Central Administrative Tribunal - Delhi
Ta No. 163/2009 vs The Commissioner on 5 June, 2009
Central Administrative Tribunal
Principal Bench
TA No. 163/2009
with
TA No. 1129/2009
and
TA No. 322/2009
New Delhi, this the 5th day of June, 2009
HON,BLE MR.JUSTICE M.RAMACHANDRAN, VICE-CHAIRMAN(J)
HONBLE MR. SHAILENDRA PANDEY, MEMBER (A)
1. TA No. 163/2009
Shashi W/o Shri Rakesh Kumar Saini,
R/o 88, Saini Enclave,
Delhi-110092. Applicant.
(By Advocate Shri Devender Singh)
versus
1. The Commissioner, M.C.D.,
Town Hall, Delhi- 6
2. The Chief Secretary,
Govt. of NCT Delhi, Delhi.
3. Sh. A.K. Guha IAS,
Director ( P.E.),
Deptt. of Education, HQs.
Kashmere Gate, Delhi-6
4. Mr. Mahesh Chand Sharma,
President, Education Committee
(MCD) Deptt. of Education, HQs.
Kashmere Gate, Delhi.
5. Mr. B.C. Pandey,
Asstt. Commissioner of Education (MCD),
Deptt. of Education HQs.
Kashmere Gate, Delhi-6. Respondents.
(By Advocate Shri Gaurang Kanth with Ms. Biji Rajesh)
2. TA No. 1129/2009
Poonam Yadav W/o Shri Rich Pal Singh,
R/o B-5/369, Yamuna Vihar,
Delhi- 110 053. Applicant.
(By Advocate Shri Devender Singh)
versus
1. The Commissioner, M.C.D.,
Town Hall, Delhi- 6
2. The Chief Secretary,
Govt. of NCT Delhi, Delhi.
3. Director ( P.E.),
Deptt. of Education, HQs.
Kashmere Gate, Delhi-6
4. Additional Deputy Commissioner (MCD),
Deptt. of Education, HQs.
Kashmere Gate, Delhi.
5. Mr. B.C. Pandey,
Asstt. Commissioner of Education (MCD),
Deptt. of Education HQs.
Kashmere Gate, Delhi-6. Respondents.
(By Advocate Ms. Amita Gupta)
3. TA No. 322/2009
1. Jagat Singh S/o Sh. Ranjeet Singh
R/o Ghondha Chowk, Delhi-53
( 61/AC/Edu.)
2. Suman W/o Sh. Ratan Singh,
R/o B-129, Gali No. 8, Bhajan Pura,
Delhi-53 (OBC No. 2791)
3. Anju Nagar D/o Sh. Kalu Singh Premi,
R/o E-120/8 A, Gali No.6,
Subhas Vihar Ghonda Maujpur,
Delhi-53 ( O.B.C. No. 983)
4. Mukesh Verma
S/o Sh. Karan Singh Kasana
R/o 11-F/3, NDMC Flats,
Kaka Nagar, New Delhi-3
( OBC No. 2622/ A/C.)
5. Sharda W/o Sh. Rajender Singh Bhati,
R/o 59/1, Sector-1, Pushp Vihar,
New Delhi-1 (OBC No. 603).
6. Dikshit Babu,
S/o Sh. Chet Ram,
R/o E-26, Sadat Pur Estn. Colony
( OBC No. 3064)
7. Meena Nagar,
D/o Sh. R.S. Bhati,
R/o 53, Police Colony,
Hauz Khas, New Delhi-16
Applicants.
(By Advocate Shri Devender Singh)
versus
1. The Commissioner, M.C.D.,
Town Hall, Delhi- 6
2. The Chief Secretary,
Govt. of NCT Delhi, Delhi.
3. Sh. A.K. Guha IAS,
Director ( P.E.),
Deptt. of Education, HQs.
Kashmere Gate, Delhi-6
4. Mr. Mahesh Chand Sharma,
President,
Education Committee
(MCD) Deptt. of Education, HQs.
Kashmere Gate, Delhi.
5. Mr. B.C. Pandey,
Asstt. Commissioner of Education (MCD),
Deptt. of Education HQs.
Kashmere Gate, Delhi-6. Respondents.
(By Advocate Shri Gaurang Kanth with Ms. Biji Rajesh)
ORDER
Honble Mr. Justice M.Ramachandran, Vice Chairman (J):
Three Transferred Applications were heard together and are being disposed of by a common order. Indeed, the applicants had as citizens pursued their constitutional remedy as early as in the year 1998. The complaints were that they have been subjected to discrimination and ineligible persons have been appointed overlooking their legal claims and some of such appointments were done overlooking the terms of the advertisement pursuant to which the selection process had commenced.
2. The delay in passing final orders, therefore, normally should not adversely affect their claims as well as their rights in case they are upheld, especially since the High Court of Delhi had by interim order dated 09.02.1998 observed that the appointments that may be made by the respondents concerned would be subject to the final orders that will be passed in the writ petitions. So much so, it has to be ensured that if the applicants get benefit of declaration and they should be appropriately accommodated since any appointments made by the Municipal Council of Delhi may not empower them to plead that vacancies are no more there. The brief facts of the case could be stated hereunder.
3. In fact, the issues to be resolved lie in a very narrow compass. The applicants refer to an advertisement made by the Municipal Corporation of Delhi through their Department of Education, in 1996, a copy of which is Annexure `A. Applications were invited for appointment as Primary Teachers and Nursery Teachers. Category `A was Primary Teacher General/Tamil and total number of vacancies have been shown as 3000. It had been noted that the number of vacancies may be modified. There were reservations for handicapped, blind, dumb and deaf persons. But as far as we are concerned, since all the applicants belong to the OBC category, the reservations pertaining to them alone need be gone into. It had been notified that the implementation of the rules and regulations in reserved categories of SC/ST/OBC, etc. will be done as per policy of the Delhi Government.
4. We may also advert to certain other conditions that had been incorporated in Annexure `A. The age limit as on 31.07.1996 was 18 to 30 years, of course, with relaxation in favour of lady candidates, SC/ST candidates, physically handicapped, ex-servicemen, government employees and those who had to their credit teaching experience in recognized schools. The completed applications were to reach the Assistant Commandant by 31.07.1996.
5. General category candidates were required to pay Rs.40/- as application fee. Educational qualification and experience also had been prescribed. As the applicants were qualified, and had registered them in Employment Exchange and had also submitted the applications, with all details by the notified date, it has to be presumed that the applications were valid in all respects, and especially this position is not disputed by the respondents.
6. The applicants contend that in respect of OBC candidates, however, there precipitated a differential treatment. The general candidates had been appointed, and there was no difficulty felt by the other reserved categories also. But the issue was indefinitely being delayed for filling up the full available OBC reserved posts. The averments in the application show that as per the policy of the Delhi Government, taking notice of the total number of vacancies, 27% of them, viz 810 vacancies were to be earmarked for OBC. But only less than 50% of the posts had been filled up. It had come to notice of all concerned that claims from several candidates who had not applied within time nor had registration with the Employment Exchange or basic certificates to show the credentials of entitlement for reservation had suddenly emerged. The allegation appears to be that for extraneous reasons, the appointing authorities were waiting for such details to come, for smuggling them in. They also refer to a report which had appeared in Nav Bharat Times dated 16.08.1997 as Annexure `C which had highlighted instances of nepotism and restrictive practices, etc. being practiced. The net result was uncertainty and certain amount of confusion. The applicants had made representations as to why their claims were not being taken due notice of. Our attention was also invited to a writ petition filed, as 4299/97. The High Court had at that time noticed the discrepancies and had directed the details to be supplied by way of an affidavit. But applicants submit that without inviting a judgment, certain concessions had been made and the original petition thereupon was made infructuous. Even thereafter, there was delay. This prompted them to come up with the writ petitions. Being qualified, and also in possession of marks above the cut off levels, according to them, they had a right to be got appointed, and the preference given to persons with inferior merit violated their fundamental rights under Part III of the Constitution of India.
7. As referred to earlier, there is no dispute forthcoming that the applicants were not qualified, nor that all of them were possessing marks above the cut of marks that had been prescribed for the OBC candidates. It had been conceded that although the last date of receipt of applications had been notified as 31.07.1996, a relaxation had been made in favour of persons, who had submitted incomplete applications within the specified date, entitling them to make available certificates showing that they belong to OBC. This was a relaxation, according to respondents, to ensure that persons who belong to OBC did not suffer because of failure of officers to issue them OBC certificates.
8. Although by strict standards the plea would not have been justifiable, since the beneficiaries have not been impleaded as parties to these proceedings, it may not be possible to upset their appointments. But further, a strange contention has been raised with reference to Annexure R-1 made available with the counter reply. It is copy of a public notice. Thereby the candidates who had submitted applications could put their objections about the selection/non-selection.
9. So far it may not be objectionable. But it disclosed that in respect of OBC candidates, persons who happened to have their date of birth later than 05.06.1968, were proposed to be weeded out. Of course, in dealing with the general category candidates also a cut of date had been prescribed, it being 30.11.1969. Those candidates younger in age had been shown the door. It is submitted by the counsel that what has been done as above was fair, based on sound policy and nobody has a right to contend that it violated principles of equality, or that it was arbitrary exercise of power.
10. The affidavit later on filed on 30.07.2001 by the Deputy Education Officer, also refers to such a decision taken, Paragraph (vi) show that OBC candidates who were born on or after 05.06.1968 were to be scratched all together from purview of a selection. It is disclosed that since the petitioners were born after the above said date, they were not found eligible and, therefore, they were not considered for the post of Primary Teacher. It may also be stated that at that point of time there was no test/interview or selection process conceived, and the procedure followed was a verification of the credentials alone and, those, who were found by the appointing authority as eligibles had been conferred with the appointment. While assessing the mark position, a grading system was adopted for streamlining academic appointments.
11. However, since it is admitted that for rejecting claims for the applicants the yardstick employed was the age factor alone, we may consider whether a weeding out on the above basis would satisfy the touchstone of constitutionality.
12. We think it will be duty if not the burden of the respondents to establish that deletion of the names of the applicants from the zone of consideration was justified. Learned counsel for the respondents submits that it was a policy decision taken by the respondents in public interest. In respect of about 3000 vacancies, over 50000 applications had come. Thereupon, it was decided by the competent authority that as the process of verification and assessment of the merit would be laborious, persons who are comparatively younger in age, wholesale could be kept away from selection. It is submitted that persons, who are seniors in age might be losing opportunity to partake in further selections, and the younger generation could have availed still more opportunities in the course of their life. This could not have been found fault with.
13. Counsel submits that although not directly dealing with the issue, adoption of such a policy had been approved by the decisions rendered by the Delhi High Court, which were in respect of the self same selection process, in CWP 549 of 1998, 810 of 1999 and 2912 of 2000. According to him, the principle as above, for shortlisting candidates, is accepted in service jurisprudence and also had invited our attention to the decision in Civil Appeal No. 6103 of 1994 in M.P. Public Service Commission Vs. N.K. Potdar and Anr. The policy was uniformly applicable to one and all who participated in selection and also was applicable to OBC group. Therefore, there was no scope for the applicants to plead that any of their fundamental rights have been violated or there was arbitrariness shown in the selection.
14. We had gone through the judgments cited, but find that the specific point nor the implications or nuances of the policy as highlighted by the applicants here, had been urged in the above writ petitions. In fact, one of the cases principally has been rejected for reasons of delay. As a general statement, it may be true that a policy decision is not to be upset by an adjudicator in exercise of discretion. But while such discretion is exercised, relevant facts have to be fully gone into, and the constitutionality of the policy brought into operation. We have also to ensure that this does not precipitate a situation whereby rights otherwise secured are not given a go bye, or arbitrariness will surface.
15. We may first go into the Notification, to see whether such power for short listing had been reserved by the respondents while dealing with the applications. We may ignore a circumstance that the respondents had received and acted on applications, which were to be considered as invalid as they had come late even by one year. It is not revealed as to what was the magnitude of such relaxation. Only for technical reasons, as pointed out earlier, we had refrained from commenting upon the indiscretion that had been shown. In a selection process, it may not be possible for the governmental authority to ignore the specific terms which have been put up to the notice of the general public. It requires to be scrupulously complied with. It is to be presumed that the Notification was taking into consideration the rule position, namely, that age of the candidate should have been between 18 and 30 years generally, to be adjudged as on 31.07.1996. If that be the case, because of a reason that there were large number of applications than expected, it could not have been permissible for the respondents to contend that a person who has the minimum age nevertheless will not be considered for selection irrespective of the merit. A person who is aged at the upper levels could not have been given priority on any known principles of law, although he was inferior in merit. Such a course will be wholly arbitrary. Nobody is permitted to ignore the rules, and because of the executive decisions which are characterized as a policy decision, the rules stand violated. A shortlisting as suggested by the Supreme Court in decision cited (supra) was on a totally different context, namely, in the mater of minimum experience. When persons with longer experience were available in abundance it could have been possible to confine the selection of those who had superior merit, especially taking note of the experience gained by them.
16. Article 14 of the Constitution mandates that the State shall not deny to any person equality before law or equal protection of the laws. In matters of public appointment, Article 16 requires that equality of opportunity is to be ensured for all citizens for appointment to offices under the State. Article 16 (3), 16(4)(a) and 16(4)(b) alone permits exemption from the general rule. The policy and the resultant rejection of the claims of the applicants do not at all come within any of such exceptions.
17. We may also notice a grave injustice if we endorse and accept the argument of the respondent above highlighted. It is not disclosed as to why a day as 05.06.1968 has been prescribed. According to the applicants, it is sinister, and deliberate. Even if we ignore the suggestion, the policy if implemented would ensure that although the range of age for selection is from 18 to 30 years, the selection is to be confined to persons between the ages of 28 and 30. This would be extra bonus to persons in this age band, and when the situation is critically examined, it is a most appalling situation. The policy has been thoughtlessly put into operation. This is impermissible.
18. There is no case that the application fee received from the applicants has been refunded. When application fee is received, according to us, there is a corresponding obligation on the part of the respondents to ensure that the application is considered on merits. Otherwise it becomes unjust enrichment, which a State should not practice. On the basis of a policy decision, valid applications definitely cannot be put to the dustbin. We feel that injustice has been done to the applicants and the respondents are to repair the loss that has been inflicted on the applicants. We, therefore, direct that within a period of one month from the date of receipt of a copy of this order, the applicants are to be issued with appointment orders since there is no contention that they were not in any way ineligible vis-`-vis qualifications and had secured well above the cut of marks prescribed.
19. After securing appointment, the applicants will be entitled to make further submissions as to fixation of their seniority position at least notionally with persons who were lucky enough to get earlier appointment if they so choose. Such rights are protected. Applications are disposed of as above. We make no order as to costs.
20. Let a copy of this order be placed in TA 1129/2009 and TA 322/2009.
(SHAILENDRA PANDEY) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD