Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 815 (JK)

Tarvinder Singh v. Union of India

2018-10-17

SANJEEV KUMAR

body2018
JUDGMENT : 1. An Advertisement Notification was issued by the respondent No.2 on 27th of July, 2016 for recruitment of Constable (GD) in the Central Armed Police Forces (CAPFs) through recruitment rallies in the State of Jammu and Kashmir. The petitioners along with others participated in one of the recruitment rallies for border district of Rajouri as OBC candidates. The petitioners are candidates belonging to Lawana Caste which is treated by the Central Government as “OBC” in the State of Jammu and Kashmir. The petitioners appeared before the Regional Selection Board at Rajouri for Physical Standard Test and Physical Endurance Test (PST/PET for short) on respective dates. They were considered in the recruitment process as OBC candidates. All of them qualified the PST/PET and were permitted to sit in the written examination. The petitioners were even shortlisted and subjected to medical and review medical examinations. All the five petitioners were found medically fit. They were even found making the grade under the category of OBC but it appears that during preparation of final merit list, testimonials of the petitioners including their OBC certificates were subjected to verification. During verification process, it was found that the petitioners belonged to “Lawana” caste which was not enlisted in the Central List of OBCs at the time of publication of Advertisement Notification. The caste “Lawana” came to be included in the Central List of OBC for the first time vide Resolution No.12011/6/2014-BC-II dated 06.12.2016, which was duly published in the Central Govt. Gazette Notification dated 07.12.2016 published by the Ministry of Social, Justice and Empowerment. It is on account of the aforesaid reason, the petitioners were not found to be eligible for consideration under the OBC category for the post of Constable (GD) notified for selection on 27.07.2016. The petitioners though had made it to the select list under OBC category but were denied the appointment for the aforesaid reason. The petitioners, feeling aggrieved, have come up before this Court by way of instant writ petition. The petitioner, are thus seeking a direction to the respondents to consider the petitioners under OBC category and appoint them as Constable (GD) with all consequential benefits. 2. The petitioners, feeling aggrieved, have come up before this Court by way of instant writ petition. The petitioner, are thus seeking a direction to the respondents to consider the petitioners under OBC category and appoint them as Constable (GD) with all consequential benefits. 2. Per contra, the stand of the respondents in the objections is that neither on the date of Advertisement Notification nor on the cut-off date, the petitioners’ caste “Lawana” had been declared by the Central Government as OBC and, therefore, the petitioners were not entitled to be considered under the said category. The respondents have, however, admitted that the petitioners in view of their merit and physical fitness have made it to the select list under OBC category but the fact remains that the petitioners were not entitled to be considered as OBC candidates and therefore, could not be offered the appointment. The respondents have invited a reference to the various terms and conditions of the Notification to substantiate their stance. 3. Having heard learned counsel for the parties and perused the record, the undisputed scenario that emerges is that the petitioners had applied under OBC category having been issued the requisite certificates by the competent authority under the Jammu and Kashmir Reservation Act, 2004 and the Rules framed thereunder. They were permitted to participate in the selection process as OBC candidates. All of them successfully cleared the PST/PET, the written examination and were also found fit by the Medical and Review Medical Boards. In short, all of them made the grade for recruitment as Constable (GD) under OBC category. In view of this admitted factual matrix, the only question that needs determination in this case is:- “Whether the petitioners were entitled to consideration as OBC candidate in the selection process in question on the basis of the OBC certificates issued in their favour by the competent authority under the State Reservation Rules, despite the fact that the caste “Lawana” to which the petitioners belonged was declared as OBC by the Central Government after the cut-off date and during the pendency of selection process.” 4. Before we look to the legal position obtaining on the issue, it would be necessary to refer to some relevant terms and conditions of the Advertisement Notification. As noted above, subject Notification was issued by the respondent No.2 on 27.07.2016. The requisite notice in this regard was published on 01.08.2016. Before we look to the legal position obtaining on the issue, it would be necessary to refer to some relevant terms and conditions of the Advertisement Notification. As noted above, subject Notification was issued by the respondent No.2 on 27.07.2016. The requisite notice in this regard was published on 01.08.2016. Though there is no specific cut-off date indicated in the Advertisement Notification yet in terms of stipulation No.5 of the Notification, the candidates were supposed to submit the application on the date they appeared before the Recruitment Board. 24.08.2016 to 02.09.2016 was the time fixed for reporting of the candidates at respective Centres along with application forms/admit cards by the candidates. Therefore, we can take 02.09.2016 as the cut-off date when the candidates appearing in the recruitment process were supposed to possess the requisite eligibility. The relevant clause of the Notification which is strongly relied upon by the respondents is clause 5(e) which deserves to be reproduced hereunder:- “5(e). Candidates who wish to be considered against vacancies reserved/or seek age relaxation must submit requisite certificate from the competent authority. Otherwise, their claim for SC/ST/OBC/ExS status will not be entertained and their candidature/applications will be considered under the General (UR) category. Candidates claiming OBC status may note that the OBC certificate should have been obtained within three years before the reporting date. The format of OBC certificate must be as per the central government format and the caste should be enlisted in the Central List of OBCs. 5. It is this stipulation in the Advertisement Notification which has been pressed into service by the respondents to justify their stand. It is submitted that, admittedly, on the date of issuance of Advertisement Notification or even the date fixed for submission of application forms, the caste “Lawana” was not enlisted in the central list of OBCs and therefore, the petitioners though may be entitled to be considered for recruitment in the State services as OBC, yet were not so entitled for employment under the Central Government. 6. In the backdrop of the aforesaid stipulation in the Advertisement Notification, the respondents state that the caste “Lawana” was included in the central list of OBC of the State of Jammu and Kashmir only on 07.12.2016 when Notification in this regard was issued in the Central Official Gazette. 6. In the backdrop of the aforesaid stipulation in the Advertisement Notification, the respondents state that the caste “Lawana” was included in the central list of OBC of the State of Jammu and Kashmir only on 07.12.2016 when Notification in this regard was issued in the Central Official Gazette. It is further urged that in the Gazette Notification itself, it is provided that inclusion/amendment in the Central List of OBC would take effect from the date of publication of the requisite resolution in the Gazette. 7. I have perused the Gazette Notification dated 06.12.2016. The operative portion of the gazette which is relevant for discussion deserves to be noticed and it reads as under :- “Now, therefore, the Central Government, in exercise of the powers conferred by clause (a) read with clause (c) of Section 2 of the said Act hereby notifies inclusions/amendments in the Central Lists of Other Backward Classes in respect of the aforesaid States, as specified in the Appendix, which shall take effect from the date of publication in this Resolution in the Gazette.” (Underline supplied by me). 8. The caste “Lawana” figures as S.No.22 for the State of Jammu and Kashmir in the aforesaid Notification. There is, thus, no dispute with regard to the fact that the caste “Lawana” was for the first time recognized as OBC by the Central Government on 07.12.2016 when Notification in this regard was published in the Gazzete of India. The inclusion of the caste “Lawana” in the Central List of OBCs was made prospectively. I have already given the date of issuance of the Advertisement Notification as also the dates of submissions of the application forms hereinabove. It is, thus, clear that the caste “Lawana” was not enlisted as OBC for the employment in the Central Government at the time when process of recruitment was set in motion by issuance of Advertisement Notification on 01.08.2016. The position was the same even on the dates fixed for submission of application forms along with requisite documents. The petitioners, thus, acquired the status of “OBC” for the purposes of employment in the Central Government services only on 07.12.2016, i.e., the date of publication of Notification in the Gazette of India. The position of law is well-settled. The position was the same even on the dates fixed for submission of application forms along with requisite documents. The petitioners, thus, acquired the status of “OBC” for the purposes of employment in the Central Government services only on 07.12.2016, i.e., the date of publication of Notification in the Gazette of India. The position of law is well-settled. The eligibility of a candidate to participate in the recruitment process is to be seen on the date of issuance of Advertisement Notification or on the last date fixed for submission of the application form (also known as cut-off date) provided the same is specifically fixed. The eligibility of the candidates for recruitment, however, is required to be seen with reference to law obtaining on the date, the process of selection is set in motion and subsequent amendment in law or recruitment rules unless specifically made retrospective would not govern such selection/recruitment. That being the settled position, this Court does not find any illegality in the decision of the respondents not to consider the petitioners under the OBC category. 9. The petitioners have relied upon several judgments of this Court as well as of the Hon’ble Apex Court to urge that OBC is a status acquired by a person by taking birth in a particular family/caste and therefore, the issuance of Notification by the competent authority declaring such caste to be OBC is only a declaration of pre-existing status. It is, thus, submitted that the petitioners who had been issued the requisite certificate of OBC by the State Government were entitled to be considered under the OBC category notwithstanding the fact that their caste “Lawana” was included in the Central List subsequently. I am deliberately not referring to all these judgments for the simple reason that the proposition of law laid down by the several precedents of this Court as well as by the Hon’ble Apex Court is not disputed. In order to be considered for the post reserved for SC/ST/OBC categories, the requirement is that the person should belong to such categories. In order to be considered for the post reserved for SC/ST/OBC categories, the requirement is that the person should belong to such categories. If a person belongs to a particular caste “Lawana” in the instant case, he acquires this status by birth in the family of “Lawana”, but at the same time, it needs to be noticed and understood that simply because someone has taken the birth in a particular caste, say “Lawana” in the instant case, he does not became OBC unless the caste “Lawana” is declared to be OBC by the competent authority. Obviously the caste “Lawana” was not enlisted as OBC by the Central Government till 06.12.2016, therefore, to say that the petitioners acquire the status of OBC by birth would be illogical. Had it been a case, where caste “Lawana” was already declared as OBC by the Central Government but the petitioners were not possessing the OBC certificate on the date of Advertisement Notification or the cut-off date as the case may be, they would have been entitled to seek consideration as OBC by production of certificate even at the later stage. This exactly is the ratio of all the judgments rendered by this Court as well as Hon’ble Supreme Court on the issue. One such judgment on the issue relied upon by the petitioners is Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another reported in AIR 2016 SC 1098 . 10. In the aforesaid case, the issue which was examined by the Hon’ble Supreme Court was as to whether the candidate who appears in the examination under OBC category and submits the certificate after the last date mentioned in the Advertisement Notification is eligible for selection for the post of OBC category or not. The Hon’ble Supreme Court approving the decision of the Delhi High Court rendered in the case of Pushpa v. Government of NCT of Delhi and others passed in WP(C) No.9112/2008 dated 11.02.2009 in paragraph No.16, thus held as under:- "16. In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul (supra) wherein this Court after interpretation of Articles 14,15,16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned single Judge in W.P. (C) No. 382 of 2009 is hereby restored.” 11. The ratio of the judgment aforesaid is clear and categoric and would apply to a case where a particular status has been declared to be a reserved category by the competent authority and the candidate claiming such status is not possessed of proof of such status at the time of submissions of application forms or on the last date fixed for submissions of application forms. Such candidate may submit certificate of his proof of belonging to a particular status subsequently but before the closure of selection process and the candidate so doing will not be deprived of the benefits of reservation. At the cost of repetition, it may be pointed out that in the instant case till 07.12.2016, the caste “Lawana” was not declared as OBC by the Central Government and the consideration was permitted only to such candidates who were enlisted as OBCs by the Central Government at the time of issuance of Advertisement Notification. There was a clear stipulation in the Advertisement Notification in this regard which has been reproduced hereinabove. It was not a case where the petitioners had acquired the status of OBC on the date of Advertisement Notification or on the date of submission of the application forms but acquired the same subsequently on 07.12.2016. Needless to reiterate that the eligibility of a candidate is to be seen in reference to the date on which the Advertisement Notification is issued or on the last date fixed for submissions of application forms. Any eligibility qualification acquired after the cut-off date or the eligibility to be considered in a particular category acquired after the cut-off date, cannot be considered. In the instant case, the eligibility to seek consideration under OBC was admittedly acquired only on 07.12.2016 when for the first time the caste “Lawana” came to be declared as OBC for the purpose of employment under the Central Government service by way of Gazette Notification. 12. For all these reasons, I find no merit in this petition, the same is, accordingly, dismissed along with connected IA(s).