Ms. Sunita vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 552 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner-Sunita, by this writ petition, seeks a writ of mandamus, directing the respondents to consider her as an Other Backward Class (OBC) candidate and place her at the appropriate place in the merit list for such candidates. Further consequential directions, as deemed fit and proper are sought.

2. Petitioner, was an aspirant to the post of Assistant Teacher/Primary Teacher in the Municipal Corporation of Delhi and under the Director of Education, Govt. of NCT respectively. She had applied as an OBC candidate in response to the advertisement that was taken out by the respondents. Petitioner submitted two separate applications for the vacancies. The first being for the post of Assistant Teacher Code No.13/98 and the second for Primary Teacher, Code No.8/98 in the reserved category as an OBC candidate. Petitioner secured 45.96% out of 80 marks on the basis of a formula for calculation of marks. The cut off per centage for OBC candidates was 44.61%. Accordingly, petitioner stood qualified in terms of the marks secured by her in the category of OBC candidates.

3. Petitioner's case, however, was not processed as an OBC candidate. She was treated as a general candidate. The score of the petitioner of 45.96% fell short of the last selected candidate in the general category. For Primary Teacher Code No.8/98 the qualifying percentage was 53.21% and the last selected candidate in respect of the Assistant Teacher Code No.13/98 was with 57.21%. Petitioner failed to meet the Bench Mark for General Category candidates for the said posts and was not selected.

4. Respondents in opposition to the writ petition and justification for treating petitioner's case as that of a general candidate averred in the counter affidavit that petitioner had failed to furnish the caste certificate, issued by the Competent Authority of Govt. of NCT of Delhi, by 30.6.1998, the last date for submitting the application form with required documents. Petitioner having failed to comply with the said requirement was not entitled to invoke the writ jurisdiction or to be considered as an OBC candidate. Additionally, an objection was taken that petitioner being an OBC candidate from Haryana was, in any case, not entitled to get the benefit of reservation in the post under the Govt. of NCT of Delhi or local autonomous body subordinate to the said Government.

5. Let us consider the first objection raised by the respondents that based on the advertisement terms, the cut off date was 30th June, 1998. The OBC certificate from NCT not having been furnished by the said date, the petitioner was not eligible. Petitioner initially furnished certificate certificate from Haryana, It was dated 24th June,1998, while the certificate issued by SDM, Preet Vihar, Delhi was dated 8th October, 1998.

6. The relevant advertisement terms, as they appear at pages 8-9 of the paper book are as under:-

I. Age Limit Relaxation (a) The age limit mentioned against each category of post is normal and upper age is relaxable to SC/ST/OBC and other candidates as per the instructions of Govt.of Delhi. Details of the age relaxation are given in the Information Brochure.

II. Eligibility: (a) The eligibility of candidates will be determined by the Educational Qualification. Professional experience and Age limit etc., as on 30.6.98.

(b) SC and OBC candidates must furnish certificate issued by the competent authority of Govt. of NCT of Delhi only.

(c) Applicant's Registration in Employment Exchange of National Capital Territory of Delhi is desirable.

7. Relying on the above terms, Mr.Rajesh Tyagi, learned counsel for the petitioner submitted that the cut off date of 30th June, 1998 was prescribed only for the purposes of determining eligibility in terms of educational qualification, professional experience etc. There was no cut off date prescribed for furnishing of SC and OBC Certificate in clause (b). There is merit in the contention. The above position has been duly accepted by a learned single Judge of this Court in Tejpal Singh & Ors. V.Govt. Of NCT of Delhi & Anr. Reported at 2000 II AD Delhi 428. In Tejpal Singh's case (Supra) petitioners belonging to other States were permitted to file Caste Certificate, issued by NCT of Delhi, subsequent to the cut off date as is canvassed by the petitioner in the present case. LPA preferred against the judgment of the learned Single Judge in Tejpal Singh's case has been dismissed and so also the Special Leave Petition, against the LPA before the Supreme Court. Petitioner claims that certificates from NCT in the recruitment process were accepted after the cut off date and not even subjected to any scrutiny as to what was the origin of the person submitting the said certificates.

8. Learned counsel for the petitioner further submitted that Annexure P-1 shows that applications had been invited from Indian Nationals. There was no restrictive covenant, confining the applicants to be residents of Delhi. Accordingly, as far as the denial of non-consideration of the petitioner's status as an applicant in OBC category on the ground that the caste certificate from a Competent Authority of Govt. of NCT had not been furnished before 30th June, 1998, the same is held to be not sustainable.

9. Let us consider the objection that petitioner though being certified as `Ahir' and backward class in Haryana was not entitled to benefit of the same in NCT of Delhi. Learned counsel for the respondent submitted that as per the certificate appearing at page 15 of the paper book, petitioner was resident of Haryana. It had been so certified. In the second certificate appearing at page 16 of the paper book, issued by SDM of Govt of NCT of Delhi dated 8th October, 1998, she had been certified as resident of Delhi, belonging to "Ahir" Caste. The certificate, issued from Delhi also carries the notation of not belonging to Creamy Layer.

Learned counsel for the respondent Mr.George Paracken submitted that the Tejpal Singh's case will not advance the petitioner's case as the objection is not only that the certificate had been tendered by the candidate after the cut off date. The problem does not get over with the direction that the certificate furnished after the cut off date may be accepted. It is not the case, where the cut off date is the only issue. Here the very entitlement of the petitioner to backward class entitlement in the State, to which she has migrated i.e., NCT of Delhi, is sought to be questioned. It is further urged that Kunwar Pal Singh's case, namely, WP(C).No.5061/2001 would also not advance the petitioner's case, since there the provision is made for the benefit of reservation being available to those, who had been born and brought up in Delhi even though they may have migrated with their parents.

10. Learned counsel for the respondent urged that petitioner has not been born and brought up in Delhi. Learned counsel in support of his argument that the benefit of reservation as backward class would not be available to the petitioner in the state of migration relied on the following authorities:-

1. Marri Chandra Shekhar Rao v.The Dean, Sethi G.S.Medical College and Ors., reported at Judgment Today 1990 (2) Supreme Court 285;

2. Action Committee on Issue of Caste Certificate to SC and ST in the State of Maharashtra and Anr. V.Union of India and Anr., (1994) 5 Supreme Court Cases 214;

3. Manju Rani v. DSSB and Ors., C.W. No.7522/2001 dated 20.3.2003

4. M.C.D. v.Veena and Ors. Reported at .

11. Reliance was also placed on various instructions issued by the Government of India to urge, that the petitioner would not be automatically entitled to the benefit of the OBC reservation in the Union Territory of Delhi.

12. In the Marri Chandra Shekhar Rao v.The Dean, Sethi G.S.Medical College and Ors., it was held that when a member of Scheduled Caste or Tribe migrates, there is no inhibition in migrating, but when he migrates he does not and cannot carry any special rights or privileges attributed or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State, it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Again in Action Committees V. Union of India (Supra), the Court had held that consideration for specifying a particular caste or tribe or a class for inclusion in the list of Scheduled Castes/ Scheduled Tribe or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that Caste, Tribe or class in that State which may be totally non-est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a Caste or Tribe bearing the same nomenclature is specified in two States, but the consideration on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given Caste is specified in State A as a Scheduled Caste, does not necessarily mean that if there be another Caste bearing the same nomenclature in another State, the persons belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State.

13. Following the above authorities a Single Judge of this Court in Manju Rani V. DSSB & Ors. (Supra) dismissed the writ petition by the petitioner who had migrated from UP to Delhi and had furnished the Caste certificate from UP after the date. The Court held that while the petitioner therein could not be excluded for consideration on the ground, the Scheduled Caste certificate was submitted by her after the last date, but she was not entitled to the benefit of reservation and such benefit was available only to such candidates, who are born and brought up in Delhi and caste was notified as a reserved caste in Delhi.

14. In MCD V. Veena (Supra), the Supreme Court was concerned with cases where candidates belonging to OBCs on the basis of certificates issued in a State other than the Government of NCT of Delhi, were seeking appointment. The High Court by a common order had held that the MCD had not specified the form in which the OBC certificate were to be filed in respect of the posts arising under the NCT. There was no obligation on the respondents to produce such certificates from the prescribed authorities in Delhi. The Supreme Court while dealing with the question observed as under:-

Castes or groups are specified in relation to a given State or Union Territory which obviously means that such castes would include castes belonging to an OBC group in relation to that State of Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States, but the considerations on the basis of which they have been specified may be totally different.....

15. The Supreme Court considered and reviewed the Government of India notification and the requirement of forms as prescribed under which certificates were required to be issued:-

It is clear that the Government of India had notified on 15.11.1993 two model Forms of Certificates to be furnished by the OBC candidates seeking benefit of reservations. Form prescribed in Annexure `A' thereto was required to be produced by candidates belonging to OBCs applying for appointment to posts under the Government of India and which certificate was to be verified from the prescribed authorities indicated therein and a Note was added thereto to the effect that for Government of the National Capital Territory of Delhi Annexure `AA' was required to be fulfillled. Annexure `AA' prescribes a different kind of certificate which reads as follows:-

ANNEXURE `AA'

Form of Certificate to be produced by other backward classes applying for appointments to posts under the Government of National Capital Territory of Delhi.

This is to certify that _________ s/o ______ of Village ________ District/ Division _______ State ________ belongs to the _______ community which is recognised as backward class under the Government of NCT of Delhi notified vide Notification No.F.88(93)/91-92/ SC/ST/P&S/4384 dated: 20.01.1995 published in the Gazette of Delhi Extraordinary Part-1/ dated : and/ or his family ordinarily reside(s) in the _______ District/ Division of the ________ State. This is also to certify that he/ she does not belong to the Persons/ Sections (creamy layer) mentioned in column 3 of the Schedule to the Government of India, Deptt. Of Personnel and Training O.M. No.36012/22/93-Estt.(SCT) dated 8.9.1993.

Dtd. District Magistrate

Seal Dy.Commissioner, etc.

NB:

a. The Term Ordinarily used here will have the same meaning as in Section 20 of the Representation of the Peoples Act,1950.

b. For the purpose of verification of claims for belonging to castes/ communities in Delhi as per the list notified by the NCT of Delhi, the Certificate from the following authorities only will be accepted:-

i)District Magistrate, Delhi.

ii)Addl. District Magistrate, Delhi

iii)Dy. Commissioner, Delhi

iv)Addl. Dy. Commissioner, Delhi

v)Sub-Divisional Magistrate, Delhi

vi)Executive Magistrate, Delhi.

A careful reading of this notification would indicate that the OBCs would be recognised as such in the Government of National Capital Territory of Delhi as notified in the Notification dated 20.01.1995 and further for the purpose of verification of claims for belonging to castes/ communities in Delhi as per the list notified by the National Capital territory of Delhi the certificates will have to be issued only by the specified authorities and certificates issued by any other authority could not be accepted. The Government of India has also issued instructions from time to time in this regard which indicated that a person belonging to OBC on migration from the State of his origin in another State where his caste was not in the OBC list was entitled to the benefits or concessions admissible to the OBCs in his State of origin and Union Government, but not in the State to which he has migrated.

16. The Supreme Court on the facts of the case before it held that while petitioners were not entitled to be considered in the OBC categories in the absence of certificate from NCT. However, directions were issued to consider them in the general category.

17. Having noticed the legal principles enunciated in the judgments referred to above, let us consider the facts of the present case. As already noted in para hereinbefore, the terms of the advertisement and the legal principles enunciated, petitioner could not be excluded from consideration as an OBC candidate on the ground that the OBC certificate had not been furnished by the cut off date i.e., 30.6.1998 or that the certificate furnished initially was not from the Competent Authority of NCT of Delhi.

18. The next question to be considered is the entitlement of the petitioner who had initially furnished the OBC certificate from Haryana to be considered and recognised as an OBC candidate in the NCT of Delhi in the light of the Certificate from Competent Authority in Delhi. It is not in dispute that caste "Ahir" is recognised as an OBC within the NCT. Moreover, the petitioner has produced on record a certificate dated 8.10.1998, which is in the following form:-

Serial No.56210/847 Date:8.10.98

OFFICE OF THE DEPUTY

COMMISSIONER, DELHI

This is to certify that Miss Sunita, s/o, d/o Shri Mukesh Kumar, resident of 25/212, Trilok Puri, Delhi belongs to the community Ahir which is recognised as a backward class under the NCT of Delhi notified vide Notification No.F.28(93)/91-2/SCST/P&S/4384 dated 20.1.95 published in the Gazette of Delhi Extraordinary Part-IV dated 20.1.95 and/ or his family ordinarily reside(s) at (Address) as above Union Territory of Delhi.

This is also to certify that he/ she does not belong to the persons/ sections (Creamy layer) mentioned in column 3 of the Schedule to the Government of India, Department of Personnel and Training O.M. No.36012/22/93-Estt.(SCT) dated 8.9.1993.

19. The aforesaid certificate records that "Ahir" is recognized as a backward class in terms of notification bearing No.F.28(93)/91-92/SC/ST/P&S/4384 dated 20.1.95. There is further certification that the petitioner does not belong to the creamy layer. The above certificate has been issued in the prescribed Annexure `AA' which is required for OBC candidates applying to posts under the Government of NCT of Delhi. The Certificate is in accordance with the prescribed requirements as noted by the Supreme Court in MCD V.Veena (Supra) to confer the benefit of reservation as backward class in NCT of Delhi. The petitioner having been granted this certificate, in my view, the said certificate is binding and conclusive on the respondents. The said certificate itself assumes that the authorities have satisfied themselves as to the eligibility of the petitioner to be treated as an OBC in the NCT of Delhi for posts falling under the Government of NCT. The authorities are to issue the said certificate after due verification and satisfaction and subject to the petitioner fulfillling the conditions of eligibility as an OBC candidate, including that of being ordinarily resident. It is not the case of the respondent that the aforesaid certificate had not been issued or was fraudulently issued or has been revoked. As long as the aforesaid certificate is subsisting, valid and in force, the respondents cannot deny the consideration to the petitioner as an OBC candidate, even though the initial certificate may have been from the State from which she has migrated, or raise an objection as to the origin of the petitioner. Accordingly, this case is on a different footing from Manju Rani V. DSSB & Ors. (Supra) in view of the OBC certificate having been issued by the prescribed and Competent Authority of NCT.

20. In view of the foregoing discussion, it is held that the petitioner's case is liable to be processed as an OBC candidate in view of the certificate in Form `AA' dated 8.10.98 as issued by the NCT. Respondents are accordingly directed to process the case of the petitioner as an OBC candidate.

Writ petition stands allowed in the above terms.