Punjab-Haryana High Court
Jaspal Kaur And Others vs State Of Punjab And Others on 2 November, 2011
Author: Surya Kant
Bench: Surya Kant
CWP No. 5560 of 2011 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No. 5560 of 2011
Date of Decision: 02.11.2011
Jaspal Kaur and others ...Petitioners
Versus
State of Punjab and others ..Respondents.
CORAM: HON'BLE MR. JUSTICE SURYA KANT
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Kapil Kakkar, Advocate, for the petitioners.
Ms. Sudeepti Sharma, Deputy Advocate General, Punjab
for the respondents.
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SURYA KANT, J.(Oral)
This order shall dispose of Civil Writ Petitions Nos. 22881 of 2010 and 3990, 4077, 4696, 4788, 5514, 5560, 5596, 5837, 6026, 7449, 7992, 8749, 8889, 11625, 11593, 12653, 12658, 12702, 12708, 12907, 13042, 15212 and 18493 of 2011, as the same broadly similar facts and issues, hence need not to be dealt with separately. For brevity, the facts are taken from Civil Writ Petition No. 5560 of 2011.
2. Suffice it to mention that the petitioners applied for different teaching posts for appointment in the Education Department, Punjab in the one or the other reserved category but their categories have been subsequently changed by the respondents after rejecting their Backward/Dependent of Ex-Serviceman Certificates, CWP No. 5560 of 2011 [2] consequently treating them in the open category. The common issue raised by the aggrieved petitioners pertains to the justification of change of their respective category.
3. Petitioners in these cases were applicants for one or the other teaching posts in response to the Advertisement dated 23.09.2009, followed by the Corrigendum dated 27.09.2009. They belong to reserve categories of Backward Class or Dependent of Ex- Serviceman. The Advertisement dated 23.09.2009 (Annexure P-2) containing Clause-6 regarding validity of a Backward Class Certificate is reproduced herein as under:-
" 6. The Certificate of B.C. is to be within one year from the last date of submissions and this Certificate should be in terms of the letter dated 17.01.1994 and 17.8.2005 issued by the Department of Welfare, Punjab Government."
The subsequent Corrigendum issued on 27.09.2009 (Annexure P-3) further stipulates as follows:-
" Condition No. 6 :- The Certificate of B.C. Category should not be more than 1 year prior to the last date of submission of applications and this Certificate should be as per the Punjab Government, Department of Welfare Letter No. 1/41/93-RS/1/209 dated 24.2.2009."
Similarly, as regard to Dependents of Ex-Servicemen, the advertisement stipulates as follows:-
" The reservation under Ex-serviceman quota is applicable only in the case of residents of Punjab and in case the Ex- serviceman himself is not a candidate then this reservation would be applicable for the dependents. Such Ex- Servicemen/dependents would present the original certificate made prior to the last date of submission of applications and issued by the competent authority appointed by the Government at the time of counselling."CWP No. 5560 of 2011 [3]
The subsequent Corrigendum issued on 27.09.2009 (Annexure P-3) further stipulates as follows:-
" Condition No. 8 :- The candidates seeking reservation under Freedom Fighter Quota will have produced the original certificate made prior to the last date of submission of applications in terms of Punjab Government letter No. 4-13- 8P3-95/Special-477 dated 24.9.1998 and letter No. 4-13- 8P2-25/Special/62 dated 11.2.1999 and issued by the competent authority appointed by the Government at the time of counselling."
4. Notwithstanding the explanation(s) or justification given by the petitioners, the fact of the matter is that their Certificates of Backward Class or as Dependents of Ex-Servicemen, as relied upon by them, were more than one year old in the case of Backward Class candidates and/or the original Certificates were not produced in case of Dependents of Ex-Servicemen. Consequently, their candidatures for the reserved category have been rejected, treating them in the open category.
5. An identical question came up for consideration before a Co-ordinate Bench in Civil Writ Petition No. 11647 of 2008 decided on 18.5.2009 (Loveljeet Kaur and others V. The State of Punjab and others) and the claim was turned down after observing as follows:-
" The requirement of the notification is that the Certificate should not be older than one year preceding the last date for submission of the applications. All these Backward Class Certificates produced by the petitioners except petitioner No. 6, were issued much after the last date and, thus, cannot be considered for the purposes of selection against the Backward category. No material has been placed on record to show that the petitioners produced Certificates in accordance with condition CWP No. 5560 of 2011 [4] No. 6 of the advertisement issued by the competent authority within one year preceding the last date for submission of the applications." (emphasis supplied)
6. Thereafter a bunch of writ petitions were dismissed by this Court along with Civil Writ Petition No. 9859 of 2009 (Sukhjit Kaur V. State of Punjab and others) on 18.08.2011 supplementing the above reproduced reasoning as under:-
"It is well settled that the terms and conditions contained in a public notice/advertisement are sacrosanct and the same cannot be relaxed or deviated from on pick and choose basis. If the petitioner's claim for validation of more than one year old Backward Class Certificate is accepted it shall lead to discriminatory consequences as there might be several other candidates who may have relied upon such expired Certificates and have been denied the benefit of reservation. Similarly, if the validity period of such like Certificates is over looked, it can be self destructive to the object of the reservation policy which consciously excludes those who are in creamy-layers."
(emphasis supplied).
7. Learned counsel for the petitioners vehemently contend that the view taken by this Court in the above mentioned cases is inapplicable for various reasons. Firstly, reliance is placed on on the Government Instructions dated 05.12.1996 (Annexure P-10) issued on the subject of validity of a Scheduled Caste/Backward Class Certificates for the purpose of seeking employment or admissions, laying down as follow:-
" 3. It has therefore been decided that the Scheduled Caste/Backward Class Certificate issued by the competent authority as per the instructions of the Welfare Department will be accepted by all authorities and institutions as valid. To further simplify the procedure it has been decided that in the first instance it will be sufficient for the candidate seeking CWP No. 5560 of 2011 [5] admission or employment or other facility to indicate in the application form whether he/she belongs to the Scheduled Caste/Backward Classes or not. Attested photocopies of the Certificate may be obtained only from the selected/wait listed candidates."
8. They also rely upon subsequent instructions dated 08.01.2010 (Annexure P-12) on the same subject laying down that:-
" This matter has been once again reconsidered thoroughly by the Government and it has been decided that the caste Certificates issued to B.C. Candidates shall be considered valid till the time, the candidate falls in the creamy layer. In this regard, the concerned Department will take a declaration from the candidate along with an application at the time of applying in which it should have been clearly mentioned that there is no change in his status and he does not fall in creamy layer."
9. It is also argued by learned counsel for the petitioners that hardly 10 days time was given to the candidates to obtain fresh Backward class/Dependent of Ex-Servicemen Certificates which was wholly insufficient. Reliance is also placed on a Division Bench decision dated 30.09.2008 passed in Civil Writ Petition No. 4242 of 2007 (Gyatri Joyti V. State of Punjab and others) (Annexure P-8) as also dated 06.02.2009 passed in Civil Writ Petition No. 19643 of 2006 (Ajay Kumar Bhogal V. State of Punjab and another) (Annexure P-9), in order to contend that once the Backward Class Certificates have been issued in favour of the persons, they were eligible in the said reserved category as the original Backward Class Certificates were required to be produced by them after selection or at the time of their appointment. They also refer to a decision of the Hon'ble Supreme Court in Dolly Chhanda V. Chairman, JEE 2004 CWP No. 5560 of 2011 [6] (4) RSJ 685.
10. Having heard learned counsel for the parties, I do not find any ground to draw any distinction between the Lovejeet Kaur's and Surjit Kaur's cases (supra) vis.a.vis. the present cases. I say so for the reasons that while deciding Lovejeet Kaur's case (supra) on 18.05.2009, the Co-ordinate Bench did consider the Division Bench decision in Gyatri Joyti case (supra) and its own decision dated 23.04.2009 passed in Civil Writ Petition No. 13800 of 2008 (Komal V. State of Punjab and another) and drew a clear distinction based upon the conditions incorporated in the advertisement. Suffice it to reproduce the observations made by the Division Bench to the following effect:-
" It cannot be disputed that one acquires caste by birth and a caste Certificate is only a recognition of such status of the holder of that Certificate. It is not the case of respondents that the petitioner did not possess the Backward Class Certificate or she was not a Backward Class or she had not submitted her Certificate along with application form. The only reason given is that the Certificate was an old one and not in terms of 2005 instructions. The respondents have, however, not been able to show either from the written statement or at the time of arguments that any condition exists either in 2005 Instruction or in the Advertisement, which informs the candidates that they must produce the revised B.C. Certificate in terms of 2005 Instructions along with their application forms. It is, therefore, inconceivable as to how the candidates like the petitioners could have anticipated the aforesaid requirement." (emphasis supplied).
11. It may thus be seen that there was no condition incorporated in the advertisement in that case mandating the candidates to produce their Backward Class Certificates which should not be more than one year old before the cut off date. On the contrary CWP No. 5560 of 2011 [7] the advertisement in the present case specifically stipulate so and it being sacrosanct, to be uniformly applied to all the candidates, it was obligatory for the petitioners who were seeking benefit of reservations to produce the Certificates strictly in terms thereof. The Government instructions dated 05.12.1996 and 08.01.2010 (Annexures P-10 and P-12) are inapplicable in the context of the issue involved. The instructions merely suggest that if a Certificate has been issued by the competent authority it is imperative upon other Departments to accept and treat it valid for the purpose of admission or employment.
These instructions do not deal with the validity period of such a certificate. The second instructions also reiterate that a backward Class Certificate shall continue to be valid till the candidate falls in the 'creamy-layer'. It is for this precise reason that the Department incorporated the condition of one year validity period so as to ascertain that the candidates claiming benefit of reservation for backward class, have not meanwhile fallen to the category of creamy-
layer. The condition of validity period of one year has to be read into in the government instructions, referred to above.
For the reasons recorded aforesaid, I do not find any ground to interfere with the impugned action of the respondents. All the writ petitions are accordingly dismissed. The respondents are, however, directed that in case there is a candidate belonging to the category of dependent of Ex-Serviceman, whose claim falls within the observations/directions issued in Civil Writ Petition No. 7520 of 2011 (Meenakshi Attri V. State of Punjab and others), by a separate order of even date, they shall also be entitled to the similar benefits.CWP No. 5560 of 2011 [8]
It is stated that during the pendency of these writ petitions, the Departmental authorities themselves have considered the similarly placed candidates eligible in the 2nd counselling and they have been asked to produce the Reservation Certificates issued subsequently. If that is so, the petitioners shall also be at liberty to represent to the authorities to treat them at par with similarly placed candidates.
Ordered accordingly.
02.11.2011 (SURYA KANT) 'ravinder' JUDGE