Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1335 (ALL)

State of U. P. v. State of U. P.

2019-05-15

P.K.JAISWAL, RAJNISH KUMAR

body2019
JUDGMENT : 1. Heard Sri Q.H. Rizvi, learned Standing Counsel for appellants and Sri Surendra Pratap Singh, learned Counsel for respondent. 2. This intra-Court Appeal is directed against the judgment and order dated 22.3.2018 passed by the learned Single Judge in Writ Petition No. 4452 (SS) of 2015, Ankit Verma v. State of U.P. and others. The respondent who belongs to OBC category applied for the post of Constable on 24.7.2013 and filled-up his application under OBC category (non-creamy layer) on-line. After qualifying the preliminary test, physical test was held on 31.10.2014. He was called for and appeared in the main written examination. Thereafter, he was declared successful in the main written examination test and was called for medical test. At the time of medical test, he had submitted the Caste Certificate which was issued on 27.3.2015. 3. As per Government Order dated 28.4.2015, the Caste Certificate for OBC category candidates which was issued from 1.4.2012 to 20.8.2013 in the prescribed proforma was to be entertained. On 11.6.2015, the respondent applied for issuance of new Caste Certificate in the prescribed format as per Government Order dated 28.4.2015. The last date for submission of Caste Certificate was 12.6.2015 but the respondent submitted the Caste Certificate on 15.6.2015 which was issued on 13.6.2015. The result was declared but he has been shown as not selected. 4. This action was challenged by filing writ petition under Article 226 of the Constitution of India and prayed that the appellant No. 3 be directed to declare him as selected under OBC category as he has obtained 311.063 marks. The learned Writ Court, relying on the decision of the Apex Court rendered in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another, 2016 (3) ESC 387 (SC), wherein it has been held that merely because the desired Caste Certificate was not submitted within time but the same was submitted subsequently would not be a ground for denying the benefit of reservation to a person who belongs to the reserved category, allowed the respondent to submit the requisite Caste Certificate and consider in light of the aforesaid judgment. The appellant No. 2 was directed to take a decision in the matter within a period of ten days from the date of receipt of a certified copy of the order. 5. The appellant No. 2 was directed to take a decision in the matter within a period of ten days from the date of receipt of a certified copy of the order. 5. Learned Standing Counsel has submitted that the judgment of the Apex Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board (supra) was considered by a Division Bench of this Court in Special Appeal Arvind Kumar Yadav v. U.P. Police Recruitment & Promotion Board and two others, 2017(1) ADJ 538 (DB), wherein the judgment of the Apex Court has been distinguished and dismissed the Special Appeal by holding that the terms and conditions mentioned in the advertisement are binding upon all the parties and had to be applied uniformly. The said judgment of the Hon'ble Apex Court is not applicable in the present case as in the present case the OBC certificate issued on a prescribed format within specified period was to be submitted whereas in the case of Ram Kumar Gijroya (supra), the issue was as to whether a candidate who appears in an examination under the OBC category and submits the Caste Certificate after the last date mentioned in the advertisement is eligible for selection to the post under the OBC category or not. 6. Thereafter, the correctness of the judgment was referred to the Full Bench in the case of Gaurav Sharma v. State of U.P. and 3 others, 2017(5) ADJ 494 (FB). The Full Bench after examining the aforesaid judgment came to the conclusion that an OBC candidate is not exempt from the rigours of a cut off or last date prescribed in an advertisement or recruitment notice. Relevant portion of the judgment reads as under: "A perusal of the provisions made by the Union Government indicates that an OBC candidate who was a son or a daughter of a person having a gross annual income of Rs. 4.5 lakhs or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years would fall within the creamy layer and to such a candidate the rule of exclusion became applicable. However, the ceiling as fixed under the Government Order dated 22 October 2008 in respect of OBC candidates was placed at Rs. 5 lakhs or more. The prescription in respect of the Wealth Tax Act remained the same. However, the ceiling as fixed under the Government Order dated 22 October 2008 in respect of OBC candidates was placed at Rs. 5 lakhs or more. The prescription in respect of the Wealth Tax Act remained the same. The 2014 Amendment to Schedule-I further increased this ceiling by prescribing that in order to fall within the creamy layer, it would have to be established by a person that in the last three consecutive years he or his parents had an income of Rs. 8 lakhs or more coupled with the condition of the person not being in possession of wealth above the exemption limit as prescribed under the Wealth Tax Act. The Wealth Tax Act, it is not disputed, is a Central legislation and therefore, would uniformly apply. However, the ceiling limits for income in the last three years are different under the stipulations prescribed by the Union and State Governments. There is, however, evidently no inherent repugnancy in the two norms. While the Central Government prescribes the limit to be Rs. 4.5 lakhs or more, the State enactment places the ceiling at Rs. 8 lakhs or more. Based solely upon the rival criteria as prescribed by the Union and State Governments, it is clear that an OBC candidate who does not fall foul of the limits prescribed by the Union Government would also not stand disqualified under the standards fixed by the State. There is therefore, no irreconcilable difference or repugnancy between the two standards. The issue which however, remains to be answered is the impact of such a finding. There is therefore, no irreconcilable difference or repugnancy between the two standards. The issue which however, remains to be answered is the impact of such a finding. While it is true that an OBC candidate even if he produces a certificate which evidences that he does not stand excluded from the benefits of reservation in terms of the Office Memorandum dated 14 October 2008, the issue would still remain as to whether he is an OBC as classified and identified by the State of U.R To recapitulate, we note that although the certificate initially submitted by the OBC candidates before us did not stand excluded by virtue of the standards fixed in the Office Memorandum dated 14 October 2008, the certificate did not evidence them belonging to an OBC as identified in the State of U.R For the purposes of seeking the benefit of reservation, it is imperative for a candidate to establish that he belongs to the OBC as recognised and identified by the State concerned and further that he/she does not fall within the field of exclusion. We have already noted that both conditions must be cumulatively satisfied. Therefore, in our considered view, even though there is no repugnancy between the financial criteria fixed by the Union and State Governments for the purposes of identification of a creamy layer, the same on its own would have no favourable impact upon the candidature of the applicant in the absence of a certificate also evidencing and identifying him as belonging to the OBC as recognised and identified by the concerned State. We accordingly answer Question No. 1 in the negative and hold that an OBC candidate is not exempt from the rigours of a cut off or last date prescribed in an advertisement or recruitment notice. We further declare that Arvind Kumar Yadav correctly articulates the law on the issue and overrule Pravesh Kumar and Shubham Gupta. Insofar as Question No. 3 is concerned, we hold that although there is no repugnancy in the norms fixed by the Union and State Government, the same would have no favourable impact upon the eligibility of a candidate unless he also furnishes a certificate evidencing him as belonging to the OBC category as recognised and identified by the State." 7. Insofar as Question No. 3 is concerned, we hold that although there is no repugnancy in the norms fixed by the Union and State Government, the same would have no favourable impact upon the eligibility of a candidate unless he also furnishes a certificate evidencing him as belonging to the OBC category as recognised and identified by the State." 7. On due consideration of the law laid down by the Full Bench of this Court in the case of Gaurav Sharma v. State of U.P. and others (supra), the impugned judgment and order 22.3.2018 is liable to be set aside. 8. Accordingly, we set aside the impugned judgment and order dated 22.3.2018 and remit the matter to the learned Writ Court to decide it afresh in accordance with law. 9. With the aforesaid said, the Special Appeal is allowed in-part.