Allahabad High Court
Hari Om vs Uttar Pradesh Metro Rail Corporation ... on 29 July, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:120972 A.F.R. Court No. - 4 Case :- WRIT - A No. - 2486 of 2024 Petitioner :- Hari Om Respondent :- Uttar Pradesh Metro Rail Corporation Ltd. And Another Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- Adarsh Bhushan Hon'ble Ajit Kumar,J.
1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Adarsh Bhushan, learned counsel appearing for the contesting respondents.
2. Petitioner before this Court is aggrieved by the decision taken by the U.P. Metro Rail Corporation Ltd. rejecting his candidature for the post of Maintainer/ Electrical in U. P. Metro Rail Corporation Ltd. on the ground that he could not produce the certificate of Economically Weaker Section (EWS) prior to the closing date (02.04.2024) of submission of application form under the advertisement dated 28th February, 2021.
3. It is submitted by Sri Siddharth Khare, learned counsel for the petitioner that EWS certificates are issued under the U.P. Public Services (Reservation for Economically Weaker Sections) Act, 2020 (hereinafter referred to as 'Act, 2020'). Economically weaker section of citizens have been defined under the Act, 2020 and it also provides for reservation in public employment to the extent of 10% of the vacancies advertised for direct recruitment. Vide clause 2(e) it defines year of the recruitment to be a period of 12 months commencing on 1st July of the calender year in which process of direct recruitment against the vacancies has been initiated.
4. Assailing the order impugned herein this petition Sri Khare argues that the recruitment year in respect of the vacancies advertised in February, 2021, would be 1st July, 2021 falling in the calender year running from January, 2021 to December, 2021. He argues that EWS certificate is issued for the previous financial year and financial year in respect of the advertisement would certainly be a previous year as in this case, since advertisement was made on 28th February, 2021, so the financial year to be reckoned with would be beginning from 1st April, 2020 to 31st March, 2021 and so in no circumstances a certificate would be issued prior to 2nd April, 2021 which was the closing date. It is argued that it is neither feasible, nor practically possible also to get a certificate within two days of closing of the financial year as after all the annual income is assessed for the previous year taking aid to the relevant rules framed for the said purpose. Thus, according to him the certificate obtained and furnished up to 1st July, 2021or before should have been taken into consideration and petitioner's EWS certificate having been issued on 29th June, 2021 deserved to be accepted.
5. Sri Khare has heavily relied upon the definition of 'year of recruitment' given under Section 2(e) of the Act, 2020.
6. It is next argued that Act shall have precedence and shall have overriding effect upon the rules framed in so far as the State of Uttar Pradesh is concerned. Learned counsel for the petitioner has also relied upon the judgment of a coordinate Bench in the case of Karzaan Singh and others v. State of U.P. and others, 2013 ADJ Online 530.
7. Meeting the arguments, it is submitted by Sri Adarsh Bhushan, learned counsel for the contesting respondent corporation that U.P. Metro Rail Corporation Ltd. has not framed any rule or regulation regarding selection and recruitment of its employees and instead, has adopted the office memorandum/ circular letters and/ or guidelines issued by the Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Government of India. He submits that office memorandum dated 31st January, 2019 has been made applicable for the purposes of selection and recruitment and giving reservation to economically weaker sections of the society not having benefit under the reservation meant for scheduled caste, scheduled tribes and people belonging to other backward castes in direct recruitment made against the post in the corporation. He has heavily relied upon clause 4.1 of the said office memorandum which provided for a financial year in which advertisement is made. He argues that the financial year in matter of an advertisement made in a calender year prior to the month of March, would be previous to financial year in progress on date of the advertisement. He submits that if a candidate has obtained EWS certificate for the financial year 2019-2020 that would have obviously been prior to the crucial date 2nd April, 2021, the closing date for one to have obtained the certificate. In this regard he has also relied upon the clause 5.3 of the said office memorandum.
8. Sri Bhushan has also submitted that Act, 2020 having acknowledged Office Memorandum 2019 as the relevant one has made it applicable and since the U.P. Metro Rail Project is a joint venture of Central and State Governments, in the absence of any recruitment rules, Office Memorandum and circulars and even executive instructions issued by the Central Government would be applicable.
9. It is next argued by Sri Adarsh Bhushan that petitioner having submitted to the advertisement published by the U.P. Metro Rail Corporation Ltd. on 28th February, 2021 and having not challenged the advertisement as far as cut of date providing for EWS certificate is concerned, after his candidature has been rejected, now he cannot be permitted to question the advertisement. He has relied upon the authority of Supreme Court in this regard in the case of Ashok Kumar and another v. State of Bihar and others, (2017) 4 SCC 357.
10. Having heard learned counsel for the respective parties and having perused the records, the question for consideration before the Court is as to whether petitioner once applied against the advertisement published by U.P. Metro Rail Corporation Ltd. which prescribed a last date as a crucial date to have EWS certificate, can be permitted to raise the issue of cut off date/ closing date and even question the cut off date given in the advertisement, subsequently after the selection has been made and he has been non-suited.
11. It is true that petitioner has been selected and has been placed in the select list but it is equally true that he was required to possess the requisite certificate on the crucial date prescribed under the advertisement. He while applying for the post under the advertisement was fully aware of the last date/ closing date and was admittedly aware of the fact that he was not having the EWS certificate of the date or prior date to be furnished before the authority on the date of document verificdation. The condition as prescribed under the advertisement vide its clause 7 of General Instruction clause which is relevant, is reproduced hereunder:
"7. EWS certificate should be issued on or before closing date of vacancy notice. EWS certificate issued after the closing date of application shall not be accepted."
12. The advertisement in a quite unequivocal terms prescribes for a candidate to have certificate either of the closing date of the vacancy notified or of the prior date and no certificate issued after the closing date will be accepted. Petitioner having noticed this clause which was one of the important clauses of the advertisement, did apply against the post and obviously since he did not have requisite certificate of that date or prior to that, he failed to furnish the same.
13. The settled legal position is that one must possess the requisite eligibility are or prior to the date of advertisement, and Sri Khare has not disputed the same. However, question remains to addressed and answered as to the crucial date viz a viz definition of financial given under the Act, 2020.
14. U.P. Public Services (Reservation for Economically Weaker Sections) Act, 2020 has been enacted for the purposes of providing reservation to economically weaker sections of the citizens in public employment and the weaker sections vide clause 2 (b) of the Act, 2020 to be the same as given in the office memorandum issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, Government of India dated 31st January, 2019. The said office memorandum defines weaker sections belonging to the family who have criterion of annual income below Rs.8,00,000/- and the criteria for income and assets of family have been prescribed vide clause 4 which is reproduced hereunder:
"4. Criteria of Income & Assets:
4.1 Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs.8.00 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit or reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application.
Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:-
i. 5 acres of agricultural land and above;
ii. Residential flat of 1000 sq. ft. and above;
iii. Residential plot of 100 sq. yards and above in notified municipalities;
iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities.
4.2. The property held by a "Family" in different locations or different places/ cities would be clubbed while applying the land or property holding test to determine EWS status.
4.3 The term "Family" for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/ her spouse and children below the age of 18 years."
15. Vide clause 5 of the said office memorandum it has been provided that District Magistrate/ Additional District Magistrate/ Collector/ Deputy Commissioner/ Additional Deputy Commissioner/ 1st Class Stipendary Magistrate/ Sub-Divisional Magistrate/ Taluka Magistrate/ Executive Magistrate/ Extra Assistant Commissioner and certain other persons defined therein will be the issuing authority to such certificate. Vide clause 5.3 it is provided that crucial date for submitting income and asset certificate of a candidate would be closing date for the receipt of the application. Clause 5.3 is reproduced hereunder:
"5.3 The crucial date for submitting income and asset certificate by the candidate may be treated as the closing date for receipt of application for the post, except in cases where crucial date is fixed otherwise."
16. A conjoint reading of clauses 5.1 and 5.3 would make it very clear that a candidate must have certificate of a financial year prior to the year of application.
17. Obviously the application would mean the application made to obtain certificate for recruitment under the advertisement. The financial year under Income Tax Act or otherwise in common parlance for the purpose of assessment of income or assessment of annual economic growth begins from 1st April of the calender year ending of 31st March of the following calender year. Since application is always submitted for seeking a income certificate for applying against posts, so if the advertisement is made in a month prior to 31st March of a calender year, then upon such application being filed, the competent authority would be issuing income certificate only of a previous financial year. Whether it is an application under the advertisement or an application to apply for EWS certificate, a certificate obviously has to be of previous financial year.
18. In the present case when the advertisement was issued in February, 2021 giving closing date as 2nd April, 2021, naturally one would have applied for income certificate in the month of February itself if not already having the one and the certificate would be of a previous financial year i.e. beginning from 1st April, 2019 ending on 31st March, 2020. Thus, there can be no scope of any excuse that one could not obtain the EWS certificate prior to 2nd April, 2021.
19. Mr. Khare has heavily relied upon the provisions as contained in the definition clause 2 (e) of the Act, 2020 in which the year of recruitment has been defined. Clause 2(e) is reproduced hereunder:
"2(e). 'year of recruitment' in relation to a vacancy means a period of twelve months commencing on the first of July of a calender year within which the process of direct recruitment against such vacancy is initiated."
20. From the reading of the aforesaid provisions it clearly transpires that the year of recruitment in relation to the vacancy means a period of 12 months commencing 1st July of the calender year within which the process of direct recruitment has been initiated. According to Mr. Khare since 12 month period begins from 1st July of a calender year and advertisement had been issued on 28th February of the calender year 2021, then year of recruitment would run from 1st July, 2021 to 30th June, 2022. The argument as placed would mean a certificate of any date issued in the recruitment year would be valid.
21. The argument to interpret this above provision to suggest that income certificate beginning from 1st July to 30th June for the purposes of recruitment would be admissible, has been raised to be rejected only. The Act, 2020 does not provide for the procedure and the manner and method in which the income certificate has to be prepared and to be issued. It only defines a recruitment year but the Act does not provide for a candidate to possess income certificate of the recruitment year only. On the contrary the office memorandum referred to under Section 2(b) of the Act, 2020 provides for an income certificate of the financial year prior to the year of application. The Act does not provide for any criterion for application to be submitted. The Act has been brought into force on 31st August, 2020 with its notification in official Gazette and makes reservation for EWS applicable to the vacancies already advertised provided the selection process has yet not begun vide its section 13. Section 13 is reproduced hereunder:
"13. The provisions of this Act shall not apply to cases in which selection process has been initiated before commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and Government order as they stood before such commencement.
Explanation: For the purposes of this section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of -
(i) written test or interview only, the written test or the interview, as the case may be, has started, or
(ii) both written test and interview, the written test has started."
22. Now reading the definition clause quoted above regarding year of recruitment with the provisions as contained under Section 13 of Act, in my considered view, all such advertisements made in the calender year of the enforcement of the Act, EWS reservation would apply, provided of course, selection process has not been initiated as prescribed under Section 13 (i) & (ii).
23. Here it is pertinent to refer to Section 3(6) of the Act, 2020. It runs as under:
"3.(6) "Where in any particular recruitment year any vacancy earmarked under sub-section (1) for Economically Weaker Sections cannot be filled up due to non availability of a suitable candidate belonging to Economically Weaker Sections such vacancies shall not be carried forward to the next recruitment year as backlog and the said vacancy shall be filled by the eligible candidates of unreserved category."
24. From reading of the aforesaid provisions, it transpires that year of recruitment so defined under Section 2(b) is relevant for the purposes of unfilled vacancy meant for EWS category not to be further carried forward. Thus any advertisement made in a calender year would count for a vacancy during recruitment process from 1st July to 30th June of the following year. Thus if a selection and recruitment process is continued from January of a calender year, whenever the advertisement made during a calender year, and period being 12th months for an year of recruitment to count the vacancies, it would count for reservation in EWS category as well, till the recruitment year lasts in context to time taken in selection process.
25. Coming to the judgment relied upon by the learned counsel for the petitioner, I find that in that case those who were selected and appointed pursuant to the advertisement were served with a notice on 1st July, 2007 (those petitioners who were below the age of 18 years) because the advertisement required for a candidate to have attained the age of 18 years as on date 1st July, 2007. The issue in that case had arisen because U.P. Recruitment in Services (Age Limit) Rules, 1972 (hereinabove referred to as 'Rules, 1972') prescribed that a candidate must have attained the minimum age as prescribed on first date of July of the calender year in which year the vacancy for direct recruitment was advertised. Since the vacancies were advertised in the said case on 16th June, 2008, therefore, the argument advanced was that 1st July, 2008 should be taken to be the cut off date for the purposes of eligibility criterion that one was required to attain. The Court held that the calender year means 1st January to 31st December inclusive and since the advertisement was made on 16th June, 2008 and then again on 28th July, 2008 falling in the calender year of 2008, the cut off date should have been 1st July, 2008. The Court appreciated the arguments and upheld the same laying down the ratio that it is the statutory rule that would prevail and not the advertisement.
26. Appreciating the arguments the Court in that case relied upon the statutory rule 4 of the Rules, 1972 to hold that it was the cut off date provided under the Rules that would prevail not the advertisement. The Court discussed the overriding effect of the rules in that case to conclude vide paragraph 11 thus:
"11. In view of the law noticed above, the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority."
27. In the present case what I have noticed is that there is no such provision contained under the Act, 2020 that may be said to be having overriding effect upon existing recruitment rules. Instead, what I find is that Government of India has come to issue a Office Memorandum prescribing therein that crucial date for submitting EWS certificate by the candidate may be treated as a closing date from the receipt of the application for the post except where the crucial date is fixed otherwise.
28. Thus, whatever the closing date is fixed under the advertisement shall have to be reckoned with as a crucial date for the purposes of one having EWS certificate. If one does not possess the eligibility certificate as on 2nd April, 2021 (23:59 hrs.) he will not be eligible to apply for the post in question.
29. In view of the judgment of Supreme Court in the case of Ashok Kumar (supra) one must have possessed the requisite qualification on the last date prescribed under the advertisement to submit an application form. The Supreme Court vide paragraphs 12 & 13 has observed thus:
"12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that : (SCC p. 107, para 18)"
18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724)."
30. It is worth taking reference of Article 73 dealing with the executive powers of Union as contained under Chapter- 1 of Part V of the Constitution of India. Article 73 of the Constitution is reproduced hereunder:
"73. Extent of executive power of the Union.--(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend--
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution."
31. Upon reading of the aforesaid provisions it clearly transpires that framers of the Constitution contemplated a situation where statutory rules or act may be silent in respect of the certain subject matter which also requires to be regulated and, therefore, the Union is vested with the executive power to provide for executive instructions/ circulars/ office memorandum. Likewise Article 162 of the Constitution as contained under Chapter- 2 of Part VI of the Constitution deals with the States prescribes power of the State Executive to issue executive instructions/ circulars and office memoranda in respect of such matters that are not covered by the Act of the State Legislature or statutory rules framed.
32. In the case of Union of India v. Somasundaram Viswanath, (1989) 1 SCC 175, the Court came to consider the executive instructions and held that where the rules issues under the proviso of Article 309 are only skeleton in nature then supplement instructions issued under Article 73 would be treated as a valid and binding filling up the gaps.
33. Yet another judgment of Supreme Court in the case of SK Nausad Rahaman and others v. Union of India and others (2022) 12 SCC 1 : 2022 LiveLaw (SC) 266, the Court dealt with this aspect of the matter in detail and very categorically held that if the rules are silent to any specific area to be covered then office memoranda issued by the department concerned will fill up the gaps.
34. Analysing the rival submissions on the scopes of the circulars issued by the department covering the areas not covered under the rules and citing various authorities the Court held that since areas in which executive instructions were not issued stood covered with the recruitment rule 2016 framed under the proviso of Article 309, such executive instructions would not prevail.
35. Applying to the above principle to the case in hand since there are no recruitment rules of the U.P. Metro Rail Corporation Ltd and office memorandum as has been referred to under the Act, 2020 are stated to be followed and also the other circular letters issued by the Central Government, the office memorandum stands saved by virtue of Article 73 read with Article 162 of the Constitution and would continue to be applicable for the purposes of EWS reservation and issuance of certificate and its applicability in the matter of selection and recruitment.
36. In the case of Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, the Supreme Court has held very clearly that in exercise of power under Article 162 of the Constitution, executive can issue administrative instructions to fill up the gaps.
37. Mr. Khare has not been able to place any service rule/ circular/ administrative instructions arbitrary to office memorandum providing for a crucial date as given under the advertisement. The Act that has been cited will not have overriding effect insofar as the service rules are concerned. The year of the recruitment given under the Act framed for the purposes of EWS reservation is relevant for the purposes applying reservation in respect of the vacancies advertised prospectively but the recruiting authority has been left with discretion to provide for a closing date as crucial date to entertain the eligibility certificate.
38. In view of the above, I do not find any force in the petition.
39. Petition fails and is, accordingly, dismissed with no order as to costs.
Order Date :- 29.7.2024 Atmesh