Central Administrative Tribunal - Delhi
O.A.3663/2 vs Nct Of Delhi & Ors. on 30 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.As 3663/2011,3599/2011,3719/2011,3691/2011,
3699/2011,3708/2011,3718/2011,4363/2011,
3721/2011,3727/2011,3728/2011,3729/2011,
3732/2011, 3733/2011, 3734/2011,3735/2011,
3736/2011,3737/2011 and 3772/2011
ORDER RESERVED ON : 01.03.2012
ORDER PRONOUNCED ON: 30.03.2012
Honble Shri G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)
1. O.A.3663/2011
Preeti Balayan Applicant.
(By Advocate Shri Anand Nandan)
Versus
NCT of Delhi & Ors. Respondents.
2. O.A. 3599/2011
Ravinder Gahlot & Ors. Applicants.
(By Advocate Shri Raman Duggal)
Versus
Delhi Subordinate Services
Selection Board & Ors. Respondents.
(By Advocates Shri Rajinder Khatter and Ms. Sumedha Sharma)
3. O.A. 3719/2011
Sonam Tomar & Ors. Applicants.
(By Advocate Shri Sumit Kumar)
Versus
Municipal Corporation of Delhi & Ors. Respondents.
(By Advocates Shri R.K. Jain & Ms. Alka Sharma)
O.A. 3691/2011
Ms. Anjali Yadav & Ors. Applicants.
(By Advocate Shri K. Venkataramani)
Versus
Delhi Subordinate Services
Selection Board & Ors. Respondents.
(By Advocates Shri R.K. Jain and Ms. Rashmi Chopra)
5. O.A. 3699/2011
Pinky Yadav & Ors. Applicants.
(By Advocate Shri U. Srivastava)
Versus
Govt. of NCT of Delhi & Ors. Respondents.
(By Advocates Shri R.K. Jain and Mrs. Alka Sharma)
6. O.A 3708/2011
Paridhi Parashar Applicant.
(By Advocate Shri Ujjawal Jha)
Versus
The Chief Secretary & Ors. Respondents.
(By Advocate Shri R.K. Jain and Mrs. Alka Sharma)
7. O.A. 3718/2011
Anjali Yadav & Ors. Applicants.
(By Advocate Shri Raman Duggal)
Versus
Delhi Subordinate Services
Selection Board & Ors. Respondents.
(By Advocates Shri R.K. Jain and Mrs. Sumedha Sharma)
8. O.A. 4363/2011
Ms. Nidhi Yadav & Ors. Applicants.
(By Advocate Shri V.S.R. Krishna)
Versus
Govt. of NCT of Delhi & Ors. Respondents.
(By Advocates Shri R.K. Jain and Mrs. Sumedha Sharma)
9. O.A.3721/2011
Mohd. Arif & Ors. .. Applicants.
(By Advocate Shri Raman Duggal)
Versus
Delhi Subordinate Services
Selection Board & Ors. .. Respondents.
(By Advocate Shri R.K. Jain)
10. O.A. 3727/2011
Ashish Kumar & Ors. .. Applicants.
(By Advocate Shri Ravi Dahiya)
Versus
Delhi Subordinate Services
Selection Board & Ors. .. Respondents.
(By Advocates Shri R.K. Jain Mrs. Alka Sharma and Shri B.N.P. Pathak)
11. O.A. 3728/2011
Jai Bhagwan & Ors. .. Applicants
(By Advocate Shri Nitin Kumar)
Versus
Govt. of NCT of Delhi & Ors. Respondents.
(By Advocate Shri R.K. Jain)
12. O.A. 3729/2011
Neha Shokeen & Ors. Applicants.
(By Advocate Shri U. Srivastava)
Versus
Govt. of NCT of Delhi & Ors. Respondents.
(By Advocate Shri R.K. Jain and Mrs. Alka Sharma)
13. O.A. 3732/2011
Ms. Amita Mathur .. Applicant
(By Advocate Shri Anuj Aggarwal)
Versus
Delhi Subordinate Services
Selection Board & Ors. Respondents.
(By Advocate Shri R.K. Jain and Mrs. Alka Sharma)
14. O.A 3733/2011
Monica Mann & Ors. .. Applicants.
(By Advocate Shri Suorabh Ahuja)
Versus
Delhi Subordinate Services
Selection Board & Ors. .. Applicants.
(By Advocate Shri R.K. Jain & Ms. Rashmi Chopra)
15. O.A 3734/2011
Rohit Navaria & Ors. Applicants.
(By Advocate Shri Raman Duggal)
Versus
Govt. of NCT of Delhi & Ors. Respondents.
(By Advocate Shri R.K. Jain and Ms. Rashmi Chopra)
16. O.A. 3735/2011
Wali Hasan & Ors. Applicants.
(By Advocate Shri Ajesh Luthra)
Versus
Delhi Subordinate Services
Selection Board & Ors. Respondents.
(By Advocates Shri R.K. Jain & Shri Vijay Pandita)
17. O.A. 3736/2011
Sarita & Ors. .. Applicants
(By Advocate Shri U. Srivastava and Shri Anuj Aggarwal)
Versus
Govt. of NCT Delhi & Ors. .. Respondents.
(By Advocate Shri R.K. Jain & Mr. Vijay Pandita)
18. O.A. 3737/2011
Uma Kant &Ors. Applicants.
(By Advocate Shri Sumit Kumar)
Versus
Municipal Corporation of Delhi
and Ors. Applicants.
(By Advocates Shri R.K. Jain & Mrs. Renu George)
19. O.A. 3772/2011
Ms. Sumita Narwal & Ors. Applicants.
(By Advocate Shri Ravinder Narwal)
Versus
Delhi Subordinate Service
Selection Board & Ors. Respondents.
(By Advocate Shri R.K. Jain & Ms. Alka Sharma)
O R D E R
Mr.G.Gerorge Paracken (J) The issue raised in all these O.As is the same and, therefore, they are disposed of by this common order. The factual matrix in all these cases also being the same, for the sake of convenience, the facts as stated in O.A. 3721/2011 Mohd. Arif & Ors. Vs. Delhi Subordinate Services Selection Board (`DSSSB for short) & Ors. are delineated here.
2. Before the Annexure A-3 Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi (`MCD for short), 2007 were notified on 13.7.2007 by the MCD and similar notification was issued by the Government of NCT of Delhi on 08.07.2006, the criterion for selection to the post of Teacher (Primary)/Assistant Teacher (Primary) was as follows:-
1. Age : Upto 32 years (upto 42 years for Women) with the relaxation as provided under Government of India instructions;
2. Pass in Senior Secondary School Examination, and
3. Hindi as a subject at Secondary or Higher level. By the said Annexure A-3 notifications, the earlier recruitment rules were amended to the following effect:
1. Age: 20 to 27 years with the relaxation as provided under Government of India instructions;
2. Pass with 50 % in Senior Secondary School Examination, and
3. Hindi as a subject at Secondary Level. The aforesaid amendments were challenged before the Honble High Court of Delhi vide Writ Petition ( C ) No. 7297/2007 and connected cases - Sachin Gupta & Ors. Vs. Delhi Subordinate Services Selection Board (`DSSSB for short). However, the High Court, by its judgment dated 28.8.2008, uphled the aforesaid Recruitment Rules and its relevant part is as under:-
45. Since the impugned RRs have been notified by the MCD and Government of NCT of Delhi by virtue of power conferred under Section 98 of DMC Act and by virtue of proviso to Article 309 of the Constitution respectively, we are of the view that the impugned RRs are statutory and legislative in character. In V.K. Sood v. Secretary, Civil Avition and Ors., reported in (1993) Supp 3 SCC 9, the Apex Court recognized this legal position when it held:
3.It would thus be clear that the rules made by the President or authorized person under proviso to Article 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the conditions of service or post. They are statutory and legislative in character. The statutory rules thus made are subject to the law that may be made by the Parliament. 46 to 49. x x x x
50. We are also of the view that the impugned RRs do not operate retrospectively. No candidate who has already been appointed as a teacher and who had acquired vested right of such appointment in accordance with the earlier Rules has been prejudicially affected by the impugned RRs. The impugned RRs are effective only from their date of Notification and the petitioners cannot claim any vested right on the strength of an advertisement issued under old Rules which now stand withdrawn.
3. The DSSSB, vide its Annexure A-4 Advertisement No. 004/2009 published through the newspapers on 11.12.2009 and in the Employment News on 26.12.2009 invited applications for 4500 vacant posts of Teacher (Primary) (Post Code 70/09) in MCD and for 520 vacant posts of Assistant Teacher (Primary) (Post Code 71/09) in the Directorate of Education, Govt. of National Capital Territory of Delhi (GNCT of Delhi for short) with the opening and closing dates for receipt of applications as 29.12.2009 and 15.01.2010, respectively and the latter date as the crucial date for determining the prescribed age and the qualifications. It was based on the Annexure A-3 Notification dated 13.07.2007 and the essential and desirable qualifications for the aforesaid posts were published as under:
Essential Qualifications:
Sr. Secondary (10+2) or Intermediate or its equivalent with 50% marks from a recognized Board.
Two years diploma/Certificate course in ETE/JBT or B.El.Ed. from recognized institutions or its equivalent.
Must have passed Hindi (for post code 69/09 Urdu) as a subject at Secondary level.
Desirable Qualification:-
Computer knowledge. The prescribed age limit for general category candidates was also published as 20-27 years, relaxable for other categories, as per rules.
4. In response to the aforesaid advertisement, the DSSSB received 55,486 applications under post code No. 70/2009 and 18,490 applications under post code No. 71/2009. Thereafter, they have scheduled the examination for two days on 16.5.2010 and 23.5.2010.
5. Meanwhile, this Tribunal, vide its order dated 03.5.2010 in OA.1101/2010 stayed the examination scheduled to be held on 10.04.2010 and 11.04.2010 for the posts of Nurse on the ground that a common merit list cannot be prepared on the basis of two different sets of question papers for the same posts. In view of the said stay order, the DSSSB on their own re-scheduled all similar examinations including those under post code No. 70/2009 and 71/2009 notified vide advertisement No. 04/2009. However, some of the prospective candidates who were not covered within the age limit prescribed in the above advertisement approached this Tribunal vide O.A No. 121/2010 and O.A. No. 151/2010, taking the plea that in accordance with the recommendations of the Sixth Central Pay Commission which were effective from 01.01.2006, the post of Primary Teacher should have been classified as Group `B with the maximum age limit as 30 years as per the guidelines issued by the Department of Personnel and Training, instead of Group `C with the maximum age limit of 27 years as published in the advertisement. Allowing those O.As, this Tribunal, vide is order dated 20.07.2010, put on hold the examination of aforementioned posts till the Recruitment Rules were revised. The operative part of the said order reads as under:
12. Resultantly, we have no hesitation to hold that non-amendment of the recruitment rules by the respondents, despite change in the pay scale and classification of the post, to which the applicants have applied, they have been deprived of an opportunity and valid consideration for appointment. We also find from the record that after the advertisement, the selection is yet to begin as no examination, etc. has taken place.
13. As there is no question of right of any selectee being adversely affected by any direction issued by us, we dispose of these OAs by directing the respondents to finalize the amendment in the recruitment rules by applying the classification of the post and enhancement of the age as per Office Memoranda ibid within a period of 45 days from the date of receipt of a copy of this order by issuing a corrigendum to the advertisement to this effect. It goes without saying that the applicants, if are covered by the enhancement of age, would be deemed as eligible and their candidature be considered in the selection process, which would be put on hold for the aforesaid period. In such an event, law shall take its own course. No costs.
6. Pursuant to the aforesaid direction of this Tribunal, both the MCD and the Govt. of NCT of Delhi have amended the relevant recruitment rules. The respondent MCD notified the amended Rules as Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi, 2011 vide Notification dated 06.09.2011 in supersession of its earlier Notification of 2007 issued on 13.07.2007 reclassifying the post of Teacher (Primary) as a Group B post with the age limit increased to 30 years and the crucial date for determining the age limit has been made as the closing date for receipt of applications from candidates. In the said Recruitment Rules, the educational and other qualifications have been prescribed as under:
Essential:
Senior Secondary (10+2) or Intermediate or its equivalent from a recognized Board/Institution.
Two years Diploma/Certificate course in Elementary Teacher Education Course/Junior Basic Training or equivalent or bachelor of elementary education from a recognized Institution.
Must have passed Hindi as a subject at Secondary or Senior Secondary level.
Must have passed English as a subject at Secondary or Senior Secondary level.
Note: Qualifications are relaxable at the discretion of the competent authority for reasons to be recorded in writing in the case of candidates otherwise qualified.
7. Subsequently, the DSSSB issued the Annexure A-5 Corrigendum to the aforesaid Advertisement No. 04/2009 by which the earlier prescribed essential qualification of Sr. Secondary (10+2) or Intermediate or its equivalent with 50% marks from a recognized Board has been modified to the extent of reducing the percentage of marks to 45%. The revised essential and desirable qualifications are as under:
Essential Qualifications:
Sr. Secondary (10+2) or Intermediate or its equivalent with 45% marks from a recognized Board.
Two years diploma/Certificate course in ETE/JBT or B.El.Ed. from recognized institutions or its equivalent.
Must have passed Hindi (for post code 69/09 Urdu) as a subject at Secondary level.
Desirable Qualification: Computer knowledge.
8. Meanwhile, on reporting additional 2000 vacancies occurred during the interregnum of issuing the advertisement dated 29.12.2009/15.01.2010 notifying 4500 vacancies and the amended Recruitment Rules, 2011 notified on 06.09.2011, the DSSSB, vide Annexure A-6 Addendum to its Advertisement No 04/2009 increased the number of vacancies from 4500 to 6500. However, in both the Corrigendum as well as in the Addendum, the DSSSB held that the crucial date for determining the age and attaining the requisite qualification shall remain unchanged i.e. 15.01.2010. There was also no change with regard to the age limit. However, the applicants who were covered by the judgment of the Honble High Court of Delhi dated 28.08.2008 in Writ Petition (Civil) 7297/2007 titled as Sachin Gupta & Ors. Vs. DSSSB and connected matters, were made eligible to apply for the said posts subject to condition that they have completed their ETE diploma courses either in the year 2006 or 2007 or 2008 and have not been permitted by DSSSB to appear in examination under post code number 164-166/07 and 16/08 of advertisement number 07/07, 08/07 & 02/08. It was also stated that those candidates who have not applied earlier and wish to apply again may do so between 06.09.2011 and 17.10.2011. In other words, the crucial date for receipt of the applications alone was extended upto 17.10.2011.
9. Thereafter, the respondent DSSSB issued the Annexure A-1 impugned Notice dated 13.09.2011 to the candidates for the post of Assistant Teacher, GNCT of Delhi/Teacher Primary, MCD under post code No. 70/09 & 71/09 (Advt. No. 004/2009) stating that pursuant to the directions of this Tribunal in OA 121/2010 and OA 151/2010 dated 20.07.2010, the Recruitment Rules for the aforementioned posts have been modified by the user departments and, therefore, the necessary consequential amendments have been carried out in Advertisement No. 004/2009. They have also stated the provisions in the original Advertisement and the position after the amendment side by side and it is reproduced as under:
S.No. Description Previous Now Amended I Classification of Post Group C, Non Gazetted Group B, Non-Gazetted Ii Age limit (for post Code 70/09 &71/09 20-27 yrs. Relaxable for:SC/ST-05 yrs., OBC-03 yrs., PH-10 yrs., PH&SC/ST 15 yrs., PH&OBC 13 yrs., Departmental employees upto 42 yrs of age (Gen.), upto 47 yrs. from SC/ST, having 03 yrs. of continuous service in the same line or allied cadres. Relaxble up to 37 yrs. for (Gen.) and upto 42 yrs. for SC/ST-for widows, divorced women and women judicially separated from their husband and who are not remarried. Not exceeding 30 yrs.
Relaxable for: SC/ST-05 yrs., OBC-03 yrs., PH-10 yrs., PH&SC/ST-15 yrs, PH&OBC-13 yrs., Relaxable for Govt. Servants upto 05 yrs. in accordance with instructions or order issued by the Central Government.
iii Essential and Desirable Qualifications EQ (for post code 70/09 & 71/09):
1-Senior Secondary (10+2) or Intermediate or its equivalent with 50% marks from a recognized Board.
2- Two years diploma/certificate course in ETE/JBT or B.El.Ed. from the recognized institutions or its equivalent. 3- Must have passed Hindi as a subject at Secondary Level.
Desirable Qualification (for post code 70/09 & 71/09): Computer Knowledge. (a) EQ (for post code 70/09):
1-Senior Secondary (10+2) or Intermediate or its equivalent from a recognized Board/institution.
2- Two years diploma/certificate course in ETE/JBT or equivalent or B.El.Ed. from a recognized institution.
3-Must have passed Hindi as a subject at Secondary Level.
4-Must have passed English as a subject at Secondary or Sr. Secondary Level
(b) EQ (for post code 71/09): Point 1,2&3 as above.
Desirable Qualification (for post code 70/09 & 71/09): Nil iv No. of vacancies 1-Post Code 70/09 : 6500 (UR 2910, OBC 1584, SC-1066, ST-940) including OH-78, VH-122, EXSM-1182 2- Post Code 71/09 : 520 (UR-186, OBC-148, SC-36, ST-150) including PH (OH-OA/OL/OAL/BL)-09, PH (VH-B/LV)-28, EXSM-234.
1-Post Code 70/09 : 6500 (UR 2886, OBC 1610, SC-939, ST-1065) including OH-99 and VH-152. Not identified as suitable for HH category.
2- Post Code 71/09 : 520 (UR-186, OBC-148, SC-36, ST-150) including PH (OH-OA/OL/OAL/BL)-09, PH (VH-B/LV)-28. Not identified as suitable for HH (PD) Category.
It is also stated in the said Notice that due to the upgradation of the post from Group `C to Group `B category, the candidates (except SC/ST/PH) who have earlier submitted their application forms will have to deposit an additional fee of Rs.50/- in the form of crossed Indian Postal Order (IPO) in favour of the Secretary, DSSSB in order to be considered for the said post. Besides the above, the prospective eligible candidates, who fulfill the eligibility conditions as on 15.01.2010, can also apply against Advertisement No. 004/2009 for the said posts on the prescribed form accompanied with the prescribed fee. Further, it has been stated that the candidates who have already submitted their application form in response to Advertisement No. 004/2009 are not required to apply again except for depositing the additional fee of Rs.50/-. However, it has been reiterated in the said Notice that the eligibility of the candidates with regard to educational qualifications, age, experience, etc. shall be determined as on 15.01.2010 i.e. the closing date of receipt of application as invited vide Advertisement No. 004/2009.
10. However, the applicants in these O.As have applied for the posts in question within the extended date of 17.10.2011 in view of the aforesaid Corrigendum, the Addendum and the impugned Annexure A-1 notice dated 13.09.2011 making changes in the prescribed qualifications, age limit and number of vacancies. But the problem being faced by them is that as on the crucial date for determining the age and obtaining the requisite qualification having been remained the same as 15.01.2010, they could not fulfil the prescribed conditions on 17.10.2011. They have, therefore, mainly prayed in these O.As that the respondents shall be directed to extend the crucial date for fulfilling the age and educational qualifications also upto 17.10.2011 based on provision contained in Recruitment Regulations of 2011.
11. Leading the arguments on behalf of all the learned counsel for the applicants appearing in these O.As, Shri Raman Duggal has contended that since there were only 4500 vacancies when original Advertisement was notified on 11.11.2009/26.11.2009 and it has been increased to 6500 by the time the impugned notice dated 13.09.2011 was issued after a period of two years, the cut of date for determining the age and educational qualifications cannot remain the same as one indicated in the original Advertisement. Further, when one of the prescribed essential educational qualifications in the original advertisement was Senior Secondary (10+2) or Intermediate or its equivalent with 50% marks and by way of the corrigendum, the same was reduced from 50% marks to 45% marks, during this intervening period, many more candidates would have become eligible for applying for the post and insisting that the crucial date for determining the requisite educational qualification should remain as 15.01.2010 is irrational, illogical, arbitrary and illegal. Same was his argument regarding the cut of date for determining the age limit. He has also contended that by way of Addendum, when the vacancy position has also undergone change in a period of two years i.e. the original number of vacant posts have increased from 4500 to 6000, the cut of date for determining the age and educational qualification also should have undergone change. Further, according to said addendum also, the applicants covered by the judgment dated 28.08.2008 of the Honble High Court in Sachin Guptas case (supra) have been made eligible to the said post, subject to the condition that they would have completed their ETE diploma courses either in the year 2006 or 2007 or 2008 and have not been permitted by DSSSB to appear in examination under post code No. 164-166/07 and 16/08 of Advertisement No. 07/07, 08/07 & 02/08 and the DSSSB itself has allowed the candidates including them to submit their applications by 30.03.2010 if they have not already submitted but without changing the crucial date for determining the age and attaining the requisite qualifications. .
12. The other submission of Shri Duggal is that since the Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi, 2011 have been notified on 06.09.2011 in supersession of the earlier Recruitment Rules notified on 13.07.2007, the old recruitment rules have become totally infructuous. Moreover, it has been clearly mentioned in the new Recruitment Regulations itself that the crucial date for determining the age limit and educational qualifications shall be the closing date for receipt of applications from candidates and by the aforesaid addendum, the DSSSB itself has extended the closing date for submitting the application upto 17.10.2011. Therefore, the impugned notice dated 13.09.2011 issued by the DSSSB still insisting that the crucial date shall be the same as 15.01.2010 is not only arbitrary but also in violation of the notified Recruitment Regulations dated 06.09.2011. In other words, according to him, it is not permissible for a statutory or a Government agency to conduct any selection for appointment contrary to the terms of the notified Recruitment Regulations. Since the notified Recruitment Regulations dated 06.09.2011 are statutory in nature, it is not permissible by administrative instructions to alter or vary any term from it, especially the term pertaining to the cut off date contained therein. Elaborating the same point, the learned counsel has further argued that the respondents have failed to appreciate that the crucial date fixed as 15.01.2010 in the Advertisement No. 004/2009 was based on the Recruitment Regulations of 2007 and once the said Recruitment Rules have been superseded by the Recruitment Regulations of 2011, the date of 15.01.2010 has become obsolete, irrelevant, baseless and not applicable for prospective candidates. He has also submitted that the right of fair consideration as per the Recruitment Regulations is a fundamental right and by insisting that the crucial date for determining the age and obtaining the requisite qualification is the same as the one fixed in terms of an earlier Recruitment Rule amounts to arbitrarily depriving all those candidates who have acquired the educational qualification during academic sessions of 2010 and 2011 and thereby violated their fundamental rights.
13. He has also submitted that in terms of the Recruitment Regulations, 2011, all the applicants are fully eligible in all respects as on the closing date for receipt of applications in the impugned notice mentioned as 17.10.2011. However, with the crucial date of 15.01.2010 for determining the age limit and educational qualification still continuing, all of them have been rendered ineligible. He has also stated that this Tribunal in its Order dated 20.07.2010 passed in OA 121/2010 and OA 151/2010 (supra) has nowhere directed that for the new applicants, the crucial date shall remain as 15.01.2010.
14. Shri Duggal has also relied upon the following judgments in support of his arguments:
(1) State of Orissa & Ors. Vs. Titachur Paper Mills Co. Ltd. & Anr. (1985 (SUPP) SCC 280);
Calcutta Municipal Corporation Vs. Pawan Kumar Saraf and Anr. (1999 (2) SCC 400);
Bhupinderpal Singh & Ors. Vs. State of Punjab and Ors. (2000 (5) SCC 262);
N.T. Bevin Katti Etc. Vs. Karnataka Public Service Commission & Ors. (AIR 1990 SC 1233);
S. Prakash & Anr. Vs. K.M. Kurian & Ors. (1999 (5) SCC 624);
Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (JT 1998 (2) SC 114);
Sachin Gupta & Ors. Vs. DSSSB through its Chairman & Ors. (152 (2008) DLT 378 (DB).
15. In the case of State of Orissa & Ors. (supra), the Apex Court has considered the import and effect of supersession. According to it, once a notification has been issued in supersession of the previous notification, the effect of the earlier notifications is to be considered as wiped out. The relevant parts of the said judgment read as under:
Effect of `Supersession:
65. Yet another contention raised by the contesting Respondents with respect to the impugned provisions was that the two Notifications dated December 29, 1977, having been made in "Supersession" of all previous Notifications issued on the subject, the effect was to wipe out all tax liability which had accrued under the Notifications dated May 23, 1977. The High Court held that to hold that the liability was so wiped out would amount to giving a retrospective effect to the Notifications dated December 29, 1977, and as the Legislature had not conferred upon the State Government the power to issue notifications having retrospective effect, to so hold would be to render the said Notification void. The High Court referred to a number of decisions on the question of the power to make subordinate legislation having retrospective effect.
66. We find it unnecessary for the purpose of deciding this point to refer to any of the authorities cited by the High Court. Both the Notifications dated December 29, 1977, are in express terms made with effect from January 1, 1918. They do not at all purport to have any retrospective effect and, therefore, they could not affect the operation of the earlier Notifications dated May 23, 1977, until they came into force on January 1, 1978. Further, both section 3-B and section 5(1) in express terms confer power upon the State Government to issue notifications "from time to time". Section 3-B provides that "the State may, from time to time by notifications, declare... "goods liable to purchase tax. Prior to January 1, 1978, the proviso to sub-section (l) of section 5 provided that "The State Government may, from time to time by notification...fix a higher rate not exceeding thirteen per cent or any lower rate of tax.. " Section S (I) as amended with effect from January, 1978, provides that "The tax shall be levied...at such rate, not exceeding thirteen per cent...as the State Government may, from time to time by notification, specify." Thus, the Power of the State Government to issue notification under these two Sections is to be exercised by it "from time to time" and, therefore, the State Government can under section 5(1) issue a notification and repeal and replace it by another notification enhancing or lowering the rate of tax and similarly it can issue a notification under section 3-B declaring particular goods or class of goods to be liable to tax on the turnover of purchases and subsequently by another notification repeal that notification with the result that the particular goods or class of goods will from the date of such repeal be again liable to pay tax on the turnover of sales. In the Notifications dated December 29, 1977, the word "Supersession" is used in the same sense as the word "repeal" or rather the words "repeal and replacement". The Shorter Oxford English Dictionary, Third Edition, at page 2084, defines the word 'supersession' as meaning "The action of superseding or condition of being superseded." Some of the meanings given to the word 'supersede' on the same page in that Dictionary which are relevant for our purpose are "to put a stop to; to render superfluous or unnecessary; to make of no effect; to annul; to take the place of (something set aside or abandoned); to succeed to the place occupied by; to supply the place of a thing". Webster's Third New International Dictionary at page 2296 defines the word "supersession" as "the state of being superseded; removal and replacement". Thus, by using in the Notifications dated December 29, 1977, the expression 'in supersession of all previous notification' that was done was to repeal and replace the previous notifications by new notifications. By repealing and replacing the previous notifications by other notifications, the result was not to wipe out any liability accrued under the previous notifications. If this contention of the Respondents were to be accepted, the result would be startling. It would mean, for example, that when a notification has been issued under section 5 (1) prescribing a rate of tax, and that notification is later superseded by another notification further enhancing the rate of tax, all tax liability under the earlier notification is wiped out and no tax can be collected by the State Government in respect of any transactions effected during the period when the earlier notification was in force.
16. In the case of Calcutta Municipal Corporation (supra), the Apex Court has again considered the concept of supersession and held as under:
10. When the statute says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal". (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the Court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
17. In the case of Bhupinderpal Singh & Ors. (supra), the Apex Court has been considering the question of cut off date and held that in the relevant service rules, if a provision has been made with regard to the cut off date, it has to be followed and if no such cut off date was given, then the eligibility criteria shall be applied with reference to the last date fixed for receiving the applications by the competent authority. The relevant part of the said judgment reads as under:
3. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
18. In the case of N.T. Bevin Katti (supra), the Apex Court has reiterated the settled position that if the recruitment rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended rules. The relevant parts of the said judgment read as under:
11. There is yet another aspect. of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of 'Various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.
12. In S. N. Nagarajan v. State of Mysore, (1966) 3 SCR 682 : (AIR 1966 SC 1942) the dispute related to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing Notifications for appointment to the post -of Assistant Engineers in October 1953, May 1959 and April 1960. The Commission made selection, interviewed the candidates and sent the select list to the Government in October/ November 1960. But before the appointments could be made the Mysore Public Works, Engineering Department Services (Recruitment) Rules 1960 came into force which prescribed different provisions than those prescribed in the earlier Notifications in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the Government on the basis of the selection made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. On appeal before. this Court, validity of the appointments were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public service Commission could not be rendered invalid.
13. In Y. V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284: (AIR 1983 SC 852) similar question arose relating to recruitment by promotion. The question was whether promotion should be made in accordance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under (para 9 of AIR):
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of SubRegistrar Grade 11 will be according to the new rules on the zonal basis and not on the Statewise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
The same view was taken in P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740: (AIR 1988 SC 2068). Similar view was taken in A. A. Calton v. Director of Education, (1983) 3 SCC 33: (AIR 1983 SC 1143). It is a well accepted principle of construction that a statutory rules or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra v. State of Karnataka, (1989) 4 JT 459: (AIR 1990 SC 405).
14. In the instant case, para 11 of the Government order dated 9th July 1975 made the Government's intention clear that the revised directions which were contained in that Government order would not apply to the selections in respect of which advertise~ merit had already been issued, therefore, the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was not applicable to the selection for filling the 50 posts of Tehsildars pending before the Public Service Commission. We are, therefore, of the opinion that the select list including the additional list as prepared by the Commission and published in March 1976 was legaland valid and the State Government wrongly refused to approve the same. The State Government's Older dated 23rd April 1976 directing the Coommission to prepare fresh list in accordance with the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was illegal, consequently the select list prepared afresh by the Commission pursuant to the directions of the State Government is not sustainable in law. Since the additional list prepared by the Commission contained the names of the appellants, they were entitled to appointment to the posts of Tehsildars. We accordingly allow the appeals set aside the order of the High Court and direct the State", Government to appoint the appellants to the posts of Tehsildars, on the basis of additional list published by the Commission on 18th March, 1975.
19. In the case of S. Prakash and Anr. (supra) also, the Apex Court has held that if the recruitment rules underwent amendment prior to actual filling up of the advertised posts, the amended rules would apply. The relevant part of the said judgment is as under:
20. From the aforesaid G.O., it is clear that during the selection process, Government had accepted the advice of the Public Service Commission that the changes in the qualifications, method of appointment, age or other conditions of recruitment introduced after the issue of notification for selection to the post by the Public Service Commission will be given effect to in future selections only with an exception as mentioned therein. As stated earlier, in the present case selection process was not over till the list of selected candidates was published by the Public Service Commission on 13th May, 1995 and the impugned Note (3) does not change qualifications, method of appointment, age or other conditions of recruitment. It only fills up the lacuna or clarifies the ambiguity prevailing for computation of ratio or percentage for appointment by direct recruitment and by transfer. Because of the aforesaid factual position, in our view, it is not necessary to discuss judgments cited by the learned counsel for the respondents. However, we would refer to one decision rendered by this Court in Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202 : (AIR 1998 SC 2251 : 1998 AIR SCW 2146) wherein after considering the decision in the P. Ganeshwar Rao v. State of Andhra Pradesh (1998) Supp SCC 740, this Court held that "if the recruitment rules underwent amendment prior to actual filling up of the advertised posts, the amended rules would apply." The Court also referred to a three-Judge Bench judgment of this Court in Jai Singh Dalal v. State of Haryana, 1993 Supp (2) SCC 600 : (1993 AIR SCW 632) wherein it has been held that when the special process of recruitment had not been finalised and culminated into select list, the candidate did not have any right to appointment and that recruitment process could be stopped by the Government at any time before a candidate has been appointed and as the candidate has no vested right to get the process completed except that the Government could be required to justify its action on the touchstone of Art. 14.
20. The other contention of Shri Duggal is that the candidates who have already applied in terms of the original advertisement are not affected in any way by allowing the applicants also to participate in the selection process. In this regard, he has relied upon the judgment of the Apex Court in the case of Rajasthan Public Service Commission (supra). The relevant parts of the said judgment read as under:
18. In the case of State of M.P. v. Raghuveer Singh Yadav (1994) 6 SCC 151 a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended rules had only prospective operation. The Government was entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J & K Public Service Commission v. Dr. Narinder Mohan (1994) 2 SCC 630 : (1994 AIR SCW 1701) another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency in this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus it has to be recalled that in fairness learned senior counsel Shri Ganpule for the respondent writ petitioner stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5th November, 1993 Annexure P1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otios on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent writ petitioner.Point No. 3
19. As a result of our finding on Point No. 2 as a logical corollary and also in the light of our discussion on Point No. 1 it has to be held that no fault could be found with the Rajasthan Public Service Commission in issuing fresh advertisement dated 8th January, 1996 for recruiting eligible candidates from open market for filling up 26 posts in the newly created cadre of Marketing Officers under the Rules as amended in 1995. Point No. 3 is, therefore, answered in the negative against the respondent writ petitioner and in favour of the appellants.Point No. 4
20. As a result of our aforesaid findings on the first three points it must be held that the writ petition filed by the respondent writ petitioner was rightly rejected by the learned single Judge and was erroneously allowed by the Division Bench of the High Court by the impugned judgment.
20. In the result these appeals are allowed. The judgment and order of the Division Bench are set aside and instead the decision rendered by the learned single Judge dismissing the writ petition of respondent writ petitioner is confirmed. In the facts and circumstances of the case there will be no order as to costs.
21. Lastly, he has relied upon the judgment of the Honble High Court of Delhi in the case of Sachin Gupta & Ors. (supra) by which the High Court has upheld the Recruitment Rules of 2007. The relevant part of the said judgment has already been extracted elsewhere in this Order.
22. Shri V.S.R. Krishna, the learned counsel for the applicants in O.A. 4363/2011 by way of supplementing to the arguments of Shri Duggal pointed out that in the original Advertisement No. 70/2009, the respondents have advertised 4500 vacancies after having assessed them as per the availability at that time. Thereafter, as admitted by the respondents themselves when the availability of vacancies has undergone substantially change due to occurrence of additional 2000 vacancies during the years 2010 and 2011 and raising the total number to 6500, all the candidates who became eligible for consideration for the new vacancies also should have been given an opportunity for being considered against the new vacancies so arisen during the interregnum between 15.01.2010 and 13.09.2011. He has, therefore, submitted that the cut off date cannot be the same as the one prescribed for the earlier 4500 vacancies advertised originally. He has also challenged the impugned Notice dated 13.09.2011 by which, on one hand fresh applications have been invited for the posts of Assistant Teacher (Primary) in GNCT, Delhi and Teacher (Primary) in MCD upto 17.10.2011 but on the other hand, illegally and with mala fide intention trying to deprive them from consideration as they were prevented from submitting the applications by restricting the cut of date for determining the age and educational qualifications as 15.01.2010. According to him, since the earlier Advertisement No. 70/09 for the post of Teacher (Primary) in MCD has indicated the total number of vacancies to be filled up as 4500 assessed upto 2009 and the later Advertisement dated 13.09.2011 indicated additional 2000 more vacancies belonging to the years 2010 and 2011, they are two different advertisements and they have to be dealt with, independently. He has, therefore, argued that since new vacancies pertaining to subsequent years have been added to the old vacancies, all the candidates who become eligible for consideration for the new vacancies so arisen should also be given an opportunity of being considered. He has also argued that the continued prescription of the date for determining the eligibility as 15.01.2010 is totally arbitrary and discriminatory. He has, therefore, sought a direction to quash the impugned notice dated 13.09.2011 to the extent that it prescribed the eligibility criteria with regard to the educational qualifications, age, etc. still remains as 15.01.2010 i.e. the closing date of the earlier advertisement. He has further sought a direction to the respondents to fix the closing date of receipt of the applications as 17.10.2011 or any other subsequent dates taking into account the additional vacancies now advertised by the respondents belong to the subsequent years of 2010 and 2011.
23. The learned counsel appearing on behalf of the applicants in other O.As have adopted the aforesaid arguments put forward by Shri Raman Duggal and supplemented by Shri V.S.R. Krishna. They have also submitted that since this Tribunal has already granted interim relief in favour of the applicants, the respondents have accepted their candidature provisionally and they are also waiting for their results.
24. On behalf of the respondent - Govt. of NCT of Delhi, Smt. Sumedha Sharma, has invited our attention to the order of this Tribunal in O.A 121/2010 and connected case (supra). She has submitted that it was with the acceptance of the recommendations of the 6th CPC, the post of teacher with Grade Pay of Rs.4200/- in the pay band of Rs.9300-34800 in PB-II has been re-designated as Group `B and the DOP&T issuing its O.M dated 24.03.2009 directed the Ministries/Departments to carry out necessary amendments in the Recruitment Rules and accordingly the Recruitment Rules, 2011 have been notified on 06.09.2011. She has also denied the contentions of the applicants that the additional vacancies notified are to be treated separately and the cut of date for determining the age and educational qualifications have to be extended accordingly. According to her, even though under the 2011 Rules, the maximum age limit has been enhanced from 27 to 30 years and the condition of securing 50% marks from a recognized Board in Senior Secondary (10+2) or Intermediate or its equivalent has also been reduced to 45%, the posts are actually related to Advertisement No. 004/2009, and, therefore, the cut off date shall remain the same as 15.01.2010. Further, the candidates who had obtained 50% marks in the qualifying examination and were not able to apply as per the earlier advertisement could now apply due to the modification in the closing date for receipt of the applications. Therefore, through its notice dated 13.09.2011, the DSSSB has invited applications from all the eligible candidates who fulfilled the eligibility conditions as on 15.01.2010 prescribed in Advertisement No. 004/2009. She has further submitted that at no stage, the Advertisement No. 004/2009 has been withdrawn by the DSSSB. In fact, it had issued the Notice dated 13.01.2011 in pursuance of the directions of this Tribunal dated 20.07.2010 in O.A 121/2010 and O.A 151/2010 (supra) and had invited applications from only those candidates who could not submit their applications and who may have been deprived of an opportunity to apply earlier on or before the cut off date of 15.01.2010. In other words, since the Notice dated 13.09.2011 relates to the original Advertisement No. 004/2009, the cut off date for determining the eligibility of the candidates with regard to educational qualification, age, etc. shall remain the same i.e. 15.01.2010 and, therefore, there is no question of any arbitrariness or illegality in the matter.
25. The learned counsel for the DSSSB, Mrs. Alka Sharma has relied upon the judgment of the Apex Court in Krishena Kumar Vs. Union of India & Ors. with connected cases (1990 (4) SCC 207) wherein it was held that for the P.F. Scheme and the Pension Scheme formulated for the Railway Service, ample opportunity was given to the P.F holders to exercise option for changing over to Pension Scheme but those who have failed to exercise their option and they were not considered eligible to be included in the Pension Scheme. According to her, the following parts of the aforesaid judgment are relevant:
25. The Court then proceeded to examine whether there was any rationale behind the eligibility qualification and finding no rationale concluded [Para 42]:
"Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory."
26. The Court accordingly concluded that the division was thus arbitrary and unprincipled and therefore the classification did not stand the test of Art. 14. It was also arbitrary as the Court did not find a single acceptable or persuasive reason for this division and this arbitrary action violated the guarantee of Art. 14. The Court observed that the pension scheme including the liberalised scheme to the Government employees was non-contributory in character. The payment of pension was a statutory liability undertaken by the Government and whatever became due and payable was budgeted for. The Court specifically observed AIR 1983 SC 130, para 451:
"One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget."
The Court further observed [para 58]:
"If from the impugned memoranda the event of being in service and retiring subsequent to specified date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date. It does therefore appear. that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable."
26. Smt. Alka Sharma has also relied upon the judgment of the Delhi High Court in LPA 562/2011 DSSSB & Anr. Vs. Ram Kumar Gijroya & Ors. and connected cases, decided on 24.01.2010 wherein it has been held as under:
17. On the contrary, the advertisement in the appeal as well as the writ petition clearly provided that the certificates of belonging to OBC category had to be filed along with the application by the cut off date. We, therefore, are of the opinion that what was held in Tej Pal Singh qua the status as SC/ST and in the context of language of the advertisement in that case would not apply to the present cases concerning OBCs and in view of the unambiguous language of the advertisements inviting applications in the present cases. Inspite of judgment of Coordinate Bench in Anu Devi supra, need is not felt to refer the matter to a larger Bench because the judgment in Anu Devi turned on, firstly the appointing authority in that case, notwithstanding the cut off date, having issued notices demanding the certificates thereby extending the cut off date and secondly on this Court exercising the discretion under Article 226 in refusing to interfere with the decision of the Tribunal in that case. We are however consciously distinguishing Tej Pal Singh (supra). We may also notice that our Brother who has authored the judgment in Anu Devi had earlier, sitting singly in judgment dated 13.08.2009 in W.P.(C) No.10257/2009 titled Abhishek Saini Vs. University of Delhi held that the action of the University in not permitting the petitioner in that case to participate in the selection process on account of non-production of OBC certificate by the date stipulated in the Bulletin of Information and which was mandatory cannot be faulted with. Mention may also be made of Hari Singh Vs. Staff Selection Commission 170 (2010) DLT 262 where another Division Bench notwithstanding the OBC certificate having not been filed by the stipulated date and following Tej Pal held a case for making provisional admission to have been made out but again in the peculiar facts of that case and accepting the explanation for non-submission thereof.
27. The learned counsel for the respondent MCD Shri Ravi Kant Jain has no dispute regarding the facts. However, relying upon the judgment of the Apex Court in JasbirRani & Ors. Vs. State of Punjab & Anr. (2002 (1) SCC 124), he justified the retention of the cut off date in the original advertisement. The part of the said judgment relied upon by him reads as under:
11. No doubt, the Rule does not provide a cut-off date by which an applicant is to satisfy the prescribed eligibility qualification pertaining to age. In the absence of a statutory provision in that regard the date has to be fixed at the time of issuing the advertisement. This is necessary not merely to enable the appointing authority to sort out the applications of the eligible candidates from those candidates who do not fulfil the prescribed qualification, but also to avoid criticism of a favoritism and nepotism against the authority. In the first advertisement issued in the case on 18/09/1997, the cut-off date was fixed as 1/09/1997 i.e. about two weeks prior to the advertisement. In the second advertisement which was issued one year after the first one ordinarily the appointing authority could have similarly fixed a date a few days prior to the date of issue of the advertisement: but as noted earlier, in the first advertisement the applications were invited from male candidates only; perhaps realising that there was no reasonable basis for confining the recruitment to male candidates only it was decided to throw open the recruitment to eligible female candidates also and in pursuance of the said decision the second advertisement was issued on 19/09/1998. In such circumstances the appointing authority while issuing the second advertisement fixed the same cut-off date as in the first. If this had not been done then there would have been a difference in date by which the eligibility qualification pertaining to age was to be complied by male and female candidates. Such action would have exposed the authorities to criticism or discrimination. In the circumstances no exception can be taken to the action of the authority fixing the same cut-off date in both the advertisements.
12. Coming to the contention raised by Shri R.K. Jain that prescribing a cut-off date prior to the date of appointment for the purpose of satisfying the eligibility qualifications pertaining to age is impermissible under the Rule, we are not inclined to accept the contention. Rule 5, as we read it, merely prescribes the eligibility qualification (minimum and maximum) pertaining to age for appointment to the post of Panchayat Secretary. The rule neither prescribes a cut-off date nor bars fixing of such a date by the authority competent for making the appointment. In the absence of any such provision it cannot be held that Rule 5 even by implication prohibits fixing a cut-off date regarding the age.
13. This Court in the case of Bhupinderpal Singh & Ors. v. State of Punjab & Ors., 2000 (5) SCC 262 disapproving of the practice prevalent in the State of Punjab to determine the eligibility with reference to the date of interview, made the following observations:
"Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18, A. P. Public Service Commission v. B. Sarat Chandra, (1990) 2 SCC 669. Vizianagaram Social Welfare Residential School Society v. M.Tripura Sundari Devi (1990) 3 SCC 655, Rekha Chaturvedi v. Univesity of Rajasthan 1993 Supp (3) SCC 168. M.V. Nair (Dr. P. v. Union of India (1993) 2 SCC 429, and U.P. Public Service Commission U.P.Allahabad v. Alpana (1994) 2 SCC 723. the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut-off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellant- petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinised and subjected to confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from the decided cases of this Court and stated hereinabove which have now to be treated as the settled service Jurisprudence." (Emphasis supplied)
14. The position that emerges from the discussions in the foregoing paragraphs is that the State Government cannot be faulted for fixing a cut-off date in the first advertisement and in the circumstances of the case in adopting the same cut-off date in the second advertisement. Therefore, there is no merit in these appeals which are accordingly dismissed. There will, however, be no order for cost. Writ Petition (C) No. 521 of 2000.
28. We have heard the learned counsel for the parties. We have given our anxious consideration to all the arguments put forward by them. The controversy in this case revolves around the question of changes which have taken place regarding the eligibility conditions and the number of vacancies during the period from the initial date of issuing the advertisement on 11.12.2009/26.12.2009 with cut of date for receipt of the applications and for determination of the essential qualifications and age as 15.01.2010 and the impugned notice dated 13.10.2011 amending the aforesaid original advertisement increasing the age limit and number of vacancies, reducing the level of essential qualifications and extending the date for receipt of the applications upto 17.10.2011 but still retaining the original cut of date for determining the age and educational qualifications. In all these original applications, the main relief sought by the applicants is that the respondents should be directed to reckon the aforesaid extended date for receipt of the applications as the cut of date for determining their eligibility with regard to educational qualifications, age, etc. also.
29. Generally, the cut off date for determining the eligibility of the candidates in a selection process is the closing date for receipt of the applications when it has been stated so in the advertisement itself. But for the subsequent developments including order of this Tribunal in O.A 121/2010 and O.A.151/2010 dated 20.07.2010, no one need to have any grievance regarding the cut of date for determining the age and educational qualifications as 15.01.2010 prescribed by the DSSSB in their advertisement No. 004/09 issued on 11-16.12.2009 as the same was based on the recruitment rules governing the post notified in the year 2007 and the DSSSB, as usual, would have completed the selection process in time. In the said advertisement, the basic educational qualifications prescribed for the posts of Teacher (Primary) in MCD and Assistant Teacher (Primary) in the Govt. of NCT of Delhi being Group `C posts were Senior Secondary (10+2) or Intermediate or its equivalent with 50% marks and the age limit was 20-27 years. While issuing the aforesaid advertisement, the Respondent - DSSSB has specified that the Educational qualification, age, experience and other conditions of eligibility as stipulated therein shall be determined as on the closing date of receipt of applications i.e. 15.01.2010. However, with the acceptance of the recommendations of the Sixth Pay Commission, the classification of the aforesaid posts underwent change and they became Group `B posts from the existing Group `C with consequential change in the age limit for which amendment in the Recruitment Rules has become necessary. The DOP&T has also issued O.M dated 24.03.2009 directing the Ministries/Department to carry out necessary amendments in the relevant recruitment rules. When this Tribunal vide its order dated 20.07.2010 in O.A 121/2010 with O.A.151/2010 (supra) held that non-amendment of the Recruitment Rules by the respondents, despite change in the pay scale and classification of the post, to which the applicants have applied, they have been deprived of an opportunity and valid consideration for appointment, the DSSSB has realized the immediate necessity to amend the existing Recruitment Rules for the aforesaid post before proceeding further with the selection process in terms of the Advertisement No. 004/2009. Therefore, the respondent Govt. of NCT of Delhi and the Municipal Corporation of Delhi. took necessary steps and notified the Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi on 06.09.2011 in supersession of the earlier Recruitment Regulations issued on 13.07.2007. Similar recruitment rules have also been notified for the post of Assistant Teacher (Primary) in the Govt. of NCT of Delhi. By the said Recruitment Regulations, the post of Teacher (Primary)/Assistant Teacher (Primary) has been upgraded to Category `B from Category `C and upper age limit has been enhanced to 30 years, the essential qualification has been relaxed as merely Senior Secondary (10+2) or Intermediate or its equivalent from a recognized Board/Institution and the crucial date for determining age limit has specifically been prescribed as the closing date for receipt of applications. In other words, the selection of the candidates applied in terms of the advertisement No. 004/2009 issued on 11-16.12.2009 has to be held in accordance with the Recruitment Rules, 2011 particularly when the same have been issued in supersession of the Recruitment Rules, 2011. It should also be kept in mind that with the acceptance of the report of the 6th Pay Commission, the Recruitment Rules, 2007 itself became redundant and infructuous and, therefore, the Advertisement No. 004/2009 issued on 11-16.12.2009 could not have been sustained as such. This is particularly so when the DOP&T had issued instructions on 24.03.2009, that is well before issuing the Advertisement No. 004/2009 on 11-16.12.2009. In other words, when the post of Assistant Teacher (Primary) has already become a Group `B post and accordingly the age limit had to be extended upto 30 years for its selection and the unamended Rules would not apply any more. This was precisely what this Tribunal has observed in its order in O.A 121/2010 with O.A 151/2010 (supra) that due to the non-amendment of Recruitment Rules, the respondents have deprived the candidates an opportunity and valid consideration for appointment. Moreover, during the aforesaid period between issuance of the advertisement on 11-26.12.2009 and Notification of the Recruitment Regulations, 2011 on 06.09.2011, i.e. nearly two years, the selection process which was underway was kept pending. Another important development during the said period of two years is that 2000 more vacancies of Teacher (Primary) have occurred in MCD for which no separate selection process was initiated. Admittedly, those vacancies could not have been covered by the advertisement No. 004/2009 issued on 11-16.12.2009. Similarly, in the Directorate of Education, Govt. of NCT of Delhi also more vacancies have occurred in the post of Assistant Teacher (Primary) during the aforesaid period. In the above facts and circumstances of the case, the Respondent DSSSB decided to club those newly occurred vacancies also with the existing vacancies by way of an Addendum to Advertisement No. 004/2009. They have also issued the Corrigendum to the said Advertisement notifying the change in the essential qualification prescribing 45% marks instead of the earlier 50% marks in Senior Secondary (10+2) or Intermediate or its equivalent examination. However, they have insisted that the crucial date for determining the age and attaining the requisite qualification shall remain unchanged i.e. 15.01.2010. Again, in the Notice to the candidates for the post of Assistant Teacher, GNCT of Delhi/Teacher Primary, MCD, under post code no. 70/09 & 71/09 issued on 13.09.2011 against Advertisement No. 04/2009, even though the dates for receipt of the application from the newly eligible candidates for the aforesaid posts have been prescribed as 06.09.2011 to 17.10.2011, the condition that their eligibility with regard to their educational qualifications, age etc. continued to be same as 15.01.2010 i.e. the closing date of receipt of applications as invited vide Advertisement No. 004/2009.
30. In our considered view, the impugned notice dated 13.09.2011 while granting time upto 17.10.2011 for the newly eligible candidates like the applicants in thsse O.As but restricting their eligibility with regard to educational qualifications, age, etc. as 15.01.2010 i.e. the closing date for receipt of applications as invited vide advertisement No. 004/2009 is absolutely illegal, irrational, arbitrary and against the principles of law laid down by the Apex Court in Bhupinder Singh & Ors. Vs. State of Punjab and Ors. (2000 (2) SLR 608) wherein the Apex Court has upheld well settled law followed by the Punjab and Haryana High Court that only when cut off date for determining the eligibility requirement is not provided in the relevant service rules, such date can be appointed in the advertisement. The relevant part of the said judgment is as under:
13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
Again, the very same issue was considered by the Apex Court in Shankar Mandal & Ors. Vs. State of Bihar & Ors. (2003 (9) SCC 519) wherein it was held as under:
What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and others v. Chander Shekhar and another (1997 (4) SCC 18; Bhupinderpal Singh v. State of Punjab, 2000 (5) SCC 262 and Jasbir Rani and others v. State of Punjab and another (2002 (1) SCC 124) are as follows :
(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules;
(2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed ten the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
31. As rightly argued by Shri Duggal when the Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi, 2011 have been notified on 06.09.2011 in supersession of the earlier Recruitment Rules notified on 13.07.2007, the old Recruitment Rules have become redundant. Therefore, the impugned notice to the candidates dated 13.09.2011 could have been issued only in total conformity with the new Recruitment rules. Consequently, when it has been stipulated in the said rules that the crucial date for determining the eligibility criteria shall be the closing date for receipt of the applications, the respondent DSSSB has no discretion to fix any other date particularly the date fixed in the earlier advertisement No. 004/2009 issued on 11-26.12.2009 which is no more in existence.
32. There is also no dispute that the Recruitment Regulations for the post of Teacher (Primary), Municipal Corporation of Delhi, 2011 is not retrospective in nature. For the very reasons for which it has been notified also, the said rules cannot be applied retrospectively. As held by the Apex Court in N.T. Bevin Kattis case (supra) which has also been relied upon by Shri Duggal, if the amended rules are not retrospective in nature, the selection must be in accordance with the Rules in force. Admittedly, the rules in force as on the date of the impugned notice dated 13.09.2011 are the Recruitment Regulations of 2011. It is worthwhile to extract below the following part of the aforesaid judgment of the Apex Court:
The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.
33. In the above facts and circumstances of the case, we allow these O.As. Resultantly, we declare that the impugned notice dated 13.09.2011 fixing 15.01.2010 for determination of the eligibility of the candidates with regard to their educational qualifications, age, etc. is arbitrary, illegal and unconstitutional and accordingly the same is quashed and set aside to that extent. Further, the respondents shall treat the closing date for receipt of applications of the applicants in terms of the impugned notice dated 13.09.2011 i.e. 17.10.2011 based on the Recruitment Regulations, 2011 as crucial date for determining the eligibility of the applicants with regard to their educational qualifications, age, etc. as well. The interim direction passed in these cases directing the respondents to accept the applications of the applicants provisionally and subject to their fulfilling all other eligibility conditions is made absolute. The respondents are also directed to proceed with selection process to the post of Teacher Primary (Post Code No. 70/09) and Assistant Teacher (Primary) in the MCD and the Directorate of Education respectively in terms of the aforesaid directions and finalize it at the earliest. No costs.
(Dr. A.K. Mishra) ( G. George Paracken )
Member (A) Member (J)
SRD