* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 1028/2011
Judgment reserved on: 18th April, 2011
% Judgment pronounced on: 25th April, 2011
HARIOM CHAUHAN ..... Petitioner
Through: Mr. S.K. Gupta, Adv.
versus
UOI AND ORS. ..... Respondents
Through: Ms. Ruchi Sindhwani with
Ms.Megha Brara, Advs. for R-1 to 3
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The petitioner applied for the post of TGT (Hindi) under the
Directorate of Education in response to the advertisement No. 06/2006 by
Delhi Subordinate Services Selection Board (for brevity „the DSSSB‟). In
the application for the said post, he claimed to be of reserved category being
WP(C) No.1028/2011 Page 1 of 11
a Scheduled Caste candidate. The examination was held in the year 2007
but his name did not find place in the selection list that was published on
30.03.2008.
2. The petitioner challenged his non-selection in two Original
Applications before the Central Administrative Tribunal (for short „the
tribunal‟) being OA No. 2036/2009 and 2488/2009. The tribunal,
considering its earlier decision in Anil Dahiya v. Union of India & Ors.
(OA No. 1054/2008) decided on 15.9.2008, vide its orders dated 10.9.2009
and 24.9.2009 directed the respondents to offer the post to the petitioner on
deemed eligibility to the post of TGT (Hindi). The tribunal had further
directed that the other eligibility criteria were also to be considered. Be it
noted, the case of the petitioner, as pleaded, was that he was not considered
on the ground that he had not studied Hindi at an elective level in the
graduation.
3. After the tribunal disposed of the applications, the DSSSB found that
in view of the decision of the Apex Court in Subhash Chandra & Anr. v.
Delhi Subordinate Services Selection Board, (2009) 15 SCC 458, the
WP(C) No.1028/2011 Page 2 of 11
petitioner was not found eligible for the benefit of reservation in Scheduled
Caste category being a Scheduled Caste of the State of Haryana. It was also
noticed that in view of the unreserved category, the marks obtained by him
were much below the marks of the last selected candidate and, therefore, the
case for selection was not feasible. Being grieved by the non-selection on
the said score, the petitioner approached the tribunal in Original Application
No.677/2010. The singular question that arose before the tribunal pertained
to the applicability of the decision in Subhash Chandra & Anr. (supra). It
was contended before the tribunal that the decision in Subhash Chandra &
Anr. (supra) had prospective applicability and further as the community of
Chamar of the State of Haryana is included in the list, he was entitled to get
a similar benefit in the State of National Capital Territory of Delhi. The
said stand and stance of the petitioner was combated by the respondents
contending, inter alia, that the decision in Subhash Chandra & Anr. (supra)
only reiterate the principle laid down in the Constitution Bench decision of
the Apex Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S.
Medical College & Ors., (1990) 2 SCC 130. It was also put forth that the
controversy was covered by the decision of the Delhi High Court in Naraish
WP(C) No.1028/2011 Page 3 of 11
Kumar & Ors. v. GNCTD & Anr., decided on 11.12.2009. The tribunal
referred to the decision in Marri Chandra Shekhar Rao (supra) wherein it
had been held that a Scheduled Caste/Schedule Tribe in his original State
would be entitled to all the benefits under the Constitution in that State
alone and not in all parts of the country wherever he migrates. The tribunal
placed reliance on the case of Subhash Chandra & Anr. (supra) wherein
the said principle was reiterated. The tribunal also referred to the order
dated 13.11.2009 of the Apex Court whereby the decision in Subhash
Chandra & Anr. (supra) was clarified. The tribunal, relying on the said
decision, came to hold that the petitioner was not entitled for the post in
question and, accordingly, dismissed the Original Application.
4. We have heard Mr.S.K. Gupta, learned counsel for the petitioner and
Ms. Ruchi Sindhwani, learned counsel for the respondents.
5. To appreciate the controversy, we have carefully perused the order
passed by the DSSSB on 2.12.2009. The relevant part of the said order
reads as follows:
“In compliance of order of Hon‟ble C.A.T., the
candidature of Sh.Hariom Chauhan, Roll No.11012286WP(C) No.1028/2011 Page 4 of 11
Applicant in OA 2488/09 was duly considered but keeping
in view the judgment dated 04.08.2009 of Hon‟ble
Supreme Court of India as passed in Civil Appeal No.5092
of 2009 arising out of Petition(s) for Special Leave to
Appeal (Civil) No(s). 24327/05 Subhash Chandra & Anr.
V/s DSSB & Ors. relating to admissibility of benefit of
reservation in SC/ST categories, applicant Sh. Hariom
Chauhan was not found eligible for benefit of reservation
in SC category being SC of the State of Haryana. In UR
category his marks were much below the marks of last
selected candidate.”6. The said factual position is not disputed. What is urged is that the
petitioner being a Scheduled Caste in the State of Haryana, he should be
treated as such in the State of National Capital Territory of Delhi. In the
case of Subhash Chandra & Anr. (supra), the question arose for
interpretation and/or application of the notifications and/or circulars issued
by the National Capital Territory of Delhi in terms of clause (1) of Article
341 of the Constitution of India. In the said case, the private respondents
and/or their parents are migrated to Delhi and in their native places, they are
declared to be members of the Scheduled Caste. The question that emerged
for consideration was whether a person belonging to a caste notified as
Scheduled Caste in one State can automatically claim the benefit of a
WP(C) No.1028/2011 Page 5 of 11
notification specifying a similar caste in another State or Union Territory.Their Lordships, after referring to Article 341 of the Constitution of India
and Marri Chandra Shekhar Rao (supra) and other decisions in the field
came to hold that if a caste or tribe is notified in terms of Scheduled Castes
order or the Scheduled Tribes order, the same must be done in terms of
Article 341(1) as also Article 342(2) of the Constitution of India, as the case
may be and no deviation from the procedure laid down therein is
permissible in law. Their Lordships further opined that if any
amendment/alteration thereto is required to be made, recourse to the
procedure laid down under Articles 341(1) or 342(2) must be resorted to. It
has been further held therein that the Constitutional scheme seeks to identify
the social and economic backwardness of people having regard to the State
or Union Territory as a unit. As a circular was not issued under Article 341
of the Constitution of India, the decision of this Court was dislodged.
7. It is apt to note here that a clarificatory application was filed by the
Government of National Capital Territory of Delhi and Delhi Technological
University before the Apex Court. The Apex Court referred to the
background facts and the decision rendered in Subhash Chandra & Anr.
WP(C) No.1028/2011 Page 6 of 11
(supra) and proceeded to state as follows:“The present application filed by the Government of
N.C.T. of Delhi is for clarification as to whether the
judgment delivered in the Civil Appeal would also cover
those Scheduled Tribes students who were successful in
the written examination and had been selected for
counselling before the judgment was delivered. Therefore,
in the said application, the following reliefs have been
prayed for:“a) Pass an order clarifying that the observations
made and decision taken by this Hon’ble court in its
judgment dated 04.08.2009 in Civil Appeal No.
5092 of 2009 {Subhash Chandra v Delhi
Subordinate Services Selection Board & Ors.}
would not come in way of hinder the admission
process of the Appellant-University & other Delhi
Government run colleges and polytechnics in filling
up seats reserved in favour of Scheduled Tribe
candidates for the academic session 2009-2010
only, and can be filled up by Scheduled Tribe
candidates immigrating from places outside Delhi;
or, in the alternative;b) Pass an order directing the manner in which the
seats reserved for Scheduled Tribe candidates in the
Applicant-University be filled up for the academic
session 2009-2010 only.”
Learned Additional Solicitor General appearing in support
of the application filed by the Government of NCT of
Delhi, submitted that although a notification had not been
issued in terms of Article 341 of the Constitution, by way
of past practice, students from the Scheduled Tribes
WP(C) No.1028/2011 Page 7 of 11
category from other States had also been considered for
admission in Delhi University. The learned ASG sought
further clarification as to whether the judgment was
intended to be prospective or whether it intended to cover
those candidates who have already been selected for. Two
other applications filed by the students who were
successful and have been selected for counselling also
pray for the same clarification and for a direction that they
be admitted into the institutions for which they had applied
and were successful.
In this situation, we had requested the learned ASG,
Mr.Mohan Parasaran, to take instructions from the
Government of NCT of Delhi in its Department of and
Technical Education as to whether the Scheduled Tribes
students, referred to hereinabove, could be accommodated
although the first semester was to be completed soon. The
learned ASG has produced a copy of instructions received
by him from the OSD, DTU & Deputy Director(TTE)
Mr.O.P.Shukla, wherein it has been mentioned that if the
Delhi Category of Scheduled Tribes students who were
successful and had been selected for counselling were to
be admitted, special classes would be arranged for them to
complete the mandatory teaching requirements of 13
weeks for one semester and thereafter they could catch up
with the other students for the second semester in March,
2010. It has also been indicated that loss of study of
these students in January and February, 2010 of second
semester will be compensated by holding special/extra
classes on Saturdays and Sundays and other vacations. It
was also indicated that while issuing directions, the Court
should not extend the benefit to Scheduled Tribes
candidates who have already taken admission in any
Institute/University in Delhi as that would disturb to the
entire admission process.
WP(C) No.1028/2011 Page 8 of 11
Apart from the learned ASG, we have also heard
Mr.Naresh Kaushik, learned counsel, in support of
I.A.Nos.9 and 10 and Ms.Lata Krishnamurthy, learned
counsel, in respect of I.A.Nso.11 and 12. In addition, we
have also heard Mr.D.N. Goburdhan, learned counsel, who
had appeared for the appellant in the Civil Appeal. While
learned counsel for the applicants were all ad idem in their
approach to the matter, Mr.Goburdhan had reservations
and submitted that any order that may be passed in these
applications would amount to violation of provisions of
the Constitution itself.
Having considered the submissions made on behalf of the
parties, it should first be clarified that we are only
considering whether the judgment and order passed in the
Civil Appeal intended to cover even those Scheduled
Tribes candidates who had not only participated in the
selection process but had also been selected for
counselling prior to the delivery of the said judgment. We
are of the view that this does not entail invocation of our
power under Article 142 of the Constitution and,
accordingly, Mr.Goburdhan’s submission, has no merit.
We clarify that the judgment delivered in C.A.No.
5092/2009 was intended to take effect prospectively and it
was not the intention of the Court that the students who
had already applied and had been selected for counselling
should also be covered by the same. The High Court had
in its judgment indicated that there were no materials on
record to prove that the S.T. applicants were migrants. In
our view such a consideration is immaterial for our
purpose since despite the fact that the notification had been
issued under Article 341 of the Constitution, as per past
practice, S.T. candidates were being given admission in
Delhi educational institutions. Unfortunately, although the
applications were made soon after the judgment was
WP(C) No.1028/2011 Page 9 of 11
delivered, the same could not be taken up for final disposal
before the first semester has almost come to an end. In
such circumstances, we accept the recommendations of the
Department of Training & Technical Education,
Government of NCT of Delhi, and direct that the
successful students who had been called for counselling
and have not already taken admission in any institution
or University in Delhi, would be entitled to admission in
the respective institutions for which they had applied for
and also direct that special classes be arranged for the
students to enable them to catch up with those who are in
the process of completing the final semester. Such
admission process should be completed, if possible, within
a week from date.”
8. The submission of learned counsel for the petitioner that when the
Apex Court has clarified that the judgment in Subhash Chandra & Anr.
(supra) would take effect prospectively, the tribunal has erred in expressing
the view that it would have retrospective applicability. We have reproduced
the clarificatory order in extenso to understand that the Apex Court has
clarified that it was not the intention of the Court that the students who have
already applied and had been selected for counselling should also be
covered by the same. In the case at hand, it is not a case of admission. It is
a case of selection to a post. That apart, the petitioner was not selected and
had joined. His case was remitted by the tribunal for re-consideration. He
WP(C) No.1028/2011 Page 10 of 11
was treated as an unreserved category candidate and that is why a rank was
given. In view of the decision rendered in Subhash Chandra & Anr.
(supra), the petitioner has to be treated as an unreserved category candidate.
Thus, his name featured below the person in the reserved category and
thereby he lost his right to be selected. Process of selection remained
inchoate and pending and not completed. The clarificatory order passed by
the Apex Court does not assist the petitioner.
9. In view of the aforesaid, we find that the non-selection of the
petitioner to the post in question cannot be found fault with and the
concurrence with the same by the tribunal cannot be flawed.
10. Ergo, there is no merit in this writ petition and, accordingly, the same
stands dismissed without any order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
APRIL 25, 2011
pk
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