Petitioner, with SC category marks above cutoff, challenged rejection due to non-conforming SC certificate format. Distinguished Full Bench OBC case; held SC status depends on birth not certificate format.
Authorities to treat petitioner as Scheduled Caste category candidate and pass further orders within three months.
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Court No. - 58
Case :- WRIT - A No. - 13325 of 2018
Petitioner :- Raj Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Chandra Bhan Gupta Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has approached this Court with the grievance that though he has scored marks above cut off in the respective category, yet his claim for appointment to the post of Constable in U.P. Police has not been considered. Petitioner has scored 384.67 marks; while, the cut off marks in respect of Scheduled Caste category is 380.3. Petitioner, however, has not been called for document verification and for conducting his medical test; and therefore, he is before this Court.
Learned standing counsel, on the other hand, submits that petitioner's Scheduled Caste certificate is not in accordance with the format annexed along with the advertisement and therefore, petitioner has been treated as a candidate in general category. Reliance is placed upon a Full Bench decision of this Court in Gaurav Sharma Vs. State of U.P. and Others reported in (FB) 2017 (5) ADJ 494.
Learned counsel for the petitioner, on the other hand, has placed reliance upon a judgment of Apex Court in Ram Kumar Gijoroya Vs. Delhi Subordinate Service Selection Board and another 2016(4) SCC 754. Reliance is placed upon para 16 of the judgment, which reads as under:
"16. In the case of Pushpa (supra), relevant paragraphs from the case of Tej Pal Singh (supra) have also been extracted, which read thus :-
"11......
17. 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 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 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.
18. 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 authorising the Government to make special provisions 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 Arts. 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."
I have heard learned counsel for the parties and have perused the material brought on record.
So far as the judgment delivered by the Full Bench of this Court in Gaurav Sharma (supra) is concerned, the same, apparently, has no applicability; in as much as, the Full Bench of this Court was dealing with the candidature of an OBC candidate, for which declaration had to be in the format as requisite information had to be furnished so as to determine as to whether the person is belonging to noncreamy layer in the OBC category of State or not? These considerations, however, would not exist in respect of a Scheduled Caste candidate. Benefit of Scheduled Caste category has to be granted to a person whose caste is included in Schedule to the Presidential Order (Scheduled Caste) Order, 1950, as modified in 1967, issued in exercise of powers conferred by clause (1) of Article 341 of the Constitution of India. Petitioner's caste 'Chamar' forms part of the schedule for the State of U.P. Such fact, mentioned in the caste certificate, has, prima facie, not been disputed. It is, otherwise, settled that a person acquires the Scheduled Caste status by birth and the certificate is merely an acknowledgement of such pre-existing fact. Considerations of creamy layer, etc., as would be relevant for an OBC candidate, would have no applicability, so far as a Scheduled Caste is concerned. There would be no rationale or justification for insisting upon production of Scheduled Caste certificate in the prescribed format, once it is brought on record, before the authorities, that petitioner belongs to Scheduled Caste. The authorities are, otherwise, expected to verify the correctness before actually an appointment letter is issued to him.
In such circumstances, merely for the reason that Scheduled Caste certificate is not on the format, the authorities would not be justified in denying petitioner's consideration for appointment in Scheduled Caste category. Even otherwise, disclosure, which is contained in the format, is clearly recorded in the caste certificate issued to the petitioner and relied upon by him. Such certificate has, otherwise, been issued by the authorities of the State. In such circumstances, the respondents would not be justified in treating the petitioner to be an unreserved category candidate. This petition, therefore,
stands disposed of with the direction upon the authorities concerned to treat the petitioner as a Scheduled Caste category candidate and to pass further orders in respect of his candidature.
It goes without saying that correctness of the certificate would, otherwise, be open to be examined before issuing a formal order of appointment to the petitioner.
Required consideration would be made within a period of three months from the date of presentation of certified copy of this order. Writ petition is disposed of, accordingly.
Order Date :- 13.7.2018 Amit Mishra/n.u.
3 issues framed by the court
Whether a petitioner owning a Scheduled Caste certificate not in the prescribed format can be treated as a general category candidate for post selection.
Whether discrepancies in OBC creamy layer considerations applicable to SC/ST categories.
Whether authorities can deny SC category benefits solely due to non-compliance with certificate format.
Colour shows how this judgement treated each authority
Gaurav Sharma Vs. State of U.P. and OthersDistinguished¶6
(FB) 2017 (5) ADJ 494
Ram Kumar Gijoroya Vs. Delhi Subordinate Service Selection Board and anotherReferred¶7
2016(4) SCC 754 · Who else cites this
Raj Kumar
State Of U.P.
Ashwani Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
