Govt. Of Nct Delhi vs Pradeep Kumar

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8259 OF 2019

(arising out of SLP(C) No. 11254 OF 2019)

GOVT. OF NCT DELHI & ORS. APPELLANT(S)

VERSUS

PRADEEP KUMAR & ORS. RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

Leave granted.

2. Heard Ms Madhavi Divan, Learned Additional Solicitor

General of India representing the appellants. The Learned

Senior Counsel Ms Aishwarya Bhati, represents the contesting

Respondent Nos. 2-6. The respondents and few others had

filed the O.A. No. 1047 of 2014 before the Central

Administrative Tribunal (CAT) and the same was allowed on Signature Not Verified Digitally signed by MADHU BALA 20.08.2018 (Annexure P/5).

Date: 2019.10.24 16:42:37 IST

The resultant challenge by the Reason:

appellants was dismissed under the impugned order of the

Page 1/19 High Court of Delhi in the Writ Petition (C) No. 557 of

2019, which has led to the present appeal.

3. The matter pertains to the recruitment of Special

Education Teachers under the Govt. of NCT of Delhi. The

Advertisement No. 01/2013 (Annexure P/1) was issued by the

Delhi Sub-ordinate Services Selection Board where, for the

vacancies of Special Education Teachers against Post Code

01/13, the following essential qualifications were

stipulated:-

“.............................................

i)Graduate with B.ED (Special Education) or B.ED. with a two years Diploma in Special Education or Post Graduate Professional Diploma in Special Education or any other equivalent qualification approved by Rehabilitation Council of India.

ii)Central Teacher Eligibility Test (CTET) conducted by Central Board of Secondary Education (CBSE).

..........................................”

4. The respondents had obtained the CTET i.e. Central

Teacher Eligibility Test qualification, under the relaxed

pass norms for the OBC category, in States other than Delhi.

They offered their candidature for the vacancies in Delhi

and appeared in the recruitment test. But their candidature

were held to be not-eligible, through the office order dated

Page 2/19 19.02.2014 (Annexure P/2). The ground mentioned in the order

is that the applicants are “CTET qualified as OBC but OBC

outsider”.

5.1 Aggrieved by the above decision of the Delhi Sub-

ordinate Services Selection Board, the Original Applicants

(9 in number), together filed the OA No. 1047 of 2014 before

the CAT. The Applicants who belong to the OBC Category had

acquired the CTET qualification by availing 5% relaxation in

the qualifying marks in the CTET, from their respective

States but had participated in the written examination

conducted for the vacancies in Delhi. Before the CAT, the

Original Applicants projected that they secured more marks

than the last selected candidates under the General Category

and yet, their candidature was rejected notwithstanding the

fact that claim for selection is based entirely on the basis

of their performance in the recruitment test.

5.2 However, the Govt. of NCT of Delhi, on the other hand

contended before the Tribunal that for claiming benefits

intended for the OBC Category vacancies in Delhi, the OBC

Certificate must be issued by the Government of Delhi. Since

respondents are not recognized as OBC in Delhi, they cannot

Page 3/19 claim eligibility qua the CTET criterion, with lower pass

marks, in the CTET examination.

6. The Tribunal considered the rival contention and

observed that rejection of the candidature of the Original

Applicants would mean that the appellants do not recognize

the CTET qualification. Relying on Vikas Sankhla & Ors. V.

Vikas Agarwal & Ors.1, the Tribunal took the view that there

shall be no bar in considering meritorious applicants in the

unreserved category if no weightage was given to CTET marks

in preparation of the final merit list. Consequential

direction was issued to the authorities for appointment of

Original Applicants, in terms of their respective position

in the merit list.

7. The Tribunal's Order was challenged in the High Court

by the Govt. of NCT of Delhi. In the Writ Petition (C) No.

557 of 2019, the appellants contended that the Respondents

cannot avail concession under the OBC category as they were

permanent residents of other states. The Respondents could

not also be considered under the unreserved category, as the

same would be subject to minimum 60% marks for the general

1 (2017) 1 SCC 350 Page 4/19 category in order to be CTET qualified. Therefore, the

appellants argued before the High Court that notwithstanding

the performance of the respondents in the recruitment test,

their candidature for the General Category vacancies is not

valid.

8. The High Court under the impugned Order, however noted

that the Advertisement did not specify that the candidates

who applied on the basis of the CTET qualification with

lower pass marks, would not be eligible for the General

Category vacancies if they have secured less than 60% marks

in the CTET examination. The High Court accordingly held

that once the candidate had obtained the CTET qualification,

the marks secured in the qualification examination is

immaterial for consideration of their candidature, for the

unreserved category vacancies. As the performance of the

respondents were more meritorious than others selected in

the unreserved category, the Tribunal’s decision in favour

of the respondents was upheld and accordingly, the Writ

Petition filed by the appellants came to be dismissed.

9.1. The appellants challenged the decision of the Delhi

High Court with the contention that the respondent having

Page 5/19 secured the eligibility qualification under relaxed norms

for the OBC Category are in-eligible to be considered

against General Category vacancies. Ms Madhavi Divan,

learned Additional Solicitor General of India submits that

the respondents having obtained the eligibility

qualification with lower pass marks under relaxed norms for

the OBC Category, were rightly found to be ineligible for

employment in the General Category vacancies in Delhi.

9.2. Dealing with the facts and the ratio of Vikas Sankhala

(Supra) Ms Divan argues that this Judgment was erroneously

applied by the Tribunal to the facts in the instant case

inasmuch as for the present recruitment under Advertisement

No.01/13, mere qualification in the CTET (instead of marks),

will have a bearing whereas, the marks in the CTET

examination, did have a bearing in the recruitment process

in the case of Vikas Sankhala (supra). The learned

Additional Solicitor General makes a distinction between

CTET being an eligibility qualification as in the present

case and the CTET marks influencing the final merit in the

selection, as was the situation in the recruitment process

in Rajasthan. She specifically argues that the judgment in

the Vikas Sankhala (supra) was rendered in the peculiar Page 6/19 facet of recruitment in that case and the ratio thereof will

not apply in the present matter.

9.3. The learned Additional Solicitor General projects that

it is not a case of candidates obtaining CTET qualification

on the basis of age relaxation or fee waiver in which

situation, respondents marks in the CTET examination may

have no bearing. But when the respondents had qualified in

the CTET examination securing below the normal pass marks

(60%), they were rightly held to be ineligible for the

General category vacancies, in the State of Delhi.

10.1 Per contra, Ms. Aishwarya Bhati, the learned Senior

Counsel for the respondents has argued that when the

essential qualification in the advertisement does not

stipulate any minimum marks for eligibility, the respondents

having obtained the CTET qualification, cannot be found to

be ineligible.

10.2 The Respondents project that they secured higher

marks in the recruitment test then few candidates selected

for the General category vacancies and therefore rejection

Page 7/19 of their candidature would mean merit being ignored for

appointment.

10.3 Supporting the decision of the High Court and the

Tribunal, Ms Bhati argues that the ratio in Vikas Sankhala

(supra) was rightly applied to give relief to the Original

Applicants who claim appointment on the basis of their merit

position in the recruitment test.

11. In the present Appeal, we are required to focus on the

following issues:-

i. Whether the respondents who have secured the CTET qualification form outside Delhi as OBC candidate by availing 5% relaxation in the qualifying marks be considered for employment against the post of Special Education Teacher in the Government of NCT, Delhi?

ii. Whether the Respondents, after availing concession under the OBC category can compete for seats under the unreserved category?

12. The records here show that the National Council for

Teacher Education [‘NCTE’] issued Notification dated

23.08.2010, that provided for the minimum qualifications for

a person to be eligible for appointment as a teacher. It

provided, inter alia, that applicants for the post of

Page 8/19 teachers (falling in the specified criteria of the

Notification) shall have to pass the Teacher Eligibility

Test [‘TET’] which will be conducted by the appropriate

Government in accordance with NCTE’s guidelines. Pursuant

to this Notification, vide Order dated 11.02.2011, the NCTE

issued Guidelines for conducting the TET. The Guidelines

provided that a person who scores 60% in the TET examination

will be considered as TET pass. Further, concessions to

persons belonging to the disadvantaged category, in

accordance with their extant reservation policy was also

provided.

13. The Directorate of Education, Delhi (appellant No.3) by

its Notification dated 07.10.2011, stated that for

appointment to the schools of Delhi, the GNCT, Delhi will

recognize the CTET conducted by the Central Board of

Secondary Education (CBSE). By another Notification dated

30.11.2012, appellant No.3 added the following to the

aforementioned Notification dated 07.10.2011:-

“................................................ ..

The CBSE is issuing CTET marks statements to the candidates with conditions that candidates securing 60% and above marks will be considered as CTET qualified. Further, the NCTE vide

Page 9/19 notification 29.07.2011 specifically provided that “Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories such as SC/ST/OBC/PH. Therefore, candidates belonging to reserved categories such as SC/ST/OBC/PH shall be allowed relaxation upto 5% in the qualifying marks, in CTET conducted by the CBSE ............................................ ”

14. The reservation for the OBC category under Clause

6(iii) of Advertisement No.1/13 being relevant, is extracted

as under:-

6. RESERVATION BENEFITS:

(iii) The OBC candidates must be in possession of filled prescribed Annexure I, along with his/her caste certificate issued by the Govt. of Delhi only.

15. In the Delhi recruitment process, the respondents did

not possess OBC (Delhi) certificate and thus they could not

be considered for the OBC category vacancies. Further, as

per the CTET guidelines, unreserved candidates are required

to obtain 60% marks to qualify in the CTET. Since the

Respondents obtained less than 60% in CTET, their

candidature could be valid only under the OBC category.

However due to absence of certificate of OBC status by

Government of NCT, Delhi and by virtue of clause 6(iii), as

above, which bars reservations to outsider OBC, the

Page 10/19 Respondents are ineligible for the applied post. They may

however compete against the unreserved vacancies, if they

pass CTET with minimum 60% marks. Admittedly, none of the

Respondents are certified by the GNCT of Delhi as OBC and

neither do they possess the requisite 60% marks in CTET for

qualification for the one-tier exam, as per Advertisement

1/13 and therefore the contention of the Appellants do have

acceptable basis.

16. At this stage we need to discuss the Vikas Sankhala

judgment in some detail as the High Court and the Tribunal

granted relief to the respondents on the basis of this

Judgment. The recruitment in Vikas Sankhala, related to

Rajasthan where the candidates who availed concession in the

CTET examination, were allowed to migrate to Unreserved (or

general) category vacancies, if they were more meritorious

than the general category candidates.

17. The question, therefore, to be answered here is whether

the above case pertaining to recruitment in Rajasthan with

candidates competing for vacancies in their home State,

would apply to the situation in the present case where

candidates from other states obtaining qualification under

Page 11/19 relaxed norms, are aspiring for general category vacancies

in Delhi.

18. The decision of Vikas Sankhala (supra) was arrived at

due to certain peculiar facts in the case. The recruitment

process of teachers therein stipulated that 20% of the final

result calculation of every aspirant will be based on the

candidate’s TET result marks. Thus, candidates who obtained

CTET qualification after availing concession, had naturally

secured lower marks in the total aggregate compared to

those, who appeared in the unreserved category and did not

avail such concession in pass marks. In those facts, it was

held that the resultant reduced marks in the 20% component

will neutralize the benefits of eligibility given to

reserved candidates, who thereafter had to compete with

unreserved students without any concessions and also

overcome the disadvantage they had in the 20% component. On

this aspect, the following was the Court’s observation:-

“…once this differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in the pass marks in TET insofar as recruitment process is concerned.”

Page 12/19

19. The above excerpts reveal the Court’s concern for

maintaining equality in the recruitment process. However,

in the present recruitment process, in the absence of a

compensatory disadvantage or balancing factor, the ratio in

Vikas Sankhala cannot be applied for the respondents who

obtained CTET qualification by virtue of concession given to

OBC categories. In other words, the concession benefit is

not neutralized in the Delhi recruitment process. Thus, a

level playing field and a fair treatment is not achieved, by

inappropriately applying the ratio of Vikas Sankhala without

having regard to the peculiarity of facts of that case

where, a different selection yardstick was applied.

20. As noted above, although there was no balancing out of

the relaxation for the selection process in Delhi unlike the

process in Vikas Sankhala’s decision, the CAT erroneously

applied the ratio of the Rajasthan case for giving relief to

the respondents.

21.1 In Vikas Sankhala, the Court considered the

implication of the Circular dated 11.05.2011 issued by the

Department of Personnel, government of Rajasthan, (A,

Gr.II) bearing ref.no.No.F.7(1) DOP/A-II/99 that expressly

Page 13/19 allowed migration to the unreserved category irrespective

of any concession availed by the candidate of the reserved

category if he/she had secured more marks than the last

Unreserved category candidate who is selected. But here the

OMs dated 01.07.1998 and 04.04.2018 issued by the

Department of Personnel & Training would bear

consideration. Contrary to the circular dated 11.05.2011

in Vikas Sankhala (supra), the two OMs referred by Ms

Divan, issued specific instructions to the effect that when

a relaxed standard is applied in selecting a reserved

category candidate, in age limit, experience,

qualification, additional chances in written examination

etc., such candidates will be counted against reserved

vacancies.

21.2 For better understanding, the implications of the

afore noted OM dated 01.07.1998 (ref.36011/1/98-Estt.(Res),

Ministry of Personnel, Public Grievances and Pensions), the

relevant portion is extracted below:-

“....................................... 3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in

Page 14/19 selecting an SC/ST/OBC candidates, for example in the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies. ........................................”

21.3 In the same context, the relevant part of the second

OM dated 04.04.2018 (Ref.No.F.No.43011/4/2018-Estt.(Res.)]

issued by the Ministry of Personnel, Government of India),

reiterating in substance, what was stated in the earlier

O.M. of 01.07.1998, is extracted as below, for ready

reference:-

“.......................................As per instructions issued vide this Department’s OM No.36012/2/96-Estt.(Res) dated 02.07.1997, in direct recruitments to Central Government jobs and services, the reserve category candidates who are selected on the same standards as applied to general candidates will not be adjusted against reserved vacancies. As per instructions issued vide DOP & T OM No.36011/1/98-Estt.(Res) dated 01.07.1998, only when a relaxed standard is applied in selecting a reserved candidates, for example in the age limit, experience, qualification, permitted number of chances in written examination, etc., such candidates will be counted against reserved vacancies.................................”

Page 15/19

22. From the above extract of the two OMs, it is quite

apparent that, unlike in Vikas Sankhala, there is an

express bar on migration to the unreserved category of

those reserved category candidates who had availed of

relaxation including those for qualification. The

prescription of the eligibility qua CTET, in the

advertisement, will therefore have to be understood bearing

in mind, the contents of the OM dated 01.07.1998. To apply

the advertisement in the present facts will not be correct.

The same OM dated 01.07.1998 was considered in Deepa EV v

Union of India2 and we feel that the Court was correct in

the view, vis-à-vis the OM dated 01.07.1998.

23. The other distinguishing aspect in Vikas Sankhala

(supra) is that the candidates who had applied under the

reserved category belonged to Rajasthan. For the selection

and aspirants from the same State i.e., Rajasthan, the

Court allowed such candidates to migrate to the unreserved

category. In the present case, however, the candidates

(i.e. the respondents) belong to States other than Delhi.

Being OBC (outsiders), they could have been considered only

under the unreserved category if they secure at least 60%

2 (2017) 12 SCC 680 Page 16/19 marks in the CTET. The respondents admittedly did not

secure 60% and thus were ineligible. Moreover, an OBC

candidate not certified in the State/Territory outside of

Delhi cannot be eligible to avail of employment in reserved

category posts earmarked for OBCs who are certified by the

Delhi Government.

24. It is important to keep in mind that the respondents

are competing for general category vacancies. All others

in this group have obtained their CTET eligibility

qualification, securing the normal pass marks without

availing any relaxation of pass norms. On the other hand,

the respondents despite their lesser marks in the CTET

examination, could qualify only because they availed the

relaxation benefits as OBC category examinees. Their

eligibility qualification is secured under relaxed norms

meant for OBC category and therefore we do not think it is

proper to consider them to be eligible for the general

category vacancies and contention to the contrary is

unacceptable.

25. The respondents with their CTET qualification under

relaxed norms would be eligible for OBC category posts

Page 17/19 provided their OBC status is certified and recognized by

the Delhi government. But such not being the case, they

are ineligible for the reserved category vacancies. To

allow them to migrate and compete for the open category

vacancies would not be permissible simply because, they

have secured the CTET qualification with relaxation of pass

marks meant for those belonging to the OBC category. As

the respondents have not secured the normal pass marks for

general category, their eligibility for the general

category vacancies is not secured. Therefore, their

performance in the selection examination would be of no

relevance, in the present process.

26. As earlier discussed, this case concerns

qualifications obtained with concession in pass marks. Such

concession would have a direct impact on standards of

competence and merit in the recruitment of Special

Education Teachers. The principles of reservation under the

Constitution of India are intended to be confined to a

specifically earmarked category and the unreserved category

must be protected, to avoid dilution of competence and

merit. If Vikas Sankhala (supra) is interpreted shorn of

Page 18/19 its peculiar facts, as has been suggested by the

respondents’ counsel, it would in our perception,

considering that respondents secured the qualification

under relaxed norms, would lead to dilution of merit in the

unreserved category. The arguments made to the contrary by

the respondents is therefore rejected.

27. In view of the forgoing, the High Court and the

Tribunal erred in granting relief to the respondents. The

impugned judgment of the High Court of Delhi in Writ

Petition (C) No. 557 of 2019 dated 21.1.2019 is set aside

and this appeal is allowed. No order as to costs.

………………………………………………J. [R.BANUMATHI]

………………………………………………J. [A.S.BOPANNA]

……………………………………………J. [HRISHIKESH ROY]

NEW DELHI OCTOBER 24, 2019

Page 19/19