GOVT. OF NCT DELHI & ORS. versus PRADEEP KUMAR & ORS. on 24 October 2019

SUPREME COURT REPORTS

[2019] 13 S.C.R.

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GOVT. OF NCT DELHI & ORS.

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PRADEEP KUMAR & ORS.

(Civil Appeal No. 8259 of 2019)

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OCTOBER 24, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Service Law:

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Recruitment – Of Special Education Teachers – In the NCTof Delhi – Essential qualification wherefor inter-alia was CentralTeacher Eligibility Test (CTET) – For reservation in OBC Category,the recruitment advertisement required such candidates to possesscaste certificate issued by Govt. of Delhi – Respondents/candidates,Dwho had CTET qualification by availing 5% relaxation in thequalifying marks in the CTET from their respective States (not Delhi)applied under reserved category of OBC and appeared in writtentest – They were denied candidature as not eligible because theywere CTET qualified as OBC outsider, and not from Delhi – OriginalEApplication against the order rejecting their candidature wasallowed by Central Administrative Tribunal directing the authoritiesto appoint the candidates by considering their merit position in theunreserved category – Tribunal’s order was upheld by High Court– Appeal to Supreme Court – Held: Since the candidates are notFcertified as OBC by Govt. of NCT of Delhi they cannot be consideredeligible in the OBC category – They also cannot be consideredagainst unreserved category because there is an express bar underOffice Memoranda on migration to unreserved category of thosereserved category candidates, who had availed of relaxation in theGqualification.

Reservation – Principles of reservation under the Constitutionare intended to be confined to a specifically earmarked categoryand the unreserved category must be protected to avoid dilution ofcompetence and merit.

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Allowing the appeal, the Court

HELD: 1. For reservation in the OBC category underClause 6 (iii) of Advertisement No.1/13, the OBC candidates wererequired to be in possession of caste certificate issued by theGovt. of Delhi only. Therefore, in the Delhi recruitment process,the respondents did not possess OBC (Delhi) certificate and thusthey could not be considered for the OBC category vacancies.Further, as per the CTET guidelines, unreserved candidates arerequired to obtain 60% marks to qualify in the CTET. Since theRespondents obtained less than 60% in CTET, their candidaturecould be valid only under the OBC category. However due toabsence of certificate of OBC status by Government of NCT,Delhi and by virtue of clause 6(iii) of the recruitmentadvertisement which bars reservations to outsider OBC, theRespondents are ineligible for the applied post. They mayhowever compete against the unreserved vacancies, if they passCTET with minimum 60% marks. Admittedly, none of theRespondents are certified by the GNCT of Delhi as OBC andneither do they possess the requisite 60% marks in CTET forqualification for the one-tier exam, as per the Advertisement.An OBC candidate not certified in the State/Territory outside ofDelhi cannot be eligible to avail of employment in reservedcategory posts earmarked for OBCs who are certified by the DelhiGovernment. [Paras 14, 15, and 23][1064-B-F; 1067-F]

2. The OMs dated 01.07.1998 and 04.04.2018 issued bythe Department of Personnel & Training issued specificinstructions to the effect that when a relaxed standard is appliedin selecting a reserved category candidate, in age limit,experience, qualification, additional chances in writtenexamination etc., such candidates will be counted againstreserved vacancies. There is an express bar on migration to theunreserved category of those reserved category candidates whohad availed of relaxation including those for qualification. Theprescription of the eligibility qua CTET, in the advertisement,will therefore have to be understood bearing in mind, the contentsof the OM dated 01.07.1998. To apply the advertisement in thepresent facts will not be correct. The same OM dated 01.07.1998.

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AThere is an express bar on migration to the unreserved categoryof those reserved category candidates who had availed ofrelaxation including those for qualification. The prescription ofthe eligibility qua CTET, in the advertisement, will therefore haveto be understood bearing in mind, the contents of the OM dated01.07.1998. [Paras 21.1 and 22][1066-B-C; 1067-C-D]B

Deepa EV v Union of India (2017) 12 SCC 680 – reliedon.

3. In the present case, the candidates (i.e. the respondents)belong to States other than Delhi. Being OBC (outsiders), theyCcould have been considered only under the unreserved categoryif they secure at least 60% marks in the CTET. The respondentsadmittedly did not secure 60% and thus were ineligible.[Para 23][1067-E]

4. The respondents are competing for general categoryDvacancies. All others in this group have obtained their CTETeligibility qualification, securing the normal pass marks withoutavailing any relaxation of pass norms. On the other hand, therespondents despite their lesser marks in the CTET examination,could qualify only because they availed the relaxation benefits asOBC category examinees. Their eligibility qualification is securedEunder relaxed norms meant for OBC category and therefore it isnot proper to consider them to be eligible for the general categoryvacancies. [Para 24][1067-G-H; 1068-A]

5. The respondents with their CTET qualification underrelaxed norms would be eligible for OBC category posts providedFtheir OBC status is certified and recognized by the DelhiGovernment. But such not being the case, they are ineligible forthe reserved category vacancies. To allow them to migrate andcompete for the open category vacancies would not bepermissible simply because, they have secured the CTETGqualification with relaxation of pass marks meant for thosebelonging to the OBC category. As the respondents have notsecured the normal pass marks for general category, theireligibility for the general category vacancies is not secured.Therefore, their performance in the selection examination wouldbe of no relevance, in the present process. [Para 25][1068-D-E]H

6. The present case concerns qualifications obtained withconcession in pass marks. Such concession would have a directimpact on standards of competence and merit in the recruitmentof Special Education Teachers. The principles of reservationunder the Constitution of India are intended to be confined to aspecifically earmarked category and the unreserved categorymust be protected, to avoid dilution of competence and merit.[Para 26] [1068-D-E]

Vikas Sankhla & Ors. V. Vikas Agarwal & Ors. (2017)1 SCC 350 : [2016] 7 SCR 639 – distinguished.

Case Law Reference

[2016] 7 SCR 639distinguished.Para 6(2017) 12 SCC 680relied on.Para 22

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8259of 2019.

From the Judgment and Order dated 21.01.2019 of the HighCourt of Delhi at New Delhi in W.P. (C) No. 557 of 2019.

Ms. Madhavi Diwan, ASG, R. Bala Subramanium, Sr. Adv.,Mahaling Pandarge, Ayush Puri, B. V. Balaram Das, Advs. for theAppellants.

Ms. Aishwarya Bhati, Sr. Adv., Sachin Chauhan, Ms. ChitrangdaR., Celeste Agarwal, Nitin Chaudhary, R. C. Kaushik, Advs. for theRespondents.

The Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. Leave granted.

2. Heard Ms Madhavi Divan, Learned Additional Solicitor Generalof India representing the appellants. The Learned Senior CounselMs Aishwarya Bhati, represents the contesting Respondent Nos. 2-6.The respondents and few others had filed the O.A. No. 1047 of 2014before the Central Administrative Tribunal (CAT) and the same wasallowed on 20.08.2018 (Annexure P/5). The resultant challenge bythe appellants was dismissed under the impugned order of the HighCourt of Delhi in the Writ Petition (C) No. 557 of 2019, which has led tothe present appeal.

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A3. The matter pertains to the recruitment of Special EducationTeachers under the Govt. of NCT of Delhi. The Advertisement No.01/2013 (Annexure P/1) was issued by the Delhi Sub-ordinate ServicesSelection Board where, for the vacancies of Special Education Teachersagainst Post Code 01/13, the following essential qualifications werestipulated:-B

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i) Graduate with B.ED (Special Education) or B.ED. with a twoyears Diploma in Special Education or Post Graduate ProfessionalDiploma in Special Education or any other equivalent qualificationapproved by Rehabilitation Council of India.

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ii) Central Teacher Eligibility Test (CTET) conducted by CentralBoard of Secondary Education (CBSE).

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4. The respondents had obtained the CTET i.e. Central TeacherDEligibility Test qualification, under the relaxed pass norms for the OBCcategory, in States other than Delhi. They offered their candidature forthe vacancies in Delhi and appeared in the recruitment test. But theircandidature were held to be not-eligible, through the office order dated19.02.2014 (Annexure P/2). The ground mentioned in the order is thatEthe applicants are “CTET qualified as OBC but OBC outsider”.

5.1 Aggrieved by the above decision of the Delhi Sub-ordinateServices Selection Board, the Original Applicants (9 in number), togetherfiled the OA No. 1047 of 2014 before the CAT. The Applicants whobelong to the OBC Category had acquired the CTET qualification byavailing 5% relaxation in the qualifying marks in the CTET, from theirFrespective States but had participated in the written examinationconducted for the vacancies in Delhi. Before the CAT, the OriginalApplicants projected that they secured more marks than the last selectedcandidates under the General Category and yet, their candidature wasrejected notwithstanding the fact that claim for selection is based entirelyGon the basis of their performance in the recruitment test.

5.2 However, the Govt. of NCT of Delhi, on the other handcontended before the Tribunal that for claiming benefits intended for theOBC Category vacancies in Delhi, the OBC Certificate must be issuedby the Government of Delhi. Since respondents are not recognized asOBC in Delhi, they cannot claim eligibility qua the CTET criterion, withHlower pass marks, in the CTET examination.

6. The Tribunal considered the rival contention and observed thatrejection of the candidature of the Original Applicants would mean thatthe appellants do not recognize the CTET qualification. Relying on VikasSankhla & Ors. V. Vikas Agarwal & Ors.[1], the Tribunal took the viewthat there shall be no bar in considering meritorious applicants in theunreserved category if no weightage was given to CTET marks inpreparation of the final merit list. Consequential direction was issued tothe authorities for appointment of Original Applicants, in terms of theirrespective position in the merit list.

7. The Tribunal’s Order was challenged in the High Court by theGovt. of NCT of Delhi. In the Writ Petition (C) No. 557 of 2019, theappellants contended that the Respondents cannot avail concession underthe OBC category as they were permanent residents of other states.The Respondents could not also be considered under the unreservedcategory, as the same would be subject to minimum 60% marks for thegeneral category in order to be CTET qualified. Therefore, the appellantsargued before the High Court that notwithstanding the performance ofthe respondents in the recruitment test, their candidature for the GeneralCategory vacancies is not valid.

8. The High Court under the impugned Order, however noted thatthe Advertisement did not specify that the candidates who applied onthe basis of the CTET qualification with lower pass marks, would not beeligible for the General Category vacancies if they have secured lessthan 60% marks in the CTET examination. The High Court accordinglyheld that once the candidate had obtained the CTET qualification, themarks secured in the qualification examination is immaterial forconsideration of their candidature, for the unreserved category vacancies.As the performance of the respondents were more meritorious thanothers selected in the unreserved category, the Tribunal’s decision infavour of the respondents was upheld and accordingly, the Writ Petitionfiled by the appellants came to be dismissed.

9.1. The appellants challenged the decision of the Delhi High Courtwith the contention that the respondent having secured the eligibilityqualification under relaxed norms for the OBC Category are in-eligibleto be considered against General Category vacancies. Ms MadhaviDivan, learned Additional Solicitor General of India submits that therespondents having obtained the eligibility qualification with lower pass AB

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Amarks under relaxed norms for the OBC Category, were rightly foundto be ineligible for employment in the General Category vacancies inDelhi.

9.2. Dealing with the facts and the ratio of Vikas Sankhala(Supra) Ms Divan argues that this Judgment was erroneously appliedBby the Tribunal to the facts in the instant case inasmuch as for the presentrecruitment under Advertisement No.01/13, mere qualification in theCTET (instead of marks), will have a bearing whereas, the marks in theCTET examination, did have a bearing in the recruitment process in thecase of Vikas Sankhala (supra). The learned Additional Solicitor Generalmakes a distinction between CTET being an eligibility qualification as inCthe present case and the CTET marks influencing the final merit in theselection, as was the situation in the recruitment process in Rajasthan.She specifically argues that the judgment in the Vikas Sankhala (supra)was rendered in the peculiar facet of recruitment in that case and theratio thereof will not apply in the present matter.

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9.3. The learned Additional Solicitor General projects that it is nota case of candidates obtaining CTET qualification on the basis of agerelaxation or fee waiver in which situation, respondents marks in theCTET examination may have no bearing. But when the respondentshad qualified in the CTET examination securing below the normal passEmarks (60%), they were rightly held to be ineligible for the Generalcategory vacancies, in the State of Delhi.

10.1 Per contra, Ms. Aishwarya Bhati, the learned Senior Counselfor the respondents has argued that when the essential qualification inthe advertisement does not stipulate any minimum marks for eligibility,Fthe respondents having obtained the CTET qualification, cannot be foundto be ineligible.

10.2 The Respondents project that they secured higher marks inthe recruitment test then few candidates selected for the General categoryvacancies and therefore rejection of their candidature would mean meritbeing ignored for appointment.G

10.3 Supporting the decision of the High Court and the Tribunal,Ms Bhati argues that the ratio in Vikas Sankhala (supra) was rightlyapplied to give relief to the Original Applicants who claim appointmenton the basis of their merit position in the recruitment test.

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GOVT. OF NCT DELHI & ORS. v. PRADEEP KUMAR & ORS.[HRISHIKESH ROY, J.]

11. In the present Appeal, we are required to focus on the followingissues:-

i. Whether the respondents who have secured the CTETqualification form outside Delhi as OBC candidate by availing5% relaxation in the qualifying marks be considered foremployment against the post of Special Education Teacher in theGovernment of NCT, Delhi?

ii. Whether the Respondents, after availing concession under theOBC category can compete for seats under the unreservedcategory?

12. The records here show that the National Council for TeacherEducation [‘NCTE’] issued Notification dated 23.08.2010, that providedfor the minimum qualifications for a person to be eligible forappointment as a teacher. It provided, inter alia, that applicants for thepost of teachers (falling in the specified criteria of the Notification) shallhave to pass the Teacher Eligibility Test [‘TET’] which will be conductedby the appropriate Government in accordance with NCTE’s guidelines.Pursuant to this Notification, vide Order dated 11.02.2011, the NCTEissued Guidelines for conducting the TET. The Guidelines provided thata person who scores 60% in the TET examination will be considered asTET pass. Further, concessions to persons belonging to the disadvantagedcategory, in accordance with their extant reservation policy was alsoprovided.

13. The Directorate of Education, Delhi (appellant No.3) by itsNotification dated 07.10.2011, stated that for appointment to the schoolsof Delhi, the GNCT, Delhi will recognize the CTET conducted by theCentral Board of Secondary Education (CBSE). By another Notificationdated 30.11.2012, appellant No.3 added the following to theaforementioned Notification dated 07.10.2011:- “............................................................................................

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The CBSE is issuing CTET marks statements to the candidateswith conditions that candidates securing 60% and above markswill be considered as CTET qualified. Further, the NCTE vi denotification 29.07.2011 specifically provided that “Relaxation up

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Ato 5% in the qualifying marks shall be allowed to the candidatesbelonging to reserved categories such as SC/ST/OBC/PH.Therefore, candidates belonging to reserved categories such asSC/ST/OBC/PH shall be allowed relaxation upto 5% in thequalifying marks, in CTET conducted by the CBSE

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14. The reservation for the OBC category under Clause 6(iii) ofAdvertisement No.1/13 being relevant, is extracted as under:-

6. RESERVATION BENEFITS:

(iii) The OBC candidates must be in possession of filledCprescribed Annexure I, along with his/her caste certificateissued by the Govt. of Delhi only.

15. In the Delhi recruitment process, the respondents did notpossess OBC (Delhi) certificate and thus they could not be consideredfor the OBC category vacancies. Further, as per the CTET guidelines,Dunreserved candidates are required to obtain 60% marks to qualify inthe CTET. Since the Respondents obtained less than 60% in CTET,their candidature could be valid only under the OBC category. Howeverdue to absence of certificate of OBC status by Government of NCT,Delhi and by virtue of clause 6(iii), as above, which bars reservations toEoutsider OBC, the Respondents are ineligible for the applied post. Theymay however compete against the unreserved vacancies, if they passCTET with minimum 60% marks. Admittedly, none of the Respondentsare certified by the GNCT of Delhi as OBC and neither do they possessthe requisite 60% marks in CTET for qualification for the one-tier exam,as per Advertisement 1/13 and therefore the contention of the AppellantsFdo have acceptable basis.

16. At this stage we need to discuss the Vikas Sankhala judgmentin some detail as the High Court and the Tribunal granted relief to therespondents on the basis of this Judgment. The recruitment in VikasSankhala, related to Rajasthan where the candidates who availedGconcession in the CTET examination, were allowed to migrate toUnreserved (or general) category vacancies, if they were moremeritorious than the general category candidates.

17. The question, therefore, to be answered here is whether theabove case pertaining to recruitment in Rajasthan with candidatesHcompeting for vacancies in their home State, would apply to the situation in the present case where candidates from other states obtainingqualification under relaxed norms, are aspiring for general categoryvacancies in Delhi.

18. The decision of Vikas Sankhala (supra) was arrived at dueto certain peculiar facts in the case. The recruitment process of teacherstherein stipulated that 20% of the final result calculation of every aspirantwill be based on the candidate’s TET result marks. Thus, candidateswho obtained CTET qualification after availing concession, had naturallysecured lower marks in the total aggregate compared to those, whoappeared in the unreserved category and did not avail such concessionin pass marks. In those facts, it was held that the resultant reducedmarks in the 20% component will neutralize the benefits of eligibility given to reserved candidates, who thereafter had to compete withunreserved students without any concessions and also overcome thedisadvantage they had in the 20% component. On this aspect, thefollowing was the Court’s observation:- “…once this differentiation is understood, it would lead to theconclusion that no concession becomes available to the reservedcategory candidate by giving relaxation in the pass marks in TETinsofar as recruitment process is concerned.”

19. The above excerpts reveal the Court’s concern for maintainingequality in the recruitment process. However, in the present recruitmentprocess, in the absence of a compensatory disadvantage or balancingfactor, the ratio in Vikas Sankhala cannot be applied for the respondentswho obtained CTET qualification by virtue of concession given to OBCcategories. In other words, the concession benefit is not neutralized inthe Delhi recruitment process. Thus, a level playing field and a fairtreatment is not achieved, by inappropriately applying the ratio of VikasSankhala without having regard to the peculiarity of facts of that casewhere, a different selection yardstick was applied.

20. As noted above, although there was no balancing out of therelaxation for the selection process in Delhi unlike the process in VikasSankhala’s decision, the CAT erroneously applied the ratio of theRajasthan case for giving relief to the respondents.

21.1 In Vikas Sankhala, the Court considered the implication ofthe Circular dated 11.05.2011 issued by the Department of Personnel,government of Rajasthan, (A, Gr.II) bearing ref.no.No.F.7(1) DOP/A- A

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AII/99 that expressly allowed migration to the unreserved categoryirrespective of any concession availed by the candidate of the reservedcategory if he/she had secured more marks than the last Unreservedcategory candidate who is selected. But here the OMs dated 01.07.1998and 04.04.2018 issued by the Department of Personnel & Training wouldbear consideration. Contrary to the circular dated 11.05.2011 in VikasBSankhala (supra), the two OMs referred by Ms Divan, issued specificinstructions to the effect that when a relaxed standard is applied inselecting a reserved category candidate, in age limit, experience,qualification, additional chances in written examination etc., suchcandidates will be counted against reserved vacancies.C21.2 For better understanding, the implications of the afore notedOM dated 01.07.1998 (ref.36011/1/98-Estt.(Res), Ministry of Personnel,Public Grievances and Pensions), the relevant portion is extracted below:- “........................................................................................ 3.

DIn this connection, it is clarified that only such SC/ST/OBCcandidates who are selected on the same standard as applied togeneral candidates shall not be adjusted against reserved vacancies.In other words, when a relaxed standard is applied in selecting anSC/ST/OBC candidates, for example in the age limit, experience,qualification, permitted number of chances in written examination,Eextended zone of consideration larger than what is provided forgeneral category candidates etc., the SC/ST/OBC candidates areto be counted against reserved vacancies. Such candidates wouldbe deemed as unavailable for consideration against unreservedvacancies.............................................................................”

F21.3 In the same context, the relevant part of the second OMdated 04.04.2018 (Ref.No.F.No.43011/4/2018-Estt.(Res.)] issued by theMinistry of Personnel, Government of India), reiterating in substance,what was stated in the earlier O.M. of 01.07.1998, is extracted as below,for ready reference:- G

“.......................................................................................As per instructions issued vide this Department’s OM No.36012/2/96-Estt.(Res) dated 02.07.1997, in direct recruitments to CentralGovernment jobs and services, the reserve category candidates who are selected on the same standards as applied to general candidates willnot be adjusted against reserved vacancies. As per instructions issuedvide DOP & T OM No.36011/1/98-Estt.(Res) dated 01.07.1998, onlywhen a relaxed standard is applied in selecting a reserved candidates,for example in the age limit, experience, qualification, permitted numberof chances in written examination, etc., such candidates will be countedagainst reserved vacancies.................................”

22. From the above extract of the two OMs, it is quite apparentthat, unlike in Vikas Sankhala, there is an express bar on migration tothe unreserved category of those reserved category candidates whohad availed of relaxation including those for qualification. The prescriptionof the eligibility qua CTET, in the advertisement, will therefore have tobe understood bearing in mind, the contents of the OM dated 01.07.1998.To apply the advertisement in the present facts will not be correct. Thesame OM dated 01.07.1998 was considered in Deepa EV v Union ofIndia[2]and we feel that the Court was correct in the view, vis-à-vis theOM dated 01.07.1998.

23. The other distinguishing aspect in Vikas Sankhala (supra)is that the candidates who had applied under the reserved categorybelonged to Rajasthan. For the selection and aspirants from the sameState i.e., Rajasthan, the Court allowed such candidates to migrate tothe unreserved category. In the present case, however, the candidates(i.e. the respondents) belong to States other than Delhi. Being OBC(outsiders), they could have been considered only under the unreservedcategory if they secure at least 60% marks in the CTET. The respondentsadmittedly did not secure 60% and thus were ineligible. Moreover, anOBC candidate not certified in the State/Territory outside of Delhi cannotbe eligible to avail of employment in reserved category posts earmarkedfor OBCs who are certified by the Delhi Government.

24. It is important to keep in mind that the respondents arecompeting for general category vacancies. All others in this group haveobtained their CTET eligibility qualification, securing the normal passmarks without availing any relaxation of pass norms. On the other hand,the respondents despite their lesser marks in the CTET examination,could qualify only because they availed the relaxation benefits as OBCcategory examinees. Their eligibility qualification is secured under relaxednorms meant for OBC category and therefore we do not think it is proper2 (2017) 12 SCC 680

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Ato consider them to be eligible for the general category vacancies andcontention to the contrary is unacceptable.

25. The respondents with their CTET qualification under relaxednorms would be eligible for OBC category posts provided their OBCstatus is certified and recognized by the Delhi government. But such notBbeing the case, they are ineligible for the reserved category vacancies.To allow them to migrate and compete for the open category vacancieswould not be permissible simply because, they have secured the CTETqualification with relaxation of pass marks meant for those belonging tothe OBC category. As the respondents have not secured the normalpass marks for general category, their eligibility for the general categoryCvacancies is not secured. Therefore, their performance in the selectionexamination would be of no relevance, in the present process.

26. As earlier discussed, this case concerns qualifications obtainedwith concession in pass marks. Such concession would have a directimpact on standards of competence and merit in the recruitment of SpecialDEducation Teachers. The principles of reservation under the Constitutionof India are intended to be confined to a specifically earmarked categoryand the unreserved category must be protected, to avoid dilution ofcompetence and merit. If Vikas Sankhala (supra) is interpreted shornof its peculiar facts, as has been suggested by the respondents’ counsel,Eit would in our perception, considering that respondents secured thequalification under relaxed norms, would lead to dilution of merit in theunreserved category. The arguments made to the contrary by therespondents is therefore rejected.

27. In view of the forgoing, the High Court and the Tribunal erredFin granting relief to the respondents. The impugned judgment of the HighCourt of Delhi in Writ Petition (C) No. 557 of 2019 dated 21.1.2019 isset aside and this appeal is allowed. No order as to costs.

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Kalpana K. Tripathy

Appeal allowed.

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