Delhi High Court
Sunita Yadav vs Municipal Corporation Of Delhi on 14 March, 2006
Equivalent citations: 2007(1)SLJ338(DELHI)
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The petitioner claims a direction in these writ proceedings to the respondent, Municipal Corporation of Delhi (MCD) to consider her application and appoint her to the post of Primary Teacher.
2. The factual matrix, as appearing from the rival pleadings is that the petitioner, belongs to the Yadav caste, which is OBC in Delhi as well as Haryana. The MCD advertised on 16-7-1996, calling for applications from eligible candidates; the application had to be submitted on or before 31 July, 1996. The petitioner applied for the post, but submitted an OBC certificate from Haryana. It is alleged that there was no clarification or note requiring a OBC certificate from Delhi only.
3. The petitioner alleges that her application was entertained by MCD without any objection and the acknowledgement dated 18.10.96 and the same allotted number 2944. The application was not rejected on the ground of OBC certificate not being from Delhi nor was the petitioner called upon to submit certificate from Delhi only.
4. The MCD changed their policy for recruitment and instead of written test and interview, selected the candidates on the basis of merit by calculating the grading which was also done even in the case of the petitioner. Subsequently, by advertisement dated 24.1.98, the MCD stated that representations from candidates who had applied in response to advertisement of July, 1996 would be entertained.
The foot note to the advertisement, contained a further condition which reads as under :
those OBC candidates, who have submitted their application for OBC certificates to the Competent Officer, Delhi on or before 31.of July, 1996, and obtained OBC certificate up to 31st of May, 1997, those certificates are acceptable. Candidates should attach all necessary certificate with their applications.
The petitioner submitted her OBC certificate issued from Delhi on 1.8.97; nevertheless she was not appointed.
5. The non-selection of the petitioner has been attacked as arbitrary and contrary to law. It was contended on behalf of the petitioner, by Mr. K.C. Mittal, during the course of hearing that the requirement of having to obtain and submit an OBC certificate from Delhi was never notified; in fact, the clarification of January 1998 restricted consideration to those who had obtained a certificate by 31-5-1997; this condition itself was never notified, nor based upon any legal requirement. Hence, it cannot be sustained.
6. Counsel also submitted that the facts and circumstances of this case, are covered by the two judgments in the cases of Sunita v. Govt. of NCT of Delhi and Rajender Prasad v. The Chairman, DSSB of NCT of Delhi and Others . It was submitted that in the judgment in the case of Sunita the court considered the judgment of Supreme Court in the case MCD v. Veena and it has been held that the petitioner in that case could not be denied consideration as OBC candidate notwithstanding that the certificate was after the cut off date. The facts of that case are almost similar to the case of the petitioner. Even in another judgment of Rajender Prasad, the court considered the Division Bench judgment of this Court in Anand Lal Yadav and Meena Yadav and on the basis of judgment in the case of Tejpal Singh has been followed. Paragraph 6 & 7 of the judgment in Rajender has been relied upon; it reads as follows:
6. Counsel for the respondents stated that review has also been preferred against the Division Bench's judgment in LPA 304/2000 i.e. Tejpal Singh and the matter should therefore be deferred. This review petition has been preferred after the Special Leave Petition filed by the respondents had been dismissed. Considering that petitioners as well as other are to be appointed, giving the benefit of the seniority and continuity of service, but without the benefit of back wages, no useful purpose would be served by avoiding or deferring these matters.
7. Be that as it may, the detailed judgment of the learned Single Judge has been upheld by reasoned judgment by the Division Bench in LPA 304/2000. The SLP against the same has also been dismissed. As against this we have the observations made by another Division Bench, which does not contain any detailed reasoning or any ground for retracting the decision of the Division Bench in LPA 304/2000.
7. The counsel for respondents has denied that MCD acted in an arbitrary or illegal manner. The petition, it is urged, is liable to be dismissed on the ground of delay and laches. The last date for making applications was 30th July, 1996. The application had to be complete in all particulars. The petitioner did not submit an acceptable certificate, which in this case, meant one issued by authorities in Delhi. The certificate was issued only in 1998, after the cut off date, viz 31-5-1997. It was unacceptable. The petitioner has approached the court in 1999, after considerable delay.
8. It is contended on behalf of the respondent MCD that the issue of whether OBC certificates can be accepted beyond the notified date, had been considered in several judgments, of Division Benches and the single judge, where it has been consistently established that if for any reason, the certificate is not tendered within time, or within the extended time, in terms of a duly published advertisement the candidate has no right to insist that his name ought to be considered. The decision of the Division Benches in Anand Lal Yadav "vs Govt of NCT of Delhi ( LPA No. 541/2001); Meena Yadav "VS- Govt of NCT of Delhi (LPA 825/2002); and of the single judge in Bimla Saini "vs- Commissioner MCD (CW 1793/1999) and Santosh Kumari "vs- MCD (CWP 1153/2000) have been relied upon for the purpose.
9. I am of the opinion that the judgment of the Supreme Court in the case of Municipal Corporation of Delhi "vs- Veena 2001 (6) SCC 571 leaves no room for controversy. The Supreme Court had occasion to deal with an identical claim of a candidate who applied with a certificate issued by an agency which was unacceptable to the NCT of Delhi, and was rejected. This Court had ruled that the advertisement did not indicate that the OBC certificate had to be from Delhi, and therefore, the certificate of other states could have been accepted. The Supre Court held as follows:
The facts leading to the present cases, in brief, are as follows :
Applications were invited from Indian citizens for appointment to the posts of primary and nursery teachers in Municipal Corporation of Delhi on 16-7-1996. In the course of the notification the following was mentioned by a note :
Note. - Candidates, seeking reservation as ST/SC/OBC/Ex-S/PH may submit the prescribed certificate from the competent authority in support of their claim with applications. The reservation policy to the categories of ST/SC/OBC/Ex-S and Physically Handicapped candidates shall be followed in accordance with the latest policy of Central/Delhi Government.
The respondent candidates claimed to belong to OBCs on the basis of certificate issued in a State other than the Government of the National Capital Territory of Delhi. The applications filed by the respondent candidates stood rejected. The respondents filed writ petitions before the High Court and the High Court by a common order made on 10-3-1998 held that the advertisement issued by Municipal Corporation of Delhi did not indicate the form in which the OBC certificates have to be filed in respect of posts arising in the National Capital Territory of Delhi and, therefore, there was no obligation on the respondents to produce such certificate from the prescribed authorities in Delhi; that the obligation to produce the certificate from authorities in Delhi could not be fulfillled by candidates coming from outside Delhi and, therefore, what is impossible could not be expected to be fulfillled by the respondents and on that basis, the High Court directed to treat the applications filed by the respondents to be in order and proceed to make selections.
***** ****** ****** A careful reading of this notification would indicate that OBCs would be recognised as such in the Government of the National Capital Territory of Delhi as notified in the notification dated 20-1-1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificates will have to be issued only by the specified authorities and certificates issued by any other authority could not be accepted. The Government of India has also issued instructions from time to time in this regard which indicated that a person belonging to OBC on migration from the State of his origin in (sic to) another State where his caste was not in the OBC list was entitled to the benefits or concessions admissible to OBCs in his State of origin and the Union Government, but not in the State to which he has migrated. Thus the High Court lost sight of these aspects of the matter in making the impugned order in either ignoring the necessary notifications issued in regard to classification of OBC categories or in the matter of verification thereof. Thus the order made by the High Court in this regard deserves to be reversed.
10. As is evident from the above extract, the court was dealing with the same advertisement for the same posts, as is in question in these proceedings. Therefore, this court, by virtue of Article 141 of the Constitution of India, cannot take a different view. That apart, I am of the view that the distinction sought to be made out in Sunita's case (supra), with due respect, that the Supreme Court, on the facts of the case, came to its conclusion, is unacceptable. The Supreme Court declared the law, on the issue of acceptability or otherwise of the OBC certificates, issued by outside agencies, and presented after the last date. Therefore the distinction, based on the facts, cannot be made out by this court. I am also of the opinion that in view of the decisions of the Division Bench, noticed above, the petitioner's case cannot be accepted on the merits.
11. The selection and appointment of candidates commenced in 1996-1997. The petitioner approached the court in 1999. In view of these facts, the objection that the petition is hit by laches and delay, is also well founded. Interference at this stage, would upset third party settled rights arising from appointments, which would not be conducive to public interest.
12. In view of the above discussion, this writ petition is dismissed; rule discharged. No costs.