CWP No.14705 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.14705 of 2008 (O&M) Date of Decision: 15.03.2010 **** Jyoti . . . . Petitioner VS. State of Punjab and others . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. R.K. Arora, Advocate for the petitioner Mr. B.S. Chahal, DAG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 05.09.2007 (Annexure P9), whereby, respondent No.2 – the Director, Rural Development and Panchayats, Punjab has turned down her claim for appointment to the post of ETT Teacher in the reserved category of Scheduled Castes. (2). Vide an advertisement dated 04.03.2006 (Annexure P1), the Director, Rural Development and Panchayats invited applications for selection and appointment to the posts of ETT teachers in the Primary Schools in rural areas of Punjab. The CWP No.14705 of 2008.doc - 2 – advertisement also contained the format of the Application to be submitted by the eligible candidates. The relevant part whereof in the context of the controversy involved herein, reads as under: xxxxxx xxxxxxx xxxxxx xxxxxx xxxxxx xxxxxxx xxxxxx xxxxxx “Apply in the Form below or photocopy thereof: (Incomplete applications will be rejected) 1. Name: 2. Father's Name 3. Category (Attach relevant certificate for reserved categories) Genera l Ex- Serviceman Freedom Fighter SC Handicapped BC” Mention if any other xxxxxx xxxxxxx xxxxxx xxxxxx xxxxxx xxxxxxx xxxxxx xxxxxx (3). The petitioner who possessed the requisite academic qualification and belongs to the reserved category of Scheduled Caste, also applied in response to the above-stated advertisement. (4). The original Application Form submitted by the petitioner has been produced during the course of hearing in which the petitioner has categorically described herself as belonging to the ‘Scheduled Caste’ category and she has also appended the attested copy of her Scheduled Caste certificate dated 24.04.2000. The above-stated Scheduled CWP No.14705 of 2008.doc - 3 – Caste certificate further clearly descripts that she belongs to ‘Balmiki Mazbi’ caste, which is a notified Scheduled Caste category in the State of Punjab. It may also be mentioned here that the Application Form filled in by the petitioner including its column No.3, is absolutely in the same format as was given in the advertisement (Annexure P1). (5). As per the reservation policy of the State Government, 20% posts are reserved for the Scheduled Caste candidates. It is further not in dispute that the reservation prescribed for the Scheduled Caste category has been further divided into two sub-categories, namely, Mazbi Balmiki (MB) and Ramdasia and Others (R&O). Both the sub-categories are entitled to 50% each out of the total posts reserved for Scheduled Castes. (6). Respondent No.2 kept no separate column either in the advertisement or in the prescribed Application Form to require a candidate belonging to the Scheduled Caste category to disclose his/her sub-category, namely, ‘Mazbi Balmiki’ or ‘Ramdasia & others’. CWP No.14705 of 2008.doc - 4 – (7). The petitioner also did not disclose her sub- category in the application form, though the Scheduled Caste certificate appended by her along with the application form, did mention the caste to which she belongs. (8). As against the last selected candidate of Scheduled Caste (B&M) category who got 100.71 merit position, the petitioner’s merit is 111.36. The petitioner was, thus, entitled to be selected and appointed to the post of ETT Teacher. Her name, however, did not find mention in the Selection List of Scheduled Caste candidates. (9). Aggrieved the petitioner approached this Court by way of CWP No.15448 of 2006 and pursuant to the directions issued therein, respondent No.2 has passed the impugned order dated 05.09.2007 (Annexure P9) rejecting the petitioner’s claim for appointment on the pretext that she never applied in the Scheduled Castes (M&B) category and has been treated as an ‘ordinary Scheduled Caste’, where she being lower in merit, has not been selected. To be precise, respondent No.2 has assigned the following reasons:- “Therefore, all these respondents were belonging to SC (M/B) category for which the lowest merit was 100.71, whereas, the petitioners were belonging to SC CWP No.14705 of 2008.doc - 5 – category for which the lowest merit of the last selected candidate was 132.21, hence the petitioner was not selected for the post of ETT Teacher. In view of above, it is concluded that the appointments of ETT Teachers have been made by the Chief Executive Officer, Zila Parishad, Ludhiana in view of Rule-II of Punjab Panchayati Raj Primary Teachers (Recruitment and Conditions of Services) Rules, 2006. The petitioner, as mentioned in the aforesaid table scored less marks in comparison to the last candidate selected as ETT Teacher, is rightly rejected by the Chief Executive Officer, Zila Parishad, Ludhiana.” (10). Still aggrieved the petitioner has approached this Court. (11). I have heard learned counsel for the parties and perused the records including the original Application Form submitted by the petitioner. In my considered view the action of respondent No.2 in rejecting the petitioner’s claim, is patently discriminatory, whimsical and lacks fairness. (12). As noticed earlier, the application form published by the respondents along with advertisement, did not contain any column required a candidate to disclose his/her sub-category, namely, ‘Balmiki Mazhbi’ or ‘Ramdasia & Others’. Respondent No.2, with a view to cover-up their own mistake and/or mislead this Court has given an impression as if there is a separate reservation for CWP No.14705 of 2008.doc - 6 – ‘other Scheduled Castes’. The fact of the matter is that the prescribed reservation is only for ‘Scheduled Caste category’ as it finds mention in the advertisement/Application Form also. There is a further division amongst two sub-categories of (i) ‘Balmiki/Mazhbi’; and (ii) ‘Ramdasia & Others’. In the absence of any separate column in the Application Form, the sub-category was to be ascertained on the basis of the Scheduled Caste certificate(s) appended by the candidates as each such certificate discloses the sub-category/caste. (13). It is not in dispute that the petitioner actually belongs to Scheduled Caste (Balmiki/Mazhbi) category. She is obviously entitled to the benefit of the reservation policy meant for the Scheduled Castes (Balmiki Mazhbi)/(Ramdasia & Others). She being higher in merit than the last candidate who has been appointed in the sub-category to which she belongs, the action of the respondents in denying her appointment cannot stand to the touchstone of Articles 14 and 16 of the Constitution. (14). The impugned order dated 05.09.2007 is, accordingly, quashed. The respondents No.2 & 3 are directed to appoint the petitioner as ETT CWP No.14705 of 2008.doc - 7 – teacher within a period of one month from the date of receipt of a certified copy of this order and assign her seniority from the date when candidate (s) lower in merit were appointed. Though the petitioner shall not be entitled for the arrears of pay but for all other intents and purposes including the notional pay-fixation, she shall be treated to be in service from the date candidate lower in merit were appointed. She shall also be entitled to the cost of Rs.10,000/-, the half of which shall be paid by the Mr. Gurdev Singh – respondent No.2 who has passed the impugned order, and the balance shall be paid by the Zila Parishad, Ludhiana within the above-stipulated period and a compliance affidavit to this effect shall be filed, failing which the Registry is directed to list the matter for suo motu contempt proceedings. (15). Ordered accordingly. (16). Dasti . (SURYA KANT) JUDGE 15.03.2010 vishal shonkar