Ms. Jyoti Rani vs The GNCTD & Ors.

ORDER

M.A No. 2608/2024 :

O.A No. 2907/2024 :

"8 (i) Call for the record lying with the respondents pertaining to the issue in question.

(ii)

Quash and set aside the impugned Order No.3067- 70, dt.07.03.2024 (Annexure.A/1) by directing the respondents to appoint the applicant to the post of TGT (English) Female, Post Code-51/21 with all the consequential benefits including the salary, seniority and promotions etc. on the basis of merit position and on par with her co-aspirants who were appointed in due course, in a time bound manner as this Hon'ble Tribunal may deem just and proper in the interest of justice.

(iii)

Pass such other or further order (s)/ direction(s) as deem just and proper in the facts & circumstances of the case."

“Certificate No.: EWS/2021/621 Date: 01/03/2021 VALID FOR THE YEAR: 2021-22 This is to certify that Smt JYOTI RANI daughter of Shri SITA RAM wife of Sh. KAMAL permanent resident of House No-57, Street No-NEAR PYARA SUNARA, LandMark BARWALA, Pincode-125121, Town BARWALA, Post Office BARWALA, District HISAR in the State HARYANA Pin Code 125121 whose photograph is attested below belongs to Economically Weaker Sections, since the gross annual income of his/her "Family" is below Rs. 8 lakh (Rupees Eight Lakh only) for the financial year 2020-21, His/Her family does not own or possess any of the following assets***

i.

5 acres of agricultural land and above.

ii.

Residential flat of 1000 sq. ft. and above.

iii.

Residential plot of 100 sq. yards and above in notified municipalities.

iv.

Residential plot of 200 sq. yards and above in areas other than the notified municipalities.

2.

SmI JYOTI RANI belongs to the 'ARORA' caste which is not recognized as a Scheduled Caste, Schedule Tribes and Other Backward Classes (Central List).

Issued by Tehsildar, BARWALA”

“5.1.

Because, it is not in dispute that the applicant belongs to the EWS Category and is in possession of a genuine EWS Certificate that is valid for the requisite financial year 2021-22.

5.2.

Because, there is no mention in the relevant paras of the advertisement/RR i.e. para 5(ii), 6(ii) & 8(viii) or even in para 5.2 to 5.4 of the DOPT OM dt.31.01.2019 that the EWS Certificate should be issued between 01.04.2021 to 03.07.2021, what has been reiterated in all these documents that the crucial date for submitting income and asset certificate by the candidate may be treated as the closing date for receipt of the application for the post. Therefore, the grounds for rejection of the applicant's candidature, that too after issuance of Offer of Appointment & its acceptance, is extraneous, perverse, discriminatory and arbitrary, hence illegal.

5.3.

Because, the Chief Secretary, State of Haryana have clarified that the EWS Certificates issued to the applicant is valid for the Financial Year 2021-22.

5.4.

Because, since, the applicant possesses the requisite qualifications and is fully eligible for appointment to the post in question, hence, deserve appointment with all the consequential benefits on the basis of merit position.

5.5.

Because, in view of law laid down by the Hon'ble Apex Court in Tagin Litin Case (Supra) and in the eventuality that the offer of appointment issued by the competent authority has been duly accepted by the applicant, the appointment is complete. Therefore, benefits of appointment will follow.

5.6.

Because, the impugned action of the respondents is discriminatory in denying appointment to the applicant and in appointing the similarly situated employees who also belongs to the state of Haryana like the applicant and are in possession of the like certificates bearing a date of issuance prior to 01.04.2021 and their certificates are valid for the financial year 2021-22 like the applicants. The documents received under RTI Act, [Annexure.A/13(Colly.)] apparently establishes that the respondents are acting in discriminatory manner, that is bad in the eyes of law.

5.7.

Because, the respondent no.2 cancelled appointment of the applicant that amounts to termination without issuing show cause notice and in conflict with the protection provided under Article 311 of the constitution and has resulted in civil consequences like taking away the source of livelihood that is a facet of Article 21 of the Constitution of India. That can't be done without adhering to the principle of natural justice. Hence the impugned orders / actions of the respondents are bad in the eyes of law.”

“The matter under reference is regarding "Proposal to decide on the issue of validity/applicability of the EWS Certificate issue after cut-off date with validity for the year 2021-22 and also the EWS Certificate issued before cut-off date (but between the period year 2021-22 in the context of various post of TGTS (Male/Female). The Administrative Department had submitted the file for the approval of Hon'ble Lt. Governor as proposed at para 15(A) on page 6/N. Chief Secretary (Delhi) has marked the file to Services Department with the remark "Services Department to examine this matter as per rules relevant. Before sending the same to the Hon'ble Lt. Governor, Delhi.”

“2 Government of Haryana wishes to express its deep concern about the withdrawal of appointment letters in many cases and the prospects thereof in some cases still under consideration of Directorate of Education of Delhi Government, of meritorious youth of Haryana, The Government of Haryana after meticulous consideration of the issues clarifies that the candidature of the candidates cannot be cancelled merely on any one or more of the grounds stated above because of the following reason :-

(i)

The EWS certificates in Haryana are issued keeping in view the average fixed income and assets for the complete financial year, immediately upon an application being made to the competent authority, no matter what the date of application whether or not before completion of the financial year Therefore, the EWS certificates issued before the completion of the financial year 2020-21, le during the period between 1st January and Stat March 2021, submitted by the candidates who are covered under 1(i) above should be treated valid for the year 2021-22.

(ii)

Regarding acceptance of EWS Certificate issued by the Naib Tehsildar instead of Tehsildar submitted by the applicants/candidates of Haryana it is clarified that-

(a)

Haryana Government in the Schedule to Right to Service Act, 2014 has authorized both Tehsildar and Naib-Tehsildar to issue EWS Certificates to the persons residing in Haryana.

(b)

In another case of similar nature, it has already been clarified by Haryana Government vide letter No. 22/227/2023-3HR-III, dated 7^th December 2023 (Copy enclosed) addressed to UPSC/DoPT that State Government has decided to treat the EWS certificates issued by the Naib-Tehsildar as true and genuine. In fact, such EWS certificates issued by the Naib Tehsildar have also been accepted by UPSC/DOPT.

(c)

in CWP 8502 of 2017 (O&M) it has been held by the Hon'ble Punjab and Haryana High Court that “...The power and duties of Tehsildar and Naib Tehsildar are of similar nature. The Tehsildars and Naib Tehsildars have powers of Executive Magistrate to maintain law and order. Their powers and functions include Maintenance and Updating Revenue Record, Registration of documents and recovery of Government dues. Therefore, experience/service rendered as Naib Tehsildar and Tehsildars is similar.”

Therefore, EWS certificates issued by Naib Tehsildar for candidates of Haryana referred to at 1(ii) above should be treated as valid.

(i)

Regarding applicants/candidates who are covered under 1(iii) above, it is informed that Haryana Government launched income certificates generation via the portal https://saralharyana.gov.in during the year 2021-22 to issue online certificates of all kinds including Caste Certificates/Income Certificates/EWS Certificates etc. which were previously being issued by different relevant Departments of Haryana Government. It is also clarified here that in the previous system it would have been possible for a candidate to obtain two different EWS Certificates verifying the income at two different levels by approaching the relevant Department with two different sets of affidavits at two different dates. With the launch of the said portal this possibility has been completely pre-empted. There is a unique Family ID for every family and the verified annual income of every family for every year is available in the State level database. The moment a candidate applies for EWS Certificate on the SARAL portal, it fetches the income and caste data from the said database. There is no scope for the competent authority (Tehsildar or Nailb-Tehsildar etc.) to make any change to the verified income of the previous year. Therefore, in this system, the candidate may generate his certificate in any of the months. Many candidates who submitted the EWS certificate issued after the last date of submission of application might not have been aware of the newly launched portal by Haryana Government and consequently, they may not have been able to generate their own EWS Certificate in time. It is, therefore, requested that the EWS Certificate generated after the last date for the candidates referred to at 1 (iii) above may also be accepted because they truly capture the actual verified income for the previous year. It is further added that no cut-off date need be fixed for the purpose of Caste Certificate of candidates of reserved category because caste stays the same at all times. Similarly, the verified family income of the candidates residing in Haryana is available in the database on an annual basis at all times and remains unchanged for a particular period in the financial year. Therefore, the mere fact of submission of EWS Certificate which was issued after the cut off date cannot legally be treated as valid ground for cancellation of candidature.

In view of the above, you are requested to consider the EWS Income and Asset Certificates issued by the Competent Authority during the period between 1" January and 31 March 2021, before or after the last date as valid and allow the respective candidates to continue/join back their duties. It is also requested that a similar decision may also be taken for all other selected candidates of Haryana having similar EWS Certificates, where cases for cancellation of candidature/withdrawal of appointment letter are in pipeline in Directorate of Education or any other department of Delhi Government on any of the grounds mentioned in para 1 above.

If required, Government of Haryana can depute the Director General, Human Resources, Haryana to meet with the Director of Education or any other authority to work out the details of all the candidates of Haryana whose appointment may be in process of cancellation and provide any further detailed justification for each case wherever felt necessary by him.”