CHAND SURAJ vs UNION OF INDIA AND ORS

2023-11-29 Information

$~1(DB)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 24.11.2023
Judgment delivered on: 29.11.2023
+ REV. PET. 301 of 2023 & CM APPL. 56685/2023 in W.P.(C) 8452/2023
CHAND SURAJ ….. Petitioner
Through: Mr Abhinav Sharma, Mr LK Srivastava, Mr PC Roy, Ms Parul Khurana and Ms Deeksha Prakash, Advs.
versus

UNION OF INDIA AND ORS. ….. Respondents
Through: Mr. Rakesh Kumar, CGSC
CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH
HON’BLE MR. JUSTICE VIKAS MAHAJAN
J U D G M E N T

: JASMEET SINGH, (J)

1. This is a review petition seeking setting aside of the order dated 12.06.2023 passed in W.P. (C) 8452/2023 and consequently, allow the petitioner to join ongoing selection process i.e. Stage – III under advertisement for the batch of 02/2023 issued for recruitment post of Navik (General Duty) as a general candidate.
PLEADINGS
2. The concise facts of the present case is that the respondents had issued a Notification No.01/2023 for the recruitment to the post of Navik (D), Navik (Domestic Branch) and Yantrik in the Indian Coast Guard by inviting applications from 08th September, 2022 (1100 hrs) to 22nd September, 2022 (1730 hrs). Petitioner applied for the same as an EWS candidate and appeared for Coast Guard Navik (DB)-01/2023 Stage-I examination. Petitioner cleared the stage I examination and was called upon for stage II examination on January 12, 2023.
3. At Stage-II examination, the petitioner was required to upload all relevant documents including EWS certificate, as the petitioner had applied under the EWS category. The EWS certificate uploaded by the petitioner was dated 03.02.2022 for the year 2021-22. The petitioner also uploaded another certificate dated 30.12.2022 for the year 2022-23.His candidature was rejected as the petitioner failed in document verification process. The reasons as stated in the result reads as under:-
As you are not a bonafide candidate because your application was with false information and did not match with information as per documents uploaded in application and was in contravention of Date of issue of EWS certificate after closing date of application i.e. 24 Sep 22. Fail in document verification as per para 6(b)(ii) of the advertisement and para 15(b) of Appendix A of E-admit card.
4. Feeling aggrieved, petitioner approached this court by way of filing writ petition.
5. This court vide order dated 12.06.2023, dismissed the writ petition relying on the judgment passed by this court in Parvinder v. Union of India &Ors., [2022: DHC:487-DB], on the ground that on the date of closing of the application i.e. on 24.09.2022, the petitioner did not possess a valid EWS certificate. The operative paras reads as under:-
9. We are in agreement with the stand of the respondents that since on the closing date of the application, the petitioner did not have a valid EWS certificate, hence, the rejection of his candidature as an EWS candidate cannot be said to be mala fide or arbitrary.
10. The petitioner was negligent. The petitioner did not have a valid EWS certificate from 01.04.2022 to 30.12.2022 and hence, on the closing date of application i.e. on 24.09.2022, he was not having a valid EWS certificate. The judgment of Parvinder vs. Union of India &Ors. (supra) is squarely applicable to the petitioner.
11. For the said reasons, we see no merits in the petition and the same is dismissed

6. The petitioner approached the Honble Supreme Court challenging the above order by way of filing SLP bearing No. 19668/2023, vide order dated 16.10.2023, SLP was dismissed as withdrawn granting liberty to the petitioner to file a review petition before this court.
7. Pursuant to the liberty so granted, the petitioner has preferred this instant review petition.
8. The petitioner filed an RTI application on 18.06.2023 and sought information pertaining to marks obtained by the petitioner in the Stage I and the cut off marks of the General category.
9. The response to RTI was received by the petitioner on 03.07.2023 from the IG Neeraj Tiwari, TM, Appellate Authority, Coast Guard Headquarters, National Stadium Complex, New Delhi 110001 wherein the petitioner was informed that he had scored 95 marks and the cut off marks in the General category for Navik (GD) was 84 marks.
10. The petitioner further placed reliance on an Office Memorandum (OM) dated 31.01.2019 issued by the Government of India through Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, relating to reservations for economically weaker section and more particularly Clause 7 thereof which reads as under:-
7. Adjustment Against Unreserved Vacancies:
A person belonging to EWS cannot be denied the right to compete for appointment against an unreserved vacancy. Persons belonging to EWS who are selected on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.
11. Therefore, it is urged by the learned counsel for the petitioner that the petitioner is a meritorious candidate and had cleared written examination of Stage I with merit and scored 95 marks which is over and above the cut off marks prescribed for General category. Hence, without prejudice to the rights of the petitioner that the petitioner should have been considered under the EWS category, the petitioner could have very well been considered in the General category and permitted to participate in selection process.
12. Per contra, Mr Kumar, learned CGSC has handed over a short reply and has drawn our attention to para 9 of the notification for the advertisement for recruitment of the Batch 1/23 which reads as under:-
9. Result Declaration. The result of each stage of selection procedure from Stage-I to Stage-III can be accessed by login to the candidates account on ICG website. The result of the online examination at Stage-I will be announced tentatively within 30 days. Candidates failing in document verification as per rules at Stage II & Stage-III examination will NOT be considered as bonafide candidates {as they have submitted false/incorrect information in the application not duly supported by the uploaded documents or have uploaded incorrect documents or have uploaded interchanged documents} then their marks scored at Stage-I will NOT be informed to them during result display from candidates login and even under RTI Act 2005. Candidates failing in document verification at Stage-II & Stage-III examination will be NOT be considered as bonafide candidates and they will be informed only about the reason for failure in document verification and NOT their marks scored at Stage I and cut-off for Stage-II & Stage-III. Candidates found absent or involved in malpractice in the Stage-I, II, III will not be informed of their marks scored and the cut-off of the respective post and category will not be displayed.
13. Learned CGSC further submits that EWS certificate uploaded by the petitioner was dated 03.02.2022 for the year 2021-22 and another certificate dated 30.12.2022 for the year 2022-23. His candidature was rejected as his date of issue of EWS certificate for 2022-23 was after the closing date of application i.e. 24.09.2022.
14. To buttress his arguments, he placed reliance on Divya vs. Union of India &Ors., 2023: INSC: 900.
15. Learned CGSC further states that the petitioner could have been considered as a general candidate only if he was a bonafide candidate. The petitioner in the present case was not a bonafide candidate as his uploaded documents were found to be wanting. Hence, the order dated 12.06.2023 needs no interference and review petition should be dismissed.
16. Learned CGSC also points out that the batch of the petitioner i.e. 1/23 stands completed and batch 2/23 has commenced their 16 weeks training. Further stage I of batch 1/24 will start in December.

ANALYSIS AND FINDINGS
17. We have heard the submissions of the learned counsel for the parties and perused the notification No. 1/2023.
18. The issue before us to adjudicate is whether on account of the non-possession of the EWS certificate on 24.09.2022, the petitioner would be outside the scope and purview of a bonafide candidate.
19. In the present case, it is admitted that the petitioner was an EWS category both for the year 2021-22 and 2022-23. The only deficiency in the case of the petitioner was that on the last date for making an application i.e. 24.09.2022, the petitioner did not have a valid, subsisting EWS certificate for the year 2022-23.
20. Admittedly, the petitioner was an EWS candidate by virtue of certificate dated 03.02.2022 for the year 2021-22 which is admitted by the respondents. Further, petitioner also had an EWS certificate dated 30.12.2022 for the year 2022-23.
21. Para 7 of the OM which is extracted above clearly shows that in case the petitioner is not considered as an EWS candidate, petitioner would have the right to compete for an appointment against unreserved category.
22. A perusal of the EWS certificate dated 30.12.2022 for the year 2022-23 clearly shows that it is based on the gross annual income of his/her family in the previous year. The certificate for the year 2022-23 reads as under:-

23. The certificate for the year 2022-23 clearly shows that the petitioner did not cross the criteria of either annual income of his/her family being above Rs. 8 lakhs or possessing 5 acres of agricultural land and above; or possessing residential flat of 1000 sq. ft. and above; or possessing residential plot of 100 sq. yards and above in notified municipalities; or possessing residential plot of 200 sq. yards and above in areas other than the notified municipalities.
24. The certificate only recognized that the petitioner belonged to the EWS category in the year 2022-23 as the certificate is based on the incomes/assets of the previous Financial Year i.e. 2021-22.
25. In this view of the matter, the petitioner was belonging to the EWS category on the closing date for making an application i.e. 24.09.2022 (the last date of his application form), but did not possess a valid EWS certificate as the same came to be issued only 30.12.2022. Hence, it cannot be said that the documents filed by the petitioner lacked bonafides or that the petitioner was not a bonafide candidate. The certificate dated 30.12.2022 is only the certification/recognition, of the fact that in the year 2022-23 the petitioner belong to EWS category.
26. Since we had given a finding that the petitioner on 24.09.2022 did not possess an EWS certificate and based on the judgment Parvinder (supra), we had opined that no fault could be found in the action of the respondents in rejecting his candidature but today, we cannot be oblivious of the marks obtained by the petitioner.
27. The petitioner is a meritorious candidate and had 95 marks whereas the minimum qualifying marks for General category is 84. There is no gain saying in the fact that the purpose of the examination is to screen out and take the best candidates available for the job. Since the petitioner obtained the minimum marks, the petitioner should have been considered for Stage-II under the General category as the rejection of the petitioner is not based on his merit but only on account of document verification.
28. The learned CGSC also confirms during the arguments that all EWS candidates who scored more than 84 marks were considered in the general category hence, there is no reason taking a contrary view vis-a-vis petitioner.
29. The fact that the petitioner had scored 95 marks in the stage I and minimum mark under general category were 84 marks, were only made known to the petitioner on 03.07.2023 pursuant to RTI application, therefore, arguments were not premised on the said aspect when the hearing took place on 12.06.2023. The above said facts are an important piece of information which are new facts and were not available to the petitioner at the time when the writ petition was argued. Hence, this review petition is entertained.
30. The reliance on Divya (supra) is not of help to the respondents as the judgment is based on the interpretation of Civil Services Examination Rules, 2022. In the present case, even as per applicable OM and notification, the petitioner should have been considered under the general category.

RELIEF
31. For the reasons stated above, the review petition is allowed and the order dated 12.06.2023 passed in W.P. (C) 8452/2023 is set aside and the petitioner is directed to be considered for Stage-II.
32. The Stage-II examination of the petitioner shall be done within a period of three days and if found eligible, the petitioner would join training within three days thereafter.
33. Pending application(s), if any, are disposed of.

JASMEET SINGH, J

VIKAS MAHAJAN, J

NOVEMBER 29, 2023/(MSQ)
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W.P.(C) 8452/2023 Page 1 of 11