Uttarakhand High Court
Swapnil Muyal vs State Of Uttarakhand And Others on 28 November, 2017
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 442 of 2017
Swapnil Muyal. ........Petitioner
Versus
State of Uttarakhand & others. .......Respondents
Mr. Rakesh Thapliyal and Mr. Vipul Sharma, Advocates for the petitioner.
Mr. Narayan Dutt, Brief Holder for the State of Uttarakhand/respondent nos. 1 & 2.
Mr. B.D. Kandpal, Advocate for respondent no. 3.
Mr. D.S. Patni, Advocate for respondent no. 4.
Dated: November 28, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Petitioner is a Graduate Engineer in Mechanical Engineering. On 04.09.2014, an advertisement was issued by the respondent- Uttarakhand Public service Commission (hereinafter referred as "the Commission"), inviting applications for recruitment to various posts, namely, Deputy Collector, Deputy Superintendent of Police amongst other posts. In regard to the post of Deputy Superintendent, it is provided, inter alia, that a candidate should fulfill physical standards as mentioned in paragraph no. 10 of the advertisement. The physical standards were defined as follows:
" Height Male Female
General 167.7 cm 152 cm
Scheduled Tribe 160 cm 147 cm
Hill area 162.6 cm 147 cm"
2
2. Petitioner states that he, admittedly, is 163.6 centimeters in height. He claims also to have fulfilled all the physical standards. Petitioner also is a member of the Scheduled Caste Community. He belongs to the community known as "Shilpkar", which is treated as a Scheduled Caste Community. In this regard, he has also produced the caste certificate, which reads as follows:
"Office of Tehsildar Srinagar Garhwal No. 416/12/SC Certificate (2011-12) Srinagar Dated May 14, 2012 Scheduled Cast Certificate Certified that Swanil Muyal S/o Sri Sunder Lal Muyal, Mother Name Smt. Devindra Muyal, R/o Village Sumari Patti Katulsyun, Tehsil Srinagar, District- Pauri Garhwal, Uttarakhand State Belongs to Scheduled Caste. Sub caste is Shilpkar which is recognized as Scheduled caste under the Scheduled caste order 1950 amended from time to time.
This certificate is issued on the basis of the enquiry report of Patwari Katulsyun dated 14.05.2012.
Sd/-Tehsildar Srinagar, Garhwal."
3. Petitioner obtained 701 marks in the written examination and 130 marks in the interview. Thus, he obtained 831 marks. Respondent no. 4 obtained 719 marks in the written examination and 111 marks in the interview. Thus, he obtained 830 marks, which is one mark less than the petitioner. However, when the results were published, petitioner came to be selected as Finance Officer; whereas, respondent no. 4 was selected as Deputy Superintendent of Police.
34. It is his case that he has given his preference, at the time of making the application, as follows:
"(I) Dy. Collector, (1st Preference) (II) Dy. S.P., (2nd Preference) (III) ARTO (3rd Preference) (IV) Finance Officer (4th Preference)"
5. Therefore, it is his case that, since he got more marks than the fourth respondent and his preference was Deputy Superintendent of Police; he should have been selected as Deputy Superintendent of Police. Apparently, he was given only the job as per the fourth preference. The reason for not getting selected as Deputy Superintendent of Police was that he was not having the height, which was fixed at 167.7 centimeters for those belonging to the plain area. But, it is his case that the advertisement provides for relaxation of 5.1 centimeters to the candidates belonging to the hill area, as the minimum height was fixed as 162.6 centimeters. The controversy, which is to be resolved in this case, emerges out of this salient feature, namely, the relaxation available to the persons belonging to the hill area not being made available to the petitioner. The reason in turn for the petitioner not being given the benefit, according to the answering respondent- Commission, is that the candidates, who wish to avail the benefit of this relaxation, were expected to produce certificate. The said certificate was not produced by the petitioner at the time of interview. In such circumstances, petitioner has approached this Court seeking the following reliefs:
4"A. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 27. July. 2017 so far as it relates to selection of respondent no. 4 on the post of Deputy Superintendent of Police.
B. Issue a writ, order or direction in the nature of mandamus commanding respondent no 3 to revise the list of Deputy Superintendent of Police issued by means of notification dated 27. July. 2017 on the basis of merit of petitioner while considering him as a candidate belonging to hill area as mentioned in his caste certificate and giving him relaxation in height."
6. We heard Mr. Rakesh Thapliyal alongwith Mr. Vipul Sharma, learned counsel on behalf of the petitioner. We also heard Mr. B.D. Kandapl, learned counsel appearing on behalf of the Commission and also Mr. D.S. Patni, learned counsel appearing on behalf of the party respondent.
7. Learned counsel for the petitioner would submit that the advertisement, pursuant to which the petitioner applied, does not prescribe any format in which the certificate showing that the petitioner belongs to hilly area was to be given. It is further pointed out that the case sought to be set up by the respondent is that the certificate is to be given in terms of the Government Order dated 16.01.1982, which is not applicable, as it relates to the Domicile Certificate and the purport of that Government Order has nothing to do with the question at hand.
58. He would next point out with reference to the Supplementary Affidavit, which he has filed, that many others have been given the benefit of production of certificate at a later point of time. Paragraph no. 10 of the said Supplementary Affidavit reads as follows:
"10. That another interesting aspect which needs kind consideration of this Hon'ble Court that 51 out of total selected candidates have been selected provisionally. Petitioner has obtained under RTI the details of 51 provisionally selected candidates and the shortcoming/grounds of their provisional selection Respondent no. 3 has specifically stated in its letter/reply dated 28th September, 2017 that many of the candidates have not submitted basic graduation degree, caste certificate and permanent resident/domicile certificate for example candidate at Sl. No. 13 has been selected as Uttarakhand female but she has not submitted domicile/permanent resident certificate of Uttarakhand which was mandatory. Candidate at Sl. No. 25 has also been selected as Dy. S.P. as Uttarakhand Female candidate but she too has not submitted domicile certificate. Candidate at Sl. No. 26 has also been selected as Dy. S.P. as Uttarakhand Female candidate. She too has not submitted domicile certificate.
Candidate at Sl. No. 33 has been selected as Assistant Cane Commissioner on a post reserved for Schedule Caste but caste certificate has not been submitted. A copy of the application made under RTI alongwith reply are being annexed herewith and marked as Annexure No. SCA-2 collectively to this affidavit."6
9. He would submit that the Certificate, which is prescribed, has got no nexus with Deputy Superintendent of Police.
10. Lastly, he would also rely on the judgment of the Hon'ble Apex Court in the matter of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC 754.
11. Learned counsel for the Commission would submit that the Commission has published Annexure CA-2 Interview Programme dated 20.04.2017. Therein, it has been mentioned that, for the post of Deputy Superintendent of Police, certificate of hill region for relaxation in physical fitness should be presented at the time of interview. It is also the case of the Commission that, on the same date, an advertisement was also issued for interview, in which directions were given to the candidates to fill up a detailed application form, attestation form, and index card after downloading the same from the website and, after filling of the form, self attested testimonials and certificates were to be attached with the application form in the manner as has been mentioned in para 4 of the advertisement memo. In the important instructions attached with Annexure CA-2 Interview Programme dated 20.04.2017 at Serial no. 11, it is stated that the testimonials certificates of hill region were required to be attached with the application form. These documents were required to be produced at the time of interview. It is the case of the Commission that, all the 7 candidates were well aware that the candidates have to produce the certificate, inter alia, at the time of interview. In regard to hill region certificate, it was made clear that, in the absence of the same, they would not be considered as a hill region candidate. We may also, at this stage, refer to paragraph no. 16 of the counter affidavit, which reads as follows:
"16. That the interview of petitioner was conducted on 18.05.2017 and his physical fitness test was conducted on 19.05.2017 and at the time he has not produce hill region certificate as such he was not considered as hill region candidate accordingly he was not granted relaxation in physical fitness."
12. It is further stated in para 17 of the counter affidavit that the petitioner has not claimed to be a hill region candidate at the time of interview and physical fitness test nor sought time to produce the hill region certificate and there was no occasion for the answering respondent to consider him as a hill region candidate.
13. Thereafter, in paragraph no. 19 of the counter affidavit, it is stated as follows:
"19. That the hill region certificate was being issued by the authority prescribed in accordance to government order of erstwhile state of U.P. dated 16.1.1982 and the same was produced by the candidates seeking relaxation in physical fitness test at the time of interview. A copy of one of such certificate in favour of Sri Himansh Kafaltia by the Tehsildar Dhari dated 26.05.2017 is being filed herewith and marked ad Annexure C.A. No. 3 to this affidavit."8
14. In answer to paragraph no. 16 of the counter affidavit, we noticed the following averments mentioned in paragraph no. 18 of the rejoinder affidavit:
"18. That the contents of paragraph no. 16 of the counter affidavit as stated are denied. It is submitted that the caste certificate of the petitioner has clearly mentioned that he belongs to Village Sumari Patti Katulsyun, Tehsil:
Srinagar, District Pauri Garhwal which is a hill region of Uttarakhand. The certificate was submitted well in time and was sufficient prove that petitioner was eligible for relaxation in height."
15. In answer to para 17 of counter affidavit, it is stated in para 19 of the rejoinder affidavit as follows:
"19. That in reply to the contents of paragraph no. 17 of the counter affidavit as stated are denied. It is submitted that the commission has not prescribed any format for hill region certificate. The testimonials including the caste certificate has been produced in original before the officers of the respondent No. 3 who were deputed to check the original certificates of the candidates. The original certificate including the caste certificate were checked and the officers of the Public Service Commission Uttarakhand were satisfied The petitioner specifically asked the officers whether the caste certificate submitted is sufficient for the claim that the petitioner belongs to the hill area. the officers of Public Service Commission Uttarakhand said that the caste certificate clearly mentioned that 9 the petitioner belongs to hill region and was a sufficient document to prove candidates claim for hill region otherwise the petitioner would have sought time for submission of the certificate in the format if any prescribed by the commission."
16. No doubt, petitioner also relies on paragraph no. 33 of the writ petition in this regard. It reads as follows:
"33. That the petitioner submitted all the certificates including the cast certificate in original before the officers of respondent no. 3 who were deputed to check the original certificates of the candidates. The original certificates including the cast certificate were checked and were satisfied. The petitioner specifically asked the officers that the cast certificate submitted is sufficient for the claim that the petitioner belongs to hill area. The officers of respondent no. 3 said that the cast certificate clearly mentioned that the petitioner belongs to hill area and no others certificate was required for the claim of hill area."
17. In answer to paragraph no. 33 of the writ petition, we noticed the following averments mentioned in paragraph no. 38 of the counter affidavit.
"38. That the contents of paragraph no. 33 and 34 of the writ petition are misconceived and incorrect as such not admitted. In reply there of it is stated that when the petitioner has not claimed to be a hill region candidate as such on occasion was there to seek clarification from the petitioner."10
18. Learned counsel for the respondents would submit that no case is made out for interference and sought to distinguish the judgment of the Hon'ble Apex Court relied on by the petitioner.
19. We have already noticed the stand taken by the respondent in regard to what happened at the time of interview, namely, that the petitioner has not claimed the benefit of hill region candidate and the reply in rejoinder affidavit. We are, therefore, inclined to proceed on the basis that the petitioner has indeed not claimed the benefit of relaxation of height and, admittedly, not produced the certificate and has also not sought time for production of certificate. With regard to the allegations in paragraph no. 33 of the writ petition, learned counsel for the Commission draws our attention to the fact that the petition is filed through the father of the petitioner. In their affidavit supporting the writ petition, it is stated, inter alia, that paragraph nos. 1 to 38 are true to his personal knowledge partly. As far as the averments in paragraph no. 33 is concerned, which we have already extracted, it is not clear, as to whether this is meant to convey that the fact that the caste certificate is sufficient as what was mentioned at the stage of interview. On the other hand, in the counter affidavit, a specific case is set up by the Commission, namely, that petitioner has not claimed to be a hill region candidate at the time of interview nor sought time to produce the hill region certificate. This fact is also not traversed in the rejoinder affidavit. Therefore, we feel reinforced in 11 taking the view that this is a case, where the petitioner has not produced a separate certificate, apart from his caste certificate, which establishes that the petitioner belongs to the hill region and he did not claim the benefit of the said relaxation at the time of interview and, thirdly, we enter the finding that he did not also seek any time for production of the certificate. Having rendered these findings of fact, we will proceed to consider the case of the petitioner and other contentions of the petitioner.
20. The first contention, which we have to deal with, is that the Commission has not adopted any particular format for proving that the petitioner belongs to the hill region. In conjunction with the said argument, the petitioner also drew support from the caste certificate, which has been produced, to contend that a perusal of the contents of the caste certificate would establish that the petitioner belongs to hill region and there is no need for production of any further certificate.
21. A perusal of the caste certificate, which we have already adverted to, undoubtedly, does show that the petitioner has certified that he is son of Mr. Sunder Lal Muyal, resident of Village Sumari, Patti Katulsyun, Tehsil Srinagar, District Pauri Garhwal. The certificate is to the effect that the said person belongs to the Scheduled Caste. His sub-caste is "Shilpkar", which is recognized as Scheduled Caste. The purpose of production of this caste certificate is to claim the 12 benefit available to the members of the Scheduled Caste community. The attempt is to persuade the Court to hold that the Commission should have implied that he satisfied also the requirement that he belongs to the hill region as the Village is mentioned as Sumari and following in Tehsil Srinagar in District Pauri Garhwal, which is a hill region of Uttarakhand. In this regard, petitioner also seeks to buttress his case by pointing out that the benefit of height relaxation is given to people belonging to the hill region and the fact that petitioner may have been living at another place also will not be sufficient to take away the right which is granted by way of relaxation in height. We must also in this regard deal with the next argument, which is a cognate argument, namely, that the Government Order dated 16.01.1982 has nothing to do with the case at hand. The translated version of the said Government Order is made available for our perusal. It reads as follows:
"No. 256/18-Tech. Deptt.-2-81-2 (SG)/8 Dt. 16-01-82 From, Udai Prasad Singh, Joint Secretary, Govt. of Uttar Pradesh.
To, Secretary, Technical Education Board, Uttar Pradesh, Lucknow.
Education Section-(2) Lucknow Dated 16 Jan 1980 Subject-Reservation for Students of Hill Area in the Multi Trade Institutions situated in Hill area-Submission of domicile certificate by the students of hill districts of Uttar Pradesh.13
Sir, I have been director to refer the GO No. UO 473/18-Tech. Deptt.-2-400 ED/61 TC dt 11-01-82 regarding reservation for students of Hill area in admission in the institutions situated in Hill area. It is said in the GO that the benefit of reservation of Hill area will be available to those students only who are born there and got their minimum Prescribed Qualifying education there and during this period their parents lived in Hill area. In order to fulfill this condition each student has to submit compulsorily the domicile certificate along with the application which will be issued by the District Magistrate/ Additional District Magistrate/Sub Divisional Magistrate in the prescribed Proforma under his signature and seal.
The domicile certificate approved by the Government is enclosed for necessary action.
Sd/-
Udai Prata Singh Joint Secretary."
22. Thereafter, the Domicile Certificate reads as follows:
"Domicile Certificate.
(To be submitted by the candidates of Hill District of Uttar Pradesh) This certificate is to be signed by the District Magistrate/ Additional District Magistrate/ Sub-Divisional District Magistrate of the District where the student was born. The boundaries of each district of Dehradun, Almora, Nainital, Pithoragarh, Chamoli, Tehri, Garhwal and Uttarkashi are shown below where the candidate will be eligible for reservation as a domicile. I.................certify that Sri...........s/o Sri.............was born in Hill district of Uttar Pradesh as per the details given below. This is also certified that he has passed the 14 minimum prescribed qualifying examination for admission from Hill district and during this period his parents lived in Hill area continuously.
Dehradun entire Nainital and The entire area Chakrata Tehsil Garhwal of the district and Higher altitude including of Pithoragarh, of Rajpur area Kotdwar the Almora, situated above area above sub Chamoli, Tehri between Ganga mountain road. Garhwal and and Yamuna Uttarkashi rivers, Hill area of Mussoorie situated in North- East of Dehradun Tehsil Place..................... Place............... Place.............. Post Office............. Post Office...... Post Office...... District................ District........... District..........
Signature of Candidate Seal of Court Signature of DM/ADM/SDM Dated-"
23. Petitioner further claims that, petitioner has, in fact, secured a certificate, which is dated 29.07.2017. The English translation of the same reads as follows:
"Hill Area Domicile Certificate issued by Tehsildar Srinagar, District Pauri Garhwal District-Pauri Garhwal Application No. UK11HIL0937/ 170001740 Tehsil Srinagar Date of issue: 29th July, 2017 Certified that: Sri Swapnil Muyal Son of: Sri Sunder Lal Muyal Mothers Name: Devindra Muyal Village: Sumari Address: Sumari, Srinagar, Pauri Garhwal Tehsil: Srinagar Resident of Village: Sumari Patwari Circle: Katulsyun-3 District: Pauri Garhwal 15 Is Domicile of Uttarakhand It is also certified that (1) The resident of the above entire area (Garhwal/ Kumaon/Dogra/Maratha Sikkim) are consider for relaxation in height and chest for the recruitment of Para Military Forces of Government of India.
Sd/-
Tehsildar Srinagar Pauri Garhwal."
24. Mr. Rakesh Thapliyal, learned counsel appearing for the petitioner would also contend that there is no case for the Commission that the Commission has adopted the terms of the Government Order dated 16.01.1982. This is besides pointing out that, in the advertisement, it was not at all mentioned that the certificate is to be produced in the format, which is appended to the Government Order dated 16.01.1982.
25. The case of the Commission, on the other hand, is that certificates have been produced by others, who wish to claim the benefit and as an illustration of the same Annexure No. CA-3 a Certificate issued in favour of one Mr. Himanshu Kafaltiya is also produced.
26. We may notice, in fact, that the Government Order dated 16.01.1982 purports to provide for certificate to be procured by the students of hill area for admission to the Institutions situated in the hilly area. This is for the purpose of reservation. The actual Domicile Certificate, which we have referred to also, inter alia, provides that the certificate is to the effect 16 that the student is to be shown as born in a hill district of Uttar Pradesh as per the details, which are given below. It is also to be certified that he has passed the minimum prescribed qualifying examination for admission from the hill district and, during this period, his parents lived in the hill area continuously. The actual hill areas are specified in the certificate. In fact, many districts of Uttarakhand do not at all satisfy the requirement of it being in a hill area; though some of the districts are entirely hill areas and some others are partly so. It is for this purpose that it is so mentioned.
27. On the other hand, we noticed that the certificate, which is relied on by the Commission, refers to a Government Order, which is dated 16.07.1982. Also, the format of the certificate is different from the Domicile Certificate, which is annexed as a part of the Government Order dated 16.01.1982, which we have also referred to. We find that the following format is the format in which the person is claimed to have been given the certificate for claiming benefit of relaxation to a candidate from the hill region. It reads as follows:
"izek.k i= la[;k% UK11HIL0937/170001740 mRrjk[k.M ljdkj dk;kZy; rglhynkj }kjk iznRr ioZrh; {ks= fuokl izek.k i= ¼'kklukns'k la[;k 256@18 iz'kk0 f'k0&88&20 ¼,lch½@82 fnukad 16@07@1982 ds vk/kkj ij tkjh½ ftyk&ikSM+h x<+oky vkosnu i= la[;k UK11HIL0937/170001740 rglhy% Jhuxj tkjh fnukad% 29th July, 2017 izekf.kr fd;k tkrk gS fd Jh LofIuy eq;ky iq= Jh lqUnj yky eq;ky 17 ekrk dk uke nsfoUnz eq;ky xzke@eksgYyk@okMZ lqekM+h irk lqekM+h] Jhuxj] ikSM+h x<+oky rglhy Jhuxj fuoklh xzke@uxj ikfydk {ks= lqekM+h iVokjh {ks= dVwyL;wa&3 ftyk& ikSM+h x<+oky mŸkjk[k.M ds LFkkbZ fuoklh gSaA ;g Hkh izekf.kr fd;k tkrk gS fd& 1& mijksDr loZ {ks= ¼x<+oky@dqek;Ww@Mksxjk@ejkBk flfDde½ ds fuoklh Hkkjr la?k ds v)Z lSfud cyksa esa HkrhZ gsrq ÅapkbZ rFkk lhus ds eki esa NwV ds fy, fopkj.kh; gSA 2& ;g fgekpy izns'k@ysg o yn~nk[k@d'ehj ?kkVh@iwoksZRrj jkT;ksa dk fodkl gS rFkk Hkkjr la?k ds v)Z lSfud cyksa esa HkrhZ gsrq ÅapkbZ rFkk lhus ds eki esa NwV ds fy, fopkj.kh; gSA 3&;g tutkfr@vkfnoklh leqnk; dk gS rFkk Hkkjr la?k ds v)Z lSfud cyksa esa HkrhZ gsrq ÅapkbZ rFkk lhus ds eki esa NwV ds fy, fopkj.kh; gSA g0@& g0@& dsanz vkbZMh% sri1 rglhynkj Jhuxj Jhuxj ikSM+h x<+oky ikSM+h x<+oky"
28. The village of the petitioner is shown as Sumari. The address of the petitioner is shown as Sumari, Srinagar, Pauri Garhwal and against the column resident of Village, it is shown as Sumari. It is, thereafter, that it is stated that petitioner is having domicile of Uttarakhand. Lastly, it is certified that the resident of above entire area (Garhwal/Kumaon/Dogra /Maratha Sikkim) are considered for relaxation in height and chest for the recruitment of Para Military Forces of Government of India.
29. It is here that we must notice another argument of the petitioner, namely, that even this certificate is actually meant for the purpose of recruitment in Para Military Forces of the Government of India and it has nothing to do with the selection of the Deputy Superintendent in the State Police and, 18 therefore, there is all the more reason, production of such a certificate cannot be insisted upon.
30. In this regard, we must notice another contention advanced on behalf of the Commission. Learned counsel for the Commission would bring to our notice the factum of the application of the petitioner, which is made available to us. In the application form, it is pointed out by the Commission that the petitioner, for the purposes of communication, has given his address as 28/2, Laxmi Road, Dalanwala, Dehradun. The permanent address is also given as the same.
31. In answer to this contention, it is the case of the petitioner that the relaxation in height, which is given to a person from the hill area, is not premised on his being an actual resident of the hill area. What is important is that he should belong to that stock of persons, who originally belong, at any rate, to hill area. It is pointed out that for the purpose of claiming reservation in the Army, persons, though may not be actually residing in the hill area; but, whose ancestors belong to hill area and, having regard to the fact that height is essentially determined by genetic factors, the actual residence in the hill area cannot be treated as an indispensable requirement.
32. We must, at this juncture, have a look at the advertisement. The advertisement does not mention anything about production of any certificate. It only provides that, for the purpose of Deputy 19 Superintendent of Police, for persons belonging to the hilly area, there is a relaxation in the height as provided, namely, in place of 167.7 centimeters for the people in the plain area, it is 162.6 centimeters.
33. We must, at this juncture also, refer to the judgment of the Hon'ble Apex Court in the matter of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC
754. In the said case, the appellant, who was not selected as he had failed to submit the O.B.C. certificate alongwith the application form before the last date for submission of the application form, the Hon'ble Apex Court, inter alia, held as follows:
"14. The Division Bench of the High Court erred in not considering the decision rendered in Pushpa. In that case, the learned Single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC 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 Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned Single Judge in Pushpa also considered another judgment of the Delhi High Court, in Tej Pal Singh, wherein the Delhi High Court had already taken the view that the candidature of those 20 candidates who belonged to the SC and ST categories could not be rejected simply on account of the late submission of caste certificate.
15. The relevant paragraph from the judgment of this Court in Indiara Sawhney has been extracted in Pushpa along with the speech delivered by Dr Ambedkar in the Constituent Assembly and reads thus:
"9...'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 21 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. 701-02 (1948-1949).] 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 attach 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, insofar as 22 one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal."
16. In Pushpa, relevant paragraphs from Tej Pal Singh have also been extracted, which reads thus:
"11...'15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 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 he 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 30-6-1998 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 30-6- 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.23
16. 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 authorizing 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."
34. In paragraph no. 16, the learned counsel for the petitioner emphasizes the following sentence:
"If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage."
35. Therefore, he would submit that the same principle may be applied here in these facts, as height is a genetic quality.
36. We must, first of all, deal with the argument based on production of the certificate showing the 24 petitioner belonging to the Scheduled Caste community. The said certificate was meant only to establish that he belongs to the Scheduled Caste community. It may be true that, incidentally, there is reference to his place of residence as being a particular place and it could be deduced that he belongs to the said place and, therefore, it falls within the hill area and, still further, therefore, he could get claim of the benefit of relaxation in height. We are afraid that this argument of the petitioner cannot be accepted. The production of the said certificate is only for the particular purpose. Having regard to Annexure No. CA- 3, which is the Interview Programme dated 20.04.2017, the petitioner was clearly alerted to the need to produce certificate showing that he belongs to the hilly area. It is noteworthy that the interview took place almost after one month, namely, on 18.05.2017 followed by the physical test on the very next date on 19.05.2017. We have already rendered the finding that, on the basis of the pleadings, the petitioner, at the time when the interview took place, did not stake a claim for relaxation, that he did not produce the certificate showing that he belongs to hill area and what is more further that he did not even seek time to produce the said certificate. It is clear from Annexure No. CA-3 Interview Programme, which was announced, that the candidates, who wish to claim benefit of relaxation in height, were called upon to produce the certificate in the said regard at the time of interview for which nearly a month was given. There is no plea taken in the writ petition that any effort was made by the petitioner to 25 obtain any certificate in this regard, leave alone the certificate, which was mandated in terms of the order dated 16.07.1982 (it may be noticed that, in regard to Annexure No. CA-3, which is the certificate produced by another person, the order, which is referred to is dated 16.07.1982 and the learned counsel for the Commission would submit that the order dated 16.01.1982 in paragraph no. 19 of its counter affidavit is only a mistake).
37. The fact that the advertisement did not refer to the Government Order relied on by the Commission, in our view, may not be material. In this regard, we may notice paragraph no. 29 of the counter affidavit, which reads as follows:
"29. That in reply to the contents of paragraph no. 12 and 13 of the writ petition it is stated prior to formation of Uttarakhand different format of certificate relating to reservation were prescribed. However, after creation of State of Uttarakhand the government has issued certain government orders granting Vertical and Horizontal Reservation to the candidates of Uttarakhand and for that purpose the authorities concerned are required to make verification regarding permanent resident and Cast of candidates before issuing certificates. The government has also prescribed new format of the certificates. Since some candidates appearing in competitive examination were producing certificates prior to the formation of Uttarakhand as such the format of new certificates were also published in the advertisement. Since no fresh government order or format for 26 hill region certificate was issued and prescribed as such the same was not published in advertisement. However, the candidates were informed regarding compulsorily submission of the same at the time of interview for seeking benefit of said certificate."
38. Therefore, the case of the Commission appears to be that in regard to proving that a person belongs to a hill area, there was no new format issued and prescribed and, therefore, it was not published in the advertisement. It does not say that there is no format prescribed. The format, apparently, was the format, which was prescribed in terms of the Government Order dated 16.07.1982 and the proof of the same is the production of such certificate by another person, which has been produced, as we noted, by the Commission.
39. The argument that the perusal of the certificate would show that it is meant for appointment in the Para Military Forces in the Government of India also does not appeal to us. It may be true that it is generally meant for the said purpose; but, that would not preclude the same format being used also for the purpose of claiming the relaxation for persons, who hail from the hill area. Therefore, we have no hesitation in rejecting the said contention.
40. As regards the averments, which have been made in the supplementary affidavit, which we have extracted, namely, that some candidates were provisionally selected and they were given time for 27 production of documents like Domicile Certificate, Caste Certificate etc., the stand of the respondent Commission is contained in paragraph no. 20 of the counter affidavit, which reads as follows:
"20. That so far the contention of petitioner regarding submitting of certain certificate after interview is concerned those candidates have claimed at the time interview that they possess such certificate and sought time to produced the same as such their result was declared as provisional subject to submission of such certificate and time was granting to them to submitted such certificate. Since the petitioner did not claimed to be a candidates of hill region not sought time for submitting certificate as such not considered candidate of hill region.
41. It is reiterated by the learned counsel for the Commission also, namely, that if the petitioner had also claimed benefit of relaxation in height and also sought time, it would have been granted. We have already rendered the finding that petitioner neither claimed benefit nor produced certificate or claimed time for production of certificate. Therefore, the petitioner cannot be permitted to claim benefit of the same.
42. As far as the judgment of the Hon'ble Apex Court, which we have made reference to is concerned, we must notice that the said case related to the vertical reservation in the form of reservation available to the member of the Scheduled Caste community. In the said case, apparently, what appealed to the Hon'ble 28 Apex Court was that the person concerned belongs to a community which was subjected to injustice for several centuries and it is meant to removing their backward stature by way of discrimination in their favour by way of reservation. As far as this case is concerned, it is not a case of vertical reservation. Apparently, this is a relaxation, which will appropriately fall under Article 16 (1) of the Constitution of India. Secondly, this relates to relaxation in height and it is a matter, which is to be claimed at the time of interview or, at least, according to the learned counsel for the Commission, at the time of physical fitness test. Petitioner has not claimed benefit of the same either at the time of interview or at the time of physical test. In fact, petitioner has himself got a certificate in the format within a period of two days on 29.07.2017. Therefore, if the petitioner had made the necessary inquiry and effort, there would have been no difficulty to obtain the said certificate.
43. The argument of the petitioner that the Commission did not ask him to produce it in this format does not merit consideration. This is for the reason that, by the Interview Programme published on 20.04.2017, candidates were asked to produce the certificate and the fact that the Government Order, in question, was not cited or the exact format was not published would not mean that the candidate is not to comply with the condition. It is not as if a condition, which is impossible of compliance, was stipulated by the Commission. Having not made the effort to make the compliance, it does not lie in the mouth of the 29 petitioner to contend that the certificate in the said format was not prescribed.
44. Thus, we see no merit in the case and the petition is only liable to be dismissed.
45. Having made this determination, we would think that the Commission would be advised to be clearer, when it directs production of such certificates. It would be highly desirable, in the interest of justice, that candidates are informed with clarity the contents of the certificate and if the certificate is to be obtained in a particular form or under a particular Government Order, a reference is made to the said details.
46. Subject to these observations, the writ petition will stand dismissed without any order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 28.11.2017 Arpan