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2014 DIGILAW 70 (MAN)

Abujam Surbala Devi v. State of Manipur

2014-06-02

N.KOTISWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. Heard Mr. Roshni Piba, learned counsel for the petitioner, Mr. A. Vasum, learned GA for the State respondents and Mr. Serto T. Kom, learned counsel for the private respondent No. 5. 2. The present writ petition has been filed challenging the appointment of respondent No. 5 to the post of District Community Mobiliser, Bishnupur District, primarily on the grounds that she did not have the requisite qualification and experience for the post and was also over-aged. 3. The pleaded case of the petitioner is that the office of the State Health Society, Manipur, issued a notification dated 22.10.2011 inviting applications from eligible candidates for contractual engagement in various posts in the State Health Society, under the National Rural Health Mission, Manipur. By the said notification, several posts were advertised including nine posts of District Community Mobiliser/District ASHA Programme Officer for all the nine districts in Manipur. As per the notification the qualification required for the said post is MSW/MA Sociology/Master in Medical Sociology/Public Health Specialist/MBA (Rural Management) with 3 years experience of working in health sector. It was mentioned in the said notification that the age of the candidates must not be more than 35 years as on the date of interview but the age was relaxable by 5 years and 3 years for SC/ST and OBC candidates respectively. It was also provided in the said notification that the candidates should produce original certificate/mark sheets in support of qualification, domiciles, SC/ST/OBC, age proof etc at the time of interview and that the applicants who are not eligible as per Recruitment Rules shall be cancelled and application with incomplete documents will be rejected. 4. According to the petitioner, the petitioner being eligible for the said post of District Community Mobiliser applied for the same and list of eligible candidates was notified by the respondent authorities. In the list of eligible candidates the name of the petitioner is shown at Sl. No. 7 and name of respondent No. 5 at Sl. No. 13. In the said list, date of birth of respondent No. 5 is shown as 2.1.1975 and belonging to general category, 'G'. According to the petitioner, the private respondent No. 5 does not possess the qualification of MBA (Rural Management), i.e., a specialization in Rural Management which is the required qualification as per the notification and as such she is not eligible for appointment. According to the petitioner, the private respondent No. 5 does not possess the qualification of MBA (Rural Management), i.e., a specialization in Rural Management which is the required qualification as per the notification and as such she is not eligible for appointment. It was also stated that as she was merely an Accountant before her appointment, her experience as Accountant cannot be considered for the purpose of this appointment. It has been also stated that as the respondent No. 5 was born on 2.1.1975 she was more than 35 years on the date of interview on 2-5 April, 2012 and as she applied as a general candidate she is not entitled to the relaxation provided for OBC candidates. However, in spite of these, the respondent No. 5 was recommended and appointed as the District Community Mobiliser, Bishnupur District vide Memorandum dated 10.07.2012 which has been challenged by the petitioner in the present writ petition. 5. The respondent Nos. 3, 4 and 5 have filed their respective affidavits in opposition contesting the claim of the petitioner. According to respondent No. 3, (the Chairman of the District Health Society, Bishnupur District), the respondent No. 5 is eligible for the said post of District Community Mobiliser/District ASHA Programme Officer. It has been stated that respondent No. 5 has the qualification of Master of Business Administration (MBA) with rural and agricultural management as compulsory paper/subject which is inclusive of rural management. It was stated that it has been subsequently clarified by the State Mission Director, State Health Society that any MBA with rural management as compulsory subject is also eligible for the said post of District Community Mobiliser (District ASHA Programme Officer) vide their letter No. 39/LC/RCH-UH/FW-06 dated 12.06.2013. It has also been contended that the private respondent No. 5 has acquired more than three years' experience of working in the health sector as she was working as an Accountant at PHC Kumbi, Bishnupur District, Manipur on contractual basis under the State Health Society, NRHM, Manipur from 24.12.2007 till 12.07.2012 as evidenced from the certificate issued by the Deputy Director (Man Power), State Health Society, Manipur, on 25.06.2013. It has been also stated that the private respondent No. 5, at the time of notification dated 22.10.2011 was 36 years old but as she belongs to OBC category she was entitled to relaxation provided for three years. It has been also stated that the private respondent No. 5, at the time of notification dated 22.10.2011 was 36 years old but as she belongs to OBC category she was entitled to relaxation provided for three years. It has been stated that respondent No. 5 enclosed an OBC certificate issued by the Deputy Commissioner, Bishnupur District. According to respondent No. 3, as the respondent No. 5 was eligible for the said post she was recommended for appointment as District Community Mobiliser (District ASHA Programme Officer) on the basis of performance and as such there is no illegality or infirmity in the appointment of respondent No. 5. 6. The respondent No. 4, Mission Director, State Health Society, by filing affidavit in opposition stated that the office of the Mission Director, merely notified the advertisement and received the application forms and issued admit cards and selection was done by the District Health Society and list of selected candidates was forwarded to the Mission Director which was then acted upon. 7. The respondent No. 5, the selected candidate, through her affidavit in opposition, has submitted that she fulfils the required requisite qualification. She stated that she has the qualification of Master of Business Administration (MBA) with rural and agricultural management as compulsory paper/subject which is inclusive of rural management. Further, as she was working as an Accountant in the PHC, Kumbi, she has more than three years' of experience of working in the health sector. Respondent No. 5 also contended that as she belongs to OBC category, she was entitled to relaxation of her age by three years. She also contended that in the application form submitted to the authorities she ticked 'G' at the relevant column as there was no provision for OBC. In the Sl. No. 8 of the application form, it has been provided as "Caste (G/ST/SC)....." According to respondent No. 5, in the said column she had ticked the letter 'G' as she was neither SC nor ST. However, she submitted her OBC certificate and as she belongs to OBC category she was entitled to relaxation of age. 8. In the Sl. No. 8 of the application form, it has been provided as "Caste (G/ST/SC)....." According to respondent No. 5, in the said column she had ticked the letter 'G' as she was neither SC nor ST. However, she submitted her OBC certificate and as she belongs to OBC category she was entitled to relaxation of age. 8. The petitioner, however, has contended that the OBC certificate which was enclosed at the time of submitting the application form was issued on 15.3.1999 and has become stale and is not valid any more in the light of the statement made by the Hon'ble Chief Minister, Manipur on the floor of the Assembly that validity of the OBC certificate is only for three years and also as per the information furnished by the Office of the Deputy Commissioner, Bishnupur through Right to Information Act. Learned counsel for the petitioner has also submitted that as per the Office Memorandum dated 25.7.2003 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Government of India, the appointing authority had to be satisfied that respondent No. 5 did not fall in the creamy layer on the crucial date of eligibility, that is, the date of interview (2-5 April, 2012) as mentioned in the advertisement. Learned counsel for the petitioner has also submitted that since the status of creamy layer may change any time, OBC status of a candidate needed to be verified before appointment, which was not done in the present case. To this contention of the petitioner, the learned counsel for respondent No. 5 has stated that the fact remains that respondent No. 5 was and still belongs to OBC. According to her, the competent authority issued another OBC certificate dated 7.6.2013 clearly notifying that she remains as an OBC and as such no fault can be found for appointment/selection of the respondent No. 5. Learned counsel for the petitioner has however, submitted that the subsequent clarifications and certificates issued after holding of the interview in April, 2012 would be of no avail to the petitioner. 9. At the time of hearing, the learned counsel for the State has produced a copy of the proceedings of the selection committee held from 2-5 April, 2012 as well as the documents submitted by the respondent No. 5 along with the application form. 10. 9. At the time of hearing, the learned counsel for the State has produced a copy of the proceedings of the selection committee held from 2-5 April, 2012 as well as the documents submitted by the respondent No. 5 along with the application form. 10. As evident from the above, the issues raised and to be decided in the present writ petition are as follows. (i) Whether the respondent No. 5 possesses the requisite qualification and experience for the post of District Community Mobiliser as per notification dated 22.10.2011? (ii) Whether the claim of respondent No. 5 that she belongs to OBC category and as such is entitled to relaxation of age by three years is admissible? 11. As regards the requisite qualification, it has been specifically mentioned in the notification that one must possess MSW/MA Sociology/Master in Medical Sociology/Public Health Specialist/MBA (Rural Management) with 3 years experience of working in health sector for appointment to the post of District Community Mobiliser. In the present case, it is to be examined whether the respondent No. 5 who is an MBA Graduate possesses the requisite educational qualification of MBA (Rural Management) as mentioned in the notification. It is not in dispute that the respondent No. 5 had completed MBA with rural and agricultural management as one of the compulsory papers. The controversy veers around the issue whether a person having rural and agricultural management paper in the MBA can be said to have satisfied the requirement of the qualification, "MBA (Rural Management)" mentioned in the advertisement. The notification is not clear as to whether one has to have rural management as specialization in MBA or not or whether it is sufficient if one has completed the subject of Rural Management in MBA. Though the petitioner has contended that one must have specialization in rural management, the respondents have claimed that there is no such requirement of specialization and since respondent No. 5 has done MBA in rural management as one of the subjects/papers in the MBA she can be deemed to have been qualified. It may be noted that in the said notification/advertisement it has not been mentioned that one must be specialized in Rural Management in MBA. 12. It may be noted that in the said notification/advertisement it has not been mentioned that one must be specialized in Rural Management in MBA. 12. The petitioner has not been able to demonstrate before this Court that the expression "MBA (Rural Management)" can only mean those MBA graduates who had specialization in Rural Management and it will not be sufficient if one has a subject/paper in Rural Management only. In the certificate issued by the Manipur University it has been mentioned that the respondent No. 5 had obtained the Degree of Master of Business Administration in the year 1999. Nothing has been brought on record to show that only those who specialize in Rural Management in MBA would be covered by the expression "MBA (Rural Management)". In absence of such materials, this Court is of the opinion that it would not be appropriate to restrict the scope and meaning of the expression "MBA (Rural Management)" to only those MBA graduates who had specialized in Rural Management. Further, in absence of malafide, the opinion of the expert body, the Selection Committee, that respondent No. 5 is qualified, cannot be ignored. While holding so, this Court has not taken into consideration the subsequent clarification issued by the State Mission Director on 12.6.2013 that any MBA with Rural Management as a compulsory paper is also eligible for the post, as any such subsequent clarification cannot validate any irregularity if committed at the time of selection. However, in spite of such clarification, this Court is of the view that there is no irregularity with the view taken by the Selection Committee. Thus, the plea of the petitioner that only a person having specialization in rural management only, is eligible cannot be accepted. Since respondent No. 5 had rural management, as part of Rural and Agricultural Management, though as a compulsory paper, she does possess the qualification. It can be deemed that she had the knowledge and expertise of rural management and as such it cannot be stated that respondent No. 5 does not possess the requisite qualification in the absence of any specific provision under the rules or the advertisement. 13. It can be deemed that she had the knowledge and expertise of rural management and as such it cannot be stated that respondent No. 5 does not possess the requisite qualification in the absence of any specific provision under the rules or the advertisement. 13. As regards the allegation that the respondent No. 5 did not possess the requisite experience of 3 years in health sector, it is on record that she had been working as an Accountant in the PHC at Kumbi since 2007 till her appointment as the District Community Mobiliser in 2012. Since she was working at the PHC Kumbi, though in the capacity of an Accountant it can be said that she had the working experience in health sector. Though she might have worked as an Accountant in the health sector, her work and experience related to health sector and would have some knowledge and idea how a health system functions. Therefore, unless the rules specify, the scope of the rule of requirement of experience in health sector cannot be restricted only to those employees who are directly associated with health service. Though Accountant may not be directly involved with the delivery of health service, since her work experience is related to health delivery system, it cannot be held that the respondent No. 5 does not have any experience related to health sector. The words "experience in health sector" is broad enough to include the experience even of an account in a health sector. This Court has taken the view considering the fact that any one who has MSW/MA Sociology/Master in Medical Sociology/Public Health Specialist is also eligible and post does not seem to be a highly specialized one requiring only a specialist experience of a particular nature in the health sector. Therefore, as regards the first issue, the same is decided in favour of the respondent No. 5. 14. Coming to the issue of age relaxation, it is observed that the claim of the respondent No. 5 for relaxation on the basis of OBC certificate has been allowed by the official respondents. It is seen from the application form submitted by the respondent No. 5 and that the respondent No. 5 did not mention that she belongs to OBC category. It is seen from the application form submitted by the respondent No. 5 and that the respondent No. 5 did not mention that she belongs to OBC category. It has been seen that in the application form respondent No. 5 had ticked 'G' in the column No. 8 which provides for category of the candidate which has mentioned as "8. Caste: (G/ST/SC)......". Therefore, the petitioner contended that respondent No. 5 had applied as General candidate and not as an OBC for which the petitioner has also relied on the list of candidates annexed by the petitioner as Annexure-A/3 to the writ petition. However, even though the contention of the petitioner sounds plausible, the contention of the respondent No. 5 that since OBC was not specifically mentioned in the said column No. 8 of the application form and she had ticked 'G' as she neither belong to "SC" or "ST" community, cannot be brushed aside as absurd. The official respondent No. 3 in the their affidavit in opposition had stated in para-2.B.(iv) that respondent No. 5 had enclosed an OBC certificate on the basis of which her age was relaxed. The State respondents also have produced the OBC certificate submitted by the respondent No. 5 which was considered at the time of interview. Thus, considering the fact that official respondents have categorically stated in their affidavit that the respondent No. 5 had submitted OBC certificate, this Court is of the view that the said discrepancy at the time of filling up the application form and also the lack of specific mentioning of "OBC" in the application form will not be fatal, if indeed the respondent No. 5 was found to be belonging to OBC, in support of which the said OBC certificate was enclosed. However, having said that it still requires to be examined as to whether the said OBC certificate which was purportedly issued on 15.3.1999, which was about 13 years before the selection process will be a valid certificate or not. 15. In this regard, one may refer to the Office Memorandum dated 25.7.2003 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, which deals with the validity period of OBC certificate. 15. In this regard, one may refer to the Office Memorandum dated 25.7.2003 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, which deals with the validity period of OBC certificate. In the said Office Memorandum it has been highlighted that while the OBC status of a candidate may change only when the community of the concerned candidate is removed from the OBC list, his/her creamy layer status may change any time. It has been emphasized, in view of it, that it is not possible to determine a fixed validity period for the OBC certificate. Because of the said reason, the Office Memorandum stipulates that the appointing authorities before appointing a person seeking appointment on the basis of reservation of OBCs, should verify the veracity of the community certificate submitted by the candidate and also to verify that he/she does not fall in creamy layer on the crucial date. In the said Office Memorandum it has been clarified that the crucial date for this purpose may be treated as the closing date for receipt of applications for the post except in cases where crucial date is fixed otherwise. It is, therefore, evident that while dealing with the issue of validity of the OBC certificate for the purpose of appointment to public posts, two aspects needs to be considered by the authority concerned. Firstly, it needs to be ascertained whether a person claiming to be OBC belongs to the community which is listed in the OBC list, and secondly, it has to be ascertained whether he/she does belong to the creamy layer. Since the creamy layer status of the person may change any time it was provided that it would not be possible to provide any fixed validity period for the certificate. The validity of an OBC certificate would cease as and when the person comes within the category of creamy layer of the OBC. Therefore, it is inherent in any consideration for appointment on the basis of OBC certificate produced by the candidate that verification is to be undertaken by the authority concerned that the candidate not only belongs to OBC but also does not belong to the creamy layer of the community. Therefore, it is inherent in any consideration for appointment on the basis of OBC certificate produced by the candidate that verification is to be undertaken by the authority concerned that the candidate not only belongs to OBC but also does not belong to the creamy layer of the community. It would, therefore, mean that in the present case, even if respondent No. 5 was declared to be OBC as far back as 1999, it was required to be verified by the authorities at the time of making selection in April, 2012 and appointment in July, 2012 that she not only belonged to OBC community but also that she did not come under the category of creamy layer. If such exercise had not been undertaken, the appointment of the respondent No. 5 cannot be said to be valid and would be subject to challenge. 16. In the present case the official respondents have stated that the respondent No. 5 belongs to OBC category and as such, was entitled to age relaxation which is based on the certificate dated 15.9.1999 submitted by the respondent No. 5. However, there is nothing to indicate that the authorities, at the time of recommendation and appointment of the respondent No. 5, had verified that the respondent No. 5 continued to remain in the community which has been listed as OBC category and that she does not belong to the creamy layer on the crucial date, i.e., the date of interview on 2-5 April, 2012 as mentioned in the advertisement, in terms of the Office Memorandum dated 25.7.2003 issued by the Central Government. The fact that the respondent No. 5 obtained the OBC certificate certifying on 7.6.2013 that she does not belong to the creamy layer would be of no help inasmuch as the crucial date of consideration was in April, 2012 whereas, the certificate was obtained after a year after the selection process and does not indicate the status of the respondent No. 5 at the time of selection as well as appointment as District Community Mobiliser. 17. Learned counsel appearing for the petitioner had contended that the validity of the OBC certificate is only for three years, on the basis of the statement made by the Chief Minister of the State on the floor of the Manipur Legislative Assembly in March, 2011 as well as the information furnished by the Deputy Commissioner, Bishnupur. 17. Learned counsel appearing for the petitioner had contended that the validity of the OBC certificate is only for three years, on the basis of the statement made by the Chief Minister of the State on the floor of the Manipur Legislative Assembly in March, 2011 as well as the information furnished by the Deputy Commissioner, Bishnupur. However, in absence of any official notification issued by the competent authority in this regard, it would be difficult to hold that the validity of the OBC certificate would be only for three years. In fact, it is because of the very reason that the validity period of any OBC certificate cannot be fixed, the Office Memorandum dated 25.7.2003, issued by the Central Government assumes importance which mandates that whenever the benefit of the OBC certificate is sought for appointment, the appointing authority has to verify the veracity of the certificate and also whether he/she does not belong to the creamy layer. Since, there is nothing on record to show that such an exercise was undertaken by the respondent authorities before the respondent No. 5 was appointed as the District Community Mobiliser, her appointment will be invalid. However, such invalidity is not fatal and can be cured if it is established that the respondent No. 5 belongs to the OBC and also that she does not fall in the creamy layer at the relevant time of selection and appointment. If on verification, if it is found that the respondent No. 5 falls in creamy layer category at the time of selection in April, 2012 and appointment in July, 2012, her appointment is liable to be set aside, notwithstanding the certificate issued in her favour on 7.6.2013, as it does not indicate the correct status of the respondent No. 5 in 2012. Accordingly, it is directed that the respondent authorities will verify by undertaking necessary enquiry as to whether the respondent No. 5 belonged to OBC category in April, 2012 when she was selected for appointment as District Community Mobiliser in April, 2012 and also in July, 2012 when she was given appointment as District Community Mobiliser. Accordingly, it is directed that the respondent authorities will verify by undertaking necessary enquiry as to whether the respondent No. 5 belonged to OBC category in April, 2012 when she was selected for appointment as District Community Mobiliser in April, 2012 and also in July, 2012 when she was given appointment as District Community Mobiliser. Since, the petitioner has challenged the validity of the OBC certificate of the respondent No. 5 issued on 15.3.1999 as stale and invalid, the petitioner, if he so wishes, may submit such objection before the appointing authority/competent authority making the verification as regards the claim of the respondent No. 5 as belonging to OBC and also the claim of the respondent No. 5 that she does not belong to the creamy layer of the community. This exercise is to be undertaken by the appointing authority/competent authority within a period of 3 (three) months from today. If on such verification, if it is found that the respondent No. 5 does not belong to OBC as claimed by her or that she belongs to the creamy layer of the community, her appointment as District Community Mobiliser vide Memorandum No. 100/CS(E)/NRHM-09 (Pt-1) dated 10.7.2012 shall stand quashed, as she would be clearly over-aged in absence of a valid OBC certificate. Learned counsel for the petitioner had also argued that the respondent No. 5 had furnished incorrect information in the application form. It has been stated that though the respondent No. 5 had not completed PGDRD in 2007, she mentioned to that effect in the application form. However, it is observed from the records so produced by the official respondents that in the attached document, she also mentioned that result is awaited. Moreover, it is a matter not related to the essential educational qualification. As such, this Court is of the view that this discrepancy would not vitiate her candidature. The petitioner had also contended that as per the advertisement, engagement of all the posts at the District level shall be done by the District Health Societies and in the present case, as the appointment of the District Community Mobiliser was done by the State Health Society, it is bad in law. The petitioner had also contended that as per the advertisement, engagement of all the posts at the District level shall be done by the District Health Societies and in the present case, as the appointment of the District Community Mobiliser was done by the State Health Society, it is bad in law. This Court, however, is not able to accept this contention for the reason that as per the records, the selection was done at the district level though the appointment order was issued by the State Health Society, as such, this court is of the view that there is no irregularity in the same. 18. With the above observation and direction, the writ petition stands disposed of, however, without any costs.