* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 4th July, 2011
% Judgment Pronounced on: 25th July, 2011
+ WP(C) No.610/ 2011
DSSSB & ANR. ..... Petitioners
Through: Ms. Zubeda Begum, Ms. Sana
Ansari, Advocates
Versus
MUKESH KUMAR & ORS. ....Respondents
Through: Mr. Aruneshwar Gupta,
Mr.Manish Raghav, Mr. Nikhil
Singh, Advs. for Respondent Nos.
1 to 19
Mr. Nawal Kishore Jha, Adv. for
Respondent No.20/ MCD
+ WP(C) No. 1595/ 2011
DSSSB & ANR. ..... Petitioners
Through: Ms. Zubeda Begum, Ms. Sana
Ansari, Advocates
Versus
KAPIL KUMAR & ORS. ....Respondents
Through: Dr. K.S. Chauhan, Mr. Tej Singh
Varun, Mr.Ajit Kumar Ekka,
Mr.Kartar Singh, Advs.
+ WP(C) No.1596/ 2011
DSSSB & ANR. ..... Petitioners
Through: Ms. Zubeda Begum, Ms. Sana
Ansari, Advocates
WP(C) No. 610/2011 & connected cases Page 1 of 10
Versus
MS. SAROJ & ORS. ....Respondents
Through: Dr. K.S. Chauhan, Mr. Tej Singh
Varun, Mr.Ajit Kumar Ekka,
Mr.Kartar Singh, Advs. for
Respondent Nos. 1 and 2
Mr. Nawal Kishore Jha, Adv. for
R-3/ MCD
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the YES
judgment?
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
In the year 2008, as per requisition of Municipal Corporation of
Delhi (MCD), the Delhi Subordinate Services Selection Board
(hereinafter referred to as „the Board‟) issued an Advertisement No.
02/2008 for filling up posts of Assistant Teacher/Teacher (Primary) in
MCD under Post Code 16/08. The advertisement in Section B contained
the reservation benefits keeping in view the instructions pertaining to the
admissibility of benefits of reservation. The procedure for submission of
application form mentioned the reservation benefits stating that the
reservation benefits will be available to the candidates in accordance with
the instructions/order/circulars issued from time to time by
WP(C) No. 610/2011 & connected cases Page 2 of 10
competent/notified authority. The examination for the Post Code 16/08
(Teacher-Primary) was conducted by the Board in two parts, that is, Part I
(Objective) Examination and Part II (Descriptive) Examination for final
selection. The result of Part I examination for short listing of candidates
by evaluation of their Part I answer sheets was declared on 29.5.2009.
After evaluation of Part II (Descriptive) answer scripts, final result was
declared by the Board on 6.10.2009.
2. When the selection process was continuing, the decision in the case
of Subhash Chandra & Anr. v. DSSSB & Ors., 2009 (11) Scale 278 was
pronounced. Because of the said decision, only such Scheduled Caste
candidates who had secured marks 94/200 and above and had enclosed
Scheduled Caste certificate of Delhi origin issued by the competent
authority of the Government of NCT of Delhi were selected. The
candidates who had furnished the caste certificates issued on the basis of
their parents‟ caste certificates along with the application form were not
extended the benefit of reservation and, hence, their cases were
considered under unreserved category and the candidates who had,
secured less marks than the last short listed/selected candidate under
unreserved category were not found to have been qualified.
WP(C) No. 610/2011 & connected cases Page 3 of 10
3. Being dissatisfied with the aforesaid criteria/condition, the
respondents preferred original applications before the Central
Administrative Tribunal, Principal Bench, New Delhi (for short „the
tribunal‟) and the tribunal disposed of OA No. 563/2010 (Mukesh Kumar
& Others v. GNCTD & Ors.) on 6.9.2010 and OA Nos. 1466/2010 (Kapil
Kumar v. DSSSB & Ors.) and 905/2010 (Ms. Saroj & Others v. GNCTD
& Ors.) by common order dated 7.9.2010. In OA No. 563/2010, the
tribunal has passed the following order:
“Decision of Apex Court in Subhash Chandra &
another v. DSSSB & others (CA-5092/2009) and its
prospectivity thereof is not involved in the present
cases, as now in the light of the observations made in
paragraph 12 of the decision (supra), applicants have
produced before us a copy of the list of scheduled casts
in Delhi, which, the learned counsel states, have been
issued under Article 341(1) of the Constitution of India
whereby the casts „Chamar‟, „Jatva‟, „Koli‟ and „Pasi‟
are included as scheduled castes in Union Territory of
Delhi. If the contentions put forth by learned counsel
for applicants is correct then the castes are not
migratory and have a right to be considered for
appointment on reservation basis in schedule caste
category.
2. In this view of the matter, we dispose of this OA
with a direction to the respondents to verify the aspects
of the castes being notified in Delhi by notification
under Article 341(1) of the Constitution by an apt
methodology within a period of two months from the
date of receipt of a copy of this order and on
authentication and verification of the aforesaid,
consider the claim of the applicants for appointment in
accordance with their eligibility within a period of oneWP(C) No. 610/2011 & connected cases Page 4 of 10
month when such a verification and authentication by
the respondents is complete.”
4. In the other two original applications, the tribunal referred to the
decision rendered in Mukesh Kumar & Ors. (supra) and passed the
following order:
“Being founded on identical questions of law and
grounded on similar facts, these OAs are disposed of
by directing the respondents to verify the aspect of
their castes being notified in Delhi vide notification
under Article 341(1) of the Constitution by an apt
methodology within a period of two months from the
date of receipt of a copy of this order. On
authentication and verification of the aforesaid, the
respondents shall also consider the claim of the
applicants for appointment in accordance with their
eligibility within a period of one month when such a
verification and authentication is adopted.”
5. Assailing the aforesaid orders, it is submitted by Ms. Zubeda
Begum, learned counsel for the appellant – Board that the tribunal has
fallen into grave error in understanding the ratio of the decision in
Subhash Chandra (supra) inasmuch as the said decision nowhere lays
down that a person who has migrated to Delhi and taken a certificate
from the authority in Delhi would be treated as a candidate belonging to
the reserved category. Learned counsel would submit that the Apex
Court has, after referring to the Constitution Bench decisions in Marri
Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.,
WP(C) No. 610/2011 & connected cases Page 5 of 10
(1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate
to Scheduled Castes and Scheduled Tribes in the State of Maharashtra
& Anr. v. Union of India & Anr., (1994) 5 SCC 244 has opined that to
confer the benefit on a person belonging to a particular caste or tribe can
only be done if a caste or tribe is notified in terms of the Scheduled Caste
Order or Scheduled Tribe Order and the same must be in terms of Clause
(1) of Article 341 as also that of Article 342 of the Constitution of India
as the case may be and no deviation from the procedure laid down therein
is permissible in law. It is urged by her that the tribunal has flawed by
not appreciating the fact in proper perspective that the respondents had
produced caste certificates that were granted to them on the basis of caste
certificates of their parents who belonged to other States and, therefore,
they cannot be treated belonging to Scheduled Castes in Delhi solely
because there is a list of Scheduled Castes in Delhi issued under Article
341(1) of the Constitution of India covering their caste.
6. Mr. Aruneshwar Gupta along with Mr.Manish Raghav and Dr.
K.S. Chauhan along with Mr. Tej Singh Varun, Mr.Ajit Kumar Ekka
learned counsel appearing for the private respondents submitted that the
tribunal has appositely appreciated the ratio laid down in the case of
Subhash Chandra (supra) and, therefore, no fault can be found with the
orders of the tribunal. It is further contended that the respondents had
WP(C) No. 610/2011 & connected cases Page 6 of 10
obtained caste certificates in Delhi and their castes, namely, „Chamar‟,
„Jatva‟, „Koli‟ and „Passi‟ which are covered under the notification issued
for Delhi under Article 341 of the Constitution of India and, hence, the
order passed by the tribunal is absolutely defensible.
7. At the very outset, we may state that there is no dispute that the
Competent Authorities of Govt. of NCT of Delhi had issued Scheduled
Caste Certificates in favour of the respondents on the basis of the
certificates to their parents by other States. On a perusal of the decision
in Subhash Chandra & Anr. (supra), it is clear as crystal that the Apex
Court has followed the decisions in Marri Chandra Shekhar Rao (supra)
and the Action Committee (supra). The Constitution Bench in Marri
Chandra Shekhar Rao (supra) has clearly laid down that a candidate
recognized as a member of Scheduled Tribe and Scheduled Caste in his
original State on his migration to another State, would not be entitled to
get the benefit of reservation of seats. After laying down the principles,
their Lordships have stated thus:
“23. Having construed the provisions of Articles 341
and 342 of the Constitution in the manner we have
done, the next question that falls for consideration, is,
the question of the fate of those Scheduled Caste and
Scheduled Tribe students who get the protection of
being classed as Scheduled Caste or Scheduled Tribes
in the States of origin when, because of transfer or
movement of their father or guardian’s business or
service, they move to other States as a matter of
voluntary (sic in voluntary) transfer, will they be
WP(C) No. 610/2011 & connected cases Page 7 of 10
entitled to some sort of protective treatment so that
they may continue or pursue their education. Having
considered the facts and circumstances of such
situation, it appears to us that where the migration from
one State to another is involuntary, by force of
circumstances either of employment or of profession,
in such cases if students or persons apply in the
migrated State where without affecting prejudicially
the rights of the Scheduled Castes or Scheduled Tribes
in those States or areas, any facility or protection for
continuance of study or admission can be given to one
who has or migrated then some consideration is
desirable to be made on that ground. It would,
therefore, be necessary and perhaps desirable for the
legislatures or the Parliament to consider appropriate
legislations bearing this aspect in mind so that proper
effect is given to the rights given to Scheduled Castes
and Scheduled Tribes by virtue of the provisions under
Articles 341 and 342 of the Constitution. This is a
matter which the State legislatures or the Parliament
may appropriately take into consideration.”
8. In the case of the Action Committee (supra) another Constitution
Bench referred to the decision in Marri Chandra Shekhar Rao (supra)
has opined thus:
“16. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list
of Scheduled Castes/Scheduled Tribes or backward
classes in a given State would depend on the nature and
extent of disadvantages and social hardships suffered
by that caste, tribe or class in that State which may be
totally non est in another State to which persons
belonging thereto may migrate. Coincidentally it may
be that a caste or tribe bearing the same nomenclature
is specified in two States but the considerations on the
basis of which they have been specified may be totally
different. So also the degree of disadvantages of
various elements which constitute the input for
WP(C) No. 610/2011 & connected cases Page 8 of 10
specification may also be totally different. Therefore,
merely because a given caste is specified in State A as
a Scheduled Caste does not necessarily mean that if
there be another caste bearing the same nomenclature
in another State the person belonging to the former
would be entitled to the rights, privileges and benefits
admissible to a member of the Scheduled Caste of the
latter State “for the purposes of this Constitution”.”
9. In the case of Subhash Chandra & Anr. (supra) their Lordships
were dealing with the notifications and circulars issued by National
Capital Territory of Delhi in terms of Clause (1) of Article 341 of the
Constitution of India and in that context their Lordships have expressed
thus:
“Both the Central Government and the State
Government indisputably may lay down a policy
decision in regard to reservation having regard to
Articles 15 and 16 of the Constitution of India but such
a policy cannot violate other constitutional provisions.
A policy cannot have primacy over the constitutional
scheme.
If for the purposes of Articles 341 and 342 of the
Constitution of India, State and the Union Territory are
at par on the ground of administrative exigibility or in
exercise of the administrative power, the constitutional
interdict contained in clause (2) of Article 341 or
clause (2) of Article 342 of the Constitution of India
cannot be got rid of.”
10. From the aforesaid pronouncement of law, it is vivid that
Scheduled Castes or Scheduled Tribes in one State cannot get the benefit
in another State. The parents of the respondents may belong to the castes
WP(C) No. 610/2011 & connected cases Page 9 of 10
of „Chamar‟, „Jatva‟, „Kali‟ and „Pasi and those castes may have been
notified in terms of Scheduled Caste Order or Scheduled Tribe Order
issued in terms of Clause (1) of Article 341 or Article 342 of the
Constitution of India in a particular State but the respondents who have
obtained the certificates in Delhi on the basis of the certificates of their
parents issued by other States and have migrated to Delhi, cannot avail
the benefit. Thus, the view expressed by the tribunal that they belong to
Scheduled Castes in the National Capital Territory of Delhi because of
the said notification and, hence, what is only required is the
authentication and verification of the same is not in consonance with the
decisions of the Marri Chandra Shekhar Rao (supra), Action Committee
(supra) and Subhash Chandra & Anr. (supra).
11. In view of the aforesaid premised reasons, we allow the writ
petitions and quash the orders of the tribunal. There shall be no order as
to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
JULY 25, 2011
Pk/dk
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