WPSS/2684/2019
2022 Latest Caselaw 1802 UK

                Office Notes,
             reports, orders or
SL.           proceedings or
      Date                                            COURT'S OR JUDGES'S ORDERS
No             directions and
             Registrar's order
              with Signatures
                                  WPSS No. 2684 of 2019
                                  with
                                  WPSS No. 2683 of 2019
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Bhagwat Mehra and Mr. K.K. Harbola, Advocates for the petitioner.

Mrs. Anjali Bhargava, Additional C.S.C. for the State of Uttarakhand.

Heard learned counsel for the parties. Since common questions of law and facts are involved in these writ petitions, therefore they were heard together and are being decided by a common judgment. However for sake of brevity, facts of Writ Petition (S/S) No.2684 of 2019 are being considered and discussed.

                                         Petitioner      belongs      to    Other     Backward
                                  Classes.     Respondent            no.     2      issued   an
                                  advertisement            on       02.03.2019,         inviting

applications for appointment as Home Guard. Petitioner responded to the said advertisement and claimed benefit of reservation available to Other Backward Classes. Since he was not appointed even after scoring more marks than the last selected candidate in O.B.C. Category, therefore, he has approached this Court seeking the following reliefs:

"A. To issue a writ order or direction in the nature of Certiorari for quashing the impugned result dated 31-10-2019 (Annexure No. 6 to the writ petition).

B. To issue a writ order or direction in the nature

to appoint the petitioner as Home Guard in Village Platoon Lamgara, District Almora, after revising the final result dated 31-10-2019, from due date. C. To issue a writ order or direction in the nature of mandamus to the Respondent No. 2 to grant all consequential benefits to the petitioner."

By an interim order dated 12.12.2019, this Court directed the respondents to permit the petitioner to participate in the on-going training of Home Guard provisionally, which shall be subject to final outcome of the writ petition.

A counter affidavit has been filed. Paragraph no. 3 of the counter affidavit is reproduced below: "3. That the contents of para 1 of the writ petition insofar as the same pertain to the matter of record call for no comment. However, so far as the contention of the petitioner that the person who scored 22 marks have been selected and the petitioner despite scoring the 26 marks and despite belonging to the OBC category has not been selected is concerned, in this regard it is submitted here that the petitioner in his application has annexed the caste certificate dated 24-02-2016 in support of his candidature being a OBC candidate. However, it is respectfully submitted that as per the Government order no. 590/XXVII-2/12-05 (OBC)/ 2010 dated 30th May, 2012 the validity of OBC certificate issued to the petitioner was 01 year and thereafter the State Government issued another Government Order dated 26-02-2016 whereby the validity of the OBC certificate was extended from 01 year to 03 years from the date of the issuance of the Certificate. Since the validity of the OBC caste certificate submitted by the petitioner with the application form was only for 01 year as per the G.O. dated 30th May, 2012 as such the petitioner's OBC caste certificate dated 24-02-2016 submitted alongwith the application form was not valid on the dated of submission of the application form, therefore, he was not granted the benefit of OBC caste certificate and consequently the name of the petitioner could not find place in the merit list as an OBC candidate and was not selected for the post of Home Guard."

Thus, the stand taken in the counter affidavit is that validity of petitioner's O.B.C. Certificate had expired on the day when he submitted application in pursuance to the advertisement, therefore, he was not given benefit of reservation available to Other Backward Classes. The stand taken by the respondents is unacceptable. Caste status is acquired by a person by birth. It is not in dispute that petitioner belongs to Other Backward Classes and a Caste Certificate issued to the petitioner, subsequent to selection in question, has been enclosed with the writ petition, which is issued on 11.11.2019. A certificate issued by Competent Authority is only an affirmation of fact, which is only in existence. It is not that petitioner did not belong to Other Backward Classes before 11.11.2019. Respondents admit that earlier caste certificate issued on 24.02.2016 was enclosed with petitioner's application. Thus, merely because on the date of submission of application, validity of earlier caste certificate dated 24.02.2016 had expired, cannot be a valid ground for rejecting his claim for appointment against a post reserved for Other Backward Classes.

A similar question was considered by Hon'ble Supreme Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, reported in (2016) 4 SCC 754. Paragraph nos. 16, 17 & 18 of the said judgment are reproduced below for ready reference: "16. In the case of Pushpa (supra), relevant paragraphs from the case of Tej Pal Singh (supra) have also been extracted, which read thus :-

"11...... ...'15. 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.

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 Arts. 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."

17. Further, in the case of Pushpa (supra), relevant portion from the judgment of Valsamma Paul's case (supra) has also been extracted, which reads as under:- "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."

18. 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."

Admittedly, in the present case, caste status of petitioner is not disputed. Petitioner has been denied appointment against a post reserved for Other Backward Classes only on the ground that validity period of his caste certificate had expired on the date of submission of application by him. Since subsequently another caste certificate was issued to the petitioner on 11.11.2019, therefore, the Competent Authority is required to re- consider petitioner's claim for appointment against a reserved post, in the light of caste certificate issued to petitioner on 11.11.2019.

Accordingly, the writ petitions are allowed. Respondent no. 2 is directed to re-consider petitioner's claim for appointment in the light of caste certificate issued to the petitioner on 11.11.2019 and pass fresh order, in accordance with law, within a period of four weeks' from the date of production of certified copy of the order alongwith copy of caste certificate.

(Manoj Kumar Tiwari, J.) 23.06.2022 Arpan