Punjab-Haryana High Court
Surinder Kumar vs Union Of India And Others on 6 November, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.15272 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.15272 of 2012
Date of Decision: 06.11.2013
Surinder Kumar
..... Petitioner
Versus
Union of India and others
... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sukhdev Kamboj, Advocate,
for the petitioner.
Mr. Vikrant Sharma, Advocate,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The petitioner applied for the post of Constable (General Duty) in the Central Industrial Security Forces (CISF) in the reserve category of Other Backward Classes (OBC) responding to an advertisement issued on 05.02.2011 jointly by Central Police Organizations for recruitment of Constables in BSF, CRPF, CISF and SSB. The petitioner applied for the post. He was called for the Physical Efficiency Test (PET) and Physical Standard Test (PST) in May 2011. He qualified both the tests. He was issued Admission Certificate to appear for the written test on 05.06.2011. He qualified the written test and the medical examination as well in July 2011. The result of the selection was published in November 2011. The petitioner's name figured in the selection list at Sr. No.589 issued roll number-wise. The final result was published in February 2012. The Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -2- petitioner secured 54 marks. The petitioner was not offered appointment. It is the say of the petitioner that he called on the office of the Staff Selection Commission, Chandigarh and was told to bring a new caste certificate. He got a fresh caste certificate from the office of Tehsildar Fazilka, Punjab which was issued in continuation of the earlier caste certificate submitted with the application form. This OBC certificate is dated 09.05.2012 (P-7). He did not appear from the Commission. The petitioner served a legal notice on the respondents dated 22.05.2012 claiming appointment for reason of qualifying all the tests demanded by the criteria for appointment. In response to the legal notice, the petitioner received a letter dated 10.07.2012 from the 2nd respondent. The petitioner has been informed as follows:-
"This is w.r..t. your legal notice dated 22.05.2012.
02. It is to inform that after being secured place in final select list issued by SSC, the candidate has been nominated for appointment to the post of Const/GD in CISF by the SSC. But his dossier for the provisional offer of appointment has not yet been received from SSC. Until & unless dossier of the candidate is received from SSC and scrutinized and found without any adverse observation, the candidate will not be issued offer of appointment.
03. Your clients may be informed accordingly."
The CISF held up the provisional offer of appointment for lack of receipt of dossier from the Commission and till such time his papers cannot be scrutinized for purposes of appointment. Stony silence has led the petitioner to file the present writ petition under Article 226 of the Constitution of India claiming a direction to the respondents to offer him appointment on his merit position by treating him as a genuine OBC candidate on the strength of the caste certificate issued by Tehsildar Fazilka.
On notice of motion having been issued, the Staff Selection Commission has filed a reply dated 26.10.2012. The reason for denial of Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -3- offer of appointment is stated to be want for OBC certificate in the format prescribed under the Head "Important Instructions to Candidates". The result of the petitioner was declared in the unreserved category where he did not meet the merit determined for the general category. The closing dates under the advertisement was 04.03.2011 and, therefore, the amended caste certificate dated 09.05.2012 submitted by the petitioner to establish his caste status is beyond the cut off point and, therefore, not acceptable. Still further by treating the petitioner as a general category candidate, he was found overage by about 25 days as his date of birth is 06.07.1988 and the age limit for general category candidates was fixed within the limits of 18-23 years as on 01.08.2011. The rejection is therefore legal and valid. All steps leading to selection were provisional in nature and conferred no right to appointment in absence of a valid OBC certificate presented in the prescribed format for recruitment to Central Government service. The earlier OBC certificate relied upon by the petitioner was in Punjab format meant for OBCs. Note 2 to the public notice inviting applications issued by the respondent-Commission is cited against the petitioner. Note 2 reads as follows:-
"2. In view of the anticipated large number of applicants, scrutiny of the eligibility and other aspects will not be undertaken before the PST/PET and Written Examination and, therefore, the candidature will be accepted only provisionally. Candidates are advised to go through the requirements of educational qualification, age, physical standards, etc. and satisfy themselves that they are eligible for the posts, before applying. Copies of supporting documents will be sought only from those candidates who qualify for the medical Examination. When scrutiny is undertaken after the Written Examination, if any claim made in the application is not found substantiated the candidature will be cancelled and the Commission's decision in this regard shall be final."Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -4-
Note 4(C) deals with process of certification and format of certificates. Note 4(C) reads as follows:-
"4(C) : PROCESS OF CERTIFICATION AND FORMAT OF CERTIFICATES:
Candidates who wish to be considered against vacancies reserved/or seek age-relaxation must submit requisite certificate from the competent authority. In the prescribed format when such certificates are sought by concerned Regional/Sub Regional Offices at the time of Written Examination or Medical Examination or any other time as may be decided by the Commission. Otherwise, their claim for SC/ST/OBC/Ex-Servicemen status will not be entertained and their candidature/applications will be considered under General (UR) category. The formats of the certificates are annexed. Certificates obtained in any other format will not be accepted. Candidates claiming OBC status may note that certificate on creamy layer status should have been obtained within three years before the closing date i.e. 04.03.2011."
The petitioner presented CM No.1826 of 2013 appending the letter dated 28.12.2012 (P-12) to claim that his right to appointment was crystalized by that letter. The Deputy Regional Director, Staff Selection Commission (NWR), Govt. of India, Chandigarh has filed a reply to the application and it has been stated therein that the aforesaid letter has been wrongly issued to the petitioner due to a bona fide mistake. That letter is said to have been issued on the basis of the Nomination List in which the name of the petitioner has been shown wrongly as nominated instead of rejected which mistake was caused due to heavy rush of work. There was improper verification of facts by the supporting staff and the candidature of the petitioner had been rejected earlier when the Commission responded to the legal notice. Therefore, the petitioner could not be taken as one belonging to OBC category. Resultantly, the letter dated 28.12.2012 (P-12) has been withdrawn by letter dated 31.01.2013 a copy of which has been Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -5- appended as Annexure R-2 with the application. This letter reads as follows:-
"Sir, I am to refer to the above referred letter on the subject mentioned above. In this connection, it is intimated tha the letter in question was issued inadvertently as it was sent on the basis of the Nomination List in which he was allotted Rank No SL/15707 and shown as nominated whereas his candidature has been rejected.
After the declaration of the result, at the time of nomination, the candidate was found overage as a General candidate since the Other Backward Certificate submitted by the candidate was not as per the prescribed format hence he could not be treated as a candidate belonging to OBC category and his dossier was withheld and he was not nominated for appointment.
The fact has been mentioned in the written statement submitted in the Hon'ble High Court.
This office letter of even number dated 28.12.2012 stands withdrawn and inconvenience caused is regretted, please Yours fatifhully, (S.K.RANJAN) Deputy Regional Director"
This is where the pleadings rested when the matter was taken up for final disposal in motion hearing.
Heard the learned counsel for the parties at length. Record perused and considered.
Learned counsel for the petitioner submits that the caste certificate dated 15.06.2010 (P-2) relied upon in the application form which was issued by the competent authority at Fazilka certifying that the petitioner belong to the Kumhar Caste which was recognized as Backward Class in terms of Punjab Government letter dated 02.02.1994. The certificate duly recognized that the petitioner does not belong to the creamy layer in terms of the letters issued by the Punjab Government in the Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -6- Department of Welfare dated 17.01.1994, 17.08.2005 and 24.02.2009. The fresh certificate dated 09.05.2012 on which the case of the petitioner turns is placed at Annexure P-7. This certificate has been issued by the same authority that issued the Caste Certificate dated 15.06.2010 but in the prescribed format for being considered under the Government of India. It is clearly mentioned in the certificate dated 09.05.2012 that it is issued in lieu of certificate issued vide No.755 dated 15.06.2010. He places reliance on Dolly Chhanda vs. Chairman, JEE, 2004 (4) RSJ 685 decided by the Supreme Court holding that documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation can save some relaxation depending upon the facts of a case. In the matter of submission of proof, it may not be proper to apply any rigid principle as it pertains to the domain of procedure. Every infraction of rule relating to submission of proof need not necessarily result in the rejection of candidature. In reaching this conclusion, the Supreme Court relied on its earlier dicta laid down in Charles K. Skaria and others vs. Dr. C. Mathew and others, 1980(2) SCC 752.
Learned counsel would next depend on a decision rendered by this Court in CWP No.13800 of 2008 titled Komal vs. State of Punjab & another decided on 23.04.2009 by the Single Bench. Permod Kohli, J. speaking for this Court held that being a member of the Backward Class is not condition of eligibility. If a person belongs to the Backward Classes, the certificate is only a proof of belonging to such category. A person cannot acquire such category except by birth and descent, being the genetic principle that determines such category. Even non-production of the Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -7- certificate along with the application is not fatal in the run for selection. In coming to this conclusiion, the learned Single Judge relied on an earlier Division Bench judgment of this Court in CWP No.4242 of 2007 rendered on 30.09.2008.
On the other hand, Mr. Vikrant Sharma, learned counsel appearing for the respondent-Commission relies on two decisions rendered by me in CWP No.22578 of 2010 titled Anil Kumar vs. State of Haryana and another decided on 26.08.2013 and in CWP No.14711 of 2012 titled Charanjeet Singh vs. Union of India and another decided on 25.10.2013. The first case dealt with the reserve category of Ex-serviceman. There was term in the advertisement which required candidates of Haryana in seeking appointments to a post under the State to attach "fresh" eligibility certificate to claim the benefit of horizontal reservation. In such circumstances, the Ex- serviceman certificate dated 29.05.2006 in the background of the cut off date i.e. 07.07.2008 was not found to be a fresh certificate. In such circumstances, I took a strict view while dealing with the case brought by a dependent of an Ex-serviceman (General). In this case, the candidate had not appended the eligibility certificate with the application form as was required and of it to be issued by the local Zila Sainik Board. In dealing with horizontal reservation cut off dates in the context of certificates can have different meanings and lead to different results. If such certificate was allowed to be accepted, I held that a Pandora's box would be opened which would affect 3rd party rights which may have necessitated reopening the advertisement itself for giving equal opportunity to all as may have been deprived by the same act as that of the candidate in that petition. The case Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -8- is, therefore, clearly distinguishable.
In Charanjeet Singh, I dealt with a case where the candidate had not entered his roll number through pencil shading the appropriate slots provided in the answer sheet and thus the computer could not detect the identity of the author-candidate and rejected it for anonymity resulting in the award of zero marks. In such circumstances, it was reasoned that if a thing is required to be done in a particular manner it should be done in that manner alone or not at all. I held in Charanjeet Singh case as follows:-
"The petitioner was a candidate for the post of Constable (GD) in CAPFs recruitment process for the year 2013. Petitioner's claim has been rejected for the reason that he did not enter his roll number by shading the appropriate slots provided in the answer sheet and, therefore, the computer could not detect the identity of the author and rejected the answer sheet for anonymity. At the end of the answer sheet is contained a significant warning loud and clear that an answer sheet with incorrect coding of any of the particulars would be awarded zero marks. It is well settled that if thing is required to be done in particular manner, it should be in that manner alone or not at all. This principle requires even stricter adherence in public appointments where competition is razor sharp and one ouster creates immediately a right in another competitior to supercede a person fallen by the wayside for his own fault. It is, therefore, not possible to interfere in this matter where a glaring error is for all to see on the answer sheet in an examination involving thousands of candidates.
Acceptance of a plea of mercy as suggested by the counsel for the petitioner would run counter to public interest and would be in negation of third party rights accruing, as any effort to undo such defect would not be in conflict with the injunction contained at the foot of the answer sheet that such breach of procedure would inevitably result in award of zero marks."
This case has no application to the facts of the present one which deals with an issue arising from vertical reservation. Proof would relate back to the first certificate issued in the Punjab format duly corrected with retrospective effect on Central Government format by the Tehsildar Fazilka Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -9- himself. The veracity of the caste certificate dated 09.05.2012 has not been disputed before this Court and is therefore worthy of acceptance as a credible document in proof of belonging to the Other Backward Classes.
Resultantly, this writ petition is allowed, the letter dated 31.01.2013 (R-2) withdrawing the letter dated 28.12.2012 (P-12) is quashed. The operation of the letter dated 28.12.2012 is revived. Further procedure after issuance of letter dated 28.12.2012 is directed to be adopted. The Commission is directed to accept the OBC certificate in Central Government format and to forward the name of the petitioner to CISF/other paramilitary forces for it/them to consider offering appointment to the petitioner as a Constable (GD) as per merit determined by the Commission. The submission of the respondents that since the impugned letter dated 31.01.2013 (R-2) has not been specifically challenged since it has come into existence during the pendency of the petition is rejected in order to do substantial justice and the issues having been considered on merits and parties heard. It would be travesty of justice to call upon the petitioner now to lay specific challenge to the letter dated 31.01.2013 given that all ingredients for grant of relief are present on the judicial file and there would be no earthly reason to postpone judgment only to receive a formal challenge to the letter dated 31.01.2013. Equitable jurisdiction exercised by this Court cannot be whittled down or curtailed by and under the camouflage of procedure which remains subservient to the demands expected from this Court in doing substantial justice for an aggrieved person who has knocked its door in helplessness.
Accordingly, the petitioner is held entitled to appointment on the Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -10- strength of the OBC caste certificate dated 09.05.2012. The case of the petitioner be now considered against an available vacancy or by deducting one post from future selection or by creating a supernumerary post to accommodate the just and fair claim of the petitioner, though the petitioner would not be given the relief of back wages for the period prior to appointment. Such denial to my mind may be somewhat unfair but it is a price a litigant pays willy nilly based on judicially accepted practice forming a part of the judge made law and for good and sufficient reason flowing from the application of the principles of 'no work-no pay' when the issue presented before the Court is debatable, not clear cut but is determined for the first time in judicial review of administrative action calling upon the State as an employer to depart from prescribed formats to serve the ends of justice in exercise of equitable jurisdiction based on interpretative processes and reasoning applied by courts in a set of given facts presented to it for determination on accepted legal principles or newly evolved. If the denial of right to appointment lacks bona fides and is a dileberate attempt to forestall employment on selection then I am inclined to think it may be open to this Court to order payment of back salary as well to an aggrieved person manifestly deprived of his right to work and earn wages through direct recruitment just as in cases of palpable and wrongful denial of promotion in the face of juniors promoted without just cause or legal justification or in cases of proper denial to start with but rights crystalizing following complete exoneration from charges of misconduct laid on unreasonably delayed conclusion of inquiries and on opening of sealed covers where such procedure was followed then and where back salary may become payable or Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWP No.15272 of 2012 -11- actionable as explained in Union of India v. K.V.Jankiraman, AIR 1991 SC 2010 as an exception to the normal rule of refusal to pay arrears of back wages on notional promotion from back date. This issue is, however, left open vis a vis direct appointment to be considered in some other case. Be that as it may, let the fresh exercise as ordered above be now done by the respondents within 45 days of the date of receipt of a certified copy of this order.
(RAJIV NARAIN RAINA) 06.11.2013 JUDGE Paritosh Kumar Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document