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JYOTSNA REWAL DUA, J. --

CMP (T) No.237 of 2023

Disposed of as having been rendered infructuous.

CWPOA No.6373 of 2019

With the consent of learned counsel for the parties, the matter is heard at this stage.

2. The petitioner is primarily aggrieved by the action of respondents, whereby her candidature for the post of Supervisor, for which, selection process was undertaken in the year, 2015 was considered as a General category candidate. The contention of the petitioner is that the petitioner belongs to OBC category and was required to be considered as such.

2. Following facts are not disputed

2 (i) The respondents initiated a selection process for filling up 144 posts of Supervisor on contract basis. Applications were invited from eligible candidates under Advertisement No.27 of 2013 dated 21.11.2013.

2 (ii) In response to the above advertisement, the petitioner applied for the post of Supervisor in General category. Copy of her application form has been appended by respondent No.3 alongwith its reply. This application form (Annexure R-1) clearly shows that the petitioner had applied for the post on 10.12.2013 and ticked General category in column No.10. The candidature of the petitioner was accordingly considered by the respondents, as belonging to General category. She appeared as a General category candidate in the personal interview on 15.10.2015. The respondents declared the result of the selection process on 30.11.2015. The petitioner did not emerge successful as a General category candidate.

2 (iii) On 22.12.2015, petitioner filed this petition with the averments that by birth she belonged to Other Backward Classes (OBC) category. She had married a forward cast person. On account of her marriage, in non-OBC family, the OBC certificate was denied to her. Under the circumstances, she was compelled to apply for the post in question as a General category candidate. The OBC certificate was issued in her favour only on 11.12.2015, thereafter, she made a representation to the respondents (Annexure A-6) for considering her candidature for the post under OBC category. Getting no favourable response by the respondents, she instituted this petition for the grant of following substantive relief:-

“(a) That directions may very kindly be issued to the respondents that the candidature of the applicant may be considered under Other Backward Class category for the post of Supervisor, for which interviews were conducted vide letter dated 18.9.2015 on 15.10.2015 and further if the applicant finds place in the merit under Other Backward Class category, respondent No.3 may kindly be directed to recommend the name of the applicant by further directing respondents No.1 and 2 to offer appointment to the applicant, with all consequential benefits, in the interest of justice and fair play.”

3. Submissions

3 (i) Learned Senior Counsel for the petitioner submitted that the petitioner belongs to OBC cast by her birth. Respondents have wrongly denied the OBC certificate to the petitioner on account of her marrying into a non-OBC family. Under these compelling reasons, the petitioner had to apply for the post in question as a General category candidate. Learned Senior counsel for the petitioner contended that the petitioner was required to be considered as OBC category candidate, since she belongs to OBC category by birth. Reference was made to a decision dated 14.11.2014 delivered in CWP No.1152 of 2014 (Anuradhika vs. State of H.P & ors).

Attention was also invited to 2016 (4) Supreme Court Cases 754 (Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another). It was also put forth that it was only on 21.09.2015 (Annexure A-4) that the respondents/State had clarified the issue regarding issuance of OBC certificate to a woman from OBC category married to non-OBC family. The clarification was that a woman would remain eligible for an OBC certificate even after her marriage into a OBC or a non-OBC family. However, entitlement to an OBC certificate is determined based on whether she continues in the non creamy layer bracket. According to the learned Senior counsel for the petitioner, it was only on the basis of directions issued by the State on 21^st September, 2015 that the OBC certificate was eventually issued to the petitioner on 11.12.2015 based on her cast by birth. Prayer was accordingly made to direct the respondents to consider the case of the petitioner for the post of Supervisor that was advertised in the year, 2013 as an OBC category candidate.

3 (ii) Learned Additional Advocate General opposed the above prayer and submitted that the petitioner had herself applied as a General category candidate. Advertisement clearly stipulated that no change of category will be allowed after last date of receipt of application form. The petitioner was not in possession of OBC certificate at the time, when she applied for the post in question. There is nothing on record to suggest that the petitioner had even applied for the issuance of OBC certificate prior to her applying for the post in question. Learned Additional Advocate General also submitted that the final result of the selection process for the posts in question was declared by respondent No.3 on 30.11.2015. The selection process was completed much prior to the petitioner’s filing this petition, hence no interference is called for.

Observations

4. Heard learned counsel for the parties and considered the case record. Following aspects are significant for deciding the case:-

4 (i) It is not in dispute that the respondents had advertised various posts under advertisement dated 21.11.2013. 144 posts of Supervisor to be filled up on contract basis were also part of the advertisement. Instructions No.11 & 18 of the advertisement as quoted in the reply reads as under:-

“Instruction No.11. No change of category shall be allowed after last date of receipt of application forms i.e. from SC to OBC/ST etc. vice versa

Instruction No.18. No change of category at any stage shall be allowed.”

4 (ii) It is also not in dispute that the petitioner had applied for the posts of Supervisor (Post Code 370). It is not disputed that the petitioner had herself applied as a General category candidate. She had applied for the post on 10.11.2013 as a General category candidate. Nothing prevented the petitioner from taking appropriate remedy in accordance with law at the relevant time, in case she was aggrieved by wrongful denial of OBC certificate to her. There is nothing concrete on record even to suggest that the petitioner had applied for the OBC certificate before applying for the post in question or that OBC certificate was wrongly denied to her as contended.

4 (iii) The case file shows that the petitioner participated in the selection process as a General category candidate. She was interviewed as a General category candidate. The official respondent declared the result for the post in question on 30.11.2015. The petitioner did not emerge successful. It is only thereafter, she filed this petition on the basis that OBC certificate was issued to her by the respondents only on 11.12.2015. Therefore, her candidature which has been considered, as belonging to General category be now considered under OBC category.

4 (iv) The reliance placed by the learned Senior counsel for the petitioner on the decision rendered in Anuradhika’s case supra is misplaced. The petitioner therein had applied as an OBC category candidate. Petitioner’s OBC certificate was valid for a limited period. During the course of selection process, petitioner’s OBC certificate lost its validity. The petitioner could not produce latest and valid OBC certificate. On that ground, her candidature was rejected by the respondents

In that background the Court observed as under:-

“6. The petitioner has appeared in the written test held on 27.7.2013. She was called for interview on 29.1.2014. Her candidature has been rejected vide communication dated 20.2.2014 only on the ground that she could not produce the latest OBC certificate. The fact of the matter is that the petitioner was in the possession of OBC certificate on 9.8.2010. It expired on 8.8.2012. She applied for the renewal of the certificate which was arbitrarily declined by the respondent No.4. Respondent No.4 ought to have renewed the OBC certificate.

7. Accordingly, the writ petition is allowed. Annexure P-9, dated 20.2.2014, is quashed and set aside. The petitioner would be deemed to have been appointed as Clerk from the due date pursuant to advertisement dated 15.9.2010. The petitioner would only be entitled to notional seniority. The codal formalities including issuance of appointment letter to the petitioner be completed within two weeks from today.”

Hon’ble Apex Court in (2016) 4 SCC 754 titled Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another, has held that claims for inclusion in OBC category can be considered even in cases where certificates were not produced by the applicants before the cut-off date notified in the advertisement. Relevant paragraphs from the judgment are extracted hereinafter:-

“14. The Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa (supra). In that case, the learned single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the O.B.C. certificate before the provisional selection list was published to claim the benefit of the reservation of O.B.C. category. The learned single judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in the case of Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University & Ors. The learned single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh (supra), wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of the late submission of caste certificate. 18. In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul (supra) wherein this 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. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned single Judge in W.P. (C) No. 382 of 2009 is hereby restored.

The view taken in Ram Kumar Gijroya’s case supra was ordered to be referred for consideration of a Larger Bench of Hon’ble Apex Court, vide order dated 24.01.2020 passed in Special Leave to Appeal (C) No.14948 of 2016 (Karan Singh Yadav vs. Govt. of NCT of Delhi & ors.) with the following observations:

“In view of the acute problem of unemployment, whenever few vacancies are notified by any public authority, it is common that thousands of applicants apply for such posts. If the applicants are permitted to rectify applications after cut-off dates, the same would render the scrutiny process indefinite. In the course of such recruitment process, many persons, though they belong to the OBC category or SC/ST category, might not have obtained the required caste certificate before the cut-off date. Such persons, being law abiding and being conscious of the bar contained in the notification of the cut-off date, might not have applied seeking employment. In case the authority starts accepting caste certificates subsequent to the prescribed cut-off dates whenever a candidate approaches the authority, the remaining candidates who had not applied would definitely be affected. If the applicants are allowed to submit certificates in proof of their claim of reservation subsequent to the notified cut-off date, it would create administrative chaos.

In practice, for every advertisement, there are such belated claims claiming reservation, though the candidates did not submit certificate from the competent authority, before the cut-off date. In view of the general importance of the question, we are of the view that the issue which fell for consideration in the case of Ram Kumar Gijroya (supra) requires to be considered by a larger Bench of three-Judges.

Accordingly, we refer the matter for consideration by a larger Bench of three Judges. Registry to place the papers before Hon’ble the Chief Justice for appropriate orders.”

Karn Singh Yadav’s case supra was thereafter heard on 28.09.2022 and disposed of with following order:-

“Leave granted.

This appeal challenges the judgment and order dated 07.01.2013 passed by the High Court of Delhi in Writ Petition (C) No.55 of 2013.

We are presently concerned with the process of selection issued vide advertisement dated 30.08.2007 for the posts of “A” Grade Staff Nurse, Municipal Corporation of Delhi. The appellant had offered his candidature as a person belonging to Other Backward Class. His candidature was however rejected by the Authorities inter alia on the ground that the documents certifying him to be belonging to that community were not filed before the cut-off date.

The challenge raised by the appellant to such rejection did not meet with any success and the High Court by the order presently under challenge rejected the writ petition in limine.

It must be stated here that an identical fact situation came up for consideration before this Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Another, (2016) 4 SCC 754, wherein this Court ruled in favour of the concerned candidate. The instant matter is thus completely covered by said decision.

However, it must be noted here that as a result of cancellation of the candidature, the appellant was never appointed to the post in question and at this length in time, it will not be possible to grant any substantial relief to the appellant.

Therefore, the appeal is disposed of with no order as to costs.

The facts in the instant case are different. Petitioner herein did not apply as OBC category candidate. She applied as a General category candidate. Although, in the selection process, she participated as a General category candidate. She was not in possession of OBC category certificate at the time of applying for the post. She never raised any grievance as per law about her entitlement to OBC category certificate or denial thereof by the respondents at any time. Petitioner raised an issue about it for the first time by way of this petition instituted after declaration of the result of selection process and issuance of OBC certificate to her.

4 (v) Another important facet is that the selection process in question was initiated on 21.11.2013. The result was declared on 30.11.2015 and selection process got completed. Petitioner filed this petition on 19.12.2015. We are now in the year, 2023. Clock cannot be turned back, more so in the facts and circumstances of the case. The relief prayed for by the petitioner cannot be granted to her.

5. Conclusion

Petitioner had herself specifically applied for the posts in question as a General category candidate. Her candidature was accordingly considered under General category. She was interviewed as a General category candidate. The result of selection process was declared wherein petitioner remained unsuccessful as a General category candidate. Petitioner was not in possession of OBC certificate at the time of applying for the posts. Petitioner did not take any legal step for getting the OBC certificate at the relevant time or for consideration of her candidature under OBC category. Having participated in the selection process through out as a General category candidate and allowing the selection process to culminate, petitioner now cannot be heard to complain that her candidature was required to be considered under OBC category, as she was OBC by birth, but the OBC certificate was issued to her by the respondents only after completion of the selection process. Petitioner had long missed the bus she wanted to board. Selection process that was initiated in the year, 2013 got completed in the year, 2015 i.e. prior to petitioner’s filing instant petition. We are now in the year 2023. The reliefs prayed for by the petitioner cannot be granted to her.

For all the above reasons, this petition lacks merit and is dismissed.

All pending miscellaneous application(s), if any, also to stand disposed of.

Petition dismissed.

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