Central Administrative Tribunal - Delhi
Mr. Rinku Kumar vs The Commissioner Of Police on 7 March, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.597/2014 Order reserved on 5th day of March 2014 Order pronounced on 7th day of March 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) 1. Mr. Rinku Kumar Aged Around 22 years, S/o Mr. Jagat Singh R/o Village, P.O. Kheri Gautam Budh Nagar, Uttar Pradesh Pin 203207 2. Mr. Umesh Aged around 24 years S/o Hari Singh R/o Village, P.O. Acchaja Gautam Budh Nagar, Uttar Pradesh PIN- 203207 3. Mr. Yogesh Kumar Aged around 22 years S/o Sh. Chandra Pal Bhati Village Nizampur P.O. Sikandrabad Distt. Bulandshar, Uttar Pradesh Pin. 203205 4. Vaseem Khan Aged around 22 years S/o Ummed Ali R/o Village, P.O. Rozayukub Pur Gautam Budh Nagar, Uttar Pradesh Pin. 201309 5. Mr. Raj Kumar Aged around 25 years S/o Ricnh pal Singh R/o Village, P.O. Kheri Garutam Budh Nagar, Uttar Pradesh Pin-203207 6. Mr. Gaurav Kumar Aged around 19 years S/o Jiley Singh R/o Village P.O. Kheri Gautam Budh Nagar, Uttar Pradesh Pin-203207 7. Mr. Sunil Kumar Aged around 24 years S/o Krishan Kumar R/o E-270, Gali No. 09 Shastri Park Delhi-110053 8. Mr. Sonu Sharma Aged around 24 years S/o Krishan R/o E-270, Gali No. 09 Shastri Park Delhi-1100563 9. Mr. Kapil Aged around 21 years S/o Satyabir Singh R/o A-43 Shanti Nagar Shiv Vihar Karawal Nagar Delhi-110094 10. Naeim Ahamad Aged around 20 years S/o Gufran Ali r/o Village P.O. Thsene Distt, Hupur Uttar Pradesh Pin-245205 11. Mr. Neeraj Nagar S/o Ganchand Nagar R/o Village Navada Post Dankaur Gautam Budh Nagar, Uttar Pradesh 12. Mr. Deepak Sharma Aged around 20 years S/o Radha Charan Sharma Village P.O Salempur Gurjar Gautam Budh Nagar, Uttar Pradesh Pin- 203202 13. Mr. Sumit Kumar S/o Brajpal Singh R/o Village Vinaypur Post Rataul Distt. Bagpat Uttar Pradesh Pin-250101 .. Applicants (By Advocate: Mr. Harpreet Singh) Versus 1. The Commissioner of Police Police Headquarters MSO Building, ITO New Delhi-2 2. The Deputy Commissioner of Police (Establishment), Delhi MSO Building, ITO, New Delhi-2 ..Respondents (By Advocate: Mr. Amit Anand) O R D E R
Mr. A.K. Bhardwaj:
An Advertisement to fill up 1045 vacancies (un-reserved-523, OBC-284, SC-159 and ST-79) for the post of Temporary Constable (Executive) Male in Delhi Police was published in the leading Newspaper dated 8.1.2013 and in the Employment News dated 26th January 1st February 2013. In response to the said Advertisement, applicant No.1 submitted his online application dated 29.1.2013 vide Registration No.204381, applicant No.2 vide Registration No.202716 dated 29.1.2013, applicant No.3 vide Registration No.213116 dated 1.2.2013, applicant No.4 vide Registration No.210900 dated 29.1.2013, applicant No.5 vide Registration No.205522 dated 30.1.2013, applicant No.6 vide Registration No.292976 dated 14.2.2013, applicant No.7 vide Registration No.204406 dated 29.1.2013, applicant No.8 vide Registration No.242486 dated 7.2.2013, applicant No.9 vide Registration No.271604 dated 11.2.2013, applicant No.10 vide Registration No.390770 dated 27.2.2013, applicant No.11 vide Registration No.390788 dated 26.2.2014, applicant No.12 vide Registration No.213291 dated 1.2.2013 and applicant No.13 vide Registration No.221134 dated 2.2.2013. However, applicant Nos.1, 2, 3, 4, 5, 6, 7, 8 and 13 could not be issued admit cards to participate in the Physical Endurance & Measurement Test (PE&MT) for the reason that the respondents had not received the printouts of their application forms along with fee of Rs.100/- and SC certificates in cases of applicant Nos. 2 & 5. The candidature of applicant Nos.9, 10, 11 and 12 could be rejected on the grounds:
9. Kapil s/o Satyabir Singh, R/o A-43, Shastri Nagar, Shiv Vihar Karawal Nagar 271604 Application form rejected due to incomplete form (Signature not Done)
10. Naiem Ahmad s/o Gufran Ali R/o Vill + Post Tshene, Tehsil Garmuketswar, Distt. Hapur, UP 390770 He filed up two forms with different particulars/ bio-data. PE&MT for both forms held on same held on same day, i.e., 24.10.2013. He appeared against one application form & declared disqualified in race event while in another he was marked as absent.
11. Neeraj Nagar S/o Gyan Chand Nagar R/o Vill + Navada, Post Dankaur, Distt. G.B. Nagar, UP 390788 He filled up two forms with different particulars/bio-data. PE&MT in respect of one form was held on 11.10.2013 and as per record he failed to qualify in the Long Jump Event. The 2nd application was rejected.
12. Deepak Sharma S/o Radha charan Sharma R/o Vill + Post Salempur Gujrat, Distt. G.B. Nagar, U.P. 213291 His PE&MT was scheduled to be held on 23.10.2013 but he neither received his admit card through post nor failed to download the same from Internet, as such not participated in the PE&MT events.
2. We heard the learned counsels for the parties and perused the records.
3. Applicant No.12 could not receive the admit card before the scheduled date of the examination. As far as applicant Nos. 9, 10 and 11 are concerned, Mr. Harpreet Singh, learned counsel for applicants did not press the Original Application on their behalf, thus the same is accordingly dismissed qua the said applicants.
4. As far as applicant Nos. 1 to 8 and 13 are concerned, the issue raised in the present Original Application is squarely by the decision of this Tribunal in Tarun & others v. The Commissioner of Police & another (O.A. No.1293/2012) decided on 2.5.2012 wherein one of us [Honble Mr. Sudhir Kumar, Member (A)] was a Member. For easy reference, relevant excerpt of the said order is extracted hereinbelow:-
3. The applicants had applied through online mode, and after successful submission of their applications on-line, through the Delhi Police Website, they were accorded online registration numbers as follows:-
Applicant No.1 - Tarun 1320494330 dated 5.11.2011 Applicant No.2 - Sunil Kumar 1320495106 dated 5.11.2011 Bainsla Applicant No.3 - Mukesh Kumar 1320893413 dated 9.11.2011 Applicant No.4 - Vinod Kumar 1321323979 dated 14.11.2011 Applicant No.5 - Prinas Kumar 1321345688 dated 9.11.2011
4. Thereafter, in compliance with the requirements of Para 10 (i) to (v) in respect of the applicants, after applying on-line, they also sent hard copies of their respective application forms completed in all respects i.e. after having taken print out of the application forms as filled up on-line, with photographs and signatures being affixed, through ordinary post, to Post Box No. 8020, Delhi-110033. Three out of the five applicants were not required to submit any Demand draft. The other two submitted the requisite Demand drafts also. Thus, it may be seen that the applicants have taken all the steps as were prescribed to be necessarily required to be taken by them to apply for the recruitment in terms of the respondents advertisement.
5. However, the applicants were not issued admit cards, whereupon they visited the respondents office, and pursued the matter, and finally made written representations also on 9.4.2012, while the prescribed Physical Endurance & Measurement Test (PE&MT) was under progress. The respondents are, however, stated to have rejected the applicants representations on the ground that the hard copies of their on-line applications were not received in the Recruitment Cell, NPL, Delhi and, therefore, they were not issued admit cards for appearing in PE&MT held from 24.2.2012 and 14.4.2012.
6. Feeling aggrieved, they have filed this joint Application, seeking direction to the respondents for considering their applications. Interim relief has also been sought for provisionally allowing them to participate in the ongoing selection process. When the application came up for consideration 26.4.2011, the applicants counsel very strongly urged for grant of interim relief as prayed for. However, it was not considered expedient to do so unless the respondents are heard in the matter. The respondents were, therefore, allowed time to make their submissions on the applicants prayer for grant of interim relief. On the next date of hearing i.e. 1.5.2012, the respondents have filed a short affidavit praying for dismissal of the application in view of the averments made therein.
7. Since the applicants have already been accorded registration numbers while applying on-line, and have already sent hard copies of their respective applications, in all fairness, they ought not to be deprived of a chance to compete in the recruitment process, for no fault on their part, as they have taken all the necessary actions expected to be taken by them in the matter. The respondents could have asked for additional copies of their on-line applications/hard copies, and corroborated the same with the website registration numbers already accorded to the applicants, and should have allowed the applicants to appear in the PE&MT, which was still going on at that time. For otherwise, the entire process of and provision for applying on-line is rendered superfluous.
8. Sections 4 and 6 of the Information Technology Act, 2000 provide for legal recognition of electronic records and their use in Government and its agencies. Section 10-A of this Act specifically provides for validity of contract through electronic means and accordingly provides that such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose. Section 12 of this Act provides for acknowledgment of receipt including in an automated manner. Section 13 of this Act provides for time and place of dispatch and receipt of electronic records. Upon careful consideration of all these provisions, it is seen that electronic records have been provided with full legal recognition, and the applications made on-line should not have been lost sight of by the respondents completely, in the absence of hard copies thereof, as has been done by the respondents, for otherwise the very purpose of on-line application is negated. In the emerging scenario of electronic transactions as envisaged in the Information Technology Act, 2000, the respondents need to take note of the deficiencies as revealed in the working of the system of on-line applications especially having regard to the fact of according registration numbers to the applications so made through automated process and take necessary remedial measures to the recurrence of situations such as the present one wherein the career of young aspirants are jeopardized for no fault of their own. Qualifying the PE&MT test is, however, the condition precedent for appearing in the Written Examination, which is stated to be scheduled for 6.5.2012.
9. In these premises, we are of the considered view that the applicants have been able to make out a prima facie case in their favour, balance of convenience also seems to lie in their favour, and irreparable harm would be caused to them, if they are denied interim relief. The three necessary ingredients or conditions for grant of interim relief having been fulfilled, we consider it expedient, in the interest of fair play and justice, to direct the respondents to arrange to provisionally conduct the PE&MT test of the applicants forthwith, and if they are found qualified, they should be allowed to appear in the written test on 06.05.2012.
10. It has inter alia been stated by the respondents in their short affidavit that if the application of the applicants is allowed, it will open a floodgate of litigations, and there may be many other similarly situated candidates who might not have been given admit cards to appear in the PE&MT due to non-receipt/non-availability of hard copies of their application forms. That by itself cannot at all be a ground sufficient to deprive the applicants of their legitimate rights, to which they are otherwise entitled to. In any case, the applicants cannot be denied of their rights only on the basis of unverified assumptions. Besides, is it open to any judicial forum to deny someone any right to which he is legitimately entitled to merely because a number of other persons may raise similar demands in future that may put a given department to inconvenience? No doubt, the courts may in appropriate cases mould the relief depending upon the facts and circumstances of a given case. Nevertheless, altogether denial of ones legitimate right is beyond the contemplation of the rule of law. It is open to the respondents to opt for availing the benefit of technological advancement such as inviting applications on-line if they so desire. Having chosen to do so, they cannot run away from its inherent implications. The respondents counsel was unable to show us as to what else the applicants could have done to avail the chance of competing in the recruitment process after having complied with all the formalities which the respondents have prescribed in the matter of recruitment. Nor the learned counsel could explain the purpose for which one would apply through on-line mode if he is necessarily required to apply off-line as well by sending hard copy of his application before his candidature could be considered by the respondents. In any case, the persons who have sought legal redressal for their grievances constitute a class by themselves vis-`-vis the persons who prefer to sleep over their rights. Failure to take timely action for redressal of ones grievance can only be at ones own peril and may provide a valid ground for denial of the right to parity in the facts and circumstances of a given case.
11. Further, in this case, it is seen that the interim relief as sought for is not much different from the final relief. After the grant of interim relief, nothing of substance remains in the Original Application to be decided subsequently. The Honble Apex Court had in the case of State of U.P. vs. Visheshwar, 1995 (Supp) (3) SCC 590, held that the granting of the final relief in the garb of or form of interim relief, without adjudication on the point and controversy on which the grant of that relief depends, is improper. In Ritona Consultancy Private Limited Vs. Lohia Jute Press, (2001) 3 (SCC) 68, the salutary principles for grant of interim relief were laid down by the Honble Apex Court by stating that any interlocutory order could be made only by way of aid to the proper adjudication of the claims and dispute arising in the dispute, and could not be made beyond the scope of the suit itself, or against the parties, who are not before it. Since in this case, the relief proposed to be granted by us, as mentioned above, is in aid of proper adjudication of the claims and dispute arising in the main OA, and since the interim relief falls within the scope of the whole OA, and since the orders are not made against any parties who are not before the Tribunal, we could have confined the relief to be only interim relief. But, since no substantial point of law would subsist or remain to be decided in the OA, if the relief as aforesaid is allowed through by way of interim relief, the OA itself would resultantly stand allowed. Accordingly, the OA is allowed in terms of the above orders and directions, at the admission stage itself. There shall be no order as to costs.
5. As far as applicant No. 12 is concerned, the issue is covered by the decision of this Tribunal in Sonvir & others v. Commissioner of Police & another (O.A. No.78/2014) decided on 28.2.2014. For easy reference, relevant excerpt of the said order is reproduced as under:-
9. As far as the rival stand of the parties is concerned, we are of the view that once in the Advertisement itself it was specifically provided that the admit cards could be downloaded from the website of the Delhi Police, the applicants should have been diligent in pursuing their candidature and ought to have availed the facility made available by the respondents regarding availability of the admit cards. We do not find sufficient substance in the submission put forth by Mr. Harpreet Singh that the applicants live in distant villages and had no access to internet facility for the simple reason that applicant Nos.5, 6 and 7 could download the admit cards when they live at Bulandsahar and Gautam Budha Nagar, Uttar Pradesh, i.e., the same place to which applicant Nos. 1 to 4 belong. Even otherwise also, an individual who sincerely pursues his candidature for a post is expected to read the Recruitment Notice / Advertisement carefully and follow the instructions mentioned therein. Besides if there was delay in communication of the admit cards to the applicants by the Postal Authorities, the applicants have a cause of action against the Postal Department. Nevertheless, in terms of Section 14 of the Administrative Tribunals Act, 1985 we need to examine not only the irregularity committed by the employer but also need to see the grievance of the individual concerned. There may be a situation that the recruiting department is not at fault but the individuals are deprived of their entitlement by the said department because of the fault or deficiency of a third party. In such a situation when fault lies with the third party but the redressal of the grievance of the individuals lies in the action of the recruiting department, it may not be just and proper to deny the individuals their legitimate due only because the recruiting department / agency, which is in a position to take remedial measure, is not at fault. Further, once the respondents assigned the job of dispatching the admit cards to outside agency and the applicants could receive the same only after the date of PE&MT, it cannot be viewed that they are completely absolved of their responsibility to ensure the communication of the admit cards to the candidates at least before the date of PE&MT.
10. In the facts and circumstances of the case when we are of the view that the applicants ought to have taken steps to download their admit cards from the website of the Delhi Police and the respondents cannot be found fully blameworthy for the delay by the Postal agency in communicating the admit cards, we cannot also ignore the fact that the denial of an opportunity to the applicants to participate in the selection process in a case where they received the admit cards after the PE&MT was over would result in failure of justice.
11. In Haobijom Rita Devi v. Sikkim Manipal University of Health, Medical & Technology Sciences & others, AIR 2007 Sikkim 6, the Honble High Court of Sikkim could take a view that even when the delay in receipt of call letter was due to Postal Department, refusal to exercise jurisdiction to issue direction for admitting the petitioners therein in the counseling would result in failure of justice. Though in the said case the Honble High Court of Sikkim could find that the applicants were not required to give email address, but it could also take a view that the internet facilities are available only to a handful. For easy reference, paragraphs 3.3, 3.6, 11 and 12 of the said judgment are extracted hereinbelow:-
3.3 Pursuant to a notification made for selection of M.B.B.S. Course in the Sikkim Manipal Institute of Medical Sciences (hereinafter referred to SMIMS) she applied for the Combined Entrance Test Examination complying with the formalities along with her Telephone Number for future communication xx xx xx xx 3.6 The Speed Post Envelope containing the Call Letter took 8 days to reach her. Naturally, therefore, she could not attend her counselling for which she cannot be faulted. This has put her academic career in serious jeopardy.
xx xx xx xx
11. It is not the case of the Respondents I that the applicants were also asked to provide their E-mail Address. The Petitioner has disclosed her Telephone Number on her application. Ours a poor country and Internet facilities arc only available to a handful. Admittedly the letter was dispatched on August 18, 2006, two days after its signing, which was received two days alter 23.8.2006, the date fixed for the personal appearance of the Petitioner for her counselling. The Peon/Postal Department was at best the agent of the Respondents and not of the Petitioner. The Petitioner was never Informed of this day earlier. We are of, thus, a firm view that the Respondents cannot penalize the Petitioner for their failure in not giving a reasonable time for her appearance on the date fixed.
12. There will be also failure of justice, if we refuse to exercise our Jurisdiction.
12. Also in Nem Chand v. The Commissioner of Police & another (O.A. No.2649/2013) decided on 18.9.2013, this Tribunal has issued the following the directions:
3. In the circumstances, respondent No.2 is directed to depute a responsible officer to verify from the concerned post office the factual position regarding delivery of the communication dated 28.06.2013 to applicant. In case the postal authorities are unable to authenticate delivery of said letter dated 11.07.2013, a separate trade test would be conducted for him. Needful shall be done within a period of 8 weeks from the date of receipt of a copy of this order. It is made clear that the participation of the applicant in the trade test would not create any right or equity in his favour. His candidature for appointment o the post in question would remain subject to other formalities required as per rules/procedure and practice, including the verification of genuineness of the driving licence.
13. Though the PE&MT is over but since the selection process is not yet over and the written examination is yet to be held, the Original Application is disposed of with direction to the respondents to allow the applicants to participate in the selection process for which written examination is scheduled on 8.3.2014, if otherwise eligible. It would be for the respondents to fix an appropriate date for PE&MT of applicants. No costs.
6. In view of the above, we dispose of the present Original Application with direction to the respondents to consider the candidature of applicant Nos.1 to 8 and 12 & 13 for the post of Temporary Constable (Executive) Male, subject to fulfillment of other required conditions, as per rules and procedure. No costs.
( A. K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/