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2020 DIGILAW 625 (RAJ)

Kailash Ram v. State of Rajasthan

2020-09-04

RAMESHWAR VYAS, SANGEET LODHA

body2020
JUDGMENT Sangeet Lodha, J. - This intra-court appeal is directed against order dated 19.2.2020 passed by the learned Single Judge of this Court, dismissing the writ petition preferred by the appellant seeking directions to the respondents to consider his candidature for appointment to the post of Nurse Gr.II in OBC-NCL Male Category. 2. The facts relevant are that vide advertisement dated 30.5.18 issued by the Director, Medical and Health Services, Government of Rajasthan, applications were invited for recruitment to the post of Nurse Gr.II under the provisions of Rajasthan Medical and Health Service Rules, 1965. The appellant being eligible for recruitment to the said post, submitted his online application form in OBC-NCL Category. The respondent no.3 issued provisional merit list of Nurse Gr.II for Non TSP Area, on 8.1.2020, wherein the name of the appellant was not included. The cut-off marks for OBC-NCL Male Category were 72.321, whereas the appellant had secured 73.329. The appellant raised grievance against non inclusion of his name in the merit list through online portal. The respondents issued final merit list on 24.1.2020, wherein also the appellant's name was not included. In these circumstances, the appellant assailed the action of the respondents in not including his name in the merit list, by way of a writ petition before this Court, which stands dismissed by the learned Single Judge by the order impugned. 3. As a matter of fact, the candidature of the appellant was not considered in the category of OBC-NCL inasmuch as the certificate dated 13.6.13 produced by the appellant in this regard was not valid. 4. Precisely, the case of the appellant before the learned Single Judge was that the action of the respondents in not considering OBC-NCL Certificate produced by the appellant is hyper technical and illegal inasmuch as the appellant had produced the certificate dated 13.6.13 and it was only an empty formality to provide recent certificate, which could have been observed by the appellant, if an opportunity was given. It was brought to the notice of the learned Single Judge that the appellant had already obtained certificate dated 27.1.2020, certifying that the appellant belongs to OBC-NCL Category and therefore, his candidature deserves to be considered for appointment to the post in the said category. 5. It was brought to the notice of the learned Single Judge that the appellant had already obtained certificate dated 27.1.2020, certifying that the appellant belongs to OBC-NCL Category and therefore, his candidature deserves to be considered for appointment to the post in the said category. 5. Learned Single Judge has dismissed the writ petition relying upon a coordinate Bench decision dated 12.2.2020 rendered in SB Civil Writ Petition No.2134/2020 : Nikita Nagriya Vs. State of Rajasthan & Ors., wherein the Court held that as per the condition of the advertisement, the candidate aspiring for appointment to the post in the OBC-NCL Category was required to furnish a recent certificate issued not before one year of the last date of submission of the application form and thus, the certificate issued prior to the period specified under the advertisement could not have been taken into consideration. The Court observed that the reservation to the OBC candidate is based upon their financial/social status, which may change with the passage of time. 6. Learned counsel appearing for the appellant contended that the learned Single Judge has erred in dismissing the writ petition on the ground that the reservation of OBC candidate is based upon their financial and social status, which may change with the passage of time. Learned counsel submitted that in the online application form, the appellant has disclosed his category as OBCNCL and therefore, when the appellant was called for verification of the documents, his category was shown as OBC-NCL. It is submitted that when the appellant came to know that his candidature is not being considered in OBC-NCL category, he immediately obtained a fresh certificate dated 27.1.2020 issued by the competent authority, which is also not taken into consideration by the respondents. Learned counsel submitted that object of providing reservation to the educationally and socially backward classes of the society is to remove inequality in the public employment and thus, the action of the respondent in not accepting the certificate produced by the appellant showing that he belongs to OBC-NCL Category is absolutely illegal, arbitrary, unjust and unreasonable. In support of the contention, learned counsel has relied upon the decisions of the Supreme Court in Dolly Chhanda Vs. Chairman, JEE and Ors., (2004) AIR SC 5043 and Ram Kumar Gijroya Vs. In support of the contention, learned counsel has relied upon the decisions of the Supreme Court in Dolly Chhanda Vs. Chairman, JEE and Ors., (2004) AIR SC 5043 and Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another, (2016) 4 SCC 754 and decision of the Delhi High Court in Amrit Singh Vs. Union of India & Anr. [W.P. (C) 5492/2019 & C.M. APPL. 24099/2019] decided on 23.8.19. Learned counsel submitted that relaxing the condition in the advertisement, the respondents have even taken into consideration the certificate issued before three years from the last date of submission of the application form and thus, there is no reason as to why the certificate produced by the appellant cannot be considered, moreso when he has already obtained a fresh certificate issued by the competent authority. 7. On the other hand, counsel appearing for the respondents submitted that in the present appeal, learned counsel for the appellant has attempted to raise the contentions in respect whereof there was no foundation of facts in the writ petition filed, which should not be permitted by this Court. Learned counsel submitted that it was specifically mentioned in the advertisement that the candidates applying for OBC-NCL Category must produce the certificate issued by the competent authority one year prior to the last date of the submission of the application form, however, the certificate issued may be considered valid for period of three years on the candidate submitting an affidavit in the prescribed form "A" attached to the instructions issued by the State Government vide circular dated 9.9.15 and thus, the contention of the appellant that all three years old certificates issued by the competent authority were taken into consideration by relaxing the condition incorporated in the advertisement is absolutely incorrect. Drawing the attention of the Court to the condition of the advertisement, learned counsel submitted that the position regarding the consideration of the certificate for a period of three years from the date of the issuance was also specifically mentioned in the advertisement issued. Learned counsel would submit that the condition in the advertisement has to be strictly adhered to and cannot be relaxed for any individual candidate. Learned counsel would submit that the condition in the advertisement has to be strictly adhered to and cannot be relaxed for any individual candidate. Learned counsel submitted that the certificate obtained by the appellant after publication of final merit list cannot be taken into consideration and thus, the learned Single Judge has committed no error in dismissing the writ petition so as to warrant interference by this Court in exercise of the intra court appeal jurisdiction. Learned counsel submitted that after publication of the merit list, the selected candidates have already been accorded appointment, who were not party to the writ proceeding and therefore, even otherwise, no relief could have been granted to the appellant. 8. We have considered the submissions of the learned counsel for the parties and perused the material on record. 9. It is true that it was not the case set out by the appellant in the writ petition that his candidature has been wrongly rejected on account of the certificate of OBC-NCL produced by him was issued by the competent authority prior to one year from the last date of submission of the application form rather, the case set out by the appellant was that he had secured higher marks than the cut off marks in OBC-NCL Category and thus, the action of the respondents in not including his name in the merit list is illegal. But then, a bare perusal of the order impugned reveals that the issue raised by the appellant in this regard has been considered and decided by the learned Single Judge. In this view of the matter, we are not inclined to entertain the objection raised on behalf of the respondents at this stage. 10. Precisely, the contention of the appellant is that the conditions with regard to production of the certificate of OBC-NCL issued by the competent authority within one year prior to the last date for submission of the application form is not sacrosanct which cannot be relaxed in any circumstances moreso when, the respondents while relaxing the condition, have considered the certificate produced by the candidates three years prior to the last date of submission of the application form. 11. In Dolly Chhanda's case (supra) relied upon relate to admission to M.B.B.S. Course in reserved category, wherein the Supreme Court observed : "7. 11. In Dolly Chhanda's case (supra) relied upon relate to admission to M.B.B.S. Course in reserved category, wherein the Supreme Court observed : "7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submissions of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature." The appellant therein, was directed to be considered for admission to M.B.B.S. course in reserved category by the Supreme Court taking into consideration the fact that she had produced a correct certificate at the stage of second counselling. The observations of the Court reads as under : "The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal." 12. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal." 12. In Ram Kumar Gijroya's case (supra), the Hon'ble Supreme Court while considering the question whether a candidate who appears in an examination under OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under OBC category or not, relying upon the earlier decisions of the Supreme Court in Valsamma Paul v. Cochin University, (1996) 3 SCC 545 and Indra Sawhney v. Union of India, (1992) Supp3 SCC 217 , and held as under : "In our considered view, the decision rendered in Pushpa 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 Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State policy held that the object of providing reservation to the SCs/STs 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 & 39-A 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 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 Indra Sawhney and Valsamma Paul. Hence, the impugned judgment and order passed by the Division Bench in 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 Indra Sawhney and Valsamma Paul. 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 Ram Kumar Gijroya v. Govt. (NCT of Delhi) is hereby restored." 13. In Amrit Singh's case (supra), the petitioner seeking appointment on the post of Constable (Generator Operator) submitted the certificate of OBC category dated 29.12.14, whereas the certificate should have been issued after 1.10.15. On being informed, the petitioner produced the OBC category certificate issued on 3.3.19, however, his candidature was not considered on the ground that the certificate was issued after closing date i.e. 1.10.18 and the selection process was over. The High Court while considering the issue observed that : "It is pertinent to mention here that the creamy layer exclusion certificate is issued after verifying the status of the family for the last three years in view of conditions specified in O.M. No.36012/22/93-Estt. (CST) dated 08.09.1993 (Amended from time to time), hence the certificate dated 26.02.2019 verifies that the Petitioners family falls outside the creamy layer of OBC w.e.f. 26.02.2016. Hence there is no iota of doubt that as on last date of applying for the post in question, i.e. 01.10.2018, Petitioner was an OBC and was not covered in the creamy layer." 14. Indisputably, in the advertisement issued in pursuance whereof the appellant applied for appointment to the post of Nurse Gr.II, it was specifically mentioned that the candidates applying in the category of Other Backward Class/More Backward Class must produce the certificate issued by the competent authority of the State of Rajasthan in the prescribed form, within one year from the last date of submission of the application form and thus, the certificate dated 13.6.13 produced by the appellant for recruitment process initiated vide advertisement dated 30.5.18 was not valid. Merely because, the appellant had applied in OBCNCL Category, his candidature could not have been considered in the said category in absence of the required certificate. Merely because, the appellant had applied in OBCNCL Category, his candidature could not have been considered in the said category in absence of the required certificate. It is true that the respondents have considered three years old certificate while preparing final merit list but then, such consideration has been made only in cases where the candidates have fulfilled the condition in this regard incorporated in the relevant instructions. It is not the case of the appellant that he had filed an affidavit as prescribed for consideration of the certificate produced. Moreover, even otherwise, the certificate produced by the appellant could not have been considered because it was old beyond three years. Keeping in view the unequivocal condition incorporated in the advertisement, the appellant was knowing fully well that the certificate produced by him for consideration of his candidature in OBC-NCL Category is not valid but he did not make any attempt to obtain the requisite certificate till the publication of the final merit list by the respondents. In the considered opinion of this Court, where the status of a candidate belonging to OBC-NCL Category is decided on the basis of financial/social status, the condition incorporated regarding the certificate to be produced in support thereof being not beyond the period of one year from the last date of submission of the application form, cannot be said to be arbitrary. Obviously, many candidates not having the valid certificate might not have even applied for the recruitment to the post and thus, merely because, the appellant has approached this Court, no relaxation can be extended to him. 15. We are firmly of the view that on the facts and circumstances of the case discussed above, the decisions cited by the learned counsel for the appellant in support of the contentions, do not help the appellant in any manner. A fortiori, at this stage, when after finalisation of the merit list, the appointments have already been accorded to the selected candidates, the appellant cannot be granted any indulgence by this Court so as to adversely affect their vested right. 16. In this view of the matter, we are not inclined to interfere with the order impugned passed by the learned Single Judge in exercise of intra court appeal jurisdiction. 17. The appeal is therefore, dismissed. No order as to costs.