Central Administrative Tribunal - Delhi
Manoj Kumar Gautam vs Govt. Of Nctd on 27 November, 2017
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.265/2017
M.A.No.279/2017
Order Reserved on: 15.11.2017
Order pronounced on 27.11.2017
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
Manoj Kumar Gautam
S/o Sh. Vijay Kumar
R/o V-737, Street No.9
Vijay Park, New Delhi. ... Applicant
(By Advocate: Ms. Krishma Singh for Shri Umesh Singh)
Versus
i. Chief Secretary
Govt. of NCT of Delhi
Delhi Secretariat, I.P.Estate
New Delhi.
ii. Director
Directorate of Education
Old Secretariat
Delhi - 110 054.
iii. Dy. Director of Education
Distt. North East., B-Block
Yamuna Vihar
Govt. of N.C.T. of Delhi. ... Respondents
(By Advocate: Ms. Sangita Rai)
O.A.No.265/2017
2
ORDER
By V. Ajay Kumar, Member (J):
The applicant, a Trained Graduate Teacher(Maths) [in short, TGT (Maths)], filed the OA seeking the following relief(s):
a) "To direct the Respondent to give all the consequential benefits as per the order of Hon'ble High Court in WP 1313/2002 and L.P.A.No.926/2002 dt. 13.05.2005.
b) To direct the Respondent to include the petitioner with old pension scheme (GPF Number be allotted) and in the same panel of the other candidates appointed in the 2002 batch when the applicant was originally appointed in terms of the order passed by Hon'ble Delhi High Court.
c) To direct the respondent to grant the MACP to applicant in 2013 instead of 2016 as proposed by the department.
d) Award cost for present litigation.
e) Any other order or relief which the Hon'ble Court deems fit and proper may also be passed in favour of the petitioners."
2. The applicant belongs to Scheduled Caste Category. In pursuance of an Advertisement issued by the Delhi Subordinate Services Selection Board (in short, DSSSB), for selection to the post of TGT Maths, in various departments of the Government of NCTD, among other posts, the applicant applied and participated in the selection process. Though the applicant was successful in the selection process under SC Category for the post of TGT (Maths), the respondents have not appointed the applicant on the ground that the applicant does not belongs to Delhi and she was migrated to Delhi from another State. The respondents withhold appointments of various other SC and OBC category candidates along with the applicant on similar grounds, though they have appointed other general category candidates in the year 2002, selected in the same selection process. O.A.No.265/2017 3 Aggrieved by the same, the applicant preferred CWP No.1313/2002. The said CWP was disposed of along with CWP No.5061/2001 in Kunwar Pal & Others v. Govt. of NCTD & batch, on 31.05.2002 by the Hon'ble High Court of Delhi, and the relevant paragraphs of the said Judgement read as under:
"The contentious issue of benefit of reservation to persons who are born and brought up in Delhi but who are progenies of persons who had migrated to Delhi from various parts of the country has given rise to this batch of writ petitions.
Is such a person a resident of Delhi and can he get the benefit of reservation in the State services and more particularly as a Teacher? Is it permissible to deny the benefit to the persons when they have cleared their examinations and were on the anvil of being appointed on the basis of a condition inserted in the letter asking for documents when there was no such condition in the advertisement? These are some of the questions to be answered in these writ petitions.
xx xxx x x x x x In view of the aforesaid a writ of mandamus is issued to appoint such of the petitioners in the present writ petitions who are born and brought up in Delhi, the caste is notified as a reserved caste in Delhi but the certificate issued to them is on the basis of the certificate issued to their fathers who were the migrants from other States.
The petitioners who are so appointed should also be entitled to the consequential benefits of seniority and pay scale though in view of the fact that they have not been working for this period of time they shall not be entitled to the backwages for the said period. The needful be done within a period of two months from today.
The writ petitions are disposed of in the aforesaid terms leaving the parties to bear their own costs."
3. The DSSSB filed LPA No.625/2002 and batch against the batch Judgment in Kunwar Pal & Others (supra) and the said LPAs were finally dismissed on 13.05.2005. In pursuance of the said orders, the respondents declared the results of the applicant and other similarly placed SC category candidates and accordingly appointed the applicant O.A.No.265/2017 4 as TGT (Maths), vide Annexure A6 appointment order dated 27.02.2006, however, with prospective affect.
4. Though the applicant is entitled for appointment, seniority and all other consequential benefits, except back-wages, as per his merit position, with effect from the date of appointment of general category candidates, who were selected and appointed in the same selection process, but when the respondents have not granted the seniority and fixation of pay and other consequential benefits accordingly, the applicant made number of representations to the respondents. Since the same are unanswered, the applicant filed the present OA.
5. The applicant also filed MA 279/2017 along with the OA seeking condonation of delay of 934 days in filing the OA. 6 Heard the learned counsel appearing on both sides and have gone through the pleadings on record.
7. When this matter is taken up for hearing, the learned counsel for the applicant submitted that number of persons belonging to SC/ST categories and who were selected in the same selection process but whose appointments were deferred in the similar circumstances and identically placed like the applicant, but not approached any Court also were appointed along with the applicant during the year 2006. When such persons approached this Tribunal, seeking appointment with effect from the date of appointment of General Category candidates, O.A.No.265/2017 5 as per their merit position, and for seniority and all other consequential benefits, this Tribunal condoned the identical delay in such OAs, and allowed the said OAs, by following the Judgement in Kunwar Pal (supra), wherein the applicant was also one of the party. Accordingly, the learned counsel submits that when this Tribunal condoned the delay and allowed the OAs by following the Judgement of the applicant, the delay occurred in the applicant's case is also deserves to be condoned and the OA is liable to be allowed.
8. Per contra, the learned counsel for the respondents submits that the delay in each case is separate and has to be condoned or dismissed basing on the individual facts and reasons and since the applicant failed to show any valid reason, the delay in the instant OA cannot be condoned.
9. The Hon'ble Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, after discussing the entire case law on the issue of condoning of delay in filing the petitions, observed as under:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
(i). There should be a liberal, pragmatic, justice-
oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii). The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
(iii). Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
O.A.No.265/20176
(iv). No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v). Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi). It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii). The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(vii). There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix). The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x). If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi). It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii). The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii). The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
10. The Hon'ble High Court of Delhi while disposing of the applicant's Writ Petition itself (which is part of Kunwar Pal (supra) batch), categorically held that the applicants are entitled to consequential benefits of seniority and pay scale, however, without backwages. The O.A.No.265/2017 7 respondents instead of implementing the said Judgement fully while issuing appointment order to the applicant, having not followed the same by granting him seniority and other benefits, now cannot oppose the said settled claim of the applicant on the ground of delay.
11. In the circumstances the delay is condoned and accordingly, the MA 279/2017 is allowed.
12. For the reasons mentioned above, the OA is allowed. The respondents are directed to grant notional seniority, fixation of pay if not already given, to the applicant as per his position in the merit list prepared by the DSSSB in the relevant year. Consequently, he will be entitled for notional increments and other benefits like GPF, Pension, etc. as admissible to his batch mates, belonging to the Unreserved/General Category. However, he is not entitled for any arrears of pay. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. No costs.
(Nita Chowdhury) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/