Chandra Kumar Singh v. State of U. P — 1986 DIGILAW 83 (ALL)

JUDGMENT Om Prakash, J. - This is a writ petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the opposite parties to give the benefit of reservation for 'kushal Khilari' i.e., outstanding sportsmen in the selection for the post of Sub-Inspector in Uttar Pradesh Civil Police direct cadre, 1982, and allow the petitioner to join the Police training college and thereafter absorb him in that service, without any loss of seniority or other benefits. It is admitted case that the recruitment for the post of Sub-Inspectors of Police was made, by the respondent No. 2, for which competitive examination was held on 28/29 March, 1982, in the examination hall of the Public Service Commission, U.P. Allahabad. The petitioner was also a candidate in the said examination. It is averred in Paragraph 7 of the writ petition that the respondent No. 1 vide Government order No. B-52/H-4/74-Niyukti-4, dated 11-2-1975 (Annexure 1 to the Writ petition) (hereinafter referred to as the G.O. of 1975) provided reservation of 1% in category III of such State Government services, which are not filled through the Public Service Commission for the outstanding sport. The said G.O. came into force with immediate effect. The petitioner applied for the post of Sub-Inspector claiming the benefit of reservation, provided for outstanding sportsman in the G.O. of 1975. In Paragraph 3 of the Writ petition, the petitioner claimed that he had taken part in three inter-University boxing tournaments representing the Allahabad University and attached certified copies of the testimonial to his application in support of the fact that he was on outstanding sportsman. It is averred that the petitioner having qualified in the physical efficiency test was called for Written test. There were about 1080 total vacancies of Sub-Inspectors in the competitive examination of 1982. The claim of the petitioner is that on the basis of 1% reservation for outstanding sport man, about 11 posts should have been reserved for outstanding sportsman. The contention is that besides the petitioner, there was only one more candidate, namely, Km. Saroj Shukla, claiming the benefit of such reservation. There being total reservation of 11 posts for outstanding sportsmen on the basis of 10 quota and only two candidates having applied in the category of outstanding sportsmen, the petitioner stated that he should have been selected without any opposition for the post of Sub-Inspector of Police. Saroj Shukla, claiming the benefit of such reservation. There being total reservation of 11 posts for outstanding sportsmen on the basis of 10 quota and only two candidates having applied in the category of outstanding sportsmen, the petitioner stated that he should have been selected without any opposition for the post of Sub-Inspector of Police. It is claimed that the G.O. of 1975 was never superseded until the declaration of the result after interview and, therefore, aright to claim benefit of reservation for outstanding sportsmen was vested in him. The petitioner, however, was not selected and hence this writ petition. 2. A counter affidavits was filed on behalf of the respondents. The short contention of the respondent is that the G.O. of 1975 was superseded by the later G.O. No. 2033/XXXX RA EK1 6/11/77, date 20-8-1977 (Annexure CA IV to the counter affidavit) (for short the G.O. of 1977) in so far as it relates 1% reservation for outstanding sportsmen. In paragraph 3 of the aforesaid G.O. of 1975, it is stated that all the earlier Government orders issued from time to time in regard to reservation of post for all categories would be deemed to have been amended to the extent mentioned in the G.O. of 1977. The G.O. of 1975 to the extent it, admittedly, provided reservation of 1% to outstanding sportsmen having been superseded by the G.O. of 1977 it is averred in the counter affidavit that the petitioner was not entitled to the benefit of reservation. It is stated that the petitioner was always treated as general candidate and that he was not selected: as his performance in the competitive examination was poor. 3. The short question for consideration in this case is whether the reservation of 1% provided under the G.O. of 1975 to outstanding sportsmen continued to remain inforce even after August, 1977, when the G.O. of 1977 came into force. Undisputedly, reservation of 1% was declared for outstanding sportsmen vide G.O. of 1975. The contention of the respondent is that the G.O. of 1975, in so far as it provided reservation to the outstanding sportsmen for class ill services, which are not filed through the Public Service Commission, was superseded by the G.O. of 1977, dated 20-8-1977 that came into force with immediate effect. The contention of the respondent is that the G.O. of 1975, in so far as it provided reservation to the outstanding sportsmen for class ill services, which are not filed through the Public Service Commission, was superseded by the G.O. of 1977, dated 20-8-1977 that came into force with immediate effect. There is no dispute that the post of Sub-Inspector of Police comes in Category III of the State Services and it is not filed in by the Public Service Commission, but the respondent No. 2 is responsible for holding examination for the same. Annexure 1 to the writ petition and Annexure V-A III to the counter affidavit are the G.Os of 1975 and there is no difference between the two. Before giving reply to the above formulated question, it would be apposite to analyse the G.O. of 1975. 4. From perusal of Para 2 of Annexure CA/III it clearly appears that reservation of 1% outstanding sportsmen was made in class III services of the State in all the offices, where reservation of 9% for scheduled castes and 2% for scheduled tribes has been completed. It also provides age relaxation of five years for the outstanding sportsmen. Then we come to Annexure 'CA IV' i.e. G.O. of 1977. From perusal of Annexure "VA-1V" it-appears that the GO of 1977 was necessitated, because the Government of Uttar Pradesh decided to make reservation for Backward class. The G.O. of 1977 did provide reservation of 15% in the services of Classes 1, 11, and 111 and of 10% in the services of Class IV of the State for Backward Class. That was why the reservation made earlier in the Government orders from time to time for various classes were reshuffled. The G.O. of 1977 declared reservation as under : - + oxZ&1 oxZ&2 oxZ&3 oxZ&4 1 vuqlwfpr tkfr 18 izfr0 18 izfr0 25 izfr0 30 izfr0 2 vuqlwfpr tutkfr 2 " 2 " 2 " 2 " 3 lekt ds v{ke O;fDr;ksa ds fy;s 2 " 2 " 2 " 2 " 4 Lora=rk laxzke lsukfu;ksa 5 " 5 " 5 " 5 " 5 lsuk ds fodykax vf/kdkfj;ksa rFkk bejtsalh deh'kUM@'kkVZ lfoZl] deh'kUM vQljksa ,oa HkwriwoZ lSfudksa ds fy;s 8 " 8 " 3 " 3 " 6 fiNM+s oxZ ds fy;s 15 " 15 " 15 " 10 " 5. Paragraph 3 of the G.O. of 1977 clearly stated that the earlier Government orders issued from time to time on the point of reservation would stand amended to this extent. From the detail of the reservation, as reproduced above, it is clear that there was no reservation of 1% for outstanding sportsmen in Class III services and in view of Paragraph 3 of the Annexure "CA-IV" the GO of 1975 in so far as it provided reservation of 1% to outstanding sportsmen, would be taken as having been amended. The result of Para 3 Annexure "VA IV" is that the reservation of 1% that was provided to outstanding sportsmen under the G.O. of 1975 was withdrawn by the G.O. of 1977. 6. In the rejoinder affidavit the petitioner stated in Paragraph 8 that "The G.O. of 1977 was never clear nor explained that 'Kushal Khilari Quota' was ever curtailed or removed In any case to the best of the knowledge of the petitioner it continued to be in operation and the petitioner has remained entitled to the benefits of the same. 7. We do not see any substance in the aforementioned averments of the petitioner. We do not dispute that Annexure CA-IV does not say in so many words that the quota provided for outstanding sportsmen in the G.O. of 1975 has been withdrawn. But the contents of the G.O. of 1977 show beyond reasonable doubt that after August, 1977, reservation for various categories in different classes of service was only in that manner, as provided in the GO of 1977 and there was no other reservation in juxtaposition to the G.O. of 1977. Sri R. R. Singh, learned counsel for the petitioner, himself conceded that in view of the Supreme Court decision, there could not be preservation in excess of 50%. Reservation as provided in Class III services in the G.O. of 1977 for various categories came to 50% and it does not include the category of outstanding sportsmen. The details of reservation as set out in the G.O. of 1977 are, therefore, indicative of the fact that reservation as provided in the G.O. of 1975 to outstanding sportsmen, was withdrawn. The G.O. of 1977 specifically sets out the six categories whom the reservation has been given in four classes of State services in varying proportions. The details of reservation as set out in the G.O. of 1977 are, therefore, indicative of the fact that reservation as provided in the G.O. of 1975 to outstanding sportsmen, was withdrawn. The G.O. of 1977 specifically sets out the six categories whom the reservation has been given in four classes of State services in varying proportions. The category of outstanding sportsman has not been mentioned in the G.O. of 1977 and it is, therefore, explicit that 1% reservation as provided in the G.O. of 1975 to outstanding sportsmen, was discontinued in the G.O. of 1977. After the G.O. of 1977, the petitioner has no basis to believe that the G.O. of 1975 continued as intact and that the right of reservation that vested in the outstanding sportsmen under the G.O. 1975, was not infringed. 8. The foundation of the claim of the petitioner was the G.O. of 1975 and that was completely destroyed by the G.O. of 1977 and, therefore, the petitioner cannot rest his claim on the G.O. of 1975. 9. The argument of Sri R. R. Singh is that in the G.O. of 1977, 2% reservation was given to physically handicapped persons, whose candidature for police services is inconceivable. If the said reservation of 2% is ignored for class 111 service in Uttar Pradesh Civil Police, then the reservation of l%to outstanding sportsmen could continue without violating the decision of the Supreme Court fixing the celling of 50% for the reservation. We are not impressed by this argument. The questions whether or not reservation should be given, who should be the beneficiary of reservation and what should be the percentage of reservation, depend upon the Government policy and in the case of K. Nagraj & others v. State of A.P. and others, 1985 SCC 523 ., the Hon'ble Supreme Court held that policies of the Government are generally not subjected to judicial review, but the Court can go into it, if it is found to be arbitrary or irrational. There is no challenge in the writ petition that the policy of the Government withdrawing the quota of 1% to outstanding sportsmen and providing quota to other categories is arbitrary or irrational and, therefore, we refrain from taking upon us a responsibility to decide the question whether the policy of the Government can be impugned on the ground of arbitrariness. There is no challenge in the writ petition that the policy of the Government withdrawing the quota of 1% to outstanding sportsmen and providing quota to other categories is arbitrary or irrational and, therefore, we refrain from taking upon us a responsibility to decide the question whether the policy of the Government can be impugned on the ground of arbitrariness. It is for the first time that the learned Counsel for the petitioner made an attempt to say that there was no ground to interfere with the reservation of 1% to outstanding sportsmen as provided in the G.O. of 1975, as physically handicapped persons, whom reservation of 2% has been provided in Class III services, cannot be accommodated in the police service. It has to be borne in mind that percentage of reservation for class III services or for other services, as stated in the G.O. of 1977, has been prescribed keeping in view of all the services of the State and not only the police service. If physically handicapped persons have no scope in the police service, they do have scope in other services. So the propriety of percentage of reservation as prescribed in the G.O. of 1977 cannot be seen from the limited angle of police service alone, but that has to be seen keeping in view the over all structure of services of the State Government. Sri Singh cannot argue that the percentage of reservation as provided for Class III services in the G.O. of 1977, is relevant to the Class III services other than the police service and for latter the reservation of 1% remained undisturbed. Even if the physically handicapped persons cannot be considered for police service, we do not see any justification to hold that in place of 2% reservation in Class III services foil physically handicapped persons, reservation of 1% to outstanding sportsmen should continue even after the G.O. of 1977. It is not at all germane to considers whether it was convenient to the Government to adhere to 1% reservation even after enforcement of the G.O. of 1977 and whether the Government was compelled to abolish it to accommodate other category of persons. It is not at all germane to considers whether it was convenient to the Government to adhere to 1% reservation even after enforcement of the G.O. of 1977 and whether the Government was compelled to abolish it to accommodate other category of persons. The G.O. of 1977 being categorical on the question as to who are entitled to reservation and what should be the percentage of reservation for different classes of service of the State Government, we are of the considered view that there is no merit in the contention of the petitioner that to his best belief the G.O. of 1975 continued to remain in force even after the enforcement of the G.O. of 1977. 10. Then it was argued by Sri Singh that in the interview list, the words 'Kushal Khilari' were suffixed to the name of the petitioner and that shows that the G.O. of 1975 continued to remain in force at the time of interview even in the knowledge and belief of the respondents, who are responsible to conduct the examination. We summoned the original interview list of candidates from the Standing Counsel. On perusal of the said list, the contention of the petitioner's Counsel that after the name of the petitioner, the words : "Kushal Khilari were mentioned in the interview list, was found to be correct. The burden of the submission of Sri Singh is that presence of the words 'Kushal Khilari' after the name of the petitioner in the interview list shows that the reservation of 1% to outstanding sportsment, as provided in the G.O. 1975, remained intact at the time of interview and any withdrawal thereof after the interview will be void. To paragraph 12 of the counter-affidavit, it is stated that the words 'Kushal Khilari' did appear after the names of some candidates in the interview list. The question is whether the fact that the name of the petitioner in the interview list was suffixed by the words 'Kushal Khilari', can constitute any guide line to come to the conclusion that reservation of 1% to outstanding sportsmen as declared in the G.O. of 1975, was not abolished even after the G.O. of 1977. While considering this question, we have to bear in mind that the G.O. of 1975 was partially superseded by the G.O. of 1977. While considering this question, we have to bear in mind that the G.O. of 1975 was partially superseded by the G.O. of 1977. The G.O. of 1975 stated two things firstly, that 1% reservation was provided to the outstanding sportsmen in Class III services of the State, and secondly, that outstanding sportsmen would be entitled to aga ed relaxation of five years. The G.O. of 1977 did not supersede the G.O. of 1975 in regard to the second, as the category of outstanding sportsmen was entitled to age relaxation of five years even after enforcement of the G.O. of 1977 and, therefore, the presence of the words 'Kushal Khilari' after the names of the candidates, who were classified 'Kushal Khilari', was not irrelevant or out of place. So long as, the G.O. of 1977 (Annexure 'CA-IV') is unambiguous and its interpretation does not admit any other position, except the one that reservation of 1 % was done away with, there is no substance in the argument of Sri Singh that the G.O. of 1975, in so far as that provided reservation of 1% to outstanding sportsmen, could not be said to have stood amended or abrogated by the G.O. of 1977. It is wrong to say that even the belief of the respondents was the same, as it is of the petitioner. Annexure 'CA V' to the counter-affidavit is a letter dated 17th October, 1982, by the Joint Secretary of the Home Department. In this letter, that was addressed to the Police Headquarter at Allahabad, it was clarified that ofter the G.O. of 1977, the quota of 1% for outstanding sportsmen had ceased to exist. This clarification establishes that the respondents did not harbour under a wrong impression that reservation of 1% continued even after the G.O. of 1977. There is nothing on record to show that reservation of 1% was abolished on or after the interview. 11. Lastly, it was argued that Km. Saroj Shukla also applied as an outstanding sportsman for the post of Sub-Inspector of Police and that the approached to this court, when she was denied the benefit of reservation for outstanding sportsmen, then it was argued that there was permitted to join the Police Training College. She having been allowed to undergo training in the Police Training College, the argument of Sri Singh is that the petitioner has simply been discriminated against. She having been allowed to undergo training in the Police Training College, the argument of Sri Singh is that the petitioner has simply been discriminated against. This argument is wholly misconceived. What happened is that Km. Saroj Shukla also applied as outstanding sportswomen. When she was not selected, she filed a writ petition in this Court claiming the benefit of reservation. The Standing Counsel, who has called upon to file the counter-affidavit, failed to comply with the order ; thereupon the Court observed in the interim order dated 22-10-1982, which has been reproduced in the instant writ petition as follows : - "In these circumstances, there is no option but to direct the respondents permit the petitioner to join the ensuing course at the Police Training College, Moradabad, for Sub-Inspectors, which according to the learned Counsel for the petitioner is likely to commence in the first week of November, 1982." 12. It is, therefore, clear that the respondents did not permit Km. Saroj Shukla to join the Police Training College on their own, but only consequent upon the order of this Court, which was passed, because no counter-affidavit was filed for and on behalf of the respondents. In these circumstances, the plea of discrimination cannot be raised. The position would have been different had the respondents allowed Km. Saroj Shukla, who was similarly situated, to join the Police Training College on their own. Then surely the petitioner would have argued that he was discriminated against. 13. There being no reservation after the G.O. of 1977 for outstanding sportsmen, no right is vested in the petitioner to claim the benefit of reservation. 14. In the result, the writ petition fails and is dismissed. The parties will, however, bear their own costs.