Judgments – Law declared by the Courts: September 2023

Sunday, September 17, 2023

Appointment on the post of Special Educator (Primary) in MCD - OBC (Central) Certificate is valid for claiming OBC reservation in Delhi

25.08.2023

Central Administrative Tribunal, Delhi

In terms of DSSSB’s Advertisement dated 04.03.2021, Ms. Tanisha Ansari applied for appointment on the post of Special Educator (Primary) (Post Code: 32/21) in Municipal Corporation of Delhi (MCD) under OBC category.

Ms. Ansari had OBC (Central) Certificate dated 31.03.2021, on the basis of which she applied under the OBC category. It may be noted that vide Notification dated 20.01.1995, “Ansari” has been recognized as an Other Backward Class (OBC) by the Delhi Government for jobs in Delhi. Further, vide Notification dated 12.08.2011, “Ansari” has been recognized as Other Backward Class (OBC) by the Central Government for jobs in Central Government.

On 05.01.2022, DSSSB declared the marks of all the candidates who had appeared in the Computer Based Test (CBT). Marks of Ms. Ansari were also declared and she was shortlisted for uploading the e-dossier. Accordingly, Ms. Ansari uploaded her e-dossier at the DSSSB’s website. However, vide Notice dated 27.04.2022, DSSSB directed Ms. Ansari to upload an OBC (Delhi) Certificate for claiming OBC reservation.

On 29.04.2022, Ms. Ansari applied for issuance of OBC (Delhi) Certificate. On 02.05.2022, Delhi Government issued OBC (Delhi) Certificate dated 02.05.2022 to Ms. Ansari. On 07.05.2022, Ms. Ansari duly uploaded the OBC (Delhi) Certificate dated 02.05.2022 at the DSSSB’s website. However, vide Order dated 01.07.2022, DSSSB rejected the candidature of Ms. Tanisha Ansari under the OBC category.

Being aggrieved by the rejection Order dated 01.07.2022, Ms. Ansari filed an Original Application (OA No. 2112/2022) before the Central Administrative Tribunal (CAT), Delhi. Vide Order dated 25.08.2023, the Central Administrative Tribunal allowed the Original Application and directed the DSSSB, as well as MCD, to treat Ms. Ansari as an OBC candidate and, accordingly, appoint her on the post of Special Educator (Primary) (Post Code: 32/21) in Municipal Corporation of Delhi (MCD) under OBC category. The directive paragraphs of the Order dated 25.08.2023 are reproduced below for ready reference: -

“2. Learned counsel for the applicant states that the applicant has been treated as Unreserved Category despite the fact that he has holding a valid OBC Certificate. He is a resident of Delhi belonging to Ansari community which is in the notified list and in the Central Government which as per him is duly recognized by the Government of NCT vide a circular dated 27.07.2007. For the sake of clarity, the same is reproduced as under: -

“Sub: Reservation for OBCs in the jobs under the Government of NCT of Delhi.

Madam/Sir,

I am directed to inform that the Hon'ble Lt. Governor has considered the matter regarding grant of benefit of reservation to OBCs in Civil posts under the Govt. of NCT of Delhi and has decided that the Central list for OBCs qua Delhi and castes defined as GBCs by OBC Commission and accepted so by the Government be extended the benefit of reservation in Delhi.

In light of the above, appropriate action for grant of benefits of reservation to OBCs in the civil posts of Govt. of NCT of Delhi may be taken accordingly”

3. He further reiterates that similar stand was reiterated vide recent circular dated 08.11.2021, which also reads as under: -

“Sub: Reservation for OBCs in the Jobs under the Government of NCT of Delhi reg.

Sir,

I am directed to refer to Service Department letter No.F.19(10)2001/8-III/ Pt. file /2278-2285 dated 27/07/2007 by which it has been conveyed with the approval of Hon'ble Lt. Governor that benefit of reservation to OBCs in Civil Posts under the Govt. of NCT of Delhi be extended to the Castes mentioned in Central list for OBCs qua Delhi, and caste defined as OBCs by OBC Commission and accepted so by the Govt.

2. Therefore, the castes mentioned in the Central OBCs list have been accepted by the Government of Delhi for extending benefits of reservation in Civil posts under the Government of NCT of Delhi in addition to castes notified by the Government of Delhi vide above mentioned letter dated 27-07-2007.

3. Accordingly, Revenue Department, GNCTD is hereby requested to upload the complete list of castes (Notified by Government of NCT of Delhi and caste notified under Central Govt. for the State of Delhi under Central list- (copy enclosed)

This is issues with approval of competent authority.”

4. He places an Entry No. 26 in the said list. He further states that the applicant secured 101.78 marks in OBC Category whereas the cut-off of the marks of the last selected candidate in the OBC category were 84.44 marks. He has also drawn attention to a Caste Certificate issued on 31.03.2021.

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9. Learned counsel for the respondents does not dispute the fact that the (Annexure A-9) was in proper format as per the Advertisement’s terms and conditions only issued to be examined whether it has been uploaded in accordance with the cut-off date or not. To our mind the decision relied upon by the learned counsel for the respondents though relevant to the context that the facts of the case were entirely different. Set of circumstances here we find that the present case is squarely covered by the decision rendered in Govt. of NCT of Delhi Through its Chief Secretary & Ors. v/s Anjana (supra), which was upheld by the Hon’ble Apex Court as well.

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10. We also draw strength from the judgment of the Hon’ble High Court in W.P.(C) 9040/2019 titled Praveen Khatri and Ors. v/s Govt. of NCT of Delhi and Ors., decided on 27.10.2021 as held as under:-

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11. In view of the present OA, the impugned rejection and treating the applicant as Unreserved qua the applicant is liable to be set aside. We allow the present OA directing the respondents that the applicant shall be treated as OBC candidate and shall be issued appointment letter within two months from the date of receipt of a certified copy of this order. We further direct that once the offer of appointment has issued, the applicant shall be entitled to notional seniority only subject to the last selected candidate in her category. The actual salary shall be granted to the applicant from the date of actual joining.”

[Tanisha Ansari Vs. DSSSB & Anr., OA No. 2112/2022, decided on 25.08.2023, Central Administrative Tribunal, Principal Bench, Delhi]

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Anuj Aggarwal

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Saturday, September 2, 2023

Termination of service of teachers working in a private unaided school without obtaining prior approval from the Director of Education is bad in law – Delhi High Court

18.08.2023

Delhi High Court

In the year 2014, Dapinder Kaur and Komal Panwar were appointed as Primary Teachers by DAV Public School, Masjid Moth, Delhi. DAV Public School is a private recognized unaided school in Delhi and runs under the aegis of DAV College Trust and Managing Society. DAV Public School is recognized by the Municipal Corporation of Delhi.

In the year 2016, both the teachers were confirmed by the school. In the year 2018, the service of both the teachers were illegally terminated.

Being aggrieved by the illegal termination of service, the teachers filed Appeals [Appeal No. 33/2018 and Appeal No. 43/2018] before the Delhi School Tribunal, Delhi. The Delhi School Tribunal vide Order dated 28.02.2019, allowed the Appeals and directed the DAV Public School to reinstate the teachers.

DAV Public School, instead of implementing the Order dated 28.02.2019, as passed by the Delhi School Tribunal, challenged the same by filing the writ petitions [W.P. (C) No. 3352/2019 and W.P. (C) No. 3362/2019] before the Hon’ble Delhi High Court.

Vide Order dated 18.08.2023, the Hon’ble Delhi High Court dismissed the writ petitions, as filed by the DAV Public School, and upheld the Order dated 28.02.2019, passed by the Delhi School Tribunal. The directive paragraphs of the Order dated 28.02.2019 are reproduced below for ready reference: -

“24. The language of the above said provision clearly lays down that a private school, whether aided or unaided is required to formulate a disciplinary committee. The said provision is also supplemented by the Rule 120 of the DSEAR, which mandates that a major penalty cannot be imposed upon an employee by the school prior to an inquiry conducted by the disciplinary committee in a manner specified under the said Rule. The aforementioned Rule is reproduced hereunder:

“120. Procedure for imposing major penalty-

…..

28. Furthermore, the Hon’ble Supreme Court in Raj Kumar vs. Director of Education and Others, (2016) 6 SCC 541, has held that the termination of an employee, will be bad in law if it is obtained without prior approval of the Director of Education. Section 8 (2) of DSE, is a procedural safeguard enacted by the legislature with a clear intent to provide security of tenure to employees and to regulate the terms and conditions of their employment. It further ensures that an employee is not terminated in an arbitrary or unreasonable manner without the approval of the Director, even by a private school. The relevant paragraphs of the aforementioned judgement are reiterated herein:

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29. In the instant case, this Court has taken into consideration the facts and documents placed on record and observes that the service of respondent teacher is clearly recorded as that of a permanent employee by the petitioner school. Furthermore, the observation laid down by the learned Tribunal are also been considered, wherein, the learned Tribunal placed reliance on the counter affidavit of the petitioner school in the Appeal bearing no. 44/2018, which stated that the petitioner school accepted the respondent teacher as a permanent employee w.e.f. 9th August 2015. Thus, proving that the respondent teacher was terminated in contravention of the provisions of Rule 118 and 120 of the DSEAR. Therefore, this Court is of the view that the respondent teacher was a permanent employee of the petitioner School.

30. Now, delving into a peculiar question raised in this petition, in regard to the entitlement of back wages. This Court is of the view that based on the observations mentioned herein above, the respondent teacher is entitled to back wages as directed vide the impugned order dated 28th February 2019, passed by the learned Tribunal. The Hon’ble Supreme Court in the judgment of Sunil Sikri vs Guru Harkrishan Public School & Anr., 2022 SCC OnLine SC 926, held that when an appeal to the Delhi School Tribunal is filed under Section 11 of the DSE, and the employee is reinstated, then the provision is not merely an enabling one since it confers upon the Managing Committee of the school, a power that becomes a duty to consider and any other view would put the employee at the mercy of the employer, which is not the intent of the DSE.

31. Therefore, in light of the observations made by this Court in the foregoing paragraphs, it is held that the respondent teacher is entitled to reinstatement as held by the learned Tribunal. This Court finds no infirmity in the impugned order passed by the learned Tribunal and hence, upholds the impugned order 28th February 2019, passed by the learned Tribunal in Appeal bearing No. 44/2018.

32. In view of the above discussion of facts and law, this Court discerns no material in the propositions put-forth by the petitioner school and thereby, the instant writ petition is dismissed.

33. Accordingly, pending applications, if any, also stand dismissed.”

[DAV Public School & Anr. Vs. Dapinder Kaur & Anr., W.P. (C) No. 3352/2019, decided on – 18.08.2023; DAV Public School & Anr. Vs. Komal Panwar, W.P. (C) No. 3362/2019, decided on – 18.08.2023]