Delhi High Court

Kaushalendra Kumar vs Delhi Subordinate Services ... on 8 March, 2013

Author: V. K. Jain

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on   : 05.03.2013
                              Judgment pronounced on : 08.03.2013


+      LPA No. 686/2012 & CM No. 17645/2012


       KAUSHALENDRA KUMAR                                 ..... Appellant
                        Through:    Mr Subrat Deb, Adv.


                   Versus

       DELHI SUBORDINATE SERVICES SELECTION BOARD
                                               .... Respondent
                    Through: Ms Mirza Amir Baig for
                             Mr Anjum Javed, Adv.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The appellant before us belongs to Ahir Community, which is

stated to have been recognized as a backward class, vide Government of

NCT of Delhi Notification dated 20.01.1995. He also claims to be a

visually handicapped person. In February, 2008, Directorate of

Education, Government of NCT of Delhi, invited applications for

appointment of teachers in Delhi. As regards OBC candidates, the

requirement stipulated in the said advertisement was that they should

obtain OBC Certificate, issued by Government of NCT of Delhi. The

appellant applied in response to the aforesaid advertisement and appeared

in the written examinations held on 08.06.2008. The result of the first

examination, which was an objective type examination, was declared in

August, 2008, wherein the appellant was short-listed along with 12 other

candidates and his name appeared in the category of OBC candidates.

The result of the second and final examination, which was descriptive in

nature, was published on 01.01.2009 and the appellant passed that

examination as well. Following result of the second and final

examination, the appellant submitted documents on 05.01.2009, which

included OBC certificate, issued by Deputy Collector, Mogaon.

However, no appointment letter was issued to the appellant. He,

thereupon, filed WP(C) No. 9548/2009 before this Court on 01.06.2009,

seeking a direction to the respondents to issue appointment letter to him.

In the meanwhile, the appellant also obtained an OBC certificate from the

office of Deputy Commissioner (East District), Delhi. The writ petition

was contested, inter alia, on the ground that the appellant had not

obtained OBC certificate from the Competent Authority in Delhi. The

writ petition filed by the appellant having been dismissed, he is before us

by way of this appeal.

2. It is contended by the learned counsel for the appellant that since

the appellant belongs to Ahir Community, which has been declared a

backward class not only in the State from which the Certificate dated

01.06.2006 was issued to him, but also in NCT of Delhi, he should have

been considered and appointed against one of the posts, reserved for OBC

candidates. He also submitted that in any case the appellant having been

obtained OBC certificate, issued by Government of NCT of Delhi on

05.06.2009, the respondents should now appoint him against such a post.

3. It is an admitted position that the advertisement, issued by

Directorate of Education, inviting applications for appointment of

teachers contained an express stipulation that the candidates, applying

under OBC category, should submit OBC Certificate, issued by

Government of NCT of Delhi. Admittedly, the aforesaid advertisement

was not challenged by the appellant on any ground whatsoever, including

that the said Directorate could not have insisted upon submission of OBC

certificate issued from Delhi and he participated in the recruitment

process, on the basis of the terms contained in the advertisement,

including the term requiring submission of OBC certificate, issued from

Delhi. It is by now settled proposition of law that a candidate who

participates in a selection process on the basis of the terms and conditions

stipulated in the advertisement inviting applications or the Recruitment

Rules applicable to the advertised post cannot later challenge the terms

and conditions, stipulated in the advertisement or the Recruitment Rules,

prevailing at the time applications were invited. This issue has been

examined by Supreme Court in a number of cases and there has been no

change in the view taken by the Apex Court in this regard.

4. In Dr. G. Sarana v. University of Lucknow and Ors. (1976) 3

SCC 585, Supreme Court declared that the candidate who participated in

the selection process cannot challenge the validity of the said selection

process after appearing in the said selection process and taking

opportunity of being selected.

In Union of India and Ors. v. S. Vinodh Kumar and Ors. (2007) 8

SCC 100, Supreme Court, inter alia, held that it is also well settled that

those candidates who had taken part in the selection process knowing

fully well the procedure laid down therein were not entitled to question

the same.

In K.H. Siraj v. High Court of Kerala and Ors. (2006) 6 SCC 395,

it was held that candidates who participated in the interview with

knowledge that for selection they had to secure prescribed minimum

marks, on being unsuccessful in interview, could not turn around and

challenge that the said provision of minimum marks was improper, and

such challenge is liable to be dismissed on the ground of estoppel.

In Vijendra Kumar Verma v. Public Service Commission,

Uttarakhand and Ors. (2011) 1 SCC 150, the Commission invited

applications for appointment of Uttaranchal Judicial Service. Rule 8 of

Uttaranchal Judicial Service Rules, 2005 required that a candidate for

recruitment to the said service must inter alia possess basic knowledge of

computer education. The appellant before Supreme Court submitted his

application for one of the above said posts. He appeared in the

preliminary examination and was declared successful. Thereafter, he was

called for vive voce examination and his basic knowledge in computer

operation was tested, at the time of his interview by an expert sitting with

the members of the Interview Committee. He opined that the appellant

did not possess the basic knowledge of computer operations.

Accordingly, the appellant was not selected. The appellant challenged his

non-selection inter alia on the ground that no syllabus having been

prescribed for judging and ascertaining the basic knowledge of candidates

in computer education either before the selection process was initiated or

even at the time when advertisement was issued, such a syllabus could

not have been introduced by the respondents in the midstream of such

selection process. Rejecting the contention, Supreme Court noted that in

the Notification declaring the result of written examination, it was

notified to the candidates that their basic knowledge of computer would

be tested at the time of interview for which knowledge of Microsoft

Operating System and Microsoft Office operation would be essential. The

aforesaid criteria was also reiterated in the call letter, issued to him and

having known the said criteria, the appellant had appeared in the

interview, faced the questions from the expert of computer application

and had taken a chance and opportunity therein without any protest at any

stage and therefore, now he cannot turn back to state that the aforesaid

procedure adopted was wrong and without jurisdiction.

5. Applying the proposition of law enunciated by Supreme Court in

the above-referred cases, the appellant having participated in the

recruitment process on the condition that a candidate will have to produce

an OBC Certificate, issued from NCT of Delhi, he cannot now say that

the respondent could not have insisted upon production of such a

certificate and should have accepted the certificate, issued by Deputy

Collector, Mogaon. It is true that the appellant obtained OBC certificate,

issued by Government of NCT of Delhi on 05.06.2009, but that would

make no difference since the said certificate was required to be submitted

by the appellant along with the application form and admittedly, he did

not even possess the certificate issued from Delhi at that time.

6. Though the failure of the appellant to submit an OBC certificate,

issued from Delhi, is sufficient to dispose of this appeal, we would like to

note here that a person, who obtains OBC Certificate from outside Delhi,

is otherwise not eligible to be considered for appointment of a post in

Delhi Government, on the strength of such a certificate. This issue came

to be considered by Supreme Court in M.C.D. vs. Veena & Ors. (2001) 6

SCC 571. In that case, a candidate, belonging to backward class in a

State other than Delhi, had applied for appointment to the post of primary

and nursery teacher in Municipal Corporation of Delhi in NCT of Delhi.

One question which arose for consideration was as to whether OBC

candidates of the States, other than Delhi, could be treated as OBCs in

Delhi and could be extended benefits thereto in Delhi and the following

view was taken by the Apex Court:-

"Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging t o an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the consideration on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the date for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

In taking the aforesaid view, the Apex Court also took into

consideration the model Forms of Certificate to be issued by the

candidates, seeking benefit of reservation in NCT of Delhi and the Court

was of the view that careful reading of this notification would indicate

that the OBCs would be recognised as such in the Government of

National Capital Territory of Delhi as notified in the Notification dated

20.01.1995 and further for the purpose of verification of claims for

belonging to castes/communities in Delhi as per the list notified by the

National Capital Territory of Delhi the certificates will have to be issued

only by the specified authorities and certificates issues by any other

authority could not be accepted.

7. This issue also came to be considered by a Full Bench of this Court

in WP(C) No. 8368/2010 and other connected matters, decided on

12.09.2011. The petitioners in the aforesaid petitions had applied for the

post of Lower Division Clerk, advertised by District Judge, Delhi. The

petitioner in WP(C) No. 8368/2010 had furnished a certificate issued by

some Authority in Chandigarh. It was held by the Full Bench that the

petitioner Veena Yadav was born and educated outside Delhi and,

therefore, could not claim benefit of reservation as an OBC candidate.

Relying upon Veena and Ors. (supra), the Court, inter alia, held as

under-

"57. It is also clear that in the case of OBCs, the considerations which weigh with the executive government in issuing notifications are different than in the case of the Scheduled Castes and Tribes. The power to issue Notifications is not rigidly conditioned as in the case of Articles 341 and 342; Parliament also does not have exclusive jurisdiction. The degree of backwardness in the case of OBCs is of an entirely different kind than in the case of Scheduled Castes and Tribes. In view of the above discussion, this Court is of the opinion that the above three writ petitions W.P.(C) 816/2011, 1713/2011 and 8368/2010 have to fail."