Central Administrative Tribunal - Delhi
Dr. Kunal And Pragatee Ngo Through Its ... vs Government Of Nct Of Delhi Through Chief ... on 20 December, 2007
ORDER
V.K. Bali, J. (Chairman)
1. A walk-in interview for filling up eight posts of Assistant Professor and six posts of Demonstrator in Maulana Azad Dental College and Hospital was notified by way of public notice issued on 26.7.2005 by the Health and Family Welfare Department of the Government of NCT of Delhi. The last date of applications was fixed as 30.7.2005. After scrutiny and other necessary formalities, interviews were conducted by H&FW Department on 1.8.2005. The interview board consisted of Principal Secretary, H&FW (Chairman); Dr. N.C.Rao, Principal, Government Dental College, Shimla (Member); Dr. Mahesh Verma, Principal MADC & Hospital (Member); and Dr. A. D. Bhagat Singh, Professor, MADC & Hospital (SC-ST Member). One post each for Assistant Professor and Demonstrator was reserved for SC candidates. In August, 2005 the result was declared and whereas, Dr. Gyanender Kumar, the 4th respondent herein, was selected for the lone post reserved for SC category candidate, the applicant was shown at No. 1 in the waiting list. Dr. Kunal, the applicant herein, by joining with him one Pragatee NGO through its General Secretary, said to be a social registered NGO supporting enlistment of weaker sections , has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as the 1985 Act), calling in question the selection/appointment of the 4th respondent on the post of Demonstrator. The only question that has been raised for adjudication by this Tribunal is as to whether the 4th respondent a domicile of the State of Uttar Pradesh and as per his caste, a SC category candidate both in the States of Uttar Pradesh and Delhi could be considered as a reserved category candidate' It is the case of the applicant that the 4th respondent, a domicile of Uttar Pradesh, could not be considered a candidate in the category of SC, even though he may be, as per his caste, a SC candidate in Delhi as well, and if, therefore, the candidature of the 4th respondent had not been considered, the applicant alone would have been selected and appointed against the one post of Demonstrator reserved for SC candidate.
2. The respondents have seriously contested the cause of the applicant on merits of the controversy as mentioned above as also on the ground that the present Application is barred by limitation as provided under Section 21 of the 1985 Act. Before we may proceed any further, we may mention that the whole selection process has also been challenged on the ground that the same was an eye wash as only three working days were given for submission of applications and scrutiny thereof, and in all 120 candidates, including SC candidates, were interviewed in a single day for the post of Demonstrator and the interview process commenced at 1.00 p.m. and completed by 5.00 p.m. on 1.8.2005 No arguments have, however, been raised on the a forestated plea raised in the pleadings, presumably for the reason that if the whole selection process is set aside, the applicant would not gain anything out of the same, as surely, in that case his selection, even though in the waiting list at No. 1, would also fall.
3. Dealing with the Application being within time stipulated or not under Section 21 of the 1985 Act, it would be seen that the walk-in interview was notified by way of public notice issued on 26.7.2005 and the last date of receipt of applications was 30.7.2005. Interviews were conducted on 1.8.2005 and it is in August, 2005 only that the result was declared. By virtue of provisions contained in Section 20 of the 1985 Act, the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redress of grievances. A person shall be deemed to have availed of the remedies available to him under the relevant service rules as to redressed of grievances if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance, or where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. It is further provided in sub-section (3) of Section 20 that for purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Government of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. By virtue of provisions contained in Section 21(1) the Tribunal shall not admit an application in a case where a final order such as is mentioned in Clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made. It appears to this Tribunal that the limitation in the present case would be one year from the final declaration of the result. It would be seen from an order handed over to us by the learned Counsel for the applicant himself that earlier in point of time the applicant had filed OA No. 1929/2005, which was disposed of on 7.9.2005. It has been mentioned in the order aforesaid that the result of interview was awaited. It appears that when the OA aforesaid was filed the result had not been declared, even though it might have been declared on the date when the order was passed in the OA. After, however, noting that the result of the interview was awaited, the Hon'ble Bench observed that the Application could not be entertained at that stage. The same was dismissed being premature, but it was observed that it would be open to the applicant to approach the Tribunal after the publication of select list, if at all he would be further aggrieved. It appears from the records of the case that instead of filing an Original Application challenging the outcome of the result, the applicant preferred to file a contempt petition, which was disposed of on 4.5.2006. The counsel for the applicant stated that he would not press the contempt petition and would rather seek redressed of his grievance against his non-selection in a substantive petition in accordance with law. It further appears from the records of the case that earlier in point of time the applicant had approached the High Court by way of a writ petition bearing No. 13489-90/2005, which was, however, withdrawn enabling the applicant to approach this Tribunal. The applicant, it further appears from the records of the case, approached the Legal Aid Services Authority, Delhi, and the said Authority appears to have obtained opinion of Ms. Manjusha Wadhwa, Advocate, with regard to the case and the learned Counsel opined that personal interest of the litigant was involved and, therefore, public interest litigation was not maintainable, and that the applicant should have filed petition before the Tribunal only. The present Application has been filed on 6.6.2007. The respondents have pertinently raised the question of limitation in the counter reply filed on their behalf. There is no application seeking condemnation of delay. Recourse to redressed of grievances of the applicant even beyond the period of limitation is permissible by virtue of provisions contained in Section 21 of the 1985 Act itself, but the applicant has neither filed any application seeking condemnation of delay along with the Original Application nor has chosen to file the same even after objection was raised by the respondents. If the terminus a quo of limitation were computed from the date of result of the selection for the post under contention, present Application would be barred by limitation being beyond the period of one year. Once, the Application is beyond the period of limitation and it is not accompanied by an application seeking condemnation of delay, this Tribunal is of the firm view that the same has to be dismissed being barred by limitation. Before we may, however, part with this aspect of the case, we may mention that the applicant may have had sufficient cause for condemnation of delay on the ground that he was bona fide litigating in a judicial forum, and, therefore, the period spent by him in such litigation may not be counted in computing the period of limitation, but as mentioned above, once, there is no prayer for condemnation of delay, this Tribunal has no choice but to dismiss the Application being barred by time. It is permissible for the High Court in the jurisdiction vested in it under Article 226 of the Constitution to entertain a petition which may be belated, provided sufficient cause for delay is forthcoming, but insofar as this Tribunal is concerned, it is bound by the provisions contained in Section 21 of the Act of 1985 which mandates that no application beyond the period of limitation shall be entertained. Once, the Application is not to be entertained being barred by time, the same would not survive. However, inasmuch as, the counsel representing the parties has addressed arguments on merits of the controversy as well, we propose to deal with the same as well.
4. The counsel representing the applicant vehemently contends that the applicant was a candidate for the post of Demonstrator and belongs to the list of castes declared as Scheduled Caste for the State of Delhi by the President in 1951 (Annexure-D), and that the migrant, as is the case, would not get the right to be considered for reserved vacancies for SC, as would be made out from circulars issued by the Ministry of Home Affairs in 1975 and 1977 (Annexure G & H). The selected candidate, it is the case of the applicant, is a person belonging to State of Uttar Pradesh, i.e., a State other than Delhi. If the caste included in the list in State of Delhi is a Scheduled Caste but the said person is a domicile of another State, he would not be entitled to avail the benefit of reservation in State of Delhi, further contends the learned Counsel. The learned Counsel in his endeavor to support his contention as mentioned above, relies upon a judgment of the Hon'ble Supreme Court in Shree Surat Valsad Jilla K.M.G. Praishad v. Union of India . The observations of the Hon'ble Supreme Court relied upon by the learned Counsel read as follows:
4. By reason of the aforementioned provision, the Constitution authorized the President to specify the castes, race or tribes or parts of or groups within castes, races or tribes which shall for the purposes thereof be deemed to be Scheduled Castes in relation to that State or Union Territory by public notification. Such notification issued under Clause (1) shall not be varied by any subsequent notification as provided by Clause (2) of Article 341 except by the President. As and when States were formed, the President had power to issue notification as for that State such notification would not be a variation of the existing notification, but a fresh notification which could, after its issuance, not be varied by the President. It provides for a composite scheme. The modalities for issuance of public notification under Article 341 have been pre-scribed to enable the President to exercise his power in relation to a State where for consultation with the Governor is required to be done. Scheduled Castes are specified for the purpose of the Constitution. If power can be exercised not only for a caste or a part of group within the caste, in our opinion, it can also include a part of the State.
5. xxx xxx xxx
6. Submission of the learned Counsel for the appellants, however, is that the superior Courts should exercise a wider power of judicial review in respect of such a matter in view of the fact that the legislative power of the Parliament under Article 341(2) of the Constitution of India is of special nature and not plenary. We do not agree. List prepared by the President under Article 341(1) of the Constitution of India forms one class of homogeneous group. Only one list is to be prepared by the President and if any amendment thereto is to be made, the same is to be done by the Parliament. Even the State does not have any legislative competence to alter the same.
We find absolutely no merit in the only contention of the learned Counsel noted above. In the counter reply filed on behalf of the respondents it has been clearly averred that the caste of the selected candidate, the 4th respondent herein, is "Pasi" which is included in the Delhi List of Scheduled Caste at serial No. 30. The authority competent to issue certificate to the said effect has also certified the same in respect of the 4th respondent, i.e., to say that the 4th respondent had been issued SC certificate by the UP Government. We are further of the view that the wider choice available to the employer cannot be restricted merely on the basis of domicile of the 4th respondent. If the caste of a candidate may be such that the same is declared to be a Scheduled Caste in more than one States, in our view, he would be eligible to apply and seek appointment on reserved seat in all such States where his caste might have been declared to be Scheduled Caste. The observations of the Hon'ble Supreme Court pressed into service during the course of arguments, as extracted above, are in different context and would not support the cause of the applicant. No arguments have been raised with regard to inter se merits of the applicant and the 4th respondent. We may, however, mention that whereas the applicant is only BDS, the 4th respondent is a postgraduate, i.e., MDS, which was the desirable qualification for purposes of filling up the post of Demonstrator.
5. Finding no merit in this Application, we dismiss the same both on merit and limitation, leaving, however, the parties to bear their own costs.