Central Administrative Tribunal - Delhi
Mr. Anjum vs Delhi Subordinate Services on 12 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2010/2012 & OA 2274/2012 New Delhi this the 12th day of December, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) O.A. 2010/2012 1. Mr. Anjum D/o Mohammed Salim, R/o M-93, Gali No.1, Subhash Mohalla, Maujpur, Delhi-110053. 2. Sh. Mehboob Alam, S/o Sh. Shamim Akhtar, R/o 4388, Gali No. 22, Shanti Mohalla (East), Old Seelampur, Delhi-110031. 3. Mohd. Nadeem, S/o Sh. Abdul Ghaffar, R/o 886, Street No. 30/5, Jafrabad, Delhi-110053. 4. Ms. Shagufta Ameer, D/o Sh. Ameer Ahmed, R/o H. No. C-309, Street No.7, Near Reliance Fresh, Chauhan Bangar, Delhi-110053. 5. Ms. Warda Afridi, D/o Aijaz Ahmed Khan, R/o A-4 Building, Flat No.6, Second Floor, Okhla Vihar, New Delhi-110025. 6. Ms. Garima Sharma, D/o Sh. P.D. Sharma, R/o H. No. 595, Sector-13, Vashundhra, Ghaziabad. Applicants. (By Advocate M. Rais Farooqui) Versus 1. Delhi Subordinate Services Selection Board (DSSSB), Through its Chairman, FC-18, Institutional Area, Karkardooma, Delhi. 2. Govt. of NCT Through its Secretary, New Secretariat, I.P. Estate, New Delhi. 3. Municipal Corporation of Delhi, Through its Commissioner, Town Hall Chandni Chowk, Delhi-110006. Respondents. (By Advocate Shri Amit Anand) O.A. 2274/2012 1. Sh. Gagan Malik, S/o Sh. Ramesh Kumar, R/o B-34-A, Paryavaran Complex, New Delhi-110030. 2. Sh. Nagender Sharma, S/o Sh. Hari Kishan Sharma, R/o Village Lohadda, Post Khanpur, Distt. Meerut, U.P. 3. Sh. Parvesh Kumar, S/o Sh. Narender Singh, R/o B-36, Street No. 1, Bhajanpura, Delhi. 4. Ms. Meenakshi Malik, D/o Sh. Inder Pal Malik, R/o O-23, New Police Lines, Kingsway Camp, Delhi-110009. 5. Ms. Nandita Vats, D/o Sh. Surender Singh, R/o RZ-E/35, E-Block, Gali No. 6, Prem Nagar, Najafgarh, New Delhi-110043. 6. Sh. Shambhoo Kumar, S/o Sh. Bhure Lal Mahto, R/o H. No. 1/3403-A (back side), Ram Nagar Extension, Shahdara, Delhi. 7. Sh. Noor Hasan, S/o Sh. Kaley Khan, R/o B-54/3, Chand Bagh, Delhi-110094. 8. Sh. Rashid Ahmed, S/o Sh. Naseer Ahmed, R/o B-86/5, Chand Bagh, Delhi-110094. Applicants. (By Advocate M. Rais Farooqui) Versus 1. Delhi Subordinate Services Selection Board (DSSSB), Through its Chairman, FC-18, Institutional Area, Karkardooma, Delhi. 2. Govt. of NCT of Delhi Through its Chief Secretary, New Secretariat, I.P. Estate, New Delhi. 3. Municipal Corporation of Delhi, Through its Commissioner, Town Hall Chandni Chowk, Delhi-110006. Respondents. (By Advocate Shri Amit Anand) O R D E R (ORAL)
Shri G. George Paracken:
Both these O.As are identical in nature and, therefore, they are being disposed of by this common order.
2. The applicants are candidates for the post of Assistant Teacher, Govt. of NCT of Delhi (`GNCTD for short) having Post Code No. 70/09 and that of Teacher (Primary), Municipal Corporation of Delhi (`MCD for short) having Post Code No. 71/09 advertised by the respondent Delhi Subordinate Services Selection Board (`DSSSB for short) vide Advertisement No. 004/09 in the month of December, 2009. They are similarly placed as the applicants in O.A 3663/2011 Preeti Balayan Vs. GNCT of Delhi & Ors. and connected cases, decided by a co-ordinate Bench of this Tribunal, on 30.03.2012. The relevant part of the said order reads as under:
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 these 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.
2. In terms of the aforesaid directions, the respondent-DSSSB has permitted the applicants also to participate in the competitive examination for the selection of Assistant Teacher, GNCTD as well as Teacher (Primary), MCD. In view of the above position, if the DSSSB has not already done, we direct them to consider the cases of the applicants also for sponsoring them for their appointment as Assistant Teacher/ Teacher (Primary), as the case may be, as in the case of other similarly placed persons, if they have been found qualified in the competitive examination, with all consequential benefits except back wages, within a period of one month from the date of receipt of a copy of this order under intimation to all them. Thereafter, the user departments shall appoint them as Assistant Teacher/Teacher (Primary), as the case may be, within a period of one month thereafter subject to completion of the codal formalities which are the pre-requisite for their appointments. However, if there are any valid reasons for not doing so, the DSSSB shall inform the applicants accordingly within the stipulated period of one month.
3. Accordingly, these O.As. are allowed. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD