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Judgment
Pratima K. Gupta, Member (J)
Brief facts that arise in the O.A are:
Respondents invited applications via Post Code No. 65/09 for selection to the post of Driver in Delhi Transport Corporation. The applicant applied in the category of Scheduled Caste. He successfully cleared the written test and the skill test held on 21.03.2010 and 06.09.2010 respectively. After qualifying the same, while he was awaiting his offer of appointment, he was asked to provide his scheduled caste certificate. The applicant received the desired certificate from the competent authority on 20.01.2011 and provided the same to the respondents. On 21.01.2011 by an RTI he sought information as to the status of his candidature, to which the respondents replied vide order dated 18.02.2011 that though he was qualified for the said post, the benefit of reservation could not be extended in view of a decision of Hon'ble Supreme Court in C.A. No. 24327/2005 in the case of Subhash Chandra & Anr. Vs. Delhi Subordinate Services Selection Board & Ors. decided on 04.08.2009. The applicant had approached this Tribunal in an earlier round of litigation in O.A No. 3642/2011 which was disposed of vide order dated 13.02.2014 with a direction to re-examine the case of the applicant. Awaiting, the applicant filed a Contempt Petition, however, during the pendency of the Contempt, the respondents issued the impugned order dated 08.08.2014 (Annexure A1) rejecting the claim of the applicant. Aggrieved by the same, he has preferred this O.A. and sought following reliefs:-
“(i) to set aside and quash the impugned order dated 08.08.2014 (Annexure-A)
(ii) to direct the respondent No.2 to recommend the applicant as selected for the post of Driver in DTC (Post Code No.065/09) for appointment under the respondent No.3 under SC category in the interest of justice.
(iii) to direct the respondent No.2 to issue offer of the appointment to the applicant for the post of Driver after being recommended by the respondent No.1.
(iv) to pass any order/s as deem fit and proper in the facts and circumstances of the case.
(v) Award cost.
Learned counsel for the applicant argues that only reason for rejection as reflected in the impugned order is that, though the applicant possessed the caste certificate, however, as he is not an ordinary citizen of Delhi, hence, his case cannot be considered in the Scheduled Caste category for the State of Delhi, that is, the category to which he belongs. He draws support from the caste certificate issued by the competent authority, being the Office of the Deputy Commissioner, New Delhi District, which is annexed as Annexure A-E at page 27 of the O.A. He adds that reason for which the applicant has been denied appointment, was in contradiction with the aforementioned caste certificate, therefore, the respondents have incorrectly denied him appointment. He further adds that once a person has been declared to belong to a scheduled caste category by way of a Notification of the State (Union of India), he would for all intents and purposes belong to the said category for the entire country and specifically to jobs in the Union Territories.
Learned counsel for the respondents opposes the O.A. and draws support from the judgment rendered by the Hon'ble Supreme Court in Subhash Chandra & Anr. (supra).
In rejoinder to the same learned counsel for the applicant places reliance on the judgment delivered by the Hon'ble Supreme Court in the C.A. No. 1085/2013 and others titled Bir Singh Vs. Delhi Jal Board and Others decided on 30.08.2018.
Heard the learned counsel for the parties.
In order to decide this O.A. few facts are reiterated, the applicant participated in the selection process under the SC category. He was declared successful on his own merit, however, his candidature has been withheld for the reason that the applicant is identically placed as one Ravindra Devi and he is not an ordinary resident of Delhi, hence he is not eligible to be considered in SC category. It is seen that the applicant has obtained a caste certificate issued by the competent authority, i.e., the Office of the Deputy Commissioner, New Delhi District wherein it has been specifically stated that the applicant and his family members are ordinarily resident at 28/23, Police Station Staff Qtr, Tughlak Road, New Delhi, clearly the reason stipulated in the impugned order is contrary to the certificate submitted by the applicant. We are guided by the Full Bench judgment of the Hon’ble Apex Court in Bir Singh vs. Delhi Jal Board & Others (supra) wherein precisely the same issue came up for consideration, which reads as under:
“whether a policy in furtherance of the enabling provision contained in Article 16(4) of the Constitution could extend the benefits conferred on Scheduled Castes and Scheduled Tribes enumerated in the Presidential Orders framed/issued under Articles 341 and 342 of the Constitution in respect of a State/Union Territory, upon migrant Scheduled Caste or Scheduled Tribe persons, from another State/UT?”
While deciding the issue, the Hon’ble Apex court has considered judgement referred to by the learned counsel for the respondents in Subhash Chandra’s case (supra), therefore, the same does not come to the rescue of the respondents.
The Hon’ble Apex Court in paragraphs 38 & 69 held as follows:-
It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.
xxx xxx xxx
“ 69. Accordingly, we answer the question referred in terms of the views expressed in Para 38 of this opinion. We further hold that so far as the National Capital Territory of Delhi is concerned, the PAN India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the State/Union Territories.”
For the reasons stated, the O.A. is allowed. Impugned order dated 08.08.2014 (Annexure-A) is quashed and set aside. Respondents are directed to recommend the name of the applicant as selected under SC category for the post of Driver (DTC) (Post Code No.065/09) and offer him an appointment within a period of six weeks from the date of receipt of a certified copy of this order. The applicant shall be entitled to all consequential benefits that may include seniority, notional fixation of pay.
No order as to costs.