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2018 DIGILAW 1627 (ALL)

RAVISH KUMAR BHARTI v. STATE OF U. P.

2018-07-25

CHANDRA DHARI SINGH, GOVIND MATHUR

body2018
JUDGMENT Hon'ble Chandra Dhari Singh, J.—In this appeal, assail is to the judgement and order dated 9.7.2018 passed by the learned Single Judge in Writ A No. 14018 of 2018, whereby learned Single Judge has dismissed the aforesaid writ petition on the ground that the appellant's correct name was not mentioned in the caste certificate, therefore, no exception can be taken if the appellant has been denied status of the scheduled caste. While dismissing the aforesaid writ petition learned Single Judge relied upon judgement of Full Bench of this Court in Gaurav Sharma v. State of U.P. and others, 2017(5) ADJ 494 (FB). 2. We need not state the facts in detail. Suffice, it to say that respondent No. 2 advertised a Notification for direct recruitment in the Police Department for the post of Constable and P.A.C. Constable in the year 2015 and the appellant filled up the form online in the Scheduled Caste Category by submitting the relevant documents and fees for the S.C. category and same was registered successfully. Respondent No. 2 declared the result of the aforesaid examination for the selection on the post of Constable and P.A.C. Constable on 15.5.2015 and fixed the cut off marks as 377 for the Scheduled Caste Category and 397.2 for the open Category. The appellant-petitioner obtained 400.53 marks and his rank was 1931 in the open category. He was selected as the cut off marks for open category was 397.2. Later on the result of the examination for the selection of Police Constable and P.A.C Constable was modified by the respondent No. 2 and the cut off marks for the open category (non-reserved) has been fixed as 403.6 and for the Scheduled Caste Category as 377.7. As per the modification/amendment result dated 21.5.2018, the appellant was found not selected in the select list due to consideration of his candidature in the wrong category i.e. in open category. In the open category cut of marks has been increased to 403.6. He approached the concerned authority for the required correction in the category and also submitted an application before the respondent No. 3 on 8.6.2018. In the open category cut of marks has been increased to 403.6. He approached the concerned authority for the required correction in the category and also submitted an application before the respondent No. 3 on 8.6.2018. Since the concerned authority has not taken any decision on the application, therefore, he preferred a writ petition before this Court on 15.6.2018 as the medical test of the selected candidate has been scheduled to be commenced from 12.6.2018 to 24.6.2018 to their respective District Police Head Quarters. 3. Learned counsel appearing on behalf of the appellant has raised two principles contentions. I. Appellant submitted application form through online, he has chosen his category as scheduled caste category and the appellant has produced his caste certificate before the authority. His form was successfully registered in the SC category but the office of respondent No. 2 committed error in the processing of the application of the appellant and wrongly categorized him as an open category candidate. II. Learned Single Judge has erred to dismiss the writ petition filed by the appellant without considering the facts that the form was filled up on the online and in the prescribed form column No. 10 clearly mentions category as SC. The same form was successfully accepted and registered on the online. Admit Card for appearing in the examination in the category of Scheduled Caste was issued to him. Scheduled Caste Certificate was also submitted by the appellant as prescribed and issued by the competent authority. He has annexed document, which is at page 51 of this appeal regarding successful registration of the form of the appellant in the category of Scheduled Caste. 4. Per contra learned standing counsel appearing on behalf of the State submitted that learned Single has correctly dismissed the writ petition by relying upon the Full Bench decision of this Court in the case of Gaurav Sharma v. State of U.P. and others, 2017(5) ADJ 494 (FB). The appellant has not submitted his caste certificate as prescribed in the Advertisement. Therefore, present special appeal is devoid of merit and therefore deserves to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. The appellant has not submitted his caste certificate as prescribed in the Advertisement. Therefore, present special appeal is devoid of merit and therefore deserves to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. The dispute in the present case has arisen as even the appellant/petitioner is undoubtedly Scheduled Caste candidate, who does not fall within the general category and is more meritorious than any scheduled caste candidates who were selected in SC category by the respondent No. 2. In the said selection process he has not been selected because of SC Certificate submitted by him was not in the prescribed formant. The respondents treated the appellant-petitioner as general category candidate and did not select him as he did not obtain the cut of marks as general category candidate. 7. The appellant filled up the form online and the same was accepted. He has clearly mentioned in column of the Form that he is SC candidate for the post as advertised by the respondent No. 2. He also submitted caste certificate issued by the competent authority alongwith application form. The appellant-petitioner belongs to "Pasi caste" which comes under the SC category as per the Notification of the State Government. The appellant was issued admit card to appear in the examination in question, wherein it is clearly mentioned that the appellant was placed under the SC category. The appellant appeared in the examination as SC candidate wherein he was declared successful in the first instance but in the revised list his name was found in the list as "non selected candidate" 8. In the present case it is not disputed that the appellant belongs to SC Category. He has submitted certificate issued by the competent authority as well as his form was accepted online successfully in the category of SC. He was permitted to appear in the examination as candidate of SC. 9. In the present case it is not disputed that the appellant belongs to SC Category. He has submitted certificate issued by the competent authority as well as his form was accepted online successfully in the category of SC. He was permitted to appear in the examination as candidate of SC. 9. The issue before the Full Bench in the case of Gaurav Sharma (supra) was that whether the caste certificate, having been submitted after the last date for submission of the application is liable to be rejected or whether there exists any irreconcilable difference or repugnancy between the norms fixed by the Union and State Governments with regard to certification of creamy layer After dealing all the issues as stated above, the Full Bench of this Court held that "an OBC candidate is not exempt from the rigours of a cut off or last date prescribed in an advertisement or recruitment notice". It is further held that there is no repugnance norms fixed by Union and State Government same would have no favourable impact upon liability of a candidate unless he also furnishes a certificate evidencing him as belonging to O.B.C.or S.C. category as recognized and identified by the State. In the case in hand, the appellant-petitioner submitted his form online in which column was duly filled as SC category and caste certificate issued by the competent authority has also been submitted alongwith form online. Therefore this is not a case where certificate was submitted beyond cut of date. Hence the judgment of Gaurav Sharma (supra) is not applicable in this case. 10. It is contended that the appellant belongs to SC category "Pasi caste" which is notified as SC by the State. Same was submitted alongwith form which was registered online within stipulated period. 11. Hence the judgment of Gaurav Sharma (supra) is not applicable in this case. 10. It is contended that the appellant belongs to SC category "Pasi caste" which is notified as SC by the State. Same was submitted alongwith form which was registered online within stipulated period. 11. Learned counsel appearing for the appellant in alternatively submitted that acquisition of certificate in order to demonstrate that he belongs to SC and the reservation in that respect cannot be equated with acquiring the educational eligibility and non submission of SC certificate by the last date for application and submitting later on after it was demanded by the respondent within the reasonable time will not be such a lacunae which should be a ground to deprive him of his right which has been conferred on the basis of a 'beneficial piece of legislation' which is "Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes Act, 1994". It is contended by the appellant that the respondents had the power to extend the time to submit the caste certificate which can be done by giving notice and demanding the certificates by extended time stipulated. 12. In Jnan Ranjan Sen Gupta and others v. A.K. Bose, 1975 SC 1994, while dealing with the ambit of erection of structure on land under Calcutta Thika Tenancy Act, the Hon'ble Supreme Court has held that it was a piece of 'beneficial legislation' conferring certain rights upon the tenancies and in dealing with such provisions of law something which is not already there cannot be read in it, as reading such a thing which is not in the provision will lead to imposing a restriction upon the rights of the class of tenants by judicial interpretation which is not permissible in absence of express words to that effect or necessary manifest intendment. 13. Dealing with the principle of statutory construction, in American Express International Banking Corporation v. Management of American Express International Banking Corporation, (1985) 4 SCC 71 , the Hon'ble Supreme Court has held that the words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. It was held that literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced and Judges ought to be more concerned with the "color", the "content" and the "context" of such statutes. Similarly, in Shyam Sunder and others v. Ram Kumar and another, 2001 (8) SCC 24 , it was held that if it is found that there is a doubt in regard to the meaning of a provision or words used in the provisions of an enactment, it is permissible for the Court to apply the rule of 'benevolent construction' to advance the object of the Act. Ordinarily, the rule of 'benevolent construction' has been applied while construing welfare legislations or provisions relating to the relationship between weaker and stronger contracting parties. 14. Present matter can be looked into from another angle also. As per the advertisement issued by the respondents, 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 there on by giving the benefit to such candidate for his belonging to "SC" category. 15. In the present case, it is not that the appellant-petitioner does not belong to "SC" category prior to the date of notification or cut off date. In view of this position, necessitating upon a certificate would be clearly arbitrary and it has no rational objective sought to be achieved. While taking a particular view in such matters one has to keep in mind the objectives behind the post of Scheduled Caste and Scheduled Tribes categories as per constitutional mandate prescribed in Article 15(4) and 16(4) of the Constitution of India, which are enabling provisions authorising the Government to make special provisions for the persons of Scheduled Caste and Scheduled Tribe categories. Articles 14(4) and 16(4). Therefore, intend to remove social and economic inequality to make equal opportunities available in reality. 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 of India. For this reason Government has itself come out with the guidelines permitting the candidates to submit proof that they belong to SC category, by furnishing the certificate issued by competent authority within reasonable time even if it is not submitted at the time of making the application for the job. 16. In the case of (Mrs.) Valsamma Paul v. Cochin University and others, (1996) 1 SCR 128, the Hon'ble Supreme Court held : "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. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person with the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing....." 17. For the reasons stated above, we allow this Special Appeal and set aside the judgement and order dated 9.7.2018 passed by the learned Single Judge in Writ A No. 14018 of 2018. Respondents are directed to consider the appellant-petitioner for the Post of P.A.C Constable. This exercise be done within a period of four weeks from the date of receipt of this judgement. No order as to costs.