Central Administrative Tribunal - Delhi
Ms. Deepika vs Govt. Of N.C.T. Of Delhi on 2 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1966/2013, MA No.1581/2013
OA No. 1986/2013, MA No.1596/2013
OA No. 1987/2013, MA No.1595/2013
OA No. 1990/2013, MA No.1590/2013
OA No. 1968/2013
OA No. 1989/2013
OA No. 1998/2013
Orders Reserved on: 19.05.2014
Pronounced on: 02.07.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
OA-1966/2013
1. Ms. Deepika
D/o Sh. Rajendra Singh
E-2/99, 3rd floor, Shastri Nagar,
Delhi.
Application No.107444, Post Code 20/13
2. Ms. Priyanka
D/o Sh. Rajendra Singh
E-2/99, 3rd floor, Shastri Nagar,
Delhi.
Application No.107447, Post Code 20/13
..Applicant
(By Advocate: Shri R.K.Jain)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1986/2013
1. Kamlesh Kumar Yadav
S/o Sh. Hanuman Sahai
R/o VPO Puranabass,
Tehsil Neem ka Thana,
Distt. Sikar, Rajasthan.
Application No. 142627 Post Code 20/13
2. Anand Prakash
s/o Bansi Dhar
R/o VPO Mehrauli,
Tehsil Sri Madhopur, Rajasthan
Application No.142624, Post Code 20/13
..Applicant
(By Advocate: Shri R.K.Jain)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1987/2013
1. Tej Pal Sharma
s/o Sh. Jagdish Prasad Sharma
R/o Village & PO Baroli Chhar,
Tehsil Nadbai,
Distt Bharatpur, Rajasthan
Application No.149222, Post code 20/13
2. Rajesh Saini
s/o Kailash Chand
R/o C/o Ravi Jain,
H.No. C-170, Gali No.7,
New Usmanpur, Delhi-53.
Application No.150698, Post Code 20/13
..Applicant
(By Advocate: Shri R.K.Jain)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1990/2013
1. Jasveer
S/o Sh. Kabul Chand,
R/o Village & PO Dughera
Tehsil Behror, Distt. Alwar
Rajasthan
Application No. 112242, Post Code No.20/13
2. Pawan Kumar Yadav
S/o Sh. Kirshan Yadav,
R/o Village & PO Siryani,
Tehsil Behror, Distt. Alwar
Rajasthan
Application No. 114014, Post Code No.20/13
3. Mamta Udeniya
D/o Jaman Lal
R/o Sarvodaya Colony
Harmada, Jaipur, Rajasthan
Application No.507847, Post Code No.20/13
4. Rajesh Kumar Sharma
S/o Kalyan Prasad Sharma,
R/o Near Sanichar Temple, Hospital Road
Mahwa, Distt. Dausa
Rajasthan
Application No. 112243, Post Code No.20/13
5. Ritu Kumari
D/o Phool Kanwar
R/o R-140,Gali NO.14, Main Road
Swantantar Nagar, Narela, Delhi.
Application No. 153539, Post Code No.20/13.
..Applicants
(By Advocate: Shri R.K.Jain)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1968/2013
Ms.Neha
W/o Rajeev
D/o Sh. Anil Kumar
R/o T-517/D-27 Hill Marg
Baljeet Nagar
New Delhi-110008
Application No.510269
..Applicants
(By Advocate: Shri R.K.Jain for Sh. Nilansh Gaur)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1989/2013
Neeta
W/o Bhimdutt
R/o A-116, IInd Floor
Gulab Bagh, Nawada
Uttam Nagar,
Delhi.
Application No.520028, Post Code 20/13
..Applicants
(By Advocate: Shri R.K.Jain)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
OA No. 1998/2013
Ms. Sheiba Paul
W/o Sh.Robin
R/ o H-130 Old Seemapuri
Delhi-95
..Applicants
(By Advocate: Shri Ajesh Luthra)
Versus
1. Govt. of N.C.T. of Delhi
Through the Chief Secretary,
5th floor, Delhi Sachivalaya,
New Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
Govt. of N.C.T. of Delhi
F-18, Karkardooma,
Institutional Area, Delhi-92.
3. The Principal Secretary
Health & Family Welfare,
GNCT of Delhi,
9th Level, A Wing,
Delhi Secretariat, New Delhi.
4. Municipal Corporation of Delhi
Through its Director,
Local Bodies,
GNCT of Delhi
Delhi Secretariat,
New Delhi.
5. New Delhi Municipal Corporation
Through its Commissioner
New Delhi Municipal Council
Palika Kendra Building,
Opp. Jantar Mantar,
Parliament Street,
New Delhi-110001.
..Respondents
(By Advocate: Sh. Amit Anand)
O R D E R
Mr. V.N. Gaur, Member (A) This is a batch of cases in which the applicants had filled up the application form on line. Applications were submitted in the OMR form for the Post Codes 20/13, 21/13 and 22/13 invited by respondent no.2 Delhi Subordinate Services Selection Board (DSSSB) vide notification no.1/2013 issued in February 2013. While filling the OMR forms these applicants had, according to DSSSB, respondent no.2, committed some errors because of which their candidatures had been rejected. DSSSB published a notice on 03.05.2013 in respect of the candidates for Post Codes 20/13, 21/13 and 22/13 (Staff Nurse, Nurse A Grade and Nurse Grade A) notifying the list of eligible and ineligible candidates. The applicants in this batch of applications found their names in the list of ineligible candidates giving reasons for rejection of applications against each of their names. The applicants then approached this Tribunal through their respective OAs and the Tribunal allowed the applicants to provisionally appear in the examination under consideration scheduled to be held on 09.06.2013 with a further stipulation that the results of the applicants will not be published till these cases were finally decided. Subsequently, the respondent no.2, DSSSB had produced the results in a sealed cover for the perusal of this Tribunal and after the perusal it was decided to continue with only those cases where the applicants had secured more than the cut off marks.
2. The OAs under consideration can be divided into three categories. The first category is where the applicants did not fill up col.12 (d) of the OMR sheet pertaining to the qualification properly, the second category is where the applicants either fill up the col. 16 wrongly relating to the question whether they were debarred in any earlier examination by DSSSB or did not fill up at all, and third is where the Post Code itself was not filled up.
3. OA-1966/2013, OA-1968/2013, OA-1990/2013 & OA-1998/2013:
This is the first category where the applicants did not fill up col. 12 relating to essential qualification correctly. According to the learned counsel for the applicants, the essential qualification for Post Codes in the advertisement issued by DSSSB was:
For the Post Code 20/13 Staff Nurse, Health & Family Welfare, GNCTD
(i) Matriculation or its equivalent
(ii) A Grade certificate in Nursing from a recognised institution.
(iii) Certificate in Midwifery.
(iv) Should be able to speak Hindustani fluently.
For the Post Code 21/13 Nurse A Grade in MCD
(i) Matric pass from a recognised university/board or equivalent
(ii) A Grade Nurse & Midwife from a recognised institute
(iii) Registered with Nursing Council as A grade Nurse & Midwife.
For the Post Code 22/13 Nurse Grade A in New Delhi Municipal Corporation
(i) Matric from recognised institution or equivalent
(ii) Diploma in General Nursing from recognised institution
(iii) Candidate must be registered with recognised Nurses Registration Council.
4. It was further submitted that cols. no.12 (d), (e) & (f) were in respect of Staff Nurses, Health and Family Welfare, Nurse A Grade in MCD and Nurse Grade A in NDMC respectively. Each of these columns has separate sub-headings with regard to
(i) Matric pass or equivalent
(ii) A Grade Nurse & Midwife course
(iii) Registered with Nursing Council as A grade Nurse & Midwife.
(iv) Certificate in Midwifery.
The last subheading was in respect of col. 12 (d) Staff Nurse, Health and Family Welfare.
5. The applicants marked only the bubble in front of Registration in Nursing Council. The applicants came to know about the rejection of their candidature only after the notice dated 03.05.2013 was published by respondent no.2 where the reason for rejection of their applications was given as not having the requisite qualification as on closing date. From all the documents, copies of which have been filed along with the OAs, the learned counsel established that the applicants fulfilled the required qualification of possessing certificates of matriculation, nursing, midwifery or registration with Nursing Council as A Grade Nurse & Midwife. It was stated that it was the first time that the applications were invited in OMR forms and candidates got confused while filling up the forms. The candidates were under the impression that in each column the bubble against only one of the subheading was to be marked while the respondents apparently expected them to fill multiple subheading as per their qualification in col. 12 (d), (e) & (f). The learned counsel argued that once a person is registered with the Nursing Council it would follow that the person had matriculation certificate and a certificate in Nursing and Midwifery because without that no registration could be done with the Nursing Council. The respondents were, therefore, wrong in rejecting the applications on the ground of not possessing requisite qualifications despite the fact that respondents had indicated that they are registered with Nursing Council. Learned counsel further stated that the instructions regarding how to file the OMR form should have been little more elaborate to clarify to the applicants that all the sub-headings were to be marked under a given heading.
6. OA-1986/2013 & OA-1987/2013:
In these OAs the applicants in the aforesaid examination form either did not fill up col. 16, i.e. whether debarred in any earlier examination by DSSSB (see list in website), was wrongly filled up. They were to give answer in yes or no but the applicants in OA-1986/2013 did not fill up this column at all and applicants in OA-1987/2013 marked the column yes meaning thereby that they were debarred by DSSSB in the past.
7. Counsel for the applicants stated that these applicants were never debarred by DSSSB in the past but they could not understand the question properly, and therefore, either did not reply at all or they marked the wrong answer.
8. OA-1989/2013:
In this case the applicant did not fill up the col. 11 regarding the Post Code. The learned counsel argued that this was an oversight and the applicant though having filled up col. 12 (d) regarding the qualification correctly missed col.11 regarding the Post Code. It was argued that though this was a mistake but a co-relation with Col.12 (d) would show that the applicant had applied for the Post Code 20/13 and the respondents should not have rejected the application only on this ground.
9. Learned counsels relied on the following judgments:
(i) Union Public Service Commission vs. Gyan Prakash Srivastava, (2012) 1 SCC 537.
(ii) Delhi Subordinate Services Selection Board and anr. vs. Neeraj Kumar and anr. of Honble Delhi High Court in WP (C) No.1004/2012 decided on 24.02.2012.
(iii) Mr. Vikram Bainsla vs. Commissioner of Police & Anr., OA No.136/2014 dated 05.03.2014 of this Tribunal.
10. Learned counsel for the respondents in his submission stated that respondent no.2, DSSSB, inthe instructions how to apply published in the advertisement no. 01/13 had stated as follows:
8. HOW TO APPLY
i) The candidate must apply in the prescribed OMR application form available at DSSSB and DC (Revenue) offices at North-East, North, North West, West, South & South West.
ii) No document should be attached with the OMR application. The OMR application form should not be folded or stapled. In case, the OMR form is folded/stapled or any document is attached, the application shall be rejected.
iii) The application form should be filled up using Blue/Black ball pen only.
iv) The candidate must write his/her Name, Fathers/Husbands name and Date of Birth as it appears in the Matriculation/Secondary Certificate or equivalent. If the candidate has changed his/her name after matriculation, his/her fathers name, her husbands name, necessary documentary proof/affidavit issued by a First Class Magistrate should be furnished at the time of verification of documents.
v) Recent passport size coloured photographs (front face) with light background as per specification should be pasted on application form.
vi) All columns must be filled. No column should be left blank, instead it should be marked NA wherever not applicable. Incomplete or illegible or incorrectly filled or unsigned application form will be summarily rejected. Candidate must sign in the running script, not in block letters in the same language.
vii) Candidate must sign in running script and put his/her left thumb ink impression in relevant columns of application form which must be clearly visible. (Emphasis supplied)
11. In the same advertisement it was also explained under what conditions the applications will be considered as invalid and the relevant portion is extracted below:
9. INVALID APPLICATIONS The application form with any of the following deficiencies or irregularities will be treated as invalid and summarily rejected:
a. xxxx b. xxxx c. xxxx d. Incomplete or illegible or incorrectly filled up applications..
12. Having notified the rules in the advertisement, the respondents were duty bound to follow the same in respect of all the applicants. The applicants also should have taken care to read the instructions carefully and fill up the form knowing fully well that a wrongly filled up form will be rejected. Refuting the argument of the learned counsel for the applicants that there was ambiguity in the instruction form, the learned counsel for the respondents stated that several thousands applications were received against these posts and most of those forms had been filled up correctly. It was only in a small number of cases that the candidates faced problem in filling up the forms. It could be because the applicants did not exercise enough care while filling up the form. Learned counsel relied on the judgment of Honble High Court of Delhi in WP (C) No.9114/2008 and batch, Rashmi Dhara & ors. vs. Govt. of NCT of Delhi & ors.
13. We have considered the submissions made by the counsels from both the sides and also gone through the documents on record including the photocopies of the relevant portion of OMR applications submitted by the applicants in these OAs as annexed by the respondents with their counters except in OA-1990/2013. Learned counsel for the respondents, Sh. Amit Anand stated that this case fell in the first category where the applicants had not filled up col.12 correctly, and therefore, the counter filed in OA-1966/2013 may also be adopted in this case.
14. We have considered the cases cited by the learned counsels for the applicants. In Gyan Prakash (supra) the applicant was required to have a Degree of Law or other certificates in support of their educational qualifications and he submitted a copy of the certificate as a proof of enrolment with the Bar Council without enclosing a copy of LLB degree. It was held by the Honble Supreme Court that the rejection of respondents application for the post of Legal Advisor was per se illegal and arbitrary.
15. In Neeraj Kumar (supra) the instructions for filling up the forms stated that certain deficiencies in the application would make it invalid and would be summarily rejected and one of the deficiencies mentioned was e. signature in block capital letters in English or in different languages and in different style/mode. The applicant in that case had signed in capital letters and hence the recording agency rejected his candidature despite the fact that the applicant had secured 118 marks, which was higher than the marks obtained by last selected candidate in his category. The Honble High Court held:
11. Even otherwise, we are of the opinion that since the identity of the candidate could be established from his photograph on the application form as well as the photograph affixed on the roll number issued to him by the petitioners, the stipulation with regard to the invalidity of an application on the ground that the applicants signature is in block capital letters in English is merely directory and not mandatory. The decisions cited by the learned counsel for the petitioner are clearly distinguishable.
In view of the foregoing although we have taken slightly different view as regards the first issue from that of the Tribunal, we see no reason to interfere with the ultimate conclusion of the Tribunal.
16. In Mr. Vikram Bainslas case (supra) the applicant was son of a Delhi Police personnel and by mistake he filled up the column declaring himself as departmental candidate. He could not distinguish between the definition of a departmental candidate and a candidate whose father was working in that department. This Tribunal ordered as follows:
6. Taking a holistic view, we dispose of the present Original Application with direct to the respondents to consider the candidature of the applicant for the post of Temporary Constable (Executive) Male, subject to fulfilment of other required conditions, as per rules and procedure.
17. Learned counsel for the respondents had relied on the case of Rashmi Dhara (supra) arguing that once certain conditions were laid down in the notified rules of the examination, it had to be applied uniformly to all the candidates. The applicants did not have any legal right for the consideration of their application even if it was incorrectly filled up. Honble High Court in the case of Rashmi Dhara (supra) has observed as follows:
14. The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purposes. Under the first component of the above provision a writ may be issued under the said Article only if it is prima facie clear that the aggrieved party has a fundamental right and that it has been infringed. Under the second component it may be issued only after finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed.
15. A party to the lis cannot invoke the powers of judicial review of this court under Article 226 of the Constitution of India to seek enforcement of something which is legally not enforceable.
18. We have considered the deficiencies in the OMR application forms filled up by the applicants in this case. We find that there was a scope for ambiguity with regard to the filling up of col. 12 (d), (e) & (f). While the instructions as reproduced earlier did say that the applicants were required to fill up all the columns, it is obvious that this instruction cannot be applied to all the columns as some columns had to be answered in terms of yes or no. Obviously both columns cannot be filled up under any circumstances. Secondly, the applicants could genuinely believe that having marked the column of registration with Nursing Council would automatically mean that they had fulfilled all the conditions required for such registration, namely, matriculation or equivalent certificate and a diploma in Nursing/Midwifery. We also note that in some examinations such as Delhi Higher Judicial Service Examination, sample registration form of which was produced by the learned counsel for the applicants, Sh. R.K.Jain, the instructions clearly show as to how to fill up a column like 12(d), (e) & (f) in the present case. Further relying on Gyan Prakashs case (supra), we are of the view that the OMR applications of the applicants in OAs 1966/2013, 1968/2013, 1990/2013 & 1998/2013 should have been accepted by the respondent no.2.
19. In the second category, col. 16 had not been filled up at all or filled up wrongly. Col. 16 is reproduced below:
Whether debarred in any earlier Examination by DSSSB? (see list in website) Yes O No O
20. The two applicants in OA-1986/2013 did not fill up this column altogether and the applicants in OA-1987/2013 answered yes in this column. This is a very important information which the respondents would like to have from the applicants and applicants also are required to be careful while filling up this column. However, it is stated in the form that see list in website which means that if the name of the candidate is included in that list which apparently is of debarred candidates, he is debarred, otherwise not. In other words, the respondents do not envisage a situation where a candidates name may not be in the list in website but he might have been debarred. In such a situation it is only a question of reference to the list in website and nothing more. Therefore, by not filling up this column or wrongly filling up this column does not alter the factual position in respect of debarment of a candidate. If a candidate has not filled up this column, the respondent no.2 would still check whether his name appears in the list of debarred candidates and if his answer is no in this column even then they will check the list. Here the two applicants have wrongly marked yes in col. 16. No candidate would deliberately claim himself as having been debarred when that is not a fact. If the list in website is the master list, a mistake in filling up this form in either of the above two cases does not change the factual position and cannot be treated as an attempt to mislead or conceal the information. We are, therefore, of the view that this mistake cannot be the sole ground for rejection of the candidature of these applicants.
21. In the third category, there is only one candidate in OA-1989/2013 who did not fill up the Post Code. This is a serious mistake because the OMR application cannot be processed at all in the absence of the Post Code. In such a case the application is ought to have been rejected. However, in this case we would refer to an order dated 13.02.2013 of Coordinate Bench of this Tribunal in OA-2063/2012. In that case, the applicant had been awarded zero marks in Tier-I of two examinations as the applicant had mentioned a wrong code on the OMR answer sheet. According to the instructions published in the notice of the examination, the answer sheet not bearing candidates Roll no., ticket no. and signatures fully and correctly, zero marks will be awarded to them. However, it was noticed that the respondents in that case had evaluated the OMR answer sheet of the applicant and awarded 129 marks despite the fact that the answer sheet carried a wrong ticket number. Thus, the respondents were not handicapped in tracing and connecting the answer sheet of the applicant correctly to the applicant in that case. It was held that In the peculiar facts and circumstances of this case and for the aforesaid reasons, the OA is allowed and the respondents are directed to consider the case of the applicant for appointment to the post of Inspector (Central Excise) or to any other post, as per his merit, after taking into the marks awarded to the applicant for Paper-I of Tier-II examination as per Annexure A-5 coupled with the marks awarded to him under Annexure A6, if otherwise eligible, within a period of 60 days from the date of receipt of a copy of this order.
22. In the present case also, we find that though the applicant had not filled up Post Code, the applicant had correctly filled up the educational qualification in the col.12 (d) pertaining to Staff Nurse, Health and Family Welfare. Once the post had been identified, there can be no ambiguity with regard to the Post Code, and therefore, we are of the view that respondents were not right in rejecting the application on this ground alone.
23. The cases of the applicants in these OAs need to be considered by the respondents in the light of our observations above. We, accordingly, quash the notice dated 03.05.2013 issued by respondent no.2 in respect of applicants in the present OAs and direct them to consider the candidature of the applicants for the post for which they have applied and further process their cases in accordance with the rules with regard to the selection and appointment within a period of two months. OAs are allowed. No costs.
( V.N. Gaur ) ( V. Ajay Kumar ) Member (A) Member (J) sd