Central Administrative Tribunal - Delhi
Deepak Malik vs Delhi Subordinate Services Selection ... on 3 August, 2021
1
OA 1337/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./100/1337/2021
M.A./100/1703/2021
Order reserved on: 23.07.2021
Order pronounced on:
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Ms. Aradhana Johri, Member (A)
Deepak Malik,
S/o Shri Rajvir Malik
R/o D-29, Mata Kasturi Devi Public School
Gopal Nagar Extn., Najafgarh,
Gopal Nagar, New Delhi-110043 ... Applicant
(Through Shri Tarjit Singh Chhikara, Advocate)
Versus
Govt. Of NCT of Delhi, through :
1. The Chief Secretary,
Govt. of NCT of Delhi,
New Secretariat, I.P. Estate,
New Delhi
2. Director,
Health & Family Welfare,
Govt. of NCT of Delhi & Services Department
Govt. of NCT of Delhi
3. Director,
Delhi Subordinate Services Selection Board,
FC-18, Institutional Area, Karkardooma,
Delhi-110092 ... Respondents
(Through Ms. Esha Mazumdar, Advocate)
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OA 1337/2021
ORDER
Hon'ble Mr. R.N. Singh, Member (J) In the present OA filed under Section 19 of the Administrative Tribunals Act 1985, the applicant has challenged the order dated 21.05.2021 (Annexure A-1) passed by respondent no.3, purportedly in compliance of the directions of this Tribunal in order dated 18.02.2021 in OA 233/2021 (Annexure A-15). The applicant has prayed for the following reliefs:
" i) quash the Govt. order dated 21/5/2021 passed by the DSSSB, Govt. of NCT, Delhi vide which the Govt. rejected the representation dated 28/9/2020 submitted by the Applicant; and
ii) declare the applicant as eligible and selected candidate in OBC category for appointment to the post of Nursing Officer in Health & Family Welfare, Govt.
of NCT of Delhi & Services Department, Govt. of NCT of Delhi; and
iii) direct the respondents to appoint the applicant on the post of Nursing Officer in Health & Family Welfare, Govt. of NCT of Delhi & Services Department, Govt. of NCT of Delhi, Post Code 3/18 in pursuance of advertisement no. 2/2018 with all consequential benefits.
iv) allow the present OA with exemplary costs.
v) pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
3OA 1337/2021
2. The facts leading to the present case are that the respondents issued an advertisement No.2/2018 dated 5.07.2018 (Annexure A-2) for selection to the post of Nursing Officer (Post Code 3/18). The applicant filled up the requisite form under 'Unreserved' (hereinafter referred to 'UR' category). An admit card was issued to him with roll number 12380903505 (Annexure A-5) and in the said admit card the applicant was reflected as 'UR' category. Pursuant to the aforesaid advertisement, written examination was conducted on 27/28/29/30.08.2019 and the applicant participated in such written examination. Vide notice number 873 dated 09.01.2020, marks were released and the candidates were shortlisted for uploading e-dossier between 14.01.2020 to 28.01.2020. The cut-off marks for shortlisting of candidates for uploading e-dossier under various categories are as under:-
"That vide Notice No. 873 dated 09.01.2020, marks of written examination were released and candidates were shortlisted for uploading e-dossier between 14.1.2020 to 28.01.2020. the cut off marks for shortlisting of candidate for uploading e-dossier was as under :-
Category UR OBC SC ST ExSM PH
(OH)
Cut off 115.28 85.93 100.99 94.66 64.10 60.17
marks for
shortlisting (SC)
of
candidates
for
uploading
e-dossiers
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OA 1337/2021
3. The applicant who applied for the said post under 'UR' category and appeared in the examination as such, has obtained 113.80 marks i.e. well below the cut-off marks for 'UR' category and, therefore, he was not shortlisted for uploading e-dossier.
4. The respondent no.3 vide result notice number 996 dated 13.06.2020 (Annexure A-8) notified the roll numbers of various candidates declaring therein the said candidates to have been found provisionally eligible as per the documents uploaded in support of educational qualification, age etc. in accordance with the advertisement number 02/2018 and the Recruitment Rules for the post of Nursing Officer under Post Code 3/18 under the respondent nos.1 and 2. However, under the remarks column, certain deficiencies have been pointed out for keeping the candidature pending. In the said result notice, it is provided that mere inclusion of the name of candidate does not confer any right over the post unless the authority is satisfied after such inquiry, as may be considered necessary, that the candidate is suitable in all respects for appointment to the post.
5. The applicant submitted an application dated 28.09.2020 to respondent no.3 (Annexure A-9) contending therein that he has applied for the post of Nursing Officer under the advertisement under reference under 'UR' 5 OA 1337/2021 category as he was not having the requisite certificate by then though he belongs to 'OBC' category by birth. He further submitted that as he possesses the caste certificate now which makes him eligible under 'OBC' category, his candidature should be shifted from 'UR' category to 'OBC' category. As no action was taken by the respondents on such representation of the applicant, he approached this Tribunal vide OA No.233/2021 and the said OA was disposed of by this Tribunal at the admission stage itself vide order dated 18.02.2021 (Annexure A-15). Para 4 of the said order dated 18.02.2021 reads as under:-
"4. In view of the aforesaid without going into the merit of the claim of the applicant the present OA is disposed of with direction to the respondent No.3 to consider the applicant's aforesaid representation (Annexure A-8) and to dispose of the same by passing an appropriate reasoned and speaking order as expeditiously as possible and in any case within six weeks of the date of receipt of a copy of this order."
6. The impugned order dated 21.05.2021 (Annexure A-1) is admittedly in compliance of the directions of this Tribunal in order dated 18.02.2021 (Annexure P-15). The impugned order is a very detailed order and the claim of the applicant for changing his category from 'UR' to 'OBC' for the post under reference has been rejected by the respondents vide 6 OA 1337/2021 impugned order keeping in view various grounds including a few, as under:-
i) The prescribed cut-off date for determining educational qualification, age and other eligibility conditions against the Post Code was closing date for filing application i.e. 13.08.2018;
ii) The applicant voluntarily filled up the application form and it was incumbent upon him to indicate the category to which he belongs. The admit card issued to the applicant reflected his category as 'UR' and the same was based on information furnished by the applicant himself and the applicant was fully aware of this fact while appearing in the written examination that any information contained in the attached certificates shall not be considered unless it is claimed in the application form;
iii) The applicant chose to inform the Board regarding his being from 'OBC' category only after declaration of result of the said examination on 13.06.2020. At the time of filling up application form for Post Code 3/18, it was declared by every candidate as under:-
"(a) I hereby certify that all statement made in the application are true, complete and correct the best of my knowledge and belief and filled by me.7 OA 1337/2021
(b) I also declare that I have submitted only one application for one post code in response to the advertisement.
(c) I have read all the provisions mentioned in the advertisement of the examination carefully as published in the website of DSSSB and I hereby undertake to abide by them.
(d) I understand that in the event of information being found false or found incorrect at any stage prescribed in the notice or any ineligibility being detected before or after the examination, my candidature/selection/appointment is liable to be cancelled/terminated automatically without any notice to me and action can be taken against me by the DSSSB.
(e) The information submitted herein shall be treated as final in respect of my candidature for the post applied for through this application form.
(f) I also declare that I have informed my Head of Office/Department in writing that I am applying for this post /examination (for Government Employees only)."
iv) It was declared by the applicant during filing of online application form that "the information submitted herein shall be treated as final in respect of my candidature for the post applied for through this application form"; and
v) It was instructed to the candidate vide advertisement number 2/18 that "the successful candidates will be required to submit legible self attested copies of the documents, admit card along with the hard copy of print out of online application form at the time of verification of documents (any information contained in the 8 OA 1337/2021 attached certificates shall not be considered unless it is claimed in the application form).
7. The respondents have also referred to various judgments of this Tribunal, those of the Hon'ble High Court of Delhi and one of the Hon'ble Supreme Court to contend that since the applicant applied under 'UR' category, it is not possible to change the category once the process has commenced. In this regard, our attention, in particular, was invited to the following orders/judgments:
i) Ms. Shaheen Ishrat Vs. GNCTD and ors., OA 285/2021
ii) Ms. Shaheen Ishrat Vs. GNCTD and ors., W.P. (C) 5028/2021
iii) Monika Chaudhary Vs. GNCTD and ors., OA 885/2020
iv) Monika Chaudhary Vs. GNCTD and ors., W.P. (C) 10922/2020 Further, the condition invoked for consideration of the candidature in the matter of aforesaid selection has been uniformly applied to all including the applicant and that the applicant has not been discriminated in any manner. The vacancies under Post Code 3/18 have already been filled and final selection has been made.9 OA 1337/2021
8. Learned counsel for the applicant has argued that the applicant belongs to 'OBC' category by birth and, therefore, he cannot be deprived of the benefit of reservation as admissible to such category only for the reason that he has not claimed such benefit while submitting his application form for the reason that he was not in possession of the relevant 'OBC' certificate. He further argues that though the result was notified vide notice dated 9.01.2020, however, the respondents have themselves issued another notice dated 13.06.2020 and the same contains the names of various candidates under various categories kept pending due to reasons mentioned against their names i.e. for non- submission of certain certificates. He also argues that the applicant has admittedly secured more marks than the cut- off marks prescribed for 'OBC' category.
9. Learned counsel Ms. Esha Mazumdar, who has appeared for respondents on advance service, has vehemently opposed the claim of the applicant and she submits that the issue involved in the present OA is no more res integra in view of various judgments of this Tribunal, Hon'ble High Court of Delhi and the Hon'ble Supreme Court referred to in the impugned order dated 21.05.2021.
10. We have heard the learned counsels for the parties and also perused the pleadings on record. We have also gone through the judgments referred to hereinabove. 10 OA 1337/2021
11. It is not in dispute that the applicant has applied under 'UR' category. Admit Card was issued to him reflecting him to be a candidate of 'UR' category. He participated in the relevant examination as an 'Unreserved' candidate. He could obtain the 'OBC' certificate on 28.09.2020 i.e. approximately after 8 months of declaration of result on 09.01.2020 for change of category from 'UR' to 'OBC'.
12. We have also perused notice dated 13.06.2020 and reasons for pending the candidature of candidates referred to in such notice but no candidate has been found therein who has applied for the post, participated in the selection process as 'UR' candidate, however, his category has been changed from 'UR' to 'Reserved' after declaration of the result or after the examination was held. In view of such facts, we are of the considered view that the applicant has not been discriminated as no candidate has been allowed to change his category after the last date of submission of the application form, date of the examination held or after declaration of the result of the post under reference.
13. In the impugned order, the respondents have contended that OA No.100/238/2021 titled Himanshu Vs. GNCT of Delhi and ors. was dismissed by this Tribunal and in the said case, the applicant therein applied under 'UR' category and after declaration of the result, made a 11 OA 1337/2021 representation to consider him as SC category candidate. In the same impugned order, the respondents have also contended that the Hon'ble High Court of Delhi while deciding WP(C) No.12563 of 2018, held as under:-
"That she cannot expect the entire administration to work as per her wishes, at the cost of serious administrative inconvenience. If such relaxation were to be made, it would lead to an unending process, leading to confusion and chaos and delay in the declaration of the results. It would also not be fair to other similarly placed candidates who may have applied as General category candidates because they did not possess the caste certificate at the time of making the application."
14. The Hon'ble High Court in a similar matter titled Sonal Panwar Vs. DSSSB, WP(C) No.9464/2019 has held in para 15 as under:
"The position is not different when it comes to non- submission of a crucial document by a candidate on which his/her candidature is determined. The petitioner should have applied for and obtained the certificate by making the requisite application. Not having done so, she cannot expect the entire administration to work as per her wishes, at the cost of serious administrative inconvenience. If such relaxation were to be made, it would lead to an unending process, leading to confusion and chaos and delay in the declaration of the results. It would also not be fair to other similarly placed candidates who may have applied as General category candidates because they did not possess the caste certificate at the time of making the application."
15. Another judgment dated 15.11.2019 of the Hon'ble High Court of Delhi in WP(C) No.11940/2019 titled Amardeep Vs. Govt. of Delhi has been referred to contend that once the petitioner applied in the 'General' category, it is not possible to change the category once the process has commenced. Para 13 of the impugned order passed by the respondents reads as under:-
12OA 1337/2021
"13. That the Apex Court allowed appeal in the case of Rajasthan High Court, Jodhpur Vs. Neetu Harsh in Civil Appeal No.6696/2019 vide order dated 29.08.2019 and has held as under:-
"15. That apart, though it is contended by the private respondent that it was a mistake in indicating "No"
against the Column 3.1 - 'Person with Disability', what is necessary to be taken note is that against Column 2.4 - 'Category', it has been stated as "General". That apart the examination fee fixed for General candidates is Rs.250/ while for the eligible disabled applicant it is fixed at Rs.50/. The private respondent in addition to indicating her category as 'General' has paid the fee of Rs.250/ as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview. On this aspect, to contend that the private respondent cannot make a contrary claim, the learned senior counsel for the appellants herein has relied on the decision in the case of J&K Public Service Commission vs. Israr Ahmad (2005) 12 SCC 498 wherein it is held in para 5 as hereunder:-
"5. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs."
"16. Further the decision in the case of Registrars General, Calcutta High Court vs. Shriniwas Prasad Shah & Ors. (2013) 12 SCC 364 is relied on, wherein this Court has disallowed the claim in a case where in the application the category of reservation was indicated but certificate was not produced and the fee applicable to general candidate was paid. In addition, the learned senior counsel for the 13 OA 1337/2021 appellants herein also refers to the inherent contradictions in the claim of the private respondent apart from the fact that the claim for consideration under the category reserved for Differently Abled Persons is not made."
16. Reliance of the respondents on such judgments referred to in the impugned order has not been disputed or denied by the learned counsel for the applicant.
17. We have also gone through the judgments referred to by the learned counsel for the respondents in the case of Shaheen Ishrat (supra). Though the applicant therein had applied as an `OBC' candidate, however, the two certificates submitted by her were not found to be fit under the parameters prescribed in the circular dated 25.02.2014 of the respondents and the Tribunal dismissed the OA. In the case of Monika Chaudhary (supra) the applicant had applied in response to the advertisement for the post of Nursing Officer (Post Code 03/2018) under `OBC' and she had secured good marks and was otherwise in the zone of consideration. However, the `OBC' certificate submitted by her was not found to be in consonance with the requirements of the relevant advertisement and the Tribunal dismissed the OA holding that the applicant cannot be granted the benefit of reservation. The aforesaid two judgments of the Tribunal have been upheld by the Hon'ble High Court in W.P. (C) No.5028/2021 and 10922/2020, respectively. The Hon'ble High Court of Delhi vide 14 OA 1337/2021 order/judgment dated 28.04.2021 in W.P.(C) 5028/2021 titled Shaheen Ishrat has held in paragraphs 14 and 15 as under:
"14. Once the advertisement for recruitment prescribed the dates which were required to be adhered to, as observed by CAT, the petitioner, having admittedly not submitted the OBC certificate on which the petitioner now seeks to rely on by the said date, cannot avail of any advantage on the basis thereof. This Court, in Ravi Choudhary Vs. Union of India 2016 SCC OnLine Del 2230 (DB), in similar facts as the present case, accepted the contention of the respondents therein that as the candidate/petitioner therein had submitted the OBC certificate beyond the stipulated timeline, it was too late in the day to consider his candidature and the procedure has been applied uniformly to all candidates, and a pick and choose policy cannot be adopted for the candidate/petitioner therein by giving him a special benefit, and declined to interfere.
15. The counsel for the petitioner also contends that the delay in approaching CAT was on account of making representations and obtaining the correct OBC certificate."
18. In view of various judgments of this Tribunal, those of the Hon'ble High Court of Delhi and of the Hon'ble Supreme Court, it is no more res integra that a candidate cannot be allowed to change his category once the selection process has commenced. The applicant has undisputedly requested for change of his category from `UR' to 'OBC' only after around eight months of declaration of the result. The criteria for consideration has been applied by the respondents uniformly in respect of all the candidates. The impugned order is a very detailed, reasoned and speaking order, which also reflects that merit of the Post Code 03/18 has already been assessed and final selection made. 15 OA 1337/2021
19. We do not find that the respondents have committed any illegality while passing the impugned order dated 21.05.2021 (Annexure A-1). Accordingly, the OA deserves to be dismissed. The same is dismissed accordingly. However, in the facts and circumstances, the cost is made easy.
(Aradhana Johri) (R.N. Singh) Member (A) Member (J) /dkm/