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2016 DIGILAW 723 (ORI)

Union of India v. Kishore Mohan Sahu

2016-08-31

BISWAJIT MOHANTY, I.MAHANTY

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JUDGMENT BISWAJIT MOHANTY, J. - This writ application has been filed by the Union of India and its officers praying for quashing of order dated 12.5.2005 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 138 of 2003 under Annexure-1. 2.The brief facts of this case are that on 2.9.2000, Government of India in Ministry of Defence Research & Development Organisation Proof & Experimental Establishment, Chandipur, Balasore, Orissa published an employment notice in the daily newspaper “Sambad” in order to fill up certain posts, which were lying vacant vide Annexure-2. The relevant post involved in this case is Technician ‘A’ in the subject of Welder. Vide that advertisement, applications were invited to fill up two posts of Technician ‘A’ (Welder). One post was under Unreserved category and another post was under OBC category. Here, the controversy relates to the one post, which was reserved for OBC category. The said employment notice under Annexure-2 further made it clear that 22.9.2000 was the last date fixed for receipt of applications which should be complete in all respect as per specified application form. It also required that a photocopy of each of the certificates in support of date of birth, caste, qualification and experience, etc. should be submitted along with the application form. It further made clear that the application form should contain informations relating to the post applied for, name of the candidate, father’s name, address for communication, date of birth and most importantly, the category/caste to which the applicant belonged (whether SC/ST/OBC). It also indicated that the date and place of interview/test would be intimated to the short listed candidates after scrutiny. The authorities also sent a copy of requisition to the Employment Officer, District Employment Exchange, Balasore. While the name of Kishore Mohan Sahu (opposite party no. 1) was sponsored by the Employment Officer, District Employment Exchange, Balasore (Opposite party No. 3) as a candidate belonging to OBC category, Tapan Kumar Barik (opposite party no. 2) applied for the said post along with a Xerox copy of caste certificate indicating that he belonged to Socially and Educationally Backward Class (SEBC) being a member of ‘Bhandari’ community. It is also clear that Tapan Kumar Barik (opposite party no. 2) never submitted the required OBC certificate by the last date for receipt of application. 2) applied for the said post along with a Xerox copy of caste certificate indicating that he belonged to Socially and Educationally Backward Class (SEBC) being a member of ‘Bhandari’ community. It is also clear that Tapan Kumar Barik (opposite party no. 2) never submitted the required OBC certificate by the last date for receipt of application. However, vide letter dated 12.3.2001, Tapan Kumar Barik was directed to appear at the interview and he was also directed to bring all his certificates including caste certificate in original. Pursuant to such call letter, Tapan Kumar Barik was allowed to participate in the test after submitting an undertaking under Annexcure-6 that he would produce OBC Certificate within a month from his appointment to office. Accordingly, he prayed that he be allowed to appear in the interview for the post of Technician ‘A’ (Welder) under OBC category based on his SEBC certificate under Annexure-3. Accordingly, Tapan Kumar Barik was allowed to participate in the interview/test. On 11.9.2001 said Tapan Kumar Barik (opposite party no.2) was offered appointment to the post of Technician ‘A’ (Welder). On 14.9.2001, said Tapan Kumar Barik was appointed in his post and within a month from the date of the appointment, he produced the OBC caste certificate dated 1.10.2001, which is annexed as Annexure-10 to the writ application. A perusal of Annexure-10 would show the ‘Bhandari’ community has been recognized as Backward Class under the Government of India vide Notifications dated 10.9.1993, 19.10.1994, 20.05.1995 and 09.03.1996. challenging the appointment of Tapan Kumar Barik (opposite party no. 2), Kishore Mohan Sahu (opposite party no. 1) filed O.A. No. 138 of 2003 before the Central Administrative Tribunal, Cuttack Bench, Cuttack with a prayer to quash the appointment of Tapan Kumar Barik (opposite party no.2) and for a direction to appoint him (opposite party no.1) in the post of Technician ‘A’ (Welder). The learned Tribunal allowed the said Original Application on 12.05.2005 declaring the selection of Tapan Kumar Barik as Technician ‘A’ (Welder) under OCB category as null & void and that Kishore Mohan Sahu (opposite party no. 1) having scored highest marks among the OBC candidates, was entitled to offer of employment under the reserved category to the post of Technician ‘A’ (Welder). 1) having scored highest marks among the OBC candidates, was entitled to offer of employment under the reserved category to the post of Technician ‘A’ (Welder). However, at the same time, learned Tribunal observed that since Tapan Kumar Barik (opposite party no.2) has been working as Technician ‘A’ (Welder) since 14.9.2001, he might have become overaged for fresh employment under the Central Government and in the circumstances, the present petitioners may consider the case of Tapan Kumar Barik (opposite party no.2) for granting him an alternative employment against a reserved vacancy as may be available in the organization subject to his fulfilling the qualifications for the post. In coming to the above noted conclusion, the learned Tribunal has held that a candidate cannot claim the benefit of reservation before he is certified by the authorized officer to be eligible to the treated as a reserve category citizen. Tapan Kumar Barik (opposite party no. 2) got the OBC certificate much after the last date fixed for receipt of application from the eligible candidates, i.e., 22.9.2000. Thus, he was not eligible to apply for the post as OBC candidate. Besides this, learned Tribunal has also noted that Tapan Kumar Barik appeared in the interview/recruitment test claiming benefit under reservation when his caste was not enlisted as OBC for the purpose of employment in Central Government. In such background, the learned Tribunal has held that Tapan Kumar Barik (opposite party no.2) was not eligible to apply for the post as OBC candidate. Thus, the present petitioners went wrong in treating him as OBC candidate as they did not have the authority under law to determine the caste of any candidate. 3.Challenging the order of the learned Tribunal dated 12.5.2005, Tapan Kumar Barik filed W.P.(C) No. 7405 of 2005 and the present petitioners filed the present writ application before this Court. In W.P.(C) No. 7404 of 2005 vide order dated 9.6.2005, operation of the impugned order of the learned Tribunal was stayed. 4.Heard Mr. S.K. Das, learned Central Government Counsel, Mr. B.B. Mohanty, learned counsel for opposite party No. 1 and Mr. M.Sahoo, learned Additional Standing Counsel for opposite party no. 3. None appeared on behalf of opposite party no. 2. 5.Mr. S.K. Das, learned Central Government Counsel submitted that the finding of the learned Tribunal that opposite party no. 4.Heard Mr. S.K. Das, learned Central Government Counsel, Mr. B.B. Mohanty, learned counsel for opposite party No. 1 and Mr. M.Sahoo, learned Additional Standing Counsel for opposite party no. 3. None appeared on behalf of opposite party no. 2. 5.Mr. S.K. Das, learned Central Government Counsel submitted that the finding of the learned Tribunal that opposite party no. 2 appeared in the interview/recruitment test claiming the benefit under reservation when his caste was not enlisted as OBC for the purpose of employment in Central Government is totally incorrect as ‘Bhandari’ caste has been enlisted under OBC category since 1993-94. He also attacked the finding of the learned Tribunal that opposite party no. 2 has not been declared as OBC category in the Central List on the ground that such list which has been in force since 1993 also shows ‘Bhandari’ to be under the heading OBC category. Lastly, he submitted that certain concessions are allowed in the matter of initial appointment under Central Government to the candidates belonging to Scheduled castes and Scheduled Tribes vide Ministry of Home Affairs Office Memorandum No. 42/34/52-NSG dated 17.4.1953. According to him, the said concessions stipulate that where candidates claiming to belong to Scheduled Castes and Scheduled Tribes, are unable to produce a certificate from one of the prescribed authorities, they should be appointed provisionally on the basis of whatever prima facie evidence, they are able to produce in support of their claim to be belonging to Scheduled Castes or Schedule Tribes. Thereafter, such claim is verified through the District Magistrates of the places where they and/or their families are ordinarily residents in the prescribed manner. If in any particular case the verification reveals that the candidate’s claim is false, then his services should be terminated. The same concession has been reiterated subsequently in1960 and 1975 vis-à-vis Scheduled Castes and Scheduled Tribes candidates vide various Office Memoranda issued by the Ministry of Home Affairs. However, Mr. Das candidly submitted that though the case of OBC has not been included in the concessions as indicated above, however, the petitioners on the basis of analogy drawn from the above Office Memoranda extended the said concessions to opposite party no.2. In such background, Mr. Das submitted that the learned Tribunal has erred in passing the impugned order, which is liable to be quashed. 6.Per contra, Mr. Mohanty, learned counsel for opposite party no. In such background, Mr. Das submitted that the learned Tribunal has erred in passing the impugned order, which is liable to be quashed. 6.Per contra, Mr. Mohanty, learned counsel for opposite party no. 1 submitted that notwithstanding the observations made by the learned Tribunal here and there in the impugned order relating to non-enlisting of the caste of opposite party no. 2 under OBC category, the learned Tribunal has come to a clear finding that a candidate cannot claim benefit under reservation unless he is certified by the authorized officer as one belonging to reserved category. Here, it is not disputed that much after the appointment, Tapan Kumar Barik (opposite party no.2) produced the OBC certificate. Therefore, no fault can be found with the impugned order. Secondly, he submitted that since opposite party no.2 did not submit the OBC certificate by the last date along with the application form, i.e., 22.9.2000, his application ought to have been thrown out at the threshold. In this context, Mr. Mohanty relied on two decisions of this Court in the cases of Dr. Sudipta Pattanaik v. State of Orissa and others reported in 100 (2005) C.L.T. 577 and Anup Kumar Behera v. State of Orissa & others reported in 2004 (Suppl.) O.L.R. 378. Thirdly, he submitted that opposite party no. 2 should not have been allowed to participate in the interview on the basis of an undertaking under Annexure-6 given on 30.3.2001 to produce the certificate at a later date. In this context, he placed reliance upon two letters dated 3.9.2004 and 27.2.2004, which are found to be at Page Nos. 67 and 68 of the writ application. Both these letters emanate from the Government of India, Minister of Personnel, Public Grievances & Pensions, Department of Personnel & Training. From the two letters, it is crystal clear that OBC certificate of a candidate is essential for the vacancies reserved for OBC category in a Central Government Department though the caste/community of the candidate is common to the both the lists, i.e, SEBC List and OBC List. Further, it make clear that an OBC certificate should be produced to get the benefit of reservation and undertaking for producing such a certificate will not work. Lastly, Mr. Mohanty contended that the selecting authorities/appointing authorities have no power to relax the conditions of eligibility as fixed in the advertisement. Further, it make clear that an OBC certificate should be produced to get the benefit of reservation and undertaking for producing such a certificate will not work. Lastly, Mr. Mohanty contended that the selecting authorities/appointing authorities have no power to relax the conditions of eligibility as fixed in the advertisement. In such background, he submitted that learned Tribunal has done no wrong in passing the impugned order in favour of opposite party no. 1 after setting aside the appointment of opposite party no.2. 7.Considering the submissions made, we are of the view that there is no legal error apparent on the face of impugned order under Annexure-1 for our interference except the fact that the learned Tribunal at the beginning of Paragraph-5 of the impugned order has made a slightly incorrect observation relating to the caste of opposite party no. 2 as not being enlisted a OBC for the purpose of employment in Central Government. However, the learned Tribunal has correctly come to hold that a candidate cannot claim benefit of reservation unless he is certified by the authorized officer to be eligible to be treated as a reserve category person. The learned Tribunal has rightly held that by the last date fixed for receipt of application, i.e., 22.09.2000, opposite party no. 2 was not eligible to apply for the post as OBC candidate as he got that certificate only during December 2001. Thus, his selection under OBC category was/is legally vulnerable. Now coming to the submissions of Mr. S.K. Das, learned Central Government Counsel, that it was wrong on the part of the learned Tribunal to have come to a finding that the caste of opposite party no. 2 was not enlisted as OBC for the purpose of employment in Central Government and that opposite party no. 2 was not declared as a candidate under OBC category in Central list, nothing much turns on that as a reading of the entire Paragraph-5 of the impugned order indicates that what the learned Tribunal meant was that by the time opposite party no. 2 put him his application form under OBC category, he had never been declared as a candidate belonging to OBC category by appropriate authority. Accordingly, the learned Tribunal has rightly held that opposite party no. 2 was not eligible to apply for the post of Technician ‘A’ (Welder) as OBC candidate. 2 put him his application form under OBC category, he had never been declared as a candidate belonging to OBC category by appropriate authority. Accordingly, the learned Tribunal has rightly held that opposite party no. 2 was not eligible to apply for the post of Technician ‘A’ (Welder) as OBC candidate. So far as the last contention of Mr. Das relates to the concessions granted to opposite party no. 2 on the analogy of concessions granted to Scheduled Castes and Scheduled Tribes candidates under Annexure-8 series, we cannot accept the same. This is because, concessions covered under Annexure-8 series only apply to Scheduled Castes and Scheduled Tribes candidates not to anybody else. Mr. Das fairly submitted that OBC has not been included in the concession applicable for Scheduled Castes and Scheduled Tribes candidates. Therefore, the petitioners went wrong in suing the analogy of concessions applicable to Scheduled Castes and Scheduled Tribes candidates for extending the same to OBC category candidates. This amounted to relaxing the requirements of advertisement, which is not legally permissible. Further, the two letters dated 3.9.2004 & 27.2.2004 reliance on which was placed by Mr. Mohanty, learned counsel for opposite party no. 1 make it clear that OBC Certificate of a candidate is essential for posts reserved for OBC category in Central Government though the caste and community of the candidate is common to both “SEBC List” of State and “OBC List” prepared by Central Government. The letters make it clear that an OBC certificate should be produced to get the benefit of reservation and an undertaking would not work. 8.In may be noted here that ‘Bhandari’ caste was enlisted under OBC category during 1993-94. By the time of advertisement Annexure-2 came out in 2000, almost six to seven years have passed from such enlistment under OBC category. Therefore, Tapan Kumar Barik (opposite party no.2) had with him all time to get the OBC certificate from the Tahasildar, Balasore, who has issued Annexure-10 in order to submit a complete application form. Even, he got 20 days from the date of advertisement to the last date of application within which time he could have applied and got the OBC certificate. However, as per Annexure-6, he took a chance to produce the OBC certificate in case he was selected. 9.Further, the decisions relied by Mr. Even, he got 20 days from the date of advertisement to the last date of application within which time he could have applied and got the OBC certificate. However, as per Annexure-6, he took a chance to produce the OBC certificate in case he was selected. 9.Further, the decisions relied by Mr. Mohanty make it clear that if a candidate does not furnish the required certificate by the last date and puts in the application with an undertaking to submit the relevant certificate afterwards, such an application cannot be held to be complete in all respects and, therefore, is liable to be rejected. 10.For all these reasons, we find that the writ application is without any merit and the same is accordingly dismissed. No costs. Petition dismissed.