Allahabad High Court
Kumari Deepti vs State Of U.P. And 3 Others on 23 February, 2023
Bench: Mahesh Chandra Tripathi, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 Case :- SPECIAL APPEAL DEFECTIVE No. - 109 of 2023 Appellant :- Kumari Deepti Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Yogesh Kumar Saxena,Ram Sajivan Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Saurabh Srivastava,J.
(Per: Saurabha Srivastava, J.) Order on Civil Misc. Delay Condonation Application No. 1 of 2023.
The delay in filing the appeal has been explained in the affidavit.
Cause shown is found sufficient.
Delay is condoned.
Application is allowed.
Order on Appeal.
1. Heard Shri Y.K. Saxena, learned counsel for the appellant, Shri Mohan Srivastava, learned Standing Counsel for the State respondents.
2. The Special Appeal is questioning the validity of the impugned judgment and order dated 04.01.2023 passed by the learned Single Judge in Civl Misc. Writ Petition No. 17259 of 2022 (Kumari Deepti versus State of U.P. and others) and further prayed that the respondent be directed to accept the claim of the petitioner for appointment in the O.B.C. category in accordance with law during the pendency of this Special Appeal.
3. Learned counsel for the appellant in support of his submission states that while passing the order learned Single Judge has erred and has not considered the Full Bench Judgement of this Court rendered in a bunch of matters, leading being Special Appeal No. 156 of 2017-Gaurav Sharma versus State of U.P. Thru Secy. and 3 Others, 2017 AIR (Allahabad) 116.
4. He submits that in the similar facts and circumstances, the learned Single Judge in Writ A No. 4689 of 2022 (Rinki Yadav versus State of U.P. Thru. Addl Chief Secy. Home (Police) Anubhag-6 Lko. And 3 Others) wherein she was working on the post of Constable and was a candidate for selection to the post of Sub Inspector (Civil Police) Platoon Commander (PAC) and Second Officer in Fire Brigade in pursuance to the Advertisement issued in February, 2021 her candidature was rejected by the respondent that the selection mode is considering the candidature of the petitioner under the General Category rather than treating her under O.B.C. Category, allowed the similar prayer of the petitioner as prayed in the instant petition.
5. The Rinki Yadav (supra) has challenged the said action in the aforementioned Writ Petition where the learned Single Judge vide order dated 09.09.2022 had allowed the writ petition and directed the respondents to accept the O.B.C. Certificate submitted by the petitioner and proceeded with the process of selection of the petitioner on the post of Sub Inspector (Civil Police). He submits that the said order was subject matter of the Special Appeal Defective No. 274 of 2022 (State of U.P. versus Rinki Yadav 2022 Law Suit (All) 1900.
6. The present Intra Court Appeal has been filed under Chapter VIII Rule 5 of Court with the prayer to quash & set aside the judgment dated 04.01.2023 passed by learned Single Judge and further direct the State authorities, specifically Uttar Pradesh Police Recruitment and Promotion Board (hereinafter referred as the "Recruitment and Promotion Board") to declare her result treating her candidature belonging to Other Backward Class category, The cause of action arises in favour of the Appellant-Petitioner for filing the writ petition when her result has not been declared in the select list even after securing higher marks than the lowest cut-off marks in the O.B.C. category. The Appellant-Petitioner preferred representation dated 21.08.2022 for seeking declaration of her result under O.B.C. category and the same has not been responded in any manner whatsoever. The learned Single Judge while deciding the petition preferred by the Appellant-Petitioner dismissed the same on the ground that firstly she could not produce the O.B.C. certificate on prescribed format within the time as specified in the advertisement, and thereafter he warranted O.B.C. certificate submitted by the Appellant-Petitioner at highly belated stage.
7. The Recruitment and Promotion Board issued an advertisement in the month of February, 2021 for direct recruitment to the post of Sub-Inspector Civil Police, Platoon Commander P.A.C. and Second Fire Officer. The number of vacancies advertised through the said advertisement were 9534. The Appellant-Petitioner is presently rendering her service as Constable (Civil Police) Uttar Pradesh Police Services and was recruited on the said post under the reserved category of Other Backward Classes. Pursuant to the advertisement in question, she submitted her online application along with other required documents, she also furnished a certificate issued by the Tehsildar Chhibramau, District Kannauj, on 06.03.2021 which is available at page 29 appended to the Appeal as Annexure No.1. By furnishing the said certificate, the petitioner claimed that her candidature for recruitment to the post in question has been considered as a reserve category candidate belonging to Other Backward Class.
8. The Appellant-Petitioner participated in the written examination and also in the physical efficiency test. The final marks obtained by the petitioner on the basis of written examination/physical efficiency test are 291. 32, whereas the last candidate belonging to O.B.C. category selected had secured 285.03 marks. The last candidate in the open category i.e. under the General category selected, has secured 296.5 marks. These marks in different categories are in respect of the female candidates.
9. Due to non-declaration of result related to the Appellant-Petitioner as selected candidate it is the apprehension of the Appellant-Petitioner that at the time of verification of documents, it was discovered that the Certificate submitted by the Appellant-Petitioner for seeking benefit of reservation for appointment in question was not as per the advertisement pursuant to which selections were made.
10. Accordingly, she has been denied recruitment/appointment on the post of Sub-Inspector or any other equivalent post by treating her to be an open category candidate and also for the reason that since the last open category candidates selected had secured 296.5 marks, whereas the marks obtained by the Appellant-Petitioner were 291.32 hence, she could not get selected in the open category on the basis of merit. It is not denied by the respondents-State Authorities that the only reason for not treating the Appellant-Petitioner's candidature as a reserved category candidate belonging to Other Backward Class is that she did not submit the caste certificate as per the format (Praroop-1) appended with the advertisement.
11. Mr. PK Giri, learned Additional Chief Standing Counsel appearing for the State respondents vehemently argued that as per the notes appended to clause 5.4 of the advertisement, the benefit of reservation to those candidate who belong to Other Backward Classes, but fall in the creamy layer will not be available. Drawing out attention to note 3 appended to clause 5.4 of the advertisement, it has been argued by Ld. Additional Chief Standing Counsel that the said provision in the advertisement which provides that the candidates belonging to Other Backward Classes as mentioned in Schedule-1 of the Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the Reservation Act, 1994) will not be entitled to the benefit of reservation if they fall in the creamy layer Category. He has also stated that as per the stipulation made in note 3, caste certificate to be submitted by the candidates claiming the benefit of reservation available to Other Backward Classes shall be in format (Praroop-1) and should have been issued on or after 1 April 2020, but before the last date of making the application. That is to say, the caste certificate to be submitted by the candidate concerned should have been issued between 1.04.2020- 30.04.2021 for the reasons that 30.04.2021 was the last date as per the advertisement to make the application.
12. Caste certificate issued on 06.03.2021 by the Tehsildar certifies that the Appellant-Petitioner daughter of Vimal Kishore, whose mother's name is Aadesh Kumari belongs to Lodhi community which is recognised as the backward class under the Government of India resolution dated 10 September 1993 published in the Gazette dated 13 September 1993. It also certifies that she does not belong to the persons/sections of creamy layer mentioned in the office memorandum issued by the Government of India, Department of Personnel & Training, dated 08.09.1993 as modified by office memorandum dated 09.03.2004 and 14.10.2008 or the latest notification of the Government of India.
13. The sole submission of the Ld. Additional Chief Standing Counsel appearing for the State authorities is that since the Appellant-Petitioner did not furnish the caste certificate as per the requirement of note 3 appended to clause 5.4 of the advertisement and also that since the caste certificate furnished by her was not in the format (Praroop-1) appended to the advertisement as such she has dis-entitled herself to be given the benefit of being considered for the benefit of reservation available to O.B.C. category candidates.
14. Ld. Additional Chief Standing Counsel also relied upon a Judgment rendered by the Division Bench of this Court in the case of Surendra Mohan Yadav Vs. State of Uttar Pradesh and others decided on 05.09.2018 in Special Appeal No. 823 of 2018, wherein, according to him, it has been held that if a candidate fails to submit O.B.C. certificate as per the format prescribed in the advertisement and rather furnishes the certificate which related to the appointments to the post under the Government of India and not under the State of Uttar Pradesh, then candidature of such a candidate cannot be considered in O.B.C. category. The Division Bench judgement dated 05.09.2018 places reliance on the Full Bench judgement of this Court in the case of Gaurav Sharma Vs. State of Uttar Pradesh and others 2017 5 ADJ 495, equivalent citation of which is 2017 [35 ] LCD 1720.
15. Issue which has been emerged to be answered by this Court in this case is as to whether by not submitting the caste certificate in the format as prescribed in the advertisement rather submitting the same in the format which has been prescribed by the State of U.P. itself for the purposes of issuing the caste certificate for claiming the benefit of reservation available to O.B.C. category candidates for appointment to the post under the Government of India, the Appellant-Petitioner dis-entitled herself for claiming such benefit.
16. As per clause 5.4 of the advertisement, a candidate claiming the benefit of reservation available to O.B.C. category candidates was required to submit the caste certificate with certification to the facts, (1) that the candidate does not fall foul of creamy layer and (2) that the certificate ought to have been issued by the competent authority between the period 1.04.2020-30.04.2021, whereas, the caste certificate furnished by the Appellant-Petitioner is concerned, it was issued by the competent authority i.e. the Tehsildar concerned on 06.03.2021, which date falls within the period prescribed for obtaining the certificate as per the stipulation made in the advertisement itself i.e. between 1.04.2020-30.04.2021. The certificate relied upon by the Appellant-Petitioner also clearly certifies that she does not fall foul of creamy layer as per the notification issued by the Government of India, Department of Personnel & Training by means of the Office Memorandum dated 08.09.1993 or/and at the latest notifications including the notifications dated 09.03.2004 and 14.10.2008.
17. One of the issues which was considered by the Full Bench in the case of Gaurav Sharma (Supra) was as to whether there exists any irreconcilable difference or repugnancy between the norms fixed by the Union and State Governments with regard to certification of creamy layer? if not, its effect, it is also given to point out that the petitioner in the Gaurav Sharma case had also submitted the certificate certifying that he belonged to the O.B.C. category in the same format in which the appellant-Petitioner obtained the certificate and submitted the same for seeking benefit of the reservation available to O.B.C. category candidates. The format in which the Appellant-Petitioner obtained the said certificate is prescribed by the State of Uttar Pradesh. This fact is not in dispute, however, as stated by the learned Additional Chief standing Counsel, the said format is for claiming benefit of reservation available to O.B.C. category candidates in relation to employment under the Government of India and not in relation to employment under the State of Uttar Pradesh.
18. The caste certificate relied upon by the candidate in the case of Gaurav Sharma is the same in which the Appellant-Petitioner was issued the certificate by the Tehsildar. The Full Bench in the case of Gaurav Sharma (Supra) has opined that, while it is true that caste certificate is only recognition of an existing status, and O.B.C. candidate necessarily must establish the twin conditions of belonging to an O.B.C. group recognised by the State and also that he does not fall within the creamy layer. In para-26 of the judgement in the case of Gaurav Sharma, the Full Bench has further observed that while it is true that O.B.C. candidate even she produces a certificate which evidences that she does not stand excluded from the benefit of reservation in terms of Office Memorandum dated 14.10.2008, that issue still remain as to whether she is an OBC, as are specified and identified by the State Government of Uttar Pradesh.
19. The Full Bench further observes that although the certificate initially submitted by the OBC, candidates before court did not stand excluded by virtue of his standards fixed by the Office Memorandum dated 14.10.2008, the certificate did not evidence them belonging to an O.B.C., as identified in the State Government of Uttar Pradesh. The Court further goes on to the observation that for the purposes of seeking the benefit of the reservation it is imperative for a candidate to establish that he/she belongs to O.B.C., as recognised and identified by the State concerned and further that he/she does not within the field of exclusion.
20. Finally, answering the issue (C) it has been said by the Full Bench in para-27 of the report that we accordingly answered question number one in the negative and hold that an O.B.C. candidate is not exempt from the rigours of a cut-off or last date prescribed in an advertisement or recruitment notice. We further declared that Arvind Kumar Yadav correctly articulates the law on the issue and over rule Pravesh Kumar and Shubham Gupta. In so far as question No. 3 is concerned, we hold that although, there is no repugnancy the norms fixed by the Union and the State Government, the same would have no favourable impact upon the ability of a candidate unless he/she does not furnish a certificate evidence of her as belonging to O.B.C. category as recognised and identified by the State.
21. Thus, the Full Bench in the case of Gaurav Sharma (Supra) has found that so far as the certification of creamy layer is concerned, there is no repugnancy in the norms fixed by the Union and the State Government. Accordingly, we have no hesitation to hold that insofar as the exclusion under the creamy layer is concerned, the Appellant-Petitioner could not be excluded for the reasons that the certificate furnished by her theory states that she does not stand excluded from the rigours of creamy layer in terms of the notification issued by the Central Government. The Full Bench has already held that so far as the criteria of exclusion under the creamy layer component is concerned there does not exist any repugnancy between the criteria laid down by the State Government and the Central government.
22. We however also notice that the Full Bench has categorically held that even if a candidate produces a certificate evidencing that he/she does not get excluded from the rigours of creamy layer there he/she would still have to possess a certificate evidencing that he/she belongs to an O.B.C. group as identified and recognised by the State Government of Uttar Pradesh. For considering the aforesaid aspect, what we find is that the certificate furnished by the Appellant-Petitioner on 06.03.2021 which was issued by the competent authority i.e. the Tehsildar clearly certifies that she belongs to Lodhi community there does not exist any repugnancy between the specification made for the said purpose by the Government of India as also by the State Government of Uttar Pradesh.
23. We are very clear in our mind that the certificate furnished by the Appellant-Petitioner will clearly suffice to certify that the Appellant-Petitioner belongs to a community identified by the State Government of Uttar Pradesh is an O.B.C. group and accordingly she will be entitled to seek the benefit of reservation available to an O.B.C. category candidate even while seeking employment under the State Government of Uttar Pradesh.
24. By bare perusal of Schedule-1 appended to 1994 Reservation Act which clearly reveals that Entry-8 therein mentions the community Lodhi. Accordingly, as per the identification recognition made by the State Government of Uttar Pradesh for a particular community belonging to Other Backward Class, the entries in Schedule-1 is the only source for determination of such an issue. Admittedly, Lodhi community are identified and recognised for the said purpose.
25. If we examine the notification published in the Gazette of India, extraordinary dated 13.09.1993 which publishes the resolution of the Government of India dated 10.09.1993 what we find is that in the State of Uttar Pradesh Lodhi community is listed at serial No. 8. Accordingly, on examination of the identification made by the Government of India as also by the State Government of Uttar Pradesh for the purposes of inclusion of a particular group or community amongst the Other Backward Classes or Sections entitled to seek benefit of reservation available to them, we find that there does not exist any repugnancy as far as Lodhi community is concerned. The reasons for us to observe that there is no such repugnancy is that Lodhi community finds mention in the notification of the Government of India dated 13.09.1993 which published the resolution of the Government of India dated 10.09.1993 and it is also included at entry 8 of Schedule 1 appended to 1994 Reservation Act passed by the Legislature of the State Government of Uttar Pradesh.
26. Ld. Additional Chief Standing Counsel has also made his submission based on the provisions contained in Section 9 of the Reservation Act, 1984 which provides that for the purpose of reservation provided under the said Act caste certificate shall be issued by such authority or officer in such manner or form as the State Government may by order provide.
27. Ld. Additional Chief Standing Counsel representing the State authorities has not dispute that the authority was issued because certificate dated 06.03.2021 which was furnished by the Appellant-Petitioner claiming the benefit of the reservation available to O.B.C. category candidates has been issued by the Tehsildar with the competent authority as provided by the State Government for the purpose of issuing certificate. The Schedule appended to the Uttar Pradesh Janhit Guarantee Act of 2011 also prescribes the Tehsildar to be the authority competent to issue a certificate.
28. The only reservation expressed by the Ld. Additional Chief Standing Counsel to the caste certificate issued on 06.03.2021 is that it is not issued in the manner prescribed by the State Government. The basis for such an arguments as advanced by the Ld. Additional Chief Standing Counsel is that the certificate dated 06.03.2021 which had been issued by the Tehsildar clearly mentioned therein that it is a certificate to be produced by Other Backward Classes applying for appointment to the post under the Government of India. His submission is that the information as appended to the advertisement (Praroop-1) is a form prescribed by the Government for issuance of caste certificate to those who apply for appointment to the post under the State Government of Uttar Pradesh.
29. It is also not in dispute that both the formats i.e. the format in which the Appellant-Petitioner had obtained the certificate which was issued to her by the State of the place itself. The first format is for a certificate to be produced by O.B.C. category candidate applying for appointment to the post under Government of India, whereas the format as appended to the advertisement has been prescribed by the State to be produced by the Other Backward Classes candidates who apply for appointment to the post under the State of Uttar Pradesh. The Full Bench of this Court in the case of Gaurav Sharma (Supra) as discussed above, has already found that so far as the criteria for exclusion on account of person belonging to creamy layer is concerned there does not exist any repugnancy between the descriptions made for the said purpose by the Government of India and by the State government of Uttar Pradesh. The issue as to whether there is any repugnancy, so far any person belonging to Lodhi community claiming his/her status as O.B.C., as prescribed by the State of Uttar Pradesh and the Government of India was not an issue before the Full Bench neither has it been discussed and considered. However, if we examine the reasoning given by the Full Bench for recording that no repugnancy exist, so far as the criteria for exclusion of candidate on account of creamy layer is concerned and apply the same for examining as to whether there is any repugnancy between the identification of a particular, category as O.B.C. by the State of Uttar Pradesh and by the Government of India. We find that as far as Lodhi community is concerned, there does not exist any repugnancy. Lodhi community is included as O.B.C., in the notification issued on 15.09.1993 published in the Gazette dated 13.9.1993. Similarly Lodhi community is mentioned at entry 8 of schedule 1 of the 1994 Resolution Act. As there is no discrepancy in inclusion of Lodhi community amongst the Other Backward Class exists in case any person belonging to Lodhi community reservation available to O.B.C. category candidates for appointment or post either under the Government of India or under the State of Uttar Pradesh.
30. We may recreate the basic principle which runs as a common thread throughout the judgement of the Full Bench of this Court in case of Gaurav Sharma and Others is that certificate produced by a candidate claiming the benefit of reservation available to O.B.C. category candidate should evidence and facts (1) that the candidate who belongs to a group identified, as such, by the State Government and (2) that the candidate is not excluded as per the criteria for the Creamy layer prescribed by the State government of Uttar Pradesh.
31. Applying the reasoning as given by the Full Bench in the case of Gaurav Sharma (supra) we are of the opinion that the certificate relied upon and submitted by the Appellant-Petitioner dated 06.03.2021 was issued by the Tehsildar sufficiently certifies and evidences that the Appellant-Petitioner belongs to an O.B.C. group identified and recognised by the State government of Uttar Pradesh and further that she as per the criteria prescribed by the State government of Uttar Pradesh for exclusion under creamy layer does not fall in the creamy layer and hence, she is eligible and entitled to claim reservation available to O.B.C. category candidate.
32. Before parting with this case, we may observe that benefit of the reservation in public employment to different disadvantaged section of the society is permissible under the Constitution of India as an affirmative action. It is not in dispute that the Appellant-Petitioner was given appointment while she claimed the benefit of reservation available to O.B.C. candidates in her selection to the post of Constable (Civil Police) Uttar Pradesh Police Services, merely because the certificate produced by her was not in (Praroop-1) though the certificate produced by her, clearly evidences that she belongs to an O.B.C. category as identified by the State Government of Uttar Pradesh and also that she does not get excluded as a person belonging to creamy layer in terms of the criteria laid down by the State Government of Uttar Pradesh. For the said purpose, it should not be taken aid of by the State authorities for denying her otherwise constitutionally guaranteed right of affirmative action.
33. The law enunciated in Special Appeal Defective No. 274 of 2022 State of UP versus Rinki And other 2022 lawsuit (All) 1900 relied by the counsel for the Appellant-Petitioner is fully applicable in the instant matter and as such, we are in full agreement of the same. Nothing has been brought to our notice that the judgement of Rinki & others (supra) is being given any indulgence by the Hon'ble Apex Court and as such, the same is confirmed at this stage.
34. The Additional Chief Standing Counsel so far the factual and legal aspect of the matter, the same is not disputed that the order and direction passed in the judgement of Rinki and Other (supra) is not in his knowledge.
35. Considering the facts and circumstances of the case, we find that the case of the petitioner is on similar footings. The order passed by the learned Single Judge cannot be sustained neither on the ground that the caste certificate as submitted by the Appellant-Petitioner was not within the time as stipulated and extended by the recruitment Board, nor the same was not on prescribed format. Accordingly order dated 04.01.2023 is hereby quashed and set-aside.
36. It has been intimated by the learned counsels for the rival parties that the selection process is going on, and as such, it is hereby directed to the competent authorities to accept the candidature of the Appellant-Petitioner being the candidate of O.B.C. category. After considering her merit points which falls under the cut-off as secured by the lowest merit holder of O.B.C. Category.
37. In the light of above, the instant intra court appeal is hereby allowed. The respondents are directed to accept the O.B.C. certificate submitted by the Appellant-Petitioner and proceed with the process of selection of the Appellant-Petitioner for the post Suitable to the Appellant-Petitioner under the advertisement.
38. Let aforesaid exercise be completed within three weeks from the date of production of certified copy of this order before the competent authority.
Order dated:-23.02.2023 SY