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2009 DIGILAW 449 (RAJ)

R. P. S. C. , Ajmer v. Rakesh Ramawat

2009-02-11

A.M.KAPADIA, SANGEET LODHA

body2009
Judgment Hon'ble LODHA, J.—This special appeal is directed against order dated 8.4.08 passed by the learned Single Judge, whereby the writ petition preferred by the respondent No. 1 assailing the validity of order dated 13.8.07 issued by the appellant Rajasthan Public Service Commission (in short "RPSC" hereinafter) cancelling his candidature for Rajasthan Judicial Service Competitive Examination, 2005 (in short, "RJS Examination, 2005") has been allowed and while holding the order impugned illegal , the respondent No. 1 has been declared selected in the examination and accordingly, the appellant has been directed to proceed with alt consequential actions including to appoint the respondent No.1 in RJS, if he is otherwise found eligible. 2. The relevant facts in nutshell are that the respondent No. 1 appeared in RJS Examination, 2005 and was declared successful in the written examination. Accordingly, vide communication dated 15.5.07 the respondent No.1 was informed by the RPSC that he has been declared successful for interview, therefore, he may fill up the form enclosed and return the same to the RPSC's office . The respondent No. 1 submitted the application form alongwith a certificate dated 30.12.94 showing that he belongs to OBC category. Vide communication dated 22.5.07 the respondent No.1 was informed by the RPSC that he may appear for viva voce test on 20.6.07 provisionally, subject to eligibility as per Advertisement/Rules. After the viva voce test, vide communication dated 20.6.07 the respondent No.1 was informed that he is required to submit the OBC certificate obtained after 15.4.96 in order to ascertain as to whether he actually belongs to OBC category. The respondent No.1 obtained the requisite OBC certificate from the Tehsildar, Pali on 25.6.07 and submitted the same to the RPSC. The RPSC noticed a discrepancy in the two OBC certificates i.e. certificates dated 30.12.94 and 25.6.07 submitted by the respondent No.1 to the effect that in the certificate dated 30.12.94 the respondent No.1 was shown to be belonging to OBC (Non Creamy Layer) whereas , in the certificate dated 25.6.07, it was specifically mentioned that he belongs to OBC (Creamy Layer ) category. In view of the discrepancy noticed as above, the RPSC issued a notice dated 16.7.07 seeking explanation of the respondent No.1 regarding his father's job and various postings. 3. In view of the discrepancy noticed as above, the RPSC issued a notice dated 16.7.07 seeking explanation of the respondent No.1 regarding his father's job and various postings. 3. The selection of the respondent No.1 was cancelled by the RPSC vide order dated 13.8.07 on the ground that the respondent No.1 had obtained the OBC certificate in the year 1994 by concealing the correct facts and thus attempted to avail the benefits available to OBC category candidates by producing a false certificate . That apart, the candidature of the respondent No.1 was also rejected on the ground that he submitted the application claiming himself to be a candidate belonging to OBC non-creamy layer and depositing the concessional fee Rs.100/-and thus, failed to deposit the requisite fees at the time of submission of the application form before the last date fixed. In these circumstances, the validity and correctness of the aforesaid order was assailed by the respondent No.1 by way of writ petition before this Court. 4. It is relevant to mention here that the respondent No.1 while submitting the form claiming himself to be a person belonging to OBC (Non Creamy Layer) category had deposited the fee a sum of Rs.100/- as against Rs.300/- the fee applicable to the candidates belonging to General Category. However, vide communication dated 10.8.07, the respondent No.1 deposited the deficit fee by way of postal order of Rs.200/-. 5. It was contended on behalf of the respondent No.1 before the learned Single Judge that in the first instance he had submitted the OBC certificate available with him on 20.6.07 and immediately thereafter, on being asked by the RPSC vide communication dated 20.6.07, the requisite certificate obtained from the competent authority was submitted to the RPSC therefore, in no manner it can be inferred that he ever misrepresented or made any effort to mislead the RPSC. 6. On the other hand, the stand of the RPSC before the learned Single Judge was that the father of the respondent No.1 was a member of RJS and therefore, he was not entitled to avail the benefit of the OBC (Non Creamy Layer) category and the certificate produced was obtained by concealing the relevant facts. It was urged that the respondent No.1 is guilty of submitting his application form in the OBC (Non Creamy Layer) category on the basis of the certificate which is not valid in law. It was urged that the respondent No.1 is guilty of submitting his application form in the OBC (Non Creamy Layer) category on the basis of the certificate which is not valid in law. It was submitted that according to the certificate issued in terms of circular dated 15.4.96, the respondent No.1 falls within the category of OBC (Creamy Layer) and therefore, he could not have claimed benefits of reservation in OBC category. 7. After due consideration of the rival submissions, the learned Single Judge found that at the time when the certificate of 1994 was obtained, the respondent No.1 was only 14 years of age therefore, no wrong can be attributed to him in obtaining the certificate. The learned Single Judge further observed that on asking by the RPSC vide communication dated 20.6.07 the respondent No.1 obtained a certificate on 25.6.07 and remitted the same to the RPSC immediately thereafter. The learned Single Judge opined that in the certificate dated 25.6.07 produced by the respondent No.1, it is specifically mentioned that he is a member of OBC (Creamy Layer) therefore, had it been the intention of the respondent No.1 to conceal this fact, then he would not have produced the certificate immediately and may not have requested for treating him in General Category. In this view of the matter, the learned Single Judge arrived at the finding that it was only a bona fide mistake on the part of the respondent No.1 and he had no intention to avail the benefit of reservation fraudulently. Accordingly, the writ petition preferred by the respondent No.1 has been allowed by the learned Single Judge with the directions as referred supra. Hence this appeal at the instance of appellant RPSC. 8. It is contended by the learned counsel for the RPSC that the finding arrived at by the learned Single Judge that the mistake committed by the respondent No.1 is bona fide and he had no intention to conceal material facts or to mislead the commission to belief that he is a candidate belonging to OBC category is ex facie contrary to the material on record. It is submitted by the learned counsel that the respondent No.1 had submitted his application with a certificate claiming himself to be a candidate belonging to OBC category whereas, he was fully aware of the fact that he is a candidate belonging to OBC (Creamy Layer) since his father was in Higher Judicial Service. That apart, it is submitted that the respondent No.1 also availed the benefit of concessional fee which is available to the candidate belonging to the OBC category . It is submitted by the learned counsel that the respondent No.1 was fully aware that the certificate which is being produced with the application is not correct certificate as in the said certificate it is not mentioned that he belongs to OBC (Creamy Layer) therefore, it cannot be said that mistake on the part of the respondent No.1 was bona fide. The learned counsel urged that the respondent No.1 producing the certificate showing him belonging to QBC(Creamy Layer) at the later stage, on asking by the RPSC, cannot absolve him from the allegation that he attempted to take undue advantage by misleading the RPSC. The learned counsel submitted that a candidate suppressing information from the RPSC is not entitled to claim any relief ¦nd his candidature has rightly been cancelled on account of suppression of material facts. In this regard, the (earned counsel has relied upon the decision of the Hon'ble Supreme Court' in the matter of "APPSC vs. K. Venkatashwarulu" (2005) 7 SCC 177 . 9. Per contra, the respondent No. 1 present in person while reiterating the submissions made before the learned Single Judge further submitted that the certificate of 1994 issued in his favour was not obtained by concealing any material facts inasmuch as, at the relevant time, the same was issued in conformity with the notification issued by the State Government dated 28.9.93. The respondent submitted that it was nowhere mentioned in the advertisement that so as to avail the benefit of OBC category (Non Creamy Layer), certificate obtained after 15.4.96 is required to be produced. In this view of the matter, acting bona fide, he had produced the certificate readily available with him, however, immediately thereafter on being informed by the RPSC he obtained a fresh certificate and submitted the same to the RPSC . In this view of the matter, acting bona fide, he had produced the certificate readily available with him, however, immediately thereafter on being informed by the RPSC he obtained a fresh certificate and submitted the same to the RPSC . It is submitted by the respondent No. 1 that on coming to know about his actual status, he had deposited the deficit fee i.e. the fee payable by the candidate belonging to the General Category without any further delay . It is further submitted by the respondent No.1 that on the facts and in the circumstances of the case, the inference of misstatement and suppression of material facts drawn by the RPSC is not justified. It is urged that the validity of the order impugned has to be judged by the Court on the basis of the reasons set out in the order and the appellants cannot be permitted to supplement the reasons by way of the pleadings or oral arguments before this Court . In support of his contentions, the respondent has relied upon a decision of the Hon'ble Supreme Court in the matter of "Mohinder Singh Gill vs. Chief Election Commissioner" , AIR 1978 S.C. , 851. 10. We have considered the rival submissions and perused the material on record. 11. It is settled law that when a statutory functionary makes an order on certain grounds , the validity thereof must be judged on the basis of the reasons mentioned therein . The same cannot be supplemented by fresh reasons by way of pleadings, oral arguments or otherwise. 12. In Commissioner of Police, Bombay vs. Gordhandas Bhanji, AIR 1952 SC 16 which has been relied upon by the Hon'ble Supreme Court in Mohinder Singh's case (supra) , the Court observed as under:- "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be constructed objectively with reference to the language used in the order itself." 13. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be constructed objectively with reference to the language used in the order itself." 13. A perusal of the order which was impugned in the writ petition goes to show the respondent No. 1's selection in RJS Examination, 2005 has been cancelled precisely on the following grounds:- (i) The OBC certificate was obtained by the respondent No. 1 in the Year 1994 by suppressing the actual facts and furnishing incorrect facts. (ii) The respondent No.1 did not deposit the requisite fee by the last date therefore, his application form was liable to be rejected on account of deficit fee. (iii) The respondent attempted to avail the benefits of OBC (Non Creamy Layer) category by producing a false OBC certificate. 14. The conclusion that the OBC certificate of the year 1994 was obtained by the respondent by furnishing incorrect facts has been drawn by the RPSC for the reasons that at the relevant time, the father of respondent No. 1 was posted as Munsif and Judicial Magistrate therefore, he could not have been granted certificate of OBC( Non Creamy Layer) . That apart, it is alleged that the said certificate was obtained by the respondent No.1 from Tehsildar, Jaipur whereas respondent No.1 is bona fide resident of Pali district. The material on record clearly manifest that at the relevant time when the certificate was obtained by the respondent No.1 in the year 1994, his father was posted as Additional Civil Judge (J.D.) and Judicial Magistrate, Jaipur City (East). In this view of the matter, it is not understandable as to what wrong has been committed if the certificate was obtained from the Tehsildar, Jaipur City instead of the concerned Tehsildar of Pali district. It is to be noticed that at the relevant time when the certificate was obtained by the respondent No.1 , the reservation of the Back Ward classes in various post of Rajasthan Government was governed by notification dated 28th September, 93. The appellant has not been able to demonstrate before this Court as to how the certificate issued in the year 1994 is in contravention of the norms laid down vide notification dated 28th September, 1993. The appellant has not been able to demonstrate before this Court as to how the certificate issued in the year 1994 is in contravention of the norms laid down vide notification dated 28th September, 1993. It is not in dispute that the certificate has been issued by the competent authority and there is presumption that the same has been issued in conformity with the norms laid down unless proved otherwise. From the material on record, it does not appear that any inquiry worth the name was ever made by the RPSC to find out as to whether the certificate was obtained by the respondent No. 1 by suppressing the actual facts and furnishing the incorrect facts. Suffice it to say that the finding arrived at by the RPSC as aforesaid is not supported by any cogent evidence on record. That apart, we are in agreement with the finding arrived at by the learned Single Judge that when the certificate was obtained the respondent No.1 was of the age of 14 years only therefore, it will not be appropriate to attribute mala fide intention on his part even if the certificate is held to be not in accordance with the norms laid down. 15. It is true that before filling up the form claiming reservation in the category OBC (Non Creamy Layer), the respondent No. 1 was expected to ascertain as to whether presently he falls within the said category or not. But then, it is to be noticed that it was nowhere mentioned in the advertisement that so as to claim the benefit of reservation in the OBC(Non Creamy Layer) category, the candidates are required to produce the certificate issued by the competent authority after 15.4.96. In this view of the matter, the stand taken by the respondent No.1 that he had applied in the OBC( Non Creamy Layer) category on the basis of the certificate readily available with him without knowledge of the fact that in terms of notification dated 15.4.96 issued by the State Government subsequently, he does not fall within the said category cannot be ignored and disbelieved altogether. Moreover, it is not in dispute that on asking by the RPSC ,the respondent No. 1 had obtained a fresh certificate from the competent authority and produced the same immediately before the RPSC wherein it has been specifically mentioned that he belongs to OBC (Creamy Layer) category . Moreover, it is not in dispute that on asking by the RPSC ,the respondent No. 1 had obtained a fresh certificate from the competent authority and produced the same immediately before the RPSC wherein it has been specifically mentioned that he belongs to OBC (Creamy Layer) category . Further, on coming to know about the fact that he is not entitled for benefit of reservation in OBC category, the respondent No. 1 has already deposited the deficit fee with a request to consider his candidature in the General Category. In our considered opinion, from the factual position as noticed above, it will not be appropriate to draw a conclusion that the certificate of the year 1994 was produced by the respondent No. 1 alongwith the application form with an intention to avail undue advantage by misleading the RPSC to belief that he is candidate belonging to OBC category. 16. It is to be noticed that the respondent No. 1 has stood at No. 3 in the merit list of General Category. It cannot be disputed that notwithstanding the fact that he has applied in the OBC category, he is bound to be considered for appointment according to his merit in the General Category. Therefore, in the totality of the facts and circumstances of the case, without there being any cogent evidence on record leading to an irresistible conclusion that the respondent No. 1 has made an attempt to avail the benefit of reservation by misleading the RPSC on the strength of the certificate obtained by him in the year 1994, it will be unjust and unreasonable to deny a meritorious candidate the fruits of his selection in RJS Examination, 2005. 17. Coming to the question of deficit fee , it is to be noticed that the respondent No. 1 had earlier applied in the OBC category and therefore, he had deposited the fee applicable to said category. As noticed above, on coming to know about the fact that he is not entitled to avail the benefit of reservation in the OBC category, he has deposited the requisite fees without any further lapse and therefore, in our considered opinion, the rejection of his form only on the technical ground that the requisite fees has not been deposited within the stipulated period will be absolutely unjustified. 18. 18. For the aforementioned reasons, we do not find any error in the order impugned passed by the learned Single Judge warranting, interference by us in this intra Court appeal. 19. In the result, the special appeal fails, it is hereby dismissed. No order as to costs.