Madras High Court
A.Arul Jothi vs The Union Of India on 1 December, 2021
W.P.No. 9672 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 28.04.2022
ORDER PRONOUNCED ON : 06.06.2022
CORAM
HON'BLE JUSTICE MR.JUSTICE S.VAIDYANATHAN
AND
HON'BLE JUSTICE MRS.JUSTICE.N.MALA
W.P.No. 9672 of 2022
A.Arul Jothi
...Petitioner
Vs.
1.The Union of India, rep by its
Under Secretary,
Union Public Service Commission,
Special Cell II Section, Dholpur House,
Shahjahan Road,
New Delhi- 110 069.
2.The Union of India rep. by its
Secretary,
Ministry of Health and Family Welfare,
New Delhi.
...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus in the nature of writ calling for the
records on the file of the Central Administrative Tribunal, Chennai with regard to
1/13
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W.P.No. 9672 of 2022
the order passed in O.A.No.1627 of 2016 dated 01.12.2021 and quash the same
and direct the respondents to select and appoint the petitioner as Drug Inspector as
per provisional list issued by the 1st respondent dated 08.04.2016.
For Petitioner : Mr.V.S.Jagadeesan
Respondent for R1 : Mr.V.Chandrasekaran
for R2: Mr.C.Kulanthaivelu
*****
ORDER
[Order of the Court was made by S.VAIDYANATHAN,J. and N.MALA,J.]
The Writ Appeal is filed against the order dated 01.12.2021 dismissing the
O.A.No. 1627 of 2016 which was filed challenging the rejection of the petitioner's
application for the post of Drug Inspector.
2. The summary of the facts are as follows:
The petitioner passed the degree in Pharmacy in 2004 and applied for the post of
Drug Inspector which was notified in the employment newspaper dated
28.02.2015-06.03.2015, calling for applications from eligible candidates for filling
up for the post of 147 Drug Inspectors in Central Drug Standard Control
Organisation (CDSCO), Ministry of Health and Family Welfare.
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W.P.No. 9672 of 2022
3. The communal reservation in the said notification was given as 18 for SC,
13 for ST, 38 for OBC and 78 for UR. The age limit for the general category was
fixed as 30 years and relaxation of age was given as 5 years for SC/ST and 3 years
for OBC. According to the petitioner, he was fully qualified for the post of Drug
Inspector, hence he submitted an application through online as required.
According to the petitioner he belongs to OBC category particularly Vanniya Kula
kshatriya community which is a Non-Creamy layer community and so he was
entitled to age relaxation of 3 years. According to the petitioner he had applied
only as a OBC candidate and his application was also accepted by the respondents.
The petitioner was issued with a call letter on 24.07.2015 and was allotted Roll
No. with instructions to appear for the recruitment test on 26.07.2015 for the
notified post. The petitioner appeared for the recruitment test and was successful
in the written test.
4. The petitioner's Roll No. figured in the short listed candidates in the
results published by the respondents. The petitioner was waiting for call letter for
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W.P.No. 9672 of 2022
the interview but he was issued with the impugned order dated 06.07.2016,
wherein, it was stated that his application was cancelled by the commission on the
ground of overage. According to the petitioner the impugned order referred to a
judgment of Hon'ble Supreme Court dated 17.03.2015, wherein the notification
including the JAT community in the central list of OBC's was set aside. On the
basis of the said judgment the writ petitioner's candidature was treated as general
category and not under OBC "JAT" community. The petitioner contended that he
never applied under JAT quota as he belonged to the OBC/Non-Creamy layer
category of Vanniya Kula kshatriya community which is a OBC community of
Tamil Nadu. The petitioner therefore submitted that the impugned order was
issued without application of mind and the same deserved to be set aside.
5. The respondents filed a counter in the O.A and contended that the order
dated 06.07.2016 inadvertently mentioned that the candidature of the petitioner for
the post of Drug Inspector was cancelled as he was treated as general category
candidate, following the judgment of Hon'ble Supreme Court wherein the
notification dated 04.03.2014 of the Ministry of Social Justice and Empowerment
including JAT community in the central OBC list was set aside. According to the
respondents the said mistake was immediately rectified by the communication
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W.P.No. 9672 of 2022
dated 13.07.2016 in which it was categorically stated that as the petitioner
belonged to OBC Creamy layer category, he was treated as general category
candidate and as he was found to be overaged for the said category, his application
was cancelled.
6. The petitioner filed rejoinder affidavit stating that the respondents had set
up a new case in the counter by stating that his candidature was rejected as he
belonged to Creamy layer of OBC community and was not entitled to age
relaxation. The petitioner filed an additional affidavit wherein he disputed the
receipt of the corrected rejection letter dated 13.07.2016. The petitioner further
stated that the mistake or the error in the entry in the online application regarding
the Non-Creamy layer was to be ignored because he sought age relaxation on the
basis of OBC certificate and the proceeding number issued to him in the year
2011. The petitioner therefore submitted that the mistake in the online application
was inadvertent, because the OBC certificate was referred to and also age
relaxation was claimed.
7. The Hon'ble Tribunal on the basis of the pleadings of the respective
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W.P.No. 9672 of 2022
parties and the arguments of the counsels dismissed the O.A. vide order dated
01.12.2021 on the specific finding that the error committed by the applicant as
regards the Creamy layer cannot be treated as minor error and the petitioner should
have read the instructions correctly and filled the entries properly. The Tribunal
was of the view that the petitioner must bear the consequences of the failure in
filling up the application correctly. Aggrieved by the order of the Hon'ble Tribunal,
the petitioner has filed the writ petition.
8. The moot question in this case is whether the rejection of the petitioner's
application for the post of Drug Inspector is sustainable or not.
9. The counsel for the petitioner submitted that the respondents were trying
to take advantage of the inadvertent error in the application which is of no
consequence because in the application itself the petitioner sought age relaxation
of 3 years as he belonged to OBC community and gave order number and date of
his community certificate. The counsel further denied the receipt of the corrected
rejection letter dated 13.07.2016. The learned counsel for the petitioner therefore
submitted that as the receipt of the letter dated 13.07.2016 was denied, it was
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W.P.No. 9672 of 2022
incumbent on the respondents, to prove that such a letter was served on him.
10. The counsel for the respondent submitted that the order passed by the
Tribunal is to be upheld because the Tribunal has rightly held that the petitioner
cannot take advantage of his own wrong and that the error in the application
regarding OBC/Creamy layer category was not a minor error and therefore prayed
for the dismissal of the writ petition.
11. We have heard the learned counsel for the petitioner and the learned
counsel for the respondents and have perused the records.
12. In the application filed by the petitioner, no-doubt in the column relating
to community etc. it is stated as follows:
Community Subcaste/State Vaniyar, Vania Chettiar (including Gandla,
/Creamy Layer: Ganika, Telikula and Chekkalar)/(Tamil Nadu)/
YES.
But in the next page in the column age relaxation the following entries are seen
Age Relaxation:
Age Relaxation: Yes
Under special provision/order: Yes
Order No. & Date: 201/2011/04 25-01-2011
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W.P.No. 9672 of 2022
Age Relaxation: Yes
No. of year(s)/month(s)/day(s): 3 Years 0 Months 0 Days
Therefore it is clear that the petitioner has clearly mentioned that he belongs to the
OBC category (non creamy layer) and has sought age relaxation of 3 years on the
basis of his community certificate. The order number and the date of his
community certificate is given in the application. As rightly contended by the
petitioner's counsel, the error in the application as regards Creamy layer is only an
inadvertent mistake and if the application is read as a whole it will be seen that the
petitioner claimed age relaxation on the basis that he belonged to OBC (non
creamy layer) category. The contention of the respondents counsel that the
certificates were scrutinised subsequently and therefore at the stage of submission
of application there was no necessity to scrutinise the certificate and therefore the
rejection was made subsequent to the scrutiny is untenable.
13. The fact that the respondents permitted the petitioner to participate in
the written examination is not disputed. If really the petitioner was considered as
general category candidate then the respondent would have rejected his
application at the threshold, because in the application his Date of Birth was given
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W.P.No. 9672 of 2022
as 16.05.1982, which means that on the date of the application the petitioner was
over 30 years of age which is the upper age limit for general category candidates.
The fact that the respondents permitted the petitioner to take the written
examination shows that the respondents treated him only as a OBC candidate and
not as a general category candidate on the basis of the details furnished by him in
the application particularly the clause relating to Age relaxation.
14. It is relevant to note here that initially the petitioner's candidature was
rejected on the basis of the judgment of the Hon'ble Supreme Court with reference
to the JAT community and it was only later vide letter dated 13.07.2016 that the
mistake was found out and the reason for the rejection was converted into one of
overage for OBC non creamy layer category. Though copy of the said letter was
given across the bar the receipt of the same is disputed by the writ petitioner.
15. As rightly submitted by the petitioner's counsel, there is no endorsement
of receipt by the petitioner and only despatch register is annexed with letter. When
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W.P.No. 9672 of 2022
the petitioner was not served with the letter dated 13.07.2016, he could not have
challenged it. The contention of the petitioner's counsel that the new ground for
rejection of his application is an after thought is probable.
16. We are therefore of the considered view that the rejection of the
petitioner's application is un-justified in the facts and circumstances of the case.
17. We therefore set aside the order dated 01.12.2021 passed by the Hon'ble
Tribunal and further direct the respondents to consider the selection and
appointment of the petitioner as Drug Inspector as per the provisional list issued
by the first respondent dated 08.04.2016.
In view of the above this Writ petition is allowed. There shall be no order
as to costs.
[S.V.N.,J.] [N.M.,J.]
Index : Yes/No 06.06.2022
Internet : Yes/No
dsn
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W.P.No. 9672 of 2022
To
1.The Under Secretary,
Union Public Service Commission,
Special Cell II Section, Dholpur House,
Shahjahan Road,
New Delhi- 110 069.
2.The Secretary,
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W.P.No. 9672 of 2022
Ministry of Health and Family Welfare,
New Delhi.
S.VAIDYANATHAN,J.
and
N.MALA ,J.
dsn
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W.P.No. 9672 of 2022
PRE-DELIVERY ORDER IN
W.P.No. 9672 of 2022
06.06.2022
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