Mcd vs Sangeeta Saini And Anr.
2006 Latest Caselaw 1346 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against the judgment dated 7.5.2002 passed by learned Single Judge disposing of Writ Petition (C) 4204 of 2001 filed by the respondent No. 1 whereby the appellant/MCD was directed to consider the Respondent No. 1 for appointment to the post of Assistant Teacher . The learned Single Judge placed reliance in Tej Pal Singh v. Government of NCT of Delhi 83 (2000) DLT 649.

2. The facts relevant to the present appeal are that the appellant issued an advertisement on 16.7.1996 inviting applications for the post of Assistant Teachers. Among the conditions prescribed was that the complete application form had to be submitted by 31.7.1996. Further it had to be accompanied by ''attested copies of documents in favor of claim of SC/ST/OBC/PH/ex-S etc.'' Nothing was indicated in the advertisement about the SC/ST/OBC certificate having to be obtained from an authority in Delhi. As per an advertisement dated 24.1.1998 issued by the MCD, the candidates were informed that they would be given one more chance to submit the OBC certificate issued by the competent authority in Delhi provided they had applied for the certificate before 31.7.1996 and such certificate had been issued before 31.5.1997. The Respondent No. 1, Ms. Sangeeta Saini, who belongs to the OBC category applied to the SDM in Delhi for issuance of the OBC certificate on 23.7.1996. The respondent ultimately obtained the OBC certificate on 18.2.1998. Her candidature was not considered because the OBC certificate had been issued beyond the extended time for obtaining such certificate i.e. beyond 31.5.1997.

3. When despite numerous representations by the Respondent No. 1 she did not figure in the final list of selected candidates, she filed Writ Petition(C) No. 4204 of 2001 for a direction to the appellant herein to appoint the respondent in the OBC category in the post of Assistant Teacher (Primary) in an MCD run school.

4. In its reply to the writ petition the appellant took the following stand:

It is wrong and denied that the Respondent's stand of considering only those OBC applicants who had submitted their OBC Certificate on or before 31.5.1997 is absolutely arbitrary, prejudicial and illegal. It is however, stated that Respondent MCD has adopted a uniform policy for the benefit of all OBC candidate/applicant and in this regard initially only those OBC candidates were considered for appointment who were having the OBC certificate issued to them by 31.7.1996. Subsequently, in the interest of all OBC candidates the said date was extended to 3.1.1997, by the Competent Authority. The benefit of the said extended date was given only for those OBC candidates who had already applied to the Competent Authority of Govt. of NCT for issuance of OBC certificate on or before 31.7.1996 and got the same issued not later than 31.5.1997, by the Competent Authority. The benefit of the said extended date was given only for those OBC candidates had already applied to the competent authority of Govt. of NCT of Delhi for issuance of OBC certificate on or before 31.7.1996 and got the same issued not later than 31.5.1997. The reason for extending date up to 31.5.1997 was that when the candidates/applicants were called for verification of documents they were required to produce OBC certificate issued by the Competent Authority, on the date of verification of documents. However, it was realised that competent authority, even by extending date by 3.1.1997 had not issued necessary OBC certificate to certain candidates/ applicants, in the interest of all OBC candidates the date was further extended up to 31.5.1997 and it was considered to be reasonable time to obtain OBC certificate. By extending the date up to 31.5.1997, the candidates were provided with the period of ten months from 31.7.1996 for obtaining certificate. The said benefit has been given to all the candidates and there is no discrimination whatsoever, in this regard. Since the Petitioner failed to produce OBC certificate within stipulated time as mentioned hereinabove, therefore, her candidature for the OBC category could not be considered. Furthermore by public notice published in daily newspaper, the candidates were inter-alia informed with regard to display of final list of selected candidates on 12.12.1997 and their selection on having secured the minimum grading with respect to each category mentioned therein.

5. The learned Single Judge, applying the ratio of the judgment of a learned Single Judge in Tej Pal Singh (supra), held that the condition imposed regarding submitting the OBC certificate within the cut-off date was arbitrary and the respondent could not be made to suffer for the delay on the part of authorities in issuing the OBC certificate. In those circumstances, the learned Single Judge disposed of the writ petition as noticed hereinabove.

6. The only point urged by Mr. Tarun Sharma learned Counsel for the appellant is that the OBC certificate had been issued on 18.2.1998 much beyond the cut off date of 31.5.1997 and therefore, the candidature of Respondent No. 1 had rightly been rejected. The only ground for rejection of the candidature of Respondent No. 1, as seen in the synopsis dated 5.10.2005 filed by Mr. Tarun Sharma, is that ''the respondent applied for the issuance of an OBC certificate on 27.3.1996 and got the OBC certificate only on 18.2.1998." Therefore, the only issue to be considered here is whether the respondent No. 1 could have been denied appointment only on the ground that she did not obtain the OBC certificate before 31.5.1997 as stipulated in the advertisement dated 24.1.1998 issued by the appellant MCD.

7. We have today in Subhash Chander v. MCD in LPA No. 72/02 held that prescribing a cut off date of 31.7.1996, as the date before which the application for OBC certificate should be made, was unreasonable. As far as the present case is concerned, it is clear that the Respondent No. 1 had in fact applied for the OBC certificate before 31.7.1996 but for reasons not in her control, the authorities concerned did not issue her the OBC certificate till 18.2.1998. We do not see how the Respondent No. 1 can be made to suffer for her not being issued the OBC certificate before 31.5.1997 when clearly it was not in her control at all.

8. The order of the learned Single Judge in Tej Pal Singh (supra) was affirmed by a Division Bench of this Court by judgment dated 15.12.1990 in Delhi Subordinate Selection Board v. Tej Pal Singh. There the Division Bench, in similar circumstances negatived the plea that the candidature of certain applicants who had not submitted the OBC certificate by a certain cut-off date ought to be rejected. The Division Bench observed as under:

In this background, we cannot appreciate the argument raised by the learned Counsel that the certificate issued by Government of NCTD was also required to be submitted before 30th June, 1998 when their own officers were delaying the process of issuing these certificates. To exclude respondents merely on this ground will clearly be arbitrary and in direct conflict with the fundamental rights and directive principles as incorporated in various provisions of the Constitution of India.

9. We are of the view that the learned Single Judge was right in holding that the Respondent No. 1 is entitled to be considered for the post of Assistant Teacher and if found suitable to be appointed as such. There are no grounds of interfering with the order of the learned Single Judge.

10. With us concurring with the learned Single Judge that the only ground on which Respondent No. 1 was not considered for appointment is unsustainable in law, there should be no impediment in appointing Respondent No. 1 to the post of Assistant Teacher subject to her fulfillling the formalities. The appellant is now directed to complete this exercise within a period of four weeks from today and in any event not later than 15.9.2006. Since the appointment of the Respondent No. 1 has got delayed by four more years from the date of judgment of the learned Single Judge, the appellant is directed to pay Respondent No. 1 costs of Rs 5,000/-. The costs be paid on or before 15.9.2006.

11. With these directions, the appeal is dismissed.