Central Administrative Tribunal - Delhi
Sachin Gupta vs Govt. Of Nct Of Delhi on 11 August, 2011
Central Administrative Tribunal Principal Bench OA No.77/2009 New Delhi, this the 11th day of August, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Sachin Gupta S/o Sh. Brij Kishore Gupta R/o B-438, Gali No.20, Bhajanpura, Delhi. Applicant. (By Advocate : Shri Ajay Kumar) Versus 1. Govt. of NCT of Delhi Through Chief Secretary Delhi Secretariat, I. P. Estate, Player Buildings, Delhi 110 002. 2. Director Directorate of Education Old Secretariat, Delhi. 3. Delhi Subordinate Services Selection Board, Through its Secretary U.T.C.S. Building, KKD, Delhi. Respondents. (By Advocate : Ms. Harvinder Oberoi) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
By this Original Application, the Applicant is seeking directions of this Tribunal to the Respondent No.1 & 2 for selecting the Applicant for the post of TGT (Social Science) in the Government of NCT of Delhi. It is the case of the Applicant that he applied for the post of TGT (Social Science) and appeared for the same. Having been successful, the Applicant was given letter of appointment dated 25.05.2010 (Annexure-A1) by the Respondent No.2 but till the date of filing the OA he has not been favoured with appointment. Informally he has been informed that proposal for appointment is under process but as the Applicant did not study Economics in all the three years of the Graduation and has got the Degree in B.Com (Hons) with 3 papers of Economics in 2nd and 3rd year, he would not be entitled to the post of TGT (Social Science). It is further the case of the Applicant that he had cleared 3 papers of Economics and the same were of higher standard than the 3 papers of B. Com Pass as the Applicant was B. Com (Hons) Degree holder. It is averred that non selection of the Applicant despite the fact that he is the successful candidate, having fulfilled all eligibility conditions, non issue of the appointment letter should be termed as arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. In this background, he has sought the relief to set aside the oral decision of the Respondent No.1 & 2 for non selection of the Applicant and to direct the Respondent No.1 & 2 to select him and issue offer of appointment to the post of TGT (Social Science) immediately.
2. Shri Ajay Kumar, learned Counsel for the Applicant would contend that the Applicant successfully cleared the TGT (Social Science) examination, the result of which was declared on 31.03.2010. He was issued appointment letter on 25.05.2010 but thereafter the Applicant was not allowed to be appointed as the only ground taken by the Respondents is that he had not studied Economics in all the 3 years of B.Com (Hons) Degree course. He would contend that the Applicant had passed all the 3 papers of Economics in 2nd & 3rd year of his B.Com (Hons) course. It is further submitted that the Applicant passed his B.Com (Hons) from University of Delhi and at that time the University policy was that in B. Com (Hons), 3 papers of Economics used to be taught only in 2nd & 3rd year, but the said policy was changed and 3 papers of Economics were equally divided in 3 years of Graduation i.e. each paper in each year. His contention is that the Applicant having completed all the 3 papers of Economics in 2 years he was in a better footing than others. He, therefore, submits that the OA should be allowed and the Respondents should be directed to appoint the Applicant in the post of TGT (Social Science) in the Government of NCT of Delhi.
3. Ms. Harvinder Oberoi, learned Counsel representing the Respondents would contend that the DSSSB was the recruiting agency for the post of TGT (Social Science). The Recruitment Rules for the post of TGT (Social Science) envisage that a Bachelors Degree (Hons/Pass) or equivalent from a recognized University having secured 45% marks in aggregate in two subjects of which at least one out of the following should have been at the elective level (English, Maths, Natural/Physical Science and Social Science). It is stated that for TGT (Social Science), Economics is one of the subjects which the Applicant possess in his B.Com (Hons) Degree. She would submit that the word elective was clarified by the Corrigendum dated 14.03.2000 to indicate that candidate should have studied the subject concerned as mentioned in the Recruitment Rules of at least 100 marks each in all parts/years of Graduation and the said elective word would also include the main subject as practiced in different Universities. Her contention is that the Applicant studied Economics as a main subject during the year-2 and year-3 of his Graduation and did not study the subject Economics during the year-1 of his Graduation. Therefore, she submits that the whole issue of not studying Economics in one part of the 3 years course makes the Applicant ineligible to be considered as per the Recruitment Rules.
4. We have given our careful consideration to the above contentions raised by the parties and have perused the pleadings.
5. In a batch of OAs, this Tribunal in OA No.1054/2008 and 41 other OAs between Anil Dahiya versus Union of India & Ors. decided on 15.09.2008, this Tribunal has considered the controversy, and more specifically of the issue whether one has to study in all the 3 years of Graduation in the concerned subject or if the Applicant passed the 3 papers of the said subject within the limited period would suffice for the purpose of Applicants eligibility for the post. We find that the present case is covered in all fours of the said judgment decided by the Tribunal on 15.09.2008 in which one of us (Justice V. K. Bali, Chairman) was the author of the judgment. We reproduce below the pertinent part of the judgment for our reference:-
6. The controversy in the context of pleadings of the parties, as mentioned above, appears to be in a very narrow compass. Insofar as, the qualifications of the applicant are concerned, and in particular, that he has done graduation by appearing in the examination in each year in Hindi for marks of 100 or more and passed the same, there is no dispute. The qualifications as prescribed in the advertisement and the one mentioned in recruitment rules are also not in dispute. The only discordant view between the parties is that whereas the applicant would say that the word elective would mean that a candidate should study the subject concerned, as mentioned in recruitment rules, for at least 100 marks each in all parts/years of graduation, the respondent Board would interpret the word elective to mean Hindi as an elective subject and not as a compulsory subject. It is again not in dispute that there is no definition of elective given in recruitment rules. Insofar as, the respondent Directorate is concerned, it is admitted in the pleadings as also during the course of arguments that the word elective would mean and include all those who have passed the concerned subject in all the years/semesters of graduation, as the case may be, with at least 100 marks paper each year/semester in the concerned teaching subject, and the elective work may also include main subject as practiced in different universities.
7. Having heard the learned counsel representing the parties, we are of the view that once, there is no definition of the word elective in the rules the same can well be clarified by executive instructions. That the Cabinet had taken decision on 2.5.1997 and that a corrigendum dated 14.3.2002 clarifying that the word elective would mean and include all those who have passed the concerned subject in all the years/semesters of graduation, as the case may be, with at least 100 marks paper each year/semester in the concerned teaching subject, and the elective work may also include main subject as practiced in different universities, is not in dispute. All that is being urged by the counsel representing the respondent Board, which is in tune with the pleadings made in its counter reply, is that such a clarification should have been incorporated in the statutory recruitment rules, and till such time that is done, the word elective would mean elective and not compulsory. We do not find any merit in the contention of the learned counsel as noted above. Whether the subject concerned should be compulsory or elective in graduation is not by virtue of any definition of the word elective under statutory rules. The Board cannot by any stretch of imagination give its own meaning to the word elective, particularly when by a Cabinet decision followed by a corrigendum it has been clarified as mentioned above. We may repeat and reiterate that if the rules are silent with regard to a particular situation, same can be clarified by a Cabinet decision or even by executive instructions issued by the competent authority.
8. Similar controversy as before us has recently been subject matter of decision by a learned single bench of the Delhi High Court in the matter of Saroj Rana & Another v Government of NCT of Delhi & Others (CWP No.2576/2002 decided on 25.7.2008). The facts of the case aforesaid reveal that Director of Education required to appoint teachers in schools and the task to select teachers was entrusted to the Board (DSSSB). The Board vide advertisement dated 11.12.2000 invited applications from eligible candidates for recruitment to various teaching and related posts. The relevant qualifications were prescribed as follows:
1. Bachelors Degree (Pass/Hon) from a recognized university or Equivalent having secured at least 45% marks in aggregate in two School subjects of which at least one of the following should have been at the elective level (a) English, (b) Mathematics, (c) Social Science, (d) Physical/ Natural Science.
NOTE: Main subjects 1. TGT (Natural Science/ Physical Science) shall be Physics, Chemistry, Biology and Zoology.
2. TGT (Social Science) shall be History/ Political Science/Economics/Business Studies/ Sociology/Geography/Physiology. Petitioners before the High Court had applied for the post of TGT in respective subjects. They were issued admit cards and appeared in the written examination. Result of the written examination was declared on 9.11.2001. Petitioners were declared successful in the written examination and they thus submitted the required certificates before the Board, but they were not declared successful for appointment to the post of TGT. Aggrieved thus, they filed the writ petition inter alia pleading therein that as per policy the definition of elective in R/Rs has been framed as that the candidate should have studied the main subject concerned as mentioned in R/Rs of at least 100 marks each in all parts/years of graduation, and that even though, they answered the eligibility criteria, they were wrongly excluded from even consideration for the post under contention. The Board in its counter affidavit pleaded that the petitioners were not eligible as per recruitment rules. With regard to the issue involved in the present case, it was pleaded that the concerned petitioner (Ms. Himani Sharma) had not studied English as an elective subject in all three years of BA (Pass) course, as required under relevant rules. It was noted by the learned single Judge while dealing with the case of Himani Sharma that she had done her post graduation in English and had an extraordinary brilliant academic record with 70% marks at the level of graduation and 62% marks at the post graduation level, i.e., M.A. in subject English. After giving the qualifications of petitioner Himani Sharma, it was observed that qualification required under recruitment rules for the post of TGT (English) is that a candidate should be BA (Pass/Hons) from a recognized university with English as an elective subject. The word elective used in the recruitment rules, has been clarified by the Directorate of Education Estt. III Branch vide corrigendum dated 13.3.2000, as follows:
As per policy the definition of Elective in R/Rs has been framed as that the candidate should have studied the subject concerned as mentioned in the R/Rs of at least 100 marks each in all parts/years of graduation. The Elective word may also include main subject as practiced in different Universities. On the basis of corrigendum reproduced above, it was held by the Delhi High Court as follows:
22. In view of what has been stated by the Government of NCT of Delhi in the corrigendum dated 13.03.2000 referred above and in view of stand of respondent No. 2 in para 2 of its preliminary submission in the case of Ms.Himani Sharma, there can be no manner of doubt in holding that the petitioners in both the writ petitions namely Ms. Saroj Rana and Ms. Himani Sharma possessed the requisite qualification of B.A. (Pass/Hons) with English as one of the main subjects of study prescribed under the relevant rules for appointment to the posts of TGT (English).
23. It shall further be relevant to mention that the Director of Education has communicated to one of the candidates Mr. Kishan Chander Sharma vide its letter dated 05.03.2007 while supplying information under the Right to Information Act that as per the existing information available on records, the elective subject stands for main subject studied by the candidate at the graduation level during all the years of graduation with at least 100 marks.This communication dated 05.03.2007 by the Director of Education is admitted by the counsels who appeared on behalf of the respondent. In view of the legal position regarding the meaning to be assigned to the expression 'elective subject' used in the recruitment rules as explained hereinabove, the judgment of this Court in Pratap Singh Chaudhary Vs. Government of NCT of Delhi and Others in WP(C) No. 1954/2002 decided on 30.05.2002 is not applicable to the facts and circumstances of the present case. The answer to the main question was given by observing as follows:
The answer to the question whether the main subject of English studied by the petitioners in all the three years of their B.A. (Pass) course would fit in the description of elective subject used in the R/Rs lies in the corrigendum dated 13.03.2000 extracted in para 20 of the judgment hereinabove. The corrigendum dated 13.03.2000 clearly provides that as per the policy of the department 'elective subject' specified in the recruitment rules would be interpreted so as to include passing of the concerned subject by the candidate in all the years/ semesters of graduation with at least 100 marks paper each year/semester in the concerned teaching subject as the case may be. In the present case, the petitioners were to be recommended by respondent No. 2 for their appointment as TGT (English). In the present case, both the petitioners namely Ms. Saroj Rana and Ms. Himani Sharma have studied English as main subject in all the three years of their graduation and have passed the paper in English Subject in all the three years carrying 100 marks each. This meets the requirement of the recruitment rules prescribed for appointment to the post of TGT (English). The only difference in the cases before us and the one before the Delhi High Court is that whereas applicants herein are seeking appointment as TGT in Hindi, the petitioners, namely, Saroj Rana and Himani Sharma, before the High Court were seeking appointment as TGT in English, and further that, whereas, petitioner before the Delhi High Court placed reliance upon corrigendum dated 13.3.2000, the applicants herein are placing reliance upon Cabinet decision No.242 dated 2.5.1997 and corrigendum dated 14.3.2002. In the two corrigenda dated 13.3.2000 and 14.3.2002, however, there is no difference in substance.
9. During the course of arguments, whereas counsel representing the Directorate of Education would concede that the matter is squarely covered by the decision of Delhi High Court in Saroj Rana (supra), Shri Vijay Pandita, learned counsel representing the respondent DSSSB, even though not denying that the issue before this Tribunal is same as was before the Honble High Court, would, however, contend that the High court had no jurisdiction to deal with the matter as this Tribunal alone has exclusive original jurisdiction to deal with the matter. He would also contend that unless there is an amendment in the recruitment rules so as to specifically say that elective subject would mean that all those who have passed the concerned subject in all the years/semesters of graduation, as the case may be, with at least 100 marks paper each year/semester in the concerned teaching subject, and the elective work may also include main subject as practiced in different universities, the respondent DSSSB was well within its right to reject all such applications where candidates have not studied Hindi as an elective subject. We do not want to go into the first question raised by the learned counsel with regard to jurisdiction of the High Court. Suffice it to say that there is no bar on this Tribunal to take the same view as has indeed been taken by the learned single Judge of the Delhi High Court. The reasons recorded for arriving at the conclusion as extracted above, are convincing and need to be followed. Independently, also we are of the same view that has been taken by the High Court in Saroj Rana (supra). Additionally, we may mention again that if the rules may not take care of a particular situation, the same can be well supplemented by clarifications, even by executive instructions, and there would be no need to amend the rules. Further, the stand of the respondents that the subject concerned must be an elective subject in graduation and not compulsory, is neither forthcoming from rules nor from any instructions. Still further, the respondents would not clarify the difference between the mode of study and taking of examination for elective and compulsory subject. Looked from any angle, the applicants would be eligible for the post under contention.
10. In view of the discussion made above, we direct the respondent DSSSB to declare the result of the applicants and offer them appointment to the post for which they applied, if they may otherwise find place in merit commensurate to the available seats in their respective categories. The costs of the litigation are, however, made easy.
6. In view of the above judgment of this Tribunal, we find that there is only subtle difference in the present OA. Applicant here has cleared 300 marks in Economics in 2 years instead of 3 years. There is no doubt that he wrote examination of 300 marks in 2 years instead of 3 years i.e. 100 in the 2nd year and 200 marks in the 3rd year. There is no dispute that he has Economics as a subject in the B.Com (Hons) Degree. We, therefore, opine that as he has cleared not only the examination meant for the TGT (Social Science) but is eligible as he has cleared all the 3 papers of Economics in 2 years of his B.Com (Hons) Degree. It is not necessary that he has to study and clear in each year one paper of Economics so that he would clear 3 papers in the entire Graduation course but he is bound by the Rules of the University which prescribes how to pass the subject. It is noted that the University of Delhi had B.Com (Hons) Degree with 3 papers of Economics to be cleared only in the 2nd and 3rd year of Graduation programme. That was the course then which underwent changes later on. In our considered opinion, the Applicant is eligible as per the Recruitment Rules. Therefore, he is entitled to be appointed for the post of TGT (Social Science).
7. In terms of our above directions, the Original Application succeeds. The Respondents are directed to implement the above orders and directions within a period of six weeks from the date of receipt of certified copy of this order by offering him the post of TGT (Social Science) if he is eligible in other aspects. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/