Smt. Sumitra Devi vs Lt. Governer Of Delhi And Ors.
2007 Latest Caselaw 2047 Del

JUDGMENT

S.L. Bhayana, J.

1. By this writ petition, Petitioner challenges order dated 12.03.2003, passed by Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the Tribunal'), dismissing her OA No. 545 of 2003. Petitioner also seeks quashing of order dated 26.10.1989 passed by the Dy. Commissioner of Police, Delhi. By the said order, appointment letter of the Petitioner was cancelled. Petitioner challenged the order before the Tribunal. The Tribunal dismissed the OA as barred by limitation.

2. Facts leading to the present writ petition are: Petitioner belonging to Bawaria Community appeared in the recruitment test held on 13th March, 1989. After passing the examination and the physical endurance test, she was, vide letter dated 21st June, 1989, called for medical examination for the post of 'woman constable' in Delhi Police. After the Petitioner was declared medically fit, her appointment and candidature was cancelled vide letter dated 26th October, 1989 on the ground that her name was sponsored by the Employment Exchange as 'Scheduled Tribe' candidate but on verifying the papers it was found that the Petitioner belonged to 'Bawaria Community' in Haryana State, which is enlisted as Schedule Caste. At the time when the Respondents cancelled her appointment, the controversy as to whether Bawaria Community is to be construed as 'Scheduled Tribes' or 'Scheduled Caste' was very much alive. Persons belonging to the said community against whom action was taken had knocked the doors of the court. Petitioner waited for the outcome of the said cases pending in the courts to decide her further course of action. When subsequently she approached the Tribunal to set aside and quash the cancellation letter dated 26th October 1989, the Tribunal dismissed the application on the ground that the applicant had belatedly deserved no consideration.

3. In the writ petition, the Petitioner has submitted that as per the brochure on SC/ST issued by the Government of India, Bawaria Community in the Haryana State is treated as Scheduled Caste and not Scheduled Tribe. Rejection of her candidature after the selection and receipt of the appointment letter is wholly illegal. Further the Respondents themselves treated the community in Scheduled Tribe category and have given appointments to the individuals of this community in the Scheduled Tribe category. This practice has been in existence since 1955.

4. Petitioner has further stated that there are about 80 individuals of the same community serving in Delhi Police and are enlisted under Scheduled Tribe category on the basis of the caste certificate issued by the Divisional Officers and the first class magistrates of the different states wherein the certificates specifically mention the caste as 'Bawaria'. Delhi Police has been recruiting the individuals belonging to this community under the Scheduled Tribe category irrespective of what is stated in the certificates.

5. The Petitioner has, in the writ petition, averred that every year recruitment of constables and the direct recruitment to the post of Head Constable (Ministerial) and Sub-Inspector (Executive) is taken up. It is always notified that the individuals of Bawaria Community should fill up the forms under the Scheduled Tribe category. The Petitioner, in her application form, had clearly mentioned that she belongs to the Bawaria community and since the concerned authorities as well as Respondents were treating Bawaria community in the Scheduled Tribe category, Petitioner also appeared in the test and passed the same. After ascertaining the reasons for the termination of appointment and also after becoming aware of the Respondents intention to dismiss the other Bawaria community individuals and also the fact that similarly situated individuals had filed petitions in the court, Petitioner naturally awaited the decision in those cases. After the decisions of Rohtas Kumar and Om Prakash cases by the High Court, the Petitioner made representation before the authorities to consider her case and appoint her as constable in the Scheduled Tribe category. Petitioners case is that there has been a controversy as to whether the Bawaria Community be treated as Scheduled Caste or as Scheduled tribe as this Community formed part of the Vimuka Jatis, which was earlier known as criminal tribes included in the Criminal Tribes Act of 1911, repealed in 1952. Further, individuals though issued certificate of scheduled caste were for the recruitment purposes construed as Schedule Tribes and were given employment in the Delhi Police.

6. In the year 1994-95, Delhi Police realized the mistake of recording Bawaria community as Scheduled Tribe category and, therefore, services of fresh recruits, Rohtas Kumar and Om Prakash were terminated under Rule 5 of CCS (Temporary Service) Rules on the grounds that they got appointment by producing wrong caste certificates. To undo the said mistake of having wrongly recruited Bawaria Community under the category of Scheduled Tribe, the department started terminating them. Petitions were filed before the Administrative Tribunal, challenging the said action and the same were disposed of with the direction to the department that 'no punitive action be taken without holding an enquiry'.

7. Vide order dated 14th October, 1999 and 12th October, 1999 issued from the Office of Commissioner of Police, the Commissioner of Police took up the matter of Bawaria Community with the Ministry of Home Affairs, who had been in service since 1955 under the Scheduled Tribe Category. Further since it was a case of one time acceptance to be considered for not taking action against police personnel belonging to Bawaria Community, all departments were asked to ensure that no one was dismissed from service till a policy decision is taken up and the same is communicated to the District Units after the matter is considered by Ministry of Home Affairs. Further, if any departmental action has been initiated, the same would remain in abeyance till further orders. It was also decided that departmental action would be taken only in cases where forgery in the caste certificate is noticed.

8. In the matter of Constable Rohtas Kumar v. UOI OA No. 639 of 1997 and Om Prakash v. UOI OA No. 511 of 1997, the Tribunal, vide its order dated 8th December, 1997, 5th December, 1997 and 16th January, 2002 directed Respondents to reconsider the case of the Petitioners since they had been wrongly selected against the vacancy which is otherwise reserved for Scheduled Tribe category only and directed to exchange the vacancy with that of Scheduled Caste. The department challenged the order of the Tribunal through Writ Petition No. 2004 of 1998 and CWP No. 2354 of 1999 and the Court vide its order dated 18th October, 2001 held that "department on their own entertained some confusion in the matter and treated a sizeable number of Bawaria caste candidates in the Scheduled Tribe category and later sought clarification from the government. In the light of these circumstances, the candidates cannot be blamed. There is nothing to show on record that the documents were tampered or that the certificates were procured through fraudulent means." As a consequence, the said writ petition was dismissed. Special Leave Petition, filed in the Supreme Court by the Department, was also dismissed.

9. Respondents, in their counter affidavit, have stated that the Tribunal, without going into the merits of the case, dismissed the OA of the Petitioner on the short ground of limitation. The Respondents have stated that the cancellation of the candidature of the Petitioner was issued vide letter No. 15883, dated 26th October, 1989 and the same has been challenged in the year 2001, almost after lapse of 12 years. The Tribunal dismissed the OA of the Petitioner under Section 21(1)(a) of the Administrative Tribunal Act, 1985 on the grounds of limitation.

10. Learned Counsel for the Petitioner submitted that Bawaria caste was being treated at the time of recruitment as Scheduled Tribe for a long time. This practice has continued since 1955. The individuals submitted their caste certificates yet they were considered as Scheduled Tribe for the purposes of recruitment. It was when the recruits, Rohtas Singh and Om Prakash challenged their cancellation order by filing OA before the Tribunal, which was allowed and further the writs filed by the Respondents got dismissed by the High Court and finally when the SLP of the Respondents was dismissed by the Supreme Court, the controversy came to an end. It is submitted that the Petitioner would not seek any claim of back wages or seniority for the interregnum period. However, this period may be taken on consideration for computing qualifying service for pension and retiral benefits.

11. Learned Counsel for the Respondents, while arguing on the maintainability of the writ petition, submits that after the cancellation order, which was passed on 26th October, 1989, Petitioner remained silent for a period of 12 years. No representation was made by the Petitioner. It was only when the special leave petitions filed by the Government of NCT of Delhi against the writ petitions filed by Om Prakash and Rohtas Singh were dismissed then the Petitioner had chosen to make a representation in this regard. It is vehemently argued by learned Counsel for the Respondents that the Petitioner cannot sleep by and lie back and then claim benefit like others, who may have challenged the same.

12. We have heard learned Counsel for the parties and perused the record.

13. The Petitioner has brought to our notice the difficulties faced by the Bawaria Community serving in the Delhi Police on account of the controversy regarding their status as Scheduled Tribe or as Scheduled Caste. The Petitioner has not only argued that the misconstruction of the caste certificate is solely attributed to the authorities who have been giving employment to the Bawaria Community by considering them as Scheduled Tribe in spite of their caste certificate annexed to the application. Petitioner brought to our notice that similar individuals in similar circumstances have been given favorable consideration pursuant to Rohtas Kumar and Om Prakash cases. The High Court, while dismissing the department's petition, also observed that Department on their own entertained the confusion and treated sizable number of Bawaria Caste candidates as Scheduled Tribe. The individuals cannot be blamed for this confusion. The Court further observed that there is nothing on record to show that these individuals tampered with the documents or procured the certificates by fraudulent means.

14. It is a matter of record that the Petitioner belongs to Bawaria Community and she successfully cleared her exams and the medical fitness test on the basis of which the appointment letter was issued. At the time of filing of the application, all the particulars including the caste certificate was annexed which was duly inspected by the Department at the time of appointment. Subsequently, when the controversy surrounding the Bawaria Community saw the light of the day the Petitioner was issued a cancellation letter on the ground that she is not a Scheduled Tribe but a Scheduled Caste. It seems that the Respondent showed great haste in cancelling the appointment letter. By blaming the Petitioner to have manipulated the documents they have tried to shift their own blame and confusion on to a innocent and helpless candidate, who in bona fide belief filed the application to seek service in the Delhi Police.

15. It is not in dispute that the department had sought clarification on this controversy and also pursuant to this development it was decided that a database of all persons belonging to Bawaria Community would be made and that no enquiry or departmental investigation would be carried out till a policy decision is taken.

16. In the light of these facts and circumstances and also in light of the Judgments of Rohtas Kumar and Om Prakash, we find that great haste has been shown by the department in cancelling the appointment letter of the Petitioner especially when the department itself was not sure about the outcome of the controversy. The department since 1955 had been construing the Bawaria Community candidates as Scheduled Tribes, a fault committed by the department which later in time got rectified. Decision of cancelling the appointment letter of the Petitioner has been unjustified and completely erroneous.

17. We are of the opinion that the tribunal in dismissing the application of the Petitioner for quashing the cancellation of appointment order on the grounds of limitation is not justified as when substantive justice is pitted against the procedural exigencies, it must be substantive justice, which shall have precedence over the procedural requirements. The procedural law or technicalities are not masters of law but hand maid of Justice. In view of peculiar facts and circumstances of this case, the Tribunal ought to have condoned the delay and passed the orders on the merits of the case. The Tribunal, in our view, has completely failed to appreciate the controversy and dismissed the application on technicality, which could have been condoned in view of the facts of the case. This view finds support from the judgment of State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. , wherein Supreme Court dealing with the question of Limitation observed as under:

Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justicethat being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In N. Balakrishnan v. M. Krishnamurthy this Court held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a lifespan for the legal remedy for the general welfare. The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the Court indifferent situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of a dilatory strategy, the Court must show utmost consideration to the suitor?

18. Further the court is also conscious of the Supreme court judgments, wherein it has been held that similarly situated persons should be treated similarly and if one person approaches the court it shall not discredit others from availing the benefit. This view finds support from the Supreme Court judgment, State of Karnataka and Ors. v. C. Lalitha , wherein the supreme court held:

Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.

19. Further reference may be invited to the case of R.H. Vaswani v. Union of India in support of above proposition, wherein it was held:

It is also relevant to note that all the persons similarly situated were dealt with in the same manner and even collective representations had been filed. In that view of the matter also if the decision(s) of this Court had been implemented in case of all others, we fail to see any reason as to why the said benefit should be denied to the appellant alone on the ground of delay and laches.

20. Considering the aforesaid circumstances in the exercise of the writ jurisdiction under Article 226 of the Constitution of India and in the facts of the present case, we are inclined to condone the delay in filing the present petition. We are conscious of the counsel for the Petitioner's submission that in the event of Petitioners reinstatement, she would not seek any back wages. In the present case we are inclined to reinstate the Petitioner from the date of her appointment order, however, the court cannot disregard the fact that for all previous years till the disposal of the writ petition she had not attended the office and had not worked. Further, in view of the foregoing discussion, impugned order dated 26th October, 1989 of the authority, cancelling the candidature of the Petitioner and order dated 12th March, 2003 of the Tribunal, dismissing the OA of the Petitioner are quashed.

21. We direct the respondents to reinstate the petitioner forthwith. As noted, the petitioner has indicated her willingness to forego the backwages, she would not be entitled to the same. However, the period may be taken into consideration for determining the eligibility for pensionary/retiral benefits.

22. Writ petition stands allowed to the above extent. Parties are left to bear their own costs.