Allahabad High Court
State Of U.P. & Others vs Vimla Maurya on 21 December, 2010
Bench: Rakesh Tiwari, Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court no.32
Special Appeal Defective No. 660 of 2005
State of U.P. and others versus Vimla Maurya
Hon'ble Rakesh Tiwari, J.
Hon'ble Ran Vijai Singh,J.
Heard learned counsel for the parties on the question of condonation of delay in filing the special appeal. The appeal is reported to be beyond time by 185 days. We have gone through the affidavit filed in support of the delay condonation application. Cause shown is sufficient to condone the delay in filing the special appeal. The delay in filing the special appeal is condoned. The application for condonation of delay is allowed. The appeal shall be treated to be filed well within time.
Heard learned counsel for the parties on merit and perused the record.
The present special appeal has been filed against the judgment and order dated 23.3.2005 passed by his Lordship Hon. V.K. Shukla,J. in Civil Misc. Writ Petition No. 21810 of 2004, Vimla Maurya versus State of U.P. and others by which his Lordship has allowed the writ petition and directed the respondents to consider the claim of the petitioner appellant by treating her as OBC category candidate.
The aforesaid judgment has been challenged on the ground that the caste certificate annexed by the appellant was not according to the condition of the advertisement. Learned Standing counsel submits that the caste certificate was to be of the date not prior to six months of the last date of filling up of the form, whereas in the present case when the form was filled up the respondent petitioner had annexed caste certificate of the year 1994 showing herself of OBC category which was older than six months. Therefore, her candidature was not considered as per terms and condition of the advertisement. We have specifically required the learned Standing counsel to place the condition of the advertisement in this regard. He has invited the attention of the Court towards the Government order dated 14th January, 2004, Annexure-1 to the stay application to this special appeal and particular attention of the Court has been drawn towards conditions nos. 5 and 6 of the aforesaid Government Order. The condition nos. 5 and 6 are quoted herein-below.
^^5- vH;fFkZ;ksa ls vkeaf=r vkosnu&i= ds fu/kkZfjr izk:i esa gh leLr vko';d lwpuk,a ekaxh tk;saxh rFkk dksbZ izek.k&i= layXu djus dh O;oLFkk ugha j[kh tk;sxhA mDr izk:i esa vH;fFkZ;ksa dh vksj ls vafdr fooj.k dh lR;rk ds lEcU/k esa ;g ?kks"k.kk i= 'kiFk & i= ds izk:i esa izkIr fd;k tk;sxk ftlesa vH;FkhZ dh vksj ls ;g vUMjVsfdax nh tk;sxh fd ;fn vafdr fooj.k vlR; ik;s tk;saxs rks u dsoy mldk vH;FkZu fujLr dj fn;k tk;sxk] vfirq mlds fo:) oS/kkfud dk;Zokgh Hkh dh tk ldrh gSA 6- vkosnudrkZvksa dks ;g Hkh ?kks"k.kk vkosnu&i= esa djuh gksxh fd tks izek.k&i= esa djuh gksxh fd tks fooj.k mUgksaus vkosnu i= esa vafdr fd;s gSa muls lEcfU/kr izek.k&i= @ vad i= vkosnu djus dh frfFk ds iwoZ muds ikl miyC/k gSaA vkosnu&i= izsf"kr djus ds fnukad ds ckn ds fuxZr izek.k&i= @ vad ii= ekU; u gksaxsA** From the perusal of condition no.5 it appears that the form has to be filled up in accordance with the proforma prescribed for filling up of the form and the candidate is also required to give an undertaking to the effect that the declarations given in the form are true and in case the undertaking given by the candidate is found to be false his form shall stand cancelled and penal action may also be taken against him/her. Condition no.6 stipulates that all the certificates/testimonials which have been mentioned in the form have to be of the date prior to the date of filling up of the form.
Here, in the present case as transpires from the record, the candidate has annexed the caste certificate issued in the year 1994 showing herself to be of Other Backward Class. It appears that at the time of counselling an objection was raised that as the caste certificate is of the year 1994, therefore, it is not placing reliance upon it. The petitioner in the circumstances was required to file new caste certificate. Subsequently, the petitioner applied for another caste certificate on 20.9.2004 and produced the same before the authority concerned but nothing was done by the authorities. The petitioner then approached this Court through Writ Petition No. 36207 of 2004 which was disposed of by this Court vide order dated 7.9.2004 with the direction to the authority concerned to decide the matter afresh. Thereafter, the petitioner represented the matter before the authority concerned and she was required to appear for counselling at Lucknow. Pursuant thereto the petitioner appeared and produced all the required document and on 7.10.2004 but her claim has been non-suited on the ground that caste certificate was of 20th September, 2004, i.e. after the date of filling up of the form. His Lordship while dealing with aforesaid aspect of matter has found that earlier the claim of the respondent petitioner had been non-suited on the ground that her caste certificate was of the year 1994 and later her claim was non-suited on the ground that the caste certificate is of the date after the last date of filling up of the form and the Court has found that the respondents have taken too technical view of the matter and rejected the claim of the petitioner, though denied that the petitioner does not belong to OBC category.
The writ petition was accordingly, allowed and the respondents were directed to consider the petitioner's candidature treating her to be of OBC category.
We have gone through the record of the special appeal and find that on the first instance the candidature of the petitioner was ignored on the ground that the date of issuance of the caste certificate was more than six months prior to the last date of the filling up of the form, whereas on the second instance after the order of this Court when the case of the petitioner was considered, her case was ignored on the ground that the caste certificate is of a date after the date of filling up of the form.
We have gone through condition no.6 relied upon by the learned Standing counsel. It does not provide that the certificates and the marksheets etc. have to be of a date less than six months prior to the date of filling up of the form and any certificate issued after the date of the filling up of the form was not to be taken into consideration. The only condition is that the certificate must be of a date prior to the last date of the filling up of the form. It is not in dispute that the certificate of the year 1994 is not prior to the date of the filling up of the form. Therefore, the oral submission of the learned Standing counsel to that extent has no weight.
Even otherwise, the matter may be examined from another angle.The purpose of filing the caste certificate is to claim reservation under the relevant statute. Here, in the present case, the petitioner claims herself to be belonging to Other Backward Class. The benefit of reservation to the reserved category candidate has been extended by the legislature through U.P. Public Services ( Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. This has a genesis from Article 16 of the Constitution of India and this statutory right conferred upon a candidate belonging to a particular reserved category cannot be taken away by the authority on mere technicalities that it is either very old or it is very new, as belonging of a person to particular caste is a matter of fact and it will not loose its sanctity after lapse of time. It is also not the case of the appellant that the petitioner does not belong to other Backward Class or the certificate produced by him is forged. The factum of his belonging to other Backward Class has no where been disputed. We again find the requirement of not accepting a certificate of prior to more than six months is not static rather is a flexible one. It may be rigid in those cases where the certificate shall loose its sanctity after lapse of some time like Income Certificate, Domicile Certificate, Character Certificate and Solvency Certificate etc. where the factum of the certificate may change after lapse of sometime which will not change with efflux of time. It is unknown that after some time a particular caste will be converted into another caste.
For all the reasons stated above, we are in respectful agreement with the view taken by his Lordship in the impugned judgment as there does not appear to be any illegality or infirmity in the impugned judgment, the special appeal is dismissed. No order as to costs.
Dated 21.12.2010 CPP/-