Central Administrative Tribunal - Delhi
Shri Vikas Kumar vs Govt. Of N.C.T. Of Delhi on 23 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 73/2010 New Delhi this the 23rd day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri Vikas Kumar, S/o Shri Ram Niwas, R/o K-2/604, Sangam Vihar, New Delhi. Applicant (By Advocate Shri Rama Shankar ) VERSUS Govt. of N.C.T. of Delhi, Delhi Subordinate Service Selection Board, FC-18, Institutional Area, Karkardooma, Delhi, Through its Chairman. Respondent ( By Advocate Shri Vijay Pandita) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
The Applicant had earlier approached the Delhi High Court in Civil Writ Petition number 40/2010, which was transferred to this Tribunal by order dated 29.07.2010, on the Tribunal acquiring jurisdiction over the service matters of the Municipal Corporation of Delhi (MCD), in which he had applied for the post of teacher. The petition has been re-numbered as TA number 73 of 2010.
2. The grievance of the Applicant is that he was found ineligible for selection to the post of teacher in the MCD, in the reserved category, the Applicant being a member of the SC category, on the ground that he was a migrant SC, as defined by the Honourable Supreme Court in Subhash Chandra and another V. Delhi Subordinate Service Selection Board and others, (2009) 15 SCC 458. The claim of the Applicant is that he is not covered by the judgement in the above cited case, not being a migrant inasmuch as he belongs to Delhi, being born and brought up here and his caste is recognised as SC in Delhi. The Applicant has placed on record his certificates of education beginning from the Municipal Corporation Primary School (V class) to the Delhi University (Bachelor of Arts), which shows that he had had his entire education in Delhi. The certificate from the Municipal Corporation school also gives his address as Neb Sarai, New Delhi. The Applicants father migrated from Meerut in Uttar Pradesh to Delhi and started serving here. The Applicant obtained the caste certificate from the office of the Sub- Divisional Magistrate, South Delhi to the effect that he belonged to Chamar caste, which was recognised as Scheduled Caste in Delhi by various notifications mentioned therein. It is further mentioned in the certificate that the certificate was being given on the basis of the certificate issued to the father of the Applicant, issued by the Tehsildar Badot, district Meerut, Uttar Pradesh that he (father of the Applicant) belonged to Chamar caste.
3. The Applicant had appeared in the examination for selection of Teacher (Primary) in the MCD, which was conducted on 15.02.2009. The result was declared on 06.10.2009, in which the name of the Applicant did not figure in the list of successful candidates. On making an application under the Right to Information Act, 2005 he came to know that he had secured 98 marks in the test and candidates belonging to SC category who were selected in the above test had secured lesser marks than him. This fact is not in dispute. When he sought the information about the reason for his not being selected under the RTI Act, 2005, he was informed that he was not eligible on the cut-off date. The reason given for overlooking him for selection has, however, been mentioned in the counter affidavit of the Respondents is that he was a migrant category of SC as defined by the Honourable Supreme Court in Subhash Chandra (supra).
4. We are unable to agree with the aforesaid reasoning of the Respondents. The ratio of the Honourable Supreme Court in Subhash Chandra (supra) case is that a person categorised as belonging to reserved category will not become eligible for the benefit of reservation even though he may be in the category of reserved persons in the State to which he belongs but not in that category in the State to which he has migrated. The Respondents seem to have wrongly understood that to mean that a person who is a member of SC in one State cannot be treated as such in another State and it is constitutionally impermissible, as stated in paragraph 9 of the preliminary submissions. In the instant case two facts stand out, that is, (i) the Applicant is not a migrant being the domicile of Delhi and (ii) he belongs to Chamar caste, which has been certified by the Sub Divisional Magistrate in the caste certificate given to the Applicant to belong to SC category in Delhi. Moreover, we have gone through the list of the castes recorded as SC in Delhi, which has been reproduced at page 170 of the Swamys Compilation on Reservations and Concessions, eighth addition, 2005. Chamar caste has been recorded as belonging to SC category at serial number 10 in the list of Scheduled Castes in Union Territory of Delhi.
5. A learned coordinate Bench of this Tribunal held in OA number 2157/2010, Rajeev Kumar V. Union of India and others, in which identical issue was involved, that the judgement in Subhash Chandra (supra) case would not apply to the facts in the aforesaid OA. The learned Bench held that the benefits of reservation could not be denied to the applicant therein because his parents hail from UP, particularly when he was born and brought up in Delhi.
6. The OA is allowed on the basis of above discussion. The Respondents are directed to consider the Applicant for appointment to the post of Teacher (Primary) in MCD in the examination held on 15.02.2009, after verifying his marks and his claim that some of the other persons selected on the basis of belonging to SC category had lesser marks than him in that category in that examination and completing other formalities, if prescribed. The Applicant would get the benefit of appointment from the date the person below him in the merit list was appointed. It would, however, be on notional basis. His appointment, however, would count for seniority and calculation of increments from that date. These directions would be complied with within one month from the date of receipt of a certified copy of this order. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk