Central Administrative Tribunal - Delhi
Parmod Kumar vs Delhi Subordinate Services Selection ... on 27 September, 2023
1
Item No. 40/C-4
OA 3067/2016
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 3067/2016
This the 27th day of September, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Parmod Kumar
S/o Sh. Sukhbir Singh
Age- 36 years
Applied for - Post TGT, Social Science, Male (12/13)
OMR Sheet No - 503968
Rejection List Sr. No. - 1094
R/o Gali No. - 7B
Swatanter Nagar, Narela,
Delhi
...Applicant
(By Advocate : Mr. Yashpal for Mr. Sachin Kumar Jain)
Versus
1. Delhi Subordinate Service Selection Board
Through its Chairman/Secretary
FC-18, Institutional Area,
Karkardooma, Delhi - 110092
2. Govt. of NCT Delhi
Directorate of Education,
Through its Director/Secretary
Old Secretariat Building,
Vidhan Sabha, Delhi - 110054
...Respondents
(By Advocate: Mr. Amit Anand)
2
Item No. 40/C-4
OA 3067/2016
O R D E R (ORAL)
Hon'ble Mr. Manish Garg:
In the instant OA, the applicant seeks the following reliefs :-
"1. To consider the candidature of applicant for the TGT post code 12/13 under advertisement no. 01/13 besides post code of 118/12 under advertisement no. 02/12 and,
2. To include the name of the applicant in the list of eligible candidates released/uploaded on website of respondent No. 1 for examination for the post code 12/13, TGT Social Science Male already held on 28.12.2014; and -
3. to include name the applicant for verification of documents in list of candidate as per Public Notices dated 12.01.2016 and 14.01.2016, and :-
4. to pass the similar order/relief as given in OA 4445/2014 dated 18.12.2015, OA 202/2015 & OA 203/2015 dated 18.01.2016, and :-
5. any other or further order/relief which this Hon'ble Tribunal may deem just and proper in favour of applicant in the facts and circumstances of case."
2. Learned counsel for the applicant contends that this is second round of litigation. He draws reference to the judgement dated 18.01.2016 passed in OA No. 202/2015 with OA No. 203/2015 (Annexure A-11), an earlier round of litigation. The operative portion of the judgement reads as under:-
"29. Therefore, agreeing with the judgment of the Coordinate Bench in OA No. 1966/2013 and six other connected cases Ms. Deepika and Anr. vs. Govt. of NCT of Delhi (supra), and in 3 Item No. 40/C-4 OA 3067/2016 particular Para-18 thereof, and relying upon the very same judgment of Union Public Service Commission vs. Gyan Prakash Srivastava (supra), which was relied upon by the Coordinate Bench, we have also come to the conclusion that the Column-13 of the OMR sheet in respect of essential qualification of the applicants was framed in such a manner that it could have been filled by different candidates in different manner, and did not require all the bubbles to be filled up and marked, and the only objections to the candidature of the two applicants before us, as seen from the legend associated with the rejection of their application, as reproduced above, has been in respect of their having filled up Column-13 of the OMR sheets wrongly. Therefore, because of the faulty design of the said Column No.13, and incorrect instructions regarding the manner it was to be filled up, the action of the respondents in rejecting the applicants' OMR sheets only on the ground of wrong filling up of that Col. No.13 is set aside.
30. Therefore, both the OAs are partly allowed, and the respondents are directed to call the applicants of these two OAs for verification of their documents to verify their actual qualifications as possessed by them as on the last date for filling up of the application forms for the years 2012, as well as 2013, and to consider their candidature, and if their qualifications are found to be fulfilled as on the last date of receipt of those applications, as per the Notifications issued for the respective years 2012 & 2013, by the abovementioned Advertisements, to allow their candidature for the relevant posts.
31. However, since the examination was conducted on 28.12.2014, and the results of the same may have been declared, and the selected candidates may have even joined, who were not parties before us in these two OAs, it is hereby made clear that if, and when, the applicants of these two OAs are found to be eligible candidates in the respective years, or are permitted to appear at any supplementary or subsequent examination, for the same/similar Post Codes, no benefit in respect of the period already elapsed till now will accrue to these two applicants, and that their candidature will be considered to have been only notionally allowed for appearance at the examination held on 28.12.2014.
32. In order to avoid such futile litigation in future, perhaps the respondents may do well to look into the structure of Column-13 of their OMR Sheets, and the manner in which the OMR scanning and scrutiny of that Column is conducted by them."4
Item No. 40/C-4 OA 3067/2016
3. Learned counsel for the applicant further contends that the present case is squarely covered by a judgment passed by a Coordinate Bench of this Tribunal in OA No. 1497/2017 & batch dated 21.03.2023 and also OA No. 2263/2017 dated 01.05.2023.
4. Vehemently opposing the grant of relief in the present OA, learned counsel for the respondents rely on the averments made in the counter affidavit, which reads as under:-
"10. Thereafter, as per advertisement notice No 01/2013, DSSSB again invited applications for filling up vacant posts of various categories of post codes 01/13 to 23/13. Candidates were advised to read the detailed instructions in the advertisement before filling up the Optical Mark Reader (OMR) application form strictly according to the instructions. It was pointed out as per instruction at para 9 'Invalid Applications' of the advertisement notice that the application forms with the mentioned deficiencies or irregularities will be treated as invalid and summarily rejected. Following deficiency was observed in the application form of the applicant Parmod Kumar as per these instructions about lnvalid Applications.
"(1) Not having the requisite qualification as on closing date."
11. It was ałso specifically mentioned in the Note appended to the above said instructions that no claim in respect of the cases rejected on the mentioned grounds will be entertained. The note is quoted below:-
"Note: No claim for re-consideration of the rejected cases on the grounds specified above will be entertained. Original document/certificates are to be produced along with self- attested copies at the time of verification of documents only."
12. The applicant has signed a declaration in the application form at para-17, which binds him with the contents of the 5 Item No. 40/C-4 OA 3067/2016 declaration. Clause a) and d) of the declaration are reproduced as under:
"17.a) I have read all the provisions mentioned in the Advertisement/notice of examination carefully as published in the website of DSSSB and I hereby undertake to abide by them."
"17.d) I understand that in the event of information being found false or incorrect or incomplete at a stage prescribed in the notice or any ineligibility being declared before or after the examination, my candidature/selection/appointment is liable to be cancelled/terminated automatically without any notice to me and action can be taken against me by the Board."
The said declaration of the applicant, combined with the note appended to the instructions at para 9 of the advertisement, as referred in previous para, leaves no scope for the respondent DSSSB to consider the candidature of the applicant in contradietion of the information provided by him through his application form. Accordingly his candidature was rejected on the basis of information provided by him in his application form, under the said declaration, which did not render him eligible for the said post in the context of essential qualification as required in the Recruitment Rules for the post.
13. Every condition given in the advertisement for the said post was deemed to be accepted by all the candidates, the very moment they applied for the post, by virtue of their application whieh was duly signed by them. Declaration in para 17 of the application form duly signed by the candidates unequivocally provides that the information provided by the candidate in the form has to be treated as correct, complete and final in respect of the candidature for the post applied for. Accordingly, the respondent's act of rejecting his candidature on the basis of information contained in the application form is correct and justified. The clause (e) of Para 17 is specifically reproduced in this context as under:
'The information submitted herein shall be treated as final in respect of my candidature for the post applied for through this application form' The applicant Shri Parmod Kumar has failed to honour his declaration and is mischievously trying to mislead the Hon'ble CAT in hearing his prayer which is totally misplaced in view of the above mentioned fact.
14. A Notice dated 10/09/2013 was uploaded on the website of the DSSSB, inviting objections from the candidates about the list of eligible and ineligible candidates uploaded on the DSSSB website, wherein it was stated as under:
6Item No. 40/C-4 OA 3067/2016 "The Board has uploaded the list of eligible & ineligible candidates for the post codes 02/13 (Librarian), 03/13 (Asstt. Teacher Nursery) & 04/13 to 19/13 (TGTS) on the website of the Board. Any candidate, who has applied for the above post codes and has any objection about his/her eligibility/ineligibility, may submit his/her representation, with documentary evidence addressed to the Controller of Exam by speed post/Regd.Post/Normal post or may deposit in the designated drop box at DSSSB reception counter latest by 20/09/2013."
15. The candidate Shri P'armod Kumar had not darkened the requisite circle informing about one of the essential qualifications for the post applied for OMR application form of the applicant Shri Parmod Kumar for the Post Code 12/13 was rejected as he did not possess the essential qualification required for the post, as per the Recruitment Rules, as per the information provided in Column No. 13 - 'Essential qualification TGT & TGT (MIL)' of the OMR application form, as explained in the aforementioned para, which is reiterated but not repeated. Representation was received from Shri Parmod Kumar within the stipulated time limit i.e. by 20.09.2013, however, rejection of his candidature could not be reviewed."
5. Having heard learned counsel for the applicant and after perusing the pleadings available on record, we are of the considered view that there is a striking similarity between the present case as well as the decision rendered by a Coordinate Bench of this Tribunal in OA No. 1497/2017 & batch. For the sake of brevity, the order passed in OA No. 1497/2017 & batch is quoted herein verbatim:-
"As the reliefs sought, the issues and the ground urged are stated to be identical in the captioned OAs, therefore, these matters have been heard together and are being disposed of by the present common Order.
2. The brief facts leading to the present Original Applications are that in the year 2012, the respondent no. 1 had published 7 Item No. 40/C-4 OA 3067/2016 Advertisement No. 02 for the various Post Codes, including Post Codes, bearing No. 106/2012 and 121/2012. In response to such advertisement, the applicants applied for the posts under which they found themselves eligible and participated in the relevant selection process.
3. The candidatures of the applicants were rejected by the respondents on the ground "not having the requisite qualifications as on the closing date". Aggrieved by such rejection, similarly placed persons approached this Tribunal by filing various Original Applications, including O.A. Nos. 4445/2014 and a batch, and all such OAs have been disposed of by this Tribunal vide a common Order dated 18.12.2015. Para 20 of the said common Order reads as under:-
"20. In view of the above legal position and in view of the fact that the applicants were already permitted to take the examination provisionally by virtue of the interim orders dated 23.12.2014 and their results are yet to be declared by the respondents, we are of the considered view that the ends of justice would be met if the respondents are directed to declare the results of the applicants and to consider their cases along with others as per his/her merit, after verifying their qualifications or otherwise satisfying themselves with their suitability, in accordance with law, within four weeks from the date of receipt of a copy of this order. The QAs are disposed of, accordingly. No costs."
4. The applicant in O.A. No. 3961/2016 also approached this Tribunal through O.A. No 286/2016 and this Tribunal vide order dated 22.01.2016 (Annexure A-3) disposed of the said OA with a direction to the respondents to consider the claim of the said applicant on the same lines as in the common Order in O.A. Nos. 4445/2014 and a batch.
5. Two similarly placed persons, namely, one Mr. Vikas and Ors. and Ms. Pushpa Devi and Ors., had also approached this Tribunal in the similar facts and circumstances and for similar relief through O.A. No. 202/2015 and O.A. No. 203/2015 respectively and these two OAs have been disposed of vide a common Order dated 18.01.2016 of the Tribunal. Paras 28 to 32 of the said common Order read as under:-
"28. One more aspect of these cases is that when the respondents had combined the examination in respect of 2012 and 2013 advertisements together, and the applicants could have applied against only one of the two Post Codes, either the Post Code in the year 2012 advertisement, or the Post Code in the year 2013 advertisement, it has so happened that both these applicants had filled up and downloaded the OMR sheets by Jogging in 2012 ID, and have then mistakenly filled up in Column-11 the Post Code relevant for the Post Code of 2013 advertisement. It appears to us that the OMR sheets, as presently prepared by the respondents, do not have proper 8 Item No. 40/C-4 OA 3067/2016 columns for sufficient information to be provided by the applicants in such cases where separate applications have been filled up in respect of the two years, and the two Post Codes, and it is the respondents who had then later on decided in respect of the examination n respect of those two Post Codes in two different years to be held together. This is one more reason why the applicants are entitled to reliefs as prayed for by them.
29. Therefore, agreeing with the judgment of the Coordinate Bench in OA No. 1966/2013 and six other connected cases Ms. Deepika and Anr. vs. Govt. of NCT of Delhi (supra), and in particular Para-18 thereof, and relying upon the very same judgment of Union Public Service Commission vs. Gyan Prakash Srivastava (supra), which was relied upon by the Coordinate Bench, we have also come to the conclusion that the Column-13 of the OMR sheet in respect of essential qualification of the applicants was framed in such a manner that it could have been filled by different candidates in different manner, and did not require all the bubbles to be filled up and marked, and the only objections to the candidature of the two applicants before us, as seen from the legend associated with the rejection of their application, as reproduced above, has been in respect of their having filled up Column-13 of the OMR sheets wrongly. Therefore, because of the faulty design of the said Column No. 13, and incorrect instructions regarding the manner it was to be filled up, the action of the respondents in rejecting the applicants' OMR sheets only on the ground of wrong filling up of that Col. No.13 is set aside.
30. Therefore, both the OAS are partly allowed, and the respondents are directed to call the applicants of these two OAs for verification of their documents to verify their actual qualifications as possessed by them as on the last date for filling up of the application forms for the years 2012, as well as 2013, and to consider their candidature, and if their qualifications are found to be fulfilled as on the last date of receipt of those applications, as per the Notifications issued for the respective years 2012 & 2013, by the abovementioned Advertisements, to allow their candidature for the relevant posts.
31. However, since the examination was conducted on 28.12.2014, and the results of the same may have been declared, and the selected candidates may have even joined, who were not parties before us in these two OAs, it is hereby made clear that if, and when, the applicants of these two OAs are found to be eligible candidates in the respective years, or are permitted to appear at any supplementary or subsequent examination, for the same/similar Post Codes, no benefit in respect of the period already elapsed till now will accrue to these two applicants, and that their candidature will be considered to have been only notionally allowed for appearance at the examination held on 28.12.2014.
32. In order to avoid such futile litigation in future, perhaps the respondents may do well to look into the structure of Column13 9 Item No. 40/C-4 OA 3067/2016 of their OMR Sheets, and the manner in which the OMR scanning and scrutiny of that Column is conducted by them."
6. The applicants in O.A. No. 1497/2017 and the applicants in the captioned O.A. No. 1497/2017 and the applicants in the captioned O.A. No. 1553/2017 had also approached this Tribunal along with a few others through another Original Application, i.e., O.A. No. 460/2016 and such OA was disposed of by the Tribunal vide order dated 22.07.2016 with the following directions:-
"3. Accordingly, this OA is disposed of with a direction to the respondents to examine the cases of the applicants herein and in case they are found to be covered by the aforesaid judgments of this Tribunal passed in OA Nos.4445/2014 alongwith connected matters, OA No.202/2015 and OA No.203/2015, then they may be extended the same benefits as were granted to the applicants in aforesaid OAs. Decision may be taken by the respondents within a period of six weeks from the date of receipt of a certified copy of this order and communicated to the applicants by means of a reasoned and speaking order. There shall be no order as to costs."
7. The applicants in O.A. No. 202/2015 and 203/2015 further approached this Tribunal alleging of wilful defiance of the directions of this Tribunal in common Order dated 18.01.2016 of this Tribunal through C.P. No. 548/2016. The applicants in the present OA have also approached the Tribunal through Contempt Petitions alleging wilful defiance of the directions of this Tribunal in the respective OAs filed by them. The respondents have passed a common Order dated 07.10.2016 and the Tribunal vide impugned order dated 20.02.2017, prima facie, held the order to be contemptuous and accordingly, learned counsel for the respondents sought permission to withdraw the Speaking Order dated 07.10.2016 with liberty to pass a fresh one in compliance of directions of this Tribunal. The respondents were granted the permission and finally the respondents passed order dated 21.03.2017.
8. In the meantime, the Tribunal in view of such order passed by the respondents closed the CP vide Order dated 27.03.2017 and aggrieved by such Order dated 27.03.2017 of this Tribunal, the applicant in O.A. No. 203/2015, approached the Hon'ble High Court of Delhi through WP(C) No. 3460/2017, titled Pushpa Devi vs Rajesh Bhatia and anr., and the Hon'ble High Court dismissed the said writ petition vide order judgment dated 24.04.2017. The petitioner in the said petition, Ms. Pushpa Devi approached the Hon'ble High Court through Review Petition No. 333/2017 and the Hon'ble High Court was pleased to recall the order/judgment dated 24.04.2017 and allowed the said writ petition vide order/judgment dated 17.11.2017 (Annexure R-7) with O.A. No. 1553/2017.
10Item No. 40/C-4 OA 3067/2016
9. The Order/Judgment dated 17.11.2017 of the Hon'ble High Court of Delhi was challenged by the respondents before the Hon'ble Apex Court and the SLP bearing Diary No. 12160/2018 was dismissed vide Order\Judgment dated 04.07.2018. Another identical OA, i.e., O.A. No. 502/2016 was disposed of by this Tribunal with the similar lines vide Order/Judgment dated 16.03.2017 and aggrieved by the same, the respondents have filed the WP(C) No. 2786/2018 before the Hon'ble High Court of Delhi and the said writ petition was dismissed by the Hon'ble High Court of Delhi vide Order/Judgment dated 22.10.2018 and the said Order/Judgment was also challenged by the respondents vide SLP (Diary No. 16098/2019) and the same stands dismissed by the Hon'ble Apex Court on 02.07.2019.
10. It is further admitted by the learned counsels for the parties that the directions of the Tribunal in the case of Pushpa Devi (supra) as well as Jagdeep (supra) have already been complied by the respondents.
11. Mr. Tandon, learned counsel for the applicants, submits that as the issues involve in the present case have already authoritatively been decided up to the level of the Hon'ble Apex Court in the case of Pushpa Devi (supra) and in the case of Jagdeep (supra), the present OA may also be disposed of in the same terms.
12. Though counter reply has been filed in response to the notices from the Tribunal in the aforesaid OAs and claims of the applicants have been opposed, however, at the outset, Ms. Sumedha Sharma, learned counsel appearing on behalf of the respondents in O.A. No. 1553/2017 has admitted that the issue involved in the present case stands decided in the case of Pushpa Devi (supra) and Jagdeep (supra) and if the instant OA is also decided in the same terms, the respondents are having no objection.
13. However, Mr. Amit Anand, learned counsel appearing on behalf of the respondents submits that the judgment of the Tribunal affirmed by the Hon'ble High Court of Delhi and further by the Hon'ble Apex Court in the case of Pushpa Devi (supra) and that in the case of Jagdeep (supra) will be of no help to the applicants in as much as the OMR sheets which were essentially required to be darkened by the applicants had admittedly not been darkened by the respective applicants. He further submits that subsequent to the decisions of the Hon'ble High Court in the case of Jagdeep (supra), the issue had arisen before the Hon'ble Apex Court in SLP No. 1752/2023, titled Arjun (Minor) through His Father Vs Consortium of National Law Universities & Anr., which was disposed of by the Hon'ble Apex Court on 24.01.2023. In the said judgment, the Hon'ble Apex Court has noted that the mistake has caused the candidate heavily as 11 Item No. 40/C-4 OA 3067/2016 despite his merit, if he is treated as creamy layer candidate, then the benefit of reservation would not be available to him. He has further referred to the judgment of the Hon'ble Apex Court dated 17.12.2021 in the Civil Appeal No. 7721/2021 titled Madhya Pradesh Public Service Commission versus Manish Bakawale & Ors., wherein it has been held that if the respondents who had made declaration about the correctness of his eligibility and secured the selection to be placed in the main list for the said post, he has to blame himself if found ineligible since his height was lower than stipulated in the relevant Advertisement and Recruitment Rule.
14. We have considered the submissions made by the learned counsels for the parties. We have also perused the pleadings as already recorded hereinabove. The counsels have admitted that the issues involved in all the three captioned matters are identical and accordingly, the matters were heard together and are being disposed of vide the present common Order. The learned counsel appearing for the same respondents in one of the aforesaid OAs, at the outset, submitted that the issue, as identical in the present OAs, has already been adjudicated up to the level of the Hon'ble Apex Court in the case of Pushpa Devi (supra) and Jagdeep (supra) and the directions in such judgments have also been complied with by the respondents.
15. Further in counter reply to the O.A. No. 1497/2017, the respondents have very categorically in Para 8 have asserted that "because Sh. Amit Kumar and Ors. are on the same footing as the applicants of the above said O.A. No. 4572/2014 and WP(C) No. 3460 and other OAs discussed in the said order". Further, similarly in reply to the captioned O.A. No. 3961/2016, the respondents have categorically asserted in para 4.1 of their counter reply that "Ms. Pushpa Devi had filed the CP with a prayer to punish the respondent-contemnors for their not having complied with the Tribunal's orders dated 18.01.2016 in O.A. No. 203/2015, with similar issues as that of the applicant Manoj Kumar Ruhela". Further in the reply to the captioned O.A. No. 3961/2016 and from the aforesaid, it is evident that it has been the stand of the parties to the captioned OAs that the issue involved in the present OAs are identical to that in the case of Pushpa Devi (supra) and such issue had already been decided by this Tribunal and further by the Hon'ble High Court of Delhi and such decisions have been affirmed by the Hon'ble Apex Court, as recorded hereinabove.
16. Learned counsel for the respondents in one of the aforesaid three OAs has also accepted such view, however, as the learned counsel appearing for the respondents in the remaining two OAs has brought to our notice, two aforesaid judgments of the Hon'ble Apex Court. We have gone through the said judgments as well. We find that in the case of Arjun (supra), the Hon'ble Apex Court had called upon the Grievances Redressal Committee 12 Item No. 40/C-4 OA 3067/2016 to take a call on the representations in time so that the petitioner succeeding, he is not deprived of the relief. This clearly indicates that no issue was finally decided and the matter was left to the concerned grievances Committee in the said judgment. Further in the case of Manish (supra) referred to and relied by Mr. Amit Anand, learned counsel for the respondents, the facts and circumstances were entirely different to those in the matter. In the said case, it was the assertion of the candidate initially that he was eligible for the relevant post and ultimately if he was not found eligible, the Hon'ble Apex Court did not find any ground for interference whereas in the present case, it is specific case of the applicants that the applicants were not only eligible for the examination year 2013, but were also eligible for the relevant examination for the same post of 2012 as well.
17. In view of the facts and circumstances, we do not find any reason not to follow the Order/Judgment passed by the Hon'ble High Court of Delhi in Pushpa Devi (supra) and affirmed by the Hon'ble Apex Court, as recorded hereinabove.
18. Accordingly, the present OAs are allowed with the following directions:-
(i) Respondents are directed to consider the candidatures of the applicants for the relevant Post Code(s), subject to the applicants are found in merit and suitable otherwise at the relevant point of time. If on such considerations, the applicants are found suitable the applicants shall be appointed to the relevant post(s).
(ii) On such appointment, the applicants shall be eligible for consequential benefits, i.e., seniority, fixation of pay from the date when their immediate junior in the relevant merit list has been appointed.
(iii) However, the fixation of pay shall be on notional basis and the applicants shall not be entitled for any arrears.
(iv) The aforesaid exercise shall be completed by the respondents as expeditiously as possible and preferably within ten weeks of receipt of a certified copy of this Order.
19. The OAs stand partly allowed in the above terms. However, there shall be no order as to costs.
20. A copy of this Order may be placed in the files of all the aforesaid OAs."
6. In view of the aforesaid, the present OA is disposed of in terms of OA No. 1497/2017, as reproduced above, with the following directions:-
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(i) Respondents are directed to consider the candidatures of the applicant for the relevant Post Code(s), subject to the applicant is found in merit and suitable otherwise at the relevant point of time. If on such consideration, the applicant is found suitable the applicant shall be appointed to the relevant post(s).
(ii) On such appointment, the applicant shall be eligible for consequential benefits, i.e., seniority, fixation of pay from the date when his immediate junior in the relevant merit list has been appointed.
(iii) However, consequential benefits and fixation of pay shall be on notional basis, the applicant shall not be entitled for any arrears.
(iv) The aforesaid exercise shall be completed by the respondents as expeditiously as possible and preferably within 10 weeks of receipt of a certified copy of this Order.
There shall be no order as to costs.
(Anand S. Khati) (Manish Garg) Member (A) Member (J) /akshaya/