Central Administrative Tribunal - Delhi
Sagar Yadav vs Staff Selection Commission on 24 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-521/2015
Order Reserved on: 03.12.2015
Order Pronounced on: 24.05.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Sagar Yadav
Unemployed
S/o Shri Manoj Yadav
Flat No. 195, DDA MIF Flats
Metro Apartments, Jahangir Puri
North West Delhi
New Delhi-110033. -Applicant
(By Advocate: Shri Abhishek Sharma)
Versus
1. Chairman, Staff Selection Commission
Block No. 12, Kendriya Karyalaya Parisar,
Lodhi Road, New Delhi-110 003.
2. Government of India
Through
Department of Personnel and Training
Ministry of Personnel, Public Grievances and Pension
Block No. 12, Kendriya Karyalaya Parisar,
Lodhi Road, New Delhi-110 003.
-Respondents
(By Advocate: Shri S.M. Arif)
ORDER
Per Sudhir Kumar, Member (A):
The applicant before us has submitted that even though he belongs to 'AHIR' community, which falls under the category of OBC, and had certificates to that effect before appearing at the Combined Higher Secondary Level (10+2) Examination, 2013 conducted by the Respondent No.1-Staff Selection Commission (SSC, in short) even though he had qualified in the said exam, but the respondents changed his category 2 OA No-521/2015 from OBC to General category unilaterally, without affording him any opportunity of being heard. Hence this OA.
2. The first OBC certificate in favour of the applicant had been issued on 23.11.2009 through Annexure-A. On 20.07.2013, the respondents published in the Employment News/Rozgar Samachar the Notice for conducting the aforesaid examination with the closing date being 16.08.2013. The applicant submitted his application form duly indicating his category as OBC, and as proof of that he has filed Annexure-C, the online confirmation of registration of his application with SSC, in which in the Column related to Community, it was recorded as OBC. He has submitted that even when he was called for the Data Entry Speed Test and Typing Test on Computer through Annexure-D dated 21.03.2014, his category as coded in OMR sheet was recognized to be that of OBC. However, though he was later declared successful with 126.75 marks, as per the result declared by the respondent No.1-SSC through Annexure-E, and he had also submitted another OBC certificate dated 27.05.2014, he was not finally selected. He has, therefore, impugned that his candidature was never rejected in writing, and no communication of any type was issued to him, and even though he had represented to the respondents on 10.06.2014 with relevant extracts of the results uploaded on the website of the respondent No.1 SCC, but still he has not been declared successful.
3. The applicant has assailed the actions of the SSC on the ground that they are against the very basic principles of law and natural justice, 3 OA No-521/2015 and that for no fault of his, the SSC had switched his category, even though he had qualified on merit, and had rightfully earned his being qualified to the job/service for which he had applied for. He has further taken the ground that when all the required information had been duly acknowledged by the respondents before the last cut-off date for submission of applications, the actions of the SSC had in an illegal and arbitrary manner prejudiced his career, leading to his having been victimised for no fault of his, without having been given even an opportunity of hearing.
4. The applicant has further taken the ground that he belongs to a well recognized OBC reservation category, which category of his is by birth, the benefit of OBC reservations cannot be denied to him on any flimsy ground. He had, therefore, taken the ground that there is an error apparent on the face of the decision of the SSC, which was defective, and he had sought to invoke the jurisdiction of this Tribunal on the ground of illegality, irrationality and procedural impropriety by the SSC. In the result, he had prayed for the following reliefs:-
"a) Quash and set aside the results declared by SSC in Combined Higher Secondary Level (10+2) Examination, 2013 with respect to the applicant;
b) Direct the Respondents to accept the candidature of applicant as OBC candidate in Combined Higher Secondary Level (10+2) Examination, 2013 conducted by SSC;
c) Declare the Applicant to be qualified with respect to Combined Higher Secondary Level (10+2) Examination, 2013 in OBC category;
d) Direct the Respondents to release the revised results with respect to Applicant;4
OA No-521/2015
e) Direct the Respondents to issue appropriate appointment letter to the Applicant;
f) Award the costs of the application in favour of the applicant;
g) And/or pass such other/further direction(s) as this Hon'ble Tribunal may deem fit and proper in the interest of justice".
5. It so happened that the counter reply was not filed by the respondents on many occasions and that led to the applicant filing an MA No. 3496/2015 seeking directions in the nature of forfeiting the right of the respondents under Rule-31 of the Central Administrative Tribunal Rules of Practice, 1993. On filing of this MA on 13.10.2015, this case, which had been earlier ordered to be listed before the Registrar's Court for completion of pleadings, was listed before the Bench on 15.10.2015, when notices were issued in that MA. However, when the case was called on 03.12.2015, learned counsel for the respondents submitted that even though he had not been able to file the counter reply, he was prepared to argue the case, and advance his arguments. Therefore, the arguments were heard and case was reserved for orders. Learned counsel for the respondents was directed to file his written submissions, which he subsequently filed on 07.12.2015, after having served a copy of the same upon the counsel for the applicant. The applicant thereafter did not file any written arguments or submissions from his side.
6. Heard. As was noted in the order sheet dated 03.12.2015 itself, learned counsel for the applicant had relied upon the judgments in the cases of Dolly Chhanda vs. Chairman, JEE & Ors. (2005) 9 SCC 779 5 OA No-521/2015 and Charles K. Skaria and Others vs. Dr. C. Mathew and Others (1980) 2 SCC 752, and had tried to make out a case that the respondents had voluntarily chosen to change the reservation category of the applicant. He had submitted that in the case of Dolly Chhanda (supra), the Hon'ble Supreme Court has held as follows:-
"9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29-6-2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal."
(Emphasis supplied).
7. He had further relied upon the judgment in the case of Charles K. Skaria and Others (supra), in para-24 of which the Hon'ble Supreme Court had ordered as follows:-
"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 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 6 OA No-521/2015 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 commonsense is not inimical to interpreting and applying the guidelines therein once this position is plain the addition of special marks was basic justice to proficiency measured by marks."
(Emphasis supplied).
8. His submission was that when the applicant belongs to a well known OBC caste, and he has submitted his Non-Creamy Layer OBC Certificate dated 23.11.2009 (Annexure-A), and had later submitted another Non-Creamy Layer OBC certificate dated 27.05.2014 (Annexure- F) through his representation dated 10.06.2014, the respondents ought to have taken notice of those two documents, and ought not to have considered the case of the applicant in the UR category, as they did.
9. Per contra, learned counsel for the respondents submitted that as on the cut-off date of 16.08.2013, the applicant was not in possession of a less than three years old Non-Creamy Layer OBC certificate, as the Non-Creamy Layer OBC certificate dated 23.11.2009 was older than three years, and was nearly four years old as on the cut off date of 16.08.2013, and the second Non-Creamy Layer OBC certificate obtained by him was issued on 27.05.2014, much after the whole process of selection was over, and the applicant had only submitted it with the representation dated 10.06.2014, which could not have been considered after the selection process was over. He had submitted that because the applicant himself was aware that his first OBC Non-Creamy Layer certificate was of 7 OA No-521/2015 more than three years old, issued nearly four years prior to the cut-off date, at the time of undertaking skilled test examination on 07.04.2014, for which he had been called through Annexure-D dated 21.03.2014, the applicant had himself given an undertaking requesting for his candidature to be treated in the General (UR) category, which he had produced to be taken on record, and which stated as follows:-
"With reference to my candidature for the above mentioned examination, I, Sagar Yadav Roll No. 2201200922 undertake that although I applied and qualified written part of examination in OBC category. But I could not furnish the OBC Certificate in the prescribed Proforma for Central Govt. Offices issued by the Competent Authority between 29.04.2014 to till date as per annexure VII of the Notice of the said examination.
It is, therefore, requested that my category may be treated as UR i.e., (General).
I will not claim for OBC status in future. Decision taken by the Commission regarding my candidature will be acceptable to me".
(Emphasis supplied)
10. The learned counsel for the respondents had, therefore, submitted that the submissions made by the applicant are without any merit, and actually amount to falsehoods, as he had suppressed a vital piece of information regarding the undertaking voluntarily given by him on 07.04.2014 to the SSC. Therefore, he had submitted that the OA does not lie, and the applicant does not deserve any indulgence of this Tribunal.
11. We have considered the facts and the law concerning this case. The applicant himself being aware of the legal position that he ought to have been in possession of a Non-Creamy Layer OBC certificate, which should 8 OA No-521/2015 have been issued within three years prior to the cut-off date for receipt of applications for the examination, he had voluntarily given an undertaking on 07.04.2014 as reproduced above. In such a case, it appears that none of the two judgments cited by the learned counsel for the applicant in Dolly Chhanda (supra) and Charles K. Skaria and Others (supra) would enure any benefit to him. Dolly Chhanda's case (supra) was a case of admission to the IITs through Joint Entrance Examination, 2003, and the Hon'ble Apex Court had noticed that the mistake in her case was committed while issuing the first certificate on 29.06.2013, but that she had later produced a correct certificate at the stage of second counselling, and the benefit of this correct certificate produced by her could not be denied to her. In the instant case, the applicant could not produce any Non-Creamy Layer OBC certificate valid on the date of the Skilled Test held on 07.04.2014, and had voluntarily opted out the OBC category, therefore, the benefit of this judgment cannot be granted to him.
12. Charles K. Skaria and Others's case (supra) was also a case of admission to the Medical Colleges of the University of Kerala State in which the Hon'ble Apex Court had, as reproduced above, stated that when there was a delay in issuance of degrees and mark sheets etc. by the Universities themselves, since a Prospectus is not a scripture, and common sense is not inimical to interpreting and applying the guidelines therein, the addition of special marks granted by the University should have been taken into account to judge the proficiency of the candidates when it was being measured by marks alone. It is clear that the facts of 9 OA No-521/2015 the two cases being entirely different, this judgment would also not enure any benefit to the applicant.
13. The reservation for OBCs is neither by birth, nor quantitative, and is only qualitative, and as was held by a Nine-Judges' Bench of the Hon'ble Apex Court in Indra Sawhney vs. Union of India AIR 1993 SC 477, the OBC reservation is only available to those people who are not floating in the creamy layer of OBCs, and who have obtained the certificate for being below the creamy layer. The time limit of three years having been prescribed is a reasonable time limit, which has been upheld in a number of cases by the Hon'ble Supreme Court also, as in a period of more than three years, people who were earlier below the creamy layer may have moved into the creamy layer, and vice-versa is also possible in some cases, though they may be exceptional, and few and far between, and hence the respondents cannot be faulted for applying their Rule across the board to all applicants that the Non-Creamy Layer OBC certificate possessed by them should have been issued within three years of the last date/cut-off date for filing of the applications.
14. The applicant cannot also be allowed to plead the ground in Para 5.7 of the OA that his OBC reservation qualification is by birth, as this aspect or possibility has completely been negated by the Hon'ble Apex Court in its 9 Judges' Bench judgment in Indra Sawhney vs. Union of India (supra), holding that reservation shall not be available to all OBCs by birth, and shall be available only to those below the prescribed cut-off 10 OA No-521/2015 line separating the Non-Creamy Layer people from those floating in the Creamy Layer of the OBC Castes.
15. Therefore, there is no merit in the present OA, and the same is, therefore, dismissed but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.