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Judgment
Nidhi Gupta, J.
CM No. 14699 of 2024
This is an application to list the case for any earlier actual date of hearing in view of the facts and circumstances of the present case.
For the reasons mentioned in the application and in view of the submissions of learned counsel for the parties, the present application is allowed and with the consent of both learned counsel for the parties the main case i.e. CWP-19772-2021 is taken on Board today itself for hearing.
CWP-19772-2021 (O&M)
The present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Mandamus directing the respondents to change the Candidature of the petitioner from General Category to BC(A) Category, against the Post of HCS (Ex.Br.) and Allied Services against advertisement No.03/2021 dated 26.02.2021 (Annexure P-1) in view of the fact that the Hon’ble Supreme Court has quashed the Notification dated 17.08.2016 issued by State Government specifying the criteria for exclusion of ‘creamy layer’ within the backward classes vide judgment dated 24.08.2021 (Annexure P-4). Further, directing the Respondent to revise the result of BC(A) reserved Category candidates after considering the Candidature of the petitioner in the BC(A) Category, advertised vide advertisement No.03/2021 dated 26.02.2021.
It is inter alia submitted by learned Senior counsel for the petitioner that the sole respondent i.e the Haryana Public Service Commission (hereinafter referred to as ‘the HPSC’) had got published an Advertisement No.3/2021, dated 26.02.2021 (Annexure P-1) inviting online applications for appointment to post of HCS (Executive Branch) and Allied Services. Total posts advertised were 156 in number. Posts under BC(A) category were 18. Last date for submission of online application was 02.04.2021.
Learned Senior counsel submits that the petitioner belongs to the BC(A) category as evident from his Backward Class Certificate dated 04.05.2011 (Annexure P-3) issued to him by the Government of Haryana. However, in the advertisement in question, despite belonging to the BC(A) category, petitioner was compelled to apply under the General Category due to notification dated 17.08.2016 issued by the Government of Haryana, thereby stipulating exclusion of creamy layer within backward classes which constituted of persons having income of six lakhs or more per annum, such as the petitioner. However, the said Notification dated 17.08.2016 which was further modified vide notification of 2018, was set aside by the Hon’ble Supreme Court vide judgment dated 24.08.2021 (Annexure P--4), rendered in Pichra Warg Kalyan Mahasabha Haryana (Regd.) and Another Vs. The State of Haryana and Another, Writ Petition (Civil) No.60 of 2019.
Learned Senior counsel contends that accordingly, petitioner became eligible for consideration for appointment under the BCA category. As such, immediately upon passing of the aforesaid judgment dated 24.08.2021 (AnnexureP-4), petitioner had submitted a representation/e-mail dated 09.09.2021 (Annexure P-5) informing the respondent that he is currently under the process of applying for the BC(A) certificate and will update the respondent as soon as the same is available with him and further requesting to change his category to BC(A)from General Category as the Preliminary Exam has still not been held and was scheduled to be held on 12.09.2021. As no action was taken by the respondent on the request of the petitioner, the petitioner was constrained to appear in Preliminary Examination held on 12.09.2021 under the General Category, as per Admit Card (Annexure P-6) issued to the petitioner.
Subsequently the petitioner was issued fresh Backward Class Certificate dated 15.09.2021 (Annexure P-7) which the petitioner duly forwarded to the respondent vide e-mail dated 15.09.2021 (Annexure P-8) itself, without any delay. The petitioner also submitted a representation dated 15.09.2021 (Annexure P-9) to the respondent with a request to consider his candidature in BC(A) category as the OMR sheets of the Preliminary Examination held on 12.09.2021 had still not been evaluated.
Subsequently the result of Preliminary Examination held on 12.09.2021 was declared on 24.09.2021 (Annexure P-10), as per which the petitioner failed to qualify for admission to main examination in General Category.
Learned Senior counsel contends that a perusal of the Advertisement dated 26.02.2021 (Annexure P-1) shows that there is no condition that request for change of category will not be entertained. It is argued that the petitioner is entitled to change in category from General to BC(A), as petitioner originally belongs to the BC(A) as evident from the Backward Class Certificate dated 04.05.2011 (Annexure P-3) as also reissued vide Backward Class Certificate dated 15.09.2021 (Annexure P-7). It is urged that petitioner was unable to apply under the BC(A) category in the first instance due to issuance of notification dated 17.08.2016 which subsequently came to be quashed by the Hon’ble Supreme Court vide judgment dated 24.08.2021 (Annexure P-4). It is contended that in these circumstances candidature of the petitioner should be considered under the BCA category only.
In support, ld. Senior counsel relies upon another judgment of the Hon’ble Supreme Court rendered in Government of India & Another Vs. Sri Devraj URS Medical College, Civil Appeal No. 10669-2010 Law Finder Doc ID #2953598, wherein it is held that “it is settled law that all decisions of this Court are retrospective in application as held in para 29 of PV George Vs. State of Kerala…...”. It is argued that therefore the abovesaid judgment dated 24.08.2021 (Annexure P-4) setting aside the notification dated 17.8.2016, would relate back to the date of application i.e. 01.04.2021 (Annexure P-2) of the petitioner; and as such change of category cannot be denied to the petitioner.
It is further submitted that immediately upon passing of judgment dated 24.08.2021 (Annexure P-4), petitioner had approached the respondent on 09.09.2021 itself and then several times thereafter. As such no delay has been caused on account of the petitioner as petitioner had approached the respondent for change of category well in time before declaration of the Preliminary Examination Result on 24.09.2021. Moreover, it is not disputed that the petitioner belongs to the BC(A) category, and as such the petitioner is entitled for change of category from General to BC(A).
It is accordingly prayed that the present writ petition be allowed and writ in the nature of mandamus be issued directing the respondent to change the Candidature of the Petitioner from General Category to BC(A) Category, against the Post of HCS (Ex. Br.) and Allied Services against advertisement no. 03/2021 dated 26.02.2021 (Annexure P-1) in view of the fact that the Hon'ble Supreme Court has quashed the Notification Dated 17.08.2016 issued by State Government specifying the criteria for exclusion of 'creamy layer' within the backward classes vide Judgment dated 24.08.2021 (Annexure P-4) and denial of the same is illegal, arbitrary, erroneous, discriminatory and violatiive of Articles 14 and 16 of the Constitution of India; Further, to issue a Writ, order or direction in the nature of mandamus for directing the Respondent to revise the result of the BC(A) Category candidates after considering the Candidature of the Petitioner in the BC(A) Category, advertised vide advertisement no. 03/2021 dated 26.02.2021 (Annexure P-1).
Per contra, learned counsel appearing on behalf of the sole respondent/ Commission has submitted that on date of submission of application i.e. 01.04.2021, notification dated 17.08.2016 was in vogue. The same came to be set aside only subsequently by the Hon’ble Supreme Court vide judgment dated 24.08.2021 (Annexure P-4). As per his application (Annexure P-2), the petitioner had applied in the General Category. It is also the conceded position as stated in para-4 of the present writ petition that income of the petitioner is more than Rs.6 lakhs. Cut-off date as per the advertisement Annexure P-1 was 02.04.2021. As such, the petitioner’s eligibility relates back to 02.04.2021. As on that date only 2016 and 2018 notifications were prevailing. Thus, candidature of the petitioner cannot be considered under the BC(A) category as, on the closing date i.e. 02.04.2021, the petitioner was not eligible to claim reservation under BC(A) Category in terms of the notification dated 17.08.2016.
Moreover, as per clause-14 of the Advertisement dated 26.02.2021 eligibility of candidates has to be determined on the basis of certificates issued prior to cut-off date 02.04.2021. The petitioner has now submitted Certificate dated 15.09.2021, which is much after the cut-off date i.e. 02.04.2021. Thus, the said certificate cannot be considered in contravention with the terms and conditions of the advertisement. The petitioner is claiming change of category which is impermissible as per settled position of law that all rights of candidates stand crystalised on cut-off date, which is sacrosanct.
Furthermore, preliminary examination has already been held on 12.09.2021 and result has already been declared on 24.09.2021; and at this stage no change in terms and conditions of the advertisement can be contemplated as it would derail the entire selection process.
Learned counsel for the respondent lastly points out that vide judgment dated 24.08.2021, while quashing the notification dated 17.08.2016, the Hon’ble Supreme Court had granted liberty to the State Government to issue fresh notification. Pursuant to which the State Government had issued notification dated 17.11.2021 (Annexure R-1) whereby again creamy layer i.e. sons and daughters of
parents having gross annual income of Rs.6 lakhs or above came to be excluded. It is contended that therefore in any event, the petitioner does not fall under the BC(A) Category. It is submitted that the said notification dated 17.11.2021 has to be read in light ofjudgment of the Hon’ble Supreme Court in University of Kerala and Others Vs. Merlin J.N and Another, Law Finder Doc # 2024623. Accordingly, prays for dismissal of the present writ petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions advanced on behalf of the petitioner.
Vide the Advertisement No.3/2021, dated 26.02.2021 (Annexure P-1) the respondent had invited online applications for appointment to 156 posts of HCS (Executive Branch) and Allied Services. Last date for submission of application was 2.4.2021.
Admittedly, at time of issuance of the said Advertisement, the Policies dated 17.8.2016 and 28.8.2018 were applicable; as per which, sections of Backward Classes earning above Rs. 6 Lakh per annum shall be considered as ‘creamy layer’ under Section 5 of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions)Act 2016, (hereinafter referred to as ‘the 2016 Act’). Admittedly also, as stated by the petitioner himself in paragraph 4 of the present writ petition, petitioner falls under the creamy layer viz persons having income of ₹6 lakhs and above per annum, which category is excluded under the above said policies. Accordingly, petitioner of his own volition, vide Application dated 1.4.2021 (Annexure P-2), had applied as a General Category candidate because as per para 4 of writ petition, petitioner comes under creamy layer.
Subsequently, vide judgment dated 24.8.2021 (Annexure P-4), the Hon’ble Supreme Court had set aside the notifications dated 17.08.2016 and 28.08.2018. However, as per paragraph 14 of the Judgment, liberty was granted to State Government to issue a fresh notification within a period of 3 months from date of passing the judgment taking into account the principles laid down by Hon’ble Court in Indra Sawhney-I and criteria mentioned in Section 5(2) of the 2016 Act.
Pursuant thereto, the State of Haryana had issued a fresh notification dated 17.11.2021 (Annexure R-1), in terms of liberty granted by Hon’ble Supreme Court. Whereby again, any person having income more than 6 lakhs is considered as ‘creamy layer’. In the meantime, Preliminary Examination was conducted on 12.9.2021. As noted above, petitioner had not qualified the said examination, however, vide announcement dated 02.05.2022, the Commission cancelled the Preliminary Examination held on 12.09.2021 and announced that preliminary examination would be conducted 10.07.2022, which was subsequently postponed to 24.07.2022 vide Announcement dated 12.07.2022.
In view of the above facts, the Commission had filed an application bearing CM No. 9287 of 2022 before this Court in the instant writ petition. Vide order dated 6.7.2022, this Court permitted the petitioner to participate in the preliminary examination in General Category subject to final outcome of the writ petition.
It may be noted that a perusal of the file now reveals that as per the averments made in para – 4 of CM-14699-2024 filed by the petitioner, petitioner had duly participated and qualified the test held on 24.07.2022 under the General Category. Thereafter, petitioner appeared in the main exam and had qualified the same as well by obtaining 368 marks in General Category. Accordingly, as per Recommendation/Final Result dated 06.02.2023, petitioner has been allotted the post of District Food and Supplies Controller in General Category and is presently working as such.
It is in the above factual background that the issues raised by the petitioner are required to be examined. The primary edifice on which the petitioner has based his case is that vide Judgment dated 24.8.2021 (Annexure P-4), passed in case of Pichra Warg supra the Hon’ble Supreme Court had quashed the notifications dated 17.08.2016 and 28.08.2018; and the said judgment will apply retrospectively in terms of judgment in Sri Devraj URS supra; and thus, candidature of petitioner has to be considered under BC-A category. For this, petitioner has stated that various representations were submitted by the petitioner immediately after the judgment of the Hon’ble Supreme Court.
However, the said argument of the petitioner is tenuous and far-fetched to say the least. The contentions of the petitioner are unacceptable on the ground that admittedly, on cut-off date of 2.4.2021, the notifications/policies dated 17.8.2016 and 28.8.2018 were very much in effect. Accordingly, the petitioner had applied under the General Category. Thereafter, the petitioner has also participated in the selection process under the General Category. It is established position in law that change of category is not permissible; and Commission has no authority to change the category of petitioner. Reference in this regard can be made to the judgment of Hon’ble Supreme Court in J & K. Public Service Commission v. Israr Ahmad, (SC) : Law Finder Doc Id # 192290, wherein it has been held that
“Reservation - SRO 126 of 1994 date 20.6.1994 issued by State of J&K whereby reservation was granted to the residents of backward area and line of actual control -Benefit of said SRO not taken by respondent during preliminary examination - After passing preliminary examination respondent claimed benefit of SRO at the stage of main examination on the ground that he was successful in getting the required certificate only at a later stage - Held - Nature and status of the candidate who was applying for the selection could only be treated alike and once candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim.”
6.We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for the selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail the reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had qualification and the production of the certificate at later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of Division Bench and allow the appeal.”
(Emphasis added)
The said view has been followed by this Court in CWP-15119-2016 titled as Shashi Vs. State of Haryana and other on dated 22.05.2018, as under:-
“7.Perusal of the advertisement (Annexure P-1) clearly shows that a candidate can apply only once for a particular category of post advertised. It also makes it clear that no offline form is to be accepted. Another condition included in the advertisement is that incomplete application form would be rejected. Thus, a candidate is required to be very circumspect while filling the application. Although the petitioner may have obtained the EBPG certificate before the extended date of submitting applications, she cannot take benefit thereof as she had applied under the general category. Had she applied for the EBPG category and had failed to attach the certificate alongwith the application, the case may have been different. The Division Bench judgment of this Court in Usha Dhillon (supra) does not support the case of the petitioner as in the said case the computer had committed a mistake and the same was permitted to be corrected. The judgment of the Supreme Court in J&K Public Service Commission (supra) makes it clear that once a candidate has chosen a particular category, he cannot change the same at a later date."
The aforesaid view has been affirmed by the Supreme Court as well as by various High Courts in subsequent judgments. As such, the legal position in this regard is no longer res integra.Since petitioner of his own filled his application form as a General Category candidate, the Commission is bound to consider him as a General Category candidate only. The notifications of 17.08.2016 and 28.08.2018 were in vogue at the time of advertisement; as per which petitioners stood, excluded being creamy layer. Further, as per clause--14 of the Advertisement dated 26.02.2021 eligibility of candidates has to be determined on the basis of certificates issued prior to cut-off date i.e. 02.04.2021. The petitioner has now submitted Certificate dated 15.09.2021, which is much after the cut-off date i.e. 02.04.2021.The category, educational qualifications etc. were locked for all candidates and Commission as on the last date viz. 02.04.2021. It is also established position in law that terms and conditions of the advertisement, and cut-off date are sacrosanct, and no change is permissible after cut-off date. In this regard, reference may be made to another judgment of this Court in CWP-4376-2021 titled as Joginder Singh and others versus State of Punjab and others, Law Finder Doc ID #2673871, wherein it has been held that: -
Terms and conditions of an advertisement are sacrosanct, and no changes in theapplication form, including the category selected, are permissible once submitted, as per the conditions of the advertisement.
A. Service Law - Recruitment Process - Advertisement - Terms and Conditions of Advertisement sacrosanct - Candidates cannot claim to rectify errors in the application form, including changes in category, after submission - Public notice allowing such changes held contrary to the advertisement and illegal.
B. Service Law - Recruitment Process - No change in category permissible after submission of application form - Once a candidate opts for a category, they cannot later change it at any stage of the selection process - Public notice permitting such a change withdrawn rightly.
Accordingly, in view of the above-said accepted and undisputed legal position, contention of the petitioner that change in category is to be permitted due to retrospective application of judgment in Pichra Warg supra, is absurd and untenable.
27 Even further, vide judgment dated 24.8.2021 in Pichra Warg supra, the respondent had been granted liberty to issue fresh notification in the following terms:
“14.… … …Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5 (2) of the 2016 Act for determining ‘creamy layer’.
15.As we have struck down the notification dated 17.08.2016 in toto, there is no need for adjudicating the validity of the notification dated 28.08.2018, which is solely dependent on the notification dated 17.08.2016. Admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.08.2016 and 28.08.2018 shall not be disturbed.”
Contentions of the petitioner are liable to be rejected, also on the ground that in the abovesaid judgment in Pichra Warg supra, the Hon’ble Supreme Court has categorically directed that “Admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.8.2016 and 28.8.2018 shall not be disturbed.”Clearly, therefore, no right accrues in favour of the petitioner.
Moreover, pursuant to the above liberty, the respondent has issued Notification dated 17.11.2021, again specifying the exclusion of the creamy layer. Vide notification dated 17.11.2021, the category of Backward class like petitioner, were again excluded from taking benefit of reservation, as he belonged to creamy layer having income more than Rs. 6 Lakhs. Thus, the petitioner again could not have been considered as a Backward class candidate.
The notification dated 17.11.2021, has been issued in supersession of the previous notifications dated 17.8.2016 and 28.8.2018. Accordingly, in the instant case, the notification dated 17.11.2021 is declaratory/ curative/clarificatory in nature, impelled on account of liberty granted by Hon’ble Supreme Court to make clear what was always intended. Such amendment is meant to operate from an antecedent date, and/or to cover antecedent events. Moreover, the petitioner had voluntarily applied under the General Category. The plea of the petitioner is hit by principle of estoppel as petitioner had voluntarily applied under the General Category and he cannot now be permitted to change his category to the disadvantage of other participating candidates who have not been impleaded in the present writ petition.
Accordingly, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.
23.09.2026 (NIDHI GUPTA) tripti JUDGE