Central Administrative Tribunal - Delhi
Staff Selection Commission vs Shri Mahesh Kumar on 19 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
RA No. 139/2012 and MA No. 1190/2012
In
OA 2364/2010
Reserved on:14.03.2013
Pronounced on:19.03.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGGARWAL, MEMBER (A)
Staff Selection Commission
Block No.12, CGO Complex,
Lodhi Road,
New Delhi,
Through its Chairman. ..Review Applicant
By Advocate Shri S.M. Arif.
Versus
Shri Mahesh Kumar
S/o Shri Ram Singh
R/o D-11/159, Sector-7,
Rohini,
Delhi-110085. ..Respondent in RA/
Original Applicant in OA
By Advocate: Shri J.S. Mann
ORDER
Shri G. George Paracken:
MA No. 1190/2012 in RA No. 139/2012 in OA No. 2364/2010 This MA has been filed by the Respondent, i.e., Staff Selection Commission in OA No.2364/2010 seeking condonation of delay in filing RA No. 139/2012 in the said OA. According to them, there is some delay in filing the Review Application. However, the same is neither deliberate nor intentional one but only due to administrative reasons. They have, therefore, submitted that it was just and proper for this Tribunal to condone the delay in filing the Review Application.
RA No. 139/2012 in OA No. 2364/2010
2. This Review Application has been filed by the Respondents in OA 2364/2010 which was disposed of vide order dated 1.02.2012. The operative part of the said order reads as under:-
7. We have heard the learned counsel for the parties. We have also gone through the judgment of the Apex Court in the case of Uttar Pradesh Public Service Commission (supra) and the Order of a co-ordinate Bench of this Tribunal in OA 2479/2009 (supra). The relevant part of the judgment of the Apex Court in the aforesaid case reads as under:
10. Thus, the principle contained in Section 15 would apply whenever a new caste, which was not an OBC earlier, is added to Schedule I of the Act by an amendment to the Act. Therefore whenever the Act is amended by including new castes/classes in the list of other backward classes in Schedule I, the date of amendment to the Act would be the date of commencement of the Act in regard to such caste/class inserted by the amendment.
11. It is evident from the explanation to sub-section (1) of Section 15 that where under the relevant service rules recruitment is to be made on the basis of written test and interview, the selection process shall be deemed to have been initiated on the date on which written test was started.
12. In this case, there is no dispute that the written test started on 4.8.2000. It is also not in dispute that before 4.8.2000 when the written test commenced, the state government had issued a notification amending the First Schedule to the Act including the castes to which the writ petitioners belonged, in the list of OBCs. Therefore, though the writ petitioners were general category candidates when the recruitment notification dated 4.3.2000 was issued, as on the relevant date, namely the date on which the selection process was deemed to have been initiated, they were OBC candidates.
13. Having regard to the fact that the notification including their castes in the Schedule was issued on 7.7.2000 after the recruitment notification, they were not able to show their caste as an OBC nor could they claim the benefit of reservation as OBC candidates when they made applications. However when the Act was amended on 7.7.2000 before the commencement of the written test, they became entitled to claim the benefit of reservation, and they secured the necessary certificates and gave their representations without any delay on 29.8.2000 and 13.9.2000 respectively. Having regard to the principle underlying Section 15 of the Act, we are of the view that the decision of the High Court directing that that the writ petitioners should be treated as OBC candidates does not call for any interference.
14. It should be noted that the selections and appointments in regard to the 2000 advertisement were completed long back and thereafter appointments have been made even in respect of subsequent selections in 2003 and 2006. But it should also be noted that there was no delay on the part of the two candidates, as they had approached the Commission, and thereafter the High Court, without any delay.
15. There was a bona fide doubt as to whether the writ petitioners should be treated as OBC candidates or general category candidates having regard to the fact that they had applied as general category candidates. Therefore, when the Commission treats the writ petitioners as OBC candidates and selects them on account of their marks/rank being more than the last selected candidate in the OBC category, their appointment should not affect or disturb the appointments already made in respect of the 2000 selections or the subsequent selections. The appointment of writ petitioners, if found entitled for selection and appointment with reference to their rank, will be prospective in nature. The Commission is granted four months' time for compliance.
16. Appeals are disposed of accordingly.
8. In our considered opinion, the aforesaid judgment of the Apex Court will not of much assistance to the applicant. However, before this Tribunal has passed order in Shri Priya Varts case (supra), the Honble High Court of Delhi had considered the issue in a number of cases and some of the important cases among them are the following:
1. Tejpal Singh & Anr. Vs. Govt. of NCT of Delhi & Anr., 120 (2005) DLT 117 decided on 24.12.1999.
2. Subhash Chander Vs. MCD, LPA No.72/2002 decided by the Honble High Court of Delhi on 18.8.2006.
3. Smt. Poonam Vs. Govt. of NCT of Delhi & Anr., WP (C) No.8508/2007 decided on 2.2.2009.
4. DSSSB & Anr. Vs. Anu Devi & Anr. and connected cases decided by the High Court of Delhi in WP (C) No.1387/2009 decided on 17.2.2010.
9. In Tejpal Singhs case (supra), the grievance of the applicant was that their certificate of being SC was not considered by the respondents for selection to the post of Teacher including Assistant Teachers in the MCD/ NDMC merely on the ground that their certificates were submitted after the last date specified for the purpose. The High Court has relied upon Chapter 2 of Swamys Compilation on Reservations and Concessions on SC and ST regarding verification of claim of SC and ST. According to para 3 of the said Chapter, provisional appointment can be given to SC candidates when certificates are not produced within the prescribed time. The said instructions says that where a candidate belonging to an SC or ST is unable to produce a certificate from any of the prescribed authorities, he may be appointed provisionally on the basis of whatever prima facie proof he is able to produce in support of this claim, subject to his furnishing the prescribed certificate within a reasonable time. If there is genuine difficulty in his obtaining a certificate, the appointing authority should itself verify his claim through the District Magistrate concerned. Appointment of an SC or ST candidate should not be withheld/delayed pending verification of case status.
10. In Subhash Chanders case (Supra) a Division Bench of the High Court was considering an appeal directed against the order of a Single Judge dismissing the case of the appellant. The appellant therein had filed the writ petition challenging the advertisement dated 24.1.1998 issued by the MCD to the extent that it laid down a condition that the application by a candidate for obtaining OBC certificate should have been made on or before 31.7.1996. The learned Single Judge dismissed the writ petition on the following two grounds:
(i) That till 30.12.1997 no OBC certificate from Delhi had been obtained by the appellant and accordingly he had rightly been considered as a General candidate.
(ii) The subsequent submission of such certificate by the appellant was of no avail in terms of the judgment of Supreme Court in MCD Vs. Veena, 2001 (6) SCC 571.
The High Court after detailed consideration of the case has allowed the plea of the petitioner and set aside the order of the Single Judge. The rationale for fixing a cut off date by the MCD was that the original cut of date for submission of the complete application form as stipulated in the advertisement was the same as the last date prescribed for obtaining the caste certificate. The High court held that there was no rational basis for fixing of cut off date for applying for a OBC certificate particularly when MCD itself later thought it fit to extend the time for such candidates applying for OBC category to obtain the OBC certificate. Therefore, the High Court has held as under:
26. Accordingly we hold that stipulation in the public notice dated 24.1.1998 issued by the MCD that the OBC certificate be submitted by a candidate applying under the category should have been applied for on or before 31.7.1996 is unreasonable. This condition in the said public notice is declared to be invalid and struck down as such. Since admittedly this is the only ground on which the appellants candidature was rejected, the respondent/MCD is required to consider the appellant for the post of Assistant Teacher in terms of the advertisement dated 16.7.1996 ignoring this stipulation. If the appellant is found qualified in all the other respects, the respondent/MCD is bound to offer him the post of Assistant Teacher. It is directed that the MCD will complete the exercise for considering the appointment of the appellant to the post of Assistant Teacher as directed hereinabove within four weeks from today and in any event not later than 15.9.2006. If there are no vacant posts of Assistant Teacher the respondent shall consider appointing the appellant to the first available vacant post of Assistant Teacher that may arise hereinafter. It is made clear that this will not entitle the appellant to any claim for retrospective seniority or emoluments and the seniority of the appellant shall reckon after the last person who already stands appointed as Assistant Teacher.
11. In Poonams case (supra), the petitioner has sought a direction to the respondents to consider her application form for the post of Assistant Primary Teacher in the category of OBC. The DSSSB vide their advertisement notified in the month of July 2007 fixing the last date of submission of the application as 29.10.2007. Applicant has applied for the aforesaid post under the OBC category but the DSSSB did not accept her candidature as OBC candidate as no proof was furnished by her as she belonged to the said category. Her contention was that she was not at fault as she had applied to the concerned SDM on 7.5.2007 to issue the certificate in her favour, i.e., much prior to the date of advertisement for the said post but considerable time was taken by the concerned authorities and issued a certificate on 1.11.2007. The High Court has considered whether the candidature in the category OBC be denied appointment on the ground that certificate of OBC issued by the competent authority from GNCT of Delhi had been submitted by the petitioner later after the expiry of the last date of submission of the application. The High Court held that the petitioner cannot be denied the right to be considered once there is no dispute that she belong to OBC category. Moreover, there was no lapse on the part of the petitioner and she was not allowed to suffer as she has obtained the certificate from OBC category much prior to the date of advertisement and she cannot be made to suffer simply on account of the fact that the authorities have taken considerable time in making available the OBC certificate. Accordingly, petition was allowed in her favour.
12. In DSSSB & anr. Vs. Anu Devi (supra), the common question was whether the respondents in different writ petitions are not entitled for selection to the post of Primary Teacher under the OBC category as they had not submitted the OBC certificate along with the application form by 29 October, 2007, the last date for submitting the application form, but they had submitted the OBC certificate within the time given later on by the notices given by the petitioners. The High Court while considering the aforesaid petition held that the submission of the OBC certificate for reservation under the OBC category cannot be equated with acquisition of the education qualification. The submission of the requisite certificate is only a Ministerial act which cannot be equated with acquisition of educational qualification to become eligible for the post and the submission of requisite certificate. The relevant part of the said judgment is reproduced as under:-
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 case 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 education 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 29t 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.
13. In the present case, there is no dispute that the applicant belongs to OBC category. He, along with his application, had submitted an OBC certificate issued to him on 22.5.2002 wherein it has been confirmed that he belongs to the NAI community which comes under the OBC category and he is outside the creamy layer. The respondents did not accept the said certificate as the same was not issued in the format prescribed by the Govt. of India. He was, therefore, asked to produce a fresh certificate in the prescribed format. He produced the same on 18.5.2010. However, the respondents rejected it on the ground that it was not issued within three years of the cut off date for receipt of the applications. As stated by the applicant, there is hardly any difference between the two OBC certificates produced by the applicant. However, the SSC is also right in its own way that the first certificate produced by him was not in the proper format. That was the reason why they have directed the applicant to produce a fresh certificate. The fresh certificate could be obtained only from a prospective date. Now two issues would arise for consideration (1) whether the respondents could reject him as an OBC candidates and (2) whether the second certificate produced by him in the proper format could be rejected as the certificate regarding creamy layer contained therein was not within three years of the cut off date. As held by the Honble High Court in Tej Pal Singhs case (supra) by the Governments own instructions where a candidate belonging to an SC or ST is unable to produce a certificate from any of the prescribed authorities, he may be appointed provisionally on the basis of whatever prima facie proof he is able to produce in support of this claim, subject to his furnishing the prescribed certificate within a reasonable time. If there is genuine difficulty in his obtaining a certificate, the appointing authority should itself verify his claim through the District Magistrate concerned. Appointment of an SC or ST candidate should not be withheld/delayed pending verification of case status. Again in the case of Anu Devi (supra), the Honble High Court held that the submission of OBC certificate for reservation in OBC category cannot be equated with acquisition of educational qualification. A candidate becomes eligible under the OBC category, the day the caste he belongs is notified by the appropriate authority as a backward class. The applicant in this case has produced two OBC certificates dated 22.5.2002 and 18.5.2010. Both are substantially the same except for the difference in format. Strictly speaking, we do not find fault with the SSC in rejecting his OBC certificate dated 22.5.2002 as the same was not in the prescribed format and the OBC certificate produced by him dated 18.5.2010 was not within three years prior to the cut off date, i.e., the last date of receipt of application as prescribed in the advertisement itself. But the fact remains that the applicant is an OBC candidate and he was issued with an OBC certificate on 22.5.2002 stating that he was not within the creamy layer. It is not the case of the respondents that the aforesaid certificate is not a genuine one. In any case, the applicant submitted a fresh certificate indicating both his status as an OBC candidate and he falls outside the creamy layer.
14. In this regard, let us examine the instructions issued by the Govt. of India, Department of Personnel & Training vide O.M. No. 36033/4/97-Estt. (Res.) dated 25.07.2003. According to the said O.M, while the OBC status of a candidate may change only when the community of the concerned candidate is removed from the OBC list, his/her creamy layer status may change any time. Therefore, it is not possible to determine a fixed validity period for the OBC certificate. In view of the above position, in order to ensure that candidates not eligible to get reservation do not seek reservation, a declaration, in addition to certificate issued by the Competent Authority, may be obtained from the candidates seeking reservation as OBC. In such cases, the Appointing Authority, before appointing a person seeking appointment on the basis of reservation as OBCs should verify the veracity of the community certificate submitted by the candidate and also the fact that he/she does not fall in creamy layer on the crucial date. The crucial date for this purpose may be treated as the closing date for receipt of applications for the post except in cases where crucial date is fixed otherwise. The aforesaid O.M. reads as under:
Subject: Validity period of OBC certificate and verification of Community and 'non-creamy layer' status of OBC candidates.
The undersigned is directed to say that a question has arisen about the validity period of certificates issued to the candidates belonging to other backward classes for the purpose of reservation in services. The OBC certificate consists of two parts first part indicates that the concerned person belongs to a community listed as OBC and the second part indicates that the candidate does not fall in the creamy layer. While the OBC status of a candidate may change only when the community of the concerned candidate is removed from the OBC list, his/her creamy layer status may change any time. In view of it, it is not possible to determine a fixed validity period for the OBC certificate.
2. Every candidate seeking reservation as OBC is required to submit a certificate regarding his/her `OBC status and non-creamy layer status' issued by an authority mentioned in Department of Personnel and Training Office Memorandum No.36012/22/93-Estt.(SCT) dated 15.11.1993. The `OBC status' and /or 'non-creamy layer status' of the candidate, as pointed out in para above, may change after issue of the certificate making him/her ineligible for reservation. In order to ensure that candidates not eligible to get reservation do not seek reservation, a declaration, in addition to certificate issued by the competent authority, may be obtained from the candidates seeking reservation as OBCs in the following format:
I,.. son/daughter of Shri.. resident of village/town/citydistrict..state hereby declare that I belong to the community which is recognized as a backward class by the Government of India for the purpose of reservation in services as per orders contained in Department of Personnel and Training Office Memorandum No.36012/22/93-Estt.(SCT) dated 8.9.1993. It is also declared that I do not belong to persons/sections (Creamy Layer) mentioned in Column 3 of the Schedule to the above referred Office Memorandum dated 8.9.1993."
3. The appointing authority, before appointing a person seeking appointment on the basis of reservation to OBCs should verify the veracity of the community certificate submitted by the candidate and also the fact that he/she does not fall in creamy layer on the crucial date. The crucial date for this purpose may be treated as the closing date for receipt of applications for the post except incases where crucial date is fixed otherwise.
4. It was decided vide this Department's Office Memorandum No.36033/9/95-Estt.(SCT) dated 10.5.1995 that in case of appointments against vacancies reserved for OBCs a clause in the offer of appointment would be inserted to the effect that appointment will be provisional and subject to verification of the community certificate. Since reservation is available only to such OBC candidates who do not fall in the creamy layer, it is necessary that the clause inserted in the offer of appointment should be modified so as to take care of creamy layer status of the candidate also. It is, therefore, decided that the following modified clause may be included in the offer of appointment in place of clause prescribed vide Office Memorandum dated 10.5.1995:
"The appointment is provisional and is subject to the community certificate being verified through the proper channels. If the verification reveals that the claim of the candidate to belong to Other Backward Classes or not to belong to creamy layer is false, his/her services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of Indian Panel Code for production of false certificates."
5. All Ministries/Departments are requested to bring the contents of this Office Memorandum to the notice of all authorities under them for information and compliance.
15. The Department of Personal & Training again, vide O.M. No. 36033/3/2004-Estt (Res) dated 9.3.2004, clarified as under:-
Subject:- Revision of income criteria to exclude socially advanced persons/sections (Creamy Layer) from the purview of reservation for Other Backward Classes (OBCs) The undersigned is directed to invite attention to this Departments O.M. No.36012/22/93-Estt. (SCT), dated 8.9.1993 which inter alia provides that sons and daughters of persons having gross annual income of Rs. 1 Lakh or above for a period of three consecutive years fall within the creamy layer and are not entitled to get the benefit of reservation available to the Other Backward Classes. It has been decided to raise the income limit from Rs.1 Lakh to Rs.2.5.lakh for determining the creamy layer amongst the OBCs. Accordingly, the following entry is hereby substituted for the excising entry against Category VI in the Schedule to the above referred O.M. Category Description of Category To whom the rule of exclusion will apply VI INCOME/WEALTH TEST Son(s) and daughter (s) of
(a) Persons having gross annual income of Rs.2.5.lakhs or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act fro a period of three consecutive years.
(b) Persons in Categories, I, II, III and V-A who are not disentitled to the benefit of reservation but have income from other sources or wealth which will bring them within the income /wealth criteria mentioned in (a) above.
Explanation:
Income from salaries or agricultural land shall not be clubbed.
2. The provisions of this office memorandum take effect from the 4.2.2004.
16. In the above facts and circumstances of the case, we allow this O.A. and direct the respondent SSC to consider the applicant for appointment as an OBC candidate based on the certificate submitted by him on 22.05.2002. If he is found meritorious and otherwise eligible, he shall be selected under the OBC category provided the number of posts determined under the OBC category in the present recruitment have not been fully exhausted. In that case, he shall be appointed with all consequential benefits except back wages as granted to his batchmates. He shall also furnish a declaration prescribed in the aforesaid O.M. dated 25.07.2003. Before appointing him, the Appointing Authority should also verify the community certificate submitted by the applicant and also the fact that he does not fall in the creamy layer on the crucial date i.e. the closing date for the posts in terms of the advertisement for the Combined Graduate Level Examination, 2008. The aforesaid direction shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
3. The Review Applicant has taken the following main grounds in filing the RA:
(i) That OA 2364/2010 was allowed relying upon the orders of the Honble High Court of Delhi in the matters of Tej Pal and Anu Devi, which stand overruled by the Division Bench order of the High Court on 24.01.2012;
That on the cut off date i.e. 2.05.2008, the review respondent was not having valid OBC certificate as the one which he had produced was not issued within three years before the closing date of the notification, the said certificate being dated 22.05.2002; and That if the order dated 1.02.2012 is not reviewed, the review applicants shall suffer irreparable loss.
4. The learned counsel for the Review Applicant has relied upon the judgment of the Honble High Court of Delhi in the case of Delhi Subordinate Services Selection Board Vs. Ram Kumar Gijroya and Others in LPA 562/2011 and in Writ Petition (C) No.8087/2011 Ms. Renu Vs. The Chairman/Secretary, DSSSB and Others decided on 24.01.2012 and that of the Apex Court in the case of Uttar Pradesh Public Service Commission Vs. Stya Narayan Sheohare and Others 2009 (2) SCC (L&S) 265. The relevant part of the order in Ram Kumar Gijroyas case (supra ) is reproduced as under:-
14. The only question thus remains to be adjudicated is whether what has already been held by us as aforesaid qua the eligibility qualification applies also to submission of documents as the OBC Certificate. The distinction is obvious. While the qualification does not exist on the cut off date, the status as OBC exists which as has been held in Tej Pal Singh (supra) is not dependent on the certificate which is but a proof of such status.
5. Respondent in the RA (Original Applicant) has stated in his reply that it is incorrect to state that OA 2364/2010 was allowed relying upon the orders of the Honble High Court of Delhi in the matters of Tej Pal and Anu Devi. It has also been denied that the aforesaid orders of the Honble High Court have been overruled by the Division Bench of the High Court. As regards the claim of review applicant that on the cut off date i.e. 2.05.2008, the review respondent was not having valid OBC certificate, it has been submitted that OBC certificate, once issued, remains valid till it is cancelled or found illegal. The only requirement after issuance of OBC certificate is that after a specified period of time i.e. not less than eight years, the person concerned is required to obtain a certificate that he does not belong to creamy layer. The OBC certificate of the review respondent is dated 22.05.2002 and, as such, it is wrong to state that he was not having requisite OBC certificate on the closing date i.e. 2.05.2008. It has been denied that if the order dated 1.02.2012 is reviewed, the review applicant shall suffer irreparable loss. As regards MA seeking condontation of delay in the filing the RA, it has been stated that the review applicants have failed to give details of day to day delay with reasons.
6. We have heard the learned counsel for the Review Applicant, Shri S.M. Arif and the learned counsel for the Respondents, Shri J.S. Mann. We have also perused the relevant records. It is seen that in the order under review we have mentioned that it is not necessary that an OBC candidate need not have relevant certificate issued necessarily within three years prior to the cut off date of the proposed examination following the judgments of the High court of Delhi in Tej Pal Singhs case and Anu Devis case. However, prior to the issuance of the order under Review on 01.02.2012, the High Court in LPA No. 562/2011 Delhi Subordinate Services Selection Board and Another Vs. Ram Kumar Gijroya and Others decided on 24.01.2012 held a contrary view. The said judgment was not in the knowledge of this Tribunal at the relevant time.
7. In view of the above position, this RA is allowed and OA is restored. The Registry may list the said OA for further consideration and adjudication on 22.03.2013.
8. No order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh