Court No. - 89
Case :- WRIT - A No. - 20919 of 2018 Petitioner :- Niraj Kumar Gond Respondent :- State Of U.P. And Another Counsel for Petitioner :- Sunil Kumar,Hira Lal Yadav Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard Sri Sunil Kumar, learned counsel for the petitioner, learned Standing Counsel for the State and perused the records.
2. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following relief:
"(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to declared the petitioners as selected candidate and direct to appoint at the post of male police constable/ Constable PAC under Scheduled Tribe category, as the petitioner has obtained 381.46 marks, which is much more than cut off marks for scheduled Tribes category i.e. 376.63 for the post of Male Police Constable and 373.01 marks for the Constable PAC fixed by the respondents."
3. It is not disputed to the learned Standing Counsel that the petitioner had applied against the advertisement dated 29.12.2015 issued by the respondent Board for the purposes of recruitment of Constables in U.P. Police and the petitioner secured considerable marks as per merit list meant for scheduled caste category candidates as he has filed along with his application, the certificate of his caste as of scheduled caste. However, petitioner submits that since the scheduled caste certificate as submitted by him was not as per format as prescribed by the State Government, the respondents have not considered the petitioner in the said reserved category and placed him in open category.
4. This above fact as detailed out in the present writ petition find support from para 5 of the counter affidavit sworn by Deputy Superintendent of Police of U.P. Police Recruitment and Promotion Board, Lucknow on behalf of respondent nos. 1 & 2, in which it has been categorically stated that "the petitioner had not submitted the caste certificate on prescribed format as per the advertisement issued on 29.12.2015" and therefore, at the time of scrutiny of records, the petitioner's caste certificate dated 28.04.2011 was not found to be in tune with the format prescribed for and since that was not as per the norms specified in the advertisement as far as the government order dated 17.12.2014, the petitioner's candidature in the reserved category could not be considered.
5. Learned counsel for the petitioner has placed reliance upon a judgment of this Court passed in Writ - A No. 19786 of 2018 in which in identical facts and circumstances this Court has observed thus:
"So far as the judgment delivered by the Full Bench of this Court in Gaurav Sharma (supra) is concerned, the same, apparently, has no applicability; in as much as, the Full Bench of this Court was dealing with the candidature of an OBC candidate, for which declaration had to be in the format as requisite information had to be furnished so as to determine as to whether the person is belonging to non-creamy layer in the OBC category of State or not? These considerations, however, would not exist in respect of a Scheduled Caste candidate. Benefit of Scheduled Caste category has to be granted to a person whose caste is included in Schedule to the Presidential Order (Scheduled Caste) Order, 1950, as modified in 1967, issued in exercise of powers conferred by clause (1) of Article 341 of the Constitution of India. Petitioner's caste 'Gond' forms part of the schedule for the State of U.P. Such fact, mentioned in the caste certificate, has, prima facie, not been disputed. It is, otherwise, settled that a person acquires the Scheduled Caste status by birth and the certificate is merely an acknowledgement of such pre-existing fact. Considerations of creamy layer, etc., as would be relevant for an OBC candidate, would have no applicability, so far as a Scheduled Caste is concerned. There would be no rationale or justification for insisting upon production of Scheduled Caste certificate in the prescribed format, once it is brought on record, before the authorities, that petitioner belongs to Scheduled Caste. The authorities are, otherwise, expected to verify the correctness before actually an appointment letter is issued to him.
In such circumstances, merely for the reason that Scheduled Caste certificate is not on the format, the authorities would not be justified in denying petitioner's consideration for appointment in Scheduled Caste category. Even otherwise, disclosure, which is contained in the format, is clearly recorded in the caste certificate issued to the petitioner and relied upon by him. Such certificate has, otherwise, been issued by the authorities of the State. In such circumstances, the respondents would not be justified in treating the petitioner to be an unreserved category candidate. This petition, therefore, stands disposed of with the direction upon the authorities concerned to treat the petitioner as a Scheduled Caste category candidate and to pass further orders in respect of his candidature.
It goes without saying that correctness of the certificate would, otherwise, be open to be examined before issuing a formal order of appointment to the petitioner.
Required consideration would be made within a period of three months from the date of presentation of certified copy of this order. Writ petition is disposed of, accordingly."
6. The argument advanced is that the above judgment still holds the field and learned Standing Counsel does not dispute the same.
7. In view of the above therefore, therefore, the legal position emerges out is that the caste certificate of a candidate cannot be brushed aside only on the ground that it is not on a prescribed format. Caste Gond which is shown to be a scheduled tribe under the Scheduled Caste and Tribes Order amended in 2002, and the petitioner who belongs to the caste of Gond which is a scheduled tribes.
8. In such circumstances, therefore, this Court feels that the petitioner is entitled to the same relief as given to one Sandeep Kumar in the aforesaid judgment.
9. In view of the above, this petition stands allowed and disposed of in terms of the order passed in Writ - A No. 19786 of 2018. It is further clarified that the consideration shall be made strictly in accordance with law and within the period of eight weeks from the date of production of certified copy of this order.
Order Date :- 21.8.2019 IrfanUddin