Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 15, 2024
+ W.P.(C) 1044/2024, CM APPL. 4399/2024
HARISH YADAV ..... Petitioner
Through: Mr. L. C. Rajput, Adv.
versus
UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF
HOME AFFAIRS DTE GENERAL BORDER SECURITY FORCE
& ANR. ..... Respondents
Through: Mr. Avnish Singh, SPC with
Mr. Kapil Dev Yadav, G.P.,
Mr. Vishal Kumar Yadav and
Ms. Kanchan Kumari, Advs. with
Mr. Hemendra Singh, DC, BSF for
UOI
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with the
following prayers:-
“It is therefore most humbly prayed that this Hon 'ble court
may kindly be pleased to issue a writ/order / direction in the
nature of writ of certiorari and quash the final result dated
19.12.2023 (Annexure P- 13) to the extent of selection of
constable (barber-male) as shown in the category of state/
UT: Delhi male in the category of OBC, and issue a writ of
mandamus commanding the respondents to consider the
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
selection of the petitioner on the basis of his marks (48)
obtained in the OBC category for barber male and offer him
appointment to the post of constable (barber) in OBC
category in BSF allotted to the Delhi state ;
and pass any other order/further order in favor of the
petitioner and against the respondents which may be
deemed just and proper in the facts and legal submissions
made here and above.”
2. The facts as noted from the record are that the Directorate
General, Border Security Force (BSF), Ministry of Home Affairs
published vacancies for recruitment of Constable (Tradesman) (Male
and female) in BSF for the year 2023. The petitioner submitted his
online application for Barber under Unreserved Category (UR) vide
Application No. CT2021500077594 dated March 21, 2023.
3. The petitioner received the E-Admit Card for the first exam to
be held on May 26, 2023. The petitioner appeared and qualified in the
same. On July 19, 2023, the petitioner received online communication
with regard to the revised vacancies for the post of Tradesman and
Barber i.e., one vacancy was increased to 4(four) (UR-3, OBC-1). On
August 22, 2023, the petitioner received a notice from the Board qua
his interest for change of his category from UR to OBC. The petitioner
opted for the change from UR to OBC.
4. On August 28, 2023, the petitioner received online information
with E-Admit card for written examination. The online examination
was conducted as per schedule and the petitioner qualified the same.
The answer key was communicated to the candidates to check the
marks obtained. The petitioner upon checking the answer key found he
had obtained 48 Marks out of 100.
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
5. On December 04, 2023, the petitioner completed the
documentation as per the notice dated August 12, 2023, wherein the
petitioner was asked to give his option for change of category and upon
his option for change, an undertaking was taken from the petitioner to
the effect that he has changed his category from UR to OBC. The
petitioner, after having submitted his documents and the undertaking,
set for the medical examination. On December 9, 2023, the petitioner
was found medically fit.
6. On December 19, 2023, when the final result of selection to
various Trade was published, the petitioner‟s name was not mentioned
in the OBC category for the post of Constable (Barber) in Delhi (Male).
Instead, the name of one Mahesh Thakur had been mentioned. The final
result included the state wise, trade wise and category wise result. It is
the case of the petitioner that, for Delhi (Male), the cut-off marks for
the post of Constable Barber in the OBC category was 45 marks, and
the petitioner despite obtaining 48 Marks was ignored and not included
in the list of successful candidates.
7. Mr. L.C. Rajput, the learned counsel for the petitioner
submitted that the petitioner obtained 48 marks out of 100. He also
submitted that, after 15-20 days of the examination, the candidates were
provided the answer key to check his/her marks and verify any
discrepancy in the marks scored. The petitioner checked that same and
confirmed that the marks obtained by him are correct. Thereafter, the
rd
petitioner appeared for the 3 phase of the examination and received
the E-Admit card for Documentation, Trade Test & Medical
rd
Examination. During the 3 phase of the examination, the qualified
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
candidates were given the cut-off marks. The petitioner was shown as
qualified as Constable (Barber) for Delhi (Male), having obtained 48
marks against cut of marks of 45.
8. It is the submission of Mr. Rajput that, in the final result of
selection, the petitioner‟s name was not in the list of selected
candidates. He stated, the reason urged by the respondents for not
selecting the petitioner was that the OBC certificate submitted by the
petitioner, though issued by an Authority in Delhi, but was on the basis
of a caste certificate issue by the State of Uttar Pradesh, which
according to him is a misconceived ground, inasmuch as, the certificate
recognises that the petitioner belongs to “Yadav” caste, which is an
OBC Category in Delhi also. He submitted it is a stand which frustrates
the very purpose of providing reservation to OBC candidates.
9. In support of his submission he has relied upon the following
judgments:-
a. Government of NCT of Delhi & Ors. v. Ravindra
Singh. Civil . Appeal. No. 6525 -6526 / 2022.
b. Hare Krishna Pathak v. Kendriya Vidyalaya
Sangathan & Anr., W.P. (C) 3041 / 2022, decided on
December 22, 2023 .
c. Sh. Arun kumar v. Union of India & Anr., W.P.(C)
13915/2018 , decided on December October 12, 2022.
10. He seeks the prayers as sought in the petition.
11. On the other hand, learned counsel for the respondents justify
the action in not appointing the petitioner by drawing our attention to
the advertisement and the Caste Certificate produced by the petitioner
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
to contend that the same has been issued by the Authority in Delhi but
on the basis of Caste Certificate issued in U.P. and as such, a certificate
cannot be construed as a declaration by the Authority in Delhi that the
petitioner is an OBC in Delhi.
12. Having heard the learned counsel for the parties, the short issue
which arises for consideration is, whether the petitioner was rightly
denied the appointment as Constable (Barber) under the OBC category
on the ground that the OBC certificate issued by the Authority in Delhi
was on the basis of OBC certificate issued from the State of Uttar
Pradesh. There is no dispute that the post of Constable (Barber) against
which the petitioner had applied was for a vacancy in UT of Delhi. For
establishing his candidature for the vacancy in Delhi, the petitioner
submitted Domicile and OBC certificates issued by the Authority in the
Government of NCT of Delhi, which reads as under:
“ DOMICILE CERTIFICATE
This is to certify that HARISH YADAV S/o of JAGAT SINGH
is a domicile of Delhi having residence at H-151 SAURABH
VIHAR JAITPUR DELHI 110044 INDIA.
This certificate is valid for one year from the Date of Issue.
OBC CERTIFICATE
“This is to certify that HARISH YADAV S/o JAGAT SINGH
R/o H-151 SAURABH VIHAR JAITPUR DELHI 110044
INDIA belongs to the YADAV community which is recognised
as Other Backward Class under the Government of India,
Ministry of Social Justice and Empowerment's Resolution No. -
BCC, 12011/88//-BCC(C) Dated 06/12/1999 , 10/09/1993 .
HARISH YADAV and his family ordinarily resides at H-151
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
SAURABH VIHAR JAITPUR DELHI 110044 INDIA
This certificate is issued on the basis of OBC certificate issued
to HARISH YADAV SELF of HARISH YADAV R/o PATTI
GORA WALO IN SURANA MODI NAGAR GAZIABAD
UTTAR PRADESH belongs to YADAV community of UTTAR
PRADESH State vide Certificate No. 90500000603022 dated
26/11/2019 issued by the TEHSILDAR SARITA VIHAR .
This is also to certify that he does not belong to the
person/sections (Creamy layer) mentioned in column 3 of the
Schedule to the Govt. of India, Department of Personnel &
Training O.M. No. 36012/22/93-Estt(SCT), 36033/3/2004-
Estt(Res), 36033/1/2013-Estt(Res) dated 8/9/1993 9/03/2004 &
14/10/2008 and 27/5/2013 respectively.”
13. It may be stated here that the requirement in the advertisement
for candidates seeking reservation, is the following:
“(XXIV) Candidates seeking reservation benefits such as
SC/ST/OBC/EWS (Annexure - II, III & VII) or any other
relaxation as per the provision of the Notice of Examination
must ensure that they are entitled to such
reservation/relaxation. They should be issued caste certificates
from prescribed/competent authority with authority of Govt. of
India/Resolution correctly mentioned on it, which justifies the
claim of candidate. Caste mentioned in the caste certificate
must be recognized by the Central Govt. & enlisted in
centralized list notified by the Central Govt. for respective
State.
(XXV) The candidates belonging to the States will only be
considered for recruitment against the vacancies of their
domicile States on production of valid "Domicile Certificate" to
prove their domiciliary status, issued by the Competent revenue
authorities so authorized by the concerned State.”
14. It may also be stated here that there is a stipulation in the
advertisement under the heading ‘General Instructions’ ,which reads as
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
under:
“ 15. GENERAL INSTRUCTIONS :-
xxx xxx xxx
(vi) Caste certificate issued other than domicile state of
candidate will not be considered. Both the certificates (caste
and domicile) should be issued by same State / UT. If Caste
certificate is to be submitted by the candidate from other than
domicile then such candidate will be treated as Un-reserved
(UR) category.”
(emphasis supplied)
15. The plea of Mr. Rajput is that, since the OBC certificate has
been issued by the District Magistrate, Sarita Vihar, New Delhi, the
same is in conformity with the advertisement and as such, the petitioner
being an OBC candidate needs to be appointed.
16. We are not in agreement with this submission of Mr. Rajput for
the reason that the vacancies for which the selection was undertaken
were for the respective States/ UT‟s and as the petitioner applied for
appointment against the vacancy meant for Delhi. It was required of
him to produce the certificate issued by the Authority in Delhi,
declaring that the petitioner is an OBC in Delhi without referring to the
certificate issued from U.P. This we say so, because the Authority
issuing certificate in Delhi has to independently conclude/ decide on the
basis of information supplied by the applicant/ petitioner herein, that he
belong to a caste which is an OBC (as per the resolution of the
Government of India dated September 10, 1993) in Delhi. No doubt,
„Yadav‟ caste is in the OBC category in Delhi, but the declaration in
that regard in respect of Delhi, has to be separate/ independent without
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
being influenced by the certificate issued in U.P.
17. The advertisement contemplates that the caste certificate should
be issued by the prescribed/ competent authority with authority of
Government of India/ Resolution correctly mentioned on it, which
justifies the claim of the candidate. But in the present case, as noted
from the OBC certificate, though the resolution of Government of India
is reflected/ depicted, but the declaration of “District Magistrate, Sarita
Vihar, New Delhi ” in the subsequent paragraph of the certificate
contemplates that it is issued on the basis of the OBC Certificate issued
to the petitioner from Modi Nagar, Ghaziabad, Uttar Pradesh. The
same, thus, is only an affirmation that he belongs to „Yadav‟
community of Uttar Pradesh. It is in this regard, Sub-Clause (VI) of the
“ General Instructions ” of the advertisement, which we have
reproduced above becomes relevant, as it is stated therein that the caste
certificate issued other than the domicile state of candidate, will not be
considered.
18. Reading the Sub-Clause (VI) of the “ General Instructions ” in
perspective, the Domicile certificate issued to the petitioner by the
District Magistrate, Sarita Vihar, New Delhi in the case of the petitioner
is not valid as the OBC Certificate necessarily has to be issued by the
Authority i.e. District Magistrate at Modi Nagar, Ghaziabad, Uttar
Pradesh where the petitioner hails from and not „ on the basis ‟ of any
other caste certificate issued by another Authority.
19. In other words, the certificate must give a declaration by the
Competent Authority upon satisfaction that the petitioner belongs to
“Yadav” community, which is a notified caste in Delhi as OBC.
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59
Contrary thereto, in the present case the issuing Authority has only
made a reference to the certificate issued by the State of Utter Pradesh.
In the absence of a declaration/ certification by the Competent
Authority, the respondents were right in treating the candidature of
petitioner under the UR Category. It is not the case of the petitioner that
he qualified under the UR Category.
20. In so far as the judgment relied upon by Mr. Rajput in the case
of Ravinder Singh (supra) is concerned, the issue which fell for
consideration in the said case was, whether the respondent therein being
an OBC candidate, was actually entitled to the relaxation of three years.
In the said case, it was clearly/ specifically provided in the
advertisement that OBC candidate seeking benefit of reservation should
submit an OBC certificate issued by the Competent Authority of Govt.
of NCT of Delhi and all other OBC candidates with certificate issued
from outside Delhi will be considered as UR category only, if eligible
otherwise. The respondent being an OBC from outside NCT of Delhi
and in the absence of any challenge to the advertisement, the Supreme
Court held the respondent was not entitled to the benefit of three years
of age relaxation and his case has to be considered in the unreserved
category. As such, the said judgment shall not help the case of the
petitioner and it rather supports the case of the respondents.
21. In so far as the judgment relied upon by Mr. Rajput in Hari
Krishna Pathak (supra) is concerned, the said judgment is clearly
distinguishable on facts, inasmuch as, the petitioner therein was seeking
the benefit of EWS category as per the certificate issued by Govt. of
NCT of Delhi. In this background, the Single Bench of this Court had
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Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
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in paragraph 33 held that, if a School is owned and controlled by the
Central Government, the appropriate Government to such School is the
Central Government. The learned Single Judge rejected the plea of the
respondents that the EWS certificate having been obtained from the
State of Uttar Pradesh and not from Govt. of NCT of Delhi, and hence,
not valid as untenable. The judgment is clearly distinguishable on facts.
22. In so far as the judgment in the case of Arun Kumar (supra) is
concerned (wherein one of us (Saurabh Banerjee, J.) was also a party to
the judgment), the Court referred to the judgment of the Supreme Court
in the case of MCD v. Veena and Ors., (2001) 6 SCC 571 , to hold in
affirmative that a candidate of the other State other than Delhi would be
treated as OBC in Delhi. Such an issue does not arise for consideration
in this petition and hence the judgment is distinguishable.
23. In view of the above discussion, we see no merit in the petition.
The same is dismissed. No cost.
CM APPL. 4399/2024
This application has been filed by the petitioner seeking interim
relief for the stay of further process of the recruitment/appointment for
the post or in alternative to keep vacant, one post of Constable
(Barber).
In view of the decision in the writ petition, the application is
dismissed as infructuous.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J
MARCH 15, 2024 /jg
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W.P.(C) 1044/2024 Page 10 of 10
Digitally Signed
By:JYOTIRMOY GHOSH
DASTIDAR
Signing Date:15.03.2024
15:58:59