Saddaf Ahmad vs Union of India And Ors

Heard learned counsel for the parties through V.C.

The instant application has been preferred by the petitioner for quashing and setting aside the order issued by the respondent no.2, whereby the candidature of the petitioner for recruitment on the post of Constable in Central Reserve Police Force (CRPF) pursuant to notice of examination published in the Employment News dated 3-9 December, 2011, has been cancelled on the ground that the petitioner had not furnished the OBC certificate in the prescribed formant before the due date.

The facts of the case lie in a narrow compass. The petitioner had applied as a candidate under OBC category pursuant to the advertisement dated 03.12.2011 and was allotted Roll No.4205510177 by the Staff Selection Commission (hereinafter to be referred as Commission). It was stipulated at Note-II under Para-10 of the said recruitment notice that the candidate's admission at all stage of examination will be purely provisional, subject to their satisfying eligibility conditions and that if on verification at any time before or after the written examination, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission. The petitioner was allowed to participate in physical test, written test and medical examination with all other similar situated candidates considering his candidature under OBC category based on his own declaration and finally the petitioner was declared qualified under OBC category for provisional appointment in CRPF, in the final result of the aforesaid recruitment published on 17.10.2012. However, in terms of the advertisement, before nominating, the documents were examined and it was found that the petitioner though provisionally qualified under OBC category and derived benefits of reservation and concession admissible to OBC category of which he submitted an OBC Certificate No.4134 dated 29.04.2010 issued by S.D.O., Sadar Medini Nagar, Jharkhand. However, the said OBC certificate appears to be not in the prescribed formant as stipulated in the advertisement by the commission inasmuch as, it did not mention the non-creamy layer status of the petitioner as on the critical date of receipt of application i.e. 04.01.2012 and also it did not include the relevant notification resolution of the Government of India under which his community was included in the Central List of OBCs for the State of Jharkhand. As per the respondent-Union of India, the OBC certificate No.4134 dated 29.04.2010 submitted by the petitioner was not valid for the reservation and concession under OBC category, since it did not at all contain the non-creamy layer status of the petitioner which was required as per the advertisement.

Learned counsel for the petitioner submits that the petitioner dully participate in the recruitment process and clear at all the stages of examination and even he was recommended on the post of constable in the CRPF and the respondent authorities arbitrarily, for the reason best known to them, deprive the petitioner from the appointment on the sole ground of late submission of caste certificate in the requisite format and as such, the said action of the respondent is wholly unreasonable and unjustified. Learned counsel for the petitioner further relied upon a judgment passed in the case of Ram Kumar Gijroya V. Delhi Subordinate Services Selection Board and Anr. reported in (2016) 4 SCC 754 wherein the Hon'ble Apex Court has held that the claim for inclusion in OBC category can be entertained even in case where the certificates were not produced by the applicants before the cut-off date notified in the advertisement. However, learned counsel fairly submits that this issue which was dealt in the aforesaid judgment has been referred to a Larger Bench of three judges in the S.L.P (C) No.14948 of 2016 in the case of Karn Singh Yadav Vs. Govt. of NCT of Delhi & Ors. Learned counsel further contended that when a decision rendered by a jurisdictional Bench of Supreme Court is referred to a Larger Bench would be binding on the subordinate bench or Courts until the same has been set aside or it has been expressly stayed by the respective Bench. As such, the case of the petitioner may be considered in the light of the aforesaid judgment.

Mr. Rajiv Sinha, learned ASGI, appearing for the Union of India vehemently opposed the prayer of the petitioner and submits that the aforesaid judgment is not applicable in the instant case as the same was passed by referring another case of Supreme Court in the case of Puspa Vs. Government of NCT Delhi reported in (2009) SCC Online Delhi 281 and that case was concerning SC/ST candidates.

He further contended that the case of SC/ST and the OBC cannot be equated as one and the same for the sole reason that the status of SC/ST cannot be changed because they got reservation by birth but the case of OBC is always related with their economy condition because of the reason that the economy of any person will definitely change from time to time.

He further submits that in the instant case, the crucial date was date of receipt of application i.e. 04.01.2012 for the purpose of determining the non-creamy layer and the commission accepted the OBC certificate issued in the prescribed format on or after 04.01.2012 but before the date of the medical examination i.e. on 18.08.2012 which facts was also stipulated in the advertisement notice and the same was also communicated to the petitioner through the call letter issued for the medical examination dated 22.04.2013 which is annexed as Annexure- 5 to the writ application.

He further submits that the medical examination was conducted on 05.07.2012 and therefore the petitioner was required to submit the OBC certificate containing the non-creamy layer status on or before 25.07.2012. However, the petitioner submitted fresh OBC certificate on 30.08.2012 which was again not valid for reservation and concession under OBC category for the reason that the same was issued after the petitioner's medical examination i.e. on 25.07.2012 and even after the last date of medical examination for other candidate also i.e. on 18.08.2012 and for this reason, the candidature of the petitioner for appointment was not considered inasmuch as, the OBC certificate dated 30.08.2012 which has been annexed as Annexure-7 having being issued after the stipulated dated and the earlier certificate dated 29.04.2010 did not contain the creamy layer status, the non-consideration of the petitioner's candidature is legal, valid and in accordance with law.

Learned counsel lastly submitted that the other contention of the petitioner that he was also qualified under the unreserved category is not correct as the petitioner secured only 37 marks which were below the marks of the last selected candidate for general district and naxal district of Jharkhand for unreserved category of candidates. As such, no case is made out by the petitioner and the instant case is liable to be dismissed.

Having heard learned counsel for the parties and after going through the materials available on record, it appears that the OBC certificate dated 29.04.2010 which was submitted by the petitioner was not in the prescribed format, inasmuch as it did not mention the creamy layer status of the petitioner on the date of receipt of application. The requirement of certificate regarding non-creamy layer as on the crucial date of application is in terms of the Government of India, Department of Personnel and Training O.M. No.36033/4/97-Establishmnet (RES) dated 25.07.2003. The said OBC certificate consists in two parts, the first part indicates that the person belongs to a community listed as OBC and the second part indicates that the candidate does not fall in the creamy layer. The requirement of mentioning of creamy layer status is on account of the fact that OBC status of a candidate can change only when the community of the concerned candidate is removed from the OBC list, but the creamy layer status can be changed any time. Meaning thereby to say that though the status of a caste may not change but for the purpose of taking reservation, creamy layer status of any candidate will change from time to time. Further, I am in agreement with the contention of the learned ASGI that if the date will be extended from time to time, it will be unending process and the result could never be published as such, there has to be a cut of date for submission of any application.

In the instant case the petitioner was also issued a notice for submitting the OBC certificate as required in the advertisement on or before the crucial date but the same was not furnished by the petitioner and as a matter of fact, the same was furnished even after the medical examination of all the candidates was over. Therefore, I do not find any illegality in the impugned order whereby the candidature of the petitioner for recruitment on the post of constable in CRPF has been cancelled.

So far as the judgment cited by the learned counsel for the petitioner is concerned; on the one hand the issue has been referred to a Larger Bench and secondly it relates to a person who is from SC/ST category and not OBC category, and the creamy layer status of any OBC candidates can be changed any time. In this view of the matter the judgment cited by the learned counsel for the petitioner is not applicable in the instant case.

As a result the instant application is hereby dismissed.