Narendra Ridha Ram Junawa vs Vadodara Municipal Corporation
2021 Latest Caselaw 6000 Guj

      C/SCA/8753/2020                                JUDGMENT DATED: 15/06/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8753 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed                    Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                             Yes

3      Whether their Lordships wish to see the fair copy                    No
       of the judgment ?

4      Whether this case involves a substantial question                    No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          NARENDRA RIDHA RAM JUNAWA
                                    Versus
                        VADODARA MUNICIPAL CORPORATION
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Appearance:
MR BHUVNESH GAHLOT(10286) for the Petitioner(s) No. 1
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
===============================================================
 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 15/06/2021
                                ORAL JUDGMENT

[1] Rule. Learned advocate waives service of rule on behalf of respondent-Corporation.

[2] This petition under Article 226 of the Constitution of India is filed seeking direction to set aside the action on the part of the respondent-corporation in declaring the petitioner as unqualified/unsuccessful candidate in the direct selection process of staff Nurse.

       C/SCA/8753/2020                                   JUDGMENT DATED: 15/06/2021



[3]      It is the case of the petitioner that though the petitioner had

applied as candidate of reserved category and since has received marks in the qualifying examination at par and more than the candidates of general category, the petitioner may be treated as candidate of general category and the respondent-corporation may not insist upon the petitioner to produce caste certificate of the petitioner being reserved category.

[4] Learned advocate for the petitioner submitted that the petitioner belongs to poor background, but has qualification of B.Sc. Nursing from nursing college at Jodhpur, Rajasthan and he belongs to reserved category as Other Backwards Class (OBC) as he belongs to 28 JAt which is a category recognized as a OBC in the State of Rajasthan. The petitioner had produced the relevant caste certificate from the office of the Sub-Registrar, Parbatsar Naguar. The petitioner had appeared in the written examination conducted on 15.12.2019 at Vadodara and the result came to be declared on 10.03.2020 and accordingly, provisional list of qualified candidates was made public. Upon being qualified in the written examination, the petitioner was called for document verification alongwith other candidates on 18.03.2020. From the provisional list of candidates declared successful in the written examination, the petitioner was at Sr.No.9 shown in general category (OBC) and having obtained 131 marks. It is submitted that the last candidate of the reserved category had received 125.5 marks and as the petitioner was receiving marks more than the last category of general category candidate, the petitioner was himself treated as a candidate of general (OBC) as is indicated in the provisional list of selected candidates. He draws attention of this Court to Annexure-D and Annexure-E and submitted that after the petitioner was called at the stage of document verification, the petitioner was asked to produce caste certificate of SEBC issued by appropriate authority of State of Gujarat. As the petitioner was unable to do so, the petitioner's name

C/SCA/8753/2020 JUDGMENT DATED: 15/06/2021

was listed in the list of disqualified candidates (Annexure-E) on the ground of non-production of caste certificate from the appropriate authority of the State of Gujarat. It is submitted that the decision of the respondent is not in consonance with the correct position of law as the petitioner belongs to OBC in the State of Rajasthan and his caste appears at Sr. No.28 of the Central list, but since the petitioner has cleared examination and stood on merits at par with the candidate of general category, the respondent-corporation ought not to have insisted to produce the caste certificate at all and treated the petitioner as candidate of reserved category.

[5] As against this, learned advocate for the respondent- corporation submitted that the petitioner has already admitted that he belonged to 28 JAT which is considered as OBC category in the State of Rajasthan and, therefore, when the category of the petitioner was asked while filling up an application form, he has applied for the post of such class in SEB category which clearly reflects that the petitioner has filled up the form for the post of Staff Nurse in SEBC category. As per the mandatory provision and important terms and conditions of the recruitment process, it is specifically provided that any candidate applies for any post in any of the reservation then, he must possess caste certificate issued by the competent authority of the Government of Gujarat only and his particular caste can be considered only when such caste is approved and sanctioned by the Government of Gujarat, then only his application can be taken into consideration. However, in the present case, the petitioner himself has admitted that he belonged to 28 JAT which is considered as OBC category in the State of Rajasthan and, therefore, he has produced the caste certificate granted by the office of the Sub-Registrar, Parbatsar, Naguar, Rajasthan which will not be accepted by the corporation as same being not caste certificate of appropriate authority of State of Gujarat of SEBC category. In this regard, it is settled law that a particular person

C/SCA/8753/2020 JUDGMENT DATED: 15/06/2021

belonging to a particular caste of community, coming from one State, cannot claim the benefit of reservation in Government job or admission in another State, if his/her caste is not notified in other State as it will amount to depriving the member of that particular caste or tribe of a particular State by reducing the reservation earmarked for them and, therefore also, the present petition deserves to be dismissed as the present petitioner belongs to 28 JAT which is considered as SEBC category in the State of Rajasthan which is otherwise not recognized by the State of Gujarat and also the present petitioner is not having any particular caste certificate, if any, issued by the concerned authority of the State of Gujarat.

[5.1] He further submits that the present petitioner has filled up the application form in SEBC category, therefore, he is also required to produce only that caste certificate which is approved and issued by the State of Gujarat as same being one of mandatory condition and important provision of said recruitment and since petitioner is unable to comply with the said mandatory condition, his candidature has been rightly rejected by the corporation.

[5.2] Upon instructions, learned advocate for the respondent- corporation sates that against 48 posts advertised, 26 were for general category, out of which 22 candidates were selected from general category out of which 19 candidates have joined.

[6] The Court has heard learned advocates for the parties and perused the documents placed on record. The respondent corporation has given an advertisement for the post of Staff Nurse as well as other categories which has also been published in the local newspaper bearing No.1030/2017-18 and called for the application through on-line. In the advertisement, there are 48 posts of staff nurses which comprises of SC-3, ST-7, SEBC-12, and General Category-26. In the said advertisement, it has been specifically stated that the provision of entire establishment expenses of the

C/SCA/8753/2020 JUDGMENT DATED: 15/06/2021

said recruitment is borne by the Health and Family Welfare Department of the Government of Gujarat, based on which if the Government of Gujarat thinks if fit, then it can transfer the entire establishment on the pay role of State Government and accordingly, the candidate can be asked to serve at any place as decided by the State Government, and therefore, all the posts for which aforesaid advertisement has been given, are all transferable posts which are filled up by the Corporation on behalf of the State Government. According to the advertisement, the corporation has received for all 7 posts category, 42,119 applications in which with regard to the staff nurse post, nearly 13,043 applications are received by the corporation and out of which, the corporation has called for 12,360 For that purpose, the corporation has also advertised the prescribed syllabus on 27.11.2019; call letters were issued on 5.12.2019 and all the candidates were called for written examination and out of 12,360 candidates, in written examination only 3542 candidates had remained present. The corporation had issued the final answer key on its website on 27.1.2020 and the result also came to be published on website on 27.2.2020 and OMR sheet was also published on 29.2.2020 and the merit list section and waiting list was also published on 9.3.2020.

[6.1] As per the merit list, for the purpose of verification, of documents, letters were as issued to the respective candidates on 09.03.2020. After rejection list was prepared, those candidates who have made the representation for rejection of their application form for want of non-production of either fees payment receipt or caste certificate, then such representations were reconsidered by the respondent Corporation on production of such documents which was reconsidered and accordingly, fresh list was prepared by inserting the names of such candidates who have produced such documents which was accordingly been published on 6.6.2020/22.6.2020.

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[6.2] For the purpose of taking written examination of 12,360 candidates, the corporation has arranged can 103 examination center and 1154 blocks have been reserved and for that purpose, a huge expenditure has been incurred by the corporation which comprises the expenses for the purpose of paper setting as well as examination of the papers. The corporation has followed and carried out all the required procedure as per the terms and conditions of the advertisement, and accordingly, the written examination was taken and all applications were considered.

[7] The question therefore arise as to whether the petitioner who had applied for the post as a reserved category candidate can be treated as an open category candidate. To answer this issue, reference be made to several judgments of the Supreme Court first being A.P.Public Service Commission v/s. Baloji Badhavath, reported in 2009 (5) SCC 1, wherein the Apex Court had also taken into consideration the question that if reserved category candidates are meritorious enough to compete with the open category candidates then they are to be recruited in that category and the candidates below them will have to be considered for appointment in the reserved category. Specifically addressing this issue, the Apex Court in para-37 has held as under:-

"37. One other aspect of the matter must be kept in mind.

If category-wise statement is prepared, as has been directed by High Court, it may detrimental to the interest of the meritorious candidates belonging to the reserved categories. The reserved category candidates have to options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well-settled principle of law as has been laid down by this Court in several decisions. [See for example, Union of India and Anr. V/s. Satya Prakash and Ors.. 2006 4 SCC 550, para 18 to 20, Ritesh R.

Shah V/s. Y.L.Yamul, 1996 2 SCR 695 at 700-701, R.K. Daria V/s. Rajasthan Public Service Commission, 2007 8 SCC 785, [para 9]

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[8] In case of Rajesh Kumar Daria v/s. Rajasthan Public Service Commission, reported in 2007 (8) SCC 785, the Supreme Court was dealing with issue of reservation, but the issue before the Apex Court in this case was pertaining to horizontal reservation within the vertical reservation however, with regards to the competing of the reserved category candidates with the open category candidates, the Supreme Court in para-8 has held as under:-

"8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Art. 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab 1995 2 SCC 745, Union of India vs. Virpal Singh Chauvan 1995 6 SCC 684 and Ritesh R. Sah v/s. Dr.Y.L. Yamul 1996 3 SCC 253]. (Emphasis Supplied.). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of

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the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]

[9] In case of U.P. Power Corporation Limited and Another v/s. Nitin Kumar and others. In unreported judgment, the Division Bench of Allahbad High Court in Special Appeal No.310 of 2015 had examined the case. The issue therein was quite similar to the present issue and while examining the provision of Section 3(6) of Uttar Pradesh Public Services (Reserved for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act. 1994, the Court has held as under:-

"....Section 3 (6) is a statutory recognition of the principle that if a candidate belonging to a reserved category is selected on the basis of merit in open competition with general candidates, such a candidate is to be adjusted not against the vacancies reserved for the reserved category to which the candidate belongs but against the unreserved seats. This proceeds on the foundation that where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of

C/SCA/8753/2020 JUDGMENT DATED: 15/06/2021

reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories. An unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit. Hence, the principle which is embodied in Section 3 (6) is not confined in its application only at the stage when the final select list is to be drawn up. If the submission of the appellants were to be accepted, that would result in seriously absurd consequences. As the learned Single Judge noted, in the present case itself, the petitioners who belong to the OBC category had in fact secured higher marks in the written test than the last short-listed candidate from the unreserved category. However, they were sought to be excluded from short-listing for the unreserved posts only on the ground that as a candidate who had declared himself or herself to be of a reserved category, that candidate would have to be excluded from shortlisting from the unreserved category even if on the basis of the position in merit, such a candidate would otherwise fall in the list of short-listed candidates in the open or unreserved category. Such a consequence would not be permissible in law....."

[10] Considering the various pronouncements as narrated hereinabove, the Court is of the opinion that the respondent- corporation ought go have treated the candidature of the petitioner as open category candidate. From the documents on record, the result declared by the respondent-corporation it is apparent that in the provisional list of candidates qualified for the selection list for the post of Staff Nurse, the petitioner was at Sr.No.9 having secured 131 marks, wherein as other candidates of general category whose names appeared in the selection list are shown to have received marks 129, 128.5, 125.5 etc. Meaning thereby, marks which are lesser than the marks of the present petitioner, the petitioner has received the marks enough to compete with the candidates of general category and ought to have treated as candidate of general category.

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[10.1] As the petitioner is to be treated as candidate of general category as a necessary corollary, the requirement of caste certificate of petitioner being candidate of reserved category from an appropriate Government, which is the condition prescribed in the advertisement, such requirement will fall into insignificance.

[11] The other impediment against the petitioner would be benefit the petitioner received while making an application for having paid Rs.100/- as candidate belonging to reserved category against the payment of Rs.200/- towards the examination fees to be paid by general category candidate. This impediment can be overlooked by this Court as it is only the ministerial requirement which the candidate can be called upon to fulfill in view of the special facts of this case particularly when the after the selection process was concluded against 26 posts advertised for general category, 22 candidates were selected and out of which till date only 19 have joined and therefore, there is still a vacancy available in the general category. In view of the aforesaid, the requirement of payment of Rs.200/- examination fees may be permitted to be regularized by the respondent-corporation.

[12] In light of the observations made hereinabove, the respondent-corporation may treat the petitioner as candidate of general category and the petitioner to be given an opportunity from the stage next to clearing of written examination and permitted to participate in the subsequent process namely the document verification and any other process that is adopted by the respondent-corporation pursuant to the advertisement for recruitment No.1030/2017-2018 for the post of Staff Nurse and take decision in accordance with law. It is open for the respondent- corporation to adopt special process of documentary verification and acceptance of deficit fees from the petitioner. The exercise be undertaken by the respondent-corporation expeditiously.

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[13] With the aforesaid, present petition is allowed. Rule is made absolute to the aforesaid extent.

[14] Learned advocate for the respondent-corporation requests for stay of the present order considering the nature of dispute pertaining to recruitment process. The request is granted. The operation of this order is stayed for a period of three weeks from today.

(A.Y. KOGJE, J) SIDDHARTH