W.P.(C) No.11928/2009 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 03.03.2010 % Judgment delivered on: 06.04.2010 + W.P. (C) No.11928/2009 HARI SINGH .....Petitioner Through: Mr. G.D. Gupta, Senior Advocate with Mr. R. B. Bansal, Advocate and petitioner in person. versus STAFF SELECTION COMMISSION & ANR. ….Respondents Through: Mr. Sachin Datta with Mr. Manikya Khanna, Advocates. CORAM: HON’BLE MR. JUSTICE GITA MITTAL HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? J U D G M E N T VIPIN SANGHI, J. 1. The petitioner has filed this writ petition under Article 226 of the Constitution of India to seek the issuance of a writ of mandamus, thereby directing respondent no.1 i.e. the Staff Selection Commission (SSC) to recommend the name of the petitioner for appointment to one of the Central Police Organisations i.e. Central Reserve Police Force (CRPF), Indo-Tibetan Border Police (ITBP) or the Border Security Force (BSF) as per the preference exercised by him in his application submitted in response to public notice published, inter alia, in W.P.(C) No.11928/2009 Page 2 of 40 Employment News of 18-24.08.2007 to fill up posts of Sub Inspectors in various Central Police Organisations, and for a direction that respondent no.2 i.e. the CRPF should appoint him as a Sub-Inspector. 2. The petitioner initially joined as R.II(Constable/GD) in the CRPF as an OBC category candidate at Group Centre, CRPF, Ajmer, Rajasthan on 2.8.1995 and was allotted Force No.951222106. His service as R.II (Constable/GD) was confirmed after completion of training and probation w.e.f. 11.09.1997. He joined the services of the National Security Guard (NSG) on deputation w.e.f.15.03.2004 and is presently posted in 12 SRG, NSG Training Centre, Manesar, Gurgaon, Haryana. He submits that while in service, in the year 2006 respondent no.2 applied as a departmental candidate for appointment to the post of Sub-Inspector (SI/GD). He emphasizes that he applied as a candidate belonging to the OBC category and his candidature as an OBC candidate was entertained by respondent no.2. However, it appears, he did not qualify in the said departmental examination. 3. The dispute in the present case has arisen as, even though the petitioner is undoubtedly an OBC candidate who does not fall within the creamy layer and is more meritorious than the last OBC candidate selected by SSC for the post of Sub-Inspector in the selection process in question, he has not been selected because the OBC certificate submitted by him was not in the prescribed format and he had not submitted the requisite OBC certificate. The respondents, therefore, W.P.(C) No.11928/2009 Page 3 of 40 treated the petitioner as a general category candidate and did not select him as he did not make the cut as a general category candidate. 4. Respondent no.1 issued a public notice inviting applications for recruitment to various posts of Sub-Inspector in Central Police Organisations by holding an open competitive examination on All India basis. The said advertisement was published, inter alia, in the Employment News of 18-24.08.2007. The closing date for submission of applications was 14.09.2007. The following number of vacancies in the various Central Police Organisations reserved for the other backward classes were notified in this notice: Sl. No. Name of the Force No. of Reserved seats for OBC candidates 1. BSF 136 2. CRPF 144 3. CISF Male 120 Female 12 4. ITBP 61 5. SSB 73 5. Under clause 4(B), a note was appended, which is relevant for our purpose, and the same reads as follows:- “NOTE: The closing date for receipt of application will be treated as the date of reckoning for OBC status of the candidate and also, for assuming that the candidate does not fall in the creamy layer. W.P.(C) No.11928/2009 Page 4 of 40 The candidate should furnish the relevant OBC Certificate in the format prescribed for Central Government jobs as per Annexure-VIII issued by the competent authority on or before the Closing Date stipulated in the Notice. OBC Certificate obtained otherwise than the prescribed certificate meant for Central Government jobs will not be considered for seeking relaxation/reservation whatsoever”. 6. Under clause 4(D) (ii), relaxation in age limit was admissible to departmental candidates who have rendered not less than three years continuous and regular service as on 14.09.2007. For Sub-Inspectors serving in CRPF, the upper age limit was 40 years for the general candidates; 45 years for SC/ST category candidates; and 43 years for OBCs. Clause 4(E), which deals with process of certification and format of certificates, in so far as it is relevant, reads as follows: “4(E) : Process of Certification and Format of Certificates: Candidates who wish to be considered against vacancies reserved/to seek age relaxation, must submit requisite certificate from the competent authority alongwith their application for the examination, otherwise, their claim for SC/ST/OBC/ExS status will not be entertained and their applications will be considered as if same are from General (UR) category candidates. The nature & format of certificate is as under:- (i) … … … (ii) … … … (iii) … … … W.P.(C) No.11928/2009 Page 5 of 40 (iv) Annexure VIII for OBC Category Candidates; (v) … … … (vi) … … …” 7. Note-II also required the candidates to submit along with their applications attested certificates in support of their claims regarding, inter alia, their belonging to the “Other Backward Classes”. This clause further stated “The candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all the stages of examination for which they are admitted by the Commission (written examination and interview/personality test) will be purely PROVISIONAL, subject to their satisfying the prescribed eligibility conditions. If on verification at any time before or after the written examination and Interview/Personality test, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission”. 8. Clause 27 of the public notice stated that applications having the listed deficiencies or irregularities would be summarily rejected. It was also stated that the listed deficiencies or irregularities were only illustrative and not exhaustive. Entries 11 and 12 of the list, reads as follows: “11. Without proper certificates, in respect of SC/ST/OBC candidates and Ex-servicemen/relaxation sought in age or physical standards. Certificate should be W.P.(C) No.11928/2009 Page 6 of 40 obtained from the competent authority in the prescribed format. 12. Without Declaration by OBC candidate in the format as given in Annexure I (i.e. Application Form) by the Candidate.” 9. Under instructions relating to submission of application, it was inter alia, provided in clause 10 (x), that candidates had the option to submit either self attested/self certified photocopies of various documents or to submit photocopies of various documents duly attested by a Gazetted Officer as per extant procedure along with the application form. It was provided that the original documents or certificates would be verified at the time of personal test/interview and their candidature will be subject to result of such scrutiny. 10. The petitioner applied in response to the said public notice. The petitioner has stated that his parent department, namely CRPF, after verifying the service record of the petitioner issued a service certificate acknowledging the petitioner as a departmental OBC candidate. The said service certificate was also annexed with the application form submitted by the petitioner to claim age relaxation. We may, however, note that the date of birth of the petitioner being 20.12.1973, he did not require relaxation of age on account of his being an OBC candidate as the petitioner was well below the age of 40 years, which was the upper age limit for the general category departmental candidates. W.P.(C) No.11928/2009 Page 7 of 40 11. The petitioner submits that in his application, he gave preference for appointment to the post of Sub-Inspector in CRPF, CISF, SSB, ITBP and BSF. He also submitted a copy of the OBC certificate dated 09.06.1994/16.06.1994 issued by the Tehsildar, Tehsil Bayana, which certified that the petitioner belongs to the “Bangara” caste which comes under the category of backward classes as per State Government of Rajasthan Notification No.11 (125) (R) & B/S.F./46631 dated 27.08.1993. This certificate also certified that the petitioner does not belong to the creamy layer. This was the same certificate which the petitioner claims to have submitted and accepted at the time of his appointment as an OBC candidate in the CRPF on the post of R.II (Constable)/G.D.). 12. The petitioner was issued the admission certificate for the examination in question, wherein it was clearly stated that the petitioner was placed under the OBC category. The petitioner appeared in the written examination held on 16.12.2007, wherein he was declared successful. Vide a communication dated 31.05.2008, the SSC informed the petitioner that he had “provisionally” qualified in the said examination and that he had been “provisionally” found eligible for being called for the PET and medical test. He was required to appear for the PET on 15.07.2008 and for the medical test on 16.07.2008 respectively at 23 Bn ITBP, Dehradun, Uttrakhand. 13. In the communication dated 31.05.2008, in paragraph 7 (iv), the respondent SSC stated that OBC category candidates must submit W.P.(C) No.11928/2009 Page 8 of 40 their OBC certificate in the prescribed proforma for Central Government offices as per Annexure VIII of the notice of examination issued by the competent authority on or before 14.09.2007, failing which the candidate would be treated as unreserved category candidate subject to fulfillment of other eligibility conditions. 14. The petitioner submits that he accordingly appeared for the PET and medical test on the aforesaid dates and cleared the same. The petitioner submits that at that stage he was coerced into giving an undertaking to the effect that since he had not furnished the OBC certificate in the prescribed proforma, he would not claim OBC status and that he may be considered as a general category candidate. 15. The petitioner submits that he had already applied to the competent authority for issuance of the requisite OBC certificate in the prescribed proforma contained in Annexure VIII some time in August, 2008. The said application was made by the petitioner to the Tehsildar who had issued the earlier OBC Certificate. However, the said certificate was not made available to the petitioner till as late as 04.06.2009. 16. In the meantime, the respondent SSC issued a communication dated 04.05.2009 to the petitioner informing him that on the basis of the results of the PET/medical test and written examination, the petitioner had been found provisionally eligible for being called for interview. By this communication he was called for interview on W.P.(C) No.11928/2009 Page 9 of 40 25.05.2009. In paragraph 2(vi) of this communication the respondents once again stated that OBC category candidates must submit their OBC certificate in the prescribed proforma for Central Government offices as per Annexure VIII of the notice of examination issued by the competent authority on or before 14.09.2007, failing which the candidate would be treated as an unreserved category candidate subject to fulfillment of other eligibility conditions. 17. The respondents, it appears, also published their results and called the candidates for interview, by publishing the same in the “Employment News” published for the period 16-22 May, 2009. The petitioner submits that in the list of candidates who were declared as qualified for appearance in interview, the name of the petitioner was mentioned at serial no.148 and the respondents had shown his category as category-6, which undisputedly is the category number assigned to OBC candidates. 18. The petitioner submits that upon seeing the aforesaid result as published in the Employment News of 16-22 May, 2009, wherein the petitioner was shown as belonging to the OBC category, he was led to believe that the respondents had accepted his status as an OBC category candidate on the basis of the OBC category certificate already submitted by him along with his application form. He submits that when he appeared for interview on 25.05.2009, the respondents did not even ask him to produce his OBC certificate in the prescribed proforma and this conduct of the respondents further led him to W.P.(C) No.11928/2009 Page 10 of 40 believe that so far as his candidature is concerned, the same had been accepted by the respondents as one falling under the OBC category not covered by the creamy layer. 19. As aforesaid, the requisite OBC certificate in the prescribed proforma (as contained in Annexure VIII to the public notice aforesaid) was made available to the petitioner on 04.06.2009. The petitioner submits that even though the said certificate became available on the said date, he did not consider it necessary to submit the newly obtained OBC certificate in the prescribed proforma to the respondent SSC, as he continued to reel under the bonafide impression that the respondents had accepted the certificate earlier submitted by him and were treating him as a candidate belonging to the OBC category not falling in the creamy layer. He submits that the final results of the selection process had not been declared by the respondents by the time the fresh OBC certificate had been made available, and if he had not been carrying the bonafide impression that his candidature as an OBC category candidate had been accepted, he would have submitted the fresh certificate without any delay. The petitioner submits that when the final results were declared by the respondents on 20.07.2009 and he did not find his name against the selected candidates under the OBC category, even though he had secured 226 marks and OBC candidates with 201, 155 and 203 marks had been selected for appointment to the post of Sub Inspectors in CRPF, ITBP and BSF respectively, he realized that his candidature had been considered as a general category candidate and not as an OBC category candidate. W.P.(C) No.11928/2009 Page 11 of 40 20. In this background, the petitioner has filed the present writ petition for the reliefs as stated herein above. The respondents have filed their counter affidavit and the reason for non-selection of the petitioner as an OBC category candidate is stated to be his failure to submit the requisite OBC category certificate in the proforma prescribed under Annexure VIII. It is stated that the petitioner had been treated as a general category candidate for which the petitioner had also furnished an undertaking on 15.07.2008. The respondents state that the last selected general category candidate had secured higher marks than the petitioner and, consequently, the petitioner has not been selected in the selection process in question. 21. Mr. G.D. Gupta, learned senior counsel for the petitioner has submitted that even the respondents do not deny the status of the petitioner as belonging to the OBC category outside the creamy layer. He submits that the petitioner had submitted his earlier OBC category certificate issued by the very same authority who had issued the subsequent certificate dated 04.06.2009. The earlier certificate had certified that the petitioner belongs to the “Bangara” caste which comes under the category of backward classes as per the State Government of Rajasthan Notification and that the petitioner did not come within the creamy layer. He submits that the conduct of the respondents in treating the petitioner, who had applied under the OBC category as a general category candidate, only because the petitioner did not have the requisite OBC certificate by 14.09.2007 (the closing W.P.(C) No.11928/2009 Page 12 of 40 date for submission of the application form) is illegal and contrary to various pronouncements of the courts. He submits that it is sufficient compliance of the requirement if a candidate submits the OBC category certificate prior to the declaration of the results. However, in the present case, the petitioner though possessed of the requisite OBC category certificate before the date of declaration of the final results, was prevented from submitting the same prior to the declaration of the result on account of the misleading conduct of the respondents, which led the petitioner to believe that there was no need for him to submit any fresh certificate as the respondents had categorized the petitioner as an OBC category candidate on the basis of the OBC Certificate already submitted by him in their publication in the Employment News of 16-22 May, 2009, and had not even demanded the same when the petitioner appeared for interview on 25.05.2009. 22. In support of his submissions, Mr. Gupta has placed his reliance upon the decision of this court in Tej Pal Singh & Anr. v. Govt. of NCT of Delhi & Anr., 120 (2005) DLT 117; the decision of the Division Bench of this court arising out, inter alia, of the aforesaid decision in LPA No.304/2000, Delhi Subordinate Services Selection Board & Anr. v. Tej Pal Singh & Others, decided on 15.12.2000; the decision of the Division Bench of this court in Delhi Subordinate Services Selection Board v. Ms. Anu Devi & Anr., WPC No.13870/2009 and various other writ petitions decided on 17.02.2010. He relies on another Division Bench judgment of this court in Govt. of NCT of Delhi & Anr. v. Poonam Chauhan, WPC W.P.(C) No.11928/2009 Page 13 of 40 No.548/2008 decided on 09.07.2008; and the decision of learned Single Judge of this court in Abhishek Saini v. University of Delhi & Anr., WPC No.10257/2009 decided on 13.08.2009. We propose to discuss the aforesaid discussions a little later in this judgment. 23. The respondents have opposed the writ petition stating that at the time of the petitioners PET/medical test, it was observed that the OBC certificate submitted by the petitioner along with his application form was not in the prescribed proforma. Therefore, his candidature was considered as a general category candidate after the petitioner submitted an undertaking on 15.07.2008 to the effect that although he had applied and qualified in the written part of the examination in OBC category, but as he had not furnished the OBC category certificate in the prescribed proforma, he may be treated as an unreserved, i.e. general category candidate. The respondents further state that under the unreserved category, the petitioner failed to make it to the final select list. The respondents further state that as per paragraph 4(D)(ii) of the public notice, it was incumbent on the petitioner to ensure that he submits a valid OBC certificate in the prescribed proforma of a date before the cut-off date, namely 14.09.2007 which was the last date for submission of the application form. 24. We now proceed to examine the judgment of a learned Single Judge of this Court in Tej Pal Singh (supra) in detail. As noticed above, this decision has been affirmed by the Division Bench of this Court and the Special Leave Petition to challenge that decision has also W.P.(C) No.11928/2009 Page 14 of 40 been rejected by the Supreme Court. This court in Tej Pal Singh (supra) was dealing with a case where the petitioners belonged to the SC category. The caste certificates submitted by the petitioners were not considered by the respondents for selection to the posts of teachers in the Municipal Corporation of Delhi/NDMC on the ground that their certificates were submitted after 30.06.1998 which was the last date specified for the purpose. According to the petitioners, they had submitted the requisite certificates, including their caste certificates, and after perusing the same and being satisfied therewith, the respondent board had called the petitioners for verification between 06.10.1998 and 22.10.1998. The petitioners had further submitted that they had attended the office of the respondent board for verification and checking of the original documents. However, subsequently the petitioners learnt that their candidature was not considered on the ground that the caste certificates were dated post 30.06.1998 and only those candidates whose certificates were dated prior to 30.06.1998, were considered. It was argued that this action of the respondents was arbitrary and illegal and that the date of the certificate is immaterial, as what is relevant is the fact that the petitioners belonged to the SC category and this fact does not change whether the certificate is issued prior to 30.06.1998 or after 30.06.1998. The submission of the petitioner was that though they had submitted their caste certificates along with their applications, however, those certificates were not issued by the competent authority under the Govt. of NCT of Delhi. However, before the date for W.P.(C) No.11928/2009 Page 15 of 40 verification of the certificates arrived, they had applied for and obtained the requisite caste certificates issued by the competent authority. The petitioners submitted that as per the guidelines issued on reservations and concessions for SC and ST candidates, the petitioners were entitled to submit such certificates even after the cut off date. It was also argued that the cut off date fixed in the advertisement was fixed for the purpose of educational qualification, professional experience and age limit and did not apply to production of SC certificate issued by the competent authority. On the other hand, the submission of the respondent was that the application form had to be submitted duly complete in all respects by 30.06.1998. The application was required to be accompanied with copies of documents showing the educational qualification, professional expertise, age limit along with SC/ST/OBC certificate, if any, issued by the competent authority. Since the last date for submission of the applications including copy of SC/ST/OBC certificate was 30.06.1998, it follows that the certificate which was to be submitted had to be of a date prior to 30.06.1998. It was argued that the cut off date of 30.06.1998 adopted by the respondent board for administrative purposes had been made applicable uniformly and therefore, the same was not in violation of Article 14 of the Constitution of India. 25. The Court by a considered judgment accepted the petitioner’s contentions. The court observed that it was an undisputed fact that the petitioners belong to the SC category. The petitioners had submitted their applications in the prescribed form by 30.06.1998 W.P.(C) No.11928/2009 Page 16 of 40 along with all requisite documents including SC certificate. However, the SC certificates had been issued by other State Governments and not by Government of NCT of Delhi. The petitioners had been able to obtain SC certificates issued by Govt. of NCT of Delhi after 30.06.1998 and submitted the same as and when they had received the certificates. The certificates had been submitted before the petitioners were called for verification of their documents by the respondent board. 26. The learned Single Judge extracted paragraphs 3 and 4 from Chapter II of Swamy’s Compilation of Reservations and Concessions for Scheduled Castes and Scheduled Tribes. The said paragraphs read as follows: “3. Provisional appointment subject to verification – Even where the prescribed certificates have been produced, the appointing authorities should include a clause in the offer of appointment as follows:- "The appointment is provisional and is subject to the caste/tribe certificates being verified through the proper channels and if the verification reveals that the claim to belong to Scheduled Caste or Scheduled Tribe, as the case may be, is false, the services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of false certificates." 4. Provisional appointment when prescribed certificates not produced. Where a candidate belonging to an S.C. or S.T. is unable to produce a certificate from any of the prescribed authorities, he may be appointed provisionally on the basis of whatever prima facie proof he is able to produce in W.P.(C) No.11928/2009 Page 17 of 40 support of this claim, subject to his furnishing the prescribed certificate within a reasonable time. If there is genuine difficulty in his obtaining a certificate, the appointing authority should itself verify his claim through the District Magistrate concerned. Appointment of an S.C. or S.T. candidate should not