Narayan Lal Meena vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 5248 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 31st October, 2011.

+                         W.P.(C) 7767/2011

%      NARAYAN LAL MEENA                                .......Petitioner
                   Through:             Mr. Rajat Aneja with Ms. Neha
                                        Rastogi, Adv.

                                    Versus

    GOVT. OF NCT OF DELHI & ORS.              ..... Respondents
                  Through: Ms. Zubeda Begum with Ms. Sana
                           Ansari, Adv. for R-1 to 3.
                           Mr. Shanker Raju, Adv. for MCD.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                      Yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Yes

3.     Whether the judgment should be reported            Yes
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 30th September, 2011 of the

Central Administrative Tribunal (CAT) dismissing the O.A. No.3613/2010

under Section 19 of the Administrative Tribunals Act, 1985 preferred by the

petitioner impugning the notice dated 18th October, 2010 to show cause why

his services/employment as a Teacher (Primary) with the respondent MCD

be not terminated.

2. The undisputed facts are, that on 12th October, 2007 the Delhi

Subordinate Services Selection Board (DSSSB) issued a public notice

inviting applications for recruitment to the post of Teacher (Primary) in the

MCD; the last date for applying/submitting the applications was 29 th

October, 2007; the required educational qualifications were as under:

"(i) Senior Secondary (10+2) or intermediate or its equivalent with 50% marks from a recognized Board.

(ii) Two Years Diploma/Certificate course in ETE/JBT or B.El.Ed from a recognized institution.

(iii) Must have passed Hindi as a subject as secondary level."

;that as on 29th October, 2007 the petitioner was not possessing the

requisite two years diploma/certificate course in ETE/JBT or B.El.Ed from a

recognized Institution though he was a student of ETE course since the year

2005 from a University in Rajasthan and had also cleared the 1 st year thereof

in June, 2006. It is the case of the petitioner that though the second year

examination of the said course was scheduled to be held in June, 2007 but on

account of agitation by the Gujjar community in the State of Rajasthan the

said examination was not held and was eventually conducted in October,

2007 and the result thereof declared on 12th March, 2008; the petitioner

successfully completed the said course.

3. It is also not in dispute that though the petitioner as aforesaid, as on

29th October, 2007 did not fulfill the eligibility conditions for applying for

the post but was permitted to take the examination and upon clearing the

same, allowed to appear in the interview and was also appointed on 31st

January, 2009.

4. However the petitioner was served with the notice dated 18th October,

2010 to show case as to why his services be not terminated for the reason of

his appointment being in violation of the Recruitment Rules. The petitioner

in his reply to the show cause notice though not controverting that he was

not eligible to apply as per the Recruitment Rules contended that having

been allowed to appear in the examination, interview and having been

appointed and allowed to serve for about twenty months, his services could

not be terminated particularly when he had, though after the cut-off date of

29th October, 2007, acquired the eligibility condition.

5. The petitioner simultaneously also approached the Tribunal as

aforesaid impugning the notice to show cause. Vide ex parte order dated 29th

October, 2010 the Tribunal stayed the termination of the employment of the

petitioner.

6. The Tribunal has vide order impugned in this petition dismissed the

application of the petitioner relying on the judgment dated 7 th September,

2010 of the Division Bench of this Court in W.P.(C) 1343/2010 titled

Santosh Kumar Meena v. Govt. of NCT of Delhi and other connected

petitions and on Pramod Kumar v. U.P. Secondary Education Services

Commission 2008 (2) SCC (L&S) 244 and Jenany J.R. v. S. Rajeevan

2010 (2) SCC (L&S) 109. This Court in Santosh Kumar Meena (supra) has

held that the fact that due to civil disobedience movement by the Gujjar

community in the State of Rajasthan and Western Haryana the results of

examination taken could not be declared on time, is irrelevant and the

persons who were not qualified by the cut-off date, even if owing to the said

reason could not be eligible for admission. The Apex Court in Pramod

Kumar (supra) held that where the qualification for holding a post has been

laid down, any appointment in violation thereof would be a nullity and void

in law. Similarly in Jenany J.R. (supra) it was held that the educational

qualification was to be determined on the cut-off date and if the applicant

did not possess the qualification on that date he would not be eligible for

appointment even if had acquired qualification subsequently and the same

would be of no consequence.

7. The counsel for the petitioner has fairly stated that the present case is

squarely covered by the judgment of the Division Bench of this Court in

Santosh Kumar Meena. He has however contended that SLP 27037/2010

has been preferred thereagainst and in which notice has been issued on 25 th

October, 2010 and the respondents have been restrained from proceeding on

the basis of the show cause notice issued to the petitioners therein. He has

further contended that the Division Bench in Santosh Kumar Meena did not

consider the dicta of the Supreme Court in Bhupinderpal Singh v. State of

Punjab (2000) 5 SCC 262 and also misconstrued the judgment of the Apex

Court in Mrs. Rekha Chaturvedi v. University of Rajasthan JT 1993 (1) SC

220.

8. We are however unable to comprehend as to how the aforesaid two

judgments support the petitioner. The Apex Court in Bhupinderpal Singh

(supra) has held that if cut-off date has been laid down in the relevant rules it

has to be followed and even otherwise it may be prescribed in the

advertisement; only if no such date is prescribed, the eligibility has to be

determined on the last date of receipt of applications. The Apex Court also

deprecated the practice then prevalent in the State of Punjab of determining

eligibility conditions as on the date of interview. Similarly in Mrs. Rekha

Chaturvedi (supra) also it was held that even in the absence of a fixed date

in the advertisement, the only certain date for scrutiny of eligibility and

qualifications has to be the last date for making the applications. The

contention that the eligibility/qualifications should be examined with

reference to the date of selection and not with reference to the last date for

making the applications was rejected. It was held that the date of selection is

invariably uncertain and in the absence of knowledge of such date the

candidates who applied for posts would be unable to state whether they are

qualified for the post in question or not.

9. The advertisement in the present case and in response whereto the

petitioner had applied provided as under:-

(5) The Educational qualification, age, experience and other conditions of eligibility as stipulated above shall be determined as on the closing date of receipt of applications i.e. 29.10.2007."

10. Ms. Zubeda Begum, Advocate appearing for the respondents no. 1 to

3 has also drawn our attention to Ashok Kumar Sonkar v. Union of India

(2007) 4 SCC 54 where also the Apex Court while laying down that in the

absence of any cut-off date specified in the advertisement or in the Rules,

the last date for filing the application must be considered as the cut-off date

also held that the candidates not holding the requisite qualification as on the

cut-off date could not be held eligible for appointment. It was further held

that the principles of natural justice also would not be applicable in

terminating such employment where the selection was illegal as the

candidate was ineligible to be considered for appointment.

11. The counsel for the petitioner, before us, has also sought to contend

that there was a mere irregularity in the appointment of the petitioner. The

Apex Court however in Ashok Kumar Sonkar (supra) has clarified that the

appointment of a candidate not fulfilling the eligibility conditions on the cut-

off date is nonest in the eye of law and a nullity and not irregular. It was

further held that even the Apex Court in exercise of equity jurisdiction

would have no role to play in such a situation.

12. Ms. Zubeda Begum, Advocate to meet the argument of the counsel for

the petitioner of the respondents being estopped from terminating the

employment of the petitioner has also drawn our attention to the following

clauses in the advertisement pursuant to which the petitioner had applied:-

CANCELLATION OF CANDIDATURE

1. The candidates applying for the post should ensure that they fulfill all the eligibility conditions because a candidate has been allowed to appear at the examination will not be considered as a va.. group for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority.

2. Candidates are cautioned that they should not furnish any incomplete, false information or submit a document which is defective or fabricated or otherwise commit any

act of misconduct submitting application forms or during the course of recruitment or fraudulently claim SC/ST/OBC etc. and other benefits. In case any such case is detected, the Board/Appointing Authority reserves its right to withdraw/cancel any selection and take legal action against the candidate concerned. The candidate may be permanently or for a specified period debarred from taking part in the recruitment conducted by the Board."

13. It is thus apparent that the responsibility of satisfying that the

eligibility conditions were fulfilled was on the applicants and the petitioner

cannot take any advantage of the mistake of the respondents in allowing the

petitioner to appear in the examination and the interview and also in

appointing him even though he did not fulfill the eligibility conditions as on

the cut-off date. Moreover the Supreme Court in Ashok Kumar Sonkar

having held such appointment to be illegal, the question of estopple does not

arise.

14. We are further of the opinion that granting any relief to the petitioner

would tantamount to giving a benefit to the petitioner to the prejudice of

others. If the eligibility were to be allowed to be determined on the date of

interview and/or on the date of appointment, then the same would be to the

detriment/prejudice of the others who considering themselves to be

ineligible as per the terms of the advertisement, did not apply. The same

would tantamount to giving a premium to the illegality practiced by the

petitioner in applying when he was clearly in the know that he was ineligible

to apply. It is well-nigh possible that had others similarly placed as the

petitioner and who acted honestly and did not apply, had also applied and

competed, the petitioner may not even have been found successful. The

counsel for the respondents in this regard has also relied on Dr. Santosh

Kumar v. Union of India (1995) 1 SCC 269 where it was laid down that

allotment of seats in Medical Colleges has to be according to merit and it

does not depend upon who comes to the court and who does not; the matter

is one of principle; a more deserving candidate may not have the means to

approach the court.

15. We are therefore unable to persuade ourselves to hold that the

judgment of the Coordinate Bench of this Court in Santosh Kumar Meena

requires re-consideration. There is thus no merit in the petition. The same is

dismissed. However since notice has been issued in the SLP preferred

against the judgment of this Court in Santosh Kumar Meena and interim

protection extended to others similarly placed as the petitioner and further

since we are informed that the services of the petitioner pursuant to the

interim order of the Tribunal have not been dispensed with till now, we

deem it expedient to extend the said protection to the petitioner for a period

of six weeks from today to enable the petitioner to approach the Apex Court.

It is however clarified that if on the expiry of the said six weeks there is no

interim protection, the respondents shall be entitled to proceed against the

petitioner in accordance with law.

No order as to costs.

RAJIV SAHAI ENDLAW,J

ACTING CHIEF JUSTICE

OCTOBER 31, 2011 pp