In the High Court of Punjab and Haryana at Chandigarh CWP No. 13239 of 2007 Date of decision: 24.7.2008 Navneet Kaur ......Petitioner Versus State of Punjab and others .......Respondents CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr.M.S.Kang, Advocate, for the petitioner. Ms.Charu Tuli, Sr.DAG, Punjab. **** JUDGMENT M.M.KUMAR, J. This petition filed under Article 226 of the Constitution prays for quashing order dated 25.7.2007 (Annexure P-12) passed by the Director, Public Instructions (S), Punjab, Chandigarh rejecting the representation made by the petitioner. The impugned order has been passed in pursuance to the directions issued by a Division Bench of this Court in CWP No.1059 of 2007 on 30.1.2007 (Annexure P-10). Brief facts of the case, necessary for disposal of this petition are that respondents issued an advertisement on 11.6.2006 CWP No. 13239 of 2007 { 2 } (Annexure P-4) for filling up the posts of master/mistress in various subjects including Mathematics and Science. According to Clause 10 of the advertisement a candidate is required to possess prescribed educational qualification and professional qualification for the post applied for on or before the last date of receipt of application, which was fixed as 10.7.2006. However, the respondents issued a corrigendum (Annexure P-5) and in clause (ii) of the corrigendum the educational and professional qualifications for the posts of Mathematics Master/Mistress were required to be read as Graduate with Mathematics as one of the elective subject at Graduation level with B.Ed instead of B.A./B.Sc. There was some amendment made in respect of the post reserved for Scheduled Caste and Backward Class and the number of posts was also altered. The petitioner claims to have qualified B.Ed. examination on 20.8.2006, (Annexure P-1), which is earlier than the date of issuance of corrigendum on 31.8.2006. Accordingly, she applied for the posts of Mathematics as well as Science mistress in the category of Backward Classes. She also attached Backward Class certificate dated 6.5.2005 (Annexure P-2). The Subordinate Services Selection Board, Punjab (for brevity the 'Board') found the application of the petitioner in order after scrutiny. Accordingly, the Board called all eligible candidates for verification of the documents by public notice published in the 'The Tribune' ('English Daily') on 24.10.2006. The petitioner did not receive any letter but in pursuance to the public CWP No. 13239 of 2007 { 3 } notice visited the office of the Board. Her documents were verified as she had shown all her original certificates. The Board did not raise any objection to any of the document. The criteria for selection adopted by the respondents is objective inasmuch as percentage of marks obtained in B.Sc. and B.Ed. are to be assessed and no viva voce test is provided. The petitioner was not selected in the result declared by the Board and to that effect general information was published in the Daily Newspapers dated 21.11.2006 informing the candidates about their merit according to their category. The respondents issued another advertisement which was published in 'Punjabi Daily Ajit' on 27.10.2006 (Annexure P-7) inviting applications for filling up 500 posts of Master/mistress (Mathematics). The petitioner submitted her application online for the posts of Science/Mathematics Mistress in the Backward Class as well as general category. The petitioner appeared at C-DAC for scrutiny of the documents made on 16.11.2006 and her merit was calculated as 73.463% (Annexure P-8). On 19.11.2006 the respondents issued final merit list of eligible candidates for appointment of Master/Mistress in the subjects of Science, Mathematics and others in C-DAC selection. In the Backward Class category the last candidate selected had secured 69.933% marks but the name of the petitioner did not figure in the list despite the fact that she had secured 73.463% marks. A copy of the result in the subject CWP No. 13239 of 2007 { 4 } of Mathematics Master/Mistress is annexed as Annexure P-9. Eventually the petitioner filed CWP No.1059 of 2007 which was disposed of by issuing directions to decide her representation. In pursuance to the aforementioned directions and filing of C.O.C.P. No.963 of 2007, respondent No.2 has passed the impugned order dated 25.7.2007 (Annexure P-12), which is subject matter of challenge in the instant petition. The claim made by the petitioner has been rejected. The first contention of the petitioner was rejected whereby she has claimed that fixation of ratio of 50% each for male and female category in respect of the post of Master/Mistress in the subject of Science and Mathematics is not permissible. The basis of rejection as per the impugned order is that it is strictly in accordance with Punjab State Education Class III (School Cadre) Service Rules, 1978 as amended in 1995. The second contention of the petitioner was also rejected whereby she has been considered ineligible despite the fact that the last date for receipt of applications by issuance of corrigendum stood extended to 31.8.2006 yet her detailed marks card dated 20.8.2006 has been rejected. Respondent No.2 while rejecting her claim has observed as under:- “The last date for submitting the applications for the aforementioned posts in response to the said advertisement was 10.7.2006 which was later on extended upto 31.8.2006. As per the condition No.10 in CWP No. 13239 of 2007 { 5 } the Advertisement No.1/2006, a candidate must possess requisite academic and professional qualifications on or before the last date of submission of applications, which was 31.8.2006 in the present case. The petitioner has passed the examination of Bachelor of Education, one of the essential qualifications, in the month of September, 2006 i.e. after the date of determining the eligibility of a candidate in the present which was 31.8.2006. The petitioner has indicated herself as “Appeared” in the said examination while submitting her applications for the aforementioned posts. Thus it becomes apparent that the petitioner was not in possession of the requisite qualifications on the last date of submitting the applications i.e. 31.8.2006.” The third submission of the petitioner, that she did not belong to creamy layer and her Backward Class certificate did not suffer from any legal infirmity, was also rejected by observing as under:- “.................... The claim of the petitioner for the aforesaid posts under the category of Backward Class (Female) has not been found to be sustainable for the reasons that the Backward Class certificate submitted by the petitioner at the time of scrutiny of the original documents, dates back to 6.5.2005 i.e.prior to the CWP No. 13239 of 2007 { 6 } issuance of the Government instructions dated 17.8.2005 pertaining to the exclusion of creamy layer from the benefit of reservation meant for the candidates belonging to the category of Backward Class. Vide the said Government instructions the ceiling of Annual Family Income of a candidate for the purpose of including a candidate into the creamy layer, thus rendering him/her in eligible for getting the benefit of reservation for the Backward Class candidates, has been increased to Rs.2.50 lacs from the existing limit of Rs.1 lac which was earlier fixed vide Government instructions dated 17.1.1994. The petitioner has submitted the Backward Class (BC) certificate issued on the basis of Government instructions dated 17.1.1994. Thus, the petitioner has failed to prove to the satisfaction of the competent authority that she does not belong to the creamy layer and as such is entitled for the benefit of reservation for Backward Class candidates. The Backward Class certificate submitted by the petitioner on the day of scrutiny of original documents, was not valid as a period of more than one year has lapsed since its date of issuance hence the same was not in conformity with the Government instructions issued from time to time on this issue. The instructions of the Government of Punjab, CWP No. 13239 of 2007 { 7 } Department of Welfare (Reservation Cell) contained in letter No.1/41/93-RC-1/459 dated 17.1.1994 read with instructions vide letter No.1/41/93-RC-1/1597 dated 17.8.2005 stipulate that income/wealth statement of the last three consecutive years has to be considered to eliminate the creamy layer, which was impossible in case of an old certificate. Moreover, Backward Class is not a caste, but a class and that there can be a frequent mobility into or out of Backward Class due to application of creamy layer condition, and income/wealth test for which last three consecutive years have to be seen, the candidate was under obligation under law to produce the latest Backward Class certificate as per the aforesaid instructions......................” Mr.Kang, learned counsel for the petitioner has made following submissions before us:- (a) The petitioner was fully eligible as per Clause 10 of the advertisements dated 11.6.2006 and 27.10.2006 (Annexure P-4 and P-7 respectively). According to the learned counsel, a corrigendum was issued (Annexure P-5), which would result into alteration of the date of eligibility because according to para 2 of the corrigendum the last date of application was extended to 31.8.2006. On the aforementioned basis, Mr.Kang has submitted that the B.Ed. certificate issued to the petitioner on 20.8.2006 (Annexure P-1) can CWP No. 13239 of 2007 { 8 } not be ignored and it is sufficient to declare the petitioner as eligible. Mr.Kang has also submitted that in any case the name of the petitioner cannot be ignored from consideration with respect to the advertisement issued on 27.10.2006 (Annexure P-7) for which she has applied Online for the post of Science/Mathematics Mistress because in the aforementioned advertisement the applications were to be submitted on all day during 29.10.2006 to 11.11.2006. (b) The Backward Class certificate dated 6.5.2005 (Annexure P-2) has made it absolutely clear in para 3 that the petitioner did not belong to creamy layer as per column No.3 of the Schedule appended to the instructions issued by Government of India, Department of Personal and Training dated 8.9.1993. According to the learned counsel the instructions issued on 17.8.2005 (Annexure R-2) did not bring any change except the fact that those who had income of Rs.2.50 lacs or above would be considered to be covered by creamy layer. Such like candidates were not to fall in the category of Backward Class. Learned counsel has pointed out that under the old instructions dated 8.9.1993, the income slab of creamy layer was Rs.One lac or above and it was enhanced by the later instructions dated 17.8.2005 to Rs.2.5 lacs or above. From the change of definition of creamy layer the petitioner would not suffer any disability because she was declared by competent authority to be covered by instructions dated 8.9.1993 when certificate was issued to her. The income of her parents was CWP No. 13239 of 2007 { 9 } less than Rs.One lac and she did not belong to creamy layer. Learned counsel has further maintained that if a person exceeding income of Rs.2.50 lacs is to be covered by creamy layer and a person who has income less than Rs.2.50 lacs is not to be covered by creamy layer then the petitioner who had certificate of income which is less than Rs.One lac would surely not be covered or hit by the later instructions. Ms.Charu Tuli, learned State counsel has pointed out that the impugned order dated 25.7.2007 (Annexure P-12) has been amended and a corrected copy was sent to the petitioner. She has drawn our attention to corrected copy Annexure R-1 where the date of eligibility of academic and professional qualifications has been corrected with reference to cut off date as 10.7.2006 instead of 31.8.2006 as is reflected in the impugned order ( Annexure P-12). In other words her contention seems to be that the petitioner was required to fulfil her professional and academic qualifications as on 10.7.2006 and, therefore, she was not eligible because she acquired B.Ed. qualification on 20.8.2006. Learned State counsel has also maintained that the certificate of Backward Class produced by the petitioner is in accordance with the old instructions, whereas, new instructions have been issued on 17.8.2005 (Annexure R-2). After hearing learned counsel for the parties at a considerable length we find that this writ petition deserves to succeed. The undisputed facts are that after the initial advertisement CWP No. 13239 of 2007 { 10 } issued on 11.6.2006 (Annexure P-4) an other advertisement was issued on 27.10.2006 (Annexure P-7). It would be appropriate to make reference to Clause 10 of the first advertisement, which reads thus:- “10. The candidate should possess prescribed Educational Qualification and Professional Qualification for the post applied for on or before the last date of receipt of application.” A perusal of the aforementioned clause would show that a candidate is required to possess professional and educational qualification for the post of Master/Mistress in the subjects of Science and Mathematics on the last date fixed for receipt of applications, which is 10.7.2006. Likewise in the advertisement dated 27.10.2006 Clause 10 is in the same terms. The dates for sending online applications are 29.10.2006 to 11.11.2006. After issuance of first advertisement a corrigendum was also issued. In Clause (ii), the educational and professional qualifications are required to be read differently than the one described in the advertisement dated 11.6.2006. Likewise in para 2, the last date for receipt of application has been extended to 31.8.2006. Both Clause (ii) and para 2 are reproduced herein below:- “(ii) The educational and professional qualification for the posts of Mathematics Master/Mistress may be read as “Graduate with Mathematics as one of the elective CWP No. 13239 of 2007 { 11 } subject in Graduation with B.Ed.” instead of 'B.A./B.Sc. with Mathematics as one of elective subject with B.Ed.” “2. In view of above para eligible candidates can send their applications for 700 posts of Master/Mistress' and 600 posts of 'Mathematics Master/Mistress' and the posts reserved for Scheduled Caste (ESM), Scheduled Caste (Sportsmen/women) and Backward Class (ESM) in all categories to The Secretary, Subordinate Services Selection Board, Punjab, SCO No.156-160, Sector 8-C, Chandigarh in accordance with the procedure laid vide advertisement No.1/2006 published in the 'Daily Ajit' dated11.6.2006, 'The Tribune' dated 12.6.2006 and 'Punjabi Tribune' dated 13.6.2006, by Regd.Post, not later than 31.8.2006. Other conditions pertaining to age i.e. 18 to 37 years as on 1.1.2006 (except relaxation cases), possessing of required educational and professional qualification on or before 10.7.2006 and selection criteria etc. in respect of such candidates shall remain unchanged and shall be considered as per conditions of advertisement ibid i.e. 1/2006.” It is evident that by the corrigendum the applications for 700 posts and 600 posts of Mathematics Master/Mistress were invited and the date was extended to 31.8.2006. Once the last date for submission of applications has been extended to 31.8.2006 then CWP No. 13239 of 2007 { 12 } it follows that the eligibility as per Clause 10 would automatically be considered as on 31.8.2006. The detailed marks card of the petitioner in respect of her B.Ed. examination is dated 20.8.2006 (Annexure P-1) and accordingly she has to be considered as eligible. Apart from above, the candidature of the petitioner for appointment to the post in pursuance to advertisement dated 27.10.2006 has to be considered as she has acquired the B.Ed. qualification on 20.8.2006. Therefore, she has to be considered against the posts of Masters/Mistress in Mathematics and Science advertised on 27.10.2006. The petitioner must also be regarded as a candidate belonging to Backward Class category because the certificate dated 6.5.2005 (Annexure P-2) can not be discarded on a mechanical basis that it has been issued prior to the issuance of Government instructions dated 17.8.2005 (Annexure R-2). It would be apposite to extract the relevant portion of the instructions to comprehend the consequences brought about by the change, which reads thus:- “ I am directed to refer to the Punjab Government letter No.1/41/93-RC-1/459 dated 17.1.1994 and No.8/144/93- WC-2/7017 dated 27.9.1995 on the subject noted above and to say that sons and daughters or persons having gross annual income of Rs.1 lakh or above for a period of three consecutive years fall within the creamy layer and are not entitled to get the benefit of reservation provided CWP No. 13239 of 2007 { 13 } to the Backward Classes/Other Backward Classes. The Government has decided now to raise the income limit from Rs.1 lakh to Rs.2.5 lakh for determining the creamy layer amongst the Bcs/OBCs.” A perusal of the aforementioned para shows that sons and daughters of persons having gross annual income of Rs.One lac or above for a period of three consecutive years used to be covered by the expression 'creamy layer' and were not to be entitled to get the benefit of reservation for Backward Classes/Other Backward Classes. This was the position under the instructions issued on 8.9.2003, 17.1.2004 and 27.7.2005. However, the income limit was raised by the instructions dated 17.8.2005 (Annexure R-2) from Rs.One lac to Rs.2.50 lacs. In other words earlier the sons and daughters of those persons who have Rs.One lac or more income were excluded from the benefit of reservation of Backward Classes or Other Backward Classes, whereas, that limit was later raised and those who had income of Rs.2.50 lacs would loose the benefit of reservation for Backward Classes or Other Backward Classes. The net result, therefore, is that those who were not covered by the expression 'creamy layer' earlier would continue to be beneficiary because their income is less than Rs.One lac. The certificate dated 6.5.2005 (Annexure P-2) issued to the petitioner in unequivocal terms states as under:- “This is also to certify that she does not belong to the CWP No. 13239 of 2007 { 14 } person/sections (creamy layer) mentioned in column 3 of the Schedule to the Government of India, Department of Personal and Training O.M.No.36012/22/93 Estt.(SCT) dated 8.9.1993.” The aforementioned position in any case has to be accepted for another reason also. Para 5 of the advertisement dated 27.10.2006 (Annexure P-7) postulates that the candidates, who are seeking reservation, were required to produce their certificates by the competent authority before issuance of appointment letters. Therefore, even the certificate dated 22.12.2006 (Annexure P-3) could not have been ignored. For the reasons stated above, this petition succeeds. The impugned order dated 25.7.2007 (Annexure P-12) as well as the corrected order dated 10.3.2008 (Annexure R-1) are hereby quashed. The petitioner is declared eligible and is also held entitled to the benefit of reservation for Backward Class category. It is admitted position that the petitioner has secured 73.463% marks in the Backward Class (Female) category which are higher than the last candidate, who has secured 69.933% marks. Accordingly, the respondents are directed to issue appointment letter to the petitioner for the post of Mathematics Mistress in respect of the post advertised on 27.10.2006 with effect from the date a person lower in merit than her, has been issued appointment letter. These directions shall be given effect within a period of three weeks from today. However, we CWP No. 13239 of 2007 { 15 } make it clear that the petitioner shall not be entitled to any arrears of salary but would be entitled to all other benefits. The writ petition stands disposed of in the above terms. A copy of this order be given dasti on payment of usual charges. (M.M.KUMAR) JUDGE (SABINA) JUDGE July 24, 2008 anita