Allahabad High Court
Rajesh Singh Rana vs State Of U.P. And Others on 27 October, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.26 Civil Misc. Writ Petition No. 56008 of 2006 Rajesh Singh Rana Vs. State of U.P. and others Hon'ble Sudhir Agarwal, J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddhartha Khare for the petitioner, learned Standing Counsel for respondents No.1 to 3 and Sri M.A.Qadeer, learned Senior Advocate for respondent No.4.
2. As agreed and requested by learned counsel for the parties, the writ petition has been heard and decided under the rules of the Court at this Stage.
3. The facts in brief giving rise to the dispute in the present writ petition are that the respondent no.4 i.e. U.P. Public Service Commission (hereinafter referred to as "Commission") published an advertisement No.A-1/E-1/2001 notifying Combined State/Subordinate Service (Preliminary) Examination, 2001 for several categories of posts including 57 posts of Executive Officers, Nagar Panchayat. It is a Group "C" post as per the categorization made by the U.P. Government. Seven posts of Executive Officers, out of 57, were notified as 'reserved' for the candidates belong to the category of 'Scheduled Tribes'. The petitioner belongs to "Tharu" caste which was notified as Scheduled Tribe in the undivided State of U.P. and was issued a caste certificate dated 13th April, 2000 by Tehsildar Khateema. District Udham Singh Nagar, the native place of the petitioner. The petitioner pursuant to the said advertisement applied and was allotted Roll No.109643. The preliminary examination was held on 3rd June, 2001 which the petitioner qualified as per the communication dated 2nd July, 2001. Main examination was held on 28th September, 2001 and onwards wherein also the petitioner qualified and thereafter he was interviewed on 7th September, 2002. It appears that the Commission required the petitioner, at the time of interview, to submit a fresh caste certificate issued by an authority in the State of Uttar Pradesh after its reorganization into State of Uttaranchal and State of U.P. pursuant to State Re-organization Act, 2000. The petitioner received such certificate at Gorakhpur as his father at that time was posted thereat and send it to the respondent No.4 vide his letter dated 17th October, 2002. Final result was declared in the daily newspapers Dainik Jagran dated 28th November, 2003 wherein the petitioner's name and roll number was also mentioned in the list of the candidates selected for the post of Executive Officer, Nagar Panchayat. However, his selection was shown 'provisional'. The petitioner thereafter received a letter dated 12th January, 2004 issued by the Section Officer of the Commission stating that he has not submitted requisite caste certificate though he had assured to do so by 20th October, 2002. therefore he should furnish such certificate by 30th January, 2004, else his candidature shall be cancelled. Though the petitioner had already sent the caste certificate vide his letter dated 17th October, 2002 yet he applied for a fresh caste certificate and sent a letter dated 22nd January, 2004, by Speed Post, to the Commission, stating that the process of preparing caste certificate is going on and as soon as it is available, shall be submitted, therefore, the time provided in the letter dated 12th January, 2004 be extended. The petitioner's father in 2004 was posted at Gonda therefore the petitioner applied for caste certificate before Tehsildar, Gonda. He was issued such certificate on 10th June, 2004, copy whereof is on record as Annexure 9. The petitioner claimed that he tried to submit said certificate in the office of Commission but the Commission refused to accept and ultimately it was sent by Speed Post along with letter dated 2nd August, 2004 (Annexure 10 to the writ petition). Thereafter the petitioner repeatedly requested the respondents to clear his selection and recommend his name for appointment but having failed to receive any reply, filed the present writ petition seeking a mandamus commanding the respondents to appoint him as Executive Officer, Nagar Panchayat in pursuance of his selection in U.P. Combined/Subordinate Services Examination, 2001 within such period as specified by this Court treating him as a Scheduled Tribe candidate. Subsequently by amendment, prayer No. (iv) has been added and thereby the petitioner has sought a writ of certiorari for quashing the order dated 1st April, 2004 of U.P. Public Service Commission of which the petitioner claims to have acquired knowledge from the counter affidavit filed by the Commission.
4. On behalf of the respondent no.3, a counter affidavit has been filed stating that the recommendation, which the State Government received from the Commission included the name of the petitioner though the list issued by the Commission which contained 57 names. The petitioner's name was mentioned under the 'Scheduled Tribe' Category at serial No.1 with the prefix "Pro" that is 'provisional'. However, the applications, which were furnished to the Government by the Commission for initiating process of appointment did not include petitioner's application. It is also stated that as per the information received from the Commission, the candidates including the petitioner who had not submitted original copy of certificate, were mentioned as 'provisional candidates' and unless they fulfill the requirement, they cannot be considered for appointment. The Government says that it is only when they receive full record from the Commission, steps for appointment can be taken and not otherwise.
5. On behalf of the Commission (the respondent No.4) a detailed counter affidavit has been filed stating that at the time of interview when the certificates of the petitioner were checked it was found that he had produced caste certificate issued by Tehsildar Khateema, Udham Singh Nagar, Uttaranchal, hence he was provisionally interviewed with the condition that he shall produce Scheduled Tribe certificate issued in the State of U.P. by 20th December, 2002 but he could not comply with the said requirement. Thereafter time was extended upto 30th January, 2004 and here also he failed. Therefore the Commission did not consider the petitioner as a 'Scheduled Tribe' candidate and treated him as general candidate. It is further stated that after a long time the petitioner produced a caste certificate duly issued by the office of District Magistrate, Gonda but therefrom it came to the notice of the Commission that he has given two different permanent address: (1) Gram Charubeta, Tehsil Khateems, District Udham Singh Nagar, Uttaranchal. (2) Railway Colony, Kauabagh, Bungalow No. 669A, Road No.6, Gorakhpur. Further, the petitioner also applied pursuant to PCS (Pre) Examination 2003 and being successful in Pre and Main, was called for interview on 08.07.2006. At the time of interview it was found that the petitioner, this time, had applied giving his candidature as 'Scheduled Tribe' candidate from Gonda District. The Commission having noticed these differences decided to make enquiry about the truthfulness of caste certificate of 2001 and 2004 from the District Magistrate, Udham Singh Nagar and District Magistrate Gonda and both have verified the same to be correct. The District Magistrate, Udham Singh Nagar has also reported that the petitioner belongs to Tehsil Khateema, Uttaranchal.
6. It is, therefore, said that in view of the above contradictory facts, the Commission could not act upon the claim of the petitioner by treating him as a Scheduled Tribe candidate. Further, since his native place is in the State of Uttaranchal therefore, in a selection made after reorganization of the State of U.P., the caste certificate issued by the authorities in the State of Uttaranchal is not admissible and since admittedly the petitioner's native place is Khateema in the State of Uttaranchal, he cannot claim benefit of Scheduled Triibe reservation in the State of U.P.
7. Sri Ashok Khare, Senior Advocate, contended that the State of Uttaranchal carved out from the State of U.P. pursuant to Uttar Pradesh Re-organization Act, 2000 (in short 'the Act 2000') w.e.f. 9th November, 2000. There was no separate notification in respect to the State of Uttaranchal issued immediately after creation of the said State and on the contrary, the Act 2000 provided that the laws etc., as were applicable in the State of U.P., will continue till a different provision is made for the State of Uttaranchal. Similarly, after creation of State of Uttaranchal, the notifications pertaining to reservation i.e. for Scheduled Caste and Scheduled Tribe and Other Backward Classes were not notified afresh immediately after 09.11.2000 taking away the caste, if any, which were earlier in the areas now part of State of Uttaranchal. The notification as issued prior to 09.11.2000 in their entirety continued to apply to the State of U.P. even after the reorganization of the State of U.P. and the petitioner's caste was included therein and duly shown as a Scheduled Tribe.
8. It is not in dispute that petitioner caste is the same which he claims. It is also not disputed that it did find place in the Presidential notification issued in respect to the Scheduled Tribes of the State of U.P., as was available in 2001, which was the same and no new notification had been issued to take away Scheduled Tribes of Hill areas, which became part of the State of Uttaranchal w.e.f. 09.11.2000. The petitioner's father was in Railway service and therefore, whenever he was required to produce a caste certificate, after the year 2001, at the place his parents were residing, he applied in the local office thereof and since his caste was verified from the Presidential notification, the caste certificate was issued to him by local authorities and the same cannot said to be in any manner illegal or contrary to law. It is, therefore, submitted that the Commission acted wholly illegally by denying the status of Scheduled Tribe to the petitioner. He is selected in that category and therefore, the Commission should be directed to send all requisite documents to the State Government for appointment of the petitioner as Executive Officer.
9. Sri Khare also placed reliance on the Apex Court decision in Sudhakar Vithal Kumbhare Vs. State of Maharashtra & Ors. (2004) 9 SCC 481 which involved a similar controversy arose due to reorganization of the State of M.P. and State of Maharashtra.
10. Sri M.A.Qadeer, on the contrary, stated that for recruitment in the State of U.P., the Commission is supposed to give the benefit of reservation to only those categories who are in the list of the reserved category in the State of U.P.. In the year 2001, the petitioner's native place became part and parcel of a different State i.e. State of Uttaranchal and therefore, the petitioner was rightly denied status of Scheduled Tribe in the selection in question. He placed reliance on the Apex Court decision in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & Another Vs. Union of India & Another, 1994(5) SCC 244. He also placed before this Court a resolution passed by the Commission in its meeting dated 18th January, 2003 that the benefit of reservation shall be admissible only to the residents of the State of U.P. Sri Quadeer also placed reliance on the Apex Court decision in U.P. Public Service Commission, Allahabad Vs. Sanjay Kumar Singh AIR 2003 SC 3626.
11. From the rival submissions advanced by learned counsel for the parties, in my view, the only question up for consideration is "Whether reorganization of the State of U.P. would immediately dis-entitle the persons having their native place in the area, which is now part of the State of Uttaranchal. The benefit of reservation in the State of U.P., even if no notification otherwise has been issued by the competent authority."
12. It is not disputed that the petitioner belong to Tharu caste. The presidential notification continued to operate in the State of U.P. after its reorganization and it mention Tharu caste in the category of Scheduled Tribes. In the State of Uttaranchal also the notifications issued in respect to the State of U.P. continued to operate till new notifications are issued for that State. It is also not disputed that before such reorganization on 09.11.2000 the petitioner was residing in different parts of State of U.P., his father being an employee of Indian Railway in North Eastern Zone. Here is not a case where a person has migrated from one existing State to another existing State and is claiming benefit in the State where he has migrated with regard to reservation which is so notified in the list of reserved class categories in the former State wherefrom the incumbent has migrated but not in the State he has migrated. The two decisions cited by Sri Quadir in fact involve the question where the migration, as stated above, took place. This would be evident from the decision in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra (supra) which reads:
"On a plain reading of Clause (1) of Articles 341 and 342 it is a manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under Clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under Clause (1), shall not be varied by any subsequent notification. The castes or tribes have to be specified in relation to a given State or union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. Considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non-est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution."
13. In my opinion the decision of the Apex Court in Sudhakar Vithal Kumbhare (supra) is more apt to the facts of this case, apply and cover the situation and the controversy engaging attention of this Court in the case in hand. Having considered the decision in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra (supra) the three Judge Bench of the Apex Court, in para 5 of the judgment, said:
"But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and denied facilities for development and growth in several States. They are required protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantageous and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in the Chhindwara region, a part of which, on States' reorganization,has come to State of Maharashtra, was entitled to the benefit of reservation? It is one thing to say that the expression "in relation to that State" occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in other State whose Governor has not been consulted; but it is another thing to say that when an area dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of the Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of States' Reorganization Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the District of Chhindwara and the part of area of Chandrapur at one point of time belonged to the same region and under the Constitutional Scheduled Tribe Order 1950 as it originally stood the Tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganization might have agreed for inclusion of the said Tribe Halba/Halbi as a Scheduled Tribe in the State of Maharashtra having regard to the said fact in mind."
14. What has been observed by the Apex Court in the circumstances arising due to the reorganization of the State of M.P. and State of Maharashtra, would equally apply to the case in hand also. It is not in dispute that the petitioner had submitted along with his application form the caste certificate which he had received from his native place at Khateema. To find out correctness of the fact as to whether petitioner sent another caste certificate in October, 2002, it would be appropriate to reproduce the averments made in para 15 of the writ petition and its reply in para 13 of the counter affidavit of the Commission:
"15. That on 17.10.2002 the petitioner sent a copy of scheduled tribe certificate already submitted by the petitioner and referred to above as Annexure 1 also with a covering letter dated 17.10.2002 by registered post. A true copy of the covering letter dated 17.10.2002 is being enclosed as Annexure 5 to this writ petition."
"13. That in reply to the contents of paragraph Nos.8 to 18 of the writ petition, it is stated that the petitioner in his application for pre Exam. 2001 with Roll No.109643 has mentioned that he belongs to ST category of U.P. so he was provisionally allowed to appear in pre examination. On the basis of his claim he was declared successful in the pre as well as in the main examination. But at the time of interview i.e. on 7.9.2002 the certificates of the petitioner were thoroughly checked and it was found that he has produced the caste certificate issued by Tehsildar Khateema, Udham Singh Nagar, Uttaranchal dated 13.4.2000. The petitioner was provisionally interviewed with the condition that he will produce his ST certificate issued from U.P. by 20.10.2002. A copy of final result is being filed herewith and marked as Annexure CA-4 to this counter affidavit. The final result declared and the petitioner was selected provisionally for the post of Executive Officer, Nagar Panchayat on 12.1.2005. A copy of list of selected candidates is being filed herewith as Annexure CA-5 to this counter affidavit. An office memo was issued to the petitioner giving additional time up to 30.1.2004 with the condition that if the ST caste certificate is not produced by then, his candidature will be cancelled and no additional time will be given. Inspite of this the petitioner could not produce the require caste certificates. But produced the ST certificate issued from the office of D.M. Gonda on 10.6.04 while he has written to permanent address in his PCS application form. A copy of application form of petitioner is being filed herewith and is marked as Annexure CA-6 to this counter affidavit and had not mentioned Gonda neither permanent nor postal address."
15. In the entire paragraph 13 there is not even a whisper that the respondent commission did not receive the certificate sent to them along with the covering letter dated 17.10.2002 by registered post. In the absence of any denial, this Court has no reason to disbelieve the averments of the petitioner.
16. Be that as it may, it is further evident when the petitioner was again required by letter dated 12th January, 2004 to furnish another caste certificate, he sent it by speed post on 02.8.2004, as stated in para 21 of the writ petition, which has also not been, as such, denied by the respondents Commission in para 14 of the counter affidavit. For ready reference the aforesaid two paragraphs are reproduced as under:
"21. That a copy of the aforesaid scheduled tribe certificate issued on 10.6.2004 was tendered by the petitioner before the Public Service Commission, U.P. in the Examination Section on 11.6.2004, 12.7.2004 and 31.7.2004. However the certificate so tendered by the petitioner was not received in the Examination Section of Public Service Commission, U.P. Faced with the aforesaid situation, the petitioner sent copy of scheduled tribe certificate dated 10.6.2004 along with a covering letter dated 2.8.2004 by the speed post. A true copy of the covering letter dated 2.8.2004 along with the receipt of the speed post is being enclosed as Annexure 10 to this writ petition."
"14. That, in reply to the contents of paragraph no.19 to 22 of the writ petition, it is stated that the said matter of petitioner was put up before the Commission. The Commission has decided that as the petitioner has not submitted his ST caste Certificate within time, so he should not be given the benefit of ST Category of U.P. and he should be treated as general candidate. A copy of order dated 1.4.04 is being filed herewith and is marked as Annexure CA-7 to this Court Affidavit. When his record as a general candidate was checked it was found that the petitioner has secured 780/1700 while last selected candidate in the General Category has obtained 1022/1700 marks. Thus the petitioner could not be allotted any other post due to high merit in general category. The petitioner has claimed to have given several representations for his name to be recommended to Director Local Bodies, but those representations were considered to be time barred, hence infructuous."
17. The Commission, therefore, on its part has apparently acted in sheer negligence and arbitrary manner and without caring to look into its own records. It appears that in a mechanical way it continued to ask the petitioner to submit caste certificate, one after the other and without taking any appropriate decision into the matter, thereby denied the petitioner a valuable right of earning livelihood by getting employment on a post under the State Government. This Court is constrained to observe that unmindful and careless functioning on the part of the Commission has caused an unemployed citizen of this country denial of earning his livelihood as also the enjoyment of status in society for almost six years, inasmuch as, the list of other candidates admittedly was sent in the year 2004 to the State Government and the candidates were appointed accordingly leaving the petitioner to face an avoidable litigation on the part of the Commission. The law laid down by the Apex Court in Sudhakar Vithal Kumbhare (supra) was already available as the case was decided on 18th November, 2003 and had the Commission taken a bit more care, it could have saved the petitioner from lot of harassment besides the trauma and hardship, he and his family, may have suffered on account of deprivation of employment under the State for no fault on the part of the petitioner.
18. This Court may not be capable to restore back the actual loss suffered by the petitioner in the last six years but can mitigate the same by awarding an exemplary cost against the Commission, more in the nature of being compensatory than penal. The writ petition is allowed. The U.P. Public Service Commission (respondent No.4) is hereby directed to send requisite documents to the State Government, necessary for the appointment of the petitioner. The State Government is directed to take appropriate steps thereafter in accordance with law for appointment of the petitioner without any further delay. In case no other legal infirmity is found, and the petitioner is appointed, he shall be deemed to be appointed from the date, persons lower in merit of the petitioner were appointed, with all consequential benefits including pay fixation, except salary, which shall be payable from the date the petitioner joins the service.
19. The U.P. Public Service Commission shall take requisite steps, as directed above, within 15 days from the date of production of a certified copy before it. After receiving the requisite documents, the respondents no.1 to 3 shall complete their task within two months thereafter. The petitioner shall also be entitled to cost which is quantified to Rs.50,000/- against the respondent No.4.
Dt.27.10.2010 KA