Vishwas Kumar vs State of Himachal Pradesh And Others

Justice Tarlok Singh Chauhan, J.

The petitioner appeared in the Joint Entrance Examination (Main)Â2018 as Other Backward Classes (OBC)/Non Creamy Layer (NCL) candidate

and passed the same. He was called for counselling on 2.7.2018. However, his seat was cancelled because instead of OBC/NCL category, he was

treated in the general category. It is in this background that the petitioner has prayed for writ of certiorari for quashing Annexure PÂ4 seeking further

direction to admit him in B. Tech. (Electronics and Communication Engineering), for which he had been selected as OBC candidate.

Respondent No.2 has contested the petition by filing reply, wherein preliminary objection regarding maintainability has been raised on the ground

that respondent No.2 is just a participating and reporting Institute working under Joint Seat Allocation Board (JoSAA) and Central Seal Allocation

Board (CSAB). As a matter of fact, after framing the scheme/guidelines and criteria, Joint Entrance Examination 2018 for eligibility of admissions in

IITs, NITs and IITs etc was conducted by JEE (Main) Secretariat, Central Board of Secondary Education, HÂ149, Sector 63, Noida, UP 201309 and

after declaration of results, all data was transferred to JoSAA and CSAB, formed by Ministry of Human Resources and Development (MHRD),

Government of India. JOSAA, who had also made and approved certain Business Rules for Joint Seat allocations for various academic programmes

in aforesaid Central Institutes. Whole of the scheme formed for JEE (Main)Â 2018, (Annexure RÂ1) was available online and on the basis of such

scheme/guidelines/rules, every individual including the petitioner, applied for the examination. In para Nos. 3 and 4, it is made clear that benefit of

reservation for admission to NITs/IITs and CFTIs shall be given only to those classes/castes/tribes which are in the respective central lists published

by the Government of India. In the case of the petitioner, the list published by National Commission for Backward Classes, with respect to Bihar

(Annexure RÂ2), the caste stated by the petitioner as ‘Godi Chhavi’ does not find mentioned but it is only there as ‘Godi Chhava’. Not

only this, but it is made clear in the format of application (Annexure RÂ3) that the category benefit will be only if candidate falls in central list.

Replying respondent being only participating and reporting Institute cannot go beyond the aforesaid Rules. Therefore, claim of the petitioner was

rightly rejected.

Apart from above, another preliminary objection regarding estoppel has been raised and it is averred that the relevant guidelines/norms had been

properly communicated to the petitioner and it was only thereafter he filledÂin the application form and could not turn around and assail the action of

the replying respondent in rejecting his candidature vide Annexure PÂ4. Lastly, preliminary objection regarding non joinder of necessary parties has

been raised and it is contended that the CSAB, who had framed and approved the business Rules for joint seat allocation in academic programmes for

replying respondent and other IITs and NITs, are necessary party.

On merits, it has been contended that the category mentioned in OBC certificate annexed by the petitioner with the petition does not find mentioned

in the central list prepared by the Central Board for other Backward Classes. The petitioner has mentioned his caste as ‘Godi Chhavi’, but in

the central list, it is not the same, however, at Sr. No.29 of the central list, it has been mentioned as ‘Godi Chhava’.

We have heard the learned counsel for the parties and have also gone through the material placed on record carefully.

In the information bulletin relating to JEE (Main)Â​ 2018, reservation of seats has been provided for under clause 3.4, which reads thus:Â​

“As per Government of India rules candidates belonging to certain categories are admitted to seats reserved for them based on relaxed criteria.

These categories are:

I. Other Backward Classes (OBC) if they belong to Non Creamy Layer (NLC)

II. Scheduled Castes (SC)

III. Scheduled Tribes (ST)

IV. Persons with Disability (PwD) with 40% or more disability Benefit of reservation for admission to NITs/IITs and CFTIs shall be given only to

those classes/castes/tribes which are in the respective central list published by the Govt. of India. For admission to State Engineering colleges who

have opted for admission through JEE (Main)Â2018, the reservation rules of that State shall apply. The letter/eÂmails/grievances/RTI cases/Court

cases regarding reservation criteria will not be entertained by JEE (Main) Secretariat/CBSE.â€​

It would be noticed that the reservation for admission to NITs/IITs and CFTIs in favour of OBC is only available to such of the candidates who

belong to Non Creamy Layer (NCL) and it is not available to the candidates, who simply belong to OBC category.

The form of certificate to be produced by other backward classes (NCL) applying for admission to Central Educational Institutions (CEIs) under

the Government of India has been appended as AnnexureÂV with the Reporting Centre/Help Centre Guidelines, Infrastructure & Budget, issued by

the CSAB, which reads thus:Â​

“(This certificate must have been issued on or after 1st April 2018) This is to certify that Shri/Smt./Kum__________________, Son/Daughter of

Shri/Smt.___________________________of Village/Town____________ District/Division______________ in the ________________

State/Union Territory__________ belongs to the __________ community which is recognized as a backward class under Government of India,

Ministry of Social Justice and Empowerment’s Resolution No._____________ dtd._______.

Shri/smt./Kum.__________and/or his/her family ordinarily reside(s) in the _______District/Division of the _______State/Union Territory. This is

also to certify that he/she does not belong to the persons/sections (Creamy Layer) mentioned in column 3 of the Schedule to the Government of India,

Department of Personnel & Training O.M. No. 36012/22/93ÂEstt.(SCT) dated 8/9/93 which is modified vide OM No. 36033/3/2004 Estt. (Res.)

dated 9/3/2004, further modified vide OM No. 36033/3/2004Â Estt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013Â‐

Estt(Res), dated 30/5/2014.

District Magistrate/

Deputy Commissioner/

Competent Authorityâ€​

Evidently, certificate that was furnished by the petitioner to the respondent vide Annexure PÂ2, only certifies the petitioner at best belonging to

OBC category, but nowhere has it been certified that the petitioner does not belong to the persons/sections (creamy layer) in column 3 of the Schedule

to the Government of India, Department of Personnel & Training O.M. No. 36012/22/93ÂEstt.(SCT) dated 8/9/93 which was modified vide OM No.

36033/3/2004 Estt. (Res.) dated 9/3/2004, further modified vide OM No. 36033/3/2004Â​Estt. (Res.) dated 14/10/2008, again further modified vide OM

No.36036/2/2013Â​Estt(Res), dated 30/5/2014.

The petitioner, has thereafter obtained and placed on record another OBCÂ​NCL certificate, which reads thus:Â​

“OBCÂNCL Certificate Format FORM OF CERTIFICATE TO BE PRODUCED BY OTHER BACKWARD CLASSES (NCL) APPLYING

FOR ADMISSION TO CENTRAL EDUCATIONAL INSTITUTIONS (CEIs), UNDER THE GOVERNMENT OF INDIA

This is to certify that Shri/Smt./Kum* Vishwas Kumar, Son/Daughter* of Shri/Smt.* Sudhir Kumar of Village/Town* Sadhua, District/Division*

Bhagalpur, in the State/Union Territory Bihar, belongs to the Godi (Chhhaya) community that is recognized as a backward class under Government of

India**, Ministry of Social Justice and Empowerment’s Resolution No. 12011/68/93Â​BCC(c), dtd. 10/9/1993*** Shri/Smt./Kum. Vishwas Kumar,

s/o Sudhir Kumar and/or his/her family ordinarily reside(s) in the Bhagalpur District/Division of the Bihar State/Union Territory. This is also to certify

that he/she does NOT belong to the persons/sections (Creamy Layer) mentioned in Column 3 of the Schedule to the Government of India,

Department of Personnel & Training O.M. No. 36012/22/93Â Estt. (SCT) dated 08/09/93 which is modified vide OM No. 36033/3/2004 Estt.(Res.)

dated 09/03/2004, further modified vide OM No. 36033/3/2004ÂEstt. (Res.) dated 14/10/2008, again further modified vide OM No.36036/2/2013ÂEstt

(Res) dtd. 30/05/2014.

Sd/Â​

Zonal Officer

Rangra Chowk

Dated 9/7/2018â€​

Even though, this certificate does not form part of the record and was never submitted to respondent No.2, however taking into consideration the

persuasive submission made by the learned counsel for the petitioner to the effect that the petitioner is a meritorious students, we proceed to consider

the certificate.

Evidently, this certificate has been issued in favour of the petitioner based on the parental income in the financial year 2013Â2014 viz. 1st April

2013 to 31st March 2014 and does not even remotely indicate or mention about the income covering three preceding financial years i.e. 2015Â16,

2016Â17 and 2017Â18, as provided in the office memorandum No. F.No. 36036/2/2013ÂEstt.(Res), issued by the Ministry of Personnel, Public

Grievances & Pensions, Department of Personnel & Training, Government of India, which reads thus:Â​

“F. No. 36036/2/2013 Estt.(ResÂI) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel &

Training

Establishment Reservation â€" I Section

North Block, New Delhi

Dated 31st March 2016

OFFICE MEMORANDUM

Subject: Validity period of OBC Certificate in respect of 'creamy layer' status of the candidates.

This Department has received various references on the issue of problems being faced by the candidates on the requirement to obtain multiple nonÂ‐

creamy layer OBC certificates for appearing in various examinations. With a view to address this issue, the following revised procedure is

proposed:Â​

(a) Every candidate seeking reservation in central government posts and services as OBC candidate is required to submit a certificate confirming

his/her status as OBC and also produce NonÂcreamy layer status issued by an authority mentioned in DOPT Office Memorandum

No.36012/22/93Â​Est(SCT) dated 15.11.1993.

 (b)The NonÂcreamy Layer Certificate would be applicable to OBC candidates who are covered under Income/Wealth Test criterion. The income

limit is decided on the basis of income earned during three previous financial years preceding the year of appointment. To illustrate, the validity of

nonÂcreamy layer certificate issued during any month of the financial year 2016Â17 covering 3 preceding financial years viz. 2013Â14, 2014Â15 and

2015Â16 be accepted by the concerned authorities for any appointments or recruitments which would be valid during the period April 2016 to March

2017. The appointing authorities would accept production of selfÂattested photo copy of the NonÂcreamy layer certificate, subject to verification of

the original NonÂ​creamy layer certificate, as is the practice being followed for verification of other original documents.

2.On this issue, the National Commission of Backward Classes has suggested a new format for issue of Non creamy layer certificate, which is

enclosed.

3.It is requested that comments on the suggestions made in para 1 of this OM and any other suggestion(s) to streamline the system of issue of Non

creamy layer certificate (NCL) may please be furnished.

It is also requested that comments on the NonÂ​creamy layer certificate format proposed by NCBC, may also be furnished.

Encl: as above

Sd/Â​

(Raju Saraswat)

Under Secretaryâ€​

Therefore, in the given circumstances, respondent No.2 had no option, but to reject the candidature of the petitioner against the reserved seat of

OBCÂ​NCL.

Having said so, we find no merit in this petition and the same is accordingly dismissed leaving the parties to bear their own costs. Pending

application(s), if any, also stands disposed of.