Central Administrative Tribunal - Delhi
Karmender Kumar vs Uoi & Ors. Through on 3 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.2885/2011
Order reserved on 16.05.2012
Order pronounced on 03.11.2012
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Karmender Kumar
S/o Shri Daya Ram
R/o Vill & P.O. Pota,
District Mahender Garh,
Haryana-123027. -Applicant.
(By Advocate: Shri M.K.Bhardwaj)
Versus
UOI & Ors. Through
1. The Secretary,
Ministry of Personnel & Training,
Govt. of India, North Block,
New Delhi.
2. The Chairman,
Staff Selection Commission,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road, New Delhi.
3. The Secretary,
Staff Selection Commission,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road, New Delhi. -Respondents.
(By Advocate: Shri S.M.Arif)
ORDER
Shri Sudhir Kumar, Member (A):
The applicant of this OA is aggrieved by the respondents not having allocated him the Post/Department, consequent upon of his selection in the Combined Graduate Level Examination, 2010, and in their not finalizing his result along with other candidates, whose result was initially made provisional along with the applicant.
2. The respondents had issued from the Staff Selection Commission (SSC, in short) an Advertisement published in the Employment News/Rozgar Samachar dated 30.10.2010 for holding a two TIER Combined Graduate Level Examination, 2010, for recruitment to different posts for which Graduation from a recognized University is the minimum requirement, and closing date of applications was 01.10.2010. The applicant applied in response to that advertisement under OBC category, and was issued an Admit Card for appearing in the TIER I Examination scheduled on 16.05.2010, which date had been notified in the Advertisement itself. The applicant having qualified in the TIER-I Examination, he was called by the respondents to appear in the TIER-II Examination also, in which also he claims to have appeared under OBC category. These two examinations were to be followed by an interview/skill test, and the applicant was called to appear in the Skill Test also through Annexure A-2 dated 12.10.2010. At the time of the applicant appearing in the Skill Test, the respondents also scrutinized the documents of the candidates and the applicants original documents were also scrutinized.
3. As the OBC certificate produced by the applicant had been issued by the Naib Tehsildar, Kanina, Mehender Garh on 15.10.2008 through Annexure A-2B (page-20 of the OA), the respondents raised objections stating that the certificate issued by the Naib Tehsildar cannot be accepted as a valid certificate, in view of the specific requirements, as mentioned in Annexure A-VII of the Application Form. The applicant has submitted that the respondents have failed to notice that the certificate produced by him had been issued by an Executive Magistrate, and it was, therefore, a valid certificate. Subsequently on 15.11.2010, through Annexure A-3, the applicant had even got the said certificate countersigned by the Tehsildar, as well as by the Sub-Divisional Magistrate concerned on 23.11.2010.
4. After receiving the said certificate, the respondents initially treated the applicant provisionally as an OBC category candidate, but at the time of declaration of final result on 07.01.2011 through Annexure A-4, they treated his selection as on hold, as part of the results of the 142 candidates, whose cases had been kept in the provisional list, on the basis of inputs provided by the concerned regional offices, due to incomplete documentation and/or doubt about their meeting the eligibility conditions. These 142 candidates were advised to contact the concerned Regional office to ascertain the deficiency/doubt about their eligibility, and provide them with necessary documentation.
5. Aggrieved by this action of the respondents, the applicant approached the concerned authorities to know the exact reasons for their having treated his result also as provisional, along with the 141 others. He was informed that the matter was under consideration, and the needful would be done without any delay. Thereafter, on 08.07.2011 through impugned order Annexure A-1, the Respondents No.2 and 3 considered the held back 142 provisional cases of the said examination, and released the rank number/post/department in respect of 93 candidates, who had been declared to have been selected finally. The applicants name was not included among these 93 candidates declared as finally selected.
6. The applicant still made an attempt to know the exact reasons, and approached the Respondent No.2 through Electronic Media on the Social Media Web-site/Twitter, and was assured positive action, and was asked to make a representation stating his grievances. Encouraged by this, the applicant gave a representation on 17.07.2011 through Annexure A-5, along with a self attested copy of his OBC certificate (Annexure A-3), and a copy of the instructions issued by the Haryana Government laying down the guidelines regarding issuance of OBC certificates. The Respondent No.2 responded to this representation through Social Media Web-site/Twitter stating that the representation of the applicant had been received, but that the request made therein cannot be acceded to. As a result, the applicant is before us and has submitted that once he was accepted as an OBC category candidate, and the respondents had declared him selected along with the other identically placed persons, he could not have been discriminated against, and that the respondents have no justification to deprive him from appointment.
7. He has taken the ground that the objection raised by the respondents to the effect that the OBC certificate submitted by him was incorrect as being based on frivolous objections, since they were not aware of the fact that in the State of Haryana, the powers of the Executive Magistrate for issuance of such certificates have been conferred on the posts of Naib Tehsildar also, and that later even the Tehsildar, Mahender Garh as well as the SDM had countersigned the said certificate on 15.11.2010 and 23.11.2010 respectively. The applicant has assailed the actions of the respondents in their having acted in violation of the principles of natural justice, and not having assigned any reasons to discriminate against him, and that they have acted in violation of his rights under Articles of 14 and 16 of the Constitution of India, since he fulfills all the eligibility conditions for appointment against the post for which he had appeared at the said examination, and that the action of the respondents is highly illegal, arbitrary and unconstitutional. In the result, the applicant had prayed for the following reliefs:
(i) To direct the respondents to release rank no/allocation of posts and department to the applicant in view of his selection in Combined Graduate Level Examination, 2010.
(ii) To direct the respondents to declare the applicant finally selection as OBC category candidate on the basis of Combined Graduate Level Examination, 2010 and sent his dossiers to the concerned department as per his merit for appointment.
(iii) To allow the OA.
(iv) To award exemplary costs in favour of the applicant.
(v) To pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
8. The respondents filed their counter reply on 13.03.2012 submitting that when the documents were produced by the applicant at the time of the skill test, it was observed that he had failed to produce the OBC non creamy layer certificate which should have been got attested by an officer of seniority not below the rank of a Tehsildar. On that date, the applicants OBC non creamy layer certificate was found to have been attested only by the Naib Tehsildar, an officer lower in rank than the Tehsildar. They submitted that the applicant was given an opportunity to produce an OBC non creamy layer certificate issued before the cut off date by a Tehsildar, if he wants to be considered as an OBC candidate for recruitment. They also stated that in the meanwhile the applicant had given an undertaking to the respondents SSC that since he could not submit an OBC non creamy layer certificate issued by a Tehsildar before the cut off date, his candidature may be considered as an unreserved candidate. But as an unreserved candidate, he failed to make it to the Select List. The respondents had, therefore, denied any wrongdoing on their part, or to have acted in an arbitrary and discriminatory manner against the applicant.
9. It was submitted by the respondents that since the applicant did not fulfill the stipulated condition for consideration as an OBC candidate as per Annexure VII of the Employment Notice, his candidature as an OBC candidate was not considered as per the requirement of the notice, which is considered cardinal for conduct of the concerned examination by the respondents-SSC. It was pointed out that as per part-II of the instructions to the candidates given out in the employment notice itself, the candidature of any candidate is treated as provisional till the interview or skill test, as the scrutiny of the original documents is done only at the stage of interview or skill test, due to the very large number of applications at the initial stage of TIER-I Examination. It was submitted that the respondents-SSC scrutinize the testimonials and certificates of only those candidates, who make it to the interview, consequent upon those candidates having qualified the written test, and if they are then found to be ineligible due to non-fulfillment of the requisite stipulated conditions, their candidature stands cancelled.
10. It was submitted by the respondents that the applicant has in paras 4.4 and 4.5 of this OA wrongly equated a Naib Tehsildar with an Executive Magistrate, while a Naib Tehsildar is much smaller in rank than an Executive Magistrate. It was also submitted that the applicant had obtained the counter signature of a Tehsildar on a date which was beyond the crucial cut-off date of 02.03.2010, and, therefore, the non-creamy layer credentials claimed by the applicant were rightfully denied. They had also submitted that the applicant himself was well aware of the defect in his OBC category certificate, and it was only because of that that on his own accord he had given an undertaking to the Respondents-SSC that on account of his failure of submission of a valid OBC non-creamy layer certificate, as per the requirement of the notice, he should be treated as an unreserved candidate, which undertaking the applicant has failed to mention before this Tribunal, which amounts to making a false claim by suppression of facts.
11. It was denied that any assurance was given to the applicant to consider his case in spite of his failure to submit a proper and valid certificate proving his OBC non-creamy layer credentials, and that any discrimination was ever done against the applicant in any way. It was pointed out that the counter signature by the Tehsildar was not within the cut off date i.e. 02.03.2010, which crucial date had to be adhered to by all the candidates, and no deviation can be made in any particular case.
12. It was further submitted that the argument put forward by the applicant regarding powers of the Executive Magistrate having been conferred on a Naib Tehsildar by the State Government of Haryana has no relevance to a Central Government recruitment, which has to be strictly gone ahead by following the provisions laid down in their notice, and that the Central Government does not consider a Naib Tehsildar as an Executive Magistrate. It was submitted that when the Central Government, for its requirement, requires an officer of the rank of Tehsildar to issue the OBC non creamy layer certificate for candidates being considered for selection, the case of the applicant has been rightfully rejected on account of his having furnished an OBC non-creamy layer certificate signed by a Naib Tehsildar. It was submitted that it is a settled principle of law that the terms and conditions of the employment notice are binding, and the same have to be adhered to by everybody, and the obligation raised upon an applicant/candidate as per terms of notice had to be discharged in the form and manner as prescribed therein. It was, therefore, submitted that the OA is bereft of merit and the applicant is not entitled to any reliefs.
13. The applicant filed a rejoinder on 14.03.2012. He reiterated his contention that the respondents were not even aware of the fact that in the State of Haryana, powers of Executive Magistrate have been conferred on the posts of Naib Tehsildars also, and the certificate submitted by him was properly issued by an Executive Magistrate. He submitted that as he belongs to the State of Haryana, therefore, the competency to issue the relevant certificate has to be considered by taking into account the decision of the State Government, and that the respondents are not justified by going only on the basis of the rank in the Revenue Department. It was submitted that it is not correct that a Naib Tehsildar is much smaller in rank vis-`-vis Executive Magistrate, since the Executive Magistrate is not a post, and is basically a designation, conferred to exercise the powers as per the Transaction of Business Rules and the Statutes, and that in the State of Haryana, the powers of Executive Magistrate have been conferred on the Naib Tehsildars also.
14. It was denied by the applicant that he had ever given any undertaking in the manner in which the respondents have projected, and it was submitted that if and when a candidate fails to give a valid OBC certificate, naturally he has to be considered as an unreserved category candidate, and, therefore, no such undertaking is required. It was, however, submitted that he did give a general undertaking, in view of the order/stand of the respondents about the validity of his OBC Certificate as mentioned above. Along with this, applicant had filed a copy of the Government of Haryana letter of the Chief Secretary dated 30.01.2004 to all concerned regarding the subject of streamlining the procedure in the offices regarding issuing of Resident/Income Certificates and the Caste Certificates to Scheduled Castes and Backward Classes.
15. MA No.446/2012 had been filed by the applicant on 02.02.2012 praying for forfeiting the right of the respondents to file a reply, but the respondents having been since allowed to file a reply, and the reply having been considered, the MA is disposed of as having become infructuous.
16. MA No.942/2012 was filed for advancing of the hearing of the case. The MA had been allowed on 03.04.2012, and another MA 1284/2012 for early hearing of the application had also been allowed on 09.05.2012.
17. Heard the case in detail. Learned counsel for the applicant emphasized upon the Government of Haryana letter of the Chief Secretary dated 30.01.2004, filed along with the rejoinder, from which it was shown that in the State of Haryana, Circle Revenue Officers (Tehsildar/Naib Tehsildar-cum-Executive Magistrate) are designated as Executive Magistrates, and have been authorized to issue Residence as well as Caste Certificates (SC/ST/OBC), after getting the verification done through the subordinate revenue staff in the cases of the applicants residing in the rural areas, and through the Executive Officer/Secretary of the concerned Municipal Committee/Municipal Council/Municipal Corporation concerned in the cases of the applicants residing in urban areas. Similar powers have been conferred upon the Heads of Departments also. This letter of the Chief Secretary had also prescribed the proformae in which the said concerned certificate had to be issued by the Tehsildar/Naib Tehsildar/Head of the Departments in the case of SC/ST/OBC employees at their offices located at Panchkula and states in its para (2) follows:-
2. The matter has also been reconsidered in depth by the State Government in view of the problems being faced by the Government employees in obtaining these certificates. With a view to improve the existing system in issuing various certificates. It has been decided by the Government that henceforth Circle Revenue Officers (Tehsildar/NaibTehsildar-cum-Executive Magistrate) concerned will be authorized to issue Resident as well as Caste Certificates (SC/BC/OBC) after getting the verification done through the subordinate revenue staff in case of applicants residing in the rural area and through the Executive Officer/Secretary of the concerned Municipal Committee/Municipal Council/Municipal Corporation concerned in case of applicants residing in urban areas. It has further been decided that in case of Haryana Government employees serving in the Offices located at Chandigarh/ Panchkula and residing at Chandigarh/Panchkula, the Resident certificates and caste certificate to SC/BC employees and for their children, may be issued by their respective Heads of Departments also.
3. The validity of Resident Certificate issued by the competent authority shall be as long as the holder of this certificate maintains his residential address in Haryana State.
18. In his reply arguments, learned counsel for the respondents relied upon Annexure A-VII of the Notification published in the Employment News/Razgar Samachar on 30.01.2010, which had prescribed a format of the certificate to be produced by Other Backward Classes applying for appointment to posts under the Government of India. He pointed out to the Note-I (b) of the said profoma, which stated as below:
Note-I(a) The terms Ordinarily used here will have the same meaning as in Section 20 of the Representation of the People Act, 1950.
(b) the authorities competent to issue Caste Certificate are indicated below:-
(i) District Magistrate/Additional Magistrate/ Collector/ Dy, Commissioner /Additional Deputy Commissioner/ Deputy Collector/ Ist Class Stipendary Magistrate/ Sub Divisional Magistrate / Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner (not below the rank of Ist Class Stipendiary Magistrate).
(ii) Chief Presidency Magistrate/ Additional Chief Presidency Magistrate/ Presidency Magistrate.
(iii) Revenue Officer not below the rank of Tehsildar.
(iv) Sub-Divisional Officer of the area where the candidate and/or his family resides.
19. The learned counsel for the respondents also relied upon the judgment of the Honble Delhi High Court dated 24.01.2012 in the Letters Patent Appeal No.502/2011 in Delhi Subordinate Services Selection Board and Anr. vs. Ram Kumar Gijroya and Others along with WP(C) No.8087/2011 in Ms.Renu vs. the Chairman/Secretary, DSSSB & Ors. He had pointed out that in this detailed judgment, the Honble Delhi High Court has examined all the case law on the subject, and thereafter it has been held as follows:-
19. Else, what has been observed by us qua qualification, equally applies to submission of OBC Certificate also. It is well-nigh possible that a number of other OBC candidates, though otherwise eligible but not in possession of the OBC Certificate by the cut off date, did not apply under the belief that being required to enclose the OBC Certificate along with the application and being not in possession thereof, their applications would be deficient and not entertainable. It is yet further possible that, had such others applied and competed, the respondents in appeal and/or the LPA 562/2011 & W.P.(C) 8087/2011 Page 16 of 18 petitioner in the writ petition may not have been eligible. The respondents in appeal and the petitioner in the writ petition were clearly in the know that their applications were incomplete and took a chance. This Court cannot lay down a law which would encourage such practices. The terms and conditions mentioned in the advertisement were intended, to guide/instruct the prospective applicants and there is no reason to dilute the same. Even otherwise, this Court would be loathe to issue mandamus/directive contrary to the terms of selection/appointment (see Karnataka State Road Transport Corporation Vs. Ashrafulla Khan (2002) 2 SCC 560, FCI Vs. Ram Kesh Yadav (2007) 9 SCC 531, Maharishi Dayanand University Vs. Surjeet Kaur JT 2010 (7) SC 179 and State of West Bengal Vs. Subhas Kumar Chatterjee (2010) 11 SCC 694).
20. We have given our anxious consideration to the facts of the case, and the legal issues involved in the case. The crux of the matter lies in between the applicability of the conditions in Note-I (b) prescribed in the Advertisement Notification below the format of the certificate to be produced for OBCs, and the applicability of the instructions of the Chief Secretary, Govt. of Haryana bearing No.22/28/2003-3GSIII dated 30.01.2004 vis-`-vis the said Employment Notification. While the applicant has emphasized upon para 2 of the Chief Secretarys letter and the Note-I (b)(i) of the instructions reproduced in para 18 above, the learned counsel for the respondents has on the other hand emphasized that the Note-I (b) (iii) specifically lays down that the Revenue Officer issuing the certificate should not be below the rank of Tehsildar.
21. The word Executive Magistrate is not derived from any revenue law. It flows from Section 6(iv) of the Code of Criminal Procedure, 1973, as one of the classes of Criminal Courts, and Section 20 of the Cr.P.C. lays down the categorization of the Executive Magistrates. Sections 20 to 23 of the Cr.P.C. read as under:
20. Executive Magistrates. (1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have 1*[such] of the powers of a District Magistrate under this Code or under any other law for the time being in force 2*[as may be directed by the State Government].
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of he State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate.
[(4A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.] (5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.
21. Special Executive Magistrates. The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit.
22. Local jurisdiction of Executive Magistrates. (1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.
23. Subordination of Executive Magistrates. (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a subdivision shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an additional District Magistrate.
22. It is clear from Sub-Section (1) of Section 20 of the Cr.P.C., 1973, as reproduced above that the State Government may appoint as many persons as it thinks fit to be Executive Magistrates, and shall appoint one of them to be the District Magistrate. Section 21 of the Cr. P.C., 1973 further prescribes that the State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas, or for the performance of particular functions, and confer on such Special Executive Magistrates such of the powers as are conferrable under the Code on Executive Magistrates, as it may deem fit, which exercise of powers by them has been upheld by the Honble Apex Court in the case of State of Maharastra v. Mohammad Salim Khan (1991) 1 Crimes 120 (SC). Section 22 of the Cr.P.C., 1973, further lays down that subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested with under the Cr.P.C., 1973. Sub-Section(2) of Section 22 further provides that in the absence of any such provisions made under Sub-Section(1) of Section 22, the jurisdiction and powers of every such Magistrate shall extend throughout the district. Section 23 of the Cr. P.C., 1973 further prescribes that all Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a subdivision shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate and the District Magistrate may, from time to time, make rules or give special orders, consistent with the Cr. P.C., as to the distribution of business among the Executive Magistrates subordinate to him, and as to the allocation of business to an Additional District Magistrate.
23. From the letter of the Chief Secretary, Govt. of Haryana, dated 30.01.2004, as re-produced in para 17 above, and as cited by the applicant, it is apparent that in the State of Haryana all the Circle Revenue Officers, whether Tehsildars or the Naib Tehsildars, have been conferred with the powers of an Executive Magistrate, as per para-2 of the letter reproduced in para 17 above. On the other hand, Note-1 (b) of the Schedule Annexure VII of the Notification prescribes the authorities competent to issue the caste certificate, which are recognized by the SSC and the Union of India to be competent to issue such certificates.
24. Note-I (b) (i) reads as under:
(i) District Magistrate/Additional Magistrate/ Collector/ Dy, Commissioner /Additional Deputy Commissioner/ Deputy Collector/ Ist Class Stipendary Magistrate/ Sub Divisional Magistrate / Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner (not below the rank of Ist Class Stipendiary Magistrate).
25. In his arguments, the learned counsel for the respondents relied mainly upon the Note I (b) (iii), which has prescribed the competent authority to be a Revenue Officer not below the rank of Tehsildar, but where the words Executive Magistrate have not been mentioned.
26. From a comparison of the above stipulations of the Note I (b) (i) and I (b) (iii) below Annexure A-7 itself, it can be seen that there are at least six categories of Magistrates which have been declared to be competent authorities under Note-I (b) (i), and three categories of Magistrates in the Presidency Areas have also been declared to be the competent authorities in Note I b (ii).
27. Unfortunately, the State of Haryanas specific Notification which had declared the designations of the persons appointed as Executive Magistrates under Sub-Section (1) of Section 20 of Cr.P.C. is not available for our benefit. However, the use of the words Tehsildar/ Naib Tehsildar-cum-Executive Magistrate in the Chief Secretarys letter dated 30.01.2004, prompts us to believe that the Naib Tehsildars have been declared to be Executive Magistrates by the State of Haryana under Sub Section (1) of Section 20 of the Cr.P.C., 1973. As a result, Naib Tehsildar would then fall within the 6 categories of Magistrates as designated by the SSC and the Union of India to be the competent authorities issue Caste Certificates in terms of Note I (b) (i) of Annexure A-7 to the Employment Notification.
28. This empowerment of Naib Tehsildars as Executive Magistrates under Sub-Section (1) of Section 20 of Cr.P.C., 1973, has relevance only to his being a Circle Revenue Officer, though below the rank of the Tehsildar, and thus falling outside the purview of Note 1 (b) (iii), relied upon by the learned counsel for the respondents. Therefore, it is clear that even under the provisions of the Employment Notice published on 30.01.2010, Annexure A-7 thereto,by virtue of his being an Executive Magistate so declared under the Cr.P.C., a Naib Tehsildar of Kanina Mahender Garh, was competent to have issued OBC Creamy Layer Caste Certificate as produced by the applicant at Annexure A-2B (Page 20 of the Paper Book) on 15.10.2008, even without its being countersigned by the Tehsildar, Mehender Garh on 15.11.2010, or further validation by the SDM, Mahender Garh on 23.11.2010 Annexure A-3 (Page 21 of the Paper Book).
29. Therefore, since the OBC certificate issued by the Naib Tehsildar-cum- Executive Magistrate, Kanina, Mahender Garh on 15.10.2008 was available with the applicant, which had been issued before the curt-off date of 02.03.2010, the respondents were wrong in having denied the applicant an opportunity of employment, to which he was and is lawfully entitled. The contention of the respondents that the Central Government alone can decide as to who is the competent authority to issue the certificate in respect of Employment Notification for the Central Government is not tenable in this case, since the Central Governments Notification itself has prescribed the six categories of Magistrates, along with the Revenue Officer designations, as authorities competent to issue a caste certificate, and the aspect of the declaration of any person as an Executive Magistrate lies within the competence of the State Government alone, under sub Section (1) of Section (20) of the Cr.P.C., 1973. The Union of India/Central Government in fact does not have any powers prescribed under the Cr.P.C., 1973, to either declare, or recognize, or de-recognize anybody, or any official functionaries, as Executive Magistrates for any purpose whatsoever, as maintenance of public order is a function of the State Governments, under Item No.I, List-II, State List, of Schedule VII of the Constitution of India, and the Union of India does not have any powers whatsoever under Section 20 of the Cr.P.C., 1973, or under any of the entries of List I of the Union List of Schedule VII of the Constitution of India to refuse to recognize the authority of an Executive Magistrate of a State, whom the State Government has declared to be an Executive Magistrate under the Cr.P.C.
30. In the result, OA is allowed to the extent that the applicant is held to have been holding a valid OBC certificate issued by an Executive Magistrate of the State of Haryana prior to the cut off date prescribed in the advertisement, and the respondents are directed to treat his case as such, and allow him the consequential benefits. There shall be no order as to costs.
(Sudhir Kumar) (G.George Paracken)
Member (A) Member (J)
/kdr/