शिमला। प्रदेश की पूर्व धूमल सरकार और मौजूदा वीरभद्र सिंह सरकार ने एक महिला को पांच साल तक इसलिए सताए रखा क्योंिक ओबीसी की इस महिला ने एक राजपूत से ब्याह कर लिया।प्रदेश हाईकोर्ट ने इस पर सरकार पर दो लाख रुपए का जुर्माना लगा िदया और महिला को पांच साल पहले से नौकरी देने के आदेश दिए है। यहां पढ़े हाइकोर्ट की पूरी जजमेंट।
This writ petition is on the Board of this Court for the last five years and the writ petitioner is being dragged from pillar to post and post to pillar by the respondents without any rhyme and reason
and because of her no fault. It is painful to record herein that perhaps the fault of the writ petitioner is that she was born in a reserved category – backward family declared as OBC class. The petitioner’s father and other relations including her were having the necessary documents. She belonged to disadvantageous family as per the system prevailing in the country. Despite all odds, she came out and obtained academic qualification/degree of M. Phil from Punjab University in the discipline of Botany in the year 2005 (Annexure P- 1), was waiting for the day when she would get employment in the country, particularly in the State of Himachal Pradesh, had seen a ray of hope in the year 2008, when respondent No. 3 issued advertisement notice, dated 28th August, 2008, Annexure P-2) inviting applications from the desirous and qualified candidates for appointment as lecturers (college cadre) Class-I (Gazetted) on contract basis in various subjects and Botany was one of the subject notified/advertised. 2. After noticing the advertisement notice, the petitioner applied under the category of OBC General and annexed the OBC certificate (Annexure P-3). Examination was conducted on 6th January, 2009, the petitioner was declared successful, her joy knew no bounds, was waiting for interview call and selection, appeared in interview on 28th August, 2009, in terms of interview call letter,
Annexure P-4, but was asked to produce a latest certificate regarding her status of OBC and in view of the subsequent developments, was asked to file an affidavit to the effect whether she has lost the status of OBC and does fall under the head “creamy layer”. She filed the affidavit. She also applied for issuance of the certificate, was withheld and was not in a position to file fresh certificate, though she had already annexed the OBC certificate (Annexure P-3) with the application form.
3. Respondent No. 4 – Sub Divisional Magistrate (Civil), Mandi, before whom she applied for issuance of latest OBC certificate as directed and required, refused to grant the same on the ground that she had married to a family of upper class of Rajputs and perhaps this is the sin she has committed according to the respondents.
The petitioner left no stone unturned to get redressal of her grievances but was made to suffer because she has married in an upper class.4. It is averred that the writ petitioner, by birth, is falling
under the OBC category, suffered all sufferings and undergone all odds for the reason that she was belonging to reserved class, i.e. OBC category. It has been prayed that respondent No. 3 be directed to consider her selection under the OBC category and the instructions, dated 15th March, 2005, (Annexure P-8) be quashed. Further prayed that respondent No. 4 be directed to issue a latest OBC certificate in favour of the writ petitioner.
5. The writ petition was presented before this Court on 4th September, 2009, notices were waived by the respective counsel on behalf of the respondents and were asked to file reply. Notices were
also issued in CMP No. 6013 of 2009, an application seeking interim relief. The respondents failed to file reply and this Court, vide order, dated 8th September, 2009, by way of interim directions, restrained the respondents from filling up one post under the OBC category, rather commanded the respondents to keep one post vacant/unfilled,was made absolute vide, order dated 20th October, 2009.
The petitioner is waiting for the ultimate result of the writ petition. 6. The respondents have resisted the writ petition solely on the ground that the writ petitioner was not eligible at the relevant point of time because she was not having the latest OBC certificate and had lost the said status because of her marriage in upper class. It was further contended that the requirement of filing the latest OBC certificate was in terms of the rules, which were occupying the field at
that particular point of time.
7. The question is – whether a person, who is having a status by birth can be denied that status because of subsequent developments, i.e. because of adoption in an upper class or because of
marriage in upper class? 8. We deem it proper to only discuss and return the findings on the issue – whether in the given circumstances, a person,who is having OBC status by birth and has gone through various social disadvantages and did not have the facilities for development and
growth, suffered all odds, can her right as OBC be taken away from her because of her marriage? The answer is in negative.
9. Admittedly, she was belonging to OBC category, was born in the family, which hails from OBC category, lived with them,undergone all disadvantages, suffered all social stigmas and other
painful, ugly situations. She had obtained the OBC certificate, applied for the test, qualified, called for interview but her selection was withheld by respondent No. 3 on the ground that she had to produce latest OBC certificate, which was not required for the reason that marriage in an upper class or adoption in an upper class is not a substitute for the sufferings and other disadvantages, which she has suffered and is no ground to take away the status which a person is
having by birth. Had the case being reverse, i.e. had she belonged to upper class and married in a lower class, in that eventuality, that maybe a case for not giving benefit because of adoption or because of marriage for the reason that she might have enjoyed all advantageous position right from birth till marriage and had not suffered any disadvantageous position, cannot now be allowed to reap the fruits of a backward class/category due to adoption, after enjoying everything in life.
10. A Division Bench of the High Court of Jammu and Kashmir at Jammu has decided the said issue in a case titled as Surjeet Singh Bali versus State of J&K and others, being LPA (SW) No. 649 of 1999, reported in 2007 (1) SLJ 18, of which one of us (Justice Mansoor Ahmad Mir, CJ) was the author. It is apt to reproduce para 11 of the judgment herein:
“11. The RBA status is conferred by residence/domicile. The private respondents were
having this status even at the time of submission of application forms but were not in possession of the certificates concerned, which came to be issued in their favour after filing of the application forms and before the examination came to be held. They have mentioned in the application forms that they belong to RBA category. While making this observation, we are supported by what was said by this court in the case reported as 2002 (1) SLJ 234, J&K Public Service Commission and another Vs. Ms. Rimpi Ohri and another. It is profitable to reproduce para 27 of
the aforesaid judgment as under: “…. The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already held that she was a resident of LAC, at the time of submission of the application and continue to be so even today.
If that is so, she was definitely possessing the qualification with regard to the resident of LAC, at the time of closing date of the application i.e. 16.03.1999. Non renewal of certificate would not alter the status of her residence if otherwise she was factually resident of Line of Actual Control. The factum
of the respondent / writ petitioner being the resident of Line of Actual Control is not denied by the applicant”.”
11. The Apex Court in a case titled as Marri Chandra Shekhar Rao versus Dean, Seth G.S. Medical College and others, reported in (1990) 3 Supreme Court Cases 130, examined the provisions of Articles 341 and 342 of the Constitution of India and held that status earned by birth cannot be taken away by subsequent developments. It is apt to reproduce paras 9 and 10 of the judgment
9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social
disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This,however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole.
10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country’s integrity that no section or community should cause detriment or discontentment to other community or part of community or section. Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult. For the purpose of understanding the problem, it may be worthwhile to refer to the Report of the Joint Committee of the Parliament on the Scheduled Castes and Scheduled Tribes (Amendment) Order Bill, 1967. It may also be worthwhile to refer to the proceedings of the Constituent Assembly on September 19, 1949 dealing with draft Articles 303 and 304, which later on became Articles 341 and 342 respectively. Dr B.R. Ambedkar moving the Resolution observed as follows: “That after Article 300, the following articles be inserted: 300-A. (1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes,races or tribes or parts of or groups within castes races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to the State.(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.300-B. (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued by the President under clause (1) of this article any tribe or tribal community or part of or group within any tribe or tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”The object of these two articles, as I stated,was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the gazette specifying all the castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for thepurposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by thePresident, which, undoubtedly, he will be issuing in consultation with and on the advice of the government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made,that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.” 12. It would also be profitable to reproduce para 14 of thejudgment rendered by the Apex Court in another case titled as Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another versus Union of India and another, reported in (1994) 5 Supreme Court Cases 244, as under:“14. It is a matter of common knowledge that before and during the British rule also the social order in India was of graded inequality. During the freedom struggle some of our leaders strived to bring about social integration to give a fillip to the independence movement. The need to bring about equality was strongly felt. After independence when the Constitution was being framed for free India,considerable emphasis was laid on the need to secure equality. The debates of the Constituent Assembly bear testimony to this felt need. The Preamble of our Constitution, which is aptly described as the conscience of our Constitution, promises to secure to all citizens “equality of status and of opportunity”. In the Chapter on Fundamental Rights, Article 14 emphatically states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But then the Constitution-makers were also aware of the prevailing inequality in the social structure of the country and, therefore, felt the need to correct this imbalance through appropriate provisions. While Article 15(1) in unmistakable terms provides that the State shall not discriminate against any citizen on grounds only of religion, caste, race, sex, place of birth or any of them, Article 15(4) says that nothing in the foregoing paragraph of the said article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. So also Article 16(1) posits that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause (2) thereof adds that no citizen shall, on grounds of religion, race, caste, sex, descent or place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State. But then clause (4) of Article 16 provides that nothing in theforegoing part of the article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in services under the State. Article 19, insofar as is relevant for the purposes of this petition, states that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. The submission of the learned counsel for the petitioner was that since Article 19 confers a right of free movement throughout the territory of India and a right to reside and settle in any part of the territory of India, persons belonging to the Scheduled Castes and Scheduled Tribes have a right to move from one State to another without hindrance and to reside and settle in any other State. There can be no doubt that this is a fundamental right and members belonging to the Scheduled Castes/Scheduled Tribes specified in one State have a right to free movement to another State and to reside and settle in the other State if they so desire. As stated earlier certain privileges have been conferred on members belonging to the Scheduled Castes and Scheduled Tribes in Part XVI of the Constitution, namely, Articles 330, 332, 335 and 336 which we have referred to earlier. But as pointed out earlier on a plain reading of clause (1) of both Articles 341 and 342, extracted earlier, it becomes obvious that the power of the President is limited to specifying the castes/tribes which shall, “for the purposes of Constitution”, be deemed to be Scheduled Castes or Scheduled Tribes “in relation to a State or a Union Territory”, as the case may. The contention of the learned counsel for the petitioners was that the legal position explained in the communication of 22-3-1977 and subsequent communications flowing therefrom and referred to earlier was not consistent with the language of Articles 341(1) and 342(2) and was even otherwise violative of the concept ofequality enshrined in Articles 14, 15, 16 and 19 of the Constitution. The learned counsel furtherpointed out that the decisions of the Bombay High court referred to in the earlier part of this judgment and the decisions of the ‘Gujarat High Court in Manju Singh v. Dean, B.J. Medical College and State of Gujarat v. R.L. Patel as well as the decision of the Karnataka High Court in P.M. Muni Reddy v. Karnataka Public Service Commission should be approved as they have rightly held that the words “for the purposes of this Constitution” should not be read as subservient to the words “in relation to that State”. If so interpreted the view expressed by the Government of India in the communication dated 22-3-1977 would be wholly erroneous and in violation of the fundamental rights referred to earlier. He, therefore, contended that since the Maharashtra Government order of 21-3-1979 follows the interpretation placed by the Government of India in the communication of 22-3-1977, the former must also be held to suffer on the same vice of constitutional invalidity and opposed to the spirit and purpose of Articles 341(1) and 342(1). On the other hand the learned counsel for the Union of India, though handicapped for want of a counter, and the learned counsel for the State of Maharashtra placed strong reliance on the Constitution Bench decision in Marri Chandra and submitted that these very submissions were canvassed before the Constitution Bench by Mr Raju Ramachandran, and were spurned. If we agree with the submission of the learned counsel for the respondents that the point at issue in this petition stands covered by the decision of the Constitution Bench in the aforesaid case nothing further would remain for us to decide. It would, therefore, be advantageous to straightaway refer to the decision in Marri Chandra case.
13. A very important and vital issue of similar nature and other related questions akin to the said question have been discussed by the Apex Court in a case titled Valsamma Paul (Mrs) versus
Cochin University and others, reported in (1996) 3 Supreme Court Cases 545. While going through the said judgment, one comes to an inescapable conclusion that the Apex Court has discussed all the provisions of the Constitution of India, other connected laws and rules and has held that the status by birth cannot be taken away without any reason, that too, on the whims and caprice of an administrative action. It would be profitable to reproduce paras 16, 21, 22, 30, 33, 34 and 36 of the judgment herein:
“16. The Constitution seeks to establish secular socialist democratic republic in which every citizen
has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering
fraternity among them in an integrated Bharat. The emphasis, therefore, 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, secularism has been held to be one of the basic features of the Constitution (Vide : S. R. Bommai v. Union of India, (1994) 3 SCC 1) and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult. In State of Karnataka v. Appa Balu Ingale,AIR 1993 SC 1126 , this Court has held in para 34 that judiciary acts as a bastion of the freedom and of the rights of the people. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamless web of life. A Judge must be a jurist endowing with the legislator’s wisdom, historian’s search for truth, prophet’s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adapt purposive interpretation of the dynamic concepts under the Constitution and the Act with its interpretive armoury to articulate the felt necessities of the time. Social legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law. In that case, the need for protection of right to take water, under the Civil Rights Protection Act, and the necessity to uphold the constitutional mandate of abolishing untouchability and its practice in any form was emphasized.
21. The Constitution through its Preamble,Fundamental Rights and Directive Principles created 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. Dr. K. M. Munshi contended on the floor of the Constituent Assembly that “we want to divorce religion from personal law, from what may be called social relations,or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to
understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as
possible, a strong and consolidated nation” (Vide : Constituent Assembly Debates, Vol. VII ,
pp. 356-58). 22. In the onward march of establishing an egalitarian secular social order based on equality and dignity of person, Article 15(1) prohibits discrimination on grounds of religion or caste
identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. Indian culture is a product or blend of several strains or elements derived from various sources, in spite of inconsequential variety of forms and types. There is unity of spirit informing Indian culture throughout the ages. It is this underlying unity which is one of the most remarkable everlasting and enduring feature of Indian culture that fosters unity in diversity among different populace. This generates and fosters cordial spirit and toleration that make possible the unity and continuity of Indian traditions. Therefore, it would be the endeavour of everyone to develop several identities which constantly interact and overlap, and prove a meeting point for all members of different religious communities, castes, sections, sub-sections and regions to promote rational approach to life and society and would establish national composite and cosmopolitan culture and way of life.
30. It would thus be seen that the institution of marriage is one of the sound social institutions to
bring harmony and integration in social fabric. The Shastric law among Hindus has undergone sea
change, in the rigidity of Shastric prescriptions. In relation to intestate succession of property, marriage, adoption and maintenance among Hindus, they are brought under statutory operation appropriately underpinning the rigid Shastric prohibitions, restrictions to operate in harmony with the Universal Declaration of Human Rights and Constitutional Rights. The right to divorce which is unknown to Hindu law is made feasible and an irretrievable breakdown of the marriage is made a ground so as to enable the couple to seek divorce by mutual consent. The Hindu Marriage Act, 1956 and Special Marriage Act, 1954 made the marriage between persons belonging to different castes and religions as valid marriage. Even local amendments in Section 7A to the Hindu Marriage Act, 1956 like in Tamil Nadu, removed the rigidity of celebrating the marriages in accordance with Shastric prescription like Kanyadan and Saptapadhi being not mandatory, recognised social marriage as valid. Right to maintenance from the divorced husband is provided under the Hindu Adoptions and Maintenance Act, 1956 and Section 125 of the Code of Criminal Procedure, 1973 so long as she remains unmarried. Under Hindu Minority and Maintenance Act, she is entitled to maintenance from father-inlaw. Similar gender equality is available to other citizens consistent with Human Right and under Article 15(3) of the Constitution. The march of law lays emphasis on the rights of the individual for equality. The form of marriages is relegated to backdoor as unessential. These are matter of belief and practice and not core content. Tying Tali is a must and without it marriage is not complete is not complete in South India among all Hindus and in some parts among Harijan Christians, while exchange of ring would do in North India. Ritualistic
celebration of marriage would be considered by some as valid, while most people in other sections
think that factum of marriage is enough. When in Tamil Nadu such marriage is statutorily valid, would it become invalid in other parts of the country? The answer would, obviously and emphatically be, “No”. Inter-caste marriages and adoption are two important social institutions through which secularism would find its fruitful and solid base for an egalitarian social order under the Constitution. Therefore, due recognition should be accorded for social mobility and integration and accordingly its recognition must be upheld as valid law.
33. However, the question is : whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation’s life by
providing them opportunities and facilities. 34. In Murlidhar Dayandeo Kesekar v. Vishwanath
Pandu Barde, 1995 Supp. (2) SCC 549; and R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309, this Court had held that economic empowerment is a fundamental right to the poor
and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus,
education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of
other economic benefits under Articles 15(4) and 46 or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and
OBCs he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the
candidate to avail the facility of reservation. A candidate who had the advantageous start in life
being born in forward caste and had march of advantageous life but is transplanted in backward
caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation
either under Article 15(4) of 16 (4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4)and 16(4)of the Constitution.
36. The recognition of the appellant as a member of Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous star in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class.” 14. The Apex Court also in other cases titled as S. Pushpa and others versus Sivachanmugavelu and others, reported in
(2005) 3 Supreme Court Cases 1 and Subhash Chandra and another versus Delhi Subordinate Services Selection Board and
others, reported in (2009) 15 Supreme Court Cases 458, has discussed the entire law and held how to grant reliefs, certificates and benefits to the person on adoption from upper class to reserve
category and from reserve category to upper class.15. Applying the test to the present case, the facts are admitted that the petitioner before marriage was belonging to a reserve class, i.e. OBC, was having OBC certificate, appeared and selected in the examination, was not given her right and was asked to obtain a latest OBC certificate, which was not granted to her. The respondents have virtually committed fraud on Constitution and have made the life of the writ petitioner hell and now, she may be thinking, rather cursing, why she was born in a disadvantageous family, i.e. reserved category and why she has married in an upper class, is an eye opener for the respondents, who are implementing the Constitutional laws and the other laws applicable and who are the custodians of the rights and the duties guaranteed by the Constitution to the citizens of India as per the mandate of Fundamental Rights, the Directive Principles of State Policy and the Fundamental Duties contained in Parts III and IV of the Constitution of India. 16. Learned Advocate General argued that the petitioner was not having an OBC certificate at the relevant point of time, and even if she has obtained the same during the pendency of the writ petition, that cannot be a ground to make her eligible, is devoid of any force. 17. As discussed hereinabove, the writ petitioner was having the OBC certificate at the relevant point of time but was asked to furnish latest one, which was not issued by respondent No. 4 at the relevant point of time, thus failed to discharge his duties and rather misused his official position. Thereafter, the latest OBC certificate, dated 16th January, 2014, was issued in favour of the writ petitioner. 18. It is also pertinent to mention herein that respondent No. 4 has filed compliance affidavit, dated 23rd May, 2014, clarifying under what circumstances he has now issued the OBC certificate in favour of the writ petitioner. He has made reference to a communication, dated 2nd December, 2011, addressed by the Principal Secretary (SJE) to the Government of Himachal Pradesh to the Deputy Commissioner, Mandi, District Mandi. It is apt to reproduce relevant portion of the communication herein: “………………I am directed to refer to your letter No. MND-MA- 4(52)/94-17797 dated 04/10/2011 on the subject cited above and to say that the matter regarding issue of OBC Certificate in favour of Smt. Sushila Devi was taken up with the Law Department. The Law Department has advised as under: “Examined in the Law Department. The proposition of the A.D has been gone through in this Department
in the light of the latest judgment of Hon’ble High Court of Uttrakhand in AIR 2010 Uttrakhand 36,
Neha Saini Vs. State of Uttrakhand and another whereby the Hon’ble Court has held that what is
important and what should be examined by the State authorities is that the petitioner was born in
another Backward class i.e. “Saini” which is notified as other Backward class in the State of Uttrakhand. The petitioner was residing in the State Uttrakhand prior to her marriage and therefore, she is entitled for caste certificate from the State authorities in the State of Uttrakhand. The Hon’ble court has further held that the next question would be regarding the caste of the petitioner. The petitioner was born in Saini Community, which is notified as an OBC in Uttrakhand. Although she has now married into a higher caste yet she is entitled to her caste certificate, which is determined by birth and the community she is born into. This certificate can only be granted to the petitioner by the authorities in Uttrakhand. Therefore, under law if the petitioner demands such certificate from the authorities in Uttrakhand, then such a certificate ought to be granted to her. It cannot be denied to her merely because she has now married into a higher caste or that her husband permanently
resides in Bihar, i.e. in another state. Thus by applying the ratio of the aforesaid judgment in the matter in hand Smt. Sushila Devi who was born in OBC Community and has married in a scheduled caste family is entitled to the certificate of OBC Community, in which she was born into
19. Thus, even now, the writ petitioner is having the OBC certificate in her favour, then how can she be denied the relief sought for. 20. It is worthwhile to record herein that the respondents
have illegally taken away the rights of the writ petitioner and have drawn her to the lis and made her to suffer. The writ petitioner has sought quashment of the instructions, dated 15th March, 2003
(Annexure P-8), are not instructions but just a communication. The said letter/communication, on the face of it, has been issued in violation of the Constitutional provisions, as discussed hereinabove, isbad in the eyes of law, as per the communication, dated 2nd December,
2011, (supra).21. As discussed hereinabove, the writ petitioner has now obtained the certificate rendering Annexure P-8 as redundant and useless. It has lost its efficacy by efflux of time and subsequent developments.22. The question is – what relief can be granted to the writ
petitioner in the given circumstances? 23. The respondents were directed to keep one post vacant
under the OBC category in terms of order, dated 8th September, 2009,was made absolute vide order, dated 20th October, 2009, has attained finality. The respondents or any other interested party has not questioned the same. Meaning thereby, the post is still available. The writ petitioner has a ray of hope, is waiting to reap the fruits of the litigation and has come to this temple of justice to seek redressal of her grievances. 24. This Court in a case titled as Meena Devi versus
Himachal Pradesh State Subordinate Services Selection Board,being CWP No. 5744 of 2010, decided on 9th August, 2011, directed the respondents to treat the writ petitioner in that case as OBC candidate for all purposes and regularize her appointment accordingly.25. Keeping in view the ratio of the said judgment read with the law laid down by the Apex Court, as discussed hereinabove,
respondent No. 3 is directed to select the writ petitioner, make recommendations for her appointment against the said post under OBC category and to forward the same to respondents No. 1 and 2. Respondents No. 1 and 2 are directed to consider her case for appointment.
26. The question arises – from which date the appointment is to be given effect? As discussed hereinabove, the writ petitioner has participated in the examination, was declared successful, was
called for interview but was refused the appointment only for the non-availability of the latest OBC certificate.27. The Apex Court in a case titled as Sanjay Dhar versus J&K Public Service Commission and another, reported in (2000) Supreme Court Cases 182, held that the appellant shall be deemed to have been appointed alongwith other appointees. It is apt to reproduce relevant portion of paras 14 and 16 of the judgment herein: “14. …………….. In this view of the matter the
certificate dated 12-12-1992/17-3-1993 filed by the appellant before the J&K PSC satisfied the
requirement of Rule 9 abovesaid and the J&K PSC was not justified in rejecting the application of the appellant holding him to be ineligible. As the appellant participated in the process of selection
protected by the interim orders of the High Court and was also successful having secured third
position in the select list, he could not have been denied appointment. The appellant is, therefore,
fully entitled to the relief of his appointment being calculated w.e.f. the same date from which the
candidates finding their place in the order of appointments issued pursuant to the select list
prepared by the J&K PSC for 1992-93 were appointed and deserves to be assigned notionally a
place in seniority consistently with the order of merit assigned by the J&K PSC.15. ………………
16. For the foregoing reasons the appeal is allowed.The judgment under appeal is set aside. It is
directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of the merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned senior counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority reckoned
notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in case he would have been appointed by
order dated 6-3-1995. We record that statement and direct that the appellant shall be entitled only
to the benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-.” The facts of the Sanjay Dhar’s case (supra) and the case in hand are similar and the ratio laid down is squarely applicable to the writ petitioner.
28. Keeping in view the ratio laid down by the Apex Court in the said judgment, we deem it proper to direct the respondents that the writ petitioner shall be entitled to seniority as per the merit from
the date when other persons, have been appointed pursuant to the advertisement notice, dated 28th August, 2008 (Annexure P-2), but without monetary benefits. Viewed thus, the writ petitioner is held entitled to grant of notional seniority as per the order of merit.29. Respondent No. 4 has already issued the OBC certificate,thus the writ petition, so far it relates to relief No. (iii), stands granted and writ petition is settled.30. The writ petition, so far it relates to relief No. (ii) to
quash Annexure P-8, has become infructuous by subsequent developments, as discussed hereinabove, has lost efficacy in view of the development of law.31. Keeping in view the fact that respondents No. 3 and 4 have dragged the writ petitioner in lis and have left her wandering,
we deem it proper to impose costs. Accordingly, we impose costs,which are quantified at ` 2,00,000/- (Rupees two lacs), out of which ` 50,000/- (Rupees fifty thousand) are recoverable from the Chairman/Secretary of respondent No. 3 and the Sub Divisional Magistrate (Civil), Mandi, each, respectively, who were manning the posts at that particular point of time. On deposition of the
said amount, ` 1,00,000/- (Rupees one lac) is to be paid to the writ petitioner and ` 1,00,000/- (Rupees one lac) is to be deposited with the H.P. High Court Bar Association Welfare Fund.
32. The writ petition is allowed, as indicated hereinabove alongwith all pending applications.
(Mansoor Ahmad Mir)
(Tarlok Singh Chauhan)
June 19, 2014