Sugna Dhaker D/O Sh. Rameshwar ... vs State Of Rajasthan
2022 Latest Caselaw 6830 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 7959/2022

Sugna Dhaker D/o Sh. Rameshwar Dhaker, Aged About 35 Years,
R/o 197, Santoshi Nagar, Kacchi Basti, Kota.
                                                                    ----Petitioner
                                    Versus
1.     State Of Rajasthan, Through Secretary, Ayurved And
       Indian Medicine Department, Secretariat, Jaipur.
2.     Director, Directorate Department Of Ayurveda, Ashok
       Marg, Lohagarh Road, Ajmer- 305 001.
3.     Dr.    Sarvepalli       Radhakrishnan              Rajasthan      Ayurved
       University,     Through           Its     Registrar       (Administrative
       Department), Karwar, Nagaur Road, Jodhpur, Rajasthan -
       342037.
4.     Manju D/o. Shri Nahar Singh, Aged About 31 Years,
       Through Director, Directorate Department Of Ayurveda,
       Ashok Marg, Lohagarh Road, Ajmer - 305 001.
                                                                 ----Respondents

For Petitioner(s) : Mr. Shobhit Tiwari with Mr. Rohit Tiwari For Respondent(s) : Mr. C.L. Saini, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

20/10/2022

Counsel for the petitioners submitted that the issue involved

in this writ petition has been considered and decided by the

Coordinate Bench of this court at Principal Seat, Jodhpur in the

matter of Kailash Kumar Vs. State of Rajasthan (S.B. Civil

Writ Petition No.2505/2022) wherein on 23.02.2022, the

following order was passed:-

"As the facts of all the cases are essentially similar except dates of

(2 of 6) [CW-7959/2022]

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.

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

(3 of 6) [CW-7959/2022]

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.

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 %&


                                   (4 of 6)                        [CW-7959/2022]

(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 "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; ugh a 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 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 vke af=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 (TSP 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 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

(5 of 6) [CW-7959/2022]

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 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,

(6 of 6) [CW-7959/2022]

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, 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."

Counsel for the respondents has not disputed the judgment

passed by the Coordinate Bench of this court at Principal Seat,

Jodhpur in the matter of Kailash Kumar (supra).

In that view of the matter, I dispose of this writ petition in

view of the judgment passed by the Coordinate Bench of this court

at Principal Seat, Jodhpur in the matter of Kailash Kumar

(supra).

The respondents are further directed to consider the case of

the petitioner for appointment on the post of Compounder/Nurse

Junior Grade as per her merit and category against the vacant

post.

(INDERJEET SINGH),J

AARZOO ARORA /95

Powered by TCPDF (www.tcpdf.org)