Delhi High Court

Dsssb & Anr. vs Mukesh Kumar & Ors. on 25 July, 2011

Author: Dipak Misra,Chief Justice

*             HIGH COURT OF DELHI AT NEW DELHI

                             Judgment Reserved on:       4th July, 2011
%                            Judgment Pronounced on:    25th July, 2011

+      WP(C) No.610/ 2011

       DSSSB & ANR.                                       ..... Petitioners
                             Through:   Ms. Zubeda Begum, Ms. Sana
                                        Ansari, Advocates
              Versus

       MUKESH KUMAR & ORS.                                ....Respondents

               Through:                 Mr. Aruneshwar Gupta,
                                        Mr.Manish Raghav, Mr. Nikhil
                                        Singh, Advs. for Respondent Nos.
                                        1 to 19
                                        Mr. Nawal Kishore Jha, Adv. for
                                        Respondent No.20/ MCD

+      WP(C) No. 1595/ 2011

       DSSSB & ANR.                                       ..... Petitioners
                             Through:   Ms. Zubeda Begum, Ms. Sana
                                        Ansari, Advocates
              Versus

       KAPIL KUMAR & ORS.                                 ....Respondents
                Through:                Dr. K.S. Chauhan, Mr. Tej Singh
                                        Varun, Mr.Ajit Kumar Ekka,
                                        Mr.Kartar Singh, Advs.

+      WP(C) No.1596/ 2011

       DSSSB & ANR.                                       ..... Petitioners
                             Through:   Ms. Zubeda Begum, Ms. Sana
                                        Ansari, Advocates


               Versus

       MS. SAROJ & ORS.                                       ....Respondents
                 Through:                   Dr. K.S. Chauhan, Mr. Tej Singh
                                            Varun, Mr.Ajit Kumar Ekka,
                                            Mr.Kartar Singh, Advs. for

                                            Mr. Nawal Kishore Jha, Adv. for
                                            R-3/ MCD
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJIV KHANNA

1.    Whether reporters of the local papers be allowed to see the             YES
      judgment?
2.    To be referred to the Reporter or not?                                  YES
3     Whether the judgment should be reported in the Digest?                  YES



DIPAK MISRA, CJ

In the year 2008, as per requisition of Municipal Corporation of

Delhi (MCD), the Delhi Subordinate Services Selection Board

(hereinafter referred to as „the Board‟) issued an Advertisement No.

02/2008 for filling up posts of Assistant Teacher/Teacher (Primary) in

MCD under Post Code 16/08. The advertisement in Section B contained

the reservation benefits keeping in view the instructions pertaining to the

admissibility of benefits of reservation. The procedure for submission of

application form mentioned the reservation benefits stating that the

reservation benefits will be available to the candidates in accordance with

the instructions/order/circulars issued from time to time by

competent/notified authority. The examination for the Post Code 16/08

(Teacher-Primary) was conducted by the Board in two parts, that is, Part I

(Objective) Examination and Part II (Descriptive) Examination for final

selection. The result of Part I examination for short listing of candidates

by evaluation of their Part I answer sheets was declared on 29.5.2009.

After evaluation of Part II (Descriptive) answer scripts, final result was

declared by the Board on 6.10.2009.

2. When the selection process was continuing, the decision in the case

of Subhash Chandra & Anr. v. DSSSB & Ors., 2009 (11) Scale 278 was

pronounced. Because of the said decision, only such Scheduled Caste

candidates who had secured marks 94/200 and above and had enclosed

Scheduled Caste certificate of Delhi origin issued by the competent

authority of the Government of NCT of Delhi were selected. The

candidates who had furnished the caste certificates issued on the basis of

their parents‟ caste certificates along with the application form were not

extended the benefit of reservation and, hence, their cases were

considered under unreserved category and the candidates who had,

secured less marks than the last short listed/selected candidate under

unreserved category were not found to have been qualified.

3. Being dissatisfied with the aforesaid criteria/condition, the

respondents preferred original applications before the Central

Administrative Tribunal, Principal Bench, New Delhi (for short „the

tribunal‟) and the tribunal disposed of OA No. 563/2010 (Mukesh Kumar

& Others v. GNCTD & Ors.) on 6.9.2010 and OA Nos. 1466/2010 (Kapil

Kumar v. DSSSB & Ors.) and 905/2010 (Ms. Saroj & Others v. GNCTD

& Ors.) by common order dated 7.9.2010. In OA No. 563/2010, the

tribunal has passed the following order:

"Decision of Apex Court in Subhash Chandra & another v. DSSSB & others (CA-5092/2009) and its prospectivity thereof is not involved in the present cases, as now in the light of the observations made in paragraph 12 of the decision (supra), applicants have produced before us a copy of the list of scheduled casts in Delhi, which, the learned counsel states, have been issued under Article 341(1) of the Constitution of India whereby the casts „Chamar‟, „Jatva‟, „Koli‟ and „Pasi‟ are included as scheduled castes in Union Territory of Delhi. If the contentions put forth by learned counsel for applicants is correct then the castes are not migratory and have a right to be considered for appointment on reservation basis in schedule caste category.

2. In this view of the matter, we dispose of this OA with a direction to the respondents to verify the aspects of the castes being notified in Delhi by notification under Article 341(1) of the Constitution by an apt methodology within a period of two months from the date of receipt of a copy of this order and on authentication and verification of the aforesaid, consider the claim of the applicants for appointment in accordance with their eligibility within a period of one

month when such a verification and authentication by the respondents is complete."

4. In the other two original applications, the tribunal referred to the

decision rendered in Mukesh Kumar & Ors. (supra) and passed the

following order:

"Being founded on identical questions of law and grounded on similar facts, these OAs are disposed of by directing the respondents to verify the aspect of their castes being notified in Delhi vide notification under Article 341(1) of the Constitution by an apt methodology within a period of two months from the date of receipt of a copy of this order. On authentication and verification of the aforesaid, the respondents shall also consider the claim of the applicants for appointment in accordance with their eligibility within a period of one month when such a verification and authentication is adopted."

5. Assailing the aforesaid orders, it is submitted by Ms. Zubeda

Begum, learned counsel for the appellant - Board that the tribunal has

fallen into grave error in understanding the ratio of the decision in

Subhash Chandra (supra) inasmuch as the said decision nowhere lays

down that a person who has migrated to Delhi and taken a certificate

from the authority in Delhi would be treated as a candidate belonging to

the reserved category. Learned counsel would submit that the Apex

Court has, after referring to the Constitution Bench decisions in Marri

Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.,

(1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate

to Scheduled Castes and Scheduled Tribes in the State of Maharashtra

& Anr. v. Union of India & Anr., (1994) 5 SCC 244 has opined that to

confer the benefit on a person belonging to a particular caste or tribe can

only be done if a caste or tribe is notified in terms of the Scheduled Caste

Order or Scheduled Tribe Order and the same must be in terms of Clause

(1) of Article 341 as also that of Article 342 of the Constitution of India

as the case may be and no deviation from the procedure laid down therein

is permissible in law. It is urged by her that the tribunal has flawed by

not appreciating the fact in proper perspective that the respondents had

produced caste certificates that were granted to them on the basis of caste

certificates of their parents who belonged to other States and, therefore,

they cannot be treated belonging to Scheduled Castes in Delhi solely

because there is a list of Scheduled Castes in Delhi issued under Article

341(1) of the Constitution of India covering their caste.

6. Mr. Aruneshwar Gupta along with Mr.Manish Raghav and Dr.

K.S. Chauhan along with Mr. Tej Singh Varun, Mr.Ajit Kumar Ekka

learned counsel appearing for the private respondents submitted that the

tribunal has appositely appreciated the ratio laid down in the case of

Subhash Chandra (supra) and, therefore, no fault can be found with the

orders of the tribunal. It is further contended that the respondents had

obtained caste certificates in Delhi and their castes, namely, „Chamar‟,

„Jatva‟, „Koli‟ and „Passi‟ which are covered under the notification issued

for Delhi under Article 341 of the Constitution of India and, hence, the

order passed by the tribunal is absolutely defensible.

7. At the very outset, we may state that there is no dispute that the

Competent Authorities of Govt. of NCT of Delhi had issued Scheduled

Caste Certificates in favour of the respondents on the basis of the

certificates to their parents by other States. On a perusal of the decision

in Subhash Chandra & Anr. (supra), it is clear as crystal that the Apex

Court has followed the decisions in Marri Chandra Shekhar Rao (supra)

and the Action Committee (supra). The Constitution Bench in Marri

Chandra Shekhar Rao (supra) has clearly laid down that a candidate

recognized as a member of Scheduled Tribe and Scheduled Caste in his

original State on his migration to another State, would not be entitled to

get the benefit of reservation of seats. After laying down the principles,

their Lordships have stated thus:

"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic in voluntary) transfer, will they be

entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."

8. In the case of the Action Committee (supra) another Constitution

Bench referred to the decision in Marri Chandra Shekhar Rao (supra)

has opined thus:

"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes 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 considerations 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 person 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 "for the purposes of this Constitution"."

9. In the case of Subhash Chandra & Anr. (supra) their Lordships

were dealing with the notifications and circulars issued by National

Capital Territory of Delhi in terms of Clause (1) of Article 341 of the

Constitution of India and in that context their Lordships have expressed

thus:

"Both the Central Government and the State Government indisputably may lay down a policy decision in regard to reservation having regard to Articles 15 and 16 of the Constitution of India but such a policy cannot violate other constitutional provisions. A policy cannot have primacy over the constitutional scheme.

If for the purposes of Articles 341 and 342 of the Constitution of India, State and the Union Territory are at par on the ground of administrative exigibility or in exercise of the administrative power, the constitutional interdict contained in clause (2) of Article 341 or clause (2) of Article 342 of the Constitution of India cannot be got rid of."

10. From the aforesaid pronouncement of law, it is vivid that

Scheduled Castes or Scheduled Tribes in one State cannot get the benefit

in another State. The parents of the respondents may belong to the castes

of „Chamar‟, „Jatva‟, „Kali‟ and „Pasi and those castes may have been

notified in terms of Scheduled Caste Order or Scheduled Tribe Order

issued in terms of Clause (1) of Article 341 or Article 342 of the

Constitution of India in a particular State but the respondents who have

obtained the certificates in Delhi on the basis of the certificates of their

parents issued by other States and have migrated to Delhi, cannot avail

the benefit. Thus, the view expressed by the tribunal that they belong to

Scheduled Castes in the National Capital Territory of Delhi because of

the said notification and, hence, what is only required is the