Daya Ram Khatik vs Nct Of Delhi And Ors.
2003 Latest Caselaw 923 Del

JUDGMENT

A.K. Sikri, J.

CM 9325/2001

This application is filed by the review applicant seeking condensation of delay in filing the review application. No reply to this application is filed and at the time of arguments also prayer made in the application was not opposed. For the reasons stated in the application, the application is allowed. Delay in filing the review application is condensation.

CM stands disposed of.

RA 9324/2001 in CWP 1301/2000

1. We shall understand the genesis of this review application better, once we take note of the background material and events culminating into passing order dated 5.1.2001 review of which is sought in this application.

2. Respondent No. 2, Delhi Subordinate Services Selection Board (in short 'DSSSB') issued an advertisement on 11.6.1998 calling for applications from Indian nationals for appointment to the post of Primary Teachers/Nursery Teachers/Assistant Teachers in Municipal Corporation of Delhi, New Delhi Municipal Council and Directorate of Education, Government of NCT of Delhi. The last date of receiving application forms was 30.6.1998. Certain posts were reserved for SCs, STs, OBCs, Ex-Servicemen as well as Handicapped persons. Many candidates who claimed that they belonged to either SC, ST or OBC category submitted their applications indicating the particular reserved category to which belong to and in which category they were applying for the post. They even admitted the certificate in support of their claim. However, they were not in possession of certificate issued by the Govt. of NCT of Delhi which was the requirement. Such certificates they could obtain only after 30.6.1998. When they sought to submit these certificates, DSSSB refused to accept the same on the ground that it was not submitted by 30.6.1998 and therefore, such candidates could not be considered in reserved category. Number of writ petitions came to be filed in this Court challenging this action of the respondent. A batch of such cases was decided vide judgment dated 24.12.1999, the lead case being CW 1357/99 entitled Tej Pal Singh and others v. Government of NCT of Delhi and another . It was held that when these petitioners belonged to reserved category and had submitted their applications in the said category before 30.6.1998 along with requisite documents including Scheduled Caste certificate, they could produce certificate issued by GNCT of Delhi which was the requirement of the advertisement, even after 30.6.1998. The writ petitions were accordingly allowed.

The aforesaid judgment in Tej Pal Singh's case (supra) which was rendered by me, was taken in appeal. It may be mentioned at this stage that certain other writ petitions came to be filed raising the same issue. However, since in the meantime LPAs were preferred against the judgment rendered in aforesaid batch of petitions in which notice had been issued by the Division Bench of this court, these other cases were adjourned from time to time to await decision of the Division Bench. Ultimately, Division Bench vide judgment dated 15.12.2000 dismissed the appeal affirming the said judgment. Thereafter, the pending cases came up for hearing on 5.1.2001 and following the dicta in Tej Pal Singh's case (supra) all these writ petitions were allowed by passing the order to the effect that the cases were covered by the said judgment. Identical order was passed in this writ petition also and order dated 5.1.2001 reads as under:-

" This case is covered by the judgment dated 24th December, 1999 in CWP No. 1357/99 entitled 'Tej Pal Singh & Ors. Vs. Government of NCT of Delhi & Anr. This case was adjourned from time to time in view of the submission of the respondents that LPA was filed against the aforesaid judgment which was pending before the Division Bench. Today, it is informed that LPA No. 304/2000 filed against the aforesaid judgment has been dismissed by the Division Bench vide judgment dated 15th December, 2000. Since the case is covered by the judgment in Tej Pal Singh's case(supra) the directions contained therein would apply to this case as well and this writ petition is allowed on the same terms.

It is however stated by the respondents that no posts are left and all posts stand filled. It is sought to be clarified that the petitioners in Tej Pal Singh's case could get the benefit of the judgment because by way of an interim order, there was a stay to fill up so far as those petitioners were concerned and posts to that extent were therefore available. However, this is stated orally by the respondents and there is no averment to this effect in the counter affidavit. Interim order was passed on 29th March, 2000 in CM No. 2135/2000 that one post of Primary Teacher be kept reserved for the petitioner till further orders. Therefore on this oral plea, no order can be passed. It would be open to the respondents to move appropriate application.

No order as to costs."

2. In this review petition filed by the respondent seeking review of order dated 5.1.2001, the contention raised is that this case is not covered by the judgment in Tej Pal Singh's case (supra) as in this case the petitioner had applied for the post in general category and not in reserved category.

3. It is not in dispute that in the instant case petitioner had applied in general category. It is not his case where the petitioner had applied for the post in reserved category and had submitted certificate to that effect as well but was not in possession of such a certificate being issued by GNCT of Delhi which he procured after 30.6.1998. It is not his case that he sought to submit this certificate after 30.6.1998 but it was not accepted by the authorities. In fact, judgment in Tej Pal Singh's case was rendered on 24.12.1999 while this petition is dated 14.3.2000, i.e. after the judgment in Tej Pal Singh's case. Learned counsel for the review applicant has submitted that the salient feature in CWP No. 1357/99 entitled as Tej Pal Singh & Ors. v. Govt. of NCT of Delhi & Anr. is that the petitioner had applied under a reserved category and had given declaration to that effect in the form. The only grievance of the petitioner was that he had submitted his Scheduled Caste Certificate late i.e. after the expiry of the dead line 30.6.1998. Only aspect in which the petitioner's form was lacking was the Scheduled Caste Certificates. Otherwise it was complete in all respects under the reserved category. It was further undisputed fact that the petitioners in Tej Pal Singh's case belong to Scheduled Caste category and had submitted the application in the Scheduled Caste category before 30.6.1998 along with requisite documents including Scheduled Caste Certificates. But the certificates attached were not the one issued by GNCT of Delhi. The submission is that the Court in Tej Pal Singh's case has not in any manner permitted the applicants to change their category from unreserved to reserved. In view of the declaration by the applicant in the form no such change of category is permissible. It was argued that in the instant case the petitioner had applied under general category. He gave a declaration in his form that the form was correct to his knowledge and that he was not claiming any reservation. The petitioner is thus, bound by his own declaration and is estopped by conduct and record from now wanting to convert/change his category from general to reserved category. According to the counsel this is a major distinction between Tej Pal Singh case and the present case and therefore, submission of the petitioner that the present petition is identical to Tej Pal Singh case is not sustainable on facts.

4. The fact that petitioner in the instant case had applied in general category is not disputed. It also cannot be disputed that the Tej Pal Singh and other cases in the said batch related to those persons who had submitted their applications under reserved category. They submitted the certificate in support of the category but could not submit the requisite certificate issued by GNCT of Delhi by 30.6.1998 which was submitted after this cut off date. It was, thus, decided that this action of the respondent in not accepting the certificate after 30.6.1998 was illegal.

5. Thus, it is abundantly clear that the issued raised in this case was not covered by the judgment in Tej Pal Singh's case (supra). What the petitioner wanted in the instant case was the change of category stipulated by him in the application, i.e. although he applied under general category, he wanted that his case be considered in SC category. It is stated in the petition that although he belongs to SC category he did not submit his application under reserved category as he had no supporting document, namely, requisite SC category certificate issued by the competent authority prescribed in the brochure (i.e. by GNCT of Delhi) and therefore, in order to avoid his application being rejected summarily he applied under general category. The question as to whether in these circumstances a person who applies under general category could change his category was admittedly neither an issue raised in Tej Pal Singh's case nor decided. The order dated 5.1.2001, therefore, was passed on the wrong premise that the case was covered by the judgment dated 24.12.1999 in Tej Pal Singh's case.

6. While this could not be disputed by the learned counsel for the petitioner/non-applicant and he was candid in his admission that the issued raised in this petition had not arisen in Tej Pal Singh's case (supra), what was submitted by Mr. Vikas Singh learned counsel for the petitioner that this could not be a ground to seek review of the order dated 5.1.2001. In support of this proposition he relied upon the following judgments, i.e. (i) Union of India v. Sudhir Kumar Ray and Others AIR 1995 Orissa 64; and (ii) Kamla Prasad Chaudhury v. Kunj Behari Mander AIR 1922 Patna 119. In the aforesaid judgments High Courts have held that omission to argue a ground would not afford sufficient reason for review. It was submitted that when order dated 5.1.2001 was passed review applicants knew that petitioner/non-applicant had applied in general category and he wanted to switch over to SC category. However, they did not argue that case of Tej Pal Singh was not applicable to the present case and therefore, it was not open for them to seek review now on the ground that Tej Pal Singh's case did not cover the present case.

7. I am not agreeable to this submission having regard to the factual background in which order dated 5.1.2001 came to be passed. As noted above, this case along with other writ petition was adjourned from time to time to await the outcome of LPAs filed against the judgment in Tej Pal Singh's case and connected matters. Order sheet in this case bears testimony to this fact. Therefore, when the Division Bench dismissed the LPAs by order dated 15.12.2000 and immediately thereafter these cases, including instant writ petition, came up for hearing on 5.1.2001, on taking note of the fact that LPAs were dismissed, the order dated 5.1.2001 was passed when all the parties including the Court presumed that this case was covered by the said judgment without looking into the facts of each case. As this was listed on 5.1.2001 along with other writ petition the distinguishing feature of this case was lost sight of and order came to be passed along with other case. In view of this peculiar circumstance, once this mistake is brought to the notice of this Court which is sufficient to point out that case is not covered by the ratio of Tej Pal Singh's case I am of the opinion that it would make valid ground to review order dated 5.1.2001. Had there been a considered and conscious decision that the instant case is covered by Tej Pal Singh's case (supra), matter would have been different. In that case it would not have been open for the review applicant to argue that decision rendered is erroneous as that is not a ground to seek review and the remedy is to file appeal. However, that is not the position here. Order dated 5.1.2001 was passed on mistaken belief and overlooking the aspect that issue raised in this writ petition is different. Therefore, it would be in the interest of justice to recall the order and decide the issue on merits.

8. The parties were also heard on the issue raised in the writ petition as to whether in the facts and circumstances of this case it was permissible for the petitioner now to change the category stipulated in the application by him. As noted above, petitioner had applied under general category and after the judgment in Tej Pal Singh's case he wants his application to be considered in Scheduled Caste category on the ground that as he was not in possession of a certificate of requisite category, to avoid summary rejection of his application he applied in general category. Later on, he obtained the requisite caste certificate issued by the competent authority of the GNCT of Delhi. His submission is that had he applied under SC category even in the absence of such a certificate he would not have been eligible for appointment under the said category keeping in view his score which is above the cut off for the said post under SC category as he also obtained SC category certificate after the cut off date.

9. After considering the facts of this case and the submissions of the parties, I am of the considered view that the request of the petitioner for change of category is untenable. There would be more than one reasons for coming to this conclusion. First and foremost reason is that after obtaining the certificate petitioner never made any application to the respondent-DSSSB, when the selection process was on, for change of his category. No doubt, the petitioner has alleged that pursuant to advertisement dated 26.2.1999 wherein DSSSB indicated the revised cut off point and displayed a list of selected candidates who had scores above the cut off point the petitioner appeared and submitted SC certificate obtained from the competent authority on 3.3.1999. However, admittedly he had not moved any application specifying his request for change of category. Submission of such certificate along in the absence of such request was of no consequence as application of the petitioner was in general category and the respondents were, therefore, bound to consider the said application in that category alone. In so far as the general category is concerned, it is the admitted case that petitioner's score was below the cut off point indicated for the general category and his name did not appear in the said list. As the petitioner's name did not and could not appear in the list of successful candidates in the SC category, because his application was in the general category, petitioner did not even challenge when the said list was published in May/June, 1999. This would show that petitioner accepted and swallowed the position that change of his category was not permissible once he had applied under general category. It is only after judgment in Tej Pal Singh's case was pronounced on 24.12.1999 that the petitioner filed instant petition in March, 2000 and alleging that as he belonged to SC category he was wrongly denied appointment on the ground that as he belonged to SC category he should have been considered in the said judgment. This petition is, thus, clearly an after-thought attempt trying to take advantage of the judgment in Tej Pal Singh's case when such judgment is not applicable in his case as already held above.

10. That apart, even otherwise when a person belonging to reserved category applies for a post in general category, he would not be entitled to change his category subsequently. In fact, dealing with identical case arising out of the same advertisement a Single Judge of this Court (Hon'ble Mr. Justice Sanjay Kishan Kaul) has negatived the prayer in the case of Anand Yadav v. NCT of Delhi in CWP No. 1124/2001 decided on 14.5.2000. The Court rejected the submission by observing as follows:-

"In my considered view the principal hurdle in the way of the petitioner being granted any relief in respect of his claim arises from the fact that the petitioner had applied as a General Category and not as an OBC Category candidate. Once the petitioner applies as a general category it certainly cannot be expected of the respondents to treat him as an OBC Category candidate. The last date for receipt of the applications was 30.6.98. The certificate was obtained on 19.3.1999 and the petitioner on 22.3.99 applied for his application to be treated as OBC candidate's application. It is thus after almost 6 months of the last date of receipt of the applications that the very category under which the application had been made by the petitioner is sought to be changed. This in my considered view cannot be permitted. The brochure basically indicates that the candidate must indicate whether he was applying against a reserved post and the category to which he belonged failing which the application was liable to be treated as a general category application. It is in this context that the stipulation of summary rejection of the application on the failure of certificate being submitted along with the application has to be read. The case of the petitioner is not one where he had applied under the OBC category candidates and has submitted his certificate late so that principles of Tej Pal Singh' case (supra) would apply.

Learned counsel for the petitioner has contended that in certain other mattes where the applications were made in the general category the writ petitions have been allowed on the principles laid down in Tej Pal Singh's case (supra) though he admits that the issue relating to the fact of a candidate applying under the general category and then seeking to be treated under the OBC category has not been dealt with.

In my considered view it is this issue which is the principal issue to be considered before the rights of the petitioner or similarly situated candidates can be determined. In view of the aforesaid position I am of the considered view that the petitioner cannot be treated as an OBC candidate. In so far as the aspect of delays and laches is concerned there is undoubtedly delay on the part of the petitioner in approaching the court. In matters of recruitment in pursuance to public advertisements there has to be time frame fixed and appointments have to be made within the time schedule. If a candidate is aggrieved by any part of the process, the candidate must approach the court expeditiously as otherwise it is liable to disturb the whole process. The fact that there are recurring vacancies of primary teachers and advertisements are published from time to time would not come to the aid of the petitioner because the recruitment is on the basis of that particular advertisement. Other candidates would have a right to apply and be considered against different advertisements subsequently published. For that reason also I am of the considered view that the petitioner cannot be permitted to wait for the result of other litigations before approaching the court in matters of such public employment. For this reason I find no force in the contention of learned counsel for the petitioner that the present case is one of violation of fundamental rights and thus delay and laches would not come in the way of the petitioner. In view of the aforesaid position, I find no merit in the writ petition. Dismissed."

10. I am in respectful agreement with the aforesaid observations, the result of this discussion is that RA 9324/2001 stands allowed and writ petition is without any merit and fails. It is dismissed accordingly with no order as to costs.