Central Administrative Tribunal - Delhi
Shreta vs Delhi Subordinate Services Selection ... on 8 October, 2024
1
OA No. 4335/2017
Item No.61/C-4
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4335/2017
Reserved on : 12.09.2024
Pronounced on : 08.10.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Ms. Shreta (Aged 25 years)
D/o Sh. R.P. Singh
R/o H.No. E-7, Qutub Vihar
Phase-I, Near Sector-19
Dwarka, Delhi-110071.
.. Applicant
(By Advocate: Mr. Prateek Aggarwal)
Versus
1. The Secretary
Delhi Subordinate Services Selection Board
FC-18, Institutional Area
Karkardooma, Delhi-110092.
2. The Secretary, Education
(Govt. of NCT of Delhi)
Delhi Secretariat,
ITO Players Building, Delhi.
.. Respondents
(By Advocate: Mr. H.A. Khan)
2
OA No. 4335/2017
Item No.61/C-4
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) The present Original Application (O.A.) has been preferred by the applicant, who belongs to OBC category, challenging the impugned Rejection Notice No.209 dated 10.11.2017 issued by Delhi Subordinate Services Selection Board (DSSSB), i.e. the respondent No.1, whereby her candidature for appointment to the post of TGT (Computer Science), Post Code 192/14 in Directorate of Education (DoE), Delhi, has been rejected on the ground that she is "OBC outsider". Feeling aggrieved, she has filed the instant O.A. seeking the following reliefs:-
"i. To direct the respondents to give appointment to the applicant for the post of TGT (Computer Science) immediately, while considering the applicant as she is OBC Candidate.
ii. Any other order, direction or relief as deemed appropriate in the circumstances of the case may also please be granted."
2. In brief, the background of the case is that the respondent No.1 issued Advertisement No. 01/14 in February, 2014 inviting online applications for recruitment to various posts, including the post of TGT (Computer Science) Post Code No.192/14, wherein the number of vacancies for OBC candidates was mentioned as 547. Being eligible, the applicant, applied for the said post and participated in the selection process. She was shortlisted as she secured 78.25 marks, against the cut-off marks, i.e. 68.6% for OBC candidates, and also 3 OA No. 4335/2017 Item No.61/C-4 uploaded the e-dossier as per the directions of the respondents. However, vide the impugned Rejection Notice No.209, dated 10.11.2017 (Annexure-A1), the respondents rejected her candidature on the ground that the applicant is an OBC (Outsider). 2.1 Learned counsel for the applicant submitted that the circular upon which reliance has been placed by the respondents, is prospective and cannot be retrospectively applied to the issue under challenge. To substantiate his arguments, the learned counsel for the applicant relied upon circular dated 27.07.2007 issued by the Joint Secretary (Services), Govt. of NCT of Delhi on the subject 'Reservation for OBCs in the jobs under the Government of NCT of Delhi', the relevant abstract of the same is as under:
"I am directed to inform that the Hon'ble Lt. Governor has considered the matter regarding grant of benefit of reservation to OBCs in Civil posts under the Govt. of NCT of Delhi and has decided that the Central list for OBCs qua Delhi and castes defined as OBCs by OBC Commission and accepted so by the Government be extended the benefit of reservation in Delhi.
In light of the above, appropriate action for grant of benefit of reservation to OBCs in the civil posts of Govt. of NCT of Delhi may be taken accordingly."
2.2 He further drew attention to communication dated 28.07.2016 annexed at page No.87 (Annexure R-1) of the rejoinder, which reads as under:-
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI SERVICES DEPARTMENT-(BRANCH-IV) 7TH LEVEL, B-WING, DELHI SECRETARIAT I.P.ESTATE, NEW DELHI-110002 No.F.19(01)/2012/S.IV/12.41-1258 Dated: 28/7/2016 4 OA No. 4335/2017 Item No.61/C-4 To, All Head of Departments, Govt. of N.C.T. of Delhi, Delhi/New Delhi.
Sub: Reservation for OBCs in the jobs under the Government of N.C.T. of Delhi-reg.
Sir/Madam, In continuation with this department's circular dated 27.07.2007 οn the subject cited above (copy enclosed) I am directed to inform that Govt. of N.C.T. of Delhi has decided to accept the following two types of certificates as valid certificates for grant of benefit of reservation to OBCs in civil posts under Govt. of N.C.T. of Delhi:-
1) OBC certificate (Delhi) Issued by the Revenue Department of GNCT of Delhi, on the basis of any old certificate issued to any member of individual's family from GNCT of Delhi.
2) OBC certificate issued by a Competent Authority outside Delhi to a person belonging to a community duly notified as OBC by GNCT of Delhi. This certificate should have mandatorily been issued on the basis of OBC certificate issued by Govt. of N.C.T. of Delhi to any family member of the concerned person who had been residing in Delhi before 08.09.1993.
This issues with the prior approval of the Competent Authority.
Encl: As above.
Yours faithfully,
-sd/-
(ANUPMA CHAKRAVORTY) DY. SECRETARY (SERVICES) No.F.19(01)/2012/S.IV/1241-1258 Dated: 28/7/2016 Copy to:
1. Pr. Secretary to Lt. Governor, Delhi, Govt. of N.C.T. of Delhi.
2. Pr. Secretary to the Chief Minister, Govt. of N.C.T. of Delhi.
3. Staff Officer, O/o the Chief Secretary, Govt. of N.C.T. of Delhi.
4. Secretaries to all Ministers, Govt. of N.C.T. of Delhi.
5. Superintendent (Services-I, II, III, ACP cell & Coordination branch, Delhi Secretariat, Govt. of N.C.T. of Delhi.
6. Superintendent (Coordination), Delhi Secretariat to upload on the website of Services Department.
7. Guard file."5 OA No. 4335/2017
Item No.61/C-4 2.3 Learned counsel for the applicant has relied upon the Order dated 02.02.2024 of the Hon'ble Apex Court, rendered in Civil Appeal No.1566/2024 titled Anil Kishore Pandit vs The State of Bihar and Others. The relevant portion of the same reads as under:-
"8. It is settled law that it is not open for an employer to change the qualifications prescribed in the advertisement midstream, during the course of the ongoing selection process. Any such action would be hit by the vice of arbitrariness as it would tantamount to denial of an opportunity to those candidates who are eligible in terms of the advertisement but would stand disqualified on the basis of a change in the eligibility criteria after the same is announced by the employer. Having applied for appointment in accordance with the terms prescribed in the advertisement, a candidate acquires a vested right to be considered in accordance with the said advertisement. This consideration may not necessarily fructify into an appointment but certainly entitles the candidate to be considered for selection in accordance with the rules as they existed on the date of the advertisement. To put it differently, the right of a candidate for being considered in terms of the advertisement stands crystalized on the date of the publication of the advertisement. Any subsequent amendment to the advertisement during the course of the selection process unless retrospective, cannot be a ground to disqualify a candidate from the zone of consideration."
2.4 Learned counsel for the applicant further drew attention to OBC certificate annexed as Annexure A6 (page 33 of the O.A.), highlighting the following portion:-
"This certificate is issued on the basis of OBC certificate issued to EKTA SISTER of SHRETA R/o VILL-BHENEDRA THE BUDANA UP belongs to BADHAI community of UTTAR PRADESH State vide Certificate No.02409303568 dated 24/7/2006 issued by the TEHSILDAR."
and submitted that the applicant is OBC by birth as she belongs to 'Badhai' community which comes in the category of OBC in Delhi as well as outside Delhi and she has been issued a certificate from the 6 OA No. 4335/2017 Item No.61/C-4 Govt. of Delhi and, therefore, her candidature should not have been rejected.
3. Opposing the grant of relief, the learned counsel for the respondents relied upon the averments made in the counter affidavit and drew attention to communication dated 28.07.2016, which is referred to hereinabove by the learned counsel for the applicant. He contended that the applicant would be treated as OBC outsider as she belongs to 'Badhai' community which is recognized as OBC in the State of Uttar Pradesh and the OBC certificate issued to her was issued on the basis of OBC certificate issued by Tehsildar, Budana to her sister, viz. Ekta, who is a permanent resident of Vill. Bhenedra, UP.
3.1 In support of his contention, the learned counsel has relied upon the Judgment in MCD vs Veena & Ors. in Appeal (Civil) No.3045 of 1998, wherein the Hon'ble Apex Court has opined as under:
"Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be 7 OA No. 4335/2017 Item No.61/C-4 another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.
It is clear that the Government of India had notified on 15.11.1993 two model Forms of Certificates to be furnished by the OBC candidates seeking benefit of reservations. Form prescribed in Annexure 'A' thereto was required to be produced by candidates belonging to OBCs applying for appointment to posts under the Government of India and which certificate was to be verified from the prescribed authorities indicated therein and a Note was added thereto to the effect that for Government of the National Capital Territory of Delhi Annexure 'AA' was required to be fulfilled Annexure 'AA' prescribes a different kind of certificate which reads as follows:
"ANNEXURE 'AA' Form of Certificate to be produced by other backward classes applying for appointments to posts under the Government of National Capital Territory of Delhi.
-------------
This is to certify that________s/o_________of village ____________District/Division_________State__ ________belongs to the _______community which is recognised as backward class under the Government of NCT of Delhi notified vide Notification No. F.88(93)/91- 92/SC/ST/P&S/4384 date : 20.01.1995 published in the Gazette of Delhi Extraordinary Part-IV dated : and/or his family ordinarily reside(s) in the _________District/Division. Division of the ___________State. This is also to certify that he/she does not belong to the Persons/Sections (Creamy layer) mentioned in Column 3 of the Schedule to the Government of India, Department of Personnel and Training O.M. No. 36012/22/93-Estt. (SCT) dated 08.09.1993."
A careful reading of this notification would indicate that the OBCs would be recognised as such in the Government of National Capital Territory of Delhi as notified in the Notification dated 20.01.1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificates will have to be issued only by the specified authorities and certificates issues by any other authority could not be accepted. The Government of India has also issued instructions from time to time in this regard which indicated that a person belonging to 8 OA No. 4335/2017 Item No.61/C-4 OBC on migration from the State of his origin in another State where his caste was not in the OBC list was entitled to the benefits or concessions admissible to the OBCs in his State of origin and Union Government, but not in the Sate to which he has migrated."
3.2 He has also placed reliance on the Order dated 10.02.2021 passed by a coordinate Bench of this Tribunal in O.A. No. 285/2021 titled Ms. Shaheen Ishrat vs Government of NCT of Delhi & Ors., highlighting the following paragraphs:
"8. In the instant case, the applicant relied upon two certificates. First is the one dated 25.02.2014 issued by the office of the Deputy Commissioner, South West District Delhi. This, in turn, is based upon a certificate issued to the father of the applicant by an authority from the State of UP. He was shown as resident of the District of Faizabad. By its very nature, it does not fit into any of the two kinds of certificates mentioned in the circular dated 25.02.2014.
9. The second certificate is the one dated 07.06.2017 issued by the Tehsildar under the office of the District Magistrate, Dwarka, South West, Delhi. This again, is issued on the basis of the earlier certificate dated 25.02.2014., and it does not improve the situation. This also does not fit into the parameters mentioned in the circular. This being the case, the applicant cannot be extended the benefit of reservation of OBC candidate. Furthermore, the facts of this case are similar to those of Monika Chaudhary (supra).
10. In light of the above, we find that this OA has no merit and is dismissed. No order as to costs."
3.3 He clarified that since the applicant was not an original inhabitant of Delhi and migrated to Delhi much after the crucial date of determining the eligibility for extending OBC (Delhi) benefits, i.e. 08.09.1993, her candidature could not be considered under OBC category. He further clarified that she could not be considered under UR category, as she scored 78.25 marks whereas the last selected candidate scored 98.50 marks under UR category. 9 OA No. 4335/2017 Item No.61/C-4
4. Heard the learned counsel for the respective parties and perused the pleadings/judgments on record.
5. From a perusal of the record, it reveals that the applicant has relied upon the certificate issued by the Revenue Department, Govt. of NCT of Delhi which, in turn, is based upon a certificate issued to her sister, who is a resident of Village Bhenedra, Teh. Budana, UP, by an authority from the State of UP. By its very nature, it does not fit into any of the two kinds of certificates mentioned in the circular dated 28.07.2016. Accordingly, the applicant cannot be extended the benefit of reservation of OBC candidate. Furthermore, the judgment relied upon by the applicant in Anil Kishore Pandit (supra) being distinguishable from the facts of the present case and thus will provide no help to the applicant. However, the facts of this case are similar to those in the case of Ms. Shaheen Ishrat (supra).
6. In view of the above, we find no merit in the O.A. and the same is accordingly dismissed. No order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/