Gujarat High Court
Union Of India & 3 vs Rakesh Kumar Jangid & on 22 July, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/10106/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10106 of 2014
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UNION OF INDIA & 3....Petitioner(s)
Versus
RAKESH KUMAR JANGID & 1....Respondent(s)
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Appearance:
MR MUKESH PATEL WITH MR RAVI KARNAVAT, ADVOCATES for the
Petitioner(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 22/07/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Railway authorities have challenged the judgment of the Central Administrative Tribunal, Ahmedabad dated 16 th September 2013 passed in OA No.6/2013. Brief facts are as under:
Respondent had applied for the post of Junior Account Assistant-cum-Typist and Clerk-cum-Typist in response to the Railway Board's advertisement dated 13.2.2010 for various posts. He claimed to belong to Socially and Educationally Backward Classes (SEBC/OBC). He did produce his caste certificate, but according to the Railway authorities, such certificate was not in proper format. His candidature was, therefore, rejected. He was Page 1 of 7 C/SCA/10106/2014 ORDER informed about the same vide communication dated 1.11.2012. He thereupon approached the Tribunal. The Tribunal by the impugned judgment, partially allowed his original application. The Tribunal was of the opinion that even if the candidate failed to establish his credential as OBC candidate, he cannot be totally kept out of consideration. If he was otherwise fulfilling all other qualifications, he ought to have been considered as a general candidate. On such basis, the Tribunal gave following directions:
"7. The Railway Board shall within one week from today conduct an examination to verify the typing ability of the applicant and if found suitable, shall process to examine his documents and if found suitable, then he shall be recommended for both the posts and the applicant will have an option to select to which post he wants. But if he is not found suitable in the typing examination then document may be examined and he may be recommended for the post of Junior Account Assistant. On receipt of the recommendation,the Railway shall issue order within the next two weeks. The whole exercise shall be completed within one month."
The Railway authorities approached the Tribunal in a review petition contending that typing test has to be cleared for both posts for which the candidate applied and the Tribunal recognizing such test only for one of them was an error. On such review petition, by order dated 22nd April 2014, the Tribunal made following clarification:
"The review is claimed for on the ground that the typing test is required for both the posts going by the notification and that if typing test is basic requirement for both the posts and if he is considered deficient in typing and he cannot be considered for both the posts. They would say that they require some more time that is one month for such formalities to be completed. There can Page 2 of 7 C/SCA/10106/2014 ORDER not be any doubt that if typing test is mandatory for both the tests then it shall be so."
Learned counsel Shri Mukesh Patel for the Railways vehemently contended that the respondent had applied for the said posts as an OBC candidate. When he failed to provide a proper caste certificate, his candidature was rightly rejected by the Railways. The Tribunal erred in allowing his original application. He drew our attention to various instructions contained in the said notice to contend that once a candidate belonging to any reserved category failed to substantiate the claim by producing proper documents, his candidature must be rejected. He relied on para 1.15 of the instructions which read as under:
"1.15 While all candidates irrespective of community may be considered against UR vacancies, however against the vacancies earmarked for specific community (SC/ST/OBC), only candidates belonging to that community/group will be considered. For this purpose, SC/ST/OBC candidates should furnish Caste Certificate from competent authorities as per the format given at Annexure 3 (for SC/ST candidates) and Annexure 4 (for OBC candidates). Further, in case of OBC candidates, the certificates should specifically indicate that the candidate does not belong to the Persons/Sections (Creamy Layer) mentioned in Col.3 of the Schedule of the Government of India, Department of Personnel and Training O.M.No.3601 2/22/9-Estt. (SCT) dated 08.09.03 & its subsequent revision through O.M.No.36033/3/2004-Estt. (Res.) dated 09.03.2004. The OBC candidate should enclose self declaration of non-creamy layer status in the proforma as given in Annexure 5. The candidates who indicate their community as SC or ST or OBC in their application form but do not enclose the caste certificate in the prescribed format will not be considered as eligible to appear in the examination."Page 3 of 7 C/SCA/10106/2014 ORDER
He also relied on para 6 of the instructions which provides for various grounds on which an application made by a candidate would be treated as invalid, one of them being "OBC certificate not in the prescribed format or without self declaration of creamy layer".
In our view, however, the Tribunal committed no error. It may be that the respondent claimed to belong to OBC category. His caste certificate though not disputed by the Railway authorities, it is stated that the same was not in prescribed format. For the purpose of this litigation, we proceed on the basis that the respondent failed to establish that he belonged to OBC category. That by itself would not disqualify him from applying for the post in question in general category seats. If a candidate claims to belong to reserved category but secures selection on open merits, even otherwise, his position cannot be counted towards reserved category. So much is well established through series of judgments of the Supreme Court and in particular in the case of R.K.Sabharwal v. State of Punjab, AIR 1995 SC1371. In the present case, all that the Tribunal did was to direct the Railway authorities to treat the respondent as a general category candidate and then to test his ability for the post in question. The Tribunal noted that against 53 vacancies, there are only 27 nominations sent by the Railway Recruitment Board. It was in this background that the Tribunal granted the above directions.
Instruction No.1.15 noted above must be read harmoniously. The instruction begin with a narration that all candidates irrespective of community may be considered against unreserved Page 4 of 7 C/SCA/10106/2014 ORDER vacancies. It is only when a candidate seeks benefits of reservation of either SC/ST or OBC that he has to back his claim with necessary documents and declarations. The last sentence of the said paragraph that the candidates who indicate their community as SC or ST or OBC in their application form but do not enclose the caste certificate in the prescribed format will not be considered as eligible, must be seen in light of the first sentence of the said paragraph which makes all candidates irrespective of their community eligible for unreserved vacancies. A candidate who claims to belong to reserved category but fails to produce necessary documents shall not be eligible for consideration against such reserved category, but would not surrender his right to be considered against unreserved vacancies. This is precisely what the Tribunal has done. This is precisely what the Railway authorities later on clarified in the circular dated 16.8.2011 stating as under:
"Revised format of application form and rejection letter for RRB examination was issued vide Board's letter No. E(RRB)/2005/25/14 dated 13.02.2008. Accordingly, application of an OBC candidate is rejected in line with Item No.06 of standardized rejection format which stipulates that "OBC certificate not in the prescribed format or without self declaration of non-creamy layer (for consideration of relaxation for OBC)".
2. It has been noticed that deficient OBC certificate or certificate not in prescribed format is one of the major grounds for rejection of applications by RRBs. The issue of rejection of OBC candidate's application on such ground was highlighted against cerntralized notifications issued in 2010, mainly at RRB/Bilaspur. References have also been received from various RRBs vide letters referred above seeking clarification whether the applications of OBC candidates, whose caste certificates are deficient or not in prescribed format and/or without self declaration of non-creamy Page 5 of 7 C/SCA/10106/2014 ORDER layer status, can be considered against General (Un-reserved) vacancy if they fulfill all the eligibility conditions as General (UR) candidates.
3. The matter has been examined in consultation with the concerned Directorate and it has been decided that candidates applying against reserved vacancies and/or seeking age-relaxation must furnish requisite caste certificate from the competent authority and self declaration of non-creamy layer status in the prescribed format along with the application form. Otherwise, their claim for reserved status should not be entertained and the candidature/application of such candidates, fulfilling all the eligibility conditions for General (Un-reserved) category, may be considered under General (UR) vacancy only."
It is true that this clarification was not available when the respondent applied for the post in question. Nevertheless, the interpretation adopted by the Tribunal of the existing rules and regulations was also quite reasonable. We would, therefore, not interfere in exercise of writ jurisdiction under Article 227 of the Constitution of India. The apprehension that the Tribunal in the original judgment put stress on typing skill only for one of the two posts must be allayed since in the review order, the Tribunal clearly provided that if the rules so provided, the same shall be the position.
Under the circumstances, the writ petition is dismissed.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) (vjn) Page 6 of 7 C/SCA/10106/2014 ORDER Page 7 of 7