Case: GOVT. OF NCT DELHI Vs. PRADEEP KUMAR

Court considered the implication of the Circular dated 11.05.2011 issued by the Department of Personnel, government of Rajasthan, (A, Gr.II) bearing ref.no.No.F.7(1) DOP/A-II/99 that expressly allowed migration to the unreserved category irrespective of any concession availed by the candidate of the reserved category if he/she had secured more marks than the last Unreserved category candidate who is selected. But here the OMs dated 01.07.1998 and 04.04.2018 issued by the Department of Personnel & Training would bear consideration. Contrary to the circular dated 11.05.2011 in Vikas Sankhala (supra), the two OMs referred by Ms Divan, issued specific instructions to the effect that when a relaxed standard is applied in selecting a reserved category candidate, in age limit, experience, qualification, additional chances in written examination etc., such candidates will be counted against reserved vacancies. 21.2 For better understanding, the implications of the afore noted OM dated 01.07.1998 (ref.36011/1/98-Estt.(Res), Ministry of Personnel, Public Grievances and Pensions), the relevant portion is extracted below:- ....................................... 3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies. ........................................ 21.3 In the same context, the relevant part of the second OM dated 04.04.2018 (Ref.No.F.No.43011/4/2018-Estt.(Res.)] issued by the Ministry of Personnel, Government of India), reiterating in substance, what was stated in the earlier O.M. of 01.07.1998, is extracted as below, for ready reference:- .......................................As per instructions issued vide this Departments OM No.36012/2/96-Estt.(Res) dated 02.07.1997, in direct recruitments to Central Government jobs and services, the reserve category candidates who are selected on the same standards as applied to general candidates will not be adjusted against reserved vacancies. As per instructions issued vide DOP & T OM No.36011/1/98-Estt.(Res) dated 01.07.1998, only when a relaxed standard is applied in selecting a reserved candidates, for example in the age limit, experience, qualification, permitted number of chances in written examination, etc., such candidates will be counted against reserved vacancies................................. 22. From the above extract of the two OMs, it is quite apparent that, unlike in Vikas Sankhala, there is an express bar on migration to the unreserved category of those reserved category candidates who had availed of relaxation including those for qualification. The prescription of the eligibility qua CTET, in the advertisement, will therefore have to be understood bearing in mind, the contents of the OM dated 01.07.1998. To apply the advertisement in the present facts will not be correct. The same OM dated 01.07.1998 was considered in Deepa EV v Union of India (2017) 12 SCC 680 and we feel that the Court was correct in the view, vis-à-vis the OM dated 01.07.1998. 23. The other distinguishing aspect in Vikas Sankhala (supra) is that the candidates who had applied under the reserved category belonged to Rajasthan. For the selection and aspirants from the same State i.e., Rajasthan, the Court allowed such candidates to migrate to the unreserved category. In the present case, however, the candidates (i.e. the respondents) belong to States other than Delhi. Being OBC (outsiders), they could have been considered only under the unreserved category if they secure at least 60% marks in the CTET. The respondents admittedly did not secure 60% and thus were ineligible. Moreover, an OBC candidate not certified in the State/Territory outside of Delhi cannot be eligible to avail of employment in reserved category posts earmarked for OBCs who are certified by the Delhi Government. 24. It is important to keep in mind that the respondents are competing for general category vacancies. All others in this group have obtained their CTET eligibility qualification, securing the normal pass marks without availing any relaxation of pass norms. On the other hand, the respondents despite their lesser marks in the CTET examination, could qualify only because they availed the relaxation benefits as OBC category examinees. Their eligibility qualification is secured under relaxed norms meant for OBC category and therefore we do not think it is proper to consider them to be eligible for the general category vacancies and contention to the contrary is unacceptable. 25. The respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status is certified and recognized by the Delhi government. But such not being the case, they are ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because, they have secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the respondents have not secured the normal pass marks for general category, their eligibility for the general category vacancies is not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process. 26. As earlier discussed, this case concerns qualifications obtained with concession in pass marks. Such concession would have a direct impact on standards of competence and merit in the recruitment of Special Education Teachers. The principles of reservation under the Constitution of India are intended to be confined to a specifically earmarked category and the unreserved category must be protected, to avoid dilution of competence and merit. If Vikas Sankhala (supra) is interpreted shorn of its peculiar facts, as has been suggested by the respondents counsel, it would in our perception, considering that respondents secured the qualification under relaxed norms, would lead to dilution of merit in the unreserved category. The arguments made to the contrary by the respondents is therefore rejected. 27. In view of the forgoing, the High Court and the Tribunal erred in granting relief to the respondents.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]15. In the Delhi recruitment process, the respondents did not possess OBC (Delhi) certificate and thus they could not be considered for the OBC category vacancies. Further, as per the CTET guidelines, unreserved candidates are required to obtain 60% marks to qualify in the CTET. Since the Respondents obtained less than 60% in CTET, their candidature could be valid only under the OBC category. However due to absence of certificate of OBC status by Government of NCT, Delhi and by virtue of clause 6(iii), as above, which bars reservations to outsider OBC, the Respondents are ineligible for the applied post. They may however compete against the unreserved vacancies, if they pass CTET with minimum 60% marks. Admittedly, none of the Respondents are certified by the GNCT of Delhi as OBC and neither do they possess the requisite 60% marks in CTET for qualification for the one-tier exam, as per Advertisement 1/13 and therefore the contention of the Appellants do have acceptable basis19. The above excerpts reveal the Courts concern for maintaining equality in the recruitment process. However, in the present recruitment process, in the absence of a compensatory disadvantage or balancing factor, the ratio in Vikas Sankhala cannot be applied for the respondents who obtained CTET qualification by virtue of concession given to OBC categories. In other words, the concession benefit is not neutralized in the Delhi recruitment process. Thus, a level playing field and a fair treatment is not achieved, by inappropriately applying the ratio of Vikas Sankhala without having regard to the peculiarity of facts of that case where, a different selection yardstick was applied20. As noted above, although there was no balancing out of the relaxation for the selection process in Delhi unlike the process in Vikas Sankhalas decision, the CAT erroneously applied the ratio of the Rajasthan case for giving relief to the respondents21.1 In Vikas Sankhala, the Court considered the implication of the Circular dated 11.05.2011 issued by the Department of Personnel, government of Rajasthan, (A, Gr.II) bearing ref.no.No.F.7(1) DOP/A-II/99 that expressly allowed migration to the unreserved category irrespective of any concession availed by the candidate of the reserved category if he/she had secured more marks than the last Unreserved category candidate who is selected. But here the OMs dated 01.07.1998 and 04.04.2018 issued by the Department of Personnel & Training would bear consideration. Contrary to the circular dated 11.05.2011 in Vikas Sankhala (supra), the two OMs referred by Ms Divan, issued specific instructions to the effect that when a relaxed standard is applied in selecting a reserved category candidate, in age limit, experience, qualification, additional chances in written examination etc., such candidates will be counted against reserved vacancies22. From the above extract of the two OMs, it is quite apparent that, unlike in Vikas Sankhala, there is an express bar on migration to the unreserved category of those reserved category candidates who had availed of relaxation including those for qualification. The prescription of the eligibility qua CTET, in the advertisement, will therefore have to be understood bearing in mind, the contents of the OM dated 01.07.1998. To apply the advertisement in the present facts will not be correct. The same OM dated 01.07.1998 was considered in Deepa EV v Union of India(2017) 12 SCC 680  and we feel that the Court was correct in the view, vis-à-vis the OM dated 01.07.199823. The other distinguishing aspect in Vikas Sankhala (supra) is that the candidates who had applied under the reserved category belonged to Rajasthan. For the selection and aspirants from the same State i.e., Rajasthan, the Court allowed such candidates to migrate to the unreserved category. In the present case, however, the candidates (i.e. the respondents) belong to States other than Delhi. Being OBC (outsiders), they could have been considered only under the unreserved category if they secure at least 60% marks in the CTET. The respondents admittedly did not secure 60% and thus were ineligible. Moreover, an OBC candidate not certified in the State/Territory outside of Delhi cannot be eligible to avail of employment in reserved category posts earmarked for OBCs who are certified by the Delhi Government24. It is important to keep in mind that the respondents are competing for general category vacancies. All others in this group have obtained their CTET eligibility qualification, securing the normal pass marks without availing any relaxation of pass norms. On the other hand, the respondents despite their lesser marks in the CTET examination, could qualify only because they availed the relaxation benefits as OBC category examinees. Their eligibility qualification is secured under relaxed norms meant for OBC category and therefore we do not think it is proper to consider them to be eligible for the general category vacancies and contention to the contrary is unacceptable25. The respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status is certified and recognized by the Delhi government. But such not being the case, they are ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because, they have secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the respondents have not secured the normal pass marks for general category, their eligibility for the general category vacancies is not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process26. As earlier discussed, this case concerns qualifications obtained with concession in pass marks. Such concession would have a direct impact on standards of competence and merit in the recruitment of Special Education Teachers. The principles of reservation under the Constitution of India are intended to be confined to a specifically earmarked category and the unreserved category must be protected, to avoid dilution of competence and merit. If Vikas Sankhala (supra) is interpreted shorn of its peculiar facts, as has been suggested by the respondents counsel, it would in our perception, considering that respondents secured the qualification under relaxed norms, would lead to dilution of merit in the unreserved category. The arguments made to the contrary by the respondents is therefore rejected27. In view of the forgoing, the High Court and the Tribunal erred in granting relief to the respondents.