Central Administrative Tribunal - Delhi
Shanti Kumari vs Delhi Subordinate Services Selection ... on 6 October, 2015
OA 4335/14 Shanti Kumari v.GNCTD and anr
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.4335 OF 2014
New Delhi, this the 6th day of October, 2015
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
&
HON'BLE SHIR RAJ VIR SHARMA, JUDICIAL MEMBER
..........
Shanti Kumari,
Aged 31 years,
D/o late Sh.Ratan Lal,
R/o F-87, Laxmi Park,
Nangloi,
New Delhi 110041 ......... Applicant
(By Advocate: Ms.Vishi Sharma)
Vs.
1. Government of NCT of Delhi,
Near Dwarka More Metro Station,
Shop No.98, K.Shisha Godam Road,
Uttam Nagar, Nwada,
New Delhi 110059
2. Delhi Subordinate Services Selection Board,
FC-18,Institutional Area,
Karkardooma,
Delhi 110302 .......... Respondents
(By Advocate: Mr.K.M.Singh)
.....
ORDER
RAJ VIR SHARMA, MEMBER(J):
The applicant has filed the present Original Application seeking the following reliefs:
"i) Issue directions to the respondent and thereby consider the candidature of the Applicant for the post code 70/09 & 71/09 being a candidate of the OBC category.
ii) may pass such other and further order(s) which this Hon'ble Court deem fit and proper in the interest of justice."Page 1 of 29
OA 4335/14 Shanti Kumari v.GNCTD and anr 2
2. The brief facts of the applicant's case are that Delhi Subordinate Services Selection Board (for short, 'DSSSB') issued Advertisement No.004/2009 (Annexure A) inviting applications from eligible persons desirous of participating in the recruitment process for filling up 4500 (UR-1900, OBC-1044, SC-766, ST-790, including PH (OH-
OA/OL/OAL/BL)-52, PH(VH-B/LV)-96,EXSM-982) vacancies in the post of Teacher (Primary) in MCD(vide Post Code 70/09), and 520 (UR-186, OBC-148, SC-36, ST-150)including PH(OH-OA/OL/OAL/BL)-09,PH(VH- B)-28, EXSM-234) vacancies in the post of Assistant Teacher (Primary) in the Directorate of Education (Post Code 71/09). The closing date for receipt of applications was 15.1.2010. The educational qualification, age, experience and other conditions of eligibility were stipulated to be determined as on the closing date of receipt of applications. In response to the Advertisement, the applicant made application for the said Post Codes as a General category candidate, although she belongs to the OBC category, because she was not having her OBC certificate at the time of filling in the application form. DSSSB issued notification (Annexure B) scheduling 23.5.2010 (Sunday) (10.30 AM to 1.00 PM) for Part I (Preliminary) Examination, and 23.5.2010 (Sunday) (3.00 P.M. to 5.30 P.M.) for Part II (Main) Examination for Post Codes 70 and 71/09. While the matter stood thus, DSSSB, in compliance with the order dated 20.7.2010 passed by the Tribunal in OA Nos.121 and 151 of 2010, issued notice dated 13.9.2011 (Annexure C) amending the Advertisement No.004/2009 pertaining to Post Page 2 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 3 Codes 70 and 71/09, whereby the classification of posts, age limit, essential qualification, and number of vacancies were revised. In the said notice dated 13.9.2011, it was stipulated that the candidates who had already submitted applications shall have to deposit an additional fee of Rs.50/-, that a combined Part I Preliminary Examination (Objective Type) of 01 hour duration and Part II Main Examination (Descriptive Type) of 02 hours duration together with a testing duration of 03 hours in one go shall be conducted by DSSSB, that the prospective eligible candidates who fulfilled the eligibility conditions as on 15.1.2010 could also apply for the said Post Codes, and that the candidates who had already submitted their application forms in response to the Advertisement No.004/2009 were not required to apply again, except depositing the additional fee of Rs.50/-. It was also stipulated that the candidates should submit the documents at the reception counter of DSSSB between 16.9.2011 and 17.10.2011 on all working days from 10.00 AM to 5.00 PM, and that documents received after the prescribed period shall not be entertained under any circumstance. The applicant submitted an application, dated 10.10.2011, along with a copy of OBC Certificate dated 4.4.2011 (Annexure E and Annexure F respectively), requesting DSSSB to treat her as an OBC category candidate, instead of General category candidate. Thereafter, DSSSB issued notices on two occasions scheduling the dates of examination for the Post Codes in question, but subsequently such dates of examination were postponed and cancelled. Finally, the examination was held on 2.2.2014, and the applicant Page 3 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 4 appeared therein. She obtained 74.5 marks in the written examination, vide marks statement (Annexure D). As DSSSB did not treat the applicant as an OBC category candidate on the basis of the OBC certificate dated 4.4.2011 submitted by her on 10.10.2011, she filed the present O.A. seeking the reliefs as aforesaid. It is the contention of the applicant that she having submitted the OBC certificate on 10.10.2011 in terms of the notice dated 13.9.2011 (Annexure C), and the written examination having been held on 2.2.2014, DSSSB ought to have treated her as an OBC category candidate, instead of General category candidate, and determined her selection, or otherwise, on the basis of marks scored by her in the written examination.
3. It is the case of the respondents that the applicant applied for the Post Codes (ibid) as a General category candidate. The cut-off date for determining the eligibility was 15.1.2010. The OBC certificate produced by the applicant was issued on 4.4.2011. In the Admit Card issued to the applicant for appearing in the written examination, she was clearly shown as Unreserved/General category candidate. On the basis of marks scored by candidates belonging to different categories, combined merit list, OBC merit list, SC merit list, ST merit list, OH merit list, and PH merit list were drawn up, and dossiers of candidates were checked, and a list containing result of all candidates was published, vide result notice Nos. 343 and 344 dated 5.12.2014. In the above view of the matter, the respondents state and submit that no illegality has been committed by them in treating the applicant as a General category candidate. The last candidate under Page 4 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 5 Unreserved/General category short-listed and/or selected for appointment scored 79 marks whereas the applicant scored 74.5 marks and, therefore, she cannot be said to have any grievance with regard to her non-selection for the post.
4. We have perused the records, and have heard Ms.Vishi Sharma, learned counsel appearing for the applicant, and Mr.K.M.Singh, learned counsel appearing for the respondents.
5. In support of the case of the applicant, Ms.Vishi Sharma, learned counsel appearing for her, placed reliance on the following decisions:
(1) Yashpal Singh Rajorar, etc. v. Union of India and others, OA Nos.1285 & 1286 of 2008, decided by the Tribunal on 6.5.2009;
(2) Manoj K.Verma v. Union of India and another, OA No.3653 of 2010, decided by the Tribunal on 12.10.2011; (3) Hari Singh v. Staff Selection Commission & others, W.P. ( C ) No. 11928 of 2009,decided by Hon'ble High Court of Delhi on 6.4.2010;
(4) Minor V.Harshan v. The Chairman, JEE-2012 and another, W.P. (MD) No.7078 of 2012, decided by Madras High Court on 20.7.2012 ;
(5) Sukhdarshan Kaur v. RPSC & anr, C.W.P.No.2717 of 2011, decided by Hon'ble High Court of Rajasthan on 20.7.2012; and (6) Ramdev v. State of Rajasthan & others, C.W.P.No.3146 of 2014, decided by Hon'ble High Court of Rajasthan on 28.4.2014.
5.1 In Yashpal Singh Rajorar's case (supra), the applicants belonged to Jat caste which was included in Delhi list of OBC. In response to the CGLE 2004, they applied for selection and appointment to the post of SI (Exe.) in Delhi Police. After the result of the examination was declared, Page 5 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 6 they made representations to treat them as candidates belonging to OBC category, instead of General category. In support of their claim, they relied on the order passed by the coordinate Bench of the Tribunal in OA Nos.161 & 1414 of 2004. It was pleaded by them that the respondents complied with the said order of the Tribunal and acceded to the request of the applicants in those cases to treat them as OBC category candidates. They also relied on the decision taken by the Government of India, Ministry of Home Affairs, vide its OM No.14011/39/05-UTP, dated 27.12.2005, to follow both the Central List as well as Delhi List of OBC for recruitment to the post of SI (Exe.) in Delhi Police. In the above backdrop, the coordinate Bench of the Tribunal held thus:
"....in view of the factual position mentioned above, that a decision had been taken in Nov., 2002 to treat the Jat community as per the Delhi list as also being eligible for the reservation in the examination etc. as well as the fact that in the 2003 examination, the category of five candidates, who had applied under general candidates was changed to the OBC category, we are of the view that it would be just and equitable to direct the respondents to consider both the applicants in the present OAs under the OBC category and call them for interview (if necessary by holding a special interview) provided they are otherwise qualified as per the rules and take further action depending on their performance....."
5.2 In Manoj K.Verma's case (supra), the coordinate Bench of the Tribunal, following the decisions of the Hon'ble High Court of Delhi in Tejpal Singh and another v. Govt. of NCT of Delhi & anr, 120(2005) DLT 117; Subhash Chander v. MCD, LPA No.72 of 2002, decided on 18.8.2006; Smt. Poonam v. Govt.of NCT of Delhi & anr, W.P. ( C) No.8508 of 2007,decided on 2.2.2009; and DSSSB and another v. Anu Page 6 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 7 Devi & another, W.P. ( C) No. 1387 of 2009,decided on 17.2.2010, held thus:
".......there is no dispute that the applicant belongs to OBC category. He, along with his application, had submitted a OBC certificate issued to him on 27.9.1999 wherein it has also been held that he was outside the creamy layer. The said certificate is valid for a period of ten years as the review in such cases are generally done only after ten years. As the same was not valid for the purpose of appointment in terms of advertisement, he has obtained a fresh certificate dated 13.10.2010 and submitted it on the date of his interview held on 21.10.2010. It is nobody's case that his creamy layer status has undergone any change during the period from 3.3.2010 to 12.10.2010, i.e., the period from the expiry of the closing date of receipt of the application forms and the date before the 2 nd certificate was issued to him on 13.10.2010. Going by the judgment of Hon'ble High Court of Delhi relied upon by the applicant referred to above, in our considered view, the applicant cannot be denied appointment only on the ground that the OBC certificate including the creamy layer certificate produced by him is of a date after the closing date of receiving the application forms. Resultantly, we allow this OA. As the applicant has already been interviewed on the interim directions of this Tribunal and the respondents SSC has already declared him selected, they shall immediately forward his dossier to the user department and they shall offer appointment to the post to which he has been selected, subject to his fulfilling all other requisite candidates with all consequential benefits as granted to his other batch-mates except back wages..."
5.3 In Hari Singh's case (supra), the petitioner was undoubtedly an OBC candidate who did not fall within the creamy layer and was more meritorious than the last OBC candidate selected by Staff Selection Commission for the post of Sub-Inspector. But he was not selected because the OBC certificate submitted by him was not in the prescribed format. The Staff Selection Commission, therefore, treated the petitioner as a General category candidate, and did not select him as he did not make the cut as a Page 7 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 8 General category candidate. After considering the facts and circumstances of the case, and referring to its earlier decisions in Tej Pal Singh's case (supra), Anu Devi's case (supra), and Poonam Chauhan's case (supra), the Hon'ble High Court held that the respondents themselves had given opportunity to the candidates to produce the original OBC certificates at the time of interview in their communication dated 04.05.2009. Had the respondents posed the relevant queries at the time of the petitioner's interview, he would have become aware of the subsisting need to submit the OBC certificate in the prescribed proforma, and he would not have been misled into believing that the OBC certificate already submitted by him had been accepted and acted upon by the respondents, and he would have submitted the same on, or soon after 04.06.2009, when it was issued to him. The Staff Selection Commission themselves had relaxed the rigour of the terms and conditions of the recruitment notice. Accordingly, the Hon'ble High Court allowed the claim of the petitioner.
5.4 In Minor V.Harshan's case (supra), the petitioner applied for appearing in the Joint Entrance Examination, 2012. Although he belonged to OBC category falling under Non-Creamy Layer Category, he applied for appearing in the examination as a General category candidate. He appeared in the examination on 8.4.2012, and the result of the examination was published on 18.5.2012. He passed the examination and obtained All India Rank of 4988. Analyzing the materials available on record, the Hon'ble Madras High Court found that the respondent had given opportunity to the Page 8 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 9 candidates to withdraw their undertakings or certificates regarding category of candidature for any reason on or before 10.6.2012 by 5.00 P.M. by sending a request in writing either by e-mail or by fax, if they so wished. It was also clarified by the respondent that no request received after the aforesaid date and time shall be entertained. On 31.5.2012 the petitioner had sent a declaration and submitted the OBC certificate on 1.6.2012. Therefore, it was held by the Hon'ble Court that the petitioner was lawfully entitled to be treated as an OBC candidate.
5.5 In Sukhdarshan Kaur's case (supra), the petitioner's grievance was that respondent-RPSC wrongly considered her candidature in General (Woman) category, instead of OBC (Woman) category. Referring to its earlier decision in Jasa Ram v. The Rajasthan Public Service Commission, 2005(7) RDD 2719, the Hon'ble High Court of Rajasthan held that as the petitioner did not raise any objection at the relevant time in regard to the admission card wherein she was shown as a General (Woman) candidate, and took the examination while being aware of the Category assigned, the late attempt on her part in seeking to question the category only after declaration of result could not be countenanced. Accordingly, the Hon'ble Court dismissed the writ petition.
5.6 In Ramdev's case (supra), the petitioner applied for selection and appointment to the post of Drug Controller Officer. The Hon'ble High Court of Rajasthan found that the petitioner himself committed a mistake to mention his category as General. After the result was declared, he submitted Page 9 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 10 an application for rectification of the category from General to OBC. It was held by the Hon'ble High Court that with open eyes the petitioner filled in the application form and appeared in the examination as a General category candidate and therefore, change of category was not permissible under the law. Accordingly, the Hon'ble Court dismissed the writ petition.
6. Before proceeding to consider the claim of the applicant, we would also like to refer to the following decisions:
6.1 In Delhi Subordinate Services Selection Board and another, etc. v. Ram Kumar Gijroya & ors, etc., LPA No.562 of 2011 and W.P (C) No.8087 of 2011, decided on 24.1.2012, the appellants in LPA, in spite of their being successful in the examination, were not selected for the reason of their having not submitted the OBC Certificates issued by the appropriate authority. Following the decision of the Hon'ble High Court of Delhi in Ms.Pushpa v. Govt. of NCT of Delhi, W.P. ( C ) No.9112 of 2008, decided on 11.2.2009, the Hon'ble Single Judge allowed the writ petition and directed the appellant-DSSSB to reconsider the selection of the respondents in the OBC category. Aggrieved thereby, the LPA was preferred. W.P. (C) No. 8087 of 2011 was preferred impugning the Tribunal's order dated 29.4.2011 passed in OA No.2427 of 2010 which was dismissed. In Ms. Pushpa's case (supra), the learned Single Judge found that the applicant had applied to the concerned office of SDM for issuance of OBC certificate much prior to even the date of the advertisement and it was owing to the delay by the office of the SDM in issuing the certificate that she could not Page 10 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 11 submit the same along with her application and had submitted the same immediately upon the same being made available to her. Accordingly, the learned Single Judge allowed the writ petition. In Ram Kumar Gijroya and others, etc. (supra), the Hon'ble Division Bench held thus:
"17. On the contrary, the advertisement in the appeal as well as the writ petition clearly provided that the certificates of belonging to OBC category had to be filed along with the application by the cut off date. We, therefore, are of the opinion that what was held in Tej Pal Singh qua the status as SC/ST and in the context of language of the advertisement in that case would not apply to the present cases concerning OBCs and in view of the unambiguous language of the advertisements inviting applications in the present cases. Inspite of judgment of Coordinate Bench in Anu Devi supra, need is not felt to refer the matter to a larger Bench because the judgment in Anu Devi turned on, firstly the appointing authority in that case, notwithstanding the cut off date, having issued notices demanding the certificates thereby extending the cut off date and secondly on this Court exercising the discretion under Article 226 in refusing to interfere with the decision of the Tribunal in that case. We are however consciously distinguishing Tej Pal Singh (supra). We may also notice that our Brother who has authored the judgment in Anu Devi had earlier, sitting singly in judgment dated 13.08.2009 in W.P.(C) No.10257/2009 titled Abhishek Saini Vs. University of Delhi held that the action of the University in not permitting the petitioner in that case to participate in the selection process on account of non-production of OBC certificate by the date stipulated in the Bulletin of Information and which was mandatory cannot be faulted with. Mention may also be made of Hari Singh Vs. Staff Selection Commission 170 (2010) DLT 262 where another Division Bench notwithstanding the OBC certificate having not been filed by the stipulated date and following Tej Pal held a case for making provisional admission to have been made out but again in the peculiar facts of that case and accepting the explanation for non-submission thereof.
18. Another Division Bench of this Court in judgment dated 25th January, 2010 in WP(C) No. 10558/2009 titled Union Public Service Commission Vs. GNCTD and other connected Writ Petitions held that the procedure for making applications cannot be given a go by for accommodating a few people and if this is done there would be no obligation on Page 11 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 12 anybody to follow any procedure resulting in an unmanageable situation. It was further held that the procedure prescribed in the advertisement casts a duty on the applicants to apply in accordance therewith and they cannot be allowed to contend that their application should be accepted even if incomplete. Accordingly, the rejection of the applicants who had not submitted the documents required to be submitted along with the application form was upheld.
19. Else, what has been observed by us qua qualification, equally applies to submission of OBC Certificate also. It is well-nigh possible that a number of other OBC candidates, though otherwise eligible but not in possession of the OBC Certificate by the cut off date, did not apply under the belief that being required to enclose the OBC Certificate along with the application and being not in possession thereof, their applications would be deficient and not entertainable. It is yet further possible that, had such others applied and competed, the respondents in appeal and/or the petitioner in the writ petition may not have been eligible. The respondents in appeal and the petitioner in the writ petition were clearly in the know that their applications were incomplete and took a chance. This Court cannot lay down a law which would encourage such practices. The terms and conditions mentioned in the advertisement were intended, to guide/instruct the prospective applicants and there is no reason to dilute the same. Even otherwise, this Court would be loathe to issue mandamus/directive contrary to the terms of selection/appointment (see Karnataka State Road Transport Corporation Vs. Ashrafulla Khan (2002) 2 SCC 560, FCI Vs. Ram Kesh Yadav (2007) 9 SCC 531, Maharishi Dayanand University Vs. Surjeet Kaur JT 2010 (7) SC 179 and State of West Bengal Vs. Subhas Kumar Chatterjee (2010) 11 SCC 694)."
6.2 In Parminder Bhadana v. Staff Selection Commission, W.P. (C) No.2211/2012, decided on 17.4.2012, the petitioner, a candidate allegedly belonging to the OBC category for the post of Constable (GD) in paramilitary forces (BSF/CISF/CRPF & SSB) had challenged his non- selection despite his having obtained 61 marks in the reserved category and rather showing him under the General category. The advertisement dated 5.2.2012 had categorically stipulated that the OBC certificate should not be Page 12 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 13 more than three years old preceding the date of employment notice for the post, and that the OBC certificate had to be in the formant prescribed for the Central Government jobs as per Annexure VII issued by the competent authority on or before the closing date as stipulated in the notice. The closing date, i.e., 4.3.2011 for the receipt of applications, was treated as the date of reckoning OBC and creamy layer status of the candidates. The petitioner had admittedly produced a caste certificate which was based on application dated 9.7.2007. The respondent considered his application and came to the conclusion that he could not be considered as an OBC candidate. The Hon'ble High Court did not find fault with the respondent in not considering the applicant as an OBC candidate. The Hon'ble High Court also held that treating the petitioner as a General category candidate by the respondent does not suffer from any illegality or irregularity. 6.3 In Vishesh Kumar v. Staff Selection Commission, W.P. ( C ) No.5580 of 2012, the petitioner applied as an OBC candidate to be appointed as a Constable in Central Para Military Force and desired his selection to be made from amongst the OBC candidates and raised a grievance of his being treated as a candidate in the unreserved category. As per the terms and conditions of the recruitment notice, the closing date, i.e., 4.3.2011 for receipt of application was treated as the date of reckoning OBC and creamy layer status of the candidate. The petitioner submitted an OBC Certificate dated 30.6.2006, which was not issued within three years before the cut off date, i.e. 4.3.2011, as stipulated in the recruitment notice. Page 13 of 29
OA 4335/14 Shanti Kumari v.GNCTD and anr 14 Considering the facts and circumstances of the case, the Hon'ble High Court, in paragraphs 4 and 5 of the judgment, held thus:
"4. Suffice would it be to state the stand of the petitioner that he was never asked to furnish a certificate which was issued within three years of the date of closing of receipt of applications is belied from the fact that paragraph 4 ( c ) of the advertisement in question, reproduced in paragraph 5 of the counter affidavit, clearly draws the attention of the candidates to the fact that they must ensure that OBC status must be reflected in a certificate issued within three years before the closing date. This fact has not been denied in the rejoinder.
5. Suffice would it be to state that as against members belonging to Scheduled Castes or Scheduled Tribes, where even a billionaire would be entitled to reservation, the legal position with respect to Backward Classes is different. Creamy layers have to be excluded and thus there being a requirement of OBC certificates being issued within three years prior to the date of receipt of applications. A person may have less wealth on a particular date and may become wealthy a few years later and thereby coming within the Creamy Layer."
Accordingly, the Hon'ble High Court held that the applicant has rightly not been treated as an OBC candidate and dismissed the writ petition. 6.4 In Anil Kumar v. Staff Selection Commission (North Region) and another, W.P. ( C ) No.1571 of 2013, decided on 11.12.2013, the petitioner was aggrieved for rejection of his candidature in the selection process undertaken by the Staff Selection Commission (SSC) pursuant to the advertisement dated 29th May 2010, whereby the SSC advertised 1000 vacancies in the post of ASI (Exe) in CISF. The OBC certificate produced by the petitioner was not in the requisite format. The SSC informed him that the certificate was not in terms of the notified procedure, and that he would be considered as an Unreserved/General category candidate. The petitioner also gave an undertaking that in view of his inability to furnish the OBC Page 14 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 15 certificate in the prescribed proforma, the category of his candidature might be treated as Unreserved, i.e. General. The SSC had given an additional opportunity before closure of the selection process to the candidates who had overlooked submission of the requisite certificate. The petitioner took advantage of this opportunity and admittedly produced the certificate dated 2.11.2010. As the said certificate was beyond the period stipulated in the advertisement, the petitioner could only be considered as an Unreserved/General category candidate. Following its earlier decisions in Vishesh Kumar v. Staff Selection Commission's case (supra) and Parminder Bhadana v. Staff Selection Commission's case (supra), the Hon'ble High Court held that the challenge by the petitioner was misconceived. Accordingly, the writ petition was dismissed. 6.5 In Sh.Dibyaranjan Gouda v. Staff Selection Commission, OA No.1684 of 2011, decided on 16.5.2012, the applicant, who belongs to OBC category, was a candidate for the post of Stenographer (Grade 'C' and 'D' ) pursuant to the advertisement issued by the SSC. He passed the written examination and became eligible for appearing in the skill test conducted on 28.3.2011 and 25.4.2011, but he was not allowed to participate therein on the ground that he did not submit the OBC Certificate issued before the cut- off date as prescribed in the advertisement inviting applications. The Tribunal held thus:
"6. Undoubtedly, this case is squarely covered by the judgment of the Hon'ble High Court in the aforesaid common judgment dated 24.01.2012 in Ram Kumar Gijroya & Ors (supra) and Ms.Renu (supra). The caste certificate possessed Page 15 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 16 by the applicant was the one not in accordance with the instructions issued in the advertisement inviting applications for the post of Stenographer (Grade G and Grade D) Examination, 2010. The cut off date in the advertisement was 16.07.2010 and the applicant required to submit the OBC certificate obtained within three years of the closing date i.e. 16.07.2010.
In other words, the OBC certificate should have been issued to the applicant on or after 16.07.2007. Admittedly, the applicant was in possession of the certificate issued to him prior to that date i.e. 24.5.2007. The fresh certificate issued to him was dated 21.03.2011 i.e. after the closing date. Therefore, in view of the aforesaid judgment of the Hon'ble High Court of Delhi, the applicant has no case and, therefore, we dismiss this Original Application. There shall be no order as to costs." 6.6 In Lachmi Narain v. Union of India, AIR 1976 SC 714, the Hon'ble Supreme Court observed thus:
"If the provision is couched in prohibitive or negative language, it can rarely be directory; the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory."
6.7 In Ashok Kumar Sharma & others v.Chander Shekhar & another, (1997) 4 JT (SC) 99, it was held by the Hon'ble Supreme Court that an advertisement or notification issued/published calling for applications constitutes a representation to the public, and the authority issuing it is bound by such representation. It cannot act contrary to it. 6.8 In Indu Gupta v. Director, Sports Punjab and Anr, AIR 1999 P& H 319, the petitioner Indu Gupta had participated in various events of table tennis Championship at Junior State and National Table Tennis Championships, 1996. The petitioner in all these events had participated and represented Union Territory of Chandigarh and was admittedly resident of the Union Territory, Chandigarh, for the entire period of her education. She Page 16 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 17 passed 10+2 examination as a regular student of Government Model Senior Secondary School, Sector-18, Chandigarh. For the purpose of getting admission to the professional colleges under the sports category, it was necessary that the applicant should submit sports gradation certificate issued by the Director of Sports, Union Territory, Chandigarh. According to the petitioner, she was also entitled to get a seat under the Sports Quota in the professional colleges in the State of Punjab, and the Director of Sports, Punjab, was obliged to countersign the gradation certificate in accordance with the policy of the State of Punjab, dated 4th August, 1992. She submitted her gradation certificate for countersignature on 27th June, 1997, but the respondent-Director of Sports, Punjab, did not countersign the certificate and as such she could not produce the certificate on the date of her interview at Punjab Technical University, Jalandhar, on 5-7-1997. Having failed to get the relief at the hands of the respondents, she filed the writ petition with the prayers that respondent No l, Director of Sports, Punjab, be ordered to countersign the gradation certificate issued by the Director of Sports, Union Territory, Chandigarh, and further the Punjab Technical University, Jalandhar, be directed to keep one seat reserved for the petitioner in the B. E. Course. On the facts of the case, one of the questions that arose for consideration of the Full Bench of the Hon'ble High Court of Punjab & Haryana, was whether it was obligatory on the part of the applicant to annex the requisite certificate (in the present case, gradation certificate) along with the application prior to the last date for submission of Page 17 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 18 such application or not. The Hon'ble Full Bench, in paragraph 10 of the judgment, observed as follows:
"10. Subsequently, another Full Bench of this Court in the case of Rahul Prabhakar v. Punjab Technical University, Jalandhar, 1997 (3) RSJ 475: (AIR 1998 Punj & Har 18) recapitulated the entire law on the subject. The Full Bench was considering the same brochure for the previous year of the Punjab Technical University. The Court held as under:
"A Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab, (1993) 4 Serv LR 673 had to consider the scope and binding force of the provisions contained in the prospectus. The Bench took the view that the prospectus issued for admission to a course, has the force of law and it was not open to alteration. In Raj Singh v. Maharshi Dayanand University, 1994 (4) R.S.J. 289 another Full Bench of this Court took the view that a candidate will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that suits him at a given time. The Full Bench approved the view expressed in earlier Full Bench that eligibility for admission to a course has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of instructions given in the prospectus, having the force of law. Again Full Bench of this Court in Sachin Gaur v. Punjab University, 1996 (1) RSJ 1 : (AIR 1996 Punj & Har 109) took the view that there has to be a cut off date provided for admission and the same cannot be changed afterwards. These views expressed by earlier Full Benches have been followed in CWP No. 6756 of 1996 by the three of us constituting another Full Bench. Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test 1997 have the force of law and have to be strictly complied with. No modification can be made by the court in exercise of powers under Article 226 of the Constitution of India. Whenever a notification calling for applications, fixes date and time within which applications are to be received whether sent through post or by any other mode that time schedule has to be complied with in letter and spirit. If the application has not reached the coordinator or the competent authority, as the case may be, the same cannot be considered as having been filed in terms of the provisions contained in the Page 18 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 19 prospectus or Information Brochure. Applications filed in violation of the terms of the brochure have only to be rejected."
In paragraph 11 of the judgment, the Hon'ble Full Bench held thus:
"11. The cumulative effect of the above well enunciated principles of law, is that the terms and conditions of the brochure where they used peremptory language cannot be held to be merely declaratory. They have to be and must necessarily to be treated as mandatory. Their compliance would be essential otherwise the basic principle of fairness in such highly competitive entrance examinations would stand frustrated. Vesting of discretion in an individual in such matters, to waive or dilute the stipulated conditions of the brochure would per se introduce the element of discrimination, arbitrariness and unfairness. Such unrestricted discretion in contravention to the terms of the brochure would decimate the very intent behind the terms and conditions of the brochure, more particularly, where the cut off date itself has been provided in the brochure. The brochure has the force of law. Submission of applications complete in all respects is a sine qua non to the valid acceptance and consideration of an application for allotment of seats in accordance with the terms prescribed in the brochure."
In paragraphs 13, 14 and 16, the Hon'ble Full Bench held thus:
"13. Repeated affirmation of the principle by different Full Benches of this Court while relying upon the judgments of the Hon'ble Apex Court, unambiguously contains the dictum that the brochure declared before the entrance test has the force of law, strict adherence to its terms and conditions is of paramount consideration and terms and conditions including the cut off date cannot be relaxed unless such power is specifically provided to a given authority by use of unambiguous language. It is conceded before us that there is no power of relaxation given to any authority in regard to specific adherence and compliance of the terms and conditions of the brochure. Rightly so, no such power could be vested as it will but necessarily introduce the element of discrimination and arbitrariness in the action of the authorities concerned, which may ultimately cause serious prejudice to the candidates who are not benefitted of such unprescribed Page 19 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 20 relaxation or waiver. Thousands of students appear in such entrance test and the specialized body have been well advised to set the terms and conditions of the brochure with absolute clarity and definiteness. Introducing an element of doubt in such language would be doing injustice to the rule making authority and in fact, it would amount to frustrate the very legislative intent behind clauses of the brochure.
14. The terms and conditions of the brochure imposes a clear obligation upon the applicant to make a specific claim and support such claim with requisite documents. The specific claim of the candidate would be liable to be entertained only if it is supported by the said documents. In absence thereof or if the application is otherwise incomplete, it would be liable to be rejected and the authorities concerned would be under no obligation to consider such claim. To stake a claim under a particular category is for the candidate to decide but once such a decision is taken by him he is obliged to strictly adhere and comply with the terms and conditions of the brochure and furnish all the requisite information asked for including submission of the certificate like gradation certificate in case of a claim being staked to sports category.
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16. In view of the above discussion, the only unassailable and veritable view is that a candidate to such entrance test, in view of the terms and conditions of the brochure, afore-referred, is obliged to submit all the certificates required to annex along with the application and submit the same complete in all respects before the cut off date. In default thereto, no obligation is imposed upon the authorities concerned to entertain such application or to grant seat to that candidate."
6.9 In Manpreet Kaur Randhawa v. Baba Farid University of Health, CWP No.13688 of 2001, decided on 8.2.2001, the Hon'ble Punjab & Haryana High Court observed thus:
"It is settled rule of law that terms and conditions of brochure are binding and must be adhered to by all concerned. The obligations placed upon an applicant/candidate as per brochure to be discharged in the form and manner prescribed therein."Page 20 of 29
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6.10 In Union Public Service Commission v. GNCTD, WP ( C)
No.10558 of 2009, decided on 25.1.2010, the challenge was to the order of the Tribunal directing the UPSC to consider the candidatures of some applicants even though their Detailed Application Forms(DAFs) were incomplete. The Division Bench of the Hon'ble High Court of Delhi held thus:
"25. With such a large number of DAFs having been received by the UPSC, it is impracticable to expect the UPSC to give a go by to the instructions that have categorically and specifically been mentioned in the advertisements issued by it. It is one thing to say that procedure is a handmaid of justice but it is another thing, in practical life, to give procedure a complete go by for the sake of accommodating a few people. If this is done, then there would be no obligation on anybody to follow any procedure resulting in a completely unmanageable situation.
26. If the submission made by learned counsel for the respondents is placed on a larger canvas (since the UPSC conducts dozens of such examinations annually), one can well imagine the resultant chaos. For example, it is well known that the UPSC receives lakhs of applications for the Central Civil Services examination. If every such applicant submits an incomplete application, that is to say that the relevant information is not submitted along with the application, the processing time for the UPSC would take several months and would, in the long run, be completely counterproductive. Consequently, in our opinion while it is true that procedure is the handmaid of justice, it is not possible to ignore practical difficulties that may arise in a given case."
7. In the instant case, the Advertisement No.004/2009 (Annexure A) clearly stipulated that the educational qualification, age, experience and other conditions of eligibility were to be determined as on the closing date of receipt of applications, i.e., 15.1.2010. OBC candidate seeking benefit of reservation should submit, along with the application form, legible attested Page 21 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 22 copy of OBC certificate issued by the competent authority in the prescribed format that he/she did not belong to the creamy layer on the crucial date, i.e., the closing date for receipt of applications. The Advertisement No.004/2009 nowhere stipulated that candidates seeking benefit of reservation under different categories could submit the caste certificates before the date of the written examination. Although by the notice dated 13.9.2011 (annexure C) issued by DSSSB in compliance with the Tribunal's order dated 20.7.2010 passed in OA Nos.121 and 151 of 2010, the classification, age limit, essential qualification, and number of vacancies were revised, the candidates, like the applicant, who had submitted their application forms in response to the Advertisement No.004/2009 were not required to apply again, except depositing the additional fee of Rs.50/-. The said notice dated 13.9.2011 did not stipulate that the candidates, like the applicant, who had already submitted their application forms in response to the Advertisement No.004/2009, could make an application, along with the OBC certificate, to change the category of their candidature. The last paragraph of the notice dated 13.9.2011 (Annexure C), to which our attention was invited by Ms.Vishi Sharma, learned counsel appearing for the applicant, relates to submission of documents by the candidates, like the applicant, at the reception counter of DSSSB between 16.9.2011 and 17.10.2011, showing payment of Rs.50/- towards additional fee for the recruitment examination, and submission of application forms, along with the requisite documents, by the prospective eligible candidates who fulfilled the eligibility conditions as Page 22 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 23 on 15.1.2010 and had not submitted applications in response to the Advertisement No.004/2009. The last paragraph of the notice dated 13.9.2011 (ibid) can by no stretch of imagination be said to have stipulated that the candidates, like the applicant, who had already submitted applications in response to the Advertisement No.004/2009, could make application, along with OBC Certificate, to change the category of their candidature. The Admit Card issued to the applicant for appearing in the written examination on 2.2.2014 (which has been filed by the applicant along with O.A.) clearly shows that she was treated as an Unreserved/General category candidate. Thus, it is clear that the applicant knew that her request for change of category of candidature was not entertained by DSSSB and she was treated as an Unreserved/General category candidate, and accordingly she appeared in the written examination on 2.2.2014 as an Unreserved/General category candidate. The applicant having scored 74.5 marks, and the last selected Unreserved/General category candidate having scored 79 marks in the written examination, she was not selected for the post. It is not the case of the applicant that DSSSB accepted the request made by any candidate to change the category of his/her candidature on the basis of Caste certificate, and determined his/her selection, or otherwise, for the post in question. The terms and conditions of the recruitment notice being binding on DSSSB and the applicant as well, there was nothing wrong on the part of DSSSB in not entertaining the applicant's request to change the category of her candidature from General Page 23 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 24 category to OBC category on the basis of the OBC certificate dated 4.4.2011 purportedly submitted by her on 10.10.2011. This view of ours is fortified by the decisions of the Hon'ble High Court of Delhi in Ram Kumar Gijroya' case (supra), Parminder Bhadana's case (supra), Vishesh Kumar's case (supra), and Anil Kumar' case (supra), and the decision of the Tribunal in Sh.Dibyaranjan Gouda' case (supra).
8. On an analysis of the decisions, referred to in the preceding paragraphs, we have found that none of the decisions cited by Mr.Vishi Sharma, learned counsel, comes to the aid of the applicant in the present case.
8.1 In Yashpal Singh Rajorar's case (supra), the applicants belonged to Jat caste which was included in the Delhi list of OBC. As per the Government of India's decision, which was in force at the relevant point of time, candidates belonging to Jat caste, were eligible to be treated as OBC candidates for selection and appointment to the post of SI (Exe.) in Delhi Police, on the basis of submission of OBC certificate in accordance with Delhi list of OBC. The respondents were found to have acceded to the similar claim of candidates in compliance with the order passed by the Tribunal in OA Nos. 161 and 1414 of 2004. In the present case, the applicant has not produced any material before this Tribunal to show that DSSSB, either suo motu, or on the basis of any order passed by the Tribunal, acceded to the claim of any candidate and changed his/her category of candidature from General to OBC category at any stage of the recruitment process. Page 24 of 29
OA 4335/14 Shanti Kumari v.GNCTD and anr 25 Therefore, the decision in Yashpal Singh Rajorar's case (supra), besides being distinguishable on facts, does not come to the aid of the applicant. 8.2 As regards the decision in Manoj K. Verma's case (supra), the applicant therein applied for the post as an OBC candidate and submitted the requisite OBC certificate in the prescribed format at the time of interview. Therefore, the decision in Manoj K.Verma's case (supra) is of no help to the case of the applicant. This apart, the Hon'ble High Court of Delhi in Ram Kumar Gijroya's (supra) has already taken a view contrary to the view taken by it in the decisions relied on by the Tribunal in Manoj K.Verma's case (supra).
8.3 As regards the decision in Hari Singh's case (supra), relied on by the learned counsel appearing for the applicant, the Hon'ble High Court of Delhi in Ram Kumar Gijroya's case (supra) has already taken a view contrary to the one taken in Hari Singh's case (supra).
8.4 As regards the decision in Minor V.Harshan's case (supra), relied on by the learned counsel appearing for the applicant, it was found by the Hon'ble Madras High Court that opportunity was granted by the respondent to the candidates to change the category of their candidature and submit the caste certificates within the stipulated period, if they so wished. As the petitioner made the request and submitted the OBC certificate within the period stipulated by the respondent, the Hon'ble High Court found fault with the respondent in not treating the petitioner as a candidate belonging to OBC category. In the present case, we have found that no such opportunity Page 25 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 26 was given by the DSSSB to the candidates to make request to change the category of their candidature and to submit the OBC certificate at any stage of the recruitment process. Therefore, the decision in Minor V.Harshan's case (supra) is of no avail to the applicant in the present case. 8.5 As regards the decisions in Sukhdarshan Kaur's case (supra) and Ramdev's case (supra), relied on by the learned counsel appearing for the applicant, we fail to understand how those two decisions support the case of the applicant. In those cases, the Hon'ble High Court of Rajasthan have held that the petitioners having applied for the posts and appeared in the recruitment examination as General(Woman) category and General category candidates respectively, their requests for change of category were impermissible. It may be noted here that the applicant in the present case applied for the post and appeared in the written examination as a General category candidate.
9. The other arguments advanced by Ms.Vishi Sharma, learned counsel appearing for the applicant, regarding change of essential educational qualification, and increase in the number of vacancies, effected by DSSSB, vide its notice dated 13.9.2011(ibid), are irrelevant. The notice dated 13.9.2011 (ibid) was issued by DSSSB in compliance with the order dated 20.7.2010 passed by the Tribunal in OA Nos. 121 and 151 of 2010. DSSSB found her eligible and issued Admit Card to her for appearing in the written examination as a General category candidate. She also duly appeared in the written examination. On the basis of marks scored by her as a General Page 26 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 27 category candidate in the written examination, DSSSB did not select her. It is also not the case of the applicant that any General category candidate, who scored less marks than that of her, has been selected by DSSSB, whereas she has not been selected. DSSSB has short-listed the candidates under different categories on the basis of the marks obtained by them in the written examination. Even if there remain some unfilled vacancies meant for different categories of candidates, including General category candidates, the applicant or any other candidate cannot claim selection because DSSSB has already prepared the select lists of the candidates belonging to different categories on the basis of marks obtained by them in the written examination, which did not include the candidates scoring below the cut-off marks prescribed for different categories of candidates, and the selection process has been closed. Therefore, we are not impressed by the submission advanced by Ms.Vishi Sharma, learned counsel, that DSSSB ought to have selected the applicant when all the vacancies as notified in the Advertisement No.004/2009(ibid) and notice dated 13.9.2011 (ibid) have not been filled up.
10. Having given our anxious consideration to the facts and circumstances of the case as well as the rival contentions of the parties, we have found that the present case is squarely covered by the decisions of the Hon'ble High Court of Delhi in Ram Kumar Gijroya's case (supra), Parminder Bhadana's case (supra), Vishesh Kumar's case (supra), and Anil Kumar's case (supra), and the decision of the Tribunal in Page 27 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 28 Sh.Dibyaranjan Gouda's case (supra). Therefore, we are not inclined to accede to the claim made by the applicant in the present O.A.
11. We would also like to observe here that had the respondent- DSSSB accepted the applicant's request made on 10.10.2011 to change the category of her candidature from General to OBC on the basis of the OBC certificate dated 4.4.2011, it would not only have acted contrary to the terms and conditions of the recruitment notice, but also their action would have been violative of Articles 14 and 16 of the Constitution. There might be some other candidates, like the applicant in the present case, whose candidatures might have been treated as General category candidates and whose requests for change of category of their candidature from General to category to OBC category might not have been acceded to by DSSSB. Non- grant of similar opportunity to those candidates would have been discriminatory. Besides, it would have given rise to multifarious claims by some candidates seeking relaxation of other terms and conditions of the recruitment notice. In the process, the entire scheme of recruitment process would have been vulnerable. In the light of the decisions of the Hon'ble Supreme Court of India in Ashok Kumar Sharma's case (supra) and Lachmi Narain's case (supra), the decisions of the Hon'ble High Court of Punjab & Haryana in Indu Gupta's case (supra) and Manpreet Kaur Randhawa's case (supra), and the decision of the Hon'ble High Court of Delhi in Union Public Service Commission v. G.N.C.T.D. (supra), we also hold that the terms and conditions of the Advertisement No.004/2009 and Page 28 of 29 OA 4335/14 Shanti Kumari v.GNCTD and anr 29 notice dated 13.9.2011 (ibid) being binding on DSSSB and the candidates as well, there was nothing wrong on the part of DSSSB in treating the applicant as a General category candidate, because she applied for the post and appeared in the written examination as a General category candidate, and also in not selecting her for appointment to the post.
12. In the light of our above discussions, we find no merit in the O.A. Accordingly, the O.A., being devoid of merit, is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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