REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8259 OF 2019

(arising out of SLP(C) No. 11254 OF 2019)

GOVT. OF NCT DELHI & ORS.                   APPELLANT(S)

VERSUS

PRADEEP KUMAR & ORS.                       RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

Leave granted.

2. Heard Ms Madhavi Divan, Learned Additional Solicitor

General of India representing the appellants. The Learned

Senior Counsel Ms Aishwarya Bhati, represents the contesting

Respondent  Nos.  2-6.  The  respondents  and  few  others  had

filed  the  O.A.  No.  1047  of  2014  before  the  Central

Administrative Tribunal (CAT) and the same was allowed on

20.08.2018 (Annexure P/5).  The resultant challenge by the

appellants was dismissed under the impugned order of the

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High Court of Delhi in the Writ Petition (C) No. 557 of

2019, which has led to the present appeal.

3. The  matter  pertains  to  the  recruitment  of  Special

Education Teachers under the Govt. of NCT of Delhi. The

Advertisement No. 01/2013 (Annexure P/1) was issued by the

Delhi Sub-ordinate Services Selection Board where, for the

vacancies of Special Education Teachers against Post Code

01/13,  the  following  essential  qualifications  were

stipulated:-

“............................................. i)Graduate  with  B.ED  (Special  Education)  or B.ED. with a two years Diploma in Special Education or Post Graduate  Professional Diploma  in  Special  Education  or  any  other equivalent  qualification  approved  by Rehabilitation Council of India.

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

4. The  respondents  had  obtained  the  CTET  i.e.  Central

Teacher Eligibility Test qualification, under the relaxed

pass norms for the OBC category, in States other than Delhi.

They offered their candidature for the vacancies in Delhi

and appeared in the recruitment test.  But their candidature

were held to be not-eligible, through the office order dated

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19.02.2014 (Annexure P/2). The ground mentioned in the order

is that the applicants are “CTET qualified as OBC but OBC

outsider”.

5.1  Aggrieved by the above decision of the Delhi Sub-

ordinate Services Selection Board, the Original Applicants

(9 in number), together filed the OA No. 1047 of 2014 before

the CAT. The Applicants who belong to the OBC Category had

acquired the CTET qualification by availing 5% relaxation in

the  qualifying  marks  in  the  CTET,  from  their  respective

States  but  had  participated  in  the  written  examination

conducted for the vacancies in Delhi.  Before the CAT, the

Original Applicants projected that they secured more marks

than the last selected candidates under the General Category

and yet, their candidature was rejected notwithstanding the

fact that claim for selection is based entirely on the basis

of their performance in the recruitment test.   

5.2  However, the Govt. of NCT of Delhi, on the other hand

contended before the Tribunal that for claiming benefits

intended for the OBC Category vacancies in Delhi, the OBC

Certificate must be issued by the Government of Delhi. Since

respondents are not recognized as OBC in Delhi, they cannot

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claim eligibility qua the CTET criterion, with lower pass

marks, in the CTET examination.  

6. The  Tribunal  considered  the  rival  contention  and

observed that rejection of the candidature of the Original

Applicants would mean that the appellants do not recognize

the CTET qualification.  Relying on Vikas Sankhla & Ors. V.

Vikas Agarwal & Ors.1, the Tribunal took the view that there

shall be no bar in considering meritorious applicants in the

unreserved category if no weightage was given to CTET marks

in  preparation  of  the  final  merit  list.  Consequential

direction was issued to the authorities for appointment of

Original Applicants, in terms of their respective position

in the merit list.

7. The Tribunal's Order was challenged in the High Court

by the Govt. of NCT of Delhi. In the Writ Petition (C) No.

557 of 2019, the appellants contended that the Respondents

cannot avail concession under the OBC category as they were

permanent residents of other states.  The Respondents could

not also be considered under the unreserved category, as the

same would be subject to minimum 60% marks for the general

1 (2017) 1 SCC 350

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category in order to be CTET qualified.  Therefore, the

appellants argued before the High Court that notwithstanding

the performance of the respondents in the recruitment test,

their candidature for the General Category vacancies is not

valid.   

8. The High Court under the impugned Order, however noted

that the Advertisement did not specify that the candidates

who applied on the basis of the CTET qualification with

lower pass marks, would not be eligible for the General

Category vacancies if they have secured less than 60% marks

in the CTET examination. The High Court accordingly held

that once the candidate had obtained the CTET qualification,

the  marks  secured  in  the  qualification  examination  is

immaterial for consideration of their candidature, for the

unreserved category vacancies.  As the performance of the

respondents were more meritorious than others selected in

the unreserved category, the Tribunal’s decision in favour

of  the  respondents  was  upheld  and  accordingly,  the  Writ

Petition filed by the appellants came to be dismissed.

9.1. The appellants challenged the decision of the Delhi

High Court with the contention that the respondent having

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secured the eligibility qualification under relaxed norms

for  the  OBC  Category  are  in-eligible  to  be  considered

against  General  Category  vacancies.  Ms  Madhavi  Divan,

learned Additional Solicitor General of India submits that

the  respondents  having  obtained  the  eligibility

qualification with lower pass marks under relaxed norms for

the OBC Category, were rightly found to be ineligible for

employment in the General Category vacancies in Delhi.  

9.2. Dealing with the facts and the ratio of Vikas Sankhala

(Supra) Ms Divan argues that this Judgment was erroneously

applied by the Tribunal to the facts in the instant case

inasmuch as for the present recruitment under Advertisement

No.01/13, mere qualification in the CTET (instead of marks),

will  have  a  bearing  whereas,  the  marks  in  the  CTET

examination, did have a bearing in the recruitment process

in  the  case  of  Vikas  Sankhala  (supra).  The  learned

Additional  Solicitor  General  makes  a  distinction  between

CTET being an eligibility qualification as in the present

case and the CTET marks influencing the final merit in the

selection, 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

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facet of recruitment in that case and the ratio thereof will

not apply in the present matter.

9.3. The learned Additional Solicitor General projects that

it is not a case of candidates obtaining CTET qualification

on  the  basis  of  age  relaxation  or  fee  waiver  in  which

situation, respondents marks in the CTET examination may

have no bearing. But when the respondents had qualified in

the CTET examination securing below the normal pass marks

(60%),  they  were  rightly  held  to  be  ineligible  for  the

General category vacancies, in the State of Delhi.

10.1   Per contra, Ms. Aishwarya Bhati, the learned Senior

Counsel  for  the  respondents  has  argued  that  when  the

essential  qualification  in  the  advertisement  does  not

stipulate any minimum marks for eligibility, the respondents

having obtained the CTET qualification, cannot be found to

be ineligible.

10.2   The  Respondents  project  that  they  secured  higher

marks in the recruitment test then few candidates selected

for the General category vacancies and therefore rejection

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of  their  candidature  would  mean  merit  being  ignored  for

appointment.

10.3  Supporting the decision of the High Court and the

Tribunal, Ms Bhati argues that the ratio in Vikas Sankhala

(supra) was rightly applied to give relief to the Original

Applicants who claim appointment on the basis of their merit

position in the recruitment test.   

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

following issues:-

i.  Whether the respondents who have secured the

CTET  qualification  form  outside  Delhi  as  OBC

candidate  by  availing  5%  relaxation  in  the

qualifying  marks  be  considered  for  employment

against the post of Special Education Teacher in the

Government of NCT, Delhi?

ii.  Whether  the  Respondents,  after  availing

concession under the OBC category can compete for

seats under the unreserved category?

12. The records here show that the National Council for

Teacher  Education  [‘NCTE’]  issued  Notification  dated

23.08.2010, that provided for the minimum qualifications for

a person to be eligible for appointment as a teacher.  It

provided,  inter  alia,  that  applicants  for  the  post  of

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teachers  (falling  in  the  specified  criteria  of  the

Notification) shall have to pass the Teacher Eligibility

Test  [‘TET’]  which  will  be  conducted  by  the  appropriate

Government in accordance with NCTE’s guidelines.  Pursuant

to this Notification, vide Order dated 11.02.2011, the NCTE

issued Guidelines for conducting the TET.  The Guidelines

provided that a person who scores 60% in the TET examination

will be considered as TET pass.  Further, concessions to

persons  belonging  to  the  disadvantaged  category,  in

accordance with their extant reservation policy was also

provided.

13. The Directorate of Education, Delhi (appellant No.3) by

its  Notification  dated  07.10.2011,  stated  that  for

appointment to the schools of Delhi, the GNCT, Delhi will

recognize  the  CTET  conducted  by  the  Central  Board  of

Secondary Education (CBSE).  By another Notification dated

30.11.2012,  appellant  No.3  added  the  following  to  the

aforementioned Notification dated 07.10.2011:-

“................................................ .. The CBSE is issuing CTET marks statements to the candidates  with  conditions  that  candidates securing 60% and above marks will be considered as  CTET  qualified.   Further,  the  NCTE  vide

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notification  29.07.2011  specifically  provided that “Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved  categories  such  as  SC/ST/OBC/PH. Therefore,  candidates  belonging  to  reserved categories such as SC/ST/OBC/PH shall be allowed relaxation upto 5% in the qualifying marks, in CTET  conducted  by  the CBSE ............................................ ”

14. The  reservation  for  the  OBC  category  under  Clause

6(iii) of Advertisement No.1/13 being relevant, is extracted

as under:-

 6. RESERVATION BENEFITS:

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

15. In the Delhi recruitment process, the respondents did

not possess OBC (Delhi) certificate and thus they could not

be considered for the OBC category vacancies.  Further, as

per the CTET guidelines, unreserved candidates are required

to obtain 60% marks to qualify in the CTET.  Since the

Respondents  obtained  less  than  60%  in  CTET,  their

candidature  could  be  valid  only  under  the  OBC  category.

However  due  to  absence  of  certificate  of  OBC  status  by

Government of NCT, Delhi and by virtue of clause 6(iii), as

above,  which  bars  reservations  to  outsider  OBC,  the

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Respondents are ineligible for the applied post. They may

however compete against the unreserved vacancies, if they

pass CTET with minimum 60% marks. Admittedly, none of the

Respondents are certified by the GNCT of Delhi as OBC and

neither do they possess the requisite 60% marks in CTET for

qualification for the one-tier exam, as per Advertisement

1/13 and therefore the contention of the Appellants do have

acceptable basis.

16. At this stage we need to discuss the  Vikas Sankhala

judgment in some detail as the High Court and the Tribunal

granted  relief  to  the  respondents  on  the  basis  of  this

Judgment.  The  recruitment  in  Vikas  Sankhala,  related  to

Rajasthan where the candidates who availed concession in the

CTET examination, were allowed to migrate to Unreserved (or

general) category vacancies, if they were more meritorious

than the general category candidates.

17. The question, therefore, to be answered here is whether

the above case pertaining to recruitment in Rajasthan with

candidates  competing  for  vacancies  in  their  home  State,

would  apply  to  the  situation  in  the  present  case  where

candidates from other states obtaining qualification under

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relaxed norms, are aspiring for general category vacancies

in Delhi.

18. The decision of Vikas Sankhala (supra) was arrived at

due to certain peculiar facts in the case.  The recruitment

process of teachers therein stipulated that 20% of the final

result calculation of every aspirant will be based on the

candidate’s TET result marks.  Thus, candidates who obtained

CTET qualification after availing concession, had naturally

secured  lower  marks  in  the  total  aggregate  compared  to

those, who appeared in the unreserved category and did not

avail such concession in pass marks.  In those facts, it was

held that the resultant reduced marks in the 20% component

will  neutralize  the  benefits  of  eligibility  given  to

reserved  candidates,  who  thereafter  had  to  compete  with

unreserved  students  without  any  concessions  and  also

overcome the disadvantage they had in the 20% component.  On

this aspect, the following was the Court’s observation:-  

“…once this differentiation is understood, it would  lead  to  the  conclusion  that  no concession becomes available to the reserved category  candidate  by  giving  relaxation  in the pass marks in TET insofar as recruitment process is concerned.”

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19. The  above  excerpts  reveal  the  Court’s  concern  for

maintaining equality in the recruitment process.  However,

in the present recruitment process, in the absence of a

compensatory disadvantage or balancing factor, the ratio in

Vikas Sankhala  cannot be applied for the respondents who

obtained CTET qualification by virtue of concession given to

OBC categories. In other words, the concession benefit is

not neutralized in the Delhi recruitment process.  Thus, a

level playing field and a fair treatment is not achieved, by

inappropriately applying the ratio of Vikas Sankhala without

having  regard  to  the  peculiarity  of  facts  of  that  case

where, a different selection yardstick was applied.

20. As noted above, although there was no balancing out of

the relaxation for the selection process in Delhi unlike the

process in  Vikas Sankhala’s decision, the CAT erroneously

applied the ratio of the Rajasthan case for giving relief to

the respondents.

21.1    In  Vikas  Sankhala,  the  Court  considered  the

implication of the 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-II/99 that expressly

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allowed migration to the unreserved category irrespective

of any concession availed by the candidate of the reserved

category if he/she had secured more marks than the last

Unreserved category candidate who is selected. But here the

OMs  dated  01.07.1998  and  04.04.2018  issued  by  the

Department  of  Personnel  &  Training  would  bear

consideration.  Contrary to the circular dated 11.05.2011

in  Vikas  Sankhala  (supra),  the  two  OMs  referred  by  Ms

Divan, issued specific instructions to the effect that when

a  relaxed  standard  is  applied  in  selecting  a  reserved

category  candidate,  in  age  limit,  experience,

qualification,  additional  chances  in  written  examination

etc.,  such  candidates  will  be  counted  against  reserved

vacancies.

21.2  For better understanding, the implications of the

afore noted OM dated 01.07.1998 (ref.36011/1/98-Estt.(Res),

Ministry of Personnel, Public Grievances and Pensions), the

relevant portion is extracted below:-

“.......................................  3. In  this  connection,  it  is  clarified  that only  such  SC/ST/OBC  candidates  who  are selected on the same standard as applied to general  candidates  shall  not  be  adjusted against reserved vacancies.  In other words, when  a  relaxed  standard  is  applied  in

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selecting  an  SC/ST/OBC  candidates,  for example  in  the  age  limit,  experience, qualification,  permitted  number  of  chances in  written  examination,  extended  zone  of consideration larger than what is provided for  general  category  candidates  etc.,  the SC/ST/OBC  candidates  are  to  be  counted against reserved vacancies.  Such candidates would  be  deemed  as  unavailable  for consideration against unreserved vacancies. ........................................”

21.3  In the same context, the relevant part of the second

OM dated 04.04.2018 (Ref.No.F.No.43011/4/2018-Estt.(Res.)]

issued by the Ministry 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:-

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

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22. From the above extract of the two OMs, it is quite

apparent  that,  unlike  in  Vikas  Sankhala,  there  is  an

express  bar  on  migration  to  the  unreserved  category  of

those  reserved  category  candidates  who  had  availed  of

relaxation  including  those  for  qualification.  The

prescription  of  the  eligibility  qua  CTET,  in  the

advertisement, will therefore have to be 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.

The same OM dated 01.07.1998 was considered in Deepa EV v

Union of India2 and we feel that the Court was correct in

the view, vis-à-vis the OM dated 01.07.1998.  

23.   The  other  distinguishing  aspect  in  Vikas  Sankhala

(supra) is that  the candidates who had applied under the

reserved category belonged to Rajasthan. For the selection

and  aspirants  from  the  same  State  i.e.,  Rajasthan,  the

Court allowed such candidates to migrate to the 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 unreserved category if they secure at least 60%

2 (2017) 12 SCC 680

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marks  in  the  CTET.  The  respondents  admittedly  did  not

secure  60%  and  thus  were  ineligible.  Moreover,  an  OBC

candidate not certified in the State/Territory outside of

Delhi cannot be eligible to avail of employment in reserved

category posts earmarked for OBCs who are certified by the

Delhi Government.

24.  It is important to keep in mind that the respondents

are competing for general category vacancies.  All others

in  this  group  have  obtained  their  CTET  eligibility

qualification,  securing  the  normal  pass  marks  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  OBC  category  examinees.   Their

eligibility qualification is secured under relaxed norms

meant for OBC category and therefore we do not think it is

proper to consider them to be eligible for the general

category  vacancies  and  contention  to  the  contrary  is

unacceptable.

25. The  respondents  with  their  CTET  qualification  under

relaxed  norms  would  be  eligible  for  OBC  category  posts

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provided their OBC status is certified and recognized by

the Delhi government.  But such not being the case, they

are ineligible for the reserved category vacancies.  To

allow them to migrate and compete for the open category

vacancies  would  not  be  permissible  simply  because,  they

have secured the CTET qualification with relaxation of pass

marks meant for those belonging to the OBC category.  As

the respondents have not secured the normal pass marks for

general  category,  their  eligibility  for  the  general

category  vacancies  is  not  secured.   Therefore,  their

performance in the selection examination would be of no

relevance, in the present process.

26. As  earlier  discussed,  this  case  concerns

qualifications obtained with concession in pass marks. Such

concession  would  have  a  direct  impact  on  standards  of

competence  and  merit  in  the  recruitment  of  Special

Education Teachers. The principles of reservation under the

Constitution of India are intended to be confined to a

specifically earmarked category and the unreserved category

must  be  protected,  to  avoid  dilution  of  competence  and

merit. If  Vikas Sankhala  (supra) is interpreted shorn of

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its  peculiar  facts,  as  has  been  suggested  by  the

respondents’  counsel,  it  would  in  our  perception,

considering  that  respondents  secured  the  qualification

under relaxed norms, would lead to dilution of merit in the

unreserved category. The arguments made to the contrary by

the respondents is therefore rejected.

27.   In  view  of  the  forgoing,  the  High  Court  and  the

Tribunal erred in granting relief to the respondents. The

impugned  judgment  of  the  High  Court  of  Delhi  in  Writ

Petition (C) No. 557 of 2019 dated 21.1.2019 is set aside

and this appeal is allowed. No order as to costs.

………………………………………………J.    [R.BANUMATHI]

………………………………………………J.    [A.S.BOPANNA]

……………………………………………J.         [HRISHIKESH ROY]

NEW DELHI OCTOBER 24, 2019

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