Central Administrative Tribunal - Delhi
Tanveer Alam vs Gnctd on 31 January, 2023
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O.A. No. 1755/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1755/2022
Reserved on: 05.01.2023
Pronounced on 31.01.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Tanveer Alam, aged about 55 years,
[Lecturer-Georgraphy],
Employee ID; 20051426
S/o Late. Mohd. Yameen,
R/o Flat No. J2/66, Kalkaji,
New Delhi - 110019.
Group B Non-Gazetted
...Applicant
(By Advocate: Mr. R.S. Kaushik)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Vth Level Delhi Secretariat,
I.P. Estate, New Delhi - 02.
2. Secretary,
Union Public Service Commission,
Dholpur House,,
Shahjahan Road, New Delhi - 110069.
...Respondents
(By Advocate:Mr. R.V. Sinha and Mr. Amit Anand)
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O.A. No. 1755/2022
ORDER
Hon'ble Mrs. Pratima K. Gupta, Member (J):-
In the present O.A. the applicant has sought the following relief(s):-
" (I) call for the record.
(II) quash and set aside the impugned order/communication dated 29.07.2021 passed by UPSC.
(III) declare the applicant eligible for the post of Principal in terms in terms of Recruitment Notice/Advertisement N. 07/2021.
(IV) Pass such other hand further orders as this Hon'ble Tribunal may deem fit and proper in view of the facts and circumstances of the case."
2. The brief facts that arise in the present O.A. are:
The UPSC vide Advt No. 7/21 advertised 363 vacancies for the post of Principal in the Directorate of Education. Govt of NCT Delhi (GNCTD). The upper age limit prescribed was 50 years, an age relaxation of up to five years was allowed, subject to having experience with the Central/UT Government. The applicant‟s date of birth being 01.01.1967 on the crucial date i.e. 29.07.2021, the applicant was above 3 O.A. No. 1755/2022 the prescribed age limit of 50 years. He was entitled for an age relaxation of up to five years as he is a serving Lecturer (Geography) in a school with the Delhi Government. The applicant‟s prayer for interim relief came up for consideration before this Tribunal on 11.07.2022. However, on the said date the matter was adjourned as the learned counsel for the respondents appearing on advance notice sought time for seeking instructions on interim relief. The matter was heard on the prayer of interim relief on 13.07.2022 and the interim directions so prayed by learned counsel for the applicant were denied. Against the said orders dated 11.07.2022 and 13.07.2022 of the Tribunal, the applicant approached the Hon‟ble Delhi High Court in W.P. (C) No.10682/2022, which was disposed of vide order dated 15.07.2017. The operative portion of order dated 15.07.2017 reads as under:-
"6. In view thereof there is no merit in the petition. The petition is dismissed. It is clarified that this Court has neither considered nor commented on the merits of the contentions of either parties."4 O.A. No. 1755/2022
3. On the very same date i.e. 15.07.2022 the matter was listed before this Tribunal, but was adjourned as the copy of the aforesaid order dated 15.07.2022 of Hon‟ble High Court was not available with the parties. The applicant filed M.A. No. 2904/2022 seeking interim directions to the respondents to conduct a special examination for the applicant in respect of the post in question and the applicant be provisionally allowed to appear in the same. However, this Tribunal did not find merit in this M.A. as well and the same was disposed of vide order dated 29.09.2022. The applicant once again approached the Hon‟ble High Court vide Writ Petition (C) No. 15601/2022 pressing the interim relief. The operative portion of the order dated 21.11.2022 reads as under:
"14. In view of the above, we dispose of this petition with a request to the Tribunal to expedite the proceedings and endeavour to conclude and finally dispose of the OA within a period of four weeks from today."
4. Accordingly this matter was heard finally on 09.12.2022, however, on the said date, learned counsel for the applicant raised a preliminary objection with respect to 5 O.A. No. 1755/2022 the authenticity of form stated to be filled by the applicant, a copy of which was produced by the respondents before us with a copy to the learned counsel for the applicant in court. The learned counsel for the applicant prayed for some time to confirm whether the said form provided to him in court was the same form which the applicant had filled. The learned counsel for the applicant was granted time as prayed for.
5. On 05.01.2023 when the matter was taken up for hearing, the learned counsel for the applicant confirmed that the copy of the form so supplied by the respondents in the Court was, in fact, the same form which the applicant had filled. The matter was heard finally. In support of his claim learned counsel for the applicant has made the following points:-
(1) In the order dated 13.07.2022, the respondents‟ counsel has incorrectly mentioned that the applicant filled his application form on 12.07.2022, whereas the same was in fact filled by him on 29.07.2021. He submits that the applicant has suffered immensely in 6 O.A. No. 1755/2022 view of the incorrect statement made by the learned counsel for the respondents.
(2) The counsel for the applicant submitted that the only reason for not granting the age relaxation was that in the drop down menu the applicant has filled his experience from Andaman Nicobar (Union Territory) while the experience certificate so obtained by him is from Delhi. He submits that it is bonafide human error made by the applicant, there was no reason for him to fill his experience at Andaman Nicobar, Union territory, while he has worked all his life in GNCTD.
(3) He submits that irrespective of fact the applicant had filled Andaman Nicobar for his place of experience or GNCT Delhi both being union territories, the applicant is entitled for age relaxation of five years.
(4) He draws support from Annexure R-1 of the counter reply wherein login entries have been made with respect to certain serial numbers, however, log 7 O.A. No. 1755/2022 out entries have not been made. He claims it was not possible for the incumbents to login over once again. He submitted that there is manipulation at the end of respondents.
(5) He draws support from following judgments on the prayer of Interim Relief:
(a) Hon‟ble Apex Court in WP(C) No. 779/2022 decided on 14.09.2022. Para 5 and 7 thereof reads as under:
"5 In these circumstances and having regard to the above factors, we direct that the petitioners shall be allowed to appear for the Civil Services (Mains) the Examination, which is due to commence on 16 September 2022. This shall be without prejudice to the rights and contentions of the parties and subject to further orders.
XXX
7. The Detailed Application Form
- I shall be accepted provisionally for the purpose of enabling the petitioners to appear at the Mains Examination, subject to the final outcome of these proceedings."
(b) Judgment dated 22.02.2019 passed by the Hon‟ble Punjab & Haryana High Court at Chandigarh in LPA No. 320/2019 Annexure (RZ-2), wherein it is 8 O.A. No. 1755/2022 said that since the applicant has been denied interim relief as prayed for by the applicant, he has suffered immensely and his fundamental rights have been violated. Para 5 thereof reads as under;
"5. We cannot loose sight of the fact that in view of the prevailing socio economic condition in our country, every citizen is neither net savvy nor has a computer or laptop readily available for use. In these circumstances, when such a candidate has to submit an application on-line he has to dependent upon the cyber cafés providing the net services. Being 2 of 3 himself/herself not computer and net savvy the candidate has to depend upon the operator in the cyber café to fill in online form and in such a circumstance if any mistake occurs it would be wholly unrealistic and arbitrary to make such a candidate suffer. It is also to be taken note of that if an incorrect entry is made due to human error, there is no provision on the website of the Commission allowing correction in the online application form. In these circumstances, if a mistake is committed, there being no provision for carrying out correction, even if it is noticed subsequently, a poor candidate is to suffer for no fault."
(c) Judgment of Hon‟ble Calcutta High Court order dated 31.03.1999 in the matter of Coal Indian Officers Association Vs. 9 O.A. No. 1755/2022 UOI & Ors. Para 12, 13 and 31 thereof reproduced as under:-
"12 In so far as the High Court of Andhra Pradesh is concerned, the challenge of the candidates was upheld but in an appeal filed by the Director General of Mines Safety, the Division Bench by its Judgment and order dated 17.7.98 in Writ Appeal No. 722 of 1998 and batch allowed the appeal and set aside the Judgment of the learned single Judge and gave a direction for holding special examination for such candidates who could not avail the second examination after cancellation of the first examination so as to enable them to appear in the examination and qualify for grant of such Certificates. The writ petitioners, service conditions as of that day was required to be maintained subject to final result in the examination to be held in terms of the said order of the Division Bench.
13. Learned single Judge of the High Court of Madhya Pradesh at Jabalpur disposed of a batch of writ petitions by his Judgment and order dated 2nd March, 1998 in W.P. No. 2447 of 1997 (A.K. Anand & Ors. v.
Union of India & Ors.), dismissing the same with a direction, however, to hold special examination for such of the candidates or petitioners who have not availed the second examination after cancellation of the first examination so as to enable them to appear in the examination and qualify for grant of Certificates.
31. For the reasons aforesaid. W.P. No. 11558(W) of 1997 must fail and 10 O.A. No. 1755/2022 reliefs as prayed for are rejected. However, there shall be a direction to the respondent authority for holding a special examination for such of those petitioners who could not avail of the second examination after cancellation of the first examination so as to enable them to appear in the examination and qualify for grant of such Certificates. Until holding of such fresh examination and declaration of results, the writ petitioners' service conditions, as of today, be maintained subject to the final examination to be held in terms of this order."
6. Learned counsel for the applicant argues that even if the applicant had filled his experience from the U.T. of Andaman & Nicobar Islands, the said is a human error which is not fatal and the same could be condoned. He relies on the judgment passed by the Hon‟ble Allahabad High Court in Writ-A No. 42130/2008 titled Sanjay Raj vs. State of U.P. & Others. The relevant Paragraphs of the same read as under :-
" In the present case, an educated young man who is at the threshold of his career has suffered serious prejudice by the impugned action of the respondents. It is true that in the advertisement a clear method for calculation of the marks is mentioned. The petitioner, it appears, that inadvertently ignored the said clause of advertisement. He had mentioned his marks on the basis of existing nrsm applicable 11 O.A. No. 1755/2022 in the years 2004 in Special B.T.C. Training Course. However, it is equally true that he has enclosed all the mark sheets along with his application form. While, calculating the marks, the authority concerned ought to have ignored the mistake of the petitioner or a notice ought to have been issued to the petitioner giving an opportunity to correct the obvious human error committed by him in filing up the form. One of the requirements was to enclose all the necessary documents and mark sheets. Statements of marks in marksheet are final not the entry in application form. While filing the form humanerror can not be completely ruled out, especially, from inexperienced young candidates. Theyshould not be penaliszed so harshly for such error. A candidate whose marks are above cut of marks and is in merit list, deserves an opportunity before his candidature is rejected only on some error. There was no element of misrepresentation and petitioner would not get any benefit for his act. The Court, in the case of Kavita Rani Vs. State of U.P. and others, [2008 (4) ESC 2762 (All)] has held that in case there is human error, in that event, it should be ignored.
Likewise view has been taken in Satya Prakash Vs. State of U.P. (2010) 83 AIR 1992 (All0. That was also a case of special B.T.C. Training. The candidate therein had also mentioned wrong marks in the form. The court had held that it was mere human error and was due to inadvertent mistake. There was no intention to gain anything by wrongly reflecting in application form."
7. Per contra, learned counsel for the respondents argued that the applicant has in fact approached this Tribunal against an impugned communication placed as Annexure A-1. He submitted that the applicant was to follow the instructions clearly stipulated in the advertisement 12 O.A. No. 1755/2022 published for the vacancies in question (page 4 of the counter reply). Initially recruitment for the said post was advertised on 20.04.2021 and the closing date for the same was 13.05.2021, however, in view of the rising COVID cases, the selection process was kept in abeyance for some time and once again reactivated later with a new closing date of 29.07.2021. Moreover, the eligibility conditions, instructions and additional information with respect to the said selection process were uploaded at the website. Clause 3 of the said instructions dealt with the minimum essential qualification and Note-II provided that in the event of number of applications being large, the Commission would adopt short listing criteria to restrict the number of candidates to be called for interview to a reasonable number by using any or more methods noted therein. Clause (b) of the instructions further under the head „Important‟ read as under:
"10. In case of any guidance/information/ clarification regarding their applications, candidature etc., candidates can contact UPSC‟s Facilitation Counter near Gate - C of its campus in person or over telephone No. as mentioned in the advertisement, under reference (page 31 of the paper book)."13 O.A. No. 1755/2022
From the details available at the Commission‟s website it is apparent that the applicant had registered himself vide registration ID: v2rhkwss and logged in several times between 10.07.2021 and 29.07.2021. However, the applicant never ever submitted the complete application form along with the prescribed fee. The applicant represented before the respondents for the first time on 31.07.2021 which was after the closing date. The instructions clearly provided that in case of any guidance, information, clarification with respect to a candidate‟s candidature the candidate could approach the UPSC facilitation counter or through the helpline number. In case the applicant faced any difficulty he should have done the needful. The form so available with the parties is the form that the applicant probably tried to fill but did not submit finally. The form is not only incomplete but is with incorrect information. In the said application form, the applicant has mentioned his experience at the Union Territory of Andaman and Nicobar Islands while he has been a regular teacher with the State of Delhi.
14O.A. No. 1755/2022
8. Learned counsel for the respondents once again asserted and clarified that as per the practice followed by UPSC in various examinations and recruitment processes, an applicant could fill as many applications as possible till the last date and only the latest application with separate registration numbers, however, only the last and final application with the prescribed fee is considered and all the earlier applications so filled are ignored, the copy of the form provided before this court is one of the forms. The communication sent to the applicant was an alert to inform him that he was overage. In support of his submissions, learned counsel for respondents relied on the following judgments:-
1. "Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, (2006) 10 SCC 337.
2. Secretary, UPSC & Anr. Vs. S. Krishna Chaitanya, (2011)14 SCC 227.
3. Ramhari Gurjar Vs. State of UP & Ors., 2020 SCC Online All 834.
4. Bedanga Talukdar Vs. Saifudaullah Khan & Ors., (2011)12 SCC 85.
5. State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr., 2019 SCC Online SC 1113.
6. Dr. M. Vennila Vs. Tamil Nadu Police Service Commission, 2006 (3)CTC 449.15 O.A. No. 1755/2022
7. Dr. Anandamoy Ghosh Vs. UOI & Ors., 2014 SCC Online Cal 21543.
8. S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs & Ors., (1994) 1 SCC 1.
9. State of Orissa & Ors. Vs. Harapriya Bisoi , (2009)12 SCC 378.
10. Shankarsan Dash Vs. UOI, (1991) 3 SCC 47."
9. Mr. Amit Anand, learned counsel for the respondents submitted that they being the user department have no role till the dossiers are sent to them.
10. Heard the learned counsel for the parties at length.
11. In order to decide this O.A., it is seen that the applicant did not dispute that the copy of the form provided to him in court on the 09.12.2022, was the last form filled by him. This form did not carry correct particulars with respect to his experience. The applicant is a teacher of Geography for more than thirty years with the GNCTD, it is hard to comprehend how a teacher of the discipline of Geography can get confused and write his experience at the Union Territory of Andaman and Nicobar Islands instead of New Delhi, i.e. submit a factually incorrect statement. We expect 16 O.A. No. 1755/2022 that the applicant being a teacher of Geography with his vast experience would be well aware of the implications of giving incorrect information since in his capacity as a teacher he would have dealt with such matters during his 30 years long career. It is not expected of a geography teacher to get perplexed between the Union Territory of Andaman and Nicobar Island and New Delhi. Secondly, the prescribed cut- off date for the advertisement was 29.07.2021 and till that date the applicant had neither submitted his form nor represented before the UPSC. Thirdly, he submitted his representation only after the crucial cut off date. Additionally, he did not approach the Facilitation counter or follow the instructions stated in the advertisement. Had he done so, he would have filled in a complete form with correct details and the prescribed fee. Only the latest form of a candidate is accepted. Fourthly, the argument advanced by the learned counsel for the applicant that the applicant is not computer friendly as a result of which he committed a human error cannot be sustained, rather can be read against him as he being a teacher aspiring to become the Principal 17 O.A. No. 1755/2022 of a school, may have to be computer literate himself or seek assistance for the same to run the school administration & ably discharge his duties.
12. For the reasons stated hereinabove, none of the judgments referred by the learned counsel for the applicant come to his rescue as his mistake cannot be condoned. Finally, there is nothing on record to show that the applicant ever completed his form and deposited the required fees. We do not find any merit in the O.A. and the same is accordingly dismissed. No order as to costs.
(Pratima K. Gupta) (Anand Mathur) Member (J) Member (A) cc.