Mahipal vs Union Of India

Hina P Shah, Member J

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:- OA No.233/2015 "(i) That Issue an appropriate writ, order or direction in the nature thereof, thereby quash and set aside the impugned action of the respondent in relation to advertisement dated 16.12.2010 (Annex-1) issued by the respondent;

(ii) That the impugned action of the respondent may kindly be declared as null and void and be declared as illegal and further may be quashed and set aside;

(iii) That by an appropriate order or direction the respondent may be directed to give the appointment to the applicant by giving benefit of reservation to the SC category as per law;

(iv) That any other beneficial orders or directions which this Hon'ble Tribunal deems just and proper in the facts and circumstances of the case be kindly passed in favour of the applicant."

(a) The brief facts of the case, as stated by the applicant, are that the respondent had issued an Employment Notice No. 2/2010 (RRC/NWR) dated 16.12.2010 for filling up posts in Pay Band-I of Rs. 5200-20200 and Grade Pay Rs. 1800 in North Western Railway and the applicant who belonged to SC category had applied for the said post as he fulfilled all the requisites for the said appointment. After being issued a call letter, he appeared for the written examination held on 27.05.2012 and, thereafter, he OA No. 233/2015 was called for Physical Efficiency Test (PET) wherein he appeared on 15.10.2012 and after qualifying the same, he was called for documents verification on 17.01.2013. On documents verification, he had submitted documents but vide letter dated 24.07.2013, Annexure A/7, he was informed that his candidature has been rejected as per instruction No. 8.11 of the advertisement due to mismatch of date of birth. Thereafter, the applicant approached the Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing S.B. Civil Writ Petition No. 4217/2014, challenging the action of the respondent-department and the Hon'ble High Court of Rajasthan vide its order dated 23.05.2014 granted liberty to approach Central Administrative Tribunal.

(b) Thereafter, the applicant has filed this O.A., which was dismissed by this Bench of the Tribunal vide its order dated 18.09.2018 on ground of limitation. Again the applicant approached the Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing D.B. Civil Writ Petition No. 24054/2018, challenging the order dated 18.09.2018 passed by this Tribunal, wherein the Hon'ble High Court of Rajasthan vide its OA No. 233/2015 order dated 16.10.2019 condoned the delay in filing O.A. before the Tribunal and remanded the matter to this Tribunal to revive the O.A. in question and decide it afresh on merits. Accordingly, matter was heard on merits.

a) The respondent filed its reply raising preliminary objection stating that the applicant has not impleaded competent authority to represent Union of India as Assistant Personnel Officer is much lower authority, who cannot represent Union of India. Applicant has not impleaded Railways for which the selection is being conducted. He has also not challenged the order dated 24.07.2013 passed by the respondents which was the impugned order by which his candidature was rejected. Also the present O.A. suffers from delay and laches as the cause of action arose in the year 2013 but the O.A. is filed in the year 2015 without any application for condonation of delay required as per rules. Thus, on these grounds, the present O.A. deserves to be rejected.

b) On merits, the respondent states that as per General Instructions of para 8.11 of Employment OA No. 233/2015 Notice No. 2/2010, applications having any deficiencies, discrepancies or irregularities will be summarily rejected. During documents verification, it was found that the date of birth of the applicant filled in the application form is 21.05.1985 while as per matriculation marks sheet, date of birth is shown as 21.05.1986. Thus, as per the conditions of the advertisement, the application form of the applicant was treated as invalid. Respondent further states that out of 880310 applications received in pursuance to the Employment Notice No. 2/2010, 344445 applications were rejected due to some discrepancy or error mentioned as per para 8.11 of the notification. The Hon'ble Apex Court in the case of Bedanga Talukdar vs. Saifulladullah Khan & Ors., 2011 (12) SCC 85, has held that the selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained. Even passing written examination or PET does not create a right in favour of the applicant. Thus, there is no illegality in the action of respondent in not giving appointment to the applicant. OA No. 233/2015

The applicant has filed a rejoinder denying the submissions of the respondent. The applicant further states that as Assistant Personnel Officer is appointing authority, it is a necessary party and, therefore, it is irrelevant whether it is a lower or higher authority. Rejection of application due to minor mistake/human error of mentioning wrong date of birth, cannot be a ground for cancellation of his candidature. This shows bad intention and gross negligence of the respondent. Therefore, applicant is entitled for getting appointment on the post in Pay Band-1 of North Western Railway by condoning the minor mistake committed by the applicant.

We have heard learned counsels for the parties at length and examined the pleadings minutely.

The applicant besides reiterating his submissions further stated that a human error / bonafide mistake can always be rectified. With regard to the necessary party not impleaded, it is stated that as the said issue is sorted in the previous O.A., therefore, unnecessary objection cannot be raised again by the respondents. It was further added that as there are subsequent OA No. 233/2015 advertisements made for the said post in question, it is clear that there are vacancies and, therefore, the applicant has every right to be appointed. As applicant has appeared in written examination, PET, documents verification, he is fully eligible for appointment. Thus, not giving appointment to the applicant is per se illegal, arbitrary, discriminatory and not sustainable in the eyes of law.

The respondent also reiterated the submissions made earlier and added that the date of birth mentioned by the applicant in his application form did not tally with the date of birth mentioned in the original matriculation marks sheet at the time of documents verification. As such, his application was treated as invalid application. Accordingly, not giving appointment on the said basis is just and legal. Applicant is himself guilty of the lapse in not filling his application form correctly. Mere participation in the selection process does not entitle him to be appointed as well when the application form itself has been held invalid. On the other hand, applicant himself has given declaration in para No. 24 of the application form that all statements given are correct to his knowledge and OA No. 233/2015 belief and, on the other hand, he himself has given wrong information in Para No. 9 of the application form regarding date of birth. Even allegation with regard to violation of principles of natural justice in absence of any mandate is neither just nor legal. Thus, rejection of his candidature on the said basis is justified and as per the terms and conditions laid down in the notification. Hence, any allegation of discrimination or arbitrariness is without any substance. Therefore, the present O.A. filed by the applicant deserves to be dismissed.

The question which requires to be considered is whether the candidature of the applicant ought to have been cancelled on the ground of submitting wrong date of birth in the application form and subsequently during documents verification, it is disclosed that the said date of birth does not match.

After hearing the parties and perusing the pleadings, the factual matrix of the case is that applicant being S.C. category candidate and after fulfilling the criteria as required had applied for the post in Pay Band -1 of Rs. 5200-20200 having Grade OA No. 233/2015 Pay Rs. 1800 in pursuance to the Employment Notice No. 2/2010 (RRC/NWR). He was given a call letter and had appeared in the written examination on 27.05.2012 and for PET on 15.10.2012. Thereafter, he was called for documents verification on 17.01.2013. On the day of documents verification, it was noted by the respondent-department that the date of birth of the applicant filled in application form is 21.05.1985, while as per matriculation marks sheet, date of birth is 21.05.1986. It is the applicant who himself has filled in wrong date of birth in the application form may be due to a bonafide mistake.

The respondent, on the other hand, on the basis of conditions mentioned in Para No. 8.11 of the Employment Notice No. 2/2010 (RRC/NWR) rejected the application of the applicant vide order dated 24.07.2013 (Annexure A/7). In Para No. 8.11 of the said Employment Notice, it is mentioned that if there is any deficiency, discrepancy or irregularity found in the application form, the same will be summarily rejected. As such, the Application Form dated 03.03.2011 of the applicant was treated as invalid/ineligible by the competent authority as per OA No. 233/2015 instructions contained in Para No. 8.11 of the Employment Notice No. 2/2010 (RRC/NWR). Accordingly, the applicant was informed about his application form being rejected vide letter dated 24.07.2013, Annexure A/7, on the ground of invalid application form.

After going through the case of the applicant, we see that the stand taken by the respondent-department is that date of birth mentioned by the applicant in his application form did not match with the date of birth mentioned in the document / matriculation marks sheet submitted by him during documents verification and, thus, application form of the applicant was summarily rejected as per provisions contained in para 8.11 of the Employment Notice No. 2/2010 (RRC/NWR), as there were several such applications in the same manner which were also rejected. Thus, due to mismatch in the date of birth filled up by the applicant in his application form with the date of birth mentioned in matriculation marks sheet submitted by him, his candidature was rejected vide order dated 24.07.2013 (Annexure A/7). Therefore, there is no illegality in rejecting the OA No. 233/2015 application form of the applicant. The applicant has failed to challenge the impugned action taken by the respondent-department vide order dated 24.07.2013 (Annexure A/7), though served on him, therefore, merely praying for quashing and setting aside the impugned action of the respondent in relation to advertisement dated 16.12.2010 cannot be accepted. It is also noticed that in spite of raising objection by respondent about not impleading necessary party, applicant has failed to implead the necessary party for adjudication of his grievance and in absence of necessary party, the present O.A. also deserves to be dismissed on the ground of maintainability.

It is seen that the respondent-department has failed to accept the correct date of birth as per the matriculation marks sheet of the applicant and his candidature was rejected. As per the judgment dated 24th February, 2016 passed by the Hon'ble Supreme Court in the case of Raj Kumar Gijroya vs. Delhi Subordinate Services Selection Board & Anr., [Civil Appeal No. 1691/2016 (arising out of SLP (C) No. 27550/2012], wherein it has been clearly held that technicality should not come in the way for OA No. 233/2015 considering the candidature under the reserved category and that human, typographical, hyper technical error should be allowed to be rectified, but in the given circumstances, in absence of any vacancy pertaining to Employment Notice No. 2/2010 (RRC/NWR), in absence of any protection from court and third party rights likely to be affected by the said appointment and they not being made party respondents and where selection has been completed a decade ago, it cannot be said that the action of the respondent-department is arbitrary, illegal or in violation of any fundamental rules.

Thus, in view of the observations made herein- above, the impugned action of the respondent-department in rejecting the candidature of the applicant cannot be interfered with as the same is just and proper and the Original Application being devoid of any merits deserves to be dismissed. Accordingly, present Original Application is dismissed. No order as to costs.