RAM KUMAR GIJROYA Vs. DELHI SUB. SERVICES SELECTION BD. & ANR.
Supreme Court of India
Appeal (Civil), 1691 of 2016, Judgment Date: Feb 24, 2016
|NON-REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1691 OF 2016
(Arising Out of SLP (C) No.27550 of 2012)
RAM KUMAR GIJROYA …………APPELLANT
Vs
DELHI SUBORDINATE SERVICES
SELECTION BOARD & ANR. ………RESPONDENTS
WITH
CIVIL APPEAL NO.1692 OF 2016
(Arising Out of SLP (C) No.27551 of 2012)
WITH
CIVIL APPEAL NO.1693 OF 2016
(Arising Out of SLP (C) No.309 of 2013)
AND
CIVIL APPEAL NO.1694 OF 2016
(Arising Out of SLP (C) No.21445 of 2013)
J U D G M E N T
V. GOPALA GOWDA, J.
Leave granted.
The present appeals arise out of the impugned common judgment and order
dated 24.01.2012 passed by the High Court of Delhi in Letters Patent Appeal
No.562 of 2011 and Writ Petition (C) No. 8087 of 2011 whereby the High
Court set aside the judgment and order dated 24.11.2010 passed in Writ
Petition (C) No. 382 of 2009, wherein the learned single Judge had allowed
the Writ Petition and directed the respondents to accept the O.B.C.
certificate of the appellants herein.
The important question of law to be decided in these appeals is whether a
candidate who appears in an examination under the O.B.C. category and
submits the certificate after the last date mentioned in the advertisement
is eligible for selection to the post under the O.B.C. category or not.
As the question of law arising in all these appeals is similar, for the
sake of convenience and brevity, we refer to the facts of Civil Appeal
arising out of SLP(C) No.27550 of 2012, which has been filed against the
impugned judgment and order dated 24.01.2012, The necessary relevant facts
required to appreciate the rival legal contentions advanced on behalf of
the parties are stated in brief hereunder :-
The respondent-Delhi Subordinate Services Selection Board
(hereinafter referred to as “the DSSSB”) invited applications for selection
to the post of Staff Nurse in the Department of Health and Family Welfare,
Govt. of NCT of Delhi by way of publishing an Advertisement No. 09/2007 in
the Newspaper. The last date of submission of the application form in the
advertisement for the said post was 21.01.2008. The appellant submitted his
application form before the due date and was subsequently issued the admit
card to appear in the examination. Having appeared in the examination, he
was shortlisted for selection. However, his name did not appear in the
final list of selected candidates. On enquiry, he was informed by the
concerned official that he was not selected to the post for the reason that
he had failed to submit the OBC certificate issued by the appropriate
authority along with application form before the last date of submission of
application form.
Aggrieved of the action of respondent-DSSSB, the appellant, along with
the other aggrieved candidates, filed Writ Petition(C) No.382 of 2009
before the learned single Judge of the High Court of Delhi, seeking the
issuance of a writ of mandamus commanding the respondent-DSSSB to accept
the OBC certificates submitted by them after the cut off date for selection
to the post of Staff Nurse in the Department of Health and Family Welfare,
Government of NCT of Delhi as provided in the advertisement. The appellant
relied on the judgment dated 11.02.2009 passed in Writ Petition (C) No.
9112 of 2008 by the High Court of Delhi in the case of Pushpa v. Government
of NCT of Delhi and Ors., whereby the High Court had granted O.B.C. benefit
to the petitioners therein.
The learned single Judge disposed of the writ petition vide judgment and
order dated 24.11.2010, placing reliance on the judgment in the case of
Pushpa (supra), wherein the controversy centred around the same
advertisement/Notification issued by the same respondent. The learned
single Judge observed that the only ground for declining the applications
filed by the appellants was that the O.B.C. certificates had been issued
and submitted after the cut off date and therefore they were not eligible
for appointment to the post. The learned single Judge further held that the
respondent did not cite any other authority to distinguish the decision in
Pushpa’s case (supra) from the facts of the present case. Consequently, the
learned single Judge disposed of the writ petition and directed the
respondent to reconsider the application of the appellant and the other
aggrieved candidates against the O.B.C. category within a period of one
month.
Aggrieved, the respondent-DSSSB filed Letters Patent Appeal No. 562 of
2011 before the Division Bench of Delhi High Court. The High Court vide its
judgment and order dated 24.01.2012 held that the appellant had applied for
the O.B.C. certificate ten days before the cut off date, which was not the
same as in Pushpa’s case (supra). In the case of Pushpa, the application
for the O.B.C. certificate had been filed much before the date of
advertisement. It was observed that the advertisement in the present case
was published on 30.08.2007 and the last date of submission of the
application form was 21.01.2008 and the appellant herein applied for O.B.C.
certificate only ten days prior to the cut off date and hence, no case for
grant of relief in favour of the appellant was made out. The High Court,
thus, set aside the order of the learned single Judge and allowed the
Letters Patent Appeal filed by the respondent-DSSSB. Hence, the present
appeal.
Mr. R.C. Kaushik, the learned counsel appearing on behalf of the appellant
contends that the Division Bench of the High Court erred in not giving the
opportunity to the appellant to submit the O.B.C. certificate after the cut-
off date of the application. The requirement of submitting the O.B.C.
certificate before the cut-off date of the application was introduced by
the respondent-DSSSB only while declaring the result on 15.12.2008, holding
that the appellant was not eligible for selection of the post of Staff
Nurse as the O.B.C. certificate was received after cut-off date. The
learned counsel contends that the stand of respondent-DSSSB is arbitrary,
illegal and unreasonable and is also contrary to the settled proposition of
law and guidelines issued on reservation and concession for candidates
belonging to the reserved categories. The learned counsel places reliance
upon the judgment of the Delhi High Court in the case of Tej Pal Singh &
Ors. v. Govt. Of NCT of Delhi[1], wherein it was categorically held by the
High Court that the petitioners therein were entitled to submit such
certificates even after the cut-off date fixed by the advertisement.
The learned counsel further contends that this Court in the cases of
Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors.[2] and Delhi
Transport Corporation v. D.T.C. Mazdoor Congress & Ors.[3] has held that
the State is meant to be a model employer and must give due importance to
the fundamental rights of equality and opportunity in the matter of public
appointment guaranteed under Articles 14 and 16 of the Constitution of
India.
On the other hand, Mr. Ranjit Kumar, the learned Solicitor General
appearing on behalf of the respondent-DSSSB sought to justify the impugned
judgment and order contending that the impugned judgment and order does not
suffer from any illegality and need not be interfered with by this Court.
The learned Solicitor General further contends that the Division Bench of
the High Court was justified in not allowing the appellant to submit the
O.B.C. certificate after the cut-off date fixed in the advertisement as the
appellant had failed to submit the required certificate for availing the
benefit of reservation within the stipulated time and thus, he had waived
of his right for being considered under the reserved category.
It is further contended by the learned Solicitor General that no
substantial question of law arises in the present appeal to invoke the
jurisdiction of this Court under Article 136 of the Constitution.
After hearing both the parties at length and perusing the impugned judgment
and order passed by the Division Bench of the High Court, we are of the
view that the Division Bench erred in setting aside the judgment and order
passed by the learned single Judge. We record our reasons hereunder.
The Division Bench of the High Court erred in not considering the decision
rendered in the case of Pushpa (supra). In that case, the learned single
Judge of the High Court had rightly held that the petitioners therein were
entitled to submit the O.B.C. certificate before the provisional selection
list was published to claim the benefit of the reservation of O.B.C.
category. The learned single judge correctly examined the entire situation
not in a pedantic manner but in the backdrop of the object of reservations
made to the reserved categories, and keeping in view the law laid down by a
Constitution Bench of this Court in the case of Indra Sawhney v. Union of
India[4] as well as Valsamma Paul v. Cochin University & Ors.[5] The
learned single Judge in the case of Pushpa (supra) also considered another
judgment of Delhi High Court, in the case of Tej Pal Singh (supra), wherein
the Delhi High Court had already taken the view that the candidature of
those candidates who belonged to the S.C. and S.T. categories could not be
rejected simply on account of the late submission of caste certificate.
The relevant paragraph from the judgment of this Court in the case
of Indra Sawhney (supra) has been extracted in the case of Pushpa (supra)
along with the speech delivered by Dr. Ambedkar in the constituent assembly
and reads thus :-
“9…..
xxx xxx xxx
251. Referring to the concept of equality of opportunity in public
employment, as embodied in Article 10 of the draft Constitution, which
finally emerged as Article 16 of the Constitution, and the conflicting
claims of various communities for representation in public administration,
Dr Ambedkar emphatically declared that reservation should be confined to ‘a
minority of seats’, lest the very concept of equality should be destroyed.
In view of its great importance, the full text of his speech delivered in
the Constituent Assembly on the point is appended to this judgment. But I
shall now read a few passages from it. Dr Ambedkar stated:
“… firstly, that there shall be equality of opportunity, secondly, that
there shall be reservations in favour of certain communities which have not
so far had a ‘proper look-in’ so to say into the administration ….
Supposing, for instance, we were to concede in full the demand of those
communities who have not been so far employed in the public services to the
fullest extent, what would really happen is, we shall be completely
destroying the first proposition upon which we are all agreed, namely, that
there shall be an equality of opportunity …. Therefore the seats to be
reserved, if the reservation is to be consistent with sub-clause (1) of
Article 10, must be confined to a minority of seats. It is then only that
the first principle could find its place in the Constitution and effective
in operation … we have to safeguard two things, namely, the principle of
equality of opportunity and at the same time satisfy the demand of
communities which have not had so far representation in the State, …”.
Constituent Assembly Debates, Vol. 7, pp. 701-702 (1948-49).
These words embody the raison d’etre of reservation and its limitations.
Reservation is one of the measures adopted by the Constitution to remedy
the continuing evil effects of prior inequities stemming from
discriminatory practices against various classes of people which have
resulted in their social, educational and economic backwardness.
Reservation is meant to be addressed to the present social, educational and
economic backwardness caused by purposeful societal discrimination. To
attack the continuing ill effects and perpetuation of such injustice, the
Constitution permits and empowers the State to adopt corrective devices
even when they have discriminatory and exclusionary effects. Any such
measure, in so far as one group is preferred to the exclusion of another,
must necessarily be narrowly tailored to the achievement of the fundamental
constitutional goal.”
In the case of Pushpa (supra), relevant paragraphs from the case of Tej
Pal Singh (supra) have also been extracted, which read thus :-
“11……
xxx xxx xxx
17. The matter can be looked into from another angle also. As per the
advertisement dated 11th June, 1999 issued by the Board, vacancies are
reserved for various categories including 'SC' category. Thus in order to
be considered for the post reserved for 'SC' category, the requirement is
that a person should belong to 'SC' category. If a person is SC his is so
by birth and not by acquisition of this category because of any other event
happening at a later stage. A certificate issued by competent authority to
this effect is only an affirmation of fact which is already in existence.
The purpose of such certificate is to enable the authorities to believe in
the assertion of the candidate that he belongs to 'SC' category and act
thereon by giving the benefit to such candidate for his belonging to 'SC'
category. It is not that petitioners did not belong to 'SC' category prior
to 30th June, 1998 or that acquired the status of being 'SC' only on the
date of issuance of the certificate. In view of this position,
necessitating upon a certificate dated prior to 30th June, 1998 would be
clearly arbitrary and it has no rationale objective sought to be achieved.
18. While taking a particular view in such matters one has to keep in mind
the objectives behind the post of SC and ST categories as per
constitutional mandate prescribed in Articles 15(4) and 16(4) which are
enabling provisions authorising the Government to make special provisions
for the persons of SC and ST categories. Articles 14(4) and 16(4),
therefore, intend to remove social and economic inequality to make equal
opportunities available in reality. Social and economic justice is a right
enshrined for protection of society. The right in social and economic
justice envisaged in the Preamble and elongated in the Fundamental Rights
and Directive Principles of the Constitution, in particular Arts. 14, 15,
16, 21, 38, 39 and 46 are to make the quality of the life of the poor,
disadvantaged and disabled citizens of the society meaningful.”
Further, in the case of Pushpa (supra), relevant portion from the judgment
of Valsamma Paul’s case (supra) has also been extracted, which reads as
under:-
“21. The Constitution through its Preamble, Fundamental Rights and
Directive Principles created a secular State based on the principle of
equality and non-discrimination, striking a balance between the rights of
the individuals and the duty and commitment of the State to establish an
egalitarian social order.”
In our considered view, the decision rendered in the case of Pushpa (supra)
is in conformity with the position of law laid down by this Court, which
have been referred to supra. The Division Bench of the High Court erred in
reversing the judgment and order passed by the learned single Judge,
without noticing the binding precedent on the question laid down by the
Constitution Benches of this Court in the cases of Indra Sawhney and
Valsamma Paul (supra) wherein this Court after interpretation of Articles
14,15,16 and 39A of the Directive Principles of State Policy held that the
object of providing reservation to the SC/ST and educationally and socially
backward classes of the society is to remove inequality in public
employment, as candidates belonging to these categories are unable to
compete with the candidates belonging to the general category as a result
of facing centuries of oppression and deprivation of opportunity. The
constitutional concept of reservation envisaged in the Preamble of the
Constitution as well as Articles 14, 15, 16 and 39A of the Directive
Principles of State Policy is to achieve the concept of giving equal
opportunity to all sections of the society. The Division Bench, thus, erred
in reversing the judgment and order passed by the learned single Judge.
Hence, the impugned judgment and order passed by the Division Bench in the
Letters Patent Appeal No. 562 of 2011 is not only erroneous but also
suffers from error in law as it has failed to follow the binding precedent
of the judgments of this Court in the cases of Indra Sawhney and Valsamma
Paul (supra). Therefore, the impugned judgment and order passed by the
Division Bench of the High Court is liable to be set aside and accordingly
set aside. The judgment and order dated 24.11.2010 passed by the learned
single Judge in W.P. (C) No. 382 of 2009 is hereby restored.
The appeals are allowed. No costs.
……………………………………………CJI.
[T.S. THAKUR]
…………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
February 24, 2016
ITEM NO.1A-For Judgment COURT NO.9 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).1691/2016 @ SLP(C) No(s). 27550/2012
RAM KUMAR GIJROYA Appellant(s)
VERSUS
DELHI SUB. SERVICES SELECTION BD. & ANR. Respondent(s)
WITH
Civil Appeal No(s).1692/2016 @ SLP(C) No(s). 27551/2012
Civil Appeal No(s).1693/2016 @ SLP(C) No(s). 309/2013
Civil Appeal No(s).1694/2016 @ SLP(C) No(s). 21445/2013
Date : 24/02/2016 These appeals were called on for pronouncement of
JUDGMENT today.
For Appellant(s)
Mr. R. C. Kaushik,Adv.
Mr. Piyush Sharma,Adv.
Mr. Rameshwar Prasad Goyal,Adv.
For Respondent(s)
Mr. D. S. Mahra,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment
of the Bench comprising Hon'ble the Chief Justice and His Lordship.
Leave granted.
The appeals are allowed in terms of the signed Non-
Reportable Judgment.
Pending application(s), if any, stand(s) disposed of.
|(VINOD KUMAR) | |(MALA KUMARI SHARMA) |
|COURT MASTER | |COURT MASTER |
(Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1] [2] ILR 2001 Delhi 298
[3] [4] (2006) 4 SCC 1
[5] [6] 1991 Supp(1) SCC 600
[7] [8] 1992 (Supp) 3 SCC 217
[9] [10] (1996) 3 SCC 545
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