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Allahabad High Court · body

2017 DIGILAW 666 (ALL)

PRAVESH KUMAR v. STATE OF U. P.

2017-03-01

ASHOK KUMAR, V.K.SHUKLA

body2017
JUDGMENT : 1. Parvesh Kumar is before this Court, assailing the validity of the judgment and order dated 19.10.2016 passed by the learned Single Judge in Civil Misc. Writ Petition No. 50098 of 2016 (Parvesh Kumar v. State of U.P. and 2 others), wherein learned Single Judge has proceeded to non suit the claim of the appellant, by observing that there was nothing on record which would substantiate that the appellant had applied under OBC (Non Creamy Layer) category, accordingly, claim made by the appellant is unacceptable and there is no reason or justification to interfere in the decision taken by the Competent Authority for rejecting the claim of appellant. 2. From the side of the appellant, it has been contended that appellant had applied for consideration of selection on the post of Police Constable and Constable in PAC (Male) under direct Recruitment, 2015. Appellant has proceeded to face each and every stage of selection proceeding and submits that his candidature has been shown in 'open category' instead of treating him under OBC (Non Creamy Layer). Appellant submits that his cut of marks are 406.60 higher than the cut of marks of the last selected candidate in OBC (Non Creamy Layer) category. Appellant further submits that in case he had applied under OBC (Non Creamy Layer) pursuant to the advertisement dated 29.12.2015, then his candidature ought to have been considered in OBC (Non Creamy Layer), instead in open category candidate. 3. Challenge made by the appellant in Civil Misc. Writ Petition No. 50098 of 2016 (Pravesh Kumar v. State of U.P. and 2 others) has failed and thus appellant is in Special Appeal and through his counsel. Sri Seemant Singh, Advocate has submitted that it is true that certificate that has been issued in favour of appellant is dated 18.02.2016, i.e. after cut of date but the said certificate is nothing but mere affirmation that appellant belongs to OBC category and indicates that appellant was from the OBC (Non Creamy Layer) category candidate, and accordingly authority be directed to consider his claim under OBC (Non Creamy Layer). 4. Learned Standing Counsel on the other hand contended that once certificate has been issued after prescribed cut of date under OBC (Non Creamy Layer), then authority concern is absolutely right in not entertaining the challenge made by the appellant. 5. 4. Learned Standing Counsel on the other hand contended that once certificate has been issued after prescribed cut of date under OBC (Non Creamy Layer), then authority concern is absolutely right in not entertaining the challenge made by the appellant. 5. We have proceeded to examine the record as well as certificate that has been so issued and what we find that appellant has applied for consideration of his candidature under OBC category. This is also accepted position that certificate has not at all submitted by the appellant before the last cut of date i.e. 17.12.2016 and contrarily certificate was issued in favour of appellant on 18.02.2016, and same was filed. The candidature of appellant has been considered and treated as open category candidate and not at all in OBC category and reason that has been assigned in the order impugned by learned Single Judge that no such material has been brought on record to show and substantiate that appellant hails from OBC (Non Creamy Layer) and that such stage has not been changed. 6. Learned Single Judge has observed as follows:- It is contended that the petitioner has wrongly been treated as a candidate of unreserved category though he actually belonged to OBC (Non Creamy Layer) category. His cut of marks are 406.60 higher than the cut of marks of the last selected candidate in OBC (Non Creamy Layer) category. It is noteworthy that in the entire writ petition the petitioner does not state as to whether he had applied under the OBC (Non Creamy Layer) category pursuant to the advertisement dated 29.12.2015, the writ petition is completely silent on this issue. In paragraph 9 of the writ petition it is sought to be submitted that the petitioner belongs to OBC category since his birth, the caste certificate issued on 18.2.2016 is only an affirmation to the fact that the petitioner belongs to OBC category. It would not make any difference if the petitioner had got certificate after last date of submission of application form which was 17.2.2016. This fact cannot take away the right of the petitioner to be treated as having belonged to OBC category. It is further stated that the certificate which is at page 31 of the paper book makes a declaration with regard to income of the petitioner's parents for three years prior to the date of issuance of the certificate. This fact cannot take away the right of the petitioner to be treated as having belonged to OBC category. It is further stated that the certificate which is at page 31 of the paper book makes a declaration with regard to income of the petitioner's parents for three years prior to the date of issuance of the certificate. The contention of learned counsel for the petitioner that the certificate appended at 31 of the paper book is declaration of status of the petitioner which was already existing at the relevant point of time i.e. on the last date of application form which was 17.2.2016, is not acceptable for the reasons that the petitioner:- (i) The statement made in paragraph 12 of the writ petition that the petitioner had applied for selection under OBC category is not supported by any documentary evidence, the online application form filled by the petitioner has not been brought on record (ii) The petitioner has not disclosed in the writ petition that his parents also possessed certificate of being OBC (Non Creamy Layer) category. (iii) The certificate at page 31 of the paper book was got prepared after the cut of date for submission of the application form the advertisement categorical records that the certificate of OBC (Non Creamy Layer) should be between the period from 1.4.2016 to 17.2.2016. There is behind keeping this cut of date as it is known to all that the Non Creamy Layer pertains to financial status of the family to which the candidate belonged. The financial condition of the family of a person is variable and may change with the circumstance over the period of time. A person may at one point of time belongs to Non Creamy Layer but with the passage of time he may accumulate wealth, for any reasons whatsoever and may loose his status of having belonged to Non Creamy Layer. The category OBC (Non Creamy Layer) or (Creamy Layer) is not identified with the factum of birth of the person in OBC category and is variable with the circumstances over the period of time. For these reasons, the cut of period has been provided in the advertisement so as to identify the candidates genuinely belonging to OBC (Non Creamy Layer) category. For these reasons, the cut of period has been provided in the advertisement so as to identify the candidates genuinely belonging to OBC (Non Creamy Layer) category. It is clarified in the notification that the OBC category candidate who belonged to Creamy Layer will not be eligible for the benefit of reservation of OBC category. Reliance placed upon the judgment of the Apex Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Another reported in 2016 (4) SCC 754 is misplaced inasmuch as the question in that case was for granting benefit of OBC category to a candidate who had applied under the said category but could not submit the caste certificate before the cut of date of the selection. In the instant case, there is nothing on record which would substantiate that the petitioner had applied under OBC (Non Creamy Layer) category and further the status of a person belonging to (Non Creamy Layer) is not acquired by birth but because of event happening at a later stage. The certificate issued by the Competent Authority cannot be said to be only an affirmation of fact which is already in existence. For all the above noted reasons, submission made by learned counsel for the petitioner is not acceptable, this Court does not find any justification to interfere in the decision taken by the Competent Authority in rejecting the claim of the petitioner for non protection of certificate of declaration of the petitioner having belonged to OBC (Non Creamy Layer) category. 7. We are not at all subscribing the view of learned Single Judge, for the reason that in paragraph 12 of the writ petition, petitioner had made specific averment that he had applied for consideration of his candidature under OBC category and this is also accepted position that in the prescribed format so provided petitioner had filed his certificate after the last cut of date i.e. 17.12.2016, on the very next date i.e. 18.12.2016. 8. Much deliberation has been made doubting, as to whether petitioner had applied for consideration of his candidature as OBC category candidate or not. Petitioner's stand has been before this Court, that he had applied as OBC category candidate and even the State did not come forward with the case that said claim is unfounded or incorrect. 8. Much deliberation has been made doubting, as to whether petitioner had applied for consideration of his candidature as OBC category candidate or not. Petitioner's stand has been before this Court, that he had applied as OBC category candidate and even the State did not come forward with the case that said claim is unfounded or incorrect. In case there has been any doubt or dispute on this aspect of the matter, said fact could have been verified and grievance accordingly could have been redressed. Opinion formed on this score by learned Single Judge is accordingly not being approved of by us. Now coming to the issue of certificate. 9. Law on the subject of certificate being accepted after the last cut of date has been clarified by Apex Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Another reported in 2016 (4) SCC 754 . In view of this, once certificate had been submitted on 18.02.2016, then the said certificate in question could not have been refused to be accepted, on the premises that it was submitted after last cut of date. 10. Perusal of certificate would go to show that certificate in question has been issued verifying social status of appellant. Said certificate apart from describing that appellant hails from OBC category, also proceeds to look into annual income of the parents of the appellant continuous for last three years and it has been found by the authorities concerned that annual income of parent of appellant in last three years is not more than Rs. 8 lacs nor they are having property more than that as is provided under Income Tax Act 1957. 11. Once Creamy Layer has been defined and as per the certificate, petitioner will have to be accepted as falling under 'Non Creamy Layer'. Said certificate was in reference to preceding three years, and as per the terms and condition of advertisement, such certificates were valid that has been produced as per the format dated 01.04.2015 up till the last date. The certificate, as it could not have been refused to be accepted, accordingly has to be accepted as it is. 12. Consequently, order dated 19.10.2016 passed by the learned Single Judge is hereby quashed and set aside. The certificate, as it could not have been refused to be accepted, accordingly has to be accepted as it is. 12. Consequently, order dated 19.10.2016 passed by the learned Single Judge is hereby quashed and set aside. Competent Authority is directed to redress the grievance of appellant based on record, in accordance with law, preferably within period of next two months from the date of production of certified copy of this order. 13. With the above, Special Appeal stands allowed.