Central Administrative Tribunal - Delhi
Ms. Seema vs Municipal Corporation Of Delhi on 4 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 130/2010 New Delhi this the 4th day of May, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Ms. Seema, W/o Shri Yogendra Singh, R/o 1440/34, Durga Puri, 30 Futa Road, Shahdara, Delhi-94. Applicant. (By Advocate Shri Ajesh Luthra) VERSUS 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Delhi. 2. Delhi Subordinate Services Selection Board, through its Chairman, F-18, Karkardooma Institutional Area, New Delhi. Respondents. (By Advocate Shri Chandramani Bhardwaj, proxy for Ms. Rashmi Chopra for Respondent No.2, None for Respondent No.1 ) O R D E R Shri Shanker Raju, Member (J):
Denial of appointment to the post of Assistant Teacher/Teacher in OBC category is the grievance of the applicant.
2. Applicant, who is from UP, belongs to Jat Community. Her caste has been notified as an OBC in UP. Applicant in pursuant upon the advertisement issued by Delhi Subordinate Services Selection Board/Respondent No.2, on 22.07.2008, applied for the post of Assistant Teacher/Teacher (Primary) in Municipal Corporation of Delhi and in the category of OBC, she had filled up a tick mark whereas in the column of reservation, the same has been left blank. However, the applicant was issued Roll No.01622093 as belonging to OBC category and had qualified in the written examination, of which the result was declared.
3. During the interregnum, applicant had applied for the OBC certificate in the concerned office of GNCT of Delhi, on 01.08.2008 and was issued the same to her, on 08.10.2009. Thereupon, just after two days of final result declared as the applicant was not selected when preferred an application under the RTI Act, was intimated that as the OBC certificate from Delhi was not enclosed with the application, her case was considered in unreserved category and having obtained total 107 marks though she has sufficient marks as per her OBC certificate but falling short of marks meant for general candidates, appointment was denied to her.
4. Learned counsel for the applicant states that the decision of the Apex Court in CA 5092/2009 dated 13.11.2009 would not come in the way of the applicant as in IA No.7-12, the judgment was treated to be prospective in nature. Moreover, learned counsel states that applicants case is in all fours covered by a decision of the present Bench in OA 1671/2009, Sachin Rana Vs. Govt. of NCT, Delhi and Ors. decided on 24.08.2009. Learned counsel states that once she has applied for the OBC certificate, the decision of the Apex Court in U. P. Public Service Commission Vs. Satya Naryanan Sheohare & Ors. (JT 2009 (6) SC 584) and Delhi subordinate Services Selection Board & Anr. Vs. Ms. Anu Devi & Anr. (WP (C) No.13870/2009), decided on 17.02.2010 by the High Court, in all fours covers her case.
5. On the other hand, respondents have vehemently opposed the contention and stated that the applicant knowingly and on his own volition stated in the application that she is not an OBC from Delhi and as such has not availed any benefit of reservation and subsequently having failed to submit a valid certificate as on the cut off date i.e. 12.08.2008, she was not found eligible. Learned counsel would further contend that in the advertisement, the educational qualification and other conditions of eligibility are to be fulfilled on 12.08.2008 and the OBC certificate was mandated from Delhi Government. In the above view of the matter, relying upon clause 3 of O.M. dated 25.07.2003, it is stated that the appointing authority before appointing a person on the basis of reservation of OBCs is entitled to verify the veracity of the community certificate and also the fact that she does not fall in creamy layer on the crucial date. As the applicant was not having O.B.C. certificate on the cut off date, there was no infirmity in the action of the respondents.
6. We have carefully considered the rival contentions of the parties and perused the material on record.
7. The Apex Court on a temporal effect of a judgment in General Manager, Uttranchal Jal Sansthan Vs. Laxmi Devi & Ors. (2009 (2) SCC (L&S) 304) ruled that unless a judgment is specifically stated to be prospective in application shall always be retrospective.
8. With the above backdrop, in Subhash Chandra & Anr. Vs. Delhi Subodinate Services Selection Board & Ors. (2009 (11) SCALE 278), in the background of Article 341(2) and 342 of the Constitution of India, it has been ruled specifically that those SCs/STs/OBCs, who belong to States as well as Central, would not be eligible on migration to be accorded the benefit and the stipulation as to the insisting for an OBC certificate by the Govt. of Delhi was upheld by holding the decision in S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. (2005 (3) SCC1) as an obiter. Accordingly, what has been held is the ratio that an OBC unless declared and in possession of a valid certificate from the State where selection is held would not be eligible to get the benefit of OBC, has been ruled. However, we find that applicants counsel has produced before us the orders passed in IA 7-12 whereby applications have been moved for clarification and in one of the applications moved by an intervener, a clarification was sought from the Government as to whether the judgment was intended to be prospective or it is intended to cover those candidates who have already been selected for counseling. The following observations are relevant to be intended:
Having considered the submissions made on behalf of the parties, it should first be clarified that we are only considering whether the judgment and order passed in the Civil Appeal intended to cover even those Scheduled Tribes candidates who had not only participated in the selection process but had also been selected for counselling prior to the delivery of the said judgment. We are of the view that this does not entail invocation of our power under Article 142 of the Constitution and, accordingly, Mr. Goburdhans submission, has no merit.
We clarify that the judgment delivered in C.A. No. 5092/2009 was intended to take effect prospectively and it was not the intention of the Court that the students who had already applied and had been selected for counselling should also be covered by the same. The High Court had in its judgment indicated that there were no materials on record to prove that the S.T. applicants were migrants. In our view such a consideration is immaterial for our purpose since despite the fact that the notification had been issued under Article 341 of the Constitution, as per past practice, S.T. candidates were being given admission in Delhi educational institutions. Unfortunately, although the applications were made soon after the judgment was delivered, the same could not be taken up for final disposal before the first semester has almost come to an end. In such circumstances, we accept the recommendations of the Department of Training & Technical Education, Government of NCT of Delhi, and direct that the successful students who had been called for counselling and have not already taken admission in any institution or University in Delhi, would be entitled to admission in the respective institutions for which they had applied for and also direct that special classes be arranged for the students to enable them to catch up with those who are in the process of completing the final semester. Such admissions process should be completed, if possible, within a week from date.
All the Applications are disposed of by this order. Let the instructions received by learned Additional Solicitor General from Shri O..P. Shukla, OSD, DTU & Dy. Director (TTE) be taken on record.
9. Having regard to the above, as the jurisdiction has not been exercised by the Apex Court under Article 142 of the Constitution of India, the clarification as to prospectivity of the judgment was confined to the petitioners/parties before the Apex Court i.e. students who had already applied and had been selected for counselling. It did not have an effect of declaration to the effect that the judgment is prospective in the matter of precedent under Article 141 of the Constitution of India. Accordingly, the prospectivity would apply only to the students covered in the controversy before the Apex Court, who have been selected and called for the counselling. It is with a view to protect their right as such the contention put forth by the applicants counsel as to prospectivity in general is misconceived and cannot be sustained in law.
10. This leaves us to the second leg of argument. We have perused the application form. Though the applicant has not sought the benefit of OBC yet she had mentioned her status as of OBC but no certificate was appended with the application form. This is in the view that the advertisement insists upon the certificate issued by Govt. of NCT as per Subhash Chandras decision for which the selection process was subjected to its outcome. However, from the records, it transpires that the Notification was issued on 22.07.2008 and the closing date for receipt of applications was 12.08.2008. The applicant had applied for the certificate of OBC, which was issued to her on 08.10.2009 i.e. much after the closing date for receipt of application. In the case of Satya Narayan Sheohare (supra), the facts transpired that the OBC certificates on the caste being declared as such in 2000 were available in a short proximity of the written examination and before the results were declared. However, an identical issue has come up in a batch of cases, decided by the High Court of Delhi, more particularly in Ms. Anu Devi & Ms. Rekhawati (WP (C) 13870/2009 & connected cases), decided on 17.02.2010 where after taking a detailed discussion as to the identical issue which is involved in the instant case, the following observations have been made:
19. In any case the submission of OBC certificate for reservation under the OBC category cannot be equated with acquisition of the educational qualification. A candidate becomes eligible under the OBC category, the day the caste he belongs to is notified by the appropriate authority as a backward class. Though the learned counsel for the petitioners has emphasized that whether a candidate belongs to a creamy layer or not is to be determined only on issuance of a certificate, however, taking into consideration the entirety of the facts and circumstances, in our view the candidates not belonging to a creamy layer whose caste is notified as a backward class becomes entitled for reservation under the OBC category and submission of the requisite certificate is only a ministerial act which cannot be equated with acquisition of educational qualification to become eligible for a post. Consequently, the plea of the learned counsel for the petitioners that the respondents/candidates became eligible for selection in the OBC category on the dates the certificates were issued by the appropriate authorities, cannot be accepted. This plea in the present facts and circumstances should also be not accepted because in all the cases except in the case of Rekhawati (supra) the candidates had applied for OBC certificate before the closing date for submission of forms which was 29th October, 2007. In the circumstances for the delay on the part of the authorities in preparing and giving the OBC certificate, it cannot be inferred or held that the candidates were not eligible for selection under the OBC category.
20. As already considered hereinbefore, the petitioners themselves did not treat the respondents in different petitions as ineligible for selection under the OBC category as none of the notices given to the candidates stipulated that they cannot be selected under the OBC category as they had failed to furnish the requisite certificate before the closing date for submission of the application forms. Rather the notices were given by the petitioners extending the date for submission of the OBC certificate and all the candidates in different writ petitions submitted the OBC certificate before the last date notified in the notices. In the circumstances, it will not be appropriate and in the interest of justice to infer that the order of the Tribunal holding that the respondents/candidates in different writ petitions are entitled for selection under the reserved category in accordance with their marks, are bad in law and are liable to be quashed.
11. In the above view of the matter, as we find that the applicant has been treated by the respondents as OBC candidate, they cannot approbate and reprobate by stating that the applicant had not intended to avail the benefit of OBC as the caste certificate has been given to her after the result was declared but the caste had been notified in the Delhi Government in the year 1995. The dicta in Ms. Anu Devi (supra) which is further followed in Rajveer Singh (OA 2311/2009), decided on 12.02.2010 by the Tribunal in all fours covers the claim of the applicant by the ratio.
12. Resultantly, this O.A. is partly allowed. Respondents are directed to reconsider the case of the applicant in OBC category for appointment as Assistant Teacher/Teacher (Primary) in the light of the decision in Ms. Anu Devi (supra) by a speaking order to be passed within two months from date of receipt of a copy of the order. Till then, interim order shall remain in effect. No costs.
( Dr. Veena Chhoray) (Shanker Raju) Member (A) Member (J) `SRD