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2019 DIGILAW 280 (JHR)

Pankaj Kumar v. State of Jharkhand

2019-01-29

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 226 of the Constitution of India commanding upon the respondent authority to take interview of the petitioner for the post of Food Safety Officer, by treating him successful in written examination since he has secured more marks under BC-1 category than the last selected candidate. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that the petitioner being eligible to participate in the process of selection has made an application in terms of Advertisement No.01/2016, whereby applications have been invited for filling up 24 posts of Food Safety Officer, application to be filled up in between 02.02.2016 to 16.02.2016 through Online Mode. 3. The condition of advertisement stipulates that out of 24 seats, 2 seats were ear-marked for candidate belonging to BC-1 category, the petitioner being under BC-1 category has submitted his application form Online mode giving therein details of his caste and thereafter, on issuance of admit card, he has participated in the written examination but has not been allowed to participate in the interview. The petitioner came to know, on information, that he has got more marks than the last selected candidate under BC-1 category, but only on account of the fact that he has not submitted caste certificate showing himself to be member of BC-1 category. He has been treated to be a member of unreserved category and as such under the said category, he has been found to have secured lesser marks than the last selected candidate under the said category. 4. The case of the petitioner is that he has submitted his application form along with caste certificate and as such, his candidature ought to have been considered under BC-I category but it has been considered under unreserved category which is highly illegal and not proper, hence this writ petition. 5. Mr. Sanjay Piprawall, learned counsel has appeared for respondent no.4, Jharkhand Public Service Commission and submitted by referring to the advertisement (Annexure-2) the stipulation made in the said advertisement for submission of application form through online mode with a condition that the reference of reservation is to be specified on the online application for getting the benefit of reservation. 5. Mr. Sanjay Piprawall, learned counsel has appeared for respondent no.4, Jharkhand Public Service Commission and submitted by referring to the advertisement (Annexure-2) the stipulation made in the said advertisement for submission of application form through online mode with a condition that the reference of reservation is to be specified on the online application for getting the benefit of reservation. According to him, the requisite caste certificate is required to be submitted by the petitioner meaning thereby the caste certificate showing therein that the petitioner is not coming under creamy-layer and then only the benefit of reservation can be given to the members of BC-1 category, but it is evident from the caste certificate annexed as annexure-6 to the writ petition, is without reference of creamy-layer and as such the benefit of reservation of a member of BC-1 has not been provided to the petitioner rather he has been treated to be under unreserved category and under the said category he has been shown to have secured lesser marks than the last selected candidates hence he has not been called upon to participate in the interview as such there is no infirmity in the order, therefore, the writ petition may be dismissed. 7. Having heard learned counsel for the parties and upon appreciating the rival submissions the whole dispute revolves in this case is with respect to providing benefit of reservation to the petitioner since he is claiming to be a member of BC-1 category. This Court in order to adjudicate this, thinks it proper to make reference of the judgment rendered in the case of Indra Sawhney And Others Vs. Union of India And Others as reported in 1992 Supp (3) SCC 217 wherein the concept of creamy-layer has emerged for giving benefit to the members of backward-class community and the whole purpose is to provide benefit of reservation at entry level to such candidate of backward-class community who are economically backward. 8. In the instant case, an advertisement was published by the Jharkhand Public Service Commission being Advertisement No.1/2016 inviting applications from candidates to fill up 24 posts of Food Safety Officer out of which the benefit of reservation has also been decided to be extended in favour of the candidate belonging to BC-I category, apart from other categories of the candidates. 9. 9. It is evident from the condition stipulated in the aforesaid advertisement that application was to be submitted through online mode for making appropriate entry. The condition has also been stipulated to make response regarding the claim of reservation failing which the benefit of reservation will not be given. The condition stipulated under condition-10(C) that a candidate who intends to seek benefit of reservation is required to submit caste certificate issued from the Deputy Commissioner/Sub Divisional Officer of the State of Jharkhand to be issued in Form-I and Form-II. The reference of the Memo No.10007 dated 29.08.2012 which contains Form-II needs to be referred. It is evident that Form-II clearly specify for a certificate specifying therein that he/she does not belong to the persons/sections (creamy-layer) mentioned in column-3 of the Schedule to the OM No.-36012/22/93-Estt (SCT) dated 08.09.1993 of Department of Personnel, Administrative Reforms and Official Languages vide Resolution No. 3482, dated 10.06.2002. 10. Admittedly, the petitioner has furnished his caste certificate as has been annexed by him under Annexure-6 issued under the signature of Sub Divisional Officer, Jharkhand under Form-II under the caption heading (all works/all educational works). It is evident from the aforesaid caste certificate that the petitioner belongs to BC-I. 11. The petitioner is seeking benefit of reservation being a member of BC-I category at the time of initial recruitment and hence the judgment pronounced by Hon'ble Apex Court in the case of Indra Sawhney (supra) will be applicable so far extending the benefit of reservation to the petitioner is concerned meaning thereby as per the ratio laid down therein the benefit of reservation to a member of BC-I category is to be extended in favour of such candidate who is not coming under creamy-layer but the caste certificate is simplicitor as a caste certificate showing the petitioner a member of the BC-I category but whether he is entitled to get benefit of reservation in the initial recruitment would depend when a certificate to that effect would be issued by the competent authority taking into consideration the income but the same is not available in the caste certificate as annexed as annexure-6. The petitioner is claiming that he has got more marks than the last selected candidates under BC-I category and, therefore, he is to be called upon to participate in the interview but the question arises herein is that for getting the benefit of reservation under the OBC category, the requirement showing the income in support of the contention that the candidate is not above the creamy-layer which can be only found from the caste certificate but since it is not available in the caste certificate (annexure-6), therefore, the petitioner has been treated to be a candidate under unreserved category wherein the petitioner has been found to get lesser marks than the last selected candidate. In this regard, reference needs to be made of the Memo No.10007 dated 29.08.2012 issued to insert the concept of creamy-layer in the format which was not available in the circular 3482 dated 10.06.2002 and hence the format has been inserted, the content of the same is as follows: FORM OF CASTE CERTIFICATE TO BE PRODUCED BY EXTREMELY BACKWARD CLASSES/BACKWARD CLASSES APPLYING FOR APPOINTMENT TO THE POSTS UNDER THE GOVERNMENT OF JHARKHAND This is to certify that Shri/Smt./Kumari …................. son/daughter of …...... resident of Village/Town …........ P.S. …....... District ….......... of Jharkhand belongs to the ….............. community which is recognised as an Extremely Backward Class (Annexure-I)/Backward Class (Annexure-II) of the Jharkhand Reservation of Vacancies and Posts (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act-2001*,**. This is to also certify that he/she does not belong to the persons/sections (Creamy Layer) mentioned in Column-3 of the Schedule to the OM No.-36012/22/93-Estt (SCT) dated 08.09.1993 of Department of Personnel & Training, Government of India as adopted by the Department of Personnel, Administrative Reforms and Official Languages vide Resolution No.3482, dated 10.06.2002. Thus, it is evident that under the reservation policy of the State of Jharkhand, the caste certificate is to be obtained in the due format as contemplated in the circular dated 29.08.2012 as quoted hereinabove which contains the concept of creamy-layer, meaning thereby, if any candidate intends to take benefit of reservation for being in the category of BC, he is required to furnish caste certificate in the due format as contained in the circular dated 29.08.2012 admittedly, which is not available under Annexure-6. 12. 12. Learned counsel for the petitioner at this juncture has submitted that the part of creamy-layer has not been reflected by way of condition in the advertisement i.e. not the reason assigned rather as has been reflected under annexure-8 since in the said category the marks it has been reflected “due to non-submission of requisite caste certificate, treated as unreserved/UNR but the word “requisite has got its importance, requisites denotes the appropriate caste certificate and the appropriate caste certificate in the case of petitioner would be the caste certificate along with the certificate to the effect he is below creamy-layer for getting the benefit of reservation as per caste certificate contained in due Form-II as quoted above hence the word caste certificate is to be read out with a requisite caste certificate and, therefore, the reason which has been assigned in annexure-8 will be said to be a perfect reasoning for considering the case of petitioner as a candidate under unreserved category so far as the contention that the said condition has not been reflected in the advertisement rather only the condition contained in the said advertisement is with respect to submission of caste certificate and hence no further condition can be stipulated after the publication of the advertisement but it is settled position of law that the condition stipulated in the advertisement cannot be treated to be the recruitment rule or the same is to be read out along with the settled position of law and it cannot be disputed that the position of law for extending the benefit of reservation to the members of OBC who comes below creamy-layer and for that reason a caste certificate to that effect is required to be produced. 13. In view thereof, the contention raised by the petitioner in this regard is having no force in the entirety of facts and circumstances and for the reason stated above, this Court finds that the petitioner has failed out a case for passing positive direction in his favour therefore, the writ petition fails and is dismissed. Petition dismissed.