Punjab And Haryana High Court · 2010

Judgment

1. 2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J.

1. The instant petition filed under Article 226 of the Constitution is directed against the judgment dated 17.3.2009 (P-12), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), dismissing the original application filed by the applicant-petitioner.

2. Brief facts of the case are that on 7.3.2007, the Director of Ayurveda, Yoga and Naturopathy, Unani Siddha and Homeopathy, Government Ayurvedic Dispensary, Sector 24, Chandigarh-respondent No. 3, issued an advertisement in the English Daily ‘The Tribune’, inter alia, inviting applications for one reserved post of Ward Servant in the scale of Rs. 2520- CWP No. 13208 of 2010 (O&M) 2 4140 plus allowances in the category of ‘OBC of U.T. Chandigarh only’ (P-1). In the column of ‘Education and other qualification’ it was mentioned that Middle pass having experience in the line would be preferred. The last date for submission of applications was 17.3.2007. It is claimed that respondent No. 3 after scrutiny of the applications which were received, prepared a list of 20 candidates for interview, which were held on 14.8.2007 (P-2). The name of the

petitioner figures at Sr. No. 6, whereas the name of Shri Ram Dass-respondent No. 4 is at Sr. No. 10 in the said list. The applicant-petitioner has alleged that respondent No. 4 had not attached Middle pass certificate with his application and even submitted his application on 22.3.2007 after the last date of submission of application i.e. 17.3.2007 (P-3). He had only furnished his school leaving certificate along with the application, which ought to have been straightaway rejected. The further allegation of the petitioner is that respondent No. 4 has also not furnished his correct date of birth supported by any proof. The date of birth mentioned in his application is 5.12.1984, whereas in the list prepared by respondent No. 3 it is stated as 5.12.1982. He did not even possess any experience in the line of Ward Servant. Despite all this, respondent No. 3 selected respondent No. 4 for the post of Ward Servant and issued letter of appointment dated 16.8.2007 (P-5).

3. Feeling aggrieved and claiming himself to be more meritorious than the selected candidate the petitioner filed an Original Application before the Tribunal with a prayer for quashing the selection of respondent No. 4 as Ward Servant in the respondent department. It has been alleged that no selection criteria was adopted by respondent No. 3 to select respondent No. 4 and that the OBC certificate furnished by respondent No. 4 has been obtained from the State of Uttar Pradesh, whereas in the advertisement it has been clearly CWP No. 13208 of 2010 (O&M) 3 stipulated that the post of Ward Servant was reserved for OBC of U.T. Chandigarh only.

4. The Tribunal has rejected the contention raised by the applicant- petitioner that respondent No. 4 did not answer the qualification of Middle pass. The other contention also failed to find favour with the Tribunal that respondent No. 4 cannot be extended the benefit of reservation of OBC category because he does not belong to ‘OBC of Union Territory, Chandigarh’. The Tribunal also accepted his date of birth as 5.12.1984 and considered him eligible. The view of the Tribunal is discernible from para 9 the order, which reads thus: “ ……The applicant in the present case took his chance by participating in the selection process and there were 40 applicants for one post of Ward Servant reserved for OBC candidates. In fact, the applicant himself had sent only his Matriculation certificate along with his application, whereas, the minimum qualification for the post was Middle Pass and, therefore, his Middle Class Pass certificate was required to be sent along with his application. Thus, the application of the applicant was also deficient in this respect and in all fairness, respondents gave a chance to all such candidates to present their documents at the time of interview. Having availed of this opportunity himself, the applicant cannot question the granting of the same facility to other candidates including Respondent No. 3. The issue regarding the OBC certificate, of Respondent No.3 being from U.P. Govt. has also been clarified sufficiently by the respondents. The date of birth of Respondent No.3 has been clearly indicated in his transfer certificate without any interpolations and it is 5.12.1984. The transfer certificate is CWP No. 13208 of 2010 (O&M) 4 also of a date much prior to the date of interview. We also agree with the stand taken by the respondents in support of their claim that since no malafides, unfairness or bias has been attributed or proved by the applicant in the present case, the process of selection cannot be impugned simply because the applicant failed to get selected. Reliance in this OA 686/CHJ 2007 regard has been placed on the judgment in the case of Joginder Singh (supra) and the ratio of judgment in this case applies squarely to the present one. We are of the considered view that Respondent No.3 possesses the requisite qualification for the post, the selection process was transparent and fair and the applicant took his chances along with other candidates for the post of 'Ward Servant'. It was for the selection Committee to decide upon the relative merits of each candidate and we do not find any ground to interfere with the decision of the Selection Committee.”

5. Mr. Sherry K. Singla, learned counsel for the petitioner has vehemently argued that so called Middle standard certificate produced before the Tribunal is basically a progress report of 2000 and respondent No. 4, who has been selected, is shown to have secured 367 marks out of 1300 marks. From the Rules placed on record (Annexure-P-2/A) for promotion to the next class, minimum 33% marks in every subject and in every examination has to be secured by a candidate. According to the learned counsel respondent No. 4 had secured only 28.20% marks, thus, he has to be considered as fail in the Middle class.

6. His second contention is that the certificate of OBC possessed by respondent No. 4 does not show that he is ‘OBC of Union Territory, CWP No. 13208 of 2010 (O&M) 5 Chandigarh’, which is a pre-requisite as per requirement of the advertisement. In support of his submission, learned counsel has drawn our attention to the certificate dated 17.3.2004 produced by respondent No. 4 before the respondent authorities. A perusal of the aforesaid certificate shows that the same has been issued by the Tehsildar Amethi, District Sultanpur, certifying that respondent No. 4 belongs to Gadaria Class, which is a Backward Class of Uttar Pradesh as per Schedule-I of the Uttar Pradesh Public Service (Schedule Caste, Schedule Tribes & Other Backward Class) Reservation Rules, 1994.

7. The third submission made by learned counsel for the petitioner is that at one place the date of birth disclosed by respondent No. 4 is 5.12.1982 but when he produced his alleged Middle class certificate (Annexure P-3/A), the date of birth is shown to be 5.12.1984, which also casts doubt about the authenticity of this document.

8. Mr. G.S. Sandhawalia, learned counsel for U.T. Administration, Chandigarh and Mr. O.P. Sharda, learned counsel for respondent No. 4 have argued that the certificate (Annexure P-3/A) shows that respondent No. 4 was promoted to Class 9th and, therefore, he should be deemed to have qualified Class 8th. However, there is no light thrown on the certificate, which has been produced before the Selection Committee at the time of his selection showing that respondent No. 4 has secured 367 marks out of 1300 marks.

9. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. The foremost question which arises for consideration in the instant petition is whether a person belonging to the ‘OBC’ category of one State can seek benefit of reservation in some other State or the Union Territory. A somewhat similar controversy came up before Hon’ble the Supreme Court in the case of Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458. In that case an CWP No. 13208 of 2010 (O&M) 6 advertisement was issued by the Delhi Subordinate Services Selection Board which, inter alia, contained one general instruction that SC and OBC candidates must furnish certificates issued by the competent authority of the Government of NCT of Delhi issued on or before the closing date of receipt of application forms. Questioning the legality and validity of the said clause, a writ petition was filed before the Delhi High Court. The benefit of reservation was sought by the petitioners who were born and brought up in Delhi but whose father or forefathers happened to have migrated to Delhi years before. A learned Single Judge of Delhi High Court had opined that there is a difference between the first generation migrant and the progenies of the said migrant. The benefit may be denied to the first generation migrant but it cannot be denied to his progenies who are born and brought up in the migrated State. The learned Single Judge allowed the petition and then issued a mandamus to appoint such of the petitioners who were born and brought up in Delhi, if the caste is notified as a reserved caste in Delhi although the certificate issued to them is on the basis of the certificate issued to their fathers who were the migrants from other States. The Letters Patent appeal preferred by the Delhi Subordinate Service Selection Board and another was also dismissed by a Division Bench of Delhi High Court.

10. The matter eventually travelled to Hon’ble the Supreme Court and their Lordships’ have held that persons belonging to a particular caste or tribe may suffer some disadvantages in one State but may not suffer the same disadvantages in the other. Our constitutional scheme, therefore, seeks to identify the social and economic backwardness of people having regard to the State or Union Territory as a unit. A study has to be undertaken before a section of the people can be identified as belonging to a Backward Class in a CWP No. 13208 of 2010 (O&M) 7 State. Thus, for identification of Backward Classes, it is necessary to undertake a study in a particular State as to whether the migrants are required to be treated as Backward Classes in that State. It has further been observed that Article 16 (4) cannot be made applicable for the purpose of grant of benefit of reservation for Scheduled Castes or Scheduled Tribes in a State or Union Territory, who have migrated to another State or Union Territory if they are not members of the Scheduled Castes and Scheduled Tribes in that recipient State. Thus, the judgment of Delhi High Court was set aside.

11. When the ratio of the judgment rendered in Subhash Chandra’s case (supra) is applied to the facts of the instant petition, it is obvious that the benefit of reservation of ‘OBC category’ cannot be extended in favour of respondent No. 4. The advertised post of Ward Servant has been reserved for ‘OBC of U.T. Chandigarh only’, as is evident from the advertisement (P-1). It is conceded position that respondent No. 4 possesses a Backward Class Certificate dated 17.3.2004 (P-3B), which has been issued by the office of the Tehsildar Amethi, District Sultanpur, certifying that respondent No. 4 belongs to ‘Gadria Backward Class of Uttar Pradesh’, which has been recognised under Schedule-I of the Uttar Pradesh Public Service (Schedule Caste, Schedule Tribes & Other Backward Class) Reservation Rules, 1994 (Amended). We have no hesitation to hold that the Tribunal has gravely erred in law in accepting the submission that respondent No. 4 has been working in Chandigarh since 2002 and belongs to Gadaria caste, which has been notified as a Backward Class by the Chandigarh Administration vide notification dated

27.6.1995, as also by the State of Uttar Pradesh, hence he belongs to OBC category recognised by the Chandigarh Administration. Thus, he cannot be treated as a person belonging to ‘OBC of U.T. Chandigarh’ in terms of the law CWP No. 13208 of 2010 (O&M) 8 laid down by Hon’ble the Supreme Court in the case of Subhash Chandra (supra).

12. We are further of the view that respondent No. 4 also lacks the requisite educational qualification of Middle pass because the certificate produced by him, which is merely a Transfer Certificate Form (P-3A), depicts that he obtained only 28.20% marks in Middle standard and could not be considered as pass. Moreover, nothing has been brought on record which could prove that he was having experience in the line. We do not deem it necessary to deliberate on the issue concerning age of respondent No. 4 i.e. whether his date of birth is 5.12.1982 of 5.12.1984.

13. As a sequel to the above discussion, the instant petition is allowed. The impugned judgment dated 17.3.2009 (P-12) passed by the Tribunal and appointment of respondent No. 4 is set aside. The respondent U.T. Administration, Chandigarh, is directed to proceed with selection as per requirement of the advertisement and law. The petitioner shall be entitled to cost, which are quantified as ` 10,000/-. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE December 8, 2010 Pkapoor