Allahabad High Court
Shailendra Kumar vs State Of U.P. And 4 Others on 7 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:17859
RESERVED
Court No. - 49
Case :- WRIT - A No. - 11468 of 2022
Petitioner :- Shailendra Kumar
Respondent :- State of U.P. and others
Counsel for Petitioner :- Durvesh Kumar
Counsel for Respondent :- C.S.C.
Hon'ble J.J. Munir,J.
1. The petitioner staked his candidature for the post of a Sub-Inspector (Male/ Female), PAC, Civil Police, Platoon Commander/ PAC advertised vide Advertisement No. PRPB-Two-2(3 B.)2020 dated 24.02.2021, issued by the Uttar Pradesh (Police Recruitment and Promotion) Board, Lucknow (for short, 'the Board'). The advertisement dated 24.02.2021 (for short, 'the advertisement') advertised a total of 9027 posts of Sub-Inspectors (Police), 484 Platoon Commanders, besides 23 PAC and Fire Station Second Officers. Thus, the total posts advertised by this advertisement were a figure of 9534. Applications were invited for the said posts online. The petitioner, who is a member of the 'Other Backward Classes' (for short, 'the OBC'), filled up his application form, bearing Application Sequence No. SICUP0236248 and submitted it together with the requisite fee. The application form was successfully submitted. The petitioner was allotted Admit Card for an offline test with Examination Roll No.GO1524169929. The petitioner appeared in the computer based test held on 13.11.2021 in the second shift between 12.30 p.m. to 2.30 p.m. It was a test of two hours duration and divided into four parts. It was imperative for a candidate to secure a minimum of 35 marks in each part and muster an overall score of 50%, to wit, 200 marks out of the 400 maximum.
2. A candidate, failing to achieve the aforesaid target of marks, would be eliminated from the selection process. It is not in dispute that the petitioner qualified the said examination with the result being declared by the Board with a category-wise cut-off indicated. The result of the examination was displayed by showing the roll number of selected candidates. The petitioner has annexed on record a published copy of the result dated 14.04.2022, showing his roll number. After publication of the aforesaid result by the Board, a schedule was announced for the holding of a document verification-cum-physical standard test. It was scheduled to be held on 14.05.2022 at the Reserve Police Lines, Prayagraj. There is no cavil that the petitioner appeared at the appointed time, place and venue for document verification on 14.05.2022. Next, he appeared before the Board constituted for the determination of physical standards, to wit, measurement of the chest and height. The petitioner passed the document verification and physical standards test. He was then invited to participate in the physical efficiency tests, that were held on 14.05.2022 at the 37th Battalion PAC, Kanpur. The petitioner's Admit Card relating to the physical efficiency test dated 24.05.2022 is on record. The petitioner appeared for his physical efficiency test on 24.05.2022 and successfully passed it. He was awaiting the declaration of final result.
3. The case is that on 12.06.2022, the final results of the examination were declared by the Board as also the category-wise cut-off. The petitioner's name did not figure, amongst the candidates finally selected. The result that was declared on 12.06.2022 carried the roll number, name, State and category of the selected candidates. The petitioner's name was not in this list. There was another list of candidates not selected, where they were identified by their roll number, status and name. This list also carried a reason for non-selection mentioned in the list. A copy of the first page of the list of non-selected candidates dated 12.06.2022 is also on record of the writ petition as Annexure No.13. The cut-off declared for the OBC was 305.5425053. The petitioner secured 306.5312308 marks, far above the cut-off marks for the OBC and yet his name did not figure in the list of selected candidates.
4. Eschewing further detail, suffice it to say that the petitioner was not selected because he was regarded a General Category candidate; not dealt with as an OBC. The cut-off for the General Category was 316.1179012 marks. The petitioner, accordingly, failed to get selected. How and why the petitioner was regarded a General Category candidate is made evident by the respondents' stand, where they say in the counter affidavit that the caste certificate submitted by the petitioner was not one for consideration as an OBC meant for employment under the Uttar Pradesh Government, but employment to posts under the Government of India. The caste certificate for employment to a post under the Government of U.P. had to be in Form-I, appended to the advertisement going by paragraph No.5.1. Note (4) appended to paragraph No. 5.4 of the advertisement provides that in case a candidate hailing from the OBC did not support his candidature by a certificate in the prescribed Form-I or a certificate not issued during the prescribed period or in a form meant for services under the Government of India, he/ she would be treated as a General Category candidate. It is on account of this reason that the petitioner was dealt with as a General Category candidate and not selected since he did not achieve the cut-off marks for a candidate belonging to the General Category.
5. Aggrieved by his non-selection, the petitioner has instituted the present petition under Article 226 of the Constitution.
6. Affidavits having been exchanged, the petition was admitted to hearing on 01.07.2024, which proceeded forthwith. It remained inconclusive and adjourned to 29.07.2024. Upon the request of learned Counsel for parties, the hearing was adjourned to 08.08.2024. On the 8th of August, 2024, learned Counsel for the parties concluded their submissions. Judgment was reserved.
7. Heard Mr. Shikhar Dwivedi, learned Advocate, holding brief of Mr. Durvesh Kumar, learned Counsel for the petitioner and Mr. Sharad Chandra Upadhyaya, learned Standing Counsel for the respondents.
8. We summoned the original record relating to the petitioner's selection, including the tabulated record signed by the members of the Board and the Five-Member Committee for document verification and physical standard test. We have also perused the petitioner's application form for recruitment, bearing endorsement from the competent Officers of the Board and their functionaries. A perusal of the tabulated chart for the document verification and physical standard test, where discrepancies were found, shows that at Sr. No.74, the petitioner's name figures. In the sixth column against the petitioner's name, the Five-Member Committee, assigned for document verification, have recorded the following comment:
"OBC Category certificate attached is for the posts under the Gov of India yet the DV/ PST committee has verified it as OBC. OBC to UR is to be done as final category."
9. Upon hearing learned Counsel for the parties, what we find is that there is no doubt about the fact that the petitioner has faltered in making his application for the post of a Sub-Inspector strictly in accordance with the terms of the advertisement, that is, if he were to stake his candidature in the Reservation Category of OBC. Without doubt, the petitioner has not made his application supported by an OBC Certificate in Form-I appended to the advertisement as required by paragraph No.5.1 thereof. The said paragraph read with the prescribed Form-I, appended to the advertisement, require that a candidate, claiming benefit of the OBC Reservation Category, must apply in the prescribed Form-I. Notes (3) and (4) appended to paragraph No.5.4 of the advertisement indicate the consequences, that would attach in the event the caste certificate, claiming benefit of the OBC Category, is not one issued within the specified period of time or one not made in the prescribed Form-I or one that is in the Form issued by the State Government for services under the Central Government. In the event, the caste certificate is one which relates to employment under the Central Government, though issued by the State Government, Note (4) appended to paragraph No.5.4 of the advertisement, clearly indicates that the candidate would be treated as one belonging to the Unreserved or General Category.
10. There is no issue in the present matter about the relevant period of time, during which the caste certificate was issued. Admittedly, it was issued on 08.03.2021 and by dint of Note (4) appended to paragraph No.5.4 of the advertisement, the requirement is that the caste certificate should have been issued between the 1st of April, 2020 and 30th of April, 2021. The issue then is, if a caste certificate, relating to the OBC issued for the Central Government services by the State Government, would necessarily attach the consequence of the candidate being treated as an Unreserved Category or General Class candidate. The advertisement seems to lead to that consequence and gives ample notice of it to every prospective candidate. The petitioner too must have had notice of it and yet faltered. But, to answer it this way, would be abdicating our duties as a Constitutional Court to enforce the fundamental rights of citizens and ensure equality in the matter of employment under the State, that is, if they are otherwise equal in all respects substantially. We cannot adopt a pedantic approach once it is brought to our notice that a citizen, who is substantially placed as any other in the matter of eligibility, would stand discriminated by the operation of an ordinary rule or still more the terms of an advertisement. This question engaged the attention of a Full Bench of this Court in Gaurav Sharma v. State of U.P. and others, 2017 (5) ADJ 494 (FB) and again that of a Division Bench in State of U.P. through Additional Chief Secretary (Home) v. Rinki Yadav, Special Appeal Defective No. 274 of 2022, which relates to the same advertisement as the one involved here. The Bench decision in Rinki Yadav (supra) extensively relies on the holding of the Full Bench in Gaurav Sharma (supra) so far as one facet of the matter is concerned and then deals with the others in punctilious detail to find for an OBC candidate, who like the petitioner, had committed the folly of supporting his candidature with a caste certificate issued by the competent Authority of the State Government, but meant for Central Government service.
11. Before proceeding to notice what their Lordships of the Division Bench in Rinki Yadav held, we must remark that one of the parameters, on which there can be no dispute after the holding of the Full Bench in Gaurav Sharma is that the criteria for exclusion of those candidates of the OBC, who belonged to the creamy layer, are identical as regards the Central Government and the State Government. Therefore, a candidate with a caste certificate for claiming the OBC reservation under the Central Government service, cannot be held different, and, therefore, ineligible for consideration under the State Government services, because the parameters of determining the creamy layer amongst the OBC are different.
12. Since the Bench decision in Rinki Yadav was concerned with the same advertisement as the one involved here and an identical mistake was committed by the writ petitioner in that case, the remarks of the Division Bench, need be elaborately quoted for these, would clinch the issue here. In Rinki Yadav, it was observed:
"15. One of the issues which was considered by the Full Bench in the case of Gaurav Sharma (Supra) was as to whether there exists any irreconcilable difference or repugnancy between the norms fixed by the Union and State Governments with regard to certification of creamy layer? If not, its effect. It is also relevant to point out that petitioner in the Gaurav Sharma case had also submitted the certificate certifying that he belonged to the O.B.C, category in the same format in which the respondent-petitioner obtained the caste certificate and submitted the same for seeking benefit of the reservation available to O.B.C category candidates. The format in which the respondent-petitioner obtained the certificate is prescribed by the State of Uttar Pradesh. This fact is not in dispute, however, as stated by the learned counsel for the appellant-State authorities, the said format is for claiming benefit of reservation available to O.B.C, category candidates in relation to employment under the Government of India and not in relation to employment under the State of Uttar Pradesh. The caste certificate relied upon by the candidate in the case of Gaurav Sharma has been extracted in para-5 of the said judgement which is the same in which the respondent-petitioner was issued the certificate by the Tehsildar. The Full Bench in the case of Gaurav Sharma (Supra) has opined that, "while it is true that a caste certificate is only a recognition of an existing status, an O.B.C. candidate necessarily must establish the twin conditions of belonging to an O.B.C. group recognized by the State and also that he does not fall within the creamy layer. In paragraph-26 of the judgment in the case of Gaurav Sharma, the Full Bench has further observed that, "while it is true that an O.B.C. candidate even he produces a certificate which evidences that he does not stand excluded from the benefits of reservation in terms of office memorandum dated 14th October, 2008, that issue still remain as to whether he is an O.B.C, as specified and identified by the State of Uttar Pradesh. The Full Bench further observes that, "although the certificate initially submitted by the O.B.C, candidates before the Court did not stand excluded by virtue of standards fixed by the office memorandum dated 14th October, 2008, the certificate did not evidence them belonging to an O.B.C, as identified in the State of Uttar Pradesh". The Court further goes on to observe that, "for the purposes of seeking the benefit of reservation it is imperative for a candidate to establish that he belongs to O.B.C, as recognized and identified by the State concerned and further that he/she does not fall within the field of exclusion".
16. Finally answering the issue (C), it has been said by the Full Bench in para-27 of the report that:
"27. We accordingly answer Question No. 1 in the negative and hold that an OBC candidate is not exempt from the rigours of a cut off or last date prescribed in an advertisement or recruitment notice. We further declare that Arvind Kumar Yadav correctly articulates the law on the issue and overrule Pravesh Kumar and Shubham Gupta. Insofar as Question No. 3 is concerned, we hold that although there is no repugnancy in the norms fixed by the Union and State Government, the same would have no favourable impact upon the eligibility of a candidate unless he also furnishes a certificate evidencing him as belonging to the OBC category as recognised and identified by the State."
17. Thus the Full Bench in the case of Gaurav Sharma (Supra) has found that so far as the certification of creamy layer is concerned, there is no repugnancy in the norms fixed by the Union and the State Government. Accordingly, we have no hesitation to hold that in so far as the exclusion under the creamy layer is concerned, the respondent-petitioner could not be excluded for the reason that the certificate furnished by her clearly states that she does not stand excluded from the rigorous of creamy layer in terms of the notification issued by the Central Government. The Full Bench has already held that so far as the criteria for exclusion under the creamy layer component is concerned there does not exist any repugnancy between the criterion laid down by the State Government and the Central Government.
18. We however, also notice that the Full Bench has categorically held that even if a candidate produces a certificate evidencing that he/she does not get excluded from the rigorous of creamy layer he/she would still have to possess a certificate evidencing that he/she belongs to an O.B.C. group as identified and recognized by the State of Uttar Pradesh. For considering the aforesaid aspect, what we find is that the certificate furnished by the respondent-petitioner dated 5.4.2021 which was issued by the competent authority i.e, the Tehsildar clearly certifies that she belongs to "Ahir" community which is recognized as backward class under the Government of India Resolution dated 10.9.1993 which was published in the Gazette of India, extraordinary dated 13th September, 1993.
25. The only reservation expressed by the learned State counsel to the caste certificate dated 15th April, 2021 is that it is not issued in the manner prescribed by the State Government. The basis for such an argument as advanced by learned State Counsel is that the certificate dated 15th April, 2021 which had been issued by the Tehsildar clearly mentioning therein that it is a certificate to be produced by other backward classes applying for appointment to post under the Government of India. His submission is that the format as appended to the advertisement (Praroop-1) is the form prescribed by the Government for issuance of caste certificate to those who apply for appointment to the post under the State of Uttar Pradesh.
26. It is not in dispute that both the formats i.e, the format in which the respondent-petitioner had obtained the certificate which was issued to her by Tehsildar and the format as appended to the advertisement have been prescribed by the State of Uttar Pradesh itself. The first format is for a certificate to be produced by O.B.C. category candidate applying for appointment to the posts under Government of India whereas the format as appended to the advertisement has been prescribed by the State to be produced by the Other Backward Classes candidates who apply for appointment to the posts under the State of Uttar Pradesh. The Full Bench of this Court in the case of Gaurav Sharma (supra), as discussed above, has already found that so far as the criteria for exclusion on account of a person belonging to creamy layer is concerned there does not exist any repugnancy between the prescriptions made for the said purpose by the Government of India and by the State of Uttar Pradesh. The issue as to whether there is any repugnancy, so far as any person belonging to "Ahir" community claiming his/her status as O.B.C, as prescribed by the State of Uttar Pradesh and the Government of India was not an issue before the Full neither has it been discussed and considered. However, if we examine the reasoning given by the Full Bench for recording that no repugnancy exists so far as the criteria for exclusion of a candidate on account of creamy layer is concerned and apply the same to examine as to whether there is any repugnancy between the identification of a particular community as O.B.C, by the State of Uttar Pradesh and by the Government of India, we find that as far as "Ahir" community is concerned there does not exist any repugnancy. "Ahir" community is included as O.B.C. in the notification issued on 13.9.1993 on the basis of Resolution of the Government of India dated 10th September 1993 as published in the Gazette dated 13th September 1993. Similarly "Ahir" community is mentioned at Entry-1 of Schedule-1 of the 1994 Reservation Act. Hence there is no discrepancy in inclusion of "Ahir" community amongst the Other Backward Classes exist in case any person belonging to "Ahir" community claims reservation available to O.B.C, category candidates for appointment to posts either under the Government of India or under the State of Uttar Pradesh.
27. We may reiterate the basic principle which runs as a common thread through out the judgment of the Full Bench of this Court in the case of Gaurav Sharma (supra) and the thread is that certificate produced by a candidate claiming the benefit of reservation available to O.B.C. category candidate should evidence twin facts (1) that the candidate belongs to a group identified as such by the State Government and (2) that the candidate is not excluded as per the criteria for creamy layer prescribed by the State of Uttar Pradesh.
28. Applying the reasoning as given by the Full Bench in the case of Gaurav Sharma (supra), we, accordingly, are of the opinion that the certificate relied upon and submitted by the respondent-petitioner, dated 15th April 2021 which was issued by Tehsildar, Unnao sufficiently certifies and evidences that the respondent-petitioner belongs to an O.B.C, group identified and recognized by the State of Uttar Pradesh and further that she as per the criteria prescribed by the State of Uttar Pradesh for exclusion under creamy layer does not fall in the creamy layer and hence she is eligible and entitle to claim reservation available to O.B.C. category candidate.
29. Before parting with this case, we may observe that benefit of reservation in public employment to different disadvantaged sections of Society is permissible under the Constitution of India as an affirmative action. It is not in dispute that the respondent-petitioner was given appointment while she claimed the benefit of reservation available to O.B.C. candidates in her selection to the post of Constable (Civil Police). Merely because the certificate produced by her was not in Praroop-1, though the certificate produced by her clearly evidences that she belongs to an O.B.C, group as identified by the State of Uttar Pradesh and also that she does not get excluded as a person belonging to creamy layer in terms of the criteria laid down by the State of Uttar Pradesh for the said purpose, it should not be taken aid of by the State authorities for denying her otherwise constitutionally guaranteed right of affirmative action."
13. The issue that would survive here for consideration is if the caste 'Koeri' is recognized as an OBC, both by the State of Uttar Pradesh and the Government of India. A perusal of the notification published in the Gazette of India dated 13th September, 1993 based on the resolution of the Ministry of Social Welfare dated 10th September, 1993, relating to the notification of OBCs in fourteen States, shows that in the State of Uttar Pradesh 'Koeri' or 'Koiri' are notified as an OBC. So far as the State of Uttar Pradesh is concerned, Schedule 1 appended to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short, 'the Reservation Act'), which is referable to Section 2(b) of the Reservation Act, details the various other backward class citizens recognized by the State. The caste 'Koeri' figures at serial No.15 of Schedule 1 to the Reservation Act in the State of Uttar Pradesh. Once there is no repugnancy between the OBC status of the caste 'Koeri', both for employment under the Government of India vide notification dated 13th September, 1993 and the State services vide Schedule 1 appended to the Reservation Act, it substantially makes little difference whether the certificate issued by the competent Authority in Uttar Pradesh, the Authority competent being the same for employment under the State and the Central Government, has issued the OBC certificate to the petitioner, meant for Central Government services that she has utilized for supporting her candidature to the State Government service involved here. As already remarked, there is no case of a repugnancy regarding the criteria for exclusion of the creamy layer so as to make an OBC certificate by the Authority in Uttar Pradesh for Central Government services, different in any way from the one issued for State Government services. The other principles enunciated in Rinki Yadav would squarely apply to the facts of the present case, entitling the petitioner to relief.
14. In the result this petition succeeds and is allowed. A mandamus is issued to the respondents, ordering them to accept the OBC Certificate submitted by the petitioner and consider his case for selection and appointment to the post of a Sub-Inspector on the basis of the marks secured by him, treating him to be an OBC candidate. Necessary steps shall be taken by the respondents within a period of six weeks of receipt of a copy of this judgment.
15. There shall be no order as to costs.
16. Let the original record be returned forthwith to Mr. Sharad Chandra Upadhyay, learned Standing Counsel for its onward transmission to the respondents concerned.
Order Date :- 07.02.2025
I. Batabyal / Anoop
(J.J. Munir)
Judge
