Manish Kumar vs Union Of India And 3 Others
2022 Latest Caselaw 10701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 16979 of 2018
 

 
Petitioner :- Manish Kumar
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Pramod Kumar Vishwakarma
 
Counsel for Respondent :- A.S.G.I., Dharmendra Singh, Lal Mani Singh, Praveen Kumar Singh, S.C.,Sabhajeet Singh, Santosh Kumar Mishra,Shailesh Mani Tripathi,Yashwant Kumar
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

(1) Heard Shri R.K. Ojha, learned Senior Advocate assisted by Shri Pramod Kumar Vishwakarma for the petitioner and Shri S.K. Mishra, appearing for the FCI and Shri Praveen Kumar Singh for the Respondent no.7 and Shri Dharmendra Singh for the Respondent no.5 and Respondent no.6 newly private respondent is not representing.

(2) This petition has been filed by the petitioner praying for a direction to be issued to the Respondent FCI to consider the candidature of the petitioner in OBC Category and to place him in the Select List dated 26.07.2018 in respect of Advertisement No.3 of 2015-FCI/Category-III issued by the Respondents for the post of Assistant Grade-III (General/Accounts/ Technical/Depot) and also not to finalize the selection process in pursuance of Select list dated 26.07.2018 till consideration of the petitioner as Assistant Grade-III for appointment under OBC Category.

(3) It has been argued that an Advertisement had been issued in February, 2015 by the FCI Zone wise for Recruitment of Junior Engineer, Assistant Grade-III (Typist Hindi and Assistant Grade-III). The petitioner submitted his Online application on 14.03.2015 showing himself as belonging to OBC candidate. A Total 131 posts were reserved for OBC Category in Assistant Grade-III cadre. The respondents finalized the Selection process and declared a Select list and also a common waiting list of candidates in which the name of the petitioner was placed at Sl.no.862 in OBC Category and his rank was shown as 276. However, in the Revised waiting list the respondents have placed the petitioner in General Category at Sl.no.276 without any reason. When the revised waiting list was issued on 01.02.2018, the petitioner has made a Representation to the respondents praying that he may be considered for OBC Category and he may be allowed to give his OBC Certificate in its original for the grant of benefit of reserved Category. The petitioner was called for Document Verification on 14.02.2016. The petitioner had appeared for documents verification at Noida, the entire documents in support of his claim were produced before the Authority concerned.

(4) It has been argued by the learned counsel for the petitioner that the petitioner belongs to OBC Category and he also applied in the said category but the respondents did not inform the petitioner that OBC Certificate was to be submitted at the time of documents verification. The petitioner on the basis of general information received from the other candidates sent his OBC Certificate by E-Mail to the Respondents on 18.04.2016 but arbitrarily the petitioner has been removed from OBC Category and placed in the unreserved list by the respondents. It has also been argued that Sarvasri Santosh Kumar, Govind Kumar and Kamlesh Kumar have been shown to be selected in list dated 26.07.2018. All these persons have lesser merit than the petitioner. The petitioner being aggrieved had given a detailed representation to the Respondents but the same has not been considered.

(5) On the first day of hearing, as fresh this Court had passed an interim order directing the petitioner to implead the three selected candidates whose names had been mentioned in the writ petition as having lesser merit than the petitioner and issued notice to the private respondents. The respondents were directed that till the next date of listing no appointment letters shall be issued to the newly impleaded Respondent nos.5 to 7. The interim order granted by this Court on 08.08.2018 has continued till date. In the meantime, pleadings have been exchanged between the parties.

(6) On 18.09.2021 this Court after hearing the parties had passed a detailed order wherein the arguments raised by the learned counsel for the petitioner were noticed that despite the petitioner having necessary OBC Certificate he was wrongly denied the benefit of reserved category and placed under unreserved category by taking a ground that the petitioner did not produce the OBC Certificate at the time of documents verification. The Court noticed that in the Counter affidavit filed by one Shri Amit Tiwari, working as Area Manager FCI at Allahabad, it had been stated that the petitioner had appeared for written test on 04.10.2015. He appeared for Document Verification also but failed to submit his OBC certificate. When this fact was noticed he was called again on 30.03.2016 for submitting OBC Certificate but the petitioner did not appear. In the absence of OBC Certificate, he was placed under unreserved category at the time of finalization of merit list and the result was published accordingly. This Court thereafter, referred to Paragraph-17 of the writ petition, and Paragraph-4 of the counter affidavit sworn by the Area Manager and came to the conclusion that the same having been sworn on the basis of record, there were inconsistencies therein as Area Manager was not the person Incharge of the Documents Verification and he had been told by some other person Incharge of Document Verification that the petitioner had failed to produce OBC Certificate. This Court directed the respondents to produce the original record on the basis of which Counter Affidavit was sworn.

(7) After such order was passed by this Court on 08.09.2021, a Second Counter affidavit has been filed on behalf of the Respondents by one Shri Kaushik Nayak son of Late S. Nayak working as DGM (Recruitment), Food Corporation of India Zonal Office (North). In the said counter affidavit the Recruitment process in respect of Advertisement no.3 of 2015 is mentioned in detail including the fact that such recruitment was entrusted to a private Company namely CMC Limited which had merged with Tata Consultancy Services Limited (TCS) Limited and it was also stated that till the time of documents verification the said Agency had to look after the recruitment. After such documents verification the dossiers of various candidates would be prepared by the Recruitment Agency and placed before the Interview Board. At the time of handing over dossiers the original record relating to Online applications documents verification etc. were not handed over by the said private Agency. Hence, the Respondents cannot produce any Computer record relating to any uploading of OBC Certificate by the petitioner in April, 2016 as mentioned by him in his writ petition.

(8) In the Second counter affidavit a mention has been made in detail of the Recruitment process. It has been submitted that initially Online applications were invited and the candidate had to satisfy himself with regard to possession of Qualification/Age/ Experience criteria etc. before submitting application for the post in question. No printed copy/hard copy of application Form or any other supporting documents had to be filed before Written Examination or Skills Test. In view of large number of applications being received scrutiny was not to be undertaken before issuance of call letters for Documents verification. Mere submission of application Form and fulfilling of all eligibility criteria did not confer any right on a person claiming final selection on the post. In Paragraph-28 of the Advertisement, it was specifically mentioned that the candidate must ensure to have fulfilled all the eligibility criteria, for example Qualification/Age/Experience criteria etc. as on 01.01.2015. Candidates should also satisfy themselves that they fulfill the required qualification, experience and age etc., before applying for the post. In case, it was found that the information furnished by a Candidate was defective in any manner or had been deliberately suppressed, the candidature would be summarily rejected as and when it came to the notice of the Management. The candidates were advised to satisfy themselves fully about the correctness of the information furnished and their candidature would be rejected if found ineligible at any stage. In Paragraph-35 of the Advertisement it was mentioned that no original Certificates/Documents were required to be sent in connection with the Application unless directed to do so. The Candidates were directed to submit Self-attested Photostat copies of requisite documents by uploading them at the Designated address/Website in case of their shortlisting on the basis of the written Examination/Skill Test which would be informed/notified through the designated website. Original certificates would however, be scrutinized /verified at the time of Document verification stage. In the said counter affidavit, it has been mentioned that the petitioner had sent in his application on 14.03.2015 mentioning his category as OBC. He appeared in the written test in October, 2015 and was shortlisted for documents verification alongwith other candidates three times the number of vacancies. The petitioner being called for Documents verification on 04.02.2016 failed to submit his OBC Certificate. He was also called on 30.03.2016 for submitting his OBC Certificate. He did not appear on 30.03.2016. In the absence of OBC Certificate he was treated in unreserved category at the time of finalization of merit list.

(9) It has also been submitted in the counter affidavit that the petitioner has been placed at Sl.no.276 in unreserved category but in the combined merit list he has been placed at Sl.no.862. Up till 03.05.2019, the last candidate selected from wait list under unreserved category is at wait list Sl.no.59. Shri Santosh Kumar, Shri Gobind Kumar and Shri Mayuresh Kumar were placed at Sl.nos.282, 283 and 287 respectively in OBC Category and therefore they were shortlisted at the time of operation of the Fifth waiting list. The petitioner being placed in Unreserved category where the last candidate who had been called was placed at Sl.no.59 he was not issued appointment letter.

(10) It has also been stated in the counter affidavit that the list of 197 similarly situated candidates had been received from M/s CMC Limited who were intimated through E-Mail and also by SMS to submit their deficient documents. The petitioner's name was shown at Sl.no.112. A communication was sent through E-Mail and through SMS to such candidates, the petitioner has admitted that he received such information as he sent a Representation on 01.02.2018 saying that he had received SMS on 15th March but he had read the same only on 15th April. If the petitioner had submitted the requisite OBC Certificate during documents verification as had been done by other candidates, then there would have been no occasion for the Respondents to send E-Mail or SMS by the Recruitment Agency. The petitioner alone was not given such information he was only one amongst 197 candidates and there was no reason to believe that a professional Agency like M/s CMC Limited now (TCS) would be prejudiced/biased against the petitioner and not accept the OBC Certificate during Documents Verification.

(11) It has also been submitted in the Counter Affidavit that an ample opportunity having been provided to the petitioner to submit the relevant Certificate within the stipulated time frame, now no opportunity can be granted to him as it would vitiate the entire process and create undue hardships for such persons who stand selected. Also, the next Recruitment process has been initiated by the FCI through Advertisement No.1/2019 and a select list has been finalized and wait list for the same has also been finalized.

(12) Learned Senior Counsel appearing on behalf of the petitioner has referred to the Rejoinder affidavit filed to such counter affidavit of Shri Kaushik Nayak, where the petitioner has blamed M/s CMC Agency (now TCS Limited) for not handing over all the documents to the respondents. He has reiterated the contents of the writ petition saying that in the first waiting list, the petitioner had been shown as OBC Candidate but in the second waiting list he had been placed in General Category at Sl.no.276 without any reason. On 31.12.2015 the petitioner had received a letter from FCI for documents verification and the petitioner appeared for documents verification on 14.02.2015 alongwith his Caste Certificate. It has further been submitted that the petitioner is a resident of a rural area where no proper Internet connection is available, therefore, the petitioner did not receive any E-Mail from the respondents nor did the respondents send any SMS to the petitioner on his phone. The petitioner checked his E-Mail only when he returned to the Computer Center/Cyber Cafe in the City on 14.02.2016 where he found one E-Mail addressed to him. Thereafter the petitioner had sent several applications through E-Mail to the Respondents Authorities but his case for grant of reservation under OBC category has not been considered.

(13) Learned counsel for the petitioner has pointed out that there is no mention in the Advertisement that the OBC certificate of a candidate should be of a date prior to last date of submission of application Form. The various Paragraphs of the Advertisement which have been relied upon by the respondents in the counter affidavit, only state that the candidates should have necessary qualifications, age and experience etc. as on 01.01.2015. There is no denial of the fact that the petitioner is an OBC candidate and that he had a Certificate issued from the Competent Authority on 19.01.2016, which he has uploaded in April, 2016 after reading the E-Mail sent to him.

(14) Learned counsel for the petitioner has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Dheerender Singh Paliwal Vs. UPSC reported in LAWS (SC) 2016 496, where the appellant who was already working with the respondents as Senior Scientific Assistant in Forensic Science Laboratory filed an application for appointment as Senior Scientific Officer but his application Form was rejected for not submitting requisite Educational Qualification Certificate of MSc. His candidature having been rejected, he approached initially the Central Administrative Tribunal which directed for consideration of candidature of the appellant. The High Court in writ petition reversed the order of CAT and rejected the application of the appellant on the ground that he had not submitted the prescribed Educational Qualification Certificate in time. The Supreme Court held that production of MSc. degree Certificate at a later point of time should be considered as substantial compliance of requirement with regard to essential qualification. Moreover, the Respondents had not called upon the appellant to produce the required Certificates of Educational Qualification at any point of time. On the other hand, they had granted opportunity to other candidates to produce Caste Certificate at a later stage. It was in this background that the Court observed that if the appellant had mentioned in his application form that he possessd the essential Educational qualification namely Post Graduate qualification as well as Degree level qualification, if there was any doubt about any of the qualifications, the appellant should have been called upon to produce the required certificate. Such approach of the Respondent Commission was unfair having regard to the very trivial issue namely a non-production of Certificate of the essential qualification at the degree level which the appellant did possess, and for mere asking the appellant could have readily produced the same through his employer, when the petitioner was already working with the Respondent Commission as Senior Scientific Assistant and his personal record was maintained in his Department and all his Educational Certificates including his Certificate for Post Graduation had also been noted therein.

(15) Learned counsel for the Respondents, on the other hand, has placed reliance upon a judgment of a Full Bench of this Court in the case of Gaurav Sharma Vs. State of U.P. reported in 2017 (5) ADJ 494, wherein the questions before the Full Bench were noted in the first Paragraph of the report itself which were as follows:-

"(A) Whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date for submission of applications?

(B) Whether the decision in Arvind Kumar Yadav lays down and represents the correct position in law?

(C) Whether there exists any irreconcilable difference or repugnancy between the norms fixed by the Union and State Governments with regard to certification of creamy layer? If not, its effect."

The Division Bench in the said judgment has considered the law as settled by the Hon'ble Supreme Court more particularly Raj Kumar Gijroya Vs. Delhi Subordinate Services Selection Board reported in 2016 (4) SCC 754 for the proposition that if the Caste Certificate is submitted after the last date of submitting form it cannot be discarded or disregarded but has referred to other judgments of the Hon'ble Supreme Court and the Advertisement issued by the Respondents which stated that in case of any failure to produce original Caste Certificate by a candidate, his candidature in the Reserved Category would be rejected and the candidature shall be considered in Unreserved Category and no second opportunity shall be given to such candidate to substantiate his claim for reservation under OBC category. The Supreme Court's decisions with regard to possession of essential qualification including Caste Certificate etc. on the last date of submission of Application Form were noted by the Full Bench and it also noted decision of this Court by another Full Bench in case of Rajendra Patel Vs. State of U.P. reported in 2015 (8) ADJ 219, where the Full Bench of this Court had considered the validity of the requirement placed by the Public Service Commission upon the candidates to submit hard copies of documents and testimonials by a particular date although the same had already been uploaded alongwith online Application Form. This Court had observed thus:-

"Having regard to the clear stipulations which are contained in the advertisement which was issued by the Commission and the instructions to candidates in the brochure, all candidates were placed on an unambiguous notice in regard to the process of compliance and the consequences of a breach. Compliance was not made optional but was mandatory for all the candidates. When the Commission holds public examinations on such a large scale, candidates must be clearly aware of the fact that it is not open to a candidate to decide as to when an application should be submitted and compliance with the time schedule which has been indicated is mandatory. If this is not read to be mandatory, the entire process of holding an examination would stand dislocated. If no last date for the receipt of the hard copy of the application with the documents were to be provided for, the issue which would arise would be until when would the Commission be required to consider the application submitted. Should this be until the examination is held or should this continue until the date fixed for the holding of the interview? These aspects cannot be left in uncertainty more so at the individual discretion of candidates. The submission of the hard copy of the application together with the documents is not a mere ministerial act nor does it constitute a mere confirmation of the application which has been submitted online. Candidates who submit applications online are still required to submit full documentary evidence which evinces eligibility and satisfaction of the required conditions. For instance, a candidate who applies for a particular post may be required to hold a qualification with a specialisation in a particular subject. It is only on scrutinising the application and the documents that the Commission can determine whether the candidate does fulfil the required conditions. This process cannot be left in a perpetual state of indecision or uncertainty. Hence, we are of the view that as a matter of first principle, the time schedule which was prescribed by the Commission for submission of the print out copy of the application submitted online with the documents was of a mandatory nature. Non-compliance with the schedule would invite the consequence which was clearly specified, namely the rejection of the candidature of the applicant."

Accordingly the Full Bench in its answer to Question No.1 held that OBC candidates cannot be allowed to ignore the last date prescribed in the Recruitment notice.

(16) The Learned Senior counsel has tried to distinguish the Full Bench decision and has stated that nowhere in the Advertisement the last date of submission of Caste Certificate had been given. The last date that had been mentioned in the Advertisement is only with respect to Age, Educational Qualification, Experience etc. and not with regard to Reserved Category.

(17) This Court finds from a perusal of the Advertisement that it mentions that the last date of fulfilment of all criteria like Age/Qualifications/Experience etc. has been mentioned as 01.01.2015, the OBC Certificate submitted by the petitioner is dated 19.01.2016.

(18) With regard to the arguments raised by the learned counsel for the petitioner that such last date mentioned in the Application Form in the Advertisement is only with regard to Age, Experience and Educational Qualifications and not with regard to Reserved Category, this Court has considered Note-2 Annexure-B which contains the Prescribed Format of Certificate to be produced by OBC candidates competing for appointment on the posts under Government of India and it says clearly that last date for receipt of the application would be treated as relevant for reckoning of OBC status of the candidate and also for assuming that the candidate does not fall under the creamy layer. The last date for submission of Application Form was '17.03.2015'.

(19) On facts also, this Court finds from a perusal of the letter sent by the petitioner himself on 01.02.2018 to the Respondents that he has made a very farfetched claim in the said Representation. The petitioner said that he had submitted his Form claiming reservation under OBC category. However, because he had obtained more marks in written Examination he had been kept in General Category. When he was called for Documents Verification he had produced his OBC Certificate but the Official Incharge had told him that it was not necessary for him to produce his OBC Certificate as he had obtained more marks in the written examination and therefore, he was not in need of Reservation in OBC Quota. However, the petitioner still submitted his OBC Certificate. After documents verification he went to his village and kept waiting for the merit list to be declared. When he returned to the City he went to the Computer shop and opened his E-Mail account where FCI had sent notice to him to submit his OBC Certificate. The said notice was received by him through SMS that was also sent to him on 15th March but because Internet was not available to the petitioner, he read the SMS only on 15th April. The petitioner thereafter had gone back to the Office where Documents Verification was being done to give his OBC Certificate but he was told by the Official concerned that no help could be extended to him now as it was too late. As a result, he uploaded this OBC Certificate the same E-Mail address through which he had received the notice. By the time he had uploaded his OBC Certificate, no merit list has been declared. However, when the merit list was actually declared he was shown him in General Category and not given Reservation. Lastly, the petitioner prayed that since his OBC Certificate could not be deposited in time, he may be given opportunity to deposit the same as the fourth wait list was about to be declared and that he may be considered as OBC candidate for the fourth wait list.

(20) It is evident from a copy of the Representation filed at Page-54 of the paper book that the petitioner did not deliberately mention the date of submission of such Representation, nor did he mention the year in which E-Mail/SMS dated 15th March was sent and the year in which he actually read on 15th April. In the counter affidavit filed by Shri Kaushik Nayak, however, the actual date of the Representation made by the petitioner is evident on the top right hand side corner as "01.02.2018" which was received on 09.02.2018.

(21) It is apparent from a perusal of the representation of the petitioner that he has tried to play hide and seek both with the authorities and with this Court. Initially he did not possess the OBC Certificate in the Prescribed format. He obtained the Certificate only on 09.01.2016. He was called for Document Verification where he did not submit his OBC Certificate in original and then made up a story that the official Incharge of the Document Verification did not think it necessary because he had obtained more marks and was placed in General Category. In the writ petition the petitioner has stated that he was initially placed in the OBC Category when select list for Document Verification was issued but later on shown in Unreserved category when final selection was declared. It could not have been possible during the time of Document Verification for the official Incharge to know about the final select list to assure the petitioner that he had more marks than cut off marks of the Unreserved category.

(22) This Court finds no good ground to show interference and grant the prayer as made in this petition.

(23) The petition is dismissed. No order as to costs.

Order Date :- 22.8.2022

PAL