Central Administrative Tribunal - Delhi
Mrs. Pratibha Saxena vs Govt. Of Nct & Ors. Through on 29 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A 3141/2011
ORDER RESERVED ON: 27.03.2012
ORDER PRONOUNCED ON:29.3.2012
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
Mrs. Pratibha Saxena,
W/o Sh. Manu Saxena,
R/o House No. 2232-C,
Raja Park,
Near Rani Bagh,
New Delhi-110034. Applicant.
(By Advocate Shri Sourabh Ahuja)
Versus
Govt. of NCT & Ors. through
1. The Chief Secretary
Govt. of NCT of Delhi
New Secretariat
I.P. Estate, New Delhi.
2. The Director,
Directorate of Education,
Govt. of NCT of Delhi,
Old Secretariat,
New Delhi.
3. The Deputy Director of Education,
Govt. of NCT of Delhi,
District North-West-B,
Pitam Pura, New Delhi.
4. The Secretary,
DSSSB,
Institutional Area,
Karkardooma, Delhi.
5. Lt. Governor of Delhi,
Raj Bhawan, Shamnath Marg,
New Delhi. Respondents.
(By Advocate Mrs. P.K. Gupta)
ORDER
The brief facts are that applicant was appointed as TGT (Sanskrit) vide order dated 19.6.2009 after being duly selected by Delhi Subordinate Services Selection Board (hereinafter referred to as DSSSB). After one year, she was given show cause notice dated 10.9.2010 (page 19) to explain why her services should not be terminated on the ground that during verification of documents, it was found that she was awarded B.Ed marks on 2.7.2008 and B.Ed. degree on 22.12.2008 whereas the cut-off date was 29.10.2007 as decided by the DSSSB. It was further mentioned in the show cause notice that as per Column No.11 of the offer of appointment issued by the Assistant Director of Education on 23.2.2009, it clarified that if at any stage it is found that any information/declaration and submission given by the candidate is false and any information has been concealed/misrepresented, the appointment will be terminated and he/she will be proceeded in the manner deemed fit.
2. It is submitted by the applicant that she gave her reply to the show cause notice denying the allegation of misleading the DSSSB by stating that in Column 16 (a) she had specifically mentioned that she is doing B.Ed., therefore, it cannot be stated that she had misled the DSSSB nor can it be stated that she had given any false information/declaration. She had further stated that she had already completed her Ph.D on 28.3.2007 and National Eligibility Test (NET) in the year 1999 as well as in the year 2000. Moreover, her result of Class-Xth in a resettlement colony like Anandvas was 100% in the session 2009-10. She had thus prayed that a lenient view may be taken in the matter and show cause notice may be withdrawn (page 66). The department, however, terminated the services of the applicant by using the expressions that she had misled the department or had misrepresented the facts, which according to the counsel for the applicant amounts to stigma and as such makes the order punitive in nature, as such her services could not have been terminated without holding a proper enquiry. In order to substantiate this contention, counsel for the applicant had placed reliance on the judgment of Honble Supreme Court in the case of Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Others reported in JT 1989 (1) SC 396.
3. Counsel for the applicant strenuously argued that applicant would have no objection if her services are terminated simplicitor by resorting to Rule 5 of the CCS (Temporary Service) Rules, 1965, therefore, the impugned order may be quashed and respondents be directed to pass a fresh order.
4. Counsel for the respondents, on the other hand, submitted that though in the show cause notice, reference was made to Column 11 of offer of appointment that if at any stage it is found that any information/declaration and submission given by the candidate is false and any information has been concealed/misrepresented, the appointment will be terminated. But while issuing the final order the only ground on which applicants services were terminated was that she did not fulfill the educational qualification of B.Ed. as on the cut-off date, i.e., 29.10.2007. She was thus not eligible for the post of TGT. She thus submitted it cannot be termed as a punitive order nor it can be stated that this order attaches a stigma on the applicant.
5. She further submitted that the order dated 16.8.2011 was passed because this Tribunal had observed in its order dated 20.5.2011 in OA No.3393/2010 that the respondents would consider the contentions raised by the applicant and reply to the show cause notice before passing the final order, therefore, request of the counsel for the applicant that applicant could have been terminated by issuing the order simplicitor under Rule 5 of CCS (Temporary Service) Rules, 1965 is not tenable. They have specifically stated that the DSSSB had advertised total 352 posts of TGT (Sanskrit) under Post Code 154/07 vide advertisement No.7/2007. In the advertisement in Clause (V) applicants were clearly advised to note that the educational qualification, age, experience and other conditions of eligibility as stipulated shall be determined as on the closing date of receipt of application, i.e., 29.10.2007. The applicant was not having requisite qualification of B.Ed. as on the cut-off date, i.e., 29.10.2007, therefore, no case is made out for interference. The same may accordingly be dismissed.
6. No rejoinder has been filed by the applicant.
7. The matter was argued before the Honble Members of the Division Bench. While Honble Member (J) allowed the OA with all consequential benefits including immediate reinstatement in service on the following grounds:-
(i) That the applicant has not stated in serial No. 16-A that she had already completed the B.Ed. examination as on the date of application. She has very clearly indicated that she was only doing the same. Therefore, we are of the considered view that the applicant has not made any concealment or misrepresentation regarding awarding of the B.Ed. degree to her.
(ii) Because the case is covered by the judgment dated 3.1.2012 in the case of Rakesh Kumar Sharma Vs. GNCT and Others in OA No. 3420/2010.
the Honble Member (A) distinguished the present case from the case of Rakesh Kumar Sharma by observing as follows:-
applicant therein had indicated nahi against the column whether the applicant had necessary qualification/experience before the cut off date. He had also mentioned that he had appeared in the B.Ed examination. Whereas admittedly the applicant had give a tick mark on the box yes as answer to the aforesaid question whether she had acquired essential qualification before the cut off date
8. It was held in view of above, the allegation of the respondents that they were misled by such false declaration is not without any basis. It was further held that it was clearly mentioned in the show cause notice that the applicant did not have requisite essential qualification of B.Ed. on 29.10.2007 which was the closing date. No reply was given by the applicant to this ground in her reply. Thus it is not even disputed by the applicant that she did not fulfill the educational qualification of B.Ed. on the last closing date. Reference was made to number of judgments wherein it has been held if a candidate did not have the essential qualification by the prescribed date, he/she would not be eligible for selection. In view of above, Honble Member (A) was of the opinion that there was no infirmity in the order dated 16/8/2011, therefore, the OA should be dismissed.
9. This matter has been placed before me as a Third Member in view of difference of opinion between the Members of the Division Bench in OA No. 3141/2011 as referred to above.
10. Perusal of the file shows that applicant was served with a show cause notice dated 10.9.2010 which reads as under:-
WHEREAS Ms. Pratibha Saxena was appointed as T.G.T. (Skt.) vide Order No.DE.3(33)/E-III/DR/09/16561 dated 19/06/2009 issued by Shri G.L. Meena, Addl. D.E. (Admn.), Directorate of Education, Delhi and posted & presently working in G.G.S.S. Anandvas, Delhi (School I.D. No.1411046).
WHEREAS her documents of professional qualification were got verified by this office under the directions of Asstt. Director of Education, E.III, Directorate of Education, Delhi vide their letter/order No.F.DE.3(44)/E-III/DR/10/8793 dated 14/05/2010. During the verification of documents it was found that she was awarded B.Ed. Marks sheet on 02/07/08 and B.Ed. Degree on dated 22/12/08, whereas the cut-off date was 29/10/2007 (as decided by the D.S.S.S.B.) & communicated by the A.D.E. E-III, Directorate of Education, Delhi vide letter No. .F.DE.3(44)/E-III/DR/10/10733 dated09/06/2010, which is evident that Ms. Pratibha Saxena was awarded B.Ed. Degree after crucial/cut-off date & hence was not eligible for the post as on 29.10.2007.
AND WHEREAS as per column No.11 of the offer of appointment issued by the Asstt. Director of Edn., Directorate of Edn. E.III vide No.DE-3(33)/E.III/DR/09/6278 dated 23/02/09 that if at any stage it is found that any information/declaration and submission given by the candidate is false and any information has been concealed/misrepresented, the appointment will be terminated and he/she will be liable to be proceeded against in the manner deemed fit.
NOW, therefore, Ms. Pratibha Saxena, T.G.T. (Skt.) is hereby directed to show-cause as to why her services may not be terminated in view of the reasons narrated above. Her reply should reach to the undersigned within 03 days from the receipt of this communication, failing which it will be presumed that she has nothing to say in the matter and action as deemed fit will be initiated against her.
11. Applicant gave a reply which reads as follows:-
Sub.: Reply to the Show Cause Notice No.10090 dt 10/9/10.
Sir, In response to your office Show Cause Notice No.10090 dt. 10.9.10, I am to state as under:-
That I have never concealed any fact from the Deptt. as well as from the D.S.S.S.B. in the application form for the post of TGT (Skt.). I have clearly stated that I am doing B.Ed. After verification of my application form, DSSSB very kindly issued me Roll No. etc. and allowed me to take the recruitment test. There is no fault of mine as nothing was concealed from DSSSB. After getting success in the recruitment test my documents were verified and checked by your good office. After complete satisfaction of your office, I was issued offer of appointment as TGT (Skt.). At this stage also nothing was concealed from your office & nothing wrong information was given by me.
Regarding column 11 of the offer of appointment, I may further add that at any stage from the date of application till today, I have never made any false information/declaration. So question of termination of service in my case does not arise at all as there is no concealment of facts or misrepresentation.
I may also submit to your office that right person to be appointed at the right place. Regarding my abilities, I may add that I have completed my Ph.D on 28/3/2007. I have also cleared National Eligibility Test (NET) in the year 1999 as well as in the year 2000. My class result of Class-X in a resettlement colony like Anandvas is 100% during the session 2009-10.
In the facts quoted above, I may request your honour to look into the matter leniently for further favourable action please.
Thanking you in anticipation.
12. At this stage applicant had also approached the Tribunal by filing OA No.3393/2010 challenging the show cause notice. However, the said OA was disposed of on 20.5.2011 by observing it is premature at this stage because applicant had given reply to the show cause notice, therefore, respondents were directed to consider the contentions raised by the applicant and her reply to the show cause notice and pass a final order (page 68). It is pursuant to the above directions that respondents passed order dated 16.8.2011 which reads as under:-
Whereas Mrs. Pratibha Saxena was appointed as T.G.T. (Skt.) vide Order No.DE(33)/E-III/DR/09/16561 dated 19.06.2009 issued by Shri G.L. Meena, Addl. DE (Admn.), Directorate of Education, Delhi and posted & presently working in GGSS Anandvas, Delhi.
And Whereas while filling the application form, Mrs. Pratibha Saxena had misleaded DSSSB by filling Yes in the column 16(b) which describes Do you possess the essential qualification and experience as on closing date of application.
And Whereas her documents of professional qualification were got verified by DDE (BW-B) office under the directions of Assistant Director of Education (E-III), Directorate of Education, Delhi vide order No.DE.(44)/E-III/DR/10/8793 dated 14.05.2010. During the verification of documents it was found that she was awarded B.Ed. Mark sheet on 02.07.2008 and B.Ed. Degree on 22.12.2008, whereas the cut-off date was 29.10.2007 as decided vide letter No.DE.(44)/E.III/DR/10/10733 dated 09.06.2010, which is evident that Ms. Pratibha Saxena was awarded B.Ed. degree after crucial cut-off date & hence was not eligible for the post as on 29.10.2007.
And Whereas as per column No.11 of the offer of appointment issued by the Assistant Director of Education (E-III) vide No.DE-3(33)/E.III/DR/09/6278 dated 23.02.2009 that if at any stage it is found that any information/declaration and submission given by the candidate is false and any information has been concealed/misrepresented, the appointment will be terminated and he/she will be liable to be proceeded against in the manner deemed fit.
And Whereas, Smt. Pratibha Saxena did not possess the requisite professional qualification (B.Ed.) as on cut off date i.e. 29.10.2007, hence she was not eligible for the post of TGT, thus violating the eligibility condition No.2 of Advertisement No.07/2007 of DSSSB, Nodal Office for recruitment of GNCT, Delhi.
And Whereas, as per instruction 1 of DSSSB regarding cancellation of candidature The candidates applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidate has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority.
And Whereas, a Show Cause Notice in this regard was issued to Smt. Pratibha Saxena, TGT by the undersigned vide No.10090 on 10.09.10. In her reply she had submitted that she did not conceal any fact at any time from DSSSB or Appointing Authority as she had filed in column 16(a) of application form that she was pursuing B.Ed. however it was clearly mentioned in the advertisement that applications of candidates not having the requisite qualifications as on closing date will be treated as invalid and summarily rejected.
In view of the above facts, services of Smt. Pratibha Saxena, T.G.T. (Skt.) are hereby terminated under Rule 5 of CCS (Temporary) Rules, 1965, after expiry of one month from the date of issue of this order i.e. shall stand terminated w.e.f. 15.9.2011 (A/N).
13. Perusal of above three documents would show that in the show cause notice, respondents had taken two grounds on which applicant was required to give her explanation why her services should not be terminated, namely, that she was awarded B.Ed marks sheet on 3.7.2008 and B.Ed. degree on 22.12.2008 whereas the cut-off date was 29.10.2007. She was thus not eligible on the cut-off date. Secondly, in reply to column 16 (b) where the question posed was do you possess the essential qualification on the closing date of application applicant had mentioned yes. Thus she had misled DSSSB.
14. Applicant gave reply to the show cause notice wherein she did not even dispute the first point that she was given the B.Ed. marks sheet on 2.7.2008 and B.Ed degree on 22.12.2008 whereas the cut-off date was 29.10.2007 which clearly demonstrates that she did not have the basic qualification of B.Ed. for the post of TGT (Sanskrit) on the cut-off date. She, however, disputed the allegation that she had misled the DSSSB with regard to her educational qualification of B.Ed. by stating she had specifically mentioned in the application form that she was doing B.Ed. in reply to column 16 (a).
15. It is relevant to note that after considering her reply, ultimately the services of applicant were terminated under Rule 5 of CCS (Temporary Service) Rules, 1965 vide order dated 16.8.2011 after expiry of one month from the date of issue of the order only on one ground that she did not possess the requisite educational qualification of (B.Ed.) on cut-off date. i.e. 29.10.2007 hence she was not eligible for the post of TGT. Though in para 2 of the above order it was mentioned that the applicant had misled DSSSB by filling Yes in Column 16 (b) but that was only by way of narration of facts as mentioned in the show cause notice. In fact, it was specifically noted in the last but one para in the order dated 16.8.2011 in that her reply she had submitted that she did not conceal any fact at any time from DSSSB or appointing authority as she had filled in column 16 (a) of application form that she was pursuing B.Ed., therefore, by no stretch of imagination, it can be stated that the order is stigmatic or punitive in nature.
16. In view of above, reliance placed by the applicant on the judgment in the case of Dipti Prakash Banerjee ( Supra) is misplaced.
17. I would also agree with Honble Member (A) that this case would not be covered by Rakesh Kumar Sharmas judgment because in that case the only point discussed was about concealment of fact which was not found correct because the applicant therein had specifically stated No against Column 16 (b) and pursuing B.Ed. in Column 16 (a). It was thus observed that it cannot be stated that the applicant that the applicant had concealed any fact. The question that the applicant had not acquired requisite qualification before the cut-off date neither seemed to have been raised nor was discussed whereas in the instant case applicants services have been terminated on the ground that she did not possess the requisite qualification on the last cut-off date.
18. As far as acquiring essential qualification as on the cut-off date is concerned, the law is well settled by Honble Supreme Court in catena of judgments that a person who does not have requisite qualification on the cut-off date would not be eligible. In Rekha Chaturvedi Vs. University of Rajasthan reported in 1993 Supp. (3) SCC 168 it was held by the Honble Supreme Court as follows:-
10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus, swelling the number of applications. But a still worse consequence may follow, in that, it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/ notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny for the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the selection committee in the present case, as argued by Sh.Manoj Swarup took into consideration the requisite qualification as on the date of selection rather than on the last date of preferring application, it acted with patent illegality, and on this ground itself, the selections in question are liable to be quashed.
19. In Ashok Kumar Sonkar Vs. Union of India & Ors. reported in 2007 (4) SCC 54, the above view was reiterated by the Honble Supreme Court by holding as under:
The question which arose for consideration was as to what should be the cut-off date by reference to which the eligibility requirement relating to educational qualification must be determined in the absence of any date specified in this behalf either in the advertisement or in the reference.
Held:
Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by the Supreme Court would be the last date for filing the application.
Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible for the post in question.
20. The reason for holding that a person must have the educational qualification as on the last date of calling the applications is adequately explained in Rekha Chaturvedis case. The law is thus settled that unless a person possess requisite qualification on the last cut-off date, he/she would not be eligible for the post.
21. If in above backdrop, the facts of the present case are seen, we find that in the show cause notice respondents had specifically stated that the applicant did not possess the B.Ed. degree on the last cut-off date, i.e., 29.10.2007 which fact was not even disputed by the applicant either in the reply or in the present OA. It could thus safely be concluded that she was not having the basic requisite qualification of B.Ed. on the closing date. Since she did not have the basic educational qualification, naturally she was not eligible as such could not have been continued in service.
22. Counsel for the applicant strenuously argued that the impugned order may be quashed and respondents be directed to pass order of termination simplicitor. It is not possible at this stage because when applicant had approached this court earlier for challenging the show cause notice by filing the OA No. 3393/2010, it was disposed of on 20.05.2011 by directing the respondents to consider the contentions of the applicant and pass order, therefore, the respondents have narrated the fact and the reply filed by the applicant. It is, however, clarified that the termination of the applicant was not on the basis of any misrepresentation or concealment because the only ground on which applicant has been terminated is that she did not have the requisite qualification as on the closing date. In view of above I would agree with the opinion given by Honble Member (A) that there was no infirmity in the order of termination. The OA is accordingly dismissed. No costs.
(Mrs. Meera Chhibber) Member (J) Rakesh