Saroj Lata And Anr. vs Municipal Corporation Of Delhi
2002 Latest Caselaw 692 Del

JUDGMENT

Anil Dev Singh, J.

1. By this letters patent appeal, the appellants seek setting aside of the order of the learned Single Judge dated February 14, 2002 whereby the writ petition of the appellants herein seeking a direction to the respondent, M.C.D., to appoint them to the post of Primary Teachers was dismissed. The facts briefly stated are as follows:-

2. The respondent-M.C.D. issued an advertisement on July 16, 1996 inviting applications from Indian Citizens for appointment to the post of Primary and Nursery Teachers in the Municipal Corporation of Delhi. According to the advertisement, a candidate seeking benefit of reservation under any of the categories, namely, SC/ST/OBC/Ex.S/PH was required to submit the certificate issued by the competent authority in the prescribed from in support of his/her claim along with the application. It may be mentioned that the Government of India vide notification dated April 8, 1994 had notified two model forms of certificates for the guidance of candidates applying under any of the reserved categories. Pursuant to the aforementioned advertisement the appellants applied for the post of Primary Teachers. It is not in dispute that the appellants do not belong to Delhi and are outside candidates. Along with the applications they enclosed the OBC certificates issued by their respective State authorities. The applications of the appellants were acknowledged by the M.C.D. in October 1996. On December 4, 1996, a provisional merit list of the candidates selected by the M.C.D. was notified subject to verification of the documents. There is no dispute that the candidature of the appellants was summarily rejected by the M.C.D. as the OBC certificates filed by the appellants were not issued by the competent authority of the Govt. of NCT of Delhi.

3. The appellants, feeling aggrieved by the action of the M.C.D., filed a writ petition. In the writ petition the main issue which arose for determination was whether the OBC certificates of candidates belonging to States other than Delhi could hold good for the purpose of recruitment to the post of Primary Teachers in the Municipal Corporation of Delhi in the National Capital Territory of Delhi. A Division Bench of this Court vide its order dated March 10, 1998 did not find any fault with the OBC certificates of the appellant from their respective States. The M.C.D. not being satisfied with the judgment of this Court dated March 10, 1998 filed a Special Leave Petition. The Supreme Court on August 14, 2001 accepted the appeals of the M.C.D. While accepting the appeals the Supreme Court came to the conclusion that for the purpose of verification of the OBC status of a candidate from outside Delhi he is required to produce the certificate issued by one of the authorities specified by the Govt of the National Capital Territory of Delhi and the certificate issued by the any outside authority can not be accepted. It was also noticed that the Government of India had issued instructions from time to time to the effect that a person belonging to the OBC on migration from the State of his origin to another State where his caste was not in the OBC list was inter alia entitled to the benefits and concessions admissible in the State of origin but not in the State or Union Territory to which he had migrated. Thus, the order made by this Court on March 10, 1998 was reversed by the Supreme Court. Before the Supreme Court the counsel for the appellants herein also pleaded that since the appellants had applied for the post under OBC category, their applications were not considered under the general category. The Supreme Court while allowing the appeals of the M.C.D. directed that the appellants be considered as falling under the general category and their applications be dealt with accordingly. Pursuant to the direction of the Supreme Court, the M.C.D. considered the candidature of the appellants under the general category, but it did not find them to be possessed of sufficient merit to be placed in the select list. Since the appellants were not selected as Primary Teachers by the M.C.D. a fresh petition was filed mainly on the ground that the appellants had secured OBC certificates from the competent authority, viz., the Sub Divisional Magistrate, Delhi, on January 3, 1997, but as the writ petition which was earlier filed was a batch matter, wherein a general issue was raised, the counsel conducting the writ petition did not consider it appropriate to raise the individual issues. The appellants, therefore, prayed that they having obtained the requisite OBC Certificate from the competent authority ought to be given appointment as Primary Teachers by the M.C.D. The learned Single Judge not being impressed by the contention of the appellants, rejected the contention of the appellants and observed as follows:-

"I have considered the submissions advanced on behalf of the petitioner(s). Admittedly the petitioners were parties before the Supreme Court in M.C.D. v. Veena's case (supra). The certificate, which is now sought to be relied upon to contend that even the office of the Deputy Commissioner, Delhi, recognizes the petitioners as OBC candidates, was available to the petitioners during the pendency of the petition before he Division Bench and thereafter before the Supreme Court. This fact was not pleaded or brought to the notice of the courts. It was open to the petitioner at that stage to have contended that in view of these certificates having been subsequently obtained, the delay if any in obtaining the certificates should be condoned and the petitioners should be treated as OBC candidates. This was not done. No separate petition was filed at that stage to claim further reliefs arising from the issuance of these certificates dated 3.1.97. In view of the aforesaid fact I am of the considered view that it is not open for the petitioners now to claim employment as primary teachers on the basis of these certificates. The aforesaid aspect is to be considered also keeping in mind the fact that there is a positive direction by the Supreme Court in MCD v. Veena's (supra) directing the respondent candidates thereafter therein to be considered as general category candidates and to be so appointed in case they are meritorious enough. This direction has been complied with and the petitioners have been found not to be of relative merit in the general category so as to entitle them to be appointed as primary teachers."

4. The appellants having failed before the learned Single Judge have come up before us in the instant letters patent appeal. We have heard learned counsel for the parties. We do not find any ground to interfere with the judgment of the learned Single Judge.

5. The learned counsel for the appellants invited our attention to a public notice issued by the M.C.D. dated January 14, 1998 in which it was stated inter alia that the candidates who had submitted their OBC certificates issued till May 31, 1997 and had applied to the competent authority of the Government of NCT of Delhi on or before July 31, 1996 had been considered in the OBC category. The learned counsel canvassed that since the appellants had secured the OBC certificates on January 3, 1997 from the Sub Divisional Magistrate, Delhi, they should have been considered for appointment to the post of Primary Teacher under the OBC category by the M.C.D. in consonance with the public notice dated January 24, 1998. In making this submission the counsel for the appellants overlooks the fact that in the earlier writ petition the appellants claimed no relief on the basis of having secured the requisite caste certificates on January 3, 1997. The learned counsel for the appellants submitted that when the writ petition was filed at that point of time the appellants were not possessed of the aforesaid certificates and, therefore, such a plea could not have been raised in the writ petition. The learned counsel for the appellants forget that such a plea could have been raised in that writ petition by amending the writ petition or by filing a separate writ petition. The appellants felt no need to seek relief on the aforesaid count in that writ petition or even by a separate petition. The appellants also did not raise the plea based on the certificates dated January 3, 1997 before the Division Bench of this Court or the Supreme Court in the Special Leave Petition filed by the M.C.D. Not having taken the plea either in the writ petition, or in the S.L.P., they cannot at this stage turn around and claim relief on a plea which was not raised earlier. No cogent reason has been advanced by the appellants for not claiming relief in the earlier proceedings on the basis of the alleged caste certificates dated January 3, 1997. It is not the case of the appellants that they had submitted the OBC certificates issued on January 3, 1997 to the M.C.D. before December 12, 1997, the date when the merit list was displayed on the notice board of the education department of the M.C.D.

6. It seems, the appellants missed the significance of the fact that the order passed in the earlier writ petition was set aside by the Supreme Court which means that the rejection of the candidature of the appellants by the M.C.D. under the OBC category was upheld by the Supreme Court. The only concession given by the Supreme Court to the appellants was in the nature of a direction to the M.C.D. to consider the cases of the appellants under the general category. That direction was carried out by the M.C.D. and the appellants were not found to be possessed of sufficient merit for being appointed as Primary Teachers under the general category as compared to the selected candidates. For all these reasons, the appeal fails and is hereby dismissed.