Jharkhand High Court
Saurav Kumar vs Union Of India & Anr on 10 October, 2014
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
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W. P. (S) No. 382 of 2012
with
W. P. (S) No. 472 of 2012
with
W. P. (S) No. 474 of 2012
(In the matter of an application under Article 226 of the Constitution of India)
...
Saurav Kumar ... ...Petitioner in W. P. (S) No. 382/2012
Goutam Kumar Gupta ... ...Petitioner in W. P. (S) No. 472/2012
Gagan Kumar ... ...Petitioner in W. P. (S) No. 474/2012
-V e r s u s-
1. The Union of India through the Secretary,
Ministry of Social Justice and Empowerment,
Trikut-I, Birajikama Place, New Delhi 110006
2. National Thermal Power Corporation Limited,
A Government of India Enterprise through its Chairman-
cum-Managing Director, New Delhi ...Respondents (in all cases)
...
For the Petitioner : - M/s Sumeet Gadodia
and Prem Pujari Roy (in all cases)
For the NTPC : -M/s M. Sohail Anwar, Sr. Adv.,
Nawal Kishor Prasad and
Afaque Ahmad, Advs. (in all cases)
For the Union of India : -Mr. Prabhash Kumar, Adv. GGC( in all cases)
.....
PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
...
By Court Heard learned counsel for the parties.
In all these three writ petitions common issues are
involved and the orders impugned dated 21.12.2011 in
individual cases is in the same language as well.
The grievance of the petitioners is that they have been
denied appointment by the respondent no. 2, National Thermal
Power Corporation Ltd., New Delhi on the ground that they had
failed to produce certificate/document to show that they belong
to OBC (non-creamy layer) category as declared in the central
list by the respondent no. 1, Union of India.
Since common issues are involved, the writ petitions have
been heard and are being decided after hearing the contention
of the rival parties. Facts as are borne out from the pleadings of
individual writ petitions are also not in dispute so far as relevant
dates are concerned. The respondent no. 2, NTPC Ltd. issued
the Advertisement for filling up 520 posts of Executive Trainee.
The cut off date was up to 12.03.2011 for making on line
application as per the Advertisement at Annexure-2 in W. P. (S)
No. 382 of 2012. All these petitioners applied claiming
themselves belonging to OBC (non-creamy layer). They claimed
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to be belonging to the caste Halwai, Agrahari Vaishya and
Roniyar Vaishya in their individual cases. It is also not in
dispute that all these petitioners qualified the test and were
offered letters of appointment to join on 22/23.09.2011 and to
undertake medical test. It is also not in dispute that the offer of
their appointments also incorporated the same condition, which
were laid down in the advertisement that they were required to
produce documents in proof of their caste at the time of joining.
The petitioners admittedly could not produce the said
documents i.e. the central list published by the Union of India
which showed that the caste of the petitioners were included in
the said list, by their date of joining as also within the extended
period of one month. Therefore they were refused appointment
by the impugned order dated 21.12.2011 issued upon individual
petitioners.
The contention of the petitioners is that the aforesaid
three castes were included in the central list of the parent State
of Bihar published by the Union of India as is enclosed as
Annexure-8 dated 08/13.09.1993. It is contended by them that
after bifurcation of the parent State of Bihar on 15.11.2000, the
State of Jharkhand adopted a list of backward classes through a
notification dated 29.11.2001, which is at Annexure-12 to the
rejoinder in W. P. (S) No. 472 of 2012. Learned counsel for the
petitioners has further submitted that by operation of the
provisions of Bihar Reorganization Act, Section 84 and 85 read
with section 2(f), the notifications issued by the Union of India
containing central list for unified State of Bihar were deemed to
continue in the successor State of Jharkhand as well till they are
replaced/modified or rescinded. It is, however, their case that
when the Union of India published the central list of the State of
Jharkhand some time in the year 2008 these castes were not
shown in the central list. However, the National Commission for
Backward Classes constituted under the provisions of the
National Commission for Backward Classes Act, 1993 by the
Union Parliament made a categorical advice to the Union of
India for inclusion of the caste to which these petitioners belong
through Advice No. 04/2010 dated 12.10.2010. Reference has
been made in the pleadings on the part of the petitioners as well
as the Union of India to the correspondences which have taken
place between the National Commissions For Backward Classes
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and Ministry of Social Justice and Empowerment, New Delhi on
the question relation to issuance of notification upon the advise
of the National Commission For Backward Classes. However,
admittedly the central list was notified by the Union of India on
08.12.2011which admittedly showed the caste of these petitioners as belonging to the list of OBC and are applicable to the State of Jharkhand as well.
The petitioners, in the background of the aforesaid facts, have specifically contended that the advice of the National Commissions For Backward Classes is binding in terms of Section 9 and 11 of the Act of 1993. The delay in issuance of the corrective notification by the Union of India could not defeat the rights of the petitioners as their castes were already included in the central list of the parent State of Bihar and had continued in the successor State of Jharkhand by deeming fiction of Bihar Reorganization Act till the central list was published some time in the year 2008 by the Union of India. However, inadvertently the central list published in 2008 left out the caste of these petitioners from the list of OBC caste. It is submitted that the mistake on the part of the respondent- Union of India should not act to the prejudice of these petitioners as members of their family have enjoyed the benefit of belonging to the OBC category in view of inclusion of said caste in the central list earlier. It is further submitted that even though central list may have been published on 08.12.2011, but they should be held to have related back to the date of original notification, which were published earlier for the State of Jharkhand by the Union of India in the year 2008. Learned counsel for the petitioners has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Kavita Solunke Vs. State of Maharashtra and Ors. reported in 2012 (8) SCC 430 and in the case of Salini Vs. New English High Sch. Assn. & Ors. in Civil Appeal No. 10997 of 2013 vide judgment dated 12.12.2013.
Learned counsel for the petitioners has specifically relied upon opening paragraphs and para-5 and 6 of the judgment rendered by the Apex Court in the case of Salini(Supra) and submitted that all such notifications are only clarificatory in content and retrospectivity is inherent in subsequent enumeration under Articles 341 and 342 of the Constitution of -4- India. It is the case of the petitioners that they cannot be accused of having fraudulently claimed the benefit of reserve category and therefore, the judgment rendered in the cases of Kavita Solunke & Salini(Supra) have made clear distinction in respect of two different categories of caste; (i) where any such appointment has been fraudulently obtained on the basis of claim belonging to reserved class and the second category i.e. (ii) when the same eligibility is claimed belonging to reserve category on the basis of some confusion. It is the case of the petitioners that in the present situation there is not even a confusion but they distinctly belong to the reserve class of OBC as per the notification of 08.12.2011 also. Therefore, the respondents were not justified in denying the appointments to these petitioners on that ground. Reliance has also been placed upon a unreported judgment rendered by the learned Single Bench of Madhya Pradesh High Court in the case of Jitu Prasad Vs. Industrial Development Bank and Anr. in W. P. (S) No. 6440 of 2011 vide judgment dated 06.12.2012, a plain copy of which has been produced. It is submitted that the termination of appointment of the petitioner Jitu Prasad in the said case by the Industrial Development Bank was set aside by the Learned Single Judge finding that the caste Roniyar was enlisted in the OBC category also in the State of Bihar before Reorganization and had come in the said category after notification in the central list by the Union of India. Learned Single Judge had also relied upon the provisions of Section 84 and 85 of the Bihar Reorganization Act to treat the continuance of the original notification of the central list of the parent State of Bihar in the successor State of Jharkhand as well. Learned counsel for the petitioners has also relied upon the judgment rendered in the case of Board of Secondary Education of Assam Vs. Md. Sarifuz Zaman and Ors. reported in (2003) 12 SCC 408 in support of their submission. They have also relied upon a judgment rendered in the case of Shekhar Ghosh Vs. Union of India and Anr. reported in 2007(1) SCC 331 in support of their contention that if an adminstrative mistake has been noticed, the rectification of mistake should be done as expeditiously as possible. Learned counsel for the petitioners submits that the mistake on the part of the respondents therefore should not defeat the valuable rights of the petitioners -5- after they were duly selected and had qualified in other aspects and moreover the said caste to which the petitioners belong were also included in the central list subsequently through notification dated 08.12.2011.
Learned Senior counsel for the respondent no. 2, NTPC Ltd. has referred to the terms of advertisement, Annexure-2, as also offer of appointment dated 29.08.2011, Annexure-4, both of which stipulated production of a valid caste certificate of belonging to the OBC category as declared in the central list by the Union of India for the State of Jharkhand. He submits that the petitioners had failed to produce the said proof even by the extended date of one month from the date of their joining on 22/23/09.2011. According to the respondent- NTPC, they have acted strictly in terms of the advertisement and on the cut of date, the petitioners cannot be said to have fulfilled requisite criteria of belonging to the OBC category as their caste were not shown in the central list till the notification of 08.12.2011 was issued.
Reliance has been placed upon the judgments rendered by the Hon'ble Supreme Court in the case of Ashok Kumar Sonkar Vs. Union of India and Ors. reported in (2007) 4 SCC 54 and in the case of Rakesh Kumar Sharma Vs. State (NCT OF DELHI) and Ors. reported in (2013) 11 SCC 58 in support of their contention that the cut of date fixed in the advertisement is sacrosanct and applicants, who seek employment in a public office, should fulfill the prescribed criteria on the date of application. Any derogation from such principle would lead to inequitable results as persons who may not have applied considering themselves as ineligible on the cut off date would be arbitrarily denied equal consideration while according the benefit to persons like the petitioners who were also not qualified on the cut off date. Reliance has also been placed upon a judgment of the learned Single Bench of the Patna High Court in the case of Kameshwar Prasad and Ors. Vs. State of Bihar and Ors. reported in 1999 LAB. I.C. 1023 again on the same point that requirement of caste certificate on the cut off date is a must and no recruitment can be made if the candidate fails to produce the same. Learned counsel for the respondent- NTPC has also referred to the notification of 08.12.2011 which indicates that they are made effective from -6- the date of notification. It is, therefore, submitted that the petitioners have neither challenged the said notifications nor they can claim retrospective operation in view of the clear stipulation contained in the said notification.
Learned counsel for the Union of India has submitted that there is no deliberate delay on the part of the said respondent as the decision to include a particular caste as OBC category on the advice of the National Commission For Backward Classes is to be made by the Cabinet after due deliberation. Reference has been made to the correspondence between the National Commission For Backward Classes and the Ministry of Social Justice and Empowerment, New Delhi on this issue. It is submitted that advise itself was rendered on 12.10.2010. It is their categorical assertion that before date of such notification the caste of the petitioners was not declared as OBC Caste under the central list for the State of Jharkhand. Therefore according to the learned counsel for the Union of India, the petitioners are not entitled to the benefit of reservation relating to their castes of Halwai, Agrahari Vaishya and Roniyar Vaishya prior to their inclusion in the central list of OBC for Jharkhand.
I have heard learned counsel for the parties at length and have gone through the relevant materials on record including the judgments relied upon by the parties. I have given anxious consideration to the issues involved herein and from the conspectus of the aforesaid facts referred, it cannot be disputed that on the last date of making application i.e. 12.03.2011, the castes of these petitioners were not shown as belonging to OBC (non-creamy layer) in any central list published by the Union of India for the State of Jharkhand. The petitioners' caste appear to have been included in the central list for the parent State of Bihar and can be deemed to have continued by virtue of provision of Section 2(f), Section 84 and 85 of the Bihar Reorganization Act in the successor State of Jharkhand as well. However, on the issuance of the specific notification for the successor State of Jharkhand by the Union of India containing the central list of such backward castes the deemed continuance of the central list of the parent State of Bihar obviously would have come to an end. The notification of 29.11.2001(Annexure-12) issued by the Department of Personnel and Training, Government of Jharkhand is a -7- notification declaring a list of such backward classes persons for consideration of appointment within the State of Jharkhand. Perusal of Annexure-12 does not indicate that the said adoption was in the nature of declaration or notification of the Union of India for the successor State of Jharkhand of the OBC castes in the central list for the purposes of recruitment in the Government of India or other public sector undertakings of Government of India. Therefore, after issuance of the central list by the Union of India in the year 2008 (none of the parties, however, have produced the said notification in which admittedly the castes of these petitioners were not included) till the notification of 08.12.2011 was issued, the castes of the petitioners were not shown as belonging to reserved caste category of OBC (non-creamy layer) as is required under the mandate of law for seeking employment in the services of Government of India and other public sector undertakings under the Government of India. Therefore, strictly speaking on the cut off date i.e. 12.03.2011, these petitioners did not fulfill the required criteria of belonging to OBC (non-creamy layer) in the central list for being considered and appointed under the services of the respondent-2, NTPC. The respondent no. 2, NTPC has made out a case that applications were made on line and scrutiny of certificates were made on appearance of the selected candidates. The petitioners did not fulfill the said criteria of caste for claiming reservation in OBC category and even after extended time they failed to produce the said documents to show that their castes were included in the central list by any notification of the Government of India. There might be, an interregnum in the issuance of the notification on the part of the competent authority i.e. the Union of India which is a consequence of the normal process of deliberation, before such a decision is taken after due application of mind by the Competent Authorities under the Government of India. However, this delay shall not be a reason to determine the issue in favour of the petitioner as the notification dated 08.12.2011 itself clearly indicates that the inclusion of OBC castes and the amendments in the caste of OBC of the earlier notification were made effective from the date of issuance of the notification. Such a situation do result in harsh consequences, but the issues have to be determined on settled legal principle and not being -8- egged by misplaced sympathies. If the contention of the petitioners is to be accepted then all those who might have fallen in that category and were also belonging to the same OBC caste, but may have consciously chosen not to apply for recruitment under the advertisement in question would be arbitrarily denied equal participation. On the well settled principles relating to recruitment to a public office and the sanctity attached to the cut off date as held in several judgments, such as in the case of Ashok Kumar Sonkar (Supra) and in the case of Rakesh Kumar Sharma (Supra), the action of the respondent no. 2, NTPC in denying employment to these petitioners on having failed to produce evidence/notification of declaration of the caste of OBC in the central list cannot be said to be suffering from any legal infirmity or is arbitrary either.
The judgment relied upon by the learned counsel for the petitioners in the cases of Kavita Solunke & Salini(Supra) are not applicable to the facts of the the present case. In both the aforesaid cases the question involved was in relation to the termination of the services of the appellants which were earlier obtained on the basis of a caste certificate of Scheduled Tribe which was invalidated in their cases after more than one decade. In the said context, the Apex Court after review of all earlier judgment had drawn distinction between instances where a person has fraudulently claimed to be belonging to Scheduled Caste and Scheduled Tribe and had thereby obtained employment and in the other category where there was some confusion regarding the eligibility of the benefit flowing to Scheduled Caste status such as issuance of relevant certificates to persons claiming to be Koshti or Halba-Koshti under the broad band of 'Halba'. In the said context the Apex Court drew the distinction between the persons who had honestly in contradistinction with falsely claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special Backward Class. The Apex Court held that it could not be the intent of law that such persons belonging in the second category be visited with termination of employment rather it was observed that the appellants should not be entitled to any further promotion as Scheduled Tribe candidate unless she is otherwise entitled as -9- special Backward Class Category. In the present case, the issue involved is whether the petitioners were at all entitled to seek recruitment on the basis of reservation as belonging to OBC non creamy layer category or not. Admittedly on the cut off date of such application, the caste of these petitioners were not included in the central list published by the Union of India which came to be notified only on 08.12.2011. The declaration of their caste in the central list of OBC (non creamy layer) would entitle them for claiming reservation in any exercise for public employment undertaken and only after inclusion of their caste in the central list. However, such a claim for reservation under the present advertisement on an objective legal scrutiny cannot entitle them to such an appointment as a reserve category candidate. The judgment relied upon by the petitioner as rendered by the learned Single Judge of the Madhya Pradesh High Court in the case of Jitu Prasad(Supra) does not help the case of the petitioner in view of the clear facts that on the cut of date i.e. 12.03.2011, the caste of these petitioners were not included in the central list published by the Union of India for the State of Jharkhand to claim such a benefit of reservation in public employment under the respondent no. 2, NTPC.
The writ petitioners have, therefore, failed to make out any ground to interfere in the aforesaid writ petitions. Accordingly, the writ petitions are dismissed.
Interim orders dated 29.06.2012 passed in W. P. (S) No. 382/2012 and W. P. (S) No. 472/2012 and interim order dated 28.06.2012 passed in W. P. (S) No. 474/2012 stand vacated.
(Aparesh Kumar Singh, J.) Jharkhand High Court, Ranchi The Day of 10th October, 2014 Kamlesh/Jitendra/N.A.F.R.