ANIL KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The grievance in these two petitions is common. The writ petitioners are Anil Kumar [in W.P.(C)405/2013] and Rakesh Kumar [in W.P.(C) 5416/2012]. Rakesh Kumar had applied for recruitment to the post of Assistant Sub Inspector (Executive) [ASI (Exec)] with the Central Industrial Security Force (CISF) in response to an advertisement. They complain that the respondents have unjustifiably treated them as "Unreserved category" candidates and denied them appointment. They had applied as candidates belonging to the "Other Backward Classes" (OBCs). They seek appropriate directions that they should be treated as OBC candidates and their applications and candidature should be processed for appointment accordingly. The facts in Rakesh Kumar's case [W.P.(C) 5416/2012] are that the advertisement was issued on 29.05.2010 for the post of ASI (Exec) in the CISF. The last date for applying was 28.06.2010. It is not in dispute that the petitioner Rakesh Kumar applied within the time; he relied upon an OBC certificate dated 05.07.2005. The written examination was conducted by the respondents, i.e. Staff Selection Commission (SSC) on 28.08.2010. The petitioner secured 235 marks. His Physical Test was conducted on 06.11.2010 and medical examination on 08.11.2010. He was called for interview on 01.02.2011. Besides the certificate dated 05.07.2005, he appears to have applied for another OBC certificate in view of a condition which stipulated that only a certificate issued within three years of the date of the advertisement would be valid. Such certificate was applied for and was issued on 25.01.2011, i.e. before the date of interview. The respondents rejected his application to be an OBC candidate and considered him as "Unreserved Category" candidate. His marks were not better than the last marks of an unreserved category candidate. The facts in W.P.(C) 405/2003 are that Anil Kumar applied pursuant to the advertisement dated 05.02.2011 for the post of Constable (General Duty), called for by the Staff Selection Commission (SSC) in the BSF,CISF, SSB and CRPF. The closing date for the application was 04.03.2011. It is not in dispute again that the application was made within the time. The petitioner had relied upon a certificate dated 24.09.2007. The written examination for this post took place on 05.06.2011 and the medical examination took place on 13.09.2011. The petitioner was able to secure a later certificate on 02.12.2011 and has relied upon it in these proceedings.

(2.) It is contended by the petitioners that the candidatures in their cases to be treated as belonging to OBC class appears to have been rejected on account of Clause 4(C) of the notice of advertisement. In both the cases, the said condition stipulated that certificate relied upon "should have been obtained within three years before the closing date." The petitioners contend through their learned counsel that the stipulation has the effect of depriving their legitimate right to be considered as OBC candidates. They strongly rely upon the decision in Hari Singh v. Staff Selection Commission & Anr., 2010 170 DLT 262 (DB) and two previous rulings of the Division Bench in DSSSB and Anr. v. Ms. Anu Devi & Anr. [W.P.(C) 13870/2009] and Govt. of NCT of Delhi v. Poonam Chauhan, 2008 152 DLT 224.

(3.) It was argued that the status of the candidate as belonging to a reserved category either Scheduled Caste (SC)/Scheduled Tribe (ST) or OBC is akin to his date of birth and in the sense that it is unalterable. In a sense, the production of a certificate is mere evidence of such status which always existed. However, in the case of an educational qualification, the production of a document evidences that the candidate acquired or is yet to acquire the qualification which is not akin to a status. In other words, the certificate only reflects what exists as a reality. The production of a defective certificate or one which does not conform to a preordained format is at best an irregularity which can be set right or cured by the candidate and cannot be a ground for disqualification. Learned counsel stressed that not being possessed of the educational qualification amounts to disqualification whereas being possessed of a defective caste certificate or a defective date of birth or a record which does not conform to the format in respect of the Date of Birth would be mere irregularities, which are curable. In any event, the authorities can verify the correct state of affairs and the production of the correct or acceptable documentation on a later date. This would not mean that the candidate acquires the status as belonging to the OBC/SC/ST later.