Delhi Transport Corporation Versus Sandeep Kaushik and Ors.

Delhi Transport Corporation Versus Sandeep Kaushik and Ors.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4920-4921 OF 2022
Delhi Transport Corporation …Appellant(s)
Versus
Sandeep Kaushik and Ors. …Respondent(s)
J U D G M E N T
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
the writ petition and directed the appellant to appoint the private
respondent herein – original writ petitioner in the writ petition namely,
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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.
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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
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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
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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 –
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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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