1999 INSC 0905 Anil Kumar Gupta and Others Vs Municipal Corporation of Delhi and Others Civil Appeal Nos. 6728-35 of 1999 (S. B. Majmudar, M. Jagannadha Rao, M. Srinivasan JJ) 24.11.1999 JUDGMENT M. JAGANNADHA RAO, J.:- 1. Delay condoned in all the special leave petitions. Leave granted. Transposition application in SLPs (C) Nos. 289-92 of 1999 allowed. 2. In all these appeals, the correctness of the Judgement of the Delhi High Court in LPA NO. 95 of 1994 and writ petition's batch dated 12-5-1998 is involved. The appellants [Except in SLP (C) No. 17429(CC No. 3960 of 1999)] 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 the as "appellants" in this judgement. The civil appeal arising out of SLP (C) No. 17429(CC No. 3960 of 1999) 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 questions now. We shall call them "respondents" for convenience. 3. A brief resume of the events which have led to the filling of these appeals is necessary. On 30-6- 1989, MCD invited application for filling up 60 posts of Assistant Engineer (Civil) in the Engineering Department of MCD. The applications were to be received before 31-7-1989. 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 for the departmental candidates as well as others. 4. The Selection Broad of MCD had to follow the following norms for awarding marks; 1. For qualification 10 marks Break up Up to 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 5 marks Break up (i) Up to two years' experience Nil (ii) 3 to 12 years and above experience at 5 marks the rate of ½ mark i.e. for 10 years (iii) Viva voce 15 marks 5. 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, field writ petitions and the said petitions were dismissed by a learned Single Judge of the Delhi High Court by common judgement dated 10-8-1994. [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. 6. On 23-11-1995, the High Court passed an order referring to Justice G.C. Jatin, retired Judge of the Delhi High Court the question whether the allocation of marks by 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. 17-71989) and before 31-7 1989, the last date for receipt of application. He also prepared a list of candidates who enrolled after 1-7-1989 and 31- 7-1989. 7. The result was that Court had before it two select lists, one prepared by MCD and another by Justice Jain. 8. 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 that MCD list. Some other persons who were not eligible according to the MCD list were found to be eligible by Justice G.C. Jain. 9. After receiving the report of Justice G.C. Jain, the Division Bench for the High Court went into various issues. We are only with those who have been held eligible by 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 his was a humanitarian issue. The Court then put the matter before the parities. It appears that there was "consent" between the parties that the services of these candidates need not be terminated but could continued. The Division Bench observed: "Keeping in view, the human problem s 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 MCD and are later found by Mr. Justice Jain to be ineligible for appointment may be allowed to continue in service. (b) Candidates, who were really found ineligible by 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 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". 10. 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 Rammani 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. 11. 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. 12. In these appeals by some of the selected candidates, it was contended by learned Senior Counsel Shri Rakesh Dwivedi, Shri Ravinder Sethi and Shri S. B. Sanyal and others that Justice Jain was wrong in taking into account the 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 to be ranked in the merit list as per their marks but ought to have been placed at the bottom of the list. 13. 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 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. 14. Be that as it may, in the end it has become unnecessary to decide the question as to the extent of the "consent". This was because learned Senior Counsel for the contesting respondents, Shri P. P. Rao contended alternatively that so far as the contesting respondents were concerned 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 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 s unwarranted. So far as their age was concerned, it was agreed before us that there was "consent" to that extent. Shri 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 marks certificates or experience gained before the actual announcement of degree results. 15. In reply to the said contentions, learned Senior Counsel for the appellants contended that the respondents had not field any special leave petition in time to attack the finding of the Division Bench that the respondents' appointment were "irregular" or were " tainted". It was argued that the 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) No. 17429 (CC No. 3960 of 1999), with an application to condone delay. It was of course also submitted for the respondents that even without filing an appeal they could attack the adverse observations made by the Division Bench of the High Court. 16. 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 CPC 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 while holding diplomas could also be counted in addition to the experience gained before issuance of the certificate of experience? (4) Whether, on the basic of the answers to Point 2 and 3, the respondents were eligible for appointment as Assistant Engineers? Point 1 17. In view of the recent judgement of this Court in Ravinder Kumar Sharma v. 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 Judgement. Hence, the respondents can contend that the finding or observation that their appointments were tainted was not correct. We have also condoned the delay in filing the special leave petition (CC No. 3960 of 1999) 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 won civil appeal arising out of the SLP (CC No. 3960 of 1999). Point 1 is decided accordingly. Point 2 18. On this question, the learned Senior Counsel Shri 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 v. Satish Kumar Pandey [1999 Supp (2) SCC (L&S) 810 : (1993) 24 ATC 688] and D. Stephen Joseph v. Union of India [(1997) 4 SCC 753 : 1997 SCC (L&S) 990]. On the other hand, learned Senior Counsel for the appellants Shri Rakesh Dwivedi, Shri Ravinder Sethi and Shri S. B. Sanyal contended that the experience of the respondents while holding diploma, could not be counted. They relied upon N. Suresh Nathan v. Union of India [1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC 928]. 19. We many point out that in the present case, the relevant provisions applicable and the notification dated 30-6-1989 inviting applications refer to essential qualification as (i) degree, and (ii) 2 years' "professional" experience. As stated earlier, experience up to 2 years is the minimum and those above 2 years, get ½ mark for each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience. 20. We may at the outset state that the provision regarding experience speaks only of Professional experience " for two years and does not, in nay manner, connect it with the degree qualifications. In our view, the case on hand is similar to Subhash v. State of Maharashtra [1995 Supp (3) SCC 332 : 1995 SCC (L&S) 1231 : (1995) 31 ATC 146] 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 Rule 3 (e) which required one year's experience in a registered automobile workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification . 21. It is true, in N. Suresh Nathan case the experience of a candidate while holding a diploma was not counted. There the relevant rules stated: (SCC p. 585, para 1) "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...." 22. 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 case was, however, distinguished in M.B. Joshi case. In the latter case the relevant rule referred to (i) diploma- holder Sub - Engineers competing 12 years of service 35%, (ii) Draftsman and Head Draftsman completing 12 years of service, 35%, (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 a particular number of years of service as in N. Suresh Nathan case. It was observed that the rules in M.B. Joshi 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 Assistant Engineers in 8 years of service ad quota of 10 per posts has been earmarked for such category of persons" (SCC p. 427, para 12) The judgement in M.B. Joshi case supports the case of the respondents. 23. The above ruling in M.B. Joshi was followed in D. Stephen case,. In that case, this court again distinguished N. Suresh Nathan case. This Court however cautioned that any practice which was dehors a rule could he 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 case as being one where the language of the rule was specific that "if a particular length of service in the feeder post together with educational qualification enables candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose incentive to the employee to acquire higher education". (SCC p. 755, para 5) This decision in D. Stephen case also supports the case of the respondents. 24. Therefore, on the language of the notification dated 30-6-1989, we are of the view that the 2 year's professional experience need not entirely be experience gained after obtaining the degree. 25. It is true that in one of the counter ­ affidavits in CWP No. 606of 1985, MVD took the view that the experience ought to be after acquiring degree. But the clarification of UPSC dated 13-9-1985 addressed to 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. 26. For the aforesaid reasons, we hold that the service rendered by the diploma ­ holders before obtaining degree can also be counted. 27. 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 while in regard to others he held that they did not have required professional experience of two years. 28. 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 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. 29. 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 year's experience, for the entire period of ten months from 1-4-1986 to 31-1-1987in 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 cam 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. 30. Coming to Shri R.K. Aliwadi, Justice Jain held that he got his degree on 29-7-1987, the marks sheet is dated 24-7-1987. Justice Jain considered his experience in Bhasin Construction Co. for the period 2-71987 to 22-8 1988 as 1 year, 1 month, 22 days and as Je in MCD form 23-8 1988 to 31-7- 1989 as 11 months, 9 days, in all 2 year, 1 month, 1 day. Justice Jain excluded the experience prior to 24-7-1987. Similarly, in the case of Naresh Gupta, the marks certificate is dated 24-7-1987 and the service in Aggrawal & Co. Is from 15-6-1987 to 30-11-1988 (1 year , 5 months, 16 days ) and as JE in MCD is from 1-12 ­1988 to 31-7-1989 ( 8 months ) . If the service form 15-6-1987 is not to be considered, the candidate will be ineligible. 31. The issue relating to Mr. Ailawadi and Mr. Naresh Gupta is 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 many 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 the last date of receipt of application and is announced after such date. Such cases many 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" 32. 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. 33. Justice Jain has found Shri Dinesh Yadav, Sunil Kumar, Saminder Negi, Ramesh Kumar, A. K. Mittal and S. K. Mehta eligible by counting their experience while they held diploma. These officers passed BE or AMIE later but long before the advertisement. Out decision on Point 2 holds good and Justice Jain was right in counting their pre degree service. 34. As regards Dalip Ramnani, we have upheld the view taken by the High Court that the He had requisite experience for appointment. But all the end of the judgement, 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 to be ineligible, though he was awarded 181/2 marks by the Selection Board. Now that the High Court has accepted the certificates and the he becomes eligible, we direct that the seniority given by Justice Jain will stand amended by placing Dalip Ramnani at the relevant place treating him as having secured 181/2 marks. 35. So far as Girish Chand, D.S. Danda, M. S. Rana, Manohar Diwani, S.N. Gupta, S. K. Sindhwani, N.K. Gupta and 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 respondents. 36. For the aforesaid reasons, we hold in favour of the respondents and against the appellants on Points 3 and 4. 37. The appeal arising out of SLPs (C) Nos. 14160 of 1998, 287-88 289-92 of 1999 are dismissed. Appeal arising out of SLP (c) No. 17429 (CC No.3960) is allowed, o subject however to the modification pointed above in respect of the inclusion of Dalip Ramnani in the seniority at the point of 18 ½ marks. No order as to costs.