Citation Codes

Neutral Citations

2011 DHC 5513-DB

Equivalent Citations

citation codes

Case Number

W.P (C) 7767/2011

Attorney(S)

Mr. Rajat Aneja with Ms. Neha Rastogi, Adv.
Ms. Zubeda Begum with Ms. Sana Ansari, Adv. for R-1 to 3.
Mr. Shanker Raju, Adv. for MCD.

Judges

Acting Chief Justice
Rajiv Sahai Endlaw, J.

Acts

SECTION 19 ADMINISTRATIVE TRIBUNALS ACT 1985

See more information ...

Smart Summary

Judgment Summary — Rajiv Sahai Endlaw, J.

Factual and Procedural Background

The petition challenged the Central Administrative Tribunal's (CAT) order dated 30 September 2011 which dismissed O.A. No. 3613/2010 under Section 19 of the Administrative Tribunals Act, 1985. The show-cause notice impugned dated 18 October 2010 sought to terminate the petitioner’s services as a Teacher (Primary) with the respondent Municipal Corporation of Delhi (MCD) on the ground that his appointment violated the Recruitment Rules.

Relevant facts (undisputed):

On 12 October 2007, DSSSB issued an advertisement inviting applications for Teacher (Primary) with a closing date of 29 October 2007 and specified educational qualifications including a two-year Diploma/Certificate in ETE/JBT or B.El.Ed.
As on 29 October 2007 the petitioner did not possess the required two-year diploma/certificate, although he was a student of an ETE course (1st year cleared in June 2006) and completed the course after the cut-off when delayed examinations were held in October 2007 with results declared on 12 March 2008.
Despite lacking the qualification on the cut-off date, the petitioner was permitted to take the examination, cleared it, appeared for interview and was appointed on 31 January 2009.
The petitioner was served with the show-cause notice on 18 October 2010 to explain why his services should not be terminated. He replied, acknowledging ineligibility as on the cut-off but contending that having been allowed to appear/appointed and having since acquired the qualification, his services should not be terminated.
The petitioner filed the O.A. before CAT impugning the show-cause notice; CAT granted an ex parte interim stay on 29 October 2010 but later dismissed the O.A. (impugned order), leading to the present petition before this Court.

Legal Issues Presented

Whether a candidate who did not possess the requisite educational qualification on the prescribed cut-off/closing date (29.10.2007) but was permitted to appear in the examination, interview and subsequently appointed, can be allowed to retain employment when the appointment is alleged to be in violation of the Recruitment Rules.
Whether the fact that the candidate subsequently acquired the requisite qualification after the cut-off date (due to delayed examinations) can validate or cure an appointment that was not in conformity with the eligibility as on the cut-off date.
Whether principles such as estoppel or equitable relief can be invoked to prevent termination of employment which is alleged to be illegal or a nullity for non-fulfilment of eligibility on the cut-off date.
Whether granting relief in such a case would prejudice other candidates who did not apply because they considered themselves ineligible as per the advertisement.

Arguments of the Parties

Petitioner's Arguments

The petitioner conceded that he did not fulfill the eligibility conditions as on 29 October 2007 but argued that having been allowed to appear in the examination, interview and having served for about twenty months after appointment, his services could not be terminated—particularly because he acquired the requisite qualification after the cut-off date (due to delayed examinations).
Counsel contended that the Division Bench decision in Santosh Kumar Meena (which the Tribunal relied upon) was subject to a Special Leave Petition (SLP No. 27037/2010) in which notice had been issued and interim protection extended to similarly placed persons; the petitioner argued that Santosh Kumar Meena did not consider or misconstrued certain Supreme Court dicta (Bhupinderpal Singh and Mrs. Rekha Chaturvedi).
The petitioner additionally argued that the appointment involved only a mere irregularity and not a nullity, implying that equitable relief or estoppel could prevent termination.

Respondents' Arguments

Respondents relied on the advertisement which expressly stated that eligibility would be determined as on the closing date of receipt of applications (29.10.2007) and on clauses that permitted cancellation of candidature if eligibility was not satisfied at any stage.
They argued that allowing the petitioner to appear in the examination and appointing him despite ineligibility did not confer a right to continue employment; the appointment was illegal and a nullity under established precedent.
Respondents contended estoppel did not apply where an appointment was void or non est in law and that allowing relief would prejudice other candidates who did not apply because they were legitimately ineligible as per the advertisement.
Respondents relied on several Supreme Court authorities to support the proposition that where qualifications are prescribed for a post, any appointment in violation is void and that the cut-off date prescribed in advertisement/rules must be followed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Santosh Kumar Meena v. Govt. of NCT of Delhi (Division Bench of this Court) — W.P.(C) 1343/2010 (reported in text)	Held that delay in declaration of results due to civil disobedience (Gujjar agitation) is irrelevant; persons not qualified by the cut-off date are ineligible.	The Tribunal relied on this decision; the Court found the present case squarely covered by Santosh Kumar Meena and declined to re-consider that judgment.
Pramod Kumar v. U.P. Secondary Education Services Commission (2008 (2) SCC 244)	Where qualification for holding a post is laid down, any appointment in violation of that qualification is a nullity and void in law.	The Court relied on this principle to treat the petitioner's appointment as void for non-fulfilment of eligibility on the cut-off date.
Jenany J.R v. S. Rajeevan (2010 (2) SCC (L&S) 109)	Educational qualification is to be determined on the cut-off date; subsequent acquisition of qualifications is of no consequence.	The Court applied this principle to hold that the petitioner’s subsequent completion of the course did not validate the appointment.
Bhupinderpal Singh v. State of Punjab (2000) 5 SCC 262	If a cut-off date is laid down in rules it must be followed; if absent it may be prescribed in the advertisement; eligibility must not be determined by the date of interview.	The Court considered the petitioner's reliance on this case but concluded the case supports adherence to the cut-off date and did not aid the petitioner’s position.
Mrs. Rekha Chaturvedi v. University of Rajasthan (JT 1993 (1) SC 220)	Even absent a fixed date in the advertisement, the last date for making applications is the certain date for scrutiny of eligibility; eligibility cannot be examined only with reference to the date of selection.	The Court observed that Rekha Chaturvedi supports determining eligibility by the last date of applications and rejected the petitioner’s argument to the contrary.
Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54	In absence of a specified cut-off date, the last date for filing applications must be treated as the cut-off date; candidates not holding the requisite qualification on the cut-off date are not eligible; appointment of an ineligible candidate is illegal and a nullity; natural justice principles do not apply to save an illegal selection.	The Court relied on Sonkar to conclude that appointments without requisite qualifications on the cut-off date are non est and that estoppel/natural justice cannot cure such illegality.
Dr. Santosh Kumar v. Union of India (1995) 1 SCC 269	Allotment (in that context, of medical seats) must be according to merit and not dictated by who approaches the court; principle that remedy should not disturb merit and fairness.	The Court cited this authority to underline that granting relief to the petitioner would prejudice more deserving candidates and upset merit principles.

Court's Reasoning and Analysis

The Court analyzed the matter by applying the terms of the advertisement, the undisputed facts and established precedent. The step-by-step reasoning as reflected in the opinion is as follows:

Advertisement and cut-off: The advertisement expressly provided that educational qualification and other eligibility "shall be determined as on the closing date of receipt of applications i.e. 29.10.2007". The Court treated this provision as determinative of the eligibility date.
Undisputed ineligibility on cut-off: It was not disputed that on 29.10.2007 the petitioner did not possess the required two-year diploma/certificate. Even though the petitioner later completed the course, that completion occurred after the cut-off date.
Reliance on precedent: The Court relied on the Division Bench decision in Santosh Kumar Meena and on Supreme Court decisions (Pramod Kumar, Jenany J.R, Bhupinderpal Singh, Mrs. Rekha Chaturvedi and Ashok Kumar Sonkar) to reaffirm the principle that eligibility is determined as on the cut-off date and that appointments in violation of prescribed qualifications are void.
Estoppel and irregularity arguments rejected: The petitioner’s contention of mere irregularity and estoppel was addressed by reference to Ashok Kumar Sonkar which clarified that appointments of candidates not fulfilling eligibility as on the cut-off date are non est and a nullity; equity or estoppel cannot validate such an appointment.
Responsibility on applicants and cancellation clause: The advertisement's explicit cancellation provisions placed responsibility on applicants to ensure eligibility and permitted cancellation at any stage if eligibility was not satisfied. The Court held the petitioner cannot take advantage of the respondents' mistake in allowing him to appear and be appointed.
Prejudice to others and merit: Granting relief would prejudice other candidates who legitimately considered themselves ineligible and did not apply. The Court noted the principle (cited from Dr. Santosh Kumar) that matters of merit should not be disturbed in favour of someone who gained advantage by not complying with eligibility requirements.
Relief and interim protection: While dismissing the petition on merits, the Court acknowledged the pendency of an SLP against Santosh Kumar Meena in which interim protection had been extended to others similarly placed. In light of that and because the petitioner’s services had not yet been dispensed with pursuant to the Tribunal’s interim order, the Court temporarily extended the same protection to the petitioner for six weeks to enable him to approach the Apex Court.

Holding and Implications

Holding: The petition was dismissed on merits. The Court held that the petitioner's appointment was in violation of the recruitment rules because he did not possess the requisite qualification as on the prescribed cut-off date (29.10.2007), and such an appointment is void/non est. The Court rejected estoppel and equitable arguments to save the appointment.

Implications and direct consequences:

The direct legal effect is that the petitioner has no right to continue in service based on the impugned appointment which the Court treated as void; the petition failed on the merits.
However, as a limited procedural accommodation, the Court extended interim protection to the petitioner for a period of six weeks from the date of the order to permit him to move the Supreme Court (in view of an SLP pending in relation to a coordinate decision). If, after six weeks, there is no interim protection from the Apex Court, the respondents are entitled to proceed in accordance with law.
No new legal principle was laid down by this judgment; the decision is an application of existing precedent that qualifications must be satisfied as on the cut-off date and that appointments in violation are void.

No order as to costs.

Show full summary ...

To access the original judgment, please Sign In or Subscribe.

Narayan Lal Meena Petitioner v. Govt. Of Nct Of Delhi & Ors. S

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 18 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 12 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 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 29 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 1st 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 12 March, 2008; the petitioner successfully completed the said course.

3. It is also not in dispute that though the petitioner as aforesaid, as on 29 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 31 January, 2009.

4. However the petitioner was served with the notice dated 18 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 29 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 29 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 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 Commission2008 (2) SCC (L&S) 244 and Jenany J.R v. S. Rajeevan2010 (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 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 cutoff 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.

Narayan Lal Meena Petitioner v. Govt. Of Nct Of Delhi & Ors. S

Judgment Summary — Rajiv Sahai Endlaw, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Narayan Lal Meena Petitioner v. Govt. Of Nct Of Delhi & Ors. S

Comments