Rubiya Bano vs State of U.P.& Others

A.N. Gupta, J.—The petitioner is a Momin (Ansar) by caste which is recognised as Other Backward Classes (O.B.C.) under Entry No. 43 of ScheduleI to Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes & Other Backward Classes) Act, 1994 (hereinafter referred to as the Act'') which came into operation w.e.f. 11.12.93. Schedule II of the said Act lays down the criteria as to which persons belonging to O.B.C. shall be regarded as belonging to ''Creamy layer''. ScheduleII was enacted in view of Supreme Court decision given in the case of Indra Sawhney etc, etc, v. Union of India & others AIR 1993 Supreme Court 477 (Mandal Case) in which although reservation for O.B.Cs. was upheld but its creamy layer was not held entitled to the benefit of reservation.

In the year 1995 a Combined PreMedical Test (C.P.M.T.) was held by Kanpur University for admission to M.B.B.S and allied courses. It issued advertisement dated 10.6.95 inviting applications from eligible candidates to appear in the said Test. The last date fixed for receiving the applications was 10.7.1995. The petitioner applied for appearing in C.P.M.T. within the aforesaid time against the seats reserved for O.B.C. Alongwith her application the petitioner annexed a certificate to the effect that she belonged to Momin (Ansar) caste and as such, belongs to O.B.C. This certificate was issued by Tehsildar, Lucknow within whose jurisdiction she was residing. In that certificate it was also mentioned that the petitioner did not belong to creamy layer as laid down in Schedule II of the Act. The test was held on 16th and 17th August, 1995 and the result was declared on 5.2.96. The petitioner qualified for selection for the M.B.B.S. course against the quota meant for O.B.C. and Ganesh Shanker Vidyarthi Medical College, Kanpur was allotted to her. However, before declaration of the result, the petitioner received a letter dated 29th November, 1995 from Registrar of Combined PreMedical Test, 1995 (Kanpur University) that she should furnish O.B.C. certificate in accordance with Govt. of India Office memorandum dated 8.9.93. Proforma of the certificate was enclosed with the letter in which it was also mentioned that the certificate which was required to show that the petitioner did not belong to creamy layer. On 2.12.95 the petitioner furnished the certificate in the proforma received by her. It was also issued by Tahsildar, Lucknow. In the said certificate it was certified that the petitioner was Momin Ansar by caste and as such belonged to Backward Class. It was also certified that the petitioner did not belong to the creamy layer as was defined in the Office Memorandum of Govt. of India dated 8.9.93. As mentioned above, result of C.P.M.T. was declared thereafter on 5.2.96. The petitioner was called for medical examination vide letter dated 22.4.96 issued by Principal of Kanpur Medical College requiring the petitioner to appear on 1.3.96. The petitioner appeared on 1.3.96, was found medically fit and was allotted a hostel also. However, on the same date i.e. on 1.3.96 she was informed that her certificate of not belonging to creamy layer was not on the prescribed proforma and therefore, she was granted time upto 15.3.96 to furnish the certificate on the proforma enclosed by Principal of Kanpur Medical College, alongwith said letter dated 1.3.95. The proforma which the petitioner was required to furnish, was to the effect that �This is to certify that Shri..............................D/o..................R/o.....................does not belong to the persons/Sections (Creamy layer) mentioned in Column 3 of Schedule to Govt. of India/Department of Personnel and Training Office memorandum No. 36012/22/93Esst.(SCT) dated 8.9.93 which was to be issued either by District Magistrate or by Tehsildar with the date and seal of the officer issuing the same. The petitioner furnished the said certificate on 2.3,96 which was issued by Tehsildar, Lucknow with his seal on the proforma given to the petitioner by Principal of Kanpur Medical College.

When the petitioner alongwith her father approached the Principal of Kanpur Medical College on 12.3.96 for completion of other formalities, the petitioner''s father was required to furnish certificate regarding his salary and a ''Note'' was given on the letter dated 1.3.96 that time upto 20.3.96 was allowed for obtaining ''creamy layer'' certificate. The Petitioner was not allowed to deposit fee or to attend the classes. In other words, she was not admitted to the Course. Since the petitioner did not know in what other proforma the certificate was to be furnished, she could not furnish the certificate and was consequently, not admitted to the M.B.B.S. Course. She then approached this Court by filing writ petition for a writ of mandamus commanding to the Medical College, State of U.P. and the Director, Medical Education to admit the petitioner to the M.B.B.S. Course and not to treat the petitioner as belonging to the ''creamy layer'' of O.B.C. In this writ petition an interim order dated 16.3.96 was passed requiring the opposite parties to keep one seat vacant for the petitioner. Since the petitioner did not know as to which was exact prescribed proforma for the purpose, an order dated 30.10.96 was passed by this Court requiring Principal of Kanpur Medical College to give a letter to the petitioner in writing indicating the reasons for not accepting O.B.C. Certificate issued by Tahsildar. It was also directed that the Principal shall further indicate as to what was requirement and to which authority the petitioner should approach for issuing such certificate and he should also handover a copy of the guide lines which have been issued by the State to the District Magistrate for issuing such certificates. Thereafter, the Principal gave letter dated 13.11.96 to the petitioner enclosing therewith Govt. Order dated 13.12.95 and the proforma which was required to be furnished by the petitioner. The petitioner submitted the certificate in the said proforma which is dated 11.2.97 alongwith her letter dated 13.2.97 but the petitioner has still not been admitted.

Before proceeding further it is necessary to mention that the Supreme Court in the case of Ashok Kumar Thakur v. State of Bihar & others (1995) 5 SCC 403 decided on September 4, 1995 struck down Schedule II of the Act which laid down the criteria for determining ''creamy layer'' of O.B.C. It further directed that for the academic year 199596, to which the case in hand relates, State of U.P. and Bihar shall follow the criteria laid down by Govt. of India in its Memorandum dated 8.9.1993 and it would be open for the two States to lay down fresh criteria for subsequent years in accordance with law. In accordance with this judgment State Govt. in the Medical Department issued Govt. Order dated 17.11.95 regarding reservation in the medical Courses. In the said Govt. order it was clearly provided that benefit of reservation shall not be available to the ''creamy layer'' of O.B.C. as defined by Govt. of India in its memorandum dated 8.9.93 and this provision was made with specific reference to the judgment of Supreme Court in the case of Ashok Kumar Thakur (Supra). The State Govt. in Personnel Department issued a notification published in the extraordinary gazette that same criteria for ''creamy layer'' shall be followed in the State during academic year 199596 which has been defined by Govt. of India in its Office Memorandum dated 8.9.93. Thereafter on 13.12.95 the State Govt. in the same department again issued a Govt. Order to all the Commissioners, District Magistrates, Tehsildars etc. specifying therein the proforma of the certificate which was to be furnished by the candidates belonging to O.B.C. in which it was clearly provided that it has to be certified that the candidate did not belong to the creamy layer as defined in the Government Notificated dated 8.12.95 which means that the candidate did not belong to the ''creamy layer'' as laid down by Govt. of India in its Office Memorandum dated 8.9.93. The Supreme Court in the case of Kumari Madhuri Patil and another v. Additional Commissioner. Tribal Development and others AIR1995 SC94 laid down detailed guidelines how certificate for Backward Caste, Scheduled Caste and Scheduled Tribe shall be issued and how will they be made available. It appears that in pursuance of this judgment the State Government issued a detailed Govt. Order dated 5.1.96 laying down the procedure for issuing certificates to Backward Classes and other persons belonging to the reserved category. In this Govt. Order it was laid down that for obtaining a certificate for reserved category a candidate if he is major or through his guardian if he is minor, shall have to apply directly to the authorities mentioned therein including Tahsildar which shall be accompanied by an affidavit verified by a gazetted officer mentioning therein the caste or subcaste etc of the candidate and such particulars shall also be given regarding the original place of residence of the candidate which was to be specified by Director of Scheduled Caste/Scheduled Tribes and by the Director of Backward Classes. After the officer is satisfied he shall issue the certificate. It has also been provided that a certificate issued in accordance with the above procedure, shall be subject to the verification by the Scrutiny Committee of three persons consisting of Principal Secretary, Social Welfare Department, Director, Schedules Castes and Scheduled Tribes in the case of Scheduled Castes and Scheduled Tribes, or Director, Welfare Backward Classes in respect of Backward Class People and an additional Member belonging either to Scheduled Caste or to the Backward Class to be nominated by the State Govt. It has also been provided that the candidate seeking benefit of reservation shall move an application before the Scrutiny Committee six months before his admission or appointment.

It is also necessary to mention that Sri Shahabuddin Ansari, father of the petitioner, at present is an officer working in Hindustan Aeronautics Ltd., Lucknow which is a Public Sector Undertaking of the Government of India. His date of birth as recorded in High School Certificate is 5.1.41. He was initially appointed as Senior Planner and thereafter he was promoted to the post of Assistant Engineer (Officer Grade I) W.e.f. 13.1.97 in the scale of Rs. 22001003600. Thereafter he was promoted to the post of Engineer (Officer Grade I) w.e.f. 19.2.83 in he scale of Rs. 25001204300. He was further promoted to the post of Deputy Manager (Officer Grade III) in the scale of Rs. 31005150 w.e.f. 1.4.90 and he is still continuing as such. This grade came to be revised to Rs. 48008275 w.e.f. 22.9.95. It is admitted to the parties that before 22.9.95. total salaried income of father of the petitioner was less than Rs. 1,00,000 per year but after 22.9.95 his salary became more than Rs. 1,00,000 per year.

The question which arises for consideration in this petition is as to whether the petitioner is entitled to be admitted to the M.B.B.S. Course as an O.B.C. candidate not belonging to the ''Creamy layer''. As mentioned above, it is not disputed that the petitioner belongs to Momin (Ansar) caste which has been recognised as an O.B.C. in the State. Thus, the only question to be considered is as to whether the petitioner has furnished a valid prescribed certificate to the effect that she does not belong to the ''Creamy layer'' of O.B.C. By now, the petitioner has furnished as many as five certificates to the effect that she not only belongs to the O.B.C. but does not also belong to the ''Creamy layer''. It is important to find that at the time when the petitioner applied for appearing in C.P.M.T., no proforma was prescribed by the State Government. Subsequently, as and when judgments were delivered by Apex court, the State Government went on prescribing one proforma after the other which the petitioner has complied with. The latest certificate furnished by the petitioner is also in accordance with the prescribed proforma as existing today. The learned standing counsel has twofold objections against the last certificate furnished by the petitioners. Firstly, it is mentioned in this certificate that caste of the petitioner has been certified on the basis of the certificate dated 2.3.1996 issued earlier. This objection is totally invalid because it is not disputed to the opposite parties that the petitioner belongs to Momin (Ansar) caste which is recognised as an O.B.C. under the Act. The second objection is that this certificate has not been obtained after following the procedure as prescribed in the Govt. Order dated 5.1.1996. Tahsildar who has issued the said certificate dated 11.2.97, has certified the caste of the petitioner not on the basis of the affidavit as prescribed but on the basis of certificate dated 2.3.1996. Since it is not disputed that the petitioner belongs to Momin (Ansar) caste which is recognised as O.B.C. under the Act, this hypertechnical objection has no substance. The petitioner has been running from pillar to post since 1995 and inspite of the fact that she stands qualified on merit for being admitted to the M.B.B.S. Course, she has been denied admission for the last more than a year. It hardly needs to be emphasized what prestige and position a Doctor enjoys in the present day Society. There may be some objection as to whether the petitioner belongs to the ''Creamy layer'' or not. In view of the above circumstances, I proceed to consider as to whether the petitioner belongs to the ''Creamy layer'' or not because it involves interpretation of the Govt. of India Office memorandum dated 8.9.93 which requires adjudication.

Category II C of the Schedule to Government of India Office Memorandum dated 8.9.93 relating to employees of Public Sector Undertaking, runs as follows :

�C. Employees in Public Sector Undertakings etc: The Criteria enumerated in A and B above in this category will apply mutatis mutandis to officers holding equivalent or comparable posts in PSUs., Banks, Insurance Organisations, Universities etc. and also to equivalent or comparable posts and positions under private employment, pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI below will apply to the officers in these institutions.�

Category A relates to Group A/Class I Officers of All India Central and State Services (Direct Recruits), and Category B is meant for Group B/Class II Officers of the Central and State Services (Direct Recruitment). According to the above, for Category ''C'' regarding employees of Public Sector Undertakings, the same criteria would apply which is applicable to Group A/Class I Officers and Group B/Class II Officers of the Central and State Government holding equivalent post in such Public Sector Undertakings. In the Public Sector Undertakings and in any case in Hindustan Aeronautics Limited its officers or employees have not been designated as Group A or Class I or Group B/Class II Officers. In fact, they are designated as Group I, Group II and Group II Officers, as has been indicated above. Thus, the criteria of Category A & B shall not be applicable to Category C, as such, and therefore, it has been provided that pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI below, will apply to the officers in these institutions. According to Category VI, Officers belonging to Public Sector Undertakings shall not be entitled to the benefit of reservation or they shall belong to the ''Creamy layer'' if annual income of their father is Rs. 1,00,000 or more and they possess wealth above exemption limit as provided in Wealth Tax Act for a period of three consecutive years. Salaried income of the father of the petitioner was not found Rs. 1,00,000 per annum or above till the last date prescribed for receiving applications for appearing in C.P.M.T. It is not known whether the petitioner''s father was above the exemption limit as prescribed in the Wealth Tax Act or not. The father of the petitioner started getting salary of more than Rs. 1,00,000 w.e.f. 1.9.1995 and in any case it was always less than Rs. 1,00,000 per annum for the last three consecutive years. Since it is not known whether the petitioner''s father was having any other income or he possessed wealth above exemption limit or not, this certificate will have to be verified by the Scrutiny Committee as laid down in the Govt. Order dated 5.1.96. However, in the meantime it is directed that the petitioner shall be admitted to the M.B.B.S. Course in Kanpur Medical College within three days from the date a certified copy of this order is produced before the Principal of the said College. She shall be treated as having been admitted to the M.B.B.S. Course starting in the year 199697. The petitioner''s father shall submit all details for the verification of the petitioner''s certificate to the Chairman of the Scrutiny Committee within 21 days from today, and the said Scrutiny Committee shall take a decision within two months from the date of receipt of the application from the petitioner or her father. It is made clear that the petitioner shall be treated to be a candidate belonging to O.B.C. It is further directed that the petitioner shall be treated as not belonging to the ''Creamy layer� unless her father had an annual income of more than Rs. 1,00,000 for the last three consecutive years on the relevant date i.e. 10.7.1995 and possessed wealth beyond exemption limit on that date and during the last three consecutive years. The father of the petitioner shall cooperate in the inquiry and admission of the petitioner shall be subject to the decision of the Scrutiny Committee.

The writ petition is finally disposed of in the terms indicated above.

(Ordered accordingly)