Central Administrative Tribunal - Delhi
Deepak Tushir vs M/O Health And Family Welfare on 28 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-1923/2014
Order Reserved on: 14.01.2016
Order Pronounced on: 28.07.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Shri Deepak Tushir, age 37 years,
S/o Shri Mahender Singh
R/o House No. 144, Gautam Colony
Gali No.3, Narela,
Delhi-110 040. -Applicant
(By Advocate: Mrs. Pratima K. Gupta)
Versus
All India Institute of Medical Sciences
Through its Director
Ansari Nagar,
New Delhi. -Respondents
(By Advocate: Shri R.K. Gupta)
ORDER
Per Sudhir Kumar, Member (A):
The applicant is before this Tribunal because the respondent has declined to allow him to join his duties on the temporary post of Pharmacist Grade-II at the All India Institute of Medical Sciences (AIIMS, in short), New Delhi for which he was selected, and even the offer of temporary appointment was communicated to him through Annexure-A dated 31.03.2014.
2. The applicant thereafter represented on 05.05.2014 and 16.05.2014, but those representations have also not elicited any favourable response from the Respondent-AIIMS. Hence this OA.
2OA No-1923/2014
3. The applicant is B. Pharma and M. Pharma, and is registered with Employment Exchange, where his category was noted to be OBC category in the month of March, 2008. On 21.01.2008, he received an intimation from the Respondent-AIIMS informing him that his name had been received from the Employment Exchange for consideration for recruitment to the post of Pharmacist Grade-II, and he was asked to submit the enclosed proforma duly filled in along with the requisite documents. The applicant submitted it duly filled as at Annexure A-3, after which he was issued an Admit Card for the written test for the post of Pharamcist Grade-II to be held on 10.03.2008 (Annexure A-4), and was later called for interview to be held on 19.07.2008, through the interview letter dated 17.06.2008 (Annexure A-5).
4. The applicant was in possession of a below Non-Creamy Layer OBC certificate about his belonging to Jat Community, which was dated 24.01.2001, issued by Sub-Divisional Magistrate, Delhi, Narela, Delhi (Annexure A-6). But the interview was held seven years later on 19.07.2008, and the applicant received an offer of appointment six more years later, dated 31.3.2014 (Annexure-A) (supra). He completed all the formalities, and went for the medical test, and was declared to be medically fit. Thereafter he visited the Respondent-Institute on 14.04.2014 and 21.04.2014, but was denied permission to join his duties. The applicant has submitted that he had thereafter applied to the Competent Authority on 02.05.2014 for issuance of a fresh OBC certificate, and represented to the respondents through Annexure A-7 3 OA No-1923/2014 Colly, dated 05.05.2014 and 16.05.2014 for being permitted to join his duties. However, he was not allowed to join duty. The applicant is aggrieved that the respondent Institute is discriminating, and denying him the job for which he was selected and had thereafter waited for almost six years, and he is now apprehending that the respondent Institute may provide the job to somebody else.
5. The applicant has taken the ground that his name was duly forwarded by the Employment Exchange, his application was scrutinized, and he had submitted the OBC Certificate issued to him by the Competent Authority, and since there was no formal Advertisement of the available vacancies by the respondent Institute against which he had to apply, therefore, no concept of any cut-off date can be made applicable to disqualify him despite his valid OBC Certificate issued on 21.01.2001.
He has further taken the ground that at no stage he has given any wrong information, and has produced all the original certificates issued by the Competent Authorities, which were even accepted by the respondent Institute when he was allowed to appear at the interview. But now the Respondent-Institute has, in 2014, directed him to produce the Non-
Creamy Layer OBC caste certificate issued by the Competent Authority dating only six months prior to the offer of appointment, and to ensure that his caste is included in the Central List of OBCs.
6. The applicant has further taken the ground that he has waited for six years, and now he is 37 years of age, and not eligible for any other appointment. He has submitted that in compliance of the conditions now raised by the respondent, he had applied for a fresh Non-Creamy 4 OA No-1923/2014 Layer OBC certificate, but the same has not been issued by the Competent Authority, and as the Jat Community is in the Central List of OBCs also, therefore, he fulfils the requisite conditions. He had submitted that the action of the respondent in not allowing him to join duties was perverse and illegal, and that on the date of issuance of the offer of appointment to him, his Jat community was in the Central List of OBCs category. He has further taken the ground that since his category is that of an OBC in both the Central List and State List, therefore, he is entitled for the benefit of OBC reservation, and had prayed for the following reliefs and Interim Relief:-
"Reliefs:
a) direct the respondent to give joining to the applicant at the post of Pharmacist Grade-II in the pay scale of Rs.4500-125-
7000 at AIIMS, New Delhi in terms of appointment dated 31.3.2014;
b) award the costs of proceedings;
c) any other and further relief as deemed fit and proper by the
Hon'ble Tribunal may also be passed.
Interim Relief:-
a) direct the respondent to hold/reserve one seat for the
applicant for the post of Pharmacist Grade-II in pursuance of offer of appointment dated 31.3.2014, till the decision of present petition".
7. The Bench that day admitted the case and issued notice on 29.05.2014 had passed an interim order also that one post may be kept vacant till the next date of hearing of the case. This interim order was thereafter continued from time to time till the orders dated 06.01.2015.
In the meanwhile, the applicant had sought permission to file an amended OA, which had also been filed by him on 25.07.2014.
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8. Through this amended OA, the applicant had brought on record the fresh Non-Creamy Layer OBC certificate that had been issued to him by the Executive Magistrate-cum-Tehsildar, Narela, Delhi, dated 11.06.2014. He had also brought on record that the respondent Institute had on 31.05.2014 issued an order whereby the offer of appointment issued to the applicant on 31.03.2014 was withdrawn, as the Jat caste to which he belongs, as per the OBC certificate submitted by him, was not in the Central List of OBCs on the crucial date for determining his eligibility, and that his selection had been made initially only against the vacancy reserved for an OBC category candidate. This order had been termed by the applicant to be contumacious, having been passed after the Interim Relief had been granted to him, and he had pointed out to the fresh Non-Creamy Layer OBC Certificate dated 11.6.2014 issued to him by the Executive Magistrate-cum-Tehsildar, Narela, Delhi. He had also added certain fresh grounds, submitting that the respondents had passed an order dated 31.05.2014 withdrawing the offer of appointment issued to him, even after having received an intimation regarding the Interim Relief granted by this Tribunal on 29.05.2014, and had further taken the ground that the concept of crucial date has no relevance in the present case, as vide the offer of appointment dated 31.03.2014, he was directed to submit an original OBC Certificate issued by the Competent Authority prior to that offer of appointment, and thus the crucial date, if any could only be 31.03.2014, and even as on 31.05.2014, the applicant's caste Jat Community continued to be included in the Central List of OBC, because of which 6 OA No-1923/2014 only the new/fresh OBC certificate dated 11.06.2014 had been issued to him. The additional prayer for relief added, therefore, was at Para-8(b) as follows:-
"b) Quash the office order dated 31.05.2014 and consequently direct the respondent to appoint the petitioner/applicant as Pharmacist Grade-II in pay scale of Rs.4500-125-7000; and".
9. The respondent Institute filed its counter reply on 24.08.2015. In this, a preliminary objection was taken that the Hon'ble Supreme Court has through its judgment dated 17.03.2015 in the case of Ram Singh and Ors. vs. Union of India 2015 (3) SCALE 570 struck down the Notification dated 04.03.2014 of the Central Government including the Jat community in the Central List of OBCs. It was, therefore, submitted that the offer of appointment dated 31.03.2014 issued to the applicant was legally and rightly withdrawn through the Office Memorandum dated 31.05.2014 (Annexure R-1), as the applicant was not in possession of a valid OBC Certificate as per the Central List of Govt. of India of OBC Castes.
10. It was further pointed out that at every stage in his application the candidate had only mentioned his category as OBC, and even the certificate as produced by him during the interview was not a valid OBC Certificate, because Jat community was not a part of the Central List of OBCs at that point of time in 2001. It was submitted that merely because this fact had been overlooked during verification of documents at the time of interview, and while issuing offer of appointment letter, cannot be a ground for continuing the irregularity, since the offer letter 7 OA No-1923/2014 itself stated that it was subject to production of a valid certificate of SC/ST/OBC category in respect of candidates belonging to those categories. Since the petitioner did not produce any valid OBC Certificate as per the Central List of OBCs applicable at the time of his selection, therefore, he had no legal right to join the post reserved for OBCs, in the absence of a valid OBC Certificate.
11. It was submitted that the offer of appointment made to the applicant was against the vacancy for which selection process had been initiated in the year 2006, when two vacancies (SC-1 & OBC-1) of Pharmacist Grade-II were notified to the Employment Exchange. It was pointed out that the DoP&T OM dated 15.04.1983 provides that "in the case of recruitment made through the Employment Exchange, the crucial date for determining the age limit shall be the last date upto which the Employment Exchange is asked to submit the names", which, in the instant case, was 20 days from the date of the requisition dated 18.10.2006 sent to the Employment Exchange. It was submitted that accordingly the crucial date for determining eligibility, including age limit, was taken into consideration as on 06.11.2006, as otherwise, the applicant would have been over-aged even on the date of issuance of the offer of appointment dated 31.03.2014. It was submitted that on verification of his original documents/ certificates as per the requisite procedure, it had come to notice that Jat caste is not covered in the OBC category list notified for the purpose of employment in the Central Government, and as on the crucial date of eligibility, which has been taken to be 06.11.2006, he was not covered under OBC category, and 8 OA No-1923/2014 was ineligible, and had been wrongly selected against the vacancy meant for OBC category.
12. It was submitted that the representation of the applicant dated 05.05.2014 was properly considered, but since he was not in possession of a valid OBC Certificate for the purpose of acquiring job in Central Govt./Govt. of India as on the crucial date for determining eligibility, i.e., 06.11.2006, the offer of appointment wrongly issued to him on 31.03.2014 was withdrawn on 31.05.2014.
13. It was denied that the applicant was discriminated against, and it was submitted that since the applicant could not produce a valid OBC Certificate as per the Central List of OBCs applicable at the time of selection of the candidates, in the absence of a valid OBC Certificate, he has no legal right to join the post reserved for OBC category, and that his offer of appointment was rightly cancelled through OM dated 31.05.2014, which stated as follows:-
"OFFICE MEMORANDUM Subject:- Offer of temporary appointment to the temporary post of Pharmacist Grade-II at the AIIMS, New Delhi-cancellation thereof.
The offer of appointment issued to Shri Deepak Tushir vide this Institute O.M. No. 1-20/2006-Estt.1 dated 31.03.2014 is hereby withdrawn as the caste(JAT) to which he belongs as per the OBC certificate submitted by him was not in the Central List of OBCs on the crucial date for determining eligibility and his selection was under
vacancy reserved for OBC.
Sd/-
(K.K. Girdhari) 9 OA No-1923/2014 Sr. Administrative Officer Shri Deepak Tushir S/o Shri Mahender Singh H. No. 144, Gautam Colony, Gali No. 3, Narela, Delhi-110 040".
14. The applicant filed a rejoinder on 31.10.2015. It was submitted that the Hon'ble Supreme Court had struck down the relevant Notification regarding OBC category reservation for Jat Community only on 17.03.2015. However, since the applicant had been selected prior to that judgment, that judgment will not be applicable to the facts and circumstances of the present case, and it was, therefore, submitted that withdrawal of the offer of appointment through the above OM dated 31.05.2014 was illegal and bad in law. It was submitted that as per the offer letter dated 31.05.2014, the applicant had been required to produce caste certificate which had been issued not less than six months from the date of issuance of that letter. The applicant has since then obtained and produced a fresh OBC Certificate, and, therefore, the withdrawal of offer letter by the respondents was termed to be bad in law.
15. It was submitted that the applicant was eligible from the date of Advertisement, and at the time of offer of appointment, and, therefore, all the grounds taken by the applicant in his original OA, and the amended OA, are correct and reiterated, and it was prayed that the OA be allowed.
16. Heard. The case was argued by both the sides more or less reiterating their contentions as already discussed in quite detail above.
It is clear that the Jat Community had been included for providing OBC category reservations in the Government of National Capital Territory of Delhi (GNCTD, in short), sometime before 2001, because of which the 10 OA No-1923/2014 applicant had been issued the Non-Creamy Layer OBC Certificate dated 24.01.2001 (Annexure A-6) by the Sub-Divisional Magistrate, Narela, Delhi, which was certainly valid for appointments to the posts under GNCTD. The applicant has now produced a fresh similar OBC Certificate issued to him by the Executive Magistrate and Tehsildar, Narela on 11.06.2014, which would also be valid for appointments, if any, in the case of services under the GNCTD. Therefore, in so far as posts under the GNCTD are concerned, the Non-Creamy Layer OBC Certificate Annexure P-9 dated 11.06.2014 continues to be relevant for its life of three years till 10.06.2017.
17. However, as was rightly pointed out by the respondents in their counter reply, the Jat Community had been included in the Central List of OBCs only through the Notification dated 04.03.2014, which was struck down on 17.03.2015 by the Hon'ble Apex Court through its judgment in Ram Singh & Ors. (supra). The applicant was issued an offer of appointment on 31.03.2014, although his Community of Jat was included in the Central List of OBCs through a Notification issued just at the beginning of that very month, on 04.03.2014. But, as on that date, he did not possess a valid OBC category certificate, as he was in possession only of an OBC category certificate issued on 24.01.2001, which had lost its validity on 23.01.2004, after three years, as no such certificates under the Rules framed in this regard remain valid for more than three years.
11OA No-1923/2014
18. It is trite law that, as was recognized by the Hon'ble Supreme Court in its Nine-Judges' Bench judgment in Indra Sawhney vs. Union of India AIR 1993 SC 477, the OBC reservation is only available to those people who are not floating in the creamy layer of OBCs, and who have a current and valid certificate for being below the creamy layer.
There are many circumstances in which people who were earlier below the creamy layer may move into the creamy layer, and vice-versa is also possible in some cases, which have been alluded to in the order dated 25.09.2013 in O.A 1875/2011 Ms. Jyoti vs. Govt. of NCT of Delhi by a Bench including one of us [Member (A), Sudhir Kumar]. We may reproduce the following paragraphs from that order :-
"28. We are, therefore, now, faced with a peculiar situation. On the one hand, we have a Division Bench judgment of the Hon'ble Delhi High Court dated 24.01.2012 in the case of Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors.(supra) and on the other hand, we have two judgments of two other Division Benches of the Hon'ble Delhi High Court itself taking a different view, both of which have referred to the same earlier judgment, i.e. Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), and have given their own reasons for their differing views. However, it may be pointed out here, most respectfully, that the observation of the Hon'ble Delhi High Court in para 10 of its judgment in Anil Kumar (supra), as reproduced by us at the end of para 24/above, that the judgment in Hari Singh (supra) was not noticed at all in Ram Kumar Gijroya (supra) appears to have been made by way of an oversight, as the said judgment in Hari Singh (supra) was very much noticed and discussed in para 17 of Ram Kumar Gijroya (supra).
29. Further, as has been discussed in para 17 of the judgment in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), reproduced by us in para 13/above, we find that the judgment in D.S.S.S.B. Vs. Ms. Anu Devi & Anr. (supra), had turned upon the peculiar facts of that case, in as much as, notwithstanding the cut off date prescribed, the appointing authority had issued fresh notices demanding the certificates, thereby extending the very cut off date itself, and, secondly the Hon'ble High Court had exercised its discretion under Article 226 in refusing to interfere with the decision of 12 OA No-1923/2014 the Tribunal in that case. It is most respectfully submitted that the peculiar facts of the case on which the judgment of the Hon'ble High Court in Ms. Anu Devi (supra) had turned have, on the other hand, not been considered and discussed in detail in the judgment dated 06.05.2013 in Manjusha Banchhore (supra). Therefore, at least this Tribunal is not competent to hold that the Hon'ble Delhi High Court's judgment in Ram Kumar Gijroya (supra) does not lay down good law, and it appears to us to have laid down law which continues to be binding for this Tribunal at least, notwithstanding the later two judgments in Anil Kumar (supra) dated 10.04.2013, and in Manjusha Banchhore (supra) dated 06.05.2013.
30. Secondly, the latter judgment dated 06.05.2013 in Manjusha Banchhore (supra) has been delivered on the basis of a specific legal ground that the law as laid down by the Hon'ble High Court in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) and in Krishna Kumar's case (supra) had "overlooked" a fundamental point "that a person becomes a member of a caste by birth", and that the "caste certificates are more in the nature of a Memorandum recording a fact pertaining to birth", which was the view correctly taken earlier by the Hon'ble High Court in "Anu Devi" (supra).
31. We are finding legal hurdles in our accepting this as the final and absolutely correct proposition of law, to be followed blindly by us, as the law of the land. Out of the two legal propositions, which have been examined by us in this regard, the first one is that the Constitutional provisions for reservations for SCs & STs on the one hand, and for OBCs on the other hand, do not stand on an absolutely equal footing.
The reservations for SCs and STs are only "quantitative" in nature as per the Article 16 (4) of the Constitution, and there is no "qualitative" aspect attached to this reservation. On the other hand, the reservations in respect of OBCs are not only "quantitative" in nature, but also have a "qualitative" nature attached to it, as the reservations for OBCs are available only to those who do not float in the "Creamy Layer". Therefore, while the factum of being born alone may be sufficient to be certified in the case of SCs and STs only, such a certificate of having been born in an OBC caste alone is not sufficient in the case of a person born in an OBC caste. Apart from this benefit of his/her having been born in an OBC Caste, he or she also has to necessarily possess another certificate, of not belonging to the 'creamy layer' of such an OBC caste. Therefore, the eligibility or otherwise for OBC caste based reservation cannot be determined at the time of birth alone, as can be done in respect of SCs and STs.
32. There is another aspect also, i.e., the possibility or likelihood, of the change of "creamy layer" status of a lady after her marriage. We have been perplexed as to why when in her previous O.A., as well as in her present O.A., and in all her 13 OA No-1923/2014 submissions the applicant before us has given her Rohini, Delhi, address, which is her marital home, and address for correspondence, as to why the applicant chose to apply for the "OBC non-creamy layer certificate" from her village address, giving only the name of her father, and the village address, and obtaining an "OBC non-creamy layer certificate" from SDM Narela. We have not been able to lay our hands upon, and find any definitive case law, which lays down that a girl who may belong to "non-creamy layer" before her marriage can be considered to have crossed over and above her previous status, to the "creamy layer" after her marriage. But in the instant case, it appears to be one such case. In this case it appears that the monthly income and social standing of her marital home may have perhaps disentitled her to a "non-creamy layer certificate", and, therefore, only while choosing to apply for the job, within a period of 8 days, while she gave her marital home address, which is the same in the case of her address in her previous OA and the present OA, but while applying for her "non-creamy layer OBC certificate", she chose to apply from her parents' address, which was her address prior to her marriage.
33. It is our view that if the caste/category of a person for various benefits admissible to SC/ST/OBC is determined only by birth, then, since in the birth certificate of a person itself, the name and caste of the child born are noted at the time of issuance of that birth certificate, there ought to have been no need for the Legislature to prescribe by law, or through the subordinate legislation framed thereunder, to prescribe a separate caste certificate being obtained in a particular prescribed format, as prescribed by the law, rules and regulations in this regard. A birth certificate is issued by the Municipal Authorities on the report of the hospitals, where the birth takes place, or on the report of the Midwife /Auxiliary Nurse Midwife available in the village, who had attended the child birth, or on the request made by the child's parents to the Municipal or Panchayat Authorities concerned. Invariably, it records the names of the father, mother and the caste also. That being so, if the proposition "the OBC status for various benefits is determined by birth" is accepted as the law of the land, since caste certificates have been held to be more in the nature of a memorandum recording a fact pertaining to birth of a child, and since onus of issuance of birth certificates lies upon the Municipal or Panchayat Authorities concerned under the relevant Act, there would be no necessity for the laws, rules and regulations to prescribe for a separate caste certificate to be issued later on, at any point of time in the life of an individual !! But it has been so prescribed only because in the case of OBCs, the "quantitative" aspect of 27% OBC reservations is further overlaid by a "qualitative" aspect, such benefits being available only to those not floating in the "Creamy Layer" of their respective castes.
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34. There is also a catena of case laws on this aspect, and the law in this regard has been clearly laid down by the Hon'ble Apex Court, which have become the law of the land, and stare decisis would apply. In the case of R. Kandasamy vs. Chief Engineer, Madras Port Trust (1997 ) 7 SCC 505, the Hon'ble Apex Court had upheld the validity of only the caste certificate issued by the Tehsildar, who is the Revenue Authority, and not that of the caste certificate issued by the Municipal Authorities, and had held that the Authorities concerned cannot decline to take into consideration his caste/community certificate issued by the Tehsildar, so long as such certificate has not been cancelled, and decline to take into consideration the fresh community certificate issued by the re-designated Revenue Authorities of Revenue Divisional Officers. It was held by the Hon'ble Apex Court that a birth certificate is the original document recording the fact pertaining to a birth having taken place, which can in no way be cancelled, unless it is proved to have been obtained by the process of empty misrepresentation, since the birth of the child who has come into this world cannot be denied by the authorities by any ferment of imagination, or constructive laws, rules and regulations. However, it was held by the Hon'ble Apex Court that caste certificates are permitted, if so required, to be even cancelled, under the very same law under which they are issued initially. It was further held to the effect that even though a caste certificate issued in favour of a person has been cancelled during the pendency of his claim for promotion, by virtue of the operation of an order of Hon'ble High Court, once the caste certificate issued in his favour has been revoked, his status of being a Scheduled Caste comes under a cloud. The Hon'ble Apex Court, however, added that it would be open to appeal if he ultimately succeeds in his Writ Petition filed before the High Court, to take such remedy, made available under the law, and the Hon'ble Supreme Court had actually declined to finally decide the matter one way or the other, regarding the validity of the caste certificate, or that of its cancellation.
35. In the very context of reservation for backward classes and grant of OBC certificates, the Hon'ble Apex Court had in Sidharth Saini vs. State of Haryana 2001 (10) SCC 625 held that since the only source of income of the father of the appellant was his salary, and it was not disputed that the father of the appellant was a class-II officer, and mother of the appellant was not class-II officer, any income more than the gross salary received by the father of the appellant was irrelevant for the purpose of grant of benefits available to the OBCs to the appellant, and that he was entitled to the grant of an OBC certificate. In that case, the authorities had not denied the factum pertaining to the birth of the appellant in a caste coming under the OBC category, but had only denied his eligibility for grant of OBC "non-creamy layer certificate", on account of the gross income received by the whole family, by both the father and the mother of the appellant, according to which they had concluded that he came under the 'creamy 15 OA No-1923/2014 layer', and they had declined to issue to him OBC "non- creamy layer" certificate, which ultimately he may have got issued after the Apex Court's judgment in his favour. But the distinctive separateness of such a "creamy layer OBC" or "non-creamy layer OBC" certificate from that of a birth certificate of his birth in an OBC caste was never in question before the Hon'ble Apex Court.
36. Further, the caste certificates are issued on the basis of the powers of the President, and the powers of the Governors of the States concerned, to declare the particular caste and/or community to come under the Scheduled Castes, or Scheduled Tribes, and the Other Backward Classes in their States. The President may, in the case of Central Government, and the Governors may, in the case of their State Governments, declare certain castes and communities to fall within the categories of SCs, STs and OBCs, prescribing that those falling under the Communities so notified would be entitled to any service certificates relating to the President's and/or the concerned Governor's notifications. The notifications obviously imply that those who do not belong to the prescribed castes and communities in their respective States, will be denied the benefit of issuance of the relevant certificates in respect of those castes (or communities), and if a person's caste is not falling within the category, as prescribed in the Notification issued under the signatures of the Governor of the State, that person can be denied issuance of the relevant that caste certificate.
37. Since a birth certificate records only a factum pertaining to the birth, in respect of the castes and communities, those who are not covered by the relevant Notification, the issuance of a caste certificate may be denied by the concerned Revenue Authorities, even though a person has been born and has held a birth certificate in his name indicating a caste as had been declared at the time of the birth.
38 to 40 xxxxxxxxxxx(Not reproduced here).
41. It is also worth mentioning that the Hon'ble Apex Court had also in the case of Bhupinderpal Singh & Others vs. State of Punjab & Others (2000) 5 SCC 262 held as follows:
"13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. U nion of India, 16 OA No-1923/2014 (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
14. In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done.
It was pointed out on behalf of the several appellants/petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications 17 OA No-1923/2014 made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinized and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from decided cases of this Court and stated herein above which have now to be treated as the settled service jurisprudence".
(Emphasis supplied).
42. Therefore, if a provision has been made in the relevant Service Rules with regard to the cut off date, it has to be followed, and if no such cut off date was given, then the date fixed in the advertisement shall be followed, and in the absence of both, the last date fixed for receiving the applications by the competent authority shall be followed. The law in regard to cut off date for eligibility criteria as above was followed by the Apex Court in the case of Ashok Kumar Sharma vs. Chander Shekhar (supra), which was another case between the same two parties, 1993 (supp) (2) SCC 611, in which the Hon'ble Apex Court had held as follows:
"In legal terminology where something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. The mandatory character of possessing the requirements as provided in the first part of the notification stands further strengthened from the third and last part of the notification which prohibited the candidates from applying if they did not possess the requisite qualifications. In view of these clear and specific conditions laid down in the advertisement those candidates who were not possessed of the B.E. qualifications were not eligible for applying nor their applications were liable to be entertained nor could they be called for interview. Eligibility for the post mentioned in the notification depended on possessing the qualification noted against each post. The expression, 'shall be possessed of such qualifications, is indicative of both the mandatory character of the requirement 18 OA No-1923/2014 and its operation in presenting. That is a candidate must not only have been qualified but he should have been possessed of it on the date the application was made. The construction suggested by the learned counsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or 15/07/1982 the last date for submission of forms is not made out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless."
43. In the case of Harpal Kaur Chahal vs. Director, Punjab, Instructions, Punjab 1995 (Suppl) 4 SCC 706, the Hon'ble Apex Court had clearly laid down the law that when the recruitment is sought to be made, and the last date has been fixed for receipt of the applications, and only such of those candidates who possessed all the qualifications and requirements as on that date alone are eligible to apply for and to be considered for recruitment according to rules, and, therefore, if a stipulation has been made in regard to the possession of the requisite caste certificate on the last date fixed for receipt of the applications, the ratio as laid down by the Hon'ble Apex Court in Harpal Kaur Chahal (supra) appears to apply. Further in the case of State of Rajasthan vs. Hitendra Kumar Bhatt 1997 (7) JT 287 the Hon'ble Apex Court had clearly laid down the law that a cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied, had they known that the date of acquiring qualifications was flexible, but they may not have applied, because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.
44. Here we would like to flag an issue which is indirectly related to the lis before us, but on which we can only pass an obiter dicta, and cannot lay down a ratio decidendi, since it was not raised as an issue and argued before us. Soon after the Nine-Judge's Bench decision of the Hon'ble Apex Court in "Mandal case" Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : 1992 AIR SCW 3682 authoritatively interpreting various aspects of Article 16(4) of the Constitution of India, and laying down the law that that socially advanced members of a backward class - 'creamy 19 OA No-1923/2014 layer' - have to be excluded from the said 'class', and the purpose and object of Article 16(4) would be served more appropriately by providing such reservations to the 'class', which remains after excluding the 'creamy layer', the Govt. of India had issued an Office Memorandum dated 08.09.1993 in this regard. This O.M. prescribed for 27% reservation for the Other Backward Classes, and the Schedule to the said Memorandum prescribes the categories of persons/sections as mentioned in Column 3 of the said Schedule, which were to be held to constitute "creamy layer", and hence excluded from the 27% reservation for the OBC category under Article 16 (4). The State Governments of Bihar and Uttar Pradesh travelled beyond the stipulations of that DoP&T Memorandum dated 08.09.1993, and laid down further specific prescriptions and tests in this regard. The whole thing came to be examined by the Hon'ble Apex Court in the case of Ashoka Kumar Thakur vs. State of Bihar and Others [AIR 1996 SC 75= (1995) 5 SCC 403=JT 1995 (6) SC 390=(1995) 5 Scale 115=1995 (Supp3) SCR 269]. In that judgment, the Hon'ble Apex Court reproduced the majority view in the 'Mandal case', and dealt with the question of 'creamy layer', drawing a line as to when and where a person belonging to a backward class ceases to be entitled to the reservation, and becomes a part of the exclusion, and brought home the point succinctly by illustrating various stages where a member of a backward class ceases to be backward, and starts floating with the 'creamy layer'. It would be worth-while to reproduce certain paragraphs from the judgment of the Hon'ble Apex Court in Ashok Kumar Thakur (supra) as follows:-
"1. Constitutional validity of the criteria, for determining the 'creamy layer' for the purpose of exclusion from backward classes, laid-down by the States of Bihar and Uttar Pradesh, has been challenged in these writ petitions under Article 32 of the Constitution of India.
2. A Nine-Judge Bench of this Court in " Mandal case"
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : (1992 AIR SCW 3682) authoritatively interpreted various aspects of Article 16(4) of the Constitution of India. While holding that Article 16(4) aims at group backwardness this Court came to the conclusion that socially advanced members of a backward class - 'creamy layer' - have to be excluded from the said 'class'. It was held that the 'class' which remains after excluding the 'creamy layer' would more appropriately serve the purpose and object of Article 16(4).
3. The protective discrimination in the shape of job reservations under Article 16(4) has to be programmed in such a manner that the most deserving section of the backward class is benefitted. Means test by which 'creamy 20 OA No-1923/2014 layer' is excluded, ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practiced on them by the higher class is in turn practiced by the affluent members of the backward class on the poorer members of the same class. The benefits of social privileges like job reservations are mostly chewed up by the richer or more affluent sections of the backward class and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniform. The jobs are so very few in comparison to the population of the backward classes that it is difficult to give them adequate representation in the State services. It is, therefore. necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservations is necessary to benefit the needy sections of the class. The means-test is, therefore, imperative to skim-off the affluent section of the backward class.
4. We may refer to the opinions given by the learned Judges in 'Mandal case' (1992 AIR SCW 3682) on the question of exclusion of the 'creamy layer' from the backward class.
5. P.B. Sawant, J. spoke about the 'creamy layer' in the following words :
"The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicon of backwardness they should be taken out from the backward classes and should 21 OA No-1923/2014 be made disentitled to the provisions meant for the said classes.
It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? Is it the capacity to compete for Class IV or Class III or higher class posts? A Class IV employee's children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class IV posts. It cannot, however, be argued that on that account, he has reached the "creamy" level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also . Such capacity will be acquired only when the backward sections reach those levels or at least, near those levels."
6. R. M. Sahai, J. held that the exclusion of 'creamy layer' is a social purpose. Any legislation or executive action to remove such persons individually or collectively cannot be constitutionally invalid. The learned Judge elaborated his conclusions as under:-
"More backward and backward is an illusion. No constitutional exercise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from the class may have achieved the social status or economic affluence, disentitle them from claiming reservation, therefore, while reserving posts for backward class the department should make a condition precedent that very candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents 22 OA No-1923/2014 are in higher services then such individuals should be precluded to avoid monopolization of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated."
7. B. P. Jeevan Reddy, J. speaking for the Court enunciated the concept of 'creamy layer' in the following words.
"The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class, After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. in such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs. 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be 23 OA No-1923/2014 a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and , therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognized that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society(social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realize their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that 'one swallow doesn't make the summer', and that merely because a few members of a cast or class become socially advanced, the class / caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes) ... Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion - Whether on the basis of income, extent of holding or otherwise - of 'creamy layer'.
(Emphasis supplied) 24 OA No-1923/2014
8. It is difficult to draw a line where a person belonging to the backward class, ceases to be so and becomes part of the 'creamy layer'. It is not possible to lay down the criteria exhaustively. This Court has, however, speaking through Jeevan Reddy, J., dealt with the question elaborately and has brought home the point succinctly by illustrating various stages where a member of a backward class ceases to be backward and starts floating with the 'creamy layer'.
9. Pursuant to the directions by this Court in ' Mandal case' (1992 AIR SCW 3682) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued office memorandum dated September 8, 1993 providing for 27% reservation for the Other backward Classes. Para 2(c) of the memorandum excludes the persons / sections mentioned in column 3 of the Schedule to the said memorandum. In other words, the Schedule consists of the "creamy layer'. It would be useful to reproduce the relevant paras of the said memorandum hereunder "
"OFFICE MEMORANDUM Subject : Reservation for Other Backward Classes in Civil Posts and Services under the Government of India - Regarding.
___________________ The undersigned is directed to refer to this Department's O. M. No. 36012 / 31 / 90-Estt. (SCT), dated the 13th August, 1990 and 25th September, 1991 regarding reservation for Socially and Educationally backward Classes in Civil Posts and Services under the Government of India and to say that following the Supreme Court judgment in the Indra Sawhney v. Union of India, (1992 AIR SCW 3682) case (Writ Petition (Civil) No 930 of 1990 the Government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons / sections from the benefits of reservations for Other Backward Classes in civil post and service under the Government of India.
2. Consequent to the consideration of the Expert Committee's recommendations this Department's Office Memorandum No. 36012 / 31 / 90-Estt. (SCT), dated 13-8-90 referred to in para (1) above is hereby modified to provide as follows :
(a) 27% (Twenty seven per cent) of the vacancies in civil posts and services under the Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward 25 OA No-1923/2014 Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.
(b) ..............
(c) (i) The aforesaid reservation shall not apply to persons / sections mentioned in column 3 of the Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupation, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare.
(d) to (e) ......................
3.................................
10. We have carefully examined the criteria for identifying the 'creamy layer' laid down by the Government of India in the Schedule, quoted above, and we are of the view that the same is in conformity with the law laid down by this Court in 'Mandal case', (1992 AIR SCW 3682). We have no hesitation in approving the rule of exclusion framed by the Government of India in para 2(c) read with the Schedule of the office Memorandum quoted above. Learned counsel for the petitioners have also vehemently commended that the State Governments should follow the Government of India and lay down similar criteria for identifying the 'Creamy layer'.
11 to 15. xxxxxxxx (Not reproduced here)
16. This Court, in 'Mandal case' has clearly and authoritatively laid down that the affluent part of a backward class called 'creamy layer' has to be excluded from the said class and the benefit of Article 16(4) can only be given to the "class" which remains after the exclusion of the 'Creamy layer'.
The backward class under Article 16(4) means the class which has no element of 'creamy layer' in it. It is mandatory under Article 16(4) - as interpreted by this Court - that the State must identify the 'creamy layer' in a backward class and thereafter by excluding the 'creamy-layer' extend the benefit of reservation to the 'class' which remains after such exclusion. This Court has laid down, clear and easy to follow guidelines for the identification of 'creamy layer'. The States of Bihar and Uttar Pradesh have acted wholly arbitrary and in utter violation off the law laid down by this Court in 26 OA No-1923/2014 'Mandal case' (1992 AIR SCW 3682). It is difficult to accept that in India where the per capita national income is Rs. 6929 (1993-94), a person who is a member of the IAS and a professional who is earning less than Rs.10 lakhs per annum is socially and educationally backward. We are of the view that the criteria laid down by the States of Bihar and Uttar Pradesh for identifying the 'creamy layer' on the face of it is arbitrary and has to be rejected.
17. We, therefore, hold that the above quoted criteria, for identification of' creamy layer' laid down by the States of Bihar and Uttar Pradesh is violative of Article 16(4), wholly arbitrary - violative of Article 14 - and against the law laid down by this Court in 'Mandal case'.
18. We allow the writ petitions and quash (except clause 1 of Schedule III) the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance 1995 (also the Act if ordinance has been converted into Act). We also quash Schedule II read with Section 3(b) of the Uttar Pradesh Public Services Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994.
19. We further direct that for the academic year 1995-96 the States of Uttar Pradesh and Bihar shall follow the criteria laid down by the Government of India, reproduced above, in the memorandum dated September 8, 1993. It will be open to the two States to lay down fresh criteria for the subsequent years in accordance with law. No costs".
(Emphasis supplied)."
19. Therefore, as on 31.03.2014, the applicant was ineligible for appointment as he was not having a valid OBC certificate, even though as on that date his caste had just been included in the Central List of OBCs, and the Respondent-AIIMS is a Central Government organization.
20. On the other hand, there is also merit in the submissions made by the respondents in the counter affidavit that when the DoP&T OM dated 27 OA No-1923/2014 15.04.1983 provides that "in the case of recruitment made through the Employment Exchange, the crucial date for determining the age limit shall be the last date upto which the Employment Exchange is asked to submit the name", they were right in taking into consideration the date of 06.11.2006 as the cut-off date in respect of the requisition sent to the Employment Exchange on 18.10.2006. Neither on 18.10.2006, nor on 06.11.2006, the applicant was in possession of a valid Non-Creamy Layer OBC Certificate, as his earlier OBC Certificate dated 24.01.2001 valid for the GNCTD appointments had outlived its life on 23.01.2004, and his Jat Community was not at all recognized till 04.03.2014 for appointments in OBC category in the Central Government, and, therefore, appointment with the Respondent-AIIMS.
21. Learned counsel for the applicant harped on the issue that the applicant has since obtained another Non-Creamy Layer OBC Certificate dated 11.06.2014 from Executive Magistrate and Tehsildar, Narela, Delhi, which was within the period when the Jat Community was still in the OBC category list of the respondents, when the case was before the Hon'ble Apex Court in the case of Ram Singh & Ors. (supra) which passed an order striking down that inclusion of Jat community in Central OBC category list much later, and, therefore, the respondents were wrong in having issued the order of cancellation of applicant's appointment dated 31.05.2014 as reproduced above.
22. Learned counsel for the applicant had also cited the case of Uttar Pradesh Public Service Commission vs. Satya Narayan Sheohare and Others (2009) 5 SCC 473, in which it was held that the caste 28 OA No-1923/2014 reservation is deemed to have commenced from the date such caste is added. Even applying this law, and recognizing the fact that the OBC reservation for Jat Community had commenced for Govt. of India posts from 04.03.2014, prior to the issuance of the letter of appointment to the applicant dated 31.03.2014, but the fact remains that the applicant did not have any valid and current Non-Creamy Layer OBC Certificate as on the date of issuance of that offer of appointment to him, and before he could obtain the offer of appointment to him, his candidature has been cancelled on the basis of his not being eligible as on 06.11.2006.
23. But as per the law as laid down, possession of a valid educational qualification as well as the relevant community reservation certificate as on the cut-off date is essential. Even if the applicant's contention that in his case cut-off date should be treated as 31.03.2014 is accepted, and for arguments' sake, the respondent's contention that the cut-off date should be 06.11.2006, as per the DoP&T OM dated 15.04.1983 (supra), is overlooked, as on 31.03.2014 also the applicant was not in possession of any valid Non-Creamy Layer OBC Certificate, which he was able to obtain 2-½ months thereafter only, on 11.06.2014, even subsequent to the cancellation of his appointment itself, through the impugned order dated 31.05.2014.
24. Further, as on today, the law of the land is clear that the Jats do not and cannot belong to the OBC category for appointments in the Central Government, as held by the Hon'ble Supreme Court in the case of Ram Singh & Ors. (supra). Also, it is settled law that a judgment 29 OA No-1923/2014 when delivered operates as the law laid down with retrospective effect itself. The power to order only prospective application of the law as laid down through its judgment is available only to the Supreme Court of India, and no other Court or Tribunal, as was clarified by the Supreme Court in its order dated 16.02.2006 in Union of India & Anr. vs. I.P. Awasthi & Ors. [Civil Appeal No.(s) 8568/2002]. Since, in the instant case the Supreme Court had in its judgment in Ram Singh & Ors.
(supra) not directed that the operation of its judgment would be only prospective in nature, the Government's Notification dated 04.03.2014 stood annulled ab initio, from the date of its issuance itself. Therefore, even during the period from 04.03.2014 onwards, when the applicant's offer of appointment was issued on 31.03.2014, it has been rendered null & void now, by way of the operation of Supreme Court's judgment dated 17.03.2015 in Ram Singh & Ors. (supra).
25. Therefore, in any way it is seen, there is no merit in the present OA, and the OA is, therefore, liable to be dismissed, and is, therefore, dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.