. He made a further representation on 15th March, 1984. Again there was No. response. On 30th January 1985 the Health Department of the MCD circulated a provisional seniority list of Staff Nurses in Grade A. The Petitioner''s name was at serial No. 847. Mrs. Lajwanti Daniel, who was below the Petitioner in the merit list, was shown as having been appointed on 12th March, 1981 and was placed above the Petitioner at serial No. 816 in the seniority list. So were twenty-nine others who were in fact below the Petitioner in the merit list. The MCD while publishing the seniority list sought objections by 15th February, 1985. The Petitioner states that he was under the bonafide impression that the Department was seized of his pending representations and therefore did not submit objections at that time. He made another representation on 18th July, 1985 seeking restoration of the correct seniority in terms of the MCD''s letter dated 6th March 1981 by which he was informed that he was at serial No. 1 in the merit list. Finding No. response to his three representations, he made a further representation on 9th July, 1986. The Petitioner got lawyer''s notices issued to the MCD on 15th September 1987, and 17th September, 1988. Thereafter the present writ petition was filed on 26th April 1989.

The Petitioner initially arraigned, as Respondents 2 to 31 in the writ petition, those who were below the Petitioner in the merit list of Staff Nurse Grade A but had been given appointment letters earlier and therefore were shown above him in the seniority list. However, all of them could not be served notices for one reason or the other for several years. Meanwhile, the MCD filed its counter affidavit to the writ petition on 30th July 1992 and on 3rd August, 1992 this Court issued Rule in the writ petition. Unsuccessful in getting an early hearing of the writ petition, the Petitioner filed CM No. 7423 of 2002 in which he pointed out that by an Office Order dated 12th June, 2002 the MCD had promoted 65 Staff Nurses as Nursing Sisters. Although the Petitioner was qualified for such promotion he was not promoted. He therefore prayed that he should also be promoted with effect from 10th June, 2002. This application was dismissed for non-prosecution on 23rd July, 2000 but subsequently restored. In response to this application it was pointed out by the MCD that by an Office Order dated 9th January, 2003 the Petitioner was promoted as a Nursing Sister with immediate effect. However the service of notice on the application on the other Respondents was not completed for several years. Some of them retired and some expired. At one stage on 26th October 2004 the Court directed the MCD to place on record the list of the Respondents who were still employed with the MCD. Ultimately the Petitioner filed CM No. 9323 of 2011 seeking deletion of the unserved Respondents out of sheer frustration at not being able to serve some of them even through the MCD. This application was allowed by this Court on 19th August, 2011. The reason for this was that the petition was pending for over twenty-two years and the Petitioner and many of the Respondents 2 to 31 were either retired or not around. Given the reliefs prayed for, even if the petition succeeded, notional seniority could be granted to the Petitioner without prejudicing any of the Respondents.

This Court has heard the submissions of learned Counsel for the Petitioner. None appeared for the MCD and accordingly the counter affidavit and affidavit filed by them have been perused to ascertain their stand.

The issue involved in the present writ petition is in a narrow canvas. Is the Petitioner''s claim that his date of joining should be corrected as 15th March 1981 tenable in law?

The counter-affidavit filed by the MCD on 30th July 1982 does not dispute the fact that the Petitioner had made representations on 23rd April 1982 and 15th March 1984. However, the reason for not considering those representations is that "they were filed untimely i.e., normally objections against seniority are to be filed when invited within the prescribed period. The objections filed before or after the prescribed limit estates consideration as they are not linked to the connected record." The receipt of the objections dated 18th July 1985 and 9th July 1986 is also not denied. However, it is stated that these were not considered because they were "hopelessly time-barred". In the considered view of this Court, there was No. justifiable reason for the MCD not to have treated the Petitioner''s representations dated 23rd April 1982 and 15th March 1984 as objections to the provisional seniority list. Considering the fact that MCD finalized the seniority list and published it finally only on 21st January 1991, it could have even treated the representations dated 18th July, 1985 and 9th July, 1986 as objections to the provisional seniority list. Since in any event it took six years to finalize the seniority list, MCD need not have been rigid about the time limit within which objections had to be filed to the provisional seniority list. There is No. satisfactory answer as to why a person who was first in the merit list and also cleared the medical fitness test within two days of confirming his willingness was not immediately issued the joining letter. The resultant error in the seniority list of Staff Nurse Grade A continued for several years and this resulted in the Petitioner''s promotion to the next higher post of Nursing Sister getting delayed. While the 30 persons who were granted appointments as Staff Nurse Grade A earlier to the Petitioner were promoted as Nursing Sisters with effect from 10th June 2002, the Petitioner''s promotion got delayed till 9th January 2003. For over 30 years the Petitioner waited for redressal of his grievance and superannuated during the pendency of this writ petition without his grievance being redressed by the MCD. This Court is satisfied that the inaction of the MCD on the Petitioner''s representations for several years was arbitrary and resulted in a violation of his fundamental right under Article 14 of the Constitution.

With the Petitioner having superannuated, the only consequential relief that can be granted is to direct the notional fixation of the Petitioner''s correct date of joining as Staff Nurse Grade A as the date on which the person below him in the merit list who completed the medical formalities, like he did, by 17th March 1981 was allowed to join. Correspondingly the date of the Petitioner''s promotion as Nursing Sister will be treated as 10th June, 2002 when all others below him in the merit list were so promoted. Neither of the above corrections will entitle the Petitioner to any arrears of pay. It will not affect either the seniority or the promotion granted to anyone below the Petitioner in the merit list in the post of Staff Nurse Grade A. However, the Petitioner''s retrial and pensionary benefits will be recomputed on the above basis and the difference if any shall be paid to the Petitioner within four weeks. The MCD will within four weeks issue consequential orders implementing the aforesaid directions. Failure to implement the directions within the stipulated time will make the MCD liable to pay penal simple interest at 9% per annum on the sum due for the period of delay.

With the above directions, the writ petition is allowed with costs of Rs. 5,000/- which will be paid by the Respondent MCD to the Petitioner within four weeks.