Arunesh Awasthi vs Government Of N.C.T.
2003 Latest Caselaw 81 Del

ORDER

1. Dismissed as not pressed.

2. The petitioners are aggrieved by an order dated 29th October, 1999 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) dismissing R.A. No. 205 of 1999 in O.A. No. 898 of 1998.

3. Briefly stated, the facts are that the petitioners are part-time teachers with the Government of Delhi, Initially, they had filed O.A. No. 1879/94 praying for regularisation/absorption in service with consequential benefits. That O.A. was disposed of on 31st January, 1997 with a direction to the respondents to consider their case for regularisation against vacant posts of teachers after holding a suitable selection test. Pursuant to the orders passed by the Tribunal, the respondents held a selection test. Unfortunately, the petitioners were not successful in the selection test. Accordingly, they filed O.A. No. 898/98. In their fresh application, the petitioners alleged that the respondents had conducted a selection test to regularise part-time teachers without disclosing the mode of selection/process of selection. The petitioners challenged the process of selection/mode of selection as being arbitrary and for a declaration that the order dated 31st March, 1998 whereby they were declared unsuccessful in the selection test be quashed and, instead, they be regularised as teachers. The prayer made by the petitioners in the O.A. was for directions to the respondents:

"to place before this Court, the process/scheme of holding a selection test and mode of selecting the candidates, and to withdraw its order No. 17 dated 31.3.1998 or the same may be declared as null and void. The respondent may further be directed to declare the petitioners as successful candidates considering the criteria of regularistion of the petitioners, as being, securing of minimum qualifying percentage i.e. 33% marks."

4. It appears that during the pendency of the O.A., the petitioners applied for production of the records of the respondents. By an order dated 12th October, 1998 the respondents were directed to produce the relevant records and thereafter by an order dated 26th November, 1998 they were directed to give a copy of the relevant record/guideline and policy showing the cut-off marks to Counsel for the petitioners within a week. The respondents complied with the order passed by the Tribunal and on 21st December, 1998. Counsel for the petitioners prayed for and was granted permission to file an additional affidavit during the course of the day. The petitioners thereupon filed an additional affidavit in which it was stated that since their selection was made on the basis of a Cabinet decision, which was applicable for a different and distinct mode of recruitment otherwise than the test in which the petitioners had participated, it may be deemed that there was no policy for the selection of the petitioners. It was prayed in the additional affidavit that in the absence of a policy to select the petitioners, who had appeared in the written test, the candidates obtaining 33% marks and onwards, deserve to be selected.

5. The O.A. was thereafter heard by the Tribunal. By an order dated 15th April, 1999 the Tribunal held that insofar as the first relied is concerned, the eligibility criteria and other relevant details prescribed in the set of instructions covering the written selection test had been supplied to the petitioners. As such, nothing further survived in respect of this relief. As regards the second relief, it was held that merely because the petitioners were not successful in the selection test, that does not make the cut-off marks illegal or arbitrary as the same were uniformly applied to all candidates.

6. Feeling aggrieved by the order dated 15th April, 1999, the petitioner filed CW No. 4101/99 in this Court. By an order dated 14th July, 1999, the writ petition was dismissed. The petitioner then filed R.A. No. 62/1999 seeking a review of the dismissal order dated 14th July, 1999. When the review application came up for hearing on 25th August, 1999, Counsel for the petitioners sought leave to withdraw the review application with liberty to approach the Tribunal. The request was allowed and the review application was dismissed as withdrawn.

7. The petitioners then filed R.A. No. 205 of 1999 in the Tribunal. By the impugned order dated 29th October, 1999 the review application was dismissed by the Tribunal. It was contended by the petitioners before the Tribunal that an additional affidavit had been filed on 21st December, 1998 challenging the validity and legality of the policy decision of the respondents as to the method of recruitment of teachers. The Tribunal, however, concluded that no prayer was made in the additional affidavit to amend the relief clause of the O.A,. to include a challenge to the policy decision regarding the method of recruitment of teachers. The Tribunal felt that the petitioners were trying to widen the scope of the relief prayed for in the O.A. Accordingly the review application was dismissed. It is under these circumstances that the petitioners filed the present writ petition challenging the correctness of the order dated 29th October, 1999.

8. The contention of learned Counsel for the petitioners before us was simply this: that the petitioners were permitted to inspect the relevant records of the respondents and on the basis of the inspection, they were permitted to file an additional affidavit. In the additional affidavit, the petitioners had specifically stated that the respondents did not have any police for the selection of candidates who had appeared in the written test in which the petitioners had participated. The petitioners had specifically prayed in the additional affidavit that in the absence of any selection policy, candidates such as the petitioners deserve to be selected. It was submitted that technically the O.A. filed by the petitioners was not amended after inspection of the records and the filing of an additional affidavit, but the effect of the permission granted to the petitioners to file an additional affidavit and their doing so was only meant to highlight and bring home the fact that the respondents did not have any valid selection policy. It was submitted that the petitioners ought not to be non-suited on such a technical ground especially considering the background facts. Learned Counsel for the respondents, of course, opposed the submissions of learned Counsel for the petitioners but, in our opinion, in vain.

9. We are of the view that learned Counsel for the petitioners is quite right in submitting that the cumulative effect of the orders dated 12th October, 1998, 26th November, 1998 and 21st December, 1998 is that the petitioners were given the liberty of raising additional contentions after having inspected the records of the respondents. The petitioners availed of this liberty by filing an additional affidavit in which it was brought out that the respondents did not have any policy for selection based on the written test and that in the absence of any policy, the selection process was vitiated. Taking the background facts into consideration, the Tribunal ought to have permitted the petitioners to challenge the selection process even in the absence of a specific prayer having been made by way of an amendment to the O.A. If a contrary view is taken, as has been done by the Tribunal, it will only mean that the permission given to the petitioners to inspect the records of the respondents and liberty given thereafter to file an additional affidavit becomes merely an exercise in futility surely, this Court not have been the intention of the Tribunal while passing the orders dated 12th October, 1998, 26th November, 1998 and 21st December, 1998. These orders passed by the Tribunal have to be given some meaning and the only possible interpretation is that the petitioners were given the liberty of bringing on record the selection process and, if possible, challenging its legality and validity. As already mentioned above, the petitioners did precisely this.

10. It is not for us to say whether the allegations made by the petitioners are substantiated by them or not but, in any case, the petitioners are entitled to be heard on this aspect of the matter and to contend before the Tribunal that the selection process is vitiated. This opportunity was erroneously not granted to the petitioners by the Tribunal. We are of the view that the Tribunal did not give full effect to its own orders and this resulted in a miscarriage of justice insofar as the petitioners are concerned. Consequently, we have no option but to set aside the impugned order dated 29th October, 1999 and we do so. The writ petition is allowed but with no order as to costs.

11. The parties will appear before the Tribunal on 4th March, 2003 for further proceedings.