W.P.(C)/1678/2017 of RISHI PAL Vs COMMISSIONER EAST DELHI MUNICIPAL CORPORATION AND ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 1678/2017 & CM No.7528/2017

RISHI PAL

..... PetitionerThrough:Mr. S.S. Tiwari, Advocate

versus

COMMISSIONER EAST DELHI MUNICIPAL CORPORATIONAND ORS..... Respondents

..... Respondents

Through:Mr. Kumar Rajesh Singh, StandingCounsel for respondent Nos.1 and 2Mr. Rakesh Mittal, Standing Counselfor the SDMC

CORAM:HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MR. JUSTICE CHANDER SHEKHARO R R%28.02.2017

The petitioner had applied for selection as Primary Teacher in the

erstwhile Municipal Corporation of Delhi (‘MCD’) in July, 1996.

2.The criteria for selection of Other Backward Classes (‘OBC’)candidates was partly modified, with preference being given to those withinthe age group of 28 to 30 years by the cut-off date, i.e., 31.7.1996, in orderto ensure that the OBC seats/posts were filled-up. This criteria waschallenged before the Central Administrative Tribunal (‘Tribunal’) inseveral cases including TA No. 163/2009, titled Shashi & Ors. v. MCD &

Ors. The petitioner did not file any OA, challenging the said criteria and wasnot party to any of the proceedings before the Tribunal.

3.The Tribunal vide order dated 05.06.2009 overturned the said criteria.

This order was challenged by the unified MCD in WP(C) No.11331/2009,which was dismissed vide the judgment dated 7.9.2009. Special Leave toAppeal was preferred and dismissed on 21.1.2015 (learned counsel for thepetitioner states that this is the date given by him in the writ petition but maybe incorrect).

4.In the meanwhile, number of OAs were filed by OBC candidateswho had not approached the Tribunal earlier. These OAs suffered dismissalon the ground of limitation, delay and laches. One such unsuccessfulcandidate, Urmila Goswami filed WP(C) No.9095/2015, which has beendismissed by detailed reasoned order, dated 22.9.2015, passed by aCoordinate Division Bench of this Court. This order records in detail thehistory of litigation for selection to the posts of Primary Teacher in theunified MCD vide the Advertisement published on 16.7.1996. Applying thelaw of limitation incorporated under Section 21 of the AdministrativeTribunals Act, 1985 and principles of delay and laches, it was held that theclaim of the petitioner, Urmila Goswami, should not be accepted at the

belated stage.

5.Learned counsel for the petitioner submits that the aforesaid judgmentin the case of Urmila Goswami (supra) is no longer good law, in view of thedecision of the Supreme Court in (2015) 1 SCC 347, State of Uttar Pradesh& Anr. v. Arvind Kumar Srivastava & Ors. Counsel submits that thedecision of the Tribunal in Shashi & Ors. (supra) and the judgment of theDelhi High Court in WP(C) No.11331/2009 were judgments/decisions inrem and, therefore, the authorities should have uniformly granted the samebenefit to all candidates including the petitioner. The petitioner had made arepresentation dated 30.3.2011 to this effect.

6.We have considered the submission but regret our inability to acceptthe said contention in the factual matrix of the present case.

7.The Tribunal vide order dated 05.06.2009 in TA 163/2009 haddirected:-directed:-

“ 18. There is no case that the application fee receivedfrom the applicants has been refunded. When application feeis received, according to us, there is correspondingobligation on the part of the respondents to ensure that theapplication is considered on merits. Otherwise it becomesunjust enrichment, which State should not practice. On thebasis of policy decision, valid applications definitelycannot be put to the dustbin. We feel that injustice has beendone to the applicants and the respondents are to repair theloss that has been inflicted on the applicants. We, therefore,is received, according to us, there is correspondingobligation on the part of the respondents to ensure that theapplication is considered on merits. Otherwise it becomesunjust enrichment, which State should not practice. On thebasis of policy decision, valid applications definitelycannot be put to the dustbin. We feel that injustice has beendone to the applicants and the respondents are to repair theloss that has been inflicted on the applicants. We, therefore,

direct that within period of one month from the date ofreceipt of copy of this order, the applicants are to be issuedwith appointment orders since there is no contention thatthey were not in any way ineligible vis-a-vis qualificationsand had secured well above the cut off marks prescribed.

19. After securing appointment, the applicants will beentitled to make further submissions as to fixation of theirseniority position at least notionally with persons who werelucky enough to get earlier appointment if they so choose.Such rights are protected. Applications are disposed of asabove. We make no order as to costs. ”

8.In another TA No. 348/2009, titled Mrs. Nirmal Sachdeva & Ors v.

Govt. of NCT of Delhi & Ors. decided on 20.08.2009, the Tribunal hadobserved:-

“9. Accordingly, the present OA is disposed of with adirection to the respondents to pass appropriate orders inrespect of the applicants herein in the light of the CoordinateBench Judgment in Shashi’s case (supra), within period ofone month from the date of receipt of copy of this order.No Costs. ”

9.The petitioner claims the same relief as granted in TA Nos. 163/2009

and 348/2009 on the basis that these were judgments in rem. bare readingof the paragraphs extracted above will make it clear that the relief grantedwas restricted and confined to the applicants therein who were before theTribunal, and no direction was passed that the same relief ought to begranted to others who were similarly placed, but had not approached theTribunal. It is noticeable that the respondent authorities had not treated the

decisions of the High Court in W.P. 11331/2009, Shashi & Ors. (supra)and the Tribunal in TA No. 348/2009, Mrs. Nirmal Sachdeva & Ors (supra)as judgments in rem. They were not ready or willing to grant the identicalrelief to others.

10.The Tribunal vide the impugned order dated 19.02.2016 has rightlydismissed OA No. 3312/2012, titled Sh. Rishi Pal v. Commissioner,EDMC& Ors. filed by the petitioner relying upon Section 21 of theAdministrative Tribunals Act, 1985, and the decision in W.P. (C) No.9095/2015, Urmila Goswami (supra) holding that the prayers made werebarred by limitation, delay and laches.

11.The cause of action arose in favour of the petitioner in the year 1996and delay in filing of the Original Application is substantial. The challengeto the age criteria and cut-off date was made in 2012. As the selection wasundertaken in the year 1996, any direction to give appointment to thepetitioner after delay of nearly 20 years would not be correct and justified.The situation has gone inevitable change in this period of 20 years and theneeds and requirements demand that younger people come into teachingpositions. The clock cannot and should not be put back. The impugned orderdated 19.02.2016 has rightly held that the delay in approaching the Tribunal

defeats the petitioner’s claim to seek relief.

12.The writ petition has no merit and the same is accordingly dismissed.CM No.7528/2017 is also dismissed.

SANJIV KHANNA, J

FEBRUARY 28, 2017tp

CHANDER SHEKHAR, J