Central Administrative Tribunal - Delhi
Jitendra Kumar Chopra vs Govt. Of Nctd on 22 May, 2023
1 OA No.3304/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3304/2019
MA No. 3102/2022
Order reserved on: 21.04.2023
Order pronounced on: 22.05.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Chhabilendra Roul, Member (A)
Jitendra Kumar Chopra,
Aged about 26 years,
Appointment, PRT, Group „B‟
S/o Shri Jagbir Singh,
R/o B-42, Sanjay Nagar, Gali No.4,
Mangolpuri Kalan, Rohini,
Sector-2, New Delhi-110085.
....Applicant
(By Advocate: Mr. Suresh Sharma)
Versus
Govt. of NCT of Delhi & Ors.
1. Govt. of NCT of Delhi,
(Through Chief Secretary)
Delhi Secretariat,
IP Estate, New Delhi.
2. The Delhi Subordinate Services Selection Board,
Govt. of NCT of Delhi
(Through its Chairman)
Institutional Area, Karkardooma,
Delhi-110092.
3. The Commissioner,
North Delhi Municipal Corporation,
Civic Centre, Minto Road,
North Zone, New Delhi.
4. The Commissioner,
South Delhi Municipal Corporation,
Civic Centre, Minto Road,
North Zone, New Delhi.
... Respondents
(By Advocate: Mr. D.S.Mahendru)
2 OA No.3304/2019
ORDER
By Hon'ble Manish Garg, Member (J) Through the medium of the instant Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the action of the respondents in not issuing appointment letter to him for the post of Teacher (Primary) despite issuing offer of appointment for the same, consequent upon his qualifying the Examination for the post of Teacher (Primary) conducted by DSSSB, respondent no.2, in the year 2018 pursuant to advertisement no.02/2017 against one of the posts reserved for SC. The applicant submits that the action of the respondents is violative of Articles 14 and 16 of the Constitution of India inasmuch as other similarly placed candidates like one Shri Sunil Kumar (SC) Roll no.2800096272 etc. have already been issued appointment letters. The applicant further submits that the respondents have not communicated any reason for not issuing the appointment letter to him, which is against the principles of natural justice. He has prayed for the following relief(s):
"i. To declare the action of respondents in not appointing the applicant as Teacher (Primary) in spite of having issued offer of appointment dated 30.08.2019, as illegal and arbitrary and issue appropriate directions to the respondents to appoint the applicant to the post of Teacher (Primary) with all 3 OA No.3304/2019 consequential benefits including arrears of pay from the date of appointment his juniors in the select list.
ii. To allow the O.A. with cost.
iii. Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."
2. Briefly stated, the facts relevant for adjudication of this OA, are that in the year 2017 respondents no.1 and 2 issued advertisement for appointment to the post of Teacher (Primary) in Municipal Corporation of Delhi (MCD). 2.1 The applicant being eligible, applied for the post of Teacher (Primary) in SC category. He was found eligible and was allowed to participate in the said examination. 2.2 The result of the said examination was declared by respondent no.2 on 28.03.2019, where the applicant scored 112.42 marks and was included in the Select List for the post of Teacher (Primary) under post code no.16/17. 2.3 On receipt of the Select List from respondents no.1 and 2, respondent no.4, being the nodal agency, for recruitment for all Municipal Corporations in Delhi informed the applicant vide letter dated 31.05.2019 that his name has been recommended by DSSSB for appointment to the post of Teacher (Primary) and was directed to give his preference of Corporation along with his present address through Speed 4 OA No.3304/2019 Post. He was also sent for medical examination by the South Delhi Municipal Corporation (SDMC).
2.4 Thereafter, respondent no.3, viz. North Delhi Municipal Corporation sent an offer of appointment to the applicant for the post of Teacher (Primary) in the pay matrix level-6 (pre- revised Pay Band Rs.9300-34800+Grade Pay Rs.4200/-) plus allowances, in pursuance of the recommendations of his name by respondent no.2, subject to the terms and conditions mentioned therein.
2.5 The applicant accepted the offer of appointment vide letter dated 14.09.2019 and submitted the undertaking/affidavit and Oath of Allegiance, as required by the offer of appointment.
2.6 After receipt of the offer of acceptance letter and the undertaking etc. the applicant was to be issued appointment letter. However, the respondents did not do so without assigning any reason whatsoever, whereas other candidates declared successful in the same examination by the respondent no.2 have been issued appointment letters by respondent no.4.
2.7 Aggrieved by the delay in issuance of the appointment letter, the applicant visited the office of respondent no.4 number of times but of no avail. He was not given any information about the status of his appointment. He also 5 OA No.3304/2019 submitted a formal application to respondent no.4 in this behalf.
2.8 However, instead of addressing the concern raised by the applicant, the respondent no.4 aggravated the matters by further issuing appointment letters to other candidates declared successful by respondent no.2. Hence, left with no other alternative, the instant OA has been filed.
3. On the other hand, respondents have vehemently opposed the claim of the applicant and in the reply filed on behalf of respondent no.3, at the outset, it is submitted that the applicant has not approached this Tribunal with clean hands as he has deliberately concealed the vital facts from this Tribunal and as such the OA is liable to be dismissed on this ground alone.
3.1 It is further submitted that the applicant had applied for appointment to the post of Teacher (Primary) under Post Code 16/17 and 01/18. In pursuance thereof, he was issued an offer of appointment dated 30.08.2019 which contained certain terms and conditions for appointment and the said appointment was also subject to those terms and conditions. 3.2 It is further submitted that while accepting the offer of appointment the applicant also submitted an undertaking by way of an affidavit dated 17.09.2019 wherein he himself mentioned that he is an accused in a criminal case registered 6 OA No.3304/2019 under FIR No.170/2018, U/s 498-A, 304-B and 34 IPC, at Police Station South Rohini, Delhi, which is pending adjudication in the Rohini District Court and at present he is on bail granted by the Court.
3.3 It is further submitted that the answering respondent has already formulated a policy and had issued a circular dated 23.06.2011 in respect of the candidates who are selected for appointment to the post of Teacher (Primary) in MCD and are facing criminal action at the time of applying/selection/appointment and also when their names are recommended by DSSSB.
3.4 As per clause 2 (c) of the said circular, it is provided that "the following candidates should be deemed not eligible for appointment:
2 (c) Persons against whom a criminal case is pending under any section of IPC in a criminal case in a designated court."
3.5 Further, as per clause 4 of the above circular, it is provided, "In case a person conceals the fact that a criminal case was pending against him at the time of appointment the appointment given/offered would be treated as cancelled."
3.6 Keeping in view the provisions of the aforesaid circular, no appointment letter has been issued to the applicant and the offer of appointment already given to him is treated as cancelled.7 OA No.3304/2019
3.7 It is lastly submitted that as the applicant has concealed this vital fact from this Tribunal and has not made any assertion in his OA, the instant OA is liable to be dismissed with cost against the applicant.
4. Heard learned counsel for the parties and perused the material on record.
5. Analysis:
5.1 What will be the effect of an FIR registered under Section 498A IPC against a person who is in employment or likely to be recruited?
5.2 The above question generally affects a person, who is likely to be recruited and/or employed and against whom FIR has been registered under section 498A IPC. It is to be noted that section 498A is a cognizable, non-bailable, and non-
compoundable offence. Meaning thereby that when a complaint is filed by an aggrieved woman or her family members, it is the duty of the police officer concerned to register FIR and upon registration of FIR, the police officer is empowered to arrest the person named in the FIR, if the situation so warrants. If the person is arrested and kept behind the bars for more than 48 hours he may be placed under suspension if he is a Government servant. Now there 8 OA No.3304/2019 are mandatory guidelines which have been issued by Hon‟ble Supreme Court by which illegal arrest has been regulated. 5.3 The Hon‟ble Supreme Court in the case of Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273, directed as follows:
"11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."9 OA No.3304/2019
5.4 The Hon‟ble Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State of Delhi, (2008) 151 DLT 691 in Bail Application No.1627/2008 directed issuance of following guidelines :
"2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.
(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.
(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavour of the Police should be to scrutinize complaints very carefully and then register FIR.
(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.
(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant."10 OA No.3304/2019
5.5 Further an amendment was made in Cr. P.C. in 2013 to comply with sec.41A which is also a safeguard against an illegal arrest. Section 498A does not come under the category of a heinous crime as this offence is arising out of a matrimonial dispute so it is always in favour of the person if he kept informed his superior/reporting authority about the pendency of the case and keep updating about the progress of the case. Mere registration of an FIR or pendency of a case for trial will cause no effect on the service of the person but after conviction, it will have an effect on his career as per Service Rule. The conviction ratio is very low in the cases related to 498A and most of the cases culminate in the settlement, therefore, it can be said that there is no grave effect on the employee if he takes legal recourse in time and avoids arrest in a legal manner.
5.6 In Sau Sheela Rameshchandra Bargaje vs. The Administrative Officer, Municipal Education Board & anr., Writ Petition No. 12817 of 2017], the Hon‟ble High Court at Bombay observed as under:
"18. In our view, the criminal proceedings filed at the instance of the daughter-in-law of the petitioner under Section 498A of the Indian Penal Code and other related provisions against the petitioner have nothing to do with the employment of the petitioner with respondent nos. 1 and 3. If any criminal proceedings would have been filed and pending investigation relating to the employment of the petitioner with the respondent no.1, the situation would have been different. The principle laid down by this Court in case of Shrikant Ramchandra Inamdar (supra) applies to the facts 11 OA No.3304/2019 of this case. We do not propose to take any different view in the matter."
5.7 In Criminal Appeal No. 195 of 2022 (arising out of S.L.P (Crl.) No. 6545 of 2020) Kahkashan Kausar @ Sonam & Ors.Versus State of Bihar & Ors. decided on 08.02.2022, the Hon‟ble Supreme Court has held as under:
"22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant‟s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."
5.8 On going through the facts of the present case, what emerges is that respondents have already formulated a policy and had issued a circular dated 23.06.2011 in respect of the candidates who are selected for appointment on the post of Teacher (Primary) in MCD and are facing criminal action at the time of applying/selection/appointment and also when their names are recommended by the DSSSB. The order dated 23.06.2011 is reproduced for the sake of convenience as follows:
12 OA No.3304/2019
"MUNICIPAL CORPORATION OF DELHI EDUCATION DEPARTMENT: HO 15th FLO0R, Dr. S.P.M., CIVIC CENTRE.
MINTO ROAD. NEW DELHI-02 No.: D/ADE/TRC/Edu./2011/1189 Dated: 23/06/2011 CIRCULAR It has been observed that a number of candidates who are selected for appointment on the post of Teacher (Primary) in MCD are facing criminal action at the time of applying/selection/appointment and also when their names are recommended by the Delhi Subordinate Services Selection Board. It is felt necessary to frame a policy and issue instructions on the subject accordingly the instructions are issued.
1. The Appointing Authority should satisfy itself the identity and suitability of the candidate before making the appointment by verifying candidate's character and antecedent.
2. The following candidates should be deemed not eligible for appointment:-
a) Person convicted from the court. b) Persons dismissed from service of the
Central/State/Autonomous/Local bodies.
c) Persons against whom a criminal case is pending under any section of IPC in a criminal Act in a designated court.
d) Persons who were/are member of any associations declared unlawful by the competent authority.
3. The Persons who were facing any criminal case and have been acquitted on merit before appointment shall be considered eligible for appointment.
4. In case a person conceals the fact that a criminal case was pending against him at the time of appointment the appointment given/offered would be treated as cancelled.
5. The candidate who are facing criminal trial under any section of IPC or against whom an FIR has been registered, will not be given appointment. However, their case will be kept in abeyance for a period of three years on their request supported with au undertaking/affidavit that they will not claim any Seniority/back wages on getting appointment after acquittal.
sd/-
Director (Education)"
13 OA No.3304/2019
5.9 Pursuant to the above, the applicant submitted an undertaking/affidavit, which reads as under:
"Certificate No. IN-DL56311446615 165R Undertaking/ Affidavit SH. JITENDRA KUMAR CHOPRA S/0 SH. JAGBIR SINGH R/o H.No.B-42, SANJAY NAGAR, GALI No. 4, MANGOLPUR KALAN, ROHINI, SEC-2, NEW DELHI-1110085, do hereby solemnly affirm and declare as under.
1. That I, the deponent is a law abiding and peace loving citizen of India and reside at the address mentioned above.
2. That I, the deponent has received the offer of Appointment dated 30.08.2019 on 09.09.2019 for the post of Teacher (Primary) under Post Code 16/17 01/18 vide Ref. No.D/DDE/Admn./Edn./HQ/2019 and Roll No. 2800057978. And I am filling the present Affidavit in pursuance of the aforesaid letter.
3. That I, the deponent is declaring that the case FIR No.l70/2018, U/S- 498-A/304-B/34 I.P.C. Police Station- South Rohini, New Delhi, is still pending adjudication before the Honble Court of Ms. Raj Rani, Ld. ASJ, Rohini Courts, Delhi against main accused Manoj Kumar (my brother) and me and my other family members (my father Sh. Jagbir Singh and my mother Smt. Babli Devi) are co-accused in the FIR No.170/2018, U/S- 498-A/304-B/34 I.P.C. Police Station- South Rohini, New Delhi.
4. That I, the deponent says that I have not been convicted in any case including the above said FIR and that no other criminal case is registered against me other than the above said FIR.
Sd/-
Deponent Verification:
Verified at Delhi on this day 17 of September, 2019 that the contents of the above affidavit are correct and true to best of my knowledge and belief and nothing has been concealed there from.
Sd/-
Deponent 5.10 It is not disputed that in attestation form, the applicant disclosed the following information:-14 OA No.3304/2019
12. (a) Have your ever been : Yes/No Yes - FIR No. 170/18, arrested? P.South Rohini U/S
(b) Have you ever been : Yes/No 304B/498A/ 34 IPC prosecuted?
(c) Have you ever been : Yes/No
kept under detention?
(d) Have you ever been : Yes/No No
bound down?
(e) Have you ever been : Yes/No No
fined by a Court of Law?
(f) Have you ever been : Yes/No No
convicted by a Court of
Law?
(g) Have you ever been : Yes/No No
debarred from any
examination or restricted
by any University or any
other educational
Authority/Institution?
(h) Have you ever been : Yes/No No
debarred/disqualified by
any Public Service
Commission/Staff
Selection Commission for
any of its examinations/
selections?
(i) Is any case pending : Yes/No No
against you in any
University or any other
Educational Authority/
Institution at the time of
filling up this Attestation
Form?
5.11 MA No.835/2023 has been filed by the applicant to
bring on record a copy of judgment dated 09.02.2023 passed by the learned Additional Session Bench, North-west district Rohini and praying for keeping the appointment of the applicant in abeyance as Teacher (Primary). He is also seeking to extend the period by 01 year 11 months and 13 days (15.03.2020 to 28.02.2022) while counting the period of 15 OA No.3304/2019 three years w.e.f. 17.09.2019 i.e. upto 29.08.2024 and consider the applicant for appointment to the post of Teacher (PRT) at the earliest.
5.12 Earlier also applicant has filed MA No.3102/2022, inter alia, seeking similar direction to extend the period of limitation in the wake of the decision of Hon‟ble Supreme Court in Suo Motu WP (C) No.03/2020 for the duration of 15.03.2020 to 28.02.2022.
5.13 Vide order dated 29.03.2023 MA No.835/2023 was allowed to the extent that the aforesaid judgment was taken on record. However, MA No.3102/2022 was directed to be listed for disposal on 20.04.2023 along with the OA. On 20.04.2023 it was adjourned to 21.04.2023, on which date the OA was reserved.
5.14 Keeping in view the above situation and peculiar facts of the case, the benefit of Suo Motu Writ Petition (supra) ought to have been extended to the applicant, particularly when the same is in consonance with policy of the respondents themselves.
6. Conclusion:
6.1 In the result, for the foregoing reasons, the OA is allowed. The respondents are directed to extend the period of offer of appointment to the applicant and allow him to join the 16 OA No.3304/2019 services, if he is otherwise found to be on merits and fulfils other eligible conditions, within a period of six weeks from the date of receipt of certified copy of this order. However, it is made clear that the applicant shall not be entitled to any consequential benefits.
6.2 No orders as to costs.
7. Pending MA(s) also stand disposed of accordingly.
(Chhabilendra Roul) (Manish Garg) Member (A) Member (J) „SD‟