Rajasthan High Court

Sourabh Didwania S/O Shri Ram ... vs Rajasthan Co-Operative ... on 6 May, 2022

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 7678/2020

Sourabh Didwania S/o Shri Ram Gopal Didwania, Aged About 33
Years, R/o 51/38, Shipra Path, Nalanda Marg, Mansarovar,
Jaipur, Rajasthan 302020.
                                                                   ----Petitioner
                                   Versus
1.     Rajasthan    Co-Operative           Recruitment          Board,   Through
       Chairperson, Rajasthan Co-Operative Recruitment Board,
       10-B, Jhalana Institutional Area, Jhalana Doongri, Jaipur-
       302004.
2.     Rajasthan State Co-Operative Bank Limited (Apex Bank),
       Through Managing Director, Dc-1, Lal Kothi Shopping
       Centre, Tonk Road, Jaipur.
                                                                ----Respondents

Connected With S.B. Civil Writ Petition No. 7913/2020 Mamta Chaudhary D/o Sh. Ramniwas Gora, Aged About 30 Years, Permanent Resident Of 52, Gora Ka Baas, Near Bus Stand Bankatia, Ladun, District Nagaur (Rajasthan) And Presently Resident Of 280, Sector-3, Vidhyadhar Nagar, Jaipur (Rajasthan)

----Petitioner Versus

1. Principal Secretary, Co-Operative Department, Secretariat, Jaipur.

2. The Registrar, Co-Operative Societies, Sahkar Bhawan, 22 Godam, Jaipur.

3. Rajasthan Co-Operative Recruitment Board, 10-B, Jhalana Institutional Area, Jhalana Doongari, Jaipur.

4. The Managing Director, Rajasthan State Co-Operative Bank Ltd., Dc-1, Lal Kothi Shopping Centre, Infront Of Nehru Balodhyan, Tonk Road, Jaipur.

----Respondents

For Petitioner(s) : Mr. Ajashatru Mina, Adv.

Mr. Sovit Jhajharia, Adv. for Mr. Vijay Dutt Sharma, Adv.

                                            (2 of 12)                [CW-7678/2020]


For Respondent(s)          :     Mr. S.S. Raghav, AAG
                                 Mr. Indresh Sharma, Adv.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

06/05/2022

1. From the pleadings made in the present petitions, the core

question of law which arises for consideration is whether

appointment can be denied to a candidate on the ground of

delayed submission of OBC/OBC(Non-creamy layer) certificate

after the cut off date fixed by the recruiting agency ?

2. The facts, with consent of the parties, have been noticed

from S.B. Civil Writ Petition No.7678/2020, the prayer made

therein reads as under:-

"In the facts and circumstances aforesaid, the petitioners most respectfully pray that this Hon'ble Court may be pleased:

i. To quash and set aside the impugned disqualification order dated 06.07.2020 passed by the office of Managing Director, Rajasthan State Co-operative Bank Limited (Apex bank) against the instant petitioner (Annexure No. P/1):

ii. to direct the respondents to consider the petitioner eligible under the OBC (Non- Creamy Layer) category for the post of senior manager;

(iii) To direct the Managing Director, Rajasthan State Co-operative Bank Limited (Apex bank) to grant appointment to the petitioner on the post "Senior Manager" in Rajasthan State Co-operative Bank Limited (Apex bank).

IV. To grant all the notional benefits to the petitioner from the date of selection on the post of "Senior Manager" in Rajasthan State Co-operative Bank Limited (Apex bank).

V. To grant any other order against the Respondents that this Hon'ble Court deems just, reasonable and proper."

(3 of 12) [CW-7678/2020]

3. The undisputed facts are thus : in pursuance to the

advertisement issued by the respondent bank, the petitioners

applied for the post of Senior Manager and Banking Assistant and

after being successful in the process of selection, were called for

documents verification, at this stage their candidature was

rejected by the respondents on the premise that the petitioners

are not having the requisite OBC/OBC (Non-creamy layer)

certificate of the period just before six months from the last date

of submission of the application form, as stipulated in the

advertisement.

4. Grievance of the petitioners by filing the present writ

petitions is that delayed submission of OBC/OBC (Non-creamy

layer) certificate cannot be considered to be a valid & legally

justified ground to deny appointment to the petitioners and as

such they are entitled for appointment to the respective post in

question.

5. Counsel for the petitioners submitted that the issue of

delayed submission of the requisite certificate of OBC certificate

has been examined at length by the Hon'ble Supreme Court and

that verdict has been followed by the Coordinate Bench of this

Court at Principal Seat, Jodhpur, holding that the candidature of a

candidate cannot be rejected on account of delayed submission of

caste certificate.

6. In support of the contentions, counsel for the petitioners

relied upon the judgment passed by the Hon'ble Supreme Court in

the matter of Ram Kumar Gijroya Vs. Delhi Subordinate

(4 of 12) [CW-7678/2020]

Services Selection Board & ANR. reported in 2016(4) SCC

754, where in para Nos. 14 & 18 it has been held as under:-

"14. The Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa. In that case, the learned single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the O.B.C. certificate before the provisional selection list was published to claim the benefit of the reservation of O.B.C. category. The learned single judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh (supra), wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of the late submission of caste certificate.

18. In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul (supra) wherein this Court after interpretation of Articles 14,15,16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of

(5 of 12) [CW-7678/2020]

opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and ordern passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) is hereby restored."

7. Counsel further submitted that aforesaid verdict of the

Hon'ble Supreme Court has been taken into consideration by the

Coordinate Bench of this Court at Principal Seat Jodhpur in the

matter of Kailash Kumar Vs. State of Rajasthan & Ors. (S.B.

Civil Writ Petition No. 2505/2022 & other connected petitions-

decided on 23.02.2022) and while directing for consideration of

the candidature of the petitioners-candidates observed as under:-

"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.

(6 of 12) [CW-7678/2020]

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.

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

(7 of 12) [CW-7678/2020]

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.

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) "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"

(8 of 12) [CW-7678/2020]

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 xszM 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/(TSPds fy,½ ij dj fn;k x;k gSA mDr vLFkk;h ojh;rk lwfp;sa ij ;fn dksbZ vkifRr gks rks fnukad 08-02-2022 ,oa fnukad 09-02-2022 dks fo"ofo|ky; eas 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.

(9 of 12) [CW-7678/2020]

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 gksus 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"

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 and, therefore,

(10 of 12) [CW-7678/2020]

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."

8. Counsel appearing on behalf of the respondents opposed the

writ petitions and submitted that the respondents have rightly

rejected candidature of the petitioners in view of the terms &

conditions stipulated in the advertisement.

9. Counsel for the respondents relied upon the judgment

passed by the Hon'ble Supreme Court in the matter of Prakash

Chand Meena & Ors. Vs. State of Rajasthan & Ors., reported

in (2015) 8 SCC 484 where in para 8 it has been held as under:-

"8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge and the impugned judgment of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether B.P. Ed. and D.P. Ed. qualifications are equivalent or superior to C.P. Ed. qualification but such exercise cannot help the cause of the Respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to

(11 of 12) [CW-7678/2020]

complete it as per terms of advertisement and as per rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that Respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of C.P. Ed. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement. "

10. Heard counsel for the parties and perused the record.

11. These writ petitions filed by the petitioners deserve to be

allowed in view of the judgment passed by the Hon'ble Supreme

Court in the matter of Ram Kumar Gijoriya (supra), followed by

the Coordinate Bench of this Court at Principal Seat at Jodhpur in

the matter of Kailash Kumar (supra) for the reasons, admittedly

the petitioners applied under the OBC/OBC (NCL) category (as the

case may be) and submitted the requisite certificate to the

respondents at the time of documents verification therefore denial

of appointment to the petitioners on the premise that the

petitioners were not having the certificate on the last date of

submission of application form, in my considered view is not