Delhi High Court
Hari Singh vs Staff Selection Commission & Anr. on 6 April, 2010
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 03.03.2010
% Judgment delivered on: 06.04.2010
+ W.P. (C) No.11928/2009
HARI SINGH .....Petitioner
Through: Mr. G.D. Gupta, Senior Advocate
with Mr. R. B. Bansal, Advocate and
petitioner in person.
versus
STAFF SELECTION COMMISSION & ANR. ....Respondents
Through: Mr. Sachin Datta with Mr. Manikya
Khanna, Advocates.
CORAM:
HON'BLE MR. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
JUDGMENT
VIPIN SANGHI, J.
1. The petitioner has filed this writ petition under Article 226 of the
Constitution of India to seek the issuance of a writ of mandamus,
thereby directing respondent no.1 i.e. the Staff Selection Commission
(SSC) to recommend the name of the petitioner for appointment to one
of the Central Police Organisations i.e. Central Reserve Police Force
(CRPF), Indo-Tibetan Border Police (ITBP) or the Border Security Force
(BSF) as per the preference exercised by him in his application
submitted in response to public notice published, inter alia, in
Employment News of 18-24.08.2007 to fill up posts of Sub Inspectors in
various Central Police Organisations, and for a direction that
respondent no.2 i.e. the CRPF should appoint him as a Sub-Inspector.
2. The petitioner initially joined as R.II(Constable/GD) in the CRPF as
an OBC category candidate at Group Centre, CRPF, Ajmer, Rajasthan
on 2.8.1995 and was allotted Force No.951222106. His service as R.II
(Constable/GD) was confirmed after completion of training and
probation w.e.f. 11.09.1997. He joined the services of the National
Security Guard (NSG) on deputation w.e.f.15.03.2004 and is presently
posted in 12 SRG, NSG Training Centre, Manesar, Gurgaon, Haryana.
He submits that while in service, in the year 2006 respondent no.2
applied as a departmental candidate for appointment to the post of
Sub-Inspector (SI/GD). He emphasizes that he applied as a candidate
belonging to the OBC category and his candidature as an OBC
candidate was entertained by respondent no.2. However, it appears,
he did not qualify in the said departmental examination.
3. The dispute in the present case has arisen as, even though the
petitioner is undoubtedly an OBC candidate who does not fall within
the creamy layer and is more meritorious than the last OBC candidate
selected by SSC for the post of Sub-Inspector in the selection process
in question, he has not been selected because the OBC certificate
submitted by him was not in the prescribed format and he had not
submitted the requisite OBC certificate. The respondents, therefore,
treated the petitioner as a general category candidate and did not
select him as he did not make the cut as a general category candidate.
4. Respondent no.1 issued a public notice inviting applications for
recruitment to various posts of Sub-Inspector in Central Police
Organisations by holding an open competitive examination on All India
basis. The said advertisement was published, inter alia, in the
Employment News of 18-24.08.2007. The closing date for submission
of applications was 14.09.2007. The following number of vacancies in
the various Central Police Organisations reserved for the other
backward classes were notified in this notice:
Sl. Name of the Force No. of
No. Reserved
seats for OBC
candidates
3. CISF Male 120
Female 12
5. Under clause 4(B), a note was appended, which is relevant for
our purpose, and the same reads as follows:-
"NOTE: The closing date for receipt of application will be treated
as the date of reckoning for OBC status of the candidate and
also, for assuming that the candidate does not fall in the creamy
layer.
The candidate should furnish the relevant OBC Certificate
in the format prescribed for Central Government jobs as per
Annexure-VIII issued by the competent authority on or before the
Closing Date stipulated in the Notice. OBC Certificate obtained
otherwise than the prescribed certificate meant for Central
Government jobs will not be considered for seeking
relaxation/reservation whatsoever".
6. Under clause 4(D) (ii), relaxation in age limit was admissible to
departmental candidates who have rendered not less than three years
continuous and regular service as on 14.09.2007. For Sub-Inspectors
serving in CRPF, the upper age limit was 40 years for the general
candidates; 45 years for SC/ST category candidates; and 43 years for
OBCs. Clause 4(E), which deals with process of certification and
format of certificates, in so far as it is relevant, reads as follows:
"4(E) : Process of Certification and Format of Certificates:
Candidates who wish to be considered against vacancies
reserved/to seek age relaxation, must submit requisite certificate
from the competent authority alongwith their application for the
examination, otherwise, their claim for SC/ST/OBC/ExS status will
not be entertained and their applications will be considered as if
same are from General (UR) category candidates. The nature &
format of certificate is as under:-
(i) .........
(ii) .........
(iii) .........
(iv) Annexure VIII for OBC Category Candidates;
(v) .........
(vi) ... ... ..."
7. Note-II also required the candidates to submit along with their
applications attested certificates in support of their claims regarding,
inter alia, their belonging to the "Other Backward Classes". This clause
further stated "The candidates applying for the examination should
ensure that they fulfill all the eligibility conditions for admission to the
examination. Their admission at all the stages of examination for
which they are admitted by the Commission (written examination and
interview/personality test) will be purely PROVISIONAL, subject to
their satisfying the prescribed eligibility conditions. If on verification at
any time before or after the written examination and
Interview/Personality test, it is found that they do not fulfill any of the
eligibility conditions, their candidature for the examination will be
cancelled by the Commission".
8. Clause 27 of the public notice stated that applications having the
listed deficiencies or irregularities would be summarily rejected. It was
also stated that the listed deficiencies or irregularities were only
illustrative and not exhaustive. Entries 11 and 12 of the list, reads as
follows:
"11. Without proper certificates, in respect of SC/ST/OBC
candidates and Ex-servicemen/relaxation sought in
age or physical standards. Certificate should be
obtained from the competent authority in the
prescribed format.
12. Without Declaration by OBC candidate in the format
as given in Annexure I (i.e. Application Form) by the
Candidate."
9. Under instructions relating to submission of application, it was
inter alia, provided in clause 10 (x), that candidates had the option to
submit either self attested/self certified photocopies of various
documents or to submit photocopies of various documents duly
attested by a Gazetted Officer as per extant procedure along with the
application form. It was provided that the original documents or
certificates would be verified at the time of personal test/interview and
their candidature will be subject to result of such scrutiny.
10. The petitioner applied in response to the said public notice. The
petitioner has stated that his parent department, namely CRPF, after
verifying the service record of the petitioner issued a service certificate
acknowledging the petitioner as a departmental OBC candidate. The
said service certificate was also annexed with the application form
submitted by the petitioner to claim age relaxation. We may, however,
note that the date of birth of the petitioner being 20.12.1973, he did
not require relaxation of age on account of his being an OBC candidate
as the petitioner was well below the age of 40 years, which was the
upper age limit for the general category departmental candidates.
11. The petitioner submits that in his application, he gave preference
for appointment to the post of Sub-Inspector in CRPF, CISF, SSB, ITBP
and BSF. He also submitted a copy of the OBC certificate dated
09.06.1994/16.06.1994 issued by the Tehsildar, Tehsil Bayana, which
certified that the petitioner belongs to the "Bangara" caste which
comes under the category of backward classes as per State
Government of Rajasthan Notification No.11 (125) (R) & B/S.F./46631
dated 27.08.1993. This certificate also certified that the petitioner
does not belong to the creamy layer. This was the same certificate
which the petitioner claims to have submitted and accepted at the
time of his appointment as an OBC candidate in the CRPF on the post
of R.II (Constable)/G.D.).
12. The petitioner was issued the admission certificate for the
examination in question, wherein it was clearly stated that the
petitioner was placed under the OBC category. The petitioner
appeared in the written examination held on 16.12.2007, wherein he
was declared successful. Vide a communication dated 31.05.2008, the
SSC informed the petitioner that he had "provisionally" qualified in the
said examination and that he had been "provisionally" found eligible
for being called for the PET and medical test. He was required to
appear for the PET on 15.07.2008 and for the medical test on
16.07.2008 respectively at 23 Bn ITBP, Dehradun, Uttrakhand.
13. In the communication dated 31.05.2008, in paragraph 7 (iv), the
respondent SSC stated that OBC category candidates must submit
their OBC certificate in the prescribed proforma for Central
Government offices as per Annexure VIII of the notice of examination
issued by the competent authority on or before 14.09.2007, failing
which the candidate would be treated as unreserved category
candidate subject to fulfillment of other eligibility conditions.
14. The petitioner submits that he accordingly appeared for the PET
and medical test on the aforesaid dates and cleared the same. The
petitioner submits that at that stage he was coerced into giving an
undertaking to the effect that since he had not furnished the OBC
certificate in the prescribed proforma, he would not claim OBC status
and that he may be considered as a general category candidate.
15. The petitioner submits that he had already applied to the
competent authority for issuance of the requisite OBC certificate in the
prescribed proforma contained in Annexure VIII some time in August,
2008. The said application was made by the petitioner to the Tehsildar
who had issued the earlier OBC Certificate. However, the said
certificate was not made available to the petitioner till as late as
04.06.2009.
16. In the meantime, the respondent SSC issued a communication
dated 04.05.2009 to the petitioner informing him that on the basis of
the results of the PET/medical test and written examination, the
petitioner had been found provisionally eligible for being called for
interview. By this communication he was called for interview on
25.05.2009. In paragraph 2(vi) of this communication the respondents
once again stated that OBC category candidates must submit their
OBC certificate in the prescribed proforma for Central Government
offices as per Annexure VIII of the notice of examination issued by the
competent authority on or before 14.09.2007, failing which the
candidate would be treated as an unreserved category candidate
subject to fulfillment of other eligibility conditions.
17. The respondents, it appears, also published their results and
called the candidates for interview, by publishing the same in the
"Employment News" published for the period 16-22 May, 2009. The
petitioner submits that in the list of candidates who were declared as
qualified for appearance in interview, the name of the petitioner was
mentioned at serial no.148 and the respondents had shown his
category as category-6, which undisputedly is the category number
assigned to OBC candidates.
18. The petitioner submits that upon seeing the aforesaid result as
published in the Employment News of 16-22 May, 2009, wherein the
petitioner was shown as belonging to the OBC category, he was led to
believe that the respondents had accepted his status as an OBC
category candidate on the basis of the OBC category certificate
already submitted by him along with his application form. He submits
that when he appeared for interview on 25.05.2009, the respondents
did not even ask him to produce his OBC certificate in the prescribed
proforma and this conduct of the respondents further led him to
believe that so far as his candidature is concerned, the same had been
accepted by the respondents as one falling under the OBC category
not covered by the creamy layer.
19. As aforesaid, the requisite OBC certificate in the prescribed
proforma (as contained in Annexure VIII to the public notice aforesaid)
was made available to the petitioner on 04.06.2009. The petitioner
submits that even though the said certificate became available on the
said date, he did not consider it necessary to submit the newly
obtained OBC certificate in the prescribed proforma to the respondent
SSC, as he continued to reel under the bonafide impression that the
respondents had accepted the certificate earlier submitted by him and
were treating him as a candidate belonging to the OBC category not
falling in the creamy layer. He submits that the final results of the
selection process had not been declared by the respondents by the
time the fresh OBC certificate had been made available, and if he had
not been carrying the bonafide impression that his candidature as an
OBC category candidate had been accepted, he would have submitted
the fresh certificate without any delay. The petitioner submits that
when the final results were declared by the respondents on 20.07.2009
and he did not find his name against the selected candidates under the
OBC category, even though he had secured 226 marks and OBC
candidates with 201, 155 and 203 marks had been selected for
appointment to the post of Sub Inspectors in CRPF, ITBP and BSF
respectively, he realized that his candidature had been considered as a
general category candidate and not as an OBC category candidate.
20. In this background, the petitioner has filed the present writ
petition for the reliefs as stated herein above. The respondents have
filed their counter affidavit and the reason for non-selection of the
petitioner as an OBC category candidate is stated to be his failure to
submit the requisite OBC category certificate in the proforma
prescribed under Annexure VIII. It is stated that the petitioner had
been treated as a general category candidate for which the petitioner
had also furnished an undertaking on 15.07.2008. The respondents
state that the last selected general category candidate had secured
higher marks than the petitioner and, consequently, the petitioner has
not been selected in the selection process in question.
21. Mr. G.D. Gupta, learned senior counsel for the petitioner has
submitted that even the respondents do not deny the status of the
petitioner as belonging to the OBC category outside the creamy layer.
He submits that the petitioner had submitted his earlier OBC category
certificate issued by the very same authority who had issued the
subsequent certificate dated 04.06.2009. The earlier certificate had
certified that the petitioner belongs to the "Bangara" caste which
comes under the category of backward classes as per the State
Government of Rajasthan Notification and that the petitioner did not
come within the creamy layer. He submits that the conduct of the
respondents in treating the petitioner, who had applied under the OBC
category as a general category candidate, only because the petitioner
did not have the requisite OBC certificate by 14.09.2007 (the closing
date for submission of the application form) is illegal and contrary to
various pronouncements of the courts. He submits that it is sufficient
compliance of the requirement if a candidate submits the OBC
category certificate prior to the declaration of the results. However, in
the present case, the petitioner though possessed of the requisite OBC
category certificate before the date of declaration of the final results,
was prevented from submitting the same prior to the declaration of the
result on account of the misleading conduct of the respondents, which
led the petitioner to believe that there was no need for him to submit
any fresh certificate as the respondents had categorized the petitioner
as an OBC category candidate on the basis of the OBC Certificate
already submitted by him in their publication in the Employment News
of 16-22 May, 2009, and had not even demanded the same when the
petitioner appeared for interview on 25.05.2009.
22. In support of his submissions, Mr. Gupta has placed his reliance
upon the decision of this court in Tej Pal Singh & Anr. v. Govt. of
NCT of Delhi & Anr., 120 (2005) DLT 117; the decision of the
Division Bench of this court arising out, inter alia, of the aforesaid
decision in LPA No.304/2000, Delhi Subordinate Services
Selection Board & Anr. v. Tej Pal Singh & Others, decided on
15.12.2000; the decision of the Division Bench of this court in Delhi
Subordinate Services Selection Board v. Ms. Anu Devi & Anr.,
WPC No.13870/2009 and various other writ petitions decided on
17.02.2010. He relies on another Division Bench judgment of this
court in Govt. of NCT of Delhi & Anr. v. Poonam Chauhan, WPC
No.548/2008 decided on 09.07.2008; and the decision of learned
Single Judge of this court in Abhishek Saini v. University of Delhi &
Anr., WPC No.10257/2009 decided on 13.08.2009. We propose to
discuss the aforesaid discussions a little later in this judgment.
23. The respondents have opposed the writ petition stating that at
the time of the petitioners PET/medical test, it was observed that the
OBC certificate submitted by the petitioner along with his application
form was not in the prescribed proforma. Therefore, his candidature
was considered as a general category candidate after the petitioner
submitted an undertaking on 15.07.2008 to the effect that although he
had applied and qualified in the written part of the examination in OBC
category, but as he had not furnished the OBC category certificate in
the prescribed proforma, he may be treated as an unreserved, i.e.
general category candidate. The respondents further state that under
the unreserved category, the petitioner failed to make it to the final
select list. The respondents further state that as per paragraph 4(D)(ii)
of the public notice, it was incumbent on the petitioner to ensure that
he submits a valid OBC certificate in the prescribed proforma of a date
before the cut-off date, namely 14.09.2007 which was the last date for
submission of the application form.
24. We now proceed to examine the judgment of a learned Single
Judge of this Court in Tej Pal Singh (supra) in detail. As noticed
above, this decision has been affirmed by the Division Bench of this
Court and the Special Leave Petition to challenge that decision has also
been rejected by the Supreme Court. This court in Tej Pal Singh
(supra) was dealing with a case where the petitioners belonged to the
SC category. The caste certificates submitted by the petitioners were
not considered by the respondents for selection to the posts of
teachers in the Municipal Corporation of Delhi/NDMC on the ground
that their certificates were submitted after 30.06.1998 which was the
last date specified for the purpose. According to the petitioners, they
had submitted the requisite certificates, including their caste
certificates, and after perusing the same and being satisfied therewith,
the respondent board had called the petitioners for verification
between 06.10.1998 and 22.10.1998. The petitioners had further
submitted that they had attended the office of the respondent board
for verification and checking of the original documents. However,
subsequently the petitioners learnt that their candidature was not
considered on the ground that the caste certificates were dated post
30.06.1998 and only those candidates whose certificates were dated
prior to 30.06.1998, were considered. It was argued that this action of
the respondents was arbitrary and illegal and that the date of the
certificate is immaterial, as what is relevant is the fact that the
petitioners belonged to the SC category and this fact does not change
whether the certificate is issued prior to 30.06.1998 or after
30.06.1998. The submission of the petitioner was that though they
had submitted their caste certificates along with their applications,
however, those certificates were not issued by the competent authority
under the Govt. of NCT of Delhi. However, before the date for
verification of the certificates arrived, they had applied for and
obtained the requisite caste certificates issued by the competent
authority. The petitioners submitted that as per the guidelines issued
on reservations and concessions for SC and ST candidates, the
petitioners were entitled to submit such certificates even after the cut
off date. It was also argued that the cut off date fixed in the
advertisement was fixed for the purpose of educational qualification,
professional experience and age limit and did not apply to production
of SC certificate issued by the competent authority. On the other
hand, the submission of the respondent was that the application form
had to be submitted duly complete in all respects by 30.06.1998. The
application was required to be accompanied with copies of documents
showing the educational qualification, professional expertise, age limit
along with SC/ST/OBC certificate, if any, issued by the competent
authority. Since the last date for submission of the applications
including copy of SC/ST/OBC certificate was 30.06.1998, it follows that
the certificate which was to be submitted had to be of a date prior to
30.06.1998. It was argued that the cut off date of 30.06.1998 adopted
by the respondent board for administrative purposes had been made
applicable uniformly and therefore, the same was not in violation of
Article 14 of the Constitution of India.
25. The Court by a considered judgment accepted the petitioner's
contentions. The court observed that it was an undisputed fact that
the petitioners belong to the SC category. The petitioners had
submitted their applications in the prescribed form by 30.06.1998
along with all requisite documents including SC certificate. However,
the SC certificates had been issued by other State Governments and
not by Government of NCT of Delhi. The petitioners had been able to
obtain SC certificates issued by Govt. of NCT of Delhi after 30.06.1998
and submitted the same as and when they had received the
certificates. The certificates had been submitted before the petitioners
were called for verification of their documents by the respondent
board.
26. The learned Single Judge extracted paragraphs 3 and 4 from
Chapter II of Swamy's Compilation of Reservations and Concessions for
Scheduled Castes and Scheduled Tribes. The said paragraphs read as
follows:
"3. Provisional appointment subject to verification -
Even where the prescribed certificates have been
produced, the appointing authorities should include a
clause in the offer of appointment as follows:-
"The appointment is provisional and is subject to the
caste/tribe certificates being verified through the
proper channels and if the verification reveals that
the claim to belong to Scheduled Caste or Scheduled
Tribe, as the case may be, is false, the services will
be terminated forthwith without assigning any
further reasons and without prejudice to such further
action as may be taken under the provisions of the
Indian Penal Code for production of false
certificates."
4. Provisional appointment when prescribed certificates
not produced.
Where a candidate belonging to an S.C. or S.T. is unable to
produce a certificate from any of the prescribed
authorities, he may be appointed provisionally on the basis
of whatever prima facie proof he is able to produce in
support of this claim, subject to his furnishing the
prescribed certificate within a reasonable time. If there is
genuine difficulty in his obtaining a certificate, the
appointing authority should itself verify his claim through
the District Magistrate concerned. Appointment of an S.C.
or S.T. candidate should not be withheld/delayed pending
verification of caste status."
27. After extracting the aforesaid paragraphs, the court held as
follows:
"13. Thus as per the aforesaid provisions when the
certificate is produced it is subject to the verification
so that the authorities concerned are satisfied about
the genuineness of the certificate and the fact that
candidate belong to SC/ST category. Moreover
even if no certificate is produced the
appointment is to be given to SC or ST
candidate provisionally on the basis of
whatever prima facie proof he is able to
produce in support of his claim subject to
furnishing the prescribed certificate within
reasonable period. Not only this it is further
prescribed that if the candidate is feeling genuine
difficulty in obtaining certificate, the authority should
itself verify his claim through the Magistrate
concerned and appointment of SC/ST candidates
should not be withheld/delayed pending such
verification of caste status. To my mind, these
instructions which prescribe the procedure as to how
and when certificate is to be or can be produced,
clinch the issue in this case. It prescribes, in no
uncertain terms that a person who claims to
belong to SC/ST category is not to be denied
appointment merely because he has not been
able to produce the certificate. On the
contrary, even after the provisional
appointment he is unable to produce the
certificate because of genuine difficulty,
obligation is cast upon the authorities to verify
his claim. In this case admittedly all the petitioners
produced the certificate before 30th June, 1998 to
the effect that they belong to SC category. However,
these certificates were issued by other State
Governments and not by Government of NCTD. Thus
along with their application they submitted prima
facie proof in support of their claim that they belong
to SC category. Not only this they could even
produce the certificate from competent authority of
government of NCTD also much before the
verification of the original certificates by the Board.
Thus the appointment could not have been
denied to the petitioners merely because the
certificate issued by the competent authority
of government of NCTD are dated after 30th
June, 1998." (emphasis supplied)
28. The Court went on to examine the matter from another
standpoint. It was observed that the vacancies had been reserved for,
inter alia, SC category/candidates. In order to be considered for the
post reserved for SC category, the requirement is that the person
should belong to that category. If a person is Scheduled Caste, he is so
by birth and not by acquisition of that category because of any other
event happening at a later stage. A certificate issued by a competent
authority to the effect that a candidate belongs to the SC category is
only an affirmation of a fact which is already in existence. The purpose
of such a certificate is to enable the authorities to believe the assertion
of the candidate that he belongs to SC category and act thereon by
giving benefit to such SC candidate. The court held that it could not be
said that the petitioners did not belong to the SC category prior to
30.06.1998 or that they acquired the status of belonging to the
scheduled castes only on the date of issuance of the certificate.
Consequently, the court held that the requirement that the caste
certificate should be dated prior to 30.06.1998 would be clearly
arbitrary, as it had no rationale objective sought to be achieved. The
court further held as follows:
"18. While taking a particular view in such matters one
has to keep in mind the objectives behind the post of SC
and ST categories as per constitutional mandate prescribed
in Articles 15(4) and 16(4) which are enabling provisions
authorising the Government to make special provisions for
the persons of SC and ST categories. Articles 14(4) and
16(4), therefore, intend to remove social and economic
inequality to make equal opportunities available in reality.
Social and economic justice is a right enshrined for
protection of society. The right in social and economic
justice envisaged in the Preamble and elongated in the
Fundamental Rights and Directive Principles of the
Constitution, in particular Arts. 14, 15, 16, 21, 38, 39 and
46 are to make the quality of the life of the poor,
disadvantaged and disabled citizens of the society
meaningful.
19. One can usefully draw sustenance from the following
words of wisdom spoken by the Apex Court in Valsamma
Paul (Mrs.) Vs. Cochin University and others, reported in
AIR 1996 SC 1011:-
"The Constitution through its Preamble, Fundamental
Rights and Directive Principles created a Secular
State based on the principle of equality and non-
discrimination, striking a balance between the rights
of the individuals and the duty and commitment of
the State to establish an egalitarian social order. The
emphasis, therefore, is on a citizen to improve
excellence and equal status and dignity of person
with the advancement of human rights and
constitutional philosophy of social and economic
democracy in a democratic polity to all the citizens
on equal footing....."
20. For this reason Government has itself come out with
the aforesaid guidelines permitting the candidates to
submit proof that they belong to SC category, by furnishing
the certificate issued by competent authority within
reasonable time even if it is not submitted at the time of
making the application for the job."
29. The court also noticed the decision of the Division Bench of the
Bombay High Court in the case of Deepak v. Competent Authority
for the Purpose of Admission to Engineering Course in
Government Engineering College, Pune, AIR 1997 Bom 1,
wherein it had been held that the requirement that caste verification
certificate must accompany the application form should not be insisted
upon, and it cannot be made a pre-condition for accepting the
application forms and considering the claim of the candidates, in
particular, those claiming to belong to the reserved category. The
Bombay High Court had observed that the applications accompanied
by the caste certificate issued by the Taluka Executive Magistrate
should be held to be sufficient for considering the claim of the
candidate in a particular reserved category. The admission so granted
would be provisional subject to the result of the scrutiny committee. If
the caste claimed is held to be not a reserved caste and/or the caste
certificate is invalidated by the scrutiny committee finally, then the
admission will also stand cancelled.
30. The decision of the learned Single Judge in Tej Pal Singh (supra)
having been affirmed by the Division Bench in LPA No.304/2000
decided on 15.12.2000, and the Special Leave Petition preferred by the
Government also having been dismissed in limine by the Supreme
Court on 16.04.2001, so far as this court is concerned, the said
decision has attained finality.
31. In Anu Devi & Anr. (supra), a Division Bench of this court was
considering the question whether the respondent candidates were not
entitled for selection to the post of primary teacher under the OBC
category as they had not submitted their OBC certificates along with
their application forms by 29.08.2007, which was the last date for
submission of the application forms, but they had submitted the OBC
certificates within the time granted later on by the notices issued by
the petitioner government. However, the OBC certificates had been
issued on a date later than the last date for submission of the
application form. The issue had been decided in favour of the
Respondents by the Principal Bench of the Central Administrative
Tribunal.
32. The Delhi Subordinate Services Selection Board & Others,
petitioners before this Court, sought to distinguish the decision in Tej
Pal Singh (supra) on the ground that Tej Pal Singh (supra) was a
decision concerning SC and ST candidates and not candidates
belonging to the OBC category. It was argued that in relation to OBC
category candidates, not only the caste is relevant but the fact that the
candidate does not belong to the creamy layer is also equally relevant.
The fact that the candidate did not belong to the creamy layer could be
ascertained only at the time of the issuance of the OBC certificate.
33. While dealing with the aforesaid submissions, the Division Bench
in Anu Devi (supra) observed as follows:
"12. ... ... .... ... In Jnan Ranjan Sen Gupta and
Ors (Supra) while dealing with the ambit of
erection of structure on land under Calcutta
Thika Tenancy Act the Supreme Court had held
that it was a piece of beneficial legislation
conferring certain rights upon the tenancies
and in dealing with such provisions of law
something which is not already there cannot be
read in it, as reading such a thing which is not
in the provision will lead to imposing a
restriction upon the rights of the class of
tenants by judicial interpretation which is not
permissible in absence of express words to that
effect or necessary manifest intendment.
13. Dealing with the principle of statutory
construction in American Express International
Banking Corporation (Supra) the Supreme
Court has held that the words occurring in
statutes of liberal import such as social welfare
legislation and human rights‟ legislation are
not to be put in Procrustean beds or shrunk to
Lilliputian dimensions. It was held that literal
construction must be avoided and the
prodigality of its misapplication must be
recognized and reduced and Judges ought to
be more concerned with the "color", the
"content" and the "context" of such statutes.
Similarly, in Shyam Sunder and Ors (Supra) it
was held that if it is found that there is a doubt
in regard to the meaning of a provision or
words used in the provisions of an enactment,
it is permissible for the court to apply the rule
of benevolent construction to advance the
object of the Act. Ordinarily, the rule of
benevolent construction has been applied
while construing welfare legislations or
provisions relating to the relationship between
weaker and stronger contracting parties. While
interpreting "accidental falling off a passenger
from a train carrying passengers" it was held
by the Supreme Court in Union of India Vs
Prabhakaran Vijaya Kumar (supra) that
adopting a restrictive meaning will deprive a
large number of railway passengers from
getting compensation in railway accidents. In
the circumstances it was held that the
expression "accidental falling of the
passengers from the train carrying passengers"
would include accidents when a bone fide
passenger i.e. a passenger travelling with a
valid ticket or pass is trying to enter into a
railway train and falls down during the process.
It was held that a purposive and not literal
interpretation should be given to the
expression.
14. In Govt. of NCT of Delhi and anr. Vs
Poonam Chauhan, 152 (2008) DLT 224 (DB)
the candidature of the candidate for the post of
Domestic Science teacher was cancelled on the
ground that the OBC certificate was issued by
the concerned SDM after the closure of date of
submission of application form. The Division
Bench of this court had noticed that the
candidate belonging to OBC and not falling in
creamy layer was not disputed. It was also not
disputed that the application form was
submitted by the candidate before the closing
date of receipt of application form. The
authorities in this case had also not disputed
that after the last date for submission of the
application forms, they had directed the
candidate to furnish the attested copies of the
relevant document in support of claim of
reservation duly attested by any appropriate
authority. Refereeing to relevant office
memorandum it was noticed that it did not
specify that the caste certificate issued
subsequent to the date of closing of receipt of
application could not be considered or looked
into. Considering these facts and
circumstances, the order of the Central
Administrative Tribunal setting aside the order
of the Government of NCT cancelling the
candidature of the candidate was upheld.
15. .........................
16. .........................
17. .........................
18. .........................
19. In any case the submission of OBC
certificate for reservation under the OBC
category cannot be equated with
acquisition of the educational
qualification. A candidate becomes
eligible under the OBC category, the day
the caste he belongs to is notified by the
appropriate authority as a backward
class. Though the learned counsel for the
petitioners has emphasized that whether
a candidate belongs to a creamy layer or
not is to be determined only on issuance
of a certificate, however, taking into
consideration the entirety of the facts
and circumstances, in our view the
candidates not belonging to a creamy
layer whose caste is notified as a
backward class becomes entitled for
reservation under the OBC category and
submission of the requisite certificate is
only a ministerial act which cannot be
equated with acquisition of educational
qualification to become eligible for a
post. Consequently, the plea of the learned
counsel for the petitioners that the
respondents/candidates became eligible for
selection in the OBC category on the dates the
certificates were issued by the appropriate
authorities, cannot be accepted. This plea in
the present facts and circumstances should
also be not accepted because in all the cases
except in the case of Rekhawati (Supra) the
candidates had applied for OBC certificate
before the closing date for submission of forms
which was 29th October, 2007. In the
circumstances for the delay on the part of the
authorities in preparing and giving the OBC
certificate, it cannot be inferred or held that
the candidates were not eligible for selection
under the OBC category. .
20. As already considered hereinbefore, the
petitioners themselves did not treat the
respondents in different petitions as ineligible
for selection under the OBC category as none
of the notices given to the candidates
stipulated that they cannot be selected under
the OBC category as they had failed to furnish
the requisite certificate before the closing date
for submission of the application forms. Rather
the notices were given by the petitioners
extending the date for submission of the OBC
certificate and all the candidates in different
writ petitions submitted the OBC certificate
before the last date notified in the notices. In
the circumstances it will not be appropriate
and in the interest of justice to infer that the
order of the Tribunal holding that the
respondents/candidates in different writ
petitions are entitled for selection under the
reserved category in accordance with their
marks, are bad in law and are liable to be
quashed."
34. In the case of Anu Devi & Anr. (supra), the candidates had
been called upon to submit their caste certificates by a communication
issued after the last date of the submission of applications and the
candidates had submitted their caste certificates in pursuance thereof.
That is not the exact position in the facts of the present case. The
facts of this case analysed a little later in this judgment. However,
there are two aspects that, according to us, are material and relevant
to note. Firstly, the Division Bench laid emphasis on the aspect that
reservations for the SC, ST and OBC are beneficial provisions. It was
also emphasized that submission of an OBC certificate to claim
reservation under that category cannot be equated with acquisition of
educational qualifications. A candidate becomes eligible on the date
the caste that he belongs to is notified by the appropriate authority as
a backward class. Also he should not belong to the creamy layer. The
eligibility does not get determined on the mere issuance of a certificate
to that effect. The certificate is only the recognition and
acknowledgement of the pre-existing status of the applicant.
Secondly, the stipulation that the OBC certificate should be of a date
prior to the last date of submission of the application form, and that
the same should be submitted along with the application form was
held to be not mandatory/sacrosanct.
35. In Poonam Chauhan (supra), the respondent, an OBC candidate
for the post of domestic science teacher, had applied in response to an
advertisement dated 30.04.2004 issued by the Govt. of NCT of Delhi.
The Delhi Subordinate Services Selection Board was the agency
conducting the selection process. The application was submitted by
the respondent as an OBC category candidate on 18.05.2004. The last
date for receipt of application form was 24.05.2004. The examination
for the said post was held on 28.11.2004. The petitioner Govt. of NCT
of Delhi called upon the respondent to furnish attested copies of the
relevant documents in support of her claim for reservation and
attested copies of her academic qualification, latest by 31.01.2005.
While submitting attested copies of academic qualification certificates,
the respondent stated that she had misplaced her OBC certificate and
sought 15 days time for producing the same. The respondent
submitted her OBC certificate dated 05.02.2005 issued by the SDM,
Seelampur, Delhi to Delhi Subordinate Services Selection Board vide
letter dated 07.02.2005. The respondent was issued an offer of
appointment on 28.05.2006 by treating her as an OBC category
candidate. However, the petitioner cancelled the candidature of the
respondent vide letter dated 19.10.2006 on the ground that at the
time of scrutiny of documents/certificates, it was found that the OBC
certificate had been issued by the SDM, Seelampur on 05.02.2005, i.e.
after the closing date for submission of application form which was
24.05.2004. The petitioner placed reliance on GI Department OM
No.36033/4/97-Estt. (Res.) dated 25.07.2003 to justify the cancellation
of the respondents' candidature. The respondent preferred an Original
Application before the Central Administrative Tribunal, which allowed
the same vide order dated 19.11.2007. That is how the matter came
up before the Division Bench of the High Court in the aforesaid writ
petition.
36. The Division Bench rejected the petitioner's writ petition by
observing as follows:
"8. We have also gone through the OM dated
25.07.2003 (supra). Clause 3 of the OM
provides that appointing authority, before
appointing a person seeking appointment on
the basis of reservation of OBCs should verify
the veracity of the community certificate
submitted by the candidate and also the fact
that he/she does not fall in creamy layer on the
crucial date and the crucial date for this
purpose may be treated as the closing date of
receipt of application for the post except in
cases where crucial date is fixed otherwise.
The aforesaid clause nowhere specifies that
caste certificate issued subsequent to the date
of closing of receipt of application cannot be
looked into.
9. The controversy between the parties can
be examined from another angle also. As per
the advertisement dated 30.04.2004,
vacancies were reserved for candidates from
SC/OBC category. In order to be considered for
the post of "Domestic Science Teacher"
reserved for OBC category, the requirement is
that a person should have belonged to that
category. In the present case, it is not disputed
that respondent belongs to OBC category. The
stand of respondent is that she received a
letter dated 24.01.2005 from Deputy
Secretary, DSSSB to furnish OBC certificate
duly attested from Gazetted Officer/Notary
Public and documents in support of educational
qualifications by 31.01.2005. Respondent
visited the office of Deputy Secretary with
letter dated 31.01.2005 and requested 15 days
time as her original OBC certificate dated
13.03.2001 was not traceable at that time.
Thereafter she applied for the OBC certificate
to the Government of NCT of Delhi and on
05.02.2005 SDM, Seelampur, Delhi had
furnished OBC certificate to her which was sent
by her to DSSSB on 07.02.2005. She further
stated that she had annexed the OBC
certificate dated 13.03.2001 with application
form which was issued to her before marriage
by Tehsildar Baraut, District Bagpat, UP.
Respondents 1 and 2 in their reply before
Tribunal have referred to the OBC certificate
issued by Tehsildar Baraut, District Bagpat, UP.
The Tribunal has also taken note of the same in
the impugned order. The Tribunal has
concluded that the OBC certificate dated
13.03.2001 issued by Tehsildar Baraut, District
Bagpat, UP was submitted by respondent with
the application form. The petitioner has not
been able to show any reason to differ from the
said finding of fact. Respondent has also
annexed a copy of aforesaid certificate along
with O.A. filed before Tribunal. The
genuineness of the same is not challenged
before Tribunal or before this Court. The
aforesaid caste certificate is issued much prior
to last date of application. It is not the case of
the Government that the respondent falls in
the creamy layer."
37. In Poonam Chauhan (supra) as well, the respondent had been
called upon to submit her caste certificate in response to which, she
had sought extension of time and thereafter submitted the caste
certificate. The Court came to the conclusion that merely because
OBC certificate is of a date later than last date for submission of the
application form, the same cannot be overlooked. Consequently, the
petitioner could not be treated as an unreserved category i.e. General
Category candidate. The situation in the present case, as the following
discussion would show, is similar inasmuch, as, even the petitioner was
repeatedly called upon to submit his OBC certificate in the prescribed
format.
38. The facts before us demonstrate that the respondents, despite
their rigid and firm stand with regard to the submission of the OBC
certificate in the application form/public notice, time and again relaxed
the rigour of their own prescription. We have noted hereinabove the
NOTE appended after Clause 4(B) of the public notice wherein the
respondents, inter alia, stated that "OBC certificated obtained
otherwise than the prescribed certificate meant for Central
Government jobs will not be considered for seeking relaxation/
reservation whatsoever". Clause 4(E) also emphasizes that candidates
seeking reservation "must submit their requisite certificate from the
competent authority along with their application for the examination,
otherwise, their claim for SC/ST/OBC/Ex S status will not be entertained
and their applications will be considered as if same are from General
(UR) category candidates". The nature and format of the certificate
required to be submitted by OBC candidates was specifically referred
to as contained in Annexure VIII. Clause 27 listed the deficiencies or
irregularities which, if present, would lead to summary rejection of the
applications. Entries 11 & 12, as contained in the said list, have been
set out by us in paragraph 8 hereinabove, which in effect require the
submission of, inter alia, the proper OBC certificates obtained from the
competent authority in the prescribed proforma.
39. Despite the aforesaid being the clear prescription in the
application form itself, the respondents entertained the petitioner's
application even though, admittedly, he had not submitted the OBC
certificate in the prescribed proforma as contained in Annexure VIII
along with his application form. The petitioner was, in fact, issued an
admission certificate showing his category as an OBC candidate. Not
only that, upon his clearing the written examination he was called for
the PET and medical test on 15th and 16th July, 2008 at Dehradun,
Uttarakhand. He was also granted an opportunity to submit his OBC
certificate in the prescribed proforma for Central Government offices
as per Annexure VIII of the notice of examination, issued by the
competent authority on or before 14th September, 2007. This clearly
shows that the rigours of the terms and conditions contained in the
notice of examination were relaxed by the respondents themselves,
firstly, by recognizing the petitioner as an OBC category candidate (as
noticed in his admission certificate) and, secondly, by granting him
further time to produce the OBC certificate in the prescribed proforma
on 15th/16th July, 2008, when the petitioner was required to appear for
PET and medical test at Dehradun, Uttarakhand. No doubt, the
respondents took an undertaking from the petitioner on 15 th July, 2008
to the effect that as he has not submitted the OBC certificate in the
prescribed proforma contained in Annexure VIII, he may be considered
as a general category candidate. But the respondents did not act upon
the undertaking and continued to treat the petitioner as an OBC
category candidate and continued to grant him further opportunities to
produce the OBC certificate even thereafter. This is evident from the
communication dated 04th May, 2009 issued by the respondent SSC,
whereby the petitioner was called for interview on 25th May, 2009.
Even in this communication the petitioner was granted yet another
opportunity to submit his OBC certificate in the prescribed proforma as
per Annexure VIII of the notice of examination and it was stated that
upon failure to do so the candidate would be treated as an unreserved
category candidate subject to fulfillment of other eligible conditions.
Even more importantly, in the results published in the employment
news for the period 16-22 May, 2009, the name of the petitioner was
mentioned at serial No.148 and his category was shows as an OBC
candidate. No doubt, the reflection of the petitioner as an OBC
category candidate in his admission certificate and in the result
published in the Employment News of 16-22 May, 2009 was
"provisional" in terms of Note-II set out hereinabove in paragraph 7,
but the fact remains that the respondents did not enforce the strict
terms contained in the notice of examination and even in their
subsequent communications continued to grant more and more time to
the candidates to submit, inter alia, the OBC certificates in the
prescribed proforma for Central Government offices.
40. The aforesaid conduct of the respondents, as also the policy set
out in Note II (extracted by us in para 7 hereinabove) clearly shows
that the respondents did not consider the requirement of submission of
the OBC certificate in the prescribed proforma along with the
application form, sacrosanct. Such a certificate could be submitted
even later. This conduct of the respondents also appears to be in
consonance with the decisions relied upon by the petitioner which we
have already discussed hereinabove. We are, therefore, of the view
that the OBC certificate in the prescribed proforma for Central
Government offices could have been submitted even after the last date
for submission of the application form. Since the respondents have
themselves granted repeated opportunities to the candidates for
submission of the OBC certificates from time to time, we are of the
view that the same could have been submitted even after the date of
interview and within a reasonable time before the actual declaration of
the final results.
41. However, as noticed hereinabove, the petitioner as a matter of
fact did not submit the OBC category certificate in the prescribed
proforma for Central Government offices obtained by him on 04 th June,
2009 even when he had received the same on that date. The
explanation given by the petitioner that he was misled on account of
the publication brought out by the respondents in the Employment
News of 16-22 May, 2009, wherein he was shown as an OBC category
candidate and, therefore, he did not consider it necessary to submit
the freshly obtained OBC category certificate, appears to be plausible.
There is no other reason why the petitioner would not have
immediately submitted the said certificate, which he obtained on or
about 4th June, 2009, had the petitioner not been under the bona fide
belief that the issue with regard to his candidature as falling in the OBC
category not covered by the creamy layer stood settled in his favour.
42. Pertinently, he had applied for the said certificate after his PET
and medical test i.e. in August, 2008. Admittedly, even when the
petitioner appeared for his interview on 25th May, 2009, he was not
even asked by the respondents to produce the said certificate even
though all along he had been shown as falling in the OBC category,
including in the Employment News publication for the period 16-22
May, 2009. In our view, the respondents should have asked the
petitioner, when he appeared for interview, to produce his OBC caste
certificate, as: (i) he had applied as an OBC category candidate and
submitted his earlier certificate in support of his application; (ii) he had
been shown as belonging to the OBC category in the admission
certificate and in the results published in the Employment News of 16-
22 May, 2009, and (iii) the respondents had themselves given the
opportunity to the candidates to produce the original OBC certificates
at the time of interview in their communication dated 04.05.2009. Had
the respondents posed the relevant queries at the time of the
petitioner's interview, he would have become aware of the subsisting
need to submit the OBC certificate in the prescribed proforma; he
would not have been misled into believing that the OBC certificate
already submitted by him had been accepted and acted upon by the
respondents, and; he would have submitted the same on, or soon after
04.06.2009, when it was issued to him.
43. The reliance placed by the respondents on the undertaking given
by the petitioner, in our view, is of no avail as even after taking the
said undertaking from the petitioner they continued to provide him
further opportunities to submit his OBC category certificate and
themselves reflected the petitioner's category as an OBC candidate in
the Employment News of 16-22 May, 2009. The petitioner, at the
relevant time, had no option, but to give the undertaking as desired by
the respondents. In our view, a candidate who is conferred a
constitutional right of reservation cannot be denied the said right on
the basis of a mere undertaking particularly when the undertaking
itself was not acted upon by the respondents and also in view of the
fact that the time limit set for submission of such a certificate is not
sacrosanct and has not been treated as such by the respondents
themselves. The said undertaking has been given by the petitioner,
obviously, at the respondents insistence and not of his own volition.
Else his candidature would not have been considered. When the
respondents have themselves relaxed the rigour of their terms and
conditions and the undertaking, they cannot be permitted to blow hot
and cold from time to time.
44. While considering the petitioner's explanation for non-submission
of the freshly obtained OBC certificate, we cannot ignore the fact that
he is not a highly educated person. He comes from a backward class
and, therefore, the possibility of his not appreciating the importance of
submission of the said certificate even after 04.06.2009 cannot be
ruled out. After all, he had already submitted an OBC certificate issued
by the same authority who had submitted the subsequent certificate
dated 04.06.2009 in the prescribed format. We, therefore, accept the
explanation furnished by the petitioner that he did not submit the
freshly obtained OBC certificate in the prescribed proforma contained
in Annexure VIII of the notice of examination, on account of his reeling
under a bona fide impression that his candidature as an OBC category
candidate not falling within the creamy layer had been finally accepted
on the basis of his earlier OBC certificate submitted by him alongwith
his application form, for which the respondents were responsible. We
also accept the petitioner's submission that had he not entertained the
said bona fide belief, he would have submitted his freshly obtained
OBC category certificate soon after its issuance on 04th June, 2009.
Had the certificate been so submitted, the respondents would have
been bound to consider the petitioner's candidature as an OBC
category candidate, inasmuch as, the results were not declared till as
late as on 20th July, 2009.
45. We are conscious of the fact that if the basic frame work of the
terms and conditions and/or the relevant rules requires the submission
of the OBC certificate, by a candidate applying in that category, along
with the application itself, it can lead to an unworkable and
impracticable situation if no time limit whatsoever is fixed for
submission of such certificates by the candidates. It would become
extremely difficult for the examining body to compile and declare the
results if a deadline/cut off date is not fixed for the purpose of
entertaining such certificates.
46. Considering the fact that in the facts of the present case, the
examination process itself had been initiated in September, 2007, and
the process of interviews continued till May, 2009, we would assume
that the compilation of the results would have taken place about two
weeks before their actual publication on 20th July, 2009. Had the
petitioner submitted the OBC category certificate in the prescribed
proforma by even the 6th of July, 2009, in our view, the respondents
could not have ignored the same and they were bound, "provisionally"
to consider the candidature of the petitioner as an OBC category
candidate on the basis of the said certificate subject, of course, to
verification of the certificate and other documents submitted by the
petitioner.
47. The prescription in the public notice in question that the closing
date for receipt of application would be treated as the date of
reckoning of OBC status of the candidate and also for ascertaining that
the candidate does not fall in the creamy layer, in our view, is a
prescription evolved for the benefit of the candidates belonging to OBC
category and not for the purpose of ousting them from the benefit of
reservation. What the NOTE under Clause 4(B) (set out in para 5
above) provides is that, if a candidate is certified as being an OBC
category candidate not falling within the creamy layer prior to the
close of the date of submission of applications (i.e. 14.09.2007 in this
case) then the candidate would be treated as an OBC candidate not
falling in the creamy layer for the purpose of the examination in
question, and the issue that the candidate may have come into the
creamy layer subsequently, i.e. after the date of closing, would not be
relevant or gone into to deny the benefit of reservation to such a
candidate.
48. The prescription in the NOTE appended to Clause 4(B) does not
get whittled down merely by acceptance of an OBC certificate issued
on a later date. A candidate who is certified as belonging to an OBC
and as not belonging to the creamy layer on a later date than the one
fixed by the public advertisement cannot be assumed to be as falling
under the creamy layer on any date prior to the date of issuance of the
certificate. There would be no basis for such an assumption. The
possibility of such an eventuality is highly remote. In fact, the greater
probability is that a candidate who may have been certified as an OBC
candidate falling outside the creamy layer, may actually get covered
by the creamy layer on a later date.
49. In any event, we are not suggesting that the respondents are
precluded from examining the issue of eligibility of any candidate to
claim the benefit of reservation. But, they cannot reject the
candidature of such a candidate as a reserved category candidate and
are bound to consider the candidature of the candidate concerned
"provisionally" and, subject to the final determination, to even appoint
the person concerned if found otherwise eligible and meritorious.
Similar submissions have already been rejected by this Court in Anu
Devi (supra) and in Poonam Chauhan (supra).
50. In response to the reliance placed by the petitioner on the
decision of this court in Tej Pal Singh (supra), Mr. Sachin Dutta,
learned counsel for the respondent has urged that the paragraphs 3
and 4 from Chapter II of Swamy's Compilation on Reservations and
Concessions for Scheduled Caste and Scheduled Tribe as set out in
para 26 above), would not be applicable in the facts of the present
case, as those provisions are applicable only to the SC and ST
candidates and not to candidates falling under the OBC category. He,
therefore, submits that the respondents were not obliged to grant
provisional selection to the petitioner in terms of the aforesaid
provisions.
51. Though it is true that the express provision contained in
paragraphs 3 and 4, as extracted above from Chapter II of Swamy's
Compilation on Reservations and Concessions for Scheduled Caste and
Scheduled Tribe, may not per se be applicable to OBC category
candidates, there is no rationale for not extending the same to the OBC
category candidates as well. Historically, reservations for the SC and
ST candidates have been in existence for a much longer period,
whereas reservations for the Other Backward Classes have been
introduced only after the framing of the Mandal Commission Report.
Therefore, government rules and instructions which were framed for
SC and ST category candidates, prior to the coming into force of the
law granting reservation to OBC category candidates, could possibly
not have provided for similar treatment to the cases of Other Backward
Classes. It is for this reason that paragraphs 3 and 4, as aforesaid,
does not deal with candidates belonging to the OBC category.
Otherwise, there appears to be no rationale or justification for limiting
the benefit of the said Government instructions to the SC and ST
candidates, and not extending the same to the OBC category
candidates as well. As a matter of fact, the Note II extracted in para 7
above embodies the same approach as is found in paras 3 and 4 of
Chapter II of Swamy's compilation above referred to. However, we
make it clear that we are not holding that paras 3 & 4 of the said
Swamy's Compilation would per se apply to cases of OBC candidates
as well. That would be a policy decision for the Competent Authority to
take. We would, however observe that the logical and rational step for
the Competent Authority to take would be to extend the application of
the procedure devised in the said paragraphs to the OBC category
candidates as well.
52. The decision in Tej Pal Singh (supra) is nevertheless relevant
for our purpose as the reliance placed on paragraphs 3 and 4 from
Swamy's Compilation, as aforesaid, was only one of the reasons for the
view taken by the Court. In our view, the reasoning adopted by the
Court, as discussed by us in paragraphs 28 and 29 hereinabove, is
applicable in the present case as well.
53. For the aforesaid reasons, we allow the writ petition and direct
that the petitioner be appointed against an existing vacancy, and if no
such vacancy presently exists, against the vacancy of Sub-Inspector
next arising in a Central Police Organisation, keeping in view his
preferences and merit in the examination process already undertaken
by him. To determine his entitlement for the particular CPO, his merit
position in the selection process taken by him shall be taken into
consideration. The petitioner shall be given notional seniority along
with his batchmates and his pay shall also be fixed notionally.
However, he shall be entitled to be paid the allowances only from the
date he actually joins the CPO. We may note here that the petitioner is
already gainfully employed with the CRPF.
54. With these directions, the petition stand stands disposed of
leaving the parties to bear their respective costs.
(VIPIN SANGHI)
JUDGE
(GITA MITTAL)
JUDGE
APRIL 06, 2010
sr/rsk
