By means of the present petition, the petitioner has prayed for issuing a writ of mandamus to command the respondent no.3 to select the petitioner on the post of PAC, Constable under the Scheduled Tribes Category (Direct Recruitment - 2018 on the post of Constable) and give appointment letter for training/joining.
Learned counsel for the petitioner has submitted that an advertisement was issued by respondent no.3 on 16.11.2018 for the direct recruitment on the post of Constables. As per the advertisement, total vacancy was divided in two groups as (Ka) Constable Nagrik Police and (Kha) Constable State Armed Constabulary. Learned counsel submits that the petitioner applied through online under the Scheduled Tribes Category enclosing the caste certificate dated 04.08.2012 issued by the Tehsildar. It has also been submitted that after verifying all the documents, the respondents issued the admit card to the petitioner for the written examination in which the petitioner was declared successful and called for the document verification on 26.12.2019. The petitioner was again called for the physical examination on 07.01.2020 in the reserve police line, Ayodhya. The petitioner participated in the physical examination under the General Category and he was declared successful. The respondent no.3 declared the result on 02.03.2020 in which the petitioner has been declared unsuccessful.
Learned counsel for the petitioner has relied on the Government Order dated 01.08.2019, which is placed on record as Annexure 9 with the paper book and submitted that the Government Order specifically states that after 01.04.2015, the caste certificate will be issued through online and there is no requirement for the verification of those documents which have been issued after 01.04.2015 and prior to it, the same competent authority shall verify the said documents. Learned counsel also submitted that one similarly situated person namely Shubham Kharwar has also applied for the same post and he has submitted the certificate issued in the year 2012 and his candidature was considered and he was declared successful in the Scheduled Tribes Category.
Learned counsel for the petitioner contends that once the petitioner had applied for the post against Scheduled Tribes Category as such his result should have been declared against the said category and he could not have been treated to be a general category candidate. It is also contended that in case the candidature of the petitioner was considered as Scheduled Tribes Category candidate he would have been declared as selected in the said category inasmuch as cut off marks for the general category candidates were higher vis-a-vis the candidates who were selected in the Scheduled Tribes Category.
In support of his arguments, learned counsel for the petitioner has relied on a judgment dated 25.11.2016 passed by a coordinate Bench of this Court in Service Single No.5312 of 2011 wherein direction was issued to consider the candidature of the petitioner in that category in which he was applied for the post. It is, thus, contended that once the petitioner had applied against Scheduled Tribes Category along with his caste certificate, consequently the respondents have patently erred in treating him as a general category candidate and thus a prayer has been made for consideration of the case of the petitioner by treating him as a Scheduled Tribes Category candidate and for giving him appointment.
Per contra, learned counsel for the State has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that as per the advertisement dated 16.11.2018, the caste certificate was required to be issued on or before 01.04.2018 by the competent authority. The caste certificate which has been submitted by the petitioner along with the application was admittedly issued in the year 2012. It has been submitted that the candidature of the petitioner has rightly been considered and rejected by the authority concerned as the caste certificate is not as per the advertisement. Learned Standing Counsel on the basis of averments contained in the counter affidavit has argued that the petitioner had applied in pursuance to the advertisement that had been issued by the respondents. It is submitted that if a candidate applies for a particular post seeking the benefit of reservation, the said certificate is necessarily to be as per the advertisement otherwise the caste certificate cannot be considered as valid and as such the candidature of the petitioner was considered as a general category candidate and he has not been declared as selected in the general category. Learned counsel for the State has submitted that the petitioner has failed to make out any case for interference by this Hon'ble Court and he is not entitled for any relief.
I have heard learned counsel for the parties and perused the record.
I have perused the advertisement dated 16.11.2018 and also the form, which was submitted by the petitioner. It is admitted fact that the petitioner has submitted the caste certificate along with the application form. The State has also not disputed that the petitioner does not belongs to Scheduled Tribes Category. The main objection of the State is that the certificate which was submitted along with the application was not as per the requirement of the advertisement dated 16.11.2018.
In Jnan Ranjan Sen Gupta and Ors vs. A.K. Bose, 1975 SC 1994 while dealing with the ambit of erection of structure on land under Calcutta Thika Tenancy Act, the Hon'ble Supreme Court has held that it was a piece of 'beneficial legislation' conferring certain rights upon the tenancies and in dealing with such provisions of law something which is not already there cannot be read in it, as reading such a thing which is not in the provision will lead to imposing a restriction upon the rights of the class of tenants by judicial interpretation which is not permissible in absence of express words to that effect or necessary manifest intendment.
Dealing with the principle of statutory construction, in American Express International Banking Corporation vs. Management of American Express International Banking Corporation (1985) 4 SCC 71, the Hon'ble Supreme Court has held that the words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. It was held that literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced and Judges ought to be more concerned with the "color", the "content" and the "context" of such statutes. Similarly, in Shyam Sunder and Ors vs. Ram Kumar and another, 2001 (8) SCC 24 it was held that if it is found that there is a doubt in regard to the meaning of a provision or words used in the provisions of an enactment, it is permissible for the court to apply the rule of 'benevolent construction' to advance the object of the Act. Ordinarily, the rule of 'benevolent construction' has been applied while construing welfare legislations or provisions relating to the relationship between weaker and stronger contracting parties.
In the case of Ram Kumar Gijroya vs. Delhi Subordinate Services Section Board and another reported at 2016 (4) SCC 754, Hon'ble the Apex court has held that :
"the matter can be looked into from another angle also. As per the advertisement issued by the respondents, vacancies are reserved for various categories including "SC" category. Thus in order to be considered for the post reserved for "SC" category, the requirement is that a person should belong to "SC" category. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to "SC" category and act there on by giving the benefit to such candidate for his belonging to "SC" category."
In the present case, it is not the case of the respondents that the petitioner does not belong to "ST" category. In view of this position, necessitating upon a certificate would be clearly arbitrary and it has no rational objective sought to be achieved. While taking a particular view in such matters one has to keep in mind the objectives behind the post of Scheduled Caste and Scheduled Tribes categories as per constitutional mandate prescribed in Article 15(4) and 16(4) of the Constitution of India, which are enabling provisions authorising the Government to make special provisions for the persons of Scheduled Caste and Scheduled Tribe categories. Therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the preamble and elongated in the fundamental Rights and Directive Principles of the Constitution of India. For this reason government has itself come out with the guidelines permitting the candidates to submit proof that they belong to SC/ST category, by furnishing the certificate issued by competent authority within reasonable time even if it is not submitted at the time of making the application for the job.
In the case of (Mrs.) Valsamma Paul vs. Cochin University and others (1996) 1 SCR 128 the Hon'ble Supreme Court held:-
"The Constitution through its Preamble, Fundamental Rights and Directive Principles created a Secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person with the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing....."
In view of the above discussions and the case laws, the judgment passed by Hon'ble the Apex Court in the case of Ram Kumar Gijroya (supra) is applicable in the case of the petitioner and thus, the petitioner would be entitled to be considered for the selection under the Scheduled Tribes Category as per the advertisement dated 16.11.2018 in terms of the caste certificate issued on 04.08.2012.
Accordingly, the writ petition is allowed. A writ of mandamus is issued directing the respondents to consider the candidature of the petitioner for the post of Constable Civil Police and Constable PAC 2018 on the basis of his cut off marks obtained by him in his category and declare his result. The said exercise shall be completed within three months form the date of receipt of a certified copy of this order.
Order Date :- 18.1.2021 VNP/-