Judgment:
Hima Kohli, J.
1. The present writ petition has been filed by the petitioner assailing the order dated 1.7.2004 issued by the respondent No. 3, stating inter alias that as the petitioner, who belongs to the community of Jats, did not fall in the list of category of OBCs in the Central List, his candidature for the post of Cabin Crew on flight could not be considered.
2. A brief narration of the facts relevant to decide the present writ petition, is necessary. The respondent Nos. 2 & 3 invited applications in January, 2004 for appointment to 400 posts of Air Hostesses/flight pursers for performing the functions of Cabin Crew on flight by publishing advertisement in the Press. Relevant clauses of the aforementioned advertisement are reproduced hereinbelow:
Candidates belonging to the OBC category will be considered against the reserved posts for OBC only if they submit a Caste Certificate which specifically states that they do not belong to socially advanced section and are not excluded from the benefits of reservation for OBC in civil posts and services. The certificate should contain the 'Non-Creamy Layer Clause'.
Candidates belonging to the OBC category and who cannot furnish OBC certificate with the 'Non-Creamy Layer Clause' will be considered as a General candidate subject to fulfillling the requirements applicable by the general candidates.
3. As per the selection procedure prescribed by the respondents, the applicants were required to appear initially for personal presentation and it was stipulated that those who were found suitable, would be called for a written test. Such of the applicants who would qualify in the written test, would then have to appear for a personal interview and thereafter the concerned candidates would undergo a medical examination in accordance with the medical standards prescribed by the respondent company.
4. It is the case of the petitioner that the petitioner belongs to the community of 'Jats' which is recognized as a Backward Class by the Government of NCT of Delhi in terms of the notification dated 20th January, 1995 and that the petitioner does not belong to the persons/sections (Creamy Layer Clause) mentioned in Column 2 of the Schedule to the Government of India, Deptt. of Personnel & Training, contained in OM dated 8.9.1993.
5. It may be noted here that the form of certificate required to be produced by the OBC candidates seeking reservation, requires a declaration to be made in the following format:
DECLARATION BY OBC CANDIDATES SEEKING RESERVATION AS OBCs.
I______________________________________________son/daughter of Shri _________________________________ resident of Village/town/city _______________________ district_______________________________________ state _______________________________ hereby declare that I belong to the community which is recognized as backward class by the Government of India for the purpose of reservation in services as per the orders contained in Department of Personal & Training Office Memorandum No. 36012/22/93-Estt. (SCT) dated 8.9.1993. It is also declared that I do not belong to persons/sections (Creamy Layer) mentioned in column 2 of the Schedule of the above referred Office Memorandum dated 8-9-1993.
Signature ____________________
Date: ___________ Name ________________________
6. Learned Counsel for the petitioner submited that the petitioner was called for a personal interview and having been found suitable, was called to appear in the written test, which was scheduled for 29.2.2004. The petitioner appeared in the written test, qualified the same and his name also appeared at Seriall No. 30 of the first list declared by the respondent at the Delhi Centre. On 5th March, 2004, the petitioner was called for a personal interview and thereafter on 11th March, 2004, the petitioner was called for a medical examination. It was further submitted that after going through the entire selection procedure, a final list was drawn by the respondents on 5th April, 2004 wherein the name of the petitioner appeared at Seriall No. 32. It was the contention of the counsel for the petitioner that despite the fact that the petitioner was a successful candidate and that no further formality remained except for issuance of an appointment letter, the petitioner did not receive any response from the respondents and, ultimately, a communication dated 1st July, 2004 was issued by the respondent No. 3 in reply to the letter of the petitioner, wherein he was informed that on scrutiny of his papers, it was noted that the community as declared by the petitioner in the Declaration Form did not fall in the categories of OBCs in the Central List, and thus his candidature for the post of Cabin Crew could not be considered.
7. Aggrieved by the aforesaid rejection letter, the petitioner approached this Court by way of the present writ petition. It was stated by the learned Counsel for the petitioner that the advertisement issued by the respondents did not clearly state anywhere that a person declared as an OBC candidate in the State List does not qualify to be considered for appointment in the OBC category. Reliance was placed by the counsel for the petitioner on the advertisement itself, issued by the respondent inviting the applications for the post of Cabin Crew on flight, to state that the respondents only required the candidates belonging to OBC category, to submit a caste certificate which specifically states that they do not belong to the socially advanced sections and are not excluded from the benefit of reservation for OBC in civil posts and services and that the certificate should contain the 'non-creamy layer clause'.
8. It was the case of the petitioner that having complied with the aforesaid requirement, as stipulated by the respondent he had qualified in every manner and was, thereforee, entitled to be appointed as a Cabin Crew on flight by the respondents. In support of his contention that the respondent could not have made any relaxation in the advertisement, the counsel for the petitioner placed reliance on the following judgments:
1. Airport Authority of India v. Ms. Promila reported as 1999(2) SLR 733,
2. Anil Shukla v. National council for Teacher Education and Anr. reported as 2002 (3) SLR 369, and
3. Chahal Varun Kumar v. Union of India and Ors. reported as 2003 (6) SLR 145.
9. The aforementioned judgments reiterate that if a relaxation is provided dehors the advertisement, then the said action is illegal and arbitrary and liable to be struck down by the courts, as the same would amount to perpetrating illegality.
10. Per contra, learned Senior Advocate for the respondents submitted that the respondent Air India Ltd., is a public sector undertaking, the Central Government is the appropriate Government in its respect and as such, the respondent No. 2 is governed by the Central Government rules, orders, notifications including the prescription of reservation as made applicable by the Central Government. It was submitted that two sets of reservation are provided for, one by the Central Government and the other by the respective State Governments. In the present case, the community of 'Jats' is not listed in the list of OBCs as applicable to the Central Government and thus, the respondent was not in a position to consider the petitioner for final selection in the recruitment process undertaken by the respondent No. 2 company pursuant to its advertisement issued in January, 2004. It was further submitted on behalf of the respondents that the petitioner was not found eligible and could not even be considered for the post as a general candidate.
11. Learned Senior Advocate for the respondent placed reliance on a copy of the list of OBC category applicable to the Central Government establishments enclosed as Annexure-'A' to the counter affidavit, wherein in respect of NCT of Delhi, there is no reservation stipulated for the community of 'Jats'. The attention of this Court was also drawn to the list of OBC Cabin Crew recruited in the last recruitment drive prescribed in the advertisement 10-16th January, 2004. It is pertinent to note that the said list was filed by the respondents along with their additional affidavit directed to be placed on record, in terms of the order of this Court dated 16th February, 2006, calling upon the respondents to disclose the names of the OBC candidates appointed and as to whether they were appointed on the basis of Central List or on the basis of the certificates and/or list of individual States or Union Territories. It was submitted that a perusal of the aforesaid list clearly establishes that the respondents have not appointed any candidate in the OBC category from amongst the OBC applicants whose names did not find place in the list applicable to the Central Government establishments. Hence, the petitioner has not been discriminated against in any manner and the criteria has been uniformly adopted with respect to appointment of OBCs for the post of Cabin Crew on flight pursuant to the advertisement issued in January, 2004.
12. It was further submitted on behalf of the respondents that reliance placed by the petitioner on the list of candidates as annexed to the writ petition, is misplaced as the said list was not a list of the selected candidates, but was only of those applicants who were called for written test/interview/medical examination. It was submitted that the petitioner was never considered for final selection as he did not fall in the Central List of OBCs. In response to the arguments of the learned Counsel for the petitioner that the advertisement in question issued by the respondents was ambiguous inasmuch as the same did not clearly state as to whether candidates belonging to the OBC category were to be considered from the Central List or from the State List, it was stated on behalf of the respondents that assuming that the advertisement was ambiguous, fact of the matter is that the respondent is a public undertaking, wholly controlled by the Central Government and that the list applicable in the case of the respondent was the Central List for OBCs as prescribed by the Central Government. As the said prescription was not that of the respondent but of law, it is deemed that everyone knows the law and there can be no plea of estoppel against law. In support of his arguments, learned Senior Advocate of the respondents has placed reliance on a judgment of the Supreme Court entitled MCD v. Veena and Ors. reported as : AIR2001SC2749 .
13. I have heard the arguments of the learned Counsels for the parties and have also gone through the records, including the advertisement on which much emphasis has been placed by both the parties. It is not disputed that the community of 'Jats' is not specified as one of the communities in the list of OBCs as notified by the Central Government. In fact, the petitioner has claimed that he belongs to the backward class of 'Jats' under the Government of NCT of Delhi, on the strength of a certificate issued by the SDM, Kapashera, New Delhi. The limited question before this Court is that whether the petitioner can claim the benefit of reservation with respect to posts advertised by the respondents for being recruited as Cabin Crew on flight in light of the advertisement issued in January, 2004, though the community of 'Jats' does not specifically find place in the Central List of OBCs. This issue in fact is no longer rest integra. The Supreme Court has held in a decision in the case of MCD v. Veena and Ors. (supra) as below:
5. 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, the view taken by the High Court is justified.
6 . 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 belonging 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 had 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 another State, 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.
14. It may be noted here that the view taken in the aforesaid judgment, was again reiterated by the Supreme Court in U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh reported as : AIR2003SC3626 wherein, after taking note of a judgment rendered by the Constitution Bench in the case of Action Committee on Issue of Caste Certificate to Scheduled Cates and Scheduled Tribes in State of Maharashtra v. Union of India reported as (1994) 5 SCC 24 as also in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College reported as : [1990]2SCR843 , it was held that the respondent therein could not be treated as a Scheduled Tribe so as to qualify himself to claim reservation against the vacancy reserved for Scheduled Tribes in public services in the State of UP, for the reason that the Naga Tribe to which the respondent therein belonged, was not specified as one of the Scheduled Tribes in the State of UP. As a result, the appeal filed by the appellant therein against the judgment of the Allahabad High Court was allowed. It is pertinent to note that in the aforesaid case, not only was the application submitted by the respondent therein as a Scheduled Tribe candidate entertained, but he passed the preliminary and main examination, where after he was called for interview for consideration to the post of History Lecturer in the vacancy reserved for Scheduled Tribes and was ultimately even declared successful. It was only when the appellant, Service Commission therein, re-checked the documents furnished by the respondent therein, that it was found that the Naga Tribe to which he belonged was not recognized as a Scheduled Tribe in the State of UP.
15. In the present case, taking the case of the petitioner at the highest and assuming that not only was the petitioner's application entertained, but he cleared both, the written test and the personal interview, and was even declared medically fit, fact remains that the certificate submitted by the petitioner was that he belonged to the community of 'Jats', an OBC in the list of Government of NCT of Delhi and that the said community is not notified in the OBC list of the Central Government, which governs the respondent No. 2 herein.
16. It is also pertinent to note that the declaration form required to be filled up by OBC candidates seeking reservation as OBC, specifically required the applicants to declare that they belonged to the community which is recognized as a backward class by the Government of India for the purpose of reservation in service, as per the order contained in the DOPT OM dated 8.9.1993. The plea of the petitioner to the effect that as the advertisement was silent on this count, hence no relaxation could later on be made in the advertisement by the respondent and to permit the respondent to interpret the advertisement to mean that only such candidates were entitled to apply under the OBC category who figured in the Central List of OBCs amounts to relaxation in the advertisement, holds no water. Thus, the judgment relied upon by the petitioner would not be of any assistance to him in the present case.
17. In view of the aforementioned facts and circumstances of the case and the law as laid down by the Supreme Court, the respondent No. 2 had no option but to reject the candidature of the petitioner against the reserved post of OBC. The Court could have directed the respondent No. 2 to consider the application of the petitioner in the general category, but the respondent No. 2 has already submitted that the petitioner was not found eligible even as a general candidate. The writ petition is dismissed as being devoid of merits.
18. There are no orders as to costs.