Rajasthan High Court - Jaipur
Priyanka Choudhary Daughter Of Shri ... vs The State Of Rajasthan ... on 9 February, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023/RJJP/002316]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1229/2022
Priyanka Choudhary Daughter Of Shri Chandrapal Choudhary Wife Of
Shri Mohan Ram, Aged About 29 Years, Resident Of Village Jakhera,
Post Degana, District Nagaur, At Present Resident Of B-86A, Tara
Nagar, Jhotwara, Jaipur (Raj.)
----Petitioner
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
Medical And Health Services, Group-III, Govt. Secretariat,
Jaipur.
2. The Director, Department Of Medical And Health Service,
Medical Directorate, Rajasthan, Jaipur.
3. Additional Director (Administration), Department Of Medical
And Health Service, Rajasthan, Medical Directorate, Jaipur
(Raj.).
----Respondents
For Petitioner(s) : Mr. Arvind Kuamr Arora Ms. Komal Kumari Giri Mr. Bajrang Sepat For Respondent(s) : Mr. Avinash Choudhary for Dr. V.B. Sharma, AAG HON'BLE MR. JUSTICE SUDESH BANSAL Order 09/02/2023
1. The instant writ petition has been filed by the petitioner under Article 226 of the Constitution of India, feeling aggrieved by non-consideration of her candidature in the category of OBC (Non- Creamy Layer) for appointment on the post of Women Health Worker (ANM) pursuant to advertisement dated 18.06.2018.
2. Heard counsel for both parties and perused the material available on record.
3. The relevant facts as culled out from the record are that the petitioner submitted online application form for the post of ANM pursuant to the advertisement No.1363 dated 18.06.2018 and in (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (2 of 8) [CW-1229/2022] online application form, petitioner referred her category as OBC (Non-Creamy Layer). Petitioner secured 50.425 marks and the last cut-off marks in Female OBC (Non-Creamy Layer) category went to 50.109, therefore, petitioner claims herself to be higher in merit and entitled for the appointment on the post of ANM. Respondents have rejected the candidature of petitioner vide order dated 15.4.2020 (Annexure-8) on the ground that her caste certificate of OBC (Non-Creamy Layer) indicates OBC (Creamy Layer). Therefore, respondents have not considered the candidature of petitioner for the appointment in the category of OBC (Non- Creamy Layer). Three caste certificated of OBC category were issued by authorities, one on 28.6.2018, thereafter, on 10.6.2019 and lastly on 17.4.2020. The case of petitioner is, while issuing the caste certificate dated 28.6.2018, the authorities inadvertently and accidently indicated the category of Creamy Layer, instead of Non-Creamy Layer. The error of not indicating word " नही" is accidentally on the part of authorities and there is nothing wrong on the part of petitioner. Subsequent to caste certificates dated 10.6.2019 and 17.4.2020, issued in the name of petitioner in OBC (Non-Creamy Layer) category is indicated.
4. It has also been pleaded that in the provisional merit list dated 14.12.2019 (Annexure-6) and in the final merit list dated 18.1.2020 (Annexure-7), petitioner was selected and was within merit. However, during the course document verification, on the basis of her caste certificate dated 28.6.2018, she was considered in the category of OBC (Creamy Layer) and her caste certificates dated 10.6.2019 and 17.4.2020 wherein her category has been shown as OBC (Non-Creamy Layer) were not considered and (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (3 of 8) [CW-1229/2022] therefore, the rejection of candidature vide order dated 15.4.2020 (Annexure-8) is illegal as the petitioner being higher in merit than the last candidate given appointment on the post of ANM in the category of Female OBC (Non-Creamy Layer) possesses the cut- off marks 50.109 whereas the petitioner has secured 50.425 marks as such petitioner has prayed for appointment.
5. In reply, respondents have not disputed that petitioner applied in Female OBC (Non-Creamy Layer) category and she was selected in merit list dated 18.1.2020, but at the time of document verification her caste certificate dated 28.6.2018 was not found of Non-Creamy Layer, therefore her candidature was rejected and not included in final selection list dated 15.4.2020. In additional affidavit, filed on behalf of respondents on 6.12.2022 in compliance of the order dated 21.9.2022, denied the case of petitioner. However, it has been contended that the caste certificate of petitioner dated 17.4.2020, showing her as OBC (Non-Creamy Layer) category is subsequent to the final list dated 15.4.2020, therefore, same cannot be considered. However, no response or dispute in respect of the caste certificate of petitioner dated 10.6.2019 which indicates her caste as OBC (Non-Creamy Layer) category has been made by respondents. Needless to observe that the caste certificate of petitioner dated 10.6.2019 is prior to the final selection list dated 15.4.2020.
6. Learned counsel for petitioner states that it is not a case where petitioner do not belong to the category of Female OBC (Non-Creamy Layer) but it is fault on the part of authorities in not indicating her category as OBC (Non-Creamy Layer) in her caste certificate dated 28.6.2018 and error seems to be bona fide on the (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (4 of 8) [CW-1229/2022] part of authorities due to not indicating the word " नही". The caste certificate is issued under the prescribed format. In subsequent to caste certificates of petitioner dated 10.6.2019 and 17.4.2020, her caste certificate clearly show OBC (Non-Creamy Layer) where word "नही" has been indicated. That apart, petitioner has filled her online application form in the category of Female OBC (Non- Creamy Layer). Thus, at the time of filling of the application form, petitioner was falling within the category of Female OBC (Non- Creamy Layer) and only on account of fault on the part of concerned authority, in not indicating Non-Creamy Layer in certificate dated 28.6.2018, petitioner cannot be deprived from the appointment in the category of OBC (Non-Creamy Layer).
7. To buttress the contention, the petitioner has placed reliance on the judgment passed by the Hon'ble Supreme Court in case of Food Corporation of India Vs. Rimjhim [(2019) 5 SCC 793], Dolly Chhanda Vs. JEE [(2005) 9 SCC 779] and Charles K. Skaria Vs. C. Mathew [(1980) 2 SCC 752]. The Apex Court in Food Corporation of India (supra), has held as under:
"13. Now so far as the submission on behalf of the FCI that a candidate must and/or ought to have produced the experience certificate along with the application is concerned, at this stage, a decision of this Court in the case of Charles K. Skaria v. Dr. C. Mathew (1980) 2 SCC 752 and the subsequent decision of this Court in the case of Dolly Chhanda v. Chairman, JEE and Ors. (2005) 9 SCC 779 are required to be referred to.
In the case of Charles K. Skaria (supra), this Court had an occasion to consider the distinction between the essential requirements and the proof/mode of proof. In the aforesaid case, this Court had an occasion to consider the distinction between a fact and its proof. In the aforesaid case before this Court, a candidate/student was entitled to extra 10% marks for holders of a diploma and the diploma must be obtained on or before the last date of the application, not later. In the aforesaid (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (5 of 8) [CW-1229/2022] case, a candidate secured diploma before the final date of application, but did not produce the evidence of diploma along with the application. Therefore, he was not allowed extra 10% marks and therefore denied the admission. Dealing with such a situation, this Court observed and held that what was essential requirement was that a candidate must have obtained the diploma on or before the last date of application but not later, and that is the primary requirement and to submit the proof that the diploma is obtained on or before a particular date as per the essential requirement is secondary. This Court specifically observed and held that "what is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification". This Court specifically observed and held that "to confuse between a fact and its proof is blurred perspicacity". This Court further observed and held that (Charles K. Skaria case) (supra) "20.......To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate the merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence."
While observing and holding so, in paragraphs 20 & 24, this Court observed and held as under:
(Charles K. Skaria case) (supra) "20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (6 of 8) [CW-1229/2022] second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor ..... Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time.
What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence."
xxx xxx xxx
24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (7 of 8) [CW-1229/2022] documents like mark-lists from universities, why, even bail orders from courts and Government Orders from public offices. This frustrating delay was by- passed by the State Government in the present case by two steps. Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory Rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and common sense is not inimical to interpreting and applying the guide-lines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks.
(emphasis in original)"
Placing reliance on the judgment in Dolly Chhanda (supra), relying upon the decision of the Hon'ble Supreme Court in Charles K. Skaria (supra), the Apex Court affirmed the judgment of the Division Bench and reiterated the view that respondent was in position of essential eligibility of having one year experience translation from English to Hindi vice versa and same stands fortified by certificates dated 14.1.2015 and 18.7.2016 issued by the erstwhile employer of respondent, therefore, denial of appointment to respondent placing reliance on the previous certificate dated 27.8.2014, without pondering over the subsequent certificate which are obviously of previous period to the preparation of selection list and document verification, (Downloaded on 14/02/2023 at 10:45:38 PM) [2023/RJJP/002316] (8 of 8) [CW-1229/2022] hence, directions to extend appointment to respondent are well within parameters of law.
8. Following the dictum of the Hon'ble Supreme Court in case of Dolly Chhanda (supra), the Coordinate Bench of this Court in S.B. Civil Writ Petition No.2025/2020: Saroj Kumari Vs. State of Rajasthan & Ors. and another connected matter decided on 5.3.2020, allowed writ petitions and issued directions to give the appointment to petitioners. In Saroj Kumari (supra), facts were similar to the present case and therefore, the ratio is squarely applicable to the present case as well.
9. Having considered the aforesaid factual aspect and legal proposition of law, this Court finds that the writ petition is liable to be succeeded.
10. Accordingly, the writ petition is allowed.
11. Respondents are directed to consider the petitioner for the purpose of appointment on the post of ANM pursuant to advertisement dated 18.6.2018 in the category of Female OBC (Non-Creamy Layer) and if she is otherwise eligible to accord appointment. It is hereby observed that notional benefits to petitioner shall be accorded from the date of giving appointment to less meritorious person. However actual benefits shall be accorded from the date of giving appointment.
12. Needful be done within a period one month from today. No order as to costs.
13. Stay application and other pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J NITIN /88 (Downloaded on 14/02/2023 at 10:45:38 PM) Powered by TCPDF (www.tcpdf.org)