Dr. Akash Laxmanrao Narade v. Govt. of NCT of Delhi

9. He submits that law is settled that if there are rules providing for the cut-off date for determining the eligibility criteria, then the same are to be followed. If case rules are silent, then the decisive date is the one indicated in the advertisement. It is only in the absence of specification of cut-off or decisive date either in the rules or in the advertisement that the last date for making an application is to be treated as cut-off date.

10. Mr. Niyazi submits that the respondent no.3 in its affidavit dated 13.12.2025 in para 7 has taken a stand that in the MCC counselling the candidates must produce the proper OBC, SC, ST, PWD or EWS certificate, as applicable, at the time of reporting to the allotted medical college. He refers to the notice dated 01.01.2025 issued by the NBEMS/R-3, particularly to para 2 thereof, to contend that all concerned State Counselling conducting authorities are required to strictly adhere to the guidelines and counselling schedules published by Medical Counselling Committee (MCC) for their respective States.

11. He also refers to the notice dated 14.02.2025 issued by the respondent no. 2 (Annexure P4/page 64), particularly the following instructions under the heading “Counselling”: “Scrutiny of Application forms and selection for DNB course will be done as per NBE guidelines by the counselling committee of H&FW, Department, GNCTD.”

12. He thus, contends that the GNCTD ought to have followed the NBE/NBEMS Guidelines which in turn follows the MCC Guidelines. He submits that MCC guidelines provides that the candidates may produce the proper OBC, SC, ST, PWD or EWS certificate, as applicable, at the time of reporting to the allotted medical college.

13. To sum up, Mr. Niyazi submits that the petitioner is not asking for negative equality but is praying for giving him the benefit of OMs which were, in fact, followed by the GNCTD.

14. Before proceeding to deal with the submissions of Mr. Niyazi, this Court has to be mindful of the legal position that power of review is not to be confused with the appellate power which enables the superior court to correct errors committed by a subordinate court. A judgment may be open to review inter alia if there is mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review.[1] (1997) 8 SCC 715: Parsion Devi v. Sumitri Devi

15. A review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would undermine its soundness or results in miscarriage of justice.[2]

16. In Kamlesh Verma v. Mayawati, (2013) 8 SCC 320, the Hon’ble Supreme Court laid down the principles for exercising the review jurisdiction under Order 47 Rule 1 CPC:

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” (emphasis supplied)

17. There is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review, but there are definitive limits to the exercise of the power of review, as succinctly summarised by the Hon’ble Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389, in the following terms:

error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” (emphasis supplied)

18. In State of W.B v. Kamal Sengupta, (2008) 8 SCC 612, the Hon’ble Supreme Court emphasised that where review is sought on the ground of discovery of new matter or evidence, the same must be of such a character that if the same had been produced, it might have altered the judgment. The relevant observations from the said decision reads thus:

19. In the light of above principles, now this Court needs to consider the claim of the petitioner and find out whether a case has been made out for interference exercising review jurisdiction.

20. The primary submission of Mr. Niyazi is that the benefit of the OMs dated 08.10.2015 read with 15.09.2022 has been extended to other candidates and not to him. He has argued that, as is evident from the response received through RTI and the affidavit that has been placed on record by respondent/GNCTD, many candidates have produced their respective certificates after the cut-off date. Reproduced below is the OM dated 08.10.2015, and paragraph no. 4 thereof, on which Mr. Niyazi laid emphasis has been highlighted:

Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training Establishment Reservation — I Section North Block, New Delhi-110001 Dated 8th October, 2015.

OFFICE MEMORANDUM Subject: Reiteration of the instructions on verification of claims of candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes for purpose of appointment of posts/services. The undersigned is directed to say that as per extant instructions where a candidate belonging to a Scheduled Caste (SC), Scheduled Tribes (ST) and other Backward Classes (OBC) is unable to produce a certificate from any of the prescribed authorities, he/she may be appointed provisionally on the basis of whatever prima-facie proof he/she is able to produce in support of his/her claim subject to his/her furnishing the prescribed certificate within a reasonable time. Instructions have been issued vide DoPT‟s letter No. 36022/1/2007- Est. (Res.) dated 20.30.2007 to the Chief Secretaries of all States/UTs for streamlining the system of verification of caste certificates so that unscrupulous non-SC/ST/OBC persons are prevented from securing job meant for SCs/STs/OBCs by producing false certificates. Timely and effective verification of caste status is necessary so that the benefit of reservation and other scheme of concession etc. go only to the rightful claimants.

2. In this regard, attention is invited to the instructions contained in the following Office Memoranda/Orders issued by this Department from time to time. A copy of each of the Office Memoranda is enclosed: -

(i) OM No. 36019/7/75-Estt. (SCT) dated 31.10.1975.

(ii) OM No. 36011/16/80-Estt. (SCT) dated 27.02.1981.

(iii) OM No. 36011/3/2005-Estt. (Res.) dated 09.09.2005.

(iv) OM No. 36012/6/88-Estt. (SCT) dated 24.04.1990

3. Instances have been brought to the notice of this Department that despite the aforesaid instructions, the appointment of the candidates belonging to SC/ST/OBC communities are withheld/delayed due to pending caste certificates verification.

4. It is, therefore, reiterated that in the situation where a candidate belonging to a Scheduled Caste, Scheduled Tribes and other Backward classes is unable to produce a certificate from any of the prescribed authorities, he/she may be appointed provisionally on the basis of whatever prima-facie proof he / she is able to produce in support of his/her claim subject to his/her furnishing the prescribed certificate within a reasonable time and if there is genuine difficulty in his/her obtaining a certificate, the appointing authority should itself verify his/her claim through the District Magistrate concerned.

5. All Ministries/Departments are requested to bring the contents of this O.M. to the notice of all concerned.”

21. The aforesaid OM dated 08.10.2015 was within the knowledge of the petitioner, as the same was relied upon in the writ petition, therefore, argument based on the said OM was available to the petitioner when the writ petition was decided, therefore, it is not the material which was not within petitioner’s knowledge, and thus, cannot be a ground to exercise power of review.

22. In any case, this Court finds the submission of Mr Niyazi based on OM dated 08.10.2015 to be wholly untenable. The OM dated 08.10.2015 explicitly states that in order to get provisionally appointed, the candidate must show some prima facie evidence that he is eligible. This court notes that the petitioner as on cut-off date of 25.02.2025, was not able to bring anything of prima facie value, to substantiate his claim of belonging to OBC-NCL category. The earlier OBC-NCL certificate, on which reliance has been placed by the petitioner to substantiate his claim that a prima facie evidence existed in his favour, is misplaced, because the same was issued on 10.09.2013, and it was not valid as on cut-off date of 25.02.2025, since the validity of such OBC-NCL certificate is only for a period of one year, and the same is issued on the basis of income earned during three financial years preceding the year of appointment.[3]

23. It has also been clarified in OM dated 25.07.2003, on which reliance was placed by Mr. Niyazi, that the OBC certificate consists of two parts – first part indicates that the concerned person belongs to a community listed as OBC and the second part indicates that the candidate does not fall in the creamy layer. While the OBC status of a candidate may change only when the community of the concerned candidate is removed from the OBC list, his/her creamy layer status may change any time. For this reason as well, the OBC-NCL certificate of the petitioner issued 10.09.2013 can at the best be taken as prima facie proof of the petitioner belonging to a community listed as OBC, but the same cannot be a prima proof of the petitioner having status of non-creamy layer (NCL), as such status is dynamic concept which can change anytime.

24. Further, since there did not exist any prima-facie proof of the petitioner’s claim of belonging to OBC-NCL category, the question of Para 26 of the judgment under review dated 28.05.2025 furnishing the prescribed certificate within a reasonable time or appointing authority verifying petitioner’s claim through the District Magistrate would not arise.

25. Next submission of Mr. Niyazi is that the respondent / GNCTD followed OM dated 08.10.2015 and accepted the certificate of Dr Chandra Prakash after the cut-off date of 25.02.2025 as the same was issued only on 01.03.2025, as disclosed in the RTI and subsequently affirmed by the respondent/GNCTD, therefore, the benefit of said OM ought to have been extended to the petitioner as well.

26. This Court has already returned a finding that the petitioner is not entitled to the benefit of OM dated 08.10.2015.

27. The respondent / GNCTD has taken a stand that Dr Chandra Prakash was possessing OBC-NCL certificate on the date of his counselling, therefore, he was allotted seat. However, the fact remains that Dr Chandra Prakash was not possessing OBC-NCL certificate on the cut-off date, as he applied for the same on 01.03.2025, therefore, he may also not be entitled to the benefit of OM 08.10.2015. Incidentally, Dr Chandra Prakash was not impleaded as party either in the writ petition or in the present review petition, therefore, it would not be appropriate for this Court comment upon the legality of his appointment or on the submission that his OBC-NCL certificate was valid only for the state of Jharkhand.

28. On a pointed query posed by the Court to Mr Niyazi as to when Dr Chandra Prakash applied for the issuance of OBC-NCL certificate, Mr Niyazi, on instructions, fairly states that such date is not within the knowledge of the petitioner. Therefore, if Dr Chandra Prakash had already applied for a NCL category certificate before the cut-off date and the issuance of the same was delayed at the behest of the competent authority, then the position would be different. In such a situation Dr Chandra Prakash may get the benefit of the decision of Hon’ble Supreme Court in Ram Kumar Gijroya vs Delhi Subordinate Services Selection Board, (2016) 4 SCC 754. Notably, the petitioner applied for the issuance of OBC-NCL certificate on 27.03.2025, that is, not only after the cut-off date of 25.02.2025, but also the date of counselling i.e. 24.03.2025, and the same came to be issued on 28.03.2025.

29. Furthermore, even if Dr Chandra Prakash has been allotted a seat contrary to the legal position as noted in the judgment under review, this Court cannot direct for granting parity to the petitioner, as there cannot be any negative equality, for equality is a positive concept. Besides that, there is no challenge to the seat allotted to Dr Chandra Prakash.

30. The submission of Mr Niyazi based on para 7 of reply of respondent no.3/NBEMS that GNCTD ought to have followed the MCC counselling guidelines which permit the candidates to produce proper OBC, SC, ST, PWD or EWS certificate, as applicable, at the time of reporting to the allotted medical college, is entirely misconceived. The MCC counselling happens online, therefore, the only opportunity a candidate gets to physically produce proper OBC-NCL or other reservations certificates, as the case may be, for verification is at the time of reporting to the allotted medical college, but that does not absolve the candidate from possessing valid certificate on the cut-off date.

31. That apart, in petitioner’s case respondent/GNCTD was the designated counselling authority and it did not involve online counselling; rather, it entailed offline counselling conducted in physical mode at the Maulana Azad Medical College. Therefore, the benefit of aforesaid guidelines applicable to MCC counselling will not enure to the petitioner.

32. As regards the candidates mentioned in the tabulated chart in para no.5 above, Mr. Niyazi submission is that they were not having OBC-NCL certificate on the last date fixed for making an application for counselling. All such candidates were neither party in the writ petition, nor they have been impleaded in the present review petition. Indubitably, the date when they actually applied for the issuance of OBC-NCL certificate is also not on record. Therefore, it will not be appropriate to deal with their individual cases and express any opinion on the validity of their appointments, while considering present review petition, which has a limited scope.

33. In view of the above, no error apparent on the face of the record has been brought to the notice of this Court, nor the material which the petitioner claims was not within his knowledge, and could not have come to his knowledge even after the exercise of due diligence, is of such a character that, if the same had been produced, it would have altered the judgment.

34. Therefore, there is no ground to invoke the review jurisdiction. The review petition is accordingly, dismissed.

35. The pending applications stand disposed of.

VIKAS MAHAJAN, J DECEMBER 26, 2025 Dss/N.S. ASWAL