Allahabad High Court
Bindresh Singh vs State Of U.P. And 4 Others on 14 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2659
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 15.10.2020 Delivered on 14.12.2020 Court No. - 9 Case :- WRIT - A No. - 5259 of 2020 Petitioner :- Bindresh Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
1. Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. The petitioner has preferred the present writ petition with the prayer to direct the respondents-authorities to consider the candidature of the petitioner under OBC category and to undertake follow up proceeding for appointment of the petitioner on the post of Constable pursuant to the advertisement dated 16.11.2018..
3. Facts in brief as contained in the writ petition are that an advertisement was issued by the respondents on 16.11.2018 inviting applications for the post of constable in Civil Police and Provincial Armed Constabulary (in short "P.A.C."). The process of selection comprises of written examination followed by the document verification and physical standard test which is subsequently followed by physical efficiency test and medical examination.
4. The petitioner is an O.B.C. candidate and pursuant to the aforesaid advertisement, he applied for the post of constable. An admit card was issued by the respondents permitting the petitioner to appear in the written examination which was held on 28.1.2019. The petitioner duly appeared in the written examination. The petitioner duly passed the same and thereafter, the petitioner was issued admit card for document verification/physical standard test (hereinafter referred to as "DV/PST"). The petitioner duly appeared in the aforesaid examination on 19.12.2019 at Reserved Police Line, Gorakhpur. During the course of document verification, an objection was raised by the respondents-authorities to the effect that the petitioner was not able to produce the OBC certificate within cut off date. Though the petitioner was not able to produce the aforesaid caste certificate but he was permitted to undergo physical efficiency test. Final result of the aforesaid examination was declared on 2.3.2020 and the name of the petitioner was placed at serial No.5659 in the list of selected candidates. In the aforesaid select list, the candidature of the petitioner was considered as general class category candidate. It further reflects from perusal of the result that the petitioner secured 179.5000 marks where as the cut of marks under OBC category is 176.2834. Insofar as the general class category candidates are concerned, the cut of marks was 180.4081.
5. It is argued that as per procedure prescribed under Para 5.4 (under the heading of remark) that OBC certificate was required to be issued between 01.04.2018 and 08.12.2018. The petitioner has OBC certificate dated 29.11.2018. It is argued that at the relevant point of time, the aforesaid caste certificate was misplaced, as such he was not able to produce the same at the time of document verification and physical standard test. It is further argued that though the petitioner was not able to produce the caste certificate dated 29.11.2018 before the aforesaid committee but he was able to produce OBC certificates before the aforesaid committee which were issued on 04.02.2018 and 07.02.2018. The aforesaid caste certificates were duly accepted by the respondents-authorities and the petitioner was permitted to participate in the document verification/physical standard test. It is argued that only objection which was raised by the respondents-authorities is that at the relevant point of time, the caste certificate, which was duly produced by the petitioner before the authorities, was not within the cut of date. In this view of the matter, the candidature of the petitioner was shifted to the general category candidate from OBC category candidate. It is further argued that it is settled principle of law that in case, a person belonging to a particular category and if he failed to submit document at the time of verification, the same would not give authority to the respondents either to cancel his candidature or shift from OBC category to general category. Learned counsel for the petitioner also placed reliance upon a judgement of Hon'ble Supreme Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board reported in (2016) 4 SCC 754. In the aforesaid case, it has been held by Hon'ble Supreme Court that even if there is a delay in furnishing the caste certificate, the same would not be fatal in order to non-suit the candidature of a candidate. It is argued that in view of the aforesaid judgment, respondents are liable to treat the candidature of the petitioner as O.B.C. category candidate and appoint him as constable pursuant to the advertisement in question.
6. A counter affidavit has been filed by the learned Standing Counsel on behalf of the respondents. It is argued by learned Sanding Counsel that Board has advertised the posts of constable in Civil Police and Constable P.A.C 2018 in the year 2018 and online forms were invited from 19.11.2018 and the last date for submission online form was 08.12.2018. It is further argued that the candidate should submit his/her online form between 19.11.2018 and 08.12.2018 pursuant to the advertisement in question. Learned Standing Counsel relied upon paragraphs 5, 6, point 6 and point No.10 of paragraph No.5 of the advertisement dated 16.11.2018 which provides for reservation. The aforesaid paragraphs are quoted below:-
Paragraph 5 of the advertisement dated 16.11.2018:-
"mRrj izns'k yksd lsok (vuqlwfpr tkfr;ksa vuqlwfpr tutkfr;ksa vkSj vU; fiNMs oxksZa ds fy, vkj{k.k )vf/kfu;e & 1994 (le; le; ij ;Fkk la'kksf/kr) dh vuqlwph&nks ds vuqlkj dzhehys;j ds vUrZxr vkus okys mRrj izns'k ds vU; fiNMs oxZ ds vH;fFkZ;ksa dks vkj{k.k dk ykHk vuqeU; ugha gSA vU; fiNMs oxZ ds fy, tkfr izek.k&i= (izk:i&1) 01 vizSy, 2018 ;k mlds ckn dk fdUrq bl HkrhZ izfd;k gsrq fu/kkZfjr vkosnu djus dh vfUre frfFk rd fuxZr gksuk pkfg,A"
Paragraph 6 of the advertisement dated 16.11.2018:-
"vU; fiNMs oxZ ds fy, tkfr izek.k i= jkT; ljdkj }kjk fu/kkZfjr izk:i&1 ij (01 vizSy, 2018 ;k mlds ckn dk fdUrq bl HkrhZ izfd;k gsrq fu/kkZfjr vkosnu djus dh vfUre frfFk) fuxZr gksuk pkfg,A"
Point No.6 of Paragraph 5 of the advertisement dated 16.11.2018:-
"vkj{k.k@vk;q esa NwV dk ykHk pkgus okys mRrj izns'k ds vkjf{kr Js.kh ds vH;FkhZ vkosnu esa viuh Js.kh vo'; vafdr djsa rFkk fu/kkZfjr izk:i ij l{ke vf/kdkjh }kjk tkjh izek.k i= vkosnu djus ls iwoZ izkIr dj ysa ,oa tc muls vis{kk dh tk;s tc os mls izLrqr djsaA jkT; ljdkj }kjk fu/kkZfjr izk:i ds vfrfjDr fdlh vU; izk:i esa izLrqr izek.k i= ekU; ugha gksxkA""
Point No.10 of Paragraph 5 of the advertisement dated 16.11.2018:-
"vkj{k.k dh nkosnkjh ds leFkZu esa lEcfU/kr ewy izek.k i= fu/kkZfjr izk:i es izLrqr u fd;s tkus ij ;g vo/kkj.kk dh tk;sxh fd vH;FkhZ vkj{k.k dk nkosnkj ugha gS ,oa rnkuqlkj ;g nkosnkjh fujLr dj, ;fn vH;FkhZ lkekU; Js.kh dh leLr ik=rkvksa dks iw.kZ djrk gks rks, mls lkekU; Js.kh ds vUrxZr ekurs gq, HkrhZ izfdz;k esa lfEefyr dj fy;k tk;sxkA bl lEcU/k esa fdlh la'kks/ku@ifjorZr gsrq iqu% dksbZ volj iznku ugha fd;k tk;sxkA"
7. It is argued that the petitioner has not followed the provisions prescribed in the advertisement issued by the Board for submitting O.B.C. certificate issued between 01.04.2018 and 08.12.2018 and as such the candidature of the petitioner was shifted from O.B.C. category to general category. It is stated in sub paragraph 6 of paragraph No.7 of the counter affidavit that cut of marks of the petitioner is 179.50000 which is less than cut off marks 180.4081 of general category candidates (Male) and as such the petitioner is not entitled for his selection. Learned Standing Counsel further relied upon judgment rendered by this Court in Special Appeal No.762 of 2016 (Arvind Kumar Yadav Vs. U.P. Recruitment and Promotion Board and others). He further relied upon a full bench judgment of this Court passed in Special Appeal No.156 of 2017 (Gaurav Sharma Vs. State of U.P. and others) decided on 04.05.2017. It is argued that insofar as the law laid down by Hon'ble Supreme Court in the case of Ram Kumar Gijroya (supra) is concerned, the ratio of the same is not applicable in the facts and circumstances of the case.
8. In response to the arguments raised by the learned Standing Counsel, it is argued by Sri Siddharth Khare, learned counsel for the petitioner that the facts of the case before the full bench is different from this case and the law laid down by the Supreme Court in the case of Ram Kumar Gijroya (supra) is fully applicable in the present facts and circumstance of the case.
9. Heard learned counsel for the parties and perused the record.
10. The Apex Court in the case of Ram Kumar Gijroya (supra), reliance of which has placed by the learned counsel for the petitioner, deals with the provisions that whether a candidate, who appears in the examination under the O.B.C. category and submits his certificate after the last date mentioned in the examination, is eligible for selection to the post under the O.B.C. category or not. Learned counsel placed reliance upon following paragraphs of the aforesaid judgment:-
"3. The important question of law to be decided in these appeals is whether a candidate who appears in an examination under the O.B.C. category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the O.B.C. category or not.
4 . As the question of law arising in all these appeals is similar, for the sake of convenience and brevity, we refer to the facts of Civil Appeal arising out of SLP(C) No. 27550 of 2012, which has been filed against the impugned judgment and order dated 24.01.2012, The necessary relevant facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder:
"The Respondent-Delhi Subordinate Services Selection Board (hereinafter referred to as "the DSSSB") 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 of submission of the application form in the advertisement for the said post was 21.01.2008. The Appellant submitted his application form before the due date and was subsequently issued the admit card to appear in the examination. Having appeared in the examination, he was shortlisted for selection. However, his name did not appear in the final list of selected candidates. On enquiry, he was informed by the concerned official 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."
6. The learned single Judge disposed of the writ petition vide judgment and order dated 24.11.2010, placing reliance on the judgment in the case of Pushpa (supra), wherein the controversy centred around the same advertisement/Notification issued by the same Respondent. The learned single Judge observed that the only ground for declining the applications filed by the Appellants was that the O.B.C. certificates had been issued and submitted after the cut off date and therefore they were not eligible for appointment to the post. The learned single Judge further held that the Respondent did not cite any other authority to distinguish the decision in Pushpa's case (supra) from the facts of the present case. Consequently, the learned single Judge disposed of the writ petition and directed the Respondent to reconsider the application of the Appellant and the other aggrieved candidates against the O.B.C. category within a period of one month.
14. 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 1992 (Supp) 3 SCC 217 as well as Valsamma Paul v. Cochin University and Ors. (1996) 3 SCC 545. 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:
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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:
"...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."
15. 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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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 Articles 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."
11. So far as the judgment delivered by the Full Bench of this Court in Gaurav Sharma (supra) is concerned, the same, apparently, has no applicability; in as much as, the Full Bench of this Court was dealing with the candidature of an OBC candidate, for which declaration had to be in the format as requisite information had to be furnished so as to determine as to whether the person is belonging to non-creamy layer in the OBC category of State or not? In view of the same, the court is of the opinion that ratio of the full bench judgement will not apply in the facts and circumstance of the present case.
12. The Supreme Court in the case of Seema Kumari Sharma vs. State of H.P. (1998) 9 SCC 128 has considered the issue regarding failure of a candidate to furnish a certificate regarding reservation claimed by her along with the application form. The Hon'ble Supreme Court has observed that the failure of a candidate to submit certificate regarding weightage or reservation at the time of submission of application form does not dis-entitle her to claim consideration on the basis thereof. The Supreme Court observed that the respondents did not dispute the certificate, but only disputed the time of its production before them to claim consideration. The appellant had already appeared for the examinations conducted, but her result had not been announced. She filed a representation claiming award of 10 marks allotted for the candidates belonging to IRDP Families (Families belonging to backward Panchayat). The Supreme Court allowed the appellant's claim and directed declaration of her result and for inclusion of her name in the training meant for Junior Basic Teachers' Training Course and also directed her appointment to be considered in accordance with the Rules, if she completed her training successfully. The Supreme Court in fact, directed that the certificate produced by the candidate, which would otherwise entitle her to claim weightage, even on a later date, can be considered for providing appointment.
13. In the facts and circumstances of the case merely for the reason that O.B.C. certificate was not submitted by the petitioner within the time, the authorities would not be justified in denying petitioner's consideration for appointment in O.B.C. category. If a person belonging to a reserve category, a certificate issued by the competent authority to this effect is only affirmation of the fact which is already in existence. The purpose of such certificate is enable the authorities to believe in the assertion of the candidate that he belongs to a reserved category.
14. In view of the same, the court is of the opinion that the petitioner is entitled for the relief as claimed for by him in the present writ petition.
15. In view of the aforesaid, this writ petition is disposed of with the direction upon the authorities concerned to treat the petitioner as O.B.C. category candidate and pass further orders in respect of his candidature.
16. It goes without saying that correctness of the certificate would, otherwise, be open to be examined before issuing a formal order of appointment to the petitioner.
17. The aforesaid exercise be completed within a period of three months from the date of production of self attested computer generated copy of this order downloaded from the official website of High Court Allahabad.
18. With the aforesaid observations, the writ petition is allowed.
Order date:14.12.2020 saqlain