Uttarakhand High Court
Rashmi Supyal vs State Of Uttarakhand And Others on 10 March, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition(S/S) No. 283 of 2024
Rashmi Supyal ........Petitioner
Versus
State of Uttarakhand and others ........Respondents
Present:-
Mr. Vinay Kumar, Advocate for the petitioner.
Mr. Ganesh Kandpal, Additional C.S.C. for the
State/respondent nos. 1, 2 and 4.
Ms. Menka Tripathi, Advocate for the respondent no.3
through video conferencing.
Mr. Shobhit Saharia, Advocate for the respondent no.5.
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to the final
result dated 12.02.2024, issued by the respondent no.3,
Uttarakhand Public Service Commission, Haridwar ("the
Commission"), so far as, it pertains to the final selection of the
respondent no.5 to the post of Deputy Jailor, Department of
Home, Uttarakhand under EWS/UF category and to revise the
same by including the name of the petitioner. The petitioner
has also sought directions that her candidature may be
treated under EWS category based on EWS certificate issued
by the respondent no.4, Tehsildar, Tehsil Almora on
18.02.2021.
2. Heard learned counsel for the parties and perused
the record.
3. The facts, briefly stated, are as follows:-
(i) On 09.08.2021, the Commission published an
advertisement for recruitment on various
posts including 27 vacancies on the post of
Deputy Jailor.
(ii) The petitioner responded to the advertisement.
She was issued an admit card.
(iii) The petitioner cleared the preliminary
examination.
(iv) The petitioner appeared in the mains
examination, which she also cleared of which
the result was declared on 02.06.2023. But, at
the stage of documents verification, the
petitioner was told that she did not have a
valid EWS category certificate.
(v) By a communication dated 27.07.2023, of the
respondent no.3, the Commission, the
petitioner was required to file either the EWS
category certificate or a report of the
competent officer.
(vi) The petitioner did obtain a report from the
respondent no.4, the Tehsildar, Almora, which
is Annexure 11, but finally, the candidature of
the petitioner was not considered in EWS
category and it was rejected. It is impugned
herein.
4. It is a case of the petitioner that, in fact, she was
given EWS category certificate on 18.02.2021 by the
respondent no.4, the Tehsildar which was valid for one year as
marked on it. Therefore, the certificate is valid.
5. The respondent State, the respondent no.3, the
Commission and the respondent no.5, all have filed their
counter affidavits. It is the contention of the respondents that
the petitioner had procured EWS category certificate on
18.02.2021, which was based on the family income of the
petitioner in the Financial Year-2019-20. This certificate
dated 18.02.2021 could have been valid till 31.03.2021 and
not beyond that. It is the contentions of the respondents in
their pleadings that since the petitioner did not have any valid
EWS category certificate for the Financial Year 2021-22,
therefore, her candidature was rightly rejected.
6. Learned counsel for the petitioner would submit
that the petitioner was under the bonafide belief that she is
being treated under EWS category because for mains
examination, she was issued an admit card by the respondent
no.3, the Commission and in that also, she has been shown
under EWS/Uttarakhand Female category. Learned counsel
would raise the following points also:-
(i) The Uttarakhand Public Services (Reservation
for Economically Weaker Sections) Act, 2019
("the Act") provides procedure on the subject.
Reference has been made to Section 3 of the
Act, which reads as follows:-
"Reservation 3. (1) In public Services and posts,
in favour of on the order of direct recruitment
economically vacancies to be recruited in
weaker accordance with the roster
section specified in sub-section (4), 10
percent shall be reserved in the
favour of concerned persons of the
economically weaker sections.
(2) (a) In public services and
posts, the reservation in favour of
economically weaker sections
shall be given to such permanent
residents of the State of
Uttarakhand, which are not
included in the existing
reservations schemes for
Scheduled Castes, Scheduled
Tribes and Socially and
Educationally Backward Classes.
(b) The persons of such
economically weaker sections are
identified for the reservation as
economically weaker section,
whose gross annual income of
family, from all sources is less
than Rs. 8.00 (Rs. eight lakh).
Family income includes income
received from all source namely-
salary, agriculture, profession,
business etc. The said income
shall be income of the previous
financial year, from the year of
application, by the beneficiary;
Provided that the person or
their family possess any property,
from the following properties,
shall not be eligible for the
reservation as economically
weaker sections:-
(i) 5 acre of agricultural land
or above; or
(ii) Residential building of 1000
sq. Feet or above; or
(iii) Residential plot of 100 sq.
Yards or above in notified
municipalities; or
(3) If, in respect of any year
of recruitment, any vacancy
reserved for any category or
persons under sub-section (1)
remains unfilled, the special
recruitment shall be made for
filling such vacancy from
amongst the persons
belonging to that category.
(4) The State Government shall,
for applying the reservation
under sub-section (1), by
notified order issue a roaster
which shall which shall
continuously apply, till it is
exhausted.
(5) If a person belonging to
economically weaker sections
as mentioned in sub-section
(1), get selected on the basis
on merit in an open
completion with general
candidates, he/she shall not
be adjusted against the
vacancies, reserved for such
category, under sub-section
(1)."
(ii) Learned counsel would submit that in Section
3 (2) (b) of the Act, in the last sentence, the
word "application" relates to the application
which a person submits for obtaining the EWS
category certificate. He would submit that
word "application" does not relates to an
application which a candidate files in response
to an advertisement for recruitment.
(iii) Government Order dated 29.04.2019, ("GO
dated 29.04.2019") which prescribes format
for EWS category certificate in para 5 also
records that the EWS category certificate,
which is issued till the date of advertisement,
may only be valid.
(iv) There was some confusion with regard to the
implementation of the Act, because the format
which is enclosed with the GO dated
29.04.2019 does not specifically writes
financial year on its top, instead a word "year"
has been included and pursuant to it, the
respondent no.4, the Tehsildar, Almora had
issued a certificate to the petitioner under the
EWS category on 18.02.2021 marking it as
valid for one year. It is argued the certificate
should be considered for next one year i.e. till
18.02.2022 and according to it, on the last
date of submission of the application form i.e.
on 29.02.2021, the petitioner had a valid
certificate.
7. Learned counsel for the State would submit that
along with GO dated 29.04.2019, the format is categorically
clear and in its body it records the income of the particular
financial year. It is argued that this GO dated 29.04.2019 is
to be read alongwith Section 3 (2) (b) of the Act, which makes
it abundantly clear that EWS category certificate is always
issued depending upon previous year's financial condition of a
person. It could be valid for one year from the financial year in
which the income has been assessed. It is argued that it is
true that the format which was issued alongwith GO dated
29.04.2019 was clarified by the Government on 09.11.2021,
but it has not made any modification as such. The petitioner
has no claim.
8. On behalf of the respondent no.3, the Commission
it is argued that the petitioner did not have any valid EWS
certificate on the last date when the applications were to be
submitted.
9. Learned counsel for the respondent no.5, who has
been selected under the EWS category, would submit that the
candidature of the petitioner has rightly been rejected. He
would submit that the Act is clear. There is no ambiguity in it.
If there was any confusion and clarification has been issued to
clarify the format enclosed with GO dated 29.04.2019, it does
not make any difference. The clarification issued on
09.09.2021 does not make any modification or amendment in
the initial GO dated 29.04.2021. Therefore, it is argued that
the clarification would relate back.
10. Learned counsel would submit that Section 3 (2) (b)
of the Act is quite clear. In this sub-Section, the word
"application" in the last sentence relates to application of a
candidate who seeks recruitment in the public services. It is
argued that a candidate should possess EWS category
certificate on the last date of submission of the application
form, which should be based on the income assessed in the
previous financial year of the year of recruitment.
11. In fact, the dispute is in a very short compass.
Facts are not in dispute. The petitioner appeared in the
examination. She cleared the mains examination. She had a
EWS certificate issued by the respondent no.4, the Tehsildar,
Almora on 18.02.2021. The dispute has its origin to the
certificate that was issued to the petitioner. According to the
petitioner, the certificate which was issued by the respondent
no.4, the Tehsildar on 18.02.2021 is to be valid for one year.
Whereas, on behalf of the respondents it is stated that the
validity of the certificate may be considered in accordance
with the provisions of the Act and not as to what the
competent officer writes on it.
12. It is true that in her admit card for mains
examination, the respondent no.3, the Commission has
categorised the petitioner under the EWS Uttarakhand Female
category, but it has been responded to by the learned counsel
for the respondent no.5 that these are the datas which are
preserved at the time when a candidate fills up the form and
for issuance of the admit card those datas are retrieved and
admit cards are issued. He would submit that it does not give
a right to the petitioner to claim her eligibility under EWS
Uttarakhand Female category. This argument has force.
Merely because under EWS category, the admit card is issued,
the petitioner cannot claim her right. It has to be
independently established. The fact remains that admit card
was issued showing the petitioner under EWS Uttarakhand
Female category.
13. The interpretation of Section 3 (2) (b) of the Act
would find some deliberations. A person whose gross income
is less than Rs. 8 Lakh from all sources is considered, a
person belonging to economically weaker section. Last
sentence of Section 3 (2) (b) of the Act clarifies this further. It
says that "the income shall be income of the previous financial
year, from the year of application, by the beneficiary." It
makes everything crystal clear. Whenever an EWS Category
certificate is issued, it may relate back to the financial year.
There is no confusion to it. For example, if in the month of
April, 2020 a certificate under EWS Category is issued, based
on the income of a person for the Financial Year 2019-2020.
Such certificate shall definitely has force for the next financial
year i.e. from 01.04.2020 to 31.03.2021.
14. In the instant case, apparently the petitioner was
issued the EWS category certificate on 18.02.2021 by the
respondent no.4, Tehsildar, Almora. It records the family
income of the petitioner for the Financial Year 2019-2020 as
Rs.8 Lakh. But, it is stated at the top of it that it is valid for
one year. The reckoning period of one year has also not been
mentioned in the certificate that was issued to the petitioner.
One year from which date? Does it mean, one year from the
financial year for which the income has been assessed? If it
so, it means that this certificate which was issued to the
petitioner was valid for the Financial Year 2020-2021.
15. This format was subsequently clarified by the GO
dated 09.09.2020 and a new format was issued. On the top of
it, it marks that for which financial year it is valid. It does not
add or modify anything.
16. Learned counsel for the respondent no.5 would
submit that such clarificatory GO has retrospective effect. He
would submit that if clarificatory GO modifies some action or
amends something and by the time right has already been
accrued to some person, such GO shall have only prospective
effect. In support of his contention, he would refer to the
principles of law, as laid down by the Hon'ble Supreme Court,
in the case of Sree Sankaracharya University of Sanskrit and
others Vs. Dr. Manu and another, 2023 SCC OnLine SC 640.
17. In the case of Sree Sankaracharya University
(supra), in para 45 of the judgment, the Hon'ble Supreme
Court observed as follows:-
"45. It is trite that any legislation or instrument
having the force of law, which is clarificatory or explanatory
in nature and purport and which seeks to clear doubts or
correct an obvious omission in a statute, would generally be
retrospective in operation, vide Ramesh Prasad Verma.
Therefore, in order to determine whether the Government
Order dated 29th March, 2001 may be made applicable
retrospectively, it is necessary to consider whether the said
order was a clarification or a substantive amendment."
18. In the instant case, the Act is quite clear. Section 3
(2) (b) of the Act, makes it abundantly clear that EWS category
certificate pertains to the financial year only. It cannot have
any life based on calendar year or for length of any year from
the date of issuance. The GO dated 09.09.2021 by which the
format of the EWS category certificate as enclosed with GO
dated 29.04.2019 has been clarified does not add anything,
merely it makes clarification. Therefore, it cannot be said that
since there was any confusion, the petitioner may have any
right to claim the validity of EWS category certificate issued by
the respondent no.4 on 18.02.2021 for one more year from
that date. The petitioner had EWS category certificate issued
on 18.02.2021, passed on the income of the petitioner in the
financial year 2019-20. Therefore, this EWS certificate is valid
for the financial year 2020-21. It further makes it clear that
on the last date of submission of the application form, in the
instant case, the petitioner did not have any valid EWS
certificate. Therefore, the petitioner cannot claim her right
under EWS category.
19. In view of the foregoing discussion, this Court is of
the view that there is no reason to make any interference in
the matter. Accordingly, the writ petition deserves to be
dismissed.
20. The writ petition is dismissed.
(Ravindra Maithani, J)
10.03.2025
Jitendra
