Central Administrative Tribunal - Allahabad
Gaurav Kumar Yadav vs U.O.I & Ors In O.A No. 2364/2010 And The ... on 1 June, 2012
(Reserved on 17.05.2012) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 01st day of June, 2012. HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MR. SHASHI PRAKASH , MEMBER (A) Original Application Number. 298 OF 2012. Gaurav Kumar Yadav, S/o Om Prakash Singh Yadav, R/o Khera Fatehpur, District- Badaun. Applicant. VE R S U S 1. The Government of India through its Secretary, Department of Personnel & Training, Ministry of Public Grievances & Pensions at New Delhi. 2. The Assistant Director (C.R), Staff Selection Commission (C.R), Government of India, New Delhi . ..Respondents Advocate for the applicant: Shri Pankaj Srivastava Shri Sanjay Mishra Advocate for the Respondents: Shri Ajai Singh O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. By means of the present Original Application filed under section 19 of Administrative Tribunals Act 1985, the applicant seeks quashing of order dated 12.12.2011 (Annexure-1) by which benefit of reservation in O.B.C category has been denied.
2. The facts are not in dispute. The applicant, who belongs to O.B.C category, applied in pursuance to the advertisement issued by the Staff Selection Commission for the post of Multi Task (Non-Technical Staff) in different States and Union Territories in the year 2010. The last date of submission of application was 31.12.2010. The examination was held on 27.02.2012. The applicant appeared in the written examination. By letter dated 25.08.2011, the applicant was directed to appear before the Commission on 12.09.2011 at 10.00 A.M alongwith original certificates. He was served with a Notice on 16.09.2011 (Annexure-6). Finally by the impugned order dated 12.12.2011 the candidature of the applicant was rejected. Against the above order the applicant filed representation on 16.12.2011. The respondents did not pay any heed to the representation, hence the O.A.
3. Pursuant to the notice respondents represented through Shri Ajay Singh, Advocate, who submitted that there is no need to file Counter Reply and he will argue the matter. With the consent of parties, we proceed to hear the matter at the admission stage by seeing the nature of the case.
4. Shri Pankaj Srivastava, learned counsel for the applicant vehemently argued that the impugned action of the respondents in not considering the claim of the applicant in O.B.C category is totally illegal and arbitrary because it is not denied by the respondents that the applicant did not belong to O.B.C. The only objection raised by the respondents is that the certificate has not been filed in prescribed format and secondly, the same is not issued within three years preceding the last date of submissions of application form. He placed reliance upon order dated 01.02.2012 passed by the Principal Bench in the case of Mahesh Kumar Vs. U.O.I & Ors in O.A No. 2364/2010 and the judgment passed by the Honble High Court, Allahabad in Writ Petition No. 55707/2011 Mukesh Kumar Vs. U.O.I & Ors decided on 28.09.2011.
5. Pro-contra Shri Ajay Singh, learned counsel appearing for respondents supported the impugned order and submitted that as per the advertisement, the candidate , who seeks the benefit of reservation, was required to submit certificate in prescribed format. It is also made clear in the advertisement that if later on it is found that the same is not in accordance with the advertisement then the candidature can be rejected. He further urged that the O.B.C certificate submitted by the applicant is not within three years preceding to the last date of submissions of application form; therefore, the same cannot be taken into consideration while granting reservation under O.B.C category. Hence the applicant was considered as general category candidate. Since he was found to be over age being general category candidate, therefore, his candidature was rejected. He placed reliance upon the order passed by this Tribunal in O.A No. 1053/07 Shyam Karan Singh Vs. U.O.I & Ors decided on 02.05.2008, O.A No. 839/07 Amrish Agrwal Vs. U.O.I & Ors decided on 12.05.2008, O.A No. 646/07 Sushil Kumar Vs. U.O.I & Ors decided on 04.03.2009 and the judgment of Honble High Court, Delhi in L.P.A No. 562/2011 Delhi Subordinate Services Selection Board and Anr. Vs. Ram Kumar Gijroya & Ors decided on 24.01.2012. Lastly he submitted that in view of the above, the O.A be dismissed.
6. We have heard Shri Pankaj Srivastava, counsel for the applicant and Shri Ajay Singh, counsel for respondents.
7. Social index of a caste, family or individual would naturally record proportionate progress with the enjoyment of the benefit of reservation. A person in a particular reserved category would stand on a higher footing, compared to the one, in the same category, but did not avail the benefit, at all. More the years, during which the reservation is in force, higher are the prospects of the family, which initially got the benefit of reservation, to corner the benefit, obviously, to the exclusion of others in that category. In the case of K.C. Vasanth Kumar v. State of Karnataka, (1985) Supply. SCC 714, it was held that the root cause of social and educational backwardness lies in economic backwardness and therefore, economic criterion should be applied to identify social and educational backwardness for the purpose of compensatory discrimination or affirmative action. Although, the Supreme Court had observed that economic criterion is worth applying for reservation to Scheduled Castes and Scheduled Tribes but the aforesaid view has not met with an approval of the Honble Supreme Court in its later pronouncement. Accordingly, directions were issued re-determining the question of backwardness of the various Castes/Tribes and for the purposes of Articles 15 (4) and 16 (4) in the light of the latest figures which were to be collected on various relevant factors in order to re-fix the extent of reservation for backward classes. It is significant to notice that the reservation based on occupation-cum-income can in any event be availed of by members of backward communities and castes.
8. In Ashoka Kumar Thakur's ---------one of the fundamental issues raised before the Five Judge Constitution Bench is "Whether Creamy Layer is to be excluded from the category of socially and educationally backward classes" and considerable time has been devoted to determine the aforesaid issue. The Honble Supreme Court has noticed 9-Judge Bench decision rendered earlier in Indra Sawhney's case and after critically examining the constitutional desirability of exclusion of 'Creamy Layer' has issued direction to the government that there was no way out but to accept the principles of exclusion of the Creamy Layer from the category of backward class for the purposes of configuring the constitutional benefit of reservation. All these questions and related issues have been critically examined by Professor Dr. Virendra Kumar in his learned Article titled as "Dynamics of Reservation Policy", Vol. 50 Journal of Indian Law Institute (2008) Oct-Dec p.478. The Honble Supreme Court in Ashoka Kumar Thakur's case (supra) has laid down that exclusion of Creamy Layer is imperative for upholding the paramount principles of equality and that it is basic structure of the Constitution. Therefore, non-exclusion of 'creamy layer' violates the principle of equality in two principal ways. If one continues to confer reservation benefits on 'creamy layers', on the one hand that would amount to 'treating equals unequally' vis-`-vis persons belong to 'forward' or 'advanced' class; on the other hand, to rank them with the rest of backward classes would amount to 'treating 'un-equals equally'. Thus, non-exclusion of 'creamy layer' leads to "perverting" the very objective of special constitutional provisions. It discourages the beneficiaries to stand at their own feet and compete with the forward classes as equal citizens. Non-exclusion would also keep the backward class 'in-perpetual backwardness' as if by saying: 'Once a backward class is always a backward class'. The resultant impact of non-exclusion has been put forward as an aphorism by Bhandari, J: "Creamy layer inclusion robs the poor and gives to the rich. Realizing the constitutional imperative of 'creamy layer exclusion' for upholding the paramount principle of equality, the Supreme Court sealed the possibility of inclusion of creamy layer even in future by resorting to the amendment of the Constitution. Such an amendment will be "totally illegal" and violate "the basic structure of the Constitution". Inclusion of creamy layer, therefore, "cannot be allowed to be perpetuated even by constitutional amendments. One can usefully draw sustenance from the following words of wisdom spoken by the Apex Court in Valsamma Paul (Mrs.) Vs. Cochin University and others, AIR1996 SC 1011 :-
"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 to establish an egalitarian social order. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person with the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing....."
9. For this reason Government has itself come out with the guidelines vide O M dated 8.9.1993 permitting the candidates to submit certificate of the competent authority indicating therein whether the applicant belongs to creamy layer of the OBC or not.
10. Now applying above ratio to the facts of the case in hand, admittedly the applicant submitted OBC certificate issued by the authority on 03.08.2007 i.e. not within three years preceding last date of submission of application form. Same was also not as per the format prescribed in the Advertisement. Therefore, we find no fault in the decision taken by the respondents in not considering the case of the applicant under the category of OBC. It can be seen from another angle that the format prescribed by Respondent No.2 in the application form is also necessary for the reason that the authorities have to ascertain whether the applicant or the person claiming the benefit of reservation of OBC belongs to creamy layer or not. That is why a specific condition has been imposed in para 4 of advertisement. The relevant condition read as under:-
4. Candidates seeking reservation benefits available for SC/ST/OBC/PH/EXS must ensure that they are entitled to such reservation as per eligibility prescribed in the Notice. They should also be in possession of the required certificates in the prescribed format in support of their claim at the time of application.
11. Therefore in terms of the above stated mandatory condition which was stipulated in terms of the OM dated 8.9.1993 the competent authority is to indicate in the certificate that the applicant belongs to creamy layer of the OBC or not. Based on that the benefit is to be conferred upon the candidate seeking reservation under the OBC category. Since the certificate appended by the applicant does not satisfy the above said condition and also not in a prescribed format, therefore, we find no reason to interfere with the impugned order
12. Now considering the judgments relied upon by the counsel for applicant, we find that the judgments do not help the applicant as in that case, the certificate of O.B.C issued by the authority indicates that he does not fall within creamy layer whereas, in the case in hand, the certificate issued by the authority is not in prescribed format and also does not indicated that where the applicant belongs to creamy layer of the O.B.C or not.
13. We also find support from the judgment of jurisdictional High Court in Writ Petition No. 723/2012 - Santosh Kushwaha Vs. U.O.I & Ors decided on 06.01.2012, where the Honble High Court has held as under: -
A bare perusal of the instruction quoted above would go to show that formats of the certificate had also been annexed and it was also clearly mentioned therein that candidates claiming OBC status may note that certificate on Creamy layer status should have been obtained within three years before closing date i.e. 04.03.2011, and it was clearly mentioned therein that otherwise claim shall be considered under General (UR) category.
In the present case factual situation emerges and reflect is that certificate of OBC appended by the petitioner dated 13.06.2007. Once such is the factual situation, that certificate in question was not at all as per the requisite instructions, in view of this once petitioners candidature has been considered under general category and therein petitioner has failed to make place for himself then this court cannot come to the rescue and reprieve of the petitioner.
Writ Petition is accordingly dismissed..
14. Even the Honble High Court, Delhi in L.P.A No. 562/2011 decided on 24.01.2012 has held that if the O.B.C certificate has not been filed in prescribed format and that too before cut off date then the benefit of reservation under O.B.C category cannot be extended. Para 17 and 18 of the said judgment are relevant which are reproduced: -
17. On the contrary, the advertisement in the appeal as well as the writ petition clearly provided that the certificates of belonging to OBC category had to be filed alongwith the application by the cut off date. We, therefore, are of the opinion that what was held in Tej Pal Singh qua the status as SC/ST and in the context of language of the advertisement in that case would not apply to the present cases concerning OBCs and in view of the unambiguous language of the advertisements inviting applications in the present case. Inspite of judgment of Coordinate Bench in Anu Devi Supra, need is not felt to refer the matter to a larger Bench because the judgment in Anu Devi turned on, firstly the appointing authority in that case, notwithstanding the cut off date, having issued notices demanding the certificates thereby extending the cut off date and secondly on this Court exercising the discretion under Article 226 in refusing to interfere with the decision of the Tribunal in that case. We are however consciously distinguishing Tej Pal Singh (Supra). We may also notice that our Brother who has authored the judgment in Anu Devi had earlier, sitting singly in judgment dated 13.08.2009 in W.P (C) No. 10257/2009 titled Abhishek Saini Vs. University of Delhi held that the action of the University in not permitting the petitioner in that case to participate in the selection process on account of non-production of O.B.C certificate by the date stipulated in the Bulletin of Information and which was mandatory cannot be faulted with. Mention may also be made of Hari Singh Vs. Staff Selection Commission 170 (2010) DLT 262 where another Division Bench notwithstanding the OBC certificate having not been filed by the stipulate date and following Tej Pa held a case for making provisional admission to have been made out but again in the peculiar facts of that case and accepting the explanation for non-submission thereof.
18. Another Division Bench of this Court in judgment dated 25th January, 2010 in WP(C) No. 10558/2008 titled Union Public Service Commission Vs. GNCTD and others connected Writ Petitions held that the procedure for making applications cannot be given a go by for accommodating a few people and if this is done there would be no obligation on any body to follow any procedure resulting in an unmanageable situation. It was further held that the procedure prescribed in the advertisement casts a duty on the applicants to apply in accordance therewith and they cannot be allowed to contend that their application should be accepted even if incomplete. Accordingly, the rejection of the applicants who had not submitted the documents required to be submitted alongwith the application form was upheld.
15. Even the coordinate Bench of this Tribunal in O.A No. 1747/2010 Ajay Kumar Das Vs. U.O.I& Ors decided on 03.01.2011 has taken similar view and held as under: -
10. There are several judgments of Honble High Court, Patna and Honble High Court of Allahabad and Honble High Court of Punjab & Haryana that whatever has been mentioned in the instructions are binding on the applicant and he cant dispute the conditions and instructions. And in the preset case also the instructions are binding on the applicant.
11. For the reasons mentioned above we are of the opinion that the act of the respondents is perfectly in accordance with law and the instructions as specifically mentioned in the employment notice and same are binding and there must be no relaxation to those instructions and by filing this O.A the applicant wants to grant the relief regarding relaxation in normal instructions and it is not permissible. In our opinion the O.A lacks merit and the same is liable to be dismissed.
16. In view of the above we find no reason to interfere with the impugned order hence the O.A is dismissed being devoid of merits. No costs.
MEMBER- A MEMBER- J /Anand/ ?? ?? ?? ?? 1 O.A No. 298 of 2012