Delhi High CourtDelhi Subordinate Services Selection ... vs Ms. Rekhawati & Another on 17 February, 2010Author:Anil KumarBench:Anil Kumar*                 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 1 of 29
                                          And

+                W.P. (C.) No. 13913/2009 & CM.No.15827/2009

Delhi Subordinate Services Selection Board &      .... Petitioners
Another
                     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 2 of 29
 HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                 YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   YES
3.     Whether the judgment should be reported in               YES
       the Digest?


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 isW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 3 of 29acquired 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 4 of 293.      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 17W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 5 of 29November, 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 aW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 6 of 29Single 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 titledAnu 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 SubordinateW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009     Page 7 of 29Services      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 VsW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                     Page 8 of 29DSSSB & 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,2008c.      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. TheW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                   Page 9 of 29respondent 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 10 of 29164/07) 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 11 of 29d.      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 12 of 29d.      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     writtenW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                     Page 13 of 29examination 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 14 of 294.      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 before the

closing date.5.      The petitioners also asserted that considering the cases of the

respondents shall be discriminatory, as a number of candidates who did

not possess the OBC certificate on the closing date for applying may not

have submitted their applications and thus it will cause injustice to

such candidates. Distinguishing the case of Tej Pal Singh (supra) it was

contended that the said cases pertained to schedule caste and

scheduled Tribes and not to OBC category. Regarding OBC category it is

submitted that not only the caste is relevant but the fact that the

candidate does not belong to creamy layer. The fact that the candidate

did not belong to creamy layer could be ascertained only at the time of

issuing of the OBC certificate.W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009              Page 15 of 296.      The learned counsel for the petitioners has relied on (2009) 2 SCC

(L&S) 265, U.P State Public Service Commission v. Satya Narayan

Sheohare and Ors; JT 1998 (9) SC 190 State of Haryana and Ors v.

Anurag Srivastava and Ors; AIR 2000 SC 2011, Bhupinderpal Singh

and Ors v. State of Punjab and ors;AIR 2003 SC 4411, State of U.P v.

Vijay Kumar Mishra; (2007) 4 SCC 54 in support of her contention that

acquiring certificates by the respondents being OBCs after the last date

for applying, is acquiring qualification after the last date of filing the

application and so they are not eligible for selection.7.      The writ petitions were contested by the respondents contending

inter alia that the candidates had applied for OBC certificates prior to

last date for submission of application forms. It is emphatically asserted

by the respondents that the notices were given to them directing them

to submit the OBC certificates failing which their selection shall be

cancelled. The notices given by the petitioners were categorical to

submit the OBC certificates by a particular date and the respondents

had submitted the OBC certificates before the said date. In the

circumstances, it is contended that their selection in the category of

OBC could not be cancelled on the ground that the OBC certificates

were not submitted along with the application forms by 29th October,

2007.W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 16 of 298.      The learned counsel appearing for respondent no.1 in various writ

petitions have relied on W.P(C) No.548/2008 titled Govt of NCT of Delhi

and Anr v. Ms.Poonam Chauhan decided on 9th July, 2008; AIR 2009

SCC 2827; AIR 1975 SC 1994, J.R.Sen Gupta v. A.K.Bose; 1985 (4)

SCC 71, 2001 98) SCC 24, Shyam Sunder v. Ram Kumar and Anr in

support of their contentions and pleas. The learned counsel for the

respondents have also contended that if two interpretations can be

given to the expression, then a liberal and wider interpretation should

be given and not a narrow and technical one, as the reservation for OBC

candidate is a beneficial piece of legislation.The learned counsel has

relied on (2008) 9 SCC 527, Union of India Vs Prabhakaran Vijaya

Kumar.9.      The learned counsel for the parties were heard at length in

support of their pleas and contentions. This is no more res integra that

if requisite qualifications are obtained after the last date, it will not

entitle a candidate for selection.InState of Haryana and Ors v. Anurag

Srivastava and ors(supra), the last date for submitting the application

was 7th January, 1982 on which date the candidate did not possess the

master‟s degree in Modern Indian History.Though she had a master‟s

degree in Modern Indian History in Group A, however, she obtained M.A

in History in Group B on 16th July, 1981 and it was held that she had

obtained the requisite qualification after the last date and relying on

Ashok Kumar Sharma v. Chandershekhar, JT 1997 (4) SC 99 andW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009   Page 17 of 29Rekha Chntuwedi v. University of Rajasthan, JT 1993 (1) SC 220

holding that qualifications have to be considered as they are possessed

on the last date of filing of the application, it was held that the

candidate was not entitled to be selected. In Bhupinderpal Singh

(supra) the Supreme Court did not allow the practice to consider the

date of eligibility as the date of interview. The Apex Court reiterated that

the date of eligibility shall be the date of making the application or the

last date fixed for receipt of applications.Similarly, inState of U.P v.

Vijay Kumar Mishra (Supra) it was held that the applicant not

possessing prescribed qualification on the date of application and

acquiring       qualification       subsequently          cannot   be   considered     for

appointment in absence of any power with the appointing authority to

relax the qualification nor such a candidate can be compared with the

candidate who possess the prescribed qualification on the date of

application.10.     Where no cut off date is specified in the advertisement or in the

rule, the Apex Court in Ashok Kumar Sonkar (Supra) held that the last

date for filing the application must be considered as a cut off date. In

this case, as the applicant did not hold the requisite qualification on the

cut off date, it was held that he was not eligible for appointment to the

said post. The Supreme Court further held that if an appointment is

irregular it can be regularised but if it is illegal then it is non est in the

eye of law and is a nullity. The Apex Court rather held that equityW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                 Page 18 of 29jurisdiction of the Supreme Court cannot be invoked in a case of illegal

appointment.11.InU.P.Public Service Commission(Supra) relied on by the

petitioners it was held that whenever (Reservation for Scheduled Castes,

Scheduled Tribes and other Backward Classes) Act, 1994 was amended

by including any caste/classes in the list of OBC in the Schedule I, then

the date of amendment to the act would be the date of commencement

of the act in regard to such caste/class inserted by amendment. In this

case the applicants were general category candidates when recruitment

notification dated 4th March, 2000 was issued, however, the act was

amended on 7th July, 2000 before the commencement of written test on

4th August, 2000 and therefore the candidate belonging to OBC became

entitled to claim benefit of reservation and they also secured necessary

certificate and gave their representations without any delay on 29th

August, 2000 and 13th September, 2000 and in these circumstances it

was held that they were entitled for reservation.12.     The     learned      counsel      for    the    respondents,   however,    have

contended that the respondents belong to OBC which caste were

notified as backward classes prior to the last date for applying. In the

circumstances, it cannot be held that the eligibility on account of being

a backward class was acquired by the respondents after the last date

for applying for the selection. It is asserted that acquisition of certificateW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                Page 19 of 29in order to demonstrate that they belong to backward classes and the

reservation in that respect cannot be equated with acquiring the

educational eligibility and non submission of OBC certificates by the

last date for application and submitting later on after it was demanded

by the petitioners within the reasonable time will not be such a lacunae

which should be a ground to deprive them of their right which has been

conferred on the basis of a beneficial piece of legislation which is

(Reservation for Scheduled Castes, Scheduled Tribes and other

Backward Classes) Act, 1994. It is contended by the respondents that

the petitioners had the power to extend the time to submit the caste

certificate which was done by them by giving notice and demanding the

certificates by extended time stipulated in the notices. In Jnan Ranjan

Sen Gupta and Ors (Supra) while dealing with the ambit of erection of

structure on land underCalcutta Thika Tenancy Actthe Supreme

Court had held that it was a piece of beneficial legislation conferring

certain rights upon the tenancies and in dealing with such provisions of

law something which is not already there cannot be read in it, as

reading such a thing which is not in the provision will lead to imposing

a restriction upon the rights of the class of tenants by judicial

interpretation which is not permissible in absence of express words to

that effect or necessary manifest intendment.13.     Dealing with the principle of statutory construction inAmerican

Express International Banking Corporation(Supra) the Supreme CourtW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009   Page 20 of 29has held that the words occurring in statutes of liberal import such as

social welfare legislation and human rights‟ legislation are not to be put

in Procrustean beds or shrunk to Lilliputian dimensions. It was held

that literal construction must be avoided and the prodigality of its

misapplication must be recognized and reduced and Judges ought to be

more concerned with the „color‟, the „content‟ and the „context‟ of such

statutes.Similarly, in Shyam Sunder and Ors (Supra) it was held that if

it is found that there is a doubt in regard to the meaning of a provision

or words used in the provisions of an enactment, it is permissible for

the court to apply the rule of benevolent construction to advance the

object of the Act. Ordinarily, the rule of benevolent construction has

been applied while construing welfare legislations or provisions relating

to the relationship between weaker and stronger contracting parties.While interpreting "accidental falling off a passenger from a train

carrying passengers" it was held by the Supreme Court inUnion of

India Vs Prabhakaran Vijaya Kumar(supra) that adopting a restrictive

meaning will deprive a large number of railway passengers from getting

compensation in railway accidents. In the circumstances it was held

that the expression "accidental falling of the passengers from the train

carrying passengers" would include accidents when a bone fide

passenger i.e. a passenger travelling with a valid ticket or pass is trying

to enter into a railway train and falls down during the process. It was

held that a purposive and not literal interpretation should be given to

the expression.W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 21 of 2914.     In Govt. Of NCT of Delhi and anr. Vs Poonam Chauhan, 152

(2008) DLT 224 (DB) the candidature of the candidate for the post of

Domestic Science teacher was cancelled on the ground that the OBC

certificate was issued by the concerned SDM after the closure of date of

submission of application form. The Division Bench of this court had

noticed that the candidate belonging to OBC and not falling in creamy

layer was not disputed. It was also not disputed that the application

form was submitted by the candidate before the closing date of receipt

of application form. The authorities in this case had also not disputed

that after the last date for submission of the application forms, they had

directed the candidate to furnish the attested copies of the relevant

document in support of claim of reservation duly attested by any

appropriate authority. Refereeing to relevant office memorandum it was

noticed that it did not specify that the caste certificate issued

subsequent to the date of closing of receipt of application could not be

considered or looked into. Considering these facts and circumstances,

the order of the Central Administrative Tribunal setting aside the order

of the Government of NCT cancelling the candidature of the candidate

was upheld.15.     This is not disputed and cannot be disputed by the petitioners

that notices were sent to respondents by the petitioners to submit the

OBC certificates by the last date as indicated in the notices. It is alsoW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009   Page 22 of 29not disputed that before the last date indicated in the notices, the

respondents in different petitions had submitted their OBC certificates.

As also certifying that they were not part of creamy layer which was also

their case in the applications filed before the petitioners for seeking

appointment for the relevant post. In none of the cases the petitioners

have found the respondents not eligible for selection under the OBC

category. Thus it is admitted that the candidates belong to OBC

category and they do not belong to creamy layer.16.            From the perusal of the facts and circumstances, it appears

that the record of the petitioners also had deficiencies as the caste

certificates were demanded from some of the candidates who had

already submitted certificates pursuant earlier notices given to some of

the candidates even before allowing them to appear in the examination

and therefore, the petitioners had not treated the candidates who had

not submitted the OBC certificate by the closing date for submitting the

application forms that is 29th October, 2007 as not eligible. By the

notices it was communicated that determination of the eligibility for the

post under the OBC category is pending, on account of lack of certain

information/documents and it was not communicated that their

applications have been rejected for consideration under the OBC

category. In the case of Shishupal Arya (supra) whom notice dated 17th

November, 2008 was given directing the said candidate to submit the

OBC certificate latest by 3rd December, 2008 to remove the deficiency.W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009    Page 23 of 29The said candidate though had not only given a photocopy of the

application applying for the OBC certificate along with his application

for the post of primary teacher before 29th October, 2007 but pursuant

to another earlier notice dated 11th February, 2008 whereby the said

candidate was directed to furnish the requisite document, that is OBC

certificate by 22nd October, 2008, he had submitted the requisite OBC

certificate by 22nd February, 2008 and an endorsement regarding the

receipt of certificate was also obtained on the notice dated 11th

February, 2008. In reply to another notice dated 17th November, 2008

the said candidate again reiterated that he had already submitted the

OBC certificate on 22nd February, 2008 and also submitted another

certificate on 28th November, 2008.17.     Similarly notices were given to other candidates, respondent No.1

in other petitions who also submitted the OBC certificates within the

time granted by the petitioners under the communications sent in

November, 2008. This is also not the case of the petitioners that they

could not extend the time for submitting the OBC certificate for

selection under the OBC category. This is also not the plea on behalf of

the learned counsel for the petitioners that the notices issued to the

respondents in different petitions were sent un-authorizedly by persons

who were not authorized to send the notices and demand from the

candidates to rectify the deficiency and submit the OBC certificates,

were not valid notices.W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009   Page 24 of 2918. The petitioners had the power to extend the time and in the

circumstances, the logical inference shall be that the time to submit the

OBC certificates was extended and within the extended time, the

certificates were submitted by the respondents/candidates. As also held

in Poonam Chauhan (supra), the advertisement did not specify that the

OBC certificates submitted after the last date for submission of

application form shall not be considered and the applications shall be

rejected. The petitioners have not construed such a restriction in their

advertisements and therefore, extended the time and gave notices

demanding rectifying the deficiencies and directed the candidates to

submit the appropriate OBC certificates, which were applied by the

candidates prior to last date for submission of application forms but

which were given to the candidates by the authorities after the last date

for submission of application forms, which were submitted by them

within the extended time given by the petitioners.19.     In any case the submission of OBC certificate for reservation

under the OBC category cannot be equated with acquisition of the

educational qualification. A candidate becomes eligible under the OBC

category, the day the caste he belongs to is notified by the appropriate

authority as a backward class. Though the learned counsel for the

petitioners has emphasized that whether a candidate belongs to a

creamy layer or not is to be determined only on issuance of a certificate,W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009   Page 25 of 29however, taking into consideration the entirety of the facts and

circumstances, in our view the candidates not belonging to a creamy

layer whose caste is notified as a backward class becomes entitled for

reservation under the OBC category and submission of the requisite

certificate is only a ministerial act which cannot be equated with

acquisition of educational qualification to become eligible for a post.

Consequently, the plea of the learned counsel for the petitioners that

the respondents/candidates became eligible for selection in the OBC

category on the dates the certificates were issued by the appropriate

authorities, cannot be accepted. This plea in the present facts and

circumstances should also be not accepted because in all the cases

except in the case of Rekhawati (Supra) the candidates had applied for

OBC certificate before the closing date for submission of forms which

was 29th October, 2007. In the circumstances for the delay on the part

of the authorities in preparing and giving the OBC certificate, it cannot

be inferred or held that the candidates were not eligible for selection

under the OBC category.20.     As already considered hereinbefore, the petitioners themselves did

not treat the respondents in different petitions as ineligible for selection

under the OBC category as none of the notices given to the candidates

stipulated that they cannot be selected under the OBC category as they

had failed to furnish the requisite certificate before the closing date for

submission of the application forms. Rather the notices were given byW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009     Page 26 of 29the petitioners extending the date for submission of the OBC certificate

and all the candidates in different writ petitions submitted the OBC

certificate before the last date notified in the notices. In the

circumstances it will not be appropriate and in the interest of justice to

infer     that      the     order      of     the     Tribunal   holding   that     the

respondents/candidates in different writ petitions are entitled for

selection under the reserved category in accordance with their marks,

are bad in law and are liable to be quashed.21.     The learned counsel for the petitioner has also emphasized that

selecting the respondents/candidates in different petitions will be

discriminatory viz-a-viz other candidates who might not have applied,

on account of not having the OBC certificate by the closing date for

submission of the application form that is 29th October, 2007. The plea

of the petitioners is based on surmises. No particulars of any candidate

has been given who did not have the OBC certificate by the closing date

of 29th October, 2007 and therefore, he had not applied for selection to

the said posts for which the respondents/candidates had applied.22.     It is also not necessary for the High Court in exercise of its writ

jurisdiction to interfere in every case. For issuing a writ for `any other

purpose‟ underArticle 226of the Constitution of India, it has always

been in the discretion of the High Court to interfere or not depending

upon the facts and circumstances of each case.                      The ConstitutionW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009               Page 27 of 29Bench inThe Moon Mills Ltd v. M.R.Mehar, AIR 1967 SC 1450 had held

that writ is legally a matter of sound discretion and would not be

issued, if there be such negligence or omission on the part of the

petitioner to assert his right is taken on conjunction with the

circumstance which may cause prejudice to adverse party. It was

further held that the writs so far as they are concerned with the

enforcement of other rights are not issued as a "matter of course".Similarly inShangrila Food Products Ltd v. Life Insurance Corporation

of India and Anr, (1996) 5 SCC 54 the Supreme Court had held that

"the High Court in exercise of its jurisdiction underArticle 226of the

Constitution of India can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give the

parties complete and substantial justice. The jurisdiction of the High

Court, being extraordinary, is normally exercisable keeping in mind the

principles of equity.23.     In the totality of facts and circumstances, therefore, this Court is

not inclined to exercise its jurisdiction in exercise of its power underArticle 226of the Constitution of India for quashing the orders dated 4th

August, 2009 in O.A No.342/2009, T.A No.1349/2009, 1350/2009, T.A

No.1378/2009 and order dated 17th July, 2009 in O.A No.370/2009

and order dated 11th September, 2009 in O.A No.956/2009 directing

petitioners to declare the result of the respondents/applicants and to

process their appointment according to their applications with allW.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009     Page 28 of 29benefits as admissible in law. The writ petitions, therefore, are without

any merits and are dismissed. All the pending applications are also

disposed of and interim orders are vacated. However, considering the

facts and circumstances parties are left to bear their own costs.ANIL KUMAR, J.FEBRUARY 17, 2010                                               MOOL CHAND GARG, J.
'Dev'W.P.(C.) Nos.13870; 13875; 13883; 13913; 13915 and 14112/2009                Page 29 of 29