$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25.04.2025
+ W.P.(C) 5326/2025
GOVT OF NCT OF DELHI AND ORS .....Petitioners
Through: Mrs. Avnish Ahlawat, Standing
Counsel, GNCTD with Mr.
Nitesh Kumar Singh, Ms.
Laavanya Kaushak, Ms. Aliza
Alam, Mr. Mohnish Sehrawat,
Mr. Amitoj chadha, Advs.
versus
DURGESH KUMAR .....Respondent
Through: Mr. Diparsh Mishra, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (Oral)
1. As Mr. Diparsh Mishra, Adv. enters appearance on behalf of the
respondent, the caveat stands discharged.
CM APPL. 24268/2025 (Exemption)
2. Allowed, subject to all just exemptions.
W.P.(C) 5326/2025 & CM APPL. 24267/2025
3. This petition has been filed by the petitioner, challenging the
Order dated 20.12.2024 passed by the learned Central Administrative
Tribunal, Principal Bench, New Delhi (hereinafter referred to as the
'Tribunal'), in Original Application No. 2425/2024 (O.A.), titled
Durgesh Kumar v. The GNCTD & Ors., allowing the said O.A. filed
by the respondent herein, with the following directions:-
"10. In the light of the above, we are of the
considered opinion that this OA has merit and
deserves to be allowed. The same is
accordingly allowed. We accordingly quash
and set aside the impugned Deficiency Memo
No.DE.3(29)/DRC(EIII)/ TGT(N. Sc.)
Male/Dossier No./2022/2271 dated 04.07.2023
as well as the cancellation/rejection order No.
DE.3 (29)/(17)/DRC/E-III/TGT(N.
Sc.)/Male/2022/4215-19 dated 13.05.2024 and
direct the respondents to verify the
admissibility of the EWS Certificate issued to
the applicant by the competent authority,
within a period of 30 days and hereafter if the
Certificate is found to be admissible as per
rules and regulations on the subject, consider
issuing offer of appointment to the applicant
within a period of 45 days from the date of
receipt of the certified copy of this order. The
applicant would be entitled to all
consequential benefits like fixation of pay,
seniority and promotion on notional basis.
However, there will be no payment of arrears
of pay and allowances on the principles of 'No
work no pay'."
4. As a brief background of the facts in which the present petition
arises, the petitioners, through the Delhi Subordinate Service Selection
Board (DSSSB), issued an advertisement notification no. 2/21 dated
12.05.2021, advertising vacancies for TGT (Male)/(Female) for
various subjects, and Assistant Teacher (Primary). In the
advertisement for the post reserved for EWS/SC/ST/OBC/Non-
Creamy Layer/PWD/Education Experience etc., the condition for the
requisite PWD and other special category certificate was prescribed as
under: -
"6. RESERVATION BENEFITS:
xxxxxx
(ii) Candidates who wish to be considered
against reserved vacancies and/or to seek age
relaxation, must be in possession of relevant
certificates (EWS/SC/ST/OBS/ Non Creamy
Layer/PWD/Educational/Experience etc.)
issued by the competent/notified authority (in
prescribed format) on or before the cut off
date (closing date of advertisement) otherwise
their claim for any category will not be
entertained and their applications will be
considered against Un-reserved (UR) category
vacancies, if eligible otherwise. The candidate
has to select that particular category when
applying online for the Post. No request for
change of Category will he, entertained al any
later stage."
5. The respondent applied for the post of TGT (Natural Science)
Male, and in support of his claim under the EWS category, submitted
a certificate dated 02.02.2021 issued by the Tehsildar (Faridabad),
which reads as under:-
"Certificate No.: EWS/2021/36 Date:
02/02/2021
VALID FOR THE YEAR: 2021-22
This is to certify that Sh. DURGESH KUMAR
son of Shri SUNIL KUMAR permanent
resident of House No-D2/143, Street No-,,
Land Mark-SHIV DURGA VIHAR,
LAKKARPUR NHPC COLONY,Pincode-
121010, Town FARIDABAD, Post Office
FARIDABAD, District FARIDABAD in the
State HARYANA Pin Code 121010 whose
photograph is attested below belongs to
Economically Weaker Sections, since the gross
annual income of his/her "Family** is below
Rs. 8 lakh (Rupees Eight Lakh only) for the
financial year 2020- 21. His/Her family does
not own or possess any of the following
assets**
I. 5 acres of agricultural land and above.
II. Residential flat of 1000 sq. ft. and above.
III. Residential plot of 100 sq. yards and above
in notified municipalities.
IV. Residential plot of 200 sq. yards and above
in areas other than the notified municipalities
2. Shri DURGESH KUMAR belongs to the
'BRAHMAN' caste which is not recognized as
a Scheduled Caste, Schedule Tribes and Other
Backward Classes (Central List). "
6. The candidature of the respondent, however, was rejected by
way of a Deficiency Memo dated 04.07.2023, which reads as under:-
"DE 3(29)/DRC(E-III) TGT/(N.Sc.) -
Male/Dossier No. /2022/2271
DEFICIENCY MEMO
During the course of scrutiny of
documents available in e-dossiers, in respect t
of Mr. Durgesh Kumar (Roll No:
1125035000482) for the post of TGT (Natural
Science) _ Male (Post Code 35/21), following
deficiency/ deficiencies have been noticed and
accordingly your candidature has been kept
pending for want of deficient/requisite
documents:-
1. EWS Certificate should be issued
between 01/04/20211 to 04/07/2021 instead of
02.02.2021 for the Financial year 2021-22.
You are therefore directed to submit you
clarification in person along with
deficient/requisite documents as mentioned
above to Direct Recruitment Cell (E-III), Next
Building from MP hall, Lancer Road, Behind
Vishwavidyalaya Metro Station, Delhi-
110054 latest by 11/07/2023, failing which
your candidature may be cancelled as per
prescribed RRs/Guidelines."
7. The learned Tribunal, however, has set aside the rejection order
by placing reliance on the judgment of this Court in All India Institute
of Medical Sciences (AIIMS) v. Kiran Grover, 2024 SCC OnLine
Del 5044. Aggrieved thereby, the petitioners have filed the present
petition.
8. The learned counsel for the petitioner reiterates that as the EWS
certificate had been issued on 02.02.2021, it cannot relate to the
financial year 2021-22 and, therefore, was not a valid certificate.
9. On the other hand, the learned counsel for the respondent, who
appears on advance notice of this petition, submits that the same issue
has been considered by this Court in its judgment of Kiran Grover
(supra), and the submission similar to the one raised by the petitioners
herein, has been rejected.
10. He further submits that the State of Haryana has issued a
clarification dated 22.05.2024, certifying that even though the EWS
certificate(s) have been issued prior to the completion of the financial
year, it relates to the full financial year. The clarification given by the
State of Haryana so far as it is relevant, is reproduced hereinunder:-
"2 Government of Haryana wishes to express
its deep concern about the withdrawal of
appointment fetters in many cases and the
prospects thereof in some cases still under
consideration of Directorate of Education of
Delhi Government, of meritorious youth of
Haryana, The Government of Haryana after
meticulous consideration of the issues clarifies
that the candidature of the candidates cannot
be cancelled merely on any one or more of the
grounds stated above because of the following
reason :-
(i) The EWS certificates in Haryana are
issued keeping in view the average fixed
income and assets for the complete
financial year, immediately upon an
application being made to the competent
authority, no matter what the date of
application whether or not before
completion of the financial year Therefore,
the EWS certificates issued before the
completion of the financial year 2020-21,
i.e. during the period between 1st January
and Stat March 2021, submitted by the
candidates who are covered under 1 (i)
above should be treated valid for the year
2021-22.
(ii) Regarding acceptance of EWS
Certificate issued by the Naib Tehsildar
instead of Tehsildar submitted by the
applicants/candidates of Haryana it is
clarified that-
(a) Haryana Government in the Schedule
to Right to Service Act, 2014 has
authorized both Tehsildar and Naib-
Tehsildar to issue EWS Certificates to
the persons residing in Haryana.
(b) In another case of similar nature, it
has already been clarified by Haryana
Government vide letter No. 22/227/2023-
JHR-III, dated 7th December 2023 (Copy
enclosed) addressed to UPSC/DoPT that
State Government has decided to treat
the EWS certificates issued by the
NaibTehsildar as true and genuine. In
fact, such EWS certificates issued by the
Naib Tehsildar have also been accepted
by UPSC/DOPT.
(c)In CWP 8502 of 2017 (O&M) it has
been held by the Hon 'ble Punjab and
Haryana High Court that " ... The power
and duties of Tehsildar and Naib
Tehsildar are of similar nature. The
Tehsildars and Naib Tehsildars have
powers of Executive Magistrate to
maintain law and order. Their powers
and functions include Maintenance and
Updating Revenue Record, Registration
of documents and recovery of
Government dues.
Therefore, experience/service rendered as
Naib Tehsildar and Tehsildars is similar."
Therefore, EWS certificates issued by Naib
Tehsildar for candidates of Haryana referred
to at 1(ii) above should be treated as valid.
(iii)Regarding applicants/candidates who
are covered under 1(iii) above, it is
informed that Haryana Government
launched income certificates generation via
the portal https://saralharyana.gov.in
during the year 2021-22 to issue online
certificates of all kinds including Caste
Certificates/Income Certificates/EWS
Certificates etc. which were previously
being issued by different relevant
Departments of Haryana Government. It is
also clarified here that in the previous
system it would have been possible for a
candidate to obtain two different EWS
Certificates verifying the income at two
different levels by approaching the relevant
Department with two different sets of
affidavits at two different dates. With the
launch of the said portal this possibility has
been completely pre-empted. There is a
unique Family ID for every family and the
verified annual income of every family for
every year is available in the State level
database. The moment a candidate applies
for EWS Certificate on the SARAL portal, it
fetches the income and caste data from the
said database. There is no scope for the
competent authority (Tehsildar or
NailbTehsildar etc.) to make any change to
the verified income of the previous year.
Therefore, in this system, the candidate may
generate his certificate in any of the
months. Many candidates who submitted
the EWS certificate issued after the last
date of submission of application might not
have been aware of the newly launched
portal by Haryana Government and
consequently, they may not have been able
to generate their own EWS Certificate in
time. It is, therefore, requested that the
EWS Certificate generated after the last
date for the candidates referred to at 1 (iii)
above may also be accepted because they
truly capture the actual verified income for
the previous year. It is further added that
no cut-off date need be fixed for the purpose
of Caste Certificate of candidates of
reserved category because caste stays the
same at all times. Similarly, the verified
family income of the candidates residing in
Haryana is available in the database on an
annual basis at all times and remains
unchanged for a particular period in the
financial year. Therefore, the mere fact of
submission of EWS Certificate which was
issued after the cut off date cannot legally
be treated as valid ground for cancellation
of candidature.
3. In view of the above, you are requested to
consider the EWS Income and Asset
Certificates issued by the Competent Authority
during the period between 1st January and 31st
March 2021, before or after the last date as
valid and allow the respective candidates to
continue/join back their duties. It is also
requested that a similar decision may also be
taken for all other selected candidates of
Haryana having similar EWS Certificates,
where cases for cancellation of
candidature/withdrawal of appointment letter
are in pipeline in Directorate of Education or
any other department of Delhi Government on
any of the grounds mentioned in para 1 above.
If required, Government of Haryana can
depute the Director General, Human
Resources, Haryana to meet with the Director
of Education or any other authority to work
out the details of all the candidates of Haryana
whose appointment may be in process of
cancellation and provide any further detailed
justification for each case wherever felt
necessary by him."
(emphasis supplied)
11. We have considered the submissions made by the learned
counsels for the parties.
12. In the present case, we note that the advertisement merely stated
that the candidate has to produce the relevant certificate issued by the
competent/notified authority, in the prescribed format, on or before the
cut-off date (closing date of the advertisement). It was not mentioned
that the certificate must be issued between two given dates. The
respondent, in the present case, has produced before the petitioners a
certificate dated 02.02.2021 issued by Tehsildar, Faridabad. There is
no dispute that the said authority is duly recognized by the petitioners
as the competent authority to issue a certificate. The certificate is
stated to be valid for the year 2021-22 and certifies that the income of
the family of the respondent for the financial year 2020-21 meets the
given criteria for the EWS category.
13. As the petitioners were rejecting the candidature of persons who
had given similar certificates, which were issued prior to 01.04.221,
the State of Haryana issued a clarification dated 22.05.2024, which we
have reproduced hereinabove and which clarifies that a certificate,
though issued prior to the completion of the financial year, should be
treated as being valid as it is issued keeping in view the average fixed
income and assets for the complete financial year. Taking note of the
said clarification, this Court in Kiran Grover (supra) rejected a similar
plea similar to the one raised by the petitioners herein, and observed as
under:-
"16. Upon hearing and perusal of material
placed before us, this Court finds that it is not
in dispute that the respondent was in
possession of a valid EWS Certificate on
15.01.2021 In a specified format. However, it
appears that the said certificate issued on
15.01.2021, has been construed by the
petitioner authorities as having been issued
w.e.f. 01.04.2022 and the petitioner in denying
and refusing the said certificate have said that
it cannot be in piecemeal and cannot have
been issued in the middle of the year. What the
learned counsel for the petitioner would
contend is that the complete financial year
should have been taken into consideration
while issuing the EWS Certificate. It is also
seen that there is a serious contradiction In the
impugned order dated 31.10.2022 Itself,
wherein in the first para it has been stated that
a valid EWS certificate must be issued between
the period of 01.04.2021 and 31.03.2022 as
per the advertisement but in the later
paragraph it has been contended that the EWS
certificate must be issued during the period
from 01.04.2020 to 18.08.2020.
17. It is worth to be noted that the that the
petitioner had neither gone into nor had
carefully examined both the certificates issued
by the competent authority; the first EWS
certificate dated 15.01.2021 and the further
clarification issued by the same authority
dated 02.05.2022; which explicitly states that
the said certificate is valid from 01.04.2021 to
31.03.2022 (Year 2021-2022), i.e. the relevant
financial year according to the certificate.
Both the certificates are to be read in
conjunction with each other. It would have
been incumbent on the petitioner-authority
before cancelling the candidature of the
respondent to properly ascertain whether the
said certificate is valid."
14. In the peculiar facts of the present case, where the
advertisement itself does not state that the certificate must be issued
post 01.04.2021 and the State of Haryana has clarified that though the
certificate is issued prior to 01.04.2021 but relates to the entire
financial year of 2021-22, we find no infirmity in the Impugned Order
passed by the learned Tribunal and its ultimate direction.
15. Accordingly, we find no merit in the present petition. The same
is dismissed. The pending application also stands disposed of.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
APRIL 25, 2025
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