SUNIL KUMAR BHAGAT vs STATE AND OTHERS

Vide Advertisement Notification No. 4/2006 dated 29.12.2006, respondent No.5 invited applications for filling up of different posts in various departments. Advertised posts included 17 posts of drivers ( Item No. 45 ) District Cadre Doda in the department of Health and Medical Education.

Two, out of seventeen posts, were reserved for the candidates belonging to Scheduled Caste category. The petitioner claiming to be the candidate belonging to Scheduled Caste category, submitted his application form as such. The candidates were shortlisted for viva voce and the name of the petitioner figured at serial No. 263 of the short list issued on 4.4.2012. The petitioner claims that he was short listed in the Scheduled Caste category as is clearly indicated in column -6 against his name at serial No. 263. On 24.2.2013, provisional select list was published by respondent No.5 which did not include the name of the petitioner. In the note appended at the foot of the select list, it was indicated that two posts of driver in the category of Scheduled Caste had remained unfilled due to non availability of eligible candidates. The petitioner approached respondent No.5 to enquire into the reason for exclusion of his name . The petitioner was directed to check from the internet the reason of his exclusion. It is stated that from the internet, the petitioner found that his candidature had not been considered due to some discrepancy in the experience certificate produced by him and the discrepancy pointed out was that the certificate produced by him did not bare the date. The petitioner claims that he immediately responded and submitted fresh experience certificate after meeting out the discrepancy pointed out by the respondent No.5. The petitioner claims to have made representation to respondent No.4 but the same was not considered and final select list was published on 9.10.2013. Amongst two posts reserved for Scheduled Caste category, only one candidate was shown selected and the other was indicated to have remained unfilled due to non availability of eligible candidates.

Feeling aggrieved of his exclusion from the zone of consideration despite being eligible to be selected against the post reserved for Scheduled Caste category, the petitioner has filed this petition. The basis of claim of the petitioner projected in the petition is that he had applied under Scheduled Caste category. He was short listed in Scheduled Caste category and was sure to be there in the select list in view of his merit but the respondents did not select him because of some discrepancy noticed in the experience certificate submitted by him. Grievance of the petitioner is that the certificate submitted by him was in consonance with the eligibility qualification prescribed in the Notification, yet as a matter of abundant caution, he obtained fresh certificate from the same employer and submitted it to respondent No. 5 well within time but his claim was yet not considered.

In response to the averments made in the writ petition, the respondents in their objections have taken a stand that the petitioner had applied under Scheduled Caste category by way of OMR Form and was thus, short listed for driving test and interview on the basis of entries made in OMR Form .

The petitioner was, however, not selected due to the fact that he had submitted an experience certificate of eight years but the same did not mention from which date the candidate had acquired such experience. It is also stated in the objections that it is true that later on the petitioner submitted another experience certificate but the same was again without number and date and, therefore, it was not taken into consideration. It is also pleaded in the objections that respondent No. 5 issued notice on 12.6.2012 calling upon the candidates to submit experience certificate and on expiry of the period stipulated for submission of required certificate, the provisional select list was framed and published in local newspapers in Jammu/Srinagar inviting objections, if any, from the interested candidates. Since the petitioner failed to submit supporting documents to clarify the discrepancy pointed out, as such, he was not considered. In paragraph No. 5 of the objections, the respondents have also stated that not only the petitioner failed to submit proper experience certificate but also failed to produce caste certificate on the date of interview. It is stated that the interview for the post in question was conducted on 22.4.2012, whereas the caste certificate was submitted by the petitioner on 4.3.2013. It is thus, claimed that the petitioner had no right to be considered under Scheduled Caste category, though his consideration, in the selection process was in view of entries made in OMR Form. On these two pleas, the respondents have resisted the claim of the petitioner.

Having heard learned counsel for the parties and perused the record, it is necessary to first notice the stipulation vis- a -viz eligibility for the post advertised in the Advertisement Notification. Though the Advertisement Notification No. 4 of 2006 has not been placed on record yet the respondents have not disputed that the qualification prescribed for the post in question was “middle pass with hilly driving license” which is also evident from the Item No. 923 of Advertisement Notification No. 12 of 2013 dated 31.12.2013 subsequently issued to fill up the left over post under Scheduled Caste Category. As has come on record, the petitioner had applied under Scheduled Caste category. This is so evident from application form of the petitioner placed on record by the respondents. The petitioner was shortlisted in the aforesaid category and on qualifying the driving test, he was interviewed under Scheduled Caste category. The petitioner was not considered on the ground that the experience certificate submitted by him was found deficient of material particulars. To be exact, discrepancy was pointed out in the experience certificate which was produced by the petitioner before the cut off date. Respondents have however, not denied that the petitioner possessed valid driving license which had been issued more than eight years before issuance of Advertisement Notification in question. That being so, there was no serious discrepancy in the certificate produced by the petitioner with regard to his driving experience. In any case, the petitioner had driving experience of eight years to his credit and certificate in this regard too had been issued by the employer who had employed the petitioner as driver for driving a bus of his group. The contention of the respondents that due to discrepancy aforesaid found in the experience certificate, the petitioner was not entitled to consideration, is without any merit and deserves to be rejected.

Now, comes the question as to whether the petitioner is entitled to be considered under reserved category of scheduled caste or not. Since the petitioner was never intimated that he was not entitled to be considered under Schedule Caste Category for having failed to submit category certificate at the time of interview, as such, the petitioner could not have been blamed nor he was expected to plead in this regard in the writ petition.

However, in reply filed by the respondents in paragraph No. 5, it has been pleaded that the petitioner was interviewed on 22.4.2012,whereas he produced the category certificate on 4.3.2013 and, therefore, was not considered under Schedule Caste Category and the post remained unfilled due to non availability of eligible candidate. It is true that in terms of stipulation contained in the Advertisement Notification, the petitioner was required to submit all documents, he was relying upon at the time of interview and should have been in possession thereof on the last date meant for submission of application form. The petitioner belongs to category of scheduled caste as is certified by the competent authority who has issued the certificate in his favour. The petitioner belongs to Schedule Caste Category is not denied by the respondents. Categorisation of person as “Schedule Caste” for the purpose of benefit of reservation, is a matter of status which is acquired by a candidate by birth and the certificate is only a proof of existence of such fact.

In the instant case, the petitioner had applied under Schedule Caste Category and on the cut off date, he was possessed of aforesaid status though he did not have relevant category certificate issued by the competent authority in his favour. As held by the Division Bench of this Court in Jammu and Kashmir SSRB and another Vs Narinder Paul Choudhary and others; 2011(3) JKJ(HC)445 , a person claiming to be a candidate belonging to reserved category like Schedule Caste etc which pertains to status of a person acquired by birth , it is sufficient if a candidate has claimed the benefit of such category without submitting the actual certificate and submits the same at any time by or before the date of interview. As is contended by the respondents, the petitioner failed to submit the category certificate even on the date of interview and, therefore, was not entitled to be considered under the aforesaid category.

Going by the law laid down in the above judgment, the learned counsel for the respondents, is apparently, correct but in the given facts and circumstances of the case, I am afraid that consideration to the petitioner under Schedule Caste Category cannot be denied.

This is so because of the following reasons :

a) The petitioner in OMR Form had applied under Schedule Caste Category.

b) The petitioner was shortlisted for driving test and invited for viva voce under Schedule Caste Category.

c) The respondents pointed out discrepancy in the experience certificate produced by him but did not provide any opportunity to the petitioner to produce Schedule Caste Category certificate.

d) The respondent-Board issued Notification No. SSB/Sel/Secy/2012/1533 dated 12.6.2012 calling upon the candidates to submit experience certificate but did not issue similar Notification to call upon the candidates to submit the category certificates as well.

e) That one post of driver under Schedule Caste Category remained unfilled due to non availability of eligible candidate and, therefore, consideration of the petitioner under Schedule Caste Category would not have prejudiced the claim of any other Schedule Caste Category candidate. The petitioner has not pleaded anything in the writ petition with regard to actual date of submission of category certificate, obviously because the respondents never intimated petitioner about aforesaid discrepancy. Similarly, the respondents have indicated the date in their reply but without placing on record any material to substantiate the same.

In view of the aforesaid facts and circumstances, I find that the case of the petitioner is distinguishable on facts from the case of Narinder Paul Choudhary and others ( supra ).

For the reasons stated above, this petition is allowed. The respondents are directed to consider the candidature of the petitioner for the post of driver against the left over post in Schedule Caste Category notified vide Advertisement Notification No. 4 of 2006 dated 29.12.2006. Consequently, one post of driver in the Department of Health and Medical Education under Schedule Caste Category District Cadre Doda notified vide Notification

No. 12 of 2013 dated 31.12.2013 shall stand withdrawn. Respondent Nos. 4 and 5 shall pass appropriate orders in this regard within a period of four weeks from the date of receipt of copy of this order. The appointing authority shall issue order of appointment in favour of the petitioner upon receiving recommendation from respondent No. 5 within four weeks thereafter. In view of peculiar facts and circumstances, the petitioner is held entitled to relief as aforesaid with prospective effect.