Central Administrative Tribunal - Delhi
Chetna vs Delhi Subordinate Services Selection ... on 23 August, 2023
1
Item No.36
OA No.3073/2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3073/2015
Order reserved on: 10.08.2023
Order pronounced on : 23.08.2023
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Ms. Chetna,
Aged about 29 years,
W/o Sh. Ajay Kumar,
R/o B-70/11, Harijan Basti,
Kondli, Delhi-110096
(Aspirant for the post of Primary Teacher)
...Applicant
(By Advocate : Mr. Arun Bhardwaj, Senior
Advocate assisted by Ms. Aanchal Anand)
VERSUS
Govt. of NCT of Delhi through
1. Chief Secretary,
Govt. of NCT of Delhi,
I.P. Estate, Players Building,
New Delhi.
2. Delhi Subordinate Service Selection Board,
18, Institutional Area,
Delhi-110092.
3. The Commissioner,
East Delhi Municipal Corporation,
New Delhi.
...Respondents
(By Advocate : Ms. Purnima Maheshwari )
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Item No.36
OA No.3073/2015
ORDER
Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The applicant has participated in the selection process initiated by the DSSSB for the post of Primary Teacher in the year 2009 (annexed at page 12). Inspite of having cleared the various stages of the selection process of the examination and scoring higher marks than the last selected candidate in her category, she has not been extended the offer of appointment. Aggrieved by the same, she has filed the present O.A. seeking the following relief:-
"(i) direct the respondents to consider the candidature of the applicant as SC/ST outsider and give the benefit of relaxation as have been granted to other similarly situated candidates;
(ii) direct the respondents to send the dossiers of the applicant if found fit in all other respect to the concerned authority and thereafter, award all consequential benefit;
(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice"
2. Learned Senior counsel for the applicant draws attention to para 3 (at page 2) of the advertisement notice, which reads as under:-
"(3) The vacancies in the advertisement, earmarked for different reserve categories i.e. SC/ST/OBC, are as per the requisition 3 Item No.36 OA No.3073/2015 of the user department. It is clarified for the prospective candidates of SC/ST/OBC categories, that reservation benefits in these categories for the vacancies shall be admissible as per judgment 04-08-2009 of Hon'ble Supreme Court of India as passed in Civil Appeal No.5092/09 (arising out of SLP Civil No.24327 of 2005) - Subhash Chander & Ors. Vs.Delhi Subordinate Services Selection Board and Ors. With WP(C) No.507 of 2006 Sarv Rural & Urban Welfare Society Vs. Union of India & Ors.
All prospective candidates are advised to check their eligibility regarding admissibility of benefit of SC/ST/OBC reservation as per above judgment of Hon'ble Supreme Court before applying to the posts."
3. He states that the advertisement itself advises that the respective candidates shall check their eligibility with respect to the admissibility of benefit under the SC/ST/OBC reservation, in light of the judgment of the Hon'ble Apex Court in Subhash Chander and Others Vs. DSSSB & Ors. in Civil Appeal No. 5092/2009 (arising out of SLP Civil No.24327 of 2005). He states that the applicant, after examining the judgment, was very clear that since she was an SC (outsider) and she could not get the benefit of reservation, therefore, she applied under the unreserved category. He states that in the interregnum, the Hon'ble High Court of Delhi in Writ Petition No. 5390/2010 titled Deepak Kumar & Ors. Vs. District & Sessions Judge, Delhi had given the 4 Item No.36 OA No.3073/2015 benefit of reservation to SC (Outsider) and accordingly the respondents issued a corrigendum dated 23.02.2015 placed as Annexure-A/3 ( page 30), the relevant portion of which reads as under:-
"This is also informed that as per instructions received from the Govt. of NCT of Delhi, it has been decided by the Board that Result of SC/ST (Outsider) candidates will be processed as per applicable current policy on SC/ST based on order of Hon'ble High Court dated 12/09/2012 in WP(C) No.5390/2010 titled as Deepak Kumar & Ors. Vs. District & Session Judge, Delhi subject to fulfillment of other eligibility conditions as per advertisement & RRs as on cutoff date i.e. 15/01/2010 & other directions received from Government or Courts."
4. He states that certain candidates had applied under the SC (Outsider) category in the application form incorrectly interpreting the judgment of Hon'ble Apex Court in the case of Shubhash Chandra (Supra). These candidates who have availed the said benefit in the application form were extended the offer of appointment in terms of the corrigendum issued by the respondents on 23.02.2015. The applicant, in bonafide belief, followed the advertisement in letter and spirit and has been penalized and put to loss for understanding the judgment of the Hon'ble Apex Court in Subhash Chander (supra) correctly. He states that 5 Item No.36 OA No.3073/2015 the corrigendum was issued post declaration of result, which made the applicant to be considered as general candidate. He adds that it was incumbent upon the respondents to advise the candidates correctly to fill up the application forms, as the applicant has been denied the appointment and put to loss in spite of the fact that she has obtained merit above the last selected candidate in her category.
5. Learned counsel for the respondents vehemently opposes the instant O.A. and states that the applicant has applied under the unreserved category and her candidature has been rightly considered under the said category. Since the applicant herself has not availed the benefit of SC (outsider), the same has not been extended to her. She draws strength from para 4.4 of the counter reply, which reads as under:-
"The Board is only obeying instructions of Hon'ble High Court. Later the Hon'ble Court allowed SC/ST (Outsider) for benefit of SC/ST reservation in Delhi Govt. in the judgment of Deepak Kumar's case. Therefore, candidates who filled their category in application form as SC (Out Sider)/ST (Out Sider) had been given benefit of SC/ ST reservation. The applicant/Petitioner had not filled her category as SC(O) instead she filed as UR, she should not be extended the benefit of SC reservation. In application form, there was also a column of SC (Out Sider), she should have filled this column."6
Item No.36 OA No.3073/2015
6. She argues that the eligibility with respect to the benefit extended to the reserved category was determined only at the initial stage when the forms were filled and based on that, the candidature of the candidates has been processed. Since in the application form, the applicant has not filled the desired category against which she is seeking relaxation and not attached any supporting documents, her case has been treated under the unreserved category, wherein she has not got merit and, therefore, she has not been extended the offer of appointment.
7. However, she does not dispute that in terms of the judgment passed by the Hon'ble Apex Court in Subhash Chandra (Supra), had the applicant filled in as SC (outsider), she would not have got the benefit of the reservation. It is also not in dispute that once the result was announced, the respondents themselves have issued a corrigendum dated 23.02.2015, in pursuance of the judgment of the Hon'ble High Court of Delhi in the case of Deepak Kumar (Supra).
8. She states that, at this stage, the applicant is barred by the principle of estoppels in her category. In her short affidavit, she has placed reliance on the judgment of Hon'ble High Court in W.P. (C) No. 2892/2019 titled Pushpendra Singh Parnami Vs. 7 Item No.36 OA No.3073/2015 DSSSB. Relevant paras 7, 8, 9 & 10 of the short affidavit filed by the respondents read as under:-
7. That in WP (C) No., 2892/2019 titled Pushpendra Singh Parnami Vs. DSSSB decided on 25/03/2019 the High Court of Delhi held as under "Having missed the bus, he cannot be permitted to submit his documents/e-dossiers after the cut-off date. If such relaxation were to be granted to one candidate, it would be discriminatory in respect of others, who may have similarly missed the bus and this would render the entire process undertaken by the DSSSB as open ended."
8. That in WP (C) No.4721/2022 titled "Rajeev Vs. DSSSB" decided on 23/03/2022 the High Court of Delhi held as under in Para 9 "Therefore, in the given facts and circumstances, if we were to entertain the petitioner's writ petition, at this juncture, it will not only be unfair to those who have already been shortlisted, even though provisionally, but to all those who may possibly have secured marks higher than the petitioner in his category i.e., the OBC category".
9. That in WP (C) No.1505I/2021 titled "Rohit Kumar Vs. UOI"
decided on 26/04/2022 the High Court of Delhi in Para 13 held "Judicial review is concerned with legality rather than merit of the case. The courts cannot substitute its own view in exercise of power of judicial review." In Para 14 has held "The recruitment refers to the 8 Item No.36 OA No.3073/2015 process of finding possible suitable candidates for a job or function to be undertaken by the recruiters and advertising is common part of the recruiting process. It is for the employer to prescribe modalities of selection process, eligibility criteria and conditions for potential candidates."
Further, in Para 15 held that there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules and in Para 17 held that the advertisement does not prescribe any relaxation from prescribed conditions. These conditions were equally applicable to all potential candidates without any discrimination and favoritism. The petitioner did not challenge original advertisement and also participated in selection process. In Para 18 held that deviation would result in gross injustice to other candidates.
10. That in Civil Appeal No. 7677 of 2021 The State of Bihar & ,Ors Vs Madhu Kant Ranjan & Anr judgment dated 16.12.2021 the Supreme Court held that a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut- off date mentioned therein unless extended by the recruiting authority.
Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered."
9Item No.36 OA No.3073/2015
9. The sum and substance of all the judgments would be that the applicant was obliged to give the supporting documents and fill the right category at the initial stage itself. Since the same has not been done by the applicant, therefore, she could not avail the benefit of the reserved category as sought for. She states that the respondents have processed the subsequent selection process and the vacancies have been carried forward. She further states that the cutoff date for the same could not be extended being sacrosanct in nature. The conditions stated in the advertisement are sacrosanct and the applicant is obliged to follow them.
10. In rejoinder, learned Senior Counsel states that the applicant has followed the instructions in letter and spirit. He further submits that the Legislation itself has granted the benefit of reservation to the deprived categories and the applicant being part of the same, cannot be denied the benefit, particularly in light of the fact that the judgment of Hon'ble High Court of Delhi in the case of Deepak Kumar (Supra) has been followed by the respondents post declaration of the result.
11. In rejoinder to the averments made by the learned Senior Counsel for the applicant, learned counsel for the respondents places reliance on para 4.4 of the counter reply referred to hereinabove.
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12. We have heard the learned counsel for the parties and perused the material available on record.
13. It is not in dispute, that the advertisement advised the candidates to go through the judgment of Hon'ble Apex Court in Subhash Chandra (supra), as reproduced hereinabove. The learned counsel for the respondents admits that in terms of the judgment of the Hon'ble Apex Court in Subhash Chandra (supra), the applicant could not have availed the benefit of reservation as OBC (Outsider) and she has correctly filled her category as UR, at the relevant time. As a result, the applicant has not been extended the benefit of reservation under SC category being an SC (Outsider), however, the respondents have themselves in pursuance of the judgment of Hon'ble High Court of Delhi in Deepak Kumar (supra) by an order dated 23.02.2015 issued a corrigendum and extended the benefit of reservation of the SC (Outsider) after the declaration of the result, applying the judgment retrospectively. Learned counsel for the respondents 11 Item No.36 OA No.3073/2015 further confirms that the candidates who had, at the relevant time, in the application forms mentioned themselves as SC (Outsider) incorrectly interpreting the judgment of the Apex Court in Subhash Chander (supra), have been given extended the benefit of the judgment of Deepak Kumar (supra) retrospectively.
This takes us to the conclusion that the candidates who had interpreted the judgment of Hon'ble Apex Court incorrectly and filled their forms as SC (Outsider) have been given the benefit by the respondents, applying the judgment of Deepak Kumar (supra) retrospectively, while the applicant who had correctly interpreted the judgment and has bonafidely filled up the form as unreserved candidate while she was as SC (outsider), has not been given the benefit of reservation, to which she was entitled. It is further not in dispute that the applicant has higher marks than the last selected candidate in her category.
Accordingly, the applicant has been denied the appointment arbitrarily and without application of mind. The applicant has been put to disadvantage for 12 Item No.36 OA No.3073/2015 reading the judgment of Hon'ble Apex Court in Subhash Chandra (supra) correctly.
14. For the reasons explained above, the OA is allowed. The respondents shall consider the candidature of the applicant as SC/ST (Outsider).
They are also directed to extend the benefit of relaxation to the applicant, as has already been given to the similarly placed candidates. If the applicant is found fit, her dossiers shall be forwarded to the concerned authority and she shall be entitled for all the consequential benefits.
15. The OA is allowed in terms of the aforesaid directions.
There shall be no order as to costs.
(Dr. Anand S. Khati) (Pratima K. Gupta)
Member (A) Member (J)
/rk/