Uttarakhand High Court
Sangeeta Tamta vs State Of Uttarakhand And Others on 7 October, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 322 of 2017 (S/B)
Sangeeta Tamta D/o Sri B.R. Tamta ......Petitioner
Versus
State of Uttarakhand and others ...... Respondents
Present:
Mr. C.D. Bhahuguna, Advocate assisted by Mr. J.S. Bisht and Mr. Anup Kumar
Verma, Advocates for the petitioner.
Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand.
Mr. B.D. Kandpal, Advocate for respondent No. 2.
Mr. Shobhit Saharia, Advocate for respondent No. 4.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 7th October, 2017 Per Hon'ble Sharad Kumar Sharma, J.
Uttarakhand Public Service Commission had issued an advertisement dated 20th October, 2015, being Advertisement No. A-4/E-2/2015-16, wherein, they have invited applications from eligible candidates for participation in the selection process for the posts of Civil Judge (Junior Division), the said examination was called as "Uttarakhand Judicial Service Civil Judge (Junior Division) Examination- 2015. As per the advertisement, the last date for applying on online was 3rd November, 2015, which closes on in the midnight at 11:59 p.m. and the time period for depositing the amount in the Bank was till 7th November, 2015.
2In the selection process, condition-8 which dealt with reservation, provided for the provisions for vertical and horizontal reservation, in terms of the Government Orders issued from time to time and as made applicable in the State of Uttarakhand. As per the said clause, the benefit of reservation would be available only to the candidates who fill in the relevant column provided in the format, its categories and sub-categories and under which category of reservation, he or she is applying for either vertical or horizontal, failing which, no benefit of reservation would be available.
Learned counsel for the petitioner tried to harp upon Clause (3) of the advertisement, wherein, it has been mentioned that the candidate applying had to have all educational qualifications as well as other qualifications at the time when he or she is applying for the said post. Clause (3) is quoted hereunder :-
"(3) vH;FkhZ ;g lqfuf"pr dj ysa fd vkWuykbu vkosnu i= izLrqr djus dh vfUre frfFk vFkkZr~ fnukad 03-11-2015 rd vfuok;Z "kSf{kd vgZrk,a ,oa vU; vgZrk,a vo"; /kkfjr djrs gkasA "
On reading part of the clause 'vgZrk,a vo"; /kkfjr djrs gkas' would means must possess all eligibility at the time of presentation of application.
In a nutshell, the learned counsel for the petitioner wants to submit that from the word used in Clause (3), that the candidate should essentially have the conditions on the date of applying. What he wants to convey to the Court through his argument, is that for invoking the benefit of reservation as extended by Clause (8) to the reserved category candidate, he or she should "have" the essentials on 3rd November, 2015, i.e. last date of applying. It is not in 3 dispute and rather admitted by the counsel for the petitioner that when the respondent No. 4 had applied, she was holding a Scheduled Castes Certificate dated 14th December, 2006.
His case is that the propriety of the castes certificate or benefits accruing from it, could not be given to respondent No. 4 until and unless, she on 3rd November, 2015, i.e. last date of applying, had a domicile certificate. Meaning thereby, he wants to submit that for getting a benefit of reservation in a State selection, the reservation could only be granted to the person who are domiciled in the State and since the respondent No. 4 has not filed her domicile certificate alongwith her application, she was a candidate who was not suited for applying in the process of selection, as having not filed the domicile certificate with her application.
In other words, what Mr. C.D. Bahuguna, learned Senior Counsel for the petitioner, was trying to canvass is that once the candidate was applying and is seeking the benefit of reservation alongwith caste certificate, he / she was required to submit the domicile certificate also, and hence, he wanted to submit that by implication. If domicile certificate is not submitted alongwith the application form, the candidate renders himself or herself to be non-suited to be considered for selection.
On consistently being posed with the question by the Court, that which clause of the advertisement provides and makes it compulsory that the candidate applying as a reserved category candidate, is mandatorily required to submit a caste certificate for availing benefit of reservation, is also simultaneously is required to submit a domicile 4 certificate, no plausible answer was extended by the counsel, nor answered by taking the Court to any such clause which lays a condition for submitting a domicile certificate also in relation to those candidates who were applying as a reserved category candidate, was pointed out by the petitioner.
This Court feels that once the advertisement, itself, does not contemplate filing of a domicile certificate alongwith application for extending the candidature as reserved category candidate, the same cannot restrict a candidate from applying or rendering him non-suited because of non furnishing of domicile certificate at the time of applying. This is so because when a candidate applies as reserved category candidate in a selection process, it will be presumed that he or she has a domicile and benefit of reservation under common prudence would be extended to the domiciled candidate only. Since the domicile certificate was not required to be submitted with the application form, it would always be verified in the selection, the candidature of the candidate would not be faulted of for the reason which was not even contemplated in the advertisement. In any selection process, though, the wider rules lay down qualification criterion but as far as the selection is concerned, the selection is confined in terms of the advertisement under which almost invariably all the candidates apply, and thus, the adherence of any condition cannot be perceived of or can be made compulsory until it is made as a condition precedent for applying under the advertisement.
As, there was no such condition for submission of the domicile certificate alongwith application, the candidature of respondent No. 4, cannot be rendered to be non-suited merely on this score itself.
5Even otherwise also with the stand which has been taken by respondent No. 4 in her counter affidavit, by way of defence, is that she has specifically come out with the case that she is a resident of this State and the caste certificate which has been issued in her favour on 14th December, 2006, and the permanent resident certificate on 17th February, 2017, goes to show that she is a domicile of the State and caste certificate entitles her to avail the benefit of reservation for selection. This fact of she being a candidate belonging to reserve category and domicile of Uttarakhand could be borne out from documents on record.
On perusal of the permanent resident certificate, it shows that it has been issued by the competent authority, after due inquiry having been conducted in the light of the Government Orders issued from time to time and on the basis of the report submitted by the Tehsildar Sadar, the same was issued in her favour. She further in her pleading, in counter affidavit has further submitted that she did her graduation from Hemwati Nandan Bahuguna Garhwal University; she did her law from the same University and she got herself registered with the Uttarakhand Bar Council in October, 2005.
In support of her contention that she has appeared in the same capacity as a reserved category and as domiciled candidate of the State of Uttarakhand, seeking the benefit of horizontal reservation of Uttarakhand Woman in the selection process of 2008, but, on account of being lower in merit, she would not be appointed. She was selected in the result declared on 20th October, 2008, but, in the same selection process, another candidate who was above in the merit than the respondent was adjusted in pursuance to the 6 proceedings of the Court which concluded upto the Apex Court and, it was due to these legal proceedings, the respondent submits that she was not able to get appointed in the selection of 2008. No fault in candidature of respondent No.4 in selection of 2008 has been pointed out by the petitioner, and the same situation of candidature of respondent No. 4 prevails even today.
To show her propriety that she is the resident of the State of Uttarakhand, she submitted that she was born in Dehradun on 30th June, 1977, and her birth was registered vide registration No. B20170703388. She further submitted in the counter affidavit that apart from the birth in the State of Uttarakhand, when it was undivided State, she got her education from the State of Uttarakhand, itself, and that is why, the domicile certificate issued to her on 17.02.2017, was just and valid.
On conclusion of the selection process by the Public Service Commission, a final result was declared on 13th February, 2015, in which, 15 candidates were declared successful for the post of Civil Judge (Junior Division) in the entrance examination of 2015, and as per the petitioner, the respondent No. 4 who has got 441 marks after the final tally of marks, though, she admits to have secured higher marks than the petitioner, who only secured 403 marks, since being the last selected candidate, petitioner felt that its only, if respondent No. 4 is ousted from the said category of appointment as a Uttarakhand scheduled castes woman, the petitioner would be falling within the league of selection.
The learned counsel for the petitioner during the course of argument has placed reliance on the Government Order dated 16th December, 2003, which has provided that 7 for getting the benefit of reservation on migration to the other State, the status of castes of a person would not finished but he or she would be only getting the reservation in her parent State, this is not the situation prevailing in the case at hand, as concept of migration is not involved, nor it is case of petitioner that the respondent No. 4 has availed benefit of reservation in other States, or respondent No.4 had migrated to Uttarakhand.
This Government Order is based upon a Government Order issued by Ministry of Home, Government of India, No. BC-16014/1/82-SC&BCD-1 dated 6th August, 1984. The documents which has been brought on record by the respondent No. 4 in the counter affidavit shows since she has been born in the undivided State of U.P. in 1977, she has studied in Uttarakhand, completed her graduation and registered with Bar Council of Uttarakhand, her parent State would be Uttarakhand after its bifurcation and she would be domicile of this State and, hence, entitled for benefit of the reservation in the category to which she belongs.
The petitioner has placed reliance on the high school marksheet, said to have been issued to the respondent No. 4 for the High School Board Examination 1996, in her favour from Janta Inter College, Kundeshwar, Etawah and another certificate of having completed Intermediate in 1998 from HIC, Nagina, District Bijnor. The petitioner has also placed on record the subsequent qualification of the petitioner having done her B.Sc. from a college named as M.K.P. (P.G.) College, Dehradun affiliated to Hemwati Nandan Bahuguna Garhwal University.
Merely because the respondent No. 4, has done her high school and intermediate from other places which were 8 at the relevant time under undivided State of U.P. which was part of undivided State prior to its creation, it will not dis- entitle her status of being the domicile of State of Uttarakhand. We feel that since education is a constitutional right falling within the ambit of Article 21 of the Constitution of India, its ambit cannot be circumscribed within the territorial boundaries of State, if a student / candidate who is a domicile of one State goes out of the State for education which he or she is constitutionally entitled cannot be deprived of another constitutional right of reservation which he or she is entitled for reservation, within the ambit of his or her parent State of domicile. More particularly, in the counter affidavit, it is the case of the respondent No. 4 that the father of respondent was the Principal Controller of Defence Accounts, Air Force, Dehradun, where he worked from 21st September, 1966 to 22nd February, 1984, as apparent from the certificate issued by the Department in favour of the father of respondent No. 4. It is during this period, she was born in 1977 at Dehradun. Merely because the respondent No. 4 had completed her high school and intermediate from other districts which are now outside the territory of State of Uttarakhand, it would be too hypothetical and irrational to oust her from her eligibility of issuance of domicile certificate and consequently reservation benefit to her.
In that view of the fact and the circumstances already dealt with in the above paragraphs and the backdrop under which the candidature of the respondent No. 4 has been reckoned to be justified candidature for the selection of Civil Judge (Junior Division) in the selection of 2015, as a reserved category candidate, claiming a horizontal reservation in the 9 woman category, coupled with the fact that the learned counsel for the petitioner had only questioned the validity on the ground that respondent No. 4 has not filed her domicile certificate at the time of applying, which was not a condition provided in the advertisement, this Court feels that the relief claimed in the writ petition is absolutely not tenable and the same cannot be granted.
Accordingly, the writ petition is dismissed. Simultaneously, the application for amendment (CLMA No. 11735 of 2017) and impleadment (CLMA No. 11734 of 2017) which too listed today for orders, also stand rejected.
No order as to costs.
\ (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 07.10.2017 07.10.2017 Shiv