Petitioners challenging termination orders held that a Jat applicant belonging to a State OBC list but not the Central list lacked eligibility for OBC reservation in a central public sector corporation like ESIC.
Writ petitions dismissed without orders as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date ofdecision;13"' September,2011.
WRIT PETITIONrCTVTT.)N0.6526/2nit
iqbal khatri and ors
Petitioner Through Mr. Sanjeev Sachdeva, Sv: Advocate with Mr. Ankur Garg and Mr. Sougat Ganguly, Advocates.
versus
EMPLOYEESSTATE INSURANCECORPORATIONAND ANR
Respondent Through Ms. RekhaPalli and Ms. Punam Singh, Advocates.
WRIT PETITION rCIVIT.^NQ. 6627/2011
DHEERAJ TANWAR
Petitioner Through Mr. Manish Jain, Mr. Ankur Garg and Mr. Sougat Ganguly, Advocates.
versus
ESIC AND ANR
Respondent Through Ms. RekhaPalli and Ms. Punam Singh, Advocates.
WRIT PETITION rCIVIL^ N0.6628/2ni 1
SATPAL.GAHLOT
Petitioner Through Mr. Manish Jain, Mr. Ankur Garg and Mr. Sougat Ganguly, Advocates.
W.P.(C) Nos.6526&6627-30/2011
Page 1 of 13
2--
versus
ESIC AND ANR
Kespondent Through Ms. Rekha Palli and Ms. Punam Singh, Advocates.
WRIT PETITIONrCTVTT.)NO. 6629/?.ni1
BIJENDERSINGH
Through Mr. Manish Jain, Mr. Ankur Garg and Mr. Sougat Ganguly, Advocates.
versus
ESIC AND ANR
Througli Ms. Rekha Palli and Ms, Punam Singh, Advocates.
^RIT PETITIONrCIVIL^ ND.fi/iWnnil
SAMAR SINGH
'
Through Mr. Manish Jain, Mr. Ankur Garg and Mr. Sougat Ganguly,
Advocates.
versus
ESIC AND ANR Respondent
Through Ms. RekhaPalH and Ms. Punam Singh, Advocates.
CORAM;
HON^BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
W.P.(C) Nos.6526&6627-30/2011 pgge 2of 13
3
DIPAK MISRA, CJ.:
Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 30"' August, 2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, 'the tribunal') in four original applications preferred under Section 19 of the Administrative Tribunals Act, 1985. As the tribunal has disposed of the original applications by a common order, we propose to dispose of these writ petitions by a singular order.
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)
communitydoes not find place in the OBC list prepared by the Central Government.
(i) The tribunalhas failed to take note of the languageemployedin the advertisementinasmuchas the advertisementdoes not specifyfrom which categorycertificatei.e.. State list or Central list, shouldbe filed, but it only mentions 'OBC category' and, therefore, the order
W.P.(C) Nos.6526 &6627-30/2011
Page 4 of 13
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impugned becomes unsustainable in law.
(ii) There is no cavil over the factum that the petitionersbelong to Jat community in Delhi and when they have been extended/conferred the benefit of appointment without any kind of stipulation, the employer could not have terminated their services as there had been no misrepresentation by them.
(iii) The decisioninSatishKumar and Another Vs. Union ofIndia and Others (LPA No.529/2004) decided on 3''' August, 2007 is distinguishable inasmuch as in the said case, the advertisement stipulatedwhat was requiredfrom a candidatebeing the productionof the certificatepertaining to OBC category and when there is no such postulate in the advertisement, the order of termination is untenable and the stamp of approval given to it by the tribunal is vulnerable.
W.P.{C) Nos.6526&6627-30/2011 '
Page 5of 13
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The learned counsel would further submit that there is a laudable purpose behind the same inasmuch as a particular community may not be available in number of States and in that contingency, reservation would stand restricted to one or two cases. It is contended by her that while the advertisement nowhere stipulates anything in this regard except mentioning "OBC category" and number of posts in the OBC category, when the advertisement has been issued by a central corporation,it is clearlyluculentthatacandidatebelongingto the OBC categorywhich fmds place in the centrallisthas the eligibilityto apply in that categoryand no objectioncan be taken in that regardby raising a mercurial plea that which category can apply was not mentioned in the advertisement.Elaboratingthe same, it is urged by her that when there are decisions in the field, the Central Government has its own significance and sanctity and in no circumstances can an advertisement override the same. Ms. Palli would further submit that an attempt to distinguish the decision in Satish Kumar (supra) is an exercise in futility because in the said decision, though it was mentioned that there was reference to the advertisement, yet that will not be sufficient to draw a distinction as the ratio applies to the case at hand on all fours. 7. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the order passed by the tribunal and bestowed
W.P.(C) Nos.6526 &6627-30/2011
Page 6 of 13
our anxious consideration on the submissions canvassed by the learned counsel for the parties. The centipodal issue that emanates for considerationis whether a candidatebelongingto OBC category could have applied in the same category for a post under the Corporation which is a central corporation created by an enactment of the Parliament.It is not disputedbeforeus that the Jat communitydoes not find mentionin the central list. In the case of Satish Kumar (supra),a Division Bench of this Court referred to the factual matrix and the conditionsincorporatedin the advertisementand expressedthe view as follows:-
_J
"7. The Central Government has notified communities that are OBCs and entitled to employment on posts reserved for OBCs. Jat community is not included in the said list notified by the Central Government. AAI, the respondentis a publicsectorenterprisebelongingto the Central Government and is following the Central Government list with regard to appointment to posts reserved for OBCs. Being a Central Govemment enterprise, it is bound by the instructions issued by the Central Govemment in this regard. The Central Govemment vide its Office Memoramdum dated IS*'^ January, 1995 has stipulated that instmctions issued thereunder would govem public sector enterprise, financial institutions and public sector banks, that is, all public sector enterprises. By another Office Memoramdum dated 22"^ October, 1993, the Central Government has specified that OBC certificate for appointment to reserved posts should be in terms of the prescribed proforma, which the appellants must produce to be eligible for appointment to the reserved post. There is no specific challenge to the said
W.P.(C) Nos.6526 &6627-30/2011
Page 7 of 13
notificationsin the writ petition.We are not examining the vires and vahdity of the said notifications.
u
"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backwardclasses in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totallynon est in another State to which persons belonging thereto may migrate. Coincidentallyit may be
W.P.{C) Nos.6526&6627-30/2011 Page 8of13
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that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitutethe input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefit s admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitutionmakers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under : "He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to W.P.(C) Nos.6526 & 6627-30/2011 Page 9 of 13
enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them..." . Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin."
T J
W.P.{C) Nos.6526&6627-30/2011
Page10 of 13
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Mr. Sachdeva and Mr. Jain that the petitioners were appointed in 2006 andare continuing,but becauseof the decisionrenderedbythe tribunal in the case of Shyam and Others (supra), they have been visited with the order of termination. It is argued by them that at the stage when the advertisementwas published, there was no distinction between the Central list and State list and, therefore, adverse consequences could not have visited them. It is urged by them that the clarification only came into existence in 2008 after the amendment. The learned counsel has referredto the officememorandumdated 4^*^ June, 2008. It reads as
follows:-
.y-
"No.36028/l/2008-Estt.(Res)
Government of India
Ministry of Personnel,Public Grievances & Pensions Department of Personnel & Training
New Delhi, dated 4^^ June, 2008 OFFICE MEMORANDUM Subject:- Clarificationregardingreservationunder OBC category
10
V .J
The under undersigned is directed to refer to the Ministry of Labour & Employment's O.M.No.A-12034/2/2008-SS.Idated V"' May 2008 on the above noted subject and to say that the candidates belonging only to such castes/communities are entitled to get the benefit of reservation in. services under the Government of India which are included in the OBC list prepared by the Ministry of Social Justice & Empowerment, Government of India."
The tribunal in the case of Shyam and Others (supra) has referred to W.P.(C) Nos.6526&6627-30/2011 Page11 of 13
the office memorandum of the DOP&T dated 13^ August, 1990 as modified on September, 1993 and 13^^ January, 1995. It states as
follows;-
"(d) The OBCs for the purpose of the aforesaid reservation would compromise, in the first phase, the castes and communitieswhich are common to both the lists in the report of the Mandal Commission and the State Governments' Lists. A list of such castes and communities is being issue separatelyby the Ministry of Welfare. (See Appendix-2)."
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"4. From the material on record, it is clear that the appointments which were given to the
W.P.(C) Nos.6526&6627-30/2011 Page 12of13
11
appellants were under a bona fide mistake by considering them as Scheduled Tribe candidates, though it is clear that this mistake was not occasioned on account of any mistake by the appellants. Three out of four appellants belong to the Scheduled Caster category and had given their case certificate while the fourth appellant was in the open category and had not submitted any certificate. The mistake appears to be on the part of the respondents. On discovery of the mistake, they had immediatelycorrected the situation and the Tribunal has upheld their right to correct this
mistake."
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CHIEF JUSTICE
^ SANJIV KHANNA, J.
SEPTEMBER 13,2011
NA
W.P.(C) Nos.6526 & 6627-30/2011
Page 13 of 13
3 issues framed by the court
Whether an employee appointed under the OBC category for a Central Government Corporation can claim the benefit of reservation when their caste is not listed in the Central Government's OBC list?
Whether the lack of explicit stipulation regarding the Central or State list in the recruitment advertisement creates a right to claim OBC reservation?
Whether an appointment made in bona fide mistake justifies continuing service when the candidate does not belong to the reserved category under Central rules?
Colour shows how this judgement treated each authority
Shyam & Others Vs. ESIC Ltd. & OthersFollowed¶51
Shyam & Others Vs. Employees State Insurance Corporation Ltd. & Others (TA-38/2010)
Satish Kumar v. Union of IndiaDistinguished¶59
Satish Kumar and Another Vs. Union of India and Others (LPA No.529/2004)
Action Committee v. Union of IndiaReferred¶78
Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra versus Union of India [(1994) 5 SCC 244]
Kishorilal Charmakar v. District Education OfficerDistinguished¶112
Kishorilal Charmakar and Another Vs. District Education Officer and Another (1998) 9 SC 395
4 provisions across 3 enactments
Iqbal Khatri and ors
Dheeraj Tanwar
Satpal Gahlot
Bijender Singh
Samar Singh
Employees State Insurance Corporation
Justice Dipak Misra
Justice Sanjiv Khanna
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
Justice Dipak Misra and Justice Sanjiv Khanna
Parties & counsel
