Central Administrative Tribunal - Delhi
Suman vs Gnctd on 11 January, 2023
1 OA No.2491/2022
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2491/2022
MA No.3430/2022
Order reserved on: 14.12.2022
Order pronounced on: 11.01.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
1. Suman,
[Appointment TGT (Sanskrit) Female],
Aged About 32 Years,
D/o Sh. Kanwar Pal,
R/o H. No. 965, Sector-23, Sonepat,
Haryana-131001.
2. Sushma,
[Appointment TGT (Sanskrit) Female],
Aged About 40 Years,
D/o Sh. Surender Kumar,
R/o VPO Sultan Pur, Distt. Gurgaon,
Haryana
3. Manju Kumari,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
W/o Sh. Kuldeep Singh Yadav,
R/o VPI Surhera (Najafgarh),
New Delhi
4. Rachna Saini,
[Appointment TGT (Sanskrit) Female],
Aged About 40 Years,
D/o Sh. Chitter Mal Saini,
R/o Flat No. 505, Pkt-B2,
DDA Flats, Lok Nayak Puram,
Bakkarwala,
New Delhi-110041
5. Neelam Goel,
[Appointment TGT (Sanskrit) Female],
Aged About 38 Years,
D/o Ram Kumar Goel,
R/o G-30/95, First Floor,
Sec-03, Rohini, Delhi-110085
2 OA No.2491/2022
6. Sushila,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
W/o Sh. Vikram Phogat,
R/o Adarsh Nagar, Gali No. 3, Jhajjar Road,
Bahadurgarh, Haryana (124507)
7. Kavita,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
D/o Sunil Kumar,
R/o H. No. 662, Sector-3, Rewari,
Haryana-123401
8. Parul Sharma,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
W/o Sh. Gagan Deep Sharma,
R/o J-172, Sarita Vihar, New Delhi.
9. Monika,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
D/o Sh. Jagdish Kumar Nain,
R/o 5018/31, Rajendra Park, Gurugram,
Haryana
10. Jyoti Rani,
[Appointment TGT (Sanskrit) Female],
Aged About 38 Years,
D/o Sh. Ishwar Singh Dahiya,
R/o H. No. 161, Hanuman Mandir Gali,
Jeewan Nagar (Sonepat), Haryana
11. Manju Devi,
[Appointment TGT (Sanskrit) Female],
Aged About 40 Years,
D/o Sh. Mukhtiar Singh,
R/o Gali No. 30 B, Sawatantr Nagar,
Narela, Delhi
12. Reena Kumari,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
D/o Narayan Singh,
R/o H. No. 836/13, Janta Colony,
Near Delhi Road, Sonepat,
Haryana-131001
3 OA No.2491/2022
13. Amita Kumari,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
D/o Sh. Suresh Kumar,
R/o VPO Kharainti, Distt. Rohtak,
Haryana-124514
14. Rekha Rani,
[Appointment TGT (Sanskrit) Female],
Aged About 45 Years,
D/o Sh. Jaipal Sharma,
R/oK-23, Phase-1, Main Bazar, Budh Vihar,
New Delhi-110086
15. Alka Shri Prajapat,
[Appointment TGT (Sanskrit) Female],
Aged About 26 Years,
D/o Sh. Shimbhu Dayal Prajapat,
R/o Village Post- Shiv Singh Pura,
Via-Samod, The-Shahpura, Distt. Jaipur,
Rajasthan-303805
16. Shilpi Singh,
[Appointment TGT (Sanskrit) Female],
Aged About 28 Years,
D/o Sh. Manoj Singh,
R/o A-59, First Floor, Bunkar Colony,
Ashok Vihar-IV, Delhi-110052
17. Sangeeta,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
D/o Sh. Duli Chand,
R/o VPO Dhani Dhole, Tehsil-Lohard-127201
Distt.Bhiwani, Haryana
18. Archana Mishra,
[Appointment TGT (Sanskrit) Female],
Aged About 43 Years,
D/o Sh. Ghanshyam Mishra,
R/o D-175, Gali No. 7, Om Enclave-2,
Sector-91, Amar Nagar, Faridabad, Haryana.
19. Neelam Sharma,
[Appointment TGT (Sanskrit) Female],
Aged About 39 Years,
D/o Sh. Ramesh Chandra Sharma,
R/o 81, Pkt-4, MIG MIX Housing,
Mayur Vihar, Phase-3, Delhi-110096
4 OA No.2491/2022
20. Km. Alpana Gupta,
[Appointment TGT (Sanskrit) Female],
Aged About 37 Years,
D/o Sh. Naveen Chandra Gupta,
R/o 289/21, Teacher‟s Colony Railway Road,
Bahadurgarh, Haryana-124507
21. Sonia,
[Appointment TGT (Sanskrit) Female],
Aged About 29 Years,
D/o Sh. Dharm Pal,
R/o80H, MS Block, Ranaji Enclave,
Part-III, Delhi-110043
22. Suman Lata,
[Appointment TGT (Sanskrit) Female],
Aged About 39 Years,
D/o Sh. Subhash Sharma,
R/o H. No. 182-B, Bhatia Colony,
Ballabhgarh (Faridabad), Haryana
23. Deepika Sharma,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
D/o Sh. Ravi Kant Sharma,
R/o 144, A-Z Block, New Roshanpura,
Najafgarh, Delhi
24. Neeraj Kumari,
[Appointment TGT (Sanskrit) Female],
Aged About 38 Years,
D/o Sh. Devi Singh,
R/o VPI Kurar, Distt. Sonepat, Haryana.
25. Neetu Goyal,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
W/o Sh. Manish Garg,
R/o B-59/11, Gali No. 6, Amar Vihar,
Karawal Nagar, Delhi-110094
26. Sushama Pradhan,
[Appointment TGT (Sanskrit) Female],
Aged About 35 Years,
D/o Sh. Siyaram Pradhan,
R/o B-274, Gali No. 2,
Rajveer Gharoli Extension,
Delhi-110096
5 OA No.2491/2022
27. Savita Rani,
[Appointment TGT (Sanskrit) Female],
Aged About 36 Years,
W/o Sh. Bijender Dalal,
R/o H. No. 938, Gali No. 15,
Ram Gopal Colony, Rohtak,
Haryana-124001
28. Gayatri Arya,
[Appointment TGT (Sanskrit) Female],
Aged About 34 Years
W/o Sh. Pawan,
R/o VPO Sanwar, Tehshil &
Distt. Charkhi Dadri,
Haryana - 127042
29. Kinya,
[Appointment TGT (Sanskrit) Female],
Aged About 33 Years
W/o Sh. Ashok Kumar Vedi,
R/o B-7/163, Sector-3, Rohini,
Delhi-110085.
....Applicants
(By Advocate: Mr. S.K.Srivastava with Ms. Shubhi Srivastava
and Mr. Prince Kumar)
Versus
1. The Chief Secretary,
Govt. of NCT Of Delhi,
New Secretariat, I.P. Estate, New Delhi
2. The Directorate of Education,
Govt. of NCT of Delhi,
through its Director,
5, Sham Nath Marg, Delhi
3. Delhi Subordinate Service Selection Board,
through its Chairman,
FC-18, Institutional Area,
Karkardooma, Delhi.
... Respondents
(By Advocate: Mr. Amit Anand)
6 OA No.2491/2022
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicants are seeking following reliefs:
"i) To quash and set aside the impugned select list dated 16.08.2022 (A-1) and direct the respondent no.3 to prepare the select list of TGT (Sanskrit) Female, Post Code 55/21 applicants by following the same criteria as followed while preparing the select list of TGT (Sanskrit) Male vide Result Notice dated 20.06.2022 and consider the claim of applicants for appointment to the post of TGT (Sanskrit) Female as per their merit in the competitive examination with all consequential benefits.
ii) To declare the action of respondents in changing the criteria of preparing the select list as per letter dated 14.07.2022 as illegal and issued directions to prepare the select list for appointment to the post of TGT (Sanskrit) Female for sending to user Department i.e. Directorate of Education after verifying the eligibility of candidates with reference to the eligibility criteria mentioned in the advertisement and shift the candidates from the UR list to respective reserved list keeping in view the relaxation as availed by the reserved category candidates as per the terms and conditions mentioned in the advertisement.
iii) To direct the respondents to prepare the select list for appointment to the post of TGT (Sanskrit) Female (Post Code 55/21) strictly as per the terms and conditions mentioned in the Advertisement No.03/21 and by following the same analogy as followed in case of TGT (Sanskrit) Male.
iv) To exclude the name of reserved category i.e. SC, ST, OBC & EWS in view of relaxation availed by them i.e. in the matter of passing of Section-A & Section-B with relaxed standard, age, CTET and passing of Graduation with the specific percentage as mentioned in the advertisement.
v) To divert the 3 years old unfilled vacancies of OBC as notified vide Advertisement No.03/21 to UR category and fill up the same amongst qualified candidates as per rules.
vi) To allow the OA with cost.
vii) Any other orders may also be passed as this Hon‟ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."7 OA No.2491/2022
2. The respondents have filed short affidavit inter alia contending that 1159 vacancies for the post of TGT (Sanskrit) Female were advertised by the DSSSB vide advertisement No.03/21 dated 27.05.2021 Post Code- 55/21. The result for the said Post Code was declared on 16.08.2022, wherein 944 candidates were selected whereas 171 candidates were kept in the waiting list. E-dossiers of 944 selected candidates and 147 waitlisted candidates were sent to Directorate of Education vide nomination letter dated 24.08.2022. All the applicants secured more than the cut of marks. It is not understood as to how the applicants herein, who have got marks above the cut off marks, would be affected if the cut off marks would have been lower. It is also not comprehensible as to how the applicants are affected by stating that "because the respondent No.3 has declared the result without scrutinizing the documents which have resulted in unnecessary jump/height in the cut off marks and rejected the candidature of otherwise candidates." It is submitted that the rules have not been changed at all by the respondent No.3 as alleged by the applicants, the rules are still the same. Nowhere in the advertisement, it has been mentioned that the respondent will be carrying out scrutiny of e-dossiers. In fact, as per sub-point (v) of the Point No.3 of the Advertisement No.03/21 dated 27.05.2021 under the title „Examination 8 OA No.2491/2022 Scheme‟, it is explicitly given that "The Board makes provisional selection of the candidates on the basis of information provided in the application and documents/certificates provided by the candidate at the time of submission of document/e-dossiers and recommend the same to the indenting/user Department. Further, the Appointing Authority i.e. the indenting/user Department verify and satisfies itself about the authenticity of the documents/certificates and eligibility as per Recruitment Rules and as per Govt. of India instructions issued in finally appointing the candidate(s). Therefore, the provision in this regard vide MHA OM No. 2/29/54-RPS, 19/11/1954 before selection of a candidate does not confer upon him/her any right of appointment unless the Appointing Authority is satisfied, after such inquiry as may be considered necessary, that the candidate suitable in all respects for appointment to the post."
3. This clearly implies that the Board does not undertake any scrutiny of the dossiers as it is the domain of the User/Indenting Department. Thus, the scrutiny has to be done by user department which would also after being satisfied with respect to the same and would give the offer of appointment to the nominated candidates. The mandate of DSSSB is to provisionally select the candidates as per 9 OA No.2491/2022 marks/merit secured in the open competitive examination. Thus no rules of the selection has been changed by the answering respondents as alleged by the applicants. It is pertinent to submit herein that in point No. 4 of the advertisement No. 03/21 dated 27/05/2021 itself, it has been stated as under:
"4. The successful candidates will be required to submit legible self attested copies of the documents, Admit card containing signature of the Invigilator (used in examination) along with the hard copy of printout of online application form in OARS at the time of verification of documents (any information contained in the attached certificates shall not be considered unless it is claimed in the application form)."
4. It is further submitted that no candidate who does not fulfill the eligibility conditions mentioned in the notice has been provisionally nominated by the DSSSB till date or would be nominated in as much as the scrutiny with regard to the same has to be conducted by the user department. In fact, it is prudent that the said scrutiny with regard to eligibility be done by the user department as the rules and qualification has been framed by the user department and the DSSSB is mandated to make recruitment as per recruitment rules.
5. It is also submitted that in service jurisprudence, a person is said to be aggrieved when the rules are not followed by the State. Here, the applicants have not at all shown any rule which mandates that the scrutiny compulsorily has to be done by DSSSB. They applicants have stated that they have 10 OA No.2491/2022 legitimate expectation to be appointed. It is submitted that in the result notice, they themselves have stated that they are successful and have scored above cut off marks, therefore, their dossiers would also be sent to the user department for checking their eligibility. Thus, there is no question that their legitimate expectation has been throttled. It is submitted that this Tribunal has categorically stated that there is no right of appointment but only a consideration of appointment in accordance with rules and these rules are going to be followed by the appointing authority of the user department for checking the eligibility. Even the name in the merit list does not guarantee appointment. It is not understood as to how come the applicants who have secured above the cuff off marks are being prejudiced by other names in the result notice.
6. It is submitted that the uniformity of a decision has to be seen for the same advertisement. It is not that the respondent No.3 has scrutinized the dossiers of certain candidates with regard to the eligibility and left others. In fact, as per the result notice No. 167 dated 16/08/2022, the respondent No. 3 has already sent the dossiers of 944 provisionally selected candidates and 147 waitlisted candidates vide nomination letter dated 24.08.2022. Thereafter, the respondent No. 2 being the appointing 11 OA No.2491/2022 authority would scrutinize the eligibility as per the result notice. Therefore, no rules of the game have been changed as contested by the applicants and as such the allegation has no basis. In fact, the applicants have failed to show any rule which mandates that DSSSB has to scrutinize and determine the eligibility of candidates. The eligibility as claimed by the applicant in his/her application form has to be considered after the result which would be done by the appointing authority of the user department. The mandate of DSSSB is to provisionally select the candidates as per marks/merit secured in the open competitive examination.
7. During the course of hearing, our attention has been drawn to decision rendered by the Co-ordinate Bench of this Tribunal in OA No.2935/2022 and other connected cases (more specifically in OA No.2593/2022- involving TGT (Sanskrit) decided on 19.10.2022, wherein the Tribunal dealt with Resolution dated 14.07.2022 in para 11 thereto, which is reproduced herein below:-
"11. If the arguments of the applicants are accepted, then scrutiny is required to be done by both the Board and subsequently by the Appointing Authority also. This would be double exercise and in order to avoid this, the Resolution dated 14.07.2022 was passed by the Board making it clear that scrutiny of the documents would be done by the Appointing Authority and not by the Board. In our considered opinion, the decision of the Board, which was taken in pursuance of the Resolution dated 14.07.2022 cannot be faulted and at the most, suitable directions can be issued to the Appointing Authority."12 OA No.2491/2022
8. The Tribunal was also pleased to pass following directions as under:-
"12. The grievance of the applicants can be redressed and controversy can be settled if directions are given to the Appointing Authority to expedite the process of verification 26 OA No. 2935/2022 and batch Item No. 1 and scrutiny so that the waiting list and reserve list candidates will get a chance of selection in case some candidates from result notice are not finally given offer of appointment for want of documents or any other eligibility criteria.
13. In above circumstances, we are disposing of these OAs with the following directions:-
1. Respondent No. 2/Appointing Authority shall verify eligibility criteria, scrutinize experience certificate etc. furnished by the candidates who are nominated in impugned result notice, as expeditiously as possible and in any case within a period of four months from today.
2. Respondent No. 2/Appointing Authority, thereafter, if required, undertake further scrutiny of the candidates from the waiting panel. This exercise shall be completed within a period of two months thereafter.
3. In the event, after scrutiny of the candidates from the waiting panel, there are still some vacancies, then the Respondent No. 2/Appointing Authority shall carry out the same exercise in respect of the candidates from the reserve list. This exercise shall be completed before the expiry of period of one year from the declaration of the main result."
9. The learned counsel sought to distinguish the aforesaid decision dated 19.10.2022 stating that in the said OA prayer 8(i) dated 16.8.2022 (Annexure -1) was not an issue. Further it has been argued that said decision was not in rem but in personam, therefore, the said decision cannot be applied and said to be binding between the parties. In support of his contention, the learned counsel for applicants relies upon decision rendered by the Hon‟ble Andhra High Court in 13 OA No.2491/2022 Gunreddy Ramkoti Reddy and ors. vs. State of Andhra Pradesh, WP(C) No.26156/2006 decided on 28.4.2014, wherein the submissions were recorded as under:
"9. xxx xxx xxx In Halsbury's Laws of England, Volume 22, page 742, paragraph 1605, judgments in rem and in personam have been have been described as under:
A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. A judgment in personam determines the rights of the parties inter se to or in the subject matter in dispute, whether it be corporeal property of any kind whatever, or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or make any disposition of property, or declare or determine any interest in it except as between the parties litigant.
xxx xxx xxx In the case of Secretary of State (AIR 1921 Madras 248), a Division Bench of Madras High Court, held as under:
The question is how far and under that circumstances can a judgment in personam be given the force of a judgment in rem or be pleaded as a bar under S.11, Civil Procedure Code in cases where it is pleaded as a defence to an action, by third parties who do not claim under or were not represented by the parties to the original action. So far as the statute law in this country is concerned, the case is governed by S.11 of the Civil Procedure Code which deals with res judicata, Ss.40 to 41 of the Evidence Act which deal with the relevancy of judgments of competent Courts and S.43 of the Specific Relief Act which deals with declaratory decrees. Under S.11 of the Civil Procedure Code one of the conditions precedent to its application is that the former suit should be between the same parties or between parties under whom they or any of them claim and the section is a bar to the trial of a suit or issue in which the matter directly and substantially in issue in the previous suit. The section codifies the law in British India as regards the plea of res judicata and, though the principle has been applied to proceedings other than suits (e.g.) execution proceedings), the essentials required by the section as to identity of the questions involved and parties has not been lost sight of. S.43 of the Specific Relief Act enacts that a declaratory decree passed under the Act is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on 14 OA No.2491/2022 the persons for whom, if in existence at the date of the declaration, such paties would be trustees. Ss.40 to 44 of the Evidence Act deal with the relevancy of judgments of Courts of Justice. S.40 enacts that the existence of any judgments, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. S.41 deals with final judgments, orders of decrees of competent Courts in the exercise of Probate, Matrimonial, Admiralty or Insolvency jurisdiction, or what is known as judgments, in rem and it states that such judgments, orders or decrees are conclusive proof of the matters specified in the section: and, by virtue of S.4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments. S.42 refers to judgments relating to matters of a public nature relevant to the enquiry and the section states that such judgments, though evidence, are not conclusive proof of that which they state, thus allowing evidence to be given to disprove the facts found in the judgments. S.43 says that judgments, orders or decrees, other than those mentioned in Ss.40,41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act (e.g., S.13). S.44 enables a party to show that any judgments, order or decree which is relevant under Ss.40, 41 or 42, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
In dealing with this question, I think the distinction between the effect of a judgment as preventing the Court from trying the same matter in issue in subsequent proceedings and as simply affording evidence of the truth of falsity of the claim under consideration should be borne in mind. In the former case S.11 declares that the Court shall not try the suit or issue and the plea is one in bar to the maintainability of the action. In cases where there is no bar under S.11, the Court has to try the issue and if the judgment is filed for the purpose of proving the plaintiffs claim or for the purpose of proving defence to the action, it is relevant only as a piece of evidence the probative value of which is regulated by the provisions of the Evidence Act. If it is a judgment in-rem, the Court under S.41 of the Evidence Act will treat it as conclusive proof of the matters stated in that section and under S.4 it will prevent evidence being given for the purpose of disproving. .... Si far as judgment in rem are concerned, I think the matter is codified by S.41 of the Evidence Act which states what judgments would be judgments in rem so as to be make them conclusive proof of the declarations granted by them. It seems to me that it is not open to us, in the face of the sections of the Civil Procedure Code, the Evidence Act and the Specific Relief Act, to hold that judgment is not falling within those sections would still be a bar to an action or afford conclusive proof. ... Turning to the Evidence Act, I have already pointed out that Ss.41 and 42 draw a 15 OA No.2491/2022 distinction between Judgments in rem and judgments in personom and it seems to me, to be clear from the sections that a Judgment which doesnot fall within S.41 can only be evidence but cannot be used for the purpose of preventing the other side from proving facts which he sets up."
10. Reliance is also placed on decision rendered by the Hon‟ble Apex Court in the case of Syed Askari Hadi Ali Augustine Iman and ors. vs. State (Delhi Admn.) and anr., (2009) 5 SCC 528 para 11 of said judgment reads as under: "11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice. Another Constitution Bench of this Court had the occasion to consider a similar question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [(2005) 4 SCC 370] wherein it was held:
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal.
These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an 16 OA No.2491/2022 unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause
(b)(ii)."
Relying inter alia on M.S. Sheriff (supra), it was furthermore held:
"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
The question yet again came up for consideration in P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein it was categorically held:
"13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."
11. Heard Sh. S.K.Srivastava, learned counsel for applicants and Sh. Amit Anand, learned counsel for respondents and perused the relevant documents and material on record.
12. Analysis:
12.1 Noting the arguments of the learned counsel for the applicants on the decision of R. Viswanathan vs. Rukn-Ul-
Mulk Syed Abdul Wajid, (1963 SCR (3) 22), wherein the Hon‟ble Apex Court while dealing with issue pertaining to right in rem vs. right in personam held as under: 17 OA No.2491/2022
"Roman lawyers recognised a right either as a jus in rem or a jus in personam. According to its literal meaning "jus in rem" is right in respect of a thing, "a jus in personam" is a right against or in respect of a person. In modern legal terminology a right in rem, postulates a duty to recognise the right imposed upon all persons generally, a right in personam postulates a duty imposed upon a deter- minate person or class of persons. A right in rem is therefore protected against the world at large; a right in personam against determinate individuals or persons. An action to enforce a jus in personam was regarded as an action in rem. But in course of time, actions in rem and actions in personam acquired different content. When in an action 'the rights and interest of the parties themselves in the subject matter are sought to be determined, the action is in personam. The effect of such an 'action is therefore merely to bind the parties thereto. Where the intervention of the Court is sought for the adjudication of a right or title to property, not merely as between the parties but against all persons generally, the action is in rem".
xxxxx "Dealing with judgment in rem and judgments in personam, Cheshire observes at page 653, It (judgment in rem) has been defined as a judgment of a court of competent jurisdiction determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation); and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided .......... A judgment in rem settles the destiny of the res itself land binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence' ; a judgment in personam, although it may concern a res, merely determines the rights of the litigants inter se to the res. The former looks beyond the individual rights of the parties, the latter is directed solely to those rights".
XXXX 18 OA No.2491/2022 In India, the law as to conclusiveness of judgments is contained in ss. 40-44 of the India Evidence Act and ss, 11- 14 of the Code of Civil Procedure. Section 41 of the former makes certain special kinds of judgments conclusive, while s. 11 makes judgments in India and s. 13 makes foreign judgments conclusive under certain conditions. I shall first analyse the sections in the Indian Evidence Act. Section 40 makes the existence of a judgment ete. which by law prevents any Court from taking cognisances of a suit or holding a trial, a relevant fact when the question is. whether such Court ought to take cognisance of such suit or hold such trial. This enables a judgment, order or dec- ree, whether of a Court in India or a foreign Court,to be propounded for the particular purpose mentioned. Section 42 next mentions that judgments etc. other than those mentioned in Section 41, are relevant if they relate a matters of public nature relevant to the enquiry, but such judgments, etc., are not conclusive proof of what they state.
The illustration shows what is meant by matters of a public nature. Section 43 then lays down that judgments etc., other than those mentioned in as. 40, 41 and 42, are irrelevant unless the existence of such judgments etc., is a fact in issue or is relevant under some other provision of the Evidence Act. Section 44 says lastly that any party to a suit or other proceeding may show that any judgment etc., which is relevant under as. 40, 41 or 42 and which has been proved by the adverse party was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. Section 41 which I left out, provides for relevancy of certain kinds of judgment and for their conclusiveness. It reads :
"A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency juris- diction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing is relevant. Such judgment, order or decree is conclusive proof-that any legal character 19 OA No.2491/2022 which it confers, accrued at the time when such judgment, order or decree came into operation:
that any legal character to which, it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person:
that any legal character which it takes way from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."
The judgments mentioned in this section are called judgments in rem. As far back as Yarakalamma v. Ankala distinction 'was made between judgments which bound only the parties to it and judgments which bound also strangers. The terms of Roman Law which divided law into quod ad res pertinet and quod ad personas pertinet furnished the root, and this classic distinction has been taken as the foundation. In Kanhya Lal v. Radha Charan Peacock, C.J., gave a list of judgments in rem, and that list has been followed in framing s.41. The list of such judgments is much longer in Taylor on evidence, and the present day Private International Law includes all question of status within it. Sir James Stephen is reported to have said that he included only those judgments to which conclusiveness could be given from the point of view of the law of evidence and the conclusiveness attaches as to a given matter of fact relevant to the issue, which may be proved from the judgment. That there may be other provisions, of some other law which may also attach conclusiveness to judgment etc., of some other kinds goes without saying. Section 41 does not prohibit the making of other laws. The provisions of El. 11 of the Code of Civil Procedure, for example, go much farther than s. 40 or s. 41 of the Indian Evidence Act. Section 40 touches only the fringe of the law of resjudicata ; but provision for that has been made more exhaustively in s. 11 of the Code of Civil Procedure. The difference between provisions in the law of evidence and the law of procedure is that one deals with the question of proof and the other, with a bar of suit. A fact which can be proved from a 20 OA No.2491/2022 judgment made conclusive for that purpose need not be proved afresh. The proof of the judgment is enough. But a second suit can only be barred on the principle of resjudicata if the law says so; and this bar is regarding the adjudication of a controversy decided before. It is not possible to add to the list of subjects mentioned in s. 41 of the Indian Evidence Act, except by legislation. Conclusiveness there attaches only to the subjects mentioned therein, and a fact established by a judgment of a competent Court on any of the subjects is taken to be proved, and established in all subsequent proceedings and does not require to be proved again."
12.2 An administrative dispute is species exclusive and within the domain and scope of public law. The public law aims to implement a Statutory Rules/Regulations. The foundation to the administrative law is based on "principle of natural justice". The said principle embodies itself the concept of equity, justice and good conscience. A dispute emerging in the field of administration between person or representative union and administrative officer or institution, either in the Centre or the State, organisations, autonomous bodies and like, such disputes are in rem. Largely, due to financial impact, as large society gets effected in administrative sphere. A delinquent is generally aggrieved to an administrative order, which affects his or her condition of services or incidence of service. He/she may think that decision of the Authority suffers from vices in as much being arbitrary, biased, contrary to the Law of the Land, discriminatory, illegal, unfair, unjustified, irrational, ignoring the principles law, 21 OA No.2491/2022 non-application of mind and void. The judgments cited by the learned counsel are governing the facts in the realm of private law as distinguished in public law. In the present case also, bare perusal of the relief(s) sought, the sum and substance of the subsequent order is challenge to the decision rendered by Public Authority which might have great impact on society as a whole. An action in personam is one the judgment of which in form as well as in substance, affects the interests of the parties thereto. The challenge herein is to the action of respondents in purportedly changing the criteria of preparing the select list as per letter dated 14.7.2022, which is in domain in public or to say the least in Public Order by a Public Authority. To contend and attempt to distinguish the decision rendered by the Coordinate Bench in present OA is not only misconceived but a fallacy in the argument of the learned counsel for the applicant. In our view, the concept of in rem or in personam has not been appreciated by the learned counsel for the applicants in proper prospective in facts of the present case.
13. In view of the above of discussion, we are of the view that no distinction could be brought nor envisaged to the facts of the present OA so as to state the decision rendered by the Co-ordinate Bench of this Tribunal in OA No.2935/2022 and other connected OAs [more specifically in OA 22 OA No.2491/2022 No.2593/2022 - involving TGT (Sanskrit)] decided on 19.10.2022 is in personam.
14. We have refrained ourselves from imposing costs upon the applicants for making an endeavour to make an artificial distinction between the facts of the present case as well in OA No.2935/2022, keeping in view the case pertains to recruitment/selection of young applicant(s).
15. We dispose of the present OA in light of decision rendered by the Co-ordinate Bench of this Tribunal in OA No.2935/2022 and ors connected OA [more specifically in OA No.2593/2022- involving TGT (Sanskrit)] decided on 19.10.2022.
16. Pending Misc Application is also disposed off. No order as to the costs.
(Sanjeeva Kumar) (Manish Garg) Member (A) Member (J) /sd/