Delhi Subordinate Service ... vs Nisha Kapoor
2010 Latest Caselaw 2175 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 WP(C) No.2592/2010 & CM Nos. 5173-74/2010
%
                         Date of Decision: 26.04.2010

Delhi Subordinate Service Selection Board &         .... Petitioners
Anr.
                  Through Ms. Ruchi Sindhwani, Advocate

                                  Versus

Nisha Kapoor                                            .... Respondent
                      Through   Mr. Deepak Verma, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be           YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?             NO
3.     Whether the judgment should be reported            NO
       in the Digest?



ANIL KUMAR, J.

*

The petitioners, Secretary, Delhi Subordinate Service Selection

Board and Anr. had challenged the order dated 4th November, 2009

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A no.1567 of 2009 titled Nisha Kapoor Vs. Chief Secretary,

GNCTD & Ors. allowing the Original Application of the respondent and

directing the petitioners to appoint the respondent against the post of

TGT in any available vacancy and if need be even by creating a

supernumerary post. The Tribunal, however, directed the petitioners

that appointment of the respondent shall be with prospective effect.

Brief facts to comprehend the disputes are that in response to an

advertisement for the post of TGT (Social Science) (Female), post code

45/06 by the petitioners on 4.6.2006, the respondent had applied

under unreserved category. The result of selection was declared on 24th

August, 2007, however, respondent was not declared selected though,

she had secured more marks than the last candidate recommended for

appointment against this post.

The respondent raised a query under Right to Information Act,

when she came to know that she had been found ineligible for the post

on the premise that she had not done three years of graduation in the

prescribed subject, i.e., Political Science in her case as she had done

BA (Hons.) in Education.

The representation/appeal of the respondent was declined by the

petitioner resulting into filing of an Original Application under Section

19 of the Administrative Tribunals Act, which was allowed by the

Tribunal by order dated 4th November, 2009 which is impugned before

us.

The learned counsel for the petitioner has not disputed that to be

eligible for the post, a candidate was required to have a bachelor‟s

degree or equivalent from a recognized University having secured 45%

marks in aggregate. The relevant extract of the notice dated 27th

February, 1997 is as under:-

" A Bachlor‟s Degree (Honours-Pass) or equivalent from a recognized University having secured 45% marks in aggregate, in two school subjects of which at least one out of the following should have been at the elective level.-

1. English.

2. Mathematics

3. Natural/Physical Science

4. Social Science."

The Tribunal also noted a note clarifying that the main subject for

TGT (Social Science) could have various options which include the

subject of Political Science but not Education. The respondent

regarding her educational qualification in para 4.5 of the application

had given the details which is extracted as under:-

" That the applicant had done her Bachelor‟s degree (pass) from Calcutta University recognized by UGC with the Political Science, English and studied these subjects with over 100 marks each in both the years and fulfills the eligibility. In addition to that she opted for third year and acquired Bachelors Degree (Honours) in Education. She has also done her Post Graduate in Political Science from

Himachal University in 2002 and B.Ed. from University of Delhi (Annexure A-3 colly)."

Before the Tribunal, the plea of the petitioners was that the

respondent had done BA (Hons.) in Education and not in any of the

prescribed options as main subject in the three years of graduation.

However, in an appeal which was filed as per Section 19(1) of the RTI

Act, it was contended that (Hons.) is a specific subject and in case of

respondent, it was Education, which was to be counted as elective

subject and other subjects were to be counted as subsidiary subjects.

In the circumstances, before the Tribunal, it was asserted that

the respondent had done three years degree (Hons.) in Education and

the subject Political Science had been studied by the respondent only in

BA Part-I (Hons.) Examination, 1995 for two years.

The Tribunal while allowing the petition, noticed the arguments of

the respondent which were that her subject Political Science does fulfill

the stipulation of being an elective subject as she had studied for over

100 marks each for both years in BA (Pass) and also relied on the fact

that prior to 1998-99, the Calcutta University had a system under

which simultaneously, a two years BA (Pass) Degree and three years BA

(Hons.) degree could be pursued. The respondent for her two years had

studied Political Science and Botany as the elective „Pass‟ subjects and

English as a compulsory language and she had also studied Education

as the subject for „Honours‟ exclusively in the third year. Emphasis was

also laid that in the recruitment rule or the advertisements there is no

stipulation of any specific duration i.e., two or three years for studying

an elective subject. Relying on various precedents, it was also asserted

that the respondent had studied the subject concerned for at least 100

marks in the Graduation and the word elective may include main

subject as organized in different Universities.

The Tribunal after hearing the parties has held that on the basis

of certificates and mark sheets from Calcutta University attached with

original application as also the clarificatory letters issued by the

concerned college, the doubts of the petitioner that the respondent may

have studied political science only in one year, was repelled and found

to be misconceived. Since the recruitment rules did not specify as to

number of years a subject had to be studied in the degree course, the

Tribunal held that the respondent fulfills the eligibility norms for the

post in question. Similarly, pleas as were raised before the Tribunal has

been raised before this Court impugning the order of the Tribunal.

The learned counsel for the petitioner is, however, unable to show

under which recruitment rules, it can be insisted by the petitioners that

the respondent should have studied political science for three years and

not for two years. Nothing has been produced by the petitioners to

counter the certificates and mark sheets and clarificatory letters issued

by the concerned college of the respondent.

This also cannot be disputed that the respondent studied political

science as an elective subject as she had studied for over 100 marks in

all parts of graduation. In the circumstances, it is difficult to accept the

plea of the petitioner that the respondent is not eligible according to

recruitment rules for the post of TGT (social Science) (Female) and on

the grounds as raised by the petitioner, the order of the Tribunal cannot

be faulted.

Learned counsel for the petitioner has also raised the plea of

delay on the ground that even though the result had been declared on

22nd August, 2007, the original application was filed only in 2009 which

was beyond the period of limitation prescribed under the Administrative

Tribunals Act. However, the Tribunal has relied on the fact that the

information was given to the respondent about her being ineligible only

when the respondent sought it under Right to Information Act, which

was given to her after considerable time and thereafter, the respondent

had filed the original application in 2009. Considering the totality of

the facts and circumstances that the respondent is eligible and the

selection to the post was denied to her on the ground that she had not

done three years does not born out from the requisite recruitment rules,

the Tribunal exercised its jurisdiction and declined to reject the plea of

the petitioners. It cannot be denied that the Tribunal had the right to

condone the delay if any. However, if the time taken by the respondent

to get the information from the petitioners is excluded, the petition of

the respondent would not be barred by time. In any case, taking into

totality of the facts and circumstances, the order of the Tribunal cannot

be held to be perverse, illegal or suffering from such irregularity which

will necessitate any interference of this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India.

This cannot be disputed that for issuing a writ for any other

purpose under article 226 of the Constitution of India, it has always

been in the discretion of the High Court to interfere or not, depending

upon the facts and circumstances of each case. It is not necessary for

the High Court in exercise of its writ jurisdiction to interfere in every

case where there is alleged violation statutory rights. Reference in this

connection may be made to the decisions of the Supreme Court in

Durga Pershad Vs The Chief Controller of Imports and Exports, AIR

1970 SC 769, holding that even where there is an allegation of breach of

fundamental right, the grant of relief is discretionary and such

discretion has to be exercised judicially and reasonably. Constitution

Bench of the Supreme Court in The Moon Mills Ltd. vs M.R.Meher, AIR

1967 SC 1450 had held that writ is legally a matter of sound discretion

and would not be issued if there be such negligence or omission on the

part of the party to assert his right as taken on conjunction with the

lapse of time and other circumstances, which may cause prejudice to

the adverse party. Writs so for as they are concerned with the

enforcement of the other rights are not issued as a " matter of course."

In Shangrila Food Products Ltd. Vs Life Insurance Corporation of India

(1996) 5 SCC 54, the Supreme Court had held that " the High Court in

exercise of its jurisdiction under Article 226 of the Constitution of India

can take cognizance of the entire facts and circumstances of the case

and pass appropriate orders to give the parties complete and

substantial justice. The jurisdiction of the High Court, being extra

ordinary, is normally exercisable keeping in mind the principle of

equity. One of the ends of the equity is to promote honesty and fair

play. If there be any unfair advantage gained by a party, before invoking

the jurisdiction of the High Court, the court can take into account the

unfair advantage gained and can require the party to shed the unfair

game before granting relief.

The writ petition in the facts and circumstances is without any

merit and it is therefore, dismissed. The parties are however, left to bear

their own costs. Consequently, the petitioners are directed to appoint

the respondent against the post of TGT in any available vacancy and if

need be even by creating a supernumerary post with prospective effect

as had been directed by the Tribunal and compliance with the order of

the Tribunal be made within two months. All the pending applications

are also disposed of.

ANIL KUMAR, J.

APRIL 26, 2010                                  MOOL CHAND GARG, J.
„rs‟