Central Administrative Tribunal - Delhi
Bijender Singh S/O Shri Rajbir Singh vs Employees State Insurance Corporation on 30 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2215/2011 O.A.No.2216/2011 O.A.No.2217/2011 O.A.No.2218/2011 And O.A.No.2245/2011 M.A.No.1635/2011 This the 30th day of August 2011 Honble Shri M. L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) OA 2215/2011 Dheeraj Tanwar s/o Shri Sunder Singh Tanwar r/o WZ-391A, Basai Darapur, New Delhi OA 2216/2011 Samar Singh s/o Shri Chattar Singh R/o H.No.276, Vill & PO Mitraon, New Delhi OA 2217/2011 Satpal Gahlot s/o Shri Tara Chand r/o H.No.4515, Vill & PO Mitraon, New Delhi-43 OA 2218/2011 Bijender Singh s/o Shri Rajbir Singh r/o Ch. Hargyan Singh Margket, V&PO Chhawla, New Delhi ..Applicants (By Advocate: Shri Yogesh Sharma) OA 2245/2011 1. Iqbal Khatri s/o Shri Surender Singh Khatri r/o H.No.7 B, Sadh Mohalla PO Alipur Hiranki, Delhi-36 2. Ramvir Khatri s/o Shri Zile Singh r/o H.No.1101, Pana Poposion, Narela, Delhi-40 3. Pardeep Khatri s/o Shri Jaipal Khatri r/o H.No.281 Village & PO Bankner, Delhi-40 ..Applicants (By Advocate: Shri Ranbir Yadav) Versus 1. Employees State Insurance Corporation Through the Director General Punchdeep Bhawan CIG Road, New Delhi 2. The Director (Medical) Delhi ESO Scheme, Dispensary Complex Tilak Vihar, New Delhi-18 ..Respondents (By Advocate: Ms. Rekha Palli and Ms. Punam Singh) O R D E R
Shri M.L. Chauhan:
By this common order, we propose to dispose of these OAs as common question of facts and law is involved.
2. Briefly stated, facts of these OAs are that respondent No.2 invited the applications from open market for 75 posts of Nursing Orderly, including 26 posts meant for OBC category. It is not in dispute that the recruitment in Employees State Insurance Corporation (ESIC) was region-wise but the advertisement was issued for Delhi region only. The applicants, who fulfill the eligibility criteria, applied for the said post and after qualifying the written test, they were given offer of appointment vide the order dated 20.6.2006 in all the OAs, except in OA-2245/2011 and the same was accepted by the competent authority and accordingly the applicants were given posting as Nursing Orderly vide the order dated 28.8.2006. However, in OA-2245/2011, 74 posts of Nursing Orderly, including 26 posts meant for OBC, were advertised by respondent No.2 and the applicants in this OA were given offer of appointment vide the order dated 3.9.2007, which was approved by the competent authority and applicants were given posting on 28.9.2007.
3. It may be relevant to state here that by filing up the post of Lower Division Clerk (LDC) in the year 2009 persons belonging to Jat community of Delhi, who were not included in the OBC category in the central list, were not treated as OBC candidates. They approached the High Court of Delhi by filing the writ petition, which was subsequently transferred to this Tribunal, thereby stating that persons belonging to same category have already been given appointment by the respondents-department against OBC category, in which the names of the applicants were also mentioned, who were granted benefits under OBC category. It is averred that under these circumstances, the respondents have issued a show cause notice to the applicants on 4/6.11.2009 calling the justification from the applicants regarding availing the benefits of OBC category at the time of their appointment while their community does not cover in the list of Government of India. The applicants on 27.11.2009 submitted a detailed reply to the said memo dated 4/6.11.2009. Action of the respondents was challenged by filing OA-4015/2010 in all the OAs, except in OA-2245/2011 where such action was challenged in OA-4124/2010. In the said OAs, the Tribunal stayed the show cause notice vide interim order dated 2.12.2010 and ultimately the OAs were decided by the Tribunal vide the order dated 13.4.2011 and the respondents were directed to consider the reply of the applicants and the decision would be kept in abeyance for one month after passing of the order so that the applicants can challenge the same in proper proceedings.
4. Accordingly, the respondents have passed an order dated 30.5.2011 in the OAs whereby the services of the applicants were terminated with immediate effect. It has further been recorded that the said decision would be kept in abeyance for one month from the date of issue of the said order. At this stage, it will be useful to quote the relevant portion of the said order dated 30.5.2011, which finds mention in OA-2215/2011 and thus reads as under:-
Whereas the said Sh. Dheeraj Tanwar was provisionally selected and appointed subject to the verification of his case status but the caste certificate submitted by the said Sh. Dheeraj Tanwar is neither in proforma prescribed by the Govt. of India nor his caste/community to which he belongs is available in the Central List of OBC category. Hence, his claim is treated as false/invalid claim as per Hqrs. instructions issued vide OM No.A-14/11/1/2008-SCT dated 11-09-2009. Thus the appointment of Sh. Dheeraj Tanwar against the OBC category is not only illegal but also constitutionally invalid and is not acceptable.
Therefore, in exercise of powers conferred by Regulation 12(2) of the ESI (Staff & Condition of Service) Regulation 1959 the undersigned hereby orders that the services of Sh. Dheeraj Tanwar be terminated with immediate effect. However this decision would be kept in abeyance for one month from the date of issue of this order as directed by the Honble Tribunal vide its judgement dated 13-04-2011. After completion of one month from the date of issue of this order, his services will be automatically stand terminated.
5. It may be stated here that it is this order, which is under challenge in the present OAs. It is stated that while issuing notices in these OAs, this Tribunal also granted ex parte stay, which is still continuing.
6. The respondents have filed replies in these OAs wherein it has been stated that the applicants belong to Jat community, which is not all covered in the OBC list of Central Government, therefore, they have no right to hold the posts reserved for persons belonging to OBC category in the Central Government Organization, like the respondents.
7. The respondents have further stated that the applicants were selected provisionally and appointed subject to the verification of their caste certificates and once on verification of the caste certificate it has been found that their caste is not found in the list of OBC castes as per the Central Government list, they have no right to continue to occupy the posts constitutionally reserved for persons belonging to OBC castes as per the list of the Central Government.
8. The respondents have also submitted that the caste certificates submitted by the applicants are neither in proforma prescribed by the Government of India nor the caste community to which they belong is available in the central list of OBC category. Thus, according to the respondents, in terms of the Office Memorandum No.A-14.11/2008/SCT dated 11.9.2009 their appointment against OBC category is not only illegal but also constitutionally invalid.
9. It has further been submitted on behalf of the respondents that the present cases are squarely covered by the decision of this Tribunal in Shyam & others v. Employees State Insurance Corporation Ltd. & others (TA-38/2010) decided on 1.12.2010.
10. The applicants have filed rejoinders thereby reiterating the submissions made in the OAs. In rejoinders, they have stated that the advertisement was issued only for Delhi region and at that time the respondents accepted the OBC certificate of Delhi Government and now only in the year 2008-09 the respondents have taken decision not to accept the OBC certificate issued by the Delhi Government. Thus, according to the applicants, there was no illegality in their appointment and there was no fault, fraud or mistake on their part at any stage. The applicants have also stated that the judgment relied upon by the respondents and referred to above was rendered in different factual aspects and not applicable in the present cases.
11. We have heard the learned counsel for the parties and gone through the material placed on record.
12. From the facts, as stated above, it is clear that the applicants were given appointment as Nursing Orderly against the posts meant for OBC category. It is also not disputed that the applicants belong to Jat community and the community for which the OBC certificate has been issued in their favour does not find mention in the list of OBC of central list. It is also not disputed that recruitment in ESIC was region-wise and advertisement was issued for Delhi region only. This fact itself is not sufficient to hold that for appointment in Central Government OBC list, as prepared by the Delhi Government, has to be taken into consideration. Facts remain that the ESIC is an organization of Central Government and its Central Government list has to be taken into consideration in order to decide whether the particular community belongs to OBC or not. That apart, matter on this point is no more res integra and the same has been decided by the decision of this Tribunal and the same is fully covered by the judgment rendered by the coordinate Bench in Shyams case (supra) where the similar issue was involved. That was a case where the ESIC issued an advertisement for the post of LDC. The issue, which was for consideration before the coordinate Bench, was whether only the OBC candidates in central list can be considered for appointment in Central Government/Organization. This Tribunal in the said case has made the following observations in paragraphs 4 to 6, which thus read:
4. The learned counsel for the Respondents, per contra, would contend that only the OBC candidates in the Central list can be considered for appointment to the posts under the Central Government or organisations under it. It was argued that in the offer of appointment issued to the Applicants it was clearly mentioned that the candidates claiming the OBC status should produce the caste certificate in the form prescribed by the DOP&Ts Office Memorandum number 36012/22/93-Estt (SCT) dated 08.09.1993 as modified by the Office Memorandum number 26033/3/2004-Estt (Res) dated 09.03.2004. The Applicants, on the other hand, submitted certificates of caste prescribed under notification number F. 28 (93)/91-92/SC-ST/P & S/4384 dated 20.10.1995 published in the Gazette of Delhi Extraordinary Part IV read with the DOP&T's Office Memorandum dated 08.09.1993, adverted to above. One of the conditions for the appointment also stipulated that the certificates had to be in the form as prescribed by the Office Memoranda of DOP&T dated 08.09.1993 as modified on 09.03.2004. The certificate issued by the competent authority of the NCT of Delhi does not make any mention of the Office Memorandum dated 09.03.2004 but instead it mentioned the notification dated 20.10.1995. It was contended that in the light of this the caste certificate could not have been accepted by the first Respondent. It was further clarified that the communication of the Ministry of Labour and Employment did not give any advice to the first Respondent, but it was only a communication addressed to the DOP&T for seeking clarification about the issue. The learned counsel for the Respondents would contend that it was misrepresentation on the part of the Applicants to state that the above said communication was in the form of advice tendered to the first Respondent. It was stated that the clarification given by the DOP&T on 04.06.2008 left no doubt that only those in the Central list of OBC could be considered for employment under the Government of India. The Office Memorandum dated 04.06.2008 of the DOP&T addressed to the Ministry of Labour and Employment is reproduced below:
No.36028/1/2008-Estt. (Res) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated the 4th June, 2008 OFFICE MEMORANDUM Subject:- Clarification regarding reservation under OBC category.
The undersigned is directed to refer to the Ministry of Labour & Employments O.M. No.A-12034/2/2008-SS.I dated 7th May 2008 on the above noted subject and to say that the candidates belonging only to such castes/ communities are entitled to get the benefit of reservation in services under the Government of India which are included in the OBC list prepared by the Ministry of Social Justice & Empowerment, Government of India.
Sd/-
(A.K. Cashyap) Under Secretary to the Government of India The Ministry of Labour & Employment The Applicants, it was contended, belonged to Jat community, which did not figure in the OBC list of the Central Government. The first Respondent was bound to give the benefit of reservation under the OBC category only to those who belong to the list of OBC of the Government of India. The Respondents have also filed an additional affidavit stating that action has been taken or is being taken against all those who had been selected under the OBC category, although in the OBC list of the Government of NCT of Delhi. It is stated that as regards the list of nursing orderlies furnished by the Applicant in the rejoinder affidavit, action for termination of service of those belonging to Jat community has already been initiated. As regards the two persons selected for the post of Insurance Medical Officer, mentioned in paragraph 6 of the rejoinder affidavit, it is stated that these two persons have not joined the post as yet and the caste verification is done only at the time of joining. Should any discrepancy be found in the caste status, it is stated that action as per law would be taken. As regards the selection of one Ms. Jyoti Singh, who was selected to the post of Pharmacist, although she belonged to the Jat community, it was stated that her services had already been terminated.
5. We have carefully considered the rival contentions and also perused the documents placed in the paper book.
6. Following the recommendations of the Mandal Commission the Government of India took a decision to provide reservation to the Socially and Educationally Backward Classes in the Civil posts/services. Thereafter the above decision was modified on the recommendation of an expert committee, which was appointed following the decision in Indira Sawhney and others V. Union of India and others, (2000) 1 SCC 168. Following the recommendations of the expert committee orders were issued on 13.08.1990 on various aspects of reservation for the OBCs. The Office Memorandum of the DOP&T dated 13.08.1990 as modified on 08.09.1993 and 13.01.1995, inter alia, mentioned that:
"(d) The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Governments' Lists. A list of such castes and communities is being issued separately by the Ministry of Welfare. (See Appendix-2)."
The list in the Appendix-2 does not contain the name of the Jat community for Delhi. For the purpose of employment in the State Governments, a separate list of OBCs was prepared by the State Governments also. The Government of NCT of Delhi included Jat community in the State list. This list is applicable for the employment under the State Government only. It would not apply for employment for any post under the Central Government. The facts in the case of Rakesh Rana are different. A conscious and deliberate decision was taken by the Lieutenant Governor of Delhi to include OBCs of both the lists of the Central Government and the Government of the NCT of Delhi for recruitment to Delhi Police, as mentioned in the judgement in Rakesh Rana case (surpa). However, no such decision has been taken in respect of the posts under the first Respondent. In our considered opinion it would not matter that the recruitment has been made for specific regions including Delhi region for grant of benefit of reservation to the candidates in the OBC list of the Government of NCT of Delhi. What is material is that the recruitment is being made for an agency of the Central Government. The Applicants have not been able to point out any instructions, which would make relaxation in the policy where the recruitment for the posts of Central Government is region specific. In the absence of such instructions, no relaxation can be made for the Applicants to give them the benefit of OBC category for employment for the posts under the first Respondent, which is an institution under the Central Government.
13. It may be stated here that the contentions raised by the learned counsel for applicants in these OAs are the same, which were raised in the said case and did not find favour with the Bench based on the judgment of this Tribunal in Sh. Rakesh Rana v. UOI (OA-1414/2004) and also that the appointment is made for Delhi-region only.
14. Additional submissions made by the learned counsel for applicants were to the effect that the judgment rendered by the coordinate Bench in Shyams case (supra) is based upon the clarification by the DOPT OM dated 4.6.2008 whereas the applicants were appointed in the year 2006, therefore, such a clarification cannot be made applicable to the cases in hand. The submission so made by the learned counsel, though attractive, deserves out right rejection. It is settled law that the clarification shall relate back to the original order unless such a clarification is in the nature of the amendment to the earlier rule when the same will have no retrospective effect in the absence of any express intention to that effect. For that purpose, we have to see the substance of the matters.
15. From the perusal of the clarification, it is evident that the DOPT has clarified its original OM regarding reservation under OBC category. Thus the clarification issued on 4.6.2008 shall relate back to the original instructions whereby the reservation was made applicable to OBC category mentioned in the original list.
16. Law on this point is no longer res integra. It will be useful to quote the relevant portion of the judgment of the Apex Court in S.S. Grewal v. State of Punjab & others, AIR 1994 SC 1232.
8. From a perusal of the letter dated April 8, 1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5,1975. Since the said letter dated April 8, 1980 is only clarificatory in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975. In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective..
17. Learned counsel for applicants further tried to distinguish the judgment of this Tribunal in the case of Shyam (supra) on the ground that in aforesaid matter/case the applicants though selected were not allowed to join the duty on the ground that they were not entitled to be employed as OBC candidates because the Jat caste to which they belonged did not fall under the Central list of OBCs, whereas the applicants herein are working since 2006 by treating them belonging to OBC category and the applicants have not committed any fraud or misrepresentation. Thus, according to the learned counsel for applicants, the judgment of this Tribunal, referred to above, should not be made applicable in the instant OAs.
18. We have given due consideration to the submissions made by the parties. It is true that the applicants have not procured the appointment under OBC category by misrepresentation or fraud but the fact remains that they do not belong to the OBC category, as mentioned in the central list of OBC for the purpose of employment under the Organization of Central Government. As such, we are of the view that the appointment of the applicants against the OBC category is constitutionally invalid.
19. Learned counsel for applicants has placed reliance on the judgment of the Apex Court in the case of Raju Ramsingh Vasave v. Mahesh Deorao Bhivapurkar & others, (2008) 2 SCC (L&S) 802 whereby the Apex Court by invoking Article 142 of the Constitution of India protected the initial appointment of the respondent No.1 therein, who was appointed as ST candidate but subsequently the ST status was declared as invalid and the Apex Court further held that respondent No.1 would not be entitled to claim any benefit in future as ST. Learned counsel for applicants argued that similar order may also be passed in the instant OAs. As already stated above, the Apex Court in the said case has invoked Article 142 of the Constitution in order to give relief to respondent No.1 therein. According to us, such a power is available to the Apex Court only and it is not permissible for us to give direction contrary to law.
20. Learned counsel for applicants has also drawn our attention to the judgment of the High Court of Delhi in Sunil Bhatnagar v. Kendriya Vidhalaya Sangathan & another (WP (C) No.4536/2010) decided on 10.9.2010. That was a case where the petitioner therein obtained appointment by misrepresenting the fact that the Maithli Viswavidyalaya Peeth Central University from where he obtained the B. Ed. Degree was recognized by the University Grants Commission. Service of the petitioner was terminated after rendering 25 years after holding an inquiry. Even subsequently in April 2010 the petitioner therein obtained a B. Ed. Degree from recognized university. It was under these circumstances that the learned Judges of the High Court of Delhi held that the respondents have also contributed to what has happened and their negligence has to be factored in the final decision and they could take action again in the year 1985 itself. It was under these circumstances that the High Court set aside the order of removal of service and the petitioner therein was reinstated back in service without any back-wages.
21. We fail to understand as to how the applicants can take assistance from the aforementioned judgment of the High Court. The present OAs are the cases where the applicants do not belong to OBC category as per the list maintained by the Central Government and they have been wrongly appointed against the said category depriving the constitutional right of the other categories. Thus, it is not a case of such nature where the appointments of the applicants were irregular but these are the cases where the applicants have been given appointment against OBC category illegally.
22. Learned counsel for the respondents has also placed reliance on the decision of the Apex Court in Ashok Kumar Sonkar v. Union of India & others (2007) 4 SCC 54. That was a case where on cut-off date the appellant was not fulfilling the requisite qualification, thus held not eligible. In this context, the Apex Court observed that there was no necessity to give show cause notice, as court of law does not insist on compliance with useless formality.
23. Even though the applicants herein were given show cause notice and services were terminated thereafter but on admitted facts it is evident that the applicants do not belong to OBC category as per the list maintained by the Central Government. Thus, the action of the respondents in terminating the services of the applicants is valid.
24. In view of what has been stated above, we are of the view that the applicants herein have not made out any case for grant of relief. These cases are squarely covered by the ratio laid down by this in Shyams case (supra). However, we are of the view that the respondents have themselves accepted an OBC certificate of Delhi Government where the community to which the applicants belong to is OBC category and there was no fraud or mistake on part of the applicants at any stage for obtaining the appointment. As such we are of the view that the applicants may be considered for the post of Nursing Orderly against general category in the next selection even if some of them are over-aged as one time measure, as per Recruitment and Promotion Rules. The condition of being over-aged will not be insisted upon by the respondents in these OAs while making selection against the said category.
25. With these observations, these OAs are disposed of. No costs.
Let a copy of this order be placed in each file.
( Smt. Manjulika Gautam ) ( M.L. Chauhan )
Member (A) Member (J)
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