Delhi High Court
Union Of India And Ors. vs Jagdeep on 17 November, 2015
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4551/2015
% Date of Judgment : 17.11.2015
UNION OF INDIA & ORS ..... Petitioner
Through : Mr. Ruchir Mishra, Advocate.
versus
JAGDEEP ..... Respondent
Through : Mr. M. K. Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J. (ORAL)
W. P. (C) 4551/2015
1. Challenge in this writ petition is to the order passed by the Central
Administrative Tribunal on 15.11.2011.
2. With the consent of the learned counsel for the parties, the writ
petition is set down for final hearing and disposal.
3. In the year 2007, an advertisement was released in the Employment
News advertising two posts of „Sanitary Inspector‟ in Safdarjung
Hospital, New Delhi. Amongst the posts advertised, one post was to
be filled by OBC category and other by unreserved (UR) category.
The respondent made an application for the post of Sanitary Inspector
reserved for OBC candidate as he is stated to be belonging to JAT
community, which according to him is OBC and was entitled to
benefit of reservation. The respondent submitted an OBC certificate
which was in the form of certificate to be produced by other backward
classes applying for appointment of posts under the Government of
India. The respondent was selected to the post of Sanitary Inspector
and an offer of appointment vide memorandum no. 4-1/2008-Admn-II
was issued by Safdarjung Hospital to the respondent. Respondent
accepted the offer of appointment. On 19.03.2010, to verify the
certificate of the respondent, a letter was sent to the Executive
Magistrate, Narela, New Delhi and thereafter, a reminder dated
28.06.2010 was also sent but verification report was not received by
the petitioner hospital. However, at that time the OBC certificate in
another same case of OBC category was submitted by one Smt.
Sangeeta, and in respect of her certificate, a verification report being
No. SDM/NI/2010/731 dated 28.06.2010 was received from Sub
Divisional Magistrate (Narela) Delhi with conclusion that OBC
certificate of JAT community of Delhi is not valid for post under the
Government of India. Thereafter, a memorandum dated 09.09.2010
was issued to the respondent to the effect that his OBC certificate of
JAT community Delhi is not valid for posts under Government of
India, therefore, why his services should not be terminated for
providing OBC caste certificate which is not valid for posts under
Government of India. Challenging the aforesaid memorandum dated
09.09.2010, the respondent filed an OA before the Tribunal which
was allowed and which has led to the filing of the present writ
petition.
4. The submission of learned counsel for the petitioners is that the
appointment made in favour of the respondent is bad in law, illegal as
the respondent was not covered in the OBC category of the Central
List.
5. It is also submitted that the respondent was aware of the fact that in
order to seek reservation, he should have been of an OBC community
as per the Central List which is evident upon reading the
advertisement.
6. Mr. Mishra, learned counsel for the petitioner has placed strong
reliance is placed on Clause 9 & 10 of the offer of appointment, which
read as under :
"9. If any document, declaration or information furnished
proves to be false or any material information is
suppressed wilfully, the services will be terminated
without any further notice.
10. The appointment is provisional and is subject to the
caste certificate being verified through the proper
channels. If the verification reveals that the claim of
the candidates to belong to reserved category
(SC/ST/OBC) is false, the services of such candidates
will be terminated forthwith without assigning any
further reasons and without prejudice to such further
action as may be taken under the provisions of the
Indian Penal Code for production of the false
certificate."
7. Learned counsel for the respondent submits that the respondent had
produced the caste certificate and there was no malafide intention on
his behalf. Counsel further submits that the caste certificate is
genuine certificate obtained from the Delhi Government. Counsel
further submits that the petitioners were negligent and overlooked the
lapse, if any, and granted him employment. Counsel submits that the
respondent has worked for a period of more than 8 years and at this
stage if his services are terminated, serious prejudice would be caused
to his rights as he has become over age and he will not be eligible for
any government job. Mr. Bhardwaj submits that the family of the
respondent will also suffer and it would be to the advantage of none
as in these 8 years, the posts cannot now be carried forward. Counsel
submits that the respondent undertakes not to claim any benefit on the
basis of the reservation during the course of his employment with the
petitioners.
8. Counsel for the respondent also submits that in identical
circumstances, the order of the Tribunal was not interfered with by a
Division Bench of this court in the case of Union of India Vs. Smt.
Manju Lochav, W. P. (C) No. 2842/2013 and reliance is also placed
on an order passed by the Supreme Court of India in the case of Iqbal
Khatri & Ors. Vs. Employees State Insurance Corp. & Ors., Civil
Appeal No. 9042/2013. The order reads as under :
"Leave granted.
Heard learned counsel for the parties.
We find from the impugned order that the only reason why the
appellants had been denied appointment is because they belong to the
OBC category (Jat) in the Delhi State List but this community is not
included in the Central List. It is not disputed that the appellants have
been in service for a period of 4-5 years and they have an unblemished
record. It is also not disputed that they did not make a misrepresentation
at any point of time in this regard.
In the circumstances of the case, we consider it appropriate in
the interest of justice to direct to respondents to accommodate the
appellants. We must observe that this order is being passed in the
circumstances of the case as the posts belong to Class IV employees.
We further observe that this shall not act as a precedent. It is made clear
that the appellants shall not be entitled to any back wages for the period
they have not worked but they shall be entitled to all consequential
benefits.
The appeals stand disposed of accordingly."
9. We have heard the learned counsel for the parties.
10. While there is no quarrel to the fact that the respondent cannot be
considered as OBC candidate for the post advertised as the said
community is not an OBC community as per the Central List.
However, we find that the respondent had provided caste certificate of
OBC issued by the State Government which it seems was overlooked
at the time when the form of the respondent was scrutinized and
appointment letter was issued. No doubt, as per Clause 9 & 10 of the
advertisement and offer letter, it was made clear that should it be
detected at later stage that the documents furnished were not in order,
the services of the respondent would be terminated but we are
persuaded by the submissions made by the learned counsel for the
respondent that the respondent has worked for 8 years and has an
unblemished record and also in view of the order passed by the
Supreme Court of India in the case of Iqbal Khatri & Ors. Vs.
Employees State Insurance Corp. & Ors., we may also take into
account that in case the services of the respondent are terminated after
8 years, it would be to the benefit of none as the reserved posts at this
stage cannot be carried forward.
11. Accordingly, we dismiss the writ petition and make it clear that this
order is passed in the facts and circumstances of this case and it would
not be treated as a precedent.
CM APPL. 8256/2015 (Stay)
12. In view of the order passed in the writ petition, the application is also
dismissed.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
NOVEMBER 17, 2015
sc
