Saurabh Chandra Patel vs State Of U.P. And 2 Others
2021 Latest Caselaw 1167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - A No. - 11909 of 2020
 

 
Petitioner :- Saurabh Chandra Patel
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ramji Singh Patel
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents.

Pursuant to the directions issued, learned Standing Counsel has obtained and placed on the record instructions which for the purposes of identification are marked as "X". The candidature of the petitioner has not been processed by the respondent constraining him to approach this Court by way of the present writ petition. From the instructions it is pointed out that the petitioner had submitted a Caste Certificate dated 4 February 2019 in support of his claim for being granted benefits of reservation. However, undisputedly as per the stipulation contained in the advertisement a caste certificate issued between April to December 2018 alone was liable to be considered and accepted in support of a claim for reservation benefits. Undisputedly, the petitioner did not present any caste certificate issued by the State Government issued between the two dates aforementioned.

It becomes pertinent to note that the validity of a stipulation requiring a caste certificate issued during a particular date band fell for consideration of the Full Bench of the Court in Gaurav Sharma and Others Vs. State of U.P. and Others1. The prescription of such a condition was upheld by the Court.

Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board And Another2 to submit that notwithstanding the certificate not having been issued in the date band indicated, the petitioner is entitled to be accorded relief. The submission proceeds in ignorance of the fact that Ram Kumar Gijroya was duly noticed and explained by the Full Bench in Gaurav Sharma. Dealing with that issue the Full Bench held thus: -

20. We then proceed to address the second question framed for our consideration and which pertains to the correctness or otherwise of the judgment of the Division Bench in Arvind Kumar Yadav. As noted above, the sheet anchor of the case of the appellant and the writ petitioners was the judgment of the Supreme Court in Ram Kumar Gijroya. It becomes relevant to note that in the said case, the Supreme Court was called upon to consider the correctness of a judgment rendered by the Delhi High Court which had overturned a judgment rendered by a learned Single Judge of the said Court who had followed two earlier precedents to hold that the candidature of a Scheduled Castes/Scheduled Tribes candidate could not be turned down only on the ground that the caste certificate was submitted after the last date prescribed in the advertisement. The two prior precedents which the Delhi High Court considered were Pushpa v. Govt. (NCT of Delhi) and Tej Pal Singh v. Govt. (NCT of Delhi). In the appeal of Ram Kumar Gijroya, the learned Single Judge of the Delhi High Court following the two precedents referred to above had directed the respondents therein to accept the OBC certificate of the appellant. One of the significant and distinguishing features of Ram Kumar Gijroya, which immediately springs to light is that the advertisement did not prescribe a cut off date at all. The requirement of submitting the OBC certificate was introduced only by a notice issued by the Delhi Subordinate Services Selection Board while declaring the final results. This is evident when one reads paragraph 8 of the report which is as follows:

"8. Mr. R.C. Kaushik, the learned counsel appearing on behalf of the appellant contends that the Division Bench of the High Court erred in not giving the opportunity to the appellant to submit the O.B.C. certificate after the cut-off date of the application. The requirement of submitting the O.B.C. certificate before the cut-off date of the application was introduced by the respondent-DSSSB only while declaring the result on 15.12.2008, holding that the appellant was not eligible for selection of the post of Staff Nurse as the O.B.C. certificate was received after cut-off date. The learned counsel contends that the stand of respondent-DSSSB is arbitrary, illegal and unreasonable and is also contrary to the settled proposition of law and guidelines issued on reservation and concession for candidates belonging to the reserved categories. The learned counsel places reliance upon the judgment of the Delhi High Court in the case of Tej Pal Singh v. Govt. of NCT of Delhi[1], wherein it was categorically held by the High Court that the petitioners therein were entitled to submit such certificates even after the cut-off date fixed by the advertisement."

21. It was then observed:

"In our considered view, the decision rendered in the case of Pushpa (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in the cases of Indra Sawhney and Valsamma Paul (supra) wherein this Court after interpretation of Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in the cases of Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned single Judge in W.P. (C) No. 382 of 2009 is hereby restored."

22. The judgment of the Delhi High Court in Pushpa was a reiteration of the principles laid down in Tej Pal Singh. A close reading of the judgment in Pushpa clearly establishes that the same was not considering the issue of a stipulation in the advertisement requiring candidates to submit all testimonials prior to a specified cut off date. The judgment notices that although the petitioner had applied for grant of a certificate prior to the last date for submission of applications, the same was issued by the office of the concerned Sub Divisional Magistrate only thereafter. The learned Single Judge of the Delhi High Court further noted that the OBC certificate had been sent prior to the declaration of the results and it was in this backdrop that it was held that the petitioner therein cannot be made to suffer for the lapses on the part of the office of the Sub Divisional Magistrate. In Tej Pal Singh, the issue of a specific stipulation in an advertisement did not arise at all. To the contrary, the following extract from the judgment of Tej Pal Singh clearly demonstrates the distinct factual background against which the same came to be rendered. In paragraph 14, it was held:--

"14. This view taken by me stands confirmed even by the advertisement issued by the respondent-Board itself. It seems that that respondent-Board was conscious of the aforesaid government guidelines. It is because of this reason that in the advertisement although 30th June 1998 is stated as cut off date to adjudge the eligibility qua educational qualification, professional experience and age limit, this date is not specified for the purposes of furnishing SC and OBC certificates....."

23. Neither Pushpa nor Tej Pal Singh considered a negative stipulation in an advertisement nor did the impact of a clause which purportedly disqualified a candidate from claiming the benefits of reservation arise or fall for determination. On the other hand, contentions on lines similar to those canvassed before us were addressed before a Division Bench of the Bombay High Court in Pranjali Bhalchandra Shirsat v. State of Maharashtra wherein again the judgment of Ram Kumar Gijroya was pressed into aid. Noticing the negative stipulation in the advertisement which prescribed that in case a non-creamy layer certificate is not submitted on or before the last date, the category claim would be denied, the Division Bench of the Bombay High Court observed as follows:

"19. In the face of such a stipulation, which binds the petitioner as also the respondents, more particularly when it is not questioned or impugned as contrary to law or ultra vires the constitutional provisions, then, we cannot grant the relief as prayed in the writ petition. The petitioner has categorically mentioned in the writ petition itself that in the application form, though she claimed as belonging to OBC, she did not possess the non-creamy layer certificate. She did not possess this certificate till 2nd July, 2016, which was the last date for filling up the preference form and making changes, if any, therein. It is in these circumstances, when she took her chance in the first round of admission for MBBS degree course as open category candidate, but having not been successful therein, in the second round, she expects the court to recognise her OBC status and allow some proof of the income below the specified limit to be furnished belatedly.

20. She claims benefit of the two judgments, one delivered by the Hon'ble Supreme Court of India and one by this court. In the Hon'ble Supreme Court judgment in the case of Dolly Chhanda (supra) the appellant passed 10+2 (science) examination conducted by the Council of Higher Secondary Education. She was desirous of joining a medical course. She appeared in the Joint Entrance Examination, 2003 under the reserved MI category being daughter of an ex-serviceman on the ground of permanent disability. Clause 2.1.4 of the information brochure carved out certain reserved seats for children/widows of personnel of armed/paramilitary forces of Orissa, killed/disabled in action during war or peacetime operation. The petitioner pointed out that during the course of scrutiny of papers, it was revealed that in the certificate issued to her father by the Zilla Sainik Board, in column 3, which pertained to disabled/killed in war/hostilities, the words "not eligible" were written. Since the certificate did not satisfy the requirement of the reserved MI category, her candidature was rejected. The candidates who had secured ranks at 24 and 26 were granted admission. The petitioner produced the disability certificate which was issued to her father by the army authorities, but in view of the requirement of clause 2.1.4 of the information brochure, the same was not accepted. The appellant's father then requested the Zilla Sainik Board to rectify the mistake and it issued a fresh certificate on 16th July, 2003, which mentioned "permanently disabled" in column 3. It is in these circumstances and when another round of counseling had been fixed on 29 th October, 2003 on account of increase in seats that the appellant went to the admission centre and requested for being given admission on the basis of the fresh certificate issued by the Zilla Sainik Board, which certified that her father had been discharged from the armed forces on the ground of permanent disability. The candidates who had secured rank from 27 to 30 in the MI category were called for counselling, but the appellant's candidature was not considered. The case of the appellant was that it was a mistake of Zilla Sainik Board which had committed error in not issuing a correct certificate but the said mistake having been rectified in the second certificate, she was entitled to admission. It is such a writ petition containing complete factual details, which should not have been dismissed, according to the Hon'ble Supreme Court of India, by the Orissa High Court. It is in those circumstances that the Hon'ble Supreme Court reiterated the general rule in para 7. Its applicability, however, must depend on the facts and circumstances of each case. The category under which the admission was claimed was MI category being daughter of an ex-serviceman, who was discharged from the armed forces admittedly on the ground of permanent disability. About that, there was never a dispute. The proof of that, though available with the Board, it still issued a certificate contrary to it. That is how it rectified its mistake and upon rectification of that mistake by the Zilla Sainik Board, the discretionary relief was granted on the principle which has been laid down in para 7 and reiterated in para 8.

21. In the case before the Division Bench of this court, in the case of Miss Neha Achrekar (supra), the petitioner appeared for the examination styled as Common Entrance Test. She passed it. Her only problem was that she belonged to OBC category but did not have the non-creamy layer certificate when she filled up the form. She obtained it before approaching the court. The allotment of students to the colleges had not started. It is in these circumstances, the petitioner, who had appeared in the Common Entrance Test held in February, 2005, did not have the non-creamy layer certificate. The instructions, which were found and contained in the rules of admission to the course, as referred in para 4 did not contain a negative stipulation as in our case and reproduced above. Now, a distinct condition and stipulation is in place. It is in these circumstances that though the petitioner before this court in the Division Bench case had applied for admission and did not possess the non-creamy layer certificate, her application was still considered, though in the meanwhile she opted for open category. The Division Bench, in para 9, therefore, held that there was a provision of relaxation. The petitioner honestly filled the form in the open category since she did not have the non-creamy layer certificate at the relevant time. The fact that she has been issued the caste certificate enabled the court to hold that her claim was not after thought. It is only the non-creamy layer certificate which could not be obtained within the limitation i.e. upto 12th July, 2005, that relief was granted by this court in its extraordinary, equitable and discretionary jurisdiction. This court did not ignore any negative stipulation.

..........

26. We are therefore of the considered view that the Division Bench in Arvind Kumar Yadav rightly noted the distinct factual backdrop in which Ram Kumar Gijroya came to be rendered. The aspect of there being no consideration of the impact of a negative stipulation in an advertisement in the said judgment of the Supreme Court clearly escaped the Division Benches which pronounced judgments in Pravesh Kumar and Shubham Gupta."

In view of the above, the petition fails and is dismissed.

Order Date :- 20.1.2021

Arun K. Singh

(Yashwant Varma, J.)