Delhi Transport Corporation vs Sandeep Kaushik

CIVIL APPEAL NOS. 4920-4921 OF 2022

Delhi Transport Corporation …Appellant(s)

Versus

Sandeep Kaushik and Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 13.09.2013 passed by the High Court of Delhi at New

Delhi in Writ Petition No. 3510 of 2012 and the order dated 05.09.2014

passed in Review Petition No. 195 of 2014 in Writ Petition No. 3510 of

2012, the Delhi Transport Corporation has preferred the present

appeals.

1.1 By the impugned judgment and order, the High Court has allowed Signature Not Verified

the writ petition and directed the appellant to appoint the private Digitally signed by R Natarajan Date: 2022.08.03 16:05:10 IST Reason:

respondent herein – original writ petitioner in the writ petition namely,

1 Sandeep Kaushik as Driver with seniority as per his merit position

without any back wages.

2. Dr. Monika Gusain, learned counsel appearing on behalf of the

appellant – Delhi Transport Corporation (DTC) has vehemently

submitted that in the present case, the appellant sent a requisition to the

respondent No. 2 for recruitment of drivers as far as back in the year

2007. It is submitted that the advertisement was issued to fill up the post

of drivers in the month of January, 2008 and thereafter 14 years have

passed and there are changed circumstances due to which now it is not

possible to reinstate/appoint the private respondent herein – original writ

petitioner on the post of driver.

2.1 It is vehemently submitted that as on today there is no post of

driver available on which the private respondent herein – original writ

petitioner can be accommodated and/or reinstated. It is pointed out that

now, all the appointments on the post of drivers are being made

contractually. It is also submitted that the retirement age of the drivers is

55 years and the original writ petitioner, at present, would be

approximately 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 can possibly be made.

2 2.2 It is also vehemently submitted by Dr. Monika Gusain, learned

counsel appearing on behalf of the appellant that in fact there was no

fault and/or illegality on the part of the appellant – DTC. It is submitted

that the entire process of recruitment was handed over to respondent

No.2, who conducted the examination and the entire recruitment process

and the appellant – DTC was to make the appointment as per the

recommendations made by respondent No.2.

3. Shri Nachiketa Joshi, learned counsel appearing on behalf of

respondent No.2 is not in a position to support their action making the

appointments only on the basis of the marks allotted in the viva test and

without there being any guidelines to bifurcate the marks on different

aspects. However, he has submitted that subsequently now the entire

system has been changed.

4. Mr. Manish Bhardwaj, learned counsel appearing on behalf of

respondent No.1 - original writ petitioner has vehemently submitted that

as such the original writ petitioner has succeeded before the High Court

and the Hon’ble High Court has specifically observed and held that the

entire recruitment process was bad as the appointments were made

solely on the basis of the marks allotted in the viva test. It is submitted

that the respondent No.1 – original writ petitioner is fighting since the

year 2008/2009 and even the Hon’ble High Court has directed to appoint

3 the 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 the

respective parties and the impugned judgment and order passed by the

High Court and considering the fact that the appointments were made

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 not call for any interference by this

Court.

However, at the same time, the question, which is required to be

considered is whether the respondent No.1 is to be appointed now after

a period of 14 years from the date of initial recruitment and when there

are changed circumstances due to which it is now not possible to

actually appoint the respondent No.1 – original writ petitioner. It is

pointed out that as on today, no post of driver is available. All the

subsequent appointments are now being made 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. If the respondent No.1 – original writ petitioner is to be

appointed now as driver, he will have to clear the driving test to drive the

bus on the road. Considering the overall facts and circumstances of the

4 case, we are of the opinion that at this stage, the actual appointment of

respondent No.1 – original writ petitioner is not possible. Therefore, we

are of the opinion that if the respondent No.1 – original writ petitioner is

awarded a lumpsum compensation in lieu of actual appointment as a

driver with reasonable interest, the same can be said to be in larger

interest and can be said to be doing substantial justice. We are of the

opinion that if in lieu of actual appointment, the respondent No. 1 –

original writ petitioner is awarded a sum of Rs. 7.5 lakhs as

compensation with 6 per cent interest from September, 2013 onwards till

the actual payment is made, the same will meet the ends of justice. To

the aforesaid extent, the impugned judgment and order passed by the

High Court is to be modified.

6. In view of the above and for the reasons stated above, the present

appeals succeed in part. The impugned judgment and order passed by

the High Court is hereby modified and it is directed that the appellant

shall 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 – original

writ petitioner by way of compensation in lieu of actual appointment, to

be paid within a period of eight weeks from today. It will be open for the

appellant to recover the same from respondent No.2. However, the

initial liability to pay the aforesaid amount would be on the appellant –

5 DTC. The impugned judgment and order passed by the High Court is

modified to the aforesaid extent.

Present appeals are accordingly partly allowed to the aforesaid

extent. However, in the facts and circumstances of the case, there shall

be no order as to costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. AUGUST 03, 2022. [B.V. NAGARATHNA]

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