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Himachal Pradesh High Court · body

2014 DIGILAW 1653 (HP)

Anuradhika v. State of H. P.

2014-11-14

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. Advertisement was issued by respondent No. 3 for filling up posts of Clerks on 15.9.2012. The petitioner belongs to =Jhiwar' caste of the OBC category. She has obtained the OBC certificate on 9.8.2010. The petitioner qualified the written test held on 22.7.2013. She was called for interview on 29.1.2014. Her candidature was rejected vide annexure P-9 dated 20.2.2014 only on the ground that she could not produce the latest OBC certificate. The fact of the matter is that the petitioner belongs to OBC category. She married in forward/advanced class. She submitted an application for issuance of OBC certificate to respondent No. 4. Respondent No. 4 returned the application. 2. The reply stands filed. The principal stand of the respondents is that the petitioner has failed to produce the OBC certificate at the time of interview and once she has married to a forward/advanced class, she could not be issued OBC certificate. The fact of the matter is that the petitioner was born in OBC family. She has suffered all the handicaps of person belonging to OBC category. She obtained OBC certificate on 9.8.2010. It expired on 8.8.2012. The brother of the petitioner has also been issued OBC certificate. The legal question involved in this petition is whether a person who is having OBC status by birth, can her right as OBC be taken away because of her marriage in the advanced family? 3. The question raised in this Writ petition is no more res integra in view of the definitive law laid down by this Court in CWP No. 5744 of 2010, titled as Meena Devi versus Himachal Pradesh State Subordinate Services Selection Board, decided on 9.8.2011 and CWP No. 3139 of 2009 titled as Smt. Neetu versus The State of H.P. & ors, decided on 19.6.2014. 4. The Division Bench of this Court in the case of Meena Devi vrs. Himachal Pradesh State Subordinate Services Selection Board, decided on 9.8.2011, has held as under: ?3. Having thus analyzed the basic principles,we may refer to the facts of this case. Dispute arising for consideration in this case is whether a person born in a backward class and later married to a Scheduled Caste would acquire the status of Scheduled Caste. 4. Himachal Pradesh State Subordinate Services Selection Board, decided on 9.8.2011, has held as under: ?3. Having thus analyzed the basic principles,we may refer to the facts of this case. Dispute arising for consideration in this case is whether a person born in a backward class and later married to a Scheduled Caste would acquire the status of Scheduled Caste. 4. The petitioner was born in District Hamirpur in =Tarkhan 'caste which is a community belonging to Other Backward Classes in the State of HimachalPradesh. She was married to one Sh. Rakesh Dhiman, who is a resident of village Mehan in District Bilaspur. Sh. Rakesh Dhiman belongs to =Luhar'caste, which is a Scheduled Caste in the State of Himachal Pradesh. The petitioner belongs to below the poverty line family. She graduated from Himachal Pradesh University and has also obtained diploma and degree in Bachelor of Library Sciences. She has also obtained M. Phil. Degree in Library Sciences. Applications were invited by the H.P. Subordinate Services Selection Board, Hamirpur for appointment to the post of Assistant Librarian in the State of Himachal Pradesh. She had been issued a certificate by the Executive Magistrate, Sadar, District Bilaspur, showing that she belongs to Scheduled Caste community and therefore, she applied for the post against the quota reserved for scheduled caste. That Certificate is dated 29.10.2002 which is marked as Annexure =X' in the writ petition. However, at the time of interview, she was directed to produce a contemporaneous certificate and when applied for, the Tehsildar Sadar, District Bilaspur, issued Annexure P-2, Certificate, dated 27.8.2010, which showed that the petitioner, wife of Rakesh Kumar, resident of Village Mehan, District Bilaspur, belongs to OBC in Himachal Pradesh and that she does not belong to creamy layer. Since Annexure P-2, Certificate shows only the marital status, the petitioner was asked to produce Certificate on parental basis. The Certificate on parental basis is Annexure P-1, which certifies that the petitioner daughter of Gian Chand and resident of Hamirpur District belongs to =Tarkhan' community, which is an OBC. In view of the apparent confusions, as above, the petitioner was not selected and hence the writ petition. 5. In short, on the basis of one Certificate issued by the competent authority showing that the petitioner belongs to SC community, having been married to Sh. In view of the apparent confusions, as above, the petitioner was not selected and hence the writ petition. 5. In short, on the basis of one Certificate issued by the competent authority showing that the petitioner belongs to SC community, having been married to Sh. Rakesh Kumar (Rakesh Dhiman) belonging to SC community, she applied for the post of Assistant Librarian against the quota reserved for Scheduled Caste. But the respondent-Board insisted for a Certificate on parental basis. The Certificate on parental basis would show that the petitioner belongs to OBC. The petitioner now rests her claim for a seat reserved for OBC only, she being an OBC by birth. Based on the interim order dated 15.9.2010, passed by this Court, the petitioner was provisionally interviewed. Subsequently, by the interim order dated 15.10.2010, it was directed to take further steps in the matter of appointment, subject to the result of the writ petition. 8. The petitioner is born in =Tarkhan'caste, which is OBC in Himachal Pradesh. By marriage only she was transplanted into =Luhar' community which is a Scheduled Caste. By that marriage, the petitioner does not undergo any change in her original caste. Unto death, she is a member of =Tarkhan'caste which is OBC. In the above circumstances, there will be a direction to the respondent-Board to treat the petitioner as OBC candidate for all purposes and regularize her appointment accordingly.? 5. Similarly, in the case of Smt. Neetu versus The State of H.P. & ors. CWP No. 3139 of 2009, decided on 19.6.2014, the Division Bench of this Court has held as under: ?7. The question is – whether a person, who is having a status by birth can be denied that status because of subsequent developments, i.e. because of adoption in an upper class or because of marriage in upper class? 8. We deem it proper to only discuss and return the findings on the issue – whether in the given circumstances, a person, who is having OBC status by birth and has gone through various social disadvantages and did not have the facilities for development and growth, suffered all odds, can her right as OBC be taken away from her because of her marriage? The answer is in negative. 9. The answer is in negative. 9. Admittedly, she was belonging to OBC category, was born in the family, which hails from OBC category, lived with them, undergone all disadvantages, suffered all social stigmas and other painful, ugly situations. She had obtained the OBC certificate, applied for the test, qualified, called for interview but her selection was withheld by respondent No. 3 on the ground that she had to produce latest OBC certificate, which was not required for the reason that marriage in an upper class or adoption in an upper class is not a substitute for the sufferings and other disadvantages, which she has suffered and is no ground to take away the status which a person is having by birth. Had the case being reverse, i.e. had she belonged to upper class and married in a lower class, in that eventuality, that may be a case for not giving benefit because of adoption or because of marriage for the reason that she might have enjoyed all advantageous position right from birth till marriage and had not suffered any disadvantageous position, cannot now be allowed to reap the fruits of a backward class/category due to adoption, after enjoying everything in life. 15. Applying the test to the present case, the facts are admitted that the petitioner before marriage was belonging to a reserve class, i.e. OBC, was having OBC certificate, appeared and selected in the examination, was not given her right and was asked to obtain a latest OBC certificate, which was not granted to her. The respondents have virtually committed fraud on Constitution and have made the life of the writ petitioner hell and now, she may be thinking, rather cursing, why she was born in a disadvantageous family, i.e. reserved category and why she has married in an upper class, is an eye opener for the respondents, who are implementing the Constitutional laws and the other laws applicable and who are the custodians of the rights and the duties guaranteed by the Constitution to the citizens of India as per the mandate of Fundamental Rights, the Directive Principles of State Policy and the Fundamental Duties contained in Parts III and IV of the Constitution of India. 16. 16. Learned Advocate General argued that the petitioner was not having an OBC certificate at the relevant point of time, and even if she has obtained the same during the pendency of the writ petition, that cannot be a ground to make her eligible, is devoid of any force. 17. As discussed hereinabove, the writ petitioner was having the OBC certificate at the relevant point of time but was asked to furnish latest one, which was not issued by respondent No. 4 at the relevant point of time, thus failed to discharge his duties and rather misused his official position. Thereafter, the latest OBC certificate, dated 16th January, 2014, was issued in favour of the writ petitioner. 20. It is worthwhile to record herein that the respondents have illegally taken away the rights of the writ petitioner and have drawn her to the lis and made her to suffer. The writ petitioner has sought quashment of the instructions, dated 15th March, 2003 (Annexure P-8), are not instructions but just a communication. The said letter/communication, on the face of it, has been issued in violation of the Constitutional provisions, as discussed hereinabove, is bad in the eyes of law, as per the communication, dated 2nd December,2011, (supra). 26. The question arises – from which date the appointment is to be given effect? As discussed hereinabove, the writ petitioner has participated in the examination, was declared successful, was called for interview but was refused the appointment only for the non-availability of the latest OBC certificate.? 6. The petitioner has appeared in the written test held on 22.7.2013. She was called for interview on 29.1.2014. Her candidature has been rejected vide communication dated 20.2.2014 only on the ground that she could not produce the latest OBC certificate. The fact of the matter is that the petitioner was in the possession of OBC certificate on 9.8.2010. It expired on 8.8.2012. She applied for the renewal of the certificate which was arbitrarily declined by the respondent No. 4. Respondent No. 4 ought to have renewed the OBC certificate. 7. Accordingly, the Writ Petition is allowed. Annexure P-9, dated 20.2.2014, is quashed and set aside. The petitioner would be deemed to have been appointed as Clerk from the due date pursuant to advertisement dated 15.9.2010. The petitioner would only be entitled to notional seniority. Respondent No. 4 ought to have renewed the OBC certificate. 7. Accordingly, the Writ Petition is allowed. Annexure P-9, dated 20.2.2014, is quashed and set aside. The petitioner would be deemed to have been appointed as Clerk from the due date pursuant to advertisement dated 15.9.2010. The petitioner would only be entitled to notional seniority. The codal formalities including issuance of appointment letter to the petitioner be completed within two weeks from today. 8. Pending application (s), if any, shall stand disposed of.