IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 13800 of 2008 Date of Decision: 23.4.2009. Komal --Petitioner Versus State of Punjab & another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Abhishek S. Bhaskar, Advocate for the petitioner. Mr. B.S. Chahal, DAG, Punjab. *** PERMOD KOHLI.J (ORAL) The petitioner applied for the post of mistress in music as a Backward Class candidate in response to the advertisement issued by the respondents for inviting applications for the posts of mistresses in various subjects from the eligible candidates. The petitioner appeared for screening on 15.11.2006 along with the requisite documents. The result of the selectees was declared and published on 24.11.2006 in issue of Punjab Kesri. However, the petitioner was not selected. Petitioner claims to have made various representations. It is stated that the petitioner has 67.95% marks in the qualifying examination and admittedly has better merit than the last selectee in the said category. Receiving no response, petitioner filed this petition seeking a direction for her appointment as mistress in music. In the reply-affidavit filed by respondent no.2 the claim of the petitioner is being resisted on the ground that the last date for submission of the application form was 11.11.2006 when the candidate was required to possess all the eligibilities and also to furnish these certificates as per the condition no.10 of the advertisement notice, which is reproduced CWP. No. 13800 of 2008 -2- hereunder:- “ 10. A candidate must possess prescribed educational qualifications and professional qualifications for th post applied for on or before the last day of receipt of applications. The cut off date for all intents and purposes for eligibility determination is the date on which the application is filed and not any later date such as the date of any document verification or the date of issuance of appointment letter or the date of joining.” It is further stated that through a public notice dated 13.11.2006 all the eligible candidates whose percentage was above the tentative cut off merit as mentioned in the public notice were asked to produce their original documents by a High Level Committee on 16.11.2006. The petitioner produced the Backward Class certificate, which was issued on 13.11.2006, whereas the cut off date for making applications was 11.11.2006 and since the petitioner did not possess the requisite Backward Class certificate by the cut off date, she has not been selected. It is not in dispute that the petitioner had better merit as against the last selectee. It is also admitted position that the petitioner possessed the Backward Class certificate, though, it was issued on 13.11.2006. The respondents had called for the screening of the certificates initially on 16.11.2006. She was having a valid Backward Class certificate. The genuineness of the certificate is also not disputed. Being a member of the backward class is not the eligibility. The petitioner belongs to backward class. The certificate is only a proof of the belonging to the category. A person cannot acquire such a category. It is on account of belonging to a particular class or community by birth that CWP. No. 13800 of 2008 -3- the categories determine. Non production of the certificate along with the application is not fatal. Similar controversy stands decided by the Division Bench of this Court in a bunch of petitions including CWP No. 4242 of 2007 vide judgement dated 30.9.2008, wherein it was observed as under:- “ It is not the case of respondents that the petitioner did not possess the Backward Class Certificate or she was not a Backward Class or she had not submitted her certificate along with application form. The only reason given is that the certificate was an old one and not in terms of 2005 Instructions. The respondents have, however, not been able to show either from the written statement or at the time of arguments that any condition exists either in 2005 Instruction or in the Advertisement, which informs the candidates that they must produce the revised B.C. Certificate in terms of 2005 Instructions along with their application forms. It is, therefore, inconceivable as to how the candidates like the petitioners could have anticipated the aforesaid requirement. In view of the aforesaid discussion, we find that the petitioner has been illegally denied consideration for selection and appointment as Lecturer in English in B.C. Category in violation of the equality clause enshrined in Articles 14 and 16 of the Constitution of India. Accordingly, we allow the writ petition, quash the impugned order dated 23.1.2007 (Annexure P-12) and direct the respondents to give appointment to the petitioner as Lecturer in English, being higher in merit than respondents 3 to 5. The respondents shall displace the candidate(s) lowest in merit in Backward Class category. Respondents, shall however, be at liberty to accommodate such displaced candidate(s) against other vacancies, if available. The petitioner shall be entitled to notional service benefits with CWP. No. 13800 of 2008 -4- effect from the date the candidate lower in merit than her was appointed. It is further clarified that if in the process of appointment of the petitioners in the aforesaid connected writ petitions, appointment of already appointed candidates is to be cancelled and such candidate(s) was/were not impleaded as respondents in the connected writ petitions, then their appointment(s) shall be cancelled after following due process of law. Needless to say that the respondents will be at liberty to accommodate such displaced candidates against any posts lying vacant. All the writ petitions stand allowed in the above terms.” In view of the above, this petition is allowed. Respondents are directed to consider the candidature of the petitioner for appointment as a music mistress in Backward Class category on the basis of her merit within a period of three months from the date certified copy of this judgement is served upon the competent authority. (PERMOD KOHLI) JUDGE 23.4.2009 lucky