Hon'ble Ifaqat Ali Khan,J.
1. Heard Sri Ashok Singh, learned counsel for petitioners and Sri R.K. Saxena, Advocate for applicant-respondent.
2. This writ petition under Article 226 of the Constitution of India has been filed by Union of India and its authorities being aggrieved by judgment and order dated 23.08.2013 passed by Central Administrative Tribunal, Additional Bench at Allahabad (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "OA") No. 1913 of 2010. Tribunal has allowed OA and directed petitioners to consider applicant-respondent, Varun Kumar Niraj for appointment as Other Backward Class (hereinafter referred to as "OBC") candidate based on caste certificate dated 19.03.2004 and if he is meritorious and otherwise eligible, to select him in the category of OBC, pursuant to recruitment notification dated 05-11.04.2008, after verifying the fact that applicant-respondent does not fall in creamy layer on the crucial date, i.e., closing date for the posts in terms of advertisement for Combined Graduate Level Examination, 2008 (hereinafter referred to as "CGLE, 2008").
3. Facts, in brief, giving rise to present writ petition are that Staff Selection Commission (hereinafter referred to as "SSC") conducted CGLE, 2008 and for that purpose published an advertisement in Employment News dated 05-11.04.2008. Aforesaid examination was conducted for various Group 'B' and 'C' non-gazetted posts, i.e., Inspector (Central Excise)/Inspector (Preventive Officer)/ Inspector (Examiner) in Custom Houses; Assistant for Offices/ Organization like Central Secretariat Service, Railway Board, Election Commission of India, Central Vigilance Commission etc.; Inspector of Income Tax; Assistant Enforcement Officers; Divisional Accountant and Auditors/ Junior Accountants etc. Reservation for various categories as per instructions of Department of Personnel and Training (DOPT) was made applicable in aforesaid advertisement. In respect of OBC aforesaid advertisement for the purpose of age relaxation and reservation said as under:
"Other Backward Class (OBC) for the purpose of AGE RELAXATION AND RESERVATION will mean "Persons of OBC category not belonging to the Creamy Layer" as defined in Government of India, Department of Personnel & Training OM No. 36012/22/93-Estt. (SCT) dated 08.09.1993 and modified vide Govt. of India Deptt. of Personnel and Training OM No. 36033/3/2004-Estt(Res) dated 09.03.2004."
4. The last date for submission of application form was 02.05.2008. Applicant-respondent applied in aforesaid recruitment by submitting application dated 15.04.2008. Photocopy of application form has been placed on record of this writ petition on pages 45 to 47. On page 48 is the caste certificate issued by Sub-Divisional Officer, Vikramganj (Rohtas), which is dated 19.03.2004 certifying applicant-respondent's caste as 'Yadav' (OBC). He was allotted Roll No. 2411507. SSC took the view that caste certificate dated 19.03.2004 submitted by applicant-respondent was not as per the format prescribed in Annexure-7 of advertisement and, therefore, treated applicant-respondent as a General category candidate. Admit card was issued to applicant-respondent mentioning his category as General candidate. Applicant-respondent then made a complaint to National Commission for Backward Classes that though he belong to OBC category but has been treated as a General candidate. Applicant-respondent secured 110 marks and could not qualify in General category though in OBC category last selected candidate had secured 105 marks. Since SSC treated applicant-respondent as General candidate, he was not selected. Applicant-respondent claiming that he actually submitted caste certificate issued by Deputy Collector, Rohtas (Sasaram) on 07.04.2008, copy whereof is on page 61 of paper book, therefore, he was wrongly denied right of consideration in reserved category of OBC, filed OA No. 1913 of 2010, seeking following reliefs:
"(I) To issue an order, rule or direction in the nature of mandamus direction the respondents (specially the respondent No. 3) to declare the applicant's result of Combined Graduate Level (Main) Examination, 2008, baring Roll No. 2411507 and Ticket No. 001569, treating him as an OBC candidate.
(II) To issue an order, rule or direction in the nature of mandamus directing the respondent No. 3 to omit work 'UR' from the applicant's application form and treat the category code (s) as 006 in favour of the applicant as he belongs to OBC Category, by caste Yadav/Aheer as has been mentioned by the applicant in his application form according to the certificate of the OBC issued by Ziladhikari, Rohtash, Sasaram, Bihar.
(III) To issue an order, rule or direction in the nature of mandamus directing the respondents (specially the respondent no. 3) to compensate the petitioner for the damages (mentally and physically) caused to him due to illegal action of respondent no. 3 in not treating him as an OBC candidate and declaring his result treating him as "UR" candidate.
(IV) To issue an order, rule or direction, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.
(V) To award the cost or original application in favour of the applicant."
5. It was stated in OA that there was a mistake on the part of SSC in treating him as General candidate though he has submitted requisite certificate. He was issued admit card treating him as a General candidate and forced to appear in preliminary examination held on 27.07.2008. Thereafter another admit card was issued for appearing in main examination held on 04.01.2009, 10.01.2009, 11.01.2009 and 17.01.2009. There also he was treated as General candidate. Again applicant sought correction in his category by submitting application dated 02.01.2009 but nothing was done. A third application was submitted by him on 03.05.2010. However, applicant has secured 110 marks which is below the last selected candidate in General category though in OBC category marks obtained by last selected candidate is 105, hence applicant is entitled to selection. Applicant-respondent also made complaint to National Commission of Backward Classes and then filed application under Right to Information Act in response whereto, he received a reply that he was considered as General category candidate since he did not submit OBC Creamy Layer certificate in prescribed format. He also received copy of his application form from SSC containing OBC certificates dated 19.03.2004 and 07.04.2008 and still SSC failed to make any correction.
6. Tribunal has considered question, "whether caste certificate dated 07.04.2008 was appended by applicant to application form or not". Tribunal has observed that in reply to information sought under Right to Information Act, application form and its enclosures were supplied to applicant-respondent which were in four pages, numbered as 1/4, 2/4, 3/4 and 4/4 and fourth page was caste certificate dated 19.03.2004 which shows that probably caste certificate dated 07.04.2008 was not submitted by applicant alongwith OA. Still Tribunal has gone to hold that said certificate was in possession of applicant-respondent and it was admittedly made available to SSC on 16.07.2008, therefore, SSC ought to have treated applicant-respondent in the category of OBC and selection should have been made.
7. Learned counsel for petitioners contended, when Tribunal has recorded a finding that claim of applicant-respondent that caste certificate dated 07.04.2008 was submitted alongwith application form, was not proved, there was no justification on the part of Tribunal for allowing OA and directing SSC to treat applicant-respondent in the category of OBC for the purpose of aforesaid recruitment. Reliance is placed by learned counsel for petitioners on a Full Bench decision of this Court in Rajendra Patel Vs. State of U.P. and another, 2015(8) ADJ 219.
8. However, in the present case we find certain different facts and, therefore, we do not find any justification to interfere with the judgment of Tribunal.
9. It is not in dispute that last date for submission of application form was 02.05.2008. It is also evident from counter affidavit filed by applicant-respondent that alongwith his application dated 16.07.2008 which was received in the office of SSC on the same day, applicant filed photocopy of caste certificate dated 07.04.2008 which is admittedly in prescribed format. SSC did not cancel his candidature in the category of OBC but only provisionally treated him in General category. This is evident from letter dated 06.05.2010 issued by Sri Ramesh Chand, Assistant Director, SSC requiring applicant to furnish a copy of caste certificate in prescribed format issued on or before 02.05.2008 within ten days. Relevant extract of letter dated 06.05.2010 reads as under:
"2/1/2009-ND1 Staff Selection Commission Deptt. Of Peronnel & Training Block No. 12, CGO Complex Lodhi Road, New Delhi-3, Dated 6.5.2010 M E M O R A N D U M Subject:-Combined Graduate level (Scheme 'B') Examination, 2008-
Submission of documents -(WITHHELD IN FINAL RESULT) With reference to his/her candidature he/she is directed to furnish the following certificates/documents in support of his/her claim within in 10 days failing which his/her candidature is liable for cancellation.:-The personnel visiting time in SSC is 2.00 P.M. to 4.00 P.M on all working day (Saturday is holiday).
.....
4. OBC Certificate not furnished in Central Govt. Performa, as per Notice issued as on or before 02.05.2008. Please furnish the same as per Performa enclosed. The OBC certificate issued beyond 02.05.2008 is not acceptable." (emphasis added)
10. The candidature was cancelled by SSC vide order dated 30.03.2011 on the ground that applicant-respondent failed to submit caste certificate in prescribed form either on the date of interview, i.e., 07.12.2010 or even thereafter within ten days. Relevant extract of order dated 30.03.2011 reads as under:
"MEMORANDUM Subject:-Combined Graduate Level Exam., 2010 (SI in CPO)-Cancellation of candiduate-reg.
Shri Sunil Kumar Ray, Roll No. 3206022321 as candidate of above examination is hereby informed that during scrutiny of his dossier, it has been detected that on the day of interview viz. 07/12/2010 he was not able to submit his proper OBC certificate & that he had given undertaking that he will submit the proper OBC certificate within 10 days of interview, but the same has not been received in this office even after lapse of considerable time. Moreover, he is overage as UR candidate.
2. In view of above, his candidature for the above examination is hereby cancelled & he forfeits his claim of appointment based on the result of above examination.
3. This issues with the approval of Regional Director (CR) and without any prejudice." (emphasis added)
11. Tribunal has recorded a finding that alongwith letter dated 16.07.2008 caste certificate dated 07.04.2008 was submitted with SSC, therefore, cancellation of applicant-respondent's candidature in OBC category on the ground that he did not submit appropriate caste certificate till the date of interview, i.e., 07.12.2010 or within ten days thereafter is apparently contrary to record.
12. Condition of admitting caste certificate after last date of submission of application form was relaxable at the discretion of Commission. It is also mentioned in Note 1 of Clause 5(F)(iv) which has been quoted by Tribunal in para 11 of judgment, which reads as under:
"Candidates claiming the benefit of reservation under OBC category not covered under the Creamy Layer must ensure that they furnish the OBC Certificate duly signed by the competent authority before or by the Closing Date in the FORMAT prescribed by the Commission in the Notice as Annexure-VII. Any deviation of the OBC Certificate and will lead such application to be treated under General (UR) category. Representations from candidates for reconsideration of their category at subsequent stages of the recruitment will not be entertained. The Commission will however have the discretionary power to reduce/walve off any of the provisions in exceptional and deserving cases." (emphasis added)
13. SSC's own letters dated 06.05.2010 and 30.03.2011 shows that there was no rejection of category of applicant-respondent in OBC since he was given opportunity to submit caste certificate in prescribed format within 10 days vide letter dated 06.05.2010; thereafter even on the date of interview i.e., 07.12.2010, and, further within ten days from the date of interview, as is evident from letter dated 30.03.2011. In Full Bench judgment in Rajendra Patel (supra) the facts were otherwise and there was no such scope of relaxation or concession, therefore, Full Bench judgment is not applicable in the case in hand.
14. In the present case, basic premise on the part of SSC that on the date of interview, i.e., 07.12.2010 or even thereafter within ten days applicant-respondent had not submitted caste certificate in prescribed format is wrong. Tribunal has found that caste certificate dated 07.04.2008 which was in the prescribed format and issued to applicant before last date of submission of application form was submitted in the office of SCC on 16.07.2008, therefore, he was illegally denied right of consideration in the reserved category of OBC and Tribunal, therefore, in our view has rightly allowed OA. The contention advanced by learned counsel for petitioners, therefore, cannot be accepted.
15. Writ petition lacks merit. Dismissed with cost of Rs. 5,000/-.
Order Date :- 29.5.2018 AK