Central Administrative Tribunal - Chandigarh
Narender Kaur D/O S. Amarjit Singh vs Union Of India Through The Secretary on 24 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.1191-PB-2012 Pronounced on: 24.07.13 Reserved on : 17.07.2013 CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A) AND HONBLE MR. SANJEEV KAUSHIK, MEMBER (A) Narender Kaur D/o S. Amarjit Singh, aged 23years, 9, Lakhwinder Enclave Colony, Ropar, Punjab . Applicant Versus 1.Union of India through the Secretary, Government of India, Ministry of Home Affairs, New Delhi. 2.Home Secretary-cum-Secretary Health, Chandigarh Administration. 3.Government Medical College & Hospital, Sector 32, Chandigarh through its Director Principal Respondents Present : Mr. Yogesh Putney, Counsel for the applicant. Mr. Aseem Rail, Counsel for the respondents. O R D E R
HONBLE RANBIR SINGH , MEMBER (A) The facts as mentioned by the applicant are that the Chandigarh Administration had issued Notification dated 27.6.1995 declaring various castes as other backward class (OBCs) in which the caste Labana is mentioned at Sr. No. 17. As per the Central List of the OBCs for the Union Territory, Chandigarh, cast Labana is mentioned at Sr. No. 38 (Annexure A-2). The date of birth of the applicant is 4.5.1989. She belongs to Lubana Sikh Caste, which is recognized as a backward Caste in Punjab as per certificate dated 8.11.2006. It is also enlisted as Other Backward Caste in the List issued by the Central Government. She has done her Bachelor of Science in Nursing (three year course) from Baba Farid University of Health Sciences in May/June, 2010 and was also Registered as Nurse and Midwife with Punjab Nurses Registration on 16.11.2011 (Annexure A-4).
2. It is further stated in the O.A. that the respondents had issued a Notice in various new papers / notice board etc. for filling up the posts of Staff Nurses in Government Medical College & Hospital, Sector 32, as well as Sector 16, Chandigarh. The post is in pay scale of Rs.10300-34800 with grade pay of Rs.4600/-. The qualification for the post is Diploma in General Nursing and Midwifery course from a recognized Board / University / Institution or equivalent or B.Sc. Nursing or equivalent from a recognized Board / University / Institution and registered as Nurse and midwife with Staff Nursing Council. The bifurcation of posts in both the Colleges & Hospital is given. 82 posts were earmarked for OBC category. As per para 4 (iii), the claim of the candidates to SC and OBC categories was to be considered only when the same was accompanied by the certificate issued by the Competent Authority in the format prescribed for SC & OBC by the Government of India and should have the clause of non-creamy layer. The candidates were also required to bring certificates / testimonials in original, in support of their qualification experience and date of birth etc. The respondents also issued a corrigendum by which the total number of posts was increased to 358.
3. The applicant had submitted her application online vide Application ID 3782 on 17.6.2012 against OBC category. She was also issued a E-Interview Call letter for the post of Staff Nurse and was asked to bring along with her detailed marks sheet, date of birth certificate, registration certificate & category certificate. The respondents had displayed a provisional list of candidates on the internet mentioning the short-fall in applications of various candidates like non-deposit of fee or non-attachment of category certificate etc. In this list, the name of the applicant is mentioned at Sr. No. 50 showing the detail marks sheets, date of birth certificate, registration certificate & category certificate as not attached.
4. The Chairman, Selection Committee, had issued a merit wise list of selected candidates under OBC category on 13.9.2012 in which the name of applicant is shown at Sr. No.27 (A-10). The respondents had issued a corrigendum dated 21.9.2012 indicating that definition of OBC in UT Chandigarh is that the caste of OBC should be reflected in both Central List as well as UT List. Some candidates who are OBC in UT have inadvertently been shown as selected in the OBC backlog as well as OBC merit list, which was put on the website. In order to correct the discrepancy, only the OBC candidates who fall in the UT as well as in the Central List were to be considered on the basis of their merit in the OBC category. The candidates who had applied under OBC category, but were not covered under the UT as well as Central list, were to be considered in the general category (Annexure A-11).
5. However, the respondents issued a result-cum-merit list of OBC candidates on 9.10.2012 (Annexure A-1) deleting the name of the applicant arbitrarily and illegally. This list indicated the names of various candidates, who had not submitted proper category certificates, mentioning the manner and proforma in which such certificates were to be submitted. It was clearly mentioned against Note 2, that the last date for submission of reply to deficiencies is 25.10.2012, and in case of failure to submit the requisite certificate, the candidature of the candidate in the OBC category shall be rejected straightway. The respondents had also issued a notice that since the last date for submission of revised caste certificate by OBC candidates is 25th October, 2012, therefore, the appointment letters to general merit list candidates would be issued immediately after 25th October, 2012 (Annexure A-12). The respondents had also displayed the corrected combined merit list of candidates under the general category. It was mentioned that general merit list of candidates has been corrected because earlier candidates reflected in the OBC category were ineligible in their respective category, but because of their merit, they are eligible in the general category. It was also mentioned that merit wise list of candidates is subject to the condition that if any candidate of reserved category, is not found eligible in his/her category, but falls in the general merit, then such a candidate would be considered in the general merit. Merit list of only 124 candidates was displayed as the sanction of 21 posts of Staff Nurses in GMSH Sector 16 was still under consideration (Annexure A-13).
6. The case of the applicant is that the applicant belongs to Lubana/Labana caste which is recognized as OBC category and that the applicant has got proper certificate of OBC issued by competent authority showing that she does not belong to creamy layer and she was treated as OBC and was called for interview also on 23.8.2012 and on being successful was shown at Merit list at Sr. No.27, with Roll No.12737 and as such denial there of is illegal, arbitrary, discriminatory, harsh, void ab initio, violative of articles 14 and 16 of the Constitution of India and as such action cannot be sustained in the eyes of law.
7. The relief sought by the applicant in this Original Application is as under :-
(1)Quash the action of the respondent and the Result dated 9.10.12 (Annexure A-1) relating to Staff Nurse in Government Medical College & Hospital, Sector 32 & Govt. Multispeciality Hospital, Sector 16, Chandigarh, to the extent the name of the applicant has not been included in it or rather has been deleted from the list as her name was included in earlier list issued on 13.9.2012 which is illegal and arbitrary inasmuch as applicant belongs to OBC category and she has proper documentation in her favour and as such she cannot be denied consideration for appointment as Staff Nurse on that basis more so when she has obtained good grading and falls within the consideration zone for appointment.
(2)Issue direction to the respondents to consider the case of the applicant for issuance of appointment order as Staff Nurse against OBC category as she was declared successful as per result dated 13.9.2012 and she has valid documentation issued by competent authority showing her as OBC from due date with all consequential benefits.
8. The grounds raised by the applicant in support of the relief claimed are as under :
(1)The applicant belongs to a caste which is recognized as OBC in the State as well as on the Central list and the applicant has documentation in support of her claim which was accepted by the respondents and she had participated in the selection of Staff Nurse as OBC candidate and was successful as per result date 13.9.2010 (A-10). But for the reasons not disclosed to the applicant, her name was not included in the revised result dated 9.10.2012 (A-1) and such action being in violation of the principles of natural justice, deserves to be invalidated. Annexure A-9 clearly stipulates that interview was subject to eligibility and verification of documentary proof. The applicant being eligible was called for the interview which she successfully qualified as per merit the list dated 14.9.2012.
(2)Placing reliance on State of Madhya Pradesh and others v. Sanjay Kumar Pathak and others, (2008) 1 SCC 456, K. Jayamohan v. State of Kerala, (1997) 5 SCC 170 and Munna Roy v. Union of India, (2000) 9 SCC 283, R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 and A.P. Aggarwal v. Government of NCT of Delhi and another, (2000) 1 SCC 600, it is submitted that if a vacancy exists and it is not filled up, there must be some reasonable explanation for not doing so. No doubt, no one has indefeasible or vested right to an appointment, whether he is on the waiting list or on the merit list, but at the same time there must be some reasonable basis for not offering an appointment to a meritorious candidate. In this case there is no explanation, much less, reasonable or rational explanation and as such it is violative of Article 14 of the Constitution.
(3)Right of consideration for a public post and for equal treatment is a fundamental right guaranteed under article 14 and 16 of the Constitution of India which can not be snatched by the respondents on whims and fancies.
(4)On the one hand in impugned list, Annexure A-1 it is mentioned that the last date for submission of reply and removal of deficiencies is 25.10.2012 and after receipt of reply only persons who do not fall in the OBC category would be considered in general category, yet the respondents have issued the list of general category prior to 25.10.2012 itself which shows their mindset that they are running the show of selection in a zig zag manner, bye-passing all norms.
(5)Even if the name of the applicant was to be deleted from the select list, once it was included, she was required to be given a show cause notice before removal of her name so that she could have explained the position to the respondents or fulfilled any shortfall.
(6)Annexure A-1 is also liable to be quashed on the ground that in view of extension to make good the deficiency to 25.10.2012, the list date d9.10.2012 (A-1) would be invalid.
(7)According to respondents the number of posts is 111, whereas list (A-1) is only of 100 candidates leaving a short fall of 11 candidates.
(8)Interview was held on 23.8.012 (A-9) and the select list (A-10) was published on 13.9.2012 after verification of documents and on the basis of eligibility. Thus the applicant cannot be declared as ineligible.
8. The respondents have filed a reply statement. They submit that respondent no. 3 on 27.9.2012 had issued corrigendum clearly defining that OBC Category i.e. only a caste which is listed in Central as well as UT list would qualifying for benefit of reservation as OBC. The issue has been settled in O.A.No. 728-CH-2009 and other cases decided on 14.6.2010 holding that if a caste does not find a mention in both the list, it would not qualify for reservation. The Administration has followed the decision of this Tribunal in O.A.No. 728-CH-09 (Chandigarh Admn. Vs. Surinder Kumar) as per which a caste would qualify for benefit of OBC only if falls in Central as well as state list. Similar view was taken in Anita Jat V. UOI etc. O.A.No.; 120-CH-2010 (R-5). AS per letter issued by Joint Secretary Personnel, Chandigarh Administration vide No. 27/4/94-IH(7)-2003/23827 dated 23.12.2003 (R-4), the benefit of reservation to OBC category would be extended on the pattern of the Central Government wherein the OBC would have to be included in the Central List and the U.T. Chandigarh List. Accordingly corrigendum dated 21.9.2012 was issued clarifying as to how OBC is to be treated as eligible for reservation. This was put on the notice board and was within the knowledge of applicant. The applicant has submitted BC Certificate instead of OBC Certificate at the time of submission of application/ interview. The caste LABANA not LUBANA (the caste to which the applicant belongs) is at Sr. No. 38 (Central List) and at Sr. No. 17 (Union Territory, Chandigarh List). As such, the applicant was found not eligible in OBC category as her caste LUBANA does not exist in the Central list and the Union Territory, Chandigarh list. In the general list, the applicant is very low in merit i.e. at Sr. No. 309 of the Combined merit list.
9. As per Letter No. 12011/15/2004-OBC dated 4.10.2012 (R-1), issued by Under Secretary to Govt. of India, Ministry of Social Justice and Empowerment, New Delhi, regarding up-to-date Central List of OBC in respect of U.T. of Chandigarh, the caste is mentioned as LABANA, VANZARA INSTEAD OF LUBANA AT Sr. No. 38 of the said List. The applicant submitted BC Certificate with her application instead of OBC certificate, which was a pre-requisite. The candidature of candidates were provisional only. The advertisement stated that number of posts and reservation thereof are tentative and can increase or decrease subject to confirmation of Roster Point by Social Welfare Department / Employment Exchange, U.T. Chandigarh and Department reserved right to reject / cancel any application or withdraw the posts at any time without any reasons or without any notice whatsoever. After vetting of reservation roster by the Director Social Welfare, U.T. Chandigarh and as per information received from CHS, GMSH, Sector 16, Chandigarh, the vacancy position underwent a change. The interview letter issued to the applicant was provisional in character. The U.T. list and the Central List of OBC meant for U.T. Chandigarh are to be considered synonymous and the sub castes of the Castes mentioned in the U.T. and the Central List of OBC meant for U.T. Chandigarh are not to be considered.
10. The applicant has filed a rejoinder reiterating the averments made in the O.A. It is submitted that the action of the Respondents deserves to be set aside as no reason what-so-ever has been accorded nor any notice given before deleting the name of the applicant from the select list dated 9.10.2012 (Annexure A-1). The applicant had in response to the public appointment notice applied for the post of Staff Nurse being eligible and suitable against the OBC category and the applicant was called for the selection and the interview call letter was issued vide Annexure A-8 scheduled for 23.8.2012. Vide Annexure A-9, the list of eligible candidates as per the criteria notified by the respondents was circulated and the name of the applicant finds mention at Sr. No. 50 and in the remarks column, the respondents mentioned detail marks-sheet, date of birth certificate, registration certificate and category certificate not attached. These remarks given in the eligibility list were given contrary to the record in as much as , as per the application form Annexure A-7, the applicant submitted all her certificates on the basis of which alone the interview call letter was issued. However, the applicant again submitted the certificates and appeared in the interview on 23.8.2012 and qualified in the same as is apparent from the merit list of selected candidates under OBC category dated 13.9.2012 (Annexure A-10) where under her name finds mention at Sr. No. 27. Hence, it is wrong on the part of the Respondents to say that the applicant did not furnish the certificate. Corrigendum dated 27.09.2012 was issued by the Respondents where-under it was notified that OBC candidates who fall in U.T. as well as Central list, shall be considered on the basis of their merit in the OBC category.
11. The applicant belongs to Labana caste which has been declared as OBC category in the U.T. as well as the Central list which have been appended as Annexure A-2. Hence the applicant can not be denied the appointment under any circumstances. The judgments relied upon by respondents has been distinguished. In those cases the applicants therein were not eligible as the OBC caste to which they belonged did not find mention in both the list i.e. U.T. as well as Central. The applicant, after filing of the written statement by the Respondent on 1.5.2003 contacted the competent authority who issued the OBC certificate Annexure A-14 and the competent authority has clarified that the Lubana caste mentioned in the certificate Annexure A-14 is in fact Labana written Lubana in Punjabi and accordingly rectified the same in the original certificate on 15.05.2013 (Annexure A-15) and also admitted the mistake as is evident from the note given on the certificate. Which reads as under:
in line 3 of this certificate the word Lubana caste has been written by mistake. This may be read as Labana caste and is corrected accordingly.
12. It is further stated that the Labana caste to which the applicant belongs, as has been notified by the competent authority (Annexure A-15), falls in U.T. as well as in Central list. Hence the applicant cannot be non-suited and denied the appointment as a Staff Nurse against the OBC category. The corrigendum being pressed into reckoning was issued after the publication of the result and is of no legal consequence otherwise too.
13. We have heard learned counsel for the parties and perused the record.
14. We are of the view that this problem has come up because the Central List and the Union Territory List are in English and Hindi language and the certificate made available to the respondents was in Gurmukhi. The Competent Authority i.e. Tehsildar has clarified on 15.5.2013 (Annexure A-15) that in line 3 of the certificate the words Lubana caste was written by mistake and it should be read as Labana caste.
15. Considering the objective of the Administrative Tribunals Act, 1985 it would be in the interest of justice to over look the fact that note was recorded only on 15.5.2013, after the impugned order had already been issued. In any case as per law a clarification would relate back to the original communication i.e. certificate in this case. Complete and substantial justice demands that the note dated 15.5.2013 recorded by Competent Authority be accepted and the applicant be treated as belonging to Labana Caste which is categorized as OBC.
16. Therefore, this O.A. is allowed. Necessary corrigendum be issued in the result dated 9.10.2012 (Annexure A-1). The respondents are directed to the consider case of the applicant for issuance of appointment orders as Staff Nurse against OBC as per result dated 13.9.2012. The action in this regard may be completed within a period of 30 days from the date of receipt of a copy of this order.
17. No costs.
(RANBIR SINGH) MEMBER(A) (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated:
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