Manoj Kumar Prasad And 5 Ors vs Bank Of India And Anr
2021 Latest Caselaw 4170 Bom

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Trusha T.
Mohite
                              ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by Trusha T.
Mohite
Date: 2021.03.10
                                          WRIT PETITION NO.152 OF 2019
12:45:09 +0530




                   Manoj Kumar Prasad and Ors.                        ..... Petitioners

                            Vs.

                   Bank of India and Another                          ..... Respondents


                   Mr.Kranti L.C. for the Petitioner

                   Ms.Lancy   D'souza     a/w   Ms.Deepika                     Agarwal       i/b
                   Mr.V.M.Parket for the Respondent no.1

                   Mr.Atul S. Singh for the Respondent no.2/Union of India




                                                   CORAM:     K.K.TATED &
                                                              RIYAZ I. CHAGLA, JJ.

                                                   DATED :    MARCH 8, 2021
                   P.C.

                   .        Heard.

2. By this petition, under Article 226 of the Constitution of India, Petitioner challenges the clause no.6 of Advertisement dated 01.04.2018 issued by Respondent Bank for calling Application for the post of Offcers in General Banking Stream. Clause (vi) of the said advertisement reads thus:

"(vi) Caste Certifcate issued by competent

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authority in the prescribed format as stipulated by Government of India in case of SC/ST/OBC category candidates. In case of candidates belonging to OBC category, certifcate should specifcally contain a clause that the candidate does not belong to creamy layer section excluded from the benefts of reservation for Other Backward Classes in Civil post & services under Government of India. OBC caste certifcate containing the Non-creamy layer clause should be issued during the period 01.04.2017 to 31.03.2018. Caste Name mentioned in certifcate should tally letter by letter with Central Government list/ notifcation.

Candidates belonging to OBC category but coming under creamy layer are not entitled to OBC reservation. They should indicate their category as General in the online application form."

3. The learned counsel for the Petitioner submits that the said clause is contrary to the offce memorandum dated 31.03.2016 issued by the Government of India. He relies on paragraph (b) of the said memorandum which reads thus:

"b) The Non-creamy Layer Certifcate would be applicable to OBC candidates who are covered under Income/Wealth Test criterion. The income limit is decided on the basis of income earned during three previous fnancial years preceding the year of appointment. To illustrate, the validity of non-creamy layer certifcate issued during any month of the fnancial year 2016-17 covering 3 preceding fnancial years viz. 2013-14, 2014-15 and 2015-16 be accepted by the concerned authorities for any appointments or recruitments which would be valid during the period April 2016 to March 2017. The appointing authorities would

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accept production of self-attested photo copy of the Non-creamy layer certifcate, subject to verifcation of the original Non-creamy layer certifcate, as is the practice being followed for verifcation of other original documents."

4. The learned counsel for the Petitioner submits that in the present proceedings the Petitioners obtained the OBC Caste Certifcate containing Non-Creamy layer in the month of May 2018 to August 2018. He submits that the issue involved in the present matter is covered by the judgment of the Apex Court in the matter of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Bard and Another, (2016) 4 SCC 754. He relies on paragraph 14 of the said order.

"14. The Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa (supra). In that case, the learned single Judge of the High Court had rightly held that the Petitioners therein were entitled to submit the O.B.C. certifcate before the provisional selection list was published to claim the beneft of the reservation of O.B.C. category. The learned single judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in the case of Indra Sawhney v. Union of India : 1992 (Supp) 3 SCC 217 as well as Valsamma Paul v. Cochin University and Ors. : (1996) 3 SCC 545.

The learned single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh (supra),

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wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of the late submission of caste certifcate."

5. On the other hand, the learned counsel for the bank submits that the Apex Court by its order dated 24.01.2020 matter is referred to the larger bench in the case of Karn Singh Yadav vs. Govt. of NCT of Delhi and Ors. in Petition for Special Leave to Appeal (C) No.14948 of 2016. He relies of following paragraph of the said order which reads thus:

"In view of the acute problem of unemployment, whenever few vacancies are notifed by any public authority, it is common that thousands of applicants apply for such posts. If the applicants are permitted to rectify applications after cut-off dates, the same would render the scrutiny process indefnite. In the course of such recruitment process, many persons, though they belong to the OBC category or SC/ST category, might not have obtained the required caste certifcate before the cut -off date. Such persons, being law abiding and being conscious of the bar contained in the notifcation of the cut-off date, might not have applied seeking employment. In case the authority starts accepting caste certifcates subsequent to the prescribed cut-off dates whenever a candidate approaches the authority, the remaining candidates who had not applied would defnitely be affected. If the applicants are allowed to submit certifcates in proof of their claim of reservation subsequent to the notifed cut-off date, it would create administrative chaos.

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In practice, for every advertisement, there are such belated claims claiming reservation, though the candidates did not submit certifcate from the competent authority, before the cut-off date. In view of the general importance of the question, we are of the view that the issue which fell for consideration in the case of Ram Kumar Gijroya (supra) requires to be considered by a larger Bench of three - Judges."

6. The learned counsel for the Respondent bank further submits that if Petitioner's Application is considered on its own merits there are several candidates whose Application is rejected by the bank only on the same ground. Therefore, it is not possible for them to consider Petitioner's Application at present.

7. Considering the facts and circumstances of the present matter and as the issue of the case in hand is already referred to the larger bench by the Apex Court as per order dated 24.01.2020 in Special Leave to Appeal (C) 14948 of 2016 Karn Singh Yadav vs. Govt. of NCT of Delhi and Ors., the following order is passed:

a.       Admit.


b.       Ad-interim   protection   granted    by    order       dated

16.08.2018 to continue till the hearing and fnal disposal of the Writ Petition.

c. Hearing of Writ Petition is expedited.

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d.       The learned counsel for the RespondentS waives
service.


e.       Registry is directed to place the matter for fnal

hearing in weekly board as per its turn in the list of expedited matters.

(RIYAZ I. CHAGLA, J.)             (K.K.TATED, J.)




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