Central Administrative Tribunal - Delhi
Virender Solanki vs Govt. Of Nct Of Delhi Through Chief ... on 4 August, 2009
Central Administrative Tribunal Principal Bench OA No.0342/2009 TA No.1349/2009 TA No.1350/2009 TA No.1378/2009 New Delhi this the 4th day of August, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Mr. N.D. Dayal, Member (A) OA No.342/2009 Virender Solanki, S/o Sh. Ram Chander, R/o House No.289, V.P.O. Pooth Kalan, Delhi-110041. -Applicant (By Advocate Shri F. Hassan) -Versus- 1. Govt. of NCT of Delhi through Chief Secretary, Sachivalaya, I.P. Estate, New Delhi. 2. Delhi Subordinate Service Selection Board through Chairman Third Floor, UTC Building, Vishwas Nagar, Shahdra, Delhi-110032. 3. Director of Education, 5 Sham Nath Marg, Delhi. -Respondents (By Advocates Shri Vijay Pandita and Shri Amit Paul) TA No.1349/2009 Ms. Fakeha Iram, D/o Shri Rizwan Ali, R/o 1063, Street Rajan, Farsh Khana, Delhi-110006. (By Advocate Shri Ashok Aggarwal) -Versus- 1. Delhi Subordinate Service Selection Board through Secretary, F.C. 18, Institutional Area, Delhi-110032. 2. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002. 3. The Municipal Corporation of Delhi through its Commissioner, Chandni Chowk, Delhi-110006. -Respondents (By Advocates Shri Vijay Pandita and Shri Amit Paul) TA No. 1350/2009 Shishupal Arya, S/o Shri Dayaram Singh, R/o 201, Gali No.13, Balbir Nagar Extension, Delhi-110032. -Applicant (By Advocate Shri Ashok Aggarwal) -Versus- 1. Delhi Subordinate Service Selection Board through Secretary, F.C. 18, Institutional Area, Delhi-110032. 2. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002. 3. The Municipal Corporation of Delhi through its Commissioner, Chandni Chowk, Delhi-110006. -Respondents (By Advocates Shri Vijay Pandita and Shri Himanshu Upadhyay) TA No.1378/2009 Ms. Savita, D/o Azad S. Sahrawat, R/o H. No.149, Near Chopal, Village Majri, P.O. Karala, Delhi-110081. -Applicant (By Advocate Shri Ashok Aggarwal) -Versus- 1. Delhi Subordinate Service Selection Board through Secretary, F.C. 18, Institutional Area, Delhi-110032. 2. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002. 3. The Municipal Corporation of Delhi through its Commissioner, Chandni Chowk, Delhi-110006. -Respondents (By Advocates Shri Vijay Pandita and Shri Amit Paul) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
As OA No.342/2009 and these three other TAs are founded on common facts, with an identical question of law, are being disposed of by this common order.
2. Applicants have applied for the posts of Teacher in different disciplines in pursuance of an advertisement dated 12.10.2007 where the cut off date for receipt of the certificate was 31.10.2007, yet the OBC certificates were issued after this cut off date but within a short period, though applied earlier, their candidatures were cancelled on the ground of submission of OBC certificates after the cut off date.
3. Learned counsel of applicant relies upon the decision of the High Court of Delhi in Civil Writ Petition No.8508/2008, decided on 2.2.2009 in Pradep Kumar Sharma v. DSSSB and also the decision in Civil Writ Petition No.548/2008 in Govt. of NCT of Delhi v. Poonam Chauhan, decided on 9.7.2008 to substantiate his plea. Also relied upon is the decision of the High Court of Delhi in Tej Pal Singh and others v. Govt. of NCT of Delhi and another, Civil Writ Petition No.1357 of 1999, decided on 24.12.1999, which has been upheld by the Apex Court in Special Leave Petition No.4826/2001 on 16.4.2001. The decision of the High Court in LPA No.304/2008 in Delhi Subordinate Services Selection Board and another v. Tej Pal Singh and others, decided on 15.12.2000 is also relied upon, where the identical issue was laid at rest by holding that if OBC certificate was applied before the cut off date this is not a ground to deny appointment.
4. On the other hand, learned counsel of respondents vehemently opposed the contentions and while relying upon the decisions of the Apex Court in Indian Council of Agricultural Research and another v. T.K. Suryanarayan and others, (1997) 6 SCC 766 and District Collector & Chairman, Vizianagram Social Welfare Residential School Society, Vizianagaram and another, (1990) 3 SCC 655 it is contended that appointment contrary to the rules is not legally tenable. Learned counsel has also relied upon a decision of the High Court of Delhi in Mrs. Ravita and Ors. v. MCD and Anr., WP (C) No.6466/2008, decided on 18.11.2008.
5. We have carefully considered the rival contentions of the parties and perused the material on record. In LPA (supra) the decision of the Division Bench of the High Court has taken cognizance of the decision in Tejpal Singh (supra), which has attained finality by disposal of the Special Leave Petition by the Apex Court. Moreover in a similar controversy in OA-370/2009 Anu Devi v. MCD & Ors., decided on 17.7.2009 a similar issue has been concluded as under:
5. We have carefully considered the rival contentions of the parties and perused the material on record. Unlike SC/ST an OBC is not a backward class since birth but as a fall out of the Mandal Commissions report and the central list issued by the Government as per Article 340 of the Constitution of India and Department of Personnel & Training OM of 13.1.1995, 27% of the vacancies in civil posts under direct recruitment quota are to be reserved for OBC and a methodology has been given vide Department of Personnel & Training OM dated 15.11.1993 that a certificate to be produced by the OBC candidate regarding creamy layer etc. Applicant, whose caste has been included in the central list long back before advertisement was issued by the respondents had applied for an OBC certificate, which was ultimately issued to her on 5.11.2007. In our considered view, the decision of the High Court of Delhi on all fours covers the present issue, as the applicant was an OBC candidate on the date of the advertisement and delay in issuance of the certificate is not attributed to her. It is stated that even after few days, i.e., from 29.10.2007 the certificate was submitted on 5.11.2007 respondents cannot deny reservation and other relaxation to the applicant on account of her not being an OBC on the last date. A certificate only acknowledges the status already conferred upon applicant as an OBC by inclusion of her caste in the central list and is a declaration to this effect, which would relate back. The issue of cut off date, as propagated by Shri Vijay Pandita, learned counsel of respondents may hold good for educational qualifications but would not apply in case of a caste certificate. Moreover, the distinction drawn by the learned counsel of respondents between the caste certificate issued to SC/ST and OBC is highly imaginary, as status of both emanates from a back date when on the basis of the report of the Mandal Commission the central list for OBC includes the caste of applicant as an OBC.
6. Accordingly, OA stands disposed of with a direction to the respondents to declare the result of the applicant and to process her case for appointment as Teacher (Primary) with all benefits, as admissible in law, within a period of two months from the date of receipt of a copy of this order. No costs.
6. The case law cited by the respondents do not pertain to the issue in question, which is now set at rest in LPA. Accordingly, these matters are disposed of with a direction to the respondents to declare the result of applicants and to process their cases for appointments as Teacher in their respective discipline to which they have applied, with all benefits, as admissible in law, within a period of two months from the date of receipt of a copy of this order. No costs.
7. Let a copy of this order be placed in each case file.
(N.D. Dayal) (Shanker Raju) Member(A) Member (J) San.