Central Administrative Tribunal - Delhi
Manoj K. Verma vs Union Of India on 12 October, 2011
Central Administrative Tribunal
Principal Bench
OA No. 3653/2010
New Delhi this the 12th day of October, 2011
Honble Mr.G.Goearge Paracken, Member(J)
Honble Dr.Veena Chhotray, Member(A)
Manoj K. Verma
Son of Sh. B.Kishan
House No.241, Sunaron Wali Gali,
Village & Post Office: Kanjawla,
Delhi-110081.
. Applicant
(By Advocate: Shri Avadh Bihari Kaushik)
Versus
1. Union of India
[Ministry of Personnel,
Public Grievances & Pension
(Through its Secretary]
Deptt. Of Personnel & Training,
Block 04, 3rd Floor,
Old JNU Campus,
New Mehrauli Road,
New Delhi-110067.
2. Staff Selection Commission,
[Through its Regional Director
(North Region)]
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-110504.
.. Respondent
(By Advocate: Shri S.M.Arif )
O R D E R
Honble Shri George Paracken:
This OA is directed against the alleged arbitrary action of the respondent No.2, namely, the Staff Selection Commission (SSC, for short) whereby it has restrained the applicant from taking part in the on-going interviews for various posts which have been advertised, despite he has been found qualified in the Combined Graduate Level Examination, 2010 (Tier-I and Tier-II). He has also sought a direction to the said respondent to strike out the condition in the advertisement that the candidates belonging to OBC category must possess OBC certificate issued to them prior to 2.3.2010 in a specific format which according to him, infringe their legal and fundamental rights.
2. The brief facts which are necessary for adjudication are discussed here. The respondents have issued the Annexure A-1 notice regarding Combined Graduate Level Examination, 2010 in the Employment News dated 30.1.2010. The applicant applied for the post of SI in CBI. One of the conditions prescribed in the aforesaid notice was that candidates claiming OBC status should produce certificate of creamy layer status obtained within three years before the closing date, i.e., 2.3.2010. However, by an inadvertent mistake he enclosed the OBC certificate dated 27.9.1999 issued to him along with application for the aforesaid post. In the said certificate, it was also certified that he was not belonging to persons/sections (Creamy layer) mentioned in column 3 of the schedule to the Govt. of India, Department of Personnel and Training O.M. No.36012/22/93-Estt. (SCT) dated 8.9.1993. In the Annexure A-2 call letter for interview dated 20.9.2010 also, the respondents have reiterated that candidates claiming OBC status should have obtained the creamy layer certificate within three years from closing date, i.e., 2.3.2010 which is the date of reckoning for OBC status of the candidate. The applicant was scheduled to be interviewed on 21.10.2010. At the time of interview, he has produced the OBC certificate and creamy layer certificate issued to him on 13.10.2010. As the certificate was dated 13.10.2010, i.e., after the closing date, he was not permitted to appear in the interview. However, this Tribunal, vide interim order dated 9.11.2010 in this OA, directed the respondents to allow him to appear in the interview provisionally. Accordingly, the respondents have interviewed the applicant and finally he was selected in the category of OBC as per the result furnished by the applicant at Annexure A-5 with his rejoinder. However, the applicant has not been given any appointment order so far. The applicant has challenged the impugned conditions/clauses of the recruitment notice/ interview call letter as illegal, arbitrary, irrational and unconstitutional since they are violating the principles of natural justice and equity and infringing his fundamental and legal rights. He has also relied upon the following judgments in support of his contentions.
1. Tejpal Singh & Anr. Vs. Govt. of NCT of Delhi & Anr., 120 (2005) DLT 117 decided on 24.12.1999.
2. Subhash Chander Vs. MCD, LPA No.72/2002 decided by the Honble High Court of Delhi on 18.8.2006.
3. Smt. Poonam Vs. Govt. of NCT of Delhi & Anr., WP (C) No.8508/2007 decided on 2.2.2009.
4. DSSSB & Anr. Vs. Anu Devi & Anr. and connected cases decided by the High Court of Delhi in WP (C) No.1387/2009 decided on 17.2.2010.
3. In Tejpal Singhs case (supra), the grievance of the applicant was that their certificate of being SC was not considered by the respondents for selection to the post of Teacher including Assistant Teachers in the MCD/ NDMC merely on the ground that their certificates were submitted after the last date specified for the purpose. The High Court has relied upon Chapter 2 of Swamys Compilation on Reservations and Concessions on SC and ST regarding verification of claim of SC and ST. According to para 3 of the said Chapter, provisional appointment can be given to SC candidates when certificates are not produced within the prescribed time. The said instructions says that where a candidate belonging to an SC or ST is unable to produce a certificate from any of the prescribed authorities, he may be appointed provisionally on the basis of whatever prima facie proof he is able to produce in support of this claim, subject to his furnishing the prescribed certificate within a reasonable time. If there is genuine difficulty in his obtaining a certificate, the appointing authority should itself verify his claim through the District Magistrate concerned. Appointment of an SC or ST candidate should not be withheld/delayed pending verification of case status.
4. In Subhash Chanders case (Supra) a Division Bench of the High Court was considering an appeal directed against the order of a Single Judge dismissing the case of the appellant. The appellant therein had filed the writ petition challenging the advertisement dated 24.1.1998 issued by the MCD to the extent that it laid down a condition that the application by a candidate for obtaining OBC certificate should have been made on or before 31.7.1996. The learned Single Judge dismissed the writ petition on the following two grounds:
(i) That till 30.12.1997 no OBC certificate from Delhi had been obtained by the appellant and accordingly he had rightly been considered as a General candidate.
(ii) The subsequent submission of such certificate by the appellant was of no avail in terms of the judgment of Supreme Court in MCD Vs. Veena, 2001 (6) SCC 571.
The High Court after detailed consideration of the case has allowed the plea of the petitioner and set aside the order of the Single Judge. The rationale for fixing a cut off date by the MCD was that the original cut of date for submission of the complete application form as stipulated in the advertisement was the same as the last date prescribed for obtaining the caste certificate. The High court held that there was no rational basis for fixing of cut off date for applying for a OBC certificate particularly when MCD itself later thought it fit to extend the time for such candidates applying for OBC category to obtain the OBC certificate. Therefore, the High Court has held as under:
26. Accordingly we hold that stipulation in the public notice dated 24.1.1998 issued by the MCD that the OBC certificate be submitted by a candidate applying under the category should have been applied for on or before 31.7.1996 is unreasonable. This condition in the said public notice is declared to be invalid and struck down as such. Since admittedly this is the only ground on which the appellants candidature was rejected, the respondent/MCD is required to consider the appellant for the post of Assistant Teacher in terms of the advertisement dated 16.7.1996 ignoring this stipulation. If the appellant is found qualified in all the other respects, the respondent/MCD is bound to offer him the post of Assistant Teacher. It is directed that the MCD will complete the exercise for considering the appointment of the appellant to the post of Assistant Teacher as directed hereinabove within four weeks from today and in any event not later than 15.9.2006. If there are no vacant posts of Assistant Teacher the respondent shall consider appointing the appellant to the first available vacant post of Assistant Teacher that may arise hereinafter. It is made clear that this will not entitle the appellant to any claim for retrospective seniority or emoluments and the seniority of the appellant shall reckon after the last person who already stands appointed as Assistant Teacher.
5. In Poonams case (supra), the petitioner has sought a direction to the respondents to consider her application form for the post of Assistant Primary Teacher in the category of OBC. The DSSSB vide their advertisement notified in the month of July 2007 fixing the last date of submission of the application as 29.10.2007. Applicant has applied for the aforesaid post under the OBC category but the DSSSB did not accept her candidature as OBC candidate as no proof was furnished by her as she belonged to the said category. Her contention was that she was not at fault as she had applied to the concerned SDM on 7.5.2007 to issue the certificate in her favour, i.e., much prior to the date of advertisement for the said post but considerable time was taken by the concerned authorities and issued a certificate on 1.11.2007. The High Court has considered whether the candidature in the category OBC be denied appointment on the ground that certificate of OBC issued by the competent authority from GNCT of Delhi had been submitted by the petitioner later after the expiry of the last date of submission of the application. The High Court held that the petitioner cannot be denied the right to be considered once there is no dispute that she belong to OBC category. Moreover, there was no lapse on the part of the petitioner and she was not allowed to suffer as she has obtained the certificate from OBC category much prior to the date of advertisement and she cannot be made to suffer simply on account of the fact that the authorities have taken considerable time in making available the OBC certificate. Accordingly, petition was allowed in her favour.
6. In DSSSB & anr. Vs. Anu Devi (supra), the common question was whether the respondents in different writ petitions are not entitled for selection to the post of Primary Teacher under the OBC category as they had not submitted the OBC certificate along with the application form by 29 October, 2007, the last date for submitting the application form, but they had submitted the OBC certificate within the time given later on by the notices given by the petitioners. The High Court while considering the aforesaid petition held that the submission of the OBC certificate for reservation under the OBC category cannot be equated with acquisition of the education qualification. The submission of the requisite certificate is only a Ministerial act which cannot be equated with acquisition of educational qualification to become eligible for the post and the submission of requisite certificate. The relevant part of the said judgment is reproduced as under:-
19. In any case the submission of OBC certificate for reservation under the OBC category cannot be equated with acquisition of the educational qualification. A candidate becomes eligible under the OBC category, the day the caste he belongs to is notified by the appropriate authority as a backward class. Though the learned counsel for the petitioners has emphasized that whether a candidate belongs to a creamy layer or not is to be determined only on issuance of a certificate, however, taking into consideration the entirety of the facts and circumstances, in our view the candidates not belonging to a creamy layer whose case is notified as a backward class becomes entitled for reservation under the OBC category and submission of the requisite certificate is only a ministerial act which cannot be equated with acquisition of education qualification to become eligible for a post. Consequently, the plea of the learned counsel for the petitioners that the respondents/candidates became eligible for selection in the OBC category on the dates the certificates were issued by the appropriate authorities, cannot be accepted. This plea in the present facts and circumstances should also be not accepted because in all the cases except in the case of Rekhawati (Supra) the candidates had applied for OBC certificate before the closing date for submission of forms which was 29t October, 2007. In the circumstances for the delay on the part of the authorities in preparing and giving the OBC certificate, it cannot be inferred or held that the candidates were not eligible for selection under the OBC category.
7. The respondents in its reply has submitted that the applicant has qualified the preliminary examination and the main examination and he was called for interview on 21.7.2010. However, in the course of verification of his documents at the time of interview it was found that OBC certificate obtained by him was of dated 13.10.2010 i.e. much after the cut off date of submitting application i.e. 2.3.2010. They have also submitted that the earlier certificate submitted by him was dated 27.9.1999, which was much before the stipulated three years time frame from the cut off date as stated in para 5 (C) of the notice, which reads as under:-
Candidates who wish to be considered against vacancies reserved/or seek age relaxation must submit requisite certificate from the competent authority, in the present format when such certificates are sought by concerned Regional/Sub Regional Offices after declaration of result of Tier I examination otherwise their claim for SC/ST/OBC/PH/Exs. Status will not be entertained and their candidature/applications will be considered under General (UR) category.
8. They have also submitted that applicant was not allowed to be interviewed on the ground that his the OBC certificate produced by him regarding the creamy layer was not within the stipulated time span of three years from the cut off date of submission of application form, i.e., 2.3.2010, which has considered as the date reckoning for the purpose. They have also relied upon the Instruction No.2 of the notice, which reads as under:
In view of the large number of applicants, scrutiny of the eligibility and other aspects will not be undertaken at the time of tier I and tier II examination and, therefore, the candidature is accepted only provisionally. The candidates are advised to go through the requirement of educational qualification, age, physical standards etc. and satisfy themselves that they are eligible before applying and indicating their preference for any particular posts. Copies of supporting documents will be sought only from those candidates who qualify in Tier II examination. When scrutiny is undertaken after tier II examination, if any claim is not found substantiated, the candidature will be cancelled and the Commissions decision shall be binding.
9. Counsel for respondents, Sh. Mohd. Arif has also relied upon the judgment of Apex Court in Dhananjay Malik and others Vs. State of Uttaranchal and others, (2008) 4 SCC 171, wherein the Apex Court has held that having unsuccessfully participated in the process of selection without any demur, candidates are estopped from challenging the selection criterion. Therefore, if the applicant had any valid objection, he should have challenged the advertisement and selection process without/before participating in the selection.
10. We have heard the learned counsel for the parties and have also perused the documents available on record. No doubt, there was a stipulation in the Annexure A-1 notice that candidates claiming OBC status must obtain their certificate of creamy layer status within three years before the closing date, i.e., 2.3.2010. It is an inadvertent mistake that the applicant could not submit the prescribed certificate before the closing date. However, there is no dispute of the fact that applicant belongs to OBC category. He has also furnished a certificate issued to him on 27.9.1999 certifying that he belongs to the OBC category and also he does not belong to the persons/sections (Creamy layer) mentioned in column 3 of the schedule to the Govt. of India, Department of Personnel and Training OM No.36012/22/93-Estt. (SCT) dated 8.9.1993. When the applicant was issued the call letter for interview dated 20.9.2010 stipulating the very same conditions stated in the advertisement he has immediately applied for a fresh certificate and obtained the same on 13.10.2010. He was to be interviewed on 21.10.2010. The respondents - SSC refused to interview him only on the ground that the OBC certificate and creamy layer certificate produced by him was issued to him after the cut off date prescribed in the advertisement as well as in the interview letter. As held by the Honble High Court in a number of cases relied upon by the applicant, the main thrust is that a person who was qualified in the selection under the respective reserved category shall not be denied appointment on the sole ground that the certificate regarding his caste status could not be produced before the closing date of the advertisement. In Tej Pal Singh (supra), the High Court has held that a person belongs to a reserved category by birth and not by acquisition of that category. It has also been held in the said judgment that the certificate issued by the competent authority to this effect is only an affirmation of a fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to reserved category and to act thereon by giving the benefit of such reservation. The aforesaid position has also been re-affirmed in the judgment of the DSSSB and anr. Vs. Anu Devi and anr. and connected cases (supra).
11. In the present case also, there is no dispute that the applicant belongs to OBC category. He, along with his application, had submitted a OBC certificate issued to him on 27.9.1999 wherein it has also been held that he was outside the creamy layer. The said certificate is valid for a period of ten years as the review in such cases are generally done only after ten years. As the same was not valid for the purpose of appointment in terms of advertisement, he has obtained a fresh certificate dated 13.10.2010 and submitted it on the date of his interview held on 21.10.2010. It is nobodys case that his creamy layer status has undergone any change during the period from 3.3.2010 to 12.10.2010, i.e. the period from the expiry of the closing date of receipt of the application forms and the date before the 2nd certificate was issued to him on 13.10.2010. Going by the judgments of Honble High Court of Delhi relied upon by the applicant referred to above, in our considered view, the applicant cannot be denied appointment only on the ground that the OBC certificate including the creamy layer certificate produced by him is of a date after the closing date of receiving the application forms. Resultantly, we allow this OA. As the applicant has already been interviewed on the interim directions of this Tribunal and the respondents SSC has already declared him selected, they shall immediately forward his dossier to the user department and they shall offer appointment to the post to which he has been selected, subject to his fulfilling all other requisite conditions with all consequential benefits as granted to his other batchmates except backwages. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
sd