Naresh Kumar vs State of Uttar Pradesh and Others

V.K. Birla, J—Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents. The petitioner, who belongs to OBC category (Banjara), had applied for the post of Constable and other Equivalent Post Direct Recruitment-2011 in pursuance of the advertisement dated 15.7.2011. Subsequently, the said advertisement was cancelled and posts were re-advertised on 14.5.2013 and 20.5.2013. In pursuance thereof, the petitioner alongwith other candidate had applied and appeared in preliminary examination, physical efficiency test and main written examination. Ultimately, the petitioner obtained 227.23302 marks against the total marks of 300 marks.

In the instructions booklet for the recruitment of 2013, Note 4 of the instructions booklet provides as under:

Proforma-2 for issuance of non-creamy layer caste certificate as provided in the instructions booklet is also extracted as under:

Relevant extract of Clause 4.4, is also quoted as under:

A perusal of the aforesaid Note 4 of the instructions booklet indicates that the caste certificate should have been issued on or after 1.4.2012 till the date of application. It is also indicated that anybody belonging to the creamy layer will not be extended the benefit of the reservation.

Now the petitioner has come up challenging the Government Order dated 28.4.2015, which has been issued by the State Government considering the technical difficulty being faced in the recruitment by the Board, as in Clause 4 it was provided that the caste certificate issued between 1.4.2012 to 20.8.2013 only shall be acceptable and as per Clause 4.4, such certificate were not required to be filed with the application form and were required to be shown for verification at the time of medical test. It was also provided that in case any caste certificate issued even now that shall be acceptable but the existing limit regarding creamy layer shall continue to be applicable. Thus, benefit of increasing the limit of creamy layer from Rs. 5 lacs to Rs. 8 lacs as amended on 29.1.2014 shall not be applicable in the present case.

The aforesaid Government Order dated 28.4.2015 is quoted as under:

The submission of the learned counsel for the petitioner is that the condition of the advertisement has been changed by means of the impugned Government Order dated 28.4.2015 after completion of selection process, which is wholly incorrect and is thus liable to be quashed and fresh selection process should be initiated and in case it is found that the advertisement itself was defective, then the whole selection process should have been cancelled and fresh advertisement should have been issued and the purpose of issuance of Government order is to adopt pick and choose policy, which cannot be admissible in the eye of law. The submission is that the conditions and qualification as advertised cannot be changed.

A perusal of the condition 4 clearly indicates that the benefit to the persons who are in the creamy layer as per Schedule 2 of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the ''Reservation Act of 19941 shall not be extended the benefit of the said Reservation Act of 1994. A time period was also provided that the caste certificate should be on proforma-2 between the period 1.4.2012 or to the date of application (in this case the relevant date is 20.8.2013).

By means of the Government Order dated 28.4.2015 under challenge, the time period as fixed in the aforesaid Note 4 has been extended in view of the difficulty being faced during the recruitment process as the original certificate was not required to be filed alongwith the application form, but is to be shown at a subsequent stage (as per Clause 4.4, at the time of medical test) after a candidate has already faced preliminary examination, physical efficiency test and the main written examination and has been called for medical test.

The caste certificate is issued under Section 9 of the Reservation Act of 1994 by such authority or Officer and in such manner and form as the State Government may, by order provide. The said Section 9 of the Act of 1994 is quoted as under:

"9. Caste certificate--For the purposes of reservation provided under this Act, caste certificate shall be issued by such authority or officer and in such manner and form as the State Government may, by order, provide.

For the purpose of present recruitment, a proforma has been prescribed by the Government and it is very much relevant that it has been provided that such caste certificate will be issued alongwith the certification that average annual income of parents does not exceed Rs. 5 lacs on the basis of annual income of three previous years. It is also pertinent to note that with effect from 29.1.2014 this limit was enhanced to Rs. 8 lacs. In other words, earlier the caste certificate was required to have been issued between 1.4.2012 to 20.6.2013 with the non-creamy layer certificate with upper limit of Rs. 5 lacs.

In the Government order impugned herein, this upper limit of Rs. 5 lacs for the purpose of issuance of non-creamy layer certificate remains intact. Apart from this, the consideration of average annual income has also been left intact on the basis of income of three preceding years from the cut off date i.e. 20.8.2013. As such, no prejudice is caused to the petitioner on this ground. The competence of the State Government to issue such Government order is not under challenge and as a matter of fact, Section 10 of the Reservation Act of 1994 clearly provides for the power of the State Government for removal of difficulties. The said Section 10 of the Act of 1994 is quoted as under:

"10. Removal of difficulties--If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by a notified order, make such provisions not inconsistent with the provisions of this Act as appears to it to be necessary or expedient for removing the difficulty."

It is also pertinent to note that in paragraph 5 of the Government Order dated 28.4.2015, it has been clearly provided that such Government order is applicable only for the purpose of recruitment of Constable and other Equivalent Posts Direct Recruitment-2013 and it shall not be treated as precedence in other cases. A perusal of proforma 2 annexed to the said Government order also clearly indicates that it is only for the purpose Constable and other Equivalent Posts Direct Recruitment-2013. The certificate itself clearly indicates that average annual income of Rs. 5 lacs has been kept intact from the cut off date i.e. 20.8.2013. As such, it is very much clear that social status of a candidate and certificate of belonging to non-creamy layer is also not affected.

In view of the same, it is very much clear that Government Order impugned herein is purely corrective in nature and does not confer any substantive right whatsoever to any of the candidates who appeared in the aforesaid recruitment of 2013. A reference may also be made to the law laid down by the Hon''ble Apex Court in the case of Barot Vijaykumar Balakrishna and Others Vs. Modh Vinaykumar Dasrathlal and Others, (2011) 7 JT 266 : (2011) 7 SCALE 12 : (2011) 7 SCC 308 : (2011) 2 SCC(L&S) 281 . In the aforesaid case, though the Rules framed under Article 309 of the Constitution governing selection process for Assistant Public Prosecutor mandated that there would minimum qualifying marks each for the written test and the oral interview, the cut off mark for viva voce was not specific in the advertisement. The cut off marks were provided by the Service Commission before interview. The same was challenged on the ground of mala fide and being illegal and claiming that the appellants were entitled for inclusion of their name for the purpose of interview. Upholding the said notification, the Hon''ble Apex Court held that it did not cause any prejudice to any candidate either and there was no illegality at all in the selection process. Paragraph 31 of the said judgment is quoted as under:

"31. Now coming back to the facts of the case in hand, though the rules framed under Article 309 of the Constitution governing the selection process mandated that there would be minimum qualifying marks each for the written test and the oral interview, the cut off mark for viva voce was not specified in the advertisement. In view of the omission, there were only two courses open. One, to carry on with the selection process and to complete it without fixing any cut off mark for the viva voce and to prepare the select list on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong and in violation of the statutory rule governing the selection. The other course was to fix the cut off mark for the vive voce and to notify the candidates called for interview about it. This is the course that the Commission followed. This was in compliance with the rules and it did not cause any prejudice to any candidate either. We, thus, see no illegality at all in the selection process".

A reference may also be made by the Hon''ble Apex Court in the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, AIR 2008 SC 1913 : (2008) 1 CLT 753 : (2008) 3 JT 611 : (2008) 3 SCALE 425 : (2008) 4 SCC 171 : (2008) 1 SCC(L&S) 1005 : (2008) AIRSCW 2158 : (2008) 2 Supreme 328 . Paragraph 15 of the said judgment is quoted as under:

"15. The aforesaid ruling has been reiterated in para 9 of the judgment by a three-Judge Bench of this Court in Union of India (UOI) Vs. K.P. Joseph and Others, AIR 1973 SC 303 : (1973) 1 SCC 194 : (1973) 2 SCR 752 : (1973) 1 SLJ 1 , as under:

"9. Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma Vs. State of Rajasthan and Another, AIR 1967 SC 1910 : (1968) 2 LLJ 830 : (1968) 1 SCR 111 , that although Government cannot be supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service."

In the present case also, there is no inconsistency either with the Uttar Pradesh Sub-inspector and Inspector (Civil Police) Regulation, 2008, which provides for procedure for recruitment or with the Reservation Act of 1994. The Regulation 29 of the Regulations of 2008 provides that the matter of reservation is to be governed by the orders of the Government issued from time to time. As already noticed, it was well within the jurisdiction of the State Government to remove difficulties as provided under Section 10 of the Reservation Act of 1994.

This Court is, therefore, of the opinion that since non-creamy layer limit as provided in Scheduled 2 of the Reservation Act of 1994 remains intact to Rs. 5 lacs, on the basis of average annual income of three years preceding the cut off date and the cut off date i.e. 20.8.2013 has also been left intact, no prejudice is caused to the petitioner and it does not amount to any change in the rules of the game as none of the candidates stood affected on merits. This was only to remove difficulties being faced by the recruiting authority. The writ petition lacks merit and is accordingly dismissed. No order as to costs.