Anil Kumar Srivastava vs State Of U.P. And Others
2018 Latest Caselaw 2174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                                                                  Reserved on 8.5.2018                                                                                                      Delivered on 27.8.2018
 
Case :- WRIT - A No. - 22330 of 2003
 
Petitioner :- Anil Kumar Srivastava
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Pankaj Srivastava,Ashok Khare,B.S. Yadav,D. Kumar,Krishan Ji Khare,P.K.Verma,R.C. Yadav,Rakesh Pande,Satya Deo Ojha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Rakesh Pande, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel.

The present writ petition has been filed with the prayer for mandamus commanding the respondent to grant appointment to the petitioner on the post of Excise Constable in the Excise Department being a candidate under the category of Dependents of Freedom Fighter pursuant to the Advertisement No. 1370/Upa,Va/2003-03/As,si/Bharti/dated 2.9.2002 issued by the Deputy Excise Commissioner, Varanasi Range, Varanasi.

By means of the amendment, further relief of mandamus has been sought commanding the respondents to appointment the petitioner on the aforesaid post pursuant to a subsequent advertisement dated 25.3.2003, wherein 2% reservation under Freedom Fighter quota had been applied pursuant to the Government Order dated 4th May, 1995 issued by the State Government.

Brief facts relevant to decide controversy at hand are that the petitioner has submitted an application form pursuant to the aforesaid advertisement published on 4.9.2002 to fill up 60 posts of Excise Constable of all social reservation category namely General, Backward Classes, S.C. & S.T. The petitioner had applied being in the category of General candidate. However, he submits that being dependent of Freedom Fighter, he was entitled for reservation of the said category.

It is contended that in the application form submitted on 10.9.2002, the petitioner has described himself being dependent of Freedom Fighter in the relevant column no. '8', (wherein description of reservation category of the candidate was required to be filled up). The averments in this regard have been made in paragraph '7' of the writ petition. He was issued an admit card with Roll No. '3584' and had appeared in the physical test conducted on 9.10.2002. Having qualified in the physical test, he appeared in the interview held on 10.1.2003 at the office of respondent no. 2 and successfully completed all the formalities.

The final result was declared on 24th January, 2003 but the name of the petitioner did not find place in the select list. Aggrieved, he filed a representation before the respondents on 29.1.2003 making query as to why he was not selected. Reminders were sent but no response was received, hence this writ petition was filed with the contention that the respondent no. 3 was under obligation to apply the horizontal reservation quota of Freedom Fighter category. The petitioner being only candidate in the said category was entitled for appointment. The action of the respondent in not granting him appointment to the post of Excise Constable is, therefore, illegal and contrary to the mandate of U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended by 1997 Act.

On presentation of the writ petition, a counter affidavit dated 16.10.2002 was filed on behalf of the respondent nos. 1 to 3.

A categorical stand has been taken therein that the advertisement dated 2.9.2002 was issued pursuant to the Government Order dated 24.8.2002 which provided a break-up of the posts of Excise Inspector as per the social reservation category i.e. General, O.B.C., S.T. and S.T. There was no direction to apply reservation quota in horizontal category. As no post was reserved for the dependents of Freedom Fighter category and hence there was no question of application of the said reservation. Moreover, the petitioner attained lower marks than the last selected candidates in the General category and as such, he could not be given appointment.

The copy of the Office Order dated 29th August, 2002 issued from the office of the Excise Commissioner, U.P. pursuant to the Government Order dated 3.8.2002 has been filed as Annexure 'C.A.-1' to the counter affidavit. A perusal thereof indicates that reservation in any of the horizontal category was not applied to the post advertised under the advertisement in question.

In rejoinder, though a stand has been taken that the respondent had committed gross illegality in not granting reservation under the horizontal category of physically handicapped, dependents of Freedom Fighter etc., in terms of the Act, 1993 as amended by U.P. Act No. 6 of the Act, 1997, but the selection and the final result declared on 24th January, 2003 for 70 posts of Excise Inspector has not been challenged at any point of time.

It appears that during previous hearing of the matter, objections were raised by the learned Standing counsel regarding entitlement of the petitioner for the benefit of the said category on the ground that certificate appended by him as Annexure-'2' to the writ petition is of a date subsequent to the selection.

Resultantly, a supplementary affidavit dated 26.2.2006 was filed by the petitioner stating therein that the petitioner was possessed of a certificate issued by the District Magistrate, Ghazipur in the month of July, 1994 but the original certificate was attached with the application form dated 10.9.2002 submitted by the petitioner. As the petitioner did not possess the original certificate, he applied for certificate which was issued on 12.3.2003, appended with the writ petition as Annexure '2'.

In the column '8' of the application form, the petitioner had clearly mentioned that he belongs to the reserved category of dependents of Freedom Fighter. In the counter affidavit, the respondent did not take a stand that the petitioner does not belong to the said category and, therefore, they cannot now turn around to say that since the certificate possessed by the petitioner is of later date i.e. 12.3.2003 and the same was not appended with the application form submitted on 10.9.2002, the petitioner cannot be given benefit of the said category.

In reply to the said averments, in the supplementary counter affidavit filed on 9th March, 2006, it is contended by the respondents that in view of own admission of the petitioner that the application form dated 10.9.2002 was submitted without enclosing certificate of being dependent of Freedom Fighter, there was no occasion for consideration of his candidature under the said category.

The production of certificate at a later date would have no significance and impact on the selection process. The averments in paragraph '4' of the supplementary counter affidavit have been denied in paragraph '3' of the supplementary rejoinder affidavit filed by the petitioner in the month of March, 2006.

The averments in paragraph '3' of the said supplementary rejoinder affidavit are relevant to be quoted below:-

"3. That, the contents of paras 4,5 and 6 of the Supplementary Counter Affidavit are incorrect misleading hence denied and in reply the averment made in para 2 of the Supplementary Affidavit are reaffirmed. It is further submitted that it is wrong to say that the applicant submitted his application dated 10.9.2002 without enclosing certificate for dependent of freedom fighter. It is submitted before this Hon'ble court that the petitioner submitted the certificate of dependent of freedom Fighter which was issued by the District Magistrate Ghazipur of the date of July, 1994 which is filed as Annexure-1 to the Supplementary Affidavit. It is further submitted that the petitioner has already made this averment in paragraph no. 6 and 7 to the writ petition which has not been denied by the respondent in their Counter Affidavit. The respondents have never objected earlier that there is no certificate attached with the application form. The petitioner has mentioned in his application form against column.8. "Swantrata Sangram Senani Aashrit", through he has not mentioned against column.12 about the enclosure. The mistake was on part of the petitioner which is regretted. It is further submitted that the respondents have neither asked for the certificate at any point of time, or they would have rejected the form on this ground alone. The petitioner appeared in physical test and also in interview, but the respondents did not ask for certificate of dependent of Fighter of Freedom."

It would be relevant to note that in another supplementary counter affidavit dated 16.9.2013, the respondents have denied the claim of the petitioner with the assertion that he did not possess the requisite certificate of dependents of Freedom Fighter category either at the time of submission of application form or on the date of interview. The certificate appended as Annexure '2' to the writ petition is dated 12.3.2003 and, therefore, he cannot seek selection on the post of Excise Inspector on the ground that he belongs to the category of dependents of Freedom Fighter. These averments are again denied with the reiteration of assertion made in the writ petition and the rejoinder affidavit and supplementary rejoinder affidavit.

The petitioner further seeks to submit that the respondent cannot be permitted to take a contrary stand to what has been taken in the counter affidavit filed on 16.10.2003.

Submission is that once the respondents had admitted that they did not apply horizontal reservation quota, they cannot be permitted to take a contrary stand to say that the benefit of the category of dependents of Freedom Fighter had not been provided since the application form filled by him was not accompanied by the certificate of the said category.

Sri Rakesh Pande, learned counsel for the petitioner placing reliance upon the judgment of the Apex Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others1 submits that the issuance of certificate of being dependents of Freedom Fighter category is only recognition of the status acquired by the petitioner by birth. The submission of certificate of the said category at the subsequent stage of selection, would, therefore, not disentitle the petitioner from getting benefit of the same. In other words, it is sought to be submitted that the petitioner was possessed of the certificate of dependents of Freedom Fighter on the date of submission of the application form i.e. 10.9.2002. It is wrong on the part of the respondents to say that the said certificate was not appended with the application form.

The averments in paragraphs '6' and '7' of the writ petition have been reiterated by learned counsel for the petitioner to impress upon the Court that a categorical statement has been made in the writ petition itself that the petitioner had applied as a candidate belonging to the dependents of Freedom Fighter category while submitting his application form. The said averments have not been denied in the counter affidavit filed on 16.10.2003. At no point of time, the respondent had taken a stand that the petitioner did not attach the certificate of dependents of Freedom Fighter with the application form.

In column '8' of the application form, the petitioner has categorically mentioned his category as "Swatantrata Sangram Senani Aashrit" though in the column of the enclosure namely column no. '12', he has not mentioned the details of the enclosure appended with the application form.

The petitioner has appeared in the physical test and interview i.e. both process of selection but the respondent did not ask for the certificate of dependent of Freedom Fighter at any point of time.

The submission is that since the respondent did not apply reservation of dependents of Freedom Fighter category, there arose no occasion for the petitioner to submit the certificate of that category. The respondent, therefore, cannot be permitted to say that they did not grant benefit of reservation of the said category as the application form filled by the petitioner was not accompanied by the certificate of the said category.

Submission is that since the petitioner possessed the certificate of Freedom Fighter category on the date of selection, the original certificate being appended with the application form, the subsequent certificate, therefore, cannot be considered to deny benefit of reservation of the dependents of Freedom Fighter category. Even otherwise, the respondents have committed an illegality in holding the selection process without applying reservation of horizontal category. As the mistake is on the part of the respondents, they cannot be allowed to take benefit of the same.

With reference to an advertisement issued on 25.3.2003, it is contended that 2% Freedom Fighter quota has been applied in the said advertisement and the petitioner is, therefore, entitled for appointment against the post advertised under the said notification.

Learned Standing Counsel, on the other hand, placing reliance upon the averments made in the affidavits filed on behalf of the respondents has submitted that there was no occasion for granting appointment to the petitioner as he has failed to establish that he possessed certificate of reserved category and appended the same with the application for consideration. In so far as the reservation position applied to the advertisement dated 4.9.2002, it is admitted that the horizontal reservation quota as per the U.P. Act No. 4 of 1993 (amended by U.P. Act no. 6 of 1997) had not been applied with regard to the selection in question.

As per the U.P. Act No. 4 of 1993 as amended by U.P. Act No. 6 of 1997 and U.P. Act No. 29 of 1999, the State Legislature has provided reservation in public services and posts at the stage of direct recruitment to the extent of 2% of vacancies for dependents of Freedom Fighter.

A bare reading of Section 3(1)(i) of the Act, 1993 as it stands after 1997 and 1999 amendments makes it clear that in all public services and posts, the horizontal reservation of dependents of Freedom Fighter has to be applied at the stage of issuance of the advertisement, inasmuch as, the process of selection in the matter of direct recruitment starts from the date of advertisement. The U.P. Act No. 4 of 1993 has been promulgated by the State Government on 29th December, 1993 with object to provide for the reservation of posts in favour of physically handicapped, dependents of freedom-fighter and ex-servicemen etc.

The Act has been given force w.e.f. 11th December, 1993. The "dependents of Freedom Fighter" as per Section 2(b) of the Act includes grandson of a Freedom Fighter which has further been defined under clause (d) of Section 2 of the Act. The power of State Legislature to promulgate the said Act flows from Article 15(4) readwith Article 16(1) of the Constitution of India.

Thus the mandate of the said Act to provide for reservation in the aforesaid category cannot be diluted by the act of the executives.

	The omission of the respondents in applying the reservation for dependents of Freedom Fighter, commonly known as "horizontal reservation" is writ large on the face of the record. They had erred in                 non-application of the said reservation while issuing advertisement dated 4.9.2002 for the post of Excise Constable.
 
	Having found error in the advertisement issued by the respondent for filling up the public post in the State of U.P., the question arises what relief can be granted to the petitioner/applicant seeking appointment pursuant to the said advertisement.
 
	Admittedly, the petitioner herein had applied with open eyes against the advertisement which did not contemplate horizontal reservation for dependents of Freedom Fighter category.
 

A careful perusal of the notification dated 2.9.2002 issued from the office of the Deputy Excise Commissioner, Varanasi Region, Varanasi published on 4.9.2002 indicates that total 60 posts of Excise Inspector were advertised with break-up of vacancies in four social reservation categories i.e. General, O.B.C., S.C. and S.T. The format of the application appended with the advertisement notification shows that a candidate was required to submit caste certificate issued by the competent authority. This advertisement nowhere says that the horizontal reservation for physically handicapped, dependents of Freedom Fighter and Ex-servicemen would be granted within the meaning of the Act, 1993 amended by 1997 and 1999 Acts.

In a case of direct recruitment where the process of selection begins with the issuance of advertisement, the reservation position (quota) has to be clearly narrated in the advertisement so as to give opportunity to all applicants to seek benefit thereof. Any general advertisement, except for any special drive, which does not specify a social reservation quota or special reservation (horizontal reservation), as applicable in the State of U.P. would be contrary to the mandate of the Act namely the Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Others Backward Classes) Act, 1994 read with U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (as amended by 1997 and 1999 amendments Act). The entire advertisement can be quashed in case of any challenge at the appropriate time.

However, once a candidate has applied against an advertisement with open eyes and participate in the selection process without raising any challenge to the advertisement (i.e. first stage of the recruitment), having failed in the selection, he cannot be permitted to challenge the selection process on the ground that the advertisement did not contemplate the reservation position strictly in conformity of the Acts promulgated by the Stage Legislature.

Reference may be made to the judgment of the Apex Court in the case of Ashok Kumar and another vs. State of Bihar and others2.

Paragraphs '13' and '14' of the said judgment are relevant to be quoted herein below:-

"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar[5], this Court held that :

18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil[6] and Rashmi Mishra v. M.P. Public Service Commission[7]).

14. The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful."

The situation in the present case is worse than that as the petitioner has participated and failed to get selection, he filed the instant writ petition with the relief of mandamus seeking appointment to the post of Excise Inspector pursuant to the advertisement dated 4.9.2002 with the assertion that he was not granted benefit of being a candidate belonging to special reservation (horizontal reservation category of dependents of Freedom Fighter). There was no challenge to the advertisement nor there is any challenge to the selection process completed with the declaration of final result on 24th January, 2003 pursuant to the said advertisement.

The submission of learned counsel for the petitioner that since the petitioner had applied under special category of dependents of Freedom Fighter by mentioning the said fact in the application cannot be accepted to issue a writ of mandamus, more so, in view of a serious dispute with regard to the certificate of the said category being attached to the application form submitted on 10.9.2002.

The averments in paragraph '3' to the supplementary rejoinder affidavit as reproduced above are clear proof of admission of the fact by the petitioner that the respondents did not ask for certificate of dependents of Freedom Fighter when he appeared in the physical test and interview i.e. during verification process. Any candidate who is seeking benefit of reserved category, whether social reserved category or special (horizontal) reservation quota has to submit certificate of that category issued by the competent authority before completion of the selection process. The interview of the petitioner was held on 10.1.2003. As per his own admission in paragraph '3' of the supplementary rejoinder affidavit quoted above as also in the supplementary affidavit dated 26.2.2006, the original certificate of dependents of Freedom Fighter allegedly issued in the month of July, 1994 by the District Magistrate, Ghazipur, was not in possession of the petitioner. According to him he had submitted the original certificate with the application form dated 10.9.2002 but did not mention the said fact in relevant column '12'. It is not understandable as to why a candidate would submit original certificate with the application form when there was no such requirement.

Moreover, under the column '12' of the application form, the candidate was required to indicate the details of the enclosures attached with the application form. He did not submit any detail. The mistake is on the part of the petitioner and he cannot be allowed to take benefit of the same. There is serious doubt about the application form being appended with the certificate of dependents of Freedom Fighter allegedly issued in July, 1994. The certificate dated 12.3.2003 appended as Annexure '2' to the writ petition is of later date and, therefore, no benefit can be derived by the petitioner by submitting the said certificate to state that it was only in recognition of his status acquired by birth.

Option was open for the petitioner to challenge the advertisement being in violation of U.P. Act No. 4 of 1993 as amended by 1997 and 1999 Acts. As this has not been done, no mandamus can be issued in favour of the petitioner on the submission that he was entitled for the benefit of being dependent of Freedom Fighter and is to be appointed being the only candidate of the said category in the selection finalized on 24th January, 2003.

Reference to the judgment of Division Bench of this court in Brijendra Deo Mishra vs. Public Service Commission3 made by the learned counsel for the petitioner is of no relevance.

The writ petition is found devoid of merits and hence dismissed.

 
Order Date :- 27.8.2018
 
Brijesh						(Sunita Agarwal, J.)