Delhi High Court

Ajay Kumar vs Staff Selection Commission, ... on 21 January, 2015

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                             Date of hearing & Order: January 21, 2015.
+       W.P.(C) 608/2015

        AJAY KUMAR                                       .... Petitioner
                           Through:       Mr. R. K. Saini, Mr. Avadh
                                          Kaushik & Mr. Lokesh Sharma,
                                          Advocates
                           versus

        STAFF SELECTION COMMISSION,
        THROUGH ITS REGIONAL DIRECTOR
        (NORTH REGION)                      ..... Respondent
                      Through: Mr. Bhagwan Swarup Shukla,
                               CGSC with Ms. Smriti Sharma,
                               Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE I.S.MEHTA

KAILASH GAMBHIR, J. (ORAL)

CM APPL No. 1052/2015 (Exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of.

W.P.(C) 608/2015 & CM No. 1053/2015 (Stay)

1. This is a Writ Petition by the petitioner calling in question the

tenability of the order dated 30.09.2014 whereby the learned Central

Administrative Tribunal, Principle Bench, New Delhi (hereinafter

referred to as the 'CAT') dismissed the Original Application (in short

'OA') filed by him.

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

OBC category. He had applied for the post of Multi Tasking (Non-

Technical) Staff ('MTS' in short) in Pay band- I (Rs. 5200- 20200/-) +

Grade Pay Rs. 1800/-, a General Central Service Group 'C' Non-

Gazetted, Non-Ministerial post in various Central Government Ministries/

Departments/ Offices, in different States and Union Territories 2011,

pursuant to the recruitment notice published in the Employment News

dated 04.12.2010. The petitioner submitted his application under the OBC

category, the last date for submitting of which was 31.12.2010. He

belonged to the "Saini" community, which is recognized as a backward

class duly notified by the Government of the India as well as the Govt. of

NCT of Delhi. The petitioner took the written examination as an OBC

candidate on 27.02.2011. In the meantime, the petitioner was suggested

by his cousin to obtain a fresh OBC certificate prescribed in the

recruitment notice, which the petitioner applied for and got issued on

11.03.2011. The petitioner was declared successful in the written exam

and the Ministry of Defence was named as his user Department.

However, he was kept in the reserve list at rank no. 241. Subsequently,

the result of the reserve list was declared viz. 04.11.2011, in which the

petitioner was declared recruited. The respondent vide its letter dated

15.11.2011 asked him to submit his original documents and appear before

the authorities of the respondent on 01.12.2011 for this purpose. He

appeared before the respondent authorities on the said date along with all

his original documents including the two OBC certificates issued to him

on 06.02.2008 and 11.03.2011. These documents were perused by the

respondent authorities and photocopies of the same were kept on record

and he was asked to wait for his joining letter. However, the petitioner to

his utmost shock and dismay, received a memorandum dated 10.02.2012

from the office of the respondent authorities informing him that his

recruitment to the post of MTS has been annulled since he did not submit

the requisite OBC certificate as per the recruitment notice. Aggrieved by

this the petitioner filed an O.A before the learned CAT, which was

however, dismissed by the learned tribunal on the ground that the

petitioner could not procure the OBC certificate in the prescribed format

vide its judgment/ order dated 30.09.2014.

3. The grievance raised by the petitioner is that he is admittedly an

Other Backward Classes (in short 'OBC') candidate and had submitted

his application under the same category and alongwith the application, he

had annexed the OBC certificate dated 06.02.2008, but his candidature

was cancelled vide Memorandum bearing No.10/10/2010-ND-II dated

10.02.2012 on 15.02.2012 on the ground that he did not submit the proper

OBC certificate as per the notice for examination.

4. Mr. R.K. Saini, the learned counsel for the petitioner submits that

the result of the said written examination was declared by the respondent

on 23.08.2011 in which the petitioner was declared successful and his

name was shown against the Ministry of Defence. However, his name

was kept in the reserve list at rank No.241. The learned counsel also

submits that the Staff Selection Commission (in short 'SSC') declared the

result of the reserve list on 04.11.2011 wherein the name of the petitioner

was included and he was called upon to appear before the concerned

authorities on 01.12.2011 alongwith his original documents for

verification. Consequently, he appeared before the authorities on the said

date alongwith his original documents which included the OBC

certificate dated 06.02.2008, copy of which was furnished by him

alongwith his application, and another OBC certificate dated 11.03.2011

which was issued to him by the competent authority certifying that the

said caste of the petitioner was duly notified by the Government of India.

The learned counsel further submits that after submission of the said

documents, the petitioner was under the bona fide impression that he

would receive an appointment letter, but, he was astonished and surprised

to see that his candidature was annulled vide Memorandum bearing

No.10/10/2010-ND-II dated 10.02.2012 on the ground that he did not

submit the proper OBC certificate as per the notice of examination

alongwith his application form. The contention raised by the learned

counsel for the petitioner was that the learned CAT has failed to

appreciate the fact that the status of the petitioner as an OBC candidate

has never been in dispute as his caste 'Saini' was duly notified by the

Government of the India as well as the Government of NCT of Delhi.

5. The learned counsel also submits that the petitioner had produced

and submitted an OBC certificate dated 06.02.2008 alongwith his

application form and the said certificate was issued in favour of the

petitioner within the three years' period as per the laid down requirement

in the notice dated 04.12.2010 and the sole slip-up of the petitioner was

that he ought to have filed an OBC certificate issued by the competent

authority certifying that the said caste of the petitioner was also duly

recognized as a backward class by the Government of India and the same

does not form a part of the creamy layer. The learned counsel thus

submits that the learned CAT has adopted a hyper technical approach in

denying relief to the petitioner who indisputably belonged to the OBC

category. The counsel further submits that the petitioner was a

meritorious candidate with dreams aplenty and had successfully cleared

the written examination and was offered an appointment based on his

merit. The learned counsel also submits that the learned CAT has also not

appreciated the fact that the petitioner had even submitted an OBC

certificate issued by the competent authority certifying the said caste of

the petitioner 'Saini' as a backward class, at the stage of scrutiny of the

documents well before the selection process was over. The learned

counsel also submits that since under the notice a provision has been

made for the scrutiny of the documents at which stage deficiency, if any,

on the part of the candidate in the submission of documents already

submitted by him can be duly rectified and once at that stage the requisite

certificate was submitted by the petitioner, the same was enough to have

satisfied the respondent to allow the candidature of the petitioner. The

learned counsel also submits that it is not the case of the respondent that

at the stage of scrutiny of the documents, the petitioner had failed to

submit the documents in the requisite format or the same was submitted

by him after the selection process was over. The learned counsel for the

petitioner placed reliance on the recent judgments of the Division Bench

of this Court in the case of Bal Kishan Yadav v. Union of India in W.P.

Kadian v. Union of India and Ors. In W.P (C) No. 8366/2014, decided

on 16.12.2014.

6. Opposing the present writ petition, Mr. Bhagwan Swarup Shukla,

the learned Central Government Standing Counsel submits that in the

notice issued by the SSC, it was clearly laid down that the candidates who

wish to be considered against the reserved vacancies or seek age

relaxation must submit the requisite certificates from the competent

authority issued on or before the prescribed date, in the prescribed format

as and when they are sought by the concerned Regional/ Sub- Regional

Offices. Otherwise, the claim of such candidates will not be entertained

and their candidature/ applications will be considered in the General (UR)

category. The learned counsel thus submits that the petitioner was well

aware of the fact that he was to submit the requisite OBC certificate from

the competent authority issued on or before the prescribed date, in the

prescribed format and the said certificate from the competent authority

was submitted much after the closing date of the application. The learned

counsel further submits that any candidate who does not fulfil the laid

down terms and conditions of the notice, their candidature will be

rejected and that is precisely what happened in the case of the petitioner.

7. We have heard the learned counsel for the parties and given our

thoughtful consideration to the arguments advanced by them.

8. We feel agonised to know that the petitioner's candidature was

negated by the SSC on the sole ground that he did not submit a particular

OBC certificate as per the demand of the recruitment notice alongwith his

application form despite his having successfully qualified the written

examination and his being called upon to appear before the concerned

authorities for verification of documents.

9. Unquestionably, candidates who seek appointment to a particular

post, pursuant to any advertisement, need to scrupulously go through the

instructions laid down, but where there is an inconsequential lapse on part

of the candidate and the same is rectified duly, then ordinarily, one should

not be denied appointment on this sole ground. In the present case, there

was an insignificant lapse on the petitioner's part, wherein he did not

submit the proper OBC certificate issued by the Government of India, this

lapse he duly rectified, at the time he was called upon to submit his

original documents to the competent authorities i.e. on 01.12.2011. All

the documents were perused by the authorities of the Respondent and

photocopies of the same were kept on record. However, the petitioner

was alarmed to receive a Memorandum dated 10.02.2012 on 15.02.2012

from the Respondent's office informing him that his recruitment to the

post of MTS has been cancelled on the ground that he did not submit the

proper OBC certificate as per the notice of examination.

10. The petitioner had proved himself meritorious enough, hope

gleamed in his eyes, he had dreams aplenty and having qualified his

examination, he had an earnest belief that his candidature will be selected

for the said post. Given the serious dearth of jobs in our country, it is very

rare that a candidate lands a plum job offer. It is for the recruiting bodies

like the SSC to ensure that the deserving candidates are not denied

appointment based on some insignificant or unconvincing ground or by

adopting a hyper technical approach. We are nowhere suggesting that

these recruiting bodies should not abide by the laid down recruitment

norms, but where there is an iota of chance and scope to take a liberal

view, like in the present case, where it is not disputed that the petitioner

was an OBC candidate, such a rigid approach should have been avoided.

11. It is a settled legal position that a candidate becomes eligible under

the OBC category, the day the caste he/she belongs to is notified by the

appropriate authority as a backward class (Ref: DSSSB and Anr. v. Ms.

Anu Devi & Anr. , W.P.(C) 13870/2009, decided on 17.02.2010) the

relevant para of which is as follows:

"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."

12. The OBC certificate is just an evidence of a fact that had always

existed, as was noticed in the case of Hari Singh v. Staff Selection

Commission, 170 (2010) DLT 262 and Ms. Anu Devi (supra). In the

present case, the petitioner belonged to the "Saini" community which is

recognised as a backward class under the Central Government as well as

the Government of NCT of Delhi.

13. In the above circumstances, while allowing the present writ

petition, we set aside the order dated 30.09.2014 of the learned CAT,

Principal Bench, New Delhi in O.A No. 592 of 2012 and also quash the

Memorandum dated 10.02.2012. During the course of hearing of the

present matter, the learned counsel for the respondent apprised the Court

that presently no vacancy exists for the post of MTS in various Central