Delhi High Court

Sarita Kumari Verma vs Union Of India And Ors. on 22 July, 2015

Author: V. Kameswar Rao

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Judgment reserved on July 15 , 2015
                                        Judgment delivered on July 22, 2015


+                       W.P.(C) 1543/2015 & CM No. 2745/2015

SARITA KUMARI VERMA                                      ..... Petitioner

                             Through:    Mr.Chandra Shekhar, Adv.
                                         with Mr.Ajesh Luthra,
                                         Ms.Jyotsna Kaushik,
                                         Advocates

                             versus

UNION OF INDIA AND ORS.                               ..... Respondents

                             Through:    Mr.Bhagwan Swaroop
                                         Shukla, Adv. with Mr.Suyosh
                                         Kr., Adv. for R1 and R2
                                         Mr.Manoj, Adv. with
                                         Ms.Aparna Sinha, Adv. for
                                         R3-FCI


CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. The challenge in this writ petition is to the order dated

December 12, 2014 passed by the respondent No. 2 whereby the

candidature of the petitioner for the post of Assistant, Grade-III

(Technical) in the respondent No. 3-Food Corporation of India was

rejected.

The facts:

2. The case of the petitioner is that she belongs to "Sumar"

community and was issued Other Backward Classes (OBC) certificate

on June 25, 2001 by the Deputy Commissioner of Delhi. On August

25, 2012, the respondent No. 2 Staff Selection Commission issued

advertisement in the Employment News/Rozgar Samachar for the

recruitment of Assistant Grade-III in General Depot, Technical and

Accounts Cadres in the Food Corporation of India-respondent No. 3

herein. According to the petitioner, the advertisement stipulated that

candidates who wanted to claim the benefits of OBC reservation, had

to submit, along with the original testimonials/documents, the

certificate of OBC on December 21, 2013, when after short listing, the

candidates are subject to Computed Proficiency Test (CPT).

3. It is the case of the petitioner that she applied for Assistant

Grade Exams for all posts as a candidate belonging to the Other

Backward Class (OBC). The petitioner cleared the written

examination of Paper No. I followed by the subsequent tests of Paper

No. II and Paper No. III. Thereafter, she was shortlisted for the

purpose of CPT, which was held on December 21, 2013, when she

submitted her original documents for verification by the officials of

the Staff Selection Commission (respondent No. 2). It is her case that

she applied for obtaining the OBC certificate on December 26, 2013

as December 21, 2013 to December 25, 2013 were holidays being

Sunday and Christmas. It appears that the certificate dated June 25,

2001 submitted by her was not accepted by the respondent No. 2. On

January 28, 2014, after she was issued OBC certificate by

Tehsildar/Executive Magistrate, Govt. of NCT of Delhi, she submitted

the same to the officers of the respondent No. 2, much prior to March

5, 2014 when the final result was declared by the respondent No. 2.

Her name appeared at Serial No. 569 as one of the successful

candidates recommended for appointment as Assistant Grade III

(Technical). On August 4, 2014 when she visited the office of the

respondent No. 2 for verification of papers, it was, for the first time,

informed to her that she has to submit OBC certificate from Govt. of

India for the period prior to December 21, 2013. On August 6, 2014,

she made representation to the Chairman of the respondent No. 2,

annexing therewith the letter of the Under-Secretary dated July 30,

2014, OBC certificates dated June 25, 2001 and January 25, 2014 and

requested that her OBC certificates be considered and Joining Letter

be issued to her. However, no response for the same was received by

her from the respondent No. 2. It is her case that she was orally told

that the certificate which was submitted by her, does not answer the

requirement of the eligibility considerations prescribed in the

examination notice. Accordingly, she approached this Court by way a

writ petition being W.P.(C) 5820/2014, praying for a direction to the

Commission (respondent No. 2) to consider her candidature for the

post of Assistant Grade-III (Technical) on the basis of OBC

certificates submitted by her. The said writ petition was disposed of

on September 3, 2014 by this Court, extending the time line for the

petitioner to furnish the requisite document(s) by September 4, 2014

in terms of the show cause notice dated August 19, 2014 and also

directed the respondent No. 2 to consider the reply furnished by the

petitioner to the show cause notice after examination of the said

documents and duly communicate the decision taken in that regard to

the petitioner. It was pursuant thereto, the respondent No. 2 issued the

impugned order dated December 12, 2014, thereby intimating the

petitioner that the OBC certificates submitted by her for claim of

reservation, have not been accepted by the Commission because the

certificates are not in accordance with the provisions of the notice of

the examination as already mentioned in para 2.

4. The respondent No. 2 contested the present writ petition filed

by the petitioner on the ground that the OBC certificate submitted by

the petitioner was not acceptable as the certificate produced by the

petitioner was not as per prescribed format as given in Annexure-

VIII of the notice of the Food Corporation of India (respondent No.3)

Exam, 2013. The respondent No. 2 also highlighted Point No. (9)

Pare E of the notice of the exam, which stipulated "if a candidate is

unable to produce all the original documents due to whatsoever

reasons at the time of verification, his candidature would be rejected.

Under no circumstances, additional time would be provided. Thus,

only those candidates are advised to apply who can produce all the

relevant documents in original at the time of verification". Note-II of

the Annexure-VIII of the notice of the Food Corporation of India

Exam, 2013 stated "the closing date for receipt of application will be

treated as the date of reckoning of 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 certificates in the

prescribed format issued by the competent authority on or before the

completion of CPT". According to the respondent, at the time of

CPT, the petitioner has submitted the OBC certificate issued on June

25, 2001 by the SDM, Najafgarh along with the separate Creamy

Layer certificate issued by the Executive Magistrate, Dwarka dated

May 10, 2013. She was provisionally allowed to appear in CPT on

December 21, 2013 on the basis of an undertaking submitted by her in

which, she has agreed that she may submit the required OBC

certificate within 10 days. During process of nomination, on scrutiny

of her dossier, it was observed that her OBC certificate was not in

accordance with the provisions of the notice of the said examination

as it was not in format required for Central Government jobs, as per

Annexure-VIII of notice. Accordingly, she was issued a

memorandum and subsequently a show cause notice for submission of

the required OBC certificate. Then, she submitted the OBC certificate

in the requisite proforma issued on January 25, 2014 and the same was

also not as per the provisions of the notice because it was issued after

the last date of CPT examination. It is reiterated that Note-II of the

Annexure-VIII of the notice of exam clearly stipulated that the

relevant OBC certificate is to be submitted on or before completion of

CPT. Therefore, the petitioner was not considered for selection under

the OBC category.

The submissions:

5. The learned counsel appearing for the petitioner would submit

that the respondents cannot take the hyper-technical view of the whole

issue inasmuch the community certificate in respect of OBC

community is required by the respondent No. 2 in the prescribed

format which consists of two parts; the first part indicates that the

concerned person belongs to a community listed as OBC and; the

second part indicates that the candidate does not fall in the creamy

layer. While the OBC status of a candidate may change only when

the community of the concerned candidate is removed from the OBC

list, his/her Creamy Layer status may change any time. In view of

this, it is not possible to determine a fixed validity period for the OBC

certificate. Hence, it was of no significance so long as the petitioner

continues to remain on the list of OBC community and also does not

cease to be a person belonging to the Non-Creamy Layer within the

specified period, and in the petitioner‟s case, the petitioner falls in

both the above referred conditions. He would also state that conduct

of the respondents is contrary to the law and the Constitution of India

guarantees of preferential treatment to the socially backward

communities with a view to imparting them level playing field. He

would rely upon the judgment of the Division Bench of this Court in

W.P.(C) 608/2015 decided on January 21, 2015, Ajay Kumar Vs.

Staff Selection Commission through its Regional Director (North

Region).

6. On the other hand, learned counsel for the respondents,

reiterating the stand taken by the respondent No. 2 in its reply, would

state that any deviation contrary to the advertisement would have

repercussions in the working of the Staff Selection Commission. He

would rely upon the judgment of this Court decided on July 17, 2013

in W.P.(C) 2342/2012 Dr. Jyoti Hyankey Vs. Union Public Service

Commission; (2011) 12 SCC 85 Bedanga Talukdar Vs. Saifudaullah

Khan and Ors.; judgment of the High Court of Punjab and Haryana in

the case of Indu Gupta Vs. Director (Sports), Punjab and Anr., Civil

Writ Petition No. 9699/1997 decided on May 31, 1999 in support of

his contention.

7. Having heard the learned counsel for the parties, the only

question which needs to be decided is whether the certificate

submitted by the petitioner issued after the date of December 21, 2013

was a valid one in terms of the advertisement. There is no dispute that

the advertisement issued by the respondent No. 2 did contain format

of certificate to be produced by the OBC candidates applying for the

post in terms of Annexure-VIII. It is also stipulated in Note-II of the

said Annexure that the closing date for receipt of application will be

treated as the date of reckoning of OBC status of a candidate and also

for assuming that the candidate does not fall in the Creamy Layer.

Suffice to state, the closing date of submission of the applications was

September 21, 2012. That apart, it was required that candidate should

furnish the relevant OBC certificate in the prescribed format by the

competent authority on or before the completion of the CPT. There is

no dispute that the petitioner did not submit the OBC certificate

issued, on or before December 21, 2013. Rather, on the date of CPT

i.e. December 21, 2013, she submitted an undertaking that she would

submit the required OBC certificate within 10 days. The required

OBC certificate necessarily means a certificate issued on or before

December 21, 2013. The date of December 21, 2013 attains relevancy

inasmuch as it is the said date, which would determine whether the

caste to which the candidate belongs, is an Other Backward Class

(OBC) and the candidate does not belong to Creamy Layer. There is

no dispute that such was the requirement of the advertisement. The

petitioner has not challenged the prescription of the cut off date as

December 21, 2013. In this regard, I need to refer to the judgment of

this Court in the case of Dr. Jyoti Hyankey (supra), wherein, this

Court has agreed with the view taken by the Tribunal that certificate

obtained by the persons claiming benefit of reservation must strictly

confirmed to the requirement of the Union Public Service

Commission (UPSC) in that case and specially, when the formats of

the certificates are made known to the candidates. The reason is that

Union Public Service Commission in that case conducts hundreds of

selection to thousands of posts each year and receives applications

from millions. It is humanly not possible for the staff of the

Commission to go about verifying the correctness of the contents of

the certificates earlier submitted by the candidates. In the case in

hand, it is noted that the petitioner had sufficient notice with regard to

the type of certificate she had to produce, for claiming the benefit of

the OBC as well as the Non-Creamy Layer inasmuch the

advertisement was issued on August 25, 2012 and the CPT was held

on December 25, 2013. She could have got the certificate from the

authorities within this period. There is no dispute to the fact that the

certificates which she has submitted of June 25, 2001 and May 10,

2013 does not conformed with the formats prescribed by the

respondent No. 2 for the OBC candidates.

8. The reliance placed by the learned counsel for the petitioner on

the judgment of this Court in the case of Ajay Kumar (supra) would

not be applicable to the fact of this case inasmuch in the said case this

Court was concerned with the facts wherein the petitioner who belong

to OBC Category applied for the post of Multi Tasking (Non-

Technical) Staff („MTS‟ in short) in pay band at Rs.5200-20200 with

grade pay of Rs.1800 in various Central Government Ministries,

departments, offices in different States and Union Territories in terms

of recruitment notice published in the employment news dated

December 04, 2010. He submitted his application on December 31,

2010. He belonged to Saini Community, which is recognized as

backward class. The petitioner took the written examination as a OBC

candidate on February 27, 2011. In the mean time, 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 March 11, 2011. The petitioner was successful in the written

examination and the Ministry of Defence was named as his user

department. However, he was kept in the reserved list at rank No.241.

The result of the reserved list was declared on November 04, 2011 in

which the petitioner was declared recruited. The respondent vide its

letter dated November 15, 2011 asked him to submit his original

documents and appear before the authorities of the respondent on

December 01, 2011 for this purpose. He appeared before the

respondent authorities on the said date along with the original

documents including two OBC certificates issued to him on February

06, 2008 and March 11, 2011. These documents were kept on record

and he was asked to wait for his appointment letter. It was the case of

the petitioner in that case that he received a memorandum dated

February 10, 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. He approached the Central Administrative

Tribunal which dismissed the petition filed by the Tribunal. The

grievance of the petitioner before this Court was that he is admittedly

the other backward classes candidate and had submitted his

application under the same category and along with the application he

had annexed the OBC Certificate dated February 06, 2008 but his

candidature was cancelled vide memorandum dated February 10, 2012

on February 15, 2012 on the ground that he did not submit the proper

OBC certificate as per the notice for examination. This Court while

allowing the writ petition was of the view that any candidate who seek

appointment to a particular post pursuant to any advertisement need to

scrupulously go through the instructions laid down but where there is

inconsequential lapse on the part of the candidate and the same is

rectified duly then ordinarily one should not be denied appointment on

that sole ground. This Court was of the view that there was

insignificant lapse on the petitioner‟s part, wherein he did not submit

the proper OBC certificate issued by the Government of India, the said

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

original documents to the Competent Authorities on December 01,

2011. This Court was also of the following view:-

"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."

This Court also relied upon the judgment in the case of DSSSB

and Anr. vs. Mrs.Anu Devi, W.P.(C) 13870/2009, decided on

February 17, 2010, wherein para No.19 reads as under:-

"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."

9. Whereas, in the case in hand, it is not only the certificate being

not in format in terms of Annexure-VIII, but, also of a date after

December 21, 2013, contrary to the advertisement, which stipulated,

the certificate should be by the competent authority on or before

completion of CPT, which was held on December 21, 2013. Further,

the petitioner had applied for the certificate only on December 26,

2013, after the relevant date.

10. The Supreme Court in Bedanga Talukdar's case (supra) has

held as under:

"The selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained. There cannot be any relaxation in terms and conditions of advertisement unless such power is specifically reserved in relevant rules and/or in advertisement. Even where the power of relaxation is or is not provided in relevant rules, it must be mentioned in advertisement. Such power if exercised should be given due publicity to ensure that those candidates who become eligible due to relaxation are afforded equal opportunity to apply and compete. The relaxation of any condition in advertisement without due publication is contrary to mandate of equality in Articles 14 and 16 of the Constitution".

11. In the case of Indu Gupta (supra), the petitioner in that case,

sought admission to professional colleges under the Sports Category.

In terms of the brochure, it was necessary that the applicant should

submit Sports Gradation Certificate issued by the Director (Sports),

Union Territory of Chandigarh. The petitioner in the said case

submitted her Gradation Certificate for counter signature on June 27,

1997 under diary No. 5660, but, the respondent-Director (Sports),

Punjab did not sign the certificate and as such she could not produce

the certificate on the date of interview on July 5, 1997 at Punjab

Technical University, Jallandhar. One of the issues before the Full

Bench was; "is it obligatory on the part of the applicant to annex the

requisite certificate along with the application prior to the last date