Delhi High Court
Iqbal Khatri And Ors vs Employees State Insurance Corporation ... on 13 September, 2011
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th September, 2011.
WRIT PETITION (CIVIL) NO.6526/2011
IQBAL KHATRI AND ORS ..... Petitioner
Through Mr. Sanjeev Sachdeva, Sr.
Advocate with Mr. Ankur Garg
and Mr. Sougat Ganguly,
Advocates.
versus
EMPLOYEES STATE INSURANCE CORPORATION AND ANR
..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
WRIT PETITION (CIVIL) NO. 6627/2011
DHEERAJ TANWAR ..... Petitioner
Through Mr. Manish Jain, Mr. Ankur
Garg and Mr. Sougat Ganguly,
Advocates.
versus
ESIC AND ANR ..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
WRIT PETITION (CIVIL) NO.6628/2011
SAT PAL GAHLOT ..... Petitioner
Through Mr. Manish Jain, Mr. Ankur
Garg and Mr. Sougat Ganguly,
Advocates.
W.P.(C) Nos.6526 & 6627-30/2011 Page 1 of 13
versus
ESIC AND ANR ..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
WRIT PETITION (CIVIL) NO. 6629/2011
BIJENDER SINGH ..... Petitioner
Through Mr. Manish Jain, Mr. Ankur
Garg and Mr. Sougat Ganguly,
Advocates.
versus
ESIC AND ANR ..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
WRIT PETITION (CIVIL) NO.6630/2011
SAMAR SINGH ..... Petitioner
Through Mr. Manish Jain, Mr. Ankur
Garg and Mr. Sougat Ganguly,
Advocates.
versus
ESIC AND ANR ..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported in the Digest ? Yes.
W.P.(C) Nos.6526 & 6627-30/2011 Page 2 of 13
DIPAK MISRA, CJ.:
Invoking the jurisdiction of this Court under Articles 226 and
227 of the Constitution of India, the petitioners have challenged the
order dated 30th August, 2011 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi (for short, „the tribunal‟) in four
original applications preferred under Section 19 of the Administrative
Tribunals Act, 1985. As the tribunal has disposed of the original
applications by a common order, we propose to dispose of these writ
petitions by a singular order.
2. The respondent, Employees State Insurance Corporation (ESIC),
published an advertisement in May 2004 for filling up the posts of
Nursing Orderly. It was mentioned in the said advertisement that the
number of posts are 75. The bifurcation of posts was 38 (unreserved),
11 (Scheduled Castes) and 26 (Other Backward Classes). The
petitioners applied for the said post in the OBC category as they belong
to the Jat community which falls in the OBC category as per the list
under the Government of National Capital Territory of Delhi. They
were selected in the said category and accordingly appointed.
3. ESIC, by order dated 30th May, 2011, terminated the services of
the petitioners with immediate effect on the ground that the petitioners
could not have been considered in the OBC category as the Jat
W.P.(C) Nos.6526 & 6627-30/2011 Page 3 of 13
community does not find place in the OBC list prepared by the Central
Government.
4. Being aggrieved by the aforesaid order of termination, the
petitioners knocked at the door of the tribunal and the tribunal, relying
on its decision in Shyam & Others Vs. Employees State Insurance
Corporation Ltd. & Others (TA-38/2010) decided on 1st December,
2010 came to hold that as the petitioners were not covered in the
category of OBC list prepared by the Union of India, their cases could
not have been considered in the said category by the ESIC and there
being a fundamental flaw in the appointment, the order of termination
could not be interfered with. Expressing such a view, the tribunal
dismissed the original applications.
5. We have heard Mr. Sanjeev Sachdeva, learned senior counsel
appearing for the petitioner in W.P.(C) No.6526/2011, and Mr. Manish
Jain, learned counsel for the petitioner in other writ petitions. The
learned counsel for the petitioners have raised the following
contentions:-
(i) The tribunal has failed to take note of the language employed in
the advertisement inasmuch as the advertisement does not specify from
which category certificate i.e., State list or Central list, should be filed,
but it only mentions „OBC category‟ and, therefore, the order
W.P.(C) Nos.6526 & 6627-30/2011 Page 4 of 13
impugned becomes unsustainable in law.
(ii) There is no cavil over the factum that the petitioners belong to
Jat community in Delhi and when they have been extended/conferred
the benefit of appointment without any kind of stipulation, the
employer could not have terminated their services as there had been no
misrepresentation by them.
(iii) The decision in Satish Kumar and Another Vs. Union of India
and Others (LPA No.529/2004) decided on 3rd August, 2007 is
distinguishable inasmuch as in the said case, the advertisement
stipulated what was required from a candidate being the production of
the certificate pertaining to OBC category and when there is no such
postulate in the advertisement, the order of termination is untenable
and the stamp of approval given to it by the tribunal is vulnerable.
6. Ms. Rekha Palli, learned counsel appearing for the ESIC,
combating the aforesaid submissions, contended that there is a clear cut
distinction between the list prepared by the Central Government and
the State Government and unless an applicant falls in the category
mentioned in the Central List, he cannot avail the benefit of OBC
category as the ESIC has come into existence by virtue of the
Employees State Insurance Corporation Act, 1948 and it is a central
government corporation, and, therefore, the central list has to prevail.
W.P.(C) Nos.6526 & 6627-30/2011 Page 5 of 13
The learned counsel would further submit that there is a laudable
purpose behind the same inasmuch as a particular community may not
be available in number of States and in that contingency, reservation
would stand restricted to one or two cases. It is contended by her that
while the advertisement nowhere stipulates anything in this regard
except mentioning "OBC category" and number of posts in the OBC
category, when the advertisement has been issued by a central
corporation, it is clearly luculent that a candidate belonging to the OBC
category which finds place in the central list has the eligibility to apply
in that category and no objection can be taken in that regard by raising
a mercurial plea that which category can apply was not mentioned in
the advertisement. Elaborating the same, it is urged by her that when
there are decisions in the field, the Central Government has its own
significance and sanctity and in no circumstances can an advertisement
override the same. Ms. Palli would further submit that an attempt to
distinguish the decision in Satish Kumar (supra) is an exercise in
futility because in the said decision, though it was mentioned that there
was reference to the advertisement, yet that will not be sufficient to
draw a distinction as the ratio applies to the case at hand on all fours.
7. To appreciate the rivalised submissions raised at the Bar, we
have carefully perused the order passed by the tribunal and bestowed
W.P.(C) Nos.6526 & 6627-30/2011 Page 6 of 13
our anxious consideration on the submissions canvassed by the learned
counsel for the parties. The centipodal issue that emanates for
consideration is whether a candidate belonging to OBC category could
have applied in the same category for a post under the Corporation
which is a central corporation created by an enactment of the
Parliament. It is not disputed before us that the Jat community does not
find mention in the central list. In the case of Satish Kumar (supra), a
Division Bench of this Court referred to the factual matrix and the
conditions incorporated in the advertisement and expressed the view as
follows:-
"7. The Central Government has notified communities
that are OBCs and entitled to employment on posts
reserved for OBCs. Jat community is not included in
the said list notified by the Central Government. AAI,
the respondent is a public sector enterprise belonging to
the Central Government and is following the Central
Government list with regard to appointment to posts
reserved for OBCs. Being a Central Government
enterprise, it is bound by the instructions issued by the
Central Government in this regard. The Central
Government vide its Office Memoramdum dated 13 th
January, 1995 has stipulated that instructions issued
thereunder would govern public sector enterprise,
financial institutions and public sector banks, that is, all
public sector enterprises. By another Office
Memoramdum dated 22nd October, 1993, the Central
Government has specified that OBC certificate for
appointment to reserved posts should be in terms of the
prescribed proforma, which the appellants must
produce to be eligible for appointment to the reserved
post. There is no specific challenge to the said
W.P.(C) Nos.6526 & 6627-30/2011 Page 7 of 13
notifications in the writ petition. We are not examining
the vires and validity of the said notifications.
8. As Jat community is not notified in the Central list,
therefore, the appellants cannot claim any right to
appointment to posts reserved for OBCs in AAI, a
Central Government enterprise, which are required to
filled up from persons belonging to the communities
mentioned in the Central OBC list.
9. x x x x x x
10. As far as appointment of OBCs is concerned, the
Central Government has its own list and as per
notifications issued by the Central Government,
appointments in AAI can only be made from candidates
belonging to the communities mentioned in the said
list. In several decisions, the Supreme Court has
clarified that Schedule Castes and Schedule Tribes
belonging to a particular area of the country must be
given protection so long as and to the extent they are
entitled to, in order to become equal with others, but
Scheduled Castes/Scheduled Tribes who migrate from
the State of origin to another State in search of
employment or for educational purposes or the like,
cannot be treated as persons belonging to Scheduled
Castes/Scheduled Tribes of the State to which they
migrate. Relying on and referring to the decision in
Marri Chandra Shekhar Rao versus Dean, Seth G.S.
Medical College [(1990) 3 SCC 130], it was held by
the Hon'ble Supreme Court in the case of Action
Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of
Maharashtra versus Union of India, [(1994) 5 SCC
244], that-
"16. We may add that considerations for
specifying a particular caste or tribe or class for
inclusion in the list of Scheduled Castes/Schedule
Tribes or backward classes in a given State would
depend on the nature and extent of disadvantages
and social hardships suffered by that caste, tribe
or class in that State which may be totally non est
in another State to which persons belonging
thereto may migrate. Coincidentally it may be
W.P.(C) Nos.6526 & 6627-30/2011 Page 8 of 13
that a caste or tribe bearing the same
nomenclature is specified in two States but the
considerations on the basis of which they have
been specified may be totally different. So also
the degree of disadvantages of various elements
which constitute the input for specification may
also be totally different. Therefore, merely
because a given caste is specified in State A as a
Scheduled Caste does not necessarily mean that if
there be another caste bearing the same
nomenclature in another State the person
belonging to the former would be entitled to the
rights, privileges and benefit s admissible to a
member of the Scheduled Caste of the latter State
"for the purposes of this Constitution". This is an
aspect which has to be kept in mind and which
was very much in the minds of the Constitution-
makers as is evident from the choice of language
of Articles 341 and 342 of the Constitution. That
is why in answer to a question by Mr Jaipal
Singh, Dr Ambedkar answered as under :
"He asked me another question and it was this.
Supposing a member of a Scheduled Tribe living
in a tribal area migrates to another part of the
territory of India, which is outside both the
scheduled area and the tribal area, will he be able
to claim from the local Government, within
whose jurisdiction he may be residing the same
privileges which he would be entitled to when he
is residing within the scheduled area or within the
tribal area? It is a difficult question for me to
answer. If that matter is agitated in quarters where
a decision on a matter like this would lie, we
would certainly be able to give some answer to
the question in the form of some clause in this
Constitution. But so far as the present
Constitution stands, a member of a Scheduled
Tribe going outside the scheduled area or tribal
area would certainly not be entitled to carry with
him the privileges that he is entitled to when he is
residing in a scheduled area or a tribal area. So far
as I can see, it will be practicably impossible to
W.P.(C) Nos.6526 & 6627-30/2011 Page 9 of 13
enforce the provisions that apply to tribal areas or
scheduled areas, in areas other than those which
are covered by them..."
Relying on this statement the Constitution Bench
ruled that the petitioner was not entitled to
admission to the medical college on the basis that
he belonged to a Scheduled Tribe in the State of
his origin."
8. Mr. Sachdeva, learned senior counsel, in his endeavour to
distinguish the said decision, has propounded that in Satish Kumar
(supra) there was a stipulation in the advertisement pertaining to the
category mentioned in the select list. In our considered opinion, the
same cannot be regarded as a distinguishing factor. If we appreciate the
submission of Mr. Sachdeva and Mr. Jain, it would mean that because
of the non-stipulation, the petitioners had applied and, therefore, they
should not be allowed to suffer. The aforesaid stance may not be a
ground to hold against the petitioners pertaining to misrepresentation
or suppression of any fact, but that would not enure to their benefit as it
is not a case of misrepresentation or incorrect representation. It relates
to getting benefits of a particular category. Either one belongs to the
said category or does not belong. If he does not belong, he has no right.
The selection becomes dehors the law and, therefore, the order of
appointment has been lanceted by the ESIC.
9. At this juncture, we are obliged to address another contention of
W.P.(C) Nos.6526 & 6627-30/2011 Page 10 of 13
Mr. Sachdeva and Mr. Jain that the petitioners were appointed in 2006
and are continuing, but because of the decision rendered by the tribunal
in the case of Shyam and Others (supra), they have been visited with
the order of termination. It is argued by them that at the stage when the
advertisement was published, there was no distinction between the
Central list and State list and, therefore, adverse consequences could
not have visited them. It is urged by them that the clarification only
came into existence in 2008 after the amendment. The learned counsel
has referred to the office memorandum dated 4th June, 2008. It reads as
follows:-
"No.36028/1/2008-Estt.(Res)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
New Delhi, dated 4th June, 2008
OFFICE MEMORANDUM
Subject:- Clarification regarding reservation under
OBC category
The under undersigned is directed to refer
to the Ministry of Labour & Employment‟s
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."
10. The said memorandum is a clarification of the earlier circular.
The tribunal in the case of Shyam and Others (supra) has referred to
W.P.(C) Nos.6526 & 6627-30/2011 Page 11 of 13
the office memorandum of the DOP&T dated 13th August, 1990 as
modified on 8th September, 1993 and 13th January, 1995. It states as
follows:-
"(d) The OBCs for the purpose of the
aforesaid reservation would compromise, 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 issue separately by the Ministry of Welfare.
(See Appendix-2)."
11. Thus, there remains no trace of doubt that it was precisely a
clarificatory circular relating to the applicability of the Central list in
respect of an institution under the Central Government and as the
petitioners did not belong to the OBC category under the Central list,
they could not have been appointed in the ESIC, a central institution.
12. The last limb of submission of the learned counsel for the
petitioners is that the petitioners had worked for more than five years
and that their services could not have been terminated and thus, they
should have been allowed to continue. In oppugnation to the same, Ms.
Palli has commended us to the decision in the case of Kishorilal
Charmakar and Another Vs. District Education Officer and Another
(1998) 9 SCC 395 wherein it has been held as follows:-
"4. From the material on record, it is clear
that the appointments which were given to the
W.P.(C) Nos.6526 & 6627-30/2011 Page 12 of 13
appellants were under a bona fide mistake by
considering them as Scheduled Tribe candidates,
though it is clear that this mistake was not
occasioned on account of any mistake by the
appellants. Three out of four appellants belong to
the Scheduled Caster category and had given their
case certificate while the fourth appellant was in
the open category and had not submitted any
certificate. The mistake appears to be on the part
of the respondents. On discovery of the mistake,
they had immediately corrected the situation and
the Tribunal has upheld their right to correct this
mistake."
13. In view of the aforesaid enunciation of law, we are disposed of
to think that the order of the tribunal really cannot be found fault with.
The petitioners could not have been in a position to be appointed had
they not been treated as OBC category candidates. Once a candidate,
who does not belong to a particular category, gets an appointment, he
really encroaches in the field of reservation and destroys the concept of
reservation which is impermissible in law.
14. In view of the aforesaid analysis, we do not perceive any merit
in these writ petitions and the same accordingly stand dismissed
without any order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
SEPTEMBER 13, 2011 NA W.P.(C) Nos.6526 & 6627-30/2011 Page 13 of 13