Punjab-Haryana High Court
Anurag Saini vs Government Of India And Others on 10 September, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.10980 of 2011
Date of decision: 10.09.2013
Anurag Saini
....Petitioner
Versus
Government of India and others
.... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Ms. Jagdeep Bains, Advocate,
for the petitioner.
Mr. Rajeev Saini, Advocate
for the respondents.
RAJIV NARAIN RAINA, J. (ORAL)
The closing date for receipt of applications for recruitment to the advertised posts of Assistant Sub Inspectors in Central Industrial Security Force was 28.06.2010 in Central Government service. The petitioner applied as a backward class category candidate (BC) although the advertized reservation was for Other Backward Classes (OBC).
Note II of the relevant clause of the advertisement is material to the adjudication of this case. It reads as follows:
"Note-II : The closing date for receipt of application will be treated as the date of reckoning for OBC status of the candidate and also, for assuming that the candidate does not fall in the creamy layer.
The candidate should furnish the relevant OBC Certificate in the format prescribed for Central Government jobs as per Annexure -VII issued by the competent authority on or before the Closing Date as stipulated in the Notice."Pooja Saini 2013.09.19 10:23 I attest to the accuracy and integrity of this document Chandigarh -2- CWP No.10980 of 2011
The advertisement appended to the writ petition is not the complete text of the document and does not show significant Note II above. Xerox copy of the full text of the advertisement was shown to this court by Mr. Rajeev Saini appearing for the respondents from where Note II was found.
Although the petitioner appeared for the written examination and physical endurance test but at the time of interview on 08.02.2011on scrutiny of documents the respondents discovered that the caste certificate produced was of the backward class category (BC) and not OBC involving creamy layer principles. In the advertisement, posts were not earmarked simply in the category of backward class (BC). The advertisement was restricted to SC/ST/OBC and ex-servicemen. In order to repair the damage done, the petitioner produced a certificate dated 08.02.2011 issued by the Tehsildar, Pathankot, Punjab (P-16) certifying that the petitioner belonged to the 'Saini' Community which is recognized as Other Backward Class on the Central List of OBCs for the State of Punjab under Resolution 12011/88/98- BCC dated 6.12.1999. It is obvious that the fresh caste certificate, even assuming it was acceptable for the purpose of reservation, was obtained and produced after the closing date and therefore, it could not be taken into consideration without violating third party rights of other similarly situated candidates who may not have followed the same course of action in view of the advertised terms and conditions or in any case the result could not be achieved in favour of the petitioner short of amending the advertisement itself to give meaning to Articles 14 and 16 of the Constitution of India.
I have recently considered the effect of late production of OBC Certificate after the closing date in the ITBP force recruitment process- 2011 Pooja Saini 2013.09.19 10:23 I attest to the accuracy and integrity of this document Chandigarh -3- CWP No.10980 of 2011 after the written examination and the physical efficiency test were conducted and discovery fatal to candidature was made at the stage of detailed medical examination (DME) of an expired OBC certificate insufficient to establish non-creamy layer status in Raj Kumar v. Union of India and another; CWP 14808 of 2011 decided on 15.7.2013. I held:
"As per the pleaded case of the petitioner himself, he submitted the OBC category certificate dated 6.6.2007 along with other documents while appearing for medical examination on 28.6.2011. The issue as regards the cut-off date as regards acquiring/possessing the eligibility requirement by a candidate seeking public employment is no longer res integra. It has been held by the Supreme Court that the cut-off date by reference to which the eligibility requirement must be satisfied by a candidate seeking public employment is the date stipulated by the relevant service rules and if there be no cut-off date stipulated in the rules, then it would be such date as may be appointed for such purpose in the advertisement calling for the applications. It is only if no such date stands stipulated either in the service rules or in the advertisement, then the last date fixed for receipt of application forms would be taken as the appointed date. Reference in this regard may be made to Mrs.Rekha Chaturvedi v. University of Rajasthan & Ors., JT 1993(1) SC 220, Dr.M.V.Nair v. Union of India & Ors., 1993(2) SCT 77 (SC), U.P. Public Service Commission, U.P., Allahabad & Anr. v. Alpana, JT 1994(1) SC 94 and Bhupinderpal Singh & Ors. v. State of Punjab, 2000(2) SCT 826."
Therefore, in terms of Note II above, it cannot be said that on the closing date of advertisement, that is, on 28.06.2010, the petitioner had a demonstrable case for consideration under OBC status. The said Note contains a presumption that when the OBC status is declared through a certificate, it would mean that the candidate does not fall in the creamy layer of OBC on the last date of closing of the applications process. Note II of the advertisement does not create a perpetual declaration of right in the reserved category candidate after the closing date of applications to be considered as an OBC, nor can it, on account of the rider of creamy layer placed in the Note which status remains vacillating with the fall or rise of financial status driving a candidate in or out of the reservation. This is unlike caste certificates issued to the members of the scheduled castes and the Pooja Saini 2013.09.19 10:23 I attest to the accuracy and integrity of this document Chandigarh -4- CWP No.10980 of 2011 Backward classes which are not based on the economic criteria but belong to the socially disadvantaged identified in the Punjab Government policies of yore before introduction of the concept of creamy layer, declaring caste status once and for all enabling such persons to avail reservation benefits and concessions admissible under the Constitution or under the State policies on reservation on the strength of the original caste certificate without requiring fresh one.
Ms. Jagdeep Bains, learned counsel appearing for the petitioner does not contend that a backward class (BC) certificate is not equivalent to other backward classes (OBC) certificate for purposes of availing benefit of reservation in public employment or direct recruitment to posts under the Central Government. She depends only on the OBC certificate obtained after the closing date. If that be the position no interference is called for in this matter.
For the aforesaid reasons, the present petition is found without life and is accordingly dismissed.
(RAJIV NARAIN RAINA) JUDGE September 10, 2013 Pj Pooja Saini 2013.09.19 10:23 I attest to the accuracy and integrity of this document Chandigarh