Khub Ram vs Dalbir Singh & Ors

The Civil Appeal and the Special Leave Petition have been heard together because claim of the parties is in respect of same post of Chief Inspector in the Haryana Roadways to which the appellant - Khub Ram was initially appointed in the year 1990 pursuant to his selection in response to advertisement dated 07.05.1989. First respondent – Dalbir Singh challenged the selection and appointment of appellant Khub Ram by filing C.W.P. No.12711 of 1992 in the High Court. That writ petition was allowed on 01.10.2010 by a learned Single Judge. Not only the appointment of Khub Ram and one more person was quashed but a direction was also issued to appoint writ petitioner – Dalbir Singh from a retrospective date with all consequential benefits. Appellant’s appeal before the Division Bench was dismissed by the impugned order. The petitioner of S.L.P. – Mahavir Prasad has sought permission to file the Special Leave Petition against judgment of learned Single Judge as well as of Division Bench on the ground that he is one amongst the selected candidates and has a better claim for appointment than respondent – Dalbir Singh and hence order should be passed for appointing him in place of Khub Ram. This judgment shall govern both the matters which involve common issues of facts and law. Permission to file Special Leave Petition (C) No.15871 of 2012 is granted. Delay condoned. Leave granted.

There is no dispute that first respondent – Dalbir Singh was only an applicant and was not among the selected 14 candidates. In that view of the matter, the High Court was misled to issue a direction for his appointment and that too from an earlier date when Khub Ram was appointed, and with consequential benefits. Such directions could not have been issued without considering the claims of other persons in the Select List. For that reason, the directions issued in favour of first respondent are set aside. To that extent, appeal of Mahavir Prasad has to be allowed. However, the other prayer made on behalf of Mahavir Prasad that authorities be directed to offer him appointment or consider his claim, in our considered view cannot be allowed on account of the fact that writ petition of Mahavir Prasad filed in 1991 was decided against him by order dated 04.08.1992 passed in C.W.P.No.17600 of 1991. Rightly or wrongly the High Court held that he could not claim any right of appointment on account of a place in the Select List. That judgment attained finality. Mahavir Prasad chose not to appeal against that order nor he challenged the appointment of any of the persons selected and appointed. His claim thus suffers from res judicata as well as acquiescence and estoppel. In that view of the matter and also for the reason that a long period of more than 25 years has passed since the preparation of the Select List, in our view it would be inappropriate to grant any relief which may require the authorities to examine the claim of persons in the Select List for appointment to the original post which may not even be available after lapse of so many years. We have been told that Mahavir is presently about 50 years of age and has not crossed the age of superannuation and is still working on another post with Haryana Roadways. That in our opinion, will not change the relevant factors indicated above. Hence we are not persuaded to grant any further relief to Mahavir Prasad and his appeal is allowed only in part as a result whereof the direction to appoint first respondent – Dalbir Singh is set aside.

As discussed above, Civil Appeal No.2734 of 2012 is dismissed and the other Civil Appeal arising out of S.L.P.(C)No.15871 of 2012 is allowed only to the extent indicated above. There shall be no further order as to costs.

April 29, 2015