IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1273 of 2023

Date of Decision: 01.01.2026

_____________________________________________________________________

Banita Choudhary

……...Petitioner

Versus

State of Himachal Pradesh & Anr.

…....Respondents

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? Yes.

For the Petitioners: Mr. Ajay Kumar Dhiman, Advocate.

For the respondents:Mr. Rajan Kahol, Mr. Vishal Panwar,

Additional Advocates General with Mr. Ravi

Chauhan & Mr. Anish Banshtu, Deputy

Advocates General, for the respondents-

State.

___________________________________________________________________________

Sandeep Sharma, J. (Oral)

Precisely, the question, which needs to be determined in

the case at hand, is that “whether a selected candidate belonging to

OBC Category can be rendered ineligible on the ground of non-

submission of OBC Certificate within cut-off date mentioned in the

advertisement?”

2. Quintessential, the facts, as emerge from the pleadings,

adduced on record by the respective parties are that vide

Advertisement No.9/2022 dated 19.09.2022 (Annexure P-1), Atal

Medical & Research University, Himachal Pradesh, advertised 723

posts of Community Health Officer, out of which 110 posts were

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reserved for OBC category. Petitioner herein, being fully eligible,

applied for the post of Community Health Officer under OBC category

and successfully qualified the written examination conducted on

09.10.2022, as is evident from office order dated 17.01.2023

(Annexure P-5), wherein name of the petitioner figures at serial No.64.

After her having qualified the written examination, petitioner herself

appeared for document verification on 21.01.2023, but despite her

being fully eligible for the post reserved for OBC category, she was not

offered appointment on the ground that she failed to submit valid OBC

Certificate at the time of her making application for appointment

against the post of Community Health Officer in terms of

advertisement dated 19.09.2022 (Annexure P-1). In the afore

background, petitioner has approached this Court in the instant

proceedings, praying therein for the following main reliefs:-

“a. A writ in the nature of mandamus may be issued and thereby

directing the respondent to consider the certificate of the petitioner dated

17.01.2023 annexure P-7 and given appointment to the petition as

Community Health Officer in Health and Family Welfare department of

State of H.P. under OBC Category as the petitioner was successful

candidate in the written examination.”

3. Pursuant to notices issued in the instant proceedings,

respondents No.1 & 2 have filed reply under the signatures of Mission

Director, National Health Mission, Himachal Pradesh, Shimla, perusal

whereof clearly reveals that facts, as have been noticed hereinabove,

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have not been disputed, rather stand admitted. An attempt has been

made to refute the claim of the petitioner on the ground that certificate

adduced on record by the petitioner at the time of her making

application was valid upto 29.06.2022 i.e. one year from the date of

issue on 30.06.2021, as such, same could not have been taken into

consideration, while considering the candidature of the petitioner

against the post of Community Health Officer reserved for OBC

category.

4. It has been averred in the reply that at the time of

applying online for the post in response to the advertisement

(Annexure P-1), petitioner was not in actual possession of a valid OBC

Certificate, as such, could not claim any benefit of reservation under

the said category. Though factum, if any, with regard to production of

valid OBC Certificate at the time of documentation has not been

denied by the respondents, but it has been claimed at their behest

that relevant date for ascertaining the validity of OBC Certificate

is/was the cut off date prescribed in advertisement i.e. 22.10.2022 by

which time admittedly the OBC Certificate adduced on record by the

petitioner along with application had lost its efficacy. In support of

afore contentions, reliance has also been placed upon judgments

passed by this Court in CWP No.4020 of 2019, titled as Satnam

Singh Vs. State of Himachal Pradesh & Ors. and in CWP No.2988

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of 2019, titled as Kalpna Kumari Vs. State of Himachal Pradesh &

Ors., wherein it came to be ruled that instructions issued by the

respondents for applying for the post in question vis-a-vis uploading

all relevant certificates inclusive of belonging to reserve categories, as

on the date of applying within cut off date, were mandatory. No lenient

view in cases of violation of mandatory instructions can be taken as it

can be treated as precedent by various other candidates, who might

have also been disqualified for the same reason. The instructions are

mandatory and have to be strictly complied with.”

5. I have heard learned counsel for the parties and gone

through the record carefully.

6. Admittedly, in the case at hand, no valid OBC Certificate

was uploaded by the petitioner at the time of her making application

for the post in question, but the question that requires consideration

at this stage is “whether on afore ground, petitioner herein, who

admittedly had qualified written examination and thereafter was called

for document verification, could have been denied appointment

against the post in question despite her having made available valid

OBC Certificate during verification of documents?” Though judgments

pressed into service by the respondents-State, as have been taken

note hereinabove, suggest that instructions issued by the respondents

for applying for the post in question vis-a-vis uploading all relevant

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certificates including OBC Certificate, as on the date of applying

within cut-off date, were mandatory, but issue otherwise required to

be decided in the instant proceedings is somewhat different. No doubt,

in terms of instructions issued by the respondents for applying for the

post in question, petitioner as well as other similarly situate persons

were under obligation to upload all the relevant documents at the time

of their making application for the post in question. Had petitioner not

uploaded her OBC Certificate at the time of her making application,

probably her candidature would not have been considered under the

category of OBC, rather in that situation, she would have been treated

as a candidate of the General (unreserved) category. Admittedly, in the

instant case, despite there being uploading of invalid OBC Certificate

by the petitioner, she was considered a candidate of OBC category, as

such, she was called for written examination under the OBC category.

It is also not in dispute that after her having cleared written

examination, petitioner was called for document verification under

OBC category (serial No.64), vide office order dated 17.01.2023

(Annexure P-5), meaning thereby, though the petitioner was

considered a candidate belonging to the OBC category, but her

appointment against the post in question was to be offered to her after

her having produced valid OBC Certificate at the time of

documentation, which admittedly was produced by her.

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7. Leaving everything aside, issue, which needs

determination in the case at hand, is no more res integra, rather

stands adjudicated by Hon’ble Apex Court in Ram Kumar Gijroya Vs.

Delhi Subordinate Services Selection Board & Anr, 2016 (4) SCC

754. In afore case, respondent-Board invited applications for selection

to the post of Staff Nurse in the Department of Health and Family

Welfare, Govt. of NCT of Delhi by way of publishing an Advertisement

No. 09/2007 in the Newspaper. The last date for the submission of

application form in the advertisement for the said post was

21.01.2008. The appellant, therein submitted his application form

before the due date and was subsequently issued an admit card to

appear in the examination. After his having cleared written

examination, he was shortlisted for selection. However, his name did

not appear in the final list of the selected candidates. On enquiry, he

was informed that he was not selected to the post for the reason that

he had failed to submit the OBC Certificate issued by the appropriate

authority along with application form before the last date of

submission of application form. Being aggrieved and dissatisfied with

the rejection of his candidature, appellant approached High Court of

Delhi, where learned the learned Single Judge allowed the writ petition

and directed the respondent to reconsider the applications of the

appellant and the other aggrieved candidates in the O.B.C. category.

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Being aggrieved and dissatisfied with the judgment rendered by the

learned Single Judge, respondent/board preferred LPA before the

Division Bench of Delhi High Court, which was allowed. Aggrieved with

the judgment judgment passed by Division Bench of Delhi High Court,

petitioner Ram Kumar Gijroya approached Hon’ble Apex Court in the

case titled hereinabove. Hon’ble Apex Court, while allowing the SLP

preferred at the behest of petitioner named hereinabove, held that the

learned Single Judge of Delhi High Court had rightly held that the

petitioners therein were entitled to submit the O.B.C. certificate before

the provisional selection list was published to claim the benefit of the

reservation of O.B.C. category. Relevant paras of the afore judgment

are extracted herein below:-

“The learned Solicitor General further contends that the Division Bench

of the High Court was justified in not allowing the appellant to submit

the O.B.C. certificate after the cut-off date fixed in the advertisement as

the appellant had failed to submit the required certificate for availing

the benefit of reservation within the stipulated time and thus, he had

waived of his right for being considered under the reserved category.

It is further contended by the learned Solicitor General that no

substantial question of law arises in the present appeal to invoke the

jurisdiction of this Court under Article 136 of the Constitution.

After hearing both the parties at length and perusing the impugned

judgment and order passed by the Division Bench of the High Court, we

are of the view that the Division Bench erred in setting aside the

judgment and order passed by the learned single Judge. We record our

reasons hereunder.

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The Division Bench of the High Court erred in not considering the

decision rendered in the case of Pushpa (supra). In that case, the

learned single Judge of the High Court had rightly held that the

petitioners therein were entitled to submit the O.B.C. certificate before

the provisional selection list was published to claim the benefit of the

reservation of O.B.C. category. The learned single judge correctly

examined the entire situation not in a pedantic manner but in the

backdrop of the object of reservations made to the reserved categories,

and keeping in view the law laid down by a Constitution Bench of this

Court in the case of Indra Sawhney v. Union of India [4] as well

as Valsamma Paul v. Cochin University & Ors.[5] The learned single

Judge in the case of Pushpa (supra) also considered another judgment

of Delhi High Court, in the case of Tej Pal Singh (supra), wherein the

Delhi High Court had already taken the view that the candidature of

those candidates who belonged to the S.C. and S.T. categories could not

be rejected simply on account of the late submission of caste certificate.

The relevant paragraph from the judgment of this Court in the case

of Indra Sawhney (supra) has been extracted in the case

of Pushpa (supra) along with the speech delivered by Dr. Ambedkar in

the constituent assembly and reads thus:-

“9…..

xxx xxx xxx

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:

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“… 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).

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 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.” In the case of Pushpa (supra), relevant

paragraphs from the case of Tej Pal Singh (supra) have also

been extracted, which read thus:-

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“11……xxx xxx xxx

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), therefore, intend 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.” Further, in the case of Pushpa (supra), relevant

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portion from the judgment of Valsamma Paul’s case (supra) has also

been extracted, which reads as under:-

“21. 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.”

In our considered view, the decision rendered in the case

of Pushpa (supra) is in conformity with the position of law laid

down by this Court, which have been referred to supra. The

Division Bench of the High Court erred in reversing the judgment

and order passed by the learned single Judge, without noticing

the binding precedent on the question  laid down by the

Constitution Benches of this Court in the cases of  Indra

Sawhney and Valsamma Paul  (supra) wherein this Court after

interpretation of Articles 14,15,16 and 39A of the Directive

Principles of State Policy held that the object of providing

reservation to the SC/ST and educationally and socially

backward classes of the society is to remove inequality in public

employment, as candidates belonging to these categories are

unable to compete with the candidates belonging to the general

category as a result of facing centuries of oppression and

deprivation of opportunity. The constitutional concept of

reservation envisaged in the Preamble of the Constitution as

well as Articles 14 , 15 , 16  and 39A of the Directive Principles of

State Policy is to achieve the concept of giving equal opportunity

to all sections of the society. The Division Bench, thus, erred in

reversing the judgment and order passed by the learned single

Judge. Hence, the impugned judgment and order passed by the

Division Bench in the Letters Patent Appeal No. 562 of 2011 is

not only erroneous but also suffers from error in law as it has

failed to follow the binding precedent of the judgments of this

Court in the cases of  Indra Sawhney and Valsamma

Paul (supra). Therefore, the impugned judgment and order

passed by the Division Bench of the High Court is liable to be

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set aside and accordingly set aside. The judgment and order

dated 24.11.2010 passed by the learned single Judge in W.P.

(C) No. 382 of 2009 is hereby restored.

The appeals are allowed. No costs.

8. In the aforesaid judgment rendered by Hon’ble Apex Court,

which is based upon its earlier judgments rendered in Indra Sawhney

v. Union of India, 1992 (3) SCC(SUPP) 217; Valsamma Paul v.

Cochin University & Ors. , 1996 (3) SCC 545 and in C.M. No.

17504/2008 in W.P.(C) No.9112/2008 , titled as Pushpa v.

Government of NCT of Delhi and Ors. , while holding that

constitutional concept of reservation envisaged in the Preamble of the

Constitution as well as Articles 14 , 15 , 16  and 39 of the Directive

Principles of State Policy is to achieve the concept of giving equal

opportunity to all sections of the society, categorically held that

purpose of Caste certificate is to enable the authorities to believe in

the assertion of the candidate that he belongs to caste for which

certificate has been issued and act thereon by giving the benefit to

such candidates for his belonging to caste for which particular seat

has been reserved. Since it is not in dispute that at the time of her

making an application, petitioner belonged to the OBC category, which

fact otherwise subsequently came to be substantiated at the time of

documentation, there was no occasion, if any, for the respondents to

reject her candidature on the ground that at the time of her making

13

application, she failed to upload the valid OBC Certificate. Needless to

say, validity of such certificate is for a limited period i.e. one year,

meaning thereby, otherwise also, candidate, who at the time of making

application, had submitted OBC Certificate may have to produce valid

certificate at the time of documentation because by which time, there

is a possibility of expiring the certificate, which actually he/she had

submitted at the time of her/his making online application.

9. In view of aforesaid, this Court is of the view that injustice

has been caused to the petitioner, who admittedly on account of

having cleared written examination, was to be given appointment

against the post of Community Health Officer reserved for OBC

category, but next question, which needs determination is that

“whether on account of appointment, if any, given to the petitioner in

terms of instant order, last selected candidate would be ousted or

not?”

10. This court is of the view that since there was no fault, if

any, of last selected candidate, who pursuant to his/her having

applied for the post in question and on the basis of documents

adduced on record was able to find place in the merit list, he/she

cannot be thrown out of job at this juncture, especially when he/she

has been working against the post in question for two years, however

at the same time, rightful claim of the petitioner also cannot be

14

permitted to be defeated for the fault of the respondents, who while

evaluating the documents were not careful enough, as a result thereof,

an irregularity has occurred.

11. At this juncture, it would be apt to take note of judgment

rendered by the Hon’ble Apex Court in case titled Vikas Pratap Singh

and others Versus State of Chhattisgarh and others, (2013) 14

SCC 494, wherein taking note of the fact that the appellants (therein)

had successfully undergone training and were serving the State for

more than three years, were allowed to continue in service even

though their selection was interfered with. Para 28 of the judgment,

being relevant, is extracted hereinafter:-

“28. In our considered view, the appellants have successfully

undergone training and are efficiently serving the respondent

State for more than three years and undoubtedly their

termination would not only impinge upon the economic security

of the appellants and their dependants but also adversely affect

their careers. This would be highly unjust and grossly unfair to

the appellants who are innocent appointees of an erroneous

evaluation of the answer scripts. However, their continuation in

service should neither give any unfair advantage to the

appellants nor cause undue prejudice to the candidates selected

qua the revised merit list.”

12. Similar situation arose in Anmol Kumar Tiwari and

others Versus State of Jharkhand and others , (2021) 5 SCC 424,

wherein the Hon’ble Apex Court confirmed the decision of the High

15

Court that had directed reinstatement of the writ petitioners after

taking into account the fact that they were though beneficiaries of the

select list that was prepared in an irregular manner, but were not

responsible for the irregularities committed by the authorities in

preparation of the said select list. Relevant para from the judgment

reads as under:-

“11. Two issues arise for our consideration. The first relates to

the correctness of the direction given by the High Court to

reinstate the Writ Petitioners. The High Court directed

reinstatement of the Writ Petitioners after taking into account the

fact that they were beneficiaries of the select list that was

prepared in an irregular manner. However, the High Court found

that the Writ Petitioners were not responsible for the

irregularities committed by the authorities in preparation of the

select list. Moreover, the Writ Petitioners were appointed after

completion of training and worked for some time. The High Court

was of the opinion that the Writ Petitioners ought to be

considered for reinstatement without affecting the rights of other

candidates who were already selected. A similar situation arose

in Vikas Pratap Singh case, where this Court considered that

the Appellants-therein were appointed due to an error committed

by the Respondents in the matter of valuation of answer scripts.

As there was no allegation of fraud or misrepresentation

committed by the Appellants therein, the termination of their

services was set aside as it would adversely affect their

careers. That the Appellants therein had successfully undergone

training and were serving the State for more than 3 years was

another reason that was given by this Court for setting aside the

orders passed by the High Court. As the Writ Petitioners are

similarly situated to the appellants in Vikas Pratap Singh case,

we are in agreement with the High Court that the Writ

Petitioners are entitled to the relief granted. Moreover, though on

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pain of Contempt, the Writ Petitioners have been reinstated and

are working at present.”

13. In the case at hand, though petitioner has not arrayed the

last selected candidate as a party, but on that count, petitioner cannot

be non-suited, especially when this Court is convinced that for no fault

of her injustice has been done to the petitioner. Since the last selected

candidate in the category of OBC was offered appointment by the

respondents and there was no misrepresentation on the part of that

candidate, it would be too harsh if he/she is ordered to be removed

from service. At the same time, petitioner also cannot be denied her

rightful claim being fully eligible to be appointed against the post in

question.

14. Consequently, in view of detailed discussion made herein

above as well as law taken into consideration, this Court finds merit in

the present petition and accordingly, same is allowed. Respondents are

directed to offer appointment to the petitioner against the post of

Community Health Officer considering her to be appointee of 2023,

when other candidates, who had applied for the post in question, in

terms of advertisement dated 19.09.2022 (Annexure P-1), were given

appointment, but while doing so, appointment of last selected

candidate against the OBC shall not be withdrawn. Needless to say, in

the event of non-availability of post, respondents shall be under

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obligation to create supernumerary against which petitioner shall be

given appointment in terms of directions contained in the instant

judgment. However, petitioner shall not be entitled to actual monetary

benefits for the period between deemed date of appointment and

actual joining but such period shall count for the purpose of seniority

and other service benefits. Pending applications, if any, also stand

disposed of.

January 01, 2026 (Sandeep Sharma),

(sunil) Judge