Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 646 (UTT)

Mohit Kumar v. State of Uttarakhand

2017-12-12

U.C.DHYANI

body2017
JUDGMENT : U.C. DHYANI, J. 1. By means of preset writ petition, the petitioner seeks following reliefs, among others: (i) issue an appropriate order, writ or direction in the nature of certiorari commanding the respondents to quash the impugned selection of respondent nos. 4 and 5, vide Notification no. 1135/Saat-Bhulekh/Ra. U. Nee. Prasi. Chayan Pariksha-2016 dated 08.09.2016, in the interest of justice to the petitioner. (ii) issue an appropriate order, writ or direction in the nature of mandamus commanding the respondent nos. 2 and 3 to grant benefit of OBC reservation to petitioner and hence include petitioner’s name at suitable place according to his marks obtained in the competitive examination, in the interest of justice to the petitioner. (iii) issue an appropriate order, writ or direction in the nature of mandamus commanding the respondent nos. 2 and 3 to re-notify the list of selected candidates after proper scrutiny of papers of each candidate and the marks obtained by each candidate in the competitive examination as per their applicable reserve category, in the interest of justice to petitioner. 2. Petitioner is admittedly OBC candidate, who applied for the post of Lekhpal. His candidature was rejected only because he did not furnish correct OBC certificate. Vide order dated 10.01.2017, a co-ordinate Bench of this Court, while allowing the interim relief application, directed the respondent authorities to permit the petitioner to participate in the ongoing training. It was, however, clarified that the training of the petitioner shall not give any right to him sd the validity of his OBC certificate, which is subject matter of consideration before this Court in present writ petition. It was also made clear that the petitioner shall be allowed to participate in the ongoing training without disturbing the candidature of any of the candidates. 3. On the strength of this interim order, the petitioner was permitted to undertake the training. Petitioner is still a trainee in Patwari Training School, Almora. 4. It is a case in which the petitioner although furnished his OBC certificate but, subsequent thereto, the authorities concerned insisted for current OBC certificate to ascertain whether the petitioner falls under the creamy layer or not? Such certificate was supplied by the petitioner to respondent nos. 1 and 2. 5. Annexure no. 1 to the rejoinder affidavit indicates that the petitioner belongs to OBC category and does not fall within the creamy layer. Such certificate was supplied by the petitioner to respondent nos. 1 and 2. 5. Annexure no. 1 to the rejoinder affidavit indicates that the petitioner belongs to OBC category and does not fall within the creamy layer. The name of the petitioner figures at Sl. no. 43 of the list prepared by respondent no. 2. 6. The following extracts of the judgment rendered by Hon’ble Apex Court in Ram Kumar Gijroya vs Delhi Subordinate Services Selection Board and another, (2016) 4 SCC 754 , are relevant for deciding the present controversy and, therefore, those observations are being reproduced here-in-below for convenience: “…..On enquiry, he was informed by the concerned official that he was not selected to the post for the reason that he had failed to submit the OBC certificates issued by the appropriate authority along with application form before the last date of submission of application form. Aggrieved of the action of respondent-DSSSB, the appellant, along with the other aggrieved candidates, filed Writ Petition (C) no. 382 of 2009 before the learned Single Judge of the High Court of Delhi, seeking the issuance of a writ of mandamus commanding the respondent-DSSSB to accept the OBC certificates submitted by them after the cut off date for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Government of NCT of Delhi as provided in the advertisement….. 14. The Division Bench of the High Court erred in not considering the decision rendered by the High Court of Delhi, in the case of Pushpa vs Govt. of NCT of Delhi and others, 2009 SCC OnLine Del 281. In that case, the learned Single Judge of the High Court has rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. The learned Single Judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in the case of Indra Sawhney vs Union of India, 1992 Sup (3) SCC 217 as well as Valsamma Paul vs Cochin University and others, (1996) 3 SCC 545 . The learned Single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh and others vs Govt. of NCT of Delhi, ILR (2000) 1 Del 298, wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of late submission of caste certificate. 15. The relevant paragraph from the judgment of this Court in Indra Sawhney’s case (supra) has been extracted in Pushpa’s case (supra) along with the speech delivered by Dr. Ambedkar in the Constituent Assembly and reads thus: “9. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr. Ambedkar emphatically declared that reservation should be confined to ‘a minority of seats’, lest the very concept of equality should be destroyed…..” “….These words embody the raison deter of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such justice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, in so far as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal.” 16. In Pushpa’s case (supra), relevant paragraphs from Tej Pal Singh’s case (supra) have also been extracted, which read thus: “11. 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. 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 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 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 authorizing the Government to make special provisons 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.” 17. Further, in Pushpa’s case (supra), relevant portion from the judgment of Valsamma Paul case (supra) has also been extracted, which reads as under: “21. Further, in Pushpa’s case (supra), relevant portion from the judgment of Valsamma Paul 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’s case (supra) is in conformity with the position of law laid down by this Court, which have been referred to supra. The Divisional 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 Divisional 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.” 7. Therefore, the impugned judgment and order passed by the Divisional 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.” 7. Learned Brief Holder for the State fairly conceded that the controversy in hand in squarely covered by the aforesaid decision rendered by Hon’ble Apex Court in Ram Kumar Gijroya vs Delhi Subordinate Services Selection Board and another, (2016) 4 SCC 754 . 8. It is the submission of learned counsel for the petitioner that there are sufficient vacancies of Lekhpal, eight in number, and therefore, a mandamus should be issued to respondent nos. 2 and 3 to grant benefit of OBC reservation to the petitioner to include his name at suitable place according to his marks obtained in the competitive examination. Learned counsel for the petitioner, therefore, pressed relief no. (ii) only, and did not press other reliefs. 9. Writ petition is, accordingly, allowed. 10. A direction is, therefore, issued to respondent nos. 2 and 3 to grant benefit of OBC reservation to the petitioner and, accordingly, name of the petitioner be included in the list of successful candidates at suitable place according to the marks obtained by him in the competitive examination. However, it is clarified that this is without prejudice to the rights of respondent nos. 4 and 5 in present writ petition.