Delhi Subordinate Services ... vs Ram Kumar Gijroya & Ors
2012 Latest Caselaw 482 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 24th January, 2012
+                                   LPA 562/2011

%        DELHI SUBORDINATE SERVICES SELECTION BOARD
         & ANR                                   ..... Appellants
                     Through: Ms. Zubeda Begum & Ms. Sana
                              Ansari, Advocates.

                                          Versus

         RAM KUMAR GIJROYA & ORS.             ..... Respondents
                    Through: Mr. D.P. Sharma & Mr. Rajender
                             Yadav, Advocates for R-1, 2 &5.

                                        AND

+                                   W.P.(C) 8087/2011

%        MS. RENU                                                ..... Petitioner
                                   Through:   Mr. Deepak Tyagi & Mr. K.K.
                                              Gautam, Advocates.

                                          Versus

    THE CHAIRMAN/SECRETARY, D.S.S.S.B
    & ORS.                           ........... Respondents
                 Through: Mr. Sachin Chopra & Mr. Amit
                           Kumar Dadhich, Advocates for
                           R-2&3
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
LPA 562/2011 & W.P.(C) 8087/2011                                         Page 1 of 18
                                    JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the order dated 24th November, 2010 of the

learned Single Judge allowing W.P.(C) No.382/2009 preferred by the five

respondents seeking mandamus commanding the appellants Delhi

Subordinate Services Selection Board (DSSSB) and Govt. of NCT of

Delhi to accept the Other Backward Classes (OBC) Certificates submitted

by them for selection to the post of Staff Nurse in the Department of

Health and Family Welfare, Govt. of NCT of Delhi after the cut off date

provided therefor. It was the case of the respondents in the writ petition

that the appellants had vide advertisement published on 30 th August, 2007

invited applications for the post of Staff Nurse; that the last date specified

in the said advertisement for submitting the applications was 21 st January,

2008; the respondents applied before the cut off date for selection under

the OBC category and the appellants issued Admit Card enabling the

respondents to appear in the examination to be held therefor; that the

respondents had so appeared in the examination and were shortlisted for

selection; that however their names did not find mention in the list

published on 29th July, 2008 of selected candidates; that on enquiries they

learnt that they were not selected for the reason of their having not

submitted the OBC Certificates issued by the appropriate authority of

belonging to the OBC Category along with their application forms. The

respondents hence claimed the relief aforesaid commanding the appellants

to accept the OBC Certificates from them. Notice of the said writ petition

was issued. It appears that the respondents herein applied for early hearing

of the writ petition on the ground that the matter in controversy was

covered by the judgment dated 11th February, 2009 in W.P.(C)

No.9112/2008 titled Ms. Pushpa Vs. Govt. of NCT of Delhi. The said

application for early hearing was listed before the learned Single Judge on

24th November, 2010 when the same was allowed and the writ petition

taken up for hearing immediately. The learned Single Judge finding the

matter to be covered by Ms. Pushpa (supra) allowed the writ petition and

directed the appellants to re-consider the selection of the respondents in the

OBC Category. Aggrieved therefrom this appeal was preferred, notice

whereof was issued. Only the respondents no.1, 2 & 5 namely Sh. Ram

Kumar Gijroya, Sh. Kanhaiya Lal Yogi and Sh. Jaswant Kumar Yadav

have chosen to contest the appeal.

2. The respondents in the appeal have also opposed the prayer of the

appellants in appeal for condonation of delay of 160 days in preferring the

appeal. We had on 9 th November, 2011 directed the appellants to produce

the original records whereby the file of the appeal was processed. The said

records were produced before us and have been perused and we are

satisfied that the delay in preferring the appeal is unintentional and bona

fide and sufficient cause for condonation thereof is made out.

Accordingly, the said delay is condoned and the appeal is considered on

merits.

3. W.P.(C) No.8087/2011 has been preferred impuging the order dated

29th April, 2011 of the Central Administrative Tribunal, Principal Bench,

New Delhi dismissing O.A. No.2427/2010 under Section 19 of the

Administrative Tribunals Act, 1985 preferred by the petitioner seeking a

direction for her appointment for the post of Matron in the office of the

DG, Prisons, in the OBC Category. Finding the controversy in the writ

petition to be the same as in the appeal aforesaid, notice thereof was issued

for the same date when the appeal was listed.

4. It is the case of the appellants in the appeal that the applicants in

pursuance to the advertisement supra and seeking appointment in the OBC

Category were required to submit the certificate of belonging to the OBC

Category along with the application form by the cut off date advertised for

submission of the applications; that none of the respondents however so

submitted the certificate; they were allowed to appear in the examination

and on the basis of the result of the examination, provisionally selected in

the OBC Category; however finding, on scrutiny of applications, the

respondents to have not submitted the certificate of belonging to the OBC

Category alongwith the application form, they were not so selected.

5. It is not in dispute that the advertisement was published on 30th

August, 2007 and the last date for submission of applications was 21 st

January, 2008.

6. It is the categorical case of the appellants in the appeal that the

respondents no.1 to 5 applied to the appropriate authority for issuance of

the OBC Certificates on 10th January, 2008, 19th June, 2008, 27th

November, 2008, 21st August, 2008 and 1st February, 2008 respectively

and OBC Certificates were issued to them on 6th February, 2008, 23rd June,

2008, 2nd December, 2008, 8th December, 2008 and 1 st February, 2008

respectively. It is thus the case of the appellants that save for the

respondent no.1 who applied for the OBC Certificate ten days prior to the

cut off date, the respondents no.2 to 5 applied for the OBC Certificates

long after the cut off date and the OBC Certificates in any case were issued

to all the respondents after the cut off date and submitted to the appellants

even thereafter. The appellants contend that the requirement of the

advertisement inviting applications being of submission of OBC

Certificate alongwith the application by the cut off date and none of the

respondents having done so, they cannot be appointed even if had cleared

the examination held for selection.

7. Ms. Pushpa, judgment (supra) in whose writ petition was relied upon

by the learned Single Judge had also applied in pursuance to the same

advertisement. It was however her case that she had applied to the

concerned office of SDM for issuance of OBC Certificate much prior to

even the date of the advertisement and it was owing to the delay by the

office of the SDM in issuing the Certificate that she could not submit the

same along with her application and had submitted the same immediately

upon the same being made available. The learned Single Judge allowed

the petition preferred by Ms. Pushha holding that she could not be blamed

or made to suffer for the delay on the part of the authorities in making the

Certificate available to her.

8. It is the contention of Ms. Zubeda Begum, Adv. for the appellants in

the appeal that the reliance by the learned Single Judge on Ms. Pushpa is

misconceived inasmuch as the facts of the present case are materially

different from that in the case of Ms. Pushpa. She contends that relief was

granted to Ms. Pushpa for the reason of her having applied for the

Certificate even prior to the date of the advertisement and her inability to

submit the Certificate being owing to the delay by the authorities. It is

contended that on the contrary, save for the respondent no.1 (who applied

for the Certificate as aforesaid ten days before the cut off date), the other

respondents even applied for the Certificate long after the cut off date

mentioned in the advertisement.

9. The Tribunal in the order dated 29 th April, 2011 impugned in the

writ petition has also found the petitioner in the writ petition to have

applied for the OBC Certificate after the closing date for submission of the

applications and has thus held the judgment in Ms. Pushpa to be not

applicable.

10. The counsel for the respondents no.1, 2 & 5 in the appeal and the

counsel for the petitioner in the writ petition have contended that they were

entitled to be considered for appointment in the OBC Category by virtue of

their status as belonging to the OBC Category; that their said status is by

birth and is not dependent on the Certificate; that they having been allowed

to participate in the selection process and having cleared the selection

process could not be denied appointment for the reason of having not

submitted the OBC Certificate by the cut off date; that they should have

been given opportunity to produce the Certificate even after the cut off

date. Besides, the judgment in Ms. Pushpa, reliance is placed on Tej Pal

Singh Vs. Govt. of NCT of Delhi 2000 (1) ILR (Del) 298 and judgment

dated 17th February, 2010 of a Division Bench of this court in W.P.(C)

No.13870/2009 titled D.S.S.S.B. Vs. Ms. Anu Devi and other connected

writ petitions reported as 2010 (2) SLR 206.

11. On the contrary, Ms. Zubeda Begum, Adv. for the appellants has

relied on:

(i) MCD Vs. Veena (2001) 6 SCC 571 laying down that persons

holding OBC Certificates issued by other States cannot be treated as

OBCs in Delhi and the applicants who had not submitted OBC

Certificates issued by the authorities in Delhi were to be considered

in Unreserved Category;

(ii) Shankar K. Mandal Vs. State of Bihar (2003) 9 SCC 519

laying down that the cut off date by reference to which the eligibility

requirement must be satisfied by the candidate seeking a public

employment is the date appointed by the relevant Service Rules and

if there is no cut off date appointed by the Rules, then such date

shall be as appointed for the purpose in the advertisement calling for

the applications;

(iii) Ashok Kumar Sonkar Vs. Union of India (2007) 4 SCC 54

laying down that the proposition where the applications are called by

prescribing a particular date as the last date for filing the

applications, the eligibility of the candidates has to be judged with

reference to that date and that date alone is a well established one;

(iv) Judgment dated 7th September, 2010 of a Division Bench of

this Court in W.P.(C) No.1343/2010 titled Santosh Kumar Meena

Vs. Govt. of NCT of Delhi laying down that the reason why a cut off

date cannot be ignored in an individual case is that there may be

other persons who may have applied, had they known that the date

of acquiring qualification was flexible;

(v) Order dated 20th January, 2010 of this Court in W.P.(C)

No.8362/2009 titled Dharmendra Saini Vs. Govt. of NCT of Delhi

denying the relief to the petitioners who had remained careless and

indifferent in taking timely steps not only in obtaining the OBC

Certificates but in submission of the same.

12. The common legal question to be adjudicated in the appeal and the

writ petition thus is whether notwithstanding the advertisement inviting

applications requiring the certificate of belonging to the Reserved Category

being filed along with application by the cut off date, the delay in

submitting the certificate can be condoned and appointment directed.

13. We have recently in judgment dated 31st October, 2011 in W.P.(C)

No.7767/2011 titled Narayan Lal Meena Vs. Govt. of NCT of Delhi had

occasion to consider the sanctity of the cut off date qua eligibility

qualification and have on a conspectus of the case law, need to reiterate

which is not felt, held that eligibility has to be determined as on the cut off

date prescribed and no relaxation can be granted; that the applicants cannot

take any advantage of the mistake, if any on the part of the

appointing/recruiting authorities in allowing the applicants to appear in the

examination and interview; that appointment of an ineligible candidate is

illegal and no question of estoppel arises. It was further held that granting

any relief to the applicant approaching the Court in such cases would

tantamount to giving a benefit to such applicants to the prejudice of others;

if the eligibility were allowed to be determined on the date of the interview

and/or on the date of appointment, then the same would be to the

detriment/prejudice of others who considering themselves to be ineligible

as per the terms of advertisement did not apply. It was further held that the

same would tantamount to giving premium to the illegality practiced in

applying when the person was clearly in the know that he / she was

ineligible to apply. It was yet further held that in such situation, it is well-

nigh possible that had others similarly placed as the petitioner and who

acted honestly and did not apply, also applied and competed, the petitioner

may not even have been found successful.

14. The only question which thus remains to be adjudicated is whether

what has already been held by us as aforesaid qua the eligibility

qualification applies also to submission of documents as the OBC

Certificate. The distinction is obvious. While the qualification does not

exist on the cut off date, the status as OBC exists which as has been held in

Tej Pal Singh (supra) is not dependent on the certificate which is but a

proof of such status.

15. The Tribunal, in the order impugned in the writ petition, though

noticed Tej Pal Singh held that in subsequent judgment dated 02.02.2009

in W.P.(C) No.8508/2007 titled Smt. Poonam Vs. GNCTD, the law

developed was that the delay in submission of certificate could be

overlooked only if the certificate had been applied for well before the cut

off date but was issued subsequently and for no fault of the applicant.

16. We may however notice that Tej Pal Singh, (judgment of one of us

i.e. the Acting Chief Justice and LPA No.304/2000 whereagainst was

dismissed on 15.12.2000 and SLP dismissed on 16.04.2001) referred to the

Chapter in Swamy's Compilation on Reservations and Concessions for

Scheduled Castes (SC) and Scheduled Tribes (ST) under the heading

"Verification of Claim for SC & ST" which inter alia stipulated

verification of status belonging to the SC/ST after the provisional

appointment. It was on the basis of the same that it was held that a person

who claims to belong to SC/ST Category is not to be denied appointment

merely because he has not been able to produce the certificate. It was held

that the provision termed appointment in the Reserved Category on a

provisional basis and subject to submission of proof. This Court further

found the advertisement inviting applications in that case to have also

provided so and incorporated the Chapter aforesaid. It was yet further

found that the advertisement did not prescribe the cut off date for the

purpose of submitting SC/ST/OBC Certificates.

17. On the contrary, the advertisement in the appeal as well as the writ

petition clearly provided that the certificates of belonging to OBC category

had to be filed along with the application by the cut off date. We,

therefore, are of the opinion that what was held in Tej Pal Singh qua the

status as SC/ST and in the context of language of the advertisement in that

case would not apply to the present cases concerning OBCs and in view of

the unambiguous language of the advertisements inviting applications in

the present cases. Inspite of judgment of Coordinate Bench in Anu Devi

supra, need is not felt to refer the matter to a larger Bench because the

judgment in Anu Devi turned on, firstly the appointing authority in that

case, notwithstanding the cut off date, having issued notices demanding the

certificates thereby extending the cut off date and secondly on this Court

exercising the discretion under Article 226 in refusing to interfere with the

decision of the Tribunal in that case. We are however consciously

distinguishing Tej Pal Singh (supra). We may also notice that our Brother

who has authored the judgment in Anu Devi had earlier, sitting singly in

judgment dated 13.08.2009 in W.P.(C) No.10257/2009 titled Abhishek

Saini Vs. University of Delhi held that the action of the University in not

permitting the petitioner in that case to participate in the selection process

on account of non-production of OBC certificate by the date stipulated in

the Bulletin of Information and which was mandatory cannot be faulted

with. Mention may also be made of Hari Singh Vs. Staff Selection

Commission 170 (2010) DLT 262 where another Division Bench

notwithstanding the OBC certificate having not been filed by the stipulated

date and following Tej Pal held a case for making provisional admission to

have been made out but again in the peculiar facts of that case and

accepting the explanation for non-submission thereof.

18. Another Division Bench of this Court in judgment dated 25 th

January, 2010 in WP(C) No. 10558/2009 titled Union Public Service

Commission Vs. GNCTD and other connected Writ Petitions held that the

procedure for making applications cannot be given a go by for

accommodating a few people and if this is done there would be no

obligation on anybody to follow any procedure resulting in an

unmanageable situation. It was further held that the procedure prescribed

in the advertisement casts a duty on the applicants to apply in accordance

therewith and they cannot be allowed to contend that their application

should be accepted even if incomplete. Accordingly, the rejection of the

applicants who had not submitted the documents required to be submitted

alongwith the application form was upheld.

19. Else, what has been observed by us qua qualification, equally

applies to submission of OBC Certificate also. It is well-nigh possible that

a number of other OBC candidates, though otherwise eligible but not in

possession of the OBC Certificate by the cut off date, did not apply under

the belief that being required to enclose the OBC Certificate along with the

application and being not in possession thereof, their applications would be

deficient and not entertainable. It is yet further possible that, had such

others applied and competed, the respondents in appeal and/or the

petitioner in the writ petition may not have been eligible. The respondents

in appeal and the petitioner in the writ petition were clearly in the know

that their applications were incomplete and took a chance. This Court

cannot lay down a law which would encourage such practices. The terms

and conditions mentioned in the advertisement were intended, to

guide/instruct the prospective applicants and there is no reason to dilute the

same. Even otherwise, this Court would be loathe to issue

mandamus/directive contrary to the terms of selection/appointment (see

Karnataka State Road Transport Corporation Vs. Ashrafulla Khan

(2002) 2 SCC 560, FCI Vs. Ram Kesh Yadav (2007) 9 SCC 531,

Maharishi Dayanand University Vs. Surjeet Kaur JT 2010 (7) SC 179

and State of West Bengal Vs. Subhas Kumar Chatterjee (2010) 11 SCC

694).

20. As far as the case of the respondent no.1 in appeal who had applied

for OBC Certificate ten days before the cut off date is concerned, we are

unable to find the same at par with Ms. Pushpa. In Ms. Pushpa, the

application for OBC Certificate had been filed much prior to the date of

advertisement. The advertisement in the present case as per the

respondents was published on 30th August, 2007 and the respondent no.1

applied for OBC Certificate barely ten days prior to the cut off date. No

case of the said respondent no.1 being not at fault also is thus made out.

21. We therefore are unable to agree with the order of the learned Single

Judge challenged in appeal and set aside the same. The appeal is

accordingly allowed. Axiomatically, we are in agreement with the order of

the Tribunal challenged in the writ petition and dismiss the writ petition.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE JANUARY 24, 2012 bs