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Judgment
O R D E R
Ms. Praveen Mahajan, Member (A)
Briefly stated, the facts of the case are that the applicant was working on a permanent post of Scientific Assistant (Chemistry) with Forensic Science Laboratory, Govt. of NCT of Delhi, since 23.12.2009. She applied for the post of Senior Scientific Assistant (Chemistry), which was advertised by the advertisement dated 25.06.2013 (Post Code-28/13).
She was duly selected by the Board vide Result Notice No. 320 dated 20.05.2015. The result in order of merit was sent by Delhi Subordinate Service Selection Board (DSSSB) to the Director, Forensic Science Laboratory (FSL) on 01.06.2015 confirming the result. The respondents issued a Memorandum dated 17.06.2015 directing the applicant to appear before the respondents along with all original certificates and testimonials etc. to complete the verification process for appointment. Since the applicant was already working as Scientific Assistant (Chemistry) in Forensic Science Laboratory through direct recruitment done by DSSSB, she informed the respondents that verification of her educational qualification certificates, police verification and medical examination had already been carried out at the time of her initial appointment (in 2009) details of which would be readily available in their office record. She also requested that she may be permitted to join as Scientific Assistant (Chemistry) to avoid any delay in appointment. It is averred in the OA that though the respondents had permitted waiver of such verification in respect of some other candidates but the similar benefit was denied to the applicant despite her request.
In the meantime an OA-1976/2015 (Mudika Soni Vs. GNCTD & Ors.) was filed by another unsuccessful candidate, who was aggrieved by the impugned Result Notice No.320 dated 20.05.2015. Citing various reasons, she impugned the aforesaid result, alleging that the same had been declared in violation of Rules and Norms prescribed in the Advertisement No. 1/13 dated 25.06.2013 issued for the aforesaid post.
The applicant in the current O.A. (No. 868/2017) states that she was not impleaded in the aforesaid OA-1976/2015 even though her rights were directly affected by virtue of which she was a necessary party. Be that as it may, the O.A. (No. 1976/2015) was dismissed on 04.03.2016 upholding the result dated 20.05.2015. The respondents again served the applicant with a Memorandum dated 11.03.2016 to furnish the information required for verification of her antecedents. After detailed verification by the respondents, the applicant was finally permitted to join the post of Senior Scientific Assistant on 17.03.2016.
Thereafter, the applicant requested the respondents, vide her letter dated 17.06.2016, that her joining to the post of Senior Scientific Assistant (Chemistry) may be taken w.e.f. 19.06.2015 when she submitted the documents required for verification to the office of the respondents and when other departmental candidates working as permanent Scientific Assistants in Forensic Science Laboratory in other divisions of Forensic Science Laboratory were allowed to join without verification of documents. This request of the applicant was rejected by respondent No. 3 vide Memorandum dated 05.07.2016 stating that her request cannot be acceded to since her joining was delayed on account of stay on appointment to the post of Senior Scientific Assistant (Chemistry) granted by CAT in OA-1976/2015 (supra).
The applicant served a legal notice dated 05.11.2016 on the respondents, and also sent a representation to Principal Secretary (Home) Govt. of NCT of Delhi on 18.11.2016 raising the same issue.
In response to a reference dated 18.11.2016 received from Ministry of Home Affairs, the respondents informed the status of the case on 06.12.2016, stating that:-
“This is in reference to your letter No. 25020/105/2016-PM-III dated 18-11-2016 addressed to the Principal Secretary (Home), Govt. of NCT of Delhi, received through the Supdt. (Home-III), Home Deptt vide his letter No. F.33/14/97/Vol.III/Home-III/1553 dated 26-11-2016, on the subject cited above. In this context, the reply is as under:-
a. Against notification of advertisement Post Code 28/13, Mrs. Sarita Dhama was selected by the DSSSB, GNCTD to the post of Sr. Scientific Assistant (Chemistry) vide letter No. F.1(262)/CC-II, DSSSB/2015/122 dated 20-05-2015. Before her selection she was serving on the post of Scientific Assistant (Chemistry) in FSL, Rohini, Delhi.
b. Vide letter No. F.6(14)/FSL/Estt./Rectt./-Gr.B/2015 dated 17-06-2015, she was asked to appear in the office to conclude the due process.
c. In the meantime it was informed by the DSSSB vide letter No. F.1(187)/DSSSB/P&P/2013/8233 dated 24-07-2016 that one OA No. 1976/2015 was instituted before Hon’ble CAT, New Delhi, whereby the result declared by DSSSB was stayed, hence she could not be allowed to join.
d. Vide judgment dated 04-03-2016, Hon’ble CAT upheld the selection process of DSSSB and declared the result fair and free. Thereafter, following the due process, an Offer of Appointment was issued to Mrs. Sarita Dhama and she joined to the post of Sr. Scientific Officer (Chemisty) w.e.f. 17-03-2016. Accordingly her pay was also fixed from 17-03-2016.
The pay & allowances of Mrs. Sarita Dhama, Sr. Scientific Officer (Chemistry) has already been fixed and released by the Department as per rules. As far as seniority of the official is concerned, the same shall be fixed as per guidelines issued in this regard by the DOPT from time to time.
Yours faithfully, (DR. MADHULIKA SHARMA)
Director/IN-CHARGE-SFL”
Aggrieved by the inaction of the respondents on her request, the applicant has filed the current O.A. seeking the following relief:-
“That through the mean of instant application, the applicant would like to crave the kind indulgence of this Hon’ble Tribunal on the prejudice caused just because of the delay tactic adopted by the respondent number 3 in the pretence of pending adjudication and also the pretence taken by the respondent number 3, which lately dismissed by this Hon’ble Tribunal, therefore this Hon’ble Tribunal may kindly be pleased to direct the respondents to cede all the service benefits to the applicant with retrospective effect i.e. the date of letter supplicated 19.06.2015.”
A perusal of the order sheets shows that despite service of notice on 29.03.2017, respondent No. 3 (Forensic Science Laboratory) has not bothered to file a reply to the OA, though various opportunities were granted to the respondents to file counter reply to the OA on 23.05.2017, 14.09.2017, 20.11.2017, 22.12.2017 and 22.02.2018. In view of the same, we have no option but to decide the case on available pleadings, minus their reply However, reply of respondent No. 2(DSSSB) is available on record which has been taken into account.
During the course of hearing, the learned counsel for the applicant Sh. Divy Kaushik reiterated the points raised by him in the OA. He submitted that the applicant got selected as per her merit drawn on the basis of marks, experience as well as the marks assigned to her in the interview to the post of Senior Scientific Assistant (Chemistry) on 20.05.2015. He argued that despite declaring the result on 20.05.2015, the respondents have allowed the applicant to join the post (she qualified for) only on 17.03.2016.
Another point raised by the counsel for the applicant was that since the filing of OA-1976/2015 infringed directly upon the rights of the applicant in OA, she should have been impleaded as a necessary party, which was never done. He, therefore, prayed that in view of these facts, the relief prayed for by the applicant for being granted service benefits with retrospective effect may be allowed to her.
We have gone through the facts of the case carefully and perused the record.
It is a fact that the applicant was not impleaded as a respondent in the said OA-1976/2015, on account of which her appointment was delayed. A perusal of OA-1976/2015 also shows that at the time of issuance of notice on 26.05.2015 in the said OA the Bench had only directed as under:-
“10.At the time of issuance of notice on 26.05.2015 itself, the Bench directed that appointments, if any, made to the posts of Senior Scientific Assistants (Chemistry), would be subject to the outcome of the O.A.”
Hence, the contention of the respondents that the result declared by DSSSB was stayed by the Tribunal is not correct and the respondents could have very well promoted the applicant subject to the aforementioned rider.
We also find considerable force in the arguments put forth by the applicant that since she was already working on a permanent capacity as Scientific Assistant (Chemistry) in Chemistry Division of FSL, hence the respondents could have allowed her to join provisionally as Senior Scientific Assistant (Chemistry) without insisting upon a second verification of her educational qualification/certificates etc. which, presumably, were not only available with them but based upon which, her earlier appointment would have been made. As far as her police verification is concerned, the same could have been carried out simultaneously to expedite the process of appointment.
We observe that this mechanical approach of the respondents has resulted in delaying the appointment and grant of other benefits to the applicant for no fault of hers. A careful and considered approach on part of the respondents could have saved the applicant this unwarranted stress and harassment. Especially when the order of the CAT in OA-1976/2015 was not on stay of promotion but was only a direction that the appointments, if any, made would be subject to the outcome of the OA.
In view of the foregoing discussions, the OA filed by the applicant, is allowed. Respondents are directed to give the benefit of notional seniority to the applicant from the date her juniors (if any) were promoted. However, she will not be entitled to any pay and allowances for the period for which she did not work. No costs.
(Praveen Mahajan) (Justice Dinesh Gupta)
Member (A) Member (J)
/vinita/