Central Administrative Tribunal - Delhi
Sushil Thakran vs Govt. Of Nctd on 3 August, 2023
1
O.A. No. 4433/2017
Item No. 63(C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4433/2017
This the 03rd Day of August, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Sushil Thakran
S/o Sh. Satyadev
R/o H. No. 302, Village Bajitpur,
Post Office Nangal Thakran,
Delhi - 110039
Aged about 31 years
(Group 'C')
(Candidate to the post of Grade IV(DASS)/LDC)
....Applicant
(By Advocate : Mr. Anuj Aggarwal with Mr. Vikrant Chawla, Mr.
Akash Dahiya and Ms. Ayushi Bansal)
VERSUS
1. Govt. of NCT of Delhi
Through its Chief Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi
2. Delhi Subordinate Services Selection Board
Through its Chairman,
Government of NCT of Delhi,
FC-18, Institutional Area, Karkardooma,
Delhi-110 092
3. The Secretary (Services)
GNCT of Delhi,
7th Level, 'B' Wing. Delhi Secretariat,
I.P. Estate, New Delhi
4. Directorate of Education
Through its Director,
(GNCT of Delhi)
Old Secretariat, Delhi-54
.... RESPONDENTS
(By Advocate : Mr. Rohit Bhagat for Mr. Saurabh Chadda)
2
O.A. No. 4433/2017
Item No. 63(C-4)
ORDER (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J) It is the case of the applicant that, despite being declared successful in a competitive mode of recruitment to an appropriate post in Grade-IV (DASS), his candidature has been rejected and dossier has been returned on account of a case FIR No. 307/10 under Section 392/498A/406/506/34 IPC at PS Alipur, pending trial against him. Aggrieved by the same, the applicant seeks the following relief(s) by virtue of the present OA :
a) "Quash and set aside the impugned order of the respondents dated 28/04/2017 placed at Annexure A/1.
b) Direct the respondents to further consider and appoint the applicant to the post of Grade IV(DASS)/LDC with all consequential benefits including monetary and seniority benefits.
c) Award costs of the proceedings; and Pass any order/relief/direction(s) may deem fit and proper in the interests of justice in favour of the applicant"
2. Learned counsel for the applicant briefly narrating the history and background of the case submits that the criminal case against the applicant was on the basis of a complaint filed by his brother's wife (bhabhi) in a 3 O.A. No. 4433/2017 Item No. 63(C-4) matrimonial dispute. Subsequently, the marriage between the brother and his wife has been dissolved, rather while dissolving the marriage, adverse remarks have been recorded by the competent court against the wife of the brother. He confirms that the trial is still pending.
3. It was only at the stage of verification of applicant's character and antecedents, the fact of pendency of the FIR was brought to the notice and upon seeking advice on the applicant's eligibility for the said post from the competent authority, a decision was taken to keep the matter pending till a final decision is taken.
4. However, vide impugned order dated 28.04.2017, the Directorate of Education returned the dossier of the applicant for 'further necessary action' stating that since the case is pending for trial, keeping the dossier of the applicant till the judgment of the case is not practical, thereby denying the applicant the fruits of his selection.
5. To strengthen his arguments, he draws strength from the judgment rendered by CAT Allahabad Bench in OA No 8/2017 titled Rakesh Singh Vs. M/o Defence & 4 O.A. No. 4433/2017 Item No. 63(C-4) Ors. The relevant extracts of the same are reproduced below verbatim:
5. Having heard the arguments put-forth by the applicant and the learned counsel for the respondents and also having carefully perused all the relevant documents on record, we are of the view that some facts are not disputed at all. The case of applicant was considered by the Departmental Promotion Committee (DPC) in its meeting held on 31.03.2016 wherein the vigilance clearance of the applicant was on record. The DPC assessed the candidate to be 'Fit' for promotion and as a consequence of this recommendation, the applicant was promoted. However, this order of promotion was cancelled when it was realized that the applicant was facing criminal prosecution for charges under section 323, 504, 498A and 506 of IPC. At the same time, it is to be borne in mind that these charges were neither related to nor were the result of any of the official responsibilities or conduct of the applicant. These charges were an outcome of a marital dispute he was facing. The DOPT Rules and instructions relied upon by the learned counsel for the respondents do not conclusively cover the instant case as reading the instructions in their entirety makes it obvious that the criminal prosecution which will be an impediment to the promotion should essentially be related to the official position, responsibility and conduct of an employee. This is not the case here. The judgment of the Hon'ble High Court of Delhi in WP (C) No. 6391 of 2016 relied upon by the applicant makes an unambiguous observation that denial of promotion to an employee on ground of criminal charges, which are not related to the service of the employee is misconceived and does not stand the scrutiny of law.
6. In view of the detailed position explained above, the O.A. is allowed and the impugned order dated 24.11.2016 5 O.A. No. 4433/2017 Item No. 63(C-4) bearing No. 381/4430-A/Per/G is quashed. Since the Departmental Promotion Committee had found the applicant 'Fit' for promotion, the same shall be awarded to him w.e.f. 01.04.2016 when his first promotion order was issued, which later got to be cancelled. Further direction is given to the respondents to comply with these directions within a period of four weeks from the date of this order. No order as to costs
6. He further draws strength from the judgment of the Hon'ble Supreme Court in Joginder Singh Vs. Union Territory of Chandigarh in Civil Appeal No. 2325/2009 wherein the court expressed a similar opinion and held as under:
22. Thus, we are of the opinion that the alleged past conduct of the appellant in relation to the criminal case will not debar or disqualify him for the post of the Constable for which he was successfully selected after qualifying the written test, medical test and the interview conducted by the selection authority. Further, as stated by us earlier, there has been no concealment of any relevant fact from the respondents by the appellant. The respondents were thus not justified in denying the said post to the appellant. The conclusion arrived at by them is not cogent and lacks proper application of mind.
23. We therefore, hold that the High Court has committed a grave error both on facts and in law and it has failed to follow the legal principles laid down by this Court in the cases referred to supra and uphold the decision of the CAT. For the foregoing reasons both the appeals succeed and are allowed.6
O.A. No. 4433/2017 Item No. 63(C-4)
24. Since we have upheld the judgment and order of the CAT, the respondents are directed to comply with the same by issuing appointment letter to the appellants within four weeks from the date of receipt of the copy of this order. There shall be no order as to costs.
7. Learned counsel for the respondents vehemently opposes the contentions raised by the learned counsel for the applicant in the OA and disputes that the applicant declared the factum of pendency of FIR in the attestation form; however, the counter reply is silent on this issue. He argues that the judgment of Rakesh Singh (Supra) does not come to the rescue of the applicant in the present case as it was a case of promotion whereas the present case is with respect to the appointment. He clarifies that the case referred to by the learned counsel for the applicant is with respect to a DoP&T OM of the year 1992 whereas the issue which has been determined by the co-ordinate bench is whether a domestic dispute can interfere with the discharge of duties of an employee.
8. Heard the learned counsel for the parties and also perused the documents on record.7
O.A. No. 4433/2017 Item No. 63(C-4)
9. It is not disputed that the applicant has participated in the selection process and obtained his selection on the strength of his merit and further, offer of appointment was issued to him, however, due to pendency of FIR against him, the said appointment could not be fructified. We are guided by the judgment of the co-ordinate bench wherein it has been held that the domestic dispute cannot be held against an employee with respect to his performance in discharge of his official duties, moreso while deciding a similar issue, the Hon'ble Supreme Court in Joginder Singh (supra) has taken a similar view. We cannot ignore that in the instant facts, the complainant is the sister-in-law of the applicant. The brother and the sister in law are divorced. The reason cited for cancellation of the candidature by the user department is pendency of a Court case, which cannot be attributed to the applicant and he should not be put to any disadvantage.
10. In view of the observations recorded herein above, the present OA is allowed. The impugned order dated 28.04.2017 is quashed and set aside with a direction to the respondents to consider the case of the applicant and issue the offer of appointment to him, subject to his 8 O.A. No. 4433/2017 Item No. 63(C-4) meeting other eligibility criteria to the post of Grade (IV) DASS/LDC with all consequential benefits albeit on notional basis.
11. However, it is made clear that in case the outcome of FIR is against the applicant, the applicant shall not stake his claim on the said appointment and he will be required to face necessary consequences of the same as per law.
12. The above directions shall be complied with within a period of 8 weeks from the date of receipt of a certified copy of this order.
13. The OA stands allowed with the aforesaid directions.
There shall be no orders as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/NISHA/