Delhi High Court

Shri Mukesh Kumar vs Govt. Of Nct Of Delhi & Ors. on 10 February, 2015

Author: Kailash Gambhir

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Date of hearing and Order: 10.02.2015

+        W.P .(C) No.9330/2014 & C.M.A. No. 21124/2014
         SHRI MUKESH KUMAR                              ..... Petitioner
                        Through:        Mr. Sudhanshu Tomar, Advocate
                 versus

         GOVT. OF NCT OF DELHI & ORS.
                                                          ..... Respondents
                            Through:    Ms.Zubeda Begum, Standing
                                        Counsel, GNCTD
         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
         HON'BLE MR. JUSTICE I.S.MEHTA

                            ORDER

KAILASH GAMBHIR, J (ORAL)

1. By this petition, the petitioner questions the tenability of the order

dated 29.08.2014 passed by the learned Central Administrative Tribunal,

Principal Bench, New Delhi, thereby dismissing the O.A. preferred by the

petitioner being devoid of any merit.

2. Assailing the said order of the learned Tribunal Mr. Sudhanshu

Tomar, learned counsel appearing for the petitioner submits that vide

notification dated 21.12.1998, general age relaxation of two years was

granted for any recruitment by method of direct open competitive

examination to the Central Civil Services and Civil Posts specified in the

relevant service/Recruitment Rules on the date of commencement of the

Central Civil Services and Civil Posts. But this age relaxation of two years

was not given by the respondents in the advertisement No.1/13 through

which applications were invited for the post of librarian vide post Code 2/13.

Counsel thus submits that the said advertisement in question, not giving the

age relaxation of two years period is in clear contravention of the said

notification dated 21.12.1998 issued by the Government of India giving

general age relaxation with regard to all Central Civil Posts under the

Central Government where the appointment to the respective posts was also

through direct open competitive examination. Counsel further submits that

the post of librarian is equivalent to TGT post and with regard to TGT post,

respondents have given the age relaxation of two years, despite the fact that

Recruitment Rules specify the upper age limit of 30 years. Counsel also

submits that in the earlier advertisement of 2010 for the same post of

librarian the upper age limit laid down was 32 years and later in the 2013

advertisement, the upper age limit laid down was 30 years but the

respondents were holding combined examination for the post of librarian for

the said years but with different criteria which is not permissible.

3. In support of his arguments, learned counsel for the petitioner relies

on the judgment of this Court in the case of Asha vs. Govt. of NCT of Dehi

& Ors. dated 22.08.2014.

4. Opposing the present petition Ms. Zubeda Begum, learned Standing

Counsel appearing for the respondents submits that Recruitment Rules for

the post of librarian were amended in consultation with the UPSC and with

the prior approval of Lieutenant Governor of Delhi and the same were

notified on 23.01.2003 and the age limit prescribed for direct recruits was 30

years (relaxable for Government Servants upto 5 years in accordance with

the instructions or orders issued by the Central Government). Learned

counsel further submits that the DOPT OM No.15012/6/98/Estt. (D) dated

21.12.1998 where the upper age limit for the direct recruitment was

increased by two years on which reliance was placed by the counsel for the

petitioner, the same is not applicable, firstly because the said Rule is

applicable to all Central Civil Servants and Civil Posts under the Central

Government and, secondly, the Recruitment Rules were amended by the

Govt. of NCT of Delhi in the year 2003 which is much after the date of the

said OM and was not followed by the Government of NCT of Delhi at the

time of amending the rules for the post of librarian.

5. It is further argued that in the year 2007, the Directorate of

Education, Government of NCT had sent request for the recruitment of 39

vacancies for the post of librarian to the Delhi Subordinate Services

Selection Board (herein after referred to as DSSSB for short) and these

vacancies were notified by the DSSSB under post Code 163/07 wherein the

upper age limit was mentioned as 'not exceeding 32 years' but this age limit

was inadvertently mentioned as the same was clearly in contravention of the

upper age limit laid down in the amended Recruitment Rules notified on

23.01.2003 and when this discrepancy was brought to the notice of the

Directorate of Education later in time, then Directorate of Education vide

letter dated 25.04.2012 clarified the position by reiterating that the

maximum age limit for the post of librarian through direct recruitment may

be read as 30 years in accordance with the recruitment rules. Counsel, thus,

submits that the petitioner cannot take any advantage of the said inadvertent

mistake of laying down upper age limit as 'not exceeding 32 years' when

the upper age limit of 30 years as notified in the amended Recruitment Rules

is not under dispute. Another contention raised by the counsel for the

respondents is that the petitioner has not challenged the Recruitment Rules

before the Tribunal and, therefore, he has no right to challenge the

Recruitment Rules in the present Writ Petition that too at the stage of

addressing arguments; and that too after the petitioner had applied for the

post in response to the advertisement and got a rejection letter due to the

reason of his being over age. Learned counsel for the respondents further

submits that there is no infirmity or perversity or illegality in the order

passed by the Tribunal and the same may be upheld by this Court.

6. We have heard learned Counsel for the parties and given our

thoughtful consideration to the arguments advanced by them. The DSSSB

had invited applications for various posts under GNCTD/NDMC/MCD vide

advertisement No.01/13. The present appellant was one of the applicants

who had applied for the post of librarian against the post code 02/13. The

upper age limit for the post of librarian for the post code 02/13 was laid

down as 30 years and indisputably, the petitioner was overage and,

therefore, ineligible to have applied for the said post. The grievance raised

by the petitioner before the Tribunal and before this Court is that the post of

librarian which was advertised in the year 2010 i.e. post code 69/10

examination of which was also to be conducted along with post code 02/13,

the upper age limit for the same post was kept at 32 years and so far as the

2013 examination is concerned, there was a variation in the age limit which

was kept at 30 years and this variation at the end of the respondents in

laying down the upper age limit has created a class between two set of

candidates applying for the same post against the same code. The other

grievance raised by the petitioner is that the respondents have not taken into

consideration OM of 1998 at the time of carrying out amendment in the

Recruitment Rules in the year 2003 and the said OM being issued by the

President of India in exercise of the powers under Article 309 read with

Article 148(5) of the Constitution of India would have precedence over the

amended Recruitment Rules of 2003.

In so far as the advertisement Nos.07/2007 and 10/2007 are

concerned, the learned Tribunal has said that if the respondents have

extended some benefits to an individual or a category de hors the rules of

2003, the other similarly situated persons cannot claim a similar benefit on

the principle of equality or otherwise. In support of this reasoning, the

Tribunal has also placed reliance on the judgment of the Apex Court in the

case of State of West Bengal & Others v. Debasish Mukherjee & Others

JT 2011 (11) SC.

7. There cannot arise any dispute with regard to the settled legal position

that guarantee of equality before the law is a positive concept and cannot be

enforced in a negative manner. The respondents have admitted this fact that

an inadvertent error had taken place at their end in mentioning the age limit

as 32 years in the earlier advertisement, contrary to the upper age limit laid

down in the amended Recruitment Rules of the year 2003 and when this

mistake was brought to the notice of Directorate of Education it was

immediately clarified that the maximum age limit may be read as 30 years

and not 32 years. The necessary correspondence in this regard was placed

on record by the respondents along with the counter affidavit filed by them

before the learned Tribunal. The petitioner, thus, cannot derive any

advantage of the said mistake which had taken place at the end of the

respondents and which was later rectified by them. The petitioner also

cannot claim the benefit of the said mistake based on the established

principle of negative equality that Article 14 does not envisage negative

equality. In case a wrong benefit has been bestowed upon someone

inadvertently or otherwise it may not be a ground to grant similar relief to

others. The Hon'ble Supreme Court in the case of Basawaraj & Anr. V. The

Spl. Land Acquisition Officer, AIR 2014 SC 746 considered this issue and

held as under:

"It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative

equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well.

If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order.

A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937)."

8. Another hurdle which the petitioner faced before the Tribunal and

before this Court is that he did not challenge the Recruitment Rules of the

year 2003 and, therefore, in the absence of any challenge raised by him, he

cannot now raise the grievance that the amended rules of 2003 do not fall in

line with the OM dated 21.12.1998 issued by the DOPT. The OM of 1998

deals with Central Civil Services and Civil Posts under the Central

Government and we fail to comprehend as to how the said OM would apply

to the posts in question which were posts under the Government of NCT of

Delhi and separate Recruitment Rules were framed by the GNCT of Delhi in

due consultation with the UPSC and with prior approval of the Lieutenant

Governor of Delhi. In the absence of any challenge raised by the petitioner

we need not carry with any further discussion on this aspect of the matter.