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2013 DIGILAW 2344 (RAJ)

Dinesh Kumar Saini v. State of Rajasthan

2013-12-20

VEERENDR SINGH SIRADHANA

body2013
Hon'ble SIRADHANA, J.—Shorn off the unnecessary details, the essential facts for adjudication of the present controversy are that the writ petitioner in response to an advertisement issued for recruitment to the post of "Librarian", submitted his application for consideration of his candidature. However, during the scrutiny of the documents annexed with the application submitted by the petitioner, it was revealed that the Certificate indicating the petitioner belonging to Other Backward Class (for short 'OBC') Category was of a date prior to 15th of April, 1996 and did not contain the details with regard to "creamy layer" as per scales of pay as detailed out in the order dated 6th of December, 1997, the writ petitioner was called upon to make good the deficiency by furnishing the required Certificate with complete details of 15th of December, 1997, failing which the Certificate will not be entertained in order to cure the deficiency. It is further the case of the petitioner that the communication dated 6th of December, 1997 was served upon him on 13th of December, 1997. Moreover, 13th and 14th of December, 1997 being gazetted holidays; it was not practically possible for him to submit the required Certificate on or before 15th of December, 1997 and also submitted an affidavit to this effect. However, the Certificate as required in the form specified in the proforma was submitted on 22nd of December, 1997, issued by the Tehsildar on 19th of December, 1997. On 22nd December, 1997, a list of selected candidates was published concluding the recruitment process. Thus, the writ petitioner was deprived of consideration of his candidature for appointment to the post of Librarian while according appointment to the candidates lower in the merit. The representation submitted by the petitioner evoked no response and therefore, approached this Court. 2. The state-respondents in response to the notice of the writ application have filed their counter-affidavit repelling the claim of the writ petitioner pleading that the petitioner did not submit the required Certificate declaring him to be in the category of 'OBC' and specifically indicating that he was not included in the category of 'creamy layer' as required while inviting application from eligible candidates vide advertisement. Moreover, the petitioner did not respond to the registered letter dated 5th of December, 1995 whereby the Deputy Director, Secondary Education called upon the petitioner to submit the required Certificate in the office positively by 15th of December, 1997; failing which the Certificate would not be taken into consideration to adjudge his candidature. 3. The learned counsel for the petitioner reiterating the pleaded facts, vehemently argued that the communication dated 5th of December, 1997 calling upon he petitioner to submit the required Certificate on or before 15th of December, 1997 was received on 13th of December, 1997, but in view of the fact that 13th and 14th of December, 1997 being gazetted holidays, it was not practically possible for the petitioner to submit the required Certificate. Be that as it may, the Certificate was obtained by the petitioner from the competent authority on 19th of December, 1997 and the same was submitted on 22nd of December, 1997. Therefore, the petitioner ought to have been considered for appointment in response to the advertisement published for direct appointment to the post of Librarian. 4. Per contra, Mr. M.F. Baig, learned Deputy Government Counsel for the State-respondents reiterated the fact that the petitioner did not submit the required Certificate issued by the competent authority with a clear and unambiguous stipulation of the fact that his father and/or mother is/are not serving in the State Government in the pay scale No.13 (Rs.1640-2900). Further, in the instant case at hand, the father of the petitioner was working in the Education Department on the post of Teacher at the relevant time and therefore, the Certificate submitted by the petitioner on 22nd of December, 1997 was of no relevance. The petitioner's father was serving as Teacher and the petitioner did not furnish the required declaration and further, it was a case of concealment, while securing the Certificate from the Tehsidlar, Udaipurwati. Therefore, the case of the petitioner was rightly not considered in the category of 'OBC', as the petitioner could not be treated to be a candidate not include in the category of 'creamy layer' and it is for this reason that the Certificate was not taken into consideration while considering the candidature of the petitioner in the category of 'OBC'. 5. Heard the learned counsel for the petitioner and the learned counsel for the state-respondents as well as Mr. 5. Heard the learned counsel for the petitioner and the learned counsel for the state-respondents as well as Mr. Ajay Tantia, the learned counsel representing the respondent No.7, and with their assistance perused the material available on record. 6. It is not in dispute that the communication dated 6th of December, 1997 was issued to the petitioner to submit the required Certificate with the specific stipulation to the effect that the petitioner's father and/or mother is/are not serving in the State Government in the pay scale No.13 (Rs.1640-2900). The state-respondents in their counter-affidavit have specifically pleaded that the father of the petitioner was serving in the State Government on the post of Teacher. The Certificate submitted by the petitioner on 22nd of December, 1997, is of no consequence and appears to have been obtained by concealing material facts as there is no material available on record to ascertain the fact that Certificate was in conformity with the circular dated 15th of April, 1996 as clarified vide communication dated 4th of July, 1997; and that was the reasons for excluding the petitioner from consideration in the category of 'OBC'. A bare perusal of the communication dated 4th of July, 1997 would reveal that the authorities issuing the Certificate irrespective of the fact that such candidate(s) were not entitled to a Certificate of 'OBC', in view of revision of the Pay scales of 1989, in Pay Scale 16 of Group-I and Pay Scales 13 to 15 of Group-II. From the memo of the writ application, it is not discernible as to what was the pay scale of the father of the petitioner at the relevant time i.e., 1997-98. 7. The learned counsel for the petitioner relying on the order dated 30th of December, 1997 argued that the instructions issued vide communication dated 4th of July, 1997 were withdrawn and therefore, the criteria applied for excluding the consideration of the candidature of the petitioner is not sustainable in the eye of law. The argument is absolutely misconceived for the reason that the recruitment process in the instant case concluded on 22nd December, 1997 in view of publication of the list of successful candidates. 8. The selection authority, in my opinion, is not precluded from examining the application of a candidate with reference to the fact that the application was complete, in order and within time or otherwise acceptable. 8. The selection authority, in my opinion, is not precluded from examining the application of a candidate with reference to the fact that the application was complete, in order and within time or otherwise acceptable. Moreover, in the instant case at hand, the deficiency detected was communicated to the petitioner calling the petitioner to make good the deficiency on or before 15th of December, 1997, which the petitioner failed to comply with. Be that as it may, the Certificate indicating the petitioner belonging to OBC category, submitted on 22nd of December, 1997, and it is not disputed that father of the petitioner, while serving as Teacher in the State Government, but the pay scale is neither discernible nor there is any material available on record to draw a presumption that the petitioner was not included in the category of 'creamy layer' and it is for this reason that the candidature of the petitioner was not considered in the category of 'OBC'. Thus, in my opinion, the state-respondents committed no illegality in declining the consideration of the candidature of the petitioner for appointment to the post of Librarian. 9. For the reasons and discussions aforesaid, the writ application lacks merit and deserves to be dismissed. Ordered accordingly. 10. In the result, the writ application is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.