Vishesh Kumar vs Staff Selection Commission
2012 Latest Caselaw 5535 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision : September 14, 2012

+                                 WP(C) 5580/2012

      VISHESH KUMAR                                             ...Petitioner
                  Represented by:              Mr.R.K.Singh, Advocate.

                                      versus

      STAFF SELECTION COMMISSION                    ...Respondent
                    Represented by: Mr.S.M.Arif, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner applied as an OBC candidate to be appointed as a Constable in a Central Para Military Force and desires his selection to be made from amongst the OBC candidates and raises a grievance of his being treated as a candidate in the unreserved category. The petitioner asserts that having secured 73 marks, and the cut-off marks for OBC candidates being 72, he has to be issued a letter of appointment.

2. In the counter affidavit filed, in paragraphs 5 and 6 it has been asserted as under:-

"5. That the petitioner filed the instant writ petition on the ground of his non (sic) being considered as an OBC candidate despite having submitted an OBC certificate to that effect. However, it is pertinent to mention here that as per the provisions of Para 4(c) under the title

"PROCESS OF CERTIFICATION AND FORMAT OF CERTIFICATES", which reads as under:-

"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-Servicemen 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 or creamy layer status should have been obtained within three years before the closing date i.e. 4.3.2011."

Note 1: The closing date i.e. 4.3.2011 for receipt of application will be treated as the date of reckoning for OBC and Creamy Layer Status of the candidate.

6. That the petitioner submitted an OBC Certificate dated 30.06.2006, which was not within three years from the cut off date i.e. 4.3.2011 as stipulated in the above mentioned provisions of para 4(C) of the Notice."

3. In the rejoinder filed, response by the petitioner to said paragraphs read as under:-

"3-5. That the content of para No.3-5 except those which are matter of record, need no reply. But as far as averments made about the para 4C, in this para the same are denied for the want of knowledge as the same was not part of the advertisement issued in other News Papers except Rojgar Samachar, or in the format of application

Form to be submitted in response to the said advertisement. Even otherwise it is submitted in reply to the same that the petitioner at each and every stage of the selection process was admittedly treated as a candidate from OBC category and his results were also declared accordingly on the basis of the OBC certificate dated 3.7.2006. Further as provided under said para, the petitioner was never asked to furnish a certificate at any stage, which was to be issued within 3 years of the closing date of submission of the application Form. The said rule itself provides for the reasonable opportunity to the furnish the requisite certificate but the same was never admittedly afforded to the petitioner.

6. That the contents of para No.6 of the counter affidavit needs no reply being a matter of record."

4. Suffice would it be to state the stand of the petitioner that he was never asked to furnish a certificate which was issued within three years of the date of closing of receipt of applications is belied from the fact that paragraph 4(c) of the advertisement in question, reproduced in paragraph 5 of the counter affidavit, clearly draws the attention of the candidates to the fact that they must ensure that OBC status must be reflected in a certificate issued within three years before the closing date. This fact has not been denied in the rejoinder.

5. Suffice would it be to state that as against members belonging to Scheduled Castes or Scheduled Tribes, where even a billionaire would be entitled to reservation, the legal position with respect to Backward Classes is different. Creamy layers have to be excluded and thus there being a requirement of OBC certificates being issued within three years prior to the date of receipt of applications. A person may have less wealth on a particular date and may become wealthy a few years later and thereby coming within the Creamy Layer.

6. In view of the certificate furnished by the petitioner he has rightly not been treated as an OBC candidate.

7. The writ petition is dismissed.

8. No costs.

CM No.11397/2012 Since the writ petition stands disposed of, instant application seeking stay of the impugned order till disposal of the present writ petition, stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 14, 2012 dk