- (1.)This writ petition was filed by three petitioners. Counsel appearing for the petitioners state that petitioner no.3 has expired and therefore, the case has to be decided qua petitioner nos.1 and 2. The issue in the writ petition is the claim of seniority of petitioners as against the respondent nos. 3 to 14. Respondent nos.4 to 14 have however been deleted vide different orders of this Court, and I have therefore to decide the seniority of the petitioner nos. 1 and 2 only against original respondent no.3-Sh. Arvinder Singh Bedi and who is now as per the amended memo of parties respondent no.2. Reference in this judgment to the respondent no.1 will as per context mean reference either to Delhi Electric Supply Undertaking (DESU) which formed part of Municipal Corporation of Delhi (MCD) or Delhi Vidhut Board (DVB) or the present respondent no.1 BSES Rajdhani Power Ltd.
(2.)Before stating the facts of the case, and which show a long history, I must state that really all the facts will prove to be unnecessary because the judgment in the present case will simply be based on the principle of res judicata in view of the judgment of the Sub-Judge, First Class dated 1.9.1987 in Suit No. 584/1983 titled as Mohan Lal Sharma Vs. Municipal Corporation of Delhi. In spite of the fact that the present case can be decided on the simple principle of res judicata, however, detailed narration of the facts will still be required and hence are stated hereinafter.
(3.)The employer of the petitioner nos. 1 and 2 and the respondent no.2 was the original respondent no.1/M/s Delhi Electric Supply and Undertaking (DESU). Respondent no.2 was appointed in 1976, however, the appointment was subject to regularization after finalization of valid R & P Rules i.e Recruitment and Promotion Rules and this is so stated in Annexure P-3, being the document of employment of the respondent no.2. Employment of petitioner nos.1 and 2 as also respondent no.2 took place pursuant to panel created on 12.1.1977. Respondent no.2 was placed at serial no. 6 on the said list below the petitoiners. Appointments were to take place in order of merit as and when vacancies occurred and that being so provided in the panel notice dated 12.1.1977. Out of the panel dated 12.1.1977 only one person out of the 12 persons was appointed, and therefore, the other persons who were denied employment approached the Industrial Tribunal under the Industrial Disputes Act, 1947 seeking their appointment and regularization.
The Industrial Tribunal vide its judgment dated 4.3.1980 directed employment and regularization of the said persons, including the respondent no.2, paras 16 to 19 of the said Award dated 4.3.1980 read as under:-

"16. We have to examine again if there was any condition prescribed regarding physical test when the applications were called for the posts of Security Inspectors or when as the time of interview the selected candidates were not informed of any such condition or any notice had been given under Section of the Industrial Dispute Act, 1947. The management itself concedes that there was no such condition prescribed when the applications were called for the the posts or when the interviews of the selected candidates had takes. It also concedes that no notice under Section of the Industrial Dispute Act had been given. On behalf of the management it had been submitted that under Section 98 of the D.M.C. Act, 1957 regulations had been framed for recruitment in the post of Security Inspectors vide Corporation?s decision dated 13.12.76 and thus the condition regarding physical fitness/standard including physical test was justified and moreover these regulations were approved by the Union Public Service Commission, and subsequent to the approval of the Union Public Service Commission were again approved by the Municipal Corporation of Delhi for taking necessary action. Therefore, in view of the clause in the advertisement that the adhoc appointments would be subject to regularization in accordance with the finalized R&P Regulations the physical fitness standard and physical test clause prescribed in the regulations was approved by the Corporation. Further it has been contended that the clause, assessment of the candidates with regard to the physical standard/physical test is not illegal. Now the main question is whether qualifications with regard to the physical test existed at the time when the first selection made in respect of the persons in Annexure "X?, had existed. The answer in the negative.

17. Now, it would be proper at this stage to examine the legal aspect in this connection. Reliance was placed in the case Nafe Singh Verma Director of T.F.Haryana (Haryana & Punjab) (1972) SLR-675). It had held that the selection is to be made in terms of advertisement. In vide of the citation the persons named in Annexure had been selected on the basis of the first office order, wherein condition in regard to the physical test had not existed. Again reference is made to 1972 SLR-706, where it had been held that. Hence the qualifications have appeared in the advertisement inviting applications, these qualifications cannot be changed and selection has to be made out of the candidates possessing those qualifications. The rules were framed on 16.11.77 and it came into force on that date only. The now rules could not be applicable prior to 16.11.77 and the management has acted illegally by complying these rules in the case of the persons selected and named in Annexure "X?. The office order had not referred with regard to any physical test sooner or later. Even this had been done them it was obligatory on the part of the management to observe the necessary formalities.

18. In view of the aforesaid discussion it would have to be held that the first employment notice dated 18.9.76 had no condition with regard to physical test. The notice dated 12.1.77 give the names of candidates selected had only referred that the assessment in regard to prescribed physical test will be made in due course. By making this condition at a inter stage would seen that these persons were going to be selected and the physical test if any was a more formality. As required under Section 9-A of the I.D.Act, the change in R&P rules or framing of now rules will tantament to change in service candidates. In any case the change could not be affected unless the notice was given by the management as required under Section 9-A of the I.D.Act, 1947. The action of the management rather colafide as it had employed persons as Security Inspectors even after the framing of the rules and without holding the physical test.

19. In view of the aforesaid discussion it would have to be held that the first employment notice dated 18.9.76 had no condition with regard to physical test. The notice dated 12.11.77 giving the names of the candidates selected had only referred that the assessment in regard to prescribed physical test will be made in due course. By making this condition at a later stage would mean that these persons were going to be selected and the physical test if any was a mere formality. Again no doubt this panel was to remain valid for one year from the date of issue but the record shows that the other persons had been employed during the period of one year particularly Shri Rajender Kumar. Of course, it had been stated that he qualified the physical test. It was never the case of the management that the passing of the physical test was obligatory and in case the management was serious about it the employment notice ought to have contained this condition. It would be thus seen that the section of the management is rather illegal and unjustified. The persons named in Annexure who had been declared successful after having held the interviews are entitled to be posted as Security Inspectors. These persons so appointed would derive the same benefit as has been given to Shri Rajender Kumar who had been appointed during the period of one year i.e. when the panel had been announced on 12.1.77. The guard is passed accordingly.

Sd/- (K.L.Kakkar) 4 th March, 1980 Industrial Tribunal Delhi.