Delhi High Court
Yogita Godara vs Food Corporation Of India And Anr on 6 September, 2018
Author: G.S.Sistani
Bench: G.S.Sistani, Sangita Dhingra Sehgal
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 6th September, 2018
+ LPA 111/2017
YOGITA GODARA ..... Appellant
Through: Mr Amit Gupta, Ms Mansi Kukreja
and Mr Anshul Saroha, Advs.
versus
FOOD CORPORATION OF INDIA & ANR ..... Respondents
Through: Ms Neelima Tripathi and Ms Gunjan
Singh, Advs. for R-1
Mr Harish Kumar Garg and Ms
Puran Kumari, Advs
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Challenge in this appeal is to the order passed by a learned Single Judge of this court by which the writ petition filed by the appellant herein has been dismissed.
2. Some necessary facts which are required to be noticed for disposal of this appeal are that an advertisement was published by the respondent No. 1 on 31.07.2010 for recruitment of personnel in the category of Assistant Grade- III. Out of the total vacancies of 250, 59 vacancies were reserved for OBC and non-creamy layer in the Central List. Further as per the advertisement, the format of OBC Certificate had LPA 111/2017 Page 1 of 18 to be downloaded from the link given on the website. Admittedly, the appellant made an application under the reserved category of OBC as a Jat category. The appellant was selected and an appointment letter was issued to her for the aforesaid post. It is also not in dispute that the appellant successfully completed her probation and was thereafter confirmed. After a gap of almost three years (2 years and 9 months) the respondent No. 1 issued a show cause notice to the appellant as to why her appointment be not cancelled, as the appellant was not an OBC as per the Central list although it may be noted that the appellant is an OBC as per the State list. An inquiry was conducted and the services of the appellant herein were terminated. Order of termination was challenged by filing a writ petition, which was dismissed on the ground that since the employment itself was illegal no relief could be granted to the appellant.
3. Learned counsel for the appellant has strongly urged before this court and has taken us to the advertisement, which was published to show that the advertisement is completely vague, lacks material particulars and does not show that the reservation should be as per the Central List. Learned counsel has highlighted the fact that the present case is not one of either forgery, fabrication or submitted with an intention to take any unfair advantage. The appellant had examined the advertisement and under a bonafide impression that since she is in the State OBC list she would be eligible. She submitted the application & employment was offered. Counsel for the appellant has strongly urged before us that the court should have taken a sympathetic view in the LPA 111/2017 Page 2 of 18 matter and allowed the appellant to continue as she has successfully completed her probation, which would show that not only she was eligible but also she was competent for the post. Counsel submits that the judgments relied upon in the order of the learned Single Judge are primarily cases where a candidate had admittedly sought employment on the basis of false/fabricated certificate and with a view to gain unfair advantage.
4. Ms. Tripathi, learned counsel appearing for the respondent No. 1 has justified the action taken against the appellant herein on the ground that appellent was well aware that she was seeking employment in a Central Government Public Sector Undertaking. It is also contended that for reservation in such employment, the candidate has to be an OBC as per the Central List. Counsel also contends that as per the advertisement, the format of OBC Certificate had to be downloaded from the link given on the website and the format of the Certificate so downloaded made it clear that a candidate seeking benefit of OBC Category for appointment must be an OBC as per the Central List. Learned counsel submits that no benefit can be granted in favor of the appellant even if it is assumed that the advertisement is vague or did not categorically state that the candidate should be an OBC as per the Central list.
5. Counsel has relied upon (2004) 2 SCC 105 titled as R. Vishwanatha Pillai V. State of Kerala And Ors. to show that an appointment on the basis of forged or fraudulent documents, are liable to be vitiated and in this case even if the documents were not forged or LPA 111/2017 Page 3 of 18 fraudulent, but the same was illegal. Para 17 reads as under:
"17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra V. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR P.32, para 13) "13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."
(Emphasis added)
6. Reliance is also placed on two decisions of the Coordinate Bench of the Delhi High Court reported as 2011 9 AD Delhi 695 titled as Iqbal Khatri And Ors. Vs. Employees State Insurance Corporation And Anr. Paragraph 8 reads as under:-
"As Jat community is not notified in the Central List, therefore, the appellants cannot claim any right to appointment to posts reserved for OBCs in AAI, a Central Government enterprise, which are required to filled up from persons belonging to the communities mentioned in the Central OBC list. "LPA 111/2017 Page 4 of 18
7. The counsel for the Respondent also relied on Satish Kumar vs Union of India, Manu DE 8276 2007. Paragraphs 6, 11 and 12 are reproduced below:-
"6. The appellants produced caste certificate, which was not as per the format specified in Clause 13 of the letter of offer of appointment dated 13th September, 2002. The appellants admit that they cannot furnish OBC certificate as per the prescribed format applicable for appointment in the Central Government. Appellants belong to Jat community and said community is not included in the OBC central list. However, they challenged the action of the respondent on the ground that they belong to Jat Community, which has been included in the OBC list as per the notification issued by Government of National Capital Territory of Delhi and, therefore, the certificate issued to them by the authority prescribed by the Government of National Capital Territory of Delhi should be, accepted, though the said certificate is not in accordance with the format prescribed by the Central Government and Jat Community has not been notified as an OBC community by the Central Government.
11. S. Pushpa and Ors. V. Sivachanmugavelu and Ors. MANU/SC/0091/2005: AIR2005SC1038, case relates to employment in the Union Territory of Pondicherry and the Central Government instructions issued, were held to be binding and, therefore, the decision in the case of Marri Chandra Shekhar Rao (supra) was distinguished. It was also noticed that right from the beginning, Pondicherry Administration had been following the policy where under migrant SCs/STs were held eligible for reserved posts in the Pondicherry Administration. The above two decisions are not applicable and have LPA 111/2017 Page 5 of 18 not decided the question raised in the present appeal. This appeal does not pertain to migration to SC/ST or reserved candidates from one State to other and non-compliance of any Central Government notification. The question involved in the present appeal is whether Central Government Public Sector Enterprise, viz. AAI is bound to follow the instructions issued by the Central Government that only candidates belonging to the OBC list specified by the Central Government are eligible for appointment to the reserved posts. In view of the notifications issued by the Central Government, which AAI is bound to follow, we do not find any error in the stand taken by AAI and the decision of the learned Single Judge. As already stated above, the notifications of the Central Government have not been challenged and questioned by the appellants.
12. We may also refer here to the decision of the Supreme Court in the case of M.C.D. v. Veena and Ors. holding that OBC certificates issued by States other than Delhi does not entitle them to seek employment on a reserved post in MCD. The Supreme Court has repeatedly held and accepted that the Central Government and State Governments can maintain separate lists of communities, eligible for employment to the reserved posts. For appointment to a reserved post, eligibility conditions prescribed must be met. We may also refer to a decision of the Division Bench of this Court in Pankaj v. Union of India WP (C) No. 7318 of 2005, wherein it has been held as under:
9. The first question which arises for consideration is whether the petitioner belongs to OBC category and was therefore entitled to appointment as an LDC in terms of the advertisement published in the 'Employment News' for LPA 111/2017 Page 6 of 18 1-7th November, 2003. It is admitted by learned Counsel for the petitioner that Jat community is not included in the Central List (Mandal List) of OBCs. The said list has been prepared by the Central Government for the purpose of appointment in reserved category posts meant for OBC. Appointments to reserved posts for OBCs in the Central Government can only be given to candidates belonging to communities mentioned in the Central List (Mandal List). Candidates belonging to communities included in State Government lists are not eligible"
8. Reliance is also placed on 2005 ILR 2 Delhi 341 titled as Pankaj vs Union of India. Paragraphs 9 to 12 are reproduced below:-
"9. The first question which arises for consideration is whether the petitioner belongs to OBC category and was therefore entitled to appointment as an LDC in terms of the advertisement published in the Employment News for 1-7th November, 2003. It is admitted by learned counsel for the petitioner that Jat community is not included in the Central List (Mandal List) of OBCs. The said list has been prepared by the Central Government for purpose of appointment in reserved category posts meant for OBC.
Appointments to reserved posts for OBCs in the Central Government can only be given to candidates belonging to communities mentioned in the Central List (Mandal List). Candidates belonging to communities included in State Government lists are not eligible.
LPA 111/2017 Page 7 of 1810. The appointment in the present case, as mentioned in the advertisement, was to be made by the HQ Western Air Command (Unit) Air Force which is a part of the Central Government. The Government of NCT of Delhi may have prepared its own list of communities falling in OBC category but that list is not relevant and material for appointment to a Central Government post for which a separate Central List (Mandal List) has been prepared. It is, Therefore, apparent that the petitioner was not an OBC candidate and Therefore not eligible for appointment to the post of LDC reserved for OBCs by the Central Government.
11. We also do not find merit in the contention that on the basis of principle of estoppel, the respondent could not have terminated the service of the petitioner vide letter dated 15th December, 2004. In support of his contention the petitioner had relied upon the judgment of the Supreme Court in the case of Sanatan Gauda versus Berhampur University and others reported at MANU/SC/0199/1990 :
[1990]2SCR273 . The said judgment in our opinion is not applicable to the facts of the present case. In the said case, a student of a Law College had pursued his studies for two years and thereafter he was not being permitted and allowed to give his examination for Final year. In these circumstances, the Supreme Court applied the principle of estoppel and held that the petitioner therein was entitled to succeed. It may also be mentioned here that the Supreme Court has examined various rules and satisfied itself that the petitioner therein fulfilled the minimum qualification prescribed for admission to the law course.
12. It is a settled law that there cannot be an estoppel against law. A wrong appointment without proper verification cannot give any right to the LPA 111/2017 Page 8 of 18 petitioner who is a non-OBC to occupy a post reserved for an OBC category. An error or mistake of the nature, subject matter of the present petition, cannot be overlooked by applying principle of estoppel. Appointment of a non-OBC candidate to a post reserved for OBCs is not an irregularity but illegality which vitiates the appointment. The appointment itself as contrary to law and illegal. Principle of estoppel is therefore not applicable. It may also be relevant to state here that the appointment letter dated 12th December, 2003 gives right to the respondent to terminate the appointment of the petitioner by giving one month' notice. Therefore, the petitioner was aware that his appointment may be terminated."
9. Reliance is also placed on (1998) 9 SCC 395 titled as Kishorilal Charmkar And Anr V. Distt. Education Officer and Anr. Para 4 is reproduced below:-
"4. From the material on record, it is clear that the appointments which were given to the appellants were under a bona fide mistake by considering them as Scheduled Tribe candidates, though it is clear that this mistake was not occasioned on account of any mistake by the appellants. Three out of four appellants belong to the Scheduled Caste category and had given their caste certificate while the fourth appellant was in the open category and had not submitted any certificate. The mistake appears to be on the part of the respondents. On discovery of the mistake, they had immediately corrected the situation and the Tribunal has upheld their right to correct this mistake."LPA 111/2017 Page 9 of 18
Chairman And Managing Director, Food Corporation of India and Ors. Vs. Jagdish Balaram Mahira and Ors. (2017) 8 SCC 7 670. Para 2 reads as under:-
"The framers of the Constitution conceived of a policy of affirmative action to redress the social exclusion, economic deprivation and political alienation suffered by historically disadvantaged classes of Indian society. Reservation of posts in public employment and seats for admission in educational institutions and the setting apart of seats in electoral bodies was envisaged by the Constitution for the fulfillment of a constitutional aspiration of social justice to the Scheduled Castes and Tribes and to socially and educationally backward classes of citizens. In pursuit of the constitutional goal of substantive equality, reservations have been envisaged as a means of enabling members of beneficiary groups to realize, in a true sense, dignity, freedom and liberty which the Constitution guarantees as its basic philosophy. But the problem which has confronted legislatures, policy makers as well as courts (as enforcers of the rule of law) is a capture of the benefits of affirmative action programs by persons who do not genuinely belong to the beneficiary groups. This kind of capture poses a serious dimension. When a person who does not belong to a caste, tribe or class for whom reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. For one thing a person who is disentitled to the benefit of a welfare measure obtains the benefit. For another this deprives a beneficiary who is genuinely entitled to receive those benefits of a legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution.LPA 111/2017 Page 10 of 18
It is a fraud on state policy. Confronted with this problem, the legislatures have intervened with statutory instruments while the executive has, in implementation of law, set down administrative parameters and guidelines to prevent the usurpation of benefits."
10. We have heard the learned counsel for the parties and considered their rival submissions. The core issue, which arises for our consideration, is whether the appellant had obtained employment by fraud and concealment of facts and whether the termination pursuant to 2 tier scrutiny of documents and confirmation in services is valid or not?
11. The foremost argument raised by counsel for the appellant is that the advertisement dated 31.07.2010 was completely vague and failed to specify that the reservation in OBC category should be as per the Central list and the appellant believed that since she was in the State list she would be eligible. Learned counsel for the appellant further contended that after a lapse of almost three years (2 years & 9 months), Respondent no.1 had issued a show cause notice which is arbitrary and against the principles of natural justice, moreso, when the Respondent no.1 have themselves scrutinized the documents and confirmed the appellant in her services on 10.07.2012 after completing the probation period.
12. In response to the contention raised by counsel for the appellant, Ms. Neelima Tripathi, advocate for counsel for the Respondent has drawn the attention of the court to the advertisement dated 31.07.2010 and also to the Inquiry report and findings of the Disciplinary authority LPA 111/2017 Page 11 of 18 and contended that there is no perversity in the order passed by the learned Single Judge.
13. At this stage, we deem it appropriate to reproduce the relevant portion of the Advertisement dated 31.07.2010 which casts a burden on the candidates to furnish correct information and further empowers the Respondent no.1 to initiate action against the candidate as and when any illegality comes to the notice of the Respondent no.1. Relevant portion of the advertisement reads as under:-
"Candidates should satisfy themselves that they fulfill the required qualification including Computer Qualification, age etc., before applying for the post. In case it is found that the information furnished by a candidate is defective in any manner or that the candidate has deliberately suppressed information, the candidature will be summarily rejected as and when it comes to the notice of the Management. The candidates are advised to satisfy themselves fully about the correctness of the information furnished, if found ineligible at any stage the candidature would be rejected."
14. We also deem it appropriate to reproduce the relevant portion of offer of appointment issued to the appellant which reads as under:-
"4. His/Her appointment is subject to his being found medically fit by the prescribed medical authority (i.e.) Civil Surgeon/Medical Superintendent. In case he is found medically unfit by the Civil Surgeon/Medical Supdt., he will be discharged from services. The cost of medical examination will be reimbursed by the Corporation.LPA 111/2017 Page 12 of 18
5. The offer of appointment is provisional and subject to verification of caste certificates through the respective District Magistrate/Deputy Commissioner and concerned Police Authorities and in case on verification it is revealed that the information incorporated and claims made by him belonging to the privileged caste is not genuine, the services will be terminated forthwith without any notice assigning any reason and without prejudice to such further action, as deem fit, under the provisions of the FCI and IPC for submitting such fictitious certificate."
15. We do not find any infirmity in the order passed by learned Single Judge for the reason that the learned Single Judge has scrutinized the advertisement published in the year 2012 and held that the requirement for the post in 2010 as well as in the year 2012 was for OBC candidates under the Central list and not for an OBC candidate as per the State list. Learned Single Judge further observed that in the subsequent advertisement there was a check list provided in the link of the website which makes it evident that the post applied by the petitioner (appellant herein) was only for OBC (central list). Moreover, the Inquiry officer has given a finding which was confirmed by learned Single Judge that it is the responsibility of the candidate to verify his eligibility for the post applied and since the post was reserved for OBC category pertaining to Central list, the Respondent no.1 was well within its domain to issue show cause notice and initiate inquiry as and when the illegality of the appointment came to their notice.
LPA 111/2017 Page 13 of 1816. In the case of Iqbal Khatri and Ors. Vs Employees State Insurance Corporation and Anr. reported in: 2011 IX AD (Delhi) 695 which squarely covers the issue in the present case, a division bench of this Court while dealing with the issue as to whether a candidate belonging to OBC category under the State list could have applied in a corporation which is created by an Act of Parliament for a post under the Central list. The division bench of this Court while dismissing the petition held that once a candidate, who does not belong to a particular category, gets an appointment, he really encroaches in the field of reservation and destroys the concept of reservation which is impermissible in law. Relevant portion of the decision is reproduced as under:-
"8. Mr. Sachdeva, learned senior counsel, in his endeavour to distinguish the said decision, has propounded that in Satish Kumar (supra) there was a stipulation in the advertisement pertaining to the category mentioned in the select list. In our considered opinion, the same cannot be regarded as a distinguishing factor. If we appreciate the submission of Mr. Sachdeva and Mr. Jain, it would mean that because of the non-stipulation, the Petitioners had applied and, therefore, they should not be allowed to suffer. The aforesaid stance may not be a ground to hold against the Petitioners pertaining to misrepresentation or suppression of any fact, but that would not enure to their benefit as it is not a case of misrepresentation or incorrect representation. It relates to getting benefits of a particular category. Either one belongs to the said category or does not belong. If he does not belong, he has no right. The selection becomes dehors the law and, therefore, the order of appointment has been lanceted by the ESIC.LPA 111/2017 Page 14 of 18
9. At this juncture, we are obliged to address another contention of Mr. Sachdeva and Mr. Jain that the Petitioners were appointed in 2006 and are continuing, but because of the decision rendered by the tribunal in the case of Shyam and Ors. (supra), they have been visited with the order of termination. It is argued by them that at the stage when the advertisement was published, there was no distinction between the Central list and State list and, therefore, adverse consequences could not have visited them. It is urged by them that the clarification only came into existence in 2008 after the amendment. The learned Counsel has referred to the office memorandum dated 4th June, 2008. It reads as follows:
No. 36028/1/2008-Estt.(Res) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated 4th June, 2008 OFFICE MEMORANDUM Subject: Clarification regarding reservation under OBC category The under undersigned is directed to refer to the Ministry of Labour & Employment's O.M. No. A- 12034/2/2008-SS.I dated 7th May 2008 on the above noted subject and to say that the candidates belonging only to such castes/communities are entitled to get the benefit of reservation in services under the Government of India which are included in the OBC list prepared by the Ministry of Social Justice & Empowerment, Government of India.LPA 111/2017 Page 15 of 18
10. The said memorandum is a clarification of the earlier circular. The tribunal in the case of Shyam and Ors. (supra) has referred to the office memorandum of the DOP&T dated 13th August, 1990 as modified on 8th September, 1993 and 13th January, 1995. It states as follows:
(d) The OBCs for the purpose of the aforesaid reservation would compromise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Government's Lists. A list of such castes and communities is being issue separately by the Ministry of Welfare. (See Appendix-2)
11. Thus, there remains no trace of doubt that it was precisely a clarificatory circular relating to the applicability of the Central list in respect of an institution under the Central Government and as the Petitioners did not belong to the OBC category under the Central list, they could not have been appointed in the ESIC, a central institution.
12. The last limb of submission of the learned Counsel for the Petitioners is that the Petitioners had worked for more than five years and that their services could not have been terminated and thus, they should have been allowed to continue. In impugnation to the same, Ms. Palli has commended us to the decision in the case of Kishorilal Charmakar and Anr. v. District Education Officer and Anr. (1998) 9 SCC 395 wherein it has been held as follows:
4. From the material on record, it is clear that the appointments which were given to the Appellants were under a bona fide mistake by considering them as Scheduled Tribe candidates, though it is clear that this mistake LPA 111/2017 Page 16 of 18 was not occasioned on account of any mistake by the Appellants. Three out of four Appellants belong to the Scheduled Caste category and had given their case certificate while the fourth Appellant was in the open category and had not submitted any certificate. The mistake appears to be on the part of the Respondents.
On discovery of the mistake, they had immediately corrected the situation and the Tribunal has upheld their right to correct this mistake.
13. In view of the aforesaid enunciation of law, we are disposed of to think that the order of the tribunal really cannot be found fault with. The Petitioners could not have been in a position to be appointed had they not been treated as OBC category candidates. Once a candidate, who does not belong to a particular category, gets an appointment, he really encroaches in the field of reservation and destroys the concept of reservation which is impermissible in law."
17. At this stage, learned counsel for the appellant submits that during the pendency of the writ petition and appeal, the appellant has crossed the age required for employment in a public sector undertaking and submits that in view of the peculiar facts of the case, the appellant should be given age relaxation for a period of two years from today.
18. Although we find no merit in the appeal but taking into account the facts of the present case, more particularly, when the genuineness of the OBC certificate was not in contention or disputed, however, since the appellant did not fall in the Central list of OBC, her employment has been cancelled. We allow the prayer that in case the appellant applies for and LPA 111/2017 Page 17 of 18 is successful in her future recruitment in Public Sector Service Undertakings; age relaxation for two years will be given from today.
G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J SEPTEMBER 06, 2018 SU LPA 111/2017 Page 18 of 18