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CASE NO.:

Appeal (civil) 3045 of 1998

PETITIONER:

M.C.D.

Vs.

RESPONDENT:

VEENA & ORS.

DATE OF JUDGMENT: 14/08/2001

BENCH:

Doraiswamy Raju, S.R.Babu

JUDGMENT:

U D G M E N T

RAJENDRA BABU, J. :

In these cases we have to decide the issue as to whether the

certificates of candidates belonging to backward classes in States other

than Delhi could hold good for the purpose of recruitment to the post of

primary and nursery teachers in Municipal Corporation of Delhi in the

National Capital Territory of Delhi. An ancillary question would also

arise as to whether the Other Backward Classes (for short 'OBCs') of the

States other than Delhi can be treated as OBCs in Delhi and can be

extended the benefits related thereto in Delhi.

The facts leading to the present cases, in brief, are as follows:

Applications were invited from Indian citizens for appointment to

the posts of primary and nursery teachers in the Municipal Corporation

of Delhi on 16.7.1996. In the course of the notification the following was

mentioned by a Note :

"NOTE : Candidates, seeking reservation as ST/SC/OBC/Exs/OH may

submit the prescribed certificate from the competent authority in support

of their claim with applications. The reservation policy to the categories

of ST/SC/OBC/Exs and Physically Handicapped candidates shall be

followed in accordance with the latest policy of Central/Delhi

Government."

The respondent-candidates claimed to belong to OBCs on the basis

of certificate issued in a State other than the Government of National

Capital Territory of Delhi. The applications filed by the respondent-

candidates stood rejected. The respondents filed writ petitions before

the High Court and the High Court by a common order made on

10.3.1998 held that the advertisement issued by the Municipal

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Corporation of Delhi did not indicate the Form in which the OBCs

certificates have to be filed in respect of posts arising in the National

Capital Territory of Delhi and, therefore, there was no obligation on the

respondents to produce such certificate from the prescribed authorities

in Delhi; that the obligation to produce the certificate from authorities in

Delhi could not be fulfilled by candidates coming from outside Delhi and,

therefore, what is impossible could not be expected to be fulfilled by the

respondents and on that basis, the High Court directed to treat the

applications filed by the respondents to be in order and proceed to make

selections. It is this order that is in challenge before us.

Shri A.K. Ganguli, the learned Senior Advocate appearing for the

appellants, submitted that a person belonging to a particular group in

OBC in relation to his original State of which he is permanent or

ordinary resident cannot be deemed to be so in relation to any other

State on his migration to that State for the purpose of employment or

education in that State, as such question will have to be examined with

reference to situation in the State to which he migrates. He placed

reliance upon the decision of this Court in Action Committee on Issues of

Caste Certificate to Scheduled Castes and Scheduled Tribes in the State

of Maharashtra & Anr. v. Union of India & Anr., 1994 (5) SCC 244, in

which the question in relation to the interpretation of Articles 341 and

342 of the Constitution arose for consideration as to whether a person

belonging to SC/ST in relation to his original State of which he is

permanent or ordinary resident cannot be deemed to be so in relation to

any other State on his migration to that State for the purpose of

employment or education. In that case, this Court relied upon the

decision in Marri Chandra Shekhar Rao v. Dean, Geth G.S. Medical

College and Ors.,, 1990 (3) SCC 130. Again in relation to Scheduled

Castes and Scheduled Tribes this Court in Dadaji alias Dina v.

Sukhdeobabu & Ors., 1980 (1) SCC 621, considered the question as to

whether "Gond" caste would include "Mana" or not. This Court

examined the provisions of Articles 341 and 342 of the Constitution and

the Representation of Peoples Act, 1951 and held that it was not

permissible where there are two communities with the same name, one

having affinity with a particular tribe and the other having no such

affinity and both cannot be treated as Scheduled Tribes.

The learned counsel appearing for the respondent-candidates,

however, supported the judgment of the High Court and contended that

when there was no specific mention in the notification as to the manner

in which the certificates have to be produced before the appellants to

indicate that the respondent-candidates belong to any particular OBC

group and the view taken by the High Court is justified.

Castes or groups are specified in relation to a given State or Union

Territory, which obviously means that such caste would include caste

belonging to an OBC group in relation to that State or Union Territory for

which it is specified. The matters that are to be taken into consideration

for specifying a particular caste in a particular group belonging to OBCs

would depend on the nature and extent of disadvantages and social

hardships suffered by that caste or group in that State. However, it may

not be so in another State to which a person belongs thereto goes by

migration. It may also be that a caste belonging to the same

nomenclature is specified in two States but the considerations on the

basis of which they been specified may be totally different. So the

degree of disadvantages of various elements which constitute the data for

specification may also be entirely different. Thus, merely because a

given caste is specified in one State as belonging to OBCs does not

necessarily mean that if there be another group belonging to the same

nomenclature in other State and a person belonging to that group is

entitled to the rights, privileges and benefits admissible to the members

of that caste. These aspects have to be borne in mind in interpreting the

provisions of the Constitution with reference to application of reservation

to OBCs.

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It is clear that the Government of India had notified on 15.11.1993

two model Forms of Certificates to be furnished by the OBC candidates

seeking benefit of reservations. Form prescribed in Annexure 'A' thereto

was required to be produced by candidates belonging to OBCs applying

for appointment to posts under the Government of India and which

certificate was to be verified from the prescribed authorities indicated

therein and a Note was added thereto to the effect that for Government of

the National Capital Territory of Delhi Annexure 'AA' was required to be

fulfilled Annexure 'AA' prescribes a different kind of certificate which

reads as follows:

"ANNEXURE 'AA'

Form of Certificate to be produced by other backward classes applying

for appointments to posts under the Government of National Capital

Territory of Delhi.

-------------

This is to certify that________s/o_________of village

____________District/Division_________State__________belongs to the

_______community which is recognised as backward class under the

Government of NCT of Delhi notified vide Notification No. F.88(93)/91-

92/SC/ST/P&S/4384 date : 20.01.1995 published in the Gazette of

Delhi Extraordinary Part-IV dated : and/or his family ordinarily reside(s)

in the _________District/Division. Division of the ___________State. This

is also to certify that he/she does not belong to the Persons/Sections

(Creamy layer) mentioned in Column 3 of the Schedule to the

Government of India, Department of Personnel and Training O.M. No.

36012/22/93-Estt. (SCT) dated 08.09.1993.

Dtd: District Magistrate

Dy. Commissioner etc.

Seal

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NB

a. The Term 'Ordinarily' used here will have the same meaning as in Sec.

20 of the Representation of the Peoples Act, 1950.

b. For the purpose of verification of claims for belonging to

castes/communities in Delhi as per the list notified by the NCT of Delhi,

the certificate from the following authorities only will be accepted :-

i). District Magistrate, Delhi

ii). Addl. District Magistrate, Delhi.

iii). Deputy Commissioner, Delhi.

iv). Addl. Deputy Commissioner, Delhi.

v). Sub-Divisional Magistrate, Delhi.

vi). Executive Magistrate, Delhi."

A careful reading of this notification would indicate that the OBCs would

be recognised as such in the Government of National Capital Territory of

Delhi as notified in the Notification dated 20.01.1995 and further for the

purpose of verification of claims for belonging to castes/communities in

Delhi as per the list notified by the National Capital Territory of Delhi the

certificates will have to be issued only by the specified authorities and

certificates issues by any other authority could not be accepted. The

Government of India has also issued instructions from time to time in

this regard which indicated that a person belonging to OBC on migration

from the State of his origin in another State where his caste was not in

the OBC list was entitled to the benefits or concessions admissible to the

OBCs in his State of origin and Union Government, but not in the Sate to

which he has migrated. Thus the High Court lost sight of these aspects

of the matter in making the impugned order in either ignoring the

necessary notifications issued in regard to classification of OBC

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categories or in the matter of verification thereof. Thus the order made

by the High Court in this regard deserves to be reversed.

However, one aspect has to be borne in mind and that is the

respondent-candidates had made applications as if they belong to OBCs

on the basis of the certificates issued by the State from which they

migrated to the National Capital Territory of Delhi, but if the certificates

issued in their original States of which they are permanent or ordinary

residents were not good, the applications should have been treated as if

they had been made in the general category and cases of the respondent-

candidates ought to have been considered in general category.

Therefore, to the extent, the applicants have attained necessary merit in

the general list, they deserve to be appointed.

The learned counsel for the appellants, however, pleaded that the

respondent-candidates having applied for the posts as if they belong to

OBC groups their applications could not be treated as falling under

general category. We fail to appreciate this contention. The particulars

furnished by the respondent-candidates clearly give in detail their

general qualifications and eligibility. The only additional aspect stated by

them in their respective applications or in the Certificates supported

thereto is that they belong to OBC categories. Hence, their cases ought

to have been considered in the general category as if they do not belong

to OBC categories in the circumstances arising in this case.

We, therefore, in allowing these appeals, direct that the cases of

the respondent-candidates shall be treated as if they do not belong to

OBC groups but to fall under the general category and their cases shall

be examined and they shall be appointed in the appropriate posts of

primary and nursery teachers if they have attained the necessary merit

in the select list. This exercise shall be done within a period of three

months from today. It is brought to our notice that there are several

vacancies still available with the appellants in this category of posts and

no difficulty would arise in the matter of appointing the respondent-

candidates to those posts. However, if any difficulty arises, it shall be

the duty of the appellants to create appropriate posts and appoint the

respondent-candidates to such vacancies falling under general category.

The order made by the High Court is set aside with modified

directions set forth above. The appeals are allowed accordingly. No

costs.