W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 1 of 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No. 13870/2009 & CM. No.15749/2009 Date of Decision :- 17.02.2010 Delhi Subordinate Services Selection Board & anr. …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Ms. Anu Devi & Another …. Respondents Through Mr. Amit K. Paul, adv. for the MCD. Mr. P.P. Khurana, Sr. Adv. with Mr. Yashpal Rangi, Ms. Seema Pandey, Advocates for the respondents And + W.P. (C.) No. 13875/2009 & CM.No. 15754/2009 Delhi Subordinate Services Selection Board & Anr. …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Ms. Savita & Another …. Respondents Through Mr. Amit K. Paul, adv. for the MCD. Mr. Ashok Aggarwal, Advocate for the respondents And + W.P. (C.) No. 13883/2009 & CM.No. 15772/2009 Delhi Subordinate Services Selection Board & Anr. …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Mr. Shishupal Arya & Another …. Respondents Through Mr. Amit K. Paul, adv. for the MCD. Mr. Ajesh Luthra, Advocate for the respondents W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 2 of 29 And + W.P. (C.) No. 13913/2009 & CM.No.15827/2009 Delhi Subordinate Services Selection Board & Another …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Fakeha Iram & Another …. Respondents Through Mr. Amit K. Paul, adv. for the MCD. Mr. Ajesh Luthra, Advocate for the respondents And + W.P. (C.) No. 13915/2009 & CM.No.15830/2009 Delhi Subordinate Services Selection Board & Anr. …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Ms. Rekhawati & Another …. Respondents Through Mr. Amit K. Paul, adv. for the MCD. And + W.P. (C.) No. 14112/2009 & CM 16254/2009 Delhi Subordinate Services Selection Board & Others …. Petitioners Through Ms. Ruchi Sindhwani, Ms. Bandana Shukla, Advocates Versus Virender Solanki …. Respondent Through Mr. Ajesh Luthra, Advocate for the respondents. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 3 of 29 HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may 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 ANIL KUMAR, J. * 1. These writ petitions involve a common question, “whether the respondents in different writ petitions are not entitled for selection to the post of primary teacher under the OBC category as they had not submitted the OBC certificate along with the application form by 29 October, 2007, the last date for submitting the application form, but they had submitted the OBC certificate within the time given later on by the notices given by the petitioners.” 2. The Central Administrative Tribunal had allowed the original applications of the different respondent no.1 and the petitioners were directed to declare the results of the applicants and to process their cases for appointments as teachers in their respective discipline to which they applied with all the benefits as admissible in law. The Central Administrative Tribunal, Principle Bench has held in different original applications filed before it that plea of cut-off date may hold good for educational qualification but would not apply in the case of caste certificates. It was held that eligibility under the OBC category is W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 4 of 29 acquired by a candidate on the date a particular caste is notified as OBC in a particular State and not on account of issuance of an OBC certificate. The Tribunal relied on a decision of High Court in WP (C) 8508 of 2007 dated 2.2.2009 which had relied on another decision of High Court in Tej Pal Singh & ors. Vs Govt. of NCT of Delhi, 120 (2005) DLT 117 holding as under: “ The issue is no more res-integra as in the case of Tej Pal Singh & ors. Vs Govt. of NCT of Delhi reported in 120 (2005) DLT 117 this court has already taken a view that the candidates who belong to SC and ST categories but could not file certificate in proof of the same could not have been rejected simply on account of the late submission of the certificate and submission of such certificates cannot be made pre-condition for accepting the application forms. Mr. Sunil Sharma appearing for the respondent has urged that the relief in the said judgment is only for the SC and ST category and not to OBC category and therefore the respondents have rightly not considered the application of the petitioner against the OBC category. I do not find any merit in the submission of the Counsel for the respondent. As the petitioner who belongs to OBC category she cannot be denied the right to be considered for appointment to the said post under the OBC category once there is no dispute that she belongs to OBC category. Admittedly, there was no lapse on the part of the petitioner who had applied to obtain the said certificate in the OBC category much prior to the date of the advertisement and she cannot be made to suffer simply on account of the fact that the authorities have taken considerable time in making available the OBC certificate. Considering the merit of Tej Pal Singh judgment, I extend the benefit of OBC category to the petitioner. The respondents are directed accordingly to consider the application of the petitioner against the OBC category within a period of one month and accordingly announce the result taking into view the relaxation whatever applicable to the OBC candidates." W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 5 of 29 3. Before considering the pleas and contentions of the learned counsel for the parties, the relevant facts of different petitions are enumerated hereinafter: i. WP(C) 13870 of 2009, DSSSB Vs Ms. Anu Devi a. The respondent had applied for the post of Teacher (primary) in Municipal Corporation of Delhi pursuant to an advertisement in the Employment News dated 6–12 October, 2007 issued by Delhi Subordinate Services Selection Board (DSSSB). The closing date for submission of application along with required documents was 29 October, 2007. The respondent applied for the said post under the OBC category. The respondent appeared in the written examination which was held on 15 June, 2008 and the result was declared on 25 September, 2008. The respondent secured 103/200 marks and she was not in the list of selected candidates. Though the respondent had not given the OBC certificate along with the application, however, she was allowed to appear in the selection examination. b. According to the petitioner, the respondent had opted for OBC category but she had not enclosed the OBC certificate as per the conditions stipulated in the advertisement. Her result, therefore, could not be processed under the OBC category but the petitioner considered her under the UR category. The marks of the respondent were less than the marks of the last selected candidate in UR category therefore, her name was not included in the list of selected candidates. The petitioners stated that non inclusion of the OBC certificate along with the application was noticed by the petitioners after the result was declared and after respondent filed a RTI application regarding the declaration of her result. The respondent was, therefore, issued a notice dated 17 W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 6 of 29 November, 2008 by the petitioners asking her to submit the OBC certificate. The petitioner also issued another notice dated 18 December, 2008 to the respondent to submit the OBC certificate by 27 December, 2008. Consequent thereto, on 22 December, 2008 the respondent submitted the OBC certificate dated 05 November, 2007 in the office of the petitioners which was issued after the cut – off date of 29 October, 2007. c. The petitioners, therefore contended that the respondent was not eligible for being considered in the OBC category and she was considered in the UR category. The name of the respondent was not in the final list as her marks were less than the marks of the last selected candidate in UR category who had secured 120/200 marks. The respondent was thus denied selection under the OBC category. The respondent, therefore, approached the Central administrative Tribunal by filing O.A. No. 370 of 2009 wherein the respondent prayed for declaration of result by the DSSSB and selection to the post of Teacher (Primary). The respondent pleaded that she should have been selected in the category of OBC as she had applied for the certificate on 04 October, 2007 with Govt. of NCT of Delhi and before the last date of submission of her application form her caste was notified as OBC and therefore, she had acquired the qualification for selection under OBC category and merely because on the demands made by the petitioners she had submitted the requisite certificate within the time given by the petitioners but not before the last date for submission of application, she could not be denied selection under OBC category for the post of primary teacher. d. The Tribunal noted that the claim of respondent had been squarely covered by a decision of the High Court of Delhi of a W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 7 of 29 Single Bench in W P (C) No.8508/2007 dated 02 February, 2009 which was decided relying on Tej Pal Singh & ors. Vs Govt. of NCT of Delhi, 120 (2005) DLT 117. The Tribunal had noted that there was no lapse on the part of the respondent who had applied to obtain the said certificate in the OBC category much prior to the last date of submission of application form and she could not made to suffer simply on account of the fact that the authorities had taken considerable time in making available the OBC certificate. The respondent, whose caste had been included in the central list long back before advertisement was issued by the petitioner, had applied for an OBC certificate, which was ultimately issued to her on 05 November, 2007. The respondent had applied for OBC certificate on 4th October, 2007 and she received the certificate on 5th November, 2007, however, it was submitted by her on 22nd December, 2008 pursuant to the notice given by the petitioners to submit the OBC certificate by 28th December, 2008. e. While allowing the petition of the respondent, being OA no. 370 of 2009 titled Anu Devi Vs Municipal Corporation of Delhi & anr. by order dated 17th July, 2009 the Tribunal directed the petitioner to declare the result of the respondent and to process her case for appointment as Teacher (Primary) with all benefits, as admissible in law. The order of the Tribunal dated 17th July, 2009 is challenged by the petitioners in WP (C) 13870 of 2009. ii. WP (C) 13875 of 2009, DSSSB & anr. Vs Savita & anr. a. The respondent no.1 had applied for the posts of Assistant Teacher in Govt. of NCT of Delhi (post code – 165/07) and Teacher (primary) in Municipal Corporation of Delhi (post code – 164/07) pursuant to an advertisement in the Employment News dated 6 – 12th October, 2007 issued by Delhi Subordinate W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 8 of 29 Services Selection Board (DSSSB). The closing date for submission of application along with all required documents was 29th October, 2007. The respondent applied for both the posts under the OBC category on 24th October, 2007. The respondent appeared in the written examinations which were held on 15th June, 2008 and the result was declared on 25th September, 2008. The respondent secured 92/200 marks and she was not in the list of selected candidates. The respondent had applied for the OBC Certificate on 27th October, 2008 before the closing date for submission of application forms. b. The petitioners stated that the factum of respondent no.1 not having attached the OBC certificate at the time of submission of application, was noticed by them during the post examination scrutiny of the applications. Therefore a letter dated 17th November, 2008 was issued to the respondent asking her to submit the OBC certificate by 05th December, 2008. Before the last date stipulated in the notice, on 03rd December, 2008 the respondent no.1 submitted the OBC certificate dated 03rd November, 2008 in the office of the petitioners which was issued after the cutoff date 29th October, 2007. c. The petitioners held that the respondent no.1 was not eligible for being considered in the OBC category and she was considered in the UR category. The name of the respondent was not in the final list as her marks were less than the marks of the last selected candidate in UR category who had secured 120/200 marks. d. The order of the petitioners was challenged before Central Administrative Tribunal which allowed the application of respondent no. 1 in TA NO.1378 of 2009 titled Ms. Savita Vs W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 9 of 29 DSSSB & ors by common order dated 4th August, 2009 which is assailed by the petitioners in WP (C) 13875 of 2009 on the similar grounds as in other similar petitions. iii. WP(C) 13883 of 2009, DSSSB & anr. Vs Shishupal Arya & anr. a. The respondent no.1 had applied for the posts of Assistant Teacher in Govt. of NCT of Delhi (post code – 165/07) and Teacher (primary) in Municipal Corporation of Delhi (post code – 164/07) pursuant to an advertisement in the Employment News dated 6 – 12th October, 2007 issued by Delhi Subordinate Services Selection Board (DSSSB). The closing date for submission of application along with all required documents was 29th October, 2007. The respondent no.1 applied for both the posts under the OBC category on 27th October, 2007. b. The petitioners stated that the respondent no.1 had not attached the OBC certificate at the time of submission of applications was noticed by the petitioners during the preliminary scrutiny of the applications. Therefore, a notice dated 11th February, 2008 was issued to the respondent no.1 asking him to submit the OBC certificate by 22th February, 2008. The respondent no.1 contended that he had submitted a photo copy of applying for the OBC certificate along with the application forms and pursuant to notice dated 11th February, 2008 he had submitted a photocopy of the OBC certificate on 22nd February, 2008 c. The respondent no.1 appeared in the written examinations which were held on 15 June, 2008 and the result was declared on 25th September, 2008. The respondent no.1 secured 111/200 marks and he was not in the list of selected candidates. The W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 10 of 29 respondent had applied for the OBC Certificate on 12th October, 2007. d. The petitioners issued another notice dated 17th November, 2008 to the respondent no.1 to submit the OBC certificate by 03rd December, 2008. On 28th November, 2008 the respondent no.1 submitted the OBC certificate dated 31th October, 2007 in the office of the petitioner which was issued after the cut – off date 29th October, 2007. The respondent no.1 while submitting the OBC certificate reiterated that a copy of the application form applying for OBC certificate was annexed with the application form and a copy of OBC certificate was given on 22nd February, 2008 pursuant to notice dated 11th February, 2008. e. Later on the respondent no.1 was however, held to be not eligible under the OBC category and he was considered in the UR category by the petitioners. The name of the respondent no.1 was not included in the final list as his marks were less than the marks of the last selected candidate in UR category who had secured 120/200 marks. f. The order of the petitioners was challenged before Central Administrative Tribunal which allowed the application of respondent no. 1 in TA NO.1350 of 2009 titled Mr. Shishupal Arya Vs DSSSB & ors by a common order dated 4th August, 2009 which is assailed by the petitioners in WP (C) 13883 of 2009 on similar grounds as raised in other petitions. iv. W.P. (C.) No. 13913/2009 DSSSB & anr. Vs Fakeha Iram & anr. a. The respondent no.1 had applied for the posts of Assistant Teacher in Govt. of NCT of Delhi (post code – 165/07) and Teacher (primary) in Municipal Corporation of Delhi (post code – W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 11 of 29 164/07) pursuant to an advertisement in the Employment News dated 6 – 12th October, 2007 issued by Delhi Subordinate Services Selection Board (DSSSB). The closing date for submission of application along with all required documents was 29th October, 2007. The respondent no.1 applied for both the posts under the OBC category on 29th October, 2007. b. The respondent no.1 appeared in the written examinations which were held on 15 June, 2008 and the result was declared on 25th September, 2008. The respondent no.1 secured 106/200 marks and she was not in the list of selected candidates. She had had applied for the OBC Certificate on 23rd October, 2007 before the last date for submission of application forms. c. The petitioners stated that the respondent no.1 had not attached the OBC certificate at the time of submission of applications, was noticed by the petitioners during the post examination scrutiny. Therefore a letter dated 17th November, 2008 was issued to the respondent no.1 asking her to submit the OBC certificate as the said certificate had not been submitted by the respondent no.1. The petitioners issued another notice dated 18th December, 2008 to the respondent no.1 to submit the OBC certificate by 27th December, 2008, pursuant to which on 23rd December, 2008 the respondent no.1 submitted the OBC certificate dated 05th November, 2007. The petitioners, however, held that the respondent no.1 was not eligible for being considered in the OBC category and she was considered in the UR category by the petitioners. The name of the respondent no.1 was not in the final list as her marks were less than the marks of the last selected candidate in UR category who had secured 120/200 marks. W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 12 of 29 d. The order of the petitioners was challenged before Central Administrative Tribunal which allowed the application of respondent no. 1 in TA NO.1349 of 2009 titled Ms. Fakeha Iram Vs DSSSB & ors by a common order dated 4th August, 2009 which is assailed by the petitioners in WP (C) 13913 of 2009 on similar grounds as raised in other petitions. v. WP(C) 13915/2009; DSSSB & anr. Vs Smt. Rekhawati & anr a. The respondent no.1 had applied for the post of Teacher (primary) in Municipal Corporation of Delhi (post code – 165/07) pursuant to an advertisement in the Employment News dated 6 – 12th October, 2007 issued by Delhi Subordinate Services Selection Board (DSSSB). The closing date for submission of application along with all required documents was 29th October, 2007. The respondent no.1 applied for the said post under the OBC category before the closing date. b. The petitioners stated that the respondent no.1 had not attached the OBC certificate at the time of submission of application was noticed by the petitioners during the preliminary scrutiny of the applications. Therefore a notice dated 11th February, 2008 was issued to the respondent no.1 asking her to submit the OBC certificate by 22th February, 2008. The respondent no.1 contended that she submitted the caste certificate on 20th February, 2008 pursuant to notice dated 11th February, 2008. c. The respondent no.1 appeared in the written examinations which were held on 15 June, 2008 and the result was declared on 25th September, 2008. The respondent secured 118/200 marks and he was not in the list of selected candidates. W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 13 of 29 d. The petitioners, thereafter, issued a notice dated 17th November, 2008 to the respondent no.1 to submit the OBC certificate by 03rd December, 2008. The petitioners issued another notice dated 18th December, 2008 to the respondent no.1 to submit the OBC certificate by 27th December, 2008, pursuant to which an OBC certificate dated 14th November, 2007 was submitted by the respondent no.1 within the time stipulated in the notice. The petitioners, however, held that the respondent no.1 was not eligible for being considered in the OBC category and she was considered in the UR category by the petitioner. The name of the respondent no.1 was not in the final list as her marks were less than the marks of the last selected candidate in UR category who had secured 120/200 marks. d. The order of the petitioners was challenged before Central Administrative Tribunal which allowed the application of respondent no. 1 in TA NO.956 of 2009 titled Ms. Rekhawati Vs DSSSB & ors by an order dated 11th September, 2009 which is assailed by the petitioners in WP (C) 13915 of 2009 on similar grounds as raised in other petitions. vi. WP(C) 14112/2009, DSSSB & anr. Vs Virender Solanki & anr. a. The respondent had applied for the post of Physical Education Teacher (P.E.T) in Directorate of Education and development Department pursuant to an advertisement in Punjab Kesri dated 04th June, 2006 vide its advertisement No. 02/2006 issued by Delhi Subordinate Services Selection Board (DSSSB). The closing date for submission of application along with all required documents was 26th June, 2006. b. The respondent applied for the said post under the OBC category. The respondent appeared in the main written W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 14 of 29 examination which was held on 06th May, 2007 and the result was declared on 31th January, 2008. The respondent secured 162.50/400 marks and he was not in the list of selected candidates. The respondent had applied for the OBC Certificate on 20th June, 2007 prior to last date for applying for the said post. c. The petitioners stated that the respondent had not attached the OBC certificate at the time of submission of application, was noticed by them during the post examination scrutiny of the applications. Therefore a letter dated 29th October, 2007 was issued to the respondent asking him to submit the OBC certificate and the said certificate was submitted by the respondent on 12th November, 2007 which was dated 05th July, 2007. Though the respondent had applied for the OBC certificate before the closing date for submission of application form, however, the OBC certificate was issued after the cut – off date 26 June, 2007. Therefore, the respondent was held not eligible under the OBC category and he was considered in the UR category by the petitioners. The name of the respondent was not in the final list as his marks were less than the marks of the last selected candidate in UR category who had secured 185.25/400 marks. d. The order of the petitioners was challenged before Central Administrative Tribunal which allowed the application of respondent being OA NO.342 of 2009 titled Mr.Virender Solanki Vs DSSSB & ors by an order dated 4th August,2009 which is assailed by the petitioners in WP (C) 1412 of 2009 on similar grounds as raised in other petitions. W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009 Page 15 of 29 4. The petitioners have assailed the orders of the tribunal primarily on the grounds that the terms and conditions in the advertisements clearly stipulated that all the required documents were to be submitted along with the application forms. According to petitioners the advertisements were unambiguous that without the OBC certificates, the claim of the candidates under the OBC category shall not be entertained. It has also been emphasized by the learned counsel for the petitioners that the caste certificate had to accompany the application form and therefore the OBC certificate had to be submitted