State Of U.P. Through Principal ... vs Bindresh Singh
2021 Latest Caselaw 7847 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 153 of 2021
 

 
Appellant :- State Of U.P. Through Principal Secretary (Home) And 4 Others
 
Respondent :- Bindresh Singh
 
Counsel for Appellant :- Anand Kumar Ray
 
Counsel for Respondent :- Siddharth Khare, Dilip Kumar Goswami, Rajesh Singh
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Piyush Agrawal,J.

By this appeal, a challenge is made to the judgment dated 14.12.2020 passed by learned Single Judge whereby writ petition preferred by non-appellant/petitioner was allowed.

The writ petition was preferred to seek consideration of the candidature of the petitioner in OBC category for the post of Constable in Civil Police and Provincial Armed Constabulary (in short "P.A.C.") advertised on 16.11.2018.

It is stated that an advertisement was published on 16.11.2018 to invite application for the post of Constable. The petitioner submitted application online. In pursuant to aforesaid, the petitioner was called for the written test held on 28.01.2019. The petitioner remains successful therein thus, was called for verification of document apart from physical standard test.

The petitioner failed to produce OBC certificate issued between 01.04.2018 and 08.12.2018 as was contemplated in the note appended under para 5.4 to the advertisement dated 16.11.2018. The petitioner, in fact, produced the caste certificate dated 04.02.2018 and 07.02.2018. The certificates aforesaid were found to be in conflict to the date of certificate given in online application. In absence of production of the OBC certificate of the relevant period, the petitioner was non-suited for selection in the category of OBC. Learned Single Judge, however, allowed the writ petition after relying the judgment of the Apex Court in the case of Ram Kumar Gijroya Versus Delhi Subordinate Services Selection Board reported in (2016) 4 SCC 754. It was after ignoring the judgment of this Court in the case of Gaurav Sharma Versus State of U.P. and others (Special Appeal No. 156 of 2017) decided by the larger Bench vide its judgment dated 04.05.2017. The judgment of the Apex Court in the case of Ram Kumar Gijroya (supra) has been considered therein. In view of the aforesaid, this appeal has been preferred by the State to challenge the judgment of learned Single Judge.

Learned counsel for non-appellant/petitioner has supported the judgment. It is stated that learned Single Judge has rightly applied the judgment of the Supreme Court in the case of Ram Kumar Gijroya (supra). The judgment in the case of Gaurav Sharma (supra) was not applicable having distinguishable facts. It is further submitted that in the online application, date of the caste certificate was given alongwith the certificate number. In view of the above, the petitioner's candidature should have been considered in the OBC category instead placing him in open category.

It is, however, admitted that on the date of verification of documents, the petitioner was unable to produce the caste certificate dated 29.11.2018. It is alleged to have lost. The appellants could have sought verification of the said document independently instead of non-suiting the petitioner for consideration of his candidature in the OBC category. The prayer is, accordingly, to maintain the judgment of learned Single Judge because direction of learned Single Judge is only to seek verification of the certificate and if it is found in order, to grant appointment.

We have considered the rival submissions of the parties and perused the record carefully.

The facts available on record shows that in pursuance of the advertisement dated 16.11.2018 for the post of Constable, the petitioner submitted application online. It was with the declaration of the caste certificate dated 29.11.2018. It was to meet with the condition of the advertisement. Relevant paragraph of advertisement dated 16.11.2018 is quoted hereunder for ready reference :

**¼5½ mRrj izns'k yksd lsok ¼vuqlwfpr tkfr;kas] vuqlwfpr tu tkfr;ksa vkSj vU; fiNM+s oxkZsa ds fy, vkj{k.k½ vf/kfu;e&1994 ¼le;≤ ij ;Fkk la'kksf/kr½ dh vuqlwph&nks ds vuqlkj Øhehys;j ds vUrxZr vkus okys mRrj izns'k ds vU; fiNM+s oxZ ds vH;fFkZ;ksa dks vkj{k.k dk ykHk vuqeU; ugha gSA vU; fiNM+s oxZ ds fy, tkfr izek.k&i= ¼izk:i&1½ 01 vizSy] 2018 ;k mlds ckn dk fdUrq bl HkrhZ gsrq fu/kkZfjr vkosnu djus dh vfUre frfFk rd dk fuxZr gksuk pkfg,A**

As per para 5, the caste certificate was required to be of 01.04.2018 or subsequent to it but before the last date of submission of application form. The last date for submission of application form was 08.12.2018.

The petitioner indicated date of issuance of caste certificate in the online application but failed to produce certificate dated 29.11.2018 at the time of verification of document. The declaration about the caste certificate in the online application thus, remains for the sake of it. It is more so when the relevance of the date of OBC certificate remains. It is to see whether a candidate falls in the creamy layer or not. If an OBC candidate comes in the creamy layer, then he is not entitled to the reservation. The condition for production of the caste certificate of the period specified in the advertisement remains for the aforesaid reason and cannot be done away. Learned Single Judge has not set aside the condition but allowed the writ petition going against it. It is mainly relying on the judgment in the case of Ram Kumar Gijroya (supra) where issue has not even been decided. Relevant paras of the judgment quoted by learned Single Judge are reproduced hereunder also :

"3. The important question of law to be decided in these appeals is whether a candidate who appears in an examination under the O.B.C. category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the O.B.C. category or not.

4 . As the question of law arising in all these appeals is similar, for the sake of convenience and brevity, we refer to the facts of Civil Appeal arising out of SLP(C) No. 27550 of 2012, which has been filed against the impugned judgment and order dated 24.01.2012, The necessary relevant facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder:

"The Respondent-Delhi Subordinate Services Selection Board (hereinafter referred to as "the DSSSB") invited applications for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Govt. of NCT of Delhi by way of publishing an Advertisement No. 09/2007 in the Newspaper. The last date of submission of the application form in the advertisement for the said post was 21.01.2008. The Appellant submitted his application form before the due date and was subsequently issued the admit card to appear in the examination. Having appeared in the examination, he was shortlisted for selection. However, his name did not appear in the final list of selected candidates. On enquiry, he was informed by the concerned official that he was not selected to the post for the reason that he had failed to submit the OBC certificate issued by the appropriate authority along with application form before the last date of submission of application form."

6. The learned single Judge disposed of the writ petition vide judgment and order dated 24.11.2010, placing reliance on the judgment in the case of Pushpa (supra), wherein the controversy centred around the same advertisement/Notification issued by the same Respondent. The learned single Judge observed that the only ground for declining the applications filed by the Appellants was that the O.B.C. certificates had been issued and submitted after the cut off date and therefore they were not eligible for appointment to the post. The learned single Judge further held that the Respondent did not cite any other authority to distinguish the decision in Pushpa's case (supra) from the facts of the present case. Consequently, the learned single Judge disposed of the writ petition and directed the Respondent to reconsider the application of the Appellant and the other aggrieved candidates against the O.B.C. category within a period of one month.

14. The Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa (supra). In that case, the learned single Judge of the High Court had rightly held that the Petitioners therein were entitled to submit the O.B.C. certificate before the provisional selection list was published to claim the benefit of the reservation of O.B.C. 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 the case of Indra Sawhney v. Union of India 1992 (Supp) 3 SCC 217 as well as Valsamma Paul v. Cochin University and Ors. (1996) 3 SCC 545. The learned single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh (supra), wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of the late submission of caste certificate.

The relevant paragraph from the judgment of this Court in the case of Indra Sawhney (supra) has been extracted in the case of Pushpa (supra) along with the speech delivered by Dr. Ambedkar in the constituent assembly and reads thus:

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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 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. 701-702 (1948-49).

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 attack 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, in so far as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal."

15. In the case of Pushpa (supra), relevant paragraphs from the case of Tej Pal Singh (supra) have also been extracted, which read thus:

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17. The matter can be looked into from another angle also. As per the advertisement dated 11th June, 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 his 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 30th June, 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 30th June, 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.

18. 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 authorising 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."

The perusal of the judgment does not propound a ratio to hold that OBC certificate cannot be for a specific period. It is when the period is relevant to find out whether one is falling in the category of creamy layer or not. The issue aforesaid was threshold discussed by larger Bench of this Court in the case of Gaurav Sharma (supra) where judgment of Apex Court in the case of Ram Kumar Gijroya (supra) was also discussed. Relevant paras of that judgment are quoted hereunder for ready reference :

"The rival contentions and as is evident from the referral order itself turned upon the ratio as discernible from the judgment rendered by the Supreme Court in Ram Kumar Gijroya Vs. Delhi Services Selection Board & another. While the appellants canvassed for our consideration that Ram Kumar Gijroya was an authority for the proposition that a caste certificate submitted even after the last date prescribed for an advertisement cannot be discarded or disregarded, the respondents would contend that no such absolute principle or proposition of law can be said to flow from the said judgment.

Having noticed the backdrop in which the issue has travelled to the Full Bench, we deem it appropriate to notice the following additional facts. Admittedly under the advertisement, the last date for filing of applications was prescribed as 4 April 2016. In paragraph 5.1, the advertisement set forth the format and requirement of a caste certificate to be submitted by a candidate who claimed to belong to the OBC (non-creamy layer) category. This was again clarified further in paragraph 5.4. In terms of paragraph 5.4 (5) the respondents mandated that a candidate who claims to belong to the OBC (non-creamy layer) category in terms of the provisions of the 1994 Act would have to submit a caste certificate in "Praroop-1" which should have been issued after 1 April 2015 but in any case not later than the last date for submission of the application form. In paragraph 5.4 (6), the advertisement further provided that all those candidates desirous of concessions by virtue of belonging to a reserved category must fill in the reservation category against which they were entitled to be selected and to also ensure that the certificate itself is obtained from the competent authority prior to the making of the application.

This aspect assumes significance when viewed in conjunction with the recitals contained in the initial caste certificate submitted by the appellant and the writ petitioners, upon a careful scrutiny of which we find that the same only recognised the holder thereof as being a member of a backward class recognised as such under a Government of India notification. The subsequent certificates which were produced by the appellant and the petitioners clearly certified them as being members of the OBC and covered under Schedule-I to the 1994 Act. Allied to this issue is the requirement of an OBC candidate being able to establish that he does not fall in the creamy layer. An OBC candidate therefore has to establish not just that he is recognised as an OBC in the State concerned but also that he does not fall within the zone of exclusion, namely the creamy layer. Both these conditions have to be cumulatively satisfied. We have articulated these basic principles for they shall have some bearing on the questions formulated for our consideration.

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 Vs. U.P. Police Recruitment and Promotion Board (Special Appeal No. 762 of 2016 decided on 05.12.2016). 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 Vs. Govt. (NCT of Delhi) 2009 SCC OnLine Del 281 and Tej Pal Singh V. Govt. (NCT of Delhi) 1999 SCC OnLine Del 1092. 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.

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.

It is often said that a judgment is not to be interpreted as an Euclid's theorem. The ratio of a decision has to be deciphered and culled out bearing in mind the factual backdrop in which it came to be rendered. One may usefully refer to the celebrated passage penned by Lord Halsbury in Quinn 1901 AC 495 (HL) and often cited in judgments delivered by our courts:-

"... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

In Krishena Kumar V Union of India (1990) 4 SCC 207 the Supreme Court observed:

"20. ... The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573):

''The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear ... it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.'

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 Vs. State of U.P. and two others (Special Appeal Defective No. 136 of 2017, decided on 01.03.2017) and Shubham Gupta Vs. Indian Overseas Bank Office, Chennai & Ors. (Writ Petition No. 748 (S/B) of 2014)."

The paras quoted above shows a detailed discussion of the judgment of Supreme Court in the case of Ram Kumar Gijroya (supra). Learned Single Judge has referred the judgment of Gaurav Sharma (supra) but did apply it. The significance of OBC certificate of relevant period is to ascertain a candidate to fall in the category of creamy layer or not. The requirement aforesaid cannot be brushed aside and otherwise petitioner did not challenge condition no. 5 of the advertisement so as to ignore it. Learned Single Judge, however, ignored the condition of the advertisement while issuing the direction for consideration of candidature of the petitioner despite of his failure to produce OBC certificate of the relevant period at the time of verification of documents.

Learned counsel for the non-appellant, however, submitted that at the time of submission of online application, the date of certificate was given alongwith certificate number. It was then stated that even photocopy of the certificate was enclosed though no pleading to this fact exists. It is otherwise not possible to enclose the document while submitting the application online. In the online application form, only the date of caste certificate can be given apart from other disclosures. The Appointing Authority, therefore, only call the candidates for verification of documents. The petitioner, admittedly, failed to submit the caste certificate of the period given in para 5 of the advertisement at the time of verification of documents. It is stated that certificate dated 29.11.2018 was lost but nothing has been stated why the duplicate copy was not obtained.

In view of the above, it is an admitted case of the petitioner that alleged certificate dated 29.11.2018 was not produced at the time of verification of document. In those circumstances, if the petitioner's candidature was not considered in the OBC category then we do not find any illegality in the action of the respondents. It is no doubt that there exits sanctity of reservation but merely for that reason, the norms settled by the Appointing Authority cannot be ignored. It is more specific for OBC candidates because one would not be entitled to reservation in the OBC category if falling in the category of creamy layer.

Learned Single Judge has further ignored that recruitment cannot be kept open indifferently and for a candidate, who defaults in producing the document at the time of verification. Learned Single Judge has given benefit to the petitioner despite his default in production of OBC caste certificate on the date, he was asked to produce it.

In view of the above, we find reason to cause interference in the judgment of learned Single Judge. Accordingly, the same is set aside.

With the aforesaid, the appeal is allowed.

 
Order Date :- 13.7.2021
 
Shubham
 

 
(Piyush Agrawal, J.)     (Munishwar Nath Bhandari, A.C.J.)