Reserved
Court No. - 3
Writ Petition No. - 748 (S/B) of 2014
Shubham Gupta .... Petitioner
Versus
Indian Overseas Bank Office, Chennai & Ors .... Respondents
Hon'ble Shri Narayan Shukla,J.
Hon'ble Anant Kumar,J.
(Per Hon'ble Shri Narayan Shukla, J.)
Heard Mr. B.K. Singh, learned counsel for the petitioner as well as Mr. Vinay Shankar, learned counsel for respondent Nos.1 & 2, Mr. Anant Tewari, learned counsel for the respondent No.3 and Mr. Prashant Kumar Srivastava, learned counsel for the respondent No.4.
The petitioner has assailed the order dated 26.04.2014 issued by the respondent no.2-Bank, whereby the petitioner's candidature was rejected for non submission of Other Backward Class certificate in the prescribed format.
The Institute of Banking Personnel Selection1 had advertised the post of Probationary Officers/Management Trainees. The petitioner had applied against the said advertisement. He had claimed the benefit of reservation provided to the Other Backward Class. As per terms of the advertisement, the caste certificate issued by the competent authority in the prescribed format as stipulated by the Government of India in case SC/ST/OBC category candidate was to be produced at the time of interview. The petitioner participated in the online examination on 19.10.2013 and he was declared successful since he had scored 62 marks. On 04.01.2014, he had participated in interview in the Zonal Office of Bank of Baroda, Eastern U.P. Zone, Lucknow. At the time of interview he provided all the requisite documents including Other Backward Class certificate but he could not provide the caste certificate in the format prescribed by the Government of India rather he provided the caste certificate in the format prescribed by the Government of Uttar Pradesh.
It has been stated that on 08.01.2014, the petitioner had provided the caste certificate in the prescribed format to one officer of IBPS, who happened to be a document collector namely Ankita and on 11.01.2014, he had also sent E-mail to the IBPS. In the month of March, 2014, final result was declared by the respondent no.3. The petitioner was selected since he had scored more than cut off marks. He was provisionally allotted Indian Overseas Bank. Against the vacancies of Other Backward Class categories, since the petitioner had failed to provide caste certificate in the prescribed format at the time of interview, his selection was cancelled later on vide E-mail dated 26.04.2014, whereas there had been about 37 selected candidates, who had not provided the necessary documents nevertheless they had been given opportunity to provide the requisite documents later on. The petitioner has claimed that his selection was cancelled without providing opportunity of hearing, accordingly, it has been stated that the order impugned is arbitrary as well as discriminatory.
In reply, the respondents-Bank has submitted that as per instructions of the IBPS, Mumbai for conduct of common interview of IBPS CWE PO/MT III, the candidates should have to produce Other Backward Class certificate in the prescribed format bearing the non-creamy layer clause issued on or after 31.03.2013. Some of the candidates, who did not submit the requisite documents pertaining to Other Backward Class with non-creamy layer clause on the prescribed formats, had been denied from appearing in the interview, they had challenged the action of Nodal Banks for not allowing them for interview for want of caste certificate before this Court through Writ-A No.8868 of 2014. This Court dismissed the writ petition vide judgment and order dated 03.03.2014 with the following observations:
"It is admitted on record that the petitioners had failed to produce the relevant certificates issued in prescribed format signed by the competent authority at the time of the interview in terms of the conditions of the advertisement as well as conditions mentioned in the call letters. Therefore, it cannot be said that the Selection Board has committed any error in not considering the petitioners at the stage of the interview. We find no illegality in the action so taken so as to warrant any interference under article 226 of the Constitution of India."
Moreover, one Shri Shailendra Kumar Prajapati had also filed a writ petition being Writ-A No.20547 of 2014 on the same very ground since his candidature was rejected for non submission of Other Backward Class certificate at the time of interview. The said writ petition was dismissed by this Court vide judgment and order dated 09.04.2014 holding therein that the candidates were strictly to comply with the instructions of the advertisement. Similarly the others writ petition were filed before the Madras High Court at Madurai Bench being Writ Petition (MD) Nos.6147 to 6150 and also M.P. (MD) Nos.1, 1, 1 and 1 of 2014, which too were dismissed on merit.
It was put forth that the present writ petition is also based on the same set of facts, therefore, there is no reason for this Court to form any different opinion. It is also submitted that the petitioner had been given seven days' time by the Nodal Bank of the Bank of Baroda vide letter dated 03.07.2014 to submit his Other Backward Class certificate on the prescribed format from the date of completion of interview i.e. 04.01.2014, but he failed to submit the same within the period stipulated therefor rather he submitted the certificate on 31.05.2014 i.e. beyond the period provided therefor.
Through supplementary counter affidavit, the respondents had submitted that against the interim order passed by this Court, the answering respondents had filed a Special Leave Petition before Hon'ble the Supreme Court. The Supreme Court kept in abeyance the interim order passed by this Court. They had cited a case i.e. Bedanga Talukdar v. Saifudaullah Khan2 in which Hon'ble the Supreme Court held that "there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement". The Supreme Court further held that "the relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India".
He further stated that the wrong committed in any case cannot be permitted to be repeated as has been held by the Supreme Court in the case of Union of India v. International Trading Company3. He has also cited a decision of the Supreme Court rendered in the case of State of Orissa & another v. Mamata Mohanty4 in which Hon'ble the Supreme Court held that "It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief".
In reply, the petitioner has blamed the officer concerned to whom, he had provided the caste certificate but she had not forwarded it to the IBPS, however, he has failed to produce any such receipt as to establish the submission of caste certificate with the submissions that when did he ask the receipt, he was replied that there was no procedure for giving any such receipt but the facts remains that the caste certificate was not made available to the IBPS within the time provided therefor.
All the questions which have been raised by the petitioner in the present writ petition have already been dealt with by the Supreme Court in the cases referred to above but the Supreme Court had declined to accept any certificate provided after the date fixed therefore.
After making the aforesaid rival submissions, ultimately the petitioner cited a recent decision of the Supreme Court given in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & another5 in which the Supreme Court had framed the question for consider as under:
"Whether a candidate who appears in an examination under the O.B.C. category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the O.B.C. category or not."
To answer the aforesaid question, the Supreme Court considered the decision of the Delhi High Court rendered in the case of Pushpa v. Government of NCT of Delhi & others6 and held that the decision rendered in the case of Pushpa (supra) is in conformity with the proposition of law laid down by this Court to arrive at this conclusion. The Supreme Court had considered the law laid down by its Constitution Bench in the cases of Indra Sawhney v. Union of India7 as well as Valsamma Paul v. Cochin University & others8 and held that the Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge in the case of Pushpa (supra) without noticing the binding precedent on the question laid down by the Constitution Benches of the Supreme Court in the cases of Indra Sawhney (supra) as well as Valsamma Paul (supra) wherein the Supreme Court after interpretation of Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society.
Thus, before us, there are two views of the Supreme Court on the matter.
The first one as propounded by the Supreme Court in the case of Bedanga Talukdar (supra) is that "there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement". The Supreme Court further held that "the relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India".
The second view as propounded by the Supreme Court in the case of Raj Kumar Gijroya (supra) is that the candidature of those candidates, who belonged to the Scheduled Caste and Scheduled Tribes categories, could not be rejected simply on account of late submission of caste certificate. In the case of Pushpa (supra), which has been upheld by the Supreme court one another case of Tej Pal Singh & Ors v. Govt. of NCT of Delhi9 has been referred to in which the Delhi High Court held that "if a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category".
The latest view accepted by the Supreme Court in the case of Raj Kumar Gijroya (supra) permits to accept the caste certificate even if it was submitted after the cut of date fixed therefor before publication of select list. Therefore, to our understanding, we proceed to accept the latest view of the Supreme Court laid down in the case of Raj Kumar Gijroya (supra) and quash the order impugned dated 26.04.2014 (Annexure No.1 to the writ petition).
The writ petition stands allowed.
Order Date :- 8.7.2016
Anupam S/-
Court No. - 3
Writ Petition No. - 748 (S/B) of 2014
Shubham Gupta .... Petitioner
Versus
Indian Overseas Bank Office, Chennai & Ors .... Respondents
Hon'ble Shri Narayan Shukla,J.
Hon'ble Anant Kumar,J.
(Per Hon'ble Shri Narayan Shukla, J.)
Heard Mr. B.K. Singh, learned counsel for the petitioner as well as Mr. Vinay Shankar, learned counsel for respondent Nos.1 & 2, Mr. Anant Tewari, learned counsel for the respondent No.3 and Mr. Prashant Kumar Srivastava, learned counsel for the respondent No.4.
The petitioner has assailed the order dated 26.04.2014 issued by the respondent no.2-Bank, whereby the petitioner's candidature was rejected for non submission of Other Backward Class certificate in the prescribed format.
The Institute of Banking Personnel Selection1 had advertised the post of Probationary Officers/Management Trainees. The petitioner had applied against the said advertisement. He had claimed the benefit of reservation provided to the Other Backward Class. As per terms of the advertisement, the caste certificate issued by the competent authority in the prescribed format as stipulated by the Government of India in case SC/ST/OBC category candidate was to be produced at the time of interview. The petitioner participated in the online examination on 19.10.2013 and he was declared successful since he had scored 62 marks. On 04.01.2014, he had participated in interview in the Zonal Office of Bank of Baroda, Eastern U.P. Zone, Lucknow. At the time of interview he provided all the requisite documents including Other Backward Class certificate but he could not provide the caste certificate in the format prescribed by the Government of India rather he provided the caste certificate in the format prescribed by the Government of Uttar Pradesh.
It has been stated that on 08.01.2014, the petitioner had provided the caste certificate in the prescribed format to one officer of IBPS, who happened to be a document collector namely Ankita and on 11.01.2014, he had also sent E-mail to the IBPS. In the month of March, 2014, final result was declared by the respondent no.3. The petitioner was selected since he had scored more than cut off marks. He was provisionally allotted Indian Overseas Bank. Against the vacancies of Other Backward Class categories, since the petitioner had failed to provide caste certificate in the prescribed format at the time of interview, his selection was cancelled later on vide E-mail dated 26.04.2014, whereas there had been about 37 selected candidates, who had not provided the necessary documents nevertheless they had been given opportunity to provide the requisite documents later on. The petitioner has claimed that his selection was cancelled without providing opportunity of hearing, accordingly, it has been stated that the order impugned is arbitrary as well as discriminatory.
In reply, the respondents-Bank has submitted that as per instructions of the IBPS, Mumbai for conduct of common interview of IBPS CWE PO/MT III, the candidates should have to produce Other Backward Class certificate in the prescribed format bearing the non-creamy layer clause issued on or after 31.03.2013. Some of the candidates, who did not submit the requisite documents pertaining to Other Backward Class with non-creamy layer clause on the prescribed formats, had been denied from appearing in the interview, they had challenged the action of Nodal Banks for not allowing them for interview for want of caste certificate before this Court through Writ-A No.8868 of 2014. This Court dismissed the writ petition vide judgment and order dated 03.03.2014 with the following observations:
"It is admitted on record that the petitioners had failed to produce the relevant certificates issued in prescribed format signed by the competent authority at the time of the interview in terms of the conditions of the advertisement as well as conditions mentioned in the call letters. Therefore, it cannot be said that the Selection Board has committed any error in not considering the petitioners at the stage of the interview. We find no illegality in the action so taken so as to warrant any interference under article 226 of the Constitution of India."
Moreover, one Shri Shailendra Kumar Prajapati had also filed a writ petition being Writ-A No.20547 of 2014 on the same very ground since his candidature was rejected for non submission of Other Backward Class certificate at the time of interview. The said writ petition was dismissed by this Court vide judgment and order dated 09.04.2014 holding therein that the candidates were strictly to comply with the instructions of the advertisement. Similarly the others writ petition were filed before the Madras High Court at Madurai Bench being Writ Petition (MD) Nos.6147 to 6150 and also M.P. (MD) Nos.1, 1, 1 and 1 of 2014, which too were dismissed on merit.
It was put forth that the present writ petition is also based on the same set of facts, therefore, there is no reason for this Court to form any different opinion. It is also submitted that the petitioner had been given seven days' time by the Nodal Bank of the Bank of Baroda vide letter dated 03.07.2014 to submit his Other Backward Class certificate on the prescribed format from the date of completion of interview i.e. 04.01.2014, but he failed to submit the same within the period stipulated therefor rather he submitted the certificate on 31.05.2014 i.e. beyond the period provided therefor.
Through supplementary counter affidavit, the respondents had submitted that against the interim order passed by this Court, the answering respondents had filed a Special Leave Petition before Hon'ble the Supreme Court. The Supreme Court kept in abeyance the interim order passed by this Court. They had cited a case i.e. Bedanga Talukdar v. Saifudaullah Khan2 in which Hon'ble the Supreme Court held that "there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement". The Supreme Court further held that "the relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India".
He further stated that the wrong committed in any case cannot be permitted to be repeated as has been held by the Supreme Court in the case of Union of India v. International Trading Company3. He has also cited a decision of the Supreme Court rendered in the case of State of Orissa & another v. Mamata Mohanty4 in which Hon'ble the Supreme Court held that "It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief".
In reply, the petitioner has blamed the officer concerned to whom, he had provided the caste certificate but she had not forwarded it to the IBPS, however, he has failed to produce any such receipt as to establish the submission of caste certificate with the submissions that when did he ask the receipt, he was replied that there was no procedure for giving any such receipt but the facts remains that the caste certificate was not made available to the IBPS within the time provided therefor.
All the questions which have been raised by the petitioner in the present writ petition have already been dealt with by the Supreme Court in the cases referred to above but the Supreme Court had declined to accept any certificate provided after the date fixed therefore.
After making the aforesaid rival submissions, ultimately the petitioner cited a recent decision of the Supreme Court given in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & another5 in which the Supreme Court had framed the question for consider as under:
"Whether a candidate who appears in an examination under the O.B.C. category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the O.B.C. category or not."
To answer the aforesaid question, the Supreme Court considered the decision of the Delhi High Court rendered in the case of Pushpa v. Government of NCT of Delhi & others6 and held that the decision rendered in the case of Pushpa (supra) is in conformity with the proposition of law laid down by this Court to arrive at this conclusion. The Supreme Court had considered the law laid down by its Constitution Bench in the cases of Indra Sawhney v. Union of India7 as well as Valsamma Paul v. Cochin University & others8 and held that the Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge in the case of Pushpa (supra) without noticing the binding precedent on the question laid down by the Constitution Benches of the Supreme Court in the cases of Indra Sawhney (supra) as well as Valsamma Paul (supra) wherein the Supreme Court after interpretation of Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society.
Thus, before us, there are two views of the Supreme Court on the matter.
The first one as propounded by the Supreme Court in the case of Bedanga Talukdar (supra) is that "there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement". The Supreme Court further held that "the relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India".
The second view as propounded by the Supreme Court in the case of Raj Kumar Gijroya (supra) is that the candidature of those candidates, who belonged to the Scheduled Caste and Scheduled Tribes categories, could not be rejected simply on account of late submission of caste certificate. In the case of Pushpa (supra), which has been upheld by the Supreme court one another case of Tej Pal Singh & Ors v. Govt. of NCT of Delhi9 has been referred to in which the Delhi High Court held that "if a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category".
The latest view accepted by the Supreme Court in the case of Raj Kumar Gijroya (supra) permits to accept the caste certificate even if it was submitted after the cut of date fixed therefor before publication of select list. Therefore, to our understanding, we proceed to accept the latest view of the Supreme Court laid down in the case of Raj Kumar Gijroya (supra) and quash the order impugned dated 26.04.2014 (Annexure No.1 to the writ petition).
The writ petition stands allowed.
Order Date :- 8.7.2016
Anupam S/-
(Anant Kumar,J.) (Shri Narayan Shukla,J.)
