C.W.P. No.12013 of 1998 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.12013 of 1998 (O&M) Date of Decision. 04.08.2011 2. C.W.P. No.2792 of 1999 Latif Ahmed s/o Shri Khair Din r/o village Abbaspura, P.O. Haider Nagar, Tehsil Malerkotla, Distt. Sangrur .....Petitioner Versus State of Punjab through Secretary Department of Welfare (Reservation Cell), Chandigarh and others .....Respondents. 3. COCP No.76 of 2004 Latif Ahmed s/o Shri Khair Din r/o village Abbaspura, P.O. Haider Nagar, Tehsil Malerkotla, Distt. Sangrur .....Petitioner Versus Lt. Gen. Surjit Singh PVSM, VSM (retd) Chairman, Punjab Public Service Commission, Patiala. .....Respondent. Present: Mr. Pankaj Katia, Advocate for Mr. Sanjiv Bansal, Advocate for the petitioner. Mr. N.S. Pawar, Addl. A.G., Punjab. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. 1. The writ petition in C.W.P. No.12013 of 1998 is filed at the instance of the petitioner to quash the impugned orders dated 08.06.1998 and 16.09.1998 passed by the Deputy Commissioner, Sangrur and the Tehsildar, Malerkotla respectively. These impugned orders were with reference to the determination of the status of the petitioner as C.W.P. No.12013 of 1998 (O&M) -2- belonging to Backward Class under Annexure P-7. While forwarding a communication to SDM, Malerkotla , the Deputy Commissioner, Sangrur had stated that in terms of the instruction issued by Punjab Government Welfare Department, a person having an income of more than Rs.1 lac for three consecutive years fell within the creamy later and the petitioner being assessed as having income of Rs.1 lac, he was not entitled to Backward Class Certificate. Even when the writ petition was pending, he appears to moved an application before the Tehsildar, Malerkotla to urge that he did not fall within the creamy layer and he had given an affidavit declaring his annual income during 1995-96, 1996- 97 and 1997-98 as Rs.89,290/-, Rs.1,98,893/- and Rs.2,30,858/- respectively. After this order was passed, the petitioner moved an amendment to challenge both these orders. Guidance had been sought from the Deputy Commissioner whether a person, who, during the relevant three years had income less than Rs.1 lac for any one particular year, obtain a status as still falling within the creamy later. Referring to the Government instructions and directions of this Court in C.W.P. No.12013 of 1998, where the petitioner had been allowed to be given a personal hearing, the Tehsildar held that three consecutive years as referred to in the Government instructions was to be read with regard to the wealth consideration and not with reference to the income condition and if he had wealth, which could generate income of more than Rs.1 lac for any two years and he was also an income tax assessee, not being dependent on his father, he could not get such a certificate as claimed by him. 2. The contention of the petitioner was that while determining C.W.P. No.12013 of 1998 (O&M) -3- the status whether a person belongs to the Backward Class or not and whether he falls within the creamy layer, the income of the parents and their status are also relevant and a harmonious ruling of the instructions issued by the Government would show that if the parents of a person, who is seeking a Backward Class Certificate, were both Class II Officers then he would fall in the creamy layer but if he was not in Government service at all, his own income could not be taken for denying such a status. Referring to the income criterion, the petitioner would contend that the salaries and agricultural income are to be excluded while computing the annual family income from all sources. According to him, none of the family members of the petitioner were earning from any other source except that the father had agricultural lands, which was liable to be excluded. If the salary earned by the petitioner was also to be excluded from the annual family income, under no stretch of imagination, could the petitioner's case fall within any of the categories that qualified for the expression creamy layer. In the reply submitted by the State, it is contended that as per the affidavit filed by the petitioner on 19.09.1998, admittedly for the year 1997-98, the income was more than Rs.2 lacs and as per the affidavit of the father, the annual income from the agricultural land measuring about 38 bighas for the relevant years was less than Rs. 1 lac but the joint family income of the petitioner along with his father was exceeding Rs.1 lac in every one of the relevant years. Explaining the Government instructions issued on 17.01.1994, the respondent contends that a person having gross annual income of Rs.1 lac or more or possessing wealth above the exemption limit, would be covered within the creamy layer and would not be C.W.P. No.12013 of 1998 (O&M) -4- entitled to a Backward Class Certificate. The petitioner was not denied the issuance of Backward Class Certificate by adding the income of his father but only on account of the fact that the petitioner himself was an earning member and being not dependent on his father, his income being more than Rs.1 lac during two of the years of the relevant period and as per the Clause 6 of the Punjab Government Instructions dated 17.01.1994, the authority issuing a certificate for eligibility for reservation in jobs under B.C. Quota was bound to be satisfied about the genuineness of his claim after obtaining an application in a prescribed form. The reference to father's status as not holding any Government post is irrelevant, for, it is a distinct category for determination of creamy layer of persons, who are the sons of Government servants. This category is mutually exclusive to the other category of persons who fall within the creamy layer if the income criterion exceeded the limit prescribed under the instructions. 3. The issuance of the Caste Certificate became acutely relevant for the petitioner only because the petitioner had applied for Punjab Civil Services (Executive Branch) and Allied Services Examination in the year 1998 through the Punjab Public Service Commission, Patiala and he was qualified in the preliminary examination held on 23.11.1998. The petitioner was already an Ex-serviceman and he had applied in the Ex- serviceman Backward Class Category. In that context, he had applied for the Backward Class Certificate. During the pendency of the writ petition in C.W.P. No.12013 of 1998, the petitioner had come by the Instructions of the Punjab Public Service Commission that MLA of a Constituency was also a competent authority to issue a Backward Class C.W.P. No.12013 of 1998 (O&M) -5- Certificate. Referring to the instructions issued by the Government that MLA was also competent authority to issue the certificate, the petitioner claimed that the MLA from the Constituency Office from Sangrur had given such a certificate to him. He was also incidentally the State Minister for Sports and Animal Husbandry and the 2nd writ petition came to be filed at the time when the results of the main examination were declared in January 1999 and the petitioner was declared as unsuccessful and his name was not considered in the category of BC ESM (Backward Class Exserviceman). The petitioner had, therefore, sought in C.W.P. No.2792 of 1999 for issuance of a direction to the Punjab Public Service Commission to consider the name of the petitioner in the reserved category and to declare the results of the petitioner in the said category. Since the selections had been completed but appointment orders were not yet issued at the itme of filing of the petition, the petitioner had also sought for stay of issuance of appointment orders to the selected candidates. The Court had not granted any stay but directed the matter to be posted along with C.W.P. No.10123 of 1998 and that is how both the above two writ petitionsa are brought together. 4. The petitioner appears to have produced the certificate issued by the MLA on 28.10.1998, who as per the Government Instructions, was also competent to issue such a certificate but this certificate was also rejected by the authority on the ground that he was not a competent authority. It appears that the petitioner had again applied to the Tehsildar Malerkotla for issuance of a certificate and the Tehsildar has issued a certificate during the pendency of the writ petition on 18.01.2007, giving him the status of a Backward Class. The petitioner C.W.P. No.12013 of 1998 (O&M) -6- would, therefore, rely on this certificate for a reconsideration and the application has been filed in C.M. No.1091 of 2008 for reconsideration of the issue. This application was directed to be heard along with main case by a docket order of this Court on 13.08.2008. The certificate issued by the Tehsildar, Malerkotla on 18.01.2007 purports to be issued as per the advice given by the Welfare Department vide letter No.2086 dated 20.11.2006 through the Chief Secretary, Punjab and advice given by the SDM Malerkotla vide his endorsement dated 12.01.2007 and the Deputy Commissioner, Sangrur vide endorsement dated 12.01.2007. It could, therefore, be seen that from the time when the Punjab Public Service Commission was considering his candidature under a reserved category, they were guided by the orders denying to him the BC status. During the pendency of the writ petition, however he has come by a new development, that is, his BC status has been brought through a fresh certification issued by the Tehsildar, Malerkotla. Although it is not specificially stated that it is in supercession of the earlier orders rejecting his status, I would assume that earlier rejection was well within the knowledge since the fresh certificate has been issued on the instructions of the DC, Malerkotla, who had earlier denied to him such a status. The Secretary of the Punjab Government Welfare Department is also a party to the proceedings in the writ petition and therefore, I would understand that this certificate has been issued on due consideration of facts and as per the status that prevailed at the time when he was seeking for consideration of his candidature in the reserved cateogry. 5. There is no reply from the State denying the genuineness of C.W.P. No.12013 of 1998 (O&M) -7- the certificate or doubting the correctness of the same. Even as the proceedings were pending, the petitioner had also come through a contempt petition in COCP No.76 of 2008 stating that fresh examination was being conducted and the non-consideration of the petitioner's case constituted contempt of court but this Court passed an order dated 25.09.2007 admitting the contempt petition and holding that the complaint in the contempt petition would be dependent on the decision of the issues arising in the above two writ petitions and ordered the contempt petition to be posted along with the writ petitions. It can be merely noticed that the fresh issue of a certificate declaring the petitioner as belonging to Backward Class, has come only in 2007 and there was no disobedience of the order of this Court when examinations were conducted in 2003 and when the petitioner's case was not considered in the reserved cateogry. There were definitely two certificates, one issued by the Tehsildar and yet another certificate issued by the MLA of the Constituency declaring him to be a Backward Class, the petitioner had challenged the decision of the Tehsildar and the Deputy Commissioner and under the circumstances with no clear affirmation of the petitioner's status, denial of consideration for the petitioner under such reserved category cannot be said to be in violation of any directions of this Court. The mere pendency of the writ petitions themselves could not have been taken as upholding the petitioner's claim to such a status, to complain of disobedience of the order of Court or committing contempt. 6. In the ultimate analysis, in the changed situation of the petitioner being favoured with a Backward Class Certificate from a C.W.P. No.12013 of 1998 (O&M) -8- competent authority, the State shall consider the candidature of the petitioner under the reserved category status, if he is otherwise duly qualified. Since the date of denial of consideration to the post more than 13 years have elapsed and if such a consideration were to be undertaken now and if the petitioner is found entitled to appointment, the same shall be done under an order appropriately passed within four weeks from the date of receipt of copy of the order. The petitioner would be deemed to have entered into service on the date when he was bound to be considered for appointment as though there was a valid cerfifiate for consideration under the reserved category but he shall not be entitled to any salary during all this period. This is subject however to authority's finding that if he has the benefit of consideration under Backward Class Category, he could be appointed. 7. Both the writ petitions are disposed of in the light of what is stated above. The contempt petition is dismissed as no orders are necessary. (K. KANNAN) JUDGE August 04, 2011 Pankaj*