Central Administrative Tribunal - Delhi
Deepa Shaarma vs Govt. Of Nctd on 17 March, 2020
OA No. 3442/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3442/2016
Page | 1
Reserved on: 04/03/2020
Pronounced on: 17.03.2020
Hon'ble Mr. S. N. Terdal, Member (J)
Hon'ble Mr. Mohd. Jamshed, Member (A)
Ms. Deepa Sharma,
Age 30 years,
W/o Sh. Depak Sharma,
R/o H-48, East Jawahar Nagar,
Loni Road,
Ghazibad-201001.
...Applicant
(By Advocate: Mr. R. K. Sharma)
Versus
Govt. of NCT New Delhi,
Through:-
1. The Chief Secretary,
Govt. of NCT New Delhi,
New Secretariat, IP Estate,
New Delhi.
2. The Secretary,
Delhi Subordinate Service Selection Board,
3rd Floor, UCTS Building, Vishwas Nagar,
Shahdara, New Delhi.
3. The Secretary,
Deptt. of Education,
Govt. of NCT New Delhi,
New Secretariat, I.P. Estate,
New Delhi.
...Respondents
OA No. 3442/2016
(By Advocate: Ms. Sangita Rai)
ORDER
Mohd. Jamshed, Member (A):- Page | 2 The applicant of this OA had applied for the post of Trained Graduate Teacher (TGT) (Hindi) in terms of an advertisement issued by Delhi Subordinate Services Selection Board (DSSSB) No. 02/2012, Post Code No. 109/2012. Subsequently, the respondents issued another advertisement for selection to various posts in GNCTD in the year, 2013 vide advertisement No. 01/13 including for Post Code No. 07/13 for TGT (Hindi). Common examination was scheduled against both these advertisement on 28.12.2014. The applicant was issued an e-admit card for post code No. 109/12. The applicant appeared in the common examination conducted on 28.12.2014. She secured 118.5 marks. However, she was not in the list of selected candidates whereas the minimum cut off for the Un-reserved (UR) category for the year, 2013 was 104.75 marks. OA No. 3442/2016
2. It is submitted that although the posts for TGT (Hindi) were advertised for the year 2012 and 2013 separately, the respondents Page | 3 have conducted a common examination. Post examination, the respondents issued two lists for the year, 2012 and 2013 separately and though the applicant secured 118.5 marks, was considered only for the year 2012 and was not selected against the select list of 2013, wherein the cut off was 104.75 marks. The respondents declared rejection list for the post code 07/13 against the advertisement of 2013 wherein the applicant's name figures along with others indicating that the reason for rejection is not having the requisite qualification as on the closing date. The applicant also preferred representations dated 16.03.2016 and 02.09.2016. In view of no action taken by the respondents on her representations, the present OA has been filed by the applicant, seeking the following relief(s):-
"(a) to declare the applicant as selected candidate for the post of TGT and direct the respondents to appoint the applicant against the OA No. 3442/2016 said post i.e. TGT Hindi with all consequential benefits without delay.
(b) to allow the OA with exemplary costs.
(c) To pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts Page | 4 circumstances of the case."
3. The contention of the applicant is that she was found eligible by the respondents to appear in the examination against advertisement No. 02/2012 for which she was also issued an e-admit card. However, she was not issued admit card for the examination for the year, 2013 and the marks obtained by her were not considered against the select list of the year, 2013. The applicant also submits that the result was declared by the respondents on 12.01.2016. They declared the cut off marks as 124.25 for the year, 2012 for UR category and a different cut off of 104.75 marks for UR category for the year, 2013. The applicant secured 118.5 marks and was only considered for the year, 2012 wherein she was below the cut off. She was not considered for the advertisement of 2013 for post code 07/13. OA No. 3442/2016
4. The respondents in their counter affidavit have opposed the OA and submitted that in terms of advertisement notice No. Page | 5 02/2012, DSSSB invited applications for various categories and the candidates were advised to carefully read the detailed instruction in the advertisement notice. It is submitted that the respondents also issued notice dated 24.10.2014 and subsequent notice dated 25.11.2014 through which the candidates were informed that since the Board has now switched over to OARS, the applicants who had applied for the said post codes through paper based forms were now required to get themselves registered in OARS software and to upload their photograph, signature and educational qualifications etc. for issuance of admit cards through OARS. Subsequently, the advertisement No. 01/13 was issued inviting application for filling up vacant posts of various categories and the candidates were advised to read the detailed instructions in the advertisement notice before filling up the Optical Mark Reader (OMR) strictly according OA No. 3442/2016 to the instructions. It was indicated that the application form with deficiency as mentioned in the advertisement notice will be rejected. It Page | 6 is submitted that on scrutiny of final figures of valid and invalid candidates for the Post Code No. 07/13 TGT (Hindi) it was found that only 752 were the valid candidates while 2212 were found to be invalid candidates. The application of the applicant for post code No. 07/13 was rejected for not having the requisite qualification as on the closing date as per the information provided by her on her OMR form. It is submitted that the applicant was declared ineligible for not having the requisite qualification as on closing date as she failed to bubble the relevant column in the OMR form. The applicant was issued an admit card for the post code No. 109/12 only and accordingly she was considered against for the post code No. 109/12. The common examination was conducted on 28.12.2014 and the candidature of the applicant for post code No. 07/13 was rejected due to her failure to bubble the relevant column in OMR form. She was also OA No. 3442/2016 not considered for post code 109/12 as she secured below cut off marks. The respondents have submitted that there is no illegality in Page | 7 their decision. Recruitment process for this post code has already been completed and the applications of similar nature have also been rejected and, therefore, it is not proper to re- open this case.
5. In the rejoinder, the applicant has opposed the averments made by the respondents stating that one of the two applications cannot be rejected on account of ineligibility. The applicant has relied upon the judgment of this Tribunal in OA No. 4618/2014 decided on 20.01.2016, OA No. 4445/2014 and batch decided on 18.12.2015 and OA No. 1592/2016 decided on 13.11.2018. The respondents have relied upon the judgment of this Tribunal in OA No. 4572/2014 decided on 12.08.2016 and OA No. 2949/2019 decided on 11.10.2019. OA No. 3442/2016
6. We heard Mr. R. K. Sharma, learned counsel for the applicant and Ms. Sangita Rai, learned counsel for the respondents.
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7. It is evident from the facts of the case that the applicant applied for the post of PGT (Hindi) against the advertisement issued by the DSSSB in 2012 and 2013. She was subsequently issued an e-admit card for post code No. 109/12 only. No admit card was issued to her for the post code 07/13. The respondents had conducted a common examination against both these advertisements on 28.12.2014. The applicant appeared in the examination and secured 118.5 marks. As stated by her in the OA, she did not qualify against post code No. 109/12 despite having secured 118.5 marks as the cut off against this post code was 124.25 marks for the year, 2012 for UR category. From the information obtained by her, it is evident that the cut off marks for the post code No. 07/13 was 104.75 marks for the UR category. However, the applicant was not considered against the post code No. 07/13 as her candidature was cancelled by the OA No. 3442/2016 respondents in view of not having the requisite qualification as on closing date. As has been clarified by the respondents in their counter Page | 9 affidavit, the OMR application form for post code No. 07/13 for the advertisement of the year, 2013 had to be filled by bubbling and she failed to bubble the relevant column in the OMR application form, making her ineligible. The claim of the applicant is that she had applied against the vacancy advertised vide advertisement No. 109/12 and also separately for vacancies advertised vide advertisement No. 07/13 and once she was found eligible in terms of requisite qualification on the closing date for the year, 2012, for post code 109/12, it is not understandable, as to how, her candidature can be rejected for the examination year, 2013. During the arguments it was pointed out that she did fail to bubble the appropriate column which made her ineligible in terms of requisite qualification. As the examination for both the post codes was a common examination, she appeared in the same, however, she was issued admit card only OA No. 3442/2016 for Post Code No. 109/12 and not for Post Code No. 07/13. It is thus evident that she was permitted to appear in the examination against Page | 10 the Post Code No. 109/12 only and not for Post Code No. 07/13. She secured 118.5 marks, which were below the cut off marks for Post Code No. 109/12 and was not selected. She came to know that the select list for the year, 2013 had a different cut off marks of 104.75 and, therefore, her candidature should have been considered against Post Code No. 07/13. The facts of the cases in the judgments quoted by the applicant are different from the facts of this case as no intervention of the Courts/Tribunals or interim relief was available and no direction has been given for considering her candidature against the Post Code No. 07/13. The sanctity of the recruitment conditions like closing date, qualification, eligibility etc. has been adjudicated in catena of judgments and the law in this regard is well established.
8. In the case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) and Others, (2013) 11 SCC OA No. 3442/2016 58, the Hon'ble Supreme Court has held as under:-
"23. There is no obligation on the court to Page | 11 protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.
24. The appeal is devoid of any merit and does not present special features warranting any interference by this Court. The appeal is accordingly dismissed."
It has been made very clear that no benefit can be granted to the candidates who were not eligible as per Recruitment Rules/Advertisement as the same would deprive a large number of similarly placed candidates who may not have applied in the selection process by considering them as ineligible. It was ruled that usurpation of a post by an ineligible candidate, in any circumstance, is impermissible.
9. In the case of The state of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr., Civil Appeal No. OA No. 3442/2016 6669/2019 arising out of SLP(C) No.14093/2019 decided on 28.08.2019, the Hon'ble Supreme Court has held as under:-
Page | 12 "12. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms. Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us.
10. The ratio of these judgments is very clear i.e. when certain conditions have been specified in the advertisement they must be strictly adhered to by the respondents and followed by the candidates in order to establish the sanctity of the conditions prescribed in the advertisement and also to avoid injustice to many other candidate who abide by the conditions laid down in the advertisement and did not participate in the examination for want of eligibility.
11. This Tribunal in OA No. 2949/2019 has taken note of a similar instance of mistake in bubbling in OMR sheet. The judgment reads as under:-
OA No. 3442/2016
"The applicant responded to a notification issued by Delhi Administration for appointment to the post of TGT (English) Female, post code 132/17. She was allotted Roll No. 2660016672 and has appeared in the written test conducted on 08.09.2018. Her grievance is that the respondents have not declared her result. Page | 13
2. The OA was listed for admission on 04.10.2019. We directed the learned standing counsel for the respondents to obtain instructions and to inform us the reasons on account of which the result of applicant was not declared. Today, learned standing counsel for the respondents has placed before us, a copy of relevant portion of OMR sheet, pertaining to the applicant. It is stated that the applicant has committed a mistake in bubbling of her Roll Number and that in turn resulted in non-acceptance of the OMR sheet by the computer.
3. We heard Mr. Prem Kumar Sharma, learned counsel for the applicant and Ms. Esha Mazumdar, learned counsel for the respondents.
4. There is no dispute that the applicant took part in the written test held on 08.09.2018 with Roll No. 2660016672. Since, the question paper is in OMR sheet the evaluation is done by computer. In the first page of the OMR sheet, the candidates are required to not only write their Roll Number but also to bubble i.e. round off the circles underneath each of the numbers. The applicant rounded off the circle for all the numbers, but committed a mistake as regards the last number. She has round off circle for Number '1', instead of the one for '2'. Obviously, this was the Roll Number of another candidate. The result is that either her paper was not evaluated or the evaluation was of Roll No. 2660016671 instead of 2660016672. The mistake, if at all, was on the part of the applicant and the same cannot be helped at all.
5. We do not find any merit in the OA and the same is accordingly dismissed. There shall be no order as to costs."
12. In view of the above mentioned, the claim of the applicant for being considered against the Advertisement Notice No. 01/13, Post Code No. OA No. 3442/2016 07/13 is not tenable. We do not find any merit in the present OA and the same is, accordingly, dismissed. Pending MAs, if any, shall stand Page | 14 disposed of. There shall be no order as to costs.
(Mohd. Jamshed) (S.N. Terdal)
Member (A) Member (J)
/Ankit/