Central Administrative Tribunal - Delhi
Nirmal Sagar vs Govt. Of Nct Of Delhi Through on 29 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.4622/2011 NEW DELHI THIS THE 29TH DAY OF NOVEMBER, 2012 HONBLE MR.G.GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Nirmal Sagar, W/o Sh. Amit Kumar, R/o 186/187, Block I, Shiv Ram Park, Qamruddin Nagar, Nangloi, Delhi. .Applicant (By Advocate: Sh. M.K. Bhardwaj) VERSUS Govt. of NCT of Delhi through: 1. The Chief Secretary Govt. of NCT of Delhi Delhi Secretariat, I.P. Estate, Delhi. 2. Delhi Subordinate Services Selection Board, Through its Secretary, 3rd Floor, UTCS Building, Institutional Area, Vishwas Nagar, Shahdara, Delhi-110032. 3. The Directorate of Education Govt. of NCT Delhi Old Secretariat, I.P. Estate, Delhi. Respondents (By Advocate: Ms. Harvinder Oberoi) ORDER (ORAL) MR. G.GEORGE PARACKEN, MEMBER (J):
The applicant was a candidate for the post of TGT (English) for which the competitive examination was conducted by Delhi Subordinate Services Selection Board, (DSSSB in short). Even though she qualified in the prescribed examination, she was not selected for the reason that she was SC category candidate from outside Delhi. The respondents found justification in their action on the basis of the judgment of the Apex Court dated 04.08.2009 in Civil Appeal No.5092/2009 (arising out of SLP civil No.24327 of 2005- Subhash Chander & Ors. Versus Delhi Subordinate Services Selection Board & Ors. DSSSB.
2. However, the position has now changed. The Honble High Court of Delhi considered the issue in W.P.(C) NO.5390/2010-Deepak Kumar & Ors. Versus District And Sessions Judge, Delhi & Ors. and other connected cases decided on 12.09.2012. The relevant para 66 of the said judgment reads as under:-
Conclusions
66. This court summarizes its conclusions, as follows:
(1) The decisions in Marri, Action Committee, Milind and Channaiah have all ruled that scheduled caste and tribe citizens moving from one State to another cannot claim reservation benefits, whether or not their caste is notified in the state where they migrate to, since the exercise of notifying scheduled castes or tribes is region (state) specific, i.e in relation to the state of their origin. These judgments also took note of the Presidential Notifications, which had enjoined such citizens to be residents in relation to the state which provided for such reservations.
(2) The considerations which apply to Scheduled Caste and Tribe citizens who migrate from state to state, apply equally in respect of those who migrate from a state to a union territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and tribes who are notified in relation to the concerned Union Territory, are entitled to such benefits. This is reinforced by the Presidential Notification in relation to Union Territories, of 1951. Only Parliament can add to such notification, and include other castes, or tribes, in view of Articles 341 (2), Article 342 (2) which is also reinforced by Article 16 (3). States cannot legislate on this aspect; nor can the executive Union or state, add to or alter the castes, or tribes in any notification in relation to a state or Union Territory, either through state legislation or through policies or circulars. Differentiation between residents of states, who migrate to states, and residents of states who migrate to Union Territories would result in invidious discrimination and over-classification thus denying equal access to reservation benefits, to those who are residents of Union Territories, and whose castes or tribes are included in the Presidential Order in respect of such Union Territories. The Pushpa interpretation has led to peculiar consequences, whereby:
(i) The resident of a state, belonging to a scheduled caste, notified in that state, cannot claim reservation benefit, if he takes up residence in another state, whether or not his caste is included in the latter States list of scheduled castes;
(ii) However, the resident of a state who moves to a Union Territory would be entitled to carry his reservation benefit, and status as member of scheduled caste, even if his caste is not included as a scheduled caste, for that Union Territory;
(iii) The resident of a Union Territory would however, be denied the benefit of reservation, if he moves to a State, because he is not a resident scheduled caste of that State.
(iv) The resident of a Union Territory which later becomes a State, however, can insist that after such event, residents of other states, whose castes may or may not be notified, as scheduled castes, cannot be treated as such members in such newly formed states;
(v) Conversely, the scheduled caste resident of a state which is converted into a Union Territory, cannot protest against the treatment of scheduled caste residents of other states as members of scheduled caste of the Union Territory, even though their castes are not included in the list of such castes, for the Union Territory.
(3) The ruling in Pushpa is clear that if the resident of a state, whose caste is notified as Scheduled caste or scheduled tribe, moves to a Union Territory, he carries with him the right to claim that benefit, in relation to the Union Territory, even though if he moves to another state, he is denied such benefit (as a result of the rulings in Marri and Action Committee). The ruling in Pushpa, being specific about this aspect vis-`-vis Union Territories, is binding; it was rendered by a Bench of three judges.
(4) The later ruling in Subhash Chandra doubted the judgment in Pushpa, holding that it did not appreciate the earlier larger Bench judgments in the correct perspective. Yet, Subhash Chandra cannot be said to have overruled Pushpa, since it was rendered by a smaller Bench of two judges. This approach of Subhash Chandra has been doubted, and the question as to the correct view has been referred to a Constitution Bench in the State of Uttaranchal case.
(5) By virtue of the specific ruling applicable in the case of Union Territories, in Pushpa, whatever may be the doubts entertained as to the soundness of its reasoning, the High Courts have to apply its ratio, as it is by a formation of three judges; the said decision did notice the earlier judgments in Marri and Action Committee. Article 141 and the discipline enjoined by the doctrine of precedent compels this Court to follow the Pushpa ruling.
(6) In matters pertaining to incidence of employment, such as seniority, promotion and accelerated seniority or promotional benefits, flowing out of Articles 16 (4A) and (4B) of the Constitution, there may be need for clarity, whichever rule is ultimately preferred i.e the Pushpa view or the Marri and Action Committee view. In such event, it may be necessary for the guidance of decision makers and High Courts, to spell out whether the correct view should be applied prospectively. Furthermore, it may be also necessary to clarify what would be meant by prospective application of the correct rule, and whether such employment benefits flowing after recruitment, would be altered if the Marri view is to be preferred.
3. In view of the above position, we direct the respondents-DSSSB to re-examine the case of the applicant in the light of the aforesaid judgment of the High Court. If the applicants case is covered by the aforesaid judgment, the respondents shall consider giving her appointment to the post of TGT (English) treating her as scheduled caste candidate and pass appropriate orders in that regard. They shall comply with this order within two months from the date of receipt of a copy of this order.
4. With the aforesaid direction, this OA is disposed of. There shall be no order as to costs.
(Mrs. Manjulika Gautam) (G.George Paracken) Member (A) Member (J) /jk/