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2007 DIGILAW 2121 (RAJ)

Jyoti Chauhan v. R. P. S. C.

2007-11-01

PREM SHANKER ASOPA

body2007
JUDGMENT 1. - By this writ petition the petitioner is seeking an appropriate writ, order or direction to the Rajasthan Public Service Commission (in short 'the Commission') to declare result of the petitioner as OBC candidate (general/woman) and further direct the Commission to recommend her name to the Government if name of person lower in merit in OBC category (general/woman) has been recommended to the Government. 2. Briefly stated facts of the case are that the petitioner is an OBC candidate and in pursuance to the advertisement issued by the Commission on 18-8-2004 for the post of School Lecturer in various subjects including Hindi, the petitioner submitted an application for the post of School Lecturer in Hindi. In all, 309 posts were advertised for the post of Lecturers out of which 45 posts were reserved for OBC (general) and 19 posts were reserved for OBC (women). 3. As regards the petitioner's qualification and her category of OBC are concerned, there is no dispute but the dispute is whether production of non-creamy layer certificate of OBC based on the income of her husband issued by the Competent Authority and further failure on the part of the petitioner to produce non creamy layer OBC certificate of her parents up to 8-11-2006 i.e. the date of interview will render her ineligible for consideration of her candidature in OBC (women) category. Another dispute is whether her candidature was rightly considered as general candidate after taking application from her for the same which has resulted in denial of appointment in OBC category. 4. It is stated in the writ petition that the petitioner was denied consideration in OBC category for the reason that the creamy layer part of the certificate is not based on parents' income and the petitioner was left with no alternative except to submit application for her consideration as general candidate under the threat that in case she does not write the application then she will lose the chance of her consideration as general candidate also. Thereafter, the petitioner submitted another certificate on 10-11-2006 of the income of parents whereas the result was declared on 8-12-2006 but still the petitioner has not been considered as OBC candidate. 5. Thereafter, the petitioner submitted another certificate on 10-11-2006 of the income of parents whereas the result was declared on 8-12-2006 but still the petitioner has not been considered as OBC candidate. 5. In reply, RPSC has placed reliance on the notification dated 28-9-1993 whereto the Schedule for reservation to backward classes has been appended and in Column 3 categories to which rule of exclusion will apply, have been enumerated and further a mention of which is to be made by the Tehsildar/SDM or other competent authority concerned in para 2 of the OBC certificate. 6. Submission of counsel for the petitioner is that the petitioner being a married woman, bonafide believed that the competent authority has rightly issued the certificate based on her husband's income. The said notice dated 12-10-2006 might have been issued inadvertently. Counsel further submits that not providing an opportunity to the petitioner to be interviewed as OBC (woman) in the aforesaid facts and circumstances of the case and further insisting her to file an application for consideration of her candidature as general candidate is highly unreasonable and arbitrary and the action of the RPSC is further liable to be set aside being contrary to the principle of obtaining consent under duress or pressure or in terrorem is not consent. Counsel for the petitioner also submits that the notification does not make out any distinction between the unmarried or married woman which is usually made in other law after the marriage of the woman considering the fact that her ties with the parental home are disconnected even for employment purposes. 7. Both the certificates have been issued by the Tehsildar-on the basis of income of the husband and another-on the basis of income of the parents, therefore, submission of the petitioner is that it was the duty of the Tehsildar before issuing certificate to comply with the notification dated 28-9-1993 and the petitioner cannot be made to suffer on account of the issue of defective certificate by the Tehsildar. 8. Submission of the counsel for the RPSC is that the RPSC has rightly issued notice on 12-10-2006 according to clause (c) of the Notification dated 28-9-1993, which the petitioner has to produce certificate of OBC of later date than 15-4-1996 based on her parents' income that they are not in creamy layer and on production of the same, she would be given benefit otherwise not. But despite that, the petitioner failed to produce the non creamy layer certificate on the basis of income of her parents at the time of interview. Therefore, she was rightly given chance of general candidate. 9. In support of the aforesaid issue, counsel for the petitioner relied on the decision of Supreme Court in Shri Krishan v. The Kurukshetra University ( AIR 1976 SC 376 ) , para 9. Counsel also relied on the decision of division bench of this Court in Shaitan Singh v. State of Rajasthan and another (RLR 2003 (3) 754) Paras 10, 11, 12 and 13. 10. I have gone through record of the writ petition and considered rival submissions made by counsel for the parties. 11. Before proceeding further, it will be useful to refer the Supreme Court judgment in Shri Krishan v. The Kurukshetra University ( AIR 1976 SC 376 ) (supra) wherein it has been held that any admission made in ignorance of legal rights or under duress cannot bind the maker of admission. Para 9 which is as under : Para 9 "Mr Nandy, counsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file the requisite permission or to abide by any other order that may be passed by the University authorities. This letter was obviously written because the appellant was very anxious to appear in Part II Examination and the letter was written in terrorem and in complete ignorance of his legal rights. The appellant did not know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter written by the appellant does not put him out of Court. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter written by the appellant does not put him out of Court. If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as far back as December, 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University." (Emphasis supplied) 12. In Shaitan Singh v. State of Rajasthan and another (supra) held that the difference in creamy or non-creamy layer is not known at the grass-root level and it was also observed that certificate issued by Tehsildar in a routine manner and some time clause 2 of the certificate is scored off. Paras 10, 11, and 13 of the Division Bench judgment read as under : "10. It is not the case of the respondents that the appellant belongs to creamy class of OBC. The certificates are issued by the Tehsildar in routine manner. It is difficult to believe what to say to accept that this class of candidates applied for appointment to the post of Illrd Grade Teacher would have known of all these niceties of the matter. It is the duty of the authority issuing the certificate to see that a correct certificate is issued to the candidate. In this case in most cursory, casual and mechanical manner Clause 2 of the certificate is scored off by the Tehsildar. 11. The appellant hails from the rural area and it is difficult to believe what to say to accept that he would have knowing the procedure and effect of scoring of the para No. 2 of the certificate. The learned Single Judge in our opinion is not correct to decline relief to the appellant on the ground that all selections have been made and no vacancy is available. The learned Single Judge has not found any fault or illegality in the corrected certificate issued by the Tehsildar to the appellant. The learned Single Judge in our opinion is not correct to decline relief to the appellant on the ground that all selections have been made and no vacancy is available. The learned Single Judge has not found any fault or illegality in the corrected certificate issued by the Tehsildar to the appellant. Learned Single judge denied the relief to the appellant on a non est ground. 13. We are of the considered opinion that the majority of the candidates at the grass root level would not have known of this difference in creamy or non creamy layer. They are not made known to this fine distinction. Only on this ground as argued by learned counsel for the respondents and the writ petition dismissed by learned Single Judge relief is denied to appellant, it will be travesty of the justice. Courts are not sitting here to do injustice to litigants or to deny their just and reasonable claim on the technical ground." (Emphasis supplied) 13. Before finding fault of the parties, I would like to discuss the issue of two certificates by the Tehsildar. As per notification dated 28-9-1993 non-creamy layer certificate is to be issued on the basis of income of the parents. The Tehsildar ought not to have issued the certificate which was produced before the RPSC on the basis of income of the husband and thereafter RPSC asked the petitioner to submit documents relating to the income of the parents. The said fault on the part of the Tehsildar has made to suffer the petitioner although the same was corrected by the Tehsildar before the result of interview but the RPSC is equally responsible in not considering the same. The Division Bench of this Court has also observed in identical circumstances in the aforesaid case of Shaitan Singh in para Nos. 10, 11 and 13 that the authority issuing the certificate is to see that correct certificate is issued to the candidate and in that case, the certificate was issued in most cursory, casual and mechanical manner. Clause 2 of the certificate was scored off by the Tehsildar. The said clause 2 is of creamy and non creamy layer reference of which has been made in para 13 with the further observation that the candidate at the grass root level would not have known this difference in creamy or non creamy layer. 14. Clause 2 of the certificate was scored off by the Tehsildar. The said clause 2 is of creamy and non creamy layer reference of which has been made in para 13 with the further observation that the candidate at the grass root level would not have known this difference in creamy or non creamy layer. 14. On the other issue of non production of non creamy layer certificate on the basis of parents' income by a married woman may also create confusion in the mind of married woman candidate for the reason that the married woman rightly believe that her ties with the parental home no more continues after her marriage even for the purpose of employment. In view of the fact the 1st certificate issued by the Tehsildar was defective and there was bonafide belief for a married woman candidate that her husband's income is relevant to decide non creamy layer issue, therefore, one more opportunity ought to have been given to the petitioner to submit the certificate based on her parents' income which was submitted before declaration of result. 15. The question No. 1 is answered in the manner that the Tehsildar was much more responsible in issuing incorrect OBC Certificate on the basis of income of the husband, therefore the correct certificate issued by the same authority on the basis of income of parents ought to have been accepted by the Commission. As regards, the taking of application for consideration of her candidature as general candidate just before interview on failure on part of the petitioner to produce the correct certificate is concerned, the application was given under duress, therefore, the same is liable to be ignored. 16. The contentions of Mr. Samdaria have force and the same are accepted to the extent narrated hereinabove. The stand of the RPSC of not providing one more opportunity without considering the fact that the fault is of the Tehsildar, is not correct. 17. Accordingly, the writ petition is allowed and the respondents are directed to re-declare the result of the petitioner considering her candidature as OBC general/woman with a further direction to recommend case of the petitioner for appointment to the State Government on the post of School Lecturer (Hindi) in case any person lower in merit than her in the said category is recommended for appointment.Petition allowed. *******