Central Administrative Tribunal - Delhi
Abhishek Kumar Singh vs Union Of India on 26 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2332/2007 New Delhi this the 26th day of April, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Abhishek Kumar Singh, Constable (Dog Handler) in Delhi Police, PIS No. 28020313, R/o H. No. 290, PTS, Malviya Nagar, New Delhi-17 Applicant. (By Advocate Shri Anil Singal) VERSUS 1. Union of India through its Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Lt. Governor of Delhi, Raj Niwas, Delhi. 3. Commissioner of Police, Police Headquarter, I.P. Estate, New Delhi. Respondents. (By Advocate Mrs. Jyoti Singh) O R D E R Shri Shanker Raju, Member (J):
Applicant by virtue of this OA has impugned an advertisement issued by Delhi Police for recruitment of Sub Inspectors (Executive) Male in Delhi Police, in the year 2007 challenging the cut off date of 01.07.2007 for eligibility.
2. Applicant had joined Delhi Police as Constable (Dog Handler) on 19.12.2002 and had completed five years of service as an eligibility condition for the post of Sub Inspector (Executive) in Delhi Police as a departmental candidate, on 19.12.2007. Rule 7 of the Delhi Police (Appointment and Recruitment) Rules, 1980 provides as under:
Recruitment of Sub-Inspectors (Executive) Fifty per cent of vacancies in the rank of sub-Inspector (Executive) shall be filled by direct recruitment and 50% by promotion or of 50% direct quota, 10% of the post shall be filled by limited department competitive tests from amongst constables, Head Constable, and Asstt. Sub-Inspectors with minimum 5 years of service who shall not be more than 35 years (now 40 years) of age on the first day of January of the year if the examination is held in the first half of the year and on the first day of July of the year if the examination is held in the later half of the year. The educational qualification and other physical standards for the test shall be the same as prescribed in the Rules for direct recruitments to such posts. The unfilled vacancies reserved for the department candidates will be carried forward for 3 recruitment years as in the case of vacancies for the scheduled tribe candidate where after the unfilled vacancies for the scheduled tribe candidate whereafter the unfilled vacancies will be filled by direct recruitment.
3. Respondents had issued the advertisement for 692 vacancies of Sub-Inspectors (Exe.) Male in Delhi Police in 2007 whereby the qualifying five years service was mandated as a condition precedent for a departmental candidate with a cut off date of eligibility condition to be fulfilled as on 01.07.2007. Though the process of recruitment was initiated on 03.12.2007 by conducting Physical Endurance Test and measurement test but the written examination was held only on 13.01.2008. Applicant, who was considered ineligible, approached this Tribunal, on 12.12.2007 and prayed for an interim relief of staying the examination which by an order dated 14.12.2007 was not allowed by the Tribunal. However, the following is observed:
However, the relief to which the applicant is entitled would be seen at the time of hearing and relief will be moulded accordingly.
4. Learned counsel for the applicant states that the pre-requisite formalities prior to holding of an examination for the posts of Sub-Inspector (Executive) Male in Delhi Police, would not be treated as the examination as such in view of the decision of the Apex Court in Union of India & Anr. Vs. Sudhir Kumar Jaiswal (1994 (4) SCC 212). In furtherance, it is stated that as per Rule 7 of the Appointment Rules ibid, the cut off date for eligibility should be as if the examination is held in first half of January of that year. Accordingly, it is stated that once the examination for recruitment to the posts of Sub-Inspector (Executive) Male was held on 13.01.2008, the cut off date should have been taken as 01.01.2008 and on that date, the applicant being eligible, rejecting his candidature and denying him for participating in the selection process, is deprivation of his right to be considered fairly, equitably for appointment. Learned counsel relies upon the decision of the co-ordinate Bench of the Tribunal in Ashok Kumar Vs. Union of India & Ors. (OA 1497/2004), decided on 19.08.2005 wherein the cut off date pertaining to Sub Inspectors examination as per Rule 7 of the Rules ibid has been laid down which in all fours covers the present issue.
5. On the other hand, respondents counsel Mrs. Jyoti Singh opposed the contention and stated that the applicant was ineligible on the date of initiation of the process of recruitment to the posts of Sub Inspector as earlier when the examination for Sub Inspectors was conducted by the SSC, the written test was not preceded by Physical Endurance Test and measurement test, which was taken later on after the main examination. As such, the recruitment process when initiated on 03.12.2007, the cut off date was rightly fixed as 01.07.2007. Since it was not arbitrarily done, the applicant cannot successfully assail the recruitment process in judicial review. Learned counsel states that the process of examination is completed in all respects and all the vacancies have been filled up by appointment of officers, as such declaring the cut off date as ineligible would have a cascading effect and the flood gates would be opened. It is further stated that the decision of the Tribunal will not be applicable in the facts and circumstances of the present case. Learned counsel would further state that if the cut off date is to be deemed as 01.01.2008, the applicant having acquired the eligibility condition on that date, would have every right to participate in the recruitment process, which would be conducted in future, on availability of vacancies of Sub Inspector in Delhi Police.
6. We have carefully considered the rival contentions of the parties and perused the material on record.
7. Though a selected candidate by trite law has no indefeasible right to be appointed, yet right to be considered for appointment on fair and equitable basis is a right guaranteed under service jurisprudence to a candidate. In public employment, the statutory rules have to be followed, which is no more res integra in the light of the decision of the Constitution Bench of the Apex Court in Secretary, State of Karnataka Vs. Uma Devi (2006 (4) SCC 1).
8. As ruled in Malik Mazhar Sultan and Anr. Vs. U.P. Public Service Commission & Ors. (2006 (9) SCC 507), advertisement inviting applications cannot override the provisions of statutory rules and has to be in consonance with it. Another aspect, which requires consideration in the preliminary issue of maintainability of the claim of a person, who has not been selected on his participation in the recruitment process on the ground of ineligibility, is whether acquiescence or estoppel would apply, has been considered by a three judges Bench of the Apex Court in Ramesh Kumar Vs. High Court of Delhi and Anr. (2010 (1) SCC (L&S) 756) wherein it is ruled that when a person has already participated in recruitment process and subsequently challenged it on some illegality, estoppel would not have any application.
9. We find from clause (v) of the advertisement that the cut off date for eligibility of a departmental candidate was 01.07.2007 when he has to have minimum of five years service. However, the fact remains that the recruitment process has been shifted from SSC to Delhi Police where the first formality before written examination was to have Physical Endurance Test and Measurement test. The contention put forth by respondents counsel that the process of examination in view of Rule 7 of the Appointment Rules would have to be construed as Physical Endurance Test and measurement test conducted on 03.12.2007 and as such the cut off date to be treated in second half of 2007 i.e. 01.07.2007 is apt in law, is misconceived. What is required as per the statutory Rule 7 is that eligibility of five years service should be on the first day of January of the year if the examination is held in first half of the year and first day of July of the year if the examination is held in the second half of the year. This examination does not refer specifically for Physical Endurance Test as well as measurement test yet giving an interpretation to the rule by estoppal construction where no other process except examination is the initiation point of cut off date, the rule once being interpreted by the Tribunal in Raj Kumars case (supra), a judicial dicta on interpretation of the rules irrespective of the agency conducting the examination would hold the field and accordingly when the examination is held in the present case pursuant to the advertisement for recruitment to the posts of Sub Inspector (Executive) Male, on 13.01.2008, it is Ist January, 2008 which should have been taken as the cut off date to determine the eligibility of the candidates.
10. As the applicant had completed five years service on 19.12.2007, he was eligible to participate in the examination on 13.01.2008 yet he was not allowed to participate in the recruitment process, which has not only prejudiced him but deprived of his legal rights.
11. As regards the contention of the respondents counsel that such an interpretation of cut off date would open the flood gates, at the outset, we must mention that in the rule of law, a legal right has to be protected and more particularly in the Tribunal when one has to be redeemed of illegality which has to be corrected irrespective of whether the issue would open flood gates, we have to impart justice to an individual who comes before us to prevent not only abuse of process of court but also to prevent miscarriage of justice. The issue regarding opening of flood gates had been the subject matter of the Apex Court in Coal India Ltd. & Ors. Vs. Saroj Kumar Mishra (2008 (2) SCC (L&S) 321) wherein this ground has been ruled not to take away valuable rights of a person.
12. However, as the recruitment process has been conducted and led to finality by appointment of Sub Inspectors, we do not want to disturb the appointments already made but on the other hand we have to do justice with the applicant and protect his legal right as well. As the applicant has been deprived of an opportunity to appear in the recruitment for the posts of Sub Inspector despite being eligible, if the respondents conduct another recruitment process on availability of vacancies of Sub Inspectors (Executive) Male in Delhi Police, the claim of the applicant shall be considered on deemed eligibility and in case he is selected and offered appointment, grant of notional seniority from the date the other Sub Inspectors, who were selected in 2007 examination, shall be considered by the respondents but without financial benefits. In such an event, law shall take its own course. No costs.
( Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) `SRD