Jyoti Kumari v. State of Rajasthan through Secretary, Medical and Health Service (Group III Department) and Others
2017-11-24
PUSHPENDRA SINGH BHATI
body2017
DigiLaw.ai
ORDER : PUSHPENDRA SINGH BHATI, J. This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers:— “I. by an appropriate writ, order or direction, the respondents may kindly be directed to accept the OBC Certificate issued in name of her father and to offer appointment to the petitioner on the post of Nurse Grade II with all consequential benefits. II. that in case it is found that no vacant post exist, then the services of the private respondent No. 5 or the person place at the bottom of the select list in OBC (Woman) category may be terminated in order to accommodate the petitioner. III. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner. IV. Costs of the writ petition may kindly be awarded to the petitioner.” 2. The present controversy arises out of the advertisement dated 26.02.2013, which was issued for recruitment to the post of Nurse Grade II against 15773 vacancies. 3. The petitioner being an OBC candidate, submitted the certificate on 02.04.2012 and continued to participate in the selection process. The petitioner secured 61.71 marks and is said to have make it on merit. The rejection of the petitioner's candidature was made on the ground of the aforementioned certificate submitted by the petitioner being that of the year 2012. 4. Learned counsel for the petitioner states that the matter is squarely covered by the judgment rendered by the Hon'ble Division Bench of this Court in Raghuvir Singh v. State of Rajasthan (D.B Civil Special Appeal (Writ) No. 987/2015 decided on 09.02.2016), which reads as under:— “By advertisement dated 4.9.2013 Zila Parishad, Sri. Ganganagar initiated a process of selection to have recruitment to the post of Teacher Gr.III as per provisions of the Rajasthan Panchayati Raj Act, 1994 and Rajasthan Panchayati Raj Rules, 1996. As per Clause 8 of the advertisement referred above certain posts were kept reserved for Scheduled Caste, Scheduled Tribes, Other Backward Class (non-creamy layer), Special Backward Class (non-creamy layer), Handicapped, Former Defence Personnel, Outstanding Players, Women including widow and divorced and for the persons belonging to Scheduled Tribe Areas.
As per Clause 8 of the advertisement referred above certain posts were kept reserved for Scheduled Caste, Scheduled Tribes, Other Backward Class (non-creamy layer), Special Backward Class (non-creamy layer), Handicapped, Former Defence Personnel, Outstanding Players, Women including widow and divorced and for the persons belonging to Scheduled Tribe Areas. As per Sub-Clause of Clause (1) of the advertisement, the persons belonging to Other Backward Class were required to submit a certificate to the effect that they are not in “creamy layer”. The currency of the certificate was kept for one year. It was also made clear that if a certificate beyond a period of one year is furnished, then the candidate is required to make a statement on oath by way of submitting an affidavit that he is still a member of Other Backward Class (non-creamy layer). The petitioner considering himself eligible to be considered for appointment to the post of Teacher Gr.III submitted application to face the process of selection. Alongwith the application, he submitted a certificate certifying that he is a member of Other Backward Class (non-creamy layer). The certificate annexed was dated 29.3.2012 Being a certificate more than three years old, the same was not taken into consideration and candidature of the petitioner was cancelled under the Other Backward Class category. Being aggrieved by the same, he preferred a petition for writ that came to be dismissed by the judgment impugned dated 26.8.2015 The learned Single Bench held that the petitioner did not adhere the condition given in the advertisement, therefore, the respondents rightly rejected his candidature under the category of Other Backward Class (non-creamy layer). In appeal, the argument advanced by learned counsel for the appellant is that the condition of submitting OBC certificate was satisfied by the petitioner and if any deficiency was their, that too was satisfied by submitting a fresh certificate dated 27.2.2015 The respondents should have considered the certificate subsequently submitted and should have considered candidature of the appellant petitioner against the vacancies reserved for the members of Other Backward Class (non-creamy layer). It is also pointed out that the selection process for recruiting Teacher Gr.III was initiated in several other districts of the State of Rajasthan wherein the same condition was existing but an opportunity was given by the Recruiting Agency to remove the deficiencies, if any existing.
It is also pointed out that the selection process for recruiting Teacher Gr.III was initiated in several other districts of the State of Rajasthan wherein the same condition was existing but an opportunity was given by the Recruiting Agency to remove the deficiencies, if any existing. For instance, learned counsel has cited a press-note issued by the Zila Parishad, Udaipur; published in “Rajasthan Patrika” (State Edition) providing an opportunity to all the aspirants to satisfy the deficiency of not submitting affidavit pertaining to ‘non-creamy layer’ in Other Backward Class. Shri S.S Ladrecha, learned Additional Advocate General appearing on behalf of the respondent submits that the condition given in the advertisement was admittedly not satisfied by the appellant petitioner, therefore, his claim against the vacancies reserved for Other Backward Class (non-creamy layer) was rightly rejected and is rightly upheld by the learned Single Bench. Heard learned counsels. True it is, the appellant petitioner submitted OBC certificate dated 29.3.2012 alongwith the application submitted in pursuance to the advertisement inviting applications from eligible candidates to face the process of selection for recruitment to the post of Teacher Gr.III but subsequent thereto he submitted a fresh certificate certifying that he is a member of Other Backward Class (non-creamy layer). The respondents did not consider the subsequent certificate as that was not furnished alongwith the application form. It is pertinent to note that no opportunity to satisfy the deficiency as given by Zila Parishad, Udaipur was given by the Zila Parishad, Sri. Ganganagar conducting the process of selection to the post of Teacher Gr.III as per provisions of the Rajasthan Panchayati Raj Rules, 1996. It is not open for different Zila Parishads being governed by the same set of Rules to adopt different criteria for making selections of the posts prescribed in the Rules. We fail to understand that when Zila Parishad, Udaipur provided an opportunity to all the aspirants to satisfy the deficiency existing, then why such opportunity was not allowed by the Zila Parishad, Sri. Ganganagar. We are of the considered opinion that the deficiency in the instant matter could have been satisfied by the petitioner if an opportunity would have been given. The deficiency existing is nothing but a minor mistake that deserves condonation if rectified at subsequent stage.
Ganganagar. We are of the considered opinion that the deficiency in the instant matter could have been satisfied by the petitioner if an opportunity would have been given. The deficiency existing is nothing but a minor mistake that deserves condonation if rectified at subsequent stage. In the instant matter, the deficiency was rectified by submitting a fresh certificate and, therefore, in our considered opinion rejection of the petitioner's application form is illegal. The appeal, thus, deserves acceptance. Accordingly, the same is allowed. The judgment dated 26.8.2015 is set aside. The writ petition preferred by the petitioner is allowed. The respondents are directed to consider the appellant petitioner for the purpose of appointment to the post of Teacher Gr.III as a consequent to the process of selection initiated under the advertisement for recruitment to the post of Teacher Gr.III No order as to costs.” 5. Learned counsel for the respondents opposed the submissions made on behalf of the petitioner and stated that the condition was there in the advertisement, and therefore, it was not open for the petitioner to make the prayer. 6. On a bare perusal of the aforequoted judgment rendered by the Hon'ble Division Bench of this Court, this Court is of the opinion that the said precedent law cited by learned counsel for the petitioner squarely covers the present controversy, as far as the issue in question is concerned. The Hon'ble Division Bench in the aforementioned precedent law has allowed the disqualification, arising out of the OBC Certificate dated 29.03.2012 in that matter, to be substituted by a fresh Certificate. 7. In the present case, the petitioner has already rectified the mistake by submitting a fresh OBC Certificate dated 15.02.2016, which is Annexure-5 to the present writ petition, and therefore, in the present case, the deficiency has been rectified after submission of the aforesaid fresh OBC Certificate. 8. Thus, in light of the aforementioned precedent law, the present writ petition is accordingly allowed. The respondents are directed to consider the candidature of the petitioner for appointment to the post of Nurse Grade II arising out of the selection process in question. The respondents shall complete the aforesaid exercise of making appointment of the petitioner, if she otherwise falls in merit, within a period of two months from the date of receipt of the certified copy of this order.