Satish Urao vs High Court Of Madhya Pradesh
2022 Latest Caselaw 2901 MP

                                        1

    IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                     BEFORE

                     HON'BLE SHRI JUSTICE SHEEL NAGU

                                        &

             HON'BLE SHRI JUSTICE MANINDER SINGH BHATTI

                          ON THE 2nd OF MARCH, 2022

                      WRIT PETITION No. 3404 of 2022

  Between:-
  SATISH URAO S/O SHRI RAM SINIGH URAO , AGED ABOUT 31 YEARS,
  OCCUPATION: UNEMPLOYED R/O KAMBOJ COLONOY, TIGHRA,
  KHAMARIA, JABALPUR (M.P.) (MADHYA PRADESH)
                                                                  .....PETITIONER
  (BY SHRI AMIT SETH, ADVOCATE)

  AND

   HIGH COURT OF MADHYA PRADESH THROUGH ITS REGISTRAR
1. GENERAL HIGH COURT PRINCIPAL SEAT AT JABALPUR, M.P. (MADHYA
   PRADESH)
   PRINCIPAL DISTRICT AND SESSIONS JUDGE, HARDA DISTRICT-HARDA
2.
   (MADHYA PRADESH)
                                                             .....RESPONDENTS
  (BY SHRI KHALID NOOR FAKHRUDDIN, ADVOCATE)



             This appeal coming on for admission and interim relief this day,

Hon'ble Shri Justice Maninder Singh Bhatti passed the following:

                                     ORDER

The petitioner has filed this petition while praying for the following

reliefs:-

I. Hon'ble Court may be pleased to call for the relevant records from the possession of the respondents for its kind perusal;

II. Hon'ble Court may be pleased to issued appropriate writ/order/direction quashing the impugned order dated 4.02.2022 (Annexure P/1) passed by the respondent no.2 as ex facie arbitrary and illegal;

III. Hon'ble Court further be pleased to issue a writ in the nature of Mandamus commanding the respondent to forthwith accept the caste certificate dated 14.01.2022 submitted by the petitioner and accordingly issue him appointment order for the post of Peon/Waterman/Chowkidar alongwith all consequential benefits including arrears of pay, seniority, etc;

IV. Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition.

2. The petitioner submits that he belongs to scheduled tribe category and, he

is 'Orao" by tribe. He further submits that his fore-fathers hail from

Chhattisgarh area and thus, he was issued a scheduled tribe certificate from the

State of Chhattisgarh and the tribe 'Orao' has been recognized as scheduled

tribes category in the State of M.P. as well as State of Chhattisgarh. The

petitioner also submits that he is a domicile and permanent resident of Jabalpur.

On the strength of aforesaid testimonial to his credit, the petitioner applied for

the posts of Peon/Waterman/Chowkidar which were advertised by the

respondents vide advertisement dated 26/10/2022. According to the petitioner

that as per advertisement the last date of submission of application form was

24/11/2021 and the interview process was to take place on 26/12/2021. He

applied for the post and submitted his online application. It is also submitted by

the petitioner that he was issued an admit card to participate in the process of

interview which were scheduled on 26/12/2021 and, he further submits that

while taking note of his performance in the interview, he was selected and was

thus called upon for verification of his document on 17/01/2022 however, after

submission of the document on 17/01/2022 he was awaiting the issuance of his

appointment order but to his surprise, he was served with the impugned order

dated 4/02/2022 by which, the petitioner was intimated that his selection for the

post of Peon under reserved scheduled tribe category is cancelled on account of

non-fulfillment of the documents. The petitioner also submits that later on, the

petitioner also submitted the caste certificate issued by the State of Madhya

Pradesh dated 14/01/2022 but the same was not taken into consideration on the

ground that the same was issued after the cut off date i.e. 24/11/2021 prescribed

in the recruitment advertisement dated 26/10/2021.

3. The respondent nos. 1 and 2 have filed the return to the writ petition in

which they submit that Clause 4 of the advertisement specifically provided that

the candidate who do not belong to State of Madhya Pradesh, they will mention

their category to be unreserved in the application form and they will only apply

for the vacancies in the unreserved category and the benefit of the reservation

shall only be extended to domiciles of the State of Madhya Pradesh. The

Clause 5 (2) of the advertisement further highlighted by the respondents

according to which, the candidates of reserved category were required to

produce a permanent caste certificate issued by the competent authority of the

State of Madhya Pradesh else their candidature will not be taken into

consideration. The counsel also referred to Clause 6 (13) and submitted that if a

candidate who does not belong to State of MP. and hails from the State outside

the State of Madhya Pradesh and applies under the reserved category, as a

result, he will incur ineligibility. The respondents also submit that the petitioner

who submitted the tribe certificate which was issued by the State of

Chhattisgarh and, therefore, since the petitioner was not fulfilling the eligibility

criteria of the advertisement as mentioned in Clause 4, 5(2) and 6 (13), his

candidature was rightly cancelled by the impugned order. The respondents also

submit that the caste certificate which the petitioner sought to produce after the

cut off date was infact was issued on 14/01/2022 and thus, the petitioner was

not eligible to be considered and the impugned order required no interference

inasmuch as the same was passed while taking due consideration the factum

with regard to non-submission of a document pertaining to eligibility criteria

before cut off date.

4. We have heard the learned counsel for the parties at length.

5. The counsel for the petitioner submits that he belongs to Orao tribe which

is undisputably a recognized scheduled tribe in both the States i.e. the State of

Chhattisgarh as well as State of Madhya Pradesh even upon per-organization of

the State in the year 2000. The counsel further submitted that he is Orao by

tribe by birth and, this fact is evident from the perusal of his domicile certificate

and therefore, while relying upon the decision of Hon'ble Supreme Court in the

case of Ram Kumar Gijroya Vs. Delhi Subordinate Service Selection Board

and another, 2016 (4) SCC 754 submits that non-submission of the tribe

certificate within the cut off date, which rendered the petitioner to be ineligible

amounts to denial of equality of opportunity as contemplated under Articles 14,

15 and 16 of the Constitution of India and therefore, while placing reliance

upon the case of Ram Kumar Gijroya (supra), the counsel submits that the

judgment of Delhi High Court in the case of Pushpa Vs. Govt. (NCT of Delhi)

reported in 2009 SCC OnLine Del 281, which was referred by the Apex Court

in the decision of Ram Kumar Gijroya (supra) clearly held that the object of

providing reservation to the SC/ST and educationally socially backward classes

of the society is to remove inequality in public employment thus, the petitioner

submitted that the action of the respondents was bad.

6. Per contra, counsel for the respondents while placing upon the reliance on

Bhagyashree Syed Vs. State of M.P. and others, 2018 (4) MPLJ 710,

Sudhanshu Jadia Vs. High Court of Madhya Pradesh, W.P. No. 13963/2019

decided on 5/04/2021 and also the order dated 3/09/2021 passed in W.A. No.

750/2021 (Ranu Singh Vs. State of Madhya Praesh) as well as the order

dated 10/11/2021 passed in W.P. No. 24224/2021 (Lalita Swarnkar Vs. The

State of Madhya Pradesh and others) submitted that if a candidate acquires

ineligible criteria after the cut off date, his candidature is not required to be

considered. Accordingly, counsel for the respondents submits that the petition

deserves to be dismissed.

7. We have considered the rival submissions of the parties.

8. The question which is involved in the present petition is squarely covered

by the decision of the Apex Court in the case of Ram Kumar Gijroya (supra).

The Apex Court categorically held in paragraphs 16, 17 and 18 as under :-

16. In Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , relevant paragraphs from Tej Pal Singh [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] have also been extracted, which read thus: (Pushpa case [Pushpa v.

Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 11) "11. ... '15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 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 he 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 30-6-1998 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 30-6-1998

would be clearly arbitrary and it has no rationale objective sought to be achieved.

16. 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.' (Tej Pal Singh case [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] , SCC OnLine Del paras 15-16)"

17. Further, in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , relevant portion from the judgment of Valsamma Paul case [Valsamma Paul v.

Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] has also been extracted, which reads as under: (Pushpa case [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 11) "11. ... '17. ... "21. The Constitution through its Preamble, fundamental rights and directive principles created a secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order." (Valsamma Paul case [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 :

(1996) 33 ATC 713] , SCC pp. 560-61, para 21)' (Tej Pal Singh case [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] , SCC OnLine Del para 17)"

18. In our considered view, the decision rendered in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] 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 Indra Sawhney [Indra Sawhney v. Union of

India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and Valsamma Paul [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State policy held that the object of providing reservation to the SCs/STs 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 39-A 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 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 Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and Valsamma Paul [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] . Therefore, the impugned judgment and order [Delhi Subordinate Services Selection Board v. Ram Kumar Gijroya, 2012 SCC OnLine Del 472 : (2012) 128 DRJ 124] 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 Ram Kumar Gijroya v. Govt. (NCT of Delhi) [Ram Kumar Gijroya v. Govt. (NCT of Delhi), WP (C) No. 382 of 2009, order dated 24-11-2010 (Del)] is hereby restored.

9. The Apex Court, thus, while taking note of the Articles 14, 15, 16 and

39-A of the Constitution of India, categorically held that the non-submission of

a caste/tribe certificate does not render a candidate ineligible if the certificates

are submitted even after the cut off date.

10. In the present case, the petitioner submitted the tribe certificate which

was issued by the State of Chhattisgarh alongwith the application and, even

submitted the tribe certificate issued by the State of Madhya Pradesh dated

14/01/2022 which was submitted prior to the verification of the document on

17/01/2022 therefore, the certificate so produced by the petitioner ought to have

been taken into consideration and, thus, the candidature of the petitioner could

not have been rejected merely on the ground that on the cut off date the

petitioner did not have the eligibility criteria of having a scheduled tribe

certificate duly issued by authorities of State of Madhya Pradesh. So far as the

reliance which is placed upon by the counsel for the respondents on the decision

of Bhagyashree Syed (supra), that was a case where the disqualification was

pertaining to having more than two children and, it was held that the

candidature of the petitioner in that case was cancelled on the ground of

disqualification therefore, the case of Bhagyashree Syed (supra) has no

applicability. Simultaneously, the order dated 10/11/2021 passed in W.P. No.

24224/2021 also does not relate to the eligibility criteria pertaining to

submission of a caste/tribe certificate. On the contrary, the issue in the said case

was to the effect that a candidate upon his migration to another State, does not

seek employment on the strength of caste certificate of his original State and,

the said decision is based on the judgment of Apex Court in the case of Actioin

Committee on Issue of Caste Certificate to Scheduled Castes and

Scheduled Tribes in the State of Maharashtra and another Vs. Union of

India and another reported in (1994) 5 SCC 244 however, this order has no

applicability as regard the facts of this case.

11. The decision which has been further relied upon by the respondents i.e.

order dated 5/04/2021 passed in W.P. No. 13963/2019, that was a case where the

eligibility of submission of computer certificate was in question and therefore,

the court held that the petitioner involved disputed question of fact and such

question could not have been adjudicated in the exercise of writ jurisdiction and

thus, the co-ordinate bench declined to interfere with the matter thus, the said

order has no nexus with the dispute in hand at the present case.

12. Lastly, counsel for the respondents has relied upon the judgment dated

3/09/2021 delivered in W.A. No. 750/2021. In the aforesaid judgment the issue

was submission of caste certificate at the time of applying for the post of

Anganwadi Worker and, the facts of the case reveled that in said case the caste

certificate was sought to be submitted after the date of submission of the

application form. Thus, the coordinate bench while placing reliance upon the

case of Draupati Tiwari Vs. State of M.P. & Ors. 2013 (2) MPLJ 407 held

that the eligibility conditions are required to be fulfilled on the cut off date and

the acquisition of eligibility condition after the cut off date is impermissible.

However, the perusal of the judgment dated 3/09/2021 delivered in W.A. No.

750/2021 reveals that the decision of the Apex Court in Ram Kumar Gijroya

(supra) was not taken into consideration in the aforesaid judgment and nor even

referred by any of the parties therefore, in the aforesaid judgment of Ranu

Singh (supra) the decision of the Apex Court in the case of Ram Kumar

Gijroya (supra) was not taken note of and thus, apparently the question with

regard to the submission of a caste/tribe certificate even after the cut off date is

no more res integra in view of the law laid down by the Apex Court in the case

of Ram Kumar Gijroya (supra).

13. Thus, in view of the aforesaid analysis, we have no hesitation to quash

the impugned order dated 4/02/2022 contained in Annexure P/1 and

accordingly, the same stands quashed. The respondents are directed to consider

the petitioner's candidature on the basis of caste certificate dated 14/01/2022

submitted by the petitioner and accordingly consider the case of petitioner for

appointment against the post of Peon/Waterman/Chowkidar.

14. Accordingly, petition stands allowed. No order as to costs.

                             ( SHEEL NAGU)                         (MANINDER SINGH BHATTI )
                                 JUDGE                                     JUDGE

         nn
Digitally signed by NAVEEN
NAGDEVE
Date: 2022.03.04 17:10:15 +05'30'