Central Administrative Tribunal - Delhi
Shri Mahesh Kumar vs Union Of India on 2 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.2364/2010 Reserved on 25.11.2013 Pronounced on 02.12.2013 HONBLE MR. ASHOK KUMAR, MEMBER (A) HONBLE MR. RAJ VIR SHARMA, MEMBER (J) Shri Mahesh Kumar S/o Singh Ram Singh R/o D-II/159, Sec-7 Rohini, Delhi-110085. Applicant (By Advocate: Mr. J.S. Mann) VERSUS 1. Union of India Through Secretary, Staff Selection Commission Northern Region, Department of Personnel & Training 5th Floor, Block No.12, CGO Complex Lodhi Road, New Delhi. 2. Secretary, Ministry of Personnel, Public Grievance & Pension 5th Floor, Block No.12, CGO Complex Lodhi Road, New Delhi-3. Respondents (By Advocate: Mr. S.M. Arif) ORDER MR. ASHOK KUMAR, MEMBER (A):
The applicant has challenged the impugned letter dated 06.07.2010 at Annexure-A/1 stating inter alia that his OBC certificate dated 22.05.2002 was not acceptable since it was in a format other than the format prescribed for Central Government posts as per notice of Combined Graduate Level Examination (CGLE in short), 2008 and that the subsequently produced OBC certificate dated 18.05.2010 was not acceptable for the said examination, the same having been issued after the prescribed cut off date of 02.05.2008.
2. According to the facts stated in the OA, the applicant belongs to NAI Community by birth and had obtained OBC certificate dated 22.05.2002 from the office of the Deputy Commissioner (North-West District), Delhi. He applied for the post of Junior Accountant in March-April 2008 through Respondent No.1 in Scheme B under CGLE, 2008. He had attached the said OBC certificate with the application form. He appeared for the preliminary examination on 27.07.2008 and was declared successful. He then appeared in the main examination in Scheme B and result was declared on 23.04.2010. Selected candidates were recommended for appointment. Applicant was one of the selected candidates, but his roll number appeared in the list of Withheld cases. On 06.05.2010, Respondent no.1 issued memorandum dated 06.05.2010 to the applicant to furnish OBC certificate in Central Government Proforma. Applicant, in continuation of earlier OBC certificate dated 22.05.2002, applied to the very same office of the Deputy Commissioner (North-West District), Delhi for issue of fresh OBC certificate in Central Government Proforma on 13.05.2010. On 18.05.2010, on the basis of previous OBC certificate, a fresh OBC certificate in Central Government Proforma dated 18.05.2010 was issued by the very same office. The applicant submitted fresh OBC certificate through his application, which was received on 21.05.2010 and ultimately he was advised to seek status through RTI application dated 04.06.2010. He received reply to his application under RTI Act on 09.07.2010 wherein he was informed that the earlier OBC certificate dated 22.05.2002 not being in the format prescribed for Central Government posts was not acceptable and that the OBC certificate dated 18.05.2010 having been issued after the prescribed cut off date of 02.05.2008 was also not acceptable. According to the applicant, the present issue is settled by the judgment of the Honble Apex Court in Uttar Pradesh Public Service Commission Versus. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265 and the decision of the Tribunal dated 16.03.2010 in OA No.2479/2009, Shri Priya Vart Versus Chairman, DSSSB and another. Applicant has stated that filed the present OA challenging denial of his fundamental right of employment. He has also stated that he belongs to NAI Community and is entitled to the benefit as per the OBC certificate, which has been issued on 22.05.2002, i.e. nearly six years before the impugned advertisement of 02.05.2008 and further that the fresh OBC certificate dated 18.05.2010 in Central Government Proforma was issued in continuation of the earlier OBC certificate. The other ground raised is that in both the OBC certificates dated 22.05.2002 and 18.05.2010, there is no substantial difference except that the later certificate is in Central Government Proforma and certify that the applicant does not belong to creamy layer. No objection was earlier raised on behalf of respondents and he was allowed to appear in the said examination. Now after having been declared successful at all stages, his appointment has been withheld arbitrarily and unlawfully merely on the pretext of the OBC certificate not being issued in prescribed proforma before the cut-off date. Based on above facts and grounds the applicant has sought the following relief:-
(a) To quash the impugned order dated 6-7-10 and respondents may be directed to treat the applicant in OBC category and select the applicant and appoint him on the post of Junior Accountant w.e.f. from the date on which other candidate who appeared for selection have been appointed in the interest of justice and equity: and/or
(b) Respondents may be directed to make payment to the applicant of pay and other perquisites attached to the post w.e.f. the date on which other candidates those have been selected in the same examination have been paid; and/or Pass any other and further order as this Honble CAT may deem fit and proper in the facts and circumstances of the case, in favor of the applicant and against the respondent.
3. Respondents in their counter reply have stated that the applicant has cleared Tier I and Tier II examination of CGLE, 2008 and became eligible for the interview. However, before the interview, when the testimonials of the applicant were verified and it was found that OBC certificate submitted along with application and OBC certificate dated 22.05.2002 submitted along with application was not in the prescribed format for Central Government Recruitment and he was asked to furnish a fresh certificate in the prescribed format, which he did on 18.05.2010, much beyond the cut off date of 02.05.2008 prescribed for the said examination. The cut off date is absolutely essential as per extant instructions of the Government on reservation for OBC candidates, which provides that candidate should first of all belong to a community notified by the Government of India on the cut off date and that he should not have remained in the creamy layer continuously for a period of three years, otherwise he would be rendered ineligible for consideration against a post reserved for the OBC unless and until OBC certificate issued within three years before the cut off date is produced by the candidates. Hence the Commission cannot accept the certificate submitted earlier and the subsequent certificate as well having not been issued within three years of the cut-off date, which thus render him ineligible to be considered against OBC vacancy. His result was, therefore, withheld on account of the reason that he could not submit the said certificate in proper format and his subsequent certificate filed was after the cut off date. Referring to the judgments cited by the applicant, the counter affidavit states that all of them relate to different back grounds and have been decided on their own merit and, therefore, cannot be considered in this OA on merits. Note II under para 20 clearly stipulates that candidates candidature at all stages till nomination are provisional and, if any flaw is detected at any stage before nomination or after nomination, the candidature is liable to be cancelled.
4. This OA has been heard earlier and was disposed of vide order dated 01.02.2012. Subsequently, a review application was filed bearing RA No.139/2012 in the said OA and RA was allowed as per para-6 of the order, which is as follows-
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.
5. The matter was, therefore, reheard when Mr. J.S. Mann argued on behalf of applicant and Mr. S.M. Arif argued on behalf of respondents. Referring to the facts and grounds stated in the OA, learned counsel for applicant placed reliance on the judgment cited in the OA itself as well as to para 18 of the judgment of the Honble High Court of Delhi in Writ Petition (C) No.7304/2010, which is delivered on May 06, 2013 in the case of Manjusha Banchhore Versus Staff & another. Referring to para 18 of the said judgment, he stated that in the light of this judgment, benefits of OBC for the purpose of said examination should be accorded to the applicant and that the relief sought in the OA be granted to him.
6. Learned counsel for respondents argued that the claim of the applicant is wrong and not in the light of the facts stated in the OA. The chronology of events that has been stated in the counter reply precludes him from getting the benefit of the certificate issued in Central Government Format, which was issued much after the cut off date of 02.05.2008. He also argued that note II under para 20 of the notice of the examination had to be taken into account because the basis of holding the examination and the very candidature of the applicant remained provisional and the respondents were fully within their rights to point out the flaw, if any, and therefore took action as communicated in the impugned communication dated 06.07.2010 at Annexure-A/1. It has been contended that no discrimination of any kind has been meted out to the applicant. A copy of the judgment of the Honble High Court of Delhi dated 10.04.2013 in Writ Petition (C) No.405/2013 was produced specifically referring to paragraphs 10, 11 and 12 of the judgment which are as follows:-
10. So far as the judgments relied upon by the respondents are concerned, it is to be noticed that in Ram Kumar Gijroya (supra), the decision in Hari Singh (supra) was not noticed at all nor was the judgment of the Supreme Court in Mrs. Valsamma Paul (supra), highlighting the necessity for adopting a liberal approach in such matters, even noticed. The Court was persuaded to hold as it did on the reasoning that, a number of other OBC candidates, though otherwise eligible but not in possession of the OBC Certificate by the cut off date, did not apply under the belief that being required to enclose the OBC Certificate along with the application and being not in possession thereof, their applications would be deficient and not entertainable. Such reasoning, in this Courts opinion, would apply squarely in the case of candidates who are not qualified but subsequently acquire qualifications. It cannot have blanket application to those who possess the status but are caught in the cleft in the policy changes of the government in regard to the validity of their certificates. As noticed in Hari Singh (supra) and Ms. Anu Devi (supra), the certificate is only evidence of what always existed, i.e. the status of the candidates as belonging to the OBC category who are not from the creamy layer. It is not as if he acquires such status subsequent to the closing date or subsequent to the commencement of the recruitment process, as in the case of a candidate who fulfils the academic qualification later. This liberal approach was noticed and applied in Hari Singh (supra) where the Court even commented on the Central Governments policy of accepting the application even where applications of candidates are processed regardless of the defect or validity of the certificate. It would be pertinent to notice in this context that on 01.06.2011, the SSC itself has issued an Office Order/Clarification, which states that:
4. Accordingly, it has now been decided by the Commission that the OBC certificate issued by the competent authority as prescribed by DOPT, in the prescribed proforma, issued up to the last Tier of examination will be accepted by the Commission with effect from 06.05.2011, the date of receipt of the clarification from DOPT. The crucial date in this regard will be determined as follows:
(i) If the last tier is the written examination, the date of examination/last paper.
(ii) If the last tier is the interview, the date of completion of interview.
(iii) If the last tier is skill test/computer proficiency test/data entry test, the date of completion of such test.
11. In the light of the above order, it is held that the production of certificates dated 25.01.2011 before the last stage of the selection process, i.e. interview on 01.02.2011 conforms to the Office Order No. 1/4/2010-P&P. In any event, subject to this verification by the respondents, the petitioners applications are entitled to be further processed. Similarly, the production of the acceptable format of the OBC certificate in Anil Kumars case also merits consideration of his candidature and further processing, subject to verification.
12. In the light of the above discussion, directions are issued to the respondents to process the candidature of the two writ petitioners in W.P.(C) 405/2013 and W.P.(C) 5416/2012 and take into consideration the subsequent OBC certificates produced by them and intimate each of them directly about the outcome, within four weeks. In case they are selected and have to be appointed and there is consequently impediment in their being accommodated in one or the other batch for training, consequent directions are issued to the respondents to accommodate these petitioners at the relevant slot in the succeeding batch or batches of recruits for the purpose of training. The writ petitions and pending application are allowed in the above terms.
(emphasis supplied)
7. Having noted the detailed pleadings and documents, we have also given due consideration to the arguments made by learned counsel for parties. We observe that the facts are admitted although the ground taken by the parties are not similar.
8. We find at Annexure-A/2, which is a copy of the certificate issued on 22.05.2002 from the office of the Deputy Commissioner (North-West District), Delhi, that the applicant belongs to NAI Community which is recognized as a backward class under the Govt. of N.C.T. of Delhi notified vide Notification No.F.28(93)/91-92/SC/ST/P&S/4384 dated 20.01.95 published in the Gazetee of Delhi Extraordinary Part-IV dated 20.01.95 and/or his family ordinarily reside(s) at 205, NAHARPUR, ROHINI, DELHI Union Territory of Delhi. It also certifies that he does not belong to the persons/sections(Creamy layer) mentioned in column 3 of the Schedule to the Govt. of India, Department of Personnel and Training O.M. No.36012/22/93-Estt.(SCT) dated 08.09.1993. Annexure-A/5 is a communication dated 18.05.2010 issued by the same office addressed to the applicant certifying that the applicant belongs to the NAI Community, which is recognized as a backward class under the Government of India, Ministry of Welfare Resolution No.12011/7/95-BCC, dated the 24th May, 1995 published in Gazette of India, Extraordinary Part I Section I, No.88 dated 25th May 195 and Resolution No.12011/68/68-BCC dated 27/10/99 published in the Gazette of India Extraordinary Part I, Section I, No.241 dated 27/1099 and Resolution No.12011/36/99-BCC dated 4/4/2000 published in the Gazette of India, Extraordinary Part I, Section I, No.71 dated 4/4/2000 and Resolution No.12011/1/2001-BCC dated 9/6/2003 published in the Gazette of India, Extraordinary Part I, Section I, No.151 dated 9/6/2003. It also certifies that he does not belong to the persons/sections(Creamy layer) mentioned in column 3 of the Schedule to the Govt. of India, Department of Personnel and Training O.M. No.36012/22/93-Estt.(SCT) dated 8/9/1993 which is modified vide DOPT OM No.36033/3/2004-Estt. (Res) dated 9/3/2004. We find that both certificates are thus effectively the same and there is no material difference on record in their content with regard to the status of the applicant with respect to his belonging to NAI Community, which is recognized as a backward class, and further that he was not in the creamy layer as per the afore referred OM of DOP&T. It is, therefore, apparent that there is no denial of the fact that the applicant belonged to OBC community and both certificates categorically certify the same, as also that he was not in the creamy layer.
9. Annexure-A/4 is a letter dated 06.05.2010 issued by the respondents-SSC to the applicant requiring him to furnish the specific certificates/documents within 10 days failing which his candidature was liable for cancellation. This letter specified that the OBC certificate of the applicant was not furnished in Central Government Proforma, as per Notice issued as on or before 02.05.2008. The applicant was required to furnish the same and it is further stated that OBC certificate issued beyond 02.05.2008 is not acceptable. It appears, therefore, that probably the only purpose of issuing this notice would be to provide an opportunity to the applicant to produce the OBC certificate in the Central Government Proforma issued as on or before 02.05.2008, if such certificates were available with him.
10. The respondents have mainly objected on the ground that the certificate was not in proper format of the Central Government and that the certificate subsequently provided in the required proforma was later than 02.05.2008. It does not accept or controvert that the applicant belongs to NAI Community falling within the category of OBC.
11. Applicant has provided a copy of the order dated 16.03.2010 in OA No.2479/2009 in support of his contentions. The Tribunal in its afore noted order held as under:-
Through this OA, applicant assails respondents inaction to deny appointment to the post of Driver (DTC) on the basis that the OBC certificate was submitted after the cut-off date. It is no more res integra that the present issue is well covered by the decision of Apex Court in Uttar Pradesh Public Service Commission v. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265.
2. In the light of above, applicant, who has applied for OBC certificate much before the cut-off date, non-submission of certificate before the cut-off date would not be an impediment.
3. OA is allowed. Respondents are directed to offer appointment to the applicant in the OBC category as Driver in Delhi Transport Corporation, with all consequences as admissible in law, within a period of two months from the date of receipt of a copy of this order. No cost.
12. The relief claimed by the applicant in the OA was granted in terms of the judgment in Uttar Pradesh Public Service Commission v. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265 of the Honble Apex Court.
13. The third judgment referred by the applicant is of Manjusha Banchhore Versus SSC & another (supra). After discussing the judgment in (i) LPA No.562/2011 Delhi Subordinate Service Selection Board & Anr. vs. Ram Kumar Gijroya & ors. decided on January 24, 2012 and (ii) WP (C) 1656/2011 Krishan Kumar vs. UOI & ors. decided on October 12, 2012, the Honble High Court recorded as follows in para 18 of the order:-
18. Besides, the law declared in Ram Kumar Gijroyas Case (supra) and Krishna Kumars case (supra) overlooks a fundamental point. The two decisions seem to be influenced by the line of reasoning found in various decisions that eligibility has to be obtained prior to the cut off date. In these decisions the certificates such as degrees etc. were issued after the prescribed cut off dates by which applications had to be filed. The two decisions over looked that a person becomes a member of a caste by birth and the certificates are not akin to certificates certifying that a person has acquired a degree. Caste Certificates are more in the nature of a memorandum recording a fact pertaining to birth. This was the view correctly taken in the decision dated February 17, 2010 disposing of WP(C) 13870/2009 Delhi Subordinate Services Selection Board & Anr. vs. Anu Devi & Anr. The Division emphasized that reservations for SC, ST and OBC are beneficial legislations and that submission of an OBC certificate to claim reservation could not be equated with acquisition of Educational Qualifications.
(emphasis supplied)
14. Respondents counsel, on the other hand, placed reliance on the judgment of Honble High Court of Delhi in the case of Anil Kumar Versus Union of India in WP (C) 405/2013. The Honble High Court of Delhi noted in para 7, the decision of the Division Bench in the case of DSSSB and Anr. v Ms. Anu Devi and Anr. (W.P.(C) 13870/2009) and observed as follows in paras 11 and 12 of the order:-
11. In U.P.Public Service Commission (Supra) relied on by the petitioners it was held that whenever (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 was amended by including any caste/classes in the list of OBC in the Schedule I, then the date of amendment to the act would be the date of commencement of the act in regard to such caste/class inserted by amendment. In this case the applicants were general category candidates when recruitment notification dated 4th March, 2000 was issued, however, the act was amended on 7th July, 2000 before the commencement of written test on 4th August, 2000 and therefore the candidate belonging to OBC became entitled to claim benefit of reservation and they also secured necessary certificate and gave their representations without any delay on 29th August, 2000 and 13th September, 2000 and in these circumstances it was held that they were entitled for reservation.
12. The learned counsel for the respondents, however, have contended that the respondents belong to OBC which caste were notified as backward classes prior to the last date for applying. In the circumstances, it cannot be held that the eligibility on account of being a backward class was acquired by the respondents after the last date for applying for the selection. It is asserted that acquisition of certificate in order to demonstrate that they belong to backward classes and the reservation in that respect cannot be equated with acquiring the educational eligibility and non submission of OBC certificates by the last date for application and submitting later on after it was demanded by the petitioners within the reasonable time will not be such a lacunae which should be a ground to deprive them of their right which has been conferred on the basis of a beneficial piece of legislation which is (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. It is contended by the respondents that the petitioners had the power to extend the time to submit the caste certificate which was done by them by giving notice and demanding the certificates by extended time stipulated in the notices. In Jnan Ranjan Sen Gupta and Ors (Supra) while dealing with the ambit of erection of structure on land under Calcutta Thika Tenancy Act the Supreme Court had held that it was a piece of beneficial legislation conferring certain rights upon the tenancies and in dealing with such provisions of law something which is not already there cannot be read in it, as reading such a thing which is not in the provision will lead to imposing a restriction upon the rights of the class of tenants by judicial interpretation which is not permissible in absence of express words to that effect or necessary manifest intendment. (emphasis supplied)
15. We find that in Manjusha Banchhore case, the decision is clear that caste certificates are more in the nature of a memorandum recording a fact pertaining to birth and that similarly in the case of Anu Devi also, the view taken was that submission of OBC certificate to claim reservation could not be equated with acquisition of educational qualifications. It was further held that the candidate has become eligible from the date on which certificate was issued and further that delay on the part of the authorities in providing OBC certificate cannot amount to the candidate being declared ineligible under the OBC category. Although in the present case, delay is not on the part of the authorities, yet the delay that took place was on the part of the applicant only to the extent that he produced the certificate declaring him OBC in the prescribed format after the cut-off date. On the other hand, the certificate given earlier by the same authorities had certified him as an OBC candidate on 22.05.2002, much before the cut-off date of 02.05.2008. Therefore, what is standing in the way of the applicant in getting benefits of OBC reservation by way of his candidature for the GLC, 2008 is the format of the certificate. This aspect of late submission of a certificate was dealt with by the Honble Delhi High Court in paragraph 12 of the judgment in DSSSB & Anr. Vs. Anu Devi & Anr. (supra) wherein the Division Bench had observed that non-submission of OBC certificates by the last date for application and submitting later on after it was demanded will not be such a lacunae which should be a ground to deprive them of their right conferred on the basis of a beneficial piece of legislation. The fact is established by both the certificates produced by the applicant that he belonged to the OBC category and that he did not belong to the creamy layer. As held in the case of Hari Singh (supra) and Anu Devi (supra), the certificate is only evidence of what always existed, i.e. the status of the candidate as belonging to the OBC certificate and not in the creamy layer.
16. In view of afore noted judgments and the facts noted above, we hold that the candidate had been certified to be an OBC candidate in 2002 itself as well as in the certificate dated 18.5.2010 and, therefore, deserves to be considered for selection and appointment under the OBC category, if found otherwise eligible. Applicant shall be entitled to all consequential benefits except back wages as granted to appointees of the same batch. These directions be complied with by the respondents within a period of two months from the date of receipt of a copy of this order.
17. OA is disposed of with afore noted directions. No costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /jk/