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2018 DIGILAW 1397 (HP)

Vishwas Kumar v. State of H. P.

2018-07-27

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The petitioner appeared in the Joint Entrance Examination (Main)-2018 as Other Backward Classes (OBC)/Non Creamy Layer (NCL) candidate and passed the same. He was called for counselling on 2.7.2018. However, his seat was cancelled because instead of OBC/NCL category, he was treated in the general category. It is in this background that the petitioner has prayed for writ of certiorari for quashing Annexure P-4 seeking further direction to admit him in B. Tech. (Electronics and Communication Engineering), for which he had been selected as OBC candidate. 2. Respondent No.2 has contested the petition by filing reply, wherein preliminary objection regarding maintainability has been raised on the ground that respondent No.2 is just a participating and reporting Institute working under Joint Seat Allocation Board (JoSAA) and Central Seal Allocation Board (CSAB). As a matter of fact, after framing the scheme/guidelines and criteria, Joint Entrance Examination2018 for eligibility of admissions in IITs, NITs and IITs etc was conducted by JEE (Main) Secretariat, Central Board of Secondary Education, H-149, Sector 63, Noida, UP 201309 and after declaration of results, all data was transferred to JoSAA and CSAB, formed by Ministry of Human Resources and Development (MHRD), Government of India. JOSAA, who had also made and approved certain Business Rules for Joint Seat allocations for various academic programmes in aforesaid Central Institutes. Whole of the scheme formed for JEE (Main)-2018, (Annexure R-1) was available online and on the basis of such scheme/guidelines/rules, every individual including the petitioner, applied for the examination. In para Nos. 3 and 4, it is made clear that benefit of reservation for admission to NITs/IITs and CFTIs shall be given only to those classes/castes/tribes which are in the respective central lists published by the Government of India. In the case of the petitioner, the list published by National Commission for Backward Classes, with respect to Bihar (Annexure R-2), the caste stated by the petitioner as ‘Godi Chhavi’ does not find mentioned but it is only there as ‘Godi Chhava’. Not only this, but it is made clear in the format of application (Annexure R-3) that the category benefit will be only if candidate falls in central list. Replying respondent being only participating and reporting Institute cannot go beyond the aforesaid Rules. Therefore, claim of the petitioner was rightly rejected. 3. Not only this, but it is made clear in the format of application (Annexure R-3) that the category benefit will be only if candidate falls in central list. Replying respondent being only participating and reporting Institute cannot go beyond the aforesaid Rules. Therefore, claim of the petitioner was rightly rejected. 3. Apart from above, another preliminary objection regarding estoppel has been raised and it is averred that the relevant guidelines/norms had been properly communicated to the petitioner and it was only thereafter he filled in the application form and could not turn around and assail the action of the replying respondent in rejecting his candidature vide Annexure P-4. Lastly, preliminary objection regarding non-joinder of necessary parties has been raised and it is contended that the CSAB, who had framed and approved the business Rules for joint seat allocation in academic programmes for replying respondent and other IITs and NITs, are necessary party. 4. On merits, it has been contended that the category mentioned in OBC certificate annexed by the petitioner with the petition does not find mentioned in the central list prepared by the Central Board for other Backward Classes. The petitioner has mentioned his caste as ‘Godi Chhavi’, but in the central list, it is not the same, however, at Sr. No.29 of the central list, it has been mentioned as ‘Godi Chhava’. 5. We have heard the learned counsel for the parties and have also gone through the material placed on record carefully. 6. In the information bulletin relating to JEE (Main)-2018, reservation of seats has been provided for under clause 3.4, which reads thus: “As per Government of India rules candidates belonging to certain categories are admitted to seats reserved for them based on relaxed criteria. These categories are: I. Other Backward Classes (OBC) if they belong to Non Creamy Layer (NLC) II. Scheduled Castes (SC) III. Scheduled Tribes (ST) IV. Persons with Disability (PwD) with 40% or more disability Benefit of reservation for admission to NITs/IITs and CFTIs shall be given only to those classes/castes/tribes which are in the respective central list published by the Govt. of India. For admission to State Engineering colleges who have opted for admission through JEE (Main)-2018, the reservation rules of that State shall apply. The letter/emails/ grievances/RTI cases/Court cases regarding reservation criteria will not be entertained by JEE (Main) Secretariat/CBSE.” 7. of India. For admission to State Engineering colleges who have opted for admission through JEE (Main)-2018, the reservation rules of that State shall apply. The letter/emails/ grievances/RTI cases/Court cases regarding reservation criteria will not be entertained by JEE (Main) Secretariat/CBSE.” 7. It would be noticed that the reservation for admission to NITs/IITs and CFTIs in favour of OBC is only available to such of the candidates who belong to Non Creamy Layer (NCL) and it is not available to the candidates, who simply belong to OBC category. 8. The form of certificate to be produced by other backward classes (NCL) applying for admission to Central Educational Institutions (CEIs) under the Government of India has been appended as Annexure-V with the Reporting Centre/Help Centre Guidelines, Infrastructure & Budget, issued by the CSAB, which reads thus: “(This certificate must have been issued on or after 1st April 2018) This is to certify that Shri/Smt./Kum__________________, Son/Daughter of Shri/Smt.___________________________of Village/Town____________ District/Division______________ in the ________________ State/Union Territory__________ belongs to the __________ community which is recognized as a backward class under Government of India, Ministry of Social Justice and Empowerment’s Resolution No._____________ dtd._______. Shri/smt./Kum.__________and/or his/her family ordinarily resides in the _______District/Division of the _______State/Union Territory. This is also to certify that he/she does not belong to the persons/sections (Creamy Layer) mentioned in column 3 of the Schedule to the Government of India, Department of Personnel & Training O.M. No. 36012/22/93-Estt.(SCT) dated 8/9/93 which is modified vide OM No. 36033/3/2004-Estt. (Res.) dated 9/3/2004, further modified vide OM No. 36033/3/2004-Estt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013-Estt(Res), dated 30/5/2014. District Magistrate/ Deputy Commissioner/ Competent Authority” 9. Evidently, certificate that was furnished by the petitioner to the respondent vide Annexure P-2, only certifies the petitioner at best belonging to OBC category, but nowhere has it been certified that the petitioner does not belong to the persons/sections (creamy layer) in column 3 of the Schedule to the Government of India, Department of Personnel & Training O.M. No. 36012/22/93-Estt.(SCT) dated 8/9/93 which was modified vide OM No. 36033/3/2004-Estt. (Res.) dated 9/3/2004, further modified vide OM No. 36033/3/2004-Estt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013-Estt(Res), dated 30/5/2014. 10. (Res.) dated 9/3/2004, further modified vide OM No. 36033/3/2004-Estt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013-Estt(Res), dated 30/5/2014. 10. The petitioner, has thereafter obtained and placed on record another OBC-NCL certificate, which reads thus: “OBC-NCL Certificate Format FORM OF CERTIFICATE TO BE PRODUCED BY OTHER BACKWARD CLASSES (NCL) APPLYING FOR ADMISSION TO CENTRAL EDUCATIONAL INSTITUTIONS (CEIs), UNDER THE GOVERNMENT OF INDIA This is to certify that Shri/Smt./Kum* Vishwas Kumar, Son/Daughter* of Shri/Smt.* Sudhir Kumar of Village/Town* Sadhua, District/Division* Bhagalpur, in the State/Union Territory Bihar, belongs to the Godi (Chhhaya) community that is recognized as a backward class under Government of India**, Ministry of Social Justice and Empowerment’s Resolution No. 12011/68/93-BCC(c), dtd. 10/9/1993*** Shri/Smt./Kum. Vishwas Kumar, s/o Sudhir Kumar and/or his/her family ordinarily resides in the Bhagalpur District/Division of the Bihar State/Union Territory. This is also to certify that he/she does NOT belong to the persons/sections (Creamy Layer) mentioned in Column 3 of the Schedule to the Government of India, Department of Personnel & Training O.M. No. 36012/22/93-Estt. (SCT) dated 08/09/93 which is modified vide OM No. 36033/3/2004-Estt.(Res.) dated 09/03/2004, further modified vide OM No. 36033/3/2004-Estt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013-Estt (Res) dtd. 30/05/2014. Sd/- Zonal Officer Rangra Chowk Dated 9/7/2018” 11. Even though, this certificate does not form part of the record and was never submitted to respondent No.2, however taking into consideration the persuasive submission made by the learned counsel for the petitioner to the effect that the petitioner is a meritorious students, we proceed to consider the certificate. 12. Evidently, this certificate has been issued in favour of the petitioner based on the parental income in the financial year 2013-2014 viz. 1st April 2013 to 31st March 2014 and does not even remotely indicate or mention about the income covering three preceding financial years i.e. 2015-16, 2016-17 and 2017-18, as provided in the office memorandum No. F.No. 36036/2/2013-Estt.(Res), issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, which reads thus :- “F. No. 36036/2/2013-Estt.(Respondent-I) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training Establishment Reservation — I Section North Block, New Delhi Dated 31st March 2016 OFFICE MEMORANDUM Subject: Validity period of OBC Certificate in respect of 'creamy layer' status of the candidates. This Department has received various references on the issue of problems being faced by the candidates on the requirement to obtain multiple non-creamy layer OBC certificates for appearing in various examinations. With a view to address this issue, the following revised procedure is proposed: (a) Every candidate seeking reservation in central government posts and services as OBC candidate is required to submit a certificate confirming his/her status as OBC and also produce Non-creamy layer status issued by an authority mentioned in DOPT Office Memorandum No.36012/22/93-Est(SCT) dated 15.11.1993. (b) The Non-creamy Layer Certificate would be applicable to OBC candidates who are covered under Income/Wealth Test criterion. The income limit is decided on the basis of income earned during three previous financial years preceding the year of appointment. To illustrate, the validity of non-creamy layer certificate issued during any month of the financial year 2016-17 covering 3 preceding financial years viz. 2013-14, 2014-15 and 2015-16 be accepted by the concerned authorities for any appointments or recruitments which would be valid during the period April 2016 to March 2017. The appointing authorities would accept production of self-attested photo copy of the Non-creamy layer certificate, subject to verification of the original Non-creamy layer certificate, as is the practice being followed for verification of other original documents. 2. On this issue, the National Commission of Backward Classes has suggested a new format for issue of Non-creamy layer certificate, which is enclosed. 3. It is requested that comments on the suggestions made in para 1 of this OM and any other suggestions to streamline the system of issue of Non creamy layer certificate (NCL) may please be furnished. 4. It is also requested that comments on the Non-creamy layer certificate format proposed by NCBC, may also be furnished. Encl: as above Sd/- (Raju Saraswat) Under Secretary” 13. Therefore, in the given circumstances, respondent No.2 had no option, but to reject the candidature of the petitioner against the reserved seat of OBC-NCL. 14. Having said so, we find no merit in this petition and the same is accordingly dismissed leaving the parties to bear their own costs. Pending applications, if any, also stands disposed of.