Himachal Pradesh High Court
Lata Devi vs State Of H.P. & Others on 28 June, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2512 of 2014 Reserved on : 20.6.2016 .
Date of Judgment: 28th June, 2016
Lata Devi ....Petitioner.
Versus
State of H.P. & others. ...Respondents.
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of Whether approved for reporting?1 No. For the petitioner : Mr. Sanjeev Bhushan, Sr. Advocate with Ms. Abhilasha Kaundal, Advocate.
For the respondents rt : Mr. Virender Kumar Verma, Addl. Advocate General with Mr. Pushpinder Singh Jaswal, Dy. Advocate General, for respondents No.1 to 3.
Mr. Surinder Saklani, Advocate, for
respondent No.4.
Chander Bhusan Barowalia, Judge.
The present writ petition is maintained by the petitioner assailing the appointment of respondent No.4 as Anganwari worker at Anganwari Centre, Durah, Tehsil Nirmand, District Kullu, H.P.
2. As per the petitioner, respondents advertised the post of Angwanwari worker for Anganwari Centre, Durah. It is averred that petitioner, being eligible in all respects, applied for the said post.
Respondents sent an interview letter dated 1.8.2013, to the petitioner and very short time was given for the interview as the interview was fixed on 5.8.2013. Consequent in the interview only two persons appeared in the interview which was held on 5.8.2013 though six persons had applied for the said post, the petitioner and 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 2private respondent were interviewed. The petitioner was assured that she would be selected, since the other person, who appeared .
in the interview is only middle pass and the petitioner is Matric.
Petitioner belongs to a Scheduled Caste category and her maternal family also belongs to Scheduled caste. Petitioner is married in a Scheduled Caste family. Being a simpleton lady, a very short time of was given for appearing in the interview, she could not produce her Scheduled Caste certificate, as the same was applied for. After two rt or three days of receiving interview letter, interview was fixed, so the petitioner produced all the documents, including Scheduled Caste certificate of her husband. Respondents asked the petitioner to produce her own certificate, which the petitioner had applied for in order to further show that father of the petitioner also belongs to Scheduled caste family. As per the petitioner, as she belongs to Scheduled caste category, she is liable for the marks for belonging to Scheduled Caste certificate and by no stretch of imagination can be discarded from awarding of such marks. As per the petitioner, respondents in an arbitrary manner, given lesser marks to the petitioner when she was entitled for more marks, as the petitioner belongs to Scheduled Caste category, therefore, the act of the respondents resulted into injustice to the petitioner.
3. Reply to the writ petition was filed by respondents No.1 to 3, wherein they have taken preliminary objection that the ::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 3 petitioner did not produce Scheduled Caste certificate at the time of her interview and respondent No.4 was selected, being more .
meritorious. As per respondents No.1 to 3, respondent No.4 was selected on merits and petitioner, who did not produce her Scheduled Caste certificate at the time of interview and also at the time of hearing before Deputy Commissioner, Kullu, was rightly not of awarded additional 02 marks, meant for Scheduled Caste candidates. As per respondents, the petitioner only produced rt Scheduled Caste certificate of her husband at the time of interview, she was not granted full marks, as she did not produce the same.
On merits, it is submitted that the vacancy was notified on 12.7.2013 and the candidates were required to apply upto 31.7.2013 and the date of interview was 5.8.2013. Therefore, there was sufficient time to procure the Scheduled caste certificate, as the petitioner could not produced the Scheduled Caste certificate at the time of interview, she was not given 02 marks in the interview.
4. Reply was also filed by respondent No.4. It is averred by her that she applied for the post of Anganwari helper and not for the post of Anganwari worker, of which she was selected. She has further denied that petitioner has applied for the post of Anganwari worker and the post in question was of Anganwari helper. It is further denied that very short time was given for interview as the ::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 4 vacancies were notified on 12.7.2013 and the candidates were required to apply on or before 31.7.2013, and the interview was .
fixed on 5.8.2013. It was made clear that what testimonials are required at the time of applying for the post in question and this plea, as raised by the petitioner, is an afterthought, since the post is meant for Anganwari helper, as such the certificate of husband of of the petitioner cannot be taken into account for the reason that caste status is determined through inheritance and she produced rt Scheduled Caste certificate of her husband which was rightly not taken into consideration, even at the time of hearing of the case, certificate was not brought on record by the petitioner, as such, petition is liable to be dismissed. As per respondent No.4, petitioner has failed to produce the certificate at the time of interview, she can not be awarded 02 marks.
5. I have heard learned counsel for the parties and have also gone through the record of the case minutely.
6. Learned Senior Counsel appearing on behalf of the petitioner has argued that it is not the certificate which will make a person belonging to a particular category, but it is the category to which one belongs and certificate is only to show that she belongs to a category. He has argued that when the petitioner produced the certificate of her husband belonging to Scheduled Caste category and the Interview Committee was knowing that the ::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 5 petitioner belongs to Scheduled Caste category, respondent No.3 should have granted 02 marks to the petitioner, as per the scheme .
for candidates belonging to Scheduled Caste category and the petitioner in that manner would have been selected in preference to respondent No.4, as the difference of marks was only 1/2 marks and had 02 marks been awarded to the petitioner, she would have of getting 1.5 more marks, then respondent No.4.
7. To support his arguments, he has relied upon the rt judgment delivered by Hon'ble Supreme Court of India in Civil Appeal No.1691 of 2016, titled Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another. In this case, the persons produced the OBC certificate after last date of submission of application form. Hon'ble Supreme Court has held that respondent should have considered the candidature of the applicant as OBC category.
8. Hon'ble Supreme Court in the above case has held that as the petitioner has submitted the certificate showing that he belongs to OBC category, after the last date he was required to be considered in OBC category. Relevant para-15 of the judgment is extracted herein below :
"15. In the case of Pushpa (supra), relevant paragraphs from the case of Tej Pal Singh (supra) have also been extracted, which read thus :-
"11.......
xxx xxx xxx ::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 6
17. The matter can be looked into from another angle also. As per the advertisement dated 11th June, 1999 issued by the Board, vacancies are reserved for various .
categories including 'SC' category. Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in of existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit rt to such candidate for his belonging to 'SC' category. It is not that petitioners did not belong to 'SC' category prior to 30th June, 1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30th June, 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.
18. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16 (4) which are enabling provisions authorizing the Government to make special provisions for the persons of SC and ST categories. Articles 14 (4) and 16 (4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality.
Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular Arts. 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful."
::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 7Further, in the case of Pushpa (supra), relevant portion from the judgment of Valsamma Paul's case (supra) has also been extracted, which reads as under :
.
"21. The Constitution through its Preamble, Fundamental Rights and Directive Principles created a secular State based on the principle of equality and non- discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State of establish an egalitarian social order."
of
9. Learned Senior Counsel for the petitioner has further relied upon the judgment rendered in AIR 1997 Supreme Court rt 1693, titled Mrs. Seema Kumari Sharma vs. State of Himachal Pradesh and another. Para 3 of the judgment is reproduced as under :
"3. These appeals by special leave arise from the order of the Central Administrative Tribunal, Shimla Bench made in O.A No.619/95 and the review order. The admitted position is that the Director of Education issued a notice for Junior Basic Teachers' Training. The criteria for selection was 100 marks based on the percentage of marks obtained in matric or equivalent examinations. 20 marks for candidates belongs to rural areas and 10 marks for candidates belonging to backward panchayat were allotted. Similarly, 10 marks were allotted for candidates belonging to IRDP families. Though the appellant claimed to belong to IRDP family, the authorities have not considered her claim and consequently did not award 10 marks as required under the criteria. When the appellant filed the writ petition, the High Court dismissed the same holding that the appellant had not produced the certificate alongwith the application and, therefore, she is not entitled to the above status. When we directed the appellant to produce the record, she made the certificate a part of the record. Unfortunately, it does not bear the date of issue, but we find that she has been ::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 8 given serial numbers are ascribed to all the candidates in the order, we are of the view that her failure to furnish the certificate alongwith the application does not disentitle her to .
claim the status for consideration of award of 10 marks.
Pursuant to the interim direction granted by this Court, the appellant has already appeared for the examinations conducted but her result has not been announced."
10. In the present case, Appellate Authority while disposing of of the appeal has held that petitioner has not produced the certificate of Scheduled Caste category at the time of interview, even though she was specifically asked by SDO (Civil) Ani, rt Chairperson of the Selection Committee and she being rightly not granted 02 marks by the Selection Committee. It is further held that appellant has not chosen not to produce her Scheduled Caste certificate even before the Appellate Authority during the hearing which goes against the appellant. The appellant has now produced Scheduled Caste certificate issued in her favour, on the basis of caste of her father. The same certificate was issued on 21.8.2013 and the appeal was disposed of on 18.1.2014. Learned Senior counsel for the petitioner has also argued that the petitioner had got Scheduled Caste certificate, in her name on 21.8.2013, but respondents No.1 to 3 has made appointment before the date without waiting for her certificate when she was asked by the Interview Committee to produce the certificate and even Deputy Commissioner, Kullu, has failed to appreciate this fact that the certificate was issued in her favour on 21.8.2013.
::: Downloaded on - 15/04/2017 20:41:57 :::HCHP 911. This Court finds that the petitioner was issued Scheduled Caste certificate of her own from her parental side on 21.8.2013 .
and when, as per the petitioner, the respondent asked her to produce Scheduled Caste certificate, but hurriedly made the appointment of respondent No.4 before 21.8.2013. This fact was not considered by Deputy Commissioner, Kullu, in appeal and of Deputy Commissioner, Kullu, has not taken into consideration the Scheduled Caste certificate issued in favour of the petitioner by rt Tehsildar Nirmand, District Kullu, on 21.8.2013, (Annexure P-4), so the matter in appeal before this Court is required to be reconsidered by Deputy Commissioner, Kullu, afresh.
12. Resultantly, order passed by Deputy Commissioner, Kullu, dated 18.1.2014, is ordered to be quashed and set aside. Deputy Commissioner, Kullu, is directed to reconsider the case of the petitioner and to pass detailed order in appeal. Parties are directed to appear before the Deputy Commissioner/Appellate Authority, Kullu, on 22nd August, 2016.
13. In view of the above, the petition is disposed of, so also the pending application (s), if any. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.
(Chander Bhusan Barowalia)
28th June, 2016 Judge
(CS)
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