Central Administrative Tribunal - Delhi
Komal Rani vs Govt. Of Nctd on 2 August, 2024
1
OA. No.303/2020
Item No. 36 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 303/2020
This the 02nd Day of August, 2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Komal Rani
W/o Sh. Vikas
R/o H. No. 94 A, Phase II, Gopal Nagar, Najafgarh, New
Delhi - 110043
Aged about 29 years
(Group 'B')
(Candidate to the post of Teacher (Primary))
.... Applicant
(By Advocate : Mr. Ajesh Luthra with Ms. Meenu
Sharma)
VERSUS
1 GNCT of Delhi Through its Chief Secretary 5th Level,
'A' Wing, Delhi Secretariat, IP Estate, New Delhi
2. Delhi Subordinate Services Selection Board (DSSSB)
Through its Chairman, FC-18, Karkardooma
Institutional Area,
Delhi-92
3. South Delhi Municipal Corporation Through its
Commissioner, 9th Floor, Civic Centre,
New Delhi
.... Respondents
(By Advocate : Mr. Amit Yadav)
2
OA. No.303/2020
Item No. 36 (C-4)
ORDER (ORAL)
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J) The present OA has been filed seeking the following reliefs :
(a) quash and set aside the impugned action/order of respondents dated 09/05/2019 placed at Annexure A/1, to the extent it relates to the applicant.
(b) Direct the respondents to further consider and appoint the applicant to the post of Teacher (Primary) 16/17 in with post code 1/18.
(c) Accord all consequential benefits.
(d) Award costs of the proceedings, and
(e) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant.
2. At the outset, learned counsel for the applicant states that the applicant was born in the State of Haryana and belongs to the caste "Nai", a caste recognized as OBC, in the State of Haryana. By way of marriage which took place on 08.12.2013, she got married to one Mr. Vikas, and due to marriage, she shifted to the State of Delhi and started living with her husband and her in-laws. It is pertinent to note that the husband and his family belong to the same case i.e. "Nai" which is also recognized as OBC in Delhi.
The applicant was an aspirant for the post of Primary Teacher and had applied in response to the 3 OA. No.303/2020 Item No. 36 (C-4) notification issued by DSSSB. The recruitment process was conducted by DSSSB and she was declared successful in the OBC category. The cut off declared for OBC category was 98.50, the applicant secured 113.50 and as such, she was qualified and declared successful. By the impugned order dated 09.05.2019, her candidature was not considered and the offer of appointment has eluded her. She has been considered to be an OBC (Migrant)/OBC(Outsider) and therefore denied benefit of reservation. The applicant therefore has approached the Tribunal seeking appointment.
3. Learned counsel for the applicant submits that the present case cannot be considered as the case of a migrant person as the applicant had shifted to Delhi only after her marriage and it was due to her marriage that she started residing in Delhi. He relied upon the caste certificate dated 13.04.2017, issued to the applicant by the competent authority at Delhi. In this certificate, the applicant's caste has been recognized as Nai and the certificate is issued by the State of Delhi. He therefore submits that the respondents have wrongly denied her appointment.
4OA. No.303/2020 Item No. 36 (C-4)
4. He relies upon a recent decision of the co-ordinate bench of this Tribunal in OA No 3823/2017 dated 17.01.2023 wherein in similar circumstances, the OA has been allowed with direction to the respondents to treat the applicant as selected. The relevant portion is being quoted here as under :
6. After perusal of the pleadings and the documents on record, the following points emerge:
First, that the applicant has secured 73.5 marks, that are well above the marks secured by the last selected candidate in her category. Second, she belongs to a caste that is declared as an OBC both in the State of Haryana and Delhi. Third, the husband of the applicant also belongs to a caste (DAHIYA) that finds mention in the list of OBC of Delhi thereby implying that the applicant belongs to the OBC category not only by birth but also by her marital status. Fourth, the candidature of the applicant has been rejected stating MIGRANT OBC.
7. In our opinion, the applicant cannot be treated as a MIGRANT OBC as she has come to Delhi in view of change in her marital status and by virtue of the same she has become a resident of Delhi for all times to come. The said view is supported by the judgment mentioned hereinabove referred to by the applicant. As far as the contention of the learned counsel for the respondent is concerned, the certificate so provided by the applicant is not based on the status of the husband of the applicant, they (respondents) are bound by the guidelines on the subject and the applicant does not have control over the authorities that issue such certificates and, therefore, she cannot be held responsible for the same. Though we should have directed the applicant to provide the certificate afresh but in view of the fact that the selection is of the year 2014 and already 9 years have elapsed.
8. In the peculiar facts that the applicant belongs to OBC caste by birth and marriage, we allow this OA. The rejection order dated 21.09.2017 is hereby quashed and 5 OA. No.303/2020 Item No. 36 (C-4) set aside. The respondents are directed to treat the applicant as selected and offer her appointment letter to join as ANM with respondent No. 2 along with all consequential benefits within a period of one month from the date of receipt of certified copy of this order.
9. No order as to costs.
5. On the other hand, Mr. Amit Yadav, learned counsel appears for R-1 and 2. He vehemently argues and states that the OBC certificate dated 13.04.2017, relied upon by the applicant, is not admissible as the same has been issued, on the basis of OBC certificate of the applicant, issued to her by the State of Haryana.
He submits that since the applicant was not a resident of Delhi in the year 1992 and started residing in Delhi only after her marriage, she has to be treated as a migrant OBC and not as an OBC of Delhi. However, he does not refute that both the husband and wife belong to the Nai community. He also submits that the OBC certificate has been issued by the State of Delhi only for the limited purpose of applying for appointment to the posts under the Government of India. He submits that the certificate issued to the husband of the applicant who is a normal resident of Delhi is also on record. He draws our attention to state that two separate certificates have been issued. One, issued by 6 OA. No.303/2020 Item No. 36 (C-4) the State of Delhi, is for appointment under the Central Government only. The other certificate of the applicant is certifying the caste status of the applicant, issued to him based on his father's certificate who was a regular citizen of Delhi. He therefore submits that the applicant's certificate cannot be considered for appointment.
6. We have considered the rival submissions and also perused the documents on record.
7. The co-ordinate bench of this Tribunal in OA No 3823/2017 had passed a detailed order after noting down not only the submissions of the parties but also the various decisions of the courts, including that of the Hon'ble High Court of Delhi in case of one Ms. Sunita vs. GNCTD & Ors., wherein the Hon'ble High Court of Delhi has held as under :
"4. Respondents in opposition to the writ petition and justification for treating petitioner's case as that of a general candidate averred in the counter affidavit that petitioner had failed to furnish the caste certificate, issued by the Competent Authority of Govt. of NCT of Delhi, by 30.6.1998, the last date for submitting the application form with required documents. Petitioner having failed to comply with the said requirement was not entitled to invoke the writ jurisdiction or to be considered as an OBC candidate. Additionally, an objection was taken that petitioner being an OBC candidate from Haryana was, in any case, not entitled to get the benefit of reservation in the post under 7 OA. No.303/2020 Item No. 36 (C-4) the Govt. of NCT of Delhi or local autonomous body subordinate to the said Government.
8. Learned counsel for the petitioner further submitted that Annexure P-1 shows that applications had been invited from Indian Nationals. There was no restrictive covenant, confining the applicants to be residents of Delhi. Accordingly, as far as the denial of non-consideration of the petitioner's status as an applicant in OBC category on the ground that the caste certificate from a Competent Authority of Govt. of NCT had not been furnished before 30th June, 1998, the same is held to be not sustainable.
9. Let us consider the objection that petitioner though being certified as `Ahir' and backward class in Haryana was not entitled to benefit of the same in NCT of Delhi. Learned counsel for the respondent submitted that as per the certificate appearing at page 15 of the paper book, petitioner was resident of Haryana. It had been so certified. In the second certificate appearing at page 16 of the paper book, issued by SDM of Govt of NCT of Delhi dated 8th October, 1998, she had been certified as resident of Delhi, belonging to "Ahir" Caste. The certificate, issued from Delhi also carries the notation of not belonging to Creamy Layer. Learned counsel for the respondent Mr.George Paracken submitted that the Tejpal Singh's case will not advance the petitioner's case as the objection is not only that the certificate had been tendered by the candidate after the cut off date. The problem does not get over with the direction that the certificate furnished after the cut off date may be accepted. It is not the case, where the cut off date is the only issue. Here the very entitlement of the petitioner to backward class entitlement in the State, to which she has migrated i.e., NCT of Delhi, is sought to be questioned. It is further urged that Kunwar Pal Singh's case, namely, WP(C).No.5061/2001 would also not advance the petitioner's case, since there the provision is made for the benefit of reservation being available to those, who had been born and brought up in Delhi even though they may have migrated with their parents.
19. The aforesaid certificate records that "Ahir" is recognized as a backward class in terms of notification bearing No.F.28(93)/91-92/SC/ST/P&S/4384 dated 20.1.95. There is further certification that the petitioner does not belong to the creamy layer. The above certificate has been issued in the prescribed Annexure `AA' which is required for OBC candidates applying to posts under the 8 OA. No.303/2020 Item No. 36 (C-4) Government of NCT of Delhi. The Certificate is in accordance with the prescribed requirements as noted by the Supreme Court in MCD V.Veena (Supra) to confer the benefit of reservation as backward class in NCT of Delhi. The petitioner having been granted this certificate, in my view, the said certificate is binding and conclusive on the respondents. The said certificate itself assumes that the authorities have satisfied themselves as to the eligibility of the petitioner to be treated as an OBC in the NCT of Delhi for posts falling under the Government of NCT. The authorities are to issue the said certificate after due verification and satisfaction and subject to the petitioner fulfillling the conditions of eligibility as an OBC candidate, including that of being ordinarily resident. It is not the case of the respondent that the aforesaid certificate had not been issued or was fraudulently issued or has been revoked. As long as the aforesaid certificate is subsisting, valid and in force, the respondents cannot deny the consideration to the petitioner as an OBC candidate, even though the initial certificate may have been from the State from which she has migrated, or raise an objection as to the origin of the petitioner. Accordingly, this case is on a different footing from Manju Rani V. DSSB & Ors. (Supra) in view of the OBC certificate having been issued by the prescribed and Competent Authority of NCT."
8. Further, in DSSSB vs. Vikas Kumar, the Hon'ble High Court of Delhi has held as under :
"19. Noting conflicting decisions by different Benches, some following the law declared by the Supreme Court in S.Pushpa's case and some following the law declared in Marri's and Action Committee's case, the matter was referred to a Full Bench of this Court and we have the decision of the Full Bench reported as 2012 (132) DRJ 169 Deepak Kumar & Ors. Vs. District & Sessions Judge Delhi.
22. We may additionally note that much before the decision of the Supreme Court in S.Pushpa's case which was pronounced in the year 2005, on August 27, 2003 the Government of NCT of Delhi issued an Office Memorandum on the subject of reservation for Scheduled Tribes for recruitment to civil posts under the Government of NCT of Delhi, which reads as under:-9 OA. No.303/2020
Item No. 36 (C-4) "Ministry of Home Affairs, Govt. of India vide letter cited above have clarified that the instructions contained in the MHA, O.M. No.7/2/55/SCT dated 14.10.55, in accordance with which the percentages of reservation prescribed for recruitment on an All India basis are required to be followed in Delhi continue to be in force and applicable in respect of civil post under the Govt. of NCT of Delhi.
Accordingly, the Civil posts under the Govt. of NCT of Delhi reserved for Scheduled Tribes are required to be filled up from amongst Scheduled Tribes candidates irrespective of nativity.
Accordingly, it has been decided that Govt. of NCT of Delhi may continue to reserve the prescribed percentage of Civil posts under the Govt. for appointment of Scheduled Tribes candidates as has been the practice in the past. Therefore, in terms of the aforesaid clarification 7.5% of Civil posts under the Govt. may be kept reserved for appointment of Scheduled Tribes candidates irrespective of their nativity and appropriate action for recruitment may be taken."
(Emphasis Supplied)
23. The position would be that in Delhi it would be a case of a conscious decision taken, as was taken by the appropriate Government in the Union Territory of Pondicherry, to extend benefit of reservation to, if we may use the expression migrant Scheduled Castes and Scheduled Tribes, provided the holder of the certificate is otherwise an ordinary resident of Delhi.
26. Ravindra Devi, the writ petitioner of WP(C) No.3049/2012 has been unsuccessful before the Tribunal. She claims benefit of reservation on the strength of a certificate issued by the competent authority in the State of Haryana certifying she belonging to the Scheduled Caste „Chamar‟.
27. The reason given by the Tribunal to deny her relief is wrong, being that the certificate produced by her has been issued by an authority in Haryana. But she would not be entitled to any relief because admittedly she resides in Haryana and it had not her case that she is ordinarily a resident of Delhi. The law declared in S.Pushpa's case (supra) is that a person who is a member of a Scheduled 10 OA. No.303/2020 Item No. 36 (C-4) Caste in a particular State would be entitled to reservation in a Union Territory provided he is ordinarily a resident of the Union Territory.
28. WP(C) No.3049/2012 is accordingly dismissed.
29. Challenge in WP(C) 6485/2011 is to the order dated March 23, 2011 allowing TA No.73/2010 filed by Vikas Kumar, the respondent in the writ petition.
30. It is not in dispute that Vikas Kumar is ordinarily a resident of Delhi. In fact, his parents migrated to Delhi. He was born in Delhi and has studied in Delhi all throughout. The Senior Secondary School Examination has been cleared by him as a student of a Government Senior Secondary School. He has obtained a Graduate degree at a college at Delhi. He is a member of a caste which is a Scheduled Caste not only in Delhi but even his parent State where his ancestors resided before his father migrated to Delhi i.e. the State of Uttar Pradesh. The Tribunal has correctly opined in his favour of being entitled to the benefit of reservation in Delhi."
9. After considering the settled law as quoted above, the co-ordinate bench allowed the OA and granted relief. We would like to note that even in that case also, it was the case of marriage. Applicant therein shifted to the State of Delhi from Haryana. Therein also, both husband and wife belonged to OBC category.
10. Counsel for the respondents stated that the order of the co-ordinate bench is under challenge since a Writ Petition No. 8695/2023 has been preferred. The same is pending adjudication before the Hon'ble High Court and is fixed for hearing on 07.10.2024. 11 OA. No.303/2020 Item No. 36 (C-4)
11. Since the issue has been dealt with in detail by a co-ordinate bench of this Tribunal, we do not wish to differ from the same. As such, the present OA is allowed in terms of the order passed in OA No 3823/2017, however, subject to the outcome of the pending Writ Petition No. 8695/2023.
12. With the following directions, the OA is allowed. Pending MA, if any, stands disposed of. There shall be no orders as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/NK/