Delhi High Court
Commissioner Of Police & Ors. vs Parmender Kumar & Ors. on 23 April, 2009
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 1073 of 1998
with
WP (C) Nos. 1423/1998, 4706/1998, 4178/1999, 4235/1999
4400/1999, 6423/1999, 4055/2000, 5073/2000, 6557/2000
4548/2001, 2350/2002, 2435/2002, 2436/2002, 2460/2002
and 3970/2003
% Reserved on : March 12, 2009
Pronounced on : April 25, 2009
1. WP (C) No. 1073/1998
Commissioner of Police & Ors. . . . Petitioners
through : Ms. Geeta Luthra with
Mr. Aditya Madan,
Ms. Purbali Bora, Advocates
Mr. V.K. Tandon, Advocate
In WP (C) Nos. 1423/98,
5073/00, 4548/01 & 2350/02.
Mr. H.K. Gangwani, Advocate
for the UOI.
VERSUS
Parmender Kumar & Ors. . . . Respondents
through : Ms. Avnish Ahlawat, Advocate
for the respondents in WP (C)
Nos. 1073/98, 1423/98, 4679/98
4706/98, 4178/99, 4235/99
4400/99, 6423/99, 4055/00
5073/00, 6557/00, 4548/01,
2350/02, 2435/02, 2436/02 and
2460/02.
Mr. Shyam Babu, Advocate
for respondent Nos. 23-28, 30,
33, 40, 46, 47, 50, 52, 55-59,
61, 66 & 67 in WP (C) 4055/00.
2. WP (C) No. 1423/1998
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Paramjit Singh . . . Respondent
through : As at #1 above.
3. WP (C) No. 4706/1998
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Surender Singh Yadav . . . Respondent
through : As at #1 above.
4. WP (C) No. 4178/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Jai Pal Singh . . . Respondent
through : As at #1 above.
5. WP (C) No. 4235/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Madan Kumar . . . Respondent
through : As at #1 above.
6. WP (C) No. 4400/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Subhash Yadav & Ors. . . . Respondents
through : As at #1 above.
7. WP (C) No. 6423/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Jai Pal Singh & Ors. . . . Respondent
through : As at #1 above.
8. WP (C) No. 4055/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Ishwar Singh . . . Respondent
through : As at #1 above.
9. WP (C) No. 5073/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Krishan Kumar . . . Respondent
through : As at #1 above.
10. WP (C) No. 6557/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Vikram Singh . . . Respondent
through : As at #1 above.
11. WP (C) No. 4548/2001
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Raj Bai & Anr. . . . Respondents
through : As at #1 above.
12. WP (C) No. 2350/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Paramjeet Singh & Anr. . . . Respondents
through : As at #1 above.
13. WP (C) No. 2435/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Ajay Kumar & Ors. . . . Respondents
through : As at #1 above.
14. WP (C) No. 2436/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Kishan Lal . . . Respondent
through : As at #1 above.
15. WP (C) No. 2460/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Randhir Singh . . . Respondent
through : As at #1 above.
16. WP (C) No. 3970/2003
Govt. of NCT of Delhi & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Mukesh Yadav . . . Respondent
through : As at #1 above.
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. Delhi Police (hereinafter referred to as the „petitioner‟) launched the
recruitment process for recruitment of Constables in Delhi and
outside Delhi in the year 1995 to fill up 2000 vacancies of Constable
(Executive), for which notification was issued on 2.6.1995. For the
purpose of recruitment to places outside Delhi, concerned officials
visited those places. All the respondents in these writ petitions, who
belong to OBC category, were recruited from the places outside
Delhi. They had submitted their applications for appointment under
the OBC category. Thus, the respondents took written examination,
followed by physical test, and were declared successful for
appointment to the post of Constable (Executive) under the OBC
category. They were appointed as temporary Constable (Executive)
against the vacancies of OBC and number of them were sent for
training, names (23 in all) whereof are mentioned on page 1 of WP
(C) No. 1073/1998. Other persons, whose names appear at S.Nos. 2
and 3 of Annexure-I, though selected provisionally, were not called
for training.
2. According to the petitioner, the Government of India had issued OM
dated 8.9.1993 as per which it was directed that OBC certificates can
be verified by the concerned authorities at any time after the
appointment. Keeping in view the mandate and spirit of that
circular, at the time of selection of the respondents, the caste
certificates submitted by the them were not verified and they were
given provisional appointment subject to the aforesaid verification.
3. In the meantime, scrutiny of documents submitted by these
respondents was done. According to the petitioner, it was found
that these respondents belong to Ahir/Yadav caste and/or such other
caste/ communities which are not classified as OBC in the Common
List, i.e. the list formed on the basis of the Mandal Commission
Report and the State List. On this basis, the petitioner took the view
that these respondents cannot be treated as belonging to the OBC
category for recruitment in Delhi. Purportedly, following the
Government guidelines issued vide OM dated 10.5.1995, the
petitioner took the decision to terminate their services. In respect of
various persons, orders were passed on 31.10.1996 terminating their
services. Services of others were terminated by passing orders on
4.11.1996. 12.11.1996. 20.11.1996. 28.11.1996 and 29.2.1997. While
this exercise was on, Resolution No. 12011/44/96-BCC dated
6.12.1996 was issued by the Government of India making some
amendment/inclusions in the Central List of OBC in respect of
concerned States as per which the caste Ahir/Yadav and other castes
to which these respondents belong were included in the Central List.
The petitioner, however, still continued with its action of termination
of service as according to it, when the recruitment process was
initiated in the year 1995, these castes were not included in the
Central List and, therefore, the respondents were not eligible for
consideration under the OBC category. All these terminated persons
approached the Central Administrative Tribunal by filing as many as
17 OAs. In some OAs more than one applicant joined together,
whereas some OAs were filed by individual persons. Question of
law which arose under the identical factual background being the
same, these OAs were taken up for hearing together and are allowed
vide impugned judgment dated 24.10.1997. Challenging this order,
these 17 writ petitions are filed by the petitioner. Here also for the
same reason, these petitions were bunched and heard together and
we propose to decide them by this common judgment.
4. As mentioned above, the cast Ahir/Yadav and others were included
in the resolution/notification of the Government of India dated
6.12.1996 whereas the selection process was initiated in the year
1995. The respondents in their OAs, however, took the plea that this
circular is to be given retrospective effect when original notification
by the Government i.e. OM dated 8.9.1993 was issued. It is this
issue of retrospectivity to the said notification which has been
decided in favour of the respondents. Therefore, the question before
us remains the same as it is the submission of the petitioners that this
issue is not rightly decided by the Tribunal.
5. Before we take note of the arguments of the parties on this issue for
their appreciation, we would like to mention the manner in which
this issue is answered by the Tribunal.
6. The question which fell for consideration and has been pointed out
above was formulated by the Tribunal in the following manner :-
5. The short question for our consideration is whether
Resolution/ Notification of the Government of India (Ministry
of Welfare) No. 12011/ 44/96-BCC dated 6.12.96 declaring
Ahirs and Yadavs and others as belonging to OBCs should be
with retrospective effect in the sense that persons belonging to
these communities should have the benefit from the date of
their appointment or from the date the communities were
notified as such by the State Governments or from the date of
original Notification by the Government of India i.e. OM No.
36012/22/03-Estt (SCT) dated 8.9.93.
7. After paraphrasing the issue, the Tribunal referred to the judgment of
the Supreme Court in the case of Income Tax Officer, Tutitocorin v.
T.S. Devinatha Nadar etc., AIR 1968 SCC 623 laying down the
principle to determine retrospectivity or prospectivity of a
notification and pointed out that all statutes, other than those which
are merely declaratory, are prima facie prospective unless they are
given retrospective effect with specific stipulation. But statutes which
are declaratory in nature will have retrospective effect. The Tribunal
thereafter analysed the judgments in the case of Bhaiya Ram Munda
v. Anirudh Patar & Ors., AIR 1971 SC 2533, Civil Appeal No.
1622/1967 decided on 21.5.1968 by the Supreme Court, Shanta v.
State of Karnataka & Anr., 1994 (3) Kar.L.J. 128; Sampath Kumar v.
CPFC/NDLS in OA No. 544/1994 decided by the Tribunal on
16.3.1995. In all these cases, certain castes, whether belonging to
SC/ST or OBC, were mentioned subsequent to the issuance of
original notification and the courts had come to the conclusion that
they were sub-tribes/sub-castes of the main tribe/caste already
mentioned in the original notification and, therefore, subsequent
addition would only mean that they were clarificatory in nature and
would be given benefit retrospectively from the date of original
notification. The legal position on the basis of the aforesaid
judgments is summarized by the Tribunal in para 19 as under :-
"(A) Wherever a community came to be notified as SC/ST/
OBC and that there are indisputable evidence of with
synonymous names existing around, the latter have to be
recognized as belonging to the main community and cannot be
discriminated. The decisions of the Apex Court in Munda‟s case
as well as of the High Court in Santa‟s case support this view.
(B) Notification/Ordinances issued by Government if it is a
declaration, and not procedural, will have retrospective effect.
The decision of the Constitution Bench of the Hon‟ble Supreme
Court in the case of Income Tax Officer (supra) support this
view. This principle has been applied by the High Court of
Karnataka while deciding Writ Petitions No. 22662/91 dated
18.11.91 (supra).
(C) When a subsequent Notification is issued, leaving behind
certain sub-Tribes/groups retrospectivity will relate back only
upto the date of declaration of the original Notification and
not beyond that, provided claims of sub-Tribes/sub-castes are
impeccable. This view gets support by all the case-laws cited
herein above."
8. The Tribunal then proceeded to answer the question formulated in
the present case and found that Notification dated 6.12.1996 is based
on the advice of National Commission for Backward Classes
(„NCBC‟, for short) set up under the National Commission for
Backward Classes Act, 1993 in the following manner :-
"20. The question in these present applications would be
whether Ministry of Welfare‟s Resolution/Notification dated
6.12.96 is one of the declaratory in nature. We find that the
above resolution is based on advice of National Commission
for Backward Classes (NCBC for short) set up under NCBC Act,
1993. This is evident from Secretary, NCBC‟s letter dated
20.6.96 as in annexure II in OA 894/97. The Commission
came up following the direction under Article 141 of the
Constitution of the Apex Court in MANDAL‟s case to
"entertain, examine and recommend upon the request for
inclusion and complaints of over inclusion and under inclusion
in the central list of backward classes. Commission‟s advice to
the Government of India, under Section 9(1) of the NCBC Act,
1993 is ordinarily binding. The above notification would not
have surfaced but for the advice of the Commission being of
statutory nature. Since the resolution dated 6.12.96 is
essentially an order arising out of directions of the 9 Member
Bench of the Apex court, it would have the force of being
declaratory, and not procedural, in nature. In fact, the above
resolution amounts to declaration of law by means of
resolution and, therefore, should have retrospective effect as
per law laid down as mentioned in details in paras 17 to 19
hereinbefore."
9. The Tribunal also pointed out that in the original notification of
1993, caste of "Gowala/Gawala" was mentioned. In fact, Ahir/
Yadav was only sub-caste of Gowala/Gawala. Ahirs/Yadavs were,
thus, synonyms and belong to the same caste of Gowala/ Gawala.
For this conclusion, the Tribunal referred to the Report of the
Backward Classes Commission (Mandal Commission of 1980) at page
182 (2nd Part, Vol. III to Vol. VIII - Haryana Chapter), which clearly
mentions "Ahir, Gowala, Gawala, Rao and Yadav‟ as OBCs under
the same Entry No.2.
On this basis, the Tribunal opined that the 1996 Notification
was only declaratory in nature and, therefore, the caste Ahir/Yadav
notified by that notification would be deemed to have been included
when first OM dated 10.9.1993 was issued.
10. There is yet another reason given by the Tribunal, on the basis of
which action of the petitioners in denying offer of appointment to
some and terminating the services of those who had been appointed
or cancelling the candidature of selected candidates was found to be
faulty as devoid of principles of natural justice as well as application
of mind. This aspect is dealt with in the following manner :-
"We find that respondents‟ action in respect of denial to issue
offers of appointment or in terminating services of those
already employed or even cancelling the candidatures of
selected candidates are devoid of principles of natural justice as
well as application of mind. It is not their case that the
applicants have submitted false caste certificates. Applicants
have been found to have produced certificates not as per
proforma. Respondents have now come out to say that the
certificates submitted should have been as per format enclosed
in DOPT‟s OM No. 36033/28/94-Estt. dated 23.11.95 and this
admittedly came to their notice later on only in April, 1996.
That followed series of actions under challenge herein. There is
some force in the contention of the applicants that steps taken
by DCP through letter dated 19.4.1996 was an act of "after-
thought" since none of them were ever informed of the above
vital requirement at any stage whatsoever right from the date
of notification till finalization of the panel. Since appointments
are hedged with this condition and that the said condition was
not made public, it would have been only fair for the
respondents to offer an opportunity in this respect. That was
not done. Principle of natural justice thus stood violated
notwithstanding the fact that the respondents had yet another
conditionality to press for."
11. We may add here that as far as National Capital Territory of Delhi is
concerned, notification in this behalf is issued on 24.1.1995, which
included the caste "Ahir, Yadav, Gawala" at S.No. 3. State of
Haryana, to which place most of these respondents belong to, had
issued its Notification on 7.6.1995 specifying many castes as OBCs
and at S.No. 1 thereof the caste of "Ahirs/Yadavs" is mentioned as
OBC.
Thus, when the selection process was started in the instant case,
insofar as NCT of Delhi is concerned, Ahirs/Yadavs had already been
included in the list of OBCs. This notification also shows that Ahirs/
Yadavs are clubbed with Gawalas in the same entry.
12. Learned counsel for the petitioner referred to para 117 and 121 of the
Supreme court judgment in Indra Sawhney v. Union of India, AIR
1993 SC 477, on the basis of which she argued that only those
persons could be treated as OBC who were common to the Centre as
well as the State List. Since the caste Ahirs/Yadavs was not in the
Central List before 1996, all these respondents were ineligible. She
further submitted that the Notification of 1996 was prospective in
nature and not clarificatory or declaratory, as, for the first time, these
castes were added on the recommendation of the National
Commission.
13. We are not impressed by these submissions of learned counsel for the
petitioner. We have already extracted above the detailed reasons
given by the learned Tribunal, on the basis of which the addition of
Ahirs/Yadavs vide Notification dated 6.12.1996 is treated as
clarificatory/declaratory. It would be relevant to note that vide
Notification dated 6.12.1996, Ahirs/Yadavs is not added as new
entry, but old entry is substituted by new entry. The old entry at
S.No. 26 was "Gawala/Gowala" and the new entry 26 reads
"Gawala, Gowala, Ahir, Yadav". It is clear from the above that
Ahir/Yadav is only treated as sub-caste of Gowala/Gawala. This
becomes apparent when we look into the reasons for the aforesaid
amendment. In this behalf, it would be necessary to refer and discuss
the judgment of the Supreme Court in Bhaiya Ram Munda v.
Anirudh Patar and others, AIR 1971 SC 2533 and that of the
Karnataka High Court in Shanta v. State of Karnataka and Another,
1994 (3) Kar.L.J. 128. We do no more than reproduce paras 10 to 12
of the Tribunal‟s judgment where these judgments are discussed :-
"10. In the case of Bhaiya Ram Munda Vs. Anirudh Patar and
others (AIR 1971 SC 2533) decided on 8.8.1970, the basic issue
was non-mentioning of "Patars" as sub-tribe of "Mundas"
declared as Scheduled Tribe (St for short) in the State of Bihar
under Article 342 of the Constitution. The relevant para in
that order is reproduced below :-
"The alternative argument advanced by counsel for the
appellant has also no substance. It is true that in Part III
of the Schedule to the Constitution (Scheduled Tribes)
Order 1950 issued under Art. 342 of the Constitution the
name "Munda" was mentioned and similarly the names
of other sub-tribes amongst Mundas were mentioned.
Counsel for the appellant contended that if according to
Dr. Sachchidanand, Mahalis, Ho, Bhumils, Asur, Baiga
and Khangars are Mundas, specific mention of some of
those tribes in the Scheduled Tribes Order clearly
indicated that "Patars" who are not mentioned therein
are not a Scheduled Tribe within the meaning of the
Order. There is however no warrant for that view. If
Patars are Mundas, because some sub-tribes of Mundas
are enumerated in the Order and others are not, no
inference will arise that those not enumerated are not
Mundas. We are unable to hold that because Patars are
not specifically mentioned in the List they cannot be
included in the general heading Munda." (emphasis
added).
11. It is evident that just because "Patars are not specifically
mentioned in the list, it cannot be said that they cannot be
included in the general heading - "Mundas". The name by
which a tribe or sub-tribe is known is not decisive. Even if the
tribe of a person is different from the name included in the
Presidential order, it may be shown that the name included in
the Order is a general name applicable to sub-tribes. (Please
see Civil Appeal No. 1622 of 1967 decided on 21.5.68 (SC)). It
was thus concluded that "Patars" of Tamar District in Bihar are
a sub-tribe of Mundas and they are not different from
"Mundas" (emphasis added). The same situation prevails here
when we speak of Gowala/Gawala and Ahirs/Yadavs.
12. We now come to the case law touching upon on the
same subject as decided by the High Court of Karnataka in the
case of Shanta Vs. State of Karnataka and another (1994(3) Kar.
L.J. 128). The petitioner therein was chargesheeted for
obtaining a false caste certificate. Admittedly, she belonged to
"Beda" community but declared herself to be belonging to
"Nayaka" which is notified as ST. the petitioner had produced
several Government publications which show that "Beda"
community is synonymous with "Nayaka" community and that
in various districts the same community is called by different
names. It was held that "Beda" and "Nayaka" are not
different communities and that the same communities go by
two names and that those names are synonymous. In the
present case, Ahirs and Yadavs are synonyms of Gowala/
Gawala and admitted by respondents."
14. The tribunal has also relied to its own judgment in the case of Mohd.
Ali v. Commissioner of Police (OA No. 986/98 decided on
29.8.2000. Learned counsel for the respondents pointed out (which
fact was not denied by the learned counsel for the petitioner) writ
petition against the said judgment {WP (C) No. 917/2001 decided on
9.2.2001} was dismissed by the High Court and special leave petition
was also dismissed by the Supreme Court affirming the said view.
15. We would also like to point out at this stage that when OM dated
10.9.1993 was issued mentioning "the OBCs for the purpose of
aforesaid reservation would comprise, in the first phase, the caste and
communities which are common to both the lists in the Report of the
Mandal Commission and the State List, the Tribunal discussed in
detail the reason why such a phrase-wise order was issued. It
pointed out that it was because of the observations of the Supreme
Court in Indra Sawhney (surpa) for excluding those OBCs who
belong to the creamy layer. Following such directions of the
Supreme Court, the first phase of reservation for OBCs started in the
Government of India with the communities/castes which were
common to both the lists in the Report of the Mandal Commission
and the State List. With this background, the Tribunal observed as
follows :-
"24....Instructions under Government of India OM dated
8.9.93 have to be read with those under notification dated
10.9.93 wherein it has been mentioned that the Expert
Committee on "creamy layer" has been commissioned to
prepare the Common Lists in respect of 14 states which had
notified the list of OBCs for the purpose of reservation in State
Services as on the date of judgment of the Supreme Court. The
Common Lists prepared by the committee were accepted by
the Government which decided to notify the list (annexed with
OM dated 10.9.93) of the OBCs in the context of
implementation of the aforesaid OM dated 8.9.93. The
NCBC, set up under the provisions of the National Commission
for Backward Classes Act, 1993 in pursuance of the direction of
the Supreme Court in MANDAL case, had to entertain,
examine and recommend upon requests for inclusion and
complaints of over-inclusion and under-inclusion in the lists of
Other Backward Classes of citizens.
25. The resolution dated 6.12.96 based on NCBC‟s advice is,
in effect, the outcome of directions of constitutional authority
and also in follow up of the directions of the Apex Court
contained in OM dated 10.9.93. Responsible public
functionaries like the respondents herein should have called
their own attention in understand the expressions like - "in the
first phase" - in the OM relied upon by them."
16. Thus, from any angle the matter is to be looked into, we find that
the Tribunal has rightly come to the conclusion holding the
respondents as eligible for appointment to the post of Constable
(Executive) under the OBC category. We would also like to mention
here that the NCT of Delhi still remains a Union Territory under the
Constitution even when it is given "limited statehood". However,
for the purpose of application of various provisions of the
Constitution and other laws, it is treated as a Union Territory and has
not lost that character even when special status is given to it by
amendment to the Constitution.
17. The notification dated 24.1.1995 issued in respect of NCT of Delhi
mentioning the caste of Ahirs/Yadavs is issued by the Central
Government itself. Thus, when the Central Government treated
Ahirs/Yadavs in respect of Delhi itself as OBCs in January 1995 and
process started thereafter for recruitment of Constables (Executive) in
Delhi Police in June 1995, the respondents under these circumstances
should be treated as persons belonging to OBC category as per the
aforesaid notification in place (See - Chandigarh Administration &
Anr. v. Surinder Kumar & Ors., (2004) 1 SCC 530; and S. Pushpa &
Ors. v. Sivachanmugavelu & Ors., (2005) 3 SCC 1).
18. There is yet another reason which prompt us not to interfere with
the judgment of the Tribunal in exercise of our extraordinary
jurisdiction under Article 226 of the Constitution. Admittedly,
Ahirs/Yadavs are added as OBCs by Notification of 1996. Therefore,
even as per the petitioners, they become eligible to be considered as
OBC from the date of such notification. The decision on this issue
has bearing only on the selections in question. The Tribunal in its
impugned judgment, while allowing the OAs, had given the
following directions :-
"(i) Orders dated 15.10.96, 30.10.96, 31.10.96 and 4.11.96
cancelling the candidatures and thereby refusing to issue offer
of appointment and orders dated 30.10.96, 31.10.96, 12.11.96
and 18-19.2.97 terminating the services of the applicants shall
stand quashed;
(ii) In the case of those applicants awaiting offer of
appointment after due process of selection, respondents are
directed to issue offers of appointment to them provided other
conditions stand fulfilled. Applicants served with letters of
termination shall be reinstated and orders of termination
already served be withdrawn or to those threatened to be
served shall not be effected. These orders shall be carried out
within a period of eight weeks from the date of receipt of a
certified copy of this order.
(iii) Our orders, however, will not be applicable to the
applicants in OA 52/97 or other applicants who have
approached the High Court in writ petitions separately.
(iv) In case services of some of the applicants have been
terminated, all their past service shall be counted for the
purpose of seniority. However, there shall be no backwages
for them for the intervening period since they have not
actually worked."
19. In WP (C) No. 1073/1998, while issuing notice on 4.3.1998, stay of
direction No. (ii) only was given. Thereafter, vide order dated
30.7.1998, it was clarified that since there was no stay of direction
No.(i), services of those respondents who had already joined the
services were not to be terminated during the pendency of the
petition, without leave of the Court. More significantly, the limited
stay given earlier was also vacated on 24.9.1998 inter alia in the
following terms :-
"After having heard the parties‟ counsel, we are of the prima-
facie view that in the facts of this case there can be no
controversy about retrospectivity of the said O.M. The said
O.M. has as Annexure lists of the OBCs. With respect to the
State of Haryana the list contains the names of castes/
communities which shows that against old entries No.26 it is
mentioned: Gawala, Gowala. Against this old entry a new
entry in the list contains mention of Gawala, Gowala, Ahir/
Yadav. The learned counsel appearing for the respondents
state that this new entry does not add any new cast or
community to the existing list. In case of any new cast/
community was to be added, there would have been a
separate entry. Against the existing old entry number 26,
words Ahir/Yadav have been also mentioned in the new entry,
which is only by way of clarification of the existing entry. It is
submitted that Ahir/Yadav/Gawala/Gowala are synonyms and
the Government has only clarified an existing fact. In view of
this it cannot be said that Ahir/Yadav have been added afresh
to the Central list vide OM dated 6th December, 1996 as
independent castes. Therefore, the question of retrospectivity
does not arise. It will be deemed that they were there earlier
also. If that is so the respondents could legitimately be
considered as O.B.C. category for purposes of recruitment.
Accordingly, we are not inclined to continue the ex-parte
interim stay order dated 4th March, 1998 as modified by order
dated 30th July, 1998. The application of the petitioner for
interim relief (CM 1770/98) is hereby dismissed. The other
two applications for vacation of ex-parte interim stay stand
disposed of."
20. We are informed by the learned counsel that as a consequence of the
above order passed, all the respondents are working. They have
already put in more than 10 years of service. For this reason alone, it
would not be permissible now, having regard to the facts mentioned
above, to dispense with the services of the respondents at this stage.
We are, therefore, of the opinion that it is not a case which calls for
any interference with the directions of the Tribunal even if we were
to accept the plea of the petitioners herein (though we have not
found favour with that at all as well, as the said issue remains only of
academic nature insofar as the present case is concerned).
21. In these circumstances, we are of the view that there is no merit in
these writ petitions, which are accordingly dismissed. However,
these shall be no order as to costs.
22. The petitioners are directed to comply with the directions of the
Tribunal within eight weeks from the date of receipt of copy of this
order.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
April 25, 2009
nsk
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 1073/1998
with
WP (C) Nos. 1423/1998, 4706/1998, 4178/1999, 4235/1999
4400/1999, 6423/1999, 4055/2000, 5073/2000, 6557/2000
4548/2001, 2350/2002, 2435/2002, 2436/2002, 2460/2002
and 3970/2003
% Reserved on : March 12, 2009
Pronounced on : April 23, 2009
1. WP (C) No. 1073/1998
Commissioner of Police & Ors. . . . Petitioners
through : Ms. Geeta Luthra with
Mr. Aditya Madan,
Ms. Purbali Bora, Advocates
Mr. V.K. Tandon, Advocate
In WP (C) Nos. 1423/98,
5073/00, 4548/01 & 2350/02.
Mr. H.K. Gangwani, Advocate
for the UOI.
VERSUS
Parmender Kumar & Ors. . . . Respondents
through : Ms. Avnish Ahlawat, Advocate
for the respondents in WP (C)
Nos. 1073/98, 1423/98, 4679/98
4706/98, 4178/99, 4235/99
4400/99, 6423/99, 4055/00
5073/00, 6557/00, 4548/01,
2350/02, 2435/02, 2436/02 and
2460/02.
Mr. Shyam Babu, Advocate
for respondent Nos. 23-28, 30,
33, 40, 46, 47, 50, 52, 55-59,
61, 66 & 67 in WP (C) 4055/00.
2. WP (C) No. 1423/1998
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Paramjit Singh . . . Respondent
through : As at #1 above.
3. WP (C) No. 4706/1998
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Surender Singh Yadav . . . Respondent
through : As at #1 above.
4. WP (C) No. 4178/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Jai Pal Singh . . . Respondent
through : As at #1 above.
5. WP (C) No. 4235/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Madan Kumar . . . Respondent
through : As at #1 above.
6. WP (C) No. 4400/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Subhash Yadav & Ors. . . . Respondents
through : As at #1 above.
7. WP (C) No. 6423/1999
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Jai Pal Singh & Ors. . . . Respondent
through : As at #1 above.
8. WP (C) No. 4055/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Ishwar Singh . . . Respondent
through : As at #1 above.
9. WP (C) No. 5073/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Krishan Kumar . . . Respondent
through : As at #1 above.
10. WP (C) No. 6557/2000
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Vikram Singh . . . Respondent
through : As at #1 above.
11. WP (C) No. 4548/2001
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Raj Bai & Anr. . . . Respondents
through : As at #1 above.
12. WP (C) No. 2350/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Paramjeet Singh & Anr. . . . Respondents
through : As at #1 above.
13. WP (C) No. 2435/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Ajay Kumar & Ors. . . . Respondents
through : As at #1 above.
14. WP (C) No. 2436/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Kishan Lal . . . Respondent
through : As at #1 above.
15. WP (C) No. 2460/2002
Commissioner of Police & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Randhir Singh . . . Respondent
through : As at #1 above.
16. WP (C) No. 3970/2003
Govt. of NCT of Delhi & Ors. . . . Petitioners
through : As at #1 above.
VERSUS
Mukesh Yadav . . . Respondent
through : As at #1 above.
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
For orders, see WP (C) No. 1073/1998.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
April 23, 2009
nsk
