Central Administrative Tribunal - Delhi
Meenakshi vs Govt. Of Nctd on 2 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
M.A.NO.1516 OF 2016
(In O.A.No.1529 OF 2016)
New Delhi, this the 2nd day of November, 2016
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
AND
HON'BLE SHRI RAJ VIR SHARMA,JUDICIAL MEMBER
..........
Smt.Meenakshi,
w/o Sh.Sukhbir Singh,
R/o A-303, Janak Apartment,
Plot No.12, Sector 18-A,
Dwarka, New Delhi 110075 ...... Applicant
(By Advocate: Shri Sudhanshu Tomar)
Vs.
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
Delhi Secretariat, I.P.Estate,
New Delhi 110002
2. The Directorate of Education, through
its Director,
Government of NCT of Delhi,
Old Secretariat, Delhi-54
3. Delhi Subordinate Services Selection Board, through its
Secretary,
Government of NCT of Delhi,
FC-18, Institutional Area,
Karkardooma,
Delhi 110092 ....... Respondents
(By Advocate: None)
ORDER
Per RAJ VIR SHARMA, MEMBER (J):
The applicant has filed M.A. No.1516 of 2016 for condonation of delay, if any, in filing of O.A. No.1529 of 2016.
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2. We have perused the records, and have heard Mr.Sudhanshu Tomar, the learned counsel appearing for the applicant. Despite service of notice, none has appeared for the respondents.
3. It is the case of the applicant that respondent no.3-Delhi Subordinate Services Selection Board (DSSSB), vide their advertisement No.02/2010, invited applications for the post of Librarian under the Post Code 69/10, stipulating upper age limit as 32 years. The applicant applied for the same. Before the recruitment examination was held, respondent no.2- Director of Education, Government of NCT of Delhi, by a policy decision dated 21.1.2011, declared the post of Librarian as a teaching post. Thereafter, respondent no.3 issued fresh advertisement in the year 2011 inviting applications from eligible persons for the post of Librarian, and the said advertisement was challenged before the Hon'ble High Court of Delhi. The Hon'ble High Court scrapped the entire recruitment process pursuant to the 2011 advertisement, and directed respondent no.3-DSSSB to initiate fresh recruitment process. In the year 2013, the respondent-DSSSB issued a fresh advertisement, fixing 20.3.2013 as the last date for receipt of applications. In response to the 2013 advertisement, the applicant also applied as an OBC candidate. The applicant, at the time of making application pursuant to the advertisement issued in 2013, became overage as in the advertisement dated 24.10.2011 the maximum age limit was 32 years plus age relaxation, but in the fresh advertisement the maximum age limit was reduced by two years and that was made 30 years plus the age Page 2 of 14 3 relaxation wherever applicable. In August 2014 the applicant received roll number for the Post Code 69/10 which was advertised in the year 2010. Then the applicant enquired about status of her application for the Post Code 02/13 of advertisement No.01/13, ibid. The applicant then came to know that her candidature was rejected on the ground of her being overage for the Post Code 02/13, vide rejection notice dated 10.9.2013. On 31.8.2014 a common written examination was held for both the Post Codes. The applicant duly appeared in the examination. On 17.7.2015, results of the common written examination for both Post Codes were announced. It was mentioned in the result notice that the result of Smt. Asha, who had filed W.P.( C ) No. 1035 of 2014, was not announced. Then the applicant enquired about the judgment passed by the Hon'ble High Court of Delhi in the case of Smt. Asha. She found that the Hon'ble High Court has held that general age relaxation of ten years should be given to the women candidates for the post of Librarian, and has also allowed Smt. Asha to participate in the examination. Therefore, she made a representation dated 4.4.2016 requesting the respondent-DSSSB to set aside the rejection notice dated 10.9.2013, whereby her candidature for the post of Librarian (Advertisement No.01/13, Post Code 02/13) was rejected on the ground of her being overage, and also to consider her candidature for the said Post Code 02/13. Thereafter, the applicant filed the O.A. on 29.4.2016 seeking the following reliefs:
"A. Quash and set aside the impugned notice dated 10.09.2013 whereby the applicant was declared overage;Page 3 of 14 4
B. Direct the respondents to give ten years general age relaxation as given to the women candidates and also declare that the applicant is not overage; and C. Direct the respondents to consider the candidature of the applicant for the post code 02/13 for the post of librarian as advertised vide advertisement No.01/13 and also direct the respondents to give appointment to the applicant for the post of librarian;
D. Direct the respondents to keep one post vacant till the final disposal of the O.A. E. Any other relief which this Hon'ble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant.
It is stated by the applicant that the cause of action for filing the O.A. arose on 17.7.2015 when she came to know that the respondents did not act as per law, and the mandate of the Hon'ble High Court of Delhi. It is also stated by the applicant that the O.A. has been filed within the period of limitation which started from 17.7.2015, and that the MA has been filed by her out of an abundance of caution with a prayer to condone the delay, if any, in filing of OA No. 1529 of 2016.
4. Section 21 of the Administrative Tribunals Act, 1985, reads thus:
"21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) 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 Page 4 of 14 5 the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-
section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or , as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
5. In paragraph 4.10 of the O.A., the applicant has stated that she "came to know that her candidature for the post code 02/13 was rejected vide notice dated 10.09.13, posted on the website of the DSSSB". She has also filed copy of the extract of the said rejection list/notice for the Post Code 02/13 in which her name appears at Sl.No.1660, and it is mentioned Page 5 of 14 6 that her candidature has been rejected on account of her being overage. Thus, it is clear that the cause of action, if any, arose on 10.9.2013 when the said notice rejecting the applicant's candidature on account of her being overage was published by the respondent-DSSSB. If at all the applicant had any grievance against the said rejection notice dated 10.9.2013, she ought to have made an application under Section 19 of the Administrative Tribunals Act, 1985, against the same within prescribed period of limitation of one year from 10.9.2013. Therefore, the O.A. filed by the applicant on 29.4.2016 against the rejection notice dated 10.09.2013 is clearly barred by limitation.
6. It is the contention of the applicant that only on 17.7.2015, when the results of both Post Codes 69/10 and 02/13 were declared by the respondent-DSSSB, she came to know that the Hon'ble High Court of Delhi, in its judgment dated 22.8.2014 passed in W.P. (C) No.1035 of 2014, has held that general age relaxation of ten years should be given to the women candidates for the post of Librarian, and has also allowed Smt.Asha to participate in the examination. Therefore, the respondents ought to have granted 10 years general age relaxation to her, set aside the notice dated 10.9.2013 qua rejection of her candidature, and considered her candidature for the Post Code 02/13 of Advertisement No.01/13; she being similarly placed as Smt. Asha.
7. In M/s. Rup Diamonds & Ors. v. Union of India & Ors., (1989) 2 SCC 356, the Hon'ble Supreme Court observed that those people Page 6 of 14 7 who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows :
"Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal. "
8. In State of Karnataka & Ors. v. S.M.Kotrayya & Ors., (1996) 6 SCC 267, the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached the Hon'ble Supreme Court. Their Lordships, after considering the matter, observed as under :
"..........it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-section (1) or (2) of Section 21, but Page 7 of 14 8 they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub- section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."
9. In Jagdish Lal & Ors. v. State of Haryana & ors. (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit.
10. In Union of India & Ors. v. C.K. Dharagupta & Ors.(1997) 3 SCC 395, it was observed as follows :
" We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P.Joshi gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K.Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
11. In Government of W.B. v. Tarun K. Roy & Ors. (2004) 1 SCC 347, the Hon'ble Supreme Court considered delay as serious factor and did not grant relief. Therein it was observed as follows : Page 8 of 14 9
" The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp.(1) SCC 138. The plea of delay, which Mr.Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law."
12. In Chairman, U.P.Jal Nigam & another vs. Jaswant Singh & another, 2006(12) SCALE 347, the respondents were the employees of the U.P.Jal Nigam (hereinafter to be referred to as 'the Nigam') and were retired on attaining the age of superannuation at 58 years. Some of them filed writ petitions in the High Court of Judicature at Allahabad challenging the retirement of the employees of the Nigam on attaining the age of 58 years whereas the State Government employees were allowed to continue up to the age of 60 years and, therefore, they should also be allowed to continue up to the age of 60 years. The writ petitions filed before the High Court failed and against that Civil Appeal No.7840 of 2002 and batch of other appeals were filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court disposed of the case of Harwindra Kumar along with other appeals and held that employees of Nigam are entitled to continue up to 60 Page 9 of 14 10 years. This has been reported in (2005) 13 SCC 300. During the pendency of the appeals and writ petitions before the Hon'ble Supreme Court and after disposal of the same by the Hon'ble Supreme Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Number of writ petitions were filed in the High Court in 2005 on various dates after the judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in the case of Harwindra Kumar (supra) and relief was given to them for continuing in service up to the age of 60 years. Hence, the appeals arose against various orders passed by the High Court from time to time. Considering the facts and circumstances of the case, and after referring to the M/s. Rup Diamonds & Ors. v. Union of India & Ors. (supra), State of Karnataka & Ors. v. S.M.Kotrayya & Ors.(supra), Jagdish Lal & Ors. v. State of Haryana & ors. (supra), Union of India & Ors. v. C.K. Dharagupta & Ors. (supra), Government of W.B. v. Tarun K. Roy & Ors. (supra), the Hon'ble Supreme Court held thus:
"13. In view of the statement of law as summarized above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whittled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be Page 10 of 14 11 very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
13. In State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors., Civil Appeal No.9849 of 2014, decided on 17.10.2014, the Hon'ble Supreme Court, after analyzing a number of case-
laws, has culled out the following legal principles:
"(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit.
Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be Page 11 of 14 12 extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
14. As in the instant case the applicant is claiming age relaxation and also praying for quashing of the notice dated 10.9.2013, whereby her candidature for Post Code 02/13 was rejected by the respondent-DSSSB on the ground of her being overage, on the basis of the judgment dated 22.8.2014 passed in W.P. (C) No. 1035 of 2014 (Asha Vs. Government of NCT of Delhi & others), it would be apposite to quote paragraphs 13 to 17 of the said judgment:
"13. In view of the GNCTD's silence as to the supersession or inapplicability of the 01.11.1980 circular - clearly its position that age relaxation for women candidates cannot be granted, is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in it for no reason except that it has failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred. The GNCTD also does not dispute that for other categories of teaching staff or teachers in its Page 12 of 14 13 schools, the 10 year relaxation, based upon 01.11.1980 circular or rules-which assimilated its mandate, have been given effect to.
14. The impugned order of the Tribunal also has noticed a judgment of this Court in Smt. Promila Dixit v. GNCTD in W.P.(C.) No.1234/2010 decided on 26.11.2010, where an identical contention with respect to the equation of TGT with librarian for the purposes of recruitment and age relaxation was upheld. This Court is of the opinion that this being the position even before the issuance of 21.01.2011 circular, the GNCTD's stand in this case appears to be obstinate to put it mildly. Furthermore, the CAT, in our opinion, fell into error in ignoring a direct judgment on the issue even after noticing its effect and purport.
15. For the foregoing reasons, the petition has to succeed. The impugned order of the CAT is, accordingly, set aside. The respondents are hereby directed to accept the petitioner's application and allow her to appear in the competitive examination scheduled on 31.08.2014.
16. The petitioner shall be intimated about her examination centre etc. on 27.08.2014 by the concerned officer of the DSSSB. For that purpose, she shall appear before the concerned officer of the DSSSB on 27.08.2014. The respondent GNCTD is directed to coordinate with the DSSSB and ensure that the petitioner is given the Admit Card as well as intimation about the examination centre etc. on 27.08.2014. The petitioner shall present in the office of the respondent/DSSSB at 11:00 a.m. on that day.
17. The writ petition is allowed in the aforesaid terms."
(Emphasis supplied) From the above judgment, it is clear that the Hon'ble High Court of Delhi did not intend to give benefit to all similarly situated persons, whether they approached the Court or not. Therefore, the applicant had to explain the delay for the period from 10.9.2014, i.e., after expiry of one year from 10.9.2013 when the rejection notice was published, till 28.4.2016, i.e., the date preceding the date of filing of the O.A.. Save and except stating about Page 13 of 14 14 the declaration of results of the common written test for both Post Codes 69/10 and 02/13 on 17.7.2015, non-publication of the result of Smt. Asha, and judgment passed by the Hon'ble High Court of Delhi in the case of Smt. Asha, the applicant has not shown any cause for not filing the O.A. within the prescribed period of limitation of one year from 10.9.2013 when the impugned rejection notice was published by the respondent-DSSSB. After having considered the facts and circumstances of the case, in light of the decisions referred to above, we are unable to agree with the applicant that the cause of action arose on 17.7.2015 for filing the O.A. The applicant having failed to satisfy us that she had sufficient cause for not making the application within the prescribed period of limitation of one year from 10.9.2013, we are not inclined to condone the delay of more than one and half years, i.e., from 10.9.2014 to 28.4.2016. Therefore, MA No.1516 of 2016 filed by the applicant for condonation of delay in filing of O.A.No.1529 of 2016 is rejected. Consequently, O.A. No.1529 of 2016 is rejected as being barred by limitation.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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