Delhi High Court

Bal Kishan Yadav vs Union Of India And Anr on 20 November, 2014

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 5643/2013
        BAL KISHAN YADAV                                  ..... Petitioner
                     Through            Mr. Sanjay Kumar, Advocate

                           versus

        UNION OF INDIA AND ANR                ..... Respondents
                      Through  Mr. Vijay Kinger, Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                                ORDER

%                               20.11.2014

KAILASH GAMBHIR, J. (ORAL)

1. The petitioner has filed the present Writ Petition under Article 226

of the Constitution of India to challenge the impugned order

No.7/2/2010-ND-2 dated 29.05.2012 whereby his representation seeking

appointment to the post of Sub-Inspector in Central Police Organisation

2010 (hereinafter referred to as 'CPO 2010') in Other Backward Classes

(in short 'OBC') category has been rejected. The petitioner also seeks

directions to the respondents to offer appointment to the petitioner in

Special Examination for recruitment of Sub-Inspectors in CPOs, 2010

under the OBC category on the basis of his merit alongwith all

consequential benefits of seniority and pay at par with his batchmates.

2. In brief, the facts of the case are that the petitioner belongs to the

OBC category, he had applied to the post of Sub-Inspector in CPOs 2010,

pursuant to the notice advertised by the Staff Selection Commission (in

short 'SSC') in the Employment News/ Rojgar Samachar dated

09.10.2010 for recruitment of Sub-Inspectors in CPOs. Being an OBC

category candidate, the petitioner was required to submit an OBC Non-

Creamy Layer Certificate within three years of the specified closing date

i.e., 02.11.2010. The petitioner took the written examination as an OBC

candidate on 12.12.2010, he was declared successful in it and was issued

a Call Letter dated 06.05.2011 for an interview which was held on

14.06.2011. At the time of his interview, the petitioner was required to

bring all the documents including the caste certificate. It was made clear

to the petitioner in the Call Letter for the interview that in case a

candidate is found to be not fulfilling the educational qualifications or the

age limit or any other eligibility criteria, then he would not be allowed to

sit for the interview.

3. As per the petitioner, he had appeared for the interview on

14.06.2011 as an OBC candidate and had produced all the original

documents including the caste certificate and only after scrutiny of the

documents produced by him, was he allowed to participate in the

interview.

4. The petitioner contends that on 12.10.2011 the respondents

declared the final result of the Special Examination for Sub- Inspectors in

CPOs 2010, but his name was not found in it although he had secured 206

marks after combining the marks scored by him in the written

examination and in the interview, which is much above the marks of the

last selected male candidate in the OBC category in BSF, CRPF and in

SSB. It is also the case of the petitioner that he had submitted his latest

OBC certificate dated 31.10.2011 as was issued in his favour by the

Tehsildar, Bhiwani and this latest OBC certificate manifested that the

petitioner continued to be under the OBC category and he does not

belong to the creamy layer.

5. The petitioner's grievance is that his case was wrongly considered

by the respondents under the Unreserved Category (in short 'UR

category') to deny him an appointment to the post of Sub- Inspector as he

did not meet the cut off fixed for UR category in written examination

Paper- I and II, which was 166.25 marks, while the aggregate marks

secured by the petitioner in both these papers was 152.

6. Mr. Sanjay Kumar, the learned counsel for the petitioner

emphatically urged that the respondents cannot dispute the fact that the

petitioner is not an OBC candidate as he had duly submitted his OBC

certificate alongwith his application form and had produced the original

of the same at the time of his interview. The learned counsel also submits

that although the said OBC certificate, which was submitted by the

petitioner was of the year 2003 and not a latest certificate as per the

requirement of the respondents, it was the duty of the respondents to have

pointed out the said deficiency on the part of the petitioner so as to afford

him at least one opportunity to produce his most recent OBC certificate.

The learned counsel also submits that in the OBC category the total

marks secured by the petitioner in both the examinations, i.e. Paper-I and

II are much higher than the cut off marks fixed under the said category.

The learned counsel also submits that a Call Letter for the interview was

issued to the petitioner in the OBC category, and at the time of his

interview, the petitioner was neither informed that he was being

considered in the UR category nor was he apprised of any deficiency on

his part in not furnishing his latest OBC certificate. Based on these

submissions, the learned counsel for the petitioner submits that the

petitioner, who had secured a total of 206 marks in his written exam and

interview, should be appointed either in BSF, CRPF or in SSB, as the last

selected male candidate in the OBC category had secured marks lower

than that of the petitioner. As per the petitioner, the cut off marks secured

by the last selected male candidate in the OBC category was 193.75 in

BSF, 195.25 in CRPF and 197.75 in SSB. In support of his arguments,

the learned counsel relied on a judgement of a Division Bench of this

Court in the case of Hari Singh v. Staff Selection Commission & Anr.,

2010 V AD (DELHI) 599.

7. In reply, Mr. Vijay Kinger, the learned counsel for the respondents

submits that the petitioner failed to file his latest OBC certificate as per

the requirement specified in the advertisement, whereby it was clearly

stipulated that the applicants should submit their OBC Non-Creamy

Layer Certificate, issued in their favour within a period of three years

prior to the date of closing. The learned counsel also submits that the

OBC certificate dated 31.10.2011 filed by the petitioner was of no

consequence as the same was filed much after the deadline fixed in the

advertisement and therefore, the petitioner was rightly treated as UR

category candidate, in which he had secured much lower marks than the

last selected candidate in UR male category, i.e. in the written

examination the petitioner had secured 152 marks while the last selected

candidate in the UR category had secured 166.25 marks. The learned

counsel also submits that the notice inviting applications from the

candidates also clearly stipulated that the candidates applying for the

examination should ensure that they fulfil all the eligibility conditions for

admission to the examination and it was further made explicitly clear that

the admission to all stages of the examination will be purely provisional,

subject to their satisfying the prescribed eligibility conditions. The notice

also stipulated that if on verification, at any time before or after the

written examination and interview, it is found that they do not fulfil one

of the eligibility conditions; their candidature for the examination will be

cancelled by the Commission. The learned counsel also submits that the

notice also contained an important instruction that the candidates should

be in possession of the certificates in the format prescribed by the

Government of India in support of their claim at the time of application,

though the copies of the certificates will be sought only after the written

examination. Another important caveat in the notice was that the

applicant should have an OBC Non-Creamy Layer Certificate issued

within three years of the date of closing. The learned counsel for the

respondents submits that the petitioner had failed to produce a valid OBC

certificate issued in his favour of the specified period within the

stipulated time therefore, the respondents were left with no option but to

treat the petitioner in the UR category and unfortunately his marks in the

written examination Paper-I and II were much lower than the marks

secured by the last selected candidate in the said category.

8. We have heard the learned counsel for the parties at a considerable

length and given our thoughtful consideration to the arguments advanced

by them.

9. This petitioner has not been considered for appointment in the

OBC category as he had failed to furnish his latest OBC Non-Creamy

Layer certificate as per the requirement laid down in the advertisement

instead the petitioner filed an OBC Non-Creamy Layer certificate which

was issued in his favour in the year 2003. It is not disputed between the

parties that if the candidature of the petitioner is considered under the

category of OBC then he had secured higher marks than the last selected

candidate in the OBC male category at least in BSF, CRPF and in SSB.

The reason for denial of appointment to the petitioner was that he had

secured lower marks in his written examination Paper-I and II, i.e. 152

marks while the cut off fixed for the UR category in written examination

Paper- I and II was 166.25 marks, However, we note that the petitioner

was called for an interview on 14.06.2011 at which time he had produced

all his original certificates including his OBC certificate. This fact has not

been denied by the respondents in their counter affidavit. If there was any

deficiency or shortcomings in his OBC certificate, then the best course

for the respondents was to inform the petitioner about it i.e. the certificate

was not issued within a period of three years from the closing date. The

petitioner was interviewed as an OBC candidate as per the Call Letter

received by him. Even after his interview, the said deficiency was not

pointed out by the respondents. A little effort on the part of the

respondents could have resolved the issue gracefully.

10. It has been poignantly observed: "An unemployed existence is a

worse negation of life than death itself"- Jose Ortega Y Gasset. Our

country is progressing by leaps and bounds, but unemployment continues

to be a daunting problem. Fear of unemployment, far from being

abolished, is felt as strongly as ever. We must be conscious of the fact

that in our country to get an employment in any Government or Public

Body is like a dream come true and therefore, recruiting bodies like the

SSC owe a public duty to see to it that appointment to the meritorious

candidates are not denied on flimsy grounds or by adopting any hyper

technical approach. We are not suggesting here that these recruiting

bodies should not adhere to the instructions or guidelines incorporated in

the recruitment rules or in the advertisement but certainly where there is

room to take a liberal approach, like in the present case, where the

respondents knew fully well that the petitioner belongs to an OBC

category but did not produce his latest Non-Creamy Layer OBC

Certificate, he could have easily been given a reminder for producing the

same. The respondents, however, did not choose this path and adopted the

easy route to deny appointment to the petitioner merely on the ground

that the petitioner failed to file a Non-Creamy Layer OBC certificate

issued in his favour within a period of three years from the closing date.

11. The Division Bench of this Court in a case being W.P. (C.) No.

13870/2009, titled as Delhi Subordinate Service Selection Board and

Anr. v. Ms. Anu Devi and Anr. , decided on 17.02.2010 observed as

follows:

"13 ............. 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. Referring 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.

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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."

12. Undoubtedly, the candidates seeking appointment pursuant to any

advertisement issued in the newspapers are required to scrupulously and

carefully go through the instructions and follow the same, but any minor

or insignificant lapse which could be rectified or remedied before the date

of final selection, in such like cases, should not prove fatal to the extent

of denying appointment to the meritorious candidates who otherwise have

qualified all the requisite tests, including interview, etc. The petitioner

here had secured 206 marks in his written examination and interview and

therefore, he is more meritorious than the last selected in OBC male

category in BSF, CRPF and in SSB. It would also be in the interest of the

CPO's to recruit a more meritorious candidate.

13. During the course of the hearing the present matter, the learned