Central Administrative Tribunal - Delhi
Mr. Umesh vs The Commissioner Of Police on 7 March, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.455/2014 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) Mr. Umesh Aged around 25 years s/o Mr. Amar Pal r/o Village Phulwari Palwal, Haryana .. Applicant (By Advocate: Mr. Harpreet Singh) Versus 1. The Commissioner of Police Police Headquarters MSO Building, ITO New Delhi-2 2. The Additional Deputy Commissioner of Police (Establishment), Delhi MSO Building, ITO, New Delhi-2 ..Respondents (By Advocate: Mr. Vijay Pandita) O R D E R
Mr. A.K. Bhardwaj:
As has been made clean breast of in the counter reply filed on behalf of the respondents, 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, the applicant submitted his online application dated 31.3.2013 vide Registration No.210869. However, the applicant was not admitted to the selection process on the ground that his application was not received in the office of DCP/ Recruitment Cell by Post along with the fee of Rs.100/- in the form of Demand Draft/Bankers cheque in favour of DCP/ Recruitment Cell, New Police Lines, Delhi. The Physical Endurance & Measurement Test (PE&MT) for the post in question was held at PTS, Wazirabad, Delhi from 3.10.2013 to 29.10.2013. Being not allowed to participate in the PE&MT, the applicant initially filed joint Original Application (O.A. No.136/2014). However, after the rejection of the M.A. No.145/2014 in the said Original Application for joining together, the applicant was permitted to file separate Original Application. Vide order dated 7.2.2014 this Tribunal directed the respondents to issue admit card and allow the applicant to participate in the selection process. However, the respondents have tried to justify their action of not allowing him to participate in the PE&MT on the ground that he had not sent the printout of the application form along with fee of Rs.100/-.
2. We heard the learned counsels for the parties and perused the records.
3. We find that the issue involved in the present Original Application is squarely covered 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.
4. In view of the above, we dispose of the present Original Application with direction to the respondents to consider the candidature of the applicant 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/