Central Administrative Tribunal - Delhi
Shyam vs Employees State Insurance Corporation ... on 1 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 38/2010 New Delhi this the 1st day of December, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) 1. Shyam S/o Shri Raj Kumar, VPO Tajpura Kalan, Delhi 110036 2. Sumit Dagar S/o Shri Surender Dagar, House No. 412, Village Samas Pur Khalsa PO Ujwa New Delhi 110073 3. Yogesh Dagar S/o Shri Mahendra Singh House No. 213 A, Village Samas Pur Khalsa PO Ujwa New Delhi 110073 4. Sandeep S/o Shri Rajbir Singh, VPO Karala Kanjhawla Applicants (Through Mr. A.B. Kaushik, Advocate) VERSUS 1. Employees State Insurance Corporation Ltd., Through Director General, Panchdeep Bhawan, CIG Marg, New Delhi 2. The Regional Director Regional Office, ESI Corporation 3rd & 4th Floor, DDA Office Complex, Rajendra Place, New Delhi 110008 3. The Deputy Director (Administration), Office of the Directorate (Medical) Delhi, ESI Scheme: Hospital Complex Basaidarapur, Ring Road, New Delhi 4. The Department of Personnel & Training, Government of India, Ministry of Labour and Employment, Shram Shakti Bhawan, 2 & 4, Rafi Marg, New Delhi-110001 5. Government of NCT of Delhi, Through the Chief Secretary, Delhi Secretariat, Players Building, IP Estate, New Delhi Respondents (Through Mr. Padma Kumar S. for Ms. Jyoti Singh, Advocate) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
The short question to be answered in the instant TA is whether a person belonging to the OBC category in the list of the Government of NCT of Delhi, but not in the Central list of OBC, be entitled for employment under an organisation of the Central Government, in which the posts are being filled up specifically region wise, including Delhi region, and the posting would be permanently confined to the specific region for which the selection has been made.
2. The Applicants belong to OBC category. On 07.04.2007 the first Respondent, Employees State Insurance Corporation Ltd. (ESIC), issued an advertisement for recruitment of Lower Division Clerks (LDCs), inviting applications from the eligible persons to fill up 600 vacancies of LDC in 12 regions (including Delhi) of the ESIC. For Delhi region the number of vacancies notified was 227, out of which 74 were earmarked for OBC candidates. Note C in the advertisement reads thus:
(C) The recruitment would be on Regional/State-wise basis. Candidates can apply for vacancies in one State only and have to appear for the examination from a center of that particular State/UT and shall be liable to be posted anywhere in the State/Region. Further, under the heading General Conditions, inter alia, the following two conditions were mentioned:
1. A candidate should submit one application only. Submission of more than one application may lead to rejection of all the applications submitted.
2. The recruitment is against vacancies on a local/regional basis. Hence anyone selected/appointed on local/regional basis shall be liable to be posted anywhere in the State/Region. The Applicants also applied for selection to the post of LDC as OBC candidates on the basis of the OBC certificate issued to them by the Government of NCT of Delhi, which was attached to the application form. The Applicants succeeded in the selection process and were issued offers of appointment in January 2008 for the said post as OBC candidates. The Applicants accepted the offer of appointment and reported for joining duty. However, they were not allowed to join duty on the ground that they were not entitled to be employed as OBC candidates because the 'Jat' caste to which they belonged did not fall under the Central list of OBCs issued by the Government of India. A reference was also made to the Department of Personnel and Training (DOP&T) by the first Respondent. The Applicants made representations to the Director General of the first Respondent for allowing them to join duty. However, the candidature of the Applicants for the post of LDC was cancelled by communication dated 03.12.2008 (Annex P-7). The above said communication has been reproduced below:
DIRECTORATE (MEDICAL) DELHI ESI SCHEME: HOSPITAL COMPLEX BASAIDARAPUR : RING ROAD: NEW DELHI No.DMA-22/15/LDC/07 E-I (M) Dated 27.11.2008 3/12 To Sh.Sumit Dagar H.No. 412, Vill. Samas Pur Khalsa PO Ujwa New Delhi-110073 Sub: Cancellation of candidature to the post of LDC.
Sir, Please refer to this Office Offer Letter of even No. dated 25/01/08 on the subject cited above.
In this context, it is inform that candidates belonging only to such castes/ communities are entitled to get the benefit of reservation in services under the GOI which are included in the OBC list prepared by the Ministry of Social Justice and Empowerment, GOI.
As such, JAT community of Delhi OBC is not included in the Central List of OBC prepared by Ministry of Social Justice and Empowerment, Govt. of India.
In view of above, your candidature has been cancelled and correspondence in future, in this regard shall not be entertained.
Yours faithfully, Sd/-
(R.S. CHAUHAN) DY. DIRECTOR (ADMN.) The Applicants are seeking the following reliefs:
(b) A writ, order or direction in the nature of certiorari quashing the action of Respondent No. 1 Corporation in withdrawing the offer of appointment issued to the Petitioners for the post of LDC in Delhi Region under the OBC, being illegal, arbitrary, malafide, discriminatory and unjust and in violation of the Rules, Regulations, Policy and principles of equity, natural justice, good conscience and promissory estopple and consequently the letters dated 6.8.2008 and 3.12.2008 (Annexure P-7);
) A writ, order or direction in the nature of a writ of mandamus commanding Respondent No. 1 to forthwith give appointment as LDC to the Petitioners in Delhi Region and allow them to join duty, in terms of the letters of appointment issued in January 2008, with all consequential benefits.
3. The arguments on behalf of the Applicants are that the selection is being made for the Delhi region and the candidates would be required to work only within this region and, therefore, the OBC candidates belonging to Delhi and coming under the OBC list of the Government of NCT of Delhi should be considered for appointment. It was further contended that the first Respondent had given the benefit of reservation to the OBC candidates in the list of the Government of NCT of Delhi to the post of LDC in the past. Appointments on other posts such as Inspectors, Insurance Medical Officer and Nursing Orderly et cetera had also been given to the similarly situated candidates. It was contended by the learned counsel for the Applicants that Delhi Police, which was under the control of the Union Government, was also giving the benefit of reservation to the OBC candidates in the list of Government of NCT of Delhi. Such instances have been quoted in Annexes A-9 to A-12 in the rejoinder affidavit of the Applicants. Reliance has been placed on the judgement in OA number 1414 of 2006, Rakesh Rana V. Union of India and others, decided on 22.09.2004, in which directions were given that the candidates belonging to the OBC category in the list of Government of NCT of Delhi should also be considered as OBC for the purpose of recruitment to Delhi Police. It has further been contended that the Ministry of Labour and Employment, which controlled the first Respondent-ESIC had also advised by its letter dated 07.05.2008, placed at Annex P-5, inter alia, that:
2. The ESI Corporation released the advertisement state-wise and the LDC being a Gr. C post. The revised quantum of reservation was as per DOPTs O.M. dated 5.7.2005 which stipulated revised quantum of reservation for SCs, STs, & OBCs in cadre of Direct Recruitment to Gr. C & Gr. D posts normally attracting candidates from a locality/ region, keeping in view 2001 census. The revised quantum is generally fixed in proportion to the population of the SCs, STs & OBCs in respective States?UTs.
3. The `JAT community candidates have been declared successful in the OBC category against the posts of Delhi Region and Directorate (Medical) Delhi. Though the `JAT community has been declared as `OBC by the State of Delhi, this community is not included in the common list (Central Govt. List) of OBC, as up-dated by DOPT.
4. The Honble CAT in its O.A. No. 1414/2004, in the case of Sh. Rakesh Rana Vs UOI has ordered that the applicant (Sh. Rakesh Rana, belonging to `JAT community) should be treated as OBC candidate for recruitment to the post of Sub-Inspector (Executive) in Delhi Police. According to ESIC, there appears justified grounds for appointment of the candidates belonging to the `JAT community under OBC based on the identification by Delhi State as under:-
The vacancies in question pertains to Regional Office-Delhi/ Directorate (Medical) Delhi and the recruitment was region/state wise.
Seniority in LDC cadre is region/ state wise, LDC being a regional cadre.
The DOPT has made state population the basis for fixing the quantum of percentage for reservation under SCs, STs and OBCs in direct recruitment of Gr. C & Gr. D posts normally attracting candidates from a locality or region. The intention is to provide the benefit to the concerned castes in proportion of their population
4. The learned counsel for the Respondents, per contra, would contend that only the OBC candidates in the Central list can be considered for appointment to the posts under the Central Government or organisations under it. It was argued that in the offer of appointment issued to the Applicants it was clearly mentioned that the candidates claiming the OBC status should produce the caste certificate in the form prescribed by the DOP&Ts Office Memorandum number 36012/22/93-Estt (SCT) dated 08.09.1993 as modified by the Office Memorandum number 26033/3/2004-Estt (Res) dated 09.03.2004. The Applicants, on the other hand, submitted certificates of caste prescribed under notification number F. 28 (93)/91-92/SC-ST/P & S/4384 dated 20.10.1995 published in the Gazette of Delhi Extraordinary Part IV read with the DOP&T's Office Memorandum dated 08.09.1993, adverted to above. One of the conditions for the appointment also stipulated that the certificates had to be in the form as prescribed by the Office Memoranda of DOP&T dated 08.09.1993 as modified on 09.03.2004. The certificate issued by the competent authority of the NCT of Delhi does not make any mention of the Office Memorandum dated 09.03.2004 but instead it mentioned the notification dated 20.10.1995. It was contended that in the light of this the caste certificate could not have been accepted by the first Respondent. It was further clarified that the communication of the Ministry of Labour and Employment did not give any advice to the first Respondent, but it was only a communication addressed to the DOP&T for seeking clarification about the issue. The learned counsel for the Respondents would contend that it was misrepresentation on the part of the Applicants to state that the above said communication was in the form of advice tendered to the first Respondent. It was stated that the clarification given by the DOP&T on 04.06.2008 left no doubt that only those in the Central list of OBC could be considered for employment under the Government of India. The Office Memorandum dated 04.06.2008 of the DOP&T addressed to the Ministry of Labour and Employment is reproduced below:
No.36028/1/2008-Estt. (Res) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated the 4th June, 2008 OFFICE MEMORANDUM Subject:- Clarification regarding reservation under OBC category.
The undersigned is directed to refer to the Ministry of Labour & Employments O.M. No.A-12034/2/2008-SS.I dated 7th May 2008 on the above noted subject and to say that the candidates belonging only to such castes/ communities are entitled to get the benefit of reservation in services under the Government of India which are included in the OBC list prepared by the Ministry of Social Justice & Empowerment, Government of India.
Sd/-
(A.K. Cashyap) Under Secretary to the Government of India The Ministry of Labour & Employment The Applicants, it was contended, belonged to Jat community, which did not figure in the OBC list of the Central Government. The first Respondent was bound to give the benefit of reservation under the OBC category only to those who belong to the list of OBC of the Government of India. The Respondents have also filed an additional affidavit stating that action has been taken or is being taken against all those who had been selected under the OBC category, although in the OBC list of the Government of NCT of Delhi. It is stated that as regards the list of nursing orderlies furnished by the Applicant in the rejoinder affidavit, action for termination of service of those belonging to Jat community has already been initiated. As regards the two persons selected for the post of Insurance Medical Officer, mentioned in paragraph 6 of the rejoinder affidavit, it is stated that these two persons have not joined the post as yet and the caste verification is done only at the time of joining. Should any discrepancy be found in the caste status, it is stated that action as per law would be taken. As regards the selection of one Ms. Jyoti Singh, who was selected to the post of Pharmacist, although she belonged to the Jat community, it was stated that her services had already been terminated.
5. We have carefully considered the rival contentions and also perused the documents placed in the paper book.
6. Following the recommendations of the Mandal Commission the Government of India took a decision to provide reservation to the Socially and Educationally Backward Classes in the Civil posts/services. Thereafter the above decision was modified on the recommendation of an expert committee, which was appointed following the decision in Indira Sawhney and others V. Union of India and others, (2000) 1 SCC 168. Following the recommendations of the expert committee orders were issued on 13.08.1990 on various aspects of reservation for the OBCs. The Office Memorandum of the DOP&T dated 13.08.1990 as modified on 08.09.1993 and 13.01.1995, inter alia, mentioned that:
"(d) The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Governments' Lists. A list of such castes and communities is being issued separately by the Ministry of Welfare. (See Appendix-2)."
The list in the Appendix-2 does not contain the name of the Jat community for Delhi. For the purpose of employment in the State Governments, a separate list of OBCs was prepared by the State Governments also. The Government of NCT of Delhi included Jat community in the State list. This list is applicable for the employment under the State Government only. It would not apply for employment for any post under the Central Government. The facts in the case of Rakesh Rana are different. A conscious and deliberate decision was taken by the Lieutenant Governor of Delhi to include OBCs of both the lists of the Central Government and the Government of the NCT of Delhi for recruitment to Delhi Police, as mentioned in the judgement in Rakesh Rana case (surpa). However, no such decision has been taken in respect of the posts under the first Respondent. In our considered opinion it would not matter that the recruitment has been made for specific regions including Delhi region for grant of benefit of reservation to the candidates in the OBC list of the Government of NCT of Delhi. What is material is that the recruitment is being made for an agency of the Central Government. The Applicants have not been able to point out any instructions, which would make relaxation in the policy where the recruitment for the posts of Central Government is region specific. In the absence of such instructions, no relaxation can be made for the Applicants to give them the benefit of OBC category for employment for the posts under the first Respondent, which is an institution under the Central Government.
7. In the light of the above discussions, we find no merit in the TA. The TA is dismissed. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman /dkm/