Parminder Bhadana vs Staff Selection Commission
2012 Latest Caselaw 2455 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 17.04.2012

+                        W.P.(C) No.2211/2012 & CM No.4782/2012

Parminder Bhadana                                       ...   Petitioner

                                     versus

Staff Selection Commission                              ...   Respondent

Advocates who appeared in this case:

For the Petitioner            : Mohd.Farroq, Advocate
For Respondent                : Mr.Sumeet Pushkarna & Mr.Sachin Nahar,
                               Advocates.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner, a candidate allegedly belonging to the OBC

category for the post of Constable (GD) in paramilitary forces

(BSF/CISF/CRPF & SSB) has challenged his non selection despite

the petitioner obtaining 61 marks in the reserved category and

rather showing him under the general category. The petitioner, in the

circumstances, has claimed that a Writ of Certiorari be issued

quashing the result declared by the respondent produced along with

the writ petition dated nil where the name of the petitioner does not

appear, as the petitioner has been considered in the general

category. The petitioner has also sought direction to the respondent

to recommend the name of the petitioner for appointment to the post

of Constable (GD) after considering him as an OBC candidate and to

pay compensation under public law for the loss caused to him on

account of loss of career opportunity and pain and suffering.

2. The petitioner contended that pursuant to an advertisement

published in Employment News/Rozgar Samachar dated 5th

February, 2011, he applied for the post of Constable (GD) for the

Paramilitary forces (BSF/CISF/CRPF & SSB) against the OBC

category in Delhi region. The petitioner averred that he annexed a

caste certificate showing that he belongs to Gujjar community which

is recognized as backward class under the resolutions of the

Government of India. The caste certificate stipulated that the

petitioner and his family ordinarily resides in Meerut

District/Division of U.P State, and he does not belong to creamy

layer mentioned in column No.3 of O.M No.36012/22/95-Estt. (SCT)

dated 8th September, 1993. The said certificate was however, issued

to the petitioner on the basis of an application No.6866 dated 9th

July, 2007.

3. The petitioner asserted that he had applied for the said post in

BSF/CISF/CRPF & SSB in order of CISF; CRPF; BSF & thereafter

SSB (BCAD) respectively.

4. The petitioner alleged that he fulfilled the eligibility criteria and

therefore, he was called for Physical Efficiency Test (PET) and

Physical Standard Test for the post of Constable (GD) against OBC

category. The petitioner underwent PET and PST on 20th April, 2011

when he was called by the concerned officials. The petitioner

produced the format dated 20th April, 2011 for PET and Physical

Standard Test where the petitioner was treated as an OBC

candidate. According to the petitioner, thereafter, he was issued an

admission certificate directing him to appear in written examination

which was to be held on 5th June, 2011. In the said examination

also, the admission ticket was issued to the petitioner as an OBC

candidate. After appearing in the written examination, the petitioner

was declared successful and was called for medical examination and

a certificate to this effect was issued. The medical examination was

scheduled on 25th July, 2011. In the admission certificate, the

petitioner was again shown as an OBC candidate.

5. The petitioner averred that before issuance of admission

certificate for medical examination, the respondent had displayed the

list of qualified candidates, who had to be called for medical

examination, and the name of the petitioner had appeared at serial

No.18255 and he was shown under the OBC category.

6. According to the petitioner, thereafter, the list of all successful

candidates was declared disclosing their roll numbers, category, total

marks obtained, the result of medical examination and the

preference for the post of CPOs. According to the said list, though

the petitioner obtained 61 marks and was declared medically fit,

however, he was shown under the General category. Since the

petitioner was shown under the General category and the cut off

marks for the General category were much higher, therefore, the

petitioner was not recommended for selection to the post of

Constable under the General category.

7. The plea of the petitioner is that since he is an OBC category

candidate and belongs to the Gujjar community falling under the

OBC category, he ought to have been considered for the post of

Constable (GD) under the OBC category, and with 61 marks he

ought to have been declared successful. The petitioner contended

that as he was not considered as an OBC candidate he met with the

officials who advised him to give representation in this regard.

8. Consequently, the petitioner made a representation dated 7th

December, 2011. As the respondent failed to redress the grievance of

the petitioner despite the representation made by him and did not

recommend his selection to the post of Constable (GD), the petitioner

filed an original application bearing No.551/2012 before Principal

Bench, Central Administrative Tribunal.

9. The Central Administrative Tribunal by order dated 21st

February, 2012, however, declined to entertain the original

application on the ground that it did not have jurisdiction though in

similar and identical facts another bench of Central Administrative

Tribunal had issued notice to the respondent.

10. Aggrieved by the action of the respondent, the petitioner has

filed the abovenoted writ petition, inter-alia, on the grounds that the

petitioner belongs to the reserved category under the other backward

classes and, therefore, the action of the respondent showing him and

treating him in General class in the result of final examination is

totally against the facts and circumstances and placing the

petitioner in General category is illegal and is liable to be set aside.

The petitioner also asserted that till the final result was declared the

petitioner was rather treated as a candidate in the OBC category and

thus in the final result the petitioner could not be treated as a

general category candidate. In the circumstances, it is alleged that

the respondents have violated Article 14 of the Constitution. The

petitioner has also invoked Article 21 of the Constitution contending

that he has a right of livelihood belonging to lower strata of the

society and the orders of the respondents in placing him in general

category is contrary to any rule or regulation.

11. Mr.Sumeet Pushkarna, learned counsel for the respondent

who appeared on advance notice has contended that the petitioner

has deliberately concealed the material information and has tried to

mislead this Hon'ble Court. According to him, the advertisement for

selection to the post of Constable (GD) dated 5th February, 2012

categorically stipulated that the OBC certificate should not be more

than three years old from the date of employment notice for the post

of Constable (GD). He has contended that, admittedly, the petitioner

has produced a caste certificate which is based on application

No.6866 dated 9th July, 2007. The certificate ought to have been for

a period within three years of the date of notification declaring that

the petitioner does not belong to the creamy layer mentioned in

Column No.3 of Training O.M No.36012/22/95-Estt.(SCT) dated 8th

September, 1993.

12. The learned counsel has also contended that the employment

notification also categorically stipulated that the OBC certificate had

to be in the format prescribed for the Central Government jobs as

per Annexure-VII issued by the competent authority on or before the

closing date as stipulated in the Notice. According to Note I, the

closing date i.e 4.3.2011 for the receipt of application was treated as

the date of reckoning for OBC and creamy layer status of the

candidate.

13. The learned counsel contended that in case of the OBC

certificate not be in accordance with the requirement as detailed

and stipulated in the employment notification, in that case the

candidate had to be treated as a General category candidate and

consequently, on scrutiny of the petitioner's application and the OBC

certificate before declaration of final result, it transpired that the

petitioner had not given an acceptable OBC certificate in accordance

with the requirement and the criterion of employment notification

and thus he has been rightly treated as a General category

candidate.

14. The learned counsel for the respondent has very emphatically

contended that the petitioner deliberately concealed this fact in the

writ petition as no such ground has been raised as to how his

creamy layer certificate which is more than three years old can be

construed as a valid certificate. The petitioner has also not

challenged that if the OBC certificate of a candidate will not be in

accordance with the requirement of the employment notification,

then such a candidate will be treated as a General category

candidate, and in the circumstances the petitioner has not been able

to make out any ground so as to entitle him to any of the reliefs

sought by the petitioner.

15. This Court has heard the learned counsel for the parties and

has also perused the copy of the notice given by Staff Selection

Commission which was published in the employment news/Rozgar

Samachar Dated 5.2.2011 which was produced by the counsel for

the respondent because the petitioner has not annexed the complete

copy of the said notice. The petitioner has produced only the seven

pages of said notice whereas on page 11 of the said notice, process of

certification and format of certificates has been categorically detailed

which is as under:

"4(C) PROCESS OF CERTIFICATION AND FORMAT OF CERTIFICATES

Candidates who wish to be considered against vacancies reserved/or seek age-relaxation must submit requisite certificate from the competent authority in the prescribed format when such certificates are sought by concerned Regional/Sub Regional Offices at the time of Written Examination or Medical Examination or any other time as may be decided by the Commission. Otherwise, their claim for SC/ST/OBC/Ex-Serviceman status will not be entertained and their candidature/applications will be considered under General (UR) category. The formats of the certificates are annexed. Certificates obtained in any other format will not be accepted. Candidates claiming OBC status may note that certificate on creamy layer status should have been obtained within three years before the closing date i.e 04.03.2011.

Candidates belonging to the State/UT will only be considered for recruitment in their respective State/UT on production of valid "Domicile Certificate" issued by the competent authority so authorized by the concerned State/UT to prove their domiciliary status. Since the State of Assam is not issuing Domicile Certificate/PRC, candidate belonging to the state of Assam is not required to submit the same. However, their selection will be subject to verification of residential status from the concerned District Authorities. West Pakistani refugees who have settled in J&K but have not been given the status of J&K citizen of the State will be recruited without the condition of having a domicile certificate from the designated authority of the J&K State.

NOTE I: The closing date i.e 04.03.2011 for receipt of application will be treated as the date of reckoning for OBC and creamy layer status of the candidate.

NOTE II: Candidates are warned that they will be permanently debarred from the examination conducted by the Commission in case they fraudulently claim SC/ST/OBC/Ex-Servicemen status.

16. The learned counsel for the petitioner has not been able to

dispute that the OBC certificate, a copy of which is also annexed

with the writ petition as Annexure P-2 was issued on the basis of the

application number 6866 on 9. 7. 2007. The said certificate, in the

facts and circumstances, is not according to stipulation 4C as

detailed hereinabove and such an OBC certificate which is more

than three years old from 4. 3. 2011 could not be accepted as a valid

certificate about the creamy layer status of the petitioner. The

learned counsel for the petitioner, in the facts and circumstances, is

unable to explain as to how the petitioner can be treated as an OBC

candidate by the respondents.

17. The learned counsel for the petitioner is also unable to give

any satisfactory explanation as to why the relevant information

detailed in the employment notice about the OBC certificate was not

stipulated and clearly stated in the writ petition. The counsel is also

unable to give any acceptable explanation for not filing the complete

copy of the employment notification. In the circumstances, it is

inevitable to infer that the petitioner has attempted to mislead this

Court by withholding the relevant information.

18. In these facts and circumstances, the petitioner has failed to

establish that he can be considered as an OBC candidate. The

respondent, before declaration of the final results, considered his

application and came to the conclusion that he cannot be considered

as an OBC candidate which decision of the respondent cannot be

faulted in the facts and circumstances. In the circumstances,

treating the petitioner as a general category candidate by the

respondent does not suffer from any illegality or irregularity.

19. For the foregoing reasons and in the facts and circumstances

the petitioner cannot claim that the respondent should treat him as

an OBC candidate, nor the petitioner is entitled for any of the reliefs

claimed by him in the writ petition. The writ petition is without any

merit and is liable to be dismissed.

20. The writ petition, in the facts and circumstances, is therefore,

dismissed. All the pending applications are also disposed of.

ANIL KUMAR, J.

April 17, 2012                         SUDERSHAN KUMAR MISRA, J.