Ravi Kumar vs. All India Institute Of Medical Sciences

2024:DHC:771
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* IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ W.P.(C) 15514/2023 & CM APPL. 62139/2023

Between:-

RAVI KUMAR
S/O SH. SHYAM NANDAN KUMAR
YADAV, AGED ABOUT 28 YEARS, R/O WARD
NO.01, VILLAGE/TOWN – MADHOPUR SUSTA,
POST OFFICE & P.S. – MANIYARI BLOCKKURHANI,
SUB-DIVISION- MUZAFFARPUR
WEST, DISTRICT– MUZAFFARPUR, BIHAR ..... PETITIONER

(Through: Mr.Amitesh Kumar, Ms.Priti Kumari and Mr.Mrinal
Kishor, Advocates.)

AND

ALL INDIA INSTITUTE OF MEDICAL SCIENCES
ALL INDIA INSTITUTE OF MEDICAL SCIENCES
ST
(AIIMS), 1 FLOOR, CONVERGENCE BLOCK,
ANSARI NAGAR, NEW DELHI 110608
THROUGH ITS REGISTRAR ..... RESPONDENT

(Through: Mr. Anand Varma, Ms. Apoorva Pandey and Mr. Ayush
Gupta, Advocates.)


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Signature Not Verified
Signature Not Verified
Digitally Signed
By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

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2024:DHC:771

J U D G M E N T

1. A candidate is allowed to sit in an examination under the Other
Backward Classes (Non-Creamy Layer) [hereinafter ‘OBC-NCL’] category
without any demur and qualifies in the merit list associated with the said
category. He successfully submits his OBC-NCL certificate well within the
time and date stipulated for submission of certificates. Nevertheless, his
candidature gets cancelled on account of his failure to submit the OBC-
NCL certificate issued within a particular timeframe or cut-off date
stipulated in the prospectus of the said examination. The legality of
cancellation of admission and the constitutional validity of such timeframe
or cut-off for submission of OBC-NCL category certificates are the core
issues that arise in this petition.

2. The instant petition has been filed assailing two e-mail
communications dated 27.11.2023 and 29.11.2023. Vide e-mail dated
27.11.2023, the candidature of the petitioner has been assigned to un-
reserved category; and vide another e-mail dated 29.11.2023, the
petitioner’s OBC-NCL category certificate has been considered as invalid
and not been considered for admission through Institution of National
Importance Combined Entrance Test (INI-CET) January, 2024 session
conducted by the respondent-All India Institute of Medical Sciences
(hereinafter ‘AIIMS’).
3. The facts of the case would show that the respondent conducted the
January, 2024 session of INI-CET for admissions into the Institutes of
National Importance for Medical Education such as AIIMS, New Delhi, the
new AIIMS centres located in different parts of the country, JIPMER-
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

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Puducherry, NIMHANS-Bengaluru, PGIMER-Chandigarh and SCTIMST-
Trivandrum etc., for the post graduate courses i.e., MD, MS, DM (6 Yrs),
M.Ch. (6 Yrs) and MDS.
4. The prospectus for the said examination was issued on 15.09.2023
and the applications from the eligible candidates were invited from
15.09.2023 to 05.10.2023.
5. Clause 2 of the prospectus (Part-B) prescribes for reservation of seats
as per Government of India (‘GoI’) guidelines—15% for SC, 7.5% for ST,
27% for OBC and 10% for EWS, excluding sponsored/foreign national
candidates. That apart, reservation for persons with benchmark disability
was also stipulated besides the provision for institute preferences etc.
6. The prospectus provided for the date for uploading the valid
certificate/card, such as SC/ST/OBC(NCL)/EWS/PwBD, OCI Card etc., to
be from 27.09.2023 (05:00 pm onwards) to 05.11.2023 (till 05:00 pm).
7. Note-2 of the prospectus required that the applicants seeking
reservation/relaxation benefit available for SC/ST/OBC(NCL)/EWS/
PwBD must ensure possession of the requisite valid certificate in the
prescribed format in support of their claim. The OBC-NCL certificate was
required to have been issued during the period envisaged in the ‘Important
Dates’ column, it being from 06.11.2022 to 05.11.2023, both dates
inclusive. For the sake of clarity, Note-2 of the prospectus is extracted
below:-
“Note 2. Applicants seeking reservation/relaxation benefits available for
SC/ST/OBC/EWS/PwBD must ensure that they are entitled to such
reservation/relaxation. They should be in possession of all the requisite
valid certificates in the prescribed format in support of their claim. The
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

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OBC(-NCL) certificates should have been issued between period as
mentioned in Important Dates. The EWS certificate must be valid as
mentioned in Important Dates

The SC/ST/OBC(NCL)/EWS/PwBD certificates must be uploaded with
online registration on or before date of examination as mentioned in the
Important dates/Notice published. The applicants will be required to
upload appropriate valid certificates and, therefore must take utmost
care to ensure that required valid certificates are uploaded. These
uploaded certificates may be preliminarily scrutinized during the process
of seat allocation for postgraduate courses, for determination of veracity
of claim by the candidates for reservation/relaxation as applicable,
however this preliminary scrutiny shall be subject to production and
verification of original documents at the time of reporting/joining for
allocated postgraduate seat and candidature is liable to be cancelled in
case of discrepancies of any kind detected. Allocation of seat doesn‟t
guarantee acceptance of eligibility which is always provisional.”

8. Further, at page no.26 of the prospectus (Part-A), under the heading
‘Important Dates’, the following dates were stipulated:-

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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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9. The status of completion of applications was required to be displayed
after 17.10.2023 and the date for uploading the admit card was shown to be
30.10.2023. The examination was scheduled for 05.11.2023, with the
expected date for the declaration of result being 11.11.2023 and the last
date of admission was shown to be 29.02.2024.

10. As per Section XI (Part-A) of the prospectus, the declaration of the
results shall be followed by the allocation of seats through the online mode.
The said allocation of seats to eligible candidates is contemplated in two
rounds. The seat is allocated according to—the order of merit; choices
made by the candidates; and as per the reservation policies of individual
INIs with regards to institutional preference, community reservation (OBC,
SC, ST, EWS etc.) and PwBD status, as applicable.
11. The petitioner had submitted his application for INI-CET
examination enclosing an OBC-NCL certificate dated 02.10.2022 issued by
the competent authority, whereby, he was certified to be belonging to the
OBC-NCL category.
12. Within the time stipulated in the prospectus, the admit card of the
petitioner, on preliminary scrutiny, was uploaded by the respondent on the
concerned website, on the basis of which, the petitioner then appeared for
the examination on 05.11.2023.
13. On 11.11.2023, the respondent issued the notification no. 213/2023,
whereby, the list of provisionally qualified candidates was notified. The
name of the petitioner was reflected under the OBC-NCL category as
having secured 89.037 percentile and an overall rank of 6399.
Signature Not Verified
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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14. Thereafter, the respondent issued notice no. 242/2023 dated
20.11.2023, whereby, the schedule of online seat allocation was released.
As per the aforesaid notice, the first round of online seat allocation was
proposed to commence from 28.11.2023 and the second round of online
seat allocation was scheduled to commence from 19.12.2023.
15. Subsequently, on 22.11.2023, the petitioner received an e-mail from
the respondent, at around 05:18 pm, seeking an explanation about the
OBC-NCL certificate submitted by him and further requiring the petitioner
to re-upload the valid certificate by 23.11.2023 (till 05:00 pm). The
petitioner then uploaded a fresh OBC-NCL certificate, issued by the
competent authority on 23.11.2023 itself, within the timeframe prescribed
by the respondent.
16. However, to his surprise, on 27.11.2023, he was served with an e-
mail from the respondent, notifying him about the said certificate not being
in order as the same was issued after 05.11.2023. Accordingly, the
petitioner was informed that his candidature would be considered only in
the unreserved category as his cut off rank is under the unreserved merit
list. Vide another e-mail dated 29.11.2023, the respondent informed the
petitioner that since the OBC-NCL certificates submitted by the petitioner
were not issued within the timeline stipulated in the prospectus, the
petitioner is not being considered under the OBC-NCL category for the
purpose of the said examination and admission.
17. The petitioner being aggrieved by both the communications filed the
instant writ petition on 01.12.2023. The petition was taken up for hearing
on the same date. The respondent entered appearance on advance notice.
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

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The parties were heard and subject to further hearing, this court directed the
respondent to consider the petitioner’s candidature and allow him to
participate in the counselling process under the OBC-NCL category.
18. On 07.12.2023, the first round of seat allocation was announced, and
on the same day, the petitioner was allocated a seat at AIIMS, Guwahati, in
the Physical Medicine and Rehabilitation course under the OBC-NCL
category. Accordingly, on 11.12.2023, the petitioner joined the said
institute as a Junior Resident (Academic) in the above mentioned course.
During the pendency of this petition, the second round of counselling was
also conducted and the admission process came to an end.
19. The respondent has filed its counter-affidavit and has opposed the
prayer made in the instant writ petition. The petitioner was granted liberty
to file the rejoinder and thereafter, the matter was heard on its merits.
SUBMISSIONS
20. Mr. Amitesh Kumar, learned counsel appearing on behalf of the
petitioner submits that there is no rationale behind requiring the candidates
to furnish an OBC-NCL certificate issued between 06.11.2022 to
05.11.2023. He submits that at the time of submission of his candidature,
the petitioner furnished the OBC-NCL certificate dated 02.10.2022.
Thereafter, in order to ensure the furnishing of the latest certificate, he
applied for the income certificate on 25.10.2023 and on the issuance of the
income certificate on 06.11.2023, he applied with the competent authority
for the issuance of a fresh OBC-NCL certificate on 17.11.2023, which was
issued to the petitioner on 23.11.2023.
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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21. He further submitted that incidentally, the last date of the prescribed
timeframe within which the latest OBC-NCL certificate was required to be
submitted was also 23.11.2023 and therefore, the petitioner was able to
upload the latest certificate issued on 23.11.2023.
22. He, therefore, explains that the petitioner in the instant case, is
admittedly an OBC-NCL candidate and on account of his merit position in
the said category, he has already been allocated a PG seat and merely on a
technical ground of not submitting a certificate issued between 06.11.2022
to 05.11.2023, his candidature ought not to have been rejected.
23. He has taken this court through various office memorandums issued
by the Government of India, Ministry of Personnel, Public Grievance &
Pensions (Department of Personnel & Training) to indicate that the basis
for issuance of the OBC-NCL certificate is the assessment of the annual
income/wealth of the respective candidates for a period of three
consecutive years, preceding the year of issuance of the OBC-NCL
certificate.
24. Learned counsel, particularly, emphasizes on an office memorandum
dated 31.03.2016 to indicate that the said Ministry invited comments of all
concerned on the NCL format which was proposed by the National
Commission for Backward Classes (NCBC). According to him, the office
memorandum clearly illustrates that for issuance of a valid OBC-NCL
certificate, the income of the three preceding financial years, prior to the
issuance of the certificate, is to be considered. He then submits that once
the certificate is issued on the basis of income/wealth of three preceding
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

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years, the same remains valid for the year for which the certificate is
issued.
25. Learned counsel has placed reliance on the decision of the
Coordinate Bench of this court in the case of Pushpa v. Government, NCT
1
of Delhi and Ors. , wherein, this court has considered the OBC certificate
issued by the competent authority after expiry of the last date of submission
of application for the employment. He, therefore, submits that the principle
laid down in the case of Pushpa (supra) was reiterated by another
Coordinate Bench of this court in the case of Ram Kumar Gijroya v. Delhi
2
Subordinate Services Selection Board and Anr . (hereinafter ‘ Ram Kumar
Gijroya ’). Against the order passed in the case of Ram Kumar Gijroya ,
Delhi Subordinate Services Selection Board filed an LPA 562/2011 and the
Division Bench of this court set aside the decision passed by the learned
Single Judge, through the judgement and order reported as Delhi
Subordinate Services Selection Board & Anr. v. Ram Kumar Gijroya &
3
Ors. [hereinafter ‘ Ram Kumar Gijroya (DB) ’].
26. Thereafter, Ram Kumar Gijroya (DB) was challenged before the
Hon'ble Supreme Court by way of a Special Leave Petition. However, prior
to the decision of the Hon’ble Supreme Court, another decision was given
by the Division Bench of this court in the case of Anil Kumar & Anr. v.
4
Union of India. , wherein, the principle laid down in the case of Pushpa
(supra) was approved. Learned counsel then submits that the Hon'ble
Supreme Court, even in Ram Kumar Gijroya v. Delhi Subordinate

1
2009 SCC OnLine Del 281
2
2010 SCC OnLine Del 4780
3
2012 SCC OnLine Del 472
4
2013 SCC OnLine Del 1401
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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5
Services Selection Board & Anr. [hereinafter ‘ Ram Kumar Gijroya
(SC)‟ ], approved the principle of law laid down in the case of Pushpa
(supra) and the same has been found to be in accordance with the law laid
down by the Constitution Bench of the Hon'ble Supreme Court in the case
6
of Indra Sawhney and Ors. v. Union of India and Ors . and another
decision of the Hon’ble Supreme Court in the case of Valsamma Paul v.
7
Cochin University . The Hon’ble Supreme Court further set aside the
decision passed by the Division Bench of this court in Ram Kumar Gijroya
(DB) , and restored the judgement of the learned Single Judge in Ram
Kumar Gijroya .
27. He submits that in another decision in the case of Karn Singh Yadav
8
v. Govt. of NCT of Delhi & Ors. , the Hon’ble Supreme Court doubted the
proposition laid down in the case of Ram Kumar Gijroya (SC) and referred
the same to be considered by a larger Bench of three judges. When the
matter was placed before the larger Bench, it has been found that the
controversy was completely covered by the decision in the case of Ram
Kumar Gijroya (SC), however, in that case, it was also noted therein that
the appellant was never appointed for the post in question and therefore, the
Hon'ble Supreme Court found that no substantial relief could be granted.
28. Learned counsel has also placed reliance on the final decision in the
9
case of Bhumika Choudhary v. All India Institute of Medical Sciences ,
wherein, relief against the same respondent was granted on similar
parameters. It is further submitted that when the decision in the case of

5
2016 SCC OnLine SC 184
6
1992 Supp (3) SCC 217
7
(1996) 3 SCC 545
8
2020 SCC OnLine SC 1472
9
2019 SCC OnLine Del 10483
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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Bhumika Choudhary (supra) was preferred in an appeal at the instance of
the respondent therein, the Division Bench of this court on 08.11.2019,
declined to grant interim relief and the order of declining the interim relief
was challenged by the aggrieved party before the Hon’ble Supreme Court.
The Hon’ble Supreme Court dismissed the SLP vide order dated
25.11.2019. He, therefore, submits that the Division Bench in LPA No.
700/2019 in its subsequent order dated 20.01.2020 noted that the lis
pending before the said court had rendered infructuous; accordingly, the
appeal was dismissed.

29. He has also placed reliance on an interim order passed by this court
in Shivani Dhiman v. All India Institute of Medical Sciences in W.P.(C)
9808/2022 dated 27.09.2021 and the order dated 31.07.2023 in W.P.(C)
9958/2023 in J. Vinutha v. All India Institute of Medical Sciences-
AIIMS & Anr.
30. Mr. Anand Verma, learned counsel appearing on behalf of the
respondent, while extensively relying on the counter affidavit, submitted
that the instant writ petition is bereft of any merit, the same does not have
any substance and is an abuse of the process of law. Learned counsel
explains that the cut-off date mentioned in the prospectus is sacrosanct and
the same has to be rigorously adhered to by all concerned. According to
him, if the petitioner had any grievance with respect to the dates, he should
have challenged the same before appearing in the examination. Once the
petitioner appeared in the examination, at a belated stage, he cannot be
allowed to challenge the terms of the prospectus. He submits that in the
instant case, the opportunity was offered to the petitioner not to obtain a
fresh certificate but only to re-upload the certificate he had, if any, between
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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the dates mentioned in the prospectus i.e., 06.11.2022 to 05.11.2023. The
aforesaid opportunity could not have meant that the candidate was entitled
to obtain a fresh OBC-NCL certificate and furnish the same to the
respondent.
31. According to him, if such a process is resorted to, it would become
impossible for the respondent to take the concerned examination to its
logical end. He cites various practical difficulties in accepting such a
belated certificate once the examination is over and the result is declared.

32. Learned counsel has further explained that in the instant case, the
petitioner did not apply for fresh OBC-NCL certificate before the cut-off
date i.e., 05.11.2023. He submits that the petitioner himself is responsible
for the aforesaid situation when despite having sufficient time, he slept
over the matter and had only applied when the final result was declared.
33. Learned counsel has also read over the relevant clauses, important
dates in the prospectus and then explained the importance of their
adherence by the respective candidates. According to him, there is no office
memorandum issued by the GoI requiring the respondent to prescribe any
particular cut-off date. Rather, taking a cue from various office
memorandums, he submits that it would be up to the employer or an
educational institution to prescribe any cut-off date for fulfilling eligibility
criteria or accepting certificates seeking necessary reservations.
34. Learned counsel has attempted to distinguish the decisions relied
upon by the petitioner. He has placed reliance on a decision of the Hon’ble
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KUMAR KAURAV
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10
Supreme Court in the case of Sakshi Arha v. Rajasthan High Court to
submit that there was divergence of the view by two different judges
pertaining to whether view taken by the Hon'ble Supreme Court in the case
of Ram Kumar Gijroya (SC) is to be accepted and therefore, the matter has
been placed before Hon’ble the Chief Justice of India to list it before an
appropriate Bench.
35. He has also placed reliance on the decisions of the Hon'ble Supreme
Court in the cases of Union Public Service Commission v. Gaurav Singh
11
& Ors. , Pichra Warg Kalyan Mahasabha Haryana v. State of
12 13
Haryana , Rekha Chaturvedi v. University of Rajasthan , Ashok Kumar
14 15
Sharma v. Chander Shekhar , Divya v. Union of India , Mohit Sharma
16
v. All India Institute of Medical Sciences , Harshul Saini v. Indian
17 18
Institute of Technology , Union of India v. Mahendra Singh , Bedanga
19 20
Talukdar v. Saifudaullah Khan and Gaurav Sharma v. State of U.P.
36. I have heard the learned counsel appearing on behalf of the parties
and have carefully examined the record and precedents.
ANALYSIS
37. The primary grievance of the petitioner relates to the rejection of his
candidature on the ground of non-submission of the requisite OBC-NCL

10
2023 SCC OnLine SC 662
11
2022 SCC OnLine SC 2116
12
2021 SCC OnLine SC 635
13
1993 Supp (3) SCC 168
14
(1997) 4 SCC 18
15
2023 SCC OnLine SC 1305
16
2019 SCC OnLine Del 9556
17
2023 SCC OnLine Del 749
18
2022 SCC OnLine SC 909
19
2011 SCC OnLine SC 1325
20
2017 SCC OnLine All 1286
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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certificate issued within the timeframe stipulated in the prospectus of the
respondent.
38. It is an admitted position that apart from the aforesaid deficiency
indicated by the respondent, there existed no other shortcoming or
ineligibility on the part of the petitioner for securing admission. Put
otherwise, the petitioner duly fulfils all the other required eligibility criteria
for securing admission in the concerned course through the INI-CET 2024
examination.

39. The sole issue that arises before this court is whether the candidature
of the petitioner under OBC-NCL category is liable to be cancelled if the
OBC-NCL category certificate was issued beyond the cut-off date and
timeframe prescribed by the respondent for issuance of the said certificate.
40. To begin with, it is apposite to refer to Pushpa (supra) , wherein, this
court adjudicated upon the issue—whether the candidature of the petitioner
in the reserved OBC category could be denied on the ground that the OBC
certificate was issued by the competent authority and submitted by the
petitioner after the expiry of the prescribed cut-off date. The court
answered in the negative on two independent grounds.
41. The court opined that the insistence upon an OBC category
certificate issued prior to a particular date would be arbitrary, as the same
has no rational nexus with the object of providing reservations. The court
based this conclusion on two parameters. Firstly, the OBC certificate is
only an affirmation of a fact that already exists and thus, the court, in
paragraph no. 6, observed as follows:-
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KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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“6. As per the advertisement published in the month of January, 2008
issued by the Delhi Subordinate Services Selection Board, vacancies
were reserved for various categories including „OBC‟ category. Thus in
order to be considered for the post reserved for „OBC‟ category, the
requirement is that a person should belong to „OBC‟ category. If a
person is „OBC‟, she is so by birth and not by acquisition of this
category because of any other event happening at a later stage. A
certificate issued by competent authority to this effect is only an
affirmation of fact which is already in existence. The purpose of such
certificate is to enable the authorities to believe in the assertion of the
candidate that she belongs to „OBC‟ category and act thereon by giving
the benefit to such candidate for her belonging to „OBC‟ category. It is
not that petitioner did not belong to „OBC‟ category prior to 21st
January, 2008 or that acquired the status of being „OBC‟ only on the
date of issuance of the certificate. In view of this position, insisting
upon a certificate dated prior to 21st January, 2008 would be clearly
arbitrary and has no rationale objective to be achieved. ”
[Emphasis supplied]

42. Secondly, the court opined that Articles 15(4) and 16(4) of the
Constitution of India are enabling provisions for providing reservations and
are based on the principle of equality. The aim of the said provisions is to
remedy the inequalities existing in the society, by providing equal
opportunities. It was thus, the court held, the fundamental right of a person
belonging to the OBC category, to seek reservation. The scales, therefore,
tilt in favour of a person seeking enforcement of his/her fundamental rights
rather than the organization insisting upon a cut-off date. In this regard, the
court held as under:-
“7. Caste is the only accepted criteria to identify under-represented
groups. The underlying theory is that the under-representation of the
identifiable groups is a legacy of the Indian caste system. After India
gained independence, the Constitution of India listed some erstwhile
groups as Scheduled Castes (SC) and Scheduled Tribes (ST). The
framers of the Constitution believed that, due to the caste system, SCs
and the STs were historically oppressed and denied respect and equal
opportunity in Indian society and were thus under-represented in
nation-building activities. Later, reservations were introduced for other
sections as well.
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By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
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8. The principle of equality permeates the Constitution of India. All the
citizens are entitled to be treated by the state equally, irrespective of
their caste, race, religion, sex, descent, place of birth and residence. No
citizen may be discriminated against by the state only on any of these
grounds. The exceptions to this principle are made in favour of women
and children, the backward classes, the Scheduled Castes and the
Scheduled Tribes, and the weaker sections.
9. Referring to the reasons for reservation, the Hon'ble Apex Court in
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, observed as
under:
“251. Referring to the concept of equality of opportunity in
public employment, as embodied in Article 10 of the draft
Constitution, which finally emerged as Article 16 of the
Constitution, and the conflicting claims of various communities
for representation in public administration, Dr Ambedkar
emphatically declared that reservation should be confined to „a
minority of seats‟, lest the very concept of equality should be
destroyed. In view of its great importance, the full text of his
speech delivered in the Constituent Assembly on the point is
appended to this judgment. But I shall now read a few passages
from it. Dr Ambedkar stated:
“… firstly, that there shall be equality of opportunity, secondly,
that there shall be reservations in favour of certain communities
which have not so far had a „proper look-in‟ so to say into the
administration… Supposing, for instance, we were to concede in
full the demand of those communities who have not been so far
employed in the public services to the fullest extent, what would
really happen is, we shall be completely destroying the first
proposition upon which we are all agreed, namely, that there
shall be an equality of opportunity…Therefore the seats to be
reserved, if the reservation is to be consistent with sub-clause
(1) of Article 10, must be confined to a minority of seats. It is
then only that the first principle could find its place in the
Constitution and effective in operation … we have to safeguard
two things, namely, the principle of equality of opportunity and
at the same time satisfy the demand of communities which have
not had so far representation in the State, …”. Constituent
Assembly Debates, Vol. 7, pp.701-702 (1948-49).
(emphasis supplied)
These words embody the raison d'etre of reservation and its limitations.
Reservation is one of the measures adopted by the Constitution to
remedy the continuing evil effects of prior inequities stemming from
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discriminatory practices against various classes of people which have
resulted in their social, educational and economic backwardness.
Reservation is meant to be addressed to the present social, educational
and economic backwardness caused by purposeful societal
discrimination. To attack the continuing ill effects and perpetuation of
such injustice, the Constitution permits and empowers the State to adopt
corrective devices even when they have discriminatory and exclusionary
effects. Any such measure, in so far as one group is preferred to the
exclusion of another, must necessarily be narrowly tailored to the
achievement of the fundamental constitutional goal.”
*
11. The issue is also no more res integra as in the case of Tej Pal
Singh v. Govt. of NCT of Delhi, (2005) 120 DLT 117 this Court has
already taken a view that the candidates who belong to „SC‟ and „ST‟
categories but could not file certificate in proof of the same could not
have been rejected simply on account of the late submission of the
certificates and submission of such certificates cannot be made a pre-
condition for accepting the application forms. The relevant para of the
said judgment is reproduced as under:
“17. The matter can be looked into from another angle also. As
per the advertisement dated 11th June, 1999 issued by the
Board, vacancies are reserved for various categories including
„SC‟ category. Thus in order to be considered for the post
reserved for „SC‟ category, the requirement is that a person
should belong to „SC‟ category. If a person is SC his is so by
birth and not by acquisition of this category because of any
other event happening at a later stage. A certificate issued by
competent authority to this effect is only an affirmation of fact
which is already in existence. The purpose of such certificate is
to enable the authorities to believe in the assertion of the
candidate that he belongs to „SC‟ category and act thereon by
giving the benefit to such candidate for his belonging to „SC‟
category. It is not that petitioners did not belong to „SC‟
category prior to 30th June, 1998 or that acquired the status of
being „SC‟ only on the date of issuance of the certificate. In
view of this position, necessitating upon a certificate dated prior
to 30th June, 1998 would be clearly arbitrary and it has no
rationale objective sought to be achieved.
18. While taking a particular view in such matters one has to
keep in mind the objectives behind the post of SC and ST
categories as per constitutional mandate prescribed in Articles
15(4) and 16(4) which are enabling provisions authorising the
Government to make special provisions for the persons of SC
and ST categories. Articles 14(4) and 16(4), thereforee, intend
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to remove social and economic inequality to make equal
opportunities available in reality. Social and economic justice is
a right enshrined for protection of society. The right in social
and economic justice envisaged in the Preamble and elongated
in the Fundamental Rights and Directive Principles of
the Constitution, in particular
Arts. 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the
life of the poor, disadvantaged and disabled citizens of the
society meaningful.
19. One can usefully draw sustenance from the following words
of wisdom spoken by the Apex Court in Valsamma Paul
(Mrs.)v. Cochin University, (1996) 3 SCC 545:—
“The Constitution through its Preamble, Fundamental
Rights and Directive Principles created a Secular State
based on the principle of equality and non-
discrimination, striking a balance between the rights of
the individuals and the duty and commitment of the State
to establish an egalitarian social order. The emphasis,
thereforee, is on a citizen to improve excellence and
equal status and dignity of person with the advancement
of human rights and constitutional philosophy of social
and economic democracy in a democratic polity to all
the citizens on equal footing.….”
43. Further, in Pushpa (supra) , the other independent ground upon
which the court based its judgement was that the fault lied with the
authorities and it was owing to their delay that the petitioner was unable to
submit the certificate within the cut-off date.
44. Subsequently, three set of judgements and orders bear importance for
the consideration of the present issue- first , by the learned Single Judge of
this court in Ram Kumar Gijroya ; second, by the Division Bench of this
court in Ram Kumar Gijroya (DB) reversing the decision of the learned
Single Judge; and third , by the Hon’ble Supreme Court in Ram Kumar
Gijroya (SC) reversing the decision of the Division Bench of this court and
restoring the judgement of the learned Single Judge.
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45. This court in Ram Kumar Gijroya found that the facts of the case
therein were similar to that of Pushpa (supra) , as according to the learned
Single Judge, in both the cases, the only ground for declining the
petitioner’s application was the issuance of OBC certificate beyond the cut-
off date. The court then, relying upon Pushpa (supra)‟ s dicta of insisting
upon a certificate prior to a cut-off date to be arbitrary, struck down the
requirement in Ram Kumar Gijroya . The material part of the judgement
reads as under:-
“7. Counsel for the petitioners relies on a decision of this Court in Ms.
Pushpa v. Government, NCT of Delhi, CM No. 17504/2008 in WP(C)
th
No. 9112/2008, decided on 11 February, 2009, with respect to the
same Notification issued by the same respondents, as in the present
st
case. In that case also, cut-off date was prescribed as 21 January,
2008 for the submission of the necessary OBC certificate . In paragraph
6 of the aforesaid decision, it was categorically held that the certificate
issued by a competent authority is only an affirmation of the fact
which is already in existence. It is not as if the granting of such
certification confers the status of OBC on a person for the first time,
or that, that person did not belong to the OBC category prior to 21st
January, 2008. It was for this reason that, insisting upon a certificate,
which carries a date prior to 21st January, 2008, would be arbitrary
and deserves to be struck down. It has also been brought to my notice
that the same counsel appeared for the respondents in that matter also,
and that no appeal has been preferred from that decision. In this matter
also, the only ground for declining the petitioners‟ applications was that
the OBC certificate had been issued after the „cut-off date‟, and
therefore, they were not eligible for consideration. Respondent has not
cited any other authority to distinguish the decision in Ms. Pushpa's
case (supra) or to persuade me to hold otherwise.
8. Consequently, the petition is disposed of for the reason as recorded in
the aforesaid decision in the case of Ms. Pushpa v. Government, NCT of
Delhi (supra) and the respondents are directed to re-consider the
applications of the petitioners against the OBC category within a period
of one month and to announce results taking in view the relaxation
available to the OBC candidates.”
[Emphasis supplied]
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46. Subsequently, the Division Bench of this court in Ram Kumar
Gijroya (DB) laid stress on the fact that four out of the five respondents
therein had applied for the OBC certificate after the cut-off date and the
remaining sole respondent had applied only 10 days prior to the cut-off
date. The decision in Pushpa (supra) came to be distinguished as
according to the Division Bench, it was due to the delay on the part of the
authorities that the breach of the cut-off date was condoned. It is
noteworthy to mention that the Division Bench did not consider Pushpa
(supra) , to declare that the very insistence of a cut-off date is arbitrary,
which was the interpretation of the learned Single Judge.
47. It is further important to mention a few observations and findings of
the Division Bench, that would help appreciate the scope of the subsequent
order of the Hon’ble Supreme Court. In paragraph no. 17, the Division
Bench noted that the advertisement clearly provided that the certificates of
belonging to the OBC category had to be filed along with the application
by the cut-off date. The material part reads as under:-
“17. On the contrary, the advertisement in the appeal as well as the writ
petition clearly provided that the certificates of belonging to OBC
category had to be filed along with the application by the cut off
date…”

48. Further, in paragraph no. 19, the Division Bench treated the
requirement of OBC certificate akin to a qualification, meaning thereby
that similar to a qualification, the OBC certificate is to be possessed as on
the cut-off date. This finding of the Division Bench, as the Hon’ble
Supreme Court also noted, was against Pushpa (supra) , in the sense that it
implicitly created a distinction between qualification for examination (the
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requirement of a matriculation certificate, for instance) and that of an OBC
certificate which is a mere proof of an eligibility already existing.
Moreover, in paragraph no. 19, the Division Bench laid great stress on the
argument presently being made by the respondent—that those who did not
possess the certificate and did not apply would be discriminated against and
unfair treatment would be meted out to them. Paragraph no. 19 is
reproduced as under:-
“19. Else, what has been observed by us qua qualification, equally
applies to submission of OBC Certificate also. It is well-nigh possible
that a number of other OBC candidates, though otherwise eligible but
not in possession of the OBC Certificate by the cut off date, did not
apply under the belief that being required to enclose the OBC
Certificate along with the application and being not in possession
thereof, their applications would be deficient and not entertainable. It is
yet further possible that, had such others applied and competed, the
respondents in appeal and/or the petitioner in the writ petition may not
have been eligible. The respondents in appeal and the petitioner in the
writ petition were clearly in the know that their applications were
incomplete and took a chance. This Court cannot lay down a law which
would encourage such practices. The terms and conditions mentioned in
the advertisement were intended, to guide/instruct the prospective
applicants and there is no reason to dilute the same. Even otherwise,
this Court would be loathe to issue mandamus/directive contrary to the
terms of selection/appointment (see Karnataka State Road Transport
Corporation v. Ashrafulla Khan (2002) 2 SCC 560, FCI v. Ram Kesh
Yadav (2007) 9 SCC 531, Maharishi Dayanand University v. Surjeet
Kaur JT 2010 (7) SC 179 and State of West Bengal v. Subhas Kumar
Chatterjee (2010) 11 SCC 694).”

49. Before the Hon’ble Supreme Court in Ram Kumar Gijroya (SC) , the
judgment of the Division Bench was set aside and the decision of the
learned Single Judge was restored. The Hon’ble Supreme Court opined that
the learned Single Judge had correctly appreciated the constitutional
backdrop of reservations and the object for which they were introduced.The
material part of the judgement reads as under:-
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(supra) to be applicable to a case where— (1) the advertisement explicitly
provides for the OBC certificate to be filed along with the application
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before the cut-off date; and (2) the OBC certificate is applied for after the
cut-off date.
51. The judgement of Anil Kumar & Anr. (supra) is also of
significance. The advertisement, which the Division Bench found was
commonly worded in the cases of both the petitioners, under Clause 4(C)
stipulated that the candidates claiming OBC must submit a certificate duly
issued within three years before 04.03.2011. The petitioners therein had
originally, along with their applications, submitted OBC certificates that
were dated prior to three years and thus, breached the requirement under
the advertisement. However, subsequently, they submitted OBC certificates
dated 02.12.2011 and 25.01.2011.
52. The Division Bench relied upon Hari Singh v. Staff Selection
21
Commission , wherein, the candidate had initially produced a defective
certificate but later, after the cut-off date, produced the correct certificate
and the court had ruled that cut-off date must be interpreted and understood
as benefitting an OBC category candidate as opposed to ousting him. The
interpretation in Hari Singh (supra) was based upon the constitutional
scheme and purpose of reservation and was in line with the pronouncement
of the Hon’ble Supreme Court in Valsamma Paul (supra) , which is
reiterated in Anil Kumar (supra) , wherein, it was held that — the cut-off
date is meant to signify that the subsequent falling of an OBC candidate
into the creamy layer beyond the cut-off date would not affect their OBC
status for the purpose of exam/application. Meaning thereby, that there
would be no difficulty in accepting an OBC certificate even beyond the cut-

21
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off date as it could not be the case that a candidate fell inside the creamy
layer prior to such date. What is more probable is the candidate becoming a
part of the creamy layer after the issuance of the certificate. The material
part of Anil Kumar (supra) which relies upon Hari Singh (supra) reads as
under:-
“9. In Hari Singh (supra), the Division Bench had to deal with identical
fact situation where the candidature had initially produced a defective
certificate but later after the cut-off date indicated in a stipulation
worded identically with Clause 4(B), as in the present case, produced
the correct certificate. The Court noticed certain previous judgments,
including the judgment of the Supreme Court in Mrs. Valsamma Paul v.
Cochin University, (1996) 3 SCC 545 : AIR 1996 SC 1011, where the
Court had emphasized that the concerned citizen, to improve his
excellence, equal status and dignity with the advancement of human
rights is afforded the opportunity of a reservation, and held that the
submission of a certificate within reasonable time even if it is not at the
time of making of application for the job, would be in order and cannot
be rejected. The Bench in Hari Singh (supra) also noted a ruling in
Deepak v. Competent Authority for the Purpose of Admission to
Engineering Course in Government Engineering College, Pune AIR
1997 (Bom) 1, where it was held that the requirement of caste
verification cannot be made a precondition for accepting the
application of those candidates belonging to reserved categories. In
Hari Singh (supra), the Court finally held as follows:
“47. The prescription in the public notice in question that the closing
date for receipt of application would be treated as the date of
reckoning of OBC status of the candidate and also for ascertaining
that the candidate does not fall in the creamy layer, in our view, is a
prescription evolved for the benefit of the candidates belonging to
OBC category and not for the purpose of ousting them from the
benefit of reservation. What the NOTE under Clause 4(B) (set out in
para 5 above) provides is that, if a candidate is certified as being an
OBC category candidate not falling within the creamy layer prior to
the close of the date of submission of applications (i.e. 14.09.2007 in
this case) then the candidate would be treated as an OBC candidate
not falling in the creamy layer for the purpose of the examination in
question, and the issue that the candidate may have come into the
creamy layer subsequently, i.e. after the date of closing, would not be
relevant or gone into to deny the benefit of reservation to such a
candidate.
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48. The prescription in the NOTE appended to Clause 4(B) does not
get whittled down merely by acceptance of an OBC certificate issued
on a later date. A candidate who is certified as belonging to an OBC
and as not belonging to the creamy layer on a later date than the one
fixed by the public advertisement cannot be assumed to be as falling
under the creamy layer on any date prior to the date of issuance of the
certificate. There would be no basis for such an assumption. The
possibility of such an eventuality is highly remote. In fact, the greater
probability is that a candidate who may have been certified as an
OBC candidate falling outside the creamy layer, may actually get
covered by the creamy layer on a later date.
49. In any event, we are not suggesting that the respondents are
precluded from examining the issue of eligibility of any candidate to
claim the benefit of reservation. But, they cannot reject the
candidature of such a candidate as a reserved category candidate and
are bound to consider the candidature of the candidate concerned
“provisionally” and, subject to the final determination, to even
appoint the person concerned if found otherwise eligible and
meritorious. Similar submissions have already been rejected by this
Court in Anu Devi (supra) and in Poonam Chauhan (supra).”

53. Furthermore, in Anil Kumar (supra) , the Division Bench of this
court, prior to the decision by the Hon’ble Supreme Court in Ram Kumar
Gijroya (SC) , doubted the correctness of Ram Kumar Gijroya (DB) . It did
so on the following grounds— firstly , the judgment of Hari Singh (supra)
was not noticed and the mandate laid down by the Hon’ble Supreme Court
in Valsamma Paul (supra) , of adopting a liberal approach in such matters,
was also ignored; secondly , the treatment of the requirement of OBC
certificate akin to a qualification was wrong, as the OBC certificate is a
mere evidence of something that already exists; and thirdly , the logic of
discriminatory treatment to those who did not apply owing to their
certificates not being in order, did not apply to the case of certificates. The
material part of the judgement relating to the above reads as under:-
“10. So far as the judgments relied upon by the respondents are
concerned, it is to be noticed that in Ram Kumar Gijroya (supra), the
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decision in Hari Singh (supra) was not noticed at all nor was the
judgment of the Supreme Court in Mrs. Valsamma Paul (supra),
highlighting the necessity for adopting a liberal approach in such
matters, even noticed. The Court was persuaded to hold as it did on the
reasoning that, “a number of other OBC candidates, though otherwise
eligible but not in possession of the OBC Certificate by the cut off date,
did not apply under the belief that being required to enclose the OBC
Certificate along with the application and being not in possession
thereof, their applications would be deficient and not entertainable.”
Such reasoning, in this Court's opinion, would apply squarely in the
case of candidates who are not qualified but subsequently acquire
qualifications. It cannot have blanket application to those who possess
the status but are caught in the cleft in the policy changes of the
government in regard to the validity of their certificates. As noticed in
Hari Singh (supra) and Ms. Anu Devi (supra), the certificate is only
evidence of what always existed, i.e. the status of the candidates as
belonging to the OBC category who are not from the creamy layer. It is
not as if he acquires such status subsequent to the closing date or
subsequent to the commencement of the recruitment process, as in the
case of a candidate who fulfils the academic qualification later.”
54. The decision in the case of Mukesh Kumar Yadav & Anr. v. Govt.
22
of NCT of Delhi & Ors. , was passed before the Hon’ble Supreme Court’s
decision in Ram Kumar Gijroya (SC) and in Anil Kumar (supra) . In
Mukesh Kumar Yadav (supra), the court interpreted the Division Bench
order of this court in Ram Kumar Gijroya (DB) as creating a distinction
between cases where cut-off dates are prescribed and those where they are
not and confined the mandate of Pushpa (supra) to the latter category only.
In the said case, the petitioners had submitted a defective OBC certificate
alongwith their application, but later submitted a corrected OBC certificate
after the cut-off date. In such factual matrix, the Division Bench found the
subsequent submission to be invalid. The material part of the judgement
reads as under:-
“3. The issue is no longer res integra. In the decision reported as 2012
(128) DRJ 124 (DB) DSSB v. Ram Kumar Gijroya noting various

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authorities on the point a Division Bench of this Court held that a
distinction needs to be drawn where no cut-off dates are prescribed and
those where cut-off dates are prescribed. Whenever cut-off dates are
prescribed and it specifies that not only the applications but annexures
thereto have to be filed on or before cut-off date any corrective action
after the cut-off date would be irrelevant.”
55. The matter, thereafter, reached the Hon’ble Supreme Court where
doubts were expressed over the correctness of Ram Kumar Gijroya (SC)
and through an order reported in Karn Singh Yadav (supra), the matter
was referred to a larger Bench of three Hon’ble Judges. The Hon’ble three
Judges Bench then decided the correctness with which this court is,
needless to say, bound, through order and judgement reported in Karn
23
Singh Yadav v. Govt. of NCT of Delhi & Ors. The Hon’ble three Judges
Bench of the Supreme Court found the facts therein to be covered by the
judgement of Ram Kumar Gijroya (SC) . The material part reads as under:-
“3. 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.
4. 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.
5. 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, (2016) 4 SCC 754, wherein this
Court ruled in favour of the concerned candidate. The instant matter is
thus completely covered by said decision.”

56. Thus, as per the law laid down by the Hon’ble Supreme Court, if a
defective certificate is submitted by the candidate at an initial stage,

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submission of a corrected OBC-NCL certificate after the expiry of the cut-
off date, where the advertisement explicitly provides for a cut-off date for
such submission, shall not create a ground for disqualification by itself.
57. In the facts of the present case, it is not in dispute that the petitioner
belonged to the OBC-NCL category between the material time period. The
petitioner also possessed OBC-NCL certificates dated 02.10.2022 and
23.11.2023, which cumulatively signify that his income during the
Financial Years (F.Y.) 2019-20, 2020-21, 2021-22, 2022-23, were in
compliance with the requirements of the GoI and made him eligible for
getting OBC-NCL reservations.
58. The OBC-NCL certificate that the petitioner had submitted along
with his application was dated 02.10.2022 and was valid till 31.03.2023. It
signified that his income levels in the F.Y. 2019-20, 2020-21, 2021-22
were in compliance with the GoI requirements for availing OBC-NCL
reservations. However, as the respondent discovered that the date of
issuance of the OBC-NCL certificate submitted by the petitioner was not in
consonance with the requirement of the prospectus, the petitioner was
given another chance to submit a valid OBC-NCL certificate. The second
OBC-NCL certificate dated 23.11.2023 submitted by the petitioner,
indicated that the petitioner’s income pertaining to F.Y. 2020-21, 2021-22
and 2022-23 was in compliance with the GoI requirements and made him
eligible for the OBC-NCL reservation, atleast during the F.Y. 2023-24.
59. In terms of the authoritative pronouncements in Pushpa (supra) and
Ram Kumar Gijroya (SC) , it is clear that the insistence by the respondent
on the OBC-NCL certificate issued during the given cut-off date does not
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have any rational nexus with the object of reservation of seats in
educational institutions. Further, applying Anil Kumar (supra) , Ram
Kumar Gijroya (SC) read with the order of the Division Bench of this court
in Ram Kumar Gijroya (DB) , it is clear that the requirement of an OBC
certificate cannot be equated with that of an academic/technical
qualification and thus, should correspond to a reasonable basis. For, the
caste certificate for reservation is merely a proof of an existing fact. The
’
certificate merely certifies an existing fact. Thus, the petitioner s OBC-
NCL certificate dated 23.11.2023, shall be considered by the respondent for
the purpose of admission, subject to fulfilment of other conditions relating
to the said category.
CONSTITUTIONAL VALIDITY OF TIMEFRAME/CUT-OFF
60. More often than not, the issues that fall at the steps of the court are
reflection of the society at large and the issues plaguing it. The said
observation assumes a greater relevance in writ jurisdiction wherein the
fundamental rights of the citizens are pitched against the State and its
instrumentalities. In this regard, this court considers it fit and proper to
examine the nature of qualification i.e., fixation of timeframe and cut-off in
relation to the OBC-NCL certificate without considering the objective
sought to be achieved, stipulated by the respondent in the prospectus and
determine whether such a qualification is legally tenable.
61. As noted above, the prospectus dated 15.09.2023, requires that the
OBC-NCL certificate should have been issued between 06.11.2022 to
05.11.2023. The impact of this requirement is not merely a technical one.
Rather, such a qualification or pre-condition strikes at the very basis of a
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reservation policy which is nobly designed to achieve a sociological
objective. The application of such a condition has the direct effect of
deprivation of a legitimate constitutional right, that too for reasons of
administrative exigency, at best.
62. No doubt, implementation of a reservation policy based on caste is
not a straightforward task. The exercise of implementation necessarily
involves a set of rules and regulations, which are meant for guiding the
administration working at the grassroots level. Such a framework is
necessitated in light of the fact that a reservation policy could be misused if
left unregulated, which may have effect of depriving the deserving
candidates. One such safeguard is the concept of creamy layer in OBC
reservations.
63. One of the earlier references to the concept of creamy layer may be
found in the decision of the Hon’ble Supreme Court in the case of State of
24
Kerala v. NM Thomas , wherein, the term ‘creamy layer’ was introduced
for the first time as a tool of caution against the cornering of weaker
members of a category by the affluent individuals belonging to the same
category. The relevant paragraph of the judgment reads as under:-
“124. A word of sociological caution. In the light of experience, here
and elsewhere, the danger of “reservation”, it seems to me, is
threefold. Its benefits, by and large, are snatched away by the top
creamy layer of the “backward” caste or class, thus keeping the
weakest among the weak always weak and leaving the fortunate layers
to consume the whole cake. Secondly, this claim is overplayed
extravagantly in democracy by large and vocal groups whose burden
of backwardness has been substantially lightened by the march of time
and measures of better education and more opportunities of
employment, but wish to wear the “weaker section” label as a means
to score over their near-equals formally categorised as the upper

24
(1976) 2 SCC 310
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brackets. Lastly, a lasting solution to the problem comes only from
improvement of social environment, added educational facilities and
cross-fertilisation of castes by inter-caste and inter-class marriages
sponsored as a massive State programme, and this solution is
calculatedly hidden from view by the higher “backward” groups with a
vested interest in the plums of backwardism. But social science
research, not judicial impressionism, will alone tell the whole truth and
a constant process of objective re-evaluation of progress registered by
the “underdog” categories is essential lest a once deserving
“reservation” should be degraded into “reverse discrimination”.
Innovations in administrative strategy to help the really
untouched, most backward classes also emerge from such socio-legal
studies and audit exercises, if dispassionately made. In fact, research
conducted by the A.N. Sinha Institute of Social Studies, Patna, has
revealed a dual society among harijans, a tiny elite gobbling up the
benefits and the darker layers sleeping distances away from the special
concessions. For them, Articles 46 and 335 remain a “noble romance”
[As Huxley called it in “Administrative Nihilism” (Methods and Results,
Vol. 4 of Collected Essays).], the bonanza going to the “higher”
harijans. I mention this in the present case because lower division
clerks are likely to be drawn from the lowest levels of harijan humanity
and promotion prospects being accelerated by withdrawing, for a time,
“test” qualifications for this category may perhaps delve deeper. An
equalitarian breakthrough in a hierarchical structure has to use many
weapons and Rule 13-AA perhaps is one.”
[Emphasis supplied]
64. In 1992, a nine Judges Bench of the Hon’ble Supreme Court in the
case of Indra Sawhney (supra) , while upholding the 27% reservation for
OBCs, held, by majority, that the Government must exclude creamy layer
among the backward classes by fixation of proper income, property or
status criteria and devised a ‘Means Test’ for fulfilling the said objective.
The relevant paragraphs of the said decision read as under:-
“790. „Means-test‟ in this discussion signifies imposition of an income
limit, for the purpose of excluding persons (from the backward class)
whose income is above the said limit. This submission is very often
referred to as the “creamy layer” argument. Petitioners submit that
some members of the designated backward classes are highly advanced
socially as well as economically and educationally. It is submitted that
they constitute the forward section of that particular backward class —
as forward as any other forward class member — and that they are
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lapping up all the benefits of reservations meant for that class, without
allowing the benefits to reach the truly backward members of that class.
These persons are by no means backward and with them a class cannot
be treated as backward. It is pointed out that since Jayasree [(1976) 3
SCC 730 : (1977) 1 SCR 194] almost every decision has accepted the
validity of this submission.

792. In our opinion, it is not a question of permissibility or desirability
of such test but one of proper and more appropriate identification of a
class — a backward class. The very concept of a class denotes a number
of persons having certain common traits which distinguish them from
the others. In a backward class under clause (4) of Article 16, if the
connecting link is the social backwardness, it should broadly be the
same in a given class. If some of the members are far too advanced
socially (which in the context, necessarily means economically and, may
also mean educationally) the connecting thread between them and the
remaining class snaps. They would be misfits in the class. After
excluding them alone, would the class be a compact class. In fact, such
exclusion benefits the truly backward. Difficulty, however, really lies in
drawing the line — how and where to draw the line? For, while
drawing the line, it should be ensured that it does not result in taking
away with one hand what is given by the other. The basis of exclusion
should not merely be economic, unless, of course, the economic
advancement is so high that it necessarily means social advancement.
Let us illustrate the point. A member of backward class, say a member
of carpenter caste, goes to Middle East and works there as a carpenter.
If you take his annual income in rupees, it would be fairly high from the
Indian standard. Is he to be excluded from the Backward Class? Are his
children in India to be deprived of the benefit of Article 16(4)? Situation
may, however, be different, if he rises so high economically as to
become — say a factory owner himself. In such a situation, his social
status also rises. He himself would be in a position to provide
employment to others. In such a case, his income is merely a measure of
his social status. Even otherwise there are several practical difficulties
too in imposing an income ceiling. For example, annual income of Rs
36,000 may not count for much in a city like Bombay, Delhi or Calcutta
whereas it may be a handsome income in rural India anywhere. The line
to be drawn must be a realistic one. Another question would be, should
such a line be uniform for the entire country or a given State or should
it differ from rural to urban areas and so on. Further, income from
agriculture may be difficult to assess and, therefore, in the case of
agriculturists, the line may have to be drawn with reference to the
extent of holding. While the income of a person can be taken as
a measure of his social advancement, the limit to be prescribed should
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not be such as to result in taking away with one hand what is given
with the other. The income limit must be such as to mean and signify
social advancement. At the same time, it must be recognised that there
are certain positions, the occupants of which can be treated as socially
advanced without any further enquiry. For example, if a member of a
designated backward class becomes a member of IAS or IPS or any
other All India Service, his status is society (social status) rises; he is
no longer socially disadvantaged. His children get full opportunity to
realise their potential. They are in no way handicapped in the race of
life. His salary is also such that he is above want. It is but logical that
in such a situation, his children are not given the benefit of
reservation. For by giving them the benefit of reservation, other
disadvantaged members of that backward class may be deprived of
that benefit. It is then argued for the respondents that „one swallow
doesn't make the summer‟, and that merely because a few members of
a caste or class become socially advanced, the class/caste as such does
not cease to be backward. It is pointed out that clause (4) of Article 16
aims at group backwardness and not individual backwardness. While
we agree that clause (4) aims at group backwardness, we feel that
exclusion of such socially advanced members will make the „class‟ a
truly backward class and would more appropriately serve the purpose
and object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of Scheduled
Tribes and Scheduled Castes).
793. Keeping in mind all these considerations, we direct the
Government of India to specify the basis of exclusion — whether on the
basis of income, extent of holding or otherwise — of „creamy layer‟.
This shall be done as early as possible, but not exceeding four months.
On such specification persons falling within the net of exclusionary rule
shall cease to be the members of the Other Backward Classes (covered
by the expression „backward class of citizens‟) for the purpose of Article
16(4). The impugned Office Memorandums dated August 13, 1990 and
September 25, 1991 shall be implemented subject only to such
specification and exclusion of socially advanced persons from the
backward classes contemplated by the said O.M. In other words, after
the expiry of four months from today, the implementation of the said
O.M. shall be subject to the exclusion of the „creamy layer‟ in
accordance with the criteria to be specified by the Government of India
and not otherwise.”

[Emphasis supplied]
65. A conspectus of the aforementioned decisions would show that the
need for exclusion of the creamy layer from the eligibility criterion for
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OBC reservation had arisen to bring a factual equality amongst the OBCs,
rather than a superficial categorisation based solely on the caste. The
decision in the case of Indra Sawhney (supra) recognises the fact that
amongst the OBCs, there exists an opulent class which does not require any
form of affirmative action. The underlying idea is to uplift a class and not
just the selected individuals within a class.
66. Axiomatically, the OBC-NCL certificate is issued by the competent
authority on the basis of the income of the applicant in the preceding three
financial years and is valid for a particular financial year. Therefore,
undisputedly, the OBC-NCL certificate is substantially correlated with a
financial year rather than a random timeframe. As a natural corollary, an
authority asking for the OBC-NCL certificate should reasonably keep the
cut-off date of issuance in line with a particular financial year. A deviation
from the said position not only creates confusion and uncertainty but, at
times, also deprives deserving candidates of the benefit of reservations. In
the present case as well, it is the admitted position that the respondent was
not obliged to follow a particular timeframe and thus, it went on to adopt its
own timeframe, without any intelligible basis.
67. In fact, the mechanism for availing the benefit of reservation, which
undeniably caters to the socially and educationally backward classes,
should not only be easy and logical, but also non-cumbersome. If the
process itself becomes an obstacle, it operates as an affront on the
constitutional goal of ensuring equality of opportunity. The basic feature of
equality operates in a layered manner and the understanding of equality is
still evolving. The concepts of direct and indirect discrimination,
substantial and non-substantial equality etc. are increasingly finding place
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in the judicial discourse. The concept of reservations is not secluded from
the layers of inequality and is, in fact, placed at the heart of the equality
discourse. For the longest time, this concept was understood as antithetical
to the concept of equality of opportunity. It took us long, as a society, to
accept the fact that the reservation policy is itself a dimension of the
concept of equality of opportunity and is not antithetical to it. The issues
with respect to implementation of the policy have emerged time and again.
However, such issues, like the present one, are to be resolved keeping in
view the ultimate goal of securing substantial equality.
SCOPE OF JUDICIAL REVIEW IN ACADEMIC MATTERS
68. At this juncture, it is also significant to bear in mind the scope of
judicial review in academic matters, particularly relating to the eligibility
criteria. It is well settled by a series of judgments by the Hon’ble Supreme
Court that the fixing of eligibility criteria is a policy decision, falling in the
exclusive domain of the employer or other competent authority and the
courts must keep their hands off in recasting such conditions. It is pertinent
to refer to the decision of the Hon’ble Supreme Court in the case of Secy.
25
(Health) Deptt. of Health & F.W. v. Anita Puri (Dr) , wherein, it was
held as under:-

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26
69. In the case of State of Rajasthan v. Lata Arun , the Hon’ble
Supreme Court was of the opinion that in an appropriate case, the court can
exercise its power of judicial review to examine whether the policy
decision is based upon relevant considerations or not. In terms of paragraph
no. 10 of the said decision, it was held as under:-

“10. The points involved in the case are twofold : one relating to
prescription of minimum educational qualification for admission to the
course and the other relating to recognition of the Madhyama
Certificate issued by the Hindi Sahitya Sammelan, Allahabad as
equivalent to or higher than +2 or 1st year of TDC for the purpose of
admission. Both these points relate to matters in the realm of policy
decision to be taken by the State Government or the authority vested
with power under any statute. It is not for courts to determine whether a
particular educational qualification possessed by a candidate should or
should not be recognized as equivalent to the prescribed qualification in
the case. That is not to say that such matters are not justiciable. In an
appropriate case the court can examine whether the policy decision or
the administrative order dealing with the matter is based on a fair,
rational and reasonable ground; whether the decision has been taken
on consideration of relevant aspects of the matter; whether exercise of
the power is obtained with mala fide intention; whether the decision
serves the purpose of giving proper training to the candidates admitted
or it is based on irrelevant and irrational considerations or intended to
benefit an individual or a group of candidates.”
[Emphasis supplied]
27
70. In the case of Anand Yadav & Ors. v. State of U.P. & Ors. , the
Hon’ble Supreme Court while referring to the decision in the case of
28
Zahoor Ahmad Rather v. Imtiyaz Ahmad , has held as under:-

26
(2002) 6 SCC 252
27
(2021) 12 SCC 390
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“35. We say so in view of the fact that matters of education must be left
to educationists, of course subject to being governed by the relevant
statutes and regulations. It is not the function of this Court to sit as an
expert body over the decision of the experts, especially when the experts
are all eminent people as apparent from the names as set out. This
aspect has received judicial imprimatur even earlier and it is not that
we are saying something new. We may refer to the pronouncement
in Zahoor Ahmad Rather [Zahoor Ahmad Rather v. Imtiyaz Ahmad,
(2019) 2 SCC 404 : (2019) 1 SCC (L&S) 353] in this behalf which has
dealt with the dual aspects : (a) it is for the employer to consider what
functionality of qualification and content of course of studies would
lead to the acquisition of an eligible qualification; and (b) such
matters must be left to educationists.”
[Emphasis supplied]

71. The decision of the Hon’ble Supreme Court in the case of Punjab
29
National Bank v. Anit Kumar Das categorically held that though a
greater latitude is permitted by the courts to the employer to set out
eligibility, the same cannot be acted upon arbitrarily. Paragraph no. 17.3 of
the said decision reads as under:-
“17.3. Thus, as held by this Court in the aforesaid decisions, it is for the
employer to determine and decide the relevancy and suitability of the
qualifications for any post and it is not for the courts to consider and
assess. A greater latitude is permitted by the courts for the employer to
prescribe qualifications for any post. There is a rationale behind it.
Qualifications are prescribed keeping in view the need and interest of
an institution or an industry or an establishment as the case may be.
The courts are not fit instruments to assess expediency or advisability or
utility of such prescription of qualifications. However, at the same time,
the employer cannot act arbitrarily or fancifully in prescribing
qualifications for posts. In the present case, prescribing the eligibility
criteria/educational qualification that a graduate candidate shall not be
eligible and the candidate must have passed 12th standard is justified
and as observed hereinabove, it is a conscious decision taken by the
Bank which is in force since 2008. Therefore, the High Court has
clearly erred in directing the appellant Bank to allow the respondent-
original writ petitioner to discharge his duties as a Peon, though he as
such was not eligible as per the eligibility criteria/educational
qualification mentioned in the advertisement.”

28
(2019) 2 SCC 404
29
(2021) 12 SCC 80
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72. It is, thus, vividly seen that the employer or the competent authority
in case of educational institutions, is saddled with the responsibility to fix
the eligibility criteria while taking into consideration the expediency of
such conditions. The rationale behind the said onus carries within itself a
presumption that the authority would not act arbitrarily or in a malafide
manner, rather it would strive towards striking a balance between the
interests of the institutions and candidates. The above mentioned rulings do
not put a complete ban on justiciability of the eligibility criteria and in
appropriate cases, the same can be made subject to judicial scrutiny to
weed out arbitrariness.
73. In the above context, the learned counsel for the respondent has
argued that the cut-off date is the last date of the acceptance of applications
when it is not explicitly provided for, however, it is up to the institution
concerned, to provide for any deadline/timeframe that they deem fit.
74. The OBC-NCL certificate of the petitioner dated 02.10.2022 was
rejected by the respondent contending that the same would expire by the
time of the exam i.e., 05.11.2023, as the same is based on the incomes of
the preceding three financial years. This court does not doubt this
proposition, however, what seems erroneous is the respondent accepting
OBC-NCL certificates that are issued before 31.03.2023, even though they
would expire on 01.04.2023.
75. Thus, it seems that without any rationale or objectivity, the
respondent has created two distinct classes of certificates within the same
financial year. The first class contains certificates issued between
01.04.2022 to 05.11.2022, and the second class contains certificates issued
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between 06.11.2022 to 31.03.2023. The respondent has then chosen to
consider as valid, all the certificates issued between 06.11.2022 to
31.03.2023, and consider as invalid, those issued between 01.04.2022 to
05.11.2022, despite certificates in both the classes expiring on 01.04.2023
and being based on incomes of the same set of financial years i.e., F.Y.
2019-20, 2020-21 and 2021-22.
76. It would have been understandable if the respondent had chosen to
provide for conditions/qualifications relating to a particular financial
year/set of financial years. However, the respondent has ingeniously
provided for a timeframe for submission of OBC certificates, wherein, the
requirement is considered validly fulfilled when a person applies with a
certificate valid for F.Y. 2022-23 or for F.Y. 2023-24. But equally and at
the same time, both these certificates may be considered invalid, if they
don’t fall within the timeframe of the respondent. Importantly, this is
despite the certificate itself having the same legal effect.
77. In the considered opinion of this court, the timeframe stipulated by
the respondent for the OBC-NCL certificate requiring to have been issued
between 06.11.2022 to 05.11.2023, is ex-facie arbitrary, without any
application of mind and does not have any rational nexus with the object
sought to be achieved through the reservation of seats.
78. This court shall now consider the judgements relied upon by the
learned counsel for the respondent.

79. The case of Ashok Kumar Sharma (supra) , specifically paragraph
no. 6, has been strongly relied upon. The material part of this judgement
reads as under:-
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“6. … So far as the first issue referred to in our Order dated 1-9-1995 is
concerned, we are of the respectful opinion that majority judgment
(rendered by Dr.T.K. Thommen and V. Ramaswami, JJ.) is
unsustainable in law. The proposition that where applications are
called for prescribing a particular date as the last date for filing the
applications, the eligibility of the candidates shall have to be judged
with reference to that date and that date alone is a well-established one.
A person who acquires the prescribed qualification subsequent to such
prescribed date, cannot be considered at all. An advertisement or
notification issued/published calling for applications constitutes a
representation to the public and the authority issuing it is bound by such
representation. It cannot act contrary to it. One reason behind this
proposition is that if it were known that persons who obtained the
qualifications after the prescribed date but before the date of interview
would be allowed to appear for the interview, other similarly placed
persons could also have applied. Just because some of the persons had
applied notwithstanding that they had not acquired the prescribed
qualifications by the prescribed date, they could not have been treated
on a preferential basis…..”
80. Similarly, paragraph no. 10 of Rekha Chaturvedi (supra) is pressed
into service. The material part of the same reads as under:-

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81. Both the cases i.e., Ashok Kumar Sharma (supra) and Rekha
Chaturvedi (supra) , were concerned with technical qualifications. While in
the former case, the appointment of the respondents therein as Assistant
Professors (Lecturers) in the University of Rajasthan was challenged on the
basis, inter alia , that they lacked a doctorate which was a mandatory
eligibility criteria. On similar lines, Ashok Kumar Sharma (supra) was
related to the appointment of persons as Junior Engineers in the service of
the Jammu & Kashmir State, which required B.E. (Civil) as a minimum
academic/technical qualification for the said post.

82. The dicta of Ashok Kumar Sharma (supra) and Rekha Chaturvedi
(supra) , therefore, apply to technical/academic requirements for a
particular post/seat. However, there is a fundamental distinction between
having a technical/academic qualification and the requirement of an OBC-
NCL certificate. As had been observed in Pushpa (supra), subsequently
approved by the Hon’ble Supreme Court in Ram Kumar Gijroya (SC) , the
OBC-NCL certificate is a mere proof of what already exists. The
acquisition of the certificate is not the acquisition of a new
eligibility/qualification but a mere formal evidence of what already exists
in fact. Moreover, it is pertinent to note that the conditions associated with
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the submission of an OBC-NCL certificate essentially have the effect of
creating qualifications on a fundamental right, something which does not
happen in the case of technical/academic qualifications. And therefore, the
level of scrutiny is on the higher side, as a fundamental right reflects a
constitutional promise, which cannot be curtailed in an ordinary manner,
especially under the garb of administrative exigencies.
83. It is further noteworthy to mention that the argument of the
respondent pertaining to the applicability of Ashok Kumar Sharma (supra)
and Rekha Chaturvedi (supra) to the present case and requirement of an
OBC-NCL certificate being the same as that of a regular qualification, was
acceded to by the Division Bench of this court in Ram Kumar Gijroya
(DB) . However, as has been observed above, the Hon’ble Supreme Court
reversed this decision and order in Ram Kumar Gijroya (SC) . Furthermore,
the decision of the Division Bench of this court in Anil Kumar (supra) ,
specifically paragraph no. 10, also rejects the requirement of an OBC-NCL
certificate to be considered as a regular qualification.
84. The reliance on Bedanga Talukdar (supra) is equally fallacious. The
case was related to the non-submission of a PwBD certificate and the case
did not have any discussion either relating to the OBC reservation or about
the constitutional scheme of reservations in general. Next, the respondent ’ s
reliance on Mahendra Singh (supra) is also untenable. As paragraph no. 9
’
of the said case reveals, the Hon ble Supreme Court was concerned with
the effect of violating a condition provided in the advertisement therein that
the application had to be in the language for which the candidate wanted to

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attempt the question paper. Needless to state, the said case has absolutely
no relevance to the facts of the present case.
85. Furthermore, the decision of this court in the case of Harshul Saini
(supra) was based on the entire different factual footing and hence, cannot
come to rescue the case of the respondent. In the said case, unlike the
factual matrix in hand, the relevant cut-off date for the submission of the
OBC-NCL certificate was based upon the financial year only. Also, two
rounds of counselling was already over in the said case and thus, the
situation was irreversible and non-manageable, which is not the situation in
the instant case.
86. Further, the argument raised by the respondent pertaining to the
waiver of right to challenge the terms of the prospectus after participating
in the entire process of the examination in question without any demur or
protest, ostensibly lacks substance and merit. In the instant case, the
petitioner is not essentially challenging the terms of the prospectus by
asking for creation of an altogether separate reserved category, rather he is
seeking a fair consideration of his candidature. The expectation of fair
treatment or fair consideration is a fundamental right and flows from
Article 14 of the Constitution of India. Even assuming that the petitioner
has acquiesced the said conditions of the prospectus, the same would not
preclude him to enforce his fundamental right as the fundamental rights
cannot be waived of, as held by the Constitution Bench of the Hon’ble
30
Supreme Court in the case of Basheshar Nath v. CIT . Therefore, the
petitioner is well within the contours of law to ventilate his grievance and

30
1958 SCC OnLine SC 7
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the principle of waiver and acquiescence would not have any relevance at
this stage.
87. The case of Gaurav Singh (supra) relates to EWS certificates, which
this court does not find relevant. Similarly, the decision of Divya (supra) is
based on its own peculiar facts and circumstances, which this court does
not find to be applicable in the present case.
88. Further, reliance on any of the opinions in Sakshi Arha (supra)
would be inappropriate as because of the split verdict, there was no real
determination of the issues in the said case, and the matter was placed
before Hon’ble the Chief Justice of India to place it before an appropriate
Bench.
89. Thus, from the discussion above, it is clear that the petitioner’s OBC-
NCL certificate dated 23.11.2023 ought to have been considered by the
respondent and the requirement contained in the prospectus, specifying the
time-frame for the OBC-NCL certificate to be between 06.11.2022 to
05.11.2023, is arbitrary.
90. The conclusions reached by the court are thus summarised below:
a. The insistence of the respondent upon the OBC-NCL
certificate to have been issued between 06.11.2022 to
05.11.2023 is arbitrary and does not have any rational nexus
with the object sought to be achieved through the reservation
of seats.


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b. The requirement of an OBC-NCL certificate is fundamentally
different from a technical/academic qualification. While the
former is mere evidence of what already exists, the latter
refers to the acquisition of a qualification.
c. In terms of Pushpa (supra) , read with Ram Kumar Gijroya
(SC) , Ram Kumar Gijroya (DB), Mukesh Kumar Yadav
(supra), Karn Singh Yadav (supra), the insistence by the
respondent on the submission of the OBC-NCL certificate
issued during the given cut-off date, is arbitrary and has no
rational nexus with the object of reservation. Also, the
candidature may not be cancelled solely on account of
submission of the OBC-NCL certificate issued beyond the cut-
off date, but within the extended time provided by the
respondent.
d. As per Anil Kumar (supra) , the cut-off date is to be construed
in a manner favourable to the candidate, and not to nullify a
fundamental right merely because the OBC-NCL certificate is
being submitted post the cut-off date.
e. On facts, the petitioner’s OBC-NCL certificate dated
23.11.2023 ought to have been accepted by the respondent and
it is directed accordingly.
91. Considering the foregoing discussion, the conclusions reached
above, and also the fact that the seat would go vacant if withdrawn from the
petitioner, who otherwise possesses the required merit, this court confirms
the admission of the petitioner granted vide interim order dated 01.12.2023.
Signature Not Verified
Signature Not Verified
Digitally Signed
By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29

46

2024:DHC:771

92. In view of the aforesaid terms, the communications dated 27.11.2023
and 29.11.2023 are, hereby, set aside. The petition stands disposed of
alongwith the pending application.

(PURUSHAINDRA KUMAR KAURAV)
JUDGE

FEBRUARY 02, 2024
p



Signature Not Verified
Signature Not Verified
Digitally Signed
By:PURUSHAINDRA
KUMAR KAURAV
Digitally Signed By:PRIYA
Signing Date:02.02.2024
17:58:29