Gujarat High Court
Niravkumar Shivabhai Chaudhari vs State Of Gujarat on 14 July, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18914 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NIRAVKUMAR SHIVABHAI CHAUDHARI
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR ANAND L SHARMA(1714) for the Petitioner(s) No. 1
MR. JAYNEEL PARIKH, AGP(99) for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 14/07/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Anand Sharma for the petitioner, learned advocate Mr. Premal Joshi for the respondent No.2 and learned Assistant Page 1 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 Government Pleader Mr. Jayneel Parikh for the respondent-State through video conference.
2. Rule returnable forthwith. Learned advocate Mr. Premal Joshi waives service of notice of rule for and on behalf of respondent No.2 and learned Assistant Government Pleader Mr. Jayneel Parikh waives service of notice of rule for and on behalf of respondent-State.
3. By this petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) Your Lordships may be pleased to declare the action on the part of respondent authorities in not considering the candidature of the petitioner against General Category vacancies despite the fact that he had secured 171 marks and the cut off marks for the General Category is 163 marks and despite the fact that he has not availed of any concession except concession in respect of fee, as illegal arbitrary and unconstitutional.
(B) Be pleased to direct the
respondent authorities to consider
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the candidature of the petitioner against General Category and offer appointment to the petitioner to the post of Deputy Section Officer/Deputy Mamlatdar on the basis of his merit, pursuant to the advertisement issued by the GPSC, annexed at Annexure A. (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider the Certificate of Non creamy Layer as valid and to consider the candidature of the petitioner and offer appointment to him to the post of Deputy Section Officer/Deputy Mamlatdar on the basis of his merit, pursuant to the advertisement issued by the GPSC, annexed at Annexure A. (D) Pending admission disposal and final hearing of present petition the Hon'ble Court may be pleased to direct the respondent authorities to keep one post vacant and make the appointments already made subject to result of the petition.
(E) Be pleased to grant such other and further reliefs as may be deemed just and proper by the Hon'ble Court in the facts and circumstances of the case."
4. The brief facts of the case are that the petitioner applied for the post of Deputy Section Officer/ Deputy Mamlatdar in Secretariat Department, Gujarat Legislature Secretariat Page 3 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 pursuant to the advertisement No.51/2014-15 issued by the Gujarat Public Service Commission (hereinafter referred to as "GPSC"). 4.1 The petitioner who belongs to Socially and Economically Backward Class (hereinafter referred to as "SEBC") appeared in the preliminary examination and was declared successful. As per the Examination Rules of GPSC, successful candidates in the preliminary examination were required to apply again for admission to the main examination. The petitioner, accordingly, applied for admission to the main examination and he was provisionally permitted to appear in the main written examination held on 28.05.2016. The petitioner, thereafter, received a letter dated 20.06.2016 that on or before 01.07.2016 to provide the certificate issued for the period from 01.04.2014 to 31.03.2015 for SEBC certifying that the petitioner does not belong to Creamy Layer. The petitioner submitted his Certificate dated 27.04.2015 alongwith letter dated Page 4 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 24.06.2016 as his earlier certificate was wrongly dated 23.03.2015.
4.2 According to the petitioner, the petitioner secured 171 marks in the main written examination, which was more than the cut off marks for general category, but the name of the petitioner was included in the list published on 03.11.2016 notifying the names of the candidates, who are declared to be disqualified alongwith the reasons for disqualification. As per the said list of disqualified candidates, the name of the petitioner appears at Serial No.58 with a reason that the petitioner did not submit Non Creamy Layer Certificate (hereinafter referred to as "NCLC"). The petitioner, therefore, made a representation dated 09.11.2016 requesting the GPSC to consider his certificate No.8670 and accordingly declare him as a qualified candidate. Along with the representation, the petitioner submitted certificate from the Mamlatdar, Idar verifying the fact that NCLC No.8670 was issued Page 5 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 on 23.03.2015. The petitioner, thereafter, again made a representation dated 26.01.2017 followed by representation dated 30.08.2017 requesting GPSC to consider his case. However no response was received, and therefore, the petitioner has filed this petition.
5. Learned advocate Mr. Sharma appearing for the petitioner submitted that the case of the petitioner ought to have been considered by the GPSC against the further appointment in general category instead of reserved category, if the GPSC is of the opinion that valid NCLC submitted by the petitioner was not received within prescribed time limit.
5.1 Learned advocate Mr. Sharma relied upon the decision of the Hon'ble Supreme Court in case of R. K. Sabharwal and others vs. State of Punjab and others1, in support of his submission as the petitioner has secured more marks than the cut 1 1995 (2) SCC 745 Page 6 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 off marks prescribed for the general category candidate, he ought to have been considered in general category.
5.2 Learned advocate Mr. Sharma also submitted that NCLC No.8670 of 2015 was provided by the petitioner alongwith his representation dated 09.11.2016 immediately after the publication of the list on 03.11.2016, containing the names of the candidates candidature was not considered for reasons stated therein. It was therefore submitted that the GPSC ought to have reconsidered the decision of disqualifying the petitioner as the petitioner provided the copy of the Certificate No.8670 referred to in the letter dated 20.06.2016 of the GPSC alongwith the supporting documents from the office of Mamlatdar that the certificate was issued prior to 31.03.2015.
5.3 It was, further, submitted that the GPSC has not doubted the genuineness of the NCLC provided Page 7 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 by the petitioner, and therefore, the candidature of the petitioner ought to have been considered by the GPSC on submission of the certificate mentioned in his application.
5.4 Learned advocate Mr. Sharma also relied upon the decision of the Division Bench in case of Gujarat Public Service Commission v. Prashant Dilipbhai Sachaniya and others in Letters Patent Appeal No.1221 of 2015 dated 10.09.2015 wherein it is held that while considering the factum of the non submission of NCLC by the concerned candidate at the time of on-line application, if the genuineness of certificate is not in doubt, such case has to be considered.
5.5 Learned advocate Mr. Sharma, therefore, submitted that the on both the grounds for considering the petitioner qualified for general category or in alternative the certificate produced by the petitioner not being doubted issued prior to 31.03.2015, the case of the Page 8 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 petitioner should have been considered as qualified candidate in the SEBC category by respondent- GPSC.
5.6 Learned advocate Mr. Sharma also relied upon the decision of the Hon'ble Supreme Court in case of Karan Singh Yadav vs. Govt. of NCT of Delhi & Ors. in Special Leave To Appeal (C) No.14948 of 2016 dated 24th January, 2020 wherein the Hon'ble Apex Court has referred the matter to the Larger Bench of three Judges to consider the earlier decision in case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another2 in view of the earlier decision of the Hon'ble Supreme Court in case of Rakesh Kumar Sharma v. State (NCT of Delhi) & ors.3. It was submitted by learned advocate Mr. Sharma that the decision of that matter is pending for consideration before the Larger Bench. Learned advocate Mr. Sharma also relied upon the decision of the Co-ordinate Bench in case of Narendra 2 (2016) 4 SCC 754 3 (2013) 11 SCC 58 Page 9 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 Ridha Ram Junawa v. Vadodara Municipal Corporation in Special Civil Application No.8753 of 2020 rendered on 15.06.2021, in support of his submission that the GPSC ought to have treated the petitioner as a candidate of general category and name of the petitioner ought to have been included in the list of qualified candidates of general category. It was submitted that in the facts of the case before the Court, the petitioner Narendra Ridha Ram Junawa could not produce caste certificate of the SEBC issued by the competent authority of State Government within the prescribed time limit but he secured more marks than the cut off marks prescribed for the general category candidates and accordingly, this Court permitted the respondent-Municipal Corporation to treat the petitioner as a candidate of general category.
5.7 Reliance was also placed on the decision of the Division Bench in case of Gujarat Public Service Commission v. Niravkumar Dilipbhai Page 10 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 Makwana and others in Letters Patent Appeal No.1103 of 2015 in Special Civil Application No.1100 of 2015 and allied matters rendered on 15.03.2017 to submit that the Division Bench after considering the decision rendered by the Apex Court as well as this Court held that the State Government has framed the reservation policy by Government Resolution dated 11.02.1986 and circulars dated 29.01.2020 and 23.07.2004 and in view of the statutory provisions of Recruitment Rules of 1967, Rules of 2007, 2008 and 2009, all the candidates belonging to reserved category if they avail the benefit of age relaxation, the same is to be considered as relaxation in the standard and therefore, such candidate who got benefit of age relaxation were held not entitled to be considered in general category and their case was required to be considered for reserved category case only. It was therefore, held by the Division Bench that decision of the Apex Court in case of Jitendra Kumar Singh and another v. State of Uttar Pradesh Page 11 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 and others4 would not be applicable in facts of the case and relaxation of age in view of the policy of the State Government was considered as relaxation in standard and same was not considered to be concession. It was therefore, submitted that the Division Bench has not considered the aspect of the candidate securing more marks than the candidates of general category and to permit such candidate to get admission in general category, if all other parameters are not disturbed.
6. On the other hand, learned advocate Mr. Joshi appearing for the GPSC submitted that as per the Clause- 6 of the advertisement, the petitioner was required to give all the necessary certificates along with the application form, failing which, the application of the petitioner could not have been considered.
6.1 It was submitted that however, in view of the 4 (2010) 3 SCC 119 Page 12 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 subsequent Circular dated 28.10.2016, one more chance was given to the candidates who applied pursuant to the said Advertisement No.51/2014-15 to supply the requisite documents. It was submitted that the GPSC permitted all the applicants to appear in the preliminary examination and subsequently, provisionally permitted the candidates to appear in the main examination so as to expedite the process of declaring results.
6.2 Learned advocate Mr. Joshi relied upon the following averments made in the further affidavit-in-reply filed on behalf of the respondent No.2:
"2. I state and submit that the Commission invited on-line application through advertisement No.51/2014-15 for recruitment to post of Deputy Section Officer/Deputy Mamlatdar. The preliminary test was conducted on 21/06/2015. The result of the same was published on 7/4/2016. The Petitioner was declared successful in the preliminary test. The GPSC provisionally permitted all candidates who were declared successful in the Page 13 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 preliminary test to appear in the main written examination without scrutiny of the application and requisite documents/certificates. Accordingly, the petitioner was permitted to appear in the main written examination on a provisional basis subject to scrutiny of his application and necessary documents.
3. I state and submit that before declaring the result of main written examination GPSC scrutinize the application of all candidates. During scrutiny if any candidate does not satisfy the condition of the advertisement, the candidature of such candidate is cancelled.
4. As per condition No.6(3) of the advertisement the candidate has to produce non-creamy layer certificate in the prescribed form for the income of financial year 2013-14 completed on 31/3/2014. During scrutiny of application it was found that the petitioner did not produce the said certificate along with his application and therefore vide letter dated 24/06/2016 the petitioner was asked to produce non-creamy layer certificate No.8670/2015 dated 23/3/2015 on or before 1/7/2016 as mentioned in his online application form. In response to that the petitioner vide letter dated 24/6/2016 informed that by mistake while registering the application the certificate number and the date has been wrongly mentioned. Again, he submitted non-creamy layer certificate No.13201/2015 dated 27/4/2015, which was produced along with his representation dated 24/06/2016 but did not produce the valid non-creamy layer Page 14 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 certificate No.8670/2015 dated 23/3/2015, as per instruction no. 6(2) to 6(5) mentioned in the Advt. No.51/2014-15. The certificate dated 27/04/2015 produced by the candidate is not valid according to the condition of advertisement.
5. I state and submit that the candidates declared successful in the preliminary test are admitted to the main examination subject to fulfilling of the conditions of recruitment rules and the advertisement. The Commission provisionally admitted the candidates who were successful in the preliminary test in the main written examination and asked the candidates to submit the requisite documents for scrutiny. Scrutiny of the documents was carried out while the main examination was being conducted to ensure that the recruitment process is completed as early as possible. It is submitted that a candidate should be eligible in all respect before his name is included in the final result. According to the policy of State Government, if a reserved category candidate gets selected in the merit of General Category and he has not availed any of the reservation benefits available to him like relaxation in age limit etc. he needs to be adjusted against a general category seat. For this purpose, it needs to be ascertained weather a candidate belongs to the general category or reserved category before preparing the final result. Hence, scrutiny of application needs to be completed before preparing the final result. After completing the scrutiny of documents, the commission publishes the list of "Ineligible Candidates". At Page 15 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 the time of scrutiny or after scrutiny is completed, it is not known how much marks candidate has obtained, otherwise it would violate the principles of confidentially of the result. Therefore, at the time of scrutiny, it is not known whether a reserved category candidate is being selected in the general category merit or in the merit of his respective reservation category. The commission has to ensure that a candidate belongs to the reservation category, which he has claimed at the time of filing his application form.
6. I state and submit that the next step after publishing the list of ineligible candidates is the preparation of final result considering the inter-se merit of the "Eligible candidates.
7. I state and submit that the petitioner did not submit non-creamy layer certificate in time for the income of financial year dated 2013-14 completed on 31/3/2014. The petitioner vide letter dated 9/11/2016 submitted duplicate non-creamy layer certificate No.8670/2015. The said certificate was submitted after the result was published on 28/10/2016 and therefore the same cannot be considered."
6.3 Relying upon the above averments, it was submitted that the petitioner was permitted to appear in the main examination on provisional basis subject to scrutiny of his necessary Page 16 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 documents.
6.4 Learned advocate Mr. Joshi further submitted that the petitioner has failed to produce the requisite NCLC within the prescribed time limit, and therefore, the name of the petitioner is included in the list of disqualified persons. 6.5 Learned advocate Mr. Joshi relied upon the decision of the Hon'ble Supreme Court in case of J & K Public Service Commission v. Israr Ahmad and Others5, in support of his submission that candidate must stake his claim at the outset whether he has applied in the SEBC or general category and there cannot be change in status later on after passing the preliminary examination, and therefore, the petitioner cannot be considered against the general category even though he has applied for the SEBC category only on the ground of securing more marks than the cut off marks by the general category candidate. 5 (2005) 12 SCC 498 Page 17 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 6.6 Learned advocate Mr. Joshi also submitted that case of the petitioner is therefore, rightly not considered by the GPSC in general category, otherwise it would amount to discrimination qua other candidates who failed to produce the requisite documents but secured more marks than cut off marks in general category candidate. It was, therefore, submitted that as petitioner failed to produce NCLC during prescribed time limit, and therefore, as held by the Hon'ble Supreme Court in case of Rakesh Kumar Sharma (supra), the certificate produced by the petitioner after his name was included in the list of disqualified candidate cannot be considered. It was, therefore, submitted that the petition deserves to be dismissed on both the grounds i.e. the petitioner cannot be considered as a general category candidate and as the petitioner did not submit the requisite NCLC within time, petitioner can not be considered a qualified candidate.
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7. Having heard learned advocates for the respective parties and having gone through the material placed on record, it emerges from the facts of the case that the petitioner was successful candidate who cleared in preliminary examination as well as main examination held by the GPSC for recruitment for the post of Deputy Section Officer/Deputy Mamlatdar as per the Advertisement No.51/2014-15. The petitioner submitted the NCLC No.8670 of 2015 pursuant to the letter dated 20.06.2016 received from the GPSC along with the letter dated 24.06.2016. It appears that there is a confusion with regard to the date of such certificate because as per the petitioner, certificate was issued on 23.03.2015 prior to 31.03.2015 and as per the letter dated 24.04.2016, it is stated that by mistake the date was inserted as 23.03.2015 but the correct date is 27.04.2015. Thus, prior to 1st July, 2016, which was the cut off date prescribed by the GPSC, the petitioner has submitted a certificate Page 19 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 dated 27.04.2015, which was issued after 31.03.2015.
8. It also emerges from the record that the petitioner secured 171 marks in the main examination wherein he was permitted by the GPSC to appear on provisional basis subject to the verification of the documents to be supplied alongwith application.
9. Considering the NCLC submitted by the petitioner, GPSC included the name of the petitioner in disqualified candidate declared on 03.11.2016 on the ground that the petitioner did not submit the NCLC within the stipulated time period. The petitioner, thereafter, by letter dated 09.11.2016 subsequently produced the correct NCLC dated 23.03.2015 alongwith the extract from the register of Mamlatdar stating that such certificate was issued on 23.03.2015 prior to 31.03.2015 for the year 2013-14 to point out that the petitioner was not belonging to Page 20 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 Creamy Layer.
10. There is no dispute with regard to the genuineness of the certificate issued by the petitioner. The only grievance raised by the GPSC is that the petitioner did not submit the NCLC within the stipulated time.
11. There is also no dispute that the petitioner secured 171 marks in the main examination which is more than the cut off marks prescribed for the general category candidate, therefore the question arises as to whether the name of the petitioner could have been included in the select list of the general category though the petitioner applied for the post under reserved category of SEBC when according to the GPSC, the petitioner failed to submit NCLC within the prescribed time limit.
12. With a view to answer this question, two aspects are required to be considered. Firstly, Page 21 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 that whether a candidate who has opted for reserved category and failed to comply with the conditions prescribed for availing the status of the reserved category can be considered as general category candidate or not when such candidate has scored more marks than cut off marks of the general category and secondly, whether the petitioner has bonafidely submitted the Non Creamy Layer Certificate within the prescribed time but such certificate pertains to the different period and thereafter subsequently produced the certificate, which was required to be filed alongwith the application form and when there is no challenge to the genuineness of the NCLC by the competent authority then whether the petitioner should be included in the list of disqualified candidate or not.
13. With regard to the second question, it is true that the petitioner did not submit the NCLC required as per the condition No.6 of the said advertisement in time prescribed by the GPSC Page 22 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 prior to 01.07.2016. Therefore, the GPSC has rightly not taken into consideration the subsequent production of the certificate dated 23.03.2015 by the petitioner along with letter dated 09.11.2016 after the name of the petitioner was included in the list of disqualified candidates. Therefore, it can not be said that the petitioner has submitted the NCLC within time. This view is based upon the decision of the Hon'ble Supreme Court in case of Rakesh Kumar Sharma (supra)and in view of the fact that if such practice is permitted then there is no end to the finality of the process of recruitment as the GPSC is required to consider the large number of candidates with similar issue of providing the certificates. Therefore, the cut off date prescribed by the GPSC is required to be adhered to scrupulously and no candidate can be permitted to submit the document after the cut off date. The petitioner was aware about the cut off date prescribed by the GPSC, and therefore, case of the petitioner cannot be considered after such Page 23 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 cut off date. Even otherwise such issue is yet to be decided by the larger Bench of the Hon'ble Apex Court.
14. However, with regard to first question for considering the case of the petitioner in general category, the petitioner has secured more marks than the cut off marks prescribed for the general category. Therefore, once the petitioner has applied in the category of SEBC and could not submit the requisite document within the time prescribed, and petitioner secured the more marks than cut off marks in general category, the case of the petitioner is required to be considered being a qualified candidate under the general category is no more res integra. In view of the decision of the Co-ordinate Bench of this Court in case of Narendra Ridha Ram Junawa (supra) wherein after considering the decision of the Hon'ble Supreme Court in case of A.P. Public Service Commission v/s. Baloji Badhavath6, in the 6 (2009) 5 SCC 1 Page 24 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 case of Rajesh Kumar Daria v/s. Rajasthan Public Service Commission7 and in the case of U.P. Power Corporation Limited and Another v/s Nitin Kumar and others, an unreported judgment of the Division Bench of Allahabad High Court in Special Appeal No.310 of 2015, this Court has held that the petitioner is required to be considered as a candidate of general category. It is held as under:
"The question therefore arise as to whether the petitioner who had applied for the post as a reserved category candidate can be treated as an open category candidate. To answer this issue, reference be made to several judgments of the Supreme Court first being A.P.Public Service Commission v/s. Baloji Badhavath, reported in 2009 (5) SCC 1, wherein the Apex Court had also taken into consideration the question that if reserved category candidates are meritorious enough to compete with the open category candidates then they are to be recruited in that category and the candidates below them will have to be considered for appointment in the reserved category. Specifically addressing this issue, the Apex Court in para-37 has held as under:-
"37. One other aspect of the matter must be kept in mind.
If category-wise statement is
prepared, as has been directed
by High Court, it may
detrimental to the interest of
7 (2007) 8 SCC 785
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the meritorious candidates
belonging to the reserved
categories. The reserved
category candidates have to
options. If they are
meritorious enough to compete
with the open category
candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well-settled principle of law as has been laid down by this Court in several decisions. [See for example, Union of India and Anr. V/s. Satya Prakash and Ors.. 2006 4 SCC 550, para 18 to 20, Ritesh R. Shah V/s.
Y.L.Yamul, 1996 2 SCR 695 at
700-701, R.K. Daria V/s.
Rajasthan Public Service
Commission, 2007 8 SCC 785,
[para 9]
In
case of Rajesh Kumar Daria
v/s. Rajasthan Public Service
Commission, reported in 2007 (8) SCC 785, the Supreme Court was dealing with issue of reservation, but the issue before the Apex Court in this case was pertaining to horizontal reservation within the vertical reservation however, with regards to the competing of the reserved category candidates with the open category candidates, the Supreme Court in para- 8 has held as under:-
8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social Page 26 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 reservations in favour of SC, ST and OBC under Art. 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class.
Therefore, if the number of SC
candidates, who by their own
merit, get selected to open
competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab 1995 2 SCC 745, Union of India vs. Virpal Singh Chauvan 1995 6 SCC 684 and Ritesh R. Sah v/s. Dr.Y.L. Yamul 1996 3 SCC 253]. (Emphasis Supplied.). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper Page 27 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of C/SCA/8753/2020 JUDGMENT DATED: 15/06/2021 the list relating to Scheduled Castes.
To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate.
On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in Page 28 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates.
[But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.] In case of U.P. Power Corporation Limited and Another v/s. Nitin Kumar and others. In unreported judgment, the Division Bench of Allahbad High Court in Special Appeal No.310 of 2015 had examined the case. The issue therein was quite similar to the present issue and while examining the provision of Section 3(6) of Uttar Pradesh Public Services (Reserved for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act. 1994, the Court has held as under:-
....Section 3 (6) is a statutory recognition of the principle that if a candidate belonging to a reserved category is selected on the basis of merit in open competition with general candidates, such a candidate is to be adjusted not against the vacancies reserved for the reserved category to which the candidate belongs but against Page 29 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 the unreserved seats. This proceeds on the foundation that where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of C/SCA/8753/2020 JUDGMENT DATED:
15/06/2021 reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories. An unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit. Hence, the principle which is embodied in Section 3 (6) is not confined in its application only at the stage when the final select list is to be drawn up. If the submission of the appellants were to be accepted, that would result in seriously absurd consequences. As the learned Single Judge noted, in the present case itself, the petitioners who belong to the OBC category had in fact secured higher marks in the written test than the last short-listed Page 30 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 candidate from the unreserved category. However, they were sought to be excluded from short-listing for the unreserved posts only on the ground that as a candidate who had declared himself or herself to be of a reserved category, that candidate would have to be excluded from shortlisting from the unreserved category even if on the basis of the position in merit, such a candidate would otherwise fall in the list of short-listed candidates in the open or unreserved category. Such a consequence would not be permissible in law....."
[10] Considering the various pronouncements as narrated hereinabove, the Court is of the opinion that the respondent- corporation ought go have treated the candidature of the petitioner as open category candidate. From the documents on record, the result declared by the respondent-corporation it is apparent that in the provisional list of candidates qualified for the selection list for the post of Staff Nurse, the petitioner was at Sr.No.9 having secured 131 marks, wherein as other candidates of general category whose names appeared in the selection list are shown to have received marks 129, 128.5, 125.5 etc. Meaning thereby, marks which are lesser than the marks of the present petitioner, the petitioner has received the marks enough to compete with the candidates of general category and ought to have treated as candidate of general category.Page 31 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022
C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 [10.1] As the petitioner is to be treated as candidate of general category as a necessary corollary, the requirement of caste certificate of petitioner being candidate of reserved category from an appropriate Government, which is the condition prescribed in the advertisement, such requirement will fall into insignificance.
[11] The other impediment against the petitioner would be benefit the petitioner received while making an application for having paid Rs.100/- as candidate belonging to reserved category against the payment of Rs.200/- towards the examination fees to be paid by general category candidate. This impediment can be overlooked by this Court as it is only the ministerial requirement which the candidate can be called upon to fulfill in view of the special facts of this case particularly when the after the selection process was concluded against 26 posts advertised for general category, 22 candidates were selected and out of which till date only 19 have joined and therefore, there is still a vacancy available in the general category. In view of the aforesaid, the requirement of payment of Rs.200/-
examination fees may be permitted to be regularized by the respondent-
corporation.
[12] In light of the observations made hereinabove, the respondent-corporation may treat the petitioner as candidate of general category and the petitioner to be given an opportunity from the stage next to clearing of written examination and permitted to participate in the subsequent process namely the document Page 32 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 verification and any other process that is adopted by the respondent-corporation pursuant to the advertisement for recruitment No.1030/2017-2018 for the post of Staff Nurse and take decision in accordance with law. It is open for the respondent- corporation to adopt special process of documentary verification and acceptance of deficit fees from the petitioner. The exercise be undertaken by the respondent-corporation expeditiously."
15. In view of the above decision of the Co- ordinate Bench, reliance placed by the learned advocate Mr. Joshi on the decision of J & K Public Service Commission (supra) would not be applicable as the said decision was rendered in converse situation wherein change in status was denied to a candidate who after passing preliminary examination as a general category candidate claimed the benefit of reservation at the stage of main examination on the ground that the certificate was produced only at a later stage. In such facts the Supreme Court held as under:
"We have considered the rival contentions advanced by both the parties. The contention of the first Page 33 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs."
16. In the facts of the case, the petitioner applied as a SEBC candidate and produced NCLC certificate but belatedly. It is also not in dispute that the petitioner secured more marks than the cut off marks of candidates of general category. As held by the Division Bench in case Page 34 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 of Gujarat Public Service Commission (supra), GPSC is required to follow the reservation policy of the State Government, however, the person securing age relaxation under reservation policy cannot be considered in the general category but at the same time when all other parameters are not disturbed, then the candidates who belong to reserved category securing more marks than the cut off marks cannot be denied to be considered for selection in general category.
17. It is also necessary to consider that condition No.7 of the advertisement prescribes that if a person belonging to the reserved category secures more marks than the candidate of general category, then he would be considered in the general category. Therefore, the respondents are required to consider the petitioner in general category as the petitioner has secured more marks than the cut off marks for candidates of general category and all other parameters are not disturbed as the petitioner has not applied Page 35 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022 C/SCA/18914/2017 JUDGMENT DATED: 14/07/2021 on the basis of any other parameters of relaxation in the reserved category like age relaxation, experience etc. then that of the general category candidates.
18. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. The respondents are directed to include the name of the petitioner in the select list of the candidates and thereafter, pass the consequential order granting appointment to the petitioner at the place selected by him or any other nearby place available, within a period of 12 weeks from the date of receipt of this order.
19. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) SUYASH Page 36 of 36 Downloaded on : Sat Jan 15 23:55:17 IST 2022