Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
YOGITA GODARA ..... Appellant
Through: Mr Amit Gupta, Ms Mansi Kukreja and Mr Anshul Saroha, Advs.
Through: Ms Neelima Tripathi and Ms Gunjan Singh, Advs. for R-1
Mr Harish Kumar Garg and Ms Puran Kumari, Advs
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S.SISTANI, J. (ORAL)
1. Challenge in this appeal is to the order passed by a learned Single Judge of this court by which the writ petition filed by the appellant herein has been dismissed.
2. Some necessary facts which are required to be noticed for disposal of this appeal are that an advertisement was published by the respondent No. 1 on 31.07.2010 for recruitment of personnel in the category of Assistant Grade- III. Out of the total vacancies of 250, 59 vacancies were reserved for OBC and non-creamy layer in the Central List. Further as per the advertisement, the format of OBC Certificate had 2018:DHC:5756-DB to be downloaded from the link given on the website. Admittedly, the appellant made an application under the reserved category of OBC as a Jat category. The appellant was selected and an appointment letter was issued to her for the aforesaid post. It is also not in dispute that the appellant successfully completed her probation and was thereafter confirmed. After a gap of almost three years (2 years and 9 months) the respondent No. 1 issued a show cause notice to the appellant as to why her appointment be not cancelled, as the appellant was not an OBC as per the Central list although it may be noted that the appellant is an OBC as per the State list. An inquiry was conducted and the services of the appellant herein were terminated. Order of termination was challenged by filing a writ petition, which was dismissed on the ground that since the employment itself was illegal no relief could be granted to the appellant.
3. Learned counsel for the appellant has strongly urged before this court and has taken us to the advertisement, which was published to show that the advertisement is completely vague, lacks material particulars and does not show that the reservation should be as per the Central List. Learned counsel has highlighted the fact that the present case is not one of either forgery, fabrication or submitted with an intention to take any unfair advantage. The appellant had examined the advertisement and under a bonafide impression that since she is in the State OBC list she would be eligible. She submitted the application & employment was offered. Counsel for the appellant has strongly urged before us that the court should have taken a sympathetic view in the matter and allowed the appellant to continue as she has successfully completed her probation, which would show that not only she was eligible but also she was competent for the post. Counsel submits that the judgments relied upon in the order of the learned Single Judge are primarily cases where a candidate had admittedly sought employment on the basis of false/fabricated certificate and with a view to gain unfair advantage.
4. Ms. Tripathi, learned counsel appearing for the respondent No. 1 has justified the action taken against the appellant herein on the ground that appellent was well aware that she was seeking employment in a Central Government Public Sector Undertaking. It is also contended that for reservation in such employment, the candidate has to be an OBC as per the Central List. Counsel also contends that as per the advertisement, the format of OBC Certificate had to be downloaded from the link given on the website and the format of the Certificate so downloaded made it clear that a candidate seeking benefit of OBC Category for appointment must be an OBC as per the Central List. Learned counsel submits that no benefit can be granted in favor of the appellant even if it is assumed that the advertisement is vague or did not categorically state that the candidate should be an OBC as per the Central list.
5. Counsel has relied upon (2004) 2 SCC 105 titled as R. Vishwanatha Pillai V. State of Kerala And Ors. to show that an appointment on the basis of forged or fraudulent documents, are liable to be vitiated and in this case even if the documents were not forged or fraudulent, but the same was illegal. Para 17 reads as under:
7. The counsel for the Respondent also relied on Satish Kumar vs Union of India, Manu DE 8276 2007. Paragraphs 6, 11 and 12 are reproduced below:-
8. Reliance is also placed on 2005 ILR 2 Delhi 341 titled as Pankaj vs Union of India. Paragraphs 9 to 12 are reproduced below:- “9. The first question which arises for consideration is whether the petitioner belongs to OBC category and was therefore entitled to appointment as an LDC in terms of the advertisement published in the Employment News for 1-7th November, 2003. It is admitted by learned counsel for the petitioner that Jat community is not included in the Central List (Mandal List) of OBCs. The said list has been prepared by the Central Government for purpose of appointment in reserved category posts meant for OBC. Appointments 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.”
9. Reliance is also placed on (1998) 9 SCC 395 titled as Kishorilal Charmkar And Anr V. Distt. Education Officer and Anr. Para 4 is reproduced below:-
Chairman And Managing Director, Food Corporation of India and Ors. Vs. Jagdish Balaram Mahira and Ors. (2017) 8 SCC 7 670. Para 2 reads as under:- “The framers of the Constitution conceived of a policy of affirmative action to redress the social exclusion, economic deprivation and political alienation suffered by historically disadvantaged classes of Indian society. Reservation of posts in public employment and seats for admission in educational institutions and the setting apart of seats in electoral bodies was envisaged by the Constitution for the fulfillment of a constitutional aspiration of social justice to the Scheduled Castes and Tribes and to socially and educationally backward classes of citizens. In pursuit of the constitutional goal of substantive equality, reservations have been envisaged as a means of enabling members of beneficiary groups to realize, in a true sense, dignity, freedom and liberty which the Constitution guarantees as its basic philosophy. But the problem which has confronted legislatures, policy makers as well as courts (as enforcers of the rule of law) is a capture of the benefits of affirmative action programs by persons who do not genuinely belong to the beneficiary groups. This kind of capture poses a serious dimension. When a person who does not belong to a caste, tribe or class for whom reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. For one thing a person who is disentitled to the benefit of a welfare measure obtains the benefit. For another this deprives a beneficiary who is genuinely entitled to receive those benefits of a legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution. It is a fraud on state policy. Confronted with this problem, the legislatures have intervened with statutory instruments while the executive has, in implementation of law, set down administrative parameters and guidelines to prevent the usurpation of benefits.”
10. We have heard the learned counsel for the parties and considered their rival submissions. The core issue, which arises for our consideration, is whether the appellant had obtained employment by fraud and concealment of facts and whether the termination pursuant to 2 tier scrutiny of documents and confirmation in services is valid or not?
11. The foremost argument raised by counsel for the appellant is that the advertisement dated 31.07.2010 was completely vague and failed to specify that the reservation in OBC category should be as per the Central list and the appellant believed that since she was in the State list she would be eligible. Learned counsel for the appellant further contended that after a lapse of almost three years (2 years & 9 months), Respondent no.1 had issued a show cause notice which is arbitrary and against the principles of natural justice, moreso, when the Respondent no.1 have themselves scrutinized the documents and confirmed the appellant in her services on 10.07.2012 after completing the probation period.
12. In response to the contention raised by counsel for the appellant, Ms. Neelima Tripathi, advocate for counsel for the Respondent has drawn the attention of the court to the advertisement dated 31.07.2010 and also to the Inquiry report and findings of the Disciplinary authority and contended that there is no perversity in the order passed by the learned Single Judge.
13. At this stage, we deem it appropriate to reproduce the relevant portion of the Advertisement dated 31.07.2010 which casts a burden on the candidates to furnish correct information and further empowers the Respondent no.1 to initiate action against the candidate as and when any illegality comes to the notice of the Respondent no.1. Relevant portion of the advertisement reads as under:- “Candidates should satisfy themselves that they fulfill the required qualification including Computer Qualification, age etc., before applying for the post. In case it is found that the information furnished by a candidate is defective in any manner or that the candidate has deliberately suppressed information, the candidature will be summarily rejected as and when it comes to the notice of the Management. The candidates are advised to satisfy themselves fully about the correctness of the information furnished, if found ineligible at any stage the candidature would be rejected.”
14. We also deem it appropriate to reproduce the relevant portion of offer of appointment issued to the appellant which reads as under:-
15. We do not find any infirmity in the order passed by learned Single Judge for the reason that the learned Single Judge has scrutinized the advertisement published in the year 2012 and held that the requirement for the post in 2010 as well as in the year 2012 was for OBC candidates under the Central list and not for an OBC candidate as per the State list. Learned Single Judge further observed that in the subsequent advertisement there was a check list provided in the link of the website which makes it evident that the post applied by the petitioner (appellant herein) was only for OBC (central list). Moreover, the Inquiry officer has given a finding which was confirmed by learned Single Judge that it is the responsibility of the candidate to verify his eligibility for the post applied and since the post was reserved for OBC category pertaining to Central list, the Respondent no.1 was well within its domain to issue show cause notice and initiate inquiry as and when the illegality of the appointment came to their notice.
16. In the case of Iqbal Khatri and Ors. Vs Employees State Insurance Corporation and Anr. reported in: 2011 IX AD (Delhi) 695 which squarely covers the issue in the present case, a division bench of this Court while dealing with the issue as to whether a candidate belonging to OBC category under the State list could have applied in a corporation which is created by an Act of Parliament for a post under the Central list. The division bench of this Court while dismissing the petition held that once a candidate, who does not belong to a particular category, gets an appointment, he really encroaches in the field of reservation and destroys the concept of reservation which is impermissible in law. Relevant portion of the decision is reproduced as under:-
17. At this stage, learned counsel for the appellant submits that during the pendency of the writ petition and appeal, the appellant has crossed the age required for employment in a public sector undertaking and submits that in view of the peculiar facts of the case, the appellant should be given age relaxation for a period of two years from today.
18. Although we find no merit in the appeal but taking into account the facts of the present case, more particularly, when the genuineness of the OBC certificate was not in contention or disputed, however, since the appellant did not fall in the Central list of OBC, her employment has been cancelled. We allow the prayer that in case the appellant applies for and is successful in her future recruitment in Public Sector Service Undertakings; age relaxation for two years will be given from today. G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J SEPTEMBER 06, 2018 SU