Vikas Kumar vs State Of Rajasthan
2022 Latest Caselaw 2937 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2505/2022

Kailash Kumar S/o Shri Chhagan Lal, Aged About 29 Years, R/o Kumhar Vas, Jhankar, Post Janapur, Tehsil Pindwara, District Sirohi, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Ayurved And Indian Medicine Department, Jaipur, Rajasthan

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

----Respondents Connected With S.B. Civil Writ Petition No. 2516/2022 Vikas Kumar S/o Shri Puran Mal, Aged About 28 Years, R/o Village And Post Doomra, Tehsil Nawalgarh, District Jhunjhunu, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Ayurved And Indian Medicine Department, Jaipur, Rajasthan.

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 2519/2022 Trilok Singh S/o Shri Ramesh Singh Gurjar, Aged About 25 Years, R/o Village Madanpur, Post Siloti, Tehsil Masalpur, District Karauli, Rajasthan.

                                                                     ----Petitioner
                                      Versus



                                            (2 of 9)                   [CW-2505/2022]

1. State Of Rajasthan, Through The Secretary, Ayurved And Indian Medicine Department, Jaipur, Rajasthan.

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 2527/2022 Meenakshi Kumari Ved D/o Shri Surya Prakash Ved, Aged About 24 Years, Babro Ki Gali, Sadar Bazar, Shahpura, District Bhilwara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Ayurved And Indian Medicine Department, Jaipur (Rajasthan).

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 2531/2022 Shivraj Singh S/o Shri Kishor Dan Charan, Aged About 27 Years, Village Dheerasar Charanan, Tehsil And District Churu, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Ayurved And Indian Medicine Department, Jaipur Rajasthan.

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

                                                                  ----Respondents



                                          (3 of 9)               [CW-2505/2022]



For Petitioner(s)         :    Dr. Nupur Bhati
                               Mr. Vikram Singh Bhati.
For Respondent(s)         :    Mr. A.K. Gaur, AAG.
                               Mr. Suniel Purohit.


        HON'BLE MR. JUSTICE ARUN BHANSALI
                       Order
23/02/2022

As the facts of all the cases are essentially similar except

dates of certificates involved, facts in the case of Kailash Kumar

(S.B. Civil Writ Petition No. 2505/2022) are being taken into

consideration.

These writ petitions have been filed by the petitioners

aggrieved against the non-inclusion of their names in the

provisional merit list for recruitment of Nurse / Compounder Junior

Grade vide advertisement No.1/2021 for Non-TSP area and

seeking a direction to the respondents to consider them as eligible

as OBC Non-Creamy Layer (NCL) / MBC candidates.

An advertisement dated 17.6.2021 (Annex.3) was issued by

the respondents for the recruitment. The petitioners filled up the

application form inter alia claiming their status as OBC (NCL) /

MBC candidates.

The respondents issued public notice dated 18.10.2021,

requiring the candidates whose name had appeared in the list of

candidates qualified for Nurse / Compounder vacancy in OBC

category / MBC to appear for document verification.

The petitioners claim that during course of document

verification, OBC certificates issued on 13.10.2018 and 3.9.2021

(Annex.2 and Annex.7 respectively), were produced by the

petitioner along with other requisites. However, in the provisional

merit list, the name of the petitioner did not appear.

(4 of 9) [CW-2505/2022]

A notice (Annex.9) was published by the respondents calling

for objections to the provisional merit list requiring the candidates

to personally remain present and raise objection along with proof.

The petitioner filed a representation inter alia indicating that

he had produced both the certificates (Annex.2 and Annex.7) and

that the guidelines issued by the Social Justice and Empowerment

Department dated 9.9.2015 provided for the validity of OBC (NCL)

certificate for three years along with an affidavit and produced an

affidavit in terms of the guidelines dated 9.9.2015 also. However,

as the petitioner apprehended that the respondents would not

take the same into consideration, the present petition has been

filed.

Learned counsel for the petitioners made submissions that

the condition of the advertisement, provided that the candidates

were required to produce 'latest certificate' pertaining to OBC,

which was produced by the petitioner (Annex.7), however, as the

requirement indicated was that the certificate must be valid on the

date of application / last date provided for application, the

certificate (Annex.2) was also valid along with the affidavit

produced by the petitioner and, therefore, the action of the

respondents in not considering the candidature of the petitioners

as OBC (NCL) / MBC candidates, is not justified.

Reliance has been placed on judgment in Ram Kumar Gijroya

v. Delhi Subordinate Services Selection: (2016) 4 SCC 754.

Learned counsel appearing for the University vehemently

opposed the submissions. It was submitted that the clause 9.2 of

the advertisement clearly provided that any certificate issued after

the last date shall not be considered.

                                                                       (5 of 9)                [CW-2505/2022]



      Further       submissions                           have          been      made    that   when    the

candidates were called for document verification, they were

required to produce all the relevant documents during course of

document verification and as admittedly the affidavit in support of

the OBC certificate dated 30.10.2018 (Annex.2) has been

produced after the last date and after document verification, the

same cannot be considered and as the petitioners have failed to

provide valid proof of their status as OBC (NCL) / MBC, the

petitions are liable to be dismissed.

Reliance has been placed on judgments in Raj Kumar Mahto

v. State of Jharkhand & Ors.: WP(S) No.5572/2017, decided on

20.12.2019 by Jharkhand High Court and Gaurav Sharma v. State

of U.P.: Special Appeal No.156/2017, decided on 4.5.2017 by Full

Bench of Allahabad High Court.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts are not in dispute, wherein, the candidates are in

possession of OBC (NCL) / MBC certificate prior to the date of

application and subsequent to the last date of application.

The relevant Clauses of the advertisement reads as under:-

"¼3½ vkj{k.k %&

(i) ----------------------------------------------

(ii) ----------------------------------------------

(iii) vU; fiNM+k [email protected] fiNM+k oxZ ds izek.k&i= esa fuokl LFkku ,oa Øhfeys;[email protected] Øhfeys;j dh izfof"V;k lgh&lgh ,oa iw.kZ Hkjh xbZ gksA vU; fiNM+k [email protected] fiNM+k oxZ ds tkfr izek.k&i= fu;ekuqlkj uohure tkjh fd;s gq, gksus vko";d gSA"

(emphasis supplied)

(6 of 9) [CW-2505/2022]

"¼9½ nLrkostksa dk lR;kiu %& 1- -------------------------------------------------------- 2- vkosnu djus dh vfUre frfFk ds ckn tkjh fd;k x;k dksbZ Hkh izek.k i= ekU; ugha gksxkA"

A perusal of condition No.3(iii) would reveal that the

requirement indicated was that the certificate pertaining to

OBC(NCL) / MBC should be latest as per Rules. The said term

'latest' has not been clarified as to whether the same should be

latest at the time of filing of the application or at the time of

document verification.

Admittedly, along with the application form, the candidates

were not required to upload any document and/or indicate any

particulars about the available documents.

Condition No.9.2 indicated that any certificate issued after

the last date, would not be valid. The said condition though is

significant but the same has to be read in context, inasmuch as,

the respondents after publishing the provisional merit list on

6.2.2022 have issued an advertisement on the same date, which

reads as under:-

"vk;qosZn funs"kky; jktLFkku] vtesj }kjk foKkfir [email protected] twfu;j xszsM ds Øe"k% Non TSP ,oa TSP

Jsf.k;ksa ds inksa ij fu;fer fu;qfDr gsrq foKfIr la[;k [email protected] ,oa [email protected] ds }kjk vkeaf=r vkWuykbZu vkosnu i=ksa ds rhu pj.kksa esa fd;s x;s nLrkost&lR;kiu dk;Z ds i"pkr~ foKfIr ds fu;ekuqlkj ik= ik;s x;s vH;fFkZ;ksa dh Js.khokj vLFkk;h ojh;rk lwfp;ksa dk izdk"ku fnukad 06-02-

          2022              dks                 fo"ofo|ky;                          dh          osclkbZV
          https://nursing.rauonline.in/ (Non TSP                                          ds fy,½ ,oa
          https://tsp.rauonline.in/ ¼TSP                                ds fy,½ ij dj fn;k x;k

gSA mDr vLFkk;h ojh;rk lwfp;ksa ij ;fn dksbZ vkifRr gks rks fnukad 08-02-2022 ,oa fnukad 09-02-2022 dks fo"ofo|ky; esa

(7 of 9) [CW-2505/2022]

izkr% 10-00 cts ls lka;dky 05-00 cts rd O;fDrxr :i ls mifLFkr gksdj lk{;lfgr vkifr ntZ djk ldrs gSA blds ckn vLFkk;h ojh;rk lwfp;ksa dks vfUre :i ls vk;qosZn funs"kky; dks izLrqr dj fn;k tk;sxk"

(emphasis supplied)

A perusal of the above would indicate that the respondents

themselves sought objections and required the candidates to

produce proof in support of the objection. Once the respondents

themselves provided an opportunity / window to the candidates to

produce further material in support of their candidature, to claim

that the indication made in Clause 9.2 was so sacrosanct that any

document produced pursuant to the notice inviting objections

dated 6.2.2022 also cannot be taken into consideration, cannot be

accepted.

The petitioners specifically made a claim that they had

produced both the certificates (Annex.2 and Annex.7) at the time

of document verification. As the Annex.7 was dated 3.9.2021,

which was 'latest' only was retained.

Further Clause 4.2 of the guidelines dated 9.9.2015 issued

by the State, reads as under:-

"4- tkfr izek.k i= dh oS/krk vof/k %& 1- ------------------------------------------------- 2- fØehys;j esa ugha gkssus laca/kh izek.k&i= ,d o"kZ ds fy, ekU; gksxk ,d ckj Øhfeys;j esa ugha gksus dk izek.k&i= tkjh gksus ds mijkUr vxj izkFkhZ vkxkeh o"kZ esa Hkh fØehys;j esa ugha gS rks ,slh fLFkfr esa mlls lR;kfir 'kiFk&i= ¼ifjf'k"V&M+½ ysdj iwoZ esa tkjh izek.k&i= dks gh eku fy;k tkos ,slk vf/kdre rhu o"kZ rd fd;k tk ldrk gSA"

(8 of 9) [CW-2505/2022]

As per the above condition, the certificate issued pertaining

to OBC(NCL) category was valid for three years if the same was

supported by an affidavit.

The petitioners in support of their certificate of a date prior

to the date of application, which is within three years from the last

date of application, produced an affidavit during the window

provided by the respondents for producing proof along with

objection, in terms of the guidelines dated 9.9.2015. The said

certificate in terms of the guidelines, made the certificate

produced by the petitioners valid for all intents and purposes and,

therefore, the respondents are required to take the same into

consideration for the purpose of publishing the final merit list.

Hon'ble Supreme Court in the case of Ram Kumar Gijroya

(supra) after taking into consideration the constitutional concept

of reservation envisaged in the Preamble of the Constitution as

well as Articles 14, 15, 16 and 39-A of the directive principles of

the State policy, in a case where the OBC certificate was

submitted after the cut-off date, directed consideration of the

certificate, which judgment covers the issue raised in the present

petitions.

So far as the judgments in the case of Gaurav Sharma

(supra) and Raj Kumar Mahto (supra) are concerned, the said

judgments have emphasized the importance of cut-off date and

that any certificate produced beyond the cut-off cannot be taken

into consideration, however, as already noticed hereinbefore, as

the respondents themselves have provided a window for

production of further proof by the candidates in support of their

candidature, the clause 9.2 in the advertisement stood diluted

(9 of 9) [CW-2505/2022]

and, therefore, the said judgments would have no application to

the facts of the present case.

In view of the above discussion, the writ petitions filed by

the petitioners are allowed. The respondents are directed to take

into consideration the candidature of the petitioners based on their

OBC (NCL)/ MBC certificates (Annex.2) along with affidavit filed by

them and in case, they are found otherwise eligible and fall in

merit, to include their names in the final select list / final merit list

to be issued by the respondents.

No order as to costs.

(ARUN BHANSALI),J Sumit/-

220 to 225 Except Item No.223

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