Central Administrative Tribunal - Delhi
Shri Raj Kumar Beragi vs Govt. Nct Of Delhi And Others Through on 1 April, 2011
Central Administrative Tribunal Principal Bench O.A. No. 2925/2010 New Delhi, this the 1st day of April, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Shri Raj Kumar Beragi S/o Shri Ganga Saran Beragi R/o T-382, Gali No.5, Gautam Puri, Delhi. ..Applicant By Advocate: Mrs. Priyanka Bhardwaj for Shri M.K. Bhardwaj. Versus Govt. NCT of Delhi and Others through 1. The Chief Secretary, Govt. of NCT of Delhi, New Secretariat,I.P. Estate, New Delhi. 2. The Secretary, Delhi Subordinate Selection Board, Institutional Area, Karkardooma Complex, Delhi. 3. The Chairman/Managing Director Delhi Transport Corporation, DTC HQ, I.P. Estate, New Delhi. Respondents By Advocate: Shri Chandramani Bhardwaj for Ms. Rashmi Chopra for Respondents No.1 & 2. Shri Ajesh Luthra for Respondent No3. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
The issue raised by the applicant in this case is whether a person who has been cleared in the written examination by Delhi Subordinate Services Selection Board (hereinafter referred to as DSSSB) can be denied appointment to the post of Driver in Delhi Transport Corporation (hereinafter referred to as DTC) simply on the ground that he had not submitted the OBC certificate along with the application.
2. It is submitted by the applicant that in December, 2007 a Notification was issued for making appointment against 10,000 vacancies in DTC. Since applicant was fulfilling all the eligibility conditions against Post Code No.187/2007, he applied in the OBC category for the post of Driver. Applicant was allowed to appear in the written examination on 12.4.2008 as an OBC candidate. He qualified in the written examination, as such he was called to appear in the skill test held from June to September, 2008, that too in the OBC category. The final result was declared on 28.9.2008 wherein applicant was declared selected but no offer of appointment was issued to the applicant though it was being issued to other candidates, therefore, he approached respondent No.3 to know the reasons why he has not been issued the offer of appointment, whereupon he was informed that his case would be processed only after getting copy of the OBC certificate issued from Delhi. Applicant immediately submitted the OBC certificate issued by the office of Deputy Commissioner (North East District) Delhi along with his representation dated 9.3.2009 still the offer of appointment was not issued to the applicant. Number of such similarly situated persons were given offer of appointment, therefore, he resorted to RTI, whereupon he was informed vide letter dated 29.6.2010 as follows:-
3. It is in these circumstances that the applicant has filed the present OA seeking a direction to the respondents to appoint him to the post of Driver with all consequential benefits from the date other similarly situated persons have been appointed and to extend the benefit of judgments given in the case of Smt. Rekhawati Vs. Govt. of NCT of Delhi and Others (OA No. 956/2009) and Jagbir Vs. DTC & Others Vs. Govt. of NCT of Delhi and Others (OA No. 2171/2009 with OA No. 2170/2009).
4. Respondents on the other hand have taken preliminary objection to the maintainability of the OA on the ground that it is barred by limitation as result was declared 30.9.2008 whereas OA has been filed in September, 2010. On merits, they have stated that they had advertised 1000 vacancies of Driver under Post Code 187/07 vide Advertisement No.10/07. The last date for submission of application form was 31.1.2008. Result was processed on the basis of written examination. The skill test was of qualifying nature. The final result was declared on 30.9.2008 for all categories except Ex-servicemen category, which was declared on 23.12.2008. The candidates, who have qualified skill test and secured 55/100 marks in written examination with date of birth 5.2.1974 were selected under unreserved category and all the vacancies under UR categories were filled. In the case of reserved categories all the candidates who qualified the skill test and secured up to minimum marks, i.e., 30/100 in written examination were recommended to the post of Driver, DTC.
5. They have explained that the applicant Sh. Raj Kumar Bairagi, Roll No. 18700050 was not selected as he secured less marks than the last selected candidate in UR category i.e., 55/100 as per merit list. Thus the applicant was not eligible for selection. He was not given benefit of reservation in OBC category as OBC certificate submitted by the applicant was issued to him on 6.2.2009, i.e., after the cut-off date of 31.1.2008. The applicant did not submit OBC certificate at all at the time of submission of application form. The benefit of reservation cannot be given to the candidates, if their OBC certificate is not issued by the competent authority of Govt. of NCT of Delhi. As per dossier of the candidate received back from the user Department, applicant had not submitted any documents with regard to OBC. It was only at a later stage that the applicant enclosed copy of OBC certificate which was issued by the Tehsildar (Seelampur), Delhi on 6.2.2009, i.e., much after the last date of submission of application forms (31.1.2008), therefore, he was not eligible under OBC quota for the post.
6. They have further stated that the credentials of the candidates as regard their eligibility is checked only at the time of final selection, as such, admit cards were issued to all the applicants provisionally. In the result, it is clearly mentioned that the appointment of these candidates is subject to fulfillment of all conditions of eligibility as per recruitment rules and also age, educational qualifications and other conditions for the post, verification of original documents and also the correctness of information submitted by them in their application form. It is further submitted that the applicant did not submit his OBC certificate at the time of submission of application form, therefore, the benefit of reservation cannot be given to the applicant.
7. DTC has also filed counter affidavit wherein it is stated that respondent No.2 gave an advertisement in the leading newspapers inviting applications from the eligible candidates for recruitment to the post of Drivers in DTC. Against the said requisition, the respondent No.2 (DSSSB) finally selected 5155 candidates after conducting their written examination as well as driving skill test and also sent their dossier files to respondent No.3 DTC for further scrutiny of their eligibility conditions with reference to their educational qualification, age experience etc. before giving appointment to such candidates.
8. In view of above since no dossier case file in respect of the applicant candidate has been received from the respondent No.2 (DSSSB), no action is warranted on the part of respondent No.3 (DTC) at this stage. The applicant has no cause of action against the respondent DTC and also no relief can be claimed against it at this stage. The OA may be dismissed.
9. We have heard all the parties and perused the original record as produced by the DSSSB on our directions.
10. Perusal of the advertisement issued on 5.11.2008 shows it was specifically mentioned as follows:-
APPLICANTS ARE ADVISED TO NOTE :
(1) CANDIDATES ARE REQUIRED TO SUBMIT LEGIBLE ATTESTED COPIES OF THE FOLLOWING DOCUMENTS:
(i) Matriculation/Secondary certificate or equivalent in support of their declaration of age.
(ii) Degree or Diploma or other certificates in support of their claim of educational qualifications and copies of year-wise marks sheets from Matriculation onwards.
(iii) Certificate in support of claiming age-relaxation etc.
(iv) For Ex-Servicemen in case he has passed the Indian Army Class I examination or equivalent in Air Force/Navy. (v) Caste/Category/ Ex-Serviceman / Government Employee Certificate on the prescribed form, issued by the competent authorities, if claiming benefit under any of the above categories. Ex-serviceman has to furnish undertaking that this is their first claim for the reservation after discharge from the active service.
(vi) The eligible Government servants are advised to submit their application at the receiving counter of DSSSB and they are required to attach an undertaking that they have informed in writing to their H.O.O./Department that they have applied for the exam along with a copy of the application submitted to the Head of Office/Department in addition to the undertaking.
(vii) Two recent passport size coloured photographs (front face) as per specification in Section-A out of which one should be pasted (Not stapled or tagged) on the space provided in the application form. The second copy of the same photograph should be attested by a gazetted officer and be attached carefully with the application form for the purpose of identification of the candidate at any stage of recruitment. Any variation between the photographs may lead to rejection of his/her candidature.
(viii) One self addressed post card duly affixed with Rs.6/- postage stamps for acknowledgement of the application. The candidate must indicate the name of the post, Advertisement Number and Post Code Number of the post applied for on the post card.
(2) The number of vacancies reserved for various categories has been notified in the advertisement on the basis of requisitions furnished by the Indenting Departments. OBC candidates seeking benefit of reservation should submit OBC certificate issued by the competent authority of Government of NCT of Delhi. All other OBC candidates with certificates issued from outside Delhi will be considered for the unreserved category if eligible otherwise.
11. It is thus clear that candidates claiming benefit of OBC were directed to submit the OBC certificate issued by the competent authority of Government of NCT of Delhi, yet applicant did not submit any certificate along with this application though he applied as an OBC candidate so naturally applicant could not have been considered as an OBC candidate. He was considered as an UR candidate but could not be selected as he had scored lesser marks than the last cut-off marks in UR category. The last selected candidate in UR category had received 55/100 marks while applicant had scored lesser marks so naturally he could not have been selected in UR category also.
12. Counsel for the applicant strenuously argued that the OBC certificate was given by the applicant subsequently in the prescribed format, therefore, he should be considered as an OBC candidate. However, perusal of the certificate submitted by the applicant shows it was applied for only on 26.8.2008 whereas the last date for submitting the application along with certificate was 31.1.2008 that means, that the certificate was applied after the cut-off date. It was submitted still later along with his application dated 9.3.2009. It is relevant to note that no certificate was attached with the application to show that he belonged to OBC category even though in the advertisement it was clearly mentioned as under:-
2. The number of vacancies reserved for various categories has been notified in the advertisement on the basis of requisitions furnished by the Indenting Departments. OBC candidates seeking benefit of reservation should submit OBC certificate issued by the competent authority of Government of NCT of Delhi. All other OBC candidates with certificates issued from outside Delhi will be considered for the unreserved category if eligible otherwise.
13. Applicant was thus told in advance that he should file the certificate along with application. Admittedly, applicant did not submit any certificate along with his application. Had applicant been vigilant, he would not have faced this situation. He has, therefore, to blame himself for the situation in which he is today.
14. Counsel for the applicant placed reliance on the judgment of Jagbir Singh in OA No. 2171/2009, Poonam Chauhan and Sanjeev Kumar in OA No. 2372/2010 while respondents have placed reliance on Mukesh Kumar Yadav (W.P. No. 193/2009) and Harpal Singhs in OA No. 89/2007 judgment. Perusal of these judgments show in Sanjeev Kumar OA No. 2372/2010 decided on 181.11.2010 by the Tribunal, no question of law was discussed. It was merely decided on the basis of Jagbir Singhs judgment so it cannot be taken as having laid down any question of law. As far as judgment dated 10.11.2009 given by the Tribunal in Jagbir Singhs case bearing OA No.2171/2009 is concerned, it had in turn been allowed by relying on Anu Devi Vs. MCD & Another OA No.370/2009 decided on 17.7.2009, so even this case has not laid down any question of law. Judgment of Anu Devi has not been placed on record by the applicant so it cannot be discussed.
15. On the other hand we have seen the judgment of Honble High Court of Delhi in W.P. No.193/2009 decided on 1.10.2010 in the case of Mr. Mukesh Kumar Yadav & Others VS. Government of NCT of Delhi. This case was filed by 3 petitioners out of whom one had not submitted any certificate of OBC along with application while 2 candidates had submitted the certificate of OBC obtained by them from the State of Rajasthan. All the petitioners were given admit cards and had cleared the test but they were not included in the final results. The candidate who had not submitted any certificate obtained the certificate subsequently and submitted the same after the cut-off date which was not entertained. Similarly the other 2 were informed that the candidates having OBC certificates issued by states other than Delhi were not entitled to avail the benefit of reservation in Delhi. It was submitted by the petitioners that since they did submit the certificates of OBC and secured marks more than the last candidate in OBC category, therefore, they should be considered as OBC candidates and their results should be declared. They had placed reliance on Pushpas case and Poonam Chauhans judgment (W.P. No. 548/2008 decided on 9.7.2008).
16. Both these judgments were distinguishable in Mukesh Kumars case by observing as follows :-
I am of the view that none of the two decisions of this Court relied upon by the counsel for the petitioners is of any help to them. In Pushpas case(supra) the writ petition was allowed since the petitioner of that case had applied for the caste certificate before the cut-off date but the concerned department had delayed its issuance and so it was observed by this Court that there was no fault on the part of the petitioner. In the present case, however, none of the petitioners had even applied for caste certificates before the cut-off date of 21st January, 2008. The judgment of the Division Bench of this Court in Poonam Chauhans case(supra) relied upon by the counsel for the petitioners is also not applicable since the advertisement in question in that case does not appear to be having any clause to the effect that the applications should be accompanied by caste certificates issued by the Competent Authority of the Delhi Government as is the clause in the advertisement in question in the present case. Therefore, considering the fact that the applications submitted by the petitioners were not accompanied by OBC certificates issued by the Competent Authority of the government of NCT of Delhi and they had not even applied for the same before the cut-off date for the submission of the application it cannot be said that the respondents action in refusing them the appointment in OBC category was illegal, arbitrary or unjustified. This writ petition is, therefore, dismissed.
17. This judgment, according to us, would be fully applicable to the facts of the present case because here also in the advertisement it was clearly mentioned that application should be supported by a certificate of OBC issued by the Government of NCT of Delhi yet applicant did not submit the said certificate. Moreover, he even applied for the certificate after the cut-off date. In these circumstances, it cannot be said that the action of respondents in refusing to consider them as OBC is illegal, arbitrary or unjustified.
18. At this juncture it would be relevant to refer to 2 more judgments of the Honble High Court on this issue. In UPSC Vs. Savita and Others decided on 10.8.2010 in Writ Petition No.13651, the respondents had applied for the post of Project Officer/Supdt. Child Development as an OBC candidate but had not given the certificate on the prescribed format even though in the notification inviting applications it was clearly mentioned that if any candidate desires appointment under SC/ST or OBC category, photocopy of the requisite certificate should be submitted along with the application in the proforma prescribed by the Government. Since the certificate was not as per required format and in the certificate she was certified to be wife of Satish Malik whereas boy or girl acquires status by birth and not on account of marriage, the UPSC did not recognize her as a valid certificate. She challenged the action of UPSC by filing an OA which was allowed. The matter was carried to the Honble High Court. The Writ Petition was allowed and OA dismissed by observing as follows:-
6. We agree with the submission made by learned counsel for the petitioner that since UPSC conducts hundreds of public examinations each year in which candidates by thousands apply, if required to verify the certificates as is required under the impugned order, same would delay selection process and thereby derail the selection process.
7. Suffice would it be to state that if such kind of discrepant certificates are required to be investigated by UPSC, it may require a huge manpower to carry out investigation, which it does not have. Not only that. Till the investigating process is complete results would be delayed. It need hardly be emphasized that it is in public interest that public posts are filled up at the earliest so that the civil servants are able to serve the society.
19. Similarly in another batch of Writ Petitions filed by UPSC against the judgment of Tribunal in W.P. ( C) 10058/2009 & connected matters decided on 25.1.2010 the contention of the respondents therein was that all the documents were produced by them when they went for the interview, therefore, no prejudice would be caused to the UPSC if they are considered. Honble High Court noted large number of applications were received by the Commission it was thus impracticable to expect the UPSC to give a go by to the instructions that have categorically and specifically been mentioned in the advertisements issued by it. It is one thing to say that procedure is a handmaid of justice but it is another thing, in practical life, to give procedure a complete go by for the sake of accommodating a few people. If this is done, then there would be no obligation on anybody to follow any procedure resulting in a completely unmanageable situation.
If the submission made by learned counsel for the Respondents is placed on a larger canvas (since the UPSC conducts dozens of such examinations annually), one can well imagine the resultant chaos. For example, it is well known that the UPSC receives lakhs of applications for the Central Civil Services Examination. If every such applicant submits an incomplete application, that is to say that the relevant information is not submitted along with the application, the processing time for the UPSC would take several months and would, in the long run, be completely counterproductive. Consequently, in our opinion while it is true that procedure is the handmaid of justice, it is not possible to ignore practical difficulties that may arise in a given case.
The present case is such a case where, because of a very large number of applications received by the UPSC, if it is compelled to accept procedurally incomplete applications, there would be serious practical difficulties that it would have to encounter and this may very well lead to a break down in the system. We also cannot overlook the fact that the applicants/Respondents are all highly educated persons claiming to have an LLB degree and three years experience at the Bar. Therefore, it must be assumed that they fully understood the contents of the advertisements and the DAF. There was a duty cast on them to correctly fill up the DAF and they cannot be allowed to contend that despite this, their application should be accepted even if it is incomplete only because procedure is the handmaid of justice.
The matter may be looked at from another point of view. The UPSC has rejected the candidature of 45 persons due to non-submission of the required documents and/or submission of documents in the wrong format. If any relief is granted to the Respondents before us, surely it would be appropriate to grant a similar relief to other similarly placed candidates, some of whom may not have approached the Tribunal for relief. If this exercise were to be undertaken, perhaps the entire examination would require to be cancelled. In our opinion this is neither in the interest of the candidates who have qualified nor is it in the public interest to cancel the entire examination for the sake of accommodating a few persons, such as the Respondents.
20. From above, it is clear that the consistent view taken by the Honble High Court is that incomplete applications cannot be accepted. Since all the instructions are given in the advertisement, it is in their own interest that candidates should give complete application. It is not even the case of applicant that he had already applied for the certificate well in time but the same was not issued by the competent authority in time. Applicant has only to blame himself for not following the instructions properly.
21. Similarly in Harpal Singhs case decided by the Tribunal on 28.9.2007 in OA No. 89/2007 this Tribunal was dealing with a case where the candidate had submitted OBC certificate after the cut-off date. After discussing all the judgments on the issue, Tribunal held as follows:-
In view of the foregoing, considering the factual matrix of the case as stated in the para 6 above and the general view being held in various decisions of the Tribunal as well as the Honble Delhi High Court regarding the condition of the submission of the OBC certificate with the cut-off date stipulated as per the relevant advertisement, being relaxable in cases where there had been a due diligence on the part of the candidate for procuring the certificate from the competent authority well within the time and the delay not being attributable to him/her; the claims in the OA are not found to be tenable.
22. In view of above settled position in law and as discussed above, we find no good ground to interfere in this case. The OA is accordingly dismissed. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
Member (A) Member (J)
Rakesh