LexANIL KUMAR GUPTA AND ORS. versus MUNICIPAL CORPORATION OF DELHI AND ORS.
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-< • -· ANIL KUMAR GUPTA AND ORS. v. MUNICIPAL CORPORATION OF DELHI AND ORS. NOVEMBER 24, 1999 [S.B. MAJMUDAR, M. JAGANNADHA RAO AND M. SRINIVASAN, JJ.] Service Law: A B Appointment-Eligibility-Essential qualifications-Two years C professional experience and degree in Civil Engineering-Diploma holder- Whether experience includes experience gained before acquiring degree- Held, experience gained before acquiring degree can also be counted- Whether experience gained after examination and before publication of results should be excluded-Rival pleas of consent before High Court-No argument D raised before High Couri on the issue-Held, under the facts and circumstances, experience gained after examination and before publication of re>Ults cannot be excluded . Practice and Procedure-Adverse finding by High Court-Opposite party coming in appeal-No separate appeal filed against adverse findings- E Whether adverse findings can be attacked in appeal of opposite party-Held, advers~ findings can be attacked in appeal of opposite party. Essential qualifications prescribed for the post of Assistant Engineer (Civil) in MCD were (i) degree in Civil Engineering and (ii) two years' professional experience. Norms for making selection prescribed greater F weightage for higher marks in degree examination and higher experience. Selections made by MCD were challenged in writ· petitions by some unsuccessful candidates which was dismissed by the Single Judge. In appeal, the Division Bench passed an order referring to Justice G.C. JaiO the question whether allocation of marks by MCD to various candidates was in accordance with the norms fixed. Justice Jain prepared list of first 100 candidates on the G basis of marks awarded by him and held that some candidates, ineligible on account of age or professional experience, were wrongly included in MCD list and some eligible candidates were not included in MCD list Parties before Division Bench arrived at a consent and such ineligible candidates were allowed to continue. The Division Bench held that candidates found eligible H 553 554 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R. ~ ... A by Justice Jain should be appointed against existing vacancies provided they had approached court within reasonable time and such candidates should be treated as appointed in 1989 but without arrears of pay; that inter-se-seniority of candidates should be based on their ranking in the merit list as prepared by Justice Jain. Against the judgment of the Division Bench some selected !- B candidates have filed the present appeals. The appellants contended that consent between parties before High Court related merely to continuance of respondents found ineligible by Justice Jain and there was no consent regarding granting seniority to these candidates ~ and they should be placed at the bottom of the list; that pre-degree experience c of respondents could not be taken into account while calculating professional experience; and that the finding of Division Bench that appointment of respondents were irregular or tainted was not challenged by filing S.L.P. and therefore, the said finding could not be assailed. The respondent contended that pre-degree experience was rightly taken D into account by Justice Jain; that experience gained before date of issuance of marks/certificates or before actual announcement of degree results should have been taken into account while calculating experience; that there was consent with regard to granting seniority to candidates found ineligible by r Justice Jain; and alternatively the respondents were fully qualifit:d and their E appointments were not irregular nor tainted as observed by High Court. Disposing the appeals, the Court HELD: 1. It is open to the respondents to attack the advel!'Se findings arrived at or observations made by the High Court, even ifthe respondents F had not filed a separate appeal against that part of the judgment (560-C-D) RavinJer Kumw Sharma v. The State of Assam, (1999) 7 SCC 435, relied "' OIL G 2. The provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. Therefore, on the language of the notification dated 30.6.89 inviting application for the said post, the 2 years professional experience need not entirely be experience gained after obtaining the degree. Thus, the service rendered by
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