Central Administrative Tribunal - Delhi
Rohit Kumar vs Govt. Of Nct Of Delhi on 24 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.192/2012 Order reserved on 19th December 2013 Order pronounced on 24th December 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Rohit Kumar, age 27 (Roll No.01817156) s/o Mr. Dharamvir Singh r/o H.No.-75, Baba Haridass Nagar Najafgarh, New Delhi-43 .. Applicant (Mr. Sachin Chauhan, Advocate) Versus 1. Govt. of NCT of Delhi Through the Chief Secretary Govt. of NCTD Nava Sachivalya IP Estate New Delhi 2. The Secretary DSSSB FC-18, Institutional Area Karkardooma (Near Railway Reservation Centre) New Delhi-92 3. Ms. Anita Roll No.01813650 Cat-OBC Age 32 years (15-7-1971) Physical Education Teacher Through Deputy Secretary CC-III DSSSB FC-18, Institutional Area Karkardooma, New Delhi-92 ..Respondents (Ms. Renu George) O R D E R
Mr. A.K. Bhardwaj:
The short issue arises to be determined in the present Original Application is that when the OBC certificate possessed by the applicant dated 8.1.2010, i.e., a date prior to closing date for submission of application, whether he should not have been included in the list of selected candidates for the post of Physical Education Teacher in the Directorate of Education in the pay scale of Rs.5500-900 (pre-revised) published under the OBC category.
2. Mr. Sachin Chauhan, learned counsel for applicant submitted that the closing date for receipt of application forms for the aforementioned post was 15.3.2010 and the certificate of the applicant is dated 8.1.2010, thus it is not so that on the crucial date he was not in possession of the said certificate and even if the respondents did not find the certificate enclosed with the application form, they could have required him to rectify and cure the defect and not omitted his name from the select list. In support of his case, he relied upon the orders of this Tribunal in Ajay Kumar v. Union of India & others (O.A.No.1059/2008) decided on 6.1.2010, Sushil Kumar v. The Union of India & another (O.A.No.2392/2009) decided on 3.3.2010 and Rajesh Kumar Sharma v. Union of India & another (O.A.No.102/2010) decided on 3.3.2011 as also the decision of the Honble High Court of Delhi in Hari Singh v. Staff Selection Commission & another (W.P. (C) No.11928/2009) decided on 6.4.2010.
3. On the other hand, Ms. Renu George, learned counsel for respondents submitted that as had been provided in the Advertisement No.01/2010, the applicant was required to submit legible attested copies of the documents, including that of OBC certificate issued by the competent authority or Govt. of NCT of Delhi. For easy reference, the Note below the aforementioned Advertisement placed on record as Annexure A-1 is extracted hereinbelow:
Note Candidates are required to submit legible attested copies of the following documents with the application form
(i) Matriculation/Secondary certificate or equivalent in support of their declaration of age.
(ii) Degree or Diploma or other certificates in support of their claim of educational qualifications and copies of all year wise mark sheets from Matriculation onwards.
(iii) Experience certificates wherever applicable.
(iv) Caste/Category/Disability (as prescribed in Rule of FR/SR) on the prescribed form, issued by the competent authorities, if claiming benefit under any of the above categories.
(v) xx xx xx xx
4. In the counter reply filed on behalf of the respondents, it is stated that the applicant had neither enclosed any OBC certificate along with application form nor mentioned the said document in column No.8 of the application form, which is specifically provided for listing the documents submitted along with application form.
5. We have heard the learned counsels for the parties and perused the record.
6. As far as the judgment in the case of Hari Singh (supra) is concerned, in the said case, the controversy involved was whether a candidate not in possession of valid OBC certificate on the closing date for submission of application can be given benefit of reserved category (OBC). In the said case, the petitioner had initially joined CRPF as OBC category candidate and in view of the said fact Honble High Court could take a view that non-availability of OBC certificate on closing date of application form could not be a ground to deny him the benefit admissible to OBC category. In the present case, the argument raised by learned counsel for applicant is not so. According to learned counsel, the OBC certificate, copy of which has been placed on record by him, is of a date prior to closing date of application form. In Delhi Subordinate Services Selection Board & another v. Ram Kumar Gijroya & others (LPA No.562/2011) decided on 24.1.2012 the Division Bench of the Honble High Court, presided by Honble Mr. Justice A.K. Sikri, has specifically ruled that a candidate would not be entitled to benefits admissible to OBC category unless he is in possession of a valid certificate before the closing date of application form. The view so taken by the Honble High Court has been followed by this Tribunal in Divesh Kumar v. Govt. of NCT of Delhi & others (OA No.2089/2011) decided on 15.10.2012. Relevant excerpt of said judgment reads as under:-
In Hari Singh Vs. Staff Selection Commission and Ors (WP (C) No. 11928/2009), the parent department of the petitioner, i.e. CRPF, after verifying his service record issued a certificate acknowledging him as a departmental OBC candidate. The said service certificate was also annexed with the application form submitted by him claiming age relaxation. In the said case taking note of the judgments in the case of Tej Pal Singh and Anr. (supra) and Govt. of NCT of Delhi and Anr Vs. Poonam Chauhan (152(2008) DLT 224 (DB), Honble Delhi High Court viewed as under:
47. The prescription in the public notice in question that the closing date for receipt of application would be treated as the date of reckoning of OBC status of the candidate and also for ascertaining that the candidate does not fall in the creamy layer, in our view, is a prescription evolved for the benefit of the candidates belonging to OBC category and not for the purpose of ousting them from the benefit of reservation. What the NOTE under Clause 4(B) (set out in para 5 above) provides is that, if a candidate is certified as being an OBC category candidate not falling within the creamy layer prior to the close of the date of submission of applications ( i.e. 14.09.2007 in this case) then the candidate would be treated as an OBC candidate not falling in the creamy layer for the purpose for the purpose of the examination in question, and the issue that the candidate may have come into the creamy layer subsequently, i.e. after the date of closing, would not be relevant or gone into to deny the benefit of reservation to such a candidate.
xxx xxx xxx 51. Though it is true that the express provision contained in paragraphs 3 and 4 as extracted above from Chapter II of Swamys Compilation on Reservations and Concessions for Scheduled Caste and Scheduled Tribe, may not per se be applicable to OBC category candidates, there is no rationale for not extending the same to the OBC category candidates as well. Historically, reservations for the SC and ST candidates have been in existence for a much longer period, whereas reservations, for the Other Backward Classes have been introduced only after the framing of the Mandal Commission Report. Therefore, government rules and instructions which were framed for SC and ST category candidates prior to the coming into force of the law granting reservation to OBC category candidates, could possibly not have provided for similar treatment to the cases of Other Backward Classes. It is for this reason that paragraphs 3 and 4, as aforesaid, does not deal with candidates belonging to the OBC category. Otherwise, there appears to be no rationale or justification for limiting the benefit of the said Government instructions to the SC and SDT candidates, and not extending the same to the OBC category candidates as well. As a matter of fact, the Note II extracted in para 7 above embodies the same approach as is found in paras 3 and 4 of Chapter II of Swamys Compilation above referred to. However, we make it clear that we are not holding that paras 3 & 4 of the said Swamys Compilation would per se apply to cases of OBC candidates as well. That would be a policy decision for the Competent Authority to take. We would, however, observe that the logical and rational step for the Competent Authority to take would be to extend the application of the procedure devised in the said paragraphs to the OBC category candidates as well.
In the present case, the applicant had not enclosed any kind of certificate along with the application to establish his OBC status. In DSSSB & Anr Vs. Ram Kumar Gijroya and Ors and (WP ( C ) No 8087/2011 decided on 24.1.2012)), the five respondents had approached Honble Delhi High Court by way of WP ( C) No. 382/2009 seeking issuance of direction to DSSSB to accept their OBC certificates submitted by them for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Govt. of NCT of Delhi after the cut off date. In the said case, the last date for submitting the application was 21.1.2008. Though the respondents were allowed to participate in the selection process, but they were not included in list for the reason that they had not submitted OBC certificate along with their application forms. Finding their claim covered by the judgment in WP (C) No.9112/2008 titled Ms. Pushpa Vs. Govt. of NCT of Delhi, Honble Single Judge allowed the Writ Petition 382/2009 filed by the respondents. Against said judgment DSSSB filed LPA No. 562/2011. In an OA 2427/2010 filed under Section 19 of the Administrative Tribunals Act, 1985 before this Tribunal, this Tribunal declined the relief claimed by applicant. Questioning the order so passed by this Tribunal on 29.04.2011, the petitioners/applicants filed WP (C) 8087/2011. Finding the controversy in the Writ Petition being the same as in LPA No. 562/2011, a Division Bench of Honble High Court of Delhi considered the same along with the LPA No. 562/2011. In the judgment dated 24.01.2012 passed in aforementioned LPA and WP (C), Honble Delhi High Court ruled that 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 could not have applied under the belief that they were required to enclose the caste certificate along with the application and the terms and conditions mentioned in the advertisement were intended to guide/instruct the prospective applicants and there is no reason to delude the same. Honble High Court further viewed that it would be loathe to issue mandamus/directive contrary to the terms of selection. Paras 19 to 21 of the judgment read as under:-
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 LPA 562/2011 & W.P.(C) 8087/2011 Page 16 of 18 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 LPA 562/2011 & W.P.(C) 8087/2011 Page 17 of 18 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. No order as to costs. The issue raised in the present Original Application is squarely covered by the view taken by the aforementioned judgment of Honble Delhi High Court dated 24.01.2012. The judgment in case of Hari Singh Vs. Staff Selection Commission is distinguishable on the facts for the reason that in the said case, the petitioner had enclosed a service certificate with his application in which his status as departmental OBC candidate was acknowledged. It is not so in the present case. The decision in the case of Tej Pal Singh and Ors Vs Govt. of NCT of Delhi and Anr and Hari Singh Vs. Staff Selection Commission and Ors (supra) were noted and dealt with in judgment dated 24.01.2012 (Delhi Subordinate Services Selection Board and Anr Vs. Ram Kumar Gijroya and Ors) as follows:-
17. On the contrary, the advertisement in the appeal as well as the writ petition clearly provided that the certificates of belonging to OBC category had to be filed along with the application by the cut off date. We, therefore, are of the opinion that what was held in Tej Pal Singh qua the status as SC/ST and in the context of language of the advertisement in that case would not apply to the present cases concerning OBCs and in view of the unambiguous language of the advertisements inviting applications in the present cases. Inspite of judgment of Coordinate Bench in Anu Devi supra, need is not felt to refer the matter to a larger Bench because the judgment in Anu Devi turned on, firstly the appointing authority in that case, notwithstanding the cut off date, having issued notices demanding the certificates thereby extending the cut off date and secondly on this Court LPA 562/2011 & W.P.(C) 8087/2011 Page 14 of 18 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.
Thus as on date, the law declared by Honble Delhi High Court in LPA No. 562/2011 (DSSSB and Anr Vs. Ram Kumar Gijroya and Ors) holds the field, i.e. in the absence of certificate authenticating the OBC status of an OBC candidate of a date prior to the last date of submission of application for a particular post, a candidate can be denied the benefit of such status. In the present case, admittedly as stated by respondents, OBC candidates seeking benefit of reservation were required to submit certificate issued by the competent authority of Government of NCT of Delhi along with the application form as was the position in the case of DSSSB and Anr. Vs. Ram Kumar Gijroya and Ors. (supra). The averment made in Para 4 of the counter reply filed on behalf of respondent No.1 and 2 has not been specifically denied by the applicant.
7. Also in Ajay Kumars case (supra), the view taken by the Tribunal was that the non-availability of OBC certificate before the closing date of application could not be a ground to deny benefit of such category to a candidate. Paragraphs 11 to 16 of the said decision reads as under:-
11. The question, therefore is, whether applicant could have been denied consideration as an OBC candidate in these circumstances. The question need not detain us for long as it has been considered and decided in number of cases either by the Tribunal or by the Honble High Court of Delhi.
12. In Sunita Vs. Government of NCT of Delhi decided by Honble High Court of Delhi reported in 119 (2005) DLT 368 the issue was whether the petitioner therein could be denied consideration simply on the ground that the certificate was not filed before the cut-off date. It was held so long the person belonged to OBC and recognized by Govt. of NCT of Delhi, she could not be denied appointment. Similarly in Tej Pal Singh and Others Vs. Govt. of NCT of Delhi and Another reported in 83 (2000) DLT 649 it was held by the Honble High Court of Delhi that the status of a person is decided by birth and is not dependent on the date of issuance of the certificate. Simply because the certificate in accordance with law could not be produced by the cut-off date, benefit of OBC could not have been denied.
13. Relying on the above judgments, this Tribunal had taken the following view in OA No.708/2007 decided on 10.10.2007 (page 37 ):-
6. In our considered view when the applicant had applied for the post of Tax Assistant as an OBC candidate and the certificate issued does not obligate his status of an OBC, as such the applicant being an OBC, cannot be denied appointment, as he has qualified the examination though on the strength of the interim order passed by the Tribunal.
7. Resultantly, the OA is allowed. Respondent No.3 is directed to recommend the name of the applicant and thereafter respondents No.1 and 2 to appoint the applicant as Tax Assistant in accordance with law. Consequential benefits would also ensue in accordance with law. No costs.
14. It is relevant to note that the above order was challenged by the respondents before the Honble High Court of Delhi by filing Writ Petition No.5677/2008 but ultimately it was dismissed as withdrawn on 6.8.2008 (page 40), therefore, the orders passed by the Tribunal have attained finality. The same issue again came up for consideration before another Bench of the Tribunal in another OA bearing No.1961/2009 decided on 8.12.2009. The question therein was whether the belated certificate produced by a candidate claiming benefit of reservation could have been refused to be adverted and consequently benefits which would have been admissible, denied. The Tribunal in its order observed as follows:-
Although the observations made by concerned Benches could be safely followed in the present case for the sake of consistency, there might be danger lurking in the proposition. A candidate has an opportunity to present his candidature to the reserved posts or general posts. If he is desirous of reservation benefits, if the notification so provides, he has to produce the certificates, within the prescribed time, or extended time. Otherwise it would have to be considered that he does not opt for reservation benefits. Therefore, we are particular to hold that our decision as above is not to be considered as an authority for a proposition that the claim, either as ST, SC or OBC is possible to be highlighted, at any time the candidate chooses. It is evident that the stand adopted by second respondent was that unless certificate is produced within a prescribed time normally, rights are likely to be forfeited.
5. As referred to earlier persons similar to applicant have received benefits in the form of declaration. Therefore, we direct the 2nd respondent to consider the case of the applicant as one coming from OBC candidate and taking notice of the marks obtained by him, his name is to be incorporated in the select list at appropriate place.
15. We would agree with the observations made in OA No. 1961/2009 but that was also ultimately allowed in order to maintain consistency. We are, therefore, bound by the ultimate decisions taken in all these cases. Therefore, we hold that applicant should be considered as an OBC candidate. However, it would be open to respondent No.5 to verify the correctness of certificate dated 3.4.2008 (page 12) as submitted by the applicant. In case the certificate dated 3.4.2008 is found to be correct, considering the applicant as an OBC candidate, his result should be declared and appropriate orders should be passed for further processing the case of his appointment as per law. This exercise shall be completed within 2 months from the date of receipt of a copy of this order.
16. With above directions, OA stands disposed of. No costs.
8. Also in Rajesh Kumar Sharmas case (supra), the view taken by the Tribunal in Ajay Kumars case (supra) was followed. The order passed in Sushil Kumars case (supra) is also based on the aforesaid decision in Ajay Kumar (supra). However, the legal proposition laid down in the aforesaid cases is finally commented upon by the Division Bench of the High Court in its recent decision in Ram Kumar Gijroya (supra) wherein it could be viewed as under:-
17. On the contrary, the advertisement in the appeal as well as the writ petition clearly provided that the certificates of belonging to OBC category had to be filed along with the application by the cut off date. We, therefore, are of the opinion that what was held in Tej Pal Singh qua the status as SC/ST and in the context of language of the advertisement in that case would not apply to the present cases concerning OBCs and in view of the unambiguous language of the advertisements inviting applications in the present cases. Inspite of judgment of Coordinate Bench in Anu Devi supra, need is not felt to refer the matter to a larger Bench because the judgment in Anu Devi turned on, firstly the appointing authority in that case, notwithstanding the cut off date, having issued notices demanding the certificates thereby extending the cut off date and secondly on this Court LPA 562/2011 & W.P.(C) 8087/2011 Page 14 of 18 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.
9. Nevertheless, the factual submission put forth by learned counsel for applicant is that before the certificate of the applicant is of a date much prior to the closing date for submission of application, thus the applicant cannot be denied the benefit admissible to the OBC category. It is the stand of the applicant that when an OBC category candidate, who scored 100 marks was included in the select list, the applicant, who scored 104 marks was omitted. When the applicant was allowed to participate in the examination as OBC category candidate and in the complete merit list of candidates for the post of Physical Education Teacher, he is shown as OBC category candidate even if the applicant has omitted to enclose the certificate along with the application form, the respondents ought to have given an opportunity to provide the same and in the event of the same being found that it was issued prior to the closing date, his candidature could be considered valid. Learned counsel for applicant has not put forth any reasoning for not mentioning about his certificate with the application form and not enclosing a copy of the same therewith.
10. In the circumstances, we deem it appropriate to dispose of the present Original Application with a direction to the respondents to obtain a report from the Deputy Commissioner, South West regarding date of issuance of the certificate (Annexure A-6). For this purpose, they may also obtain the relevant page of the register wherein the record / entry of issuance of such certificate is made. In the event, it is found that that the certificate in question has been validly issued on 8.1.2010, the applicant may be given benefit of OBC category regarding his appointment to the post of Physical Education Teacher in the Directorate of Education and his candidature may be assessed accordingly. In such an event, if an OBC candidate with merit lower than the applicant is appointed, the applicant may not be denied appointment merely because the copy of the OBC certificate was not enclosed with the application form. If on verification, as stated above, it is found that the certificate is procured in back date, there would be no question of giving appointment to the applicant. No costs.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/