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Mohd.Hassan Jafri v. Director Of Higher Education & Others - WRIT - A No. 26044 of 2000  RD-AH 190 (2 April 2004)
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc Writ Petition No. 26044 of 2000
Mohd Hassan Jafri
The Director of Higher Education UP Allahabad and others
Advocate for Petitioner
Advocate for Respondent
Hon'ble Yatindra Singh, J
Hon'ble (Mrs.) M. Chaudhary, J
Date of Judgement 2.4.2004
(Delivered by Hon'ble Yartindra Singh, J)
1. The main question involved in this writ petition is,
'Whether a resident of a State other than the State of UP (the other State) belonging to a caste in the reserved category in the other State, is entitled to reservation in ''public services and posts' in the State of UP under UP Public Services (Reservation for Schedule caste, Schedule Tribe and other Backward Classes) Act, 1994 (the Act) ?'
2. The UP Higher Education Service Commission, Allahabad (the Commission) issued an advertisement no. 26/1998 for appointment of teachers in degree colleges in the State of UP. These posts are within the meaning of 'public services and posts' as defined under the Act. There is reservation for Schedule caste, Schedule tribe and other Backward classes (SC/ST/OBC) in these posts as provided under the Act. The petitioner has qualified the National Eligibility Test (NET) and has minimum educational qualification under the advertisement. He is an ordinary resident of State of Bihar. He applied as an OBC candidate. He produced an OBC certificate dated 15.9.1995 issued by the Sub-Divisional Officer (SDO), district Nalanda, Bihar. This certificate is for OBC applying for appointment to the posts under the Government of India. It certifies that
The petitioner ordinarily resides in village Jhala PO Karnal, PS Silao, district Nalanda, Bihar.
He belongs to ''Momin' community under Muslim faith.
His caste is recognized as a backward class under the Government of India Ministry of Welfare Resolution no. 12011/63/93-BCC(C) dated 10.9.1993.
He does not belong to the persons/sections (creamy layer) mentioned in column 3 of the Schedule to the Government of India, Department of Personnel and Training Notification OM No. 36012/22/93 Hstt (SCT) dated 8.9.1993.
3. The petitioner was called for the interview on 13.7.1999. The results were declared on 16.7.1999 and he was declared successful in the OBC category. He was given a joining letter dated 16/19.7.1999 by the Director of Higher Education UP Allahabad (the Director). He was posted as lecturer in Psychology department at Agra College, Agra (the College). However, the committee of management of the College did not permit the petitioner to join the College. The petitioner filed a representation before the Director for necessary directions and when no action was taken, he filed writ petition no. 43253 of 1999. This writ petition was disposed of on 4.10.1999 with the direction to the Director to decide the representation of the petitioner. The Director rejected the representation of the petitioner on 1.5.2000 on the ground that:
The caste certificate under the Act can only be issued to an ordinary resident of the State of UP.
The petitioner is a resident of Bihar and his caste certificate can not be accepted as the caste certificate under the Act.
The petitioner is not entitled to reservation.
Hence the present writ petition.
POINTS FOR DETERMINATION
4. We have heard counsels for the parties (See Endnote-1). Following points arise for determination in this case:
(i)Whether the caste of the petitioner is also an OBC under the Act?
(ii)Whether the petitioner belongs to creamy layer?
(iii)Whether an ordinary resident of the other State is entitled to reservation under the Act if the caste of same nomenclatures is,
(a) not included in the reserved category in the State of UP?
(b) included in the reserved category in the State of UP?
(iv) Whether the petitioner is entitled to benefit of reservation as other reserved category candidates from State of Bihar have been given benefit of reservation in the same selection?
(v) Whether the petitioner is entitled to any relief?
POINT NO. 1 & 2: EVIDENCE IS NOT CONCLUSIVE
5. The State of Uttar Pradesh has the Act for providing reservation in favour of SC/ST/OBC. This reservation is in 'public services and posts' as defined under section 2(c) of the Act. Broadly 'public services and posts' have public colour and are in connection with the State of UP.
6. The phrase 'Other Backward classes' (OBC) has been defined in section 2(b) of the Act. It means the castes included in schedule-1 of the Act. 'Momin Ansar' is one of the castes mentioned in this shedule. The certificate of the petitioner mentions his caste to be 'Momin'. The counsels for the respondents submit that
Everyone following Islam is a 'Momin'.
The weaver or 'Ansar' is an OBC under the Act.
The petitioner is not ''Ansar' and is only ''Momin' (the one who follows Islam) and is not entitled to reservation.
7. The counsel for the petitioner submits that:
If every follower of Islam is 'Momin' then it ought to have been used for every entry relating to Muslim community.
'Momin' has been used for only one Muslim community. It means that it is not generic word.
'Momin' and 'Ansar' are one and the same; they are weavers. It is for this reason that in Schedule-I of the Act 'Ansar' is mentioned in brackets.
8. There isn't sufficient material to come to either conclusion: whether the Momin and Momin (Ansar) are one or different.
9. Proviso to sub section 3(2) of the Act provides that reservation in favour of the OBC will not apply to the category of citizens specified in scheduled-II of the Act (creamy layer). The Supreme Court in Ashok Kumar Thakur vs. State of Bihar: JT 1995(6) SC 390 set aside the creamy layer defined by the State of UP as well as the State of Bihar and directed that the criteria laid down by the Government of India regarding creamy layer will be applicable in both the States till fresh criteria is laid down. Since then, the State of UP has laid down fresh criteria. It is not clear if the state of Bihar has also laid down fresh criteria or not. According to the certificate of the petitioner, he is not in the creamy layer in the state of Bihar but it is not clear whether the petitioner is or isn't in the creamy layer as defined in the Act.
10. There is insufficient material to decide the questions raised in point nos. 1 and 2. However, in view of our answers to the other questions involved in the other points it is not necessary to decide it. For purposes of this case, we assume that ''Momin' and ''Momin (Ansar)' are nomenclature of the same caste and the petitioner does not fall in the creamy layer as defined in the Act.
POINT NO. 3: RESIDENTS OF THE OTHER STATE - NOT ENTITLED FOR RESERVATION
3(a): If The Caste Of Same Nomenclature - Not Included In The Reserved Category In The State Of UP.
11. A division bench of our court in Civil Misc. Writ Petition No. 3936 of 2002 Satpal Meena and others Vs. UP Public Service Commission, Allahabad and others decided on 5.9.2002 and the Supreme Court in UP Public Service Commission, Allahabad Vs. Sanjai Kumar Singh (2004) 1 UPLBEC 217 has held that an ordinary residents of the other State whose caste is not in the reserved category in the State of UP is not entitled to reservation in 'services and posts' under the Act even if they belong to the reserved category in their own State. In our opinion these two decisions lay down the correct Law; we agree with the same.
12. The counsel for the petitioner cited another decision of the division bench of our court in Sunil Kumar vs. LIC (WP No. 22271 of 2000 decied on 24.4.2003) (the Sunil Kumar case) for contrary view. This case has no application to the facts of this case.
13. The Sunil Kumar case was in respect of posts in the Life Insurance Corporation (LIC). The LIC is a corporation created by an Act of the Central Government. It follows the reservation policy of the central government. The posts in the Sunil Kumar case were not within the ambit of 'public services and posts' within the meaning of the Act. The Act was neither applicable to the posts advertised in the Sunil Kumar case nor was that case decided with reference to the Act.
14. Apart from above, the Sunil Kumar case relies upon following decsions:
(i)The Supreme Court case reported in Union of India vs. Dudh Nath Prasad: AIR 2000 SC 525 (the Dudh Nath case).
(ii)A division Bench case of our high Court reported in Sanjay Kumar Singh vs. State of UP 2000 (1) UPLBEC 729 (the Sanjay Kumar case).
15. The Dudh Nath case � unlike the case here � was concerned with the posts in connection in the Union of India. The posts were similar to the posts in the Sunil Kumar case. The posts in the Dudh Nath case were neither within the ambit of 'public services and posts' within the meaning of the Act, nor was it decided in reference to the Act. The Dudh Nath case is also not applicable here.
16. The division bench decision of the Sanjay Kumar case was taken in appeal to the Supreme Court and was overruled in UP Public Service Commission, Allahabad Vs. Sanjai Kumar Singh (2004) 1 UPLBEC 217 (SC). The decision of the division bench of this court in the Sunil Kumar case is no longer good law.
3(b): If The Caste Of Same Nomenclatures - Included In The Reserved Catogry In The State Of UP.
17. Section 9 of the Act is titled as ''Caste Certificate'. It states that the caste certificate shall be issued by such authority or officer and in such manner and form as the State Government may provide. The State government has taken decision under section 9 of the Act and has issued GO No. 484/Ka-1/94-1/1/1994 dated 29.3.1994 directing the manner and form in which it is to be produced. It states that caste certificate has to be issued by District Magistrate/Addl. District Magistrate/City Magistrate/Tehsildar of the area where the person ordinarily resides or where he was born. In case of SC/ST it can be issued by some other authorities too. The form of certificate is also attached. This form has been substituted from time to time however in every form the authority has to certify that the person ordinarily resides in the State of UP.
18. The effect � of section 9 of the Act and government orders issued under it � is that in order to claim benefit of reservation over 'public services and posts' under the Act,
The candidate has to be ordinary resident of the State of UP and
He has to produce a caste certificate issued by the authorities of this State.
Can such conditions be imposed under the law? Is it constitutional?
19. The Supreme Court in Action Committee vs. Union of India: 1994 (5) SCC 244 (the Action Committee case) was concerned with the following question mentioned in the first paragraph of that case.
''Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State B, will that person be entitled to claim the privileges and benefits admissible to person belonging to the Scheduled Caste and or Scheduled Tribes in Sta B?'
20. The Supreme Court (in the Action Committee case) after considering the different notifications issued by the Government of India stated the practice of Government of India in the following terms:
''It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22.3.1977, it has firmly held the view that Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, can not be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he can not claim benefit as such in the later State.'
21. The Supreme Court (in the Action Committee case) answered the question framed by it in the following terms:
''Coincidently it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements, which constitute the point for specification, may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution.'
22. The Supreme Court in MCD vs. Veena 2001 (6) SCC 571 (the Veena case) was concerned with similar question regarding OBC in the national capital of Delhi. The Court stated the practice of the Government of India regarding OBCs as follows:
''The Government of India has also issued instructions from time to time in this regard which indicated that a person belonging to OBC on migration from the State of his origin [to] another State where his caste was not in the OBC list was entitled to the benefits or concessions admissible to OBCs in his State of origin and the Union Government, but not in the State to which he has migrated.'
23. The Supreme Court (in the Veena case) further held:
''Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements, which constitute the data for specification, may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste.
24. The court (in the Veena case) also held that the OBC certificates has to be issued by the authorities mentioned in that certificate namely by the officers in Delhi and the certificate issued by any other authority would not be accepted. The Court said:
''A careful reading of this notification would indicate that OBCs would be recognized as such in the Government of the National Territory of Delhi as notified in the notification dated 20.1.1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificate will have to be issued only by the specified authorities and certificates issued by any other authority would not be acceptable.
25. The aforesaid two cases indicate that the law of reservations regarding resident of the other State is the same so far as SC/ST and the OBC are concerned. In order to obtain benefit of reservation in any State,
The person should be ordinary resident of that State; and
He should produce a certificate from an Officer/Authority as indicated by that State; and
The certificate issued by any other Officer/Authority is not sufficient.
The aforesaid law is applicable even if the caste of the same nomenclature falls in the reserved category in both the States.
26. The petitioner is admittedly neither ordinary resident of the State of UP nor has produced certificate as envisaged under the Act. He is rightly denied benefit of reservation.
27. The counsel for the petitioner submits that:
(i)In Mari Chandra vs. SGC Medical College; 1990(3) SCC 130 (the Mari Chandra Case) the candidate was an ST in his home State but not so in the State to which he had migrated. The observations in the Mari Chandra case were neither relevant nor could be relied in the Action Committee Case.
(ii)The Veena case does not decide the point independently but merely relies upon the Action Committee case.
(iii) The Observations of the Supreme Court in the Action Committee case and the Veena Case merely contemplate a situation where there is similarity of nomenclatures irrespective of whether one is specified or not as reserved category. But once a stage of specification (i.e. the caste being declared as reserved category) is crossed then a person whose caste is declared in the reserved category in the two states should be allowed to claim rights as permissible in both the States.
(iv)Once the Caste has been held to be in the reserved category in both the States then the reasons for making them in the reserved category are irrelevant and only relevant thing is that they are in the reserved catetegory in both the States. They are entitled to reservation.
(v)The residents of other States in the reserved category are discriminated qua residents of same caste of ordinary residents in this State as the residents of the other State are prohibited to appear in the reserved category. There can not be any discrimination on the basis of residence.
28. We would have considered the points raised by the counsel for the petitioner in greater detail but for the two Supreme Court decisions cited earlier. These decisions are binding on us.
POINT NO. 4: NO BENEFIT
29. The counsel for the petitioner brought to our notice paragraph-18 of the writ petition and submitted that:
Ms Sunita Kumari is from Bihar and was similarly situate.
She had also produced similar OBC certificate from Bihar.
She has been selected and has been given appointment and similar benefit should be given to the petitioner.
30. Paragraph-18 of the writ petition has been replied in paragraph-12 of the counter affidavit. The fact that Ms. Sunita Kumari is similarly situate is not denied, but it has been stated that:
The management of the college where Sunita Kumari was appointed neither objected to her appointment, nor pointed out the mistake and she was permitted to join.
In the case of the petitioner, the college did not permit the petitioner to join and has pointed out the mistake.
This mistake has been corrected and no benefit can be taken by any one of an illegality.
In light of above mentioned circumstances, there is justification for according different treatment to the petitioner.
31. A person can not claim parity or equality for an illegality or irregularity. State can not be compelled to commit an illegality (for cases see Endnote-2). The fact that Ms. Sunita Kumari was wrongly permitted to join would not entitle the petitioner to get an order from the court to commit an illegality. In any case she has joined without objection from anyone; her case is distinguishable. We see no justification to issue any direction in favour of the petitioner on this ground.
POINT NO. 5: THE PETITIONER SHOULD BE CONSIDERED AS A GENERAL CANDIDATE.
32. We have held that the petitioner is not entitled to appear as reserved candidate however the respondents can not deny any citizen or the petitioner from appearing as a general candidate. They have neither considered his case as a general candidate nor there is any assertion that he could not have qualified as a general candidate. The commission may consider the case of the petitioner as a general candidate. In case he had qualified as the same then appointment may be given to him in accordance with law.
33. We have already held that benefit of reservation in 'service and posts' under the Act can only be given to ordinary resident of the State of UP who produce caste certificate as envisaged under the Act. It is not disputed that many ordinary residents of the other States have been selected in the reserved category, without producing caste certificate as required under the Act--contrary to what has been held in this case--and they are working without any objection. We hereby clarify that our judgment should not be read as invalidating their appointments on this ground: appointments already made should be a closed chapter.
34. In this case, the petitioner had appeared in the selection as a reserved candidate without any objection. It is only after he was selected that mistake was pointed out. Similar mistakes may be happening. The Higher Education service Commission or the UP Public Service Commission or the other selection bodies should take care that such applications for claiming benefit of reservation are rejected at the first instance and such candidates are permitted to appear only as the general candidates. This will save inconvenience to the candidates. In order to avoid confusion, the State of UP may consider issuing GO clarifying this point for guidance so that such mistakes may not be repeated.
35. There is reservation for admission in Schools, Colleges and Universities in the State of UP. Similar problems may arise in this area too. We had no occasion to consider it, but it would be a good idea for the State to consider it and issue guidelines if so required.
36. Our conclusion are as follows:
i.The ordinary residents of the other States belonging to reserved category are not entitled to reservation in this State on 'services and posts' under the UP Public Services (Reservation for Schedule Caste, Schedule Tribe and other Backward Classes) Act, 1994.
ii.The proposition of law stated in the preceeding paragraph is applicable whether the caste of same nomenclature is included in the reserved category in the State of UP or not?
iii.The ordinary residents of the State of UP are entitled to reservation if they produce caste certificate in the form and from the officers mentioned in the proforma issued under section 9 of the UP Public Services (Reservation for Schedule Caste, Schedule Tribe and other Backward Classes) Act, 1994.
iv.The petitioner is neither ordinary resident of this State, nor has produced the certificate in the form and from the authorities mentioned in the proforma. He is not entitled to appear as a reserved candidate.
v.The petitioner is entitled to be considered as a general candidate and his candidature may be considered by UP Higher Education Service Commission UP, Allahabad as a general candidate and in case he has qualified as a general candidate then he may be appointed in accordance with law.
37. In view of our conclusions the writ petition is partly allowed to the extent detailed in sub paragraph (v) of the preceding paragraph. This exercise may be done at an early date if possible within two months of production of certified copy of this order.
Date: 2nd April, 2004
Endnote-1 (See paragraph 4):
Sri SA Gilani appeared for the petitioner; Ms Subhash Rathi, standing counsel appeared for the State Officials; Sri DK Tripathi appeared for the Commission and Sri Pankaj Misra appeared for the Agra College;. Sri SMA Kazmi, Chief Standing Counsel for the State of UP and Sri BN Singh, senior standing counsel for Government of India and standing counsel for UP State Public Service Commission made submissions as the friends of the court. Sri VC Misra, Sri Vivek Misra, Sri GK Singh, Sri Sidharth Singh, Rohit Kumar, Sri Ajay Shankar filed briefs opposing or supporting the petitioner as friends of the court. We take this opportunity to put our appreciation on record for the help and assistance rendered by the counsels.
Endnote-2: (See paragraph 31)
i.Chandigarh Administration and others Vs. Jagjit Singh; JT 1995 (1) SC 445
ii.Gursharan Singh Vs. New Delhi Muncipal Committee. (1996) 2 SC 459
iii.The Secretary Jaipur Development Authorty, Jaipur Vs. Daulat Mal Jain; JT 1996(8) SC 387.
iv.The State of Haryana & others Vs. Ram Kumar Mann. JT 1997 (3) SC 450.
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