Suman vs State Of U.P. And 3 Others
2021 Latest Caselaw 9339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34 								         AFR
 

 
Case :- WRIT - A No. - 8312 of 2021					
 

 
Petitioner :- Suman
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vishal Shukla,R.P. Mishra
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner, Sri Birendra Pratap Singh, learned Standing Counsel and Ms. Archana Singh, learned Additional Chief Standing Counsel appearing for the Basic Education Officer.

This petition has been preferred seeking the following relief:-

"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 09.012021 passed by respondent no.4 (Basic Education Officer, Hathras) as contained in Annexure no.1 to this writ petition.

ii) Issue a writ, order or direction in the nature of certiorari quashing the Govt. Order No.1656/68-5-2020 Basic Shiksha Anubhag-5, Lucknow dated 04.12.2020 (Copy of which is not available to the petitioner)

iii) Issue a writ order or direction in the nature of mandamus directing commanding the respondents to appoint the petitioner on the post of Assistant Teacher in pursuance of advertisement dated 05.12.2018 being "Sahayak Adhyapak Bharti Pariksha-2019"."

The petitioner had appeared in a recruitment exercise initiated by the respondents for appointment of Assistant Teachers. She claimed the benefits of reservation by virtue of belonging to the OBC category. By the impugned order however her candidature has been rejected with the respondent noting that the petitioner had furnished an OBC certificate which bore the name of her husband and not the father. Additionally, it was noted that the OBC certificate which carried the name of her father had been issued by an authority in the State of Rajasthan and thus was not liable to be accepted. The respondents ultimately referring to the provisions made in a Government Order of 04 December 2020, have consequently held that the petitioner cannot be offered appointment.

Learned counsel for the petitioner assailing the aforesaid decision places reliance upon a judgment rendered by a learned Judge in Vipin Kumar Maurya and 4 others Vs. State of U.P. and 3 others1 to submit that merely because the petitioner originally hailed from Rajasthan and subsequently married in Uttar Pradesh, she could not be denied benefits of reservation as otherwise provided to OBC candidates. It was then contended that the Government Order of 04 December 2020 cannot be said to apply since it admittedly came to be issued not just after the initiation of the recruitment process but after the counseling process had come to an end. Learned counsel then placed reliance upon the certificate dated 15 March 2004 issued by the Tehsildar, Bharatpur, Rajasthan to contend that the aforesaid certificate which bore the name of her father clearly qualified as being in sufficient compliance with the conditions which were imposed under the recruitment notification. It was lastly contended by learned counsel that even if her candidature under the OBC category came to be denied on grounds noted above, it was incumbent upon the respondents to consider her candidature in the General category.

The Court finds itself unable to sustain the aforenoted submissions for the following reasons.

Firstly, Vipin Kumar Maurya was a decision which dealt with the issue of whether a woman from outside the State of U.P. could be excluded from a recruitment exercise initiated by the State. The learned Judge on the basis of the submissions which were addressed, proceeded to record his conclusions in paragraph 58 in the following terms: -

" 58. In our constitutional scheme women of this country are otherwise a homogeneous lot and they cannot be differentiated unless reasons and materials exists for their further classification. Classification based only on residence would otherwise be permitted only by law made by the Parliament, which is not the case here. In such circumstances and for the reasons disclosed, it is held that Clause (4) of the Government Order dated 9.1.2007 restricting grant of horizontal reservation only to the women who are original residents of Uttar Pradesh as also specific stipulations in that regard, contained in Advertisement No. 14 of 2015 would be contrary to Articles 16(2) and 16(3) of the Constitution of India."

It is thus manifest that Vipin Kumar Maurya strictly speaking was not dealing with the question which arises in the instant petition namely of whether a caste certificate bearing the name of the husband of a candidate can be considered as valid for the purposes of certifying the holder thereof as belonging to the OBC category. The aforesaid decision principally dealt with the constitutional validity of the restriction imposed by the respondents excluding women from outside the State of U.P. from participating in the recruitment exercise. As noted hereinabove, the candidature of the petitioner here has not been rejected on the ground that she originally hailed from Rajasthan. The application has been refused solely on the basis of her failure to furnish a caste certificate compliant with the requirements placed under the advertisement.

That then takes the Court to evaluate the claim of the petitioner based on the certificate issued by the revenue authority in the State of Rajasthan. It is by now well settled, that the list of backward classes is maintained by States of our Union individually. It is not akin to lists of Scheduled Castes or Tribes which are notified by a Presidential Order promulgated in terms of the provisions made in Articles 341 and 342 of the Constitution. It is also not the case of parties that Article 342 A of the Constitution applied to the recruitment in question. Dealing with the requirement of members of the OBC being obliged to produce a certificate issued by the appropriate State governments in matters of recruitment, the Full Bench of the Court in Gaurav Sharma Vs. State of U.P.2 held: -

13. Before we proceed to rule upon the questions framed for our consideration, it would be apposite to bear in mind certain basic precepts. While a Scheduled Caste or a Scheduled Tribe comes to be identified and declared as such by virtue of the constitutional orders promulgated by Parliament in terms of Articles 341 and 342 of the Constitution, the classification of OBC's is a subject which is left in the province of individual State Governments. While a Scheduled Caste or a Scheduled Tribe may also be mentioned and identified under the constitutional orders with reference to a particular State, it is settled law that the States can neither expand nor modify any entry appearing in the two constitutional orders nor can they by an executive or administrative order expand upon or read something into an entry which appears in the orders promulgated under Articles 341 and 342. OBC's however are identified and recognized by individual States with reference to the backwardness of a particular caste, class or group in that particular State. Therefore, it logically follows that a list of OBC's which is prepared by a particular State cannot have an over arching or pan-India operation or effect. Castes which come to be included in a list of OBC's prepared by a State have to be necessarily read to mean OBC's in that particular State alone. The OBC's specified in Schedule-I to the 1994 Act is, therefore, a list of castes/communities which are conferred the status of an OBC in the State of U.P. alone. This issue does not brook any debate. However, it is useful to refer to the following observations which appear in the judgment of the Supreme Court in M.C.D. v. Veena6:

"Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State.

However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.

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A careful reading of this notification would indicate that the OBCs would be recognised as such in the Government of National Capital Territory of Delhi as notified in the Notification dated 20.01.1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificates will have to be issued only by the specified authorities and certificates issues by any other authority could not be accepted. The Government of India has also issued instructions from time to time in this regard which indicated that a person belonging to OBC on migration from the State of his origin in another State where his caste was not in the OBC list was entitled to the benefits or concessions admissible to the OBCs in his State of origin and Union Government, but not in the Sate to which he has migrated. Thus the High Court lost sight of these aspects of the matter in making the impugned order in either ignoring the necessary notifications issued in regard to classification of OBC categories or in the matter of verification thereof. Thus the order made by the High Court in this regard deserves to be reversed."

In view of the aforesaid, this Court is of the opinion that a certificate issued by an authority in Rajasthan was rightly not accepted by the respondents as certifying the petitioner as belonging to a backward class recognised by the State of U.P.

Insofar as the OBC certificate bearing the name of the husband of the petitioner is concerned, the Court finds that the stipulation of the caste certificate bearing the name of a parent serves a salutary and significant purpose. Caste as is well settled is determined by birth. The identification of a person as belonging to a particular caste or social class has an unbroken and undeviating connect with the family of the individual. The candidate must therefore necessarily establish that he or she was born into a family which belongs to a backward class duly recognised as such by the appropriate government. A certificate bearing the name of the parent thus serves the purposes of enabling the respondents to ascertain and verify the actual caste of the holder thereof as existing at the time of birth.

While it is well settled that benefits of reservation cannot be obtained by virtue of marriage, the Court may only extract the following passage from the decision of the Supreme Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy3:-

"10. What then remains is the fact that the appellant though assigned the caste of her father Murahari Rao, namely, the Sistu Karnam community, had married a tribal belonging to the Bhagatha community. On the basis of this marriage, it is argued that she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community. It is in that context that the decision in Horo [(1972) 1 SCC 771 : AIR 1972 SC 1840] was relied on. It is also contended that the decision in Horo [(1972) 1 SCC 771 : AIR 1972 SC 1840] related to an election dispute and consequently, the ratio of that decision should govern the present case. We have already indicated that there is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha community or the Panchayat concerned or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul v. Cochin University [(1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] supports this view. Neither the fact that a non-backward female married a backward male nor the fact that she was recognised by the community thereafter as a member of the backward community, was held to enable a non-backward to claim reservation in terms of Article 15(4) or 16(4) of the Constitution. Their Lordships after noticing Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry [(1865) 10 MIA 279] and Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai [(1879-80) 7 IA 212 : ILR 5 Bom 110] held that a woman on marriage becomes a member of the family of her husband and thereby she becomes a member of the caste to which she has moved. The caste rigidity breaks down and would stand as no impediment to her becoming a member of the family to which the husband belongs and to which she gets herself transplanted. Thereafter, this Court noticed that recognition by the community was also important. Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court should not be extended to the constitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly......"

Reiterating the aforesaid position in law in Sunita Singh v. State of U.P4., the Supreme Court succinctly observed: -

5. There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled Caste. Undoubtedly, the appellant was born in "Agarwal" family, which falls in general category and not in Scheduled Caste. Merely because her husband is belonging to a Scheduled Caste category, the appellant should not have been issued with a caste certificate showing her caste as Scheduled Caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted.

Regard must be had to the fact that in Sunita Singh, the Supreme Court was dealing with a caste certificate which came to be issued based on the caste of the husband. It was in the aforesaid backdrop that it held that the caste certificate was invalid. It is thus evident that it was to avoid such situations and claims that the respondents insisted upon the caste certificate bearing the name of the parent of the candidate. The aforesaid stipulation has neither been challenged by the petitioner nor can it be described as being arbitrary or superfluous.

The Court additionally shudders to imagine the enormous burden that would stand placed upon a recruiting body before whom caste certificates such as the one produced by the petitioner here were placed in support of claims for extension of reservation benefits. In all such cases, the recruiting agency would then have to independently verify the family origins of each such candidate in order to ascertain whether the individual was born in a social class to which benefits under Article 16 of the Constitution stand conferred. Ms. Archana Singh, learned counsel, apprises the Court that the present recruitment was undertaken to fill up 69,000 posts of Assistant Teachers. Learned counsel informs the Court that 146060 candidates participated in the selection process. The facts as noticed above underscore the enormity of the avoidable and unnecessary obligation which would stand placed on the recruitment agency. In fact, placing such an onus on the recruiting body may also have a deleterious effect on the paramount requirement of completing a selection process connected with appointment to public posts within a defined timeline. The Court in view of the aforesaid facts is of the considered view that there is no justification for such an additional responsibility being legally foisted upon the respondents.

The challenge to the Government Order of 4 December 2020 on grounds as urged by learned counsel, pales into insignificance in light of what has been held and in any case cannot be viewed as imposing a burden or otherwise ushering in a position which would be either legally unsustainable or one which could not have been recognised to exist irrespective of its promulgation.

Insofar as the submission of learned counsel with respect to the candidature of the petitioner being considered under the General category is concerned, the Court notes that no foundation in support of the aforesaid submission stands laid in the writ petition. The petitioner has not disclosed the qualifying marks which were obtained by the last admitted candidate under the General category to enable the Court to ascertain whether she could have claimed an appointment without the benefits of reservation being extended to her.

The writ petition consequently fails and shall stand dismissed.

Order Date :- 3.8.2021

Vivek Kr.

(Yashwant Varma, J.)