Central Administrative Tribunal - Delhi
Smt. Neelam Kumari vs Gnct & Anr. Through on 20 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 510/2013
Order Reserved on: 19.02.2014
Pronounced on: 20.05.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Smt. Neelam Kumari
w/o Shri Dinesh Kumar Dabas,
R/o H.No. 184, Pocket-12,
Sector-21, Rohini,
New Delhi-110086.
..Applicant
(By Advocate: Shri S.N. Sharma)
Versus
GNCT & Anr. through
1. The Chief Secretary,
Delhi Secretariat, I.P.Estate,
New Delhi.
2. The Chairman,
Delhi Subordinate Services Selection Board,
FC-18, Institutional Area,
Karkardooma, Delhi-92.
..Respondents
(By Advocate: Ms. Alka Sharma)
O R D E R
Mr. V.N. Gaur, Member (A) The applicant had applied for the post of PGT (Hindi) female, Post Code 24/10 advertised by respondent no.2 Delhi Subordinate Services Selection Board (DSSSB). The last date of the application was 30.07.2010. The essential qualification as laid down in the advertisement is reproduced as under:
1. Masters Degree (or its equivalent Oriental Degree in the case of PGT Sanskrit/Hindi) in the subject concerned from any recognized University.
Degree/Diploma in Training/Education Qualifications mentioned at Sl. No.2 above relaxable in the case of candidates:
(i) having obtained Ph.D Degree in the subject concerned from a recognized University/Institution; or
(ii) having obtained First Division in Higher Secondary, Degree and Post Graduate Examination with the mandatory condition that the candidate will acquire the B.Ed./B.T. qualification within a period not exceeding three years from the date of his joining the service.
2. The applicant claims that she fulfilled the requisite qualification of MA (Hindi) from a recognized university and Degree/Diploma in Training/Education as she has a B.Ed. degree. It is further submitted that she has passed MA (Final) as per the marksheet issued by Kurukshetra University, Kurukshetra on 25.09.2009. Thus, on the last date of application, i.e.. 30.07.2010, she already had passed MA (Final) in Hindi. The applicant further submits that this fact had been indicated by her in the application form but, despite that, in the result declared on 22.08.2012, the respondent no.2 had kept the result of the applicant and one more candidate for the same post in the pending list for completion of documents. The applicant submitted a representation on 24.08.2012 submitting once again all attested documents adding that she had passed MA (Hindi) in the year 2009 but due to improvement examination for the higher percentage, their (sic) were too many marksheet and this is the reason behind not submission of MA certificate. But MA (Hindi) passed marksheet submitted previously. The respondents, however, vide order dated 16.01.2013 rejected her candidature on the ground that she passed MA Exam in 2011 i.e. after the cut-off date (30/7/10).
3. Sh. S.N.Sharma, learned counsel appearing on behalf of the applicant submitted that the applicant had appeared in MA (Hindi) previous examination in December 2008 for which the marksheet was issued on 28.05.2009 and she had passed. She appeared in MA (Hindi) final examination in May 2009 for which marksheet was issued on 25.09.2009. However, as the applicant was not satisfied with the marks obtained, she applied for appearing in improvement examination as per the rules of the University and, therefore, her result dated 25.09.2009 carried the remarks provisional. The applicant appeared in the improvement examinations in respect of some papers of MA (Previous) in May 2010 and some papers of MA (Final) in May 2011. She could improve her position by securing second division in the overall marks and was issued the degree of Master of Arts on 30.06.2012 stating that she had obtained the degree of Master of Arts (Hindi) from this University, having passed the examination for the said degree held in May 2011 in the second Division. According to the learned counsel, the facts that she went for improvement in certain papers and the degree was finally awarded to her after the improvement examination of May 2011, did not mean that she did not pass MA (Final) examination in 2009. Though the marksheet for MA (Final) examination held in May 2009 did not indicate the minimum passing marks in each subject nor it said that the applicant had passed, the learned counsel stated that the pass marks, as in the MA (Previous) marksheet, were 35/100. As the marks obtained by the applicant in all the papers of MA (Final) examination were more than 35, she had passed the MA (Final) examination. Through the MA filed on 09.05.2013 the applicant has also produced a certificate from the Assistant Registrar (R-III) of Kurukshetra University stating as follows:
TO WHOMSOEVER IT MAY CONCERN
1. Name of the Candidate :Neelam Kumari
2. Fathers Name : Sh. Chandroop
3. Class : M.A. (Hindi)
4. Roll No. & Passing year :0877947, May-2009
5. Marks Obtained : 441/1000
6. Chances of improvement availed: 02
7. Marks after improvement : 505/1000
8. Request submitted for Consolidated D.M.C. with Improvement marks : May, 2011
9. Roll No. and issue date of Consolidated D.M.C. of : 1422530, Improvement : May-2011 Sd- sd-
Superintendent-I (R-III) Dealing Official Sd- Assistant Registrar (R-III)
4. A Pass Provisional Slip has also been produced, signed by Superintendent (Exams-III) of Kurukshetra University stating as follows:
Kurukshetra University, Kurukshetra (Established by the State of Legislature Act XII of 1956) (A Grade, NAAC Accredited) (Pass Provisional Slip) This is to state that the candidate namely NEELAM KUMARI S/o, D/o SH. CHAND ROOP who appeared in MA HINDI (F) FULL PAPERS Examination held in May 2009 against Roll No.877947 and has obtained 215 P.P. marks out of 500 marks with Division from Kurukshetra University, Kurukshetra. The result is conveyed provisionally subject to Scrutiny and publication. The Registration No. of the candidate is 07-PCO-59214.
Sd-
Superintendent (Examinations-III) Kurukshetra University
5. In reply to RTI application filed by the applicant, the Public Information Officer of Kurukshetra University has given the following information to the applicant:
Kurukshetra University Kurukshetra R-III/S-II/Set 2 3941 Dated 27/5/2013 Neelam Kumari D/o Chandroop H.No.184 Pocket-12 Sec.21 Rohini Delhi.
Subject:- Regarding information under R.T.I. Act 2005.
Memo Reference your application dt 22/5/13. Parawise reply as under:-
1. A candidate can appear for improvement of paper(s) within five year after the M.A. Hindi (F) Exam passed.
2. Three chances can be availed for improvement within five years.
3. Two chances availed by the Neelam Kumari roll No.877947 of M.A.Hindi (F) May 2009.
4. A candidate who pass (sic.) the M.A.Hindi (F) Exam. May applying (sic.) for improvement of Exams.
5. No.
6. Previous result stands.
7. It is true that DMC awarded has to be submitted after improvement in marks and a new combined DMC issued in place of old ones.
Sd-
Public Information Officer Cum Asstt. Registrar (E-III)
6. Learned counsel concluded that these documents clearly established that the applicant had passed MA (Final) examination in 2009 and fulfilled the educational qualification required for PGT (Hindi) on the closing date of receipt of application, i.e. 30.07.2010.
7. Learned counsel for the respondents stated that the applicant did not possess the qualification as laid down in the advertisement, i.e., Masters Degree in Hindi [MA (Hindi)] on the aforesaid reference date. Learned counsel referred to the marksheet of MA (Final) of September 2009 where word RES-PROV, meaning provisional, had been used. The marksheet of MA (Final) did not show the result of the applicant as pass. It also did not show the total marks. It was further submitted that a person can be said to possess a degree only after such a certificate had been issued by the competent authority and not merely by possessing the marksheet. Learned counsel also objected to the additional documents that were filed by the applicant on the ground that some of them were signed by Dealing Officials and therefore cannot be taken on record. The applicant also did not submit a marksheet of MA (Final) examination to the respondents and now at the stage of final result the applicant cannot be given an opportunity to submit the marksheet or degree even if the same pertained to the MA examination passed in 2009.
8. Learned counsel for respondents relied on the decisions of the Honble Supreme Court which are as under:
1. Rakesh Kumar Sharma vs. Government of NCT of Delhi & Ors., Civil Appeal No.6116/2013
2. Rekha Chaturvedi (Smt.) vs. University of Rajasthan and others, 1993 Supp (3) SCC 168.
3. Ashok Kumar Sonkar vs. Union of India and others, (2007) 4 SCC 54
4. State of Rajasthan vs. Hitendra Kumar Bhatt, AIR 1998 SC 91.
9. We have carefully considered the submissions made by the learned counsels and gone through the documents submitted by both the sides. At the outset we would refer to the objection raised by the learned counsel for the respondents that the documents that have not been signed by the Registrar of the University should not be taken on record. It is observed that the documents that have been reproduced in this order have been signed by not only Dealing Official but authenticated by Superintendent-I (R-III) and Assistant Registrar (R-III) in the first document, Superintendent (Examination-III) in the second document and Public Information Officer cum Assistant Registrar (E-III) of Kurukshetra University in the third document. We do not find any reason to accept the argument that these officers are not authorized officers of the University to sign these documents.
10. The issues that need to be addressed are:
(i) whether a candidate who secured pass marks in the examination in 2009 but appeared in the improvement examination in 2010-2011 before getting the formal degree, can be considered to have passed MA (Final) for the purposes of meeting the essential qualification
(ii) whether the respondent can reject a candidate whose marksheet apparently carries pass marks but does not mention the word pass or the total marks.
11. On the question that a candidate will be treated as having Post Graduation degree only after the University formally gives a degree, we are of the view that once a candidate has secured pass marks in the examination he can be treated as possessing the prescribed qualification. It is the proposition of the learned counsel for respondents that if the candidate opts for improvement, the process of passing MA and obtaining the degree of MA will conclude only when the person has cleared all the improvement examinations taken by him. In this connection, we refer to the information provided by Public Information Officer of Kurukshetra University dated 27.05.2013 reproduced above, where in reply to the first question, it has been stated that a candidate can appear for improvement of papers within 5 years after the MA (Hindi) (F) exam passed. If we go by the proposition of learned counsel for respondents, a candidate who has passed an examination but dis-satisfied with the marks opts for improvement, will remain ineligible for any job for next 5-6 years till he gets the final marks and the degree. Such an interpretation is neither logical nor fair to the candidates who are taking improvement examinations to further improve their career prospects and not to block even the available career prospects for the next 5 years or more. We, therefore, are not inclined to accept this interpretation and are of the view that by opting to appear in improvement examinations, a candidate is not dispossessed of the pass marks obtained in the earlier examination.
12. In Rakesh Kumar Sharma vs. Government of NCT of Delhi & Ors., Civil Appeal No.6116/2013 Honble Supreme Court has observed thus:
16. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification, i.e., eligibility, character verification etc. Clause 11 of the letter of offer of appointment dated 23.2.2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court. [emphasis supplied]
13. With that being the settled position of law, the applicant in this case would possess the qualification on the date her MA (Final) result was declared, which is 25.09.2009.
14. With regard to the second issue, we are of the view that it will be unfair to the candidate to cancel her candidature only on the technical ground that the word pass or total marks were not mentioned in the marksheet which can be either intentional or an omission. The respondents had themselves given the opportunity to the applicant to submit the documents instead of canceling her candidature summarily. While the applicant has claimed that with her representation dated 24.08.2012 she had submitted the documents once again, it is not clear as to what were the documents enclosed with that letter as the Annexure-5 filed with the OA does not mention the list of documents in the forwarding letter. It only states Enclosed: Marksheet and Certificates upto MA (Hindi). However, the fact remains that the respondents kept her name in the list of withheld results in the result notice No.78 dated 28.02.2012. By that time the applicant was in a position to satisfy that she had indeed passed MA (Final) examination prior to the cut off date for submission of the application. That the absence of word pass and total marks in the MA (Final) marksheet was not intentional and that it did not mean she failed in the examination gets confirmed from the RTI reply given by the University (Question: 4 & 5 para 5 (supra). It is obvious that the improvements which she acquired in her result were not relevant in the context of selection for the post of TGT, and therefore, will have to be ignored. Once the concerned University has certified that she had actually cleared the examination of MA (Final) Hindi in 2009, the same cannot be rejected on the ground that that certificate was not issued prior to the cut off date, since the act of passing the MA (Final) Hindi examination including the declaration of result had been completed before the cut off date.
15. We have considered the cases cited by the learned counsel for the respondents.
(i) In Hitendra Kumar Bhatt (supra), the respondents in that case did not possess the requisite technical qualification on 29.06.1992 which was the last date of submitting the application. He had appeared in the B.Ed. examination but the result had not been declared as on 29.06.1992. It was declared on 06.08.92. In the present case, the result of MA (Final) examination was declared in September 2009 while the last date for application was 30.07.2010.
(ii) In Rekha Chaturvedi (Smt.) vs. University of Rajasthan and others (supra), the contention of the applicant was that the requisite qualification of the candidates should be examined with reference to the date of examination and not last date for making applications. This again is not the contention of the applicant in the present OA.
(iii) In Ashok Kumar Sonkar vs. Union of India and others (supra) Banaras Hindu University issued an advertisement for filling up a vacant post of Lecturer. The appellant in that case applied for the said post on 30-5-1995. As till the said date the appellant had not completed his MD in Sharir Kriya, which was an essential qualification for the said post, with his application he enclosed a certificate issued by the Head of the Department concerned in that regard. No cut off date had been mentioned for submitting the applications. The appellant passed the said examination only on 30-10-1995. It was held that in the absence of any specific date having been fixed in the advertisement, the last date of filing the application will be the reference date for meeting eligibility conditions.
(iv) In Rakesh Kumar Sharma vs. Government of NCT of Delhi & Ors. (supra) a pre-requisite qualification for the post was that of B.Ed. Though the appellant in that case had appeared in the B.Ed. examination prior to the submission of the application for TGT (Sanskrit) which was 29.10.2007, the result, however, was declared only on 28.01.2008.
16. We are of the view that the facts of the above mentioned cases are different from the facts of the present case, and therefore, those judgments will not be relevant in the present case.
17. In view of the foregoing discussions and reasons given, we allow this OA and direct the respondents to consider the candidature of the applicant as having passed MA (Final) Hindi prior to the last date of submission of the application form after satisfying themselves about the authenticity of the Pass Provisional Slip issued by Kurukshetra University, Kurukshetra. No order as to costs.
( V.N. Gaur ) ( V. Ajay Kumar ) Member (A) Member (J) sd