Central Administrative Tribunal - Delhi
Ms. Poonam D/O Sri Raj Kumar vs Govt. Of Nct Of Delhi on 25 August, 2010
Central Administrative Tribunal Principal Bench T.A. No. 52/2010 New Delhi, this the 25th day of August, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Ms. Poonam D/o Sri Raj Kumar R/o H.No.26. Mithan Pannna, Masjid Wali Gali, Mundka Delhi. .Petitioner By Advocate: Shri Jitender Kumar Singh. Versus 1. Govt. of NCT of Delhi Through Secretary, Delhi. 2. The Chairman Delhi Subordinate Service Selection Board, FC-18, Institutional Area, Karkardooma, Delhi-110092. Respondents By Advocate: Shri Ram Kanwar. ORDER By Honble Mrs. Meera Chhibber, Member (J) :
Writ Petition was filed by the petitioner seeking a direction to the respondents to consider her under OBC category for the Post Graduate Teacher (Primary) female. The Writ Petition was transferred to the Tribunal vide order dated 4.5.2010. It was thereafter numbered as TA 52/2010.
2. It is submitted by the petitioner that she belongs to OBC category. She had applied for her OBC certificate on 13.10.2007. In the meantime, respondents issued an advertisement on 16.10.2007 for the post of Trained Graduate Teacher (Primary) [hereinafter referred to as TGT (P)]. The last date for submitting the application was 30.10.2007 but 29.10.2007 being Karva Chauth and the dealing assistant being a female was not available as such certificate could not be issued to her. She was given the OBC certificate on 30.10.2007 and went to submit it whereupon she was told she should submit it along with other documents when notice would be given by the department.
3. She was sent notice dated 18.12.2008 (page 27) calling upon her to submit the documents for processing her candidature. Applicant immediately submitted all the documents including the OBC certificate.
4. It is submitted by the applicant that in the Ist list of selected candidates, last candidate in OBC category had scored 105 marks but in the 2nd list last candidate in OBC category had scored 85 marks. The applicant had also scored 105 marks, yet her name was not shown in the list of selected candidates on the ground that she was considered as UR because her OBC certificate was dated 30.10.2007 whereas the last date was 29.10.2007.
5. Learned counsel for the applicant submitted this issue has been conclusively decided by Honble High Court on 17.2.2010 in batch of matters titled as Delhi Subordinate Services Selection Board & Another Vs. Ms. Anu Devi and Others (W.P.( C ) No.13870/2009 ).
6. Respondents have opposed the TA. They have stated advertisement No. 07/07 and 08/07 was advertised for the post of Assistant Teacher/Teacher (Primary) under post code 164/2007 and 165/2007 respectively. In the advertisement it was clearly mentioned OBC candidates seeking benefit of reservation should submit OBC certificate issued by the competent authority of Government of NCT of Delhi. All other OBC candidates with certificate issued from outside Delhi will be considered for the unreserved category if eligible otherwise. The number of vacancies reserved for various categories has been notified in the advertisement on the on the basis of requisitions furnished by the indenting department. OBC candidates seeking benefit of reservation should submit OBC certificate issued by the competent authority of Government of NCT of Delhi. All other OBC candidates with certificate issued from outside Delhi will be considered for the unreserved category if eligible otherwise. The educational qualification, age, experience and other conditions of eligibility, as stipulated above, shall be determined on the closing date of receipt of application, i.e., 29.10.2007. Candidates who wish to be considered against reserved vacancies and/or to seek age relaxation must submit duly attested copies of relevant certificates issued by competent/notified authority (in prescribed format) along with their application otherwise their claim for SC/ST/OBC/PH/EXSM category will not be entertained and their applications will be considered against Un-reserved (UR) category vacancies.
7. The applicants were further informed that they must attach the following documents along with the application form:-
(i) Indian Postal Order for the requisite amount.
(ii) One self addressed postcard bearing postal stamp of Rs.6/- is to be attached for issue of acknowledgement of the application to the candidates. Candidate must write advertisement number, name of the post and post code number on the post card.
(iii) One self addressed envelop of 12x25 cm sizes with postage of Rs.5/-.
(iv) Two recent passport size colour photograph (front face) out of which one should be pasted (not stapled or tagged) on the space provided in the application form. The second copy of the same photograph should be attested by a Gazetted Officer and be attached carefully with the application form for the purpose of identification of the candidate at any stage of recruitment.
(v) Matriculation/Secondary certificate or equivalent in support of their declaration of age.
(vi) Degree or Diploma or other certificate in support of claim of education qualification (copies of year wise mark sheets from matriculation onwards) experience/age relation etc.
(vii) Community/Category Certificate/Physically Handicapped/Ex-Serviceman certificate/Govt. Employees certificate issued by notified/competent authority, if benefit claimed under any of the above categories.
8. The applicant failed to submit the prescribed OBC certificate by the competent authority of NCT of Delhi. She had done her schooling from the Haryana Board which is bound by the term and conditions of the advertisements processed the selection at par. In case of admissibility of benefit of reservation in OBC category, only such candidates were considered for benefit of those who were in possession of OBC certificate issued by the authorities of GNCT of Delhi and have enclosed the certificate with their application forms.
9. They have further stated that the advertisement advising the OBC category candidates of NCT of Delhi to enclose OBC certificate issued by the authorities of GNCT of Delhi with their application is based on the fact that the other state OBC candidates are not eligible to seek benefit of reservation in OBC category for posts advertised by the Board.
10. They have explained that Government of India to whom a reference was made vide Services Department letter No.F.19/(14)/2009/S-IV/540-41 dated 31.3.2009 vide its letter No.F.No.14011/14/2009-Delhi-I dated 3rd August, 2009 has forwarded copies of Office Memorandums No.36033/4/97-Estt.(Res.) dated 25th July, 2003 and No.36011/3/2005-Estt. (Res.) dated 9th September, 2005 of Department of Personnel and Training annexed as Annexure R-1 (colly). As per clause 3 of OM dated 25th July, 2003, the instructions read as below:-
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 application for the post except in cases where crucial date is fixed otherwise.
11. That to expedite the long pending recruitment, the Board allowed all the applicants irrespective of their eligibility to appear in the examination based on the information furnished by them in the application form with pre-security of their credentials, as such the petitioner, who had indicated her category as OBC in application form, appeared in the examination with admit card being category as OBC. As per her performance in Part II (Descriptive) examination, she obtained 105/200 marks which were less than the marks of the last selected UR candidate but higher to the marks of last selected OBC candidate.
12. The applicant had applied as OBC but her certificate of OBC was issued by Government of NCT of Delhi after the cut off date. Accordingly, she was considered in UR category. The last selected candidate in UR had got 120/200 marks whereas applicant had scored only 105 marks. Moreover, in UR category she was overaged as such she could not be selected. They have further stated that Board had initially invited applications in the month of September, 2007. It finally appeared in Employment News/Rozgar Samachar on 6-12 October, 2007. They have thus prayed that the OA may be dismissed.
13. We have heard both the counsel and perused the pleadings as well as judgment of Honble High Court of Delhi in the case of DSSSB Vs. Ms. Anu Devi and Others decided on 17.2.2010.
14. It would be advantageous to quote the reasoning given by Honble High Court while dismissing the Writ Petition of DSSSB:-
18. The petitioners had the power to extend the time and in the circumstances, the logical inference shall be that the time to submit the OBC certificates was extended and within the extended time, the certificates were submitted by the respondents/candidates. As also held in Poonam Chauhan (supra), the advertisement did not specify that the OBC certificates submitted after the last date for submission of application form shall not be considered and the applications shall be rejected. The petitioners have not construed such a restriction in their advertisements and therefore, extended the time and gave notices demanding rectifying the deficiencies and directed the candidates to submit the appropriate OBC certificates, which were applied by the candidates prior to last date for submission of application forms but which were given to the candidates by the authorities after the last date for submission of application forms, which were submitted by them within the extended time given by the petitioners.
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.
21. The learned counsel for the petitioner has also emphasized that selecting the respondents/candidates in different petitions will be discriminatory viz-a-viz other candidates who might not have applied, on account of not having the OBC certificate by the closing date for submission of the application form that is 29th October, 2007. The plea of the petitioners is based on surmises. No particulars of any candidate has been given who did not have the OBC certificate by the closing date of 29th October, 2007 and therefore, he had not applied for selection to the said posts for which the respondents/candidates had applied.
15. It is also relevant to note that the respondents in the above case had also applied pursuant to the advertisement dated 6-12 October, 2007 for the post of Teacher (Primary) and last date was 29.10.2007. Smt. Anu Devi had secured 103 marks and was not in the select list of the OBC category. She was issued notice dated 18.12.2008 for submitting the certificate. She submitted the certificate within the extended period but it was issued after the cut off date. She was considered in UR category. These facts would show that the petitioner before us was identically placed. The question considered by the Honble High Court 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.
16. From above, it is clear that all the contentions, which are raised by the DSSSB before us were raised before the Honble High Court also but Honble High Court dismissed the Writ Petitions by a detailed judgment upholding the directions given by the Tribunal to the DSSSB to declare the result of candidates and to process their applications with all benefits as admissible in law.
17. The above judgment would squarely cover the case of the petitioner before us also. We, therefore, allow the OA with a direction to the respondents to declare the result of the petitioner in OBC category subject to fulfillment of the conditions and process the case further within a period of 3 months from the date of receipt of a copy of this order. No costs.
(DR. RAMESH CHANDRA PANDA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh