Timelines in designating EWS certificates should be viewed from a prism of pragmatism and not dogmatic fervour: High Court of Delhi

54IN THE HIGH COURT OF DELHI AT NEW DELHI LPA 364 2021 and CM Nos. 35520 21 2021 NORTHERN COALFIELDS LIMITED Date of Decision: 7.10.2021 ..... Appellant Through: Mr. Vikramjeet Banerjee ASG with Mr. Ashwani Dubey Adv. .....Respondents CHAMAN GUPTA & ANR. Through: Nemo. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH RAJIV SHAKDHER J.Court hearing convened via video conferencing on account of COVID 19] This appeal is directed against the judgment dated 10.08.2021 passed by the learned single judge in W.P.(C) No.4059 2021. The only issue which arose for consideration before the learned single judge was as to whether respondent no.1 ought to be given leeway for production of the Income and Asset Certificate concerning the relevant financial yeari.e. 2019 It is not in dispute that respondent no.1 had applied for the post of Technician (Trainee) T&S Grade C vide Employment Notification dated 25.01.2020 category. 3.2 What is also not in dispute is that when the verification of documents was carried out respondent no.1 discovered after it was pointed out to him that he had produced the Income and Asset Certificate concerning FY 2020 2021 whereas he was required as indicated above to produce the said certificate for FY 2019 2020. 3.3. Mr. Vikramjeet Banerjee learned Additional Solicitor General ASG) who appears on behalf of the appellant says that the learned single judge erred in directing the concerned authority working under the sway of the Government of National Capital Territory of Delhito examine the representation dated 10.03.2021 filed by respondent no.1 for issuance of Income and Asset Certificate concerning the relevant FY i.e. 2019 2020 albeit in accordance with Rules Regulations and instructions issued in that behalf within a timeframe of four weeks from the date of the impugned judgment. It is Mr. Banerjee’s submission that the “crucial date” for determining the eligibility of a candidate as provided in the 2020 notification is concededly 10.03.2020 and therefore the Income and Asset Certificate which respondent no.1 was required to obtain was for FY 2019 2020. It is also Mr. Banerjee’s contention that the appellant is aggrieved by the direction issued by the learned single judge whereby it has been provided that respondent no.1 will continue to work with the appellant till such time respondent no.1’s representation is considered by GNCTD. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified 4.2 Besides this Mr. Banerjeehas also made a very emphatic submission that as per the 2020 notification the jurisdiction lay with the Principal Bench of the High Court of Madhya Pradesh at Jabalpur. 5. We have heard Mr. Banerjee at great length. Before we proceed further we may note that due to some strange reason GNCTD has not been arrayed as a party in the present appeal although it was a party before the learned single judge and was arrayed as respondent no.3. Be that as it may as noted above the following facts are not disputed: 7.1. Respondent no.1 i.e. Chaman Gupta sat for the written examination. 7.2. Respondent no.1 passed the written examination and was issued a provisional appointment letter on 24.02.2021 qua the subject post reserved for EWS category. It is when verification of documents was carried out that respondent no.1 discovered he had in his possession Income and Asset Certificate concerning FY 2020 21. 7.4. The crucial date provided in the 2020 notification for this purpose was 10.03.2020 and if this crucial date is taken into account respondent no.1 was required to produce the Income and Asset certificate concerning FY 2019 20. 7.5. No sooner this anomaly was pointed out that is at the stage of verification of documents respondent no. 1 preferred a representation dated 10.03.2021 to the Sub Divisional MagistrateKanjhawala GNCTD. 7.6. Prior to this respondent no.1 had written to the appellant on 04.03.2021 that he be accorded time to produce an Income and Asset LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified Certificate for the relevant period i.e. F.Y. 2019 20. In response to the letter dated 04.03.2021 the appellant wrote back to respondent no.1 vide communication dated 12.03.2021 whereby the appellant was granted a month’s leeway to obtain Income and Asset certificate for the relevant FY i.e. FY 2019 20. It was made clear in the said communication that if respondent no. 1 did not produce the Income and Asset certificate for FY 2019 20 his candidature would be cancelled. 7.8. As noticed above even before the appellant issued the communication dated 12.03.2021 the appellant having discovered the error made a representation to the SDM Kanjhawala GNCTD for issuance of the Income and Asset certificate concerning FY 2019 20. It would therefore be relevant to extract the contents of the communication dated 12.3.2021: T&S Gr. C “To Shri Chaman Gupta S O Sri Lal Ji Roll No: 10630563 Post Applied: TECHNICIAN (TRAINEE) Subject: Regarding desired EWS certificate valid as on the crucial date i.e. 10 03 2020 Dear Candidate This is to inform you that you have been provisionally selected for the post of TECHNICIAN TRAINEE) T&S Gr C and your merit position is Gen EWS 1. The Provisional appointment is subject to the fulfillment of prescribed eligibility criteria as per the concerned Employment Notification bearing reference NCL IIQ PD Manpower DR 2019 20 109 Date 25 01 2020. The crucial date for determining the eligibility in all respecthas been notified as 10th March 2020. the EWS certificate produced by you bearing reference: EWS Central & Delhi Govt. SDM K 58 dated LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified terms of 15 12 2020 is valid for the year 2020 21. On account of above you are advised to produce EWS certificate valid on the crucial date i.e. 10 03 2020 for fulfilling the the above referred Employment In case you are unable to produce the desired certificate within one month issuance of provisional offer of appointment to you your provisional appointment will be cancelled without further notice to you for non fulfilment of eligibility for the post applied. s d Deputy ManagerNCL HQ” It is in this background that the learned single judge having considered the matter thought it fit to issue for the reasons given in the impugned judgment the following operative observations: “6. There is no dispute that the petitioner had applied for the post of Technician (Trainee) in a Northern Coal Limited a Government of India undertaking. Being eligible and successful he was issued an appointment letter. When he went to the office of respondent No.2 he was not given permission for join the duties only for the reason that his EWS certificate was not of the Financial year 2019 20. Though it is the case of respondent No.2 that the eligibility need to be seen as on March 10 2020 the plea of the learned counsel for the petitioner that it is only when his name has been short listed for the said post did he realise that he should apply for the EWS certificate from the authority of GNCTD which he did and got the same on December 15 2020. The plea of the learned counsel for the petitioner is that the father of the petitioner has also been issued EWS certificates in the years 2017 2019 and 2020. The stand of the respondent No.3 GNCTD is that the petitioner having not applied in the Financial year 2019 20 he cannot get a certificate for that year. In other words he having applied for the Financial year 2020 2l he was given the certificate of that year on December 15 2020. 7. The stand of respondent No.3 though appealing but that cannot be a reason to deny a certificate to the petitioner if he is LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified otherwise eligible for grant of the same more particularly when he is only 23 years of age and has secured an appointment in a Govt. of India Undertaking. I am of the view that it is a fit case when this Court must exercise its extraordinary jurisdiction under Article 226 of the Constitution and direct the respondent No.3 to consider the application representation filed by the petitioner on March 10 2021 for issuance of EWS certificate for the Financial year 2019 20 in accordance with the Rules Regulations and instructions within a period of four weeks from today. It is ordered accordingly. peculiar facts of the case and shall not be treated as precedent. It goes without saying if the petitioner is issued a certificate 9. by the concerned authority under GNCTD he shall submit the same to the respondent No.2 within three weeks thereafter who shall consider and act accordingly. Till such time the respondent No.2 shall allow the petitioner to continue to perform his duties.” It is Mr. Banerjee’s contention that since respondent no.1 failed to It is made clear that this order has been passed in the fulfill the eligibility criteria as on the crucial date i.e. 10.03.2020 his candidature for provisional appointment is liable to be cancelled. 9.1 To our minds this argument may have had weight had not the appellant on 12.03.2021 granted time to respondent no.1 to obtain the Income and Asset Certificate for the relevant period i.e. FY 2019 20. 9.2. As noticed above respondent no.1 took all steps within his power and capacity to obtain the Income and Asset certificate EWS certificate. It is evident from the extract set forth above that the only reason that the SDM GNCTD declined to conduct the exercise of issuing of the Income and Asset Certificate qua respondent no.1 was that the application was not made in respect of the relevant financial year i.e. FY 2019 20. This reason did not obviously find favour with the learned single judge and therefore he proceeded to issue the operative directions to which we have made reference above. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified 9.4. In our view no interference is called for with the order of the learned single judge on this score. In our opinion whether or not a person falls in the EWS category in a defined period is a fact that gets established by production of certificate from the designated authority. It is because generation of an Income and Asset Certificate EWS certificate is only a consequential act which follows an enquiry made to ascertain the economic status of the applicant that often timelines for obtaining such certificates are extended. In the instant case concededly the appellant to enable respondent no.1 to obtain the requisite certificate from the concerned SDM granted a month’s leeway to respondent no.1. Although respondent no.1 did everything in his power to make a course correction the said Certificate could not be obtained by him within the extended time. The moot question which arises for consideration is: Can respondent no.1 be denied the fruits of his labour in such circumstances We think not. This is not to say that there should not be an end date for submission of such Certificate in our view there should be one. However that being said timelines in such circumstances should be viewed from a prism of pragmatism and not dogmatic fervour. Well earned appointments cannot be denied even though there is scope for repair. If delayed submission of the Income and Asset Certificate EWS certificate does not harm or cause detriment to anyone’s interest some slack can be cut as was done by the appellant in this case. Therefore to pull the rug from underneath the feet of respondent no.1 when he is on the threshold of obtaining an appointment would be both unjust and 10. Before we conclude we would like to deal with the submission made inequitable. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified by Mr. Banerjee that the writ petition should not have been entertained as the jurisdiction lay with the Principal Bench of the High Court of Madhya Pradesh at Jabalpur. 10.1 Obviously this objection with regard to the territorial jurisdiction was not pressed before the learned single judge. 10.2. In support of his plea Mr. Banerjee has drawn our attention to ground M of the appeal and the counter affidavit filed by the appellant in the writ petition. A close perusal of ground M of the appeal would show that it is not the assertion of the appellant that even though the said ground was pressed the learned single judge failed to deal with the same. 10.3. Hence in effect what follows as a logical sequitur is that this objection was not pressed on behalf of the appellant. 10.4. Insofar as the objection with regard to the territorial jurisdiction is concerned if the same is not pressed in the first instance and it does not lead to failure to justice then on that score the order assailed cannot be set aside. 10.5. We may also note that in paragraph 23 of the writ petition respondent no.1 has made assertions as to why jurisdiction lay with this Court. For the sake of convenience assertions made therein are extracted “23. The Petitioner resides within the territorial jurisdiction of this Hon ble Court. The Petitioner has applied for the post in the Respondent No. 2 from Delhi. The appointment letter has been issued to the Petitioner by the Respondent in Delhi. The Respondent Nos. 1 and 3 are situated in Delhi. The Petitioner has made representations to the Respondent No. 3 to issue an appropriate EWS certificate in Delhi. Therefore this Hon ble Court has territorial jurisdiction to adjudicate the Writ LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified Petition.” 10.6 A careful perusal of the aforesaid extract would show that if not fully at least a part of cause of action lies in Delhi. The inaction of GNCTD i.e. respondent no.3 in the writ petition in not processing respondent’s request to issue an Income and Asset Certificate EWS certificate for the relevant FY i.e. 2019 2020—did furnish a cause of action in favour of the respondent. Therefore it is not a case where courts in Delhi could not have exercised jurisdiction. 10.7. The failure on the part of the appellant to press the objection at the appropriate stage has denuded the appellant of the right to question the institution of the action in this court. The objection with regard to territoriality in law is markedly different from objection concerning subject matter jurisdiction. The latter can be raised at any stage. 11. We may also record that we are informed that the concerned SDM has issued an Income and Asset Certificate to respondent no.1 for the relevant FY i.e. FY 2019 20. 12. Therefore for the aforesaid reasons we are not inclined as noted above to interdict the judgment of the learned single judge. 13. The appeal is accordingly dismissed. Consequently pending applications shall also stand closed. RAJIV SHAKDHER J OCTOBER 7 2021 pmc Click here to check corrigendum if any TALWANT SINGH J LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified 

Summary: If delayed submission of the Income and Asset Certificate/EWS certificate does not harm or cause detriment to anyone’s interest, some slack can be cut  as held by the Hon’ble High Court of Delhi through the learned bench lead by Justice Rajiv Shakdher in the case of Northern Coalfields Limited v. Chaman Gupta &amp; Anr. (LPA 364/2021 and CM Nos. 35520-21/2021) The brief facts of the case are that this appeal is directed against the judgment passed by the learned single judge. The issue, which arose for consideration before the learned single judge, was, as to whether respondent no.1 ought to be given leeway for production of the Income and Asset Certificate, concerning the relevant financial year. It is not in dispute that, respondent no.1 qualified the written LPA examination, and was issued a provisional appointment letter, against the subject post reserved for Economically Weaker Section (EWS) category. Mr. Vikramjeet Banerjee, learned Additional Solicitor General (ASG), who appears on behalf of the appellant, submitted that, the learned single judge erred in directing the concerned authority, working under the sway of the Government of NCT of Delhi to examine the representation filed by respondent no.1 for issuance of Income and Asset Certificate concerning the relevant FY i.e., 2019-2020. The appellant is aggrieved by the direction issued by the learned single judge, whereby it has been provided that respondent no.1 will continue to work with the appellant till such time, respondent no.1’s representation is considered by GNCTD. After hearing both the parties at length, the Hon’ble High Court held, “ The inaction of GNCTD i.e., respondent no.3 in the writ in not processing respondent’s request to issue an Income and Asset Certificate/EWS certificate for the relevant FY i.e., 2019-2020—did furnish a cause of action in favour of the respondent. Therefore, it is not a case where courts in Delhi could not have exercised jurisdiction. The failure on the part of the appellant to press the objection at the appropriate stage has denuded the appellant of the right to question the institution of the action in this court. The objection with regard to territoriality, in law, is markedly different from objection concerning subject matter jurisdiction. The latter can be raised, at any stage. Therefore, for the aforesaid reasons, we are not inclined, as noted above, to interdict the judgment of the learned single judge. The appeal is, accordingly, dismissed.”