IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1158 of 2009 Judgment reserved on 17.8.2010 Date of decision: 31. 8. 2010 Bimla Devi ….. Petitioner. Vs. State of H.P. and others …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. Lovneesh Kanwar, Advocate. For the Respondents : Mr. R.K.Sharma, Sr. Additional Advocate General, for respondents No. 1 to 5. Mr. Romesh Verma, Advocate for respondent No.6. Justice Kuldip Singh, Judge This petition has been filed for quashing orders dated 25.9.2008 and 17.4.2008 with further prayer that a direction be given to respondent No.4 to give two marks to petitioner as she belongs to reserved category and issue appointment order to her as Anganwari Worker in Anganwari Centre, Lower Koon under ICDS Block Dharampur, Tehsil Sarkaghat, District Mandi, H.P. 2. The further case of the petitioner is that she applied for the post of Anganwari Worker under reserved category. The interviews were held on 17.8.2007 and 6th respondent was selected as Anganwari Worker. The petitioner filed an appeal before the 3rd respondent against ________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? the selection of 6th respondent. It was alleged that petitioner belongs to OBC category and interview committee did not give her marks for this even though two marks were provided for reserved category candidates. The 6th respondent belongs to General category. 3. The appeal was dismissed on 17.4.2008 by 3rd respondent on the ground that OBC certificate produced by the petitioner was issued on 11.3. 2004 and was valid only for two years. The petitioner submitted that 4th respondent was required to check the certificate before the interview but 4th respondent did not inform the petitioner regarding any defect in the certificate. 4. The petitioner filed further appeal before the 2nd respondent against order dated 17.4.2008. The 2nd respondent dismissed the appeal on 25.9.2008. It was observed by 2nd respondent in the order that petitioner had taken the ground that she belongs to ‘Tarkhan’ caste whereas in the appeal she has stated that she belongs to S.C. category. It was also observed by 2nd respondent that petitioner has failed to produce certificate of reserved category before the selection committee. The submission of two different caste certificates creates doubt regarding the case of the petitioner and the appeal was dismissed by 2nd respondent. 5. It is the case of the petitioner that she was born in the Scheduled Caste family and as such by birth petitioner is Schedule Caste. The petitioner was married in ‘Tarkhan’ family, which falls under Other Backward Classes, so the petitioner had claimed to have acquired the status of Other Backward Class after marriage. 6. The petitioner belongs to Sub Tehsil Sandhole, District Mandi, she approached Tehsildar at Sub Tehsil Sandhole for issuing her OBC certificate after the decision of her appeal by 3rd respondent but the petitioner was told by Tehsildar, Sub Tehsil, Sandhole that no certificate of OBC category can be issued to the petitioner and only S.C. certificate can be issued. Therefore, S.C. certificate was produced before 2nd respondent. It has been submitted that both 3rd and 2nd respondents have not considered the case of the petitioner in the light of scheme/guidelines for engagement of Anganwari Workers/Helpers. 7. The respondents No.1 to 5 contested the petition by filing reply. In preliminary objections, the question of maintainability of the petition has been raised. It has also been submitted that petitioner had produced invalid certificate of OBC before the selection committee at the time of interview and S.C. certificate before Divisional Commissioner, Mandi during the course of hearing of the appeal. The petitioner did not submit valid certificate of reserved category before the selection committee. The two stands of the petitioner before 3rd respondent and 2nd respondent cast a shadow of doubt regarding the claim of the petitioner. On merits, it has been submitted that the petitioner could not produce fresh certificate of OBC before the selection committee at the time of interview so the selection committee rightly did not give the marks for OBC category to the petitioner. The respondents No.1 to 5 prayed for dismissal of the petition. 8. The 6th respondent has also contested the petition by filing reply in which she has taken preliminary objections of concealment of material facts by petitioner, delay and laches. It has been submitted that 3rd respondent and 2nd respondent have rightly decided the matter against the petitioner. The petitioner on one hand has taken the stand that she belongs to OBC category but in appeal before the 2nd respondent she has taken the stand that she belongs to S.C. category. On merits, 6th respondent has prayed for dismissal of the petition. 9. We have heard the learned counsel for the parties. The State has also produced the record. The Clause 7 of the Scheme/Guidelines for engagement of the Anganwadi Workers/Helpers provides that two marks shall be given for SC/ST/OBC and those belonging to Ex-servicemen category/widow and ward of freedom fighter. Annexure P-3 is the mark-sheet of petitioner, 6th respondent, Rita Devi and Rachna Kumari, who have secured 7.50, 8.80, 7.70 and 7.40 marks respectively. The 6th respondent secured the highest marks, therefore, she was given the appointment. 10. The 3rd respondent dismissed the appeal of the petitioner on the ground that OBC certificate was given to petitioner herein but it was issued on 11.3.2004 and its validity is only for two years. It was held that OBC certificate issued to petitioner is not valid and, therefore, appeal of the petitioner was dismissed. The 2nd respondent held that petitioner herein has failed to submit certificate of reserved category before the selection committee. She has submitted two different categories certificates issued by same authority before 3rd respondent and 2nd respondent which casts a shadow of doubt on the part of Naib Tehsildar as well as petitioner herein and dismissed the appeal. It was observed that 6th respondent herein who was selected by the selection committee shall continue to work as such. 11. The perusal of record indicates that petitioner alongwith her application had submitted OBC certificate dated 11.3.2004 issued by the Executive Magistrate, Sandhole, Sub Tehsil Sandhole, District Mandi showing that she belongs to ‘Tarkhan caste’ which has been declared as Other Backward Class by the Government of Himachal Pradesh. The petitioner is wife of Ramesh Chand and Ramesh Chand is the son of Bhima who belongs to ‘Tarkhan community’ a Backward Class in Himachal Pradesh as per Annexure P-10. In certificate Annexure P-7, the petitioner has been shown Schedule Caste and daughter of Gulaba S/o Durgu belonging to ‘Lohar’ caste by birth. It is thus clear that the petitioner is not at fault for producing Scheduled Caste certificate on the basis of her birth and OBC certificate on account of her marriage in OBC family inasmuch as the competent authority had issued two such certificates in favour of petitioner. The OBC certificate of the petitioner was not considered as it was found more than two years old, the S.C. certificate was doubted by the 2nd respondent because it was in conflict with OBC certificate produced by the petitioner before the selection committee. In the Scheme/Guidelines, there is no indication regarding the validity period of OBC certificate. Since the petitioner by birth in disputably belongs to SC, in any case she should have been granted two marks. 12. The 6th respondent has relied on notification dated 4th October, 1999 wherein validity period of two years in respect of Creamy Layer certificates has been provided for the Other Backward Classes Category as notified on 24.10.1994, 27.6.1996, 10.12.1996 and 4.3.1999 on the condition that at the time of recruitment the Other Backward Classes candidates shall submit an affidavit duly attested by the authority authorized under the Indian Oaths Act, 1969 stating that his/her status has not been changed and he / she is not excluded from the category of Other Backward Classes on account of being covered under Creamy Layer. 13. On 13.7.2001 in supersession of all previous .notifications the Governor, Himachal Pradesh was pleased to declare ‘Tarkhan’ and others as Other Backward Classes in the State of Himachal Pradesh. The notification further provides that reservation in service for the notified communities as determined by the State Government from time to time will be available to the members of the Backward Classes subject to exclusion of classes/communities on the basis of creamy layer criteria specified in Annexure ‘A’. There is nothing in notification dated 13.7.2001 and Annexure ‘A’ referred in the notification that OBC certificate would remain valid only for two years. The validity of OBC certificate for two years as per instructions dated 4th October, 1999 is with respect to Other Backward Classes notified on 24.10.1994, 27.6.1996, 10.12.1996 and 4.3.1999. 14. The petitioner had applied under OBC category and submitted her OBC certificate. The 4th respondent did not point out any defect in OBC certificate of the petitioner at the time of submission of application. In case OBC certificate of petitioner was not proper atleast an opportunity should have been given to her to bring afresh OBC certificate but no such opportunity was given to her. In these circumstances, the selection committee has erred in not considering the application of the petitioner for Anganwari Worker under OBC category. 15. It is admitted case that no marks for OBC category were given to petitioner and in case two marks are given to her, then her position in the merit is number 1 inasmuch as she gets 7.50 + 2.00 = 9.50 marks. The 2nd and 3rd respondents erred in not appreciating the legal and factual position on record. In these circumstances, ignoring the claim of the petitioner for the post of Anganwari Worker and selection of 6th respondent as Anganwari Worker in Anganwari Centre, Lower Koon are not sustainable. The orders dated 25.9.2008 and 17.4.2008 passed by 2nd and 3rd respondents are quashed. The appointment of 6th respondent as Anganwari Worker in Anganwari Centre, Lower Koon under ICDS Block, Dharampur, Tehsil Sarkaghat, District Mandi is quashed. The 4th respondent is directed to give two marks to petitioner and give her appointment as Anganwari Worker in Anganwari Centre, Lower Koon under ICDS Block, Dharampur, Tehsil Sarkaghat, District Mandi in another four weeks from today. The petition is allowed on above terms. The pending applications, if any, are also disposed of. (Justice Kurian Joseph), Chief Justice August 31, 2010 (Justice Kuldip Singh), (GR) Judge.