Smt. Kamla Devi vs Municipal Corporation Of Delhi
2006 Latest Caselaw 432 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these writ proceedings the question raised is whether the Petitioner ought to be appointed to the post of a Primary Teacher on the strength of an OBC certificate obtained on 19.12.1996 and submitted to the MCD pursuant to communication issued in that regard.

2. The admitted factual matrix is as follows. The Respondent Municipal Corporation of Delhi (hereinafter referred to as `the MCD') advertised on 16.7.1996 calling for applications for the post of Primary and Nursery Teachers. The total number of vacancies in these two categories indicted was 3091. The Petitioner submitted the application/bio-data as per the format prescribed in the advertisement on 27.7.1996. In the relevant column, namely column No. 7, she claimed to be a reserved category candidate stating that the certificate had been applied for by her, through Form No. 44225. The last date for submitting the applications was 31.7.1996.

3. In January, 1998 the MCD issued a public notice calling for objections to the final list of selected candidates. This public notice inter alia contained a Note to the following effect:-

Note: The candidates who have submitted the OBC certificate issued till 31.5.1997 and applied to the competent authority of Government of NCT of Delhi on or before 31.7.1996 have been considered in OBC category.

4. The Petitioner alleges that as per the notified criteria she had secured 62 marks. It is alleged that she had applied for an OBC certificate on 16.8.1996 and intimated the Respondents about this in the office. Yet she was not considered as an OBC candidate but was treated as a general candidate. She has relied upon a copy of the certificate declaring her to belong to the Ahir category, therefore, an OBC. She has also enclosed a copy of the application made to the competent authority for the purpose of securing an OBC certificate. It is alleged that the said application No. 44225 was made on 16.8.1996. The non-inclusion of the Petitioner in the category of OBC candidates in spite of having produced the OBC certificate dated 19.12.1996 has been questioned as arbitrary. During the course of proceedings, the Petitioner filed additional affidavits.

5. In the additional affidavit dated 15.5.1998, it is alleged that the Petitioner had obtained a requisite form for applying for the OBC certificate but she had to approach two different places. It was alleged that initially the officials at Najafgarh refused to entertain the application form, requiring her to apply at Tis Hazari. Ultimately, after intervention of Deputy Commissioner's office the form could be deposited in the proper office. These events have been ascribed to reorganization of Delhi into nine different revenue districts.

6. The MCD in its return has denied the claim of the Petitioner; it avers that the Petitioner's application was treated as a general category candidate. The MCD alleges that the application of the petitioner was as a general category candidate; it was somehow tampered with and the registration No. (of the application for OBC certificate) was indicated in column No. 7. It is claimed that the application itself nowhere discloses whether the Petitioner belonged to any category such as OBC, SC or ST as the case may be. In an additional affidavit dated 5.2.1998 the MCD claimed that as per its policy only OBC certificates were to be treated as valid if the candidate had applied for it before 31.7.1996 since the Petitioner as per her own allegations had applied for the certificate on 16.8.1996, she could not be considered as an OBC candidate.

7. Pursuant to orders of Court a further additional affidavit was filed on 10.2.1999 by the MCD which alleged that the office of the Sub-divisional Magistrate, Najafgarh had informed by it the letter dated 10.2.1998 that the application for OBC certificate was made by the Petitioner on 15.10.1996. The MCD also alleges that as per the copy of application No. 44225, the date on which the Petitioner approached the SDM, Punjabi Bagh was 16.8.1996 and that the certificate or endorsement dated 22.7.1996 was not an OBC certificate but for the purpose of column F of the verification with regard to agricultural holding.

8. Mr. Raman Duggal, learned counsel for the Petitioner contended that he disputes which had arisen for consideration were determined by a judgment of this Court in Tejpal Singh v. Government of NCT (2) AD DEL 428. It was contended that the Court in that judgment had held that even if no certificate is produced the appointment has to be given to a Scheduled Caste ("SC") or Scheduled Tribe ("ST") candidate provisionally on the basis of whatever prima facie proof he is able to produce in support of the claim subject to furnishing the prescribed certificate within reasonable period.

9. It was contended on behalf of the Petitioner that the certificate issued on 19.12.1996 has not been doubted; it is admitted by the MCD. Equally it is not disputed that the certificate was furnished within the time prescribed pursuant to the advertisement issued in January 1998 namely before 31.5.1997. The mere circumstance that the Petitioner's application could not be entertained before 31.7.1996 even though the Tehsildar had verified her claim, and she had indicated in the application to the MCD that she belong to a reserved category candidate ought not to be a justification for withholding consideration of her candidature.

10. Mr. Tarun Sharma, learned counsel for the Respondent, on the other hand contended that the decision in Tejpal Singh's case (supra) is not an authority on the issue; the dispute in this case are purely factual and would not admit a decision in writ proceedings.

11. Counsel contended that the Petitioner never indicated in her application form dated 27.7.1996 that she belong to an OBC candidate. It was submitted that against column No. 7, the word `Yes' and the reference to application No. 44225 appear to have been made later. It was submitted that the Petitioner had not applied for the OBC certificate at least before 16.8.1996; therefore she could not legitimately be considered, much less appointed. Counsel also sought to justify the stand of MCD by stating that the petitioner had submitted a demand draft for Rs. 40/- which was the requisite fee for general merit candidates.

12. There is no dispute on the facts on certain basic issues namely that the Petitioner had submitted her application on 27.7.1996 and that the OBC certificate dated 19.12.1996 is indeed genuine. The controversy therefore is narrow which is whether she had applied for the OBC certificate within time. Admittedly the original advertisement issued on 16.7.1996 granted only 15 days time to candidates for applying to the post. Though the precise reason for issuing the public notice sometime in January, 1998 is not forthcoming, apparently that was on account of the shortage of time given to candidates. The MCD admittedly granted time for furnishing the OBC certificate to all candidates up to 31.5.1997; the extension was notified in January, 1998.

13. I have seen the copy of the form in question namely No. 44225. It undoubtedly contains two separate endorsements dated 16.8.1996 (No.3291) and 15.10.196 (No.257). These endorsements were issued by different offices namely the Revenue Office at Punjabi Bagh and Najafgarh. Likewise, endorsement of the Tehsildar dated 22.7.1996 can be clearly seen. The Petitioner had averred in her affidavit dated 15.5.1998 that since her native place was within Najafgarh zone, she approached that office but her application was not entertained; she was asked to apply at Tis Hazari. Later after intervention of the Deputy Commissioner's Office her application could be lodged. It is common knowledge that Delhi was reorganized into nine revenue districts around the time in 1996. Hence, the version of the Petitioner is a plausible one; there is every likelihood that she had approached one Deputy Commissioner's office but was referred to another office and eventually her application was accepted after much effort. The fact that the Petitioner obtained a genuine and OBC certificate was enquired into by the MCD which wrote a specific letter. The OBC certificate was issued on 19.12.1996 and submitted before cut off dated indicated namely 31.5.1997. I am therefore of the opinion that on the peculiar facts of this case the plea taken that the Petitioner had tampered with the application form which in its custody and control is not acceptable. Equally, the fact that the Tehsildar had endorsed the application of the Petitioner for an OBC certificate is not in dispute and is a mater of record.

14. In view of the above findings, a direction is issued to the Respondents to consider the Petitioner's application for appointment as an OBC candidate, in accordance with law and intimate to her the decision in that regard within a period of six weeks form today.

15. The writ petition is allowed to the extent indicated above. Rule made absolute. No costs.