Mohit Kumar Vs State of U.P. and 3 Others

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Court No. - 33

Case :- WRIT - A No. - 18987 of 2022 Petitioner :- Mohit Kumar Respondent :- State ofo U.P. And 3 others Counsel for Petitioner :- Siddharth Khare, Sr.Advocate Counsel for Respondent :- C.S.C

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Hon'ble Jaspreet Singh,J.

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Heard Shri Ashok Khare, learned senior counsel along with Shri Kauntey Singh, learned counsel for the petitioner and the learned Standing Counsel for the State-respondent.

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The petitioner has approached this Court raising a challenge to the order dated 15.09.2022 passed by the respondent no.4, whereby the representation of the petitioner has been rejected.

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To put the matter in a perspective, certain facts relevant for an effective adjudication of the controversy is being noted hereinafter.

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The respondent no.3 issued an advertisement in February, 2021 inviting applications for 9027 posts of Sub Inspector (Civil Police), 484 posts of Platoon Commander (PAC) and 23 posts of Fireman-II. The advertisement provided 27% reservation for other backward classes and a total number of 247 posts stood identified under the reserved category of other backward classes.

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The petitioner who being fully qualified and eligible, filed his application and had uploaded all the required documents. The petitioner had applied under the OBC Class. The petitioner cleared the written examination and as well as the physical standard test. At the time of document verification no discrepancy regarding the documents uploaded by the petitioner was pointed out.

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On 12.06.2022 the respondent no.3 declared the cut-off merit of the candidates selected under the different categories and a cut-off merit list for OBC candidates was declared at 305.5425053 whereas the cut-off merit for the unreserved category was 316.11790112. The petitioner was not shown selected despite the petitioner having secured more marks than the cut-off for OBC candidate, as the petitioner had secured 313.842105 marks.

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The petitioner represented with the authorities, however no assistance was forthcoming accordingly, the petitioner was compelled to institute a Writ 'A' No.11413 of 2022 which was disposed of by means of order dated 04.08.2022 requiring the the authorities to take a decision on the representation of the petitioner within a period of four weeks. It is in furtherance of the aforesaid order passed by this Court that the representation of the petitioner was considered and rejected by means of order dated 15.09.2022, which is under challenge in the instant petition.

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The ground of rejection as indicated in the impugned order was that the petitioner had not filed a valid OBC certificate as required for claiming the benefit of OBC reservation. Hence it was not tenable in light of the terms and conditions mentioned in the advertisement. The conditions provided that if a candidate does not file a valid certificate which is not as per the prescription then such candidate shall be treated in the General category. Since the petitioner had not filed the OBC certificate as per the required prescription, hence, his representation was rejected. The candidature of the petitioner was treated as a general candidate and since his score was much less than the cut-off merit for general candidates hence he could not be selected.

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Shri Khare, learned Senior Counsel while assailing the aforesaid order has drawn the attention of the Court to the terms of the advertisement, a copy of which has been brought on record as Annexure No.1, to the conditions/ comments appended to the Clause 5.4. It has been pointed out that in order to seek the benefit of OBC category then the certificate must be on the prescribed format-I which was also appended and it should be between the period from and after 1^st of April 2020, but before the last date for filing the applications i.e. 30.04.2021.

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The Learned Senior Counsel has further pointed out that the petitioner has three OBC certificates. It is urged that the certificate issued by the State Government is dated 31.08.2019 which is on record as Annexure No.11 the other is dated 22.08.2020 which is on record as Annexure No.12 and the third is dated 21.02.2022 which is on record as Annexure No.13. It is submitted that insofar as certificate dated 31.08.2019 is concerned, since it is not of the period between 1^st of April 2020 till 30.04.2021, hence the same had no acceptance. Similarly, the certificate dated 21.02.2022 which is on record as Annexure No.13, also for the same reason is not within the zone of acceptance.

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However, the certificate issued on 22.08.2020 was within the period as required in terms of the advertisement i.e. it had been issued after 01.04.2020 and before 30.04.2021 and as such the said certificate should have been taken to be valid and there was no reason why the authorities have rejected the representation as it was clearly of the prescription as indicated in the advertisement.

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The Learned Senior Counsel further submits that though the

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certificate which was issued on 22.08.2020 indicated that the petitioner did not belong to the section of creamy layer as mentioned in Column-3 of Schedule of Government of India Department of Personnel and Training and was for appointment of post under the Government of India but it could not have been discarded by the State Government. It is argued that the issue regarding the validity of a certificate under the Central Government and State Government was raised and considered by a Full Bench of this Court in Gaurav Sharma vs. State of U.P and Others 2017 (5) ADJ 494 (FB) .The aforesaid decision of the Full Bench was considered by the Apex Court in the case of Karan Singh Yadav Vs. Government of N.C.T and Others (2022) SCC Online SC 1340. Thus, it is submitted that once the Full Bench had clearly held that there was no repugnancy between the financial criteria fixed by the Union and State Government for the purposes of identification of creamy layer hence the same on its own, would not have any favourable impact upon the eligibility of the candidate unless he furnishes a certificate as belonging to the OBC category as recognized and identified by the State. 13. The thrust of the submission is that the Full Bench had noticed that there was no material differences between the norms fixed by both the Government of India as well as the State of U.P. Hence, the petitioner if once treated as an OBC candidate by the Union then it was not justified for the State authorities to have ignored the certificate which had been filed by the petitioner, Hence, the basic reasoning adopted by the authorities in rejecting the representation of the petitioner is contrary to the settled legal position as laid in Gaurav Sharma (supra) hence the petition deserves to be allowed.

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The learned Standing Counsel while opposing the aforesaid submissions has taken the Court to comment appended to Clause 5.4 of the advertisement which is on record as Annexure 3 and 4 and has submitted that the advertisement clearly held out that a person who was seeking the benefit of a Caste Certificate was required to furnish the same in the prescribed format-I which was part of the advertisement and ought to have been issued on and after 01.04.2020 upto 30.04.2021. It is also urged that the advertisement clearly provided the consequence that in case if the certificate was not in the prescribed format-I then the candidate would be treated and considered under the unreserved category. The case of the petitioner was considered under the general category as his certificate did not meet the criteria and since the petitioner did not make the cut-off merit for a general category hence he was not selected and his representation has also been rejected on the aforesaid ground.

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It is also urged that the petitioner cannot get the benefit of the Full Bench decision of Gaurav Sharma (supra) as the advertisement clearly contained a caveat in Comment 4 of Clause 5.4 and in any case no misplaced sympthies should be accorded to the petitioner who did not file the certificate as required. Morevoer, once the petitioner has participated in the selection in terms of the said advertisement then now, it cannot turn to state that the condition which is contained in Comment 4 of Clause 5.4 is not valid, accordingly, the writ petition deserves to be dismissed.

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The Court has heard the learned counsel for the parties and also perused the material on record.

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The facts in between the parties is not disputed that the petitioner had

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furnished the certificate which is dated 22.08.2020 and a copy of which is on record as Annexure 12. From the perusal of the aforesaid certificate it would be clear that it was issued for appointment to the post under the Government of India. Now, if the format annexed with the advertisement is seen it would indicate that it relates to issuance of certificate under the Government Order 13/22/16/92/TC-III-ka-2/2014 dated 17^th December, 2014.

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The learned Senior Counsel does not dispute that the certificate furnished by the petitioner was not on prescribed format as well as the fact that in the petition there is no challenge to Comment 4 appended to Clause

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5.4 of the advertisement. Now the only issue that needs to be seen is as to whether the respondent no.3 was justified in rejecting the representation of the petitioner by relying upon the aforesaid condition of Clause 5.4.

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In this regard, it will be relevant to notice the Comment 4 appended to Clause 5.4 which reads as under:-

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“4- अन्य पि�छडा व्ቇ� ्ቦेणी के अभ्यቕኌ�यों ्ቛारा पि�छडा व्ቇ� ्ቦेणी के अभ्यቕኌ�यों ्ቛारा पि�቗ኋा�रिरत ्ቚारू�-1/ पि�቗ኋा�रिरत अवधि቗ኋ का ्ቚमाण �्ቔ ्ቚस्तुत � पिकये जा�े अ�वा भारत सरकार की सेवाओं हेतु मान्य अन्य पि�छडा व्ቇ� ्ቦेणी का ्ቚमाण-�्ቔ ्ቚस्तुत पिकये जा�े �र उसको अ�ारधि,त ्ቦेणी के अभ्य�- के रू� मं ेव्यव्ቩत पिकया जाय्ቇा। पि�቗ኋाे रिरत ्ቚारू�� -1/ पि�቗ኋारिरत अवधि቗ኋ का ्ቚमाण� �्ቔ ्ቚस्तुत � पिकय जा�े अ�वा भारत सरकार की से वाओे हं तु माे न्य अन्य - पि�छडा व्ቇ ्ቦ� े णी का ्ቚमाण �्ቔ ्ቚस्तुत पिकय जा�े �र उसको अ�ारधि,त ्ቦे े णी क अे भ्य�- क रू� मे ं ेव्यव्ቩत पिकया जाय्ቇा। े "

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From the perusal of the aforesaid it reveals that any candidate belonging to the OBC category who does not furnish the certificate in the prescribed format or furnishes a certificate which is valid for posts of the Government of India, would be treated as the general candidate.

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In the aforesaid backdrop, if the decision of the Full Bench of Gaurav

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Sharma (supra) is seen it would indicate that 3 questions were referred to the Full Bench which read as under:-

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“A. Whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date for submission of applications? B. Whether the decision in Arvind Kumar Yadav lays down and represents the correct position in law?

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C. Whether there exists any irreconcilable difference or repugnancy between the norms fixed by the Union and State Government with regard to certification of creamy layer? If not, its effect.”

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The Full Bench while answering the aforesaid reference was required to notice as to whether the certificate, which was in essence a recognition of reservation of a already existing status regarding the caste, even if submitted after the last date as prescribed in the advertisement could be refused and this proposition was contested by the State. In the aforesaid backdrop the Full Bench answered Question 'A' by holding that it cannot be said that the requirement of submission of certificate by a particular date is not attracted to a OBC candidate. While answering the other question it held that the law as laid down by a Division Bench of this Court in Arvind Kumar Yadav correctly lays down the law and insofar as the third question is concerned it answered by holding that there was no repugnancy in the norms fixed by the Union and State Government and the same would have no favourable impact upon the eligibility of the candidate unless he also furnishes a certificate evidencing him as belonging to the OBC category as recognized and identified by the State. Thus, it would be seen that the issues before the Full Bench were different and it also held that the OBC candidate cannot claim the benefit of furnishing a certificate after the last date for submission of the application. This Court find that even in the Full Bench decision of

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Gaurav Sharma (supra) there is no consideration whether the condition as mentioned in the advertisement can be relaxed.

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However that is not the issue involved in the instant case. It is the admitted case of the parties that the certificate was filed within time. In the instant case the issue to be considered is as to whether the certificate which was not on the prescribed format could be treated to be a valid certificate, entitling the petitioner to claim the benefit of the OBC caste certificate.

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In this regard, it will be seen that Comment 4 appended to Clause 5.4 is a clear embargo which clearly indicates that the person/ a candidate who does not furnishes the certificate in the prescribed format or files a certificate which is relevant for posts of Government of India would be treated as a general candidate. This clearly indicated that all the candidates were put to notice that the certificate filed, if not issued in the prescribed format or was a one which was valid for posts of Government of India, such person would be treated under the general category. It is admitted to the petitioner that the certificate filed by him was valid for posts of Government of India and in the aforesaid circumstances the Authorities in terms of the conditions of the advertisement treated him as a general candidate and as he did not make the cut-off merit for a general candidate, the petitioner was not selected.

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At this juncture, this Court is reminded of the decision of the Apex Court in the case of State of Tamil Nadu and Another Vs. G. Hemlata and Another (2020) 19 SCC 430 wherein the issue before the Apex Court was regarding relaxation of certain instructions. The Apex Court did not find favour with the judgment of the High Court who had relaxed the conditions

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and the relevant portion thereof reads as under:-

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We have given our anxious consideration to the submissions made by the learned Senior Counsel for the Respondent. The Instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the Instructions issued by the Commission.

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The High Court after summoning and perusing the answer sheet of the Respondent was convinced that there was infraction of the Instructions. However, the High Court granted the relief to the Respondent on a sympathetic consideration in humanitarian ground. The judgments cited by the learned Senior Counsel for the Respondent in Taherakhatoon (D) By Lrs. Salambin Mohammad and Chandra Singh and Others v. State of Rajasthan and Another in support of her arguments that we should not entertain this appeal in the absence of any substantial questions of law are not applicable to the facts of this case.

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In spite of the finding that there was no adherence to the Instructions, the High Court granted the relief, ignoring the mandatory nature of the Instructions. It cannot be said M. Vennial v. Tamil Nadu Public Service Commission, (2006) 3 Mad. LJ 376 (1999) 2 SCC 635 (2003) 6 SCC 545 that such exercise of discretion should be affirmed by us, especially when such direction is in the teeth of the Instructions which are binding on the candidates taking the examinations.

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In her persuasive appeal, Ms. Mohana sought to persuade us to dismiss the appeal which would enable the Respondent to compete in the selection to the post of Civil Judge. It is a well-known adage that, hard cases made bad law. In Umesh Chandra Shukla v. Union of India, Venkatarumishi. J. held that:-

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13.- exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hand cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in far of a strict construction of the Rules and hold cut the High Court had no such power under the Rules.

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Taking note of the aforesaid discussions as well as specific conditions

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contained in the advertisement this Court is satisfied that the order

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impugned does not suffer from any error which may persuade this Court in exercise of its powers of judicial review to interfere. The petition is sans merit and is dismissed . Costs are made easy.

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Order Date :- 22.02.2023 Aditya Gautam

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Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad

Mohit Kumar v. State of U.P. and 3 Others

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Mohit Kumar v. State of U.P. and 3 Others

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