Himachal Pradesh High Court
Deepika Vaishnav vs Institute Of Banking Personnel ... on 2 January, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2234 of 2015 Reserved on: 28.11.2016 Decided on: 02.01.2017 __________________________________________________________________ .
Deepika Vaishnav. .....Petitioners.
Versus
Institute of Banking Personnel Selection & others.
.....Respondents.
__________________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
of __________________________________________________________________ For the petitioner: Mr. Dilip Sharma, Sr. Advocate, with Mr. Bhupinder Singh Ahuja, Advocate.
For the respondent:
rt Mr. G.S. Rathour, Advocate, for
respondents No. 1 to 3.
Chander Bhusan Barowalia, Judge.
The petitioner has preferred the instant writ petition laying challenge to cancellation of her candidature for the Clerk-3 CWE Exam, 2013, which was advertised in E mployment News, Weekly Magazine, issue dated 24th August to 30th August, 2013.
2. As per the petitioner, succinctly the facts giving rise to the present writ petition are that respondent No. 1, Institute of Banking Personnel Selection (hereinafter referred to as "IBPS") being autonomous body working as Personnel Selection Services became an independent entity at the behest of Reserve Bank of India and Public Sector Banks. In 2011, IBPS announced a 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 2Common written Examination (CWE) for selection of officers and Clerks in Indian banks. IBPS CWE has now been made mandatory for candidates seeking employment in 20 Public Sector and .
Regional Rural Banks. IBPS accepts online exam applications.
Recruitment through IBPS is done through three stages, viz., Common Written Examination (CWE), interview and final placement. In 2013 the basic eligibility for appearing in IBPS was of university degree. The age condition was variable, depending upon the category of the candidate. The knowledge of computers was mandatory for the posts other than specialist officers. Thus, as per rt the petitioner, graduation and computer literacy was the eligibility for the post of Clerk. IBPS CWE is most competitive examination having select ratio 1:1000 and it is objective type examination having negative marking. After 2012, IBPS CWE has common interview recruitment method at different locations. A final merit list is drawn to fill existing and future vacancies in the participating banks for a period of one year from the date of announcement of the final results.
3. The petitioner has further averred that consequent upon advertisement (Annexure P-1) she has applied for the post of Clerk, in OBC category. She had participated in the examination under registration No. 1251608927 (Roll No. 1750501320) and was called for interview in the month of February, 2014. The petitioner ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 3 was also called for interview and she participated in the same.
She, being at Serial No. 15, was selected, as she secured 57.20 (out of 100), which was consolidated score of CWE and interview.
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The petitioner was allotted Punjab National Bank (respondent No. 2 herein). On 25.04.2014, the petitioner received an e-mail of respondent No. 2, whereby she was informed that there is deficiency qua "caste certificate should have been issued between of 01.04.2013 and 31.03.2014". The petitioner submitted her fresh caste certificate to respondent No. 2 by e-mail. The petitioner, through representation, made to respondent No. 2 via e-mail rt highlighted that the candidates, who have scored less marks than the petitioner, as per the second merit list, were offered appointment. She e-mailed respondent No. 2 her documents, viz., list of selected candidates, caste certificate etc. On 18.10.2014, she represented to the Chairman of respondent No. 2. The petitioner has further contended that, respondent No. 2 issued three lists offering appointments to the selected candidates and persons below in merit to the petitioner were appointed. As per the petitioner, the candidature of the petitioner was ultimately cancelled by respondent No. 2 vide letter dated 23.12.2014, relevant text thereof is as under:
"In this context, we may inform that you failed to submit OBC Certificate as per norms/period prescribed in Para E (vi) (List of Documents to be submitted-OBC Certificate) of IBPS notification dated 12.08.2013 for post. As such, you are not ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 4 eligible to get benefit of reservation for OBC in terms of IBPS Notification and your candidature has been accordingly cancelled".
Therefore, the candidature of the petitioner was precisely cancelled .
on the premise that the caste certificate was not issued between 01.04.2013 to 31.03.2014, however, as per the petitioner she was under Non Creamy Layer during 01.04.2013 to 31.03.2014 and she had also submitted her caste certificate(s). Thus, she belongs to OBC category under Non Creamy Layer.
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4. The petitioner, in the present petition, has also highlighted Clause (vi), which is an intimation issued by IBPS, the rt same is extracted below:
"(vi) Caste Certificate issued by competent authority in the prescribed format as stipulated by Government of India in case of SC/ST/OBC category candidates. In case of candidates belonging to OBC category, certificate should specifically contain a clause that the candidate does not belong to creamy layer section excluded from the benefits of reservation for Other Backward Classes in Civil post & services under Government of India. OBC caste certificate containing the 'Non-creamy layer' clause should be issued on or after 01.04.2013.
Caste Name mentioned in certificate should tally letter by letter with Central Government list/notification. Candidates belonging to OBC category but coming under creamy layer are not entitled to OBC reservation.
Thus, as per the petitioner, the cancellation of her candidature on the basis of Clause (vi) of Annexure P-3 is illegal and arbitrary, as her case is wholly covered by the instructions issued by respondent No. 1 (IBPS). The petitioner has further contended that ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 5 her status remained constant as OBC belonging to Non Creamy Layer on or after 01.04.2013. As per the petitioner, the candidates lower in merit were appointed and despite having vacant post she .
has not been given appointment by respondent No. 3. Lastly, the petitioner prayed that communication (Annexure P-25) whereby her candidature was cancelled by respondent No. 2 may be quashed and set aside, she may be declared candidate belonging in of OBC Non Creamy Layer and may also be directed to be appointed as Clerk as per the merit list.
5. rt Respondent No. 1 (IBPS), by filing reply to the writ petition, raised the preliminary objections that IBPS does not fall within the definition of "the State" as provided under Article 12 of the Constitution of India, as it is an autonomous body and it does no "public function", hence not amenable to writ jurisdiction of this Court. Secondly, respondent No. 1 highlighted that notification dated 12.08.2013 Clause I (7), provided that "Any resulting dispute arising out of this advertisement including the recruitment process shall be subject to the sole jurisdiction of the Court situated at Mumbai". Thus, jurisdiction of this Court has also been questioned by respondent No.1. As per IBPS, as the petitioner failed to produce her OBC certificate well in time, viz., 01.04.2013 to 31.03.2014, as provided by the advertisement notification dated 12.08.2013, and the certificate she produced ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 6 was dated 23.03.2012 and not issued during 01.04.2013 to 31.03.2014, hence her claim is erroneous and not justified. As per respondent No. 1, participating originations have no right to .
deviate from the prescribed advertisement notification. The OBC certificate having "Non Creamy Layer" clause must have been issued during 01.04.2013 to 31.03.2014 and the caste name mentioned in the certificate must necessarily tally with Central of Government list/notification. As per the observation of respondent No. 2, the petitioner's certificate was not in consonance with IBPS notification, as the same was issued on 23.02.2012, 05.05.2014 rt and 07.06.2014, which essentially must be between 01.04.2013 to 31.03.2014. Therefore, her candidature was rightly cancelled.
Respondent No. 1 (IBPS) has further contended that it is only test conducting agency and eligibility criteria, viz., age, educational qualifications etc. are prescribed as per the discussions with the participating organizations and as per the requirement. On the basis of merit, candidates are being allotted participating organizations, which depends upon the vacancies notified by them to IBPS. However, the same cannot be construed as an offer of employment and the decision of the allottee bank would be deemed to be final and binding on candidates.
6. On merits, respondent No. 1 has submitted that the candidature of the petitioner was rightly cancelled as she was ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 7 ineligible as per Clause E(vi) of notification/advertisement dated 12.08.2013. As per the replying respondent, the petitioner was to submit her OBC certificate strictly within the four corners of .
notification/advertisement dated 12.08.2013 and as she failed to do so, her candidature has rightly been cancelled. It is clearly mentioned in Clauses (5) to (8) of Notice dated 01.04.2014 that the provisional allotment is subject to the candidate fulfilling the of criteria for Participating Organizations and identity verification to the satisfaction of the allotted organization. The same does not constitute an offer of employment, in case it is found during the rt recruitment process that the candidate does not satisfy the eligibility criteria then the candidature of the concerned candidate shall be forfeited. As per the replying respondent, recruitment process/appointment is solely within the ambit of participating organizations and shall be final and binding. The whole provisional allotment process for CWE Clerk-III was over on 01.04.2014 and even the provisional allotment from 10% wait list was also completed on 31.03.2015.
7. Respondents No. 2 and 3 have filed separate consolidated reply, wherein they have raised preliminary objections. They have contended that respondent No. 1 (IBPS) does not fall within the definition of "the State" as provided under Article 12 of the Constitution of India. The replying respondents, ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 8 likewise respondent No. 1, have contended that IBPS does no "public function", thus not amenable to writ jurisdiction of this Court. The jurisdiction of this Court has also been questioned.
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Precisely, the contention of the replying respondents is entirely akin to that of the stand taken by respondent No. 1 and being repetitive in nature deliberately left. However, succinctly, the replying respondents contend that as the petitioner had submitted of OBC certificate dated 06.05.2014, which could not be considered as the same was not for the period between 01.04.2013 to 31.03.2014, rt thus the same is against the confines of notification/advertisement dated 12.08.2013.
8. I have heard the learned counsel for the petitioner and for respondents No. 1 to 3.
9. The learned counsel for the petitioner has argued that the OBC certificate tendered on 06.12.2012 was old one and the petitioner was declared pass and allotted Punjab National Bank in OBC category and her name was as serial No. 15. He has further argued that as per the deficiency conveyed to the petitioner, again certificate dated 05.05.2014, depicting that the petitioner in OBC category, was submitted. On the other hand, the learned counsel for respondents No. 1 to 3 has argued that the OBC certificate was not given for the relevant period, i.e., at the time of application, so the petitioner cannot be given appointment against the OBC ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 9 category. In rebuttal, the learned counsel for the petitioner has argued that as the petitioner belongs to OBC category she is entitled for appointment, as a right has accrued to her after her .
selection and allotment to the Punjab National Bank.
10. In order to appreciate the arguments of the learned counsel for the parties, this Court has gone through the record in detail.
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11. At the outset, it is observed that respondents No. 1 and 2 fall within the definition of 'State', as they are discharging the functions of the State and are also amenable to the jurisdiction rt of this Court. It is also observed that as the cause of action also accrued within the jurisdiction of this Hon'ble Court, so this Court has jurisdiction to entertain the present lis.
12. From the record, it is clear that the petitioner participated in the examination, which was held in the month of December, 2013. On the basis of marks scored in the written examination, the petitioner was called for the interview in the month of February, 2014. The petitioner appeared in the interview alongwith her testimonials regarding educational qualifications and caste certificate, that is, OBC certificate. The petitioner was selected as she secured 57.20 marks out of 100 marks, as a combined score and the petitioner figured at serial No. 15.
Thereafter, on 25th April, 2014, the petitioner was intimated qua ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 10 the discrepancy/deficiency of caste certificate, as it was required to be issued between 01.04.2013 to 31.03.2014. Subsequently, the petitioner submitted another certificate issued in her favour on .
11th June, 2014, demonstrating that she belongs to OBC category.
The instructions issued, vide Annexure P-3m, while appearing in the interview, which have already been quoted, are extracted for convenience as under:
of "(vi) Caste Certificate issued by competent authority in the prescribed format as stipulated by Government of India in case of SC/ST/OBC category candidates. In case of candidates belonging to OBC category, certificate should rt specifically contain a clause that the candidate does not belong to creamy layer section excluded from the benefits of reservation for Other Backward Classes in Civil post & services under Government of India. OBC caste certificate containing the 'Non-creamy layer' clause should be issued on or after 01.04.2013.
Caste Name mentioned in certificate should tally letter by letter with Central Government list/notification. Candidates belonging to OBC category but coming under creamy layer are not entitled to OBC reservation."
The certificate dated 05.05.2014 issued to the petitioner (Annexure P-15) demonstrates that the petitioner belongs to 'Bairagi' community, which is recognized as a backward class and she does not belong to Creamy Layer. The petitioner, again through Annexure P-20, produced a certificate issued by the competent authority showing that prior to three years from 11.06.2014, i.e. the date of issuance of the certificate, the parents of the petitioner were having less than five lac rupees gross annual income and ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 11 thus the petitioner belongs to OBC category from 11.06.2011 to 11.06.2014. A copy of Annexure P-20 was also supplied by the petitioner to the respondents.
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13. In these circumstances, there is no doubt that the petitioner belongs to OBC category and she was entitled for the benefit of OBC category, but the action of the respondents in not giving her benefit of OBC category is arbitrary, malicious, beyond of the confines of legitimacy and against the rules and thus appropriate writ is required to be issued against respondents No. 1 to 3. rt
14. This Hon'ble High Court in CWP No. 3139 of 2009-G, titled as Smt. Neetu vs. The State of H.P. & others, decided on 19.06.2014, has held as under:
"17. As discussed hereinabove, the writ petitioner was having the OBC certificate at the relevant point of time but was asked to furnish latest one, which was not issued by respondent No. 4 at the relevant point of time, thus failed to discharge his duties and rather misused his official position. Thereafter, the latest OBC certificate, dated 16th January, 2014, was issued in favour of the writ petitioner.
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28. Keeping in view the ratio laid down by the Apex Court in the said judgment, we deem it proper to direct the respondents that the writ petitioner shall be entitled to seniority as per the merit from the date when other persons, have been appointed pursuant to the advertisement notice, dated 28th August, 2008 (Annexure P-2), but without monetary benefits. Viewed thus, the writ petitioner is held entitled to grant of notional seniority as per the order of merit."::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 12
15. The Hon'ble Supreme Court of India in Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another, (2016) 4 Supreme Court Cases 754, has held as under:
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4. The necessary relevant facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder: the respondent Delhi Subordinate Services Selection Board (hereinafter referred to as "the DSSB") invited applications for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Government of NCT of Delhi by way of publishing Advertisement No. 09/2007 in the newspaper. The last date of submission of the application form in the advertisement for the said post of was 21-1-2008. The appellant submitted his application from before the due date and was subsequently issued the admit card to appear in the examination. Having appeared in the examination, he was shortlisted for selection. However, his name did not appear in the final list of selected candidates. On rt enquiry, he was informed by the official concerned that he was not selected to the post for the reason that he had failed to submit the OBC certificate issued by the appropriate authority along with application form before the last date of submission of application form.
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6. The learned Single Judge disposed of the writ petition vide judgment and order dated 24-11-2010, placing reliance on the judgment in Pushpa, wherein the controversy centred around the same advertisement/notification issued by the same respondent. The learned Single Judge observed that the only ground for declining the applications filed by the appellants was that the OBC certificates had been issued and submitted after the cut-off date and therefore they were not eligible for appointment to the post. The learned Single Judge further held that the respondent did not cite any other authority to distinguish the decision in Pushpa case (2009 SCC OnLine Del 281) from the facts of the present case. Consequently, the learned Single Judge disposed of the writ petition and directed the respondent to reconsider the application of the appellant and the other aggrieved candidates against the OBC category within a period of one month.
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18. In our considered view, the decision rendered in Pushpa is in conformity with the position of law laid down by this Court, which have been referred to supra. The devision Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217 and Valsamma Paul vs. Cochin University, (1996) 3 ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 13 SCC 545, wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of .
oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39-A of the directive principles of State policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned Single Judge. Hence, the impugned judgment and order5 passed by the Division Bench in Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra of Sawhney and Valsamma Paul. Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24-11-2010 passed by the learned Single Judge in Ram Kumar Gijroya vs. Govt. (NCT of Delhi) is hereby restored."
16. rt Applying the above law to the facts of the case in hand, in the present case the petitioner has submitted her OBC certificate thereafter new deficiency was pointed out, when she submitted the OBC certificate after the deficiency was pointed out and when again she was not given appointment, she submitted OBC certificate clarifying that she was OBC from the year 2011 and entitled for the benefit from 2011. At last, despite the clarification given by the authorities, who issued the OBC certificate, respondents No. 1 to 3 did not appoint the petitioner, which action of the respondents is highly derogatory, illegal, unconstitutional, arbitrary and liable to be set aside by issuing a writ. Accordingly, the writ petition is allowed and letter dated 23.12.2014 of respondent No. 2, cancelling the candidature of the ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP 14 petitioner is quashed and respondents No. 1 to 3 are directed to appoint the petitioner on the post for which she was recommended with all consequential benefits, as had she been given appointment .
immediately after her selection, as per her seniority. It is further clarified that the petitioner is also entitled for seniority, back-
wages and all other consequential benefits after offering her appointment from the date her immediate junior was given of appointment by respondents No. 1 to 3.
17. In view of the above, the writ petition is allowed with costs of `10,000/- which will be paid to the petitioner by rt respondents No. 1 to 3. Pending application(s), if any, shall also stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 2nd January, 2017 (virender) ::: Downloaded on - 15/04/2017 21:51:00 :::HCHP