Sunday, February 5, 2023

Uttarakhand High Court quashes order of state medical service selection board denying job to OBC candidate

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The Uttarakhand High Court has quashed an order passed by the Secretary, Uttarakhand Medical Service Selection Board, saying caste status is acquired by birth and not by marriage.

A single-judge bench of Justice Manoj Kumar Tiwari passed this order while hearing a petition filed by one Poonam.

By means of the writ petition, the petitioner has challenged the Office Memo dated 25.08.2022 passed by Secretary, Uttarakhand Medical Service Selection Board, whereby petitioner’s claim for appointment on the post of Dental Hygienist was rejected.

The petitioner is educationally qualified for appointment as dental hygienist. Respondent no 2 invited applications by issuing an advertisement dated 06.10.2021 for 40 posts of dental hygienist.

The petitioner applied for a post reserved for Other Backward Classes and submitted her OBC certificate. The petitioner stood 14th in order of merit against 40 vacancies, however, only 13 candidates were recommended for appointment. The petitioner was not recommended for appointment on the ground that the validity period of her OBC certificate had expired three days before publication of advertisement.

The petitioner filed a writ petition. The Court, by relying upon the Supreme Court judgment in the case of Ram Kumar Gijroya Vs Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC 754, allowed the writ petition vide judgment dated 26.07.2022 by holding that petitioner is a member of the Other Backward Classes, and has been issued fresh OBC certificate on 12.01.2022, therefore, the Competent Authority shall re-consider petitioner’s claim in the light of fresh OBC certificate issued to her.

The petitioner served the aforesaid judgment upon respondent no 2 and filed an affidavit, as per direction in the judgment. Her claim for appointment has again been rejected by respondent no 2 vide order dated 25.08.2022. Thus, feeling aggrieved, the petitioner has approached the Court.

The Court said two issues require consideration for determining petitioner’s eligibility, namely, (i) whether she belongs to Other Backward Classes; (ii) whether she belongs to creamy layer or not.

The Court noted that the question whether she comes within creamy layer has been decided against her on the ground that petitioner’s marriage was solemnized on 20.11.2022 at Dehradun. However, she obtained OBC certificate by mentioning address and income of her father and not of her husband. Reliance has been placed upon Government Order dated 02.04.2013 for recording adverse findings against petitioner that she suppressed information regarding marriage in her application made to the Competent Authority for issuance of OBC certificate.

Reliance upon Government Order dated 02.04.2013, for rejecting petitioner’s claim, appears to be misplaced. The caste status of the petitioner’s parents is not in dispute and it is also not in dispute that the petitioner is a permanent resident of the State of Uttarakhand. Caste status is acquired by birth and not by marriage. Thus, a girl, who does not belong to Other Backward Classes, will not get the benefit of reservation available to Other Backward Classes merely by her marriage to a person belonging to OBC.

The Court further noted the Competent Authority has issued a certificate stating that petitioner belongs to Other Backward Classes. In the said certificate, it is further certified that the petitioner does not belong to the creamy layer. The OBC certificate issued by Tehsildar in favour of petitioner on 12.01.2022 is neither cancelled nor rescinded, therefore, it is not open to the Selecting Body to sit in judgment over the certificate issued by the Competent Authority.

Petitioner is entitled to all benefits available to members of OBCs so long as her OBC certificate survives. There is nothing on record to show that the petitioner’s husband belongs to the creamy layer. There is no discussion regarding income of petitioner’s husband in the impugned order, yet her claim for appointment is rejected.

Even otherwise, there is no Statute or Government Order, providing that a girl belonging to OBC category has to obtain OBC certificate on the basis of income of her husband immediately after her marriage. Respondent no 2 has rejected petitioner’s claim for appointment based on value judgment and not based on any provision of law.

The Court observed the OBC certificate issued in favour of petitioner by Competent Authority cannot be set at naught, merely because petitioner’s action does not confirm to second respondent’s notions of socially accepted norms. In the absence of express provision in law providing that, after marriage, a girl has to obtain OBC certificate, based on income of her husband and not her father, petitioner’s conduct cannot be said to be illegal so as to render her caste certificate null and void.

The reasoning given by the Secretary of the Selecting Body for rejecting petitioner’s claim for appointment is unsustainable in the eyes of law, therefore, the impugned order deserves to be set aside.

“For the aforesaid facts and reasons, the writ petition is allowed and the impugned order dated 25.08.2022 is quashed. Respondent no 2 is directed to recommend the petitioner’s name for appointment to the Competent Authority, within two weeks, who shall pass appropriate order, as per law, within next two weeks,” the Court ordered.

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