Allowed

State of U.P.Secy Home Inre W.P.NO.4281 S/S 1998 v. Krishna Mohan Misra and 16 Others

Allahabad HC31 Jan 2023SPLA/66/2006

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a special appeal dismissing a writ petition. The court held that unreserved posts are open to all categories based on merit, allowing reserved candidates to secure such seats. Consequently, the High Court set aside a lower court order that deemed general category petitioners appointed to unfilled reserved seats.

What did the court decide?

The judgment and order of the Single Judge dated 27.09.2005 setting aside selection proceedings were set aside. The writ petition was dismissed.

State of U.P.Secy Home Inre W.P.NO.4281… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 1

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Case :- SPECIAL APPEAL No. - 66 of 2006

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Appellant :- State Of U.P.Secy Home Inre W.P.No.4281 S/S 1998

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Respondent :- Krishna Mohan Misra And 16 Others Counsel for Appellant :- C.S.C,K.D.Shukla,Sanjay Bhasin Counsel for Respondent :- D.R.Misra,Ayush Chaudhary,B V Singh,Bhupendra Veer Singh,Brijesh Kumar Singh,D R Misra,Dharam Raj Misra,F,L,O.P.Srivastava,Om Prakash Srivastava,Pt.S.Chandra,Rajesh Kr. Srivastava,Rajesh Kr.Srivastava,Rakesh Kumar Chaudhary,Rishi Kumar Tripathi,S Banergi,S Banerji,S.Banergi,Umesh Chandra Pandey

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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Heard Mr. Amitabh Kumar Rai, learned Additional Chief Standing Counsel appearing on behalf of the Stateappellant and Mr. Rakesh Chaudhary and Mr. D.R. Mishra, learned counsel for the respondents.

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The instant special appeal under chapter VIII, Rule 5 of Allahabad High Court Rules, 1952 is directed against the judgment and order dated 27.09.2005, passed by Hon'ble Single Judge in Writ Petition no. 4281 (S/S) of 1998.

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By means of the judgment under challenged a bunch of writ petitions challenging selection of constables in Provincial Armed Constabulary (P.A.C.) was challenged.

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Briefly stated, facts of the case are 375 posts of constables in P.A.C were advertised, out of which 188 posts were unreserved, 101 posts were reserved for candidates belonging to Other Backward Classes (O.B.Cs.), 78 posts were reserved for candidates belonging to Scheduled Castes (S.Cs.) category and 8 posts were reserved for candidates belonging to Scheduled Tribes (S.Ts.) category. The Selection Board had fixed the criteria for appointment/selection under which 100 marks were allotted for physical test, 80 marks were allotted for written

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test and 20 marks were allotted for interview. Physical test of the candidates was taken between 25.07.1998 to 08.08.1998.

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The candidates found successful in physical test, including the respondents (petitioners in the writ petition), had appeared in the written test held on 20.08.1998 and the result of the written test was declared on 28.08.1998. They appeared for interview and were sent for medical examination. In the final select list published on 06.09.1998, out of 180 unreserved posts, 90 candidates belonging to O.B.Cs. category, 19 candidates belonging to S.Cs. category and two candidates of S.Ts. category were selected.

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It was contended before the Hon'ble Single Judge that the persons belonging to reserved categories could not have been selected on the unreserved posts. The allegation of malice was also alleged against the members of the Select Committee for the reason that the candidates of general category had been excluded from selection, in which 56 posts were reserved for S.C., S.T. and O.B.C candidates had not been filled up and the Hon'ble Single Judge allowed the writ petition holding that the Selection Board and the concerned authorities had acted arbitrarily and malafidely in not selecting the petitioners and returning 56 posts unfilled to be filled and the petitioners could have been selected on those posts and the Hon'ble Single Judge held that the petitioners should be deemed to have been selected and recruited on the date when other similarly placed candidates, selected, recruited and appointed in the selection process, which was initiated there in 1998.

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While assailing the aforesaid judgment passed by the learned Single Judge, Sri Amitabh Kumar Rai, learned Additional Chief Standing Counsel has submitted, the 188 unreserved posts were not reserved for general category candidates and those posts were open to be filled up by

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any candidate on the basis of his relative merit. The selections were made on 188 unreserved posts on the basis of merit and 90 candidates belonging to O.B.C. category, 19 candidates belonging to S.C. category and two candidates belonging to S.T. category had secured their selection on the basis of merit against the unreserved seats. While filling up the reserved seats, 56 reserved seats remain unfulfilled and the candidates belonging to unreserved category had no right to be selected and appointed against the reserved seats. He has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh & Anr. vs. State of U.P. & Ors., AIR 2010 Supreme Court 1851 , wherein the Hon'ble Supreme Court held as follows:-

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" In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the General Category Candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to 1achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. It has been recognized by this Court in the case of Indra

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Sawhney (supra) that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In the case of Indra Sawhney (1992 AIR SCW 3682) (supra), it has been observed as under (Para 58 of AIR SCW):-

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"743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, consistent no doubt with the requirement of maintenance of efÏciency of administration--the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour....."

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We have considered the aforesaid facts and circumstances of the case and submissions made by the learned counsel for the parties. It is settled that unreserved posts are not reserved for general category candidates and they are open to be filled up by any candidate belonging to any category, on the basis of his merit. Therefore, in case, a number of candidates belonging to the reserved category, secured higher marks so as to entitle them to be appointed against unreserved seats, they were rightly selected and appointed against the unreserved seats and there was no illegality in their appointment against unreserved seats.

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Allegation of mala fide was not levelled against the members of the Selection Board, on the ground that candidates belonging to reserved category had been appointed against unreserved seats. As we have already held, unreserved seats were open for being filled up by any candidates on the basis of his merit, as such, it cannot be said that the action of the Selection Board in making selection of candidates belonging to reserved category on unreserved posts was mala fide and the allegation of mala fide leveled against the members of the Selection Board is unfounded. The learned counsel for the respondents has vehemently submitted that the selections to the posts of constables is governed by the Police Regulations and Regulation 419 provides that " As soon as a candidate is passed by the Civil Surgeon a form of exhortation will be read out to him in the presence of the senior gazetted ofÏcer at headquarters or, in the absence of all gazetted ofÏcer from headquarters, in the absence of all gazetted ofÏcer from headquarters, in the presence of the ofÏcer-incharge of the ofÏce of the Superintendent of Police. Subsequently an oath will be taken by the candidate as specified in Police Form No. 90 and he will be given a copy of police Form No. 91 in which the duties and aims of police constable, are set forth. The ceremony of administering the oath should be made as impressive as possible in order to enhance its value." His submission is that as medical examination of the respondents had been conducted, they ought to have been issued appointment letters unnecessarily.

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We are unable to accept the aforesaid submission of the learned counsel for the respondents as the final select list has to be published on the basis of the marks obtained by the candidates in the selection process, which consists of physical test, written test and interview, strictly in accordance with the merit of the candidates in their respective category. Merely because a candidate is examined medically, it would not entitle him to claim

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appointment as of right even though his name does not find in the final select list prepared on the basis of relative merits of the candidates.

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Regarding the ground that 56 reserved seats were left unfilled and the respondents ought to have been appointed against those seats, we are of the view that the respondents belong to general category and they are not eligible to be appointed against seats reserved for S.C., S.T. and O.B.C and, therefore, neither the petitioners were entitled to be appointed on the seats reserved for S.C., S.T. and O.B.C candidates nor has any prejudice been caused to them by their non appointment of those seats.

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In view of the aforesaid discussions, we do not find ourselves in agreement with the view taken by the Hon'ble Single Judge that the petitioners should be deemed to have been selected and recruited in the selection process.

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In view of the aforesaid discussions, the instant special is allowed . Judgment and order dated 27.09.2005, Writ Petition no. 4281 (S/S) of 1998 passed by the Hon'ble Single Judge is hereby set aside and the writ petition is dismissed.

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However, there will be no order as to the costs.

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(Subhash Vidyarthi,J.) (Ramesh Sinha,J.)

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Order Date :- 31.1.2023

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Preeti

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Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

State of U.P.Secy Home Inre W.P.NO.4281 S/S 1998 v. Krishna Mohan Misra and 16 Others

Case brief

What is this about?

What did the court decide?

State of U.P.Secy Home Inre W.P.NO.4281 S/S 1998 v. Krishna Mohan Misra and 16 Others

Case brief

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What did the court decide?

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