Pratima K. Gupta, Member (J)

1. In the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following reliefs:-

"(i) Thereby quashing the rejection notice/order dated 21.9.17 passed by the respondent No. 1 whereby her candidature has been rejected on the basis of OBC (migrant).

(ii) Direct the respondent No. 1 immediately to select the applicant for the post she has applied to join with the respondent No. 2.

(iii) Direct the respondents to keep/reserve one post of ANM vacant till the decision of the O.A.

(iv) Award costs of the proceedings."

2. Brief facts that arise in the present case are that the applicant, who was born and brought up in Haryana, belonged to the OBC category (JOGI) in Haryana. She got married on 01.05.2008. Her husband also belonged to the OBC category (Dahiya) and has been residing in Delhi since 1986. In the year 2011, the applicant applied for the post of Auxiliary Nurse/Midwife (ANM) with the Government of NCT of Delhi as a contractual employee under the OBC category and is working there on contractual basis till date. In the year 2014, she applied for regularization of her services and filed O.A. No. 3234/2014 before this Tribunal for the same. The said O.A. was allowed and the respondents were directed to regularize the services of the applicant. However, she is still working on contractual basis in GNCTD. On 20.01.2014, she applied for the post code 14/14 (Auxiliary Nurse/Midwife) advertised by DSSSB. She participated in the written examination for the same and secured 73.5 marks which are much above the cut-off marks prescribed by the respondents. She was duly selected and was called for document verification. While she was awaiting the offer of appointment, her candidature for the same was rejected on the ground of "OBC/Migrant" vide order dated 21.09.2017 wherein her name appears at S. No. 31.

3. Learned counsel for the applicant, in support of his claims, argues that since the applicant got married in the year 2008, the marriage certificate supporting the same being on record, clearly stipulates that the husband of the applicant was a resident of Delhi since 1986, rather he belongs to the OBC category of Delhi, as his caste being DAHIYA is in the OBC list of Haryana. Further the applicant belonged to the OBC category in the State of Haryana as well as in Delhi as her caste JOGI was within the list of OBC both in Haryana and Delhi. He further draws support from the certificate issued by the Revenue Authority wherein it is categorically stated that the caste JOGI was, in fact, recognized as OBC by the Delhi Government and that the said certificate has been issued on the basis of the applicant being OBC in the State of Haryana (District Sonepat). He adds that the said resolutions were adopted by both the States and therefore, the applicant's status is OBC. He submits that though the applicant has been declared migrant, however, since she has been married and come to Delhi, her status by any stretch of imagination could not be of a migrant. By virtue of getting married to a person, who was a resident of Delhi, the applicant acquired the status of being a resident of Delhi. Learned counsel for the applicant places his reliance on the relevant paragraphs of the following judgments:-

1. Bhagwati Devi Vs. The State of Rajasthan & Ors. decided by Hon'ble High Court of Rajasthan on 2.2.2009,

"It is contended by learned counsel for the petitioner that firstly the petitioner fulfills all requisite qualifications as advertised by the respondents vide advertisement Annex. 4. The stand taken by the respondents that the petitioner did not disclose her father's name falls flat in view of the material available on record. Even according to the reply to the writ petition filed by respondents, it has been stated that the petitioner has annexed with her application two OBC certificates showing her to be a member of OBC (Female) category, one showing her father's name and other showing name of her husband. Since the certificate was issued showing father's name way back in the year 1994 and thereafter when the petitioner married, the another certificate dated 13.11.2006 showing her husband's name and petitioner submitted both the certificate of OBC. Both the certificates show that the petitioner is a member of OBC (Female). Apart from this, the petitioner fulfills all requisite qualifications as has been advertised and this fact has not been disputed by the respondent State. The stand taken by the respondent is contrary to the record which is evident from the Annexure-1 and Annexure-1A, as also admitted in the reply filed by the respondents that the petitioner has already filed the certificate belonging to OBC (Female) category showing her father's name and her husband's name as well. Learned counsel further submits that in the instant case the petitioner has annexed two certificates showing her to be member of OBC (Female), one showing her father's name and other showing her husband's name, however, this Court in Mrs. Sahendra Bai and Others Vs. R.P.S.C. and Anr., : 2008 (4) W.L.C. (Raj.) 252 has held that after the woman having married, the father's name is not required to be shown and if any such condition is imposed that is erroneous. In Mrs. Sahendra Bai and Others Vs. R.P.S.C. and Anr. (supra) this Court observed as under:-

"Considering the aforesaid case laws on the subject and considering the facts of the present matters, in my view, the RPSC cannot say that even though certificates issued by the State Authorities may be good for contesting elections or for any other purpose, but the same cannot be said to be applicable for getting public employment. It cannot be said that simply because the petitioners are married, they lose the protection of reservation altogether even though they were belonging to a particular reserved category before their marriage and even after their marriage their caste falls under reserved category in the State of Rajasthan. In any case, when the authorities of the State of Rajasthan have already granted certificates treating such candidates to be in reserved category, unless such certificate are set aside in appropriate manner, they are binding and are required to be acted upon. The RPSC cannot sit in appeal over such certificates and if they do so, they would be acting in the excess of their powers. It is not the constitutional mandate that a person belonging to a particular reserved category in one State can never get the benefit of reservation in other State. This Court is dealing with the question about married woman who have now permanently settled in the State of Rajasthan for all times to come and they can be said to be permanent residents of the State of Rajasthan for all practical purposes. It is as such not in dispute that the petitioners are now permanently residing in the State of Rajasthan as certain documentary evidence is also placed on record in this behalf and in many cases even their names have also been enrolled in the Voters' list, therefore, it cannot be said that simply because they have settled in the State of Rajasthan by virtue of their marriage, they cannot be said to be permanent residents of the State of Rajasthan. However, it is no doubt true that simply by way of migration or transfer from one State to other, a person cannot get the benefit of reservation, which he might be getting in his/her parental State. However, in the case of a married lady, if she was treated in a particular reserved category before her marriage and her caste or tribe is treated to be in the reserved category even in the State where she has migrated by virtue of her marriage, there is no reason to deny her the benefit of reservation. Considering the said aspect, it can be said that the petitioners are qualified to be considered in their respective reserved category (SC/ST/OBC) on the basis of certificates issued by the authorities of the State in this behalf by treating them to be permanent residents of State of Rajasthan."

2. Ms. Sunita Vs. GNCTD & Ors. decided by Hon'ble High Court of Delhi on 24.03.2005.

"4. Respondents in opposition to the writ petition and justification for treating petitioner's case as that of a general candidate averred in the counter affidavit that petitioner had failed to furnish the caste certificate, issued by the Competent Authority of Govt. of NCT of Delhi, by 30.6.1998, the last date for submitting the application form with required documents. Petitioner having failed to comply with the said requirement was not entitled to invoke the writ jurisdiction or to be considered as an OBC candidate. Additionally, an objection was taken that petitioner being an OBC candidate from Haryana was, in any case, not entitled to get the benefit of reservation in the post under the Govt. of NCT of Delhi or local autonomous body subordinate to the said Government.

8. Learned counsel for the petitioner further submitted that Annexure P-1 shows that applications had been invited from Indian Nationals. There was no restrictive covenant, confining the applicants to be residents of Delhi. Accordingly, as far as the denial of non-consideration of the petitioner's status as an applicant in OBC category on the ground that the caste certificate from a Competent Authority of Govt. of NCT had not been furnished before 30th June, 1998, the same is held to be not sustainable.

9. Let us consider the objection that petitioner though being certified as 'Ahir' and backward class in Haryana was not entitled to benefit of the same in NCT of Delhi. Learned counsel for the respondent submitted that as per the certificate appearing at page 15 of the paper book, petitioner was resident of Haryana. It had been so certified. In the second certificate appearing at page 16 of the paper book, issued by SDM of Govt. of NCT of Delhi dated 8th October, 1998, she had been certified as resident of Delhi, belonging to "Ahir" Caste. The certificate, issued from Delhi also carries the notation of not belonging to Creamy Layer.

Learned counsel for the respondent Mr. George Paracken submitted that the Tejpal Singh's case will not advance the petitioner's case as the objection is not only that the certificate had been tendered by the candidate after the cut off date. The problem does not get over with the direction that the certificate furnished after the cut off date may be accepted. It is not the case, where the cut off date is the only issue. Here the very entitlement of the petitioner to backward class entitlement in the State, to which she has migrated i.e., NCT of Delhi, is sought to be questioned. It is further urged that Kunwar Pal Singh's case, namely, WP(C). No. 5061/2001 would also not advance the petitioner's case, since there the provision is made for the benefit of reservation being available to those, who had been born and brought up in Delhi even though they may have migrated with their parents.

19. The aforesaid certificate records that "Ahir" is recognized as a backward class in terms of notification bearing No. F.28(93)/91-92/SC/ST/P & S/4384 dated 20.1.95. There is further certification that the petitioner does not belong to the creamy layer. The above certificate has been issued in the prescribed Annexure 'AA' which is required for OBC candidates applying to posts under the Government of NCT of Delhi. The Certificate is in accordance with the prescribed requirements as noted by the Supreme Court in MCD V. Veena (Supra) to confer the benefit of reservation as backward class in NCT of Delhi. The petitioner having been granted this certificate, in my view, the said certificate is binding and conclusive on the respondents. The said certificate itself assumes that the authorities have satisfied themselves as to the eligibility of the petitioner to be treated as an OBC in the NCT of Delhi for posts falling under the Government of NCT. The authorities are to issue the said certificate after due verification and satisfaction and subject to the petitioner fulfilling the conditions of eligibility as an OBC candidate, including that of being ordinarily resident. It is not the case of the respondent that the aforesaid certificate had not been issued or was fraudulently issued or has been revoked. As long as the aforesaid certificate is subsisting, valid and in force, the respondents cannot deny the consideration to the petitioner as an OBC candidate, even though the initial certificate may have been from the State from which she has migrated, or raise an objection as to the origin of the petitioner. Accordingly, this case is on a different footing from Manju Rani V. DSSB & Ors. (Supra) in view of the OBC certificate having been issued by the prescribed and Competent Authority of NCT."

3. DSSSB Vs. Vikas Kumar decided by Hon'ble High Court of Delhi on 27.11.2013

"19. Noting conflicting decisions by different Benches, some following the law declared by the Supreme Court in S. Pushpa's case and some following the law declared in Marri's and Action Committee's case, the matter was referred to a Full Bench of this Court and we have the decision of the Full Bench reported as : 2012 (132) DRJ 169 Deepak Kumar & Ors. Vs. District & Sessions Judge Delhi.

22. We may additionally note that much before the decision of the Supreme Court in S. Pushpa's case which was pronounced in the year 2005, on August 27, 2003 the Government of NCT of Delhi issued an Office Memorandum on the subject of reservation for Scheduled Tribes for recruitment to civil posts under the Government of NCT of Delhi, which reads as under:-

"Ministry of Home Affairs, Govt. of India vide letter cited above have clarified that the instructions contained in the MHA, O.M. No. 7/2/55/SCT dated 14.10.55, in accordance with which the percentages of reservation prescribed for recruitment on an All India basis are required to be followed in Delhi continue to be in force and applicable in respect of civil post under the Govt. of NCT of Delhi. Accordingly, the Civil posts under the Govt. of NCT of Delhi reserved for Scheduled Tribes are required to be filled up from amongst Scheduled Tribes candidates irrespective of nativity.

Accordingly, it has been decided that Govt. of NCT of Delhi may continue to reserve the prescribed percentage of Civil posts under the Govt. for appointment of Scheduled Tribes candidates as has been the practice in the past. Therefore, in terms of the aforesaid clarification 7.5% of Civil posts under the Govt. may be kept reserved for appointment of Scheduled Tribes candidates irrespective of their nativity and appropriate action for recruitment may be taken."

(Emphasis Supplied)

23. The position would be that in Delhi it would be a case of a conscious decision taken, as was taken by the appropriate Government in the Union Territory of Pondicherry, to extend benefit of reservation to, if we may use the expression migrant Scheduled Castes and Scheduled Tribes, provided the holder of the certificate is otherwise an ordinary resident of Delhi.

26. Ravindra Devi, the writ petitioner of WP(C) No. 3049/2012 has been unsuccessful before the Tribunal. She claims benefit of reservation on the strength of a certificate issued by the competent authority in the State of Haryana certifying she belonging to the Scheduled Caste "Chamar".

27. The reason given by the Tribunal to deny her relief is wrong, being that the certificate produced by her has been issued by an authority in Haryana. But she would not be entitled to any relief because admittedly she resides in Haryana and it had not her case that she is ordinarily a resident of Delhi. The law declared in S. Pushpa's case (supra) is that a person who is a member of a Scheduled Caste in a particular State would be entitled to reservation in a Union Territory provided he is ordinarily a resident of the Union Territory.

28. WP(C) No. 3049/2012 is accordingly dismissed.

29. Challenge in WP(C) 6485/2011 is to the order dated March 23, 2011 allowing TA No. 73/2010 filed by Vikas Kumar, the respondent in the writ petition.

30. It is not in dispute that Vikas Kumar is ordinarily a resident of Delhi. In fact, his parents migrated to Delhi. He was born in Delhi and has studied in Delhi all throughout. The Senior Secondary School Examination has been cleared by him as a student of a Government Senior Secondary School. He has obtained a Graduate degree at a college at Delhi. He is a member of a caste which is a Scheduled Caste not only in Delhi but even his parent State where his ancestors resided before his father migrated to Delhi i.e. the State of Uttar Pradesh. The Tribunal has correctly opined in his favour of being entitled to the benefit of reservation in Delhi."

4. Learned counsel for the respondents vehemently opposes the O.A. and submits that the respondents have, in fact, followed the contents of the certificate issued by the Revenue Authority strictly and, in fact, it has been issued on the basis of the fact that the applicant was an OBC in Haryana. Her independent status with respect to OBC has not been determined by the Revenue Authorities; therefore, the said certificate was deficient with respect to her status of being an OBC in Delhi as is desired by their Rules, which are inscribed in paragraph 2 of the counter reply. The same read as under:-

"As per the policy of Government of Delhi, the following two types of certificates are considered as valid certificates for grant of benefit of reservation to OBCs in civil posts under Govt. of NCT of Delhi..

1. OBC certificate (Delhi) issued by the Revenue Department of GNCT of Delhi, on the basis of any old certificate issued to any member of individual's family from GNCT of Delhi.

2. OBC certificate issued by a Competent Authority outside Delhi to a person belonging to a community duly notified as OBC by GNCT of Delhi. This certificate should have mandatorily been issued on the basis of OBC certificate issued by Govt. of NCT of Delhi to any family member of the concerned person who had been residing in Delhi before 08.09.1993.

On scrutiny of the OBC certificate produced by the applicant, Ms. Archana, it was found that the said certificate was issued on the basis of OBC certificate issued to her by Tehsildar, Sonipat, Haryana dated NIL."

He says that had the certificate been issued on the basis of her marital status the same would have been different and, therefore, they are not responsible for it as they are bound by the instructions and, hence, for this reason the case of the applicant has been rightly rejected by them. He relies on the judgment of Hon'ble Supreme Court of India in Civil Appeal No. 3045 of 1998 in the matter of MCD Vs. Veena & Ors. wherein the Court held the view that the OBC migrants or OBC (outsider) are not eligible for concession admissible to the OBCs of NCT of Delhi. Relevant extract of the judgment dated 24.08.2001 is as under:-

"A careful reading of this 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 issued 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 State to which he has migrated. Thus the High Court lost sight of these aspects of the matter in making in the impugned order in either ignoring the necessary notifications issued in regard to classification of OBC categories or in the matter of verification thereof. Thus the order made by the High Court in this regard deserves to be reversed."

5. Heard the counsels for the parties at length.

6. After perusal of the pleadings and the documents on record, the following points emerge:

First, that the applicant has secured 73.5 marks, that are well above the marks secured by the last selected candidate in her category. Second, she belongs to a caste that is declared as an OBC both in the State of Haryana and Delhi. Third, the husband of the applicant also belongs to a caste (DAHIYA) that finds mention in the list of OBC of Delhi thereby implying that the applicant belongs to the OBC category not only by birth but also by her marital status. Fourth, the candidature of the applicant has been rejected stating MIGRANT OBC.

7. In our opinion, the applicant cannot be treated as a MIGRANT OBC as she has come to Delhi in view of change in her marital status and by virtue of the same she has become a resident of Delhi for all times to come. The said view is supported by the judgment mentioned hereinabove referred to by the applicant. As far as the contention of the learned counsel for the respondent is concerned, the certificate so provided by the applicant is not based on the status of the husband of the applicant, they (respondents) are bound by the guidelines on the subject and the applicant does not have control over the authorities that issue such certificates and, therefore, she cannot be held responsible for the same. Though we should have directed the applicant to provide the certificate afresh but in view of the fact that the selection is of the year 2014 and already 9 years have elapsed.

8. In the peculiar facts that the applicant belongs to OBC caste by birth and marriage, we allow this OA. The rejection order dated 21.09.2017 is hereby quashed and set aside. The respondents are directed to treat the applicant as selected and offer her appointment letter to join as ANM with respondent No. 2 along with all consequential benefits within a period of one month from the date of receipt of certified copy of this order.

9. No order as to costs.