Central Administrative Tribunal - Delhi
Ms. Jyoti D/O Raj Vir Singh vs Govt. Of N.C.T. Of Delhi on 25 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1875/2011 Reserved on : 29.01.2013 Pronounced on: 25.09.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Ms. Jyoti d/o Raj Vir Singh, R/o G-5, Flat No.384, Sector-16, Rohini, Delhi-89. Applicant. (By Advocate: Shri Ajesh Luthra) Versus 1. Govt. of N.C.T. of Delhi Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. The Director Directorate of Education (GNCT of Delhi) Old Secretariat, Delhi. 3. Delhi Subordinate Services Selection Board, Through its Chairman Govt. of NCT of Delhi, F-18, Karkardooma, Institutional Area, Delhi-92. Respondents. (By Advocate: Shri Amit Anand) O R D E R Honble Mr. Sudhir Kumar, Member (A):
The applicant of this OA is before us aggrieved by the order dated 18.03.2011 (Annexure A/1) and the order dated 11.11.2010 (Annexure A/2) passed by the respondents, ostensibly in compliance of the orders of this Tribunal passed in OA No. 1930/2010, decided on 03.09.2010, after referring to the orders of the Honble Delhi High Court in WP(C) No.548/2008 and WP(C) No.18111/2006, and she has sought for relief on the following prayers:
(a) quash and set aside the impugned actions at Annexure A/1 and Annexure A/2.
(b) declare that the respondents have illegally denied selection and consequent appointment to the applicant, and
(c) issue appropriate orders/directions directing the respondents to offer appointment to the applicant to the post of Librarian in OBC category, with all consequential benefits.
(d) award costs of the proceedings and.
2. The applicant had come before this Tribunal earlier in her OA No. 1930/2010. The facts of her case can, therefore, be borrowed, in brief, by citing from the order passed in the above referred OA, decided on 03.09.2010, as follows:
4. In support of her claims, the facts of application for the OBC certificate having been made prior to the closing date; the DSSSB treating her candidature under the OBC category and the apparent arbitrariness in not appointing the applicant despite availability of vacancies and scoring much higher marks than the last selected candidate under the OBC category have been averred. By way of legal arguments, the fact of the class or community of the candidate being determinable by the birth and not by mere issuance of the certificate; the community Jat having been notified as backward by the GNCTD in 1995; and the OBC certificate not being treated as an education or any other kind of qualification for determining eligibility have been stated. Reliance has also been placed on the decision of the High Court of Delhi in Tej Pal Singh Vs. GNCT of Delhi as reported in 120(5) DLT 117.
The learned counsel for the applicant, Shri Ajesh Luthra, would submit the present case to be covered by a number of decisions by the Tribunal as well as the High Court on the same subject. Specifically the following decisions have been adverted to:-
CWP No.18221/2006 (Pradeep Kumar Vs the Chairman, DSSSB) decided on 12.2.2009 CWP No.548/2008 (GNCTD & Ors. Vs. Punam Dahiya) decided on 9.7.2008 upholding the decision of the Tribunal in OA 449/2007.
CWP 13870/2009 (Anu Devi & Ors. Vs. GNCTD & Ors.) affirming the decision of the Tribunal.
5. On behalf of the respondents, a detailed counter affidavit has been filed. The facts of the applicant having submitted an acknowledgment receipt regarding her application for the OBC certificate by the competent authority under the GNCTD has been acknowledged by the respondents. Further, the genuineness of the certificate or the applicant scoring 94 marks as against the last selected candidate in the OBC category (getting 70 marks) has also not been disputed.
The main objection of the respondents are that the terms and conditions of the relevant advertisement had very clearly stipulated and mandatory requirement of the reserved category candidates submitting the certificate in the prescribed form by the competent authority along with the application form. It had also been specified that failure to do so would not only treat the aforesaid candidature as invalid application but also lead to the consideration of their candidature under the general category. It is the case of the respondents that as the applicant has admittedly scored less marks than the last selected candidate under the general category (94 against 95) her candidature has rightly been rejected.
6. The main issue before us is the tenability of the applicants claim for being considered in the OBC category despite non-submission of the required certificate along with the application form as stipulated in the terms of the advertisement. This matter has been considered in a number of cases by the Tribunal and the view taken has been that if a candidate had applied well before the cut-off date and the delay could not be attributed to him or her, effect of delayed submission should not deprive the candidate of his or her legitimate right for appointment, if otherwise found so eligible. In this context to name only a few, the following names are mentioned :-
1. OA 370/2009 (Anu Devi v. MCD & Ors) decided on 17.7.2009.
OA 0342/2009 (Virender Solanki vs. Govt. of NCT of Delhi) decided along with several other TA on 4.8.2009.
OA 1059/2009 (Ajay Kumar vs. Union of India & Ors) decided on 6.1.2010.
OA 475/2010 (Rajbir Singh vs. GNCTD & Ors.) decided on 6.7.2010.
OA 130/2010 (Ms. Seema vs MCD & Anr.) decided on 4.5.2010.
9. To conclude, the objections raised by the respondents regarding the stipulations in the terms of the advertisement would not stand as an impediment in consideration of the candidature of the applicant, as per the view taken by the Honble High Court of Delhi referred to above in WP 13870/2009 along with several others. We also cannot brush aside the view being consistently taken by the coordinate Benches of the Tribunal that where an applicant has applied for an OBC certificate before the closing date of the application, though the issuance has been subsequent, depriving such a person of employment on such a ground along would not be a valid ground, as the right to be considered for fair and equitable basis for appointment constitutes a fundamental right. Further the obiter dicta by the Honble High Court of Delhi regarding the qualification for being treated under a reserved category of OBC not being equated with the acquisition of educational qualification and the same being primarily determined by the notification by the appropriate authority and determination under the non-creamy layer status would also be the relevant factors.
In this background, the only factor that needs further clarification is whether or not the applicant had in fact submitted this OBC certificate to the DSSSB after issuance of the same by the competent authority of GNCTD on 8.6.2007. As the result in this case had been declared on 18.1.2010, there was a long intervening gap of more than 2 and 1/2 years between. A verification on this aspect would also be consistent with the decision taken in the CWP 548/2008 and the WP(C) 18111/2006 where in submission of the OBC certificate before the completion of the provisional selection process had been considered as a relevant factor. The applicant, an aspirant for the post of Librarian in the Directorate of Education, GNCTD on the basis of a selection process initiated in the year 2007, is aggrieved at denial of appointment to her on the ground of her non-enclosure of the OBC certificate along with the application form, as stipulated in the terms and conditions of the advertisement. By way of relief, the OA seeks direction for declaring this action of the respondents as illegal. Further, issuance of a direction for offering her the appointment to the post of Librarian in the OBC category with all consequential benefits has also been prayed. As an omnibus provision Para 8(d) prays for issuance of any other order or direction deemed fit and proper in favour of the applicant in the facts and circumstances of the case.
The prayer for interim relief for restraining the respondents from filling up the post of Librarian in the OBC category was not acceded to.
2. On behalf of the applicant, the learned counsel Shri Ajesh Luthra and for the respondents, the learned counsel Shri R.N. Singh would appear before us. The present order is being passed after duly considering the averments on both the sides, the material on record and the provisions judgments on the subject.
3. The OA had been disposed of with a direction to the respondents to give an opportunity to the applicant to prove her case, as to whether she had taken reasonable steps for submission of her Other Backward Class Certificate (OBC certificate, for short) soon after its issuance by the Competent Authority of Govt. of National Capital of Territory of Delhi (GNCTD, for short), and the Tribunal had directed the respondents to thereafter pass a reasoned and speaking order. Keeping the Tribunals observations as contained in the body of the order in view, the respondents have passed the impugned order dated 11.11.2010, Annexure A/2. In the said order, the respondents had not arrived at any final conclusions, and had only pointed out that in respect of the selection process in respect of the two Post Codes, i.e., Post Codes 17/07 and 163/07, for which she had applied, the applicant had given two different addresses, in those two official documents, while applying for the OBC certificate on 23.04.2007, and while applying for the post of Librarian on 02.05.2007. The respondents gave her an opportunity to prove her case through documentary evidences, so that the order of this Tribunal could be complied with, and then the impugned order at Annexure A/1 was passed thereafter.
4. The respondents still maintained that the OBC certificate annexed by her in her application for the Post Code 163/07, the result of which had not yet been processed as yet, cannot be considered for the purpose of her selection in the process of selection for the Post Code 17/07, as the two processes of selection were different, and her case for selection under Post Code 17/07 cannot be considered on the basis of the information/document as available in another one of her applications, for a different Post Code No.163/07. Once again noting the same point that the applicant had declared two different addresses within a period of 8 days, on 23.04.2007 (as House No.252, village-Darya Pur Kalan, Delhi-39) and on 02.05.2007 (G-5, Flat No.384, Sector-16, Rohini-85), the respondents have rejected the consideration of the plea of the applicant for selection against the Post Code 17/07. The impugned order further states that her explanation vide her representation dated 27.11.2010 that during the month of June, 2007, she had visited the office of the respondent Board for submitting her valid certificate, but that the staff at the Boards Reception counter had refused to accept the OBC certificate, cannot be accepted, and appears to be an after-thought, as she had not disclosed this in her earlier O.A. No.1930/2010 (supra). It was stated in the impugned order that the applicants non-disclosure of vital information about her presenting the OBC certificate to the Board even in her (earlier) O.A. also creates a doubt over the OBC certificate itself.
5. However, the applicant has submitted that she belongs to Jat community, which is recognized as Backward Class in the State of Delhi, and that she had applied to the concerned authority for issuance of an OBC Certificate on 23.04.2007, which was not issued to her till she had filed her first application against the Post Code 17/07. The respondents had, however, initially treated her self-declaration to be an OBC candidate as valid, and issued her a Roll Number accordingly, directing her to appear for the Objective as well as Descriptive tests at the centre allotted to her. Thereafter, after her having secured 94 marks, and not being found successful as an Un-Reserved category candidate, and discovering that the last selected OBC candidate had obtained merely 70 marks, and the fact that the respondents had declared the results in respect of only 11 OBC category vacancies against 49 reserved for OBC category, she felt left out, and is, therefore, aggrieved with the result at Annexure A/4, against which she had filed OA 1930/2010 earlier, and in that the order dated 03.09.2010, which has already been reproduced above, came to be passed. Once again, the applicant has maintained her stance that she had indeed approached the office of the DSSSB in June 2007 along with her cousin, but that the person sitting at the reception had refused to accept the further documents, containing a copy of OBC certificate, after reading the covering letter, and had told her that at the appropriate stages of selection the letters are issued by the respondent-DSSSB for completion of documents, and that the applicant will also be called for completion of the documents by the Board itself. In this connection, para 4.11 of her O.A. may be reproduced as herein below:-
That thereupon, the applicant vide her letter dated 27.09.2010 (Annexure A/9) requested the DSSSB to implement the order of this Honble Tribunal. The applicant vide this letter submitted to them that after the receipt of OBC certificate issued in June 2007, the applicant had visited this office of DSSSB alongwith her cousin in the month of June, 2007 itself for submitting a copy of her OBC certificate. Upon her visit, the person sitting at the reception, after reading the covering letter refused to accept the document and stated that DSSSB never accepts documents in the manner and on the contrary letters are issued by DSSSB at appropriate stage of selection for completion of documents and the applicant will also be called for completion of documents by the Board itself. The applicant further submitted that in any case, thereafter, in the month of October-2007, she had applied for the post of Librarian (GNCT of Delhi) against post code 163/07 (advt. No.7/2007) and had annexed a copy of OBC certificate alongwith her application to the DSSSB. The DSSSB had itself clubbed the examination of post code 17/2007 with post code 163/07 and common examination was conducted by the DSSSB. Thus, the DSSSB had the OBC certificate of the applicant in October 2007 itself. The applicant requested for appointment to the post.
(Emphasis supplied).
6. Her contention is that when in the month of October, 2007, she applied against the Post Code 163/07, against another Advertisement No. 7/07, in that she had enclosed her OBC certificate, and since the respondent-DSSSB had itself later clubbed the process of examination of the two tests, vide Post Code 17/07 with the Post Code 163/07, and a common examination was conducted by the DSSSB, the respondents could not now be allowed to raise baseless and frivolous objections (para 4.12 & 4.13 of the O.A).
7. The applicant thereafter submitted through para 4.14 & 4.15 of her O.A. that a bare perusal of the impugned order shows non-application of mind by the respondent authorities, and that they have illegally rejected her lawful claim, denying her the benefit of belonging to a reserved OBC class, despite the Constitutional mandate in the matters of reservation. Para 4.16 mentioned that the respondents have even gone to the extent of lowering her marks, which were earlier shown to be 94, & are now shown as 73, showing the vindictive and malafide attitude of the respondent-DSSSB. She had, therefore, taken the ground that the DSSSB had acted with prejudice in the matter, when it was incumbent upon it to consider her reply in the context of the earlier order of this Tribunal (supra). It was submitted that the respondent-DSSSB has miserably failed to carry out the requisite exercise, as directed by this Tribunal. It was further submitted that in the past also the respondent-DSSSB has been issuing letters to the candidates to complete the documents and/or to remove the deficiencies, if any, only at the final stages of selection.
8. Trying to respond to the respondents contention regarding her having given two addresses, the applicant had taken a ground that she had applied for the OBC certificate from her village address, being an ancestral property, and later when she applied for the post in question, she had mentioned the Rohini, Delhi, address, where she was residing, and that both her addresses were within the State of Delhi itself. She took the further ground that since the examination for both the advertised posts had been clubbed together, and in any case, her OBC certificate was there with the respondent-DSSSB along with the second application in response to the second advertisement, since October, 2007 itself, and, therefore, they just could not have rejected her OBC certificate, and that she would not be able to derive any benefit from that certificate now, since recruitment for the latter Post Code 163/07 has subsequently been cancelled also. In paragraphs 5 D to J of the grounds taken by her in this O.A., she had stated as follows:-
A to C xxxxxxxxx(Not reproduced here).
D. Because it was incumbent upon the DSSSB to consider the reply of the applicant in the context of orders of this Honble Tribunal. The pleas of the applicant could not be brushed aside as an after thought on the ground that in the previous OA, the facts of applicants steps towards submission of OBC certificate soon after its issuance were not mentioned. It is submitted that in the previous OA, the only issue was denial of appointment on the ground of non-submission of OBC certificate alongwith the application form. If the facts of previous OA only were required to be gone into, the Honble Tribunal would not have issued direction to give an opportunity to applicant as to whether she had taken any steps or not. The fate of the OA would have been altogether different. Thus, the respondents/DSSSB has miserably failed to carry out the requisite exercise and have issued the impugned order in an illegal manner.
E. Because the applicant reiterates that she had visited the office of DSSSB alongwith her cousin in the month of June 2007 for submitting a copy of OBC certificate where the person sitting at the reception after reading the contents of covering letter refused to accept the document saying that documents are never accepted by DSSSB in this manner and contrarily, letters are issued by DSSSB at appropriate stages of selection for completion of documents and she will also be called for completion of documents by the DSSSB itself.
F. Because in the past also, the DSSSB has been issuing letters to the candidates at the final stages of selection to complete the documents and/or to remove the deficiencies, if any.
G. Because the words of the officer at the reception coupled with the factum of such past practice of DSSSB, led to formation of a bonafide belief in the applicant that she will also be given an opportunity to complete the documents, once selected.
H. Because even in the result notice No.66 dated 18.1.2010 (i.e. the result of this very selection) the DSSSB kept pending the result of few candidates for completion of documents. The applicants roll No. however is not mentioned therein but some other roll numbers find mention.
I. Because a visit to receptions of DSSSB does not required any gate pass. No gate pass is issued till the reception desk. Thus, the applicant had no documentary evidence to be submitted in this context.
J. Because the applicant did not mention these facts in the previous OA as these were not the issues to be raised for adjudication before the Honble Tribunal. Only such pleadings were made which were essentially required to determine the legal issue. Therefore, the averments relating to facts are wrongly taken to be an afterthought. (Emphasis supplied).
9. Along with her OA, the applicant had filed a copy of the order in appeal filed by her under RTI Act, passed on 22.03.2010 by the Secretary, DSSSB/First Appellate Authority (Annexure A/5), and a copy of the OBC certificate issued to her on 08.06.2007 by the Sub-Divisional Magistrate, Narela, in the Office of the Deputy Commissioner (North West District), Delhi. She had also filed a copy of the counter reply filed by the respondents in her earlier OA No. 1930/2010, and a copy of the Instruction dated 25.08.2009 issued by the Deputy Secretary (Services), GNCTD, which was communicated to the Secretary, DSSSB, on the subject of determination of cut off date for acceptance of OBC Certificates, for admissibility of benefit of reservation, enclosing therewith copies of DoP&Ts OMs dated 25.07.2003 and 09.09.2005, on the subject of the validity period of the OBC certificates, and the verification of community and non-creamy layer status of OBC candidates. She had also filed a copy of the letter addressed by the Joint Secretary, Services-III Department, Govt. of NCT of Delhi dated 10.08.2001 addressed to the Chairman, DSSSB, on the same subject of the applicability of reservation of SC/ST/OBC. At Annexure A-9, she has filed a copy of the letter dated NIL (page 85 & 86 of the paper book of the O.A.), written by her, addressed to Secretary, DSSSB, enclosing therewith a copy of the Tribunals earlier order dated 03.09.2010 (supra), in the paragraph No.3 whereof, she had stated as follows:-
It is further submitted that in the month of June 2007 I alongwith my husband had visited the DSSSB office for submitting a copy of OBC certificate. However, the person sitting at the reception, after reading the covering letter, refused to accept the document and stated that DSSSB never accepts documents in this manner and on the contrary, letters are issued by DSSSB at appropriate stages of selection for completion of documents and I will also be called for completion of documents by the Board itself. (Emphasis Supplied)
10. At Annexure A/10, pages 87 to 90 of the paper book of the O.A., she has filed another letter addressed by her to the Deputy Secretary (CC-II), DSSSB, GNCTD of Delhi, in reply to the respondents letter dated 11.11.2010, which discloses the date of the letter at Annexure A/9 to be 27.09.2010, and para 2 to 5 whereof states as follows:-
2. That in my representation dated 27.9.2010 where I have stated that I had visited the office of DSSSB for submitting a copy of OBC certificate, the person sitting at the reception after reading the covering letter, refused to accept the same saying that DSSSB never accepts documents in this manner, rather letters are issued by DSSSB at appropriate stages of selection for completion of documents and I will also be called for completion of documents by the Board itself. I have not made any kind of allegation against any of the Board staff. Rather, I had made a factual averment to show that I had attempted to submit a copy thereof. The said averments may please be not taken as any allegation leveled by me.
3. That I may mentioned here that in fact, the DSSSB itself, calls the candidates for completion of documents and removal of deficiencies. This is a past practice of the DSSSB. This is so done so as to avoid injustice. Even in the result notice no.66 dated 18.1.2010 the DSSSB has indicated to the effect that result of few specified candidates had been kept pending for completion of documents etc and the specified candidates were directed to contact the Board for removing the deficiencies. The past practice and the words of the reception officer led to formation of a reasonable and bonafide belief in me that I shall also be given an opportunity towards completion of documents viz. my OBC certificate.
4. That visit to reception desk does not require any gate pass in DSSSB. Therefore, there is no gate pass with me to submit any documentary evidence.
5. That it is further submitted that in the OA filed by me before the Honble CAT all these facts were not detailed as these were not the issues to be raised for adjudication before the Honble Court. Only such pleadings were made which were essentially required to determine the legal issue. Therefore, non mentioning of the above facts or factual submissions made before your goodself in the representation dated 27.9.2010 in the OA filed before the Court may kindly not be treated as an afterthought. (Emphasis supplied).
11. The respondents filed their counter reply on 19.12.2011, contending that for the Post Code 17/07, the cut off date for submission of the applications along with all the relevant documents was 02.05.2007, though the applicant had applied for issuance of the OBC Certificate only on 23.04.2007. Since the applicant had not been able to obtain the OBC Certificate in time, initially she had enclosed only a copy of acknowledgement slip of that application. The respondents admitted that the applicant was allowed to participate in the examination, and when she secured 94 marks, and she was in the zone of consideration in OBC category, her application form was put to scrutiny, and during the scrutiny, it was discovered that she had not submitted the OBC Non Creamy Layer certificate issued by the competent authority, and, therefore, her application was considered in the un-reserved UR category, and being lower in merit than the last selected candidate in UR category, she was found not qualified for selection under the un-reserved U.R. category, according to the cut-off marks applicable for that UR category, and she was, therefore, not considered for the aforesaid post.
12. It was submitted that the respondents had not acted with any bias, as the candidature of all those candidates, who had submitted their OBC Non Creamy Layer Certificates along with their applications, had been accepted. It was submitted that till the date of declaration of the final result for Post Code No.17/07, the applicant had failed to intimate the Board regarding her having acquired the OBC Certificate, and it was not available with the Respondent-Board till the finalization of the result, and had denied that the applicant had ever visited the respondents office. It was further submitted that her second Application Form was in respect of the other Post Code 163/07, and the result of the said Post Code was not processed on the directions of the user Department. Thus, there was no question of the respondents determining her eligibility for the post of Librarian under Post Code 017/07 on the basis of her another application submitted subsequently in respect of the other Post Code 163/07. It was submitted that the applicant had got 94 marks in her Part-II Examination, and the 73 marks mentioned in the rejection letter was a typographical mistake. They had, therefore, however prayed that the OA is liable to be dismissed with heavy costs.
13. Heard the learned counsel for the parties in great detail. Liberty was also granted to the counsels for both sides to file subsequently supportive case law, if any. During the course of arguments, both the learned counsels argued vehemently, and also raised very interesting and important legal issues. While on the one hand, the doctrine of issue estoppel was raised by the applicants counsel, the learned counsel for the respondents had emphasized on the point of implied overruling. The respondents relied upon the judgment of the Honble Delhi High Court decided on 24.01.2012 in the case of Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors., LPA 562/2011 & W.P.(C) 8087/2011 in which the Honble Delhi High Court had observed as follows:
4. It is the case of the appellants in the appeal that the applicants in pursuance to the advertisement supra and seeking appointment in the OBC Category were required to submit the certificate of belonging to the OBC Category along with the application form by the cut off date advertised for submission of the applications; that none of the respondents however so submitted the certificate; they were allowed to appear in the examination and on the basis of the result of the examination, provisionally selected in the OBC Category; however finding, on scrutiny of applications, the respondents to have not submitted the certificate of belonging to the OBC Category along with the application form, they were not so selected.
5 to 7. xxxxxxxxxxxxxx(Not reproduced here)
8. It is the contention of Ms. Zubeda Begum, Adv. for the appellants in the appeal that the reliance by the learned Single Judge on Ms. Pushpa is misconceived inasmuch as the facts of the present case are materially different from that in the case of Ms. Pushpa. She contends that relief was granted to Ms. Pushpa for the reason of her having applied for the Certificate even prior to the date of the advertisement and her inability to submit the Certificate being owing to the delay by the authorities. It is contended that on the contrary, save for the respondent no.1 (who applied for the Certificate as aforesaid ten days before the cut off date), the other respondents even applied for the Certificate long after the cut off date mentioned in the advertisement.
9 to 12. xxxxxxxxxxxxxxx (Not reproduced here)
13. We have recently in judgment dated 31st October, 2011 in W.P.(C) No.7767/2011 titled Narayan Lal Meena Vs. Govt. of NCT of Delhi had occasion to consider the sanctity of the cut off date qua eligibility qualification and have on a conspectus of the case law, need to reiterate which is not felt, held that eligibility has to be determined as on the cut off date prescribed and no relaxation can be granted; that the applicants cannot take any advantage of the mistake, if any on the part of the appointing/recruiting authorities in allowing the applicants to appear in the examination and interview; that appointment of an ineligible candidate is illegal and no question of estoppel arises. It was further held that granting any relief to the applicant approaching the Court in such cases would tantamount to giving a benefit to such applicants to the prejudice of others; if the eligibility were allowed to be determined on the date of the interview and/or on the date of appointment, then the same would be to the detriment/prejudice of others who considering themselves to be ineligible as per the terms of advertisement did not apply. It was further held that the same would tantamount to giving premium to the illegality practiced in applying when the person was clearly in the know that he / she was ineligible to apply. It was yet further held that in such situation, it is well-nigh possible that had others similarly placed as the petitioner and who acted honestly and did not apply, also applied and competed, the petitioner may not even have been found successful.
14. The only question which thus remains to be adjudicated is whether what has already been held by us as aforesaid qua the eligibility qualification applies also to submission of documents as the OBC Certificate. The distinction is obvious. While the qualification does not exist on the cut off date, the status as OBC exists which as has been held in Tej Pal Singh (supra) is not dependent on the certificate which is but a proof of such status.
15. The Tribunal, in the order impugned in the writ petition, though noticed Tej Pal Singh held that in subsequent judgment dated 02.02.2009 in W.P.(C) No.8508/2007 titled Smt. Poonam Vs. GNCTD, the law developed was that the delay in submission of certificate could be overlooked only if the certificate had been applied for well before the cut off date but was issued subsequently and for no fault of the applicant.
16. We may however notice that Tej Pal Singh, (judgment of one of us i.e. the Acting Chief Justice and LPA No.304/2000 where against was dismissed on 15.12.2000 and SLP dismissed on 16.04.2001) referred to the Chapter in Swamys Compilation on Reservations and Concessions for Scheduled Castes (SC) and Scheduled Tribes (ST) under the heading Verification of Claim for SC & ST which inter alia stipulated verification of status belonging to the SC/ST after the provisional appointment. It was on the basis of the same that it was held that a person who claims to belong to SC/ST Category is not to be denied appointment merely because he has not been able to produce the certificate. It was held that the provision termed appointment in the Reserved Category on a provisional basis and subject to submission of proof. This Court further found the advertisement inviting applications in that case to have also provided so and incorporated the Chapter aforesaid. It was yet further found that the advertisement did not prescribe the cut off date for the purpose of submitting SC/ST/OBC Certificates.
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. In spite 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 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).
20. As far as the case of the respondent no.1 in appeal who had applied for OBC Certificate ten days before the cut off date is concerned, we are unable to find the same at par with Ms. Pushpa. In Ms. Pushpa, the application for OBC Certificate had been filed much prior to the date of advertisement. The advertisement in the present case as per the respondents was published on 30th August, 2007 and the respondent no.1 applied for OBC Certificate barely ten days prior to the cut off date. No case of the said respondent no.1 being not at fault also is thus made out.
21. We therefore are unable to agree with the order of the learned Single Judge challenged in appeal and set aside the same. The appeal is accordingly allowed. Axiomatically, we are in agreement with the order of the Tribunal challenged in the writ petition and dismiss the writ petition. (Emphasis supplied).
14. In the aforesaid case, the Honble Delhi High Court has laid emphasis on the point that the appointment of an ineligible candidate is per se illegal, and no question of estoppel arises, since granting any relief to the applicant approaching the Court in such cases would tantamount to giving a benefit to such applicants, to the prejudice of others, who had believed that the requirement of possessing both the requisite qualification, and the relevant caste certificate, as on the cut off date prescribed, was inviolable, and no relaxation can be granted, and, as stressed upon in para 19 of the above judgment by the Honble High Court, if they had known that eligibility would be allowed to be determined on the date of the interview and/or on the date of appointment, subsequent to the interview, then they would not have considered themselves ineligible as per the terms of the advertisement, and then they also would have applied for the same posts, as held in the case of Narayan Lal Meena Vs. Govt. of NCT of Delhi decided on 31.10.2011 in WP(C) No.7767/2011.
15. The Honble High Court had further made a distinction between the qualification, which does not exist on the cut off date, as well as the caste status as OBC, which exists independent of the certificate having been issued in this regard or not, but as a proof of such status, as held in the case of Tej Pal Singh vs. Govt. of NCT of Delhi: 120(5) DLT 117= 2001 (1) ILR Delhi 298. However, the Honble Delhi High Court had in the above case in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) ultimately held that if the advertisement prescribed the cut off date for submitting the SC/ST/OBC certificates, the judgment in Tej Pal Singh (supra) could not be applied to the cases concerning OBCs, specially in view of the un-ambiguous language of the advertisements inviting applications in such cases.
16. While making a distinction from Tej Pal Singh (supra), the Honble Delhi High Court had held that in the peculiar facts and circumstances, since in the cases of SCs/STs, the concept of creamy layer is not involved, and that on the other hand, in the context of OBCs, the concept of creamy layer is further involved, and while a person may have the status of being an OBC by birth, but unless and until a certificate exists stating that he does not belong to the creamy layer of the OBCs, the benefit of reservation for OBCs cannot be granted to him. The Honble High Court had held that they had gone through the terms and conditions mentioned in the advertisement, which were intended to guide/instruct the prospective applicants, and there was no reason to dilute the same. Even otherwise, it was held that the Court would be loath to issue mandamus/directive contrary to the terms of selection/appointment, as notified, as per the law laid down by the Honble Apex Court in the case of 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).
17. On the other hand, during his arguments, learned counsel for the applicant strongly countered the applicability of the judgment in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) to the instant case. He argued and submitted that since the applicant had since indeed obtained the requisite OBC non creamy layer certificate, and had attempted to file it in connection with the first application under Post Code 17/07, by visiting the Respondents Office along with her cousin (as mentioned in para 4.11 and Grounds Para 5 E of the O.A.), and had indeed filed the same with her second application against Post Code 163/07, the doctrine of issue estoppel applied in her case, and it could not be said that she was estopped from gaining any benefit out of the OBC non creamy layer certificate filed by her subsequently. In his forceful arguments, the learned counsel had relied upon and taken us through the judgment in the case of Hope Plantations Ltd vs. Taluk Land Board Peermade & Anr: (1999) 5 SCC 590, in which the Honble Apex Court has held as follows:
It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. As to what is issue estoppel was considered by this Court in Gopal Prasad Sinha vs. State of Bihar [(1970) 2 SCC 905]. This case arose out of criminal prosecution, the accused was tried on a charge under Section 409 IPC for having committing criminal breach of trust for Rs. 27,800/during the period between January 31, 1960 to November 30, 1960, when he was acting as Cashier in the Public Works Department of the State. The accused contended that he had been put up on a trial in a previous case under Section 409, IPC for having committed criminal breach of trust with respect to certain amounts during the period December 8, 1960 to August 17, 1961 and in that case the High Court had acquitted him holding that he was not in charge of the case. The point of issue-estoppel was, thus, raised by the accused. The trial Court held that the aforesaid finding of the High Court could not operate as a res judicata. High Court affirmed the decision of the trial Court. In this Court, it was contended that substantially it was the same issue that was tried during the earlier trial and if the accused was not the Cashier from December 8, 1960 to August 11, 1961, he could not be held to be Cashier from January 31, 1960 to November 11, 1960. The accused contended that the defence in both the cases was identical and the evidence also almost the same. This Court observed as under:
"In our opinion, the High Court came to the correct conclusion. The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous litigation. The question then arises : Was it the same issue of fact which was determined in the earlier case? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier. He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.
If there is any likelihood of facts or conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact. It seems to us that the later finding must necessarily be in contradiction of the previous determination. There can be no such contradiction if the periods are different and the facts relating to the carrying on of the duties of a cashier are different".
xxxxxxxxxxxxxxxxxx Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile law has changed or has been interpreted differently by higher forum. But that situation does not exist here. Principles of constructive judicata apply with full force. It is the subsequent stage of the same proceedings.
(Emphasis supplied).
18. The learned counsel for the applicant therefore pleaded that since a valid OBC Certificate had already been filed in the meanwhile by the applicant, and was available with the respondents, along with her subsequent application for Post Code No. 163/07, its mere availability with the respondent DSSSB would operate as issue estoppel against them. In this context, countering the arguments of the learned counsel for the respondents that the doctrine of res-judicata applied to this case, the learned counsel for the applicant submitted that the plea of res judicata, though technical, is based on public policy, and long term interests of justice, in order to put an end to the litigation, but that it would be a different position if an issue, which had been decided in an earlier litigation, again arises for determination between the same parties, if there is a suit based on a fresh cause of action, or where there is a continuous cause of action. He pointed out that the Honble Apex Court has in the above cited case held that the parties may then not be bound by the determination made earlier, if in the meanwhile law has changed, or has been interpreted differently by higher forum.
19. He, therefore, contested the very applicability of the Honble High Courts judgment in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) itself to the case of the present applicant, because that is the law as was laid down subsequent to the cause of action, which had already accrued in favour of the present applicant before us before the pronouncement of that judgment by the Honble Delhi High Court. Learned counsel for the applicant submitted that the law has developed only subsequently through Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), and the same being a subsequent development in the law, cannot be ipso facto applied to the instant case. Therefore, he submitted that we need not undertake an exercise with reference to the subsequent developments in the law, or even to examine the case law on the concept of implied overruling any further, and that we have only to confine ourselves to the law as was laid down in respect of the availability of relevant certificate on the cut off date or/on acquisition thereof, as on the date of accrual of the cause of action in favour of the applicant, and we could not proceed as per the law laid down by the Honble Delhi High Court in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) which law had developed subsequent to the cause of action having accrued in favour of the applicant.
20. But, availing of the liberty granted to the counsel for both the sides to file subsequently copies of supportive case law, if any, but, in partial negation and demolition of the very grain of his own forceful legal arguments on this subject, that no law as laid down after the date of the cause of action having accrued in the applicants favour ought to be applied to her case, on 14.05.2013, learned counsel for the applicants handed over (in the Chambers) two subsequent judgments of the Honble Delhi High Court, and pleaded for the ratios in those two judgments to be considered by us as part and parcel of his arguments, which prayer of his was found to be genuine, and conceded by us, and the draft of the order prepared by then was discarded, and the order as drafted by then was not pronounced before the summer vacations.
21. We have since had an occasion to study and assimilate these two later judgments of the Honble Delhi High Court, dated 10.04.2013 in the case of Anil Kumar vs. Union of India: WP (C) No.405/2013 with Rakesh Kumar vs. Union of India : WP (C) No.5416/2012, and the judgment dated 06.05.2013 in W.P. (C) No.7304/2010 in Manjusha Banchhore vs. Staff Selection Commission & Another, the copies of which judgments were filed (in the Chamber) by the learned counsel for the applicant on 14.05.2013. Even though we have not had the benefit of the arguments, if any, of the learned counsel for the respondents, on the applicability, relevance, and finer points of law of these two judgments, which were pronounced by the Honble Delhi High Court subsequent to our having heard the case, and reserved it for orders, at the same time we had an occasion to study and assimilate in a similar manner copies of the Honble Apex Courts judgment dated 08.10.1998 in the case of C.N. Rudramurthy vs. K. Barakathulla Khan & Ors. (1998) 8 SCC 275, and the judgment of the Honble High Court of Gujarat dated 03.08.1995 in the case Sushilaben Rameshchandra Doshi & Ors. vs. Competent Officer and Addl. Collector, Urban Land Ceiling, AIR 1996 (Guj.) 117, which were submitted by the learned counsel for the respondents soon after the orders were reserved in this case, and on which the learned counsel for the applicant has not had an occasion to advance his arguments.
22. The case of Anil Kumar (supra) relates to the SSC examination conducted for recruitment to the post of Assistant Sub Inspector (Executive) with the Central Industrial Security Force, for which the advertisement was issued on 29.05.2010, and the last date for applying for the same was 28.06.2010. Two cases were decided by the Honble Delhi High Court through the same common judgment. In the second case WP(C) No.5416/2012, the applicant Rakesh Kumar had in his possession an old OBC certificate dated 05.07.2005, and in view of the stipulation that only a certificate issued within three years from the date of the advertisement would be valid, he had even applied for a fresh certificate, which was issued to him on 25.01.2011, i.e. before the date of interview. The applicant in the first case before the Honble Delhi High Court in Anil Kumar (supra) had in his possession an OBC certificate issued to him on 24.09.2007, and he had also applied for securing a newer and fresher certificate, which he was able to secure on 02.12.2011, and the written examination had taken place on 05.06.2011 and the medical examination was dated 13.09.2011.
23. It was argued before the Honble Delhi High Court that the status of a candidate belonging to a reserved category, either SC, ST, or OBC, is similar to the factum of his birth, and his date of birth, and in that sense, that is unalterable, and that a certificate issued in respect of that Reserved Caste status is merely an evidence of such status, which always existed since birth. The Honble High Court accepted this line of argument, and then distinguished the cases of the caste certificates from the case of an educational qualification, where the production of a document evidences whether the candidate has acquired or is yet to acquire the necessary requisite educational qualification. The Honble High Court, therefore, went on to hold that even the production of a defective or old caste certificate, or one which does not conform to a preordained format, as prescribed, is at best an irregularity, which can be set right, or cured, by the candidate, and cannot be a ground for his disqualification, while non-possessing of the educational qualification certificate amounts to a disqualification, which is incurable. The Honble High Court further held that the issuance of a caste certificate at a later date does not mean that the candidate acquires the status as belonging to the OBC/SC/ST on a later date.
24. Later on, after examining the law as laid down by the Honble Delhi High Court itself in Hari Singh Vs. Staff Selection Commission & Another: 170 (2010) DLT 262 (DB), and two earlier rulings in D.S.S.S.B. and Another Vs. Ms. Anu Devi (WP (C) No.13870/2009) and in GNCTD and Anr. Vs. Poonam Chauhan, 152 (2008) DLT 224 (DB), the Honble High Court also noticed the judgment of the Honble Apex Court in Mrs. Valsamma Paul vs. Cochin University and Others AIR 1996 SC 1011. It was also mentioned by the Honble Delhi High Court in para 10 of its judgment that in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors.(supra), the decision in Hari Singh Vs. Staff Selection Commission (supra) was not noticed at all, and nor was the judgment of the Honble Apex Court in Mrs. Valsamma Paul (supra) noticed. The Honble High Court was further pursuaded by an office order/ clarification issued by the S.S.C. on 01.06.2011, through which, after receipt of the clarification from the DoP&T in this regard on 06.05.2011, the final prescription was adopted. Therefore, the Honble Delhi High Court had ultimately directed the respondents to also process accordingly the candidature of the two Writ Petitioners before it, and to take into consideration the later or subsequent OBC certificates produced by them, and to intimate each of them directly about the outcome of their candidatures concerned. The first sentence of the relevant para 10 of this judgment may be reproduced here as below:-
So far as the judgments relied upon by the respondents are concerned, it is to be noticed that in Ram Kumar Gijroya (supra), the decision in Hari Singh (supra) was not noticed at all nor was the judgment of the Supreme Court in Mrs. Valsamma Paul (supra), highlighting the necessity for adopting a liberal approach in such matters, even noticed
25. The second judgment dated 06.05.2013 in Manjusha Banchhori vs. Staff Selection Commission & Anr. (supra), filed by the learned counsel for the applicant on 14.05.2013, relates to the Combined Graduate Level (Preliminary) Examination, 2004, held for recruitments/appointments to various posts, including the posts of Sub Inspectors in Delhi Police. The Honble Delhi High Court noted that the eligibility criteria, as given in the advertisement, did not require the candidates wanting to take the benefit of reservation to furnish any caste certificate in advance, in support of their claim for caste based reservations, since they were permitted to take the examination, and till the stage of interview, their candidature was to be treated as provisional only, not requiring any verification of their documents at any prior stage, as per the decision of the Staff Selection Commission. The petitioner before the Honble Delhi High Court had sought the benefit of reservation under the OBC category. Though not required to submit any certificate certifying the appropriate caste as eligible for reservation, the petitioner had still enclosed along with the application an old Caste certificate dated 12.12.2003, certifying that the petitioner belonged to Kurmi caste, notified as an OBC. The petitioner was allowed by the SSC to take the Preliminary Examination held on 08.02.2004, and was informed through a communication dated 06.04.2004, about being eligible to take the final examination, for which another detailed application had to be filled up and submitted by 21.05.2004. In the interregnum, on 24.04.2004, a notice pertaining to the main examination was also published, in which the candidates, who had cleared the preliminary examination, were informed that while filling up the detailed application form to take the final examination, they were also required to attach the requisite caste certificates, if they intended to claim and to avail the benefit of caste based reservation. The petitioner filled up the required format and took the final examination. After having cleared the same, the petitioner was called to take the Physical Efficiency Test, which also was cleared by her on 24.12.2004. In between, on 02.08.2004, the petitioner had obtained another caste certificate, as per the proforma prescribed, certifying the petitioner to be a member of the same OBC caste, which had been claimed earlier by the petitioner, through an old certificate dated 12.12.2003 submitted by her along with her application.
26. Since the examination was challenged by a few candidates through writ petitions being filed, which got disposed off after some delay, resulting in the selection process proceeding ahead belatedly, the result of the main examination and the Physical Efficiency Test could be declared only on 08.02.2008, and the respondents then sent the communication dated 12.02.2008, calling upon the petitioner to appear for an interview on 04.03.2008, along with the caste certificate being brought for verification at the time of the interview. Before the interview, the petitioner gave an undertaking regarding the subsequently obtained caste certificate that in view of the OBC certificate in the prescribed proforma having been obtained only after the last date of submission of the application forms for the main examination, the petitioners candidature may be considered against un-reserved UR category, instead of OBC category, and that the petitioner will not claim for OBC status later, which the petitioner claimed to have been forced to give such an undertaking, otherwise opportunity to be interviewed would have been denied to her by the respondents.
27. After the result was declared, the petitioner before the Honble High Court was not found successful, for the reason of her having obtained only 449 marks, and the last empanelled candidate in the unreserved UR category had obtained more marks, though in the OBC category, the last empanelled candidate had obtained 402 marks, much less than the petitioner. The petitioner had, thereafter, come before this Tribunal in OA No.2414/2009, and this Tribunal, after having considered the factum of the undertaking given by her before the interview, held that the petitioner/applicant was bound by the undertaking, and that the plea of the petitioner/applicant having been forced to sign the same was not accepted. The Honble Delhi High Court disagreed, and took judicial notice of the fact that the language of the undertaking shows a legal input, from which it was obvious that the respondents have a standard form undertaking, which the petitioner before the High Court was compelled to sign and submit. The respondents had in that case relied upon the judgments of Honble Delhi High Court itself in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors.(supra), and Krishan Kumar vs. Union of India & Ors. decided by the Honble High Court on 12.10.2012 in WP(C) No.1656/2011, and in Vishesh Kumar vs. SSC, decided by the Honble High Court on 14.09.2012 in WP(C) No.558/2012. However, while the Honble High Court distinguished the third of the above judgments, in respect of first two judgments, it was held that the law declared is that the certificates issued after prescribed cut off dates have to be ignored, and holding that the two earlier judgments had overlooked the fact that a person becomes a member of a caste by birth, those two judgments were held to be distinguishable, as was the view taken in D.S.S.S.B. Vs. Ms. Anu Devi (supra). Accordingly, the Honble Delhi High Court issued a Writ of Mandamus to the first respondent to take into account the marks obtained by the petitioner, treating the petitioner as an OBC candidate, and thereafter process the candidature accordingly, subject to verification of the antecedents and character etc. It was further laid down that if appointment is made, the petitioner would be entitled to all consequential benefits, i.e. seniority as per the merit position, notional increments etc. for future service, except back wages, which were denied on the principle of No Work No Pay. The relevant paragraphs 17 and 18 of this judgment may be reproduced by us as below:-
17. The last decision dealt with the subject of an OBC certificate issued prior to three years preceding the cut off date and held that the stipulation in the advertisement that the OBC certificate had to be within the three preceding years of the last cut off date was legal and valid because as against SC and ST candidates, creamy layer OBC candidates are not entitled to benefit of reservation. In other words the decision explain that a person may be below the income/wealth level in a particular year and hence entitled to benefit of reservation as an OBC, but may be above the prescribed income/wealth level thereafter. The decision has no application in the facts of the instant case. As regards the other two the law declared is that certificates issued after prescribed cut off dates have to be ignored. The said two decisions have no application in the instant case because the advertisement inviting applications did not prescribed any cut off date by which the certificates had to be furnished.
18. Besides, the law declared in Ram Kumar Gijroyas case (supra) and Krishna Kumars case (supra) overlooks a fundamental point. The two decisions seem to be influenced by the line of reasoning found in various decisions that eligibility has to be obtained prior to the cut off date. In these decisions the certificates such as degrees etc. were issued after the prescribed cut off dates by which applications had to be filed. The two decisions over looked that a person becomes a member of a caste by birth and the certificates are not akin to certificates certifying that a person has acquired a degree. Caste Certificates are more in the nature of a memorandum recording a fact pertaining to birth. This was the view correctly taken in the decision dated February 17, 2010 disposing of WP(C) 13870/2009 Delhi Subordinate Services Selection Board & Anr. vs. Anu Devi & Anr. The Division Bench emphasized that reservations for SC, ST and OBC are beneficial legislations and that submission of an OBC certificate to claim reservation could not be equated with acquisition of Educational Qualifications. (Emphasis supplied).
28. We are, therefore, now, faced with a peculiar situation. On the one hand, we have a Division Bench judgment of the Honble Delhi High Court dated 24.01.2012 in the case of Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors.(supra) and on the other hand, we have two judgments of two other Division Benches of the Honble Delhi High Court itself taking a different view, both of which have referred to the same earlier judgment, i.e. Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), and have given their own reasons for their differing views. However, it may be pointed out here, most respectfully, that the observation of the Honble Delhi High Court in para 10 of its judgment in Anil Kumar (supra), as reproduced by us at the end of para 24/above, that the judgment in Hari Singh (supra) was not noticed at all in Ram Kumar Gijroya (supra) appears to have been made by way of an oversight, as the said judgment in Hari Singh (supra) was very much noticed and discussed in para 17 of Ram Kumar Gijroya (supra).
29. Further, as has been discussed in para 17 of the judgment in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), reproduced by us in para 13/above, we find that the judgment in D.S.S.S.B. Vs. Ms. Anu Devi & Anr. (supra), had turned upon the peculiar facts of that case, in as much as, notwithstanding the cut off date prescribed, the appointing authority had issued fresh notices demanding the certificates, thereby extending the very cut off date itself, and, secondly the Honble High Court had exercised its discretion under Article 226 in refusing to interfere with the decision of the Tribunal in that case. It is most respectfully submitted that the peculiar facts of the case on which the judgment of the Honble High Court in Ms. Anu Devi (supra) had turned have, on the other hand, not been considered and discussed in detail in the judgment dated 06.05.2013 in Manjusha Banchhore (supra). Therefore, at least this Tribunal is not competent to hold that the Honble Delhi High Courts judgment in Ram Kumar Gijroya (supra) does not lay down good law, and it appears to us to have laid down law which continues to be binding for this Tribunal at least, notwithstanding the later two judgments in Anil Kumar (supra) dated 10.04.2013, and in Manjusha Banchhore (supra) dated 06.05.2013.
30. Secondly, the latter judgment dated 06.05.2013 in Manjusha Banchhore (supra) has been delivered on the basis of a specific legal ground that the law as laid down by the Honble High Court in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra) and in Krishna Kumars case (supra) had overlooked a fundamental point that a person becomes a member of a caste by birth, and that the caste certificates are more in the nature of a Memorandum recording a fact pertaining to birth, which was the view correctly taken earlier by the Honble High Court in Anu Devi (supra).
31. We are finding legal hurdles in our accepting this as the final and absolutely correct proposition of law, to be followed blindly by us, as the law of the land. Out of the two legal propositions, which have been examined by us in this regard, the first one is that the Constitutional provisions for reservations for SCs & STs on the one hand, and for OBCs on the other hand, do not stand on an absolutely equal footing. The reservations for SCs and STs are only quantitative in nature as per the Article 16 (4) of the Constitution, and there is no qualitative aspect attached to this reservation. On the other hand, the reservations in respect of OBCs are not only quantitative in nature, but also have a qualitative nature attached to it, as the reservations for OBCs are available only to those who do not float in the Creamy Layer. Therefore, while the factum of being born alone may be sufficient to be certified in the case of SCs and STs only, such a certificate of having been born in an OBC caste alone is not sufficient in the case of a person born in an OBC caste. Apart from this benefit of his/her having been born in an OBC Caste, he or she also has to necessarily possess another certificate, of not belonging to the creamy layer of such an OBC caste. Therefore, the eligibility or otherwise for OBC caste based reservation cannot be determined at the time of birth alone, as can be done in respect of SCs and STs.
32. There is another aspect also, i.e., the possibility or likelihood, of the change of creamy layer status of a lady after her marriage. We have been perplexed as to why when in her previous O.A., as well as in her present O.A., and in all her submissions the applicant before us has given her Rohini, Delhi, address, which is her marital home, and address for correspondence, as to why the applicant chose to apply for the OBC non-creamy layer certificate from her village address, giving only the name of her father, and the village address, and obtaining an OBC non-creamy layer certificate from SDM Narela. We have not been able to lay our hands upon, and find any definitive case law, which lays down that a girl who may belong to non-creamy layer before her marriage can be considered to have crossed over and above her previous status, to the creamy layer after her marriage. But in the instant case, it appears to be one such case. In this case it appears that the monthly income and social standing of her marital home may have perhaps disentitled her to a non-creamy layer certificate, and, therefore, only while choosing to apply for the job, within a period of 8 days, while she gave her marital home address, which is the same in the case of her address in her previous OA and the present OA, but while applying for her non-creamy layer OBC certificate, she chose to apply from her parents address, which was her address prior to her marriage.
33. It is our view that if the caste/category of a person for various benefits admissible to SC/ST/OBC is determined only by birth, then, since in the birth certificate of a person itself, the name and caste of the child born are noted at the time of issuance of that birth certificate, there ought to have been no need for the Legislature to prescribe by law, or through the subordinate legislation framed thereunder, to prescribe a separate caste certificate being obtained in a particular prescribed format, as prescribed by the law, rules and regulations in this regard. A birth certificate is issued by the Municipal Authorities on the report of the hospitals, where the birth takes place, or on the report of the Midwife /Auxiliary Nurse Midwife available in the village, who had attended the child birth, or on the request made by the childs parents to the Municipal or Panchayat Authorities concerned. Invariably, it records the names of the father, mother and the caste also. That being so, if the proposition the OBC status for various benefits is determined by birth is accepted as the law of the land, since caste certificates have been held to be more in the nature of a memorandum recording a fact pertaining to birth of a child, and since onus of issuance of birth certificates lies upon the Municipal or Panchayat Authorities concerned under the relevant Act, there would be no necessity for the laws, rules and regulations to prescribe for a separate caste certificate to be issued later on, at any point of time in the life of an individual !! But it has been so prescribed only because in the case of OBCs, the quantitative aspect of 27% OBC reservations is further overlaid by a qualitative aspect, such benefits being available only to those not floating in the Creamy Layer of their respective castes.
34. There is also a catena of case laws on this aspect, and the law in this regard has been clearly laid down by the Honble Apex Court, which have become the law of the land, and stare decisis would apply. In the case of R. Kandasamy vs. Chief Engineer, Madras Port Trust (1997 ) 7 SCC 505, the Honble Apex Court had upheld the validity of only the caste certificate issued by the Tehsildar, who is the Revenue Authority, and not that of the caste certificate issued by the Municipal Authorities, and had held that the Authorities concerned cannot decline to take into consideration his caste/community certificate issued by the Tehsildar, so long as such certificate has not been cancelled, and decline to take into consideration the fresh community certificate issued by the re-designated Revenue Authorities of Revenue Divisional Officers. It was held by the Honble Apex Court that a birth certificate is the original document recording the fact pertaining to a birth having taken place, which can in no way be cancelled, unless it is proved to have been obtained by the process of empty misrepresentation, since the birth of the child who has come into this world cannot be denied by the authorities by any ferment of imagination, or constructive laws, rules and regulations. However, it was held by the Honble Apex Court that caste certificates are permitted, if so required, to be even cancelled, under the very same law under which they are issued initially. It was further held to the effect that even though a caste certificate issued in favour of a person has been cancelled during the pendency of his claim for promotion, by virtue of the operation of an order of Honble High Court, once the caste certificate issued in his favour has been revoked, his status of being a Scheduled Caste comes under a cloud. The Honble Apex Court, however, added that it would be open to appeal if he ultimately succeeds in his Writ Petition filed before the High Court, to take such remedy, made available under the law, and the Honble Supreme Court had actually declined to finally decide the matter one way or the other, regarding the validity of the caste certificate, or that of its cancellation.
35. In the very context of reservation for backward classes and grant of OBC certificates, the Honble Apex Court had in Sidharth Saini vs. State of Haryana 2001 (10) SCC 625 held that since the only source of income of the father of the appellant was his salary, and it was not disputed that the father of the appellant was a class-II officer, and mother of the appellant was not class-II officer, any income more than the gross salary received by the father of the appellant was irrelevant for the purpose of grant of benefits available to the OBCs to the appellant, and that he was entitled to the grant of an OBC certificate. In that case, the authorities had not denied the factum pertaining to the birth of the appellant in a caste coming under the OBC category, but had only denied his eligibility for grant of OBC non-creamy layer certificate, on account of the gross income received by the whole family, by both the father and the mother of the appellant, according to which they had concluded that he came under the creamy layer, and they had declined to issue to him OBC non-creamy layer certificate, which ultimately he may have got issued after the Apex Courts judgment in his favour. But the distinctive separateness of such a creamy layer OBC or non-creamy layer OBC certificate from that of a birth certificate of his birth in an OBC caste was never in question before the Honble Apex Court.
36. Further, the caste certificates are issued on the basis of the powers of the President, and the powers of the Governors of the States concerned, to declare the particular caste and/or community to come under the Scheduled Castes, or Scheduled Tribes, and the Other Backward Classes in their States. The President may, in the case of Central Government, and the Governors may, in the case of their State Governments, declare certain castes and communities to fall within the categories of SCs, STs and OBCs, prescribing that those falling under the Communities so notified would be entitled to any service certificates relating to the Presidents and/or the concerned Governors notifications. The notifications obviously imply that those who do not belong to the prescribed castes and communities in their respective States, will be denied the benefit of issuance of the relevant certificates in respect of those castes (or communities), and if a persons caste is not falling within the category, as prescribed in the Notification issued under the signatures of the Governor of the State, that person can be denied issuance of the relevant that caste certificate.
37. Since a birth certificate records only a factum pertaining to the birth, in respect of the castes and communities, those who are not covered by the relevant Notification, the issuance of a caste certificate may be denied by the concerned Revenue Authorities, even though a person has been born and has held a birth certificate in his name indicating a caste as had been declared at the time of the birth.
38. Therefore, since in the instant case, we are concerned about the certificate having been issued after the prescribed cut off date, in regard to which in para-17 of its judgment in the case of Manjusha Banchhore (supra) also, the Honble Delhi High Court had accepted the law as declared to be correct, though it could choose to ignore it in the case of that petitioner before it, it appears to us that being only a Tribunal, and not having the powers to differ with it or distinguish it, we are still bound by the law as laid down by the Honble High Court in Ram Kumar Gijroyas case (supra).
39. The Honble Delhi High Courts judgments in the case of Anil Kumar (supra) and Ram Kumar Gijroyas case (supra) had both turned on the clarification issued by the SSC, making an amendment in its stipulation with effect from 06.05.2011, and the Honble Delhi High Court had in its very wide powers under Article 226 of the Constitution of India, in paras 11 and 12 of its judgment in Anil Kumar (supra), held that even though the SSC had made an Office Order/Clarification dated 01.06.2011 applicable from 06.05.2011, the production of the certificates dated 25.01.2011 at the time of interview on 01.02.2011 by the two applicants before the High Court conforms to the clarificatory Office Order.
40. Aforementioned proposition does not arise before us, thus we continue to be bound down by the law, as laid down by the Honble Delhi High Court in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. (supra), in which the relevant law was mentioned in para 13 of that judgment, and which had been passed on a conspectus of examination of the relevant case law, and had held that the eligibility of any candidate has to be determined as on the cut off date prescribed, and no relaxation can be granted therefrom, and that granting any relief to the applicant approaching the Court in such cases would tantamount to giving a benefit to such applicants to the prejudice of others, who also would have applied, if they had known that the eligibility would be allowed to be determined on the date of interview, or on a subsequent date, or on the date of appointment, and considering themselves to be ineligible as per the advertisement, they did not apply.
41. It is also worth mentioning that the Honble Apex Court had also in the case of Bhupinderpal Singh & Others vs. State of Punjab & Others (2000) 5 SCC 262 held as follows:
13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. U nion of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
14. In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellants/petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinized and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from decided cases of this Court and stated herein above which have now to be treated as the settled service jurisprudence.
(Emphasis supplied).
42. Therefore, if a provision has been made in the relevant Service Rules with regard to the cut off date, it has to be followed, and if no such cut off date was given, then the date fixed in the advertisement shall be followed, and in the absence of both, the last date fixed for receiving the applications by the competent authority shall be followed. The law in regard to cut off date for eligibility criteria as above was followed by the Apex Court in the case of Ashok Kumar Sharma vs. Chander Shekhar (supra), which was another case between the same two parties, 1993 (supp) (2) SCC 611, in which the Honble Apex Court had held as follows:
In legal terminology where something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. The mandatory character of possessing the requirements as provided in the first part of the notification stands further strengthened from the third and last part of the notification which prohibited the candidates from applying if they did not possess the requisite qualifications. In view of these clear and specific conditions laid down in the advertisement those candidates who were not possessed of the B.E. qualifications were not eligible for applying nor their applications were liable to be entertained nor could they be called for interview. Eligibility for the post mentioned in the notification depended on possessing the qualification noted against each post. The expression, 'shall be possessed of such qualifications, is indicative of both the mandatory character of the requirement and its operation in presenting. That is a candidate must not only have been qualified but he should have been possessed of it on the date the application was made. The construction suggested by the learned counsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or 15/07/1982 the last date for submission of forms is not made out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless.
43. In the case of Harpal Kaur Chahal vs. Director, Punjab, Instructions, Punjab 1995 (Suppl) 4 SCC 706, the Honble Apex Court had clearly laid down the law that when the recruitment is sought to be made, and the last date has been fixed for receipt of the applications, and only such of those candidates who possessed all the qualifications and requirements as on that date alone are eligible to apply for and to be considered for recruitment according to rules, and, therefore, if a stipulation has been made in regard to the possession of the requisite caste certificate on the last date fixed for receipt of the applications, the ratio as laid down by the Honble Apex Court in Harpal Kaur Chahal (supra) appears to apply. Further in the case of State of Rajasthan vs. Hitendra Kumar Bhatt 1997 (7) JT 287 the Honble Apex Court had clearly laid down the law that a cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied, had they known that the date of acquiring qualifications was flexible, but they may not have applied, because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.
44. Here we would like to flag an issue which is indirectly related to the lis before us, but on which we can only pass an obiter dicta, and cannot lay down a ratio decidendi, since it was not raised as an issue and argued before us. Soon after the Nine-Judges Bench decision of the Honble Apex Court in Mandal case Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : 1992 AIR SCW 3682 authoritatively interpreting various aspects of Article 16(4) of the Constitution of India, and laying down the law that that socially advanced members of a backward class - 'creamy layer' - have to be excluded from the said 'class', and the purpose and object of Article 16(4) would be served more appropriately by providing such reservations to the class, which remains after excluding the creamy layer, the Govt. of India had issued an Office Memorandum dated 08.09.1993 in this regard. This O.M. prescribed for 27% reservation for the Other Backward Classes, and the Schedule to the said Memorandum prescribes the categories of persons/sections as mentioned in Column 3 of the said Schedule, which were to be held to constitute creamy layer, and hence excluded from the 27% reservation for the OBC category under Article 16 (4). The State Governments of Bihar and Uttar Pradesh travelled beyond the stipulations of that DoP&T Memorandum dated 08.09.1993, and laid down further specific prescriptions and tests in this regard. The whole thing came to be examined by the Honble Apex Court in the case of Ashoka Kumar Thakur vs. State of Bihar and Others [AIR 1996 SC 75= (1995) 5 SCC 403=JT 1995 (6) SC 390=(1995) 5 Scale 115=1995 (Supp3) SCR 269]. In that judgment, the Honble Apex Court reproduced the majority view in the Mandal case, and dealt with the question of creamy layer, drawing a line as to when and where a person belonging to a backward class ceases to be entitled to the reservation, and becomes a part of the exclusion, and brought home the point succinctly by illustrating various stages where a member of a backward class ceases to be backward, and starts floating with the 'creamy layer'. It would be worth-while to reproduce certain paragraphs from the judgment of the Honble Apex Court in Ashoka Kumar Thakur (supra) as follows:-
1. Constitutional validity of the criteria, for determining the 'creamy layer' for the purpose of exclusion from backward classes, laid-down by the States of Bihar and Uttar Pradesh, has been challenged in these writ petitions under Article 32 of the Constitution of India.
2. A Nine-Judge Bench of this Court in " Mandal case" Indra Sawhney v. Union of India, 1992 Supp (3) SCC 210 (217) : (1992 AIR SCW 3682) authoritatively interpreted various aspects of Article 16(4) of the Constitution of India. While holding that Article 16(4) aims at group backwardness this Court came to the conclusion that socially advanced members of a backward class - 'creamy layer' - have to be excluded from the said 'class'. It was held that the 'class' which remains after excluding the 'creamy layer' would more appropriately serve the purpose and object of Article 16(4).
3. The protective discrimination in the shape of job reservations under Article 16(4) has to be programmed in such a manner that the most deserving section of the backward class is benefitted. Means test by which 'creamy layer' is excluded, ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practiced on them by the higher class is in turn practiced by the affluent members of the backward class on the poorer members of the same class. The benefits of social privileges like job reservations are mostly chewed up by the richer or more affluent sections of the backward class and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniform. The jobs are so very few in comparison to the population of the backward classes that it is difficult to give them adequate representation in the State services. It is, therefore. necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservations is necessary to benefit the needy sections of the class. The means-test is, therefore, imperative to skim-off the affluent section of the backward class.
4. We may refer to the opinions given by the learned Judges in 'Mandal case' (1992 AIR SCW 3682) on the question of exclusion of the 'creamy layer' from the backward class.
5. P.B. Sawant, J. spoke about the 'creamy layer' in the following words :
"The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicon of backwardness they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes.
It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? Is it the capacity to compete for Class IV or Class III or higher class posts? A Class IV employee's children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class IV posts. It cannot, however, be argued that on that account, he has reached the "creamy" level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also . Such capacity will be acquired only when the backward sections reach those levels or at least, near those levels."
6. R. M. Sahai, J. held that the exclusion of 'creamy layer' is a social purpose. Any legislation or executive action to remove such persons individually or collectively cannot be constitutionally invalid. The learned Judge elaborated his conclusions as under:-
"More backward and backward is an illusion. No constitutional exercise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from the class may have achieved the social status or economic affluence, disentitle them from claiming reservation, therefore, while reserving posts for backward class the department should make a condition precedent that very candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolization of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated."
7. B. P. Jeevan Reddy, J. speaking for the Court enunciated the concept of 'creamy layer' in the following words.
"The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class, After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. in such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs. 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and , therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognized that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society(social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realize their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that 'one swallow doesn't make the summer', and that merely because a few members of a cast or class become socially advanced, the class / caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes) ... Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion - Whether on the basis of income, extent of holding or otherwise - of 'creamy layer'.
8. It is difficult to draw a line where a person belonging to the backward class, ceases to be so and becomes part of the 'creamy layer'. It is not possible to lay down the criteria exhaustively. This Court has, however, speaking through Jeevan Reddy, J., dealt with the question elaborately and has brought home the point succinctly by illustrating various stages where a member of a backward class ceases to be backward and starts floating with the 'creamy layer'.
9. Pursuant to the directions by this Court in ' Mandal case' (1992 AIR SCW 3682) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued office memorandum dated September 8, 1993 providing for 27% reservation for the Other backward Classes. Para 2(c) of the memorandum excludes the persons / sections mentioned in column 3 of the Schedule to the said memorandum. In other words, the Schedule consists of the "creamy layer'. It would be useful to reproduce the relevant paras of the said memorandum hereunder "
"OFFICE MEMORANDUM Subject : Reservation for Other Backward Classes in Civil Posts and Services under the Government of India - Regarding.
___________________ The undersigned is directed to refer to this Department's O. M. No. 36012 / 31 / 90-Estt. (SCT), dated the 13th August, 1990 and 25th September, 1991 regarding reservation for Socially and Educationally backward Classes in Civil Posts and Services under the Government of India and to say that following the Supreme Court judgment in the Indra Sawhney v. Union of India, (1992 AIR SCW 3682) case (Writ Petition (Civil) No 930 of 1990 the Government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons / sections from the benefits of reservations for Other Backward Classes in civil post and service under the Government of India.
2. Consequent to the consideration of the Expert Committee's recommendations this Department's Office Memorandum No. 36012 / 31 / 90-Estt. (SCT), dated 13-8-90 referred to in para (1) above is hereby modified to provide as follows :
(a) 27% (Twenty seven per cent) of the vacancies in civil posts and services under the Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.
(b) ..............
(c) (i) The aforesaid reservation shall not apply to persons / sections mentioned in column 3 of the Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupation, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare.
(d) to (e) ......................
3.................................
10. We have carefully examined the criteria for identifying the 'creamy layer' laid down by the Government of India in the Schedule, quoted above, and we are of the view that the same is in conformity with the law laid down by this Court in 'Mandal case', (1992 AIR SCW 3682). We have no hesitation in approving the rule of exclusion framed by the Government of India in para 2(c) read with the Schedule of the office Memorandum quoted above. Learned counsel for the petitioners have also vehemently commended that the State Governments should follow the Government of India and lay down similar criteria for identifying the 'Creamy layer'.
11 to 15. xxxxxxxx (Not reproduced here)
16. This Court, in 'Mandal case' has clearly and authoritatively laid down that the affluent part of a backward class called 'creamy layer' has to be excluded from the said class and the benefit of Article 16(4) can only be given to the "class" which remains after the exclusion of the 'Creamy layer'.
The backward class under Article 16(4) means the class which has no element of 'creamy layer' in it. It is mandatory under Article 16(4) - as interpreted by this Court - that the State must identify the 'creamy layer' in a backward class and thereafter by excluding the 'creamy-layer' extend the benefit of reservation to the 'class' which remains after such exclusion. This Court has laid down, clear and easy to follow guidelines for the identification of 'creamy layer'. The States of Bihar and Uttar Pradesh have acted wholly arbitrary and in utter violation off the law laid down by this Court in 'Mandal case' (1992 AIR SCW 3682). It is difficult to accept that in India where the per capita national income is Rs. 6929 (1993-94), a person who is a member of the IAS and a professional who is earning less than Rs.10 lakhs per annum is socially and educationally backward. We are of the view that the criteria laid down by the States of Bihar and Uttar Pradesh for identifying the 'creamy layer' on the face of it is arbitrary and has to be rejected.
17. We, therefore, hold that the above quoted criteria, for identification of' creamy layer' laid down by the States of Bihar and Uttar Pradesh is violative of Article 16(4), wholly arbitrary - violative of Article 14 - and against the law laid down by this Court in 'Mandal case'.
18. We allow the writ petitions and quash (except clause 1 of Schedule III) the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance 1995 (also the Act if ordinance has been converted into Act). We also quash Schedule II read with Section 3(b) of the Uttar Pradesh Public Services Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994.
19. We further direct that for the academic year 1995-96 the States of Uttar Pradesh and Bihar shall follow the criteria laid down by the Government of India, reproduced above, in the memorandum dated September 8, 1993. It will be open to the two States to lay down fresh criteria for the subsequent years in accordance with law. No costs.
(Emphasis supplied).
45. It is seen from the DoP&T O.M. dated 08.09.1993 upheld by the Honble Apex Court that Column-2, Description of Category, Row-II (c ) prescribes Employees in Public Sector Undertakings, Row-III includes persons belonging to Armed Forces including Para Military Forces, Row-IV belongs to (I) Persons engaged in profession as a doctor, lawyer, chartered accountant, Income-tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports person, sports professional, media professional or any other vocations of like status, and the Row-IV (II) mentions persons engaged in trade, business and industry to whom it has been specified a criteria specified against Category VI will apply and the Explanation below provides as follows:-(i) Where the husband is in some profession and the wife is in a Class II or lower grade employment, the income/wealth test will apply on the basis of the husbands income. However, the Category-VI Income/Wealth Test states that it applies in respect of Son(s) and daughter(s) of socially Other Backward Classes. However, it is clear from the Category-IV (I) and (II) that where the husband is in some profession, and the wife is in a lower grade employment, the income/wealth test for their children will apply on the basis of the husbands income, and conversely if the wife is in any profession, and the husband is in a lower rank post/employment, then the income/wealth criterion for their children will apply only on the basis of the wifes income and the husbands income will not be clubbed with it.
46. Here, in the instant case before us, the marital status of the applicant was never pointed out by neither the applicant herself, except in Annexure A/9 of her O.A., and nor by respondents, and nor was the avocation or profession or the level of employment of the applicants husband ever brought on record before us. Therefore, it is quite apparent that even though in both her OAs, and in all her pleadings, the applicant has chosen to give her marital home address for the purpose of correspondence, and as per her own submissions at one place, she even visited the office of the Respondent-DSSSB along with her husband, she has chosen to apply for the OBC non-creamy layer certificate as per her parents village-Darya Pur Kalan, Delhi-110039. In one sense she did the correct thing, because the DoP&T O.M. dated 08.09.1993 deals only with the cases of children of OBCs, & has not ventured to prescribe anything about the change in social status, if any, of daughters when they get married. It could be that as her fathers daughter, she was eligible under the non-creamy layer category, and did not fall under exclusion category, since, as was noted by the Honble Supreme Court in the Mandal case judgment pronounced by Honble Mr. Justice B.P. Jeevan Reddy himself, the income from agriculture is difficult to assess, and, therefore, in the case of agriculturists, the line has to be drawn with reference to the extent of holding.
47. It might be possible that the applicant has moved ahead in life after her marriage, and it appears that she has advanced socially and economically to such an extent that the connecting thread between her and the remaining class has snapped. If that be so, she would certainly be a misfit in the class of non-creamy layer, which category she could have perhaps legitimately held before the factum of her marriage, and could have claimed also, as is apparent from the certificate issued to her at her village address by the S.D.M. Narela. However, the fact is that the basis of such exclusion should not merely be economic, unless of course, the economic advancement is so high that it necessarily means social advancement, as was noted by Mr. Justice B.P. Jeevan Reddy in the Mandal case judgment. But a person (applicant), who after her marriage lives in an up-market Sector-16, Rohini, Apartment, can perhaps be considered to have achieved economic advancement so high, that it necessarily means that she has achieved social advancement also, and has started floating with the creamy layer of her O.B.C. caste in which she was born.
48. But, we have already flagged above the issue that since most of the contents of the DoP&T OM dated 08.09.2003, referred to above, providing for 27% reservations for the non-creamy layer Other Backward Classes, refer to the sons and daughters category, and not the category of a wife as related to the category of her husband, whether the fact of her marriage could be considered as a separate standalone proposition remains to be examined. We have searched for, but could not find much case law on this subject.
49. Nevertheless, we have found that the petitioner in the case in S.B. Civil Writ Petition No.6673/2007 (Smt. Kaushal vs. State of Rajasthan & Anr.) decided by the Honble Rajasthan High Court at Jodhpur on 05.11.2008 had submitted an OBC certificate issued by the Tehsildar, Hissar, certifying that the father of the petitioner was a member of OBC, and that she was not within the creamy-layer as per the Government of Haryanas notifications dated 07.06.1995 and 30.01.2004. A certificate issued to her at her parental home address by the Sub Divisional Officer, Hissar, Haryana, was placed on record to substantiate this contention. The petitioner before the Honble Rajasthan High Court at Jodhpur was, however, doubly careful, and she had also submitted a certificate issued to her at her marital home address, by the Tehsildar (Revenue) Nohar, District Hanumangarh, Rajasthan, specifying that she is the wife of one Shri Dinkar Singh, also a person belonging to OBC, and also not coming within the creamy-layer. It was on this basis that the petitioner had pleaded before the Honble Rajasthan High Court at Jodhpur that the respondent-State of Rajasthan was wrong in their decision for not considering the candidature of the petitioner in OBC non-creamy layer women category. The respondents had, on the other hand, stated that the petitioner before the Rajasthan High Court did not submit a proper OBC certificate issued from within Rajasthan, which could only be a certificate based only on the income of her father, and as such, as per column No.3 of the extant instructions, her application was to be considered under the general category. The Honble Rajasthan High Court did not accept this proposition, and held as follows:-
It is not in dispute that the petitioner is a member of OBC. The only question is whether the certificate issued by a competent authority in the State of Haryana can be taken into consideration in the State of Rajasthan or not. From perusal of the certificate placed on record, issued by the Tehsildar, Hissar, it is apparent that father of the petitioner, a bonafide resident of Haryana, is a member of OBC and is also not within the purview of the diversion category commonly known as creamy-layer. The husband of the petitioner is also a member of OBC and he too is not within the creamy-layer. No certification with regard to income of the father and relating to his income could have been issued by the officers of the State of Rajasthan. As such, the certificate issued by the Tehsildar, Hissar was rightly submitted by the petitioner and that should have been considered by the respondents to examine placement of the petitioner in OBC women category. The instructions given in the advertisement also prescribes that the issue relating to the fact whether the person comes within the creamy-layer or not is required to be decided on basis of the certificate relating to his/her father and it nowhere mention that the certificate issued by the authorities of a different State shall not be considered. The petitioner is a member of Other Backward Class in the State of Rajasthan as well as in the State of Haryana. She submitted required certificate in this regard including with a certification that her father was not in creamy-layer, therefore, rejection of her candidature from consideration for appointment as a person belonging to OBC women category is illegal. The same, therefore, is quashed. The respondents are directed to consider candidature of the petitioner for the purpose of appointment as Teacher Gr.III as per her merit by treating her a woman belonging to OBC not coming within the creamy-layer.
The petition for writ stands allowed in the terms above. The consideration as aforesaid is required to be made within a period of three months from today.
( GOVIND MATHUR ),J.
(Emphasis supplied).
50. From this case-law, it is clear that it was held by the Honble Rajasthan High Court that since the instructions given in the advertisement also prescribe that the issue relating to the fact whether the person comes within the creamy-layer or not, is required to be decided only on the basis of a certificate relating to his/her fathers social status & income, and it nowhere mentions that a valid certificate issued by the authorities of a different State shall not be considered, and the petitioner before the Honble High Court had submitted the required certificate in this regard, including a certification that her father living in Haryana was not in the creamy-layer, therefore, the rejection of her candidature from consideration for appointment as a person belonging to OBC non-creamy layer women category was illegal. However, one thing that emerges from this case law is that if the advertisement for a post does not prescribe that the issue relating to the fact as to whether the candidate comes within the creamy-layer or not, is required to be decided on the basis of the certificate relating only to his/her fathers social status & income, such a certificate relating even to the social status & income of the husband of the petitioner also could have been considered by the respondent-authorities for the purpose of providing employment to the petitioner before the Honble Rajasthan High Court.
51. Here, in the instant case before us, as to whether the social & economic status of the applicants husband, within the parameters as laid down by the DoP&T OM dated 08.09.1993 (supra), which was specifically upheld by the Honble Apex Court in the case of Ashoka Kumar Thakur (supra), allows the applicant to continue to remain eligible for non-creamy layer status or not, is an aspect, which was neither argued nor canvassed before us, but is of extreme relevance. In the instant case, in Annexure A-1 of her earlier OA No.1930/2010, as reproduced by the applicant at page-45 of the paper-book of the present OA, the applicant had reproduced from pages 45 to 55, the Notification in respect of the Post Code No.017/07. In respect of reservation benefits, it is seen from page-45 of the paper book, the following prescription had been laid down:-
APPLICANTS ARE ADVISED TO NOTE:
CANDIDATES ARE REQUIRED TO SUBMIT LEGIBLE ATTESTED COPIES OF THE FOLLOWNG DOCUMENTSS;
(i) to (iii) xxx xxx xxx (not reproduced here).
(iv) Caste/Category/Disability/Ex-Serviceman/ widow/ Government Employee Certificate on the prescribed form issued by the competent authorities, if claiming benefit under any of the above categories.
(v) to (ix) xxx xxx xxx (not reproduced here).
(2) to (4) xxx xxx xxx (not reproduced here).
(5) The Educational qualification, age experience and other conditions of eligibility as stipulated above shall be determined as on the closing date of receipt of applications i.e. 02-05-07. (6) to (8) xxx xxx xxx (not reproduced here).
RESERVATION BENEFITS:
1. Reservation benefits will be available to the candidates in accordance with the instructions/orders/circulars, issued from time to time by the Competent/Notified Authorities.
2. IMPORTANT: Candidates who wish to be considered against reserved vacancies and/or to seek age relaxation, must submit duly attested copies of relevant certificate issued by competent/notified authority (in prescribed format) along with their application, otherwise, their claim for SC/ST/OBC/Physically Handicapped/Ex-Servicemen category will not be entertained and their applications will be considered against Un-reserved (UR) category vacancies. (Emphasis supplied).
52. Thus, in this case, it had not been specifically prescribed that the non-creamy layer status of all the applicants would be decided only on the basis of certificates relating to the applicants father alone. Therefore, on the basis of the above cited and reproduced judgment of the Honble Rajasthan High Court at Jodhpur, read with the judgment of the Honble Apex Court in Ashoka Kumar Thakur (supra), it is a moot question of law as to whether, after her marriage, the non-creamy layer OBC category status of the applicant could be decided only on the basis of a certificate relating to her husbands economic and social status, which appears to be quite well off, in view of the fact that the applicant is residing in a flat in the up market, Sector-16, Rohini area of Delhi? Only by way of an obiter dicta, it can perhaps be observed by us that it is possible that she had moved ahead socially and economically, and had achieved social advancement enough to start floating with the creamy layer of her OBC Caste, and had thus become in-eligible for the reservation for non-creamy layer OBC category candidates provided for under Article 16(4) of the Constitution of India. Perhaps it was in order to defeat this very purpose that the applicant chose to apply for her non-creamy layer certificate from her village address c/o her father, rather than applying for the same at her present marital home address c/o her husband.
53. The Honble Delhi High Court has in the case of Anil Kumar (supra) decided the case on the assumption that the status of a candidate as belonging to an OBC category who is not from the creamy layer as exists at the time of his birth can perhaps continue un-changed and un-modified up to the date of his or her seeking employment, and, therefore, there is no need for a fresh non-creamy layer certificate to be issued. But as has been held by the Honble Apex Court in Ashoka Kumar Thakur (supra), even OBC families do move ahead both economically and socially, and some times, though not always, such social advancement may be achieved due to economic advancement, as was held by the Honble Apex Court in Para-10 of the Ashoka Kumar Thakurs case (supra), in conformity with the view taken in Mandal case judgment by Honble Mr. Justice B.P. Jeevan Reddy (supra).
54. Therefore, it cannot be anybodys case that while OBC Caste status of a person may have been determined at the time of birth, and may be so reflected in the birth certificate, but the status of his not belonging to creamy-layer can also continue throughout and always unaltered, and without any possibility of modification from the date of birth till the date the person files an application for seeking employment, claiming such non creamy-layer status. That is why the Legislature has chosen to, and the Executive has laid down instructions to prescribe for such non creamy-layer certification not to be too old in point of time from the last date of receipt of the applications, which is normally the cut off date for determination of eligibility of persons. If it was not so, there was no need for the Legislature and the Executive instructions to prescribe for insisting upon a current and valid, and not too old, non creamy-layer OBC certificate, to be a pre-condition for considering a persons eligibility to reservation under OBC category.
55. Therefore, while two of the Benches of the Honble Delhi High Court could have found it possible and feasible to differ with the view taken and the law as laid down in the case of Ram Kumar Gijroya & Ors. (supra), we in this Tribunal do not have such power to overreach the definitive finding of law delivered by the Honble Delhi High Court in Ram Kumar Gijroya & Ors. (supra). We must, therefore, most respectfully view that since the judgment in Ram Kumar Gijroya & Ors. (supra) has not been specifically declared to be per incuriam by any subsequent larger Bench of the Honble Delhi High Court specifically, it continues to be a good law, to be followed by us, and applicable for the decisions to be rendered by this Tribunal.
56. Learned counsel for the respondents had during his arguments invoked the doctrine of implied over-ruling, and had thereafter submitted two cases in support of his arguments, which have been referred to by us in para-21/above. In the case of C.N. Rudramurthy (supra), the Honble Apex Court was considering a case regarding recovery of possession of a premises in the occupation of original tenant, who had defaulted in payment of rent, and had sub-let the same, contrary to law. In that particular case, the Honble Apex Court had considered the concept of implied over-ruling, and had made the following observations:-
5. While considering the question whether the decision of this court in Shobha Surendar case had impliedly overruled the decision of the Karnataka High court Padmanabha Rao case the High court held that the decision laid down in Rattan Arya v. State of T.N. should be followed and the decision in D.C. Bhatia case had no application.
6. In D.C. Bhatia case this court was concerned with a provision under the Delhi Rent Control Act and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In Shobha Surendar case the High court had proceeded to rely upon Padmanabha Rao case; when the matter was brought to this court though no specific reference was made to Padmanabha Rao case this court stated that the law laid down in D.C Bhatia case would be applicable, it was not open to the High court to state that it would prefer to follow the decision in Rattan Arya case. Indeed it is a matter of Judicial discipline that requires that when this court states as to what the law on the matter is, the same shall be binding on all the courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this court is binding on them. If that is so, it was not open to the High court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D. C. Bhatia case. The clear pronouncement made by this court in Shobha Surendar case was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision the High court's decision was upset in another matter where the High court had followed the Padmanabha Rao case. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this court and ought to have implicitly followed the decision of this court. The law declared by this court is clear that D.C. Bhatia case was applicable to the provisions of the Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by the High court to the parties to work out their remedies under the Rent Control Act is not at all correct.
7. However, learned counsel for the respondents submitted that there has been no decision of this court directly stating that the law declared by the High court in Padmanabha Rao case was not correct and, therefore, the view taken in Padmanabha Rao case may be examined by us and we may either uphold the view expressed therein or take another view though such a course was not open to the High court. We do not think such an exercise is necessary when this court applied its mind to the facts of the case, the law declared by this court in D.C. Bhatia law in an enactment has been declared to be invalid and when the Supreme court declares the law with reference to another enactment of similar nature, it would not be open to the High court to say that the decision of this court should be taken to have been overruled or upset the decisions rendered by the High court declaring the law to be invalid. This principle has no application in the present case at all because this court itself considered the effect of D.C. Bhatia case with reference to the provisions of the Karnataka Rent Control Act and applied the same thereto and thereafter declared what the law should be. Though this court did not specifically refer to the decision in Padmanabha Rao case it is needless to say that the same stood overruled because the law declared by this court was contrary to what was stated in Padmanabha Rao case. Therefore that argument also is not sound and needs to be rejected.
(Emphasis supplied).
57. In Sushilaben Rameshchandra Doshi & Ors. (supra), the Honble Gujarat High Court was dealing with the question arising from the operation of the Urban Land (Ceiling and Regulation) Act, 1976, in which some co-owners of the lands in question had challenged the orders passed by the Competent Authority, and the Additional Commissioner (Urban Land Ceiling), which had been confirmed by the Appellate Tribunal, rejecting the application of the petitioners. In Paragraphs-8 & 9 of that judgment, the Honble Gujarat High Court dealt with the concept of implied over ruling by stating as follows:-
8. The decision of the learned single Judge in Madha Lala Patel (17 Guj LT 1980) (supra) in so far as it lays down the proposition that on a plain reading of Section 29(2) of the Limitation Act 1963, the provisions of Sections 4 to 24 were applicable enabling the Deputy Collector (Ceiling) to condone delay in filing of an application under Section 8(2) of that Act though it was filed beyond the period of limitation prescribed under Rule 5(2) of the Rules framed under that Act, being contrary to what is laid down by the Full Bench in Memon Ibrahim (supra) therefore stands impliedly overruled.
9. It was submitted by the learned counsel for the petitioner that if this Court is taking a view different from a view taken by the Hon'ble Mr. Justice A.N. Surti in Madha Lala v. State of Gujarat (17 Guj LT 1980) (supra) then the proper course for this court would be to refer the matter to a larger Bench. In support of his submission he relied upon a case in Somabhal Madhavbhai v. New Shorrock, reported in 1983 Guj LH 273 in which the Supreme Court had laid down that it was not open to a single Judge to reject the ratio of another single Judge of the same High Court by merely saying that attention of that single Judge was not invited to the decision of the Supreme Court which may have an impact on the point under examination. There can be no dispute about this proposition that a decision of a single Judge of a Court is binding on another single Judge in a later case. In the present case however, the decision of the learned single Judge in Madha Lala's case (17 Guj LT 1980) is impliedly overruled by the decision of the Full Bench of this Court in Memon Ibrahim (1994 (35) 1 Guj LR 296) (supra). Therefore, when a decision of the single Judge stands overruled by a later decision of the larger Bench or of the Supreme Court, then there remains nothing to be followed or which can be said to be binding on a single Judge deciding the matter at a later point of time. A decision which is expressly or impliedly overruled by a larger Bench or a higher forum cannot be said to be laying down any ratio decidendi which is required to be followed in a later case. This is not a case where a different view is being taken from any view expressed by the learned single Judge earlier, but this is a case where the view which was expressed by the learned single Judge no longer remains valid, having been impliedly overruled by the Full Bench of this Court. This Court as a single Judge is bound to follow the law laid down by the Full Bench as also the law laid down by the Supreme Court, 'the ratio of which the been pithily stated in the judgment of the Full Bench in Memon Ibrahim (supra). When a single Judge is faced with earlier decision of a single Judge which is manifestly inconsistent with the later decision of a larger Bench or a higher Court. I incline to think that it should apply the law laid down by the larger Bench or the higher Court and refuse to follow the erroneous decision which has been overruled expressly or impliedly. The prerogative of overruling a case is primarily that of the higher Court or a larger Bench of the same Court. Therefore, when the Full Bench has in clear terms laid down that the provisions of Sections 4 to 24 of the Limitation Act, 1963 do not apply themselves to quasi-judicial Tribunals or Executive Authorities and they apply to only to Courts governed by the Codes of Civil or Criminal Procedure, there remains no scope for this Court as a single Judge to take any different view of the matter or to take cognizance of acontrary view expressed by the learned single Judge in Madha Lala's case (17 Guj LT 1980) (supra) which stands impliedly overruled by the decision of the Full Bench. Therefore, the ratio of the decision of the Supreme Court in Somabhai Madhvbhai (1983 Guj LH 273) (supra) that it is not open to a single Judge to reject the ratio of another single Judge of the same High Court will not apply to a decision of the single Judge, which is expressly or impliedly overruled by the larger Bench. Therefore, there is no question of making any reference to a larger Bench on the ground that a different view is being taken by this Court. As clarified above, this Court is not following any different view but only following the ratio laid down by a Full Bench of this Court, which it is bound to do.
(Emphasis supplied).
58. We do not wish to venture here to try to explain this concept of implied overruling in the context of the numerous judgments which have been cited and discussed by us above. We can only state that when there is a pronouncement by the Honble Apex Court on any aspect, all the judgments of all the High Courts in the country which are contrary get impliedly overruled without there being an express order to that effect. The same would be the effect of the ratio of a larger Benchs decision, upon the judgments of Benches of smaller number of Honble Judges. In the instant case, the law in Ram Kumar Gijroya (supra) has not yet been over-ruled either impliedly or expressly so far, and continues to be binding law for us as on today also.
59. Also, it is clearly apparent that the stand of the applicant in regard to her visit to the office of the respondents in June 2007 is not consistent, as at one place (as reproduced by us in para 9/above) she has mentioned about her having visited the office of the respondents-DSSSB with her husband in her representation dated 27.09.2010, and in the OA paragraph 4.11, and in Ground-E, (as reproduced by us in para 5 and para 8/above), she has specifically mentioned, as was argued before us by the learned counsel for the applicant also, that she had visited the office of the respondents along with her cousin. If we only take the observations of the Honble Apex Court in this behalf into account, as in Dalip Singh vs. State of U.P. & Ors. (2010) 2 SCC 114, in the paragraphs 1,2, & 21 to 25 of that judgment, as reproduced below, we may have to dismiss the case of the applicant on this ground alone, with her stand in her representation (as reproduced in para 10/above) regarding her attempts to bring the factum of the certificate of OBC Creamy Layer having been issued to her not being consistent with her pleadings itself. Relevant excerpt of the Honble Apex Courts judgment reads as under:-
1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order, to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
3 to 23. xxxxxxxxxxxxxxx (Not reproduced here).
24. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the Courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of per-sons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or enter-tain the appellant's prayer for setting aside the orders passed by the Prescribed Au-thority and the Appellate Authority.
25. In the result, the appeal is dismissed. We would have saddled the appellants with exemplary costs but, keeping in view the fact that possession of the surplus land was taken in 2002 and the same has been distributed among landless poor persons, we refrain from doing so.
Appeal dismissed.
(Emphasis supplied).
60. In the light of the overwhelming impact of the case-law, as laid down by the Honble Apex Court, as cited above, and in the light of the discussions above, under which we still feel that the persuasive value of the law as laid down by Honble High Courts judgment in Delhi Subordinate Services Selection Board & Another vs. Ram Kumar Gijroya & Ors. case (supra) stands on a higher pedestal than the subsequent judgments of Anil Kumar (supra) and Manjusha Banchhore (supra), and since we are not convinced with the arguments made by the learned counsel for the applicant on the point of issue estoppel, as discussed above, the OA appears to lack merit.
62. As on the date, the applicant applied for the Post Code No.17/07, she did not have the requisite caste certificate, which she acquired on the later date. When she applied for the second time, i.e. on 13.08.2007, she had the caste certificate, but that selection got subsequently cancelled. Therefore, the claim of the applicant, if any, subsists only against the first selection initiated under Post Code 17/07, at the time of applying for which the applicant did not possess the requisite caste certificate, as prescribed in the advertisement for the posts. As a result, in view of the law as laid down by the Apex Court, and the Honble High Court as discussed above, the OA does not survive, and is, therefore, rejected. No costs.
(A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.