Judgment:
HIGH COURT OF MADHYA PRADESH : JABALPUR Writ Petition No.5570/2012 Ku. Vinita Sahu -Versus- The Unionot India and others. CORAM : Hon’ble Shri Justice S.A. Bobde, Chief Justice Hon’ble Shri Justice Ajit Singh, Judge. Shri Shashank Shekhar, Advocate for the petitioner. Shri R.S. Siddiqui, Assistant Solicitor General for the respondent No.1. Shri S.P. Singh, Advocate for the respondents No.2 & 3. ORDER
( 14.03.2013) PER : S.A. BOBDE, CHIEF JUSTICE - This petition, under Article 227 of the Constitution, is directed against the order dated 21.2.2012 passed by the Central Administrative Tribunal, Jabalpur Bench (in short, “the Tribunal”.) whereby it has dismissed the petitioner’s Original Application No.483/2010 seeking direction against the respondents to allocate her the post of Indian Administrative Services (IAS).
2. In the month of December 2008 the petitioner filed her candidature as an Other Backward Classes (OBC) candidate for All India Civil Services Examination 2009. In August 2009 she had filled her form for All India Civil Services (Main) Examination along with caste certificate of OBC Category which was valid for a period of six 2 months. At the same time she had also applied before the competent authority seeking grant of permanent caste certificate. But the competent authority vide order dated 17.8.2009 rejected the application. Aggrieved, the petitioner challenged the order before the Collector but he too did not agree with her. On 13.11.2009 the petitioner was asked by the Union Public Service Commission (UPSC) to submit OBC caste certificate as the temporary caste certificate did not contain the desired particulars. The petitioner, therefore, again applied for permanent caste certificate which was registered as Case No.95/B-121/2009-10 but that application was also turned down by the Sub-Divisional Officer vide order dated 2.12.2009. Aggrieved, the petitioner challenged the order before the Collector. On 11.2.2010 the UPSC informed the petitioner that since the defects in the caste certificate have not been removed, her candidature will be treated as General Category instead of OBC candidate. The petitioner was then declared successful in the main examination whereafter she undertook interviews in respect of the final list of merit. In the merit list the petitioner secured 134th position. On 22.5.2010 the Collector also, after considering the case of petitioner, allowed her appeal and directed the Sub-Divisional Officer to issue a permanent caste certificate in her favour. On the same day, in compliance of the order of Collector, a permanent caste certificate of OBC Category was issued to the petitioner by the competent authority. Immediately thereafter on 28.5.2010 she made a representation to the Secretary, Department of Personnel and Training, Government of India, for considering her case by accepting the caste certificate and treating her candidature as OBC Category.
3. On 1.6.2010 the petitioner preferred Writ Petition No.7357/2010 before this High Court challenging non-consideration of her candidature in the category of OBC. In writ petition vide order dated 7.6.2010 one post of IAS was directed to be kept vacant. However, the writ petition 3 was dismissed on 23.6.2010 on the ground that it was not maintainable and the petitioner can take recourse to the remedy available under the Administrative Tribunal’s Act 1985. The petitioner, therefore, filed Original Application No.483/2010 before the Tribunal which has been dismissed mainly on the ground that she failed to file her caste certificate within the stipulated period.
4. It may be noted that certain deficiencies were pointed out by the respondents in regard to the caste certificate produced by the petitioner, such as non-mention of generic name of the caste; that the caste certificate was not in the prescribed form; and the same did not fulfil the requisite norms. However, the deficiencies were rectified and the petitioner obtained a non-creamy layer certificate. In the meanwhile, the respondents rejected the claim of the petitioner for OBC category on the ground that the petitioner had submitted the valid certificate after 11th February, 2010. Meanwhile, the petitioner had been allocated to the General category, because she had not produced a valid caste certificate and the respondents refused to re-allocate her the OBC category.
5. Aggrieved, the petitioner has approached this Court on the strength of Rule 16(2) CSE Rules, 2005 meant for competitive examination to be conducted by the UPSC. Rule 16(2) reads thus: "16(2). While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government. If by this process they get a service of higher choice in the order of their preference."
6. The main contention raised on behalf of the respondents is that when the service allocation was made by the respondents in 4 September, 2010 the petitioner had not produced a valid caste certificate. This contention is obviously untenable, because the petitioner, in fact, had produced a valid caste certificate on 20-5-2010 and sent it to the Government of India, since action was required to be taken by the Government of India. The respondents further contended that the petitioner had not made an application along with a valid caste certificate i.e., the caste certificate annexed to her application was defective, as it was not a valid non-creamy layer certificate. This submission may not be sufficient to deny relief to the petitioner because the petitioner had, in fact, produced a creamy layer certificate which had been rejected and was pending appeal. Moreover, it does not appear from the letter rejecting the caste certificate that this ground was mentioned on the issue of rejection. Thus, the position that emerges is that the petitioner had made an application for the UPSC Examination, 2009 along with a valid caste certificate which was not accepted by the respondents on the ground that it contained three specific deficiencies. Thereafter, the petitioner submitted a valid caste certificate before allocation of services in September, 2010. By then the petitioner was treated against an unreserved vacancy. The question is whether the petitioner is entitled to be adjusted against a reserved vacancy by the Government, if by that process she gets a service of her choice in the order of preference, vide Rule 16(2) quoted hereinabove. This aspect has also been considered by the Supreme Court in the case of Union of India vs. Ramesh Ram and others, (2010) 7 SCC 23.where a candidate who had applied in the open category sought adjustment into reserved category at the time of allocation of services. In paragraphs 69 and 70 of the judgment the Supreme Court observed as under:
"9. ..........When MRC candidates are put in the general list on their own merit they do not automatically relinquish their reserved status. By the operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny such candidate 5 the chance to be allotted to a more preferred service. Where, however, an MRC is able to obtain his preferred spot by virtue of his/her ranking in the general list, he/she is not counted as a reserved candidate and is certainly not counted amongst the respective reservation quota."
70. We must also remember that affirmative action measures should be scrutinised as per the standard of proportionality. This means that the criteria for any form of differential treatment should bear a rational correlation with a legitimate governmental objective. In this case a distinction has been made between meritorious reserved category candidates and relatively lower ranked reserved category candidates. The amended Rule 16(2) only seeks to recognise the inter se merit these two classes of candidates for the purpose of allocation to the various civil services with due regard for the preferences indicated by the candidates. In subsequent paragraph 72 of the judgement the Apex Court concluded thus:
"2. We sum up our answers: (i) MRC candidate who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will be offered to general category candidates. (ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service. (iii) The amended Rule 16(2) only seeks to recognise the inter se merit between two classes or candidates i.e., (a) meritorious reserved category candidates (b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various civil services with due regard for the preferences indicated by them. 6 (iv) The reserved category candidates "belonging to OBC/SC/ST categories" who are selected on merit and placed in the list of general unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Article 14, 16(4) and 335 of the Constitution."
7. We find that the observation of the Supreme Court in Ramesh Ram and others (supra) squarely applies to the case of the petitioner in fact, with greater strength, since the petitioner undoubtedly, is a reserved category candidate and is seeking re-allocation back to that category. She was put in the open category by the respondents merely because of the alleged non-submission of a valid caste certificate. In the facts and circumstances of the case, we are of the view that the petitioner had made an application duly accompanied with a valid caste certificate, however, the same was not accepted because of certain deficiencies. Thereafter, the petitioner removed all the deficiencies and made the same good. After she obtained a corrected certificate in accordance with the prescribed form etc. on 22-5-2010 to the effect that since she belongs to non-creamy layer category, therefore, at the time of the allocation her service in September 2010 the form submitted by the petitioner was complete in all respect. Besides, the petitioner had established her credentials completely for consideration of her case with the strength of Rule 16(2) of the CSE Rules.
8. We might add, that this is not a case where a person who had opted the open category seeks adjustment in reserved category, but on the other hand, is a case where a person belonging to a reserved category after making the deficiencies good, is seeking allocation to the reserved categories at the time of allocation. At this juncture, we may note the submission made on behalf of the respondents that the petitioner had not submitted a non-creamy layer certificate and that is why the 7 respondents had refused to consider her case for allocation. This submission is completely contrary to the facts since when the petitioner's certificate was returned and she was asked to submit a valid caste certificate. Objection was raised with regard to the grounds (e), (h) and (l) of the letter dated 13-10-2009 contained in Annexure-P/3 which read as under: "(e) It does not mention both generic name of caste and one of sub-caste as given in the bracket as mentioned in the Central list against Serial No.46 of M.P. State/Union Territory. (h) It is not in the prescribed form. (The relevant Constitution order/Resolution of the Govt. of India not mentioned.). (l) It does not show your full name and full name of your father as shown in your High School Certificate."
9. We are not inclined to accept the submission advanced on behalf of the respondents that this includes an objection that the petitioner's creamy layer certificate was defective. In these circumstances, we find that the petitioner was entitled to be adjusted into an OBC category at the time her allocation of service which was done in September, 2010 after having fulfilled all requisites on 28-5-2010 itself. However, it was contended on behalf of the respondents that there are no sufficient number of posts against which the petitioner can be adjusted. According to the respondents in the Examination in question 66 General category vacancies and 38 OBC category vacancies, totalling 104 vacancies were required to be fulfilled and the case of the petitioner should not have been accommodated under these categories, her rank being at Sr. No.134 in the All India ranking.
10. Shri Shashank Shekhar, learned counsel for the petitioner rightly submitted that the respondents have allocated the IAS post to several persons who are much below in rank to the petitioner such as 8 those holding their ranks at Sr. Nos.135, 136, 137, 140, 158, 160, 162, 168, 169, 182, 186, 189, 193, 195, 196, 203 and 204. All of these candidates who were lower in rank have been allocated in IAS in the OBC category. Thus, we find no justification as to why the petitioner should not have been allocated to the IAS post. The learned counsel for the petitioner further pointed out that the respondents have already made these allocations to the persons who are lower in rank to the petitioner which runs counter to the order of the Tribunal, which had specifically directed that one post be kept vacant for the petitioner during pendency of the Original Application before the Tribunal. In the Original Application an interim order was passed on 1-7-2010, however, the OA was dismissed on 21-2-2012 by the Tribunal. It is obvious from the observation of the Tribunal in paragraph 12 of the order that the respondents had allocated IAS post to the candidates during the pendency of the OA before it and had contended that there was no vacancy left unfilled. Under these circumstances we are not inclined to accept the contention raised on behalf of the respondents that there was no vacancy available.
11. In the result, the impugned order passed by the Central Administrative Tribunal, Jabalpur is set aside. The respondents are directed to allocate the post of IAS to the petitioner reserved for OBC category pursuant to the Civil Services Examination, 2009 within a period of 120 days from today.
12. Accordingly, the rule is made absolute in the above terms. (S.A. Bobde) (Ajit Singh) Chief Justice Judge Chaturvedi/- 9