Quadir Hussain vs The State of Rajasthan and Others

Alok Sharma, J.—This petition has been filed with the prayer that the petitioner be considered in the OBC (non-creamy layer) category for recruitment to the post of Unani Chikitsa Adhikari in pursuance to the advertisement No. 2/2013 issued on 01.06.2013 and further be directed to be appointed on the said post by the respondents in the event of his standing in merit in the said category.

Pursuant to the advertisement No. 2/2013 dated 01.06.2013 inviting application for appointment to the post of Unani Chikitsa Adhikari, the petitioner applied. A perusal of the application form submitted by the petitioner (Annexure-1 to the petition) indicates that he applied in the open category/OBC (creamy-layer) and for the purpose, as required by the advertisement in issue, deposited a sum of Rs. 2,500/- as fee applicable to the open category and OBC (creamy-layer) candidates as against the fee of Rs. 1,250/- required from applicants under SC/ST and OBC (non-creamy layer) category. It appears that as recruitments were being done through Dr. Sarvapalli Radhakrishanan Rajasthan Ayurved University, Jodhpur (hereinafter "University"), an advertisement came to be issued by the university subsequent to receipt of all applications, requiring the candidates to verify the uploaded data on the university website vis a vis their application forms and in the event of finding any discrepancy in the uploaded data as against the contents of the application forms submitted, to make requisite applications for rectification confined to the name of the applicant, father''s name, sex, date of birth, category, marks, experience etc. The case of the petitioner is that pursuant to the University s advertisement requiring the candidates to verify the uploaded data as against the contents of their application form and seek rectification, if warranted, the petitioner moved an application before the University for making necessary correction in his online application and sought the change of his category from general/OBC (creamy-layer) to OBC (non-creamy layer) as the petitioner claims to be.

It has been submitted that despite the receipt of the application for rectification filed by the petitioner, the requisite changes have not been made and the petitioner despite belonging to OBC (non-creamy layer) category continues to be treated as a general category candidate--OBC (creamy-layer) to his detriment. It has been submitted that the petitioner was issued a OBC (non-creamy layer) certificate by the Tehsildar, Churu as early as 24.08.2009. (The said certificate has been filed as an Annexure to the petition). Thereafter the petitioner was again issued a certificate evidencing his OBC (non-creamy layer) status on 09.04.2015-- also filed as annexure with the writ petition. Counsel has submitted that in the circumstances, the inaction of the respondent-University in failing to make the requisite rectification in the application form submitted on or about 13.09.2013 and treat the petitioner as an OBC (non-creamy layer) category candidate is wholly arbitrary, warranting interference at the hands of this Court and a direction that the petitioner be treated as such for the purpose of evaluation of his candidature for appointment to the post of Unani Chikitsa Adhikari. In support of the contention, Mr. Manish Parihar, appearing for the petitioner has relied upon the judgment of the Hon''ble Division Bench of this Court in the case of State of Rajasthan and Another Vs. Datar Singh, (2013) 4 CDR 1943 : (2014) 1 RLW 357 : (2014) 3 SCT 552 as also the judgment of the Hon''ble Supreme Court in the case of Charles K. Skaria and Others Vs. Dr. C. Mathew and Others, AIR 1980 SC 1231 : (1980) 2 SCC 752 : (1980) 3 SCR 71 .

Reply to the petition has been filed and the case set up by the petitioner emphatically resisted.

Mr. Sanjeev Singhal, G.C. appearing for the respondents submits that in terms of the advertisement No. 2/2013 issued on 01.06.2013, it was made clear that no certificate issued subsequent to the last date of receipt of application forms i.e. 13.09.2013 would be considered for the purpose of appointment to the posts in issue. It has been pointed out that the advertisement dated 01.06.2013 in respect of fee chargeable from candidates clearly stated that the open category candidates and OBC (creamy-layer) candidates would be required to deposit a fee of Rs. 2,500/- and those in the ST/SC and OBC (non-creamy layer) category would have to deposit Rs. 1,250/- fee for consideration of their applications. It has been submitted that for applying as OBC (non-creamy layer) category candidate inter-alia, an appropriate certificate within four years prior to the date of submission of application form and not later was to be submitted in support. The petitioner had applied on 13.09.2013 when in fact the OBC certificate earlier obtained by him was dated 24.08.2009 and was obviously over four years old and thus of no avail to him to apply as OBC (non-creamy layer). And in that context the petitioner had applied in the open/OBC (creamy-layer) category. It has been submitted that the subsequent certificate relied upon by the petitioner is dated 09.04.2015 which is subsequent to the last date of the application and in terms of the conditions of the advertisement cannot be taken into consideration. Counsel for the respondents has submitted that the opportunity provided for by the University for rectification in the application forms made for appointment to the post in issue only related to the discrepancies, if any, in the contents of the application made with the data uploaded on the site of the respondent-University on the basis of such application. It has been submitted that this opportunity did not entail a second chance for any candidate to seek to alter his status as from general category/OBC (creamy-layer) in which he had applied to OBC (non-creamy layer). Counsel has submitted that the case at hand is not one of a mere inadvertent error while filling up the online application form as has been sought to be argued, but instead is one where the category applied for consciously at the time of application form sought is to be altered.

Heard. Considered.

Reliance placed on the judgment of the Hon''ble Division Bench of this High Court in the case of Datar Singh (Supra) by counsel for the petitioner is misplaced. The aforesaid case related to the Court being seized with a minor inadvertent and non-substantial error in filling up the online application form. The case did not deal with facts similar to those as obtaining presently in this petition. As submitted by the counsel for the respondents, the petitioner had consciously applied as an open category/OBC (Creamy-layer) candidate inasmuch as he did not at the relevant time have a requisite OBC (non-creamy-layer) certification within four years of the last date of submission of application form. And had therefore even deposited a higher application fee of Rs. 2,500/- as relevant to OC/OBC (creamy-layer) candidates. I find force in the argument of the counsel for the respondents that the advertisement by the University for rectification subsequent to the receipt of online application forms was limited to discrepancies evident to the candidates between the information supplied in their online application forms and as uploaded on the University website. The advertisement did not allow, as it indeed could not have, the applicants to change their status from one category to another after they had chosen consciously to apply in one category. The facts in the case of Charles K. Skaria (Supra) were also wholly different from the facts of the case at hand and therefore reliance on the aforesaid case by the counsel for the petitioner is of no avail. In Charles K. Skaria (Supra) the Hon''ble Supreme Court was seized with the situation of candidates admitted by selection committee being potentially ousted merely for the reason that the certificate of diploma required for consideration had not been produced together with the application for admission. There was no issue of change of status/category of the applicants. The present case is not one where a certificate required to be submitted with the application form was inadvertently not annexed despite availability and was sought to be subsequently submitted but had been arbitrarily rejected on technical grounds. The facts of the case detailed hereinabove bespeak of a situation of a conscious application as an open category/OBC (non-cream-layer) candidate and thereafter an unjustified and unfair attempt to seek to have the said status altered to that of OBC

In J. and K. Public Service Commission Vs. Israr Ahmad and Others, (2005) 12 SCC 498 , the Hon''ble Apex Court has held that the nature and status of the candidate who has chosen to opt for a category at the time of making an application for appointment cannot be changed subsequently. Resultantly the respondent in the aforesaid case was not allowed to change his status contrary to the one in which he had made the application or seek reservation on the ground of obtaining a requisite certificate for the purpose of change of category subsequent to the last date of the application.

In my considered opinion, the facts of the case at hand are not where an inadvertent error while filling an online application form is sought to be heartlessly and unfairly perpetuated to the petitioner disadvantage. Contrarily as recorded hereinabove, the petitioner seeks an unfair advantage and change his category/status as an afterthought to OBC (non-creamy-layer) after he had applied for consideration for appointment to the post of Unani Chikitsa Adhikari as a general/OBC (creamy-layer) category candidate having in fact deposited a fee of Rs. 2,500/- and not submitted any valid certification of his OBC (non-creamy-layer) along with the application form within time. The subsequent certification dated 09.04.2015 is after the last date for submission of the application and in terms of the conditions of the relevant advertisement cannot be reckoned for the purpose of considering the petitioner''s case as a OBC (non-creamy layer) candidate.

I therefore find no force in the petition.

Dismissed. Stay application also stands dismissed.