Full Text
HIGH COURT OF DELHI
JUDGMENT
AMITA KUMARI .....Petitioner
Through: Mr. Ashish Aggarwal, Mr. O P Faizi, Mr. Anand Aggarwal, Mr. Himanshu Singh, Ms. Nishtha Verma, Mr. Rahul Malik & Ms. Tanya Jain, Advs.
Through: Mr. Manoj & Ms. Aparna Sinha, Advs. for R1.
RITU GAHLOT .....Petitioner
Through: Mr. Keshav Sethi, Mr. Hemant Gulati, Mr. Sobhit & Ms. Aanchal, Advs.
Through: Mr. Manoj & Ms. Aparna Sinha, Advs. for R1.
1. These two petitions are being disposed of by this order as the issue involved is similar. For convenience, the facts are being taken from W.P.(C) 2089/2017.
2. This petition is filed seeking quashing of orders dated 20.09.2013 and 03.07.2015, terminating the services of the petitioner and dismissing the appeal respectively.
3. The brief facts are that the Food Corporation of India (for short „FCI‟) on 12-18.03.2005 issued advertisement for recruitment on various posts, including the post of Assistant Grade II (Hindi) (for short „AG-II‟). The petitioner applied for the post of AG-II in the category of Other Backward Classes (OBC). On being successful in written examination and interview, petitioner was offered appointment by letter dated 03.12.2007. On acceptance of offer of the appointment, the caste certificate produced by the petitioner was sent for verification to District Officer, Gautam Budh Nagar, Uttar Pradesh which was verified by the Tehsildar. On 29.12.2008 after completion of probation the petitioner was confirmed w.e.f 07.12.2008. 3.[1] On 15-19.11.2012, show cause notice (for short „SCN‟) was issued to the petitioner to show cause why services should not be terminated as the petitioner was not OBC as per the Central List. The SCN was responded to on 21.11.2012. An Enquiry Officer under Regulation 58 of the FCI (Staff) Regulations, 1971 was appointed. On 10.04.2013, the order appointing the Enquiry Officer was withdrawn and the matter was referred to High Level Committee (for short „HLC‟). The OBC certificate of the petitioner was invalidated by the HLC and vide order dated 20.09.2013, the service of the petitioner was terminated. On 03.07.2015, the appeal filed by the petitioner was dismissed and the review was dismissed on 23.11.2016, hence, the present petition.
4. Learned counsel for the petitioner contends that the advertisement stipulated no condition that for availing OBC reservation the community of candidate should be included in the Central List of OBC. It is argued that termination of petitioner for giving false information is stigmatic.
4.1. The submission is that the petitioner served the FCI for more than six years, OBC certificate produced by petitioner was verified by Tehsildar at instance of FCI and for no fault of the petitioner his services were terminated. Decision in the case of Iqbal Khatri & Ors. v. Employees State Insurance Corp. & Ors. SLP(C) No.28269/2011 dated 07.10.2013 and decisions of this Court in the cases of The Director General Employees State Insurance Corporation v. Vivek Rana and Ors. MANU/DE/4317/2015 and Union of India & Ors. v. Jagdeep 2025 SCC OnLine Del 13681 are relied upon to submit that petitioner should be ordered to continue in service even if the certificate is held to be invalid.
5. As per contra, the appointment of the petitioner was void abinitio being ineligible to apply for the post of AG-II in the category of OBC. The submission is that there is clear cut distinction of area of operation for the lists of OBC communities prepared by the Central Government and State Governments. The argument is that for employment on the post of Central Government in the reserved category for OBC the community of the candidate should be in the list of OBC prepared by the Central Government. 5.[1] The contention is that having continued on the post for six years does not create equity in favour of the petitioner. The HLC invalidated the OBC certificate of petitioner for purpose of getting appointment in FCI, making the petitioner ineligible to apply in pursuance to advertisement, for AG-II in the OBC category. To fortify the submission, reliance is placed upon the decision of Division Bench of this Court in the case of Pankaj v. Union of India (2005) ILR 2 Delhi 341.
6. Heard the learned counsel for the parties at length, no contention other than noted above was pressed.
7. Undisputed facts are:- (i) that for applying for the post with FCI under the OBC category, the petitioner produced OBC certificate of the State List; (ii) the community of the petitioner was not included in the Central List of OBC; (iii) on revelation that the „Jat‟ community was not included in the Central List of OBC, the certificate produced by the petitioner on basis of State List of OBC was invalidated by HLC for the purpose of seeking employment with FCI.
8. The contention that it was not specified in the advertisement that the candidate should be OBC as per the list issued by the Central Government lacks merit. The advertisement dated 12-18.03.2005, invited applications for five posts for AG-II in FCI, reserved for OBC. Clause 19 of the advertisement stated that before applying for posts the candidates should satisfy themselves that they fulfil the eligibility and in case the information furnished by the candidates is found to be defective rendering candidate ineligible, the candidature shall be rejected as and when it comes to the notice of the management. It is not contested by the parties that for the post reserved for OBC in the Central Government, the OBC list issued by the Central Government shall apply and not the list issued by the State Government.
9. The argument that FCI got the OBC certificate verified and the termination after more than six years of service for no fault of the petitioner is bad and does not enhance the case of the petitioner. The termination was for the reason that the petitioner on basis of OBC certificate issued as per State List was not eligible to apply for post of AG-II in FCI, reserved for OBC.
10. The two issues i.e. whether the candidate on the basis of the community of the candidate finding mention only in the State List of OBC can claim reservation of OBC in the recruitment for Central Government post and secondly, whether the principle of estoppels against termination can be invoked by the candidate on the ground of having served on the post for a long period of time, were considered by the Division Bench of this court in Pankaj v. Union of India (supra). It was held that list prepared by the Govt. of NCT of Delhi of OBC category shall not be relevant for appointment to the Central Government post. Candidate belonging to OBC community only as per the State List shall be ineligible for the Central Government post and that this illegality vitiates the appointment, the principle of estoppel shall not apply to the termination of the services. The relevant portion of judgement is quoted below:-
to reserved posts for OBCs in the Central Government can only be given to candidates belonging to communities mentioned in the Central List (Mandal List). Candidates belonging to communities included in State Government lists are not eligible.
10. The appointment in the present case, as mentioned in the advertisement, was to be made by the HQ Western Air Command (Unit) Air Force which is a part of the Central Government. The Government of NCT of Delhi may have prepared its own list of communities falling in OBC category but that list is not relevant and material for appointment to a Central Government post for which a separate Central List (Mandal List) has been prepared. It is, Therefore, apparent that the petitioner was not an OBC candidate and Therefore not eligible for appointment to the post of LDC reserved for OBCs by the Central Government.
11. We also do not find merit in the contention that on the basis of principle of estoppel, the respondent could not have terminated the service of the petitioner vide letter dated 15th December, 2004 In support of his contention the petitioner had relied upon the judgment of the Supreme Court in the case of Sanatan Gauda versus Berhampur University and others reported at MANU/SC/0199/1990: [1990]2SCR273. The said judgment in our opinion is not applicable to the facts of the present case. In the said case, a student of a Law College had pursued his studies for two years and thereafter he was not being permitted and allowed to give his examination for Final year. In these circumstances, the Supreme Court applied the principle of estoppel and held that the petitioner therein was entitled to succeed. It may also be mentioned here that the Supreme Court has examined various rules and satisfied itself that the petitioner therein fulfilled the minimum qualification prescribed for admission to the law course.
12. It is a settled law that there cannot be an estoppel against law. A wrong appointment without proper verification cannot give any right to the petitioner who is a non-OBC to occupy a post reserved for an OBC category. An error or mistake of the nature, subject matter of the present petition, cannot be overlooked by applying principle of estoppel. Appointment of a non- OBC candidate to a post reserved for OBCs is not an irregularity but illegality which vitiates the appointment. The appointment itself as contrary to law and illegal. Principle of estoppel is therefore not applicable. It may also be relevant to state here that the appointment letter dated 12th December, 2003 gives right to the respondent to terminate the appointment of the petitioner by giving one month' notice. Therefore, the petitioner was aware that his appointment may be terminated.”
11. The Supreme Court in the cases of Bank of India and Ors. v. Avinash D. Mandivikar and Ors. (2005) 7 SCC 690 after considering decision in the case of R. Vishwanatha Pillai v. State of Kerala and Ors. AIR 2004 SC 1469 held that the basis of appointment cease to exist after invalidation of certificate produced for claiming reservation and then the post kept for the reserved candidate cannot be claimed by such a candidate. The contention that the employee served for three decades and is about to retire in three years and the equity is in favour of the employee was rejected. It was held:-
appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate.” xxx xxx xxx Looked from any angle the High Court‟s judgment holding that the respondent no.1-employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment.”
12. The submission that the termination of petitioner for furnishing false information is stigmatic, is factually wrong. The OBC certificate produced by petitioner was invalidated by HLC as the community of the petitioner did not find mention in the OBC list of the Central Government, thereby making the petitioner ineligible to apply for the post of AG-II in FCI by claiming reservation for OBC post. The termination for ineligibility attaches no stigma.
13. Reliance of the learned counsel for the petitioner on the decision of the Supreme Court in the case of Iqbal Khatri & Ors. v. Employees State Insurance Corp. & Ors. and on the decisions of this Court in The Director General Employees State Insurance Corporation v. Vivek Rana and Ors. (supra) and Union of India & Ors. v. Jagdeep (supra) is of no avail. The orders were passed in the peculiar facts and circumstances of those cases and were not to be treated as precedents. It would also be relevant to mention that in both the decisions of this court relied upon by counsel for the petitioner the Division Bench judgement of Pankaj v. Union of India (supra) was not considered.
14. The petitioner was ineligible for applying for the post of AG-II in FCI reserved for OBC, by producing OBC certificate issued on the basis of State list of OBC. After invalidation of the OBC certificate by HLC, the petitioner had no right to continue on the post reserved for OBC. No case is made out for interference in impugned orders.
15. The writ petition is dismissed. All pending applications are also disposed of.