Delhi High Court
Pushpa Devi vs Rajesh Bhatia And Anr. on 17 November, 2017
Author: Vipin Sanghi
Bench: Vipin Sanghi, Deepa Sharma
$~SB-1.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.11.2017
% W.P.(C.) No. 3460/2017
PUSHPA DEVI ..... Petitioner
Through: Mr. V.K. Tandon, Advocate along
with petitioner in person.
versus
RAJESH BHATIA AND ANR ..... Respondents
Through: Mr. Devesh Singh, ASC (GNCTD)
and Ms.Neelam Kholiya, Advocate
for the respondent.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE DEEPA SHARMA
VIPIN SANGHI, J. (ORAL)
Review Pet. No.333/2017
1. The affidavit has been filed by the respondents in terms of our order dated 01.09.2017. The respondent No.2 states in the said affidavit that the vacancy position in respect of TGT (Hindi) in the Directorate of Education, GNCTD is 422, which includes 271 (Male) and 151 (Female). Thus, it is evident that a vacancy is available, which could be filled by the petitioner.
2. The petitioner had preferred the writ petition to assail the order dated W.P.(C.) No.3460/2017 Page 1 of 11 27.03.2017 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (CAT/ Tribunal) in C.P. No.548/2016 arising out of O.A. No.203/2015. The Tribunal, by the impugned order, had dismissed the said contempt petition preferred by the petitioner. When the writ petition was heard, the same was dismissed by our judgment dated 24.04.2017 - of which the petitioner now seeks review.
3. The submission of learned counsel for the petitioner is that while passing the order dated 24.04.2017 dismissing the writ petition, this Court had not taken into consideration the order passed by the Tribunal on 20.02.2017 in the said contempt petition. Mr. Tandon points out that the speaking order dated 07.10.2016, which had purportedly been passed in compliance of the order of the Tribunal dated 18.01.2016 - declaring the petitioner/ applicant ineligible was, prima facie, found to be contemptuous by the Tribunal and, accordingly, the same was withdrawn by the respondents. However, the respondents had again passed a similar order dated 21.03.2017 and, on this occasion, the contempt petition was dismissed without appreciating that the earlier similar order dated 07.10.2016 had already been withdrawn by the respondents. This aspect was not noticed by this Court, while passing the order dated 24.04.2017.
4. In view of the aforesaid, we are of the considered view that the impugned order needs to be reviewed as a patent error has crept in the said order dated 24.04.2017. Accordingly, the review petition is allowed and the order dated 24.04.2017 is recalled/ reviewed. We now proceed to dispose of the writ petition afresh, having heard the submissions of learned counsels.
W.P.(C.) No.3460/2017 Page 2 of 11 W.P.(C.) No. 3460/20175. The petitioner had preferred the Original Application being O.A. No.203/2015, being aggrieved by the rejection of her candidature by the respondent for the Post Code No.7/2013, i.e. TGT-Hindi (Female) advertised vide Advt. No.1/2013.
6. The relevant background facts are that the petitioner had initially applied in response to an Advt. No. 2/2012 for the post of TGT (Hindi) (Post Code No.109/2012), and she was issued e-admit card No.45000830. Later on, she also applied for the said post, advertised in Advt. No.1/2013 Post Code No.7/2013. Her application for Post Code No.7/2013 was rejected on the ground of not having the requisite qualification, as on the closing date. The common examination for both the Post Codes No. 109/2012 and 7/2013 was held on 28.12.2014. The petitioner had appeared in the examination held on 28.12.2014 on the strength of the admit card issued in respect of Advt. No.2/2012. When the results were declared, the petitioner did not meet the cut-off marks in respect of posts advertised vide Advt. No.2/2012 (Code No.109/2012). However, she had secured more than the cut-off marks in respect of posts advertised vide Advt. No.1/2013 (Post Code No.7/2013).
7. Since the stand of the respondents was that she did not have the requisite qualification - as on the closing date in respect of the subsequent advertisement, viz. Advt. No.1/2013 - because of which she was not selected against one of the vacancies advertised vide Advt. No.1/2013, she preferred the aforesaid Original Application before the Tribunal. The W.P.(C.) No.3460/2017 Page 3 of 11 Tribunal held that the rejection of the petitioner's candidature in respect of Post Code No.7/2013 was improper. The relevant observations made by the Tribunal in its decision, qua the petitioner, read as follows:
"26. The facts of these two instant cases before us are even more peculiar. Column-13 of the OMR sheets nowhere prescribes that all the 8 bubbles had to be filled up, since all the bubbles have been required to be filled up as a complete requirement, when the essential educational qualification could have been taken as satisfied by filling up only the relevant bubbles alone.
27. We, therefore, find merit in the argument of the applicants of these two OAs, which has gone un-rebutted by the respondents, that there was indeed a mistake in the manner in which Column-13 of the OMR sheets were framed, and read by the Scanner.
28. One more aspect of these cases is that when the respondents had combined the examination in respect of 2012 and 2013 advertisements together, and the applicants could have applied against only one of the two Post Codes, either the Post Code in the year 2012 advertisement, or the Post Code in the year 2013 advertisement, it has so happened that both these applicants had filled up and downloaded the OMR sheets by logging in 2012 ID, and have then mistakenly filled up in Column-11 the Post Code relevant for the Post Code of 2013 advertisement. It appears to us that the OMR sheets, as presently prepared by the respondents, do not have proper columns for sufficient information to be provided by the applicants in such cases where separate applications have been filled up in respect of the two years, and the two Post Codes, and it is the respondents who had then later on decided in respect of the examination in respect of those two Post Codes in two different years to be held together. This is one more reason why the applicants are entitled to reliefs as prayed for by them.W.P.(C.) No.3460/2017 Page 4 of 11
29. Therefore, agreeing with the judgment of the Coordinate Bench in OA No. 1966/2013 and six other connected cases Ms. Deepika and Anr. vs. Govt. of NCT of Delhi (supra), and in particular Para-18 thereof, and relying upon the very same judgment of Union Public Service Commission vs. Gyan Prakash Srivastava (supra), which was relied upon by the Coordinate Bench, we have also come to the conclusion that the Column-13 of the OMR sheet in respect of essential qualification of the applicants was framed in such a manner that it could have been filled by different candidates in different manner, and did not require all the bubbles to be filled up and marked, and the only objections to the candidature of the two applicants before us, as seen from the legend associated with the rejection of their application, as reproduced above, has been in respect of their having filled up Column-13 of the OMR sheets wrongly. Therefore, because of the faulty design of the said Column No.13, and incorrect instructions regarding the manner it was to be filled up, the action of the respondents in rejecting the applicants' OMR sheets only on the ground of wrong filling up of that Col. No.13 is set aside.
30. Therefore, both the OAs are partly allowed, and the respondents are directed to call the applicants of these two OAs for verification of their documents to verify their actual qualifications as possessed by them as on the last date for filling up of the application forms for the years 2012, as well as 2013, and to consider their candidature, and if their qualifications are found to be fulfilled as on the last date of receipt of those applications, as per the Notifications issued for the respective years 2012 & 2013, by the abovementioned Advertisements, to allow their candidature for the relevant posts.
31. However, since the examination was conducted on 28.12.2014, and the results of the same may have been declared, and the selected candidates may have even joined, who were not parties before us in these two OAs, it is hereby made clear that if, and when, the applicants of these two OAs W.P.(C.) No.3460/2017 Page 5 of 11 are found to be eligible candidates in the respective years, or are permitted to appear at any supplementary or subsequent examination, for the same/similar Post Codes, no benefit in respect of the period already elapsed till now will accrue to these two applicants, and that their candidature will be considered to have been only notionally allowed for appearance at the examination held on 28.12.2014."
8. The order passed by the Tribunal was accepted by the respondents and had attained finality. Despite that being the position, the respondents did not comply with the directions issued in the said order and on 07.10.2016 passed the order, inter alia, stating that:
"10. ... ... ... the DSSSB is of the considered view that at this stage when recruitment process has already been completed, the candidature of the 18 candidates mentioned in para-5 above for Post Codes mentioned against each name cannot be considered without valid admit cards, as they are to be treated to have not appeared for the examination relevant to the Post Code. The rejection of the request of these candidates is, therefore, ordered accordingly.
11. This issues with the approval of Competent Authority and in compliance of the directions of Hon'ble CAT."
9. Pertinently, there was no direction issued by the Tribunal requiring the respondent to reconsider the matter at its own end. Despite a clear direction issued by the Tribunal, the respondent, in defiance of the order of the Tribunal, passed the aforesaid order.
10. The aforesaid order dated 07.10.2016 led the petitioner to prefer C.P. No.548/2016 before the Tribunal. This contempt petition was taken up before the Tribunal on 20.02.2017, when the Tribunal expressed its prima-
W.P.(C.) No.3460/2017 Page 6 of 11facie opinion that the speaking order dated 07.10.2016 was in contempt of Court. The respondents withdrew the said speaking order dated 07.10.2016 with liberty to pass a fresh one. Consequently, the respondents were granted one month's time to comply with the order of the Tribunal.
11. The respondents then passed the order dated 21.03.2017. Once again, the stand taken by the respondents in this order was as follows:
"20. Keeping in view all the aforesaid facts and circumstances and order dated 12/08/2016 in a similar O.A. no. 4572/2014 titled as Devender Yadav & Ors. Vs. DSSSB & Ors of Hon'ble Tribunal, it has been decided that although the candidate viz. Ms. Pushpa Devi fulfils the qualifications of the posts as prescribed in the RRs, yet she can't be considered as a valid candidates for the Post Codes for which she is claiming the benefits for the reasons recorded in the preceding paragraphs. The case of Ms. Pushpa Devi is accordingly disposed off.
21. This issues with the approval of Competent Authority and in compliance of the directions of Hon'ble CAT."
12. Pertinently, in this order the respondents acknowledged that the petitioner satisfied the conditions of the post as described in the Recruitment Rules. Yet, her candidature was not considered on the same grounds, which had been rejected by the Tribunal, as taken note of by us hereinabove.
13. This order of the respondents dated 21.03.2017 was again brought to the notice of the Tribunal. On this occasion, the Tribunal dismissed the contempt petition by holding that the respondents had complied with the order of the Tribunal passed in the Original Application. Pertinently, in the impugned order, the Tribunal takes note of the fact that the petitioner fulfils W.P.(C.) No.3460/2017 Page 7 of 11 the qualifications for the post in question, namely TGT-Hindi as prescribed in the Recruitment Rules, yet, it held that she could not be considered as a valid candidate for the said post. The reasoning given by the Tribunal in the impugned order passed by the Tribunal, inter alia, reads as follows:
"7. In OA No.203 of 2015, the relief sought by the applicant was as follows:
"In the premises aforesaid, it is most respectfully prayed that this Hon'ble Tribunal may be pleased to direct the respondent to include the name of applicant in the list of eligible candidates released/uploaded on website of respondent no.1 for examination for the post TGT Sanskrit Male (Post Code No.14/13) already held on 28.12.2014 and consider the candidature of applicant for the post code 14/13 under advertisement no.01/13 besides post 116/12 under advertisement no.02/12 and any other or further order/relief which this Hon'ble tribunal may deem just and proper in favour of the applicant in the facts and circumstances of the case."
Though the applicant's grievance was that her candidature for Post Code 14/13 was illegally and arbitrarily rejected by the respondent-DSSSB, yet she did not specifically seek the relief of quashing of the decision of the respondent-DSSSB rejecting her candidature for Post Code 14/13, vide 'Rejection List of Post Code 14/13'. It is also noticed that after the recruitment examination was held on 28.12.2014, she filed the O.A. Therefore, the DSSSB's decision rejecting the applicant's candidature for Post Code 14/13 was not interfered with and the relief specifically sought for by the applicant in the O.A. was also not granted by the Tribunal, vide its order dated 18.1.2016(ibid), while issuing the direction to the respondent DSSSB to call the applicant for verification of her documents W.P.(C.) No.3460/2017 Page 8 of 11 and to consider her candidature, if her 'qualifications are found to be fulfilled as on the last date of receipt of applications, as per the Notifications issued for the respective years 2012 & 2013'. When the recruitment examination had already been held, when the result of the candidates who had appeared in the recruitment examination for the Post Code in question had already been published, when the merit list of those candidates had already been prepared, and when the recruitment process had already been closed by the respondent- DSSSB, there was at all no scope to consider the candidature of the applicant for the Post Code in question, although the respondent-DSSSB, after re-verifying the applicant's documents in compliance with the Tribunal's direction, found her eligible for the Post Code in question. Therefore, the respondent-contemnors cannot be said to have willfully disobeyed the Tribunal's order dated 18.1.2016(ibid). Considering the totality of the facts and circumstances of the case, and the nature of direction issued by the Tribunal to the respondent-contemnors, we have no hesitation in holding that the Tribunal's order dated 18.1.2016(ibid) has been substantially complied with by the respondent-contemnors, and that no case of contempt of the Tribunal is made out by the applicant-petitioner. It is trite law that contempt jurisdiction is to be exercised sparingly and in very deserving cases only and not casually. Such a power is not intended to be exercised as a matter of course."
14. The submission of Mr. Tandon is that when the Original Application preferred by the petitioner had been allowed and the rejection of the petitioner's candidature in respect the posts advertised vide Advt. No.1/2013- Post Code No.7/2013 had been set aside, it was not open to the respondents to act stubbornly and pass speaking orders contrary to the order of the Tribunal. The order of the Tribunal was clear that the petitioner's candidature was to be considered for the posts advertised vide Advt.
W.P.(C.) No.3460/2017 Page 9 of 11No.1/2013 - Post Code No.7/2013. The Tribunal had not left it open to the respondent to take any further decision in the matter, and thereafter to pass a speaking order.
15. We find merit in the aforesaid submission of Mr. Tandon, and learned counsel for the respondents fairly is not in a position to defend the impugned order passed by the Tribunal, or the earlier orders passed by the respondents on 07.10.2016 and 21.03.2017. The said orders passed by the respondents are clearly in breach of the direction issued by the Tribunal in the petitioner's Original Application. Since the said order of the Tribunal had attained finality, the respondents were bound to comply with the same. The candidature of the petitioner was liable to be considered for the posts advertised vide Advt. No.1/2013 - Post Code No.7/2013.
16. Accordingly, we allow the present petition and set aside the impugned order passed by the Tribunal. The respondents are, once again, directed to appoint the petitioner in response to the said Advt. No.1/2013 - Post Code No.7/2013. We have already hereinabove taken note of the position that there are ample posts vacant as on date. The petitioner shall be entitled to notional seniority from the date when the last candidate was appointed in response to the Advt. No.1/2013 - Post Code No.7/2013, and her pay shall be fixed accordingly. Since she has not worked in the said post, she would not be entitled to any back wages or arrears.
17. This direction issued above should positively be complied within six weeks from today.
W.P.(C.) No.3460/2017 Page 10 of 1118. The petition stands disposed of in the aforesaid terms.
VIPIN SANGHI, J.
DEEPA SHARMA, J.
NOVEMBER 17, 2017 B.S. Rohella W.P.(C.) No.3460/2017 Page 11 of 11