Supreme Court: In an appeal against the judgment and order passed by the Delhi High Court, wherein the Court has set aside the previous merit lists and directed that the seniority of candidates mentioned in final merit list and those who were granted the benefit of re-evaluation would be considered as appointed on 30-01-2017, however, their seniority and position shall be reckoned after last appointed candidate, the division bench of MR Shah* and Sanjay Karol, JJ. held that the appellants shall be entitled to the notional seniority with effect from 30-01-2017 in accordance with the revised marks on re-evaluation.
In 2016, applications were invited by the Delhi High Court to fill up 27 vacant posts of private secretaries. The written examination was held, in which 135 candidates appeared. Thereafter, Skill and typing tests were held and the result of the written examination was declared. Before the declaration of the final merit list, three candidates filed representations seeking rechecking of their answer sheets. The Selection Committee rejected the representations observing that there was no provision for rechecking / re-evaluation of the answer sheets in the Delhi High Court (Appointment and Condition of Service) Rules, 1972. Thereafter, interviews of the successful candidates were held.
The Court noted that the then Acting Chief Justice took a decision that those candidates, whose marks have been increased and their marks are found to be higher than the candidates already appointed, they may be appointed against the vacant 22 vacancies of private secretaries without disturbing those 27 candidates already appointed.
The then Acting Chief Justice observed that because of limited re-evaluation of only 13 candidates, that too, to limited questions, an unfortunate situation has resulted. However, if re-evaluation of all papers is now undertaken, it would result in unwarranted delay and the appointments having been effected one year ago, it is difficult to set the clock back. Therefore, the then Acting Chief Justice took a decision that 08 candidates, whose marks have been increased on re-evaluation and are found to be having more marks than the candidates already appointed, may be appointed against 22 vacancies vacant, as those 08 candidates would stand qualified upon re-evaluation.
In the administrative note, the then Acting Chief Justice also specifically observed that the issue thereafter is required to be considered is the issue of how the seniority of these persons is to be fixed and whether any re-fixation is necessary. The matter was referred to the Special Committee on the aspect of fixation of seniority. That thereafter, the Special Committee initially took the decision to put the newly selected candidates at the bottom of the seniority. However, thereafter, on representations made by the appellants seeking benefit of the seniority based on the revised marks, the Special Committee in meeting dated 01-10-2018 decided to accord notional seniority in accordance with revised marks to candidates. The same recommendations came to be approved by the Chief Justice. The decision of the Special Committee approved by the Chief Justice to accord the notional seniority in accordance with revised marks to candidates attained the finality. Accordingly, the revised merit list was prepared which was the subject matter before the High Court
Whether the appellants whose marks were increased pursuant to the exercise of re-evaluation are entitled to be ranked in accordance with the revised marks in the merit list which determines their seniority for future promotions?
The Court said that the consideration of the then Acting Chief Justice was, thus, that in the event the vacancies were not there, the re-evaluation may have the result of disturbing the appointments of certain private secretaries already made, whose marks are now lower than those of the appellants. Thus, it can be seen that it is not the appellants who were to be adjusted against the additional vacancies but those candidates whose rank was lowered because of revision of marks of appellants and other similarly placed candidates.
The Court said that the Special Committee was absolutely justified in its decision dated 01-10-2018 to accord notional seniority i.e., inter se seniority on the basis of merit, as per the revised merit list. At the relevant time, none of the selected candidates (22 candidates) applied for re-evaluation and even challenged the decision of the Special Committee to re-evaluate the marks of only 13 candidates. Thus, having failed to challenge the earlier decision to have the re-evaluation of only 13 candidates and even having not applied for the re-evaluation at the relevant time though the exercise of re-evaluation was going on thereafter, it was not open for the respondents to make a grievance subsequently that the re-evaluation of the marks of 13 candidates cannot be at their disadvantage. Once on re-evaluation, the marks are increased, the respective candidates whose marks are increased will have to be placed at appropriate place in the merit list. As, non-grant of seniority based on revised marks, would render the process of re-evaluation redundant.
Thus, the Court held that the Special Committee was absolutely justified in taking the decision dated 01.10.2018 to accord the notional seniority in accordance with the revised marks to candidates. Further, the Division Bench of the High Court has materially erred in setting aside the conscious decision taken by the Special Committee to accord the notional seniority in accordance with the revised marks to candidates.
[Sunil v. High Court of Delhi, 2023 SCC OnLine SC 516, decided on 28-04-2023]
*Judgment Authored by: Justice MR Shah