Central Administrative Tribunal - Delhi
Umesh vs Govt. Of Nctd on 8 April, 2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3585/2015
Reserved on: 07.03.2016
Pronounced on: 08.04.2016
Hon'ble Shri Sudhir Kumar, Member (A)
Hon'ble Shri Raj Vir Sharma, Member (J)
Umesh
Age 26 years,
D/o Baljeet,
D-3/280 Sultanpuri,
Delhi-110086.
-Applicant
(By Advocate: Shri Naresh Kaushik)
Versus
1. Govt. of NCT Delhi through
Its Chief Secretary,
Delhi Secretary,
I.P. Estate.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
F-18, Karkardooma Institutional Area,
New Delhi.
3. The Commissioner,
South Delhi Municipal Corporation,
Dr. D.P.M. Civil Centre, Minto Road,
New Delhi.
...Respondents.
(By Advocates: Ms. Harvinder Oberoi & Mr. R.K. Jain)
ORDER
Per Sudhir Kumar, Member (A):
The applicant of this OA has challenged the rejection of her candidature by the respondents through the impugned Office Order dated 16.04.2015 on the sole ground that her OBC Non-Creamy Layer 2 OA No.3585/2015 certificate was issued after the cut off date for receipt of applications, which was 15.01.2010 as per the original Advertisement. She has challenged such rejection on the further ground that when the original Advertisement dated 11-16.12.2009 itself was amended vide Notice dated 13.09.2011, and the last date for submission of fresh application forms was extended and fixed as 17.10.2011, the date for determining the eligibility was wrongly continued to be fixed as the original cut off date on 15.01.2010. She has further submitted that it is evident from the language of the Advertisement that the cut off date of 15.01.2010 was fixed only for determining eligibility in respect of (i) age, (ii) educational qualification, and (iii) experience, and not in respect of (iv) reservation category. Her grievance is that in view of the new amended Advertisement, when the respondents had invited and accepted fresh applications along with relevant documents, and the higher prescribed fees, they could not have insisted on the reservation category certificate being of a date prior to 15.01.2010. She has, therefore, assailed the actions of the respondents as being totally arbitrary, illegal, unreasonable, unjust and improper, and unsustainable in law, and liable to be quashed.
2. The applicant belongs to Jat Community, which is recognized as OBC by the Govt. of NCT of Delhi through its Notification dated 20.01.1995, thereby conferring upon the Non-Creamy Layer members of 3 OA No.3585/2015 that community the benefit of reservation in employment, as well as other benefits. As was later pointed out during arguments, this status of Jat Community being included under OBC category within Govt. of NCT of Delhi has not undergone a change even after the Hon'ble Apex Court judgment declaring the Non-Creamy Layer members of the Jat Community to be ineligible for reservations under the OBC category for Central Government jobs, through its judgment in the case of Ram Singh & Ors. vs. Union of India: (2015) 4 SCC 697.
3. Vide their Advertisement No.004/09, the Respondents had initiated recruitments for a number of posts of various departments of Govt. of NCT of Delhi/Autonomous Bodies, including the posts of Teachers (Primary) in MCD, under Post Code 70/09, in respect of which the applicant was a candidate. When this Tribunal, through its order dated 20.07.2010 passed in OA No.121/2010 and OA No.151/2010, directed for bringing amendments in the age limit, and, in the meanwhile, the post of Teacher (Primary) concerned, coming under Post Code 70/09, had got upgraded from being a Group-C post to being a Group-B category post, after implementation of the recommendations of the VI Central Pay Commission (VI CPC, in short) for the employees of the Govt. of NCT of Delhi, and its Autonomous and Local Bodies, the respondents fixed a fresh date for submission of application forms for the now upgraded Group 'B' category posts till 17.10.2011, through their Notice dated 13.09.2011 (Annexure A-3). The applicant had applied only thereafter, through Annexure A-4 (Colly.), along with a Postal order of Rs.100/- sent through her application dated 03.10.2011, enclosing 4 OA No.3585/2015 therewith her OBC Non-Creamy Layer certificate dated 18.03.2010, a copy of which has been filed by her at page-48 of the paper book of the OA.
4. Respondents accepted the application form provisionally and issued her an Admit Card for her taking the examination for the post of Teacher (Primary) to be held on 02.02.2014, though somehow the Admit Card was issued for ST category through Annexure A-5, although the applicant had applied under the OBC Non-Creamy Layer category. The applicant has submitted that she made several representations to the authorities concerned to change her category from ST to OBC, but of no avail. Ultimately, when the respondents declared the result of the concerned examination on 05.12.2014 (Annexure A-6) for the concerned Post Code 70/09, the applicant found her name appearing in the ST category, instead of OBC category, and she further learnt that her candidature had been kept in abeyance, at Sl. No.365 out of 603 similar candidates, with the legend that "all relevant documents/certificates were required" appearing against her name. Verification of the applicant's documents followed, and the Final Result dated 16.04.2015 was declared through the impugned Annexure A-1, whereby the applicant's candidature was rejected, and her name appeared at Sl. No.19 out of 26 similar candidates, in which, though her category was still wrongly shown to be ST, the comments against her name recognized her OBC category correctly, and stated "OBC certificate issued after the cut off date".
5OA No.3585/2015
5. The applicant is aggrieved that when she had applied only pursuant to the amended Advertisement dated 13.09.2011, for which the window of dates for applying was from 16.09.2011 to 17.10.2011, and she has obtained 69.75% marks which are more than the marks secured by the last candidate in the OBC Non-Creamy Layer selected category at 69.25%, she was wrongfully denied her right to be considered for appointment to the concerned post, merely on the ground that her OBC Non-Creamy Layer certificate dated 18.03.2010 had been issued after the cut off date, which was retained to be on the original cut-off date of 15.01.2010. She has assailed the action of the respondents in rejecting her candidature being violative of her fundamental rights under Articles 14, 16, 21 of the Constitution. She has further submitted that the cut off date could have been fixed only for the purpose of determining the eligibility of the candidates with regard to (i) educational qualifications,
(ii) age, and (iii) experience, but not for the submission of (iv) Non Creamy Layer certificate of OBC category. She has taken the further ground that the respondents have failed to appreciate that such an OBC certificate as prescribed only certifies certain facts regarding her economic status on a given date, while the status of OBC category was conferred upon her by the Govt. of NCT of Delhi Notification dated 20.01.1995 (supra), which status she had acquired by birth and did not change.
6. The applicant has taken the further ground that the respondents have erred in not appreciating the fact that the benefit of reservation is conferred on a person by virtue of birth in a particular caste, and by way of Notification of that caste as being eligible for reservation, and, 6 OA No.3585/2015 therefore, the applicant should not be deprived of that caste status, and inference had to be drawn in favour of the applicant, in the absence of any express terms in the Advertisement, particularly when she has secured more marks than the last selected candidate in the OBC category. She has taken the further ground that when the respondent themselves had vide their Notice dated 13.09.2011 issued an invitation for accepting fresh applications, along with the relevant documents, and the prescribed higher fees of Rs.100, which was increased from being Rs.50/- earlier, in the given scenario, in terms of the new amended Advertisement, the respondents could not have insisted on a candidate possessing his/her reserved category certificate issued prior to 15.01.2010, which was highly arbitrary. In the result, the applicant had prayed for the following reliefs:-
"i) Allow the present Original Application;
ii) Direct the respondents to consider the candidature of the applicant for the post of teacher (primary), in the OBC category to be undertaken in pursuance of the Advertisement No.004 of 2009 pertaining to post code No.70/09.
iii) Consequently, direct the respondents to undertake all the necessary steps in this regard.
iv) Pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
7. While issuing notice on 28.09.2015, when the learned counsel for the applicant had pressed for grant of Interim Relief, it was ordered that "Any selection made shall be subject to the outcome of the OA".
8. Counter reply on behalf of Respondents No. 1 & 2 was filed on 02.03.2016. In this counter reply, it was pointed out that after the last date of applying against the Post Code 70/09 against the 4500 then 7 OA No.3585/2015 advertised posts was over, the posts concerned had themselves got upgraded from being Group C category posts to Group B category posts, after implementation of the VI CPC recommendations, and, therefore, the user department had modified the Recruitment Rules (RRs, in short) for the now upgraded posts, and sent the revised RRs, according to which English was to be a compulsory subject, and was required to be passed at Sr. Secondary Level, and the number of posts was also revised from 4500 to 6500, as per the vacancy position. An Addendum was issued in this regard, and further fresh candidates were permitted/allowed to apply upto 17.10.2011, but since the applications of those who had applied before the original cut off date fixed on 15.01.2010 were also to be considered together, the cut off date was retained unchanged as 15.01.2010.
9. It was denied that the respondents have erroneously rejected the candidature of the applicant, and it was submitted that the applicant was supposed to have all the requisite qualifications and necessary certificates concerned on the cut off date, and since the applicant had also applied for seeking reservation under the Jat Community as a Non- Creamy Layer OBC, she should have been in possession of the requisite Non-Creamy Layer OBC caste certificate on the cut-off date, which was the cut-off date for all the candidates, even after the Corrigendum Advertisement.
10. It was submitted that it was more so required to have been issued before the cut-off date prescribed in view of the Hon'ble High Court's 8 OA No.3585/2015 judgment in the matter of Delhi Subordinate Services Selection Board & Anr. vs. Preeti Balyan & Anr. in W.P. (C) No.3397/2012, in which it was clearly held that mandating that the eligibility cut off date should be shifted to October 17, 2011, would amount to modifying the track on which the recruitment process was undergoing, and would, as a result, amount to making ineligible many candidates who would have crossed the maximum age limit of 30 years by that later date. It was also noted by the Hon'ble High Court that the vacancies pertained to the year 2010, which explains the cut off date of 15.01.2010 being maintained, and after holding that cut off date as final, the Hon'ble High Court had disposed of the Writ Petition pending before it.
11. It was denied that the action of the respondents in rejecting the candidature of the applicant is in any manner violative of her fundamental rights. It was further submitted that it is the requirement of any selection process that the candidate should be in possession of the required certificates as on the cut off date, and in case the candidate does not possess the requisite certificates, he/she cannot be allowed to participate further. It was further submitted that respondents have uniformly applied the same cut-off date to all candidates, and it is only with respect to that cut off date (15.01.2010) all the applications had been considered.
12. The Respondent No.3-SDMC filed their short counter reply on 02.02.2016, mainly submitting that the candidature of the applicant had been rightly rejected by the DSSSB, as she had enclosed her OBC Non- 9 OA No.3585/2015 Creamy Layer certificate issued only on 18.03.2010, and that the role of answering respondent R-3 begins only after receiving the select list from the DSSSB, and it was, therefore, prayed that SDMC may be deleted from the array of party respondents.
13. The applicant filed a rejoinder on 26.02.2016 to the counter reply of South Delhi Municipal Corporation (SDMC, in short). No separate rejoinder was filed to the counter reply of Respondents No. 1 & 2 filed by Mrs. Harvinder Oberoi, Govt. Counsel on behalf of Govt. of NCT of Delhi, on 02.03.2016. It was submitted in this rejoinder that SDMC is a necessary party along with Respondent No.1, Govt. of NCT of Delhi, and Respondent No.2, DSSSB, and SDMC is only trying to evade its legal accountability by denying its role in rejection of the candidature of the applicant. It was submitted that the impugned Result Notice dated 05.12.2014 makes it amply clear that the verification of documents of the applicant by Respondent No.3 was the joint and collective responsibility of Respondent No.2 DSSSB and Respondent No.3 SDMC, and, therefore, Respondent No.3 was jointly responsible for the illegal rejection of the candidature of the applicant.
14. It was further pointed out that the original Advertisement itself had prescribed in the Mode of Selection, Point 9 (v), that the Respondent No.3 would play an important role in the selection of the candidates. It was denied that the candidature of the applicant was rejected solely by DSSSB, and it was prayed that Respondent No.3 may not be deleted from the array of necessary parties.
10OA No.3585/2015
15. Heard. The learned counsel for the applicant very vehemently argued that the cut-off date can only be in respect of (i) age, (ii) educational qualifications, and (iii) experience etc., and not in respect of possession of a caste certificate. He pointed out Para-5 of Section-C of the Advertisement, in respect of Reservation Benefits, which had stated as follows:-
"5) RESERVATION BENEFITS (i) Reservation benefits will be available to the candidates in
accordance with the instructions/orders/circulars, issued from time to time by the Competent/Notified Authorities.
(ii) 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) alongwith their application, otherwise, their claim for SC / ST / OBC / Physically Handicapped/Ex-Servicemen /Sport category will not be entertained and their applications will be considered against Un-reserved (UR) category vacancies if eligible otherwise."
16. He also submitted that while in the Advertisement No.004/2009 issued on 29.12.2009, at the top itself the opening date for receipt of applications had been indicated, and also the closing date for receipt of applications had also been indicated to be on 15.01.2010, but in Para-2 of the Advertisement it was only indicated as follows, without prescribing any date parameters:-
"(2) OBC candidates seeking benefit of reservation should submit OBC certificate issued by the competent authority of Government of NCT of Delhi."
17. The learned counsel for the applicant also submitted that in the Note at the end of Para-7 "Documents to be attached with Application Form", it was not specifically indicated that the OBC certificate shall have 11 OA No.3585/2015 to be of a date prior to the closing date for receipt of applications, fixed to be on 15.01.2010, which had only stated as follows:-
"NOTE "(i) If the above documents are not submitted alongwith the application, his/her candidature for the concerned post will be cancelled. If at any stage of selection/recruitment process the application is found to be incomplete, or required documents are not attached, his/her candidature for concerned post will be cancelled.
(ii) Candidates are advised in their own interest to retain photocopy of their application form for their record."
18. It was, therefore, submitted by the learned counsel for the applicant that imposition of a cut-off date in respect of the OBC Non-Creamy Layer caste certificate also on the same pattern as prescribed for (i) age, (ii) educational qualifications and (iii) experience etc. was not tenable, even as per the Advertisement brought out by the respondents. He, therefore, relied upon the judgment of the Hon'ble Delhi High Court in W.P. (C) No.8366/2014 Ms. Babita Kadian vs. Union of India & Ors. dated 16.12.2014, in which it has been held as follows:-
"Our observation would neither suggest nor imply that the respondents should not adhere to the instructions or guidelines incorporated in the advertisement but certainly, where there is room for taking a liberal approach, like in the present case, where the petitioner had submitted the OBC certificate recognized by the GNCTD alongwith the application form, and when she got to know during the viva-voce and verification of documents that she ought to submit an OBC certificate issued by the Government of India, she duly submitted it well before the final select list was declared. Her conduct clearly shows that she had no malafide intention to hide any information and in any case was otherwise eligible to be employed in the OBC category.
It is a settled legal position that a candidate becomes eligible under the OBC category, the day the caste he/she belongs to is notified by the appropriate authority as a backward class (Ref:
DSSSB and Anr. v. Ms. Anu Devi & Anr. , W.P.(C) 13870/2009, 12 OA No.3585/2015 decided on 17.02.2010) and as noticed in the case of Hari Singh v. Staff Selection Commission, 170 (2010) DLT 262 and Ms. Anu Devi (supra), the certificate is only an 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.
In the present case, the petitioner belonged to the JAT community, which is recognised as a backward class under GNCTD Notification No.F.28 (93)/91-92/SC/STP&S/4384 dated 20/1/95, published in the Gazette of Delhi Extraordinary Part- IV dated 20/1/95.
In the above circumstances, the present writ petition is allowed. The respondents are directed to proceed with the appointment of the petitioner to the post of Constable (RPF) by including her name in the final select list, subject to her fulfilling all other eligibility conditions. The petitioner would also be entitled to all consequential benefits but as to salary, only from the date she is appointed."
(Emphasis supplied)
19. In this context only, the learned counsel for the applicant also relied upon the Hon'ble Apex's Court judgment dated 24.02.2016 in the case of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and Ors. in Civil Appeal No.1691 of 2016 (Arising Out of SLP (C) No.27550 of 2012), Civil Appeal No.1692 of 2016, (Arising out of SLP (C) No.27551 of 2012), Civil Appeal No.1693 of 2016 (Arising Out of SLP (C) No.309 of 2013) and Civil Appeal No.1694 of 2016 (Arising Out of SLP (C) No.21445 of 2013), a copy of which he submitted soon after the arguments had concluded.
20. On the other hand, learned counsel for the respondents No. 1&2 stuck to her guns in stating that the cut-off/closing date for receipt of applications applied also to be the cut off date for possession of the necessary OBC Non-Creamy Layer caste certificate, and that in terms of the Hon'ble Delhi High Court's judgment in the case of Delhi Subordinate Services Selection Board & Anr. vs. Preeti Balyan & Anr. 13 OA No.3585/2015 (supra), which judgment was delivered concerning the same process of recruitment, the respondents could not have changed the cut-off date from 15.01.2010, even in respect of the OBC Non-Creamy Layer caste certificate.
21. She further refuted the arguments of the learned counsel for the applicant regarding the nature and import of the OBC Non-Creamy Layer caste certificate by submitting that while in the case of SCs/STs, a SC/ST caste certificate once issued is relevant for ever, as in their case only the proof of their having been born in the particular caste is important, but the same was not the case in the case of OBC Non- Creamy Layer caste certificates. She submitted that in the case of OBCs, since the Hon'ble Apex Court has held that the 'creamy layers' of the OBC castes had to be excluded, and people keep on moving into the 'creamy layer' of OBCs, and also, in some instances and cases, moving out of the 'creamy layer' of the OBCs, like in case of family partitions etc., resulting in penury or loss of income of the part of the family to which the applicant belongs, just like a person who was earlier below the "Creamy Layer" can become economically better off, and move into the "Creamy Layer", similarly a person floating in the 'creamy layer' of the OBC can, in some circumstances, move below that dividing line, and become Non- Creamy Layer, and become eligible for grant of reservations, as a person not belonging to the 'creamy layer'. She also submitted that in this context of the possibility of persons moving into the "Creamy Layer", and out of such a "Creamy Layer" the cut-off date for possession of such 'Non- Creamy Layer' OBC certificate, which had been prescribed for all the 14 OA No.3585/2015 other candidates to be 15.01.2010, could not be relaxed only in the case of the applicant, when she had, admittedly, obtained the 'Non-Creamy Layer' OBC caste certificate as prescribed in Annexure-I of the Advertisement for the concerned Post Code only on 18.03.2010 by her own admission also. She submitted that a Caste Certificate issued only on 18.03.2010 could not be read to have determined the applicant's status as being "Non-Creamy Layer" on the cut-off date of 15.01.2010 also.
22. In his reply arguments, learned counsel for the applicant, on the other hand, submitted that with the latest judgment of the Hon'ble Apex Court in Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and Ors. (supra), the respondents could not deny to the applicant the benefits under OBC "Non-Creamy Layer" reservation category just because the certificate concerned had been obtained by the applicant after the cut-off date of the original Advertisement, while she had applied only against the Corrigendum to that original Advertisement.
23. We have anxiously considered the facts of the case and have gone through all the related case laws. A Coordinate Bench of this Tribunal, including one of us (Administrative Member- Shri Sudhir Kumar) had in OA No.1875/2011 pronounced an order on 25.09.2013, relying mainly upon the D.B. judgment of the Hon'ble High Court in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors., LPA 562/2011 & W.P.(C) 8087/2011, which since stands set aside through above cited judgment of Hon'ble Apex Court on 24.02.2016. Therefore, now when the Hon'ble Apex Court has on 24.02.2016 set 15 OA No.3585/2015 aside the Hon'ble Delhi High Court's D.B. judgment dated 24.01.2012 in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors., many of the observations made by that Coordinate Bench in OA No.1875/2011 in the order dated 25.09.2013 would undergo a change. However, the following portions of that order, which were not based upon the Hon'ble High Court's D.B. judgment in Ram Kumar Gijroya (supra), but were based upon the various judgments of the Hon'ble Supreme Court, may still be reproduced here as follows:-
"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 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 16 OA No.3585/2015 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 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, 17 OA No.3585/2015 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.
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 18 OA No.3585/2015 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 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 19 OA No.3585/2015 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, (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 20 OA No.3585/2015 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 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 21 OA No.3585/2015 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 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 22 OA No.3585/2015 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 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. 23 OA No.3585/2015 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 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 24 OA No.3585/2015 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 be made disentitled to the provisions meant for the said classes.
25OA No.3585/2015 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 are in higher services then such individuals should be precluded to avoid monopolization of the 26 OA No.3585/2015 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 a realistic one. Another question would be, should such a line be uniform for the entire country or a 27 OA No.3585/2015 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) 28 OA No.3585/2015
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 29 OA No.3585/2015 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 30 OA No.3585/2015 '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).
45 to 52 xxxxxxxxxx (Not reproduced here).
53. The Hon'ble Delhi High Court has in the case of Anil Kumar (supra) decided the case on the assumption that the status of a candidate as belonging to an OBC category who is not from the 'creamy layer' as exists at the time of his birth can perhaps continue un-changed and un-modified up to the date of his or her seeking employment, and, therefore, there is no need for a fresh 'non-creamy layer' certificate to be issued. But as has been held by the Hon'ble Apex Court in Ashoka Kumar Thakur (supra), even OBC families do move ahead both economically and socially, and some times, though not always, such social advancement may be achieved due to economic advancement, as was held by the Hon'ble Apex Court in Para-10 of the Ashoka Kumar Thakur's case 31 OA No.3585/2015 (supra), in conformity with the view taken in 'Mandal case' judgment by Hon'ble Mr. Justice B.P. Jeevan Reddy (supra).
54. Therefore, it cannot be anybody's case that while OBC Caste status of a person may have been determined at the time of birth, and may be so reflected in the birth certificate, but the status of his not belonging to 'creamy-layer' can also continue throughout and always unaltered, and without any possibility of modification from the date of birth till the date the person files an application for seeking employment, claiming such 'non creamy-layer' status. That is why the Legislature has chosen to, and the Executive has laid down instructions to prescribe for such 'non creamy-layer' certification not to be too old in point of time from the last date of receipt of the applications, which is normally the cut off date for determination of eligibility of persons. If it was not so, there was no need for the Legislature and the Executive instructions to prescribe for insisting upon a current and valid, and not too old, 'non creamy-layer' OBC certificate, to be a pre-condition for considering a person's eligibility to reservation under OBC category.
55 to 61 xxxxxxxxxxxxxx (Not reproduced here)".
24. However, we are perplexed that in Para-14 of its judgment dated 24.02.2016 (supra), the Hon'ble Apex Court has observed that the Division Bench of the Hon'ble Delhi High Court had erred in not at all considering the decision rendered in the case of Ms. Pushpa vs. Govt. of NCT of Delhi and Ors. Writ Petition (C) No. 9112/2008, even though in Paragraphs 8 & 20 of the Division Bench judgment of the Hon'ble High Court, dated 24.01.2012, the judgment in the case of Ms. Pushpa (supra) had been specifically considered, but which was perhaps not pointed out before the Hon'ble Apex Court. We are also quite perplexed that the speech delivered by Dr B.R. Ambedkar before the Constituent Assembly in respect of SC/ST Reservations, which was delivered more than four decades prior to the acceptance of the Mandal Commission Report by the Union of India, introducing Reservation for OBCs, has been relied upon 32 OA No.3585/2015 by the Hon'ble Apex Court, in a case relating to reservations in respect of OBCs.
25. Also, we are perplexed that in Para-15 of this latest judgment dated 24.02.2016, the Hon'ble Apex Court has extracted Paragraphs from the judgment in the case of Valsamma Paul v. Cochin University and Ors. (1996) 3 SCC 545, which case related to SC & ST reservations, and not OBC reservations.
26. In Paragraphs-16 & 17, the Hon'ble Apex Court has on 24.02.2016 in Ram Kumar Gijroya vs. DSSSB & ors. (supra), recorded as follows:-
"16. In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul (supra) wherein this Court after interpretation of Articles 14,15,16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order 33 OA No.3585/2015 dated 24.11.2010 passed by the learned single Judge in W.P. (C) No. 382 of 2009 is hereby restored.
17. The appeals are allowed. No costs."
(Emphasis supplied)
27. Thus, the judgments in the case of Indra Sawhney vs. Union of India 1992 (Supp) 3 SCC 217, regarding Mandal Commission report on OBC reservations, decided by a 9 Judges Bench, and in the case of Valsamma Paul v. Cochin University and Ors. (supra) concerning SC/ST reservations, have both been mentioned uno flatu, and it has been held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment. This is quite perplexing, since Indra Sawhney (supra) concerned only regarding the creamy layer of OBCs to be excluded while providing reservations to OBCs, and did not concern SCs/STs, and Valsamma Paul (supra) concerned only the "sapinda" rights of a lady married into SC/ST family, and did not concern OBC reservations at all.
28. The judgment dated 24.02.2016 of the Hon'ble Apex Court having been rendered only about one month back, it is also not known as on today as to whether any Review Application has been filed in this judgment by the respondents, or not.
29. However, while in the Nine-Judges' Bench judgment in the Indra Sawhney's case (supra), the exclusion of 'creamy layer' from reservations to be provided to Backward Classes had been decided, it is seen that 34 OA No.3585/2015 through the judgment rendered in the words of Justice P.B. Sawant, Justice R. M. Sahai & Justice B.P. Jeevan Reddy, the Nine-Judges' Bench judgment had talked about drawing a line within the Backward Classes and castes for excluding the 'creamy layer', and had denied reservations to those being excluded on the basis of their being in the 'creamy layer', and had talked about the exclusion of socially advanced and economically well-off members of a backward class by drawing such a line, by specifying them to come within the 'creamy layer'. That Nine- Judges' Bench judgment had, however, not specifically laid down any law regarding the particular date for the determination of a person or his family starting to float in the creamy layer, particularly so in the context of cut-off dates for eligibility for employment with the Government, and on the exact date on which such line between the 'creamy layer' and 'non- creamy layer' could be drawn in respect of a person/family. That had given rise to the importance of the date of such certificate being important to determine as to whether, as on that date, that particular person was below or above the OBC "creamy layer".
30. But, in the now restored judgment and order dated 24.11.2010 passed by the Single Judge of Delhi High Court in W.P. (C) 382/2009 Ram Kumar Gijroya & Ors. vs. Govt. of NCT of Delhi & Ors. (supra), without entering into the aspect of "Creamy Layer", or a particular date when a person is below or above that "creamy layer", it had been stated that the certificate issued by a competent authority is only an affirmation of the fact of the person concerned belonging to OBC category, which fact is already in existence, and that it is not as if the 35 OA No.3585/2015 granting of such certification confers the status of OBC on a person for the first time, or that, that person did not belong to the OBC category prior to 21st January, 2008. It was held that for this reason, insisting upon a ("Non-Creamy Layer") certificate, which carries a date prior to 21st January, 2008, would be arbitrary, and deserves to be struck down. The Single Bench had further held that the only ground for declining the petitioners' applications was that the ("Non-Creamy Layer") OBC certificate had been issued after the cut-off date, and therefore, they were not eligible for consideration, and that the Respondents had not cited any other authority to distinguish the decision in Ms. Pushpa's case in WP (C) No.9112/2008 with C.M. No.17504/2008, judgment dated 11.02.2009.
31. Thereafter, relying upon the reasons as recorded in the case of Single Bench judgment in the case of Ms. Pushpa (supra), the Single Bench had directed the respondents to re-consider the applications of the petitioners against the ("Non-Creamy Layer") OBC category, within a period of one month, and to announce the results taking in view the relaxation available to the ("Non-Creamy Layer") OBC candidates. However, nowhere, in either of the two Single Bench judgments of the Hon'ble Delhi High Court, the concept of OBC born persons being in/belonging to, or moving into, or out of, the "Creamy Layer" of the OBCs, had been discussed.
32. The Supreme Court of India is the most powerful Court in the whole world. Prior to the pronouncement of the Supreme Court's judgment in 36 OA No.3585/2015 Rupa Ashok Hurra vs. Ashok Hurra and Another (1999) 2 SCC 103, nobody in this world could have done anything to re-agitate a matter before it, except filing a Review Application, which is normally considered and disposed off by the Hon'ble Apex Court Judges in their Chambers only. Rupa Ashok Hurra's case (supra) opened a window for litigants to file "Curative Petitions", and pray for the Hon'ble Apex Court to have a re-look at its judgments. Only once, through its judgment in the case "Workmen of M/s Birla Textiles vs. K.K. Birla: (1999) 3 SCC 475=AIR 1999 SC 2412" did the Hon'ble Apex Court unilaterally, on its own, modify its earlier judgment in "M.C. Mehta vs. Union of India: (1999) 2 SCC 91".
33. However, it is trite law, and the Hon'ble Apex Court has itself held in numerous judgments that the Supreme Court itself is also bound by the law of precedents, and a two-Judges' Bench cannot overrule the orders passed by a three-Judges' Bench, or by a Bench of a higher/larger constitution, like a Constitution Bench of five Judges. As reproduced in para 11 of the Hon'ble Apex Court's judgment in State of Uttaranchal vs. Sandeep Kumar Singh & Ors: (2010) 12 SCC 794: (2011) 2 SCC (L&S) 123, the law in this regard had been laid down by a Constitution Bench of the Hon'ble Apex Court in Central Board of Dawoodi Bohra Community vs. State of Maharasthra: (2005) 2 SCC 673: (2005) SCC (L&S) 246", in para 12 of that judgment, as follows:-
"11. In Central Board of Dawoodi Bohra Community & Anr. vs. State of Maharashtra & Anr. (2005) 2 SCCC 673, a Constitution Bench of this Court in categorical terms held that 37 OA No.3585/2015 "(1) The law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser Coram cannot disagree or dissent from the view of the law taken by a Bench of larger Coram. In case of doubt all that the Bench of lesser Coram can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger Coram than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a Coram larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
12. In our view, a two Judge Bench of this Court could not have held the decision rendered by a three Judge Bench in S. Pushpa case to be obiter and per incuriam."
34. Surely, therefore, the two-Judges' Bench could not have, on 24.02.2016, differed with, or gone beyond the law, as laid down in respect of "Creamy Layer" of OBCs by the Nine-Judges' Bench of the Hon'ble Supreme Court in Indra Sawhney's case (supra), more so because the Hon'ble Apex Court has, in its latest judgment dated 24.02.2016, relied upon that very Nine-Judges' Bench judgment in Indra Sawhney's case (supra).
35. On the point of/aspect of possession of all necessary qualifications and certificates as on the cut-off date, which is normally the last date for receipt of application, unless otherwise specified in the Advertisement concerned, the following can be cited as some of the case laws on the subject:-
38OA No.3585/2015
i) In the case of Ashok Kumar Sharma & Ors. vs. Chander Shekhar & Another JT 1997 (4) SC 99, a three-Judges' Bench of the Hon'ble Apex Court had held in Paragraphs 6 & 7 as follows:-
"6.The review petitions came up for final hearing on 3/3/1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1/9/1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the division bench of the High court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.
7. Mr Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to their applying for the post and that there was some delay in publishing the results and that these respondents cannot be 39 OA No.3585/2015 punished for the delay on the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we cannot examine the reasons for delay - assuming that there was delay in publishing the results. That issue is outside the purview of the writ petition. Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear for the interview. On the first issue (mentioned in the Order dated 1/9/1995, therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J.
(Emphasis supplied)
ii). In Dr. M.V. Nair vs. Union of India & Ors. (1993) 2 SCC 429, again a three-Judges' Bench of the Hon'ble Apex Court had in Paragraph-9 held has follows:-
"9...............It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."
(Emphasis supplied)
iii). In Bhupinderpal Singh and Others vs. State of Punjab & Ors. (2000) 5 SCC 262, the Hon'ble Apex Court had in Paragraphs 13 & 14 stated 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. Union of India, (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 40 OA No.3585/2015 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 made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinised 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)
iv) In the case of Mrs. Rekha Chaturvedi vs. University of Rajasthan & Ors. JT 1993 (1) SC 220, the Hon'ble Apex Court had held as under:
41OA No.3585/2015
"12. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.
13............It is for this purpose that we lay down the following guidelines for the future selection process:
A. xxxxxxxxxxxx (Not reproduced here).
B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a 42 OA No.3585/2015 legitimate grievance since they are left out of consideration.
C to E. xxxxxxxxxxxxx (Not reproduced here)."
(Emphasis supplied)
v) In the case of State of Rajasthan vs. Hitendra Kumar Bhatt JT 1997 (7) SC 287, the Hon'ble Apex Court has laid down the law as follows:-
"6...............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. 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."
(Emphasis supplied)
vi) In the case of Harpal Kaur Chahal (Smt) vs. Director, Punjab Instructions, Punjab and Another, 1995 Supp(4) SCC 706, the Hon'ble Apex Court has held as under:-
"2.............It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to rules...........".
(Emphasis supplied)
vii) In the case of U.P. Public Service Commission Utter Pradesh, Allahabad, Anr. vs. Alpana JT 1994 (1) SC 94, the Hon'ble Apex Court has laid down the law in Para-6 as follows:-
"6..........We find it difficult to give recognition to such an approach of the High court as that would open up a flood of litigation. Many candidates superior to the respondent in merit 43 OA No.3585/2015 may not have applied as the result of the examination was not declared before the last date for receipt of applications. If once such an approach is recognised there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties........".
viii) In the case of District Collector & Chairman Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. vs. M. Tripura Sundari Devi 1990 (4) SLR 237, the Hon'ble Apex Court has in Para-6 held as follows:-
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.
(Emphasis supplied)
ix) Similar is the effect of the case law as laid down by the Hon'ble Apex Court in Ganga Singh vs. Commissioner of Police and Another, AIR 1987 SC 699=(1987) 1 SCC 377, and in Mahavir Singh vs. Staff Selection Committee and Another, AIR 1986 SC 582=(1986) 1 SCC 668.44 OA No.3585/2015
x) In the case of State of Uttar Pradesh vs. Vijay Kumar Mishra, AIR 2003 SC 4411, the Hon'ble Apex Court had held as follows:-
"8. The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post. It is relevant to note here that in the rules or in the advertisement no power was vested in any authority to make any relaxation relating to the prescribed qualifications for the post. Therefore, the case of a candidate who did not come within the zone of consideration for the post could not be compared with a candidate who possess the prescribed qualifications and was considered and appointed to the post. Therefore, the so-called confession made by the officer in the Court that persons haying lower merit than the respondent have been appointed as SDI (Basic), having been based on misconception is wholly irrelevant. The learned single Judge clearly erred in relying on such a statement for issuing the direction for appointment of the respondent. The Division Bench was equally in error in confirming the judgment of the learned single Judge. Thus the judgment of the learned single Judge as confirmed by the Division Bench is unsustainable and has to be set aside.
(Emphasis supplied)
xi) Similar is the essence of the law as laid down in Mills Douglas Michael and Ors. vs. Union of India & Ors. JT 1996 (4) SC 189; Shankar K. Mandal & Ors. vs. State of Bihar & ors. (2003) 9 SCC 519; Ashok Kumar Sonkar vs. Union of India (2007) 4 SCC 54; Govt. of Andhra Pradesh & Ors. vs. N. Subbarayudu & Ors., (2008) 14 SCC 702;
National Council for Technical Education and Others vs. Shri Shyam Shiksha Parashikshan Sansthan and Others 45 OA No.3585/2015 Etc. Etc., (2011) 3 SCC 238; and in Orissa Power Transmission Corporation Ltd. Vs. Khageswar Sundaray and Others (2011) 8 SCC 269".
36. In the wake of these judgments, and especially in view of the two judgments of three-Judges' Benches of the Hon'ble Apex Court in Ashok Kumar Sharma & Ors. vs. Chander Shekhar & Another (supra), and in Dr. M.V. Nair vs. Union of India & Ors. (supra), we are unable to follow the law, as laid down by the Hon'ble Apex Court through its latest judgment dated 24.02.2016, as, otherwise, it would amount to doing away with the very concept of "Creamy Layer" for reservations to be provided to OBCs, and that would not be in consonance with the Nine- Judges' Bench Judgment in Indra Sawhney (supra), as all OBCs, by birth, cannot be held to be entitled to OBC reservations, without considering as to whether, on a particular date, they were below the "Creamy Layer", or were floating in the "Creamy Layer". Providing reservations to all OBCs by merely their birth as an OBC would also do away with the present legal and constitutional position that SCs/STs reservations are "quantitative" in nature, available throughout life, by virtue of mere birth as a SC/ST, and that the OBC reservations are "qualitative" in nature, determined on the basis of the fact that after birth as an OBC, the person concerned is economically and socially well off, and, therefore, within the "Creamy Layer", or is below that "Creamy Layer", as he still does not enjoy a good quality of life, because of his still not being so well off economically and socially, and, therefore, falling within the "Non-Creamy Layer", which status of his can change, either 46 OA No.3585/2015 ways, at any time, thus making the date of issuance of the "Non-Creamy Layer" certificate as a relevant factor for determining his/her eligibility for reservations or not.
37. The present OA is, therefore, without any merit, and is, accordingly, rejected, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc. Per Raj Vir Sharma, Member(J)
38. After going through the order proposed by my learned brother, Hon'ble Shri Sudhir Kumar, Administrative Member, I find that the issue arising in the O.A. is different from what has been discussed and answered by him in the proposed order. Furthermore, under Article 141 of the Constitution of India, the law laid down by the Hon'ble Supreme Court in Ram Kumar Gijroya & Ors. Vs. Delhi Subordinate Services Selection Board and Ors. (supra) being binding on all Courts within the territory of India, the Tribunal is bound to follow the same. Thus, in my considered view, the discussions made in paragraphs 23 to 34, and the view expressed by the learned Administrative Member in paragraph 36, of the proposed order, are uncalled for. As a consequence, I am unable to endorse the discussions made, and the view taken, as well as the conclusion arrived at, by the learned Administrative Member in the proposed order. Hence, I am writing the dissenting order, after discussing, in brief, the pleadings, and the rival contentions 47 OA No.3585/2015 of the parties, and by answering the issue which, in my view, arises for consideration of the Tribunal in the present O.A.
39. The applicant has filed the O.A. seeking the following reliefs:
"i) Allow the present Original Application;
ii) Direct the respondents to consider the candidature of the
applicant for the post of teacher (primary), in the OBC category to be undertaken in pursuance of the Advertisement No.004 of 2009 pertaining to post code No.70/09.
iii) Consequently, direct the respondents to undertake all the necessary steps in this regard.
iv) Pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
40. Opposing the O.A., respondent nos. 1 and 2 have filed a counter reply. The applicant has also filed a rejoinder reply thereto.
41. The undisputed facts of the case are as follows:
41.1 Delhi Subordinate Services Selection Board (hereinafter referred to as 'DSSSB'), vide Advertisement No.004/2009, had initiated the recruitment process for filling up 4500 (UR-1900, OBC-1044, SC-766, ST-790, including PH(OH-
OA/OL/OAL/BL)-52, PH(VH-B/LV)-96, EXSM-982) vacancies in the post of Teacher (Primary) in the Municipal Corporation of Delhi (Post Code 70/09). The Advertisement No.004/09 had stipulated '15.1.2010' as the closing date for receipt of applications. Note (2) of the Advertisement No.004/09 had stipulated that "OBC CANDIDATES seeking benefit of reservation should submit OBC certificate issued by the Competent Authority of Government of NCT of Delhi. CANDIDATES SEEKING RESERVATION AS OBC HAVE TO SUBMIT A DECLARATION IN THE PRESCRIBED FORMAT (Annexure - I) THAT 48 OA No.3585/2015 HE/SHE DOES NOT BELONG TO THE CREAMY LAYER ON THE CRUCIAL DATE IN ADDITION TO THE COMMUNITY CERTIFICATE (OBC). Unless otherwise specified, the closing date for receipt of applications for the post is to be treated as crucial date." Paragraph (5) of Section C of the Advertisement No.004/09 had stipulated that "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/Physically Handicapped/Ex-Servicemen/Sports category will not be entertained and their applications will be considered against Unreserved (UR) category vacancies if eligible otherwise."
41.2 While the recruitment process pursuant to the Advertisement No.004/09, ibid, was on, two individuals had filed OA Nos. 121 and 151 of 2010 (Bindu Gupta, etc. Vs. Govt. of NCT of Delhi & Ors.). The Tribunal had disposed of both the said O.As. by a common order dated 20.7.2010, the operative part of which is reproduced below:
"12. Resultantly, we have no hesitation to hold that non-amendment of the recruitment rules by the respondents, despite change in the pay scale and classification of the post, to which the applicants have applied, they have been deprived of an opportunity and valid consideration for appointment. We also find from the record that after the advertisement, the selection is yet to begin as no examination, etc. has taken place.
13. As there is no question of right of any selectee being adversely affected by any direction issued by us, we dispose of these OAs by directing the respondents to finalize the amendment in the recruitment rules by applying the classification of the post and enhancement of the age as per Office Memoranda ibid within a period 45 days from the date of receipt of a copy of this order by issuing a corrigendum to the advertisement to this effect. It goes without saying that the applicants, if are covered by the enhancement of age, would be deemed as eligible and their candidature be considered in the selection process, which would be put 49 OA No.3585/2015 on hold for the aforesaid period. In such an event, law shall take its own course. No costs."
41.3 In compliance with the Tribunal's direction, ibid, the user Department had amended the Recruitment Rules for the post of Teacher (Primary), Municipal Corporation of Delhi. Thereafter, the respondent-DSSSB issued a Notice dated 13.9.2011, which is reproduced below:
"Notice to the candidates for the post of Asstt. Teacher, GNCT of Delhi/Teacher Primary, MCD under post code no.70/09 & 71/09(Advt. no.004/2009).
Pursuant to the directions of Ld. CAT in OA No.121/2010 and 151/2010 dated 20.07.2010 the Recruitment Rules for the above mentioned posts have been modified by the user departments and consequent on the above, the following amendments are made in the Advt.no.004/2009 and its addendum pertaining to the said posts notified under Post Code 70/09 and 71/09.
S.No. Description Previous Now Amended
i Classification Group-C, Non-Gazetted Group-B, Non-Gazetted
of Post
ii Age Limit (for 20-27 yrs. Relaxable for: Not exceeding 30 years.
post code SC/ST/ST-05 yrs., OBC-03 Relaxable for: SC/ST-05
70/09 & 71/09 yrs., PH-10 yrs, PH & yrs. OBC-03 yrs, PH-10
SC/ST-15 yrs, PH & OBC- yrs, PH&SC/ST-15 yrs,
13 yrs PH & OBC-13 yrs.
Departmental employees - Relaxable for Govt.
up to 42 yrs of age (Gen), Servants upto 05 yrs. In
upto 47 yrs from SC/ST, accordance with
having 03 yrs. Of instructions or order
continuous service in the issued by the Central
same line or allied cadres. Government.
Relaxable up to 37 yrs. For
(Gen.) and upto 42 yrs for
SC/ST for widows, divorced
women and women
judicially separated from
their husband and who are
not remarried.
iii. Essential and EQ (for post code 70/09 & EQ (for post code 70/09
Desirable 71/09): & 71/09):
Qualifications 1. Senior Secondary (10+2) 1.Senior Secondary
or Intermediate or its (10+2) or Intermediate or
equivalent with 50% marks its equivalent from a
from a recognized Board. recognized Board.
2.Two years diploma/ 2.Two years' diploma/
certificate course in certificate course in
ETE/JBT or B.El.Ed. from ETE/JBT or B.El.Ed.
the recognized institutions from a recognized
or its equivalent. institution.
3. Must have passed Hindi 3. Must have passed
50
OA No.3585/2015
as a subject at Secondary Hindi as a subject at
Level. Secondary Level.
4. Must have passed
Desirable Qualifications (for English as a subject at post code 70/09 & 71/09): Secondary or Sr. Computer Knowledge. Secondary Level.
(b) EQ (for post code 71/09): Point 1,2 & 3 above.
Desirable Qualifications (for post code 70/09 & 71/09): Nil iv No. of 1.Post Code 70/09: 6500 1.Post Code 70/09: 6500 vacancies (UR-2910, OBC-1584, SC- (UR-2886, OBC-1610, 1066, ST-940) including SC-939, ST-1065) OH-78, VH-122, EXSM- including OH-99 & VH-
1182 152. Not identified as
2.Post Code 71/09: 520(UR- suitable for HH category. 186, OBC-148, SC-36, ST-
150) including PH(OH- 2.Post Code 71/09:
OA/OL/OAL/BL)-09, 520(UR-186, OBC-148,
PH(VH-B/LV)-28, EXSM- SC-36, ST-150) including
234. PH(OH-
OA/OL/OAL/BL)-09,
PH(VH-B/LV)-28. Not
identified as suitable for
HH(PD) category.
However, due to upgradation of the post from Group 'C' to Group 'B' category, the candidates (except SC/ST/PH) who have earlier submitted their application forms shall have to deposit an additional fee of Rs.50/- in the form of crossed Indian Postal Order (IPO) in favour of the Secretary, DSSSB payable at Krishna Nagar Head Post Office, Delhi 110051 in order to be considered for the said post. The additional fee should be accompanied with necessary details including Name, Father's Name, Date of Birth, Details of previous IPO, ID No. (if allotted) and copy of application form, if available. Non-deposit of additional fee within the prescribed period may lead to cancellation of their candidature at any stage.
For the aforesaid selections, the DSSSB will conduct a combined Part-I preliminary exam (objective type) of 01 hour duration and part-II main examination (descriptive type) of 02 hours durations together with a testing duration of 03 hours in one go.
Besides above, the prospective eligible candidates, who fulfill the eligibility conditions as on 15-01-2010, can also apply against advt. no.004/2009 for the said posts on the prescribed form as given in section-D of the said advt. which can be downloaded from the Board's website www.dsssb.delhigovt.nic.in. The application form must be accompanied with a fee of Rs.100/- as per the mode of payment detailed above. Applicants belonging to SC/ST/PH category will be exempted for payment of the requisite fee subject to submission of duly attested copies of relevant certificates in support of their claim. The prospective 51 OA No.3585/2015 candidates must read the detailed instructions along with terms and conditions mentioned in advt. no.004/2009 before applying for the above posts. The candidates who have already submitted their application form in response to advt. no.004/2009 are not required to apply again except for depositing the additional fee of Rs.50/- as mentioned above.
All other details and terms & conditions as contained in the original advt. no. 004/2009 shall remain unchanged.
The eligibility of the candidates with regard to educational qualifications, age, experience etc. shall be determined as on 15.01.2010 i.e. the closing date of receipt of application as invited vide advt. no.004/2009.
The candidates should submit the documents at the reception counter of the Board between 16-09-2011 to 17-10-2011 on all working days (except Saturdays, Sundays and Gazetted /Public Holidays) from 10.00 AM to 5.00 PM. Documents received after the prescribed period shall not be entertained under any circumstances."
41.4 In response to the Notice dated 13.09.2011, ibid, the applicant submitted her application by 17.10.2011, which was stipulated as the closing date for receipt of applications. She appeared at the written examination. As per the office order no.343 dated 5.12.2014, whereby the result notice was published by the respondent-DSSSB, she was shown to have scored 69.75 marks in the written examination, but her result was kept pending with the remarks: "ALL RELEVANT DOCUMENTS / CERTIFICATES REQUIRED".
41.5 Thereafter, the respondent-DSSSB, vide its office order No.368 dated 16.04.2015, published a rejection notice whereby the applicant's candidature was rejected with the remarks: "Not eligible", and comments: "OBC certificate found after cutoff date".
42. In the aforesaid backdrop, the applicant has contended, inter alia, that when she had submitted the application pursuant to the Notice dated 13.9.2011, which had stipulated '17.10.2011' as the closing date for receipt of applications, and when she had furnished the OBC (Non-Creamy Layer) 52 OA No.3585/2015 Certificate dated 18.3.2010, the respondent-DSSSB ought not to have found her as ineligible for being considered as an OBC candidate, and rejected her candidature on the ground that the said OBC (Non-Creamy Layer) Certificate was issued in her favour after the cut-off date, i.e., 15.1.2010, which had been stipulated in the original Advertisement No.004/09 as the closing date for receipt of applications.
43. On the other hand, the respondent-DSSSB has contended, inter alia, that since the applications of all those candidates who had applied by the original cut-off date (15.1.2010) pursuant to the Advertisement No.004/09, and who had applied by the amended cut-off date (17.10.2011) pursuant to the Notice dated 13.9.2011, had to be considered together, the cut-off date was retained unchanged as 15.1.2010. Thus, the applicant was supposed to have all the requisite qualifications and necessary certificates on the cut-off date. Since the applicant had applied as an OBC candidate, she should have been in possession of the requisite OBC (Non-Creamy Layer) Certificate on the cut-off date, which was the cut-off date for all the candidates, even after the Notice dated 13.9.2011, ibid. As the OBC (Non-Creamy Layer) Certificate was issued in favour of the applicant on 18.3.2010, i.e., after the cut-off date (15.1.2010), she was found ineligible, and her candidature was rightly rejected.
44. Shri Naresh Kaushik, the learned counsel appearing for the applicant, argued that the cut-off date could only be in respect of (i) educational qualifications, (ii) age, and (iii) experience, etc., and not in respect of issuance and possession of a caste certificate.
53OA No.3585/2015 44.1 Shri Naresh Kaushik, the learned counsel appearing for the applicant, also relied on the decision of the Hon'ble Supreme Court in Ram Kumar Gijroya Vs. Delhi Subordinate Servies Selection Board & Ors. (supra), to contend that the respondent-DSSSB could not have denied to the applicant the benefit under OBC (Non-Creamy Layer) reservation category just because the certificate was obtained by her after 15.1.2010, i.e., the cut-off date stipulated in the original Advertisement No.004/09, more so when she submitted the application pursuant to the Notice dated 13.9.2011 under which '17.10.2011' was stipulated as the closing date for receipt of applications.
45. Ms.Harvinder Oberoi, the learned counsel appearing for respondent nos. 1 and 2, reiterated the stand taken by the respondent-DSSSB in its counter reply, and also submitted that in terms of the decision of the Hon'ble High Court of Delhi in Delhi Subordinate Services Selection Board & Anr. Vs. Preeti Balyan & Anr. (supra), the respondent-DSSSB could not have changed the cut-off date from '15.1.2010' to '17.10.2011', even in respect of the OBC (Non-Creamy Layer) Certificate submitted by any of the candidates claiming benefit of reservation under the said category.
46. Thus, from the pleadings and rival contentions of the parties, the issue that arises for consideration of the Tribunal is whether '15.1.2010' or '17.10.2011' was the crucial date for the purpose of possession/submission of OBC (Non- Creamy Layer) Certificate by the applicant.
47. It would be in the fitness of things to indicate that in the Notice dated 13.9.2011, the prospective eligible candidates, who fulfilled the eligibility 54 OA No.3585/2015 conditions as on 15-01-2010, could apply against the Advertisement No.004/2009 for the post in the prescribed form as given in Section-D. It was also stipulated in the said Notice that the candidates who had already submitted their application forms in response to the Advertisement No.004/2009 were not required to apply again, except for depositing the additional fee of Rs.50/- as mentioned above. It was also one of the conditions stipulated in the Notice dated 13.09.2011 that the candidates should submit the documents at the reception counter of the Board between 16-09-2011 to 17-10-2011 on all working days (except Saturdays, Sundays and Gazetted /Public Holidays) from 10.00 AM to 5.00 PM. The word 'candidates', in this context, undoubtedly, means the 'prospective candidates who fulfilled the eligibility conditions as on 15.1.2010 and who could make applications in response to the Notice dated 13.09.2011'. It is also an admitted position that all those candidates who had applied by the original cut-off date (15.1.2010) pursuant to the Advertisement No.004/09, and who had applied by the amended cut-off date (17.10.2011) pursuant to the Notice dated 13.9.2011, had to be considered together, the cut-off date being 15.1.2010. The eligibility of the candidates with regard to educational qualifications, age, experience etc. shall be determined as on 15.01.2010, i.e., the closing date for receipt of applications as invited vide Advertisement No.004/2009, which undoubtedly the applicant did possess as on 15.1.2010.
48. From the above, it is clear that there occasioned two closing dates, i.e., 15.1.2010 and 17.10.2011, in the varying circumstances for receipt of applications, albeit the prospective candidates making applications in response to the notice dated 13.9.2011 were required to fulfill the eligibility conditions, as 55 OA No.3585/2015 mentioned above, as on 15.1.2010. Therefore, it is quite inconceivable to reject the candidature of a prospective candidate, like the applicant, making such application, on the ground that he/she was not in possession of OBC (Non-Creamy Layer) Certificate as on the closing date, i.e., 15.1.2010, notwithstanding the fact that the application was being made by him/her in pursuance of the Notice dated 13.9.2011. In this connection, the Tribunal is not oblivious of the 'scope of consideration of candidatures' of the prospective candidates. This scope arose only when applications were made in response to the Notice dated 13.9.2011, and it goes without saying that by the cut-off date, i.e., 17.10.2011 (stipulated in the Notice dated 13.9.2011), the applicant was in possession of OBC (Non-Creamy Layer) Certificate, and had submitted the same along with the application. Therefore, the rejection of her candidature on the ground that she was not in possession of OBC (Non-Creamy Layer) Certificate as on the cut-off date, i.e., 15.1.2010, in the face of the application being made by her pursuant to the Notice dated 13.9.2011, keeping the cut-off date 17.10.2011, is unjust, unreasonable and arbitrary.
49. In Note (2) appearing in the original Advertisement No.004/09 it was stipulated that the candidates seeking reservation as OBC had to submit a declaration in the prescribed format (Annexure-I) that he/she did not belong to the creamy layer on the crucial date in addition to the community certificate (OBC), and that the closing date for receipt of applications for the post was to be treated as crucial date. The original Advertisement No.004/09 had stipulated '15.1.2010' as the closing date for receipt of applications. Thus, the persons, who had applied as OBC (Non-Creamy Layer) in response to the original Advertisement No.004/09, 56 OA No.3585/2015 had to give the declaration in the prescribed format that they did not belong to the creamy layer on 15.1.2010, and to submit, along with their applications, the copies of the OBC (Non-Creamy Layer) Certificates issued in their favour on or before 15.1.2010. Though in the Notice dated 13.9.2011 it was stated that all other details and terms and conditions as contained in the original Advertisement No.004/2009 shall remain unchanged, yet, in my considered view, the said Notice having stipulated '17.10.2011' as the closing date for receipt of applications from the prospective candidates, the crucial date for possession/submission of OBC (Non- Creamy Layer) Certificates by the applicant and other similarly placed persons had to be '17.10.2011'. In view of the issuance of the Notice dated 13.9.2011 enabling the applicant and other similarly persons to make applications by 17.10.2011, the Note (2) appearing in the original Advertisement dated 7.11.2009 stood automatically amended, and/or the 'crucial date' - 15.1.2010, i.e., the closing date for receipt of applications pursuant to the Advertisement No.004/09, stood automatically shifted to 17.10.2011, i.e., the closing date for receipt of applications, only for the purpose of considering their candidatures as OBC (Non- Creamy Layer) candidates on the basis of OBC (Non-Creamy Layer) Certificates issued on or before 17.10.2011. Treating '17.10.2011', i.e., the closing date for receipt of applications (as stipulated in the Notice dated 13.9.2011) as the crucial date for the purpose of considering the candidatures of the applicant and other similarly placed persons as OBC (Non-Creamy Layer) candidates would not be tantamount to shifting of the crucial date from '15.1.2010' to '17.10.2011' for determining the eligibility criteria for selection and recruitment to the post in question, and modifying the track of selection process conducted by the 57 OA No.3585/2015 respondent-DSSSB pursuant to the original Advertisement No.004/09. The rejection of the candidature of the applicant (as being ineligible) by the respondent- DSSSB on the ground of her not possessing the OBC (Non-Creamy Layer) Certificate issued on or before the crucial date '15.1.2010' (as stipulated in the original Advertisement No.004/09) would be tantamount to denying her equal opportunity of being considered for selection and recruitment as an OBC (Non- Creamy Layer) candidate, on the basis of the OBC (Non-Creamy Layer) Certificate dated 18.3.2010, along with other OBC (Non-Creamy Layer) candidates who had made applications pursuant to the original Advertisement No.004/09, though she had fulfilled the eligibility criteria, such as, qualifications, age, etc., as stipulated in both the Advertisement No.004/09 and Notice dated 13.9.2011. In Delhi Subordinate Services Selection Board & Anr. Vs. Preeti Balayan & Anr. (supra), the challenge was to the Tribunal's order dated 30.3.2012 declaring the Notice dated 13.9.2011 retaining 15.1.2010 as the crucial date for eligibility as arbitrary with a direction that the cut-off for eligibility should be shifted to 17.10.2011 being the last date by which the applicants could submit their applications. Considering the effect of the direction of the Tribunal that those candidates who turned 30 years of age as on 15.1.2010 would become ineligible and those who were less than 27 (sic) years of age as on January 15.1.2010 but would be 27(sic) years of age as on 17.10.2011 would become eligible, and that rights of some candidates with respect to the upper age in the context of the shifting of the cut-off date would get adversely affected, the Hon'ble High Court held that the shifting of the eligibility cut-off date from 15.1.2010 to 17.10.2011 would amount to modifying the track and, as a result, making ineligible many 58 OA No.3585/2015 candidates who crossed the age of 30 years as on 17.10.2011. The question of determining the category of candidature of any applicant as an OBC candidate on the basis of possession/submission of OBC (Non-Creamy Layer) Certificate issued in his/her favour either on or before '15.1.2010' (the crucial date stipulated in the Advertisement No.004/09), or on or before '17.10.2011' (the crucial date stipulated in the Notice dated 13.9.2011), was not considered by the Hon'ble High Court of Delhi. It was also not held by the Hon'ble High Court that '15.1.2010' would be the crucial date for the purpose of possession/submission of OBC (Non- Creamy Layer) Certificates by the individuals, like the applicant, who had submitted their applications in pursuance of the Notice dated 13.9.2011. Therefore, the decision in Delhi Subordinate Services Selection Board & Anr. Vs. Preeti Balayan & Anr. (supra) does not support the stand taken by respondent nos. 1 and
2. This apart, the fulfillment of any condition by a candidate to claim benefit of reservation under OBC (Non-Creamy Layer) category is different from that of the eligibility criteria, such as, qualifications, age, experience, etc., as has been rightly contended by Shri Naresh Kaushik, the learned counsel appearing for the applicant.
50. In Ram Kumar Gijroya & ors. Vs. Delhi Subordinate Services Selection Board & Ors. (supra), the law declared by the Hon'ble Supreme Court is that a candidate who appears in an examination under the OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the OBC category. In the case at hand, even if it is assumed that the applicant was required to have been in possession of the OBC (Non-Creamy Layer) Certificate issued on or before 15.1.2010 (the crucial date as stipulated in the original Advertisement No.004/09) and not on or before 59 OA No.3585/2015 17.10.2011 (the crucial date as stipulated in the Notice dated 13.9.2011), the rejection of her candidature as an OBC (Non-Creamy Layer) candidate and/or the declaration by the respondent-DSSSB that she was ineligible to be considered as an OBC (Non-Creamy Layer) candidate for selection and recruitment to the post in question, cannot be held to be sustainable, in the light of the decision of the Hon'ble Supreme Court in Ram Kumar Gijroya & ors. Vs. Delhi Subordinate Services Selection Board & Ors. (supra).
51. In view of what has been discussed in paragraphs 38 to 50, I have no hesitation in holding that '17.10.2011' was the crucial date for the purpose of possession/submission of the OBC (Non-Creamy Layer) Certificate by the applicant, and that the applicant was entitled to be considered as an OBC candidate on the basis of the OBC (Non-Creamy Layer) Certificate which was issued in her favour by the competent authority on 18.3.2010, i.e., prior to the said crucial date (17.10.2011). Therefore, the respondent-DSSSB cannot be held to be justified in declaring the applicant as ineligible for being considered as an OBC candidate, and in rejecting her candidature. Accordingly, the respondent-DSSSB is directed to consider the candidature of the applicant as an OBC candidate, along with other similarly placed persons, for selection and recruitment to the post of Teacher (Primary), Municipal Corporation of Delhi, in pursuance of the Advertisement No.004 of 2009(Post Code No.70/09) within a period of three months from today.
52. Resultantly, the O.A. is allowed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER 60 OA No.3585/2015 Referral order under Section 26 of the Administrative Tribunals Act, 1985:
53. As we differ through our proposed and dissented opinions, while adjudicating the issue in this O.A., we refer the case to the Hon'ble Chairman of the Tribunal for hearing, either by himself, or by one/more of the other Members of the Tribunal to be nominated by him, on the points of difference between us enumerated below:
(1) Whether the issue discussed and answered by the Administrative Member in the proposed order has arisen on the facts and in the circumstances of the case?
(2) Whether the issue discussed and answered by the Judicial Member in the dissenting order has arisen on the facts and in the circumstances of the case? And (3) Whether the view taken by the Administrative Member rejecting the O.A., or the view taken by the Judicial Member allowing the O.A., is correct?
53.1 The records of the O.A., along with our differing opinions, shall be placed by the Registry before Hon'ble the Chairman to pass appropriate orders under Section 26 of the Administrative Tribunals Act, 1985.
(RAJ VIR SHARMA) (SUDHIR KUMAR) MEMBER(J) MEMBER(A) 61 OA No.3585/2015