Central Administrative Tribunal - Delhi
Ms Sunalini Saini vs Municipal Corporation Of Delhi & Ors on 11 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3212/2009 New Delhi, this the 11th day of March, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ms Sunalini Saini, D/o Mohinder Singh Saini, A-878, Shastri Nagar, Delhi-110 052 .Applicant (By Advocate: Shri H.K. Gangwani) Versus Municipal Corporation of Delhi & Ors Through : 1. The Commissioner, Municipal Corporation of Delhi, Chandni Chowk, Delhi-110 006 2. The Secretary, Delhi Subordinate Services Selection Board, 3rd Floor, UTCS Building, Vishwas Nagar, Shahdara, Delhi 3. The Chief Secretary, NCTD, Delhi Sachivalaya, New Delhi 110 002 Respondents (By Advocate: Shri Ravi Kant Jain with Shri Ram Kawar) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant is aggrieved at the cancellation of her candidature for the post of Physiotherapist under the GNCTD on the ground of issue of OBC Certificate after the closing date for such submission. Challenging the impugned order dated 11.9.2009 by the Respondent No.2 (DSSSB) intimating her on the subject, the OA seeks by way of relief : (i) quashing of the impugned order (ii) a direction for declaration of her result and processing her case for appointment with all consequential benefits as admissible under the law and (iii) any further orders as deemed fit besides the costs of the application.
2. Separate counter affidavits have been filed by the MCD (respondent No.1) and on behalf of the GNCTD (Respondents 2 and 3). For the applicant, the learned counsel Shri H.K. Gangwani and for the respondents, the learned counsel Shri Ravi Kant Jain and Shri Ram Kawar would represent their respective cases.
3. The brief facts of the case are that the respondent N.2 had advertised five vacancies vide the advertisement No.01/2008 for the Posts of Physiotherapist under Post Code 004/08 for the MCD. The last date for submission of the application was 10.7.2008. In the advertisement it had been clearly stated that the OBC candidates seeking benefit of reservation should submit OBC Certificate issued by the competent authority of GNCTD. Further, it had also been clarified that all the conditions of eligibility would be determined as on the closing date of receipt of the applications.
The applicant who had responded to this advertisement had participated in the written examination conducted on 21.9.2009. The final results of 03 UR vacancies were declared on 25.5.2009. However, in case of 02 OBC vacancies the results were kept pending for want of documents. The applicant had been asked to visit the office of the Respondents for submission of requisite documents. On consideration of her case, the view was taken that since the OBC Certificate in this case had been issued by the competent authority of GNCTD on 11.8.2008 i.e. after the closing date of 10.8.2008, the applicant was not eligible for the post.
4. The case of the applicant, however, is that the impugned action of the respondents is utterly arbitrary since the delay in submission of the OBC certificate was not for any fault on her part. It is submitted that she had applied for the said Certificate on 24.6.2008, which was well before the communicated date of closure in this case and had also duly attached the copy of the OBC Certificate application along with the application form. It is further stated by her that since the OBC Certificate was issued on 11.8.2008 the applicant had submitted the same in the Office of the Respondent No.3.
5. Whereas the Respondents have opposed the claim in the OA on the ground that as per the clearly stipulated conditions of the advertisement, the applicant had not fulfilled the eligibility conditions with regard to her being from the OBC category. Thus, despite being in the zone of consideration on the basis of the result of the written test, the case of the applicant was not found to be eligible. It is further stated that since the OBC certificate in GNCTD had been notified in the year 1995, the applicant had ample time to procure the same and thus now she could not take the plea of the delay not being because of any lapse attributable to her.
6. In support of the claims raised in the OA, the applicant has referred to several judicial pronouncements both by the Co-ordinate Benches of the tribunal as well as by the Honble Delhi High Court. The following decisions have been referred to:-
OA 370/2009 (Anu Devi vs MCD) decided by the Principal Bench of the Tribunal on 177.2009 (Annexure A/6);
Delhi High Courts decision dated 24.12.1999 by a Single Bench in Writ Petition (C) No.8508/2007;
Pradeep Kumar vs. Chairman, DSSSB (CWP No.78221/2006) decided on 12.02.2009.
GNCTD & Anr vs. Ms. Poonam Chauhan Writ Petition (C) No.548/2008 (a copy of the judgment has also been handed over by the learned counsel for the applicant during hearing).
7. It is no more res integra that late issue of OBC certificate cannot be a valid ground for non-consideration of candidature under the under the reserved categories viz. SC, ST or OBC. This is the view taken by the Honble High Court in several cases. We further find that the facts of the present case are squarely covered by the decision of this very Bench in Anu Devis case (supra). The following observations from our earlier order dated 17.7.2009 seem pertinent even to the present case. These are being extracted as below:
5. We have carefully considered the contentions of the parties and perused the material on record. Unlike SC/ST an OBC is not a backward class since birth but as a fall out of the Mandal Commission report and the central list issued by the government as per Article 340 of the Constitution of India and Department of Personnel & Training OM of 13.1.1995, 27% of the vacancies in civil posts under direct recruitment quota are to be reserved for OBC and a methodology has been given vide Department of Personnel & Training OM dated 15.11.1993 that a certificate to be produced by the OBC candidate regarding creamy layer etc. Applicant, whose caste has been included in the central list long back before advertisement was issued by the respondents, had applied for an OBC certificate, which was ultimately issued to her on 5.11.2007. In our considered view, the decision of the High Court of Delhi on all fours covers the present issue, as the applicant was an OBC candidate on the date of the advertisement and delay in issuance of the certificate is not attributed to her. It is stated that even after few days, i.e. from 29.10.2007 the certificate was submitted on 5.11.2007 respondents cannot deny reservation and other relaxation to be applicant on account of her not being an OBC on the last date. A certificate only acknowledges the status already conferred upon applicant as an OBC by inclusion of her caste in the central list and is a declaration to this effect, which would relate back. The issue of cut off date, as propagated by Shri Vijay Pandita, learned counsel of respondents may hold good for educational qualifications but would not apply in case of a caste certificate. Moreover, the distinction drawn by the learned counsel of respondents between the caste certificate issued to SC/ST and OBC is highly imaginary, as status of both emanates from a back date when on the basis of the report of the Mandal Commission the central list for OBC includes the caste of applicant as an OBC.
8. In Anu Devis case, the OA had been disposed with a direction to the respondents to declare the result of the applicant and to process of her appointment as Teacher (Primary) with all benefits, as admissible in law. Considering the law on the subject, cancellation of applicants candidature on the ground of late submission of the OBC Certificate is not found to be in consonance with law and, therefore, the impugned order in its present form is set aside.
However, we also note that along with OA, the applicant has enclosed the information received under RTI Act indicating the marks of four candidates under the OBC category. This shows the applicant as having received the lowest marks of 134. The fact of her securing 134 out of 200 marks in the written examination has also been admitted in Para 4.2 of the OA. Since as per the facts before us, there were only two OBC vacancies, finally the applicant may not get any tangible relief. However that is for the respondents to take a view on merit considering the detailed facts before them.
9. In view of the foregoing, we dispose of this OAS by quashing the impugned order dated 11.9.2009 and direct the respondents for passing a fresh order on merit. This may be done within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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