Dr. Rajeev Singh Kushwaha vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Nagesh Aggarwal, learned counsel for the petitioner, Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand and Mr. Sagar Kothari, learned counsel holding brief of Mr. Ramji Srivastava, learned counsel for the second respondent.

The jurisdiction of this Court has been invoked by the petitioner, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the order dated 21.05.2019 passed by the second respondent; a writ of mandamus commanding the respondents to issue appointment letter to the post of Assistant Professor (Biochemistry) pursuant to the notification dated 26.09.2018, and the result dated 28.02.2019.

Facts, to the limited extent necessary, are that an advertisement was issued on 26.09.2018 inviting applications to the post of Assistant Professor in various Government Colleges in the State of Uttarakhand, including for the post of Assistant Professor (Biochemistry). From out of the 04 posts advertised for appointment as Assistant Professor (Biochemistry), only one post was reserved for OBC candidates. The Petitioner, a post-graduate from Bundelkhand University and a Ph.D. from NIMS University, Jaipur is presently working as an Associate Professor in Shri Guru Ram Rai Institute of Medical and Health Sciences, Dehradun, a private College. He claims that he was born on 08.07.1983 in Dehradun and completed his entire education upto Graduation from Dehradun itself, and it is only his Post Graduation Degree from Bundelkhand University, Jhansi (U.P.), and Doctorate Degree in Medical Sciences from NIMS University, Jaipur, which were from outside the State of Uttarakhand. The applicant would also submit that he, and his father before him, have been residing in Dehradun for the past several years. The petitioner was hitherto issued a caste certificate, by the Tehsildar, Dehradun in the year 1997 certifying that he belonged to 'Kushwaha' Caste, which is one of the castes listed in the Other Backward Classes category. It is the petitioner' case that the said caste was always included, in the OBC category list, both prior to, and after the creation of the State of Uttarakhand.

Clause 11(c) of the advertisement dated 26.09.2018 required eligible applicants to upload a photocopy of a valid caste certificate, along with the application form. Soon after the advertisement was issued on 26.09.2018, the petitioner submitted an application to the Tehsidar, Dehradun on 03.10.2018 to be granted an OBC certificate. Since such a certificate was not issued to him, the petitioner, in his application form dated 23.11.2018, uploaded the photo copy of the earlier OBC certificate issued in his favour in the year 1997, since the last date, of submission of the application form, was to expire on the next date i.e.24.11.2018.

The petitioner was found successful in the selection process, and was called for interview during the period 28.01.2019 till 07.02.2019. Pursuant to the application, submitted by him on 03.10.2018, for grant of an OBC certificate, the Tehsildar, Dehradun issued the OBC certificate on 03.12.2018 declaring that the petitioner belonged to the OBC category. When the petitioner was called for interview, he produced a copy of the valid certificate issued by the Tehsildar, Derhadun dated 03.12.2018 certifying that the belonged to the OBC category. While acknowledging that the petitioner had produced a valid OBC certificate, at the time of his interview, the Selection Board, however, rejected his candidature on the ground that a photo-copy of the valid OBC certificate should have been uploaded with the application form submitted by him on 23.11.2018, since clause 11(c) of the Advertisement required a photo copy of a valid caste certificate to be uploaded in the relevant column of the application form.

Mr. Nagesh Aggarwal, learned counsel for the petitioner, would submit that the prescribed application form, for grant of an OBC certificate, itself stipulates that the caste certificate should be issued within 15 days of receipt of the application; the Tehsildar was, therefore, obligated in law to issue such a caste certificate within 15 days from the date of submission of the application i.e. on or before 19.10.2018; it is only because no such certificate was issued to him even till the end of November, 2018, was the petitioner constrained to submit an application online on 23.11.2018, enclosing thereto a photocopy of the earlier OBC certificate issued to him in 1997, since the last date for submission of the application form was to expire on the next day i.e.24.11.2019; and, as a valid caste certificate was issued to him on 03.12.2018, the petitioner had submitted the same during the course of interview between 28.01.2019 and 07.02.2019.

Mr. Sagar Kothari, learned counsel holding brief of Mr. Ramji Srivastava, learned counsel for the second respondent-Selection Board, would draw our attention to the proceedings issued by the Government of Uttarakhand, firstly on 30.05.2012, and subsequently on 10.05.2016. While the period of validity of an OBC certificate was increased from six months to one year, by the Government Order dated 30.05.2012, its validity was increased further to three years by the subsequent proceedings dated 10.05.2016. The petitioner was, therefore, obligate to obtain the OBC certificate periodically, despite which he failed to obtain such a certificate for more than two decades after 1997 till the year 2018.

The fact, however, remains that the petitioner was held entitled to be categorized under the OBC category, both by way of the certificate issued in 1997, and by the certificate dated 03.12.2018. The requirement of obtaining an OBC certificate, in periodic intervals, is to verify whether the person, in whose favour an OBC certificate was issued earlier, has not ceased to remain a member of the Other Backward Classes, on his forming part of the creamy layer which is required to be excluded from the Other Backward Classes category. In the present case, the petitioner was earlier found to be a member of the OBC category in the year 1997, and was issued a valid OBC certificate again on 03.12.2018.

Mr. Nagesh Aggarwal, learned counsel for the petitioner, would further contend that the petitioner had, throughout, prosecuted his education upto graduation in the State of Uttarakhand, on the basis of very same caste certificate issued in his favour in the year 1997. The petitioner's candidature appears to have been rejected on a strict construction of the conditions of the advertisement, which required a photocopy of a valid OBC certificate, to be uploaded along with the application form, which, in terms of the Government Orders dated 30.05.2012 and 10.05.2016, required periodic validation. It does appear that the petitioner has been denied being considered for appointment to the post of Assistant Professor (Biochemistry) on the sole ground that he did not upload a photocopy of a valid OBC certificate, along with the application form dated 23.11.2018, though he had a valid OBC certificate when he was called for interview during the period 28.01.2019 till 07.02.2019.

We were initially inclined to refrain from interference, as the conditions of the advertisement apply uniformly to all candidates; and showing indulgence in the petitioner's favour may well result in other similarly situated candidates being denied consideration for appointment to the post of Assistant Professor (Biochemistry).

Mr. Nagesh Aggarwal, learned counsel for the petitioner, on instruction from the petitioner, would submit that the petitioner was the sole applicant for the post of Assistant Professor (Biochemistry) under the Other Backward Classes category; no other candidate, from the OBC category, had even applied for the post of Assistant Professor (Biochemistry); the petitioner (the sole applicant) was called for interview; and in view of rejection of his candidature on a hyper-technicality, the post of Assistant Professor (Biochemistry), reserved in favour of the Other Backward Classes, has remained unfilled, and would be carried forward to the next recruitment year. In view of the peculiar facts and circumstances of this case as noted hereinabove, we are satisfied that the second respondent ought to have considered his candidature for selection and appointment to the said post. Since the submission, now made by Mr. Nagesh Aggarwal, learned counsel for the petitioner, is not part of the pleadings on record, the second respondent did not have an opportunity to rebut these specific contentions.

Suffice it, in such circumstances, to direct the second respondent to verify whether the petitioner is the sole applicant, under the Other Backward Class category, to the post of Assistant Professor (Biochemistry) pursuant to the advertisement dated 26.09.2018. If, after verification, the second respondent is satisfied that he was the sole applicant, to then consider the petitioner's candidature for being appointed as an Assistant Professor (Biochemistry) on the basis the OBC certificate dated 03.12.2018, produced by him at the time of his interview. We make it clear that, in case any other applicant had also sought appointment to the post of Assistant Professor (Biochemistry) under the OBC category, the second respondent's action, in rejecting the petitioner's candidature, would not necessitate interference. The second respondent shall take a decision, in terms of the directions aforementioned, at the earliest and, in any event, within six weeks from the date of production of a certified copy of this order.

The writ petition stands disposed of accordingly.

Let a certified copy of this order be issued to the learned counsel for the parties, within one week, on payment of prescribed charges.