Central Administrative Tribunal - Delhi
Shri Vivek Kumar Khangar vs Chief Secretary on 14 July, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.1124/2013 Order Reserved on: 03.07.2014 Order pronounced on 14.07.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Shri Vivek Kumar Khangar S/o Shri Laxami Narayanji Khangar R/o New Khandar Road, Neelgar Mohalla City Sawai Madhupur (Raj.)-322 021. Applicant (By Advocate: Shri Joginder Sukhija) Versus Chief Secretary Govt. of NCT of Delhi Players Building ITO, New Delhi 110 001. Delhi Subordinate Services Selection Board Government of NCT Delhi FC-18, Institutional Area, Karkardooma Delhi 110 302. Respondents (By Advocate: Mrs. Alka Sharma) O R D E R By V. Ajay Kumar, Member (J):
The seminal facts, necessary for the purpose of disposal of this OA, are as follows:
The applicant is possessing the Senior Secondary School Examination Certificate and Diploma in General Nursing and Midwifery and has also registered his name as Nurse with the Rajasthan Nursing Council as required under Section 13 of the Rajasthan Nursing Council Act, 1964. The applicant belongs to `KHANGAR Community, which is categorized as Schedule Caste, and a Certificate to this effect was also issued by the Thasildar, Sawai Madhopur, Rajasthan on 28.11.1995.
2. In pursuance of the Annexure A2, Advertisement No.004/2009 of the 2nd Respondent-Delhi Subordinate Services Selection Board (DSSSB, in short) for selection to the post of Staff Nurse (Post Code No.77/2009), the applicant has submitted his application. The 2nd Respondent issued an admit card for the examination wherein it was clearly mentioned that the applicant belongs to Schedule Caste category (Annexure A7), and accordingly, the applicant participated in the selection process. Vide Annexure A8, on 27.01.2011, the respondents declared the final merit list and the name of the applicant was shown at Sl. No.1238 and that he secured 90 marks out of 200. It is also stated that last selected candidate from the SC category secured 71 marks out of 200 marks. However, the applicant was not selected, since his name was shown under General category. In reply to his RTI query, the respondents informed that the advantage of the reservation was given to those candidates who filed the caste certificates issued by the Government of National Capital Territory of Delhi, and the candidates whose caste certificates were issued by the authorities outside the Government of NCTD, like the applicant, are treated as General category, as per the Judgement dated 4.08.2009 of the Honble Apex Court in Subhash Chandra & Anr. V. DSSSB and Others, (2009) 15 SCC 458. Though the last selected candidate under General category also secured 90 marks out of 200, but as per the age and other criteria certain others were placed above the applicant in the merit list and since no vacancy is available for the applicant under General category, he was not selected for the post of Staff Nurse.
3. The applicant filed OA No.1527/2011 questioning the action of the respondents in not selecting him for the post of Staff Nurse, under SC category, though he secured more marks than the last selected SC category by illegally treating him as General candidate. The said OA was disposed of along with OA No.1528/2011 by an order dated 13.01.2012. This Tribunal vide the said Order, noting that the issue of treating the SC candidates who were issued the SC certificates by the authorities outside NCTD as General candidates is pending before a Larger Bench of the Honble Apex Court in State of Uttaranchal v. Sandeep Kumar Singh, (Civil Appeal No.4494/2006) permitted the applicants request not to press the said issue but to reserve his right to agitate the same in future. Further, in the said case, directed the respondents to examine the question of unfilled vacancies under General category and to consider the case of the applicant, as per his merit, by treating him as General category candidate, as he secured 90 marks, i.e., also the marks secured by the last selected candidate under General category.
4. The learned counsel for the applicant submits that in view of the Judgement of the Honble High Court of Delhi in Deepak Kumar & Others v. District and Session Judge, Delhi and Others, WP(C) No.5390/2010, decided on 12.09.2012, and the various Judgements of this Tribunal passed in terms of the said Judgement holding that persons who were issued with SC certificates by authorities outside NCTD are entitled to be treated as SC candidates even in Union Territories, the applicant is also entitled for selection to the post of Staff Nurse under SC category since he secured more marks than the last selected candidate.
5. Per contra, the learned counsel for the respondents though not disputed the applicability of the Honble High Court of Delhis Judgement in Deepak Kumar s case (supra) and the Judgements of this Tribunal, passed in terms of Deepak Kumars case (supra) to the applicant, but opposed the OA on the following grounds:
the applicant has filed OA No.1977/2012 in respect of not considering his case as a General category candidate but suppressed the said fact and filed the present OA.
The applicant switching his stands from time to time, claiming his right as an SC candidate and also as General candidate as per his convenience and, therefore, the same cannot be permitted.
Since the issue of admissibility of the benefit of reservation to the migratory SC candidates in the Union Territories is pending before the Larger Bench of the Honble Apex Court in State of Uttaranchal v. Sandeep Kumar Singh (supra), no relief can be granted to the applicant.
6. Heard Shri Joginder Sukhija, learned counsel for the applicant and Mrs. Alka Sharma, learned counsel for the respondents, and have been perused the pleadings on record.
7. The learned counsel for the applicant submits that the OA No.1977/2012 pertains to the issue of non-consideration of his case under General category, and whereas the subject matter of the present OA pertains to the issue of consideration of his case under SC category, and hence, with a bonafide impression that the subject matter of both the OAs are different, he has not stated the said fact in the present OA. He further submits that this Honble Tribunal inspite of the reference pending before the Larger Bench of the Apex Court, allowed various identical OAs and hence, he is also entitled for the same benefit. He further submits that since this Tribunal while disposing of his earlier OA 1527/2011 granted liberty to agitate the issue of admissibility of reservation to him, and hence, the present OA is maintainable.
8. The Honble Apex Court in Ashok Sadarangani and Anr. V. Union of India, (2012) 11 SCC 321, held as follows:
19. As was indicated in Harbajan Singhs case (supra), the pendency of a reference to a Larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singhs case (supra) need not, therefore, detain us. Till such time, as the decisions cited at the Bar are not modified or altered, in any way, they continue to hold the field.
9. In Deepak Kumar and Others v. District & Sessions Judge, Delhi and Others, W.P.(C) No.5390/2010, decided on 12.09.2012, the Honble High Court of Delhi, after considering the Judgement of Subhash Chandra (supra) and also of S.Pushpa and Others v. Shivachanmugavelu and Others, (2005) 3 SCC 1, held that the Judgement of S. Pushpa (supra) is applicable, but not the Judgement in Subhash Chandra (supra) in respect of migrated SC candidates in Union Territories.
10. The relevant para of the Deepak Kumar (supra) reads as follows:
Conclusions
66. This court summarizes its conclusions, as follows:
(1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e in relation to the state of their origin. These judgments also took note of the Presidential Notifications, which had enjoined such citizens to be residents in relation to the state which provided for such reservations.
(2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state, apply equally in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned Union Territory, are entitled to such benefits. This is reinforced by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such notification, and include other castes, or tribes, in view of Articles 341 (2), Article 342 (2) which is also reinforced by Article 16 (3). States cannot legislate on this aspect; nor can the executive Union or state, add to or alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to states, and residents of states who migrate to Union Territories would result in invidious discrimination and over-classification thus denying equal access to reservation benefits, to those who are residents of Union Territories, and whose castes or tribes are included in the Presidential Order in respect of such Union Territories. The Pushpa interpretation has led to peculiar consequences, whereby:
(i) The resident of a state, belonging to a scheduled caste, notified in that state, cannot claim reservation benefit, if he takes up residence in another state, whether or not his caste is included in the latter States list of scheduled castes;
(ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory;
(iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State.
(iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes, cannot be treated as such members in such newly formed states;
(v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not included in the list of such castes, for the Union Territory.
(3) The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect vis-`-vis Union Territories, is binding; it was rendered by a Bench of three judges.
(4) The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not appreciate the earlier larger Bench judgments in the correct perspective. Yet, Subhash Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench of two judges. This approach of Subhash Chandra has been doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case.
(5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever may be the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of three judges; the said decision did notice the earlier judgments in Marri and Action Committee. Article 141 and the discipline enjoined by the doctrine of precedent compels this Court to follow the Pushpa ruling.
(6) In matters pertaining to incidence of employment, such as seniority, promotion and accelerated seniority or promotional benefits, flowing out of Articles 16 (4A) and (4B) of the Constitution, there may be need for clarity, whichever rule is ultimately preferred i.e the Pushpa view or the Marri and Action Committee view. In such event, it may be necessary for the guidance of decision makers and High Courts, to spell out whether the correct view should be applied prospectively. Furthermore, it may be also necessary to clarify what would be meant by prospective application of the correct rule, and whether such employment benefits flowing after recruitment, would be altered if the Marri view is to be preferred.
67. In view of the above discussion WP No. 5390/2010; WP No. 3223/2011 3278/2011, 7717/2010 are allowed. The third, fourth and fifth Petitioners in W.P. 1205/2010 are entitled to succeed; the said petition is allowed to that extent. The said petition is dismissed, as far as the first and second writ petitioners are concerned. For the reasons mentioned earlier, W.P.(C) 816/2011, 1713/2011 7878/2010 and 8368/2010 are dismissed. W.P.(C) No. 1513/2011 is allowed, and the impugned order of the Central Administrative Tribunal is set aside. Consequently, in WP No. 5390/2010; WP No. 3223/2011 3278/2011, 7717/2010 as well as WP 1205/2010 (as far as it concerns the third, fourth and fifth Petitioners) the District Judge, and the Govt. of NCT are hereby directed to ensure that the petitioners cases for appointment to LDC are processed, and they are treated as scheduled caste or schedule tribe candidates, entitled to be considered as such, and appropriate orders made in that regard. This exercise shall be concluded within six weeks from today. (Emphasis added)
11. Different Coordinate Benches of this Tribunal in OA Nos.2878/2012 dated 21.01.2013, OA No.697/2013, decided on 07.02.2014 OA No.904/2014, decided on 25.04.2014 placing reliance on the Judgement of Deepak Kumar (supra), allowed the said OAs, and that the applicant herein also similarly situated like the applicants therein.
12. In the circumstances, we accept the submission made by the applicant in respect of the objections raised by the respondents.
13. It is not in dispute that the applicant secured 90 marks out of 200 and that the last selected candidate under SC category secured only 71 marks. But for the action of the respondents in not considering him under SC category, he would have been selected for the post of Staff Nurse. In view of the decision in Deepak Kumar (supra), the applicant is entitled to be considered under SC category.
14. For the aforesaid reasons, and in view of the aforesaid settled position of law, the OA is allowed, and the respondents are directed to consider the applicants candidature as an SC candidate for appointment to the post of Staff Nurse, under SC category, as per his merit, within eight weeks from the date of receipt of a copy of this order. On such appointment, the applicant is entitled for all the consequential benefits, except back wages, in view of the facts and circumstances of the case. There shall be no order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/