Delhi High Court
Union Of India Through Its Under ... vs Sarthak Singh & Anr. on 21 October, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Sudhir Kumar Jain
$~96
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14557/2024 and CAV 517/2024, CM APPL. 61071-
72/2024
UNION OF INDIA THROUGH ITS
UNDER SECRETARY .....Petitioner
Through: Mr. Apoorv Kurup, CGSC with
Mr. Arnav Mittal, GP, Mr. Shaurya
Agarwal, Ms. Nidhi Mittal, Advocates
versus
SARTHAK SINGH & ANR. ....Respondents
Through: Mr. Vikram Hegde and Mr.
Abhinav Hansaraman, Advocate
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT (ORAL)
% 21.10.2024
C. HARI SHANKAR, J.
1. Respondent 1 was the applicant before the learned Central
Administrative Tribunal1 in OA 2554/20232. He applied for appearing
in the Central Civil Services (Preliminary) Examination 20223, for
which he declared himself to be a candidate belonging to the Other
Backward Classes4 belonging to the Non-Creamy Layer5. He also
attached with the application form, a certificate certifying that he was
"the Tribunal", hereinafter
2 "Sarthak Singh v UOI & Ors"
3 "the CSE 2022" hereinafter
4 OBC
5 "NCL", hereinafter
W.P.(C) 14557/2024
an OBC (NCL) candidate. He cleared the Preliminary Examination
and applied for appearing in the Central Civil Services (Main)
Examination 2022, in which he was ranked 584th. His name was
recommended by the Union Public Service Commission6 for
appointment as an OBC category candidate.
2. Despite this, as no service was allocated to Respondent 1, he
addressed an email to the petitioner on 23 July 2023 querying as to
why he had not been allotted any service, but no response was
received to the representation till the date Respondent 1 approached
the learned Tribunal. The petitioner thereafter rejected the
representation of the Respondent 1 by a communication dated 23
October 2023. The communication, however, did not provide any
reasons for rejection.
3. In these circumstances, Respondent 1 approached the learned
Tribunal by way of OA 2554/2023, seeking a direction to the
petitioner to consider him as an OBC (NCL) category candidate in
respect of the CSE 2022 and to allocate him an appropriate service.
4. The learned Tribunal has, by the impugned order dated 19
March 2024, allowed the OA. Aggrieved thereby, the Union of India
has approached this Court by means of the present writ petition.
5. The learned Tribunal has held the issue to be covered against
the petitioner by the judgment of a Division Bench of this Court in
6 "UPSC", hereinafter
W.P.(C) 14557/2024
UOI v Divyanshu Patel7.
6. Though, in the synopsis filed with the writ petition, a somewhat
surprising stand has been adopted by the petitioner that the judgment
in Divyanshu Patel is to be treated as having been rendered in
personam, such a stand, thankfully, has not been raised before this
Court by Mr. Kurup, learned counsel for the petitioner, obviously
owing to his experience at the Bar. Suffice it to state, however, in
order to avoid any such submission in other cases, that it is not open to
any executive authority to suo motu treat a judgment of a Court as
having been rendered in personam unless the judgment itself say so.
Rather the Supreme Court has in State of UP v Arvind Kumar
Srivastava8, Inderpal Yadav v UOI9, repeatedly held that the
executive should ensure that the benefit of judgments which are
rendered by the Court is extended to other persons similarly situated
without requiring every such person to approach the Court.
7. A limited exception has been carved out in Arvind Kumar
Srivastava's case only in the case of fence sitters who come to Court
after years of delay, awaiting the outcome of other proceedings.
8. Having perused the facts of the present case vis-à-vis the facts
in Divyanshu Patel, we are entirely in agreement with the learned
Tribunal that the issue in controversy is fully covered on facts and law
by the decision in Divyanshu Patel. Apparently, Divyanshu Patel was
7 2018 SCC Online Del 13288
8 (2015) 1 SCC 347
9 (1985) 2 SCC 648
W.P.(C) 14557/2024
never carried in appeal and has attained finality.
9. Adverting, now, to the facts of the case before us, Respondent 1
is the son of Rajbir Singh Yadav, who was appointed as Lecturer
(Non-Gazetted) Class III in the Haryana Education Service. On 30
March 2009, at the age of 43 years, Rajbir Singh Yadav was appointed
as Principal against an OBC vacancy in the Government Senior
Secondary School under the Directorate of Education, Govt of NCT of
Delhi on temporary basis. The post of the Principal is admittedly a
Class I post. Rajbir Singh Yadav was promoted as Deputy Director of
Education on 1 August 2022 at the age of 56 years.
10. The principles regarding identification of creamy layer
candidates among OBCs are generally contained in the Notification
dated 8 September 1993 followed by a clarification dated 14 October
2004 issued by the Department of Personnel and Training10. The
Division Bench of this Court has examined these two instructions in
considerable detail in its decision in Divyanshu Patel, paras 7 to 11,
19 to 24 and 27 to 29 of which may be reproduced thus:
"7. Relevant extract of the notification dated 08.09.1993 reads
as follows:
"2. Consequent to the consideration of the Expert
Committee's recommendations this Department's Office
Memorandum No. 36012/31/90-Estt. (SCT), dated 13.8.90
referred to in para (1) above is hereby modified to provide
as follows:
(a) 27% (twenty seven percent) of the
vacancies in civil posts and services under the
10 "DOPT", hereinafter
W.P.(C) 14557/2024
Government of India, to be filed through direct
recruitment, shall be reserved for the Other
Backward Classes. Detailed instructions relating to
the procedure to be followed for enforcing
reservation will be issued separately.......
"(c)(i) The aforesaid reservation shall not
apply to persons/sections mentioned in column 3 of
the Schedule to this office memorandum. (See: The
Schedule, in so far as it is relevant reads as
follows)"
*****
"II. SERVICE CATEGORY
A. Group A/Class 1 officers of the All India Central
and State Services (Direct Recruits)
Son(s) and daughter(s) of
(a) parents, both of whom are Class I officer;
(b) parents, either of whom is a Class I
officer;....."
B. Group B/Class II officers of the Central And State
Services (Direct Recruits)
Son(s) and daughter(s) of
(a) parents, both of whom are class II officers
(b) parents of whom only the husband is a class
II officer and he gets into Class I at the age of 40
or earlier."
8. Relevant extract from the Clarification dated 14.10.2004
reads as follows:
"Following questions have been raised from time to time
about the application of the above provisions to determine
creamy layer:"
"(v) Will the sons and daughters of parents of
whom husband is directly recruited Class III/Group
C or Class IV/Group D employee and he gets into
Class I/Group A at the age of 40 or earlier be treated
to be falling in creamy layer?
W.P.(C) 14557/2024
.....................
"In regard to clause (v) of para 4, it is clarified that
the sons and daughters of parents of whom only the
husband is a directly recruited Class II/Group B
officer who gets into Class I/Group at the age of 40
or earlier are treated to be in creamy layer. If the
father is directly recruited Class III/Group C or
Class IV/Group D employee and he gets into Class
I/Group A at the age of 40 or earlier, his sons and
daughters shall not be treated to be falling in creamy
layer"
9. The relevant facts for examination of the said aspect may
now be noticed. The respondent's father was appointed as a Post
Office Clerk in Central Government at the age of 23 years and,
subsequently, he was directly recruited as a Lecturer, which is a
Group "A" post in Maharani Lal Kunwari Post Graduate College,
Balrampur under State Government of Uttar Pradesh at the age of
43 years.
10. The petitioner claimed that the case of the respondent fell
under Entry II of the Schedule to the O.M. dated 08.09.1993, and
in particular under Clause (A) thereof as extracted above.
11. On the other hand, the respondent claimed that he was not
covered by the "Creamy Layer", since his father was a Group 'C'
Government servant, and only at the age of 43 years, he got into
Group 'A'/Class I service. The respondent sought to place reliance
on the Entry II (B), which relates to Group 'B'/Class II Officers of
the Central and State Services (Direct Recruitment) and in
particular Entry (b) thereof as extracted above.
*****
19. The only question which arises for determination is if the
respondent falls under the "Creamy Layer" of OBC. Thus, the
issue that arises is whether the case of the respondent is covered by
sub-category "A" of the "II Service Category", or sub-category
"B" of the "II Service Category". The argument of Mr. Mishra is
very simplistic. The submission is that one has to only see whether,
on the relevant date, a parent of the candidate is a Direct Recruit
Class I Officer. If the parent is a Direct Recruit Class I Officer, the
son or daughter would fall within the "Creamy Layer" by reference
to clause (b) of sub-category "A".
20. In conjunction with this submission, Mr. Mishra has
submitted that clause (b) of sub-category "B" of the "II Service
W.P.(C) 14557/2024
Category" of the Schedule, relates to those cases where the Class II
Officer gets into Class I Service at the age of 40 years, or earlier,
through promotion or by any other mode, except by Direct
Recruitment. Thus, the submission is that once the parent of the
concerned candidate gets into Class I/Group A Service of All India
Central or State Services by Direct Recruitment, it does not matter
whether he has got into the said service under the age of 40 years
or above the age of 40 years and, in either case, his sons and
daughters would not be entitled to reservation since they would be
covered by "Creamy Layer".
21. Mr. Mishra has laid much emphasis on the use of the words
"(Direct Recruits)" in sub-category "A" of the "II Service
Category" of the Schedule. According to him, the sub-category
"A" would not be attracted in respect of wards of Group A/Class I
Officers who reached the said position through promotion, or any
other mode, other than Direct Recruitment.
22. On the other hand, the submission of the respondent is that
clause (b) of sub-category "B" under the "II Service Category" of
the Schedule shows that the ward of a Class I Officer, who gets
into Class I Service after the age of 40 years, would not fall within
the "Creamy Layer". Reliance is placed on the observations made
by the tribunal, which sets out the rational for excluding the wards
of such officers from the "Creamy Layer".
23. Clause(b) of the sub-category "B" uses the
expression "Parents of whom only the husband is a Class II Officer
and he gets into Class I at the age of 40 or earlier". The use of the
expression "gets into Class I", in our view, is very general and
cannot be restricted to cover cases only of promotion, or to exclude
cases of Direct Recruitment. A Class II Officer could get into a
Class I Service either through promotion, or through absorption on
deputation, or through transfer on deputation, or even through
Direct Recruitment. The spirit behind prescription of the age limit
of 40 years, or earlier, in clause (b) of sub-category B of "Category
II Service Category" of the Schedule, is what the tribunal has taken
note of and we entirely agree with it. The ward of an officer who
gets into Class I Service, from a Class II Service at the age of 40
years or earlier, would enjoy the status, pay and environment (both
social and academic) of a Class I Officer from a relatively young
age, since, by the time an officer is 40 years, the children of such
an officer would still be fairly young and of impressionable age.
The backwardness attached to the caste to which the family of the
officer/his wards belong, would be overcome on account of the
parent of such a child enjoying the status and pay of a Class
I/Group A Officer when the ward was relatively small. However,
the situation would be different if such Class II/Group B Officer
W.P.(C) 14557/2024
were to get into Group A/Class I Service after the age of 40 years
since, by then, his or her children would, normally, have grown up
a little more beyond the impressionable age, without the parent of
the child enjoying the status and pay attached to a Class I/Group A
post.
24. The well settled rule of interpretation is that if there are two
or more entries which may cover a situation, they have to be
harmoniously construed and the one which is most appropriate -
keeping in view the object, with which the entries are framed,
should be preferred.
*****
27. Viewed in the aforesaid light, we find that sub-category
"A" under "II Service Category" is a general sub-category of
Group A/Class I Officers of All India Central and State Services
(Direct Recruits), whereas the category of officers covered by
clause (b) of sub-category "B" of the "II Services Category" is a
more specific category in respect of those Class I Officers, who
were earlier Class II Officers and got into Class I service after the
age of 40 years. Thus, even if the respondent's father was a Class II
Officer before getting into Class I service, he would be covered by
clause (b) of sub-category B of the Services Category of the
Schedule, and not by sub-category A of the Services Category. In
the present case, the Respondent's father was not even a Class II
Officer. He was a Class III Officer and, thus, in any event, even
Clause (b) of Sub-Category 'B' is not strictly attracted.
28. The position stands clarified by para 7 of the clarification
dated 14.10.2004 and leaves no room for doubt. It specifically
deals with a situation like the present - where the father of the
candidate is directly recruited Class III or Group 'C' employee, and
he gets into Class I/Group A at the age of 40 years or earlier, even
then his sons and daughters are not to be treated as falling in the
"Creamy Layer".
29. The decision in Tanu Kashyap11 is also attracted in the
facts of the present case. We reject the submission of the petitioner
that all cases of Direct Recruitment into Class I/Group 'A' service
are covered by sub-category 'A' of the "II Services Category". On
a harmonious reading of sub-categories 'A' & 'B' of the "Services
Category", what emerges is that if the direct recruitment in Class
I/Group A Services has taken place before the age of 40 years, the
case would fall under sub-category 'A', else under sub-category
'B'."
11 Tanu Kashyap v DOPT, 2006 SCC OnLine CAT 293
W.P.(C) 14557/2024
11. The learned Tribunal has held that the above findings apply
mutatis mutandis to the case at hand in as much as this Court has held
in Divyanshu Patel, applying the generalis specialibus non derogant12
principle that Category B in the Notification dated 8 September 1993
must be treated as a special category, as opposed to Category A,
which is a General Category. As such, if the candidate or her parents
fall within Category B, Category A would not apply. In other words, if
one of the parents of the candidate (reading the Notification in a
gender neutral fashion) is a Class II officer, who enters Class I at or
before the age of 40, the child of such candidate would not be entitled
to be treated as OBC (NCL) Category candidate whereas if the parent
enters Class I after the age of 40, the child would be entitled to OBC
(NCL) benefits.
12. Applying this principle, the Division Bench has held that, as, in
the case before it - as in the present case before this Court - the father
of the candidate, Divyanshu Patel, had been appointed as a Post Office
clerk at the age of 23 years and was directly recruited as a Lecturer,
which was a Group A post at the age of 43 years, he would be entitled
to be treated as a OBC (NCL) category candidate. This Court has
rejected the contention of the UOI that Category A in the Notification
dated 8 September 1993 would apply. In arriving at this conclusion,
the Court has relied on the subsequent clarification of the DOPT dated
14 October 2004.
13. These facts apply mutatis mutandis to the case at hand. In the
12 Things general do not derogate from things special
W.P.(C) 14557/2024
present case, too, the father of the respondent, Rajbir Singh Yadav,
was earlier in Group C and entered Group A, at the age of 43 years
when he was made the Principal. As such, the petitioner qualifies as a
son of the parents of whom one of them was a Class III officer who
entered into Class I above the age of 40 years. He, therefore, is
entitled to be treated as an OBC (NCL) category candidate.
14. Mr. Apoorv Kurup, learned Counsel for the petitioner, has made
a valiant attempt to distinguish the decision in Divyanshu Patel. He
emphasizes, in this context, the reasoning of the Division Bench, as
contained in para 23 of the judgment extracted supra.
15. He submits that, unlike the situation which obtained in
Divyanshu Patel, where the respondent Divyanshu Patel had
completed the majority of his education when his father was yet not a
Class I officer, nearly the entire education of the present Respondent 1
has been completed after his father became a Class I officer. As such,
Mr. Kurup's submission is that, while Divyanshu Patel did not reap
any benefit of the Class I status of his father, the present petitioner has
actually reaped the benefit of the Class I status which his father, Rajbir
Singh Yadav, held.
16. Applying the philosophy which guides the decision in
Divyanshu Patel, Mr. Kurup's contention is that Respondent 1 cannot
be treated at par with Divyanshu Patel.
17. We are unable to accept this argument for the simple reason
W.P.(C) 14557/2024
that, if we would, we would be reading into the notification dated 8
September 1993, an exception which would depend on whether the
child undergoes the majority of his education after the parent has
entered Class I or before the parent has entered Class I. This is a
consideration which finds no place in the notification dated 8
September 1993. Indeed, it has figured for the first time in the
arguments raised by Mr. Kurup at the Bar today and is not even the
ground on which the Respondent 1's entitlement to be treated as an
OBC (NCL) candidate was contested by the petitioner before the
learned Tribunal.
18. For the aforesaid reasons, we are of the opinion that learned
Tribunal has correctly held the facts of the present case to be fully
covered by the decision of the Division Bench of this Court in
Divyanshu Patel. We see no reason to take a different view.
19. Accordingly, this writ petition is dismissed in limine.
C.HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
OCTOBER 21, 2024/yg
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W.P.(C) 14557/2024
