Heard learned counsel for the petitioner and learned standing counsel.
This writ petition was initially filed against the show cause notice dated 17.3.2009 to which the petitioner had replied on 24.3.2009. However, during pendency of the writ petition an order was passed on 31.3.2009 which is placed on record as Annexure-CA-1 to the counter affidavit. The petitioner filed an application for amendment seeking to challenge the order dated 31.3.2009 which was allowed by order dated 17.9.2014. A counter affidavit had already been filed and the question involved in the writ petition being a pure question of law, as such, further time for filing any supplementary counter affidavit by the learned standing counsel against the amendment application was not warranted. The writ petition was heard on merit and learned standing counsel has argued on the basis of documents placed on record along with the counter affidavit.
Brief facts of the case are that the petitioner participated in the selection pursuant to the advertisement published on 16.12.2008 as contained in Annexure-1 to the writ petition. As many as 11 general category posts of class IV employees were advertised, in response to which applications were invited from the open market. For the purposes of dispute involved in the writ petition, clause 1 of the general condition of the advertisement would be relevant and the same is reproduced below :-
"1- mDr in ds fy;s vH;FkhZ dh vk;q 01 tqykbZ 2008 dks 18 o"kZ ls de ;k 35 o"kZ ls vf/kd ugh gksuh pkfg,A vkjf{kr Js.kh dh vf/kdre vk;q lhek esa jktdh; fu;ekuqlkj NwV vuqeU; gksxhA"
Before coming to the legal question, it is worthwhile to note that the petitioner in response to the advertisement participated in the process of selection and was selected. On the basis of petitioner's selection he was appointed by means of order dated 28.2.2009 (Annexure-5 to the writ petition). The order of appointment clearly shows that the petitioner was appointed on the basis of selection held in accordance with the U.P. Group 'D' Employees Service Rules, 1985 as amended vide Notification dated 18.7.2008. The particulars of the petitioner have been mentioned in the order of appointment, i.e., his date of birth and the category (OBC) to which the petitioner belongs.
It appears that some complaint was made in respect of the petitioner's appointment which became a subject matter of inquiry and based on the complaint, a show cause notice was issued to the petitioner on 17.3.2009. The show cause notice states that the petitioner's appointment was conditioned by a specific mention that any information tendered by him, if found false, would entail cancellation of his appointment. The falsity of information tendered by the petitioner was discovered in the fact that he being an OBC category candidate participated in the advertisement of general category posts, therefore, the petitioner was not entitled to get age relaxation admissible to an OBC category candidate and the petitioner having crossed maximum age of 35 years meant for general category candidates, as such, he was not entitled to participate in the selection. It is, however, not specifically mentioned in the notice that as to how the petitioner made a wrong representation particularly when he was allowed to participate in the selection and after being selected was appointed on a class IV post being an OBC category candidate. All these details including his age were known to the opposite parties before allowing the petitioner to participate in the selection. The petitioner filed his reply to the show cause notice reiterating his stand that he had applied to participate against a general selection post and in terms of advertisement, he has availed the age relaxation for participating in the selection and on being selected was duly appointed. The stand adopted by the petitioner is categorical and unambiguous as to the fact that he had applied against the general selection post and being a candidate belonging to OBC category was rightly extended the benefit of age relaxation. The reply filed by the petitioner on being considered by the competent authority was not found favour with and his appointment was cancelled by means of the order dated 31.3.2009 as contained in Annexure-CA-1 to the counter affidavit. The petitioner filed an amendment application to assail the said order which was allowed by order dated 17.9.2014. At the stage of hearing, the relief prayed for in the writ petition reads as under :-
"To issue a writ, order or direction in the nature of certiorari calling for the record of the case and quashing the order dated 31.3.2009 passed by the respondent authority (Annexure-11 to the writ petition).
To issue a writ, order or direction in the nature of mandamus directing the respondent authority to reinstate the petitioner in service on the post of Paricharak/Class IV employee and pay him salary and other emoluments regularly as and when it falls due."
The petitioner during the course of arguments has drawn attention of this Court to the relevant Rules i.e. Group 'D' Employees Service Rules, 1985 and particularly Rule 9 which is reproduced below :-
"9.Age.- A candidate for direct recruitment to a Group 'D' post must have attained the age of 18 years and must not have attained the age of 30 years on the first day of July of the year of recruitment.
Provided that the upper age-limit in the case of candidates belonging to the scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified."
Rule-9 clearly shows that the age relaxation would be admissible to the candidates belonging to reserve category as may be specified by the Government from time to time. The State Government after promulgation of Act No.4 of 1994 i.e. Uttar Pradesh Public Services (Reservation of Scheduled Castes, Scheduled Tribes And Backward Classes) Act, 1994 has issued various Government Orders whereunder the age relaxation to the reserve categories is specified. Learned counsel for the petitioner has drawn my attention to the Government Order dated 29.3.1994 which stipulates age relaxation of 5 years in favour of a candidate belonging to OBC category. In the light of specification of age relaxation by means of the above Government Order, learned counsel for the petitioner has further placed a Government Order dated 25.3.1994, clause 4 of which would be relevant and the same is reproduced bellow :-
"¼4½ ;fn vkjf{kr Js.kh ls lEcfU/kr dksbZ o;fDr ;ksX;rk ds vk/kkj ij [kqyh izfr;ksfxrk esa lkekU; vH;fFkZ;ksa ds lkFk p;fur gksrk gS rks mls vkjf{kr fjfDr;ksa ds izfr lek;ksftr ugh fd;k tk;sxk vFkkZr mls vukjf{kr fjfDr;ksa ds izfr lek;ksftr ekuk tk;sxk] Hkys gh mlus vkjf{kr oxZ ds vH;fFkZ;ks dks vuqeU; fdlh lqfo/kk ;k NqV ¼;Fkk vk;q lhek esa NwV vkfn½ dk mi;ksx fd;k gksA"
The age relaxation specified in the Government Order dated 29.3.1994 read with clause 4 of the Government Order dated 25.3.1994 leaves no manner of doubt that a reserve category candidate on being selected in the general merit would be appointed against a general category post irrespective of the fact that he has participated in the selection process by availing age relaxation as a reserved category candidate. In other words, for a reserve category candidate, availing the age relaxation for the purposes of appointment against a general category post is no bar. In the spirit of this intention of Government Orders, learned counsel for the petitioner has drawn my attention to the general conditions of the advertisement particularly clause-1 which is reproduced here in above in the introductory part of this Judgment. From a perusal of clause-1 of the general conditions set out in the advertisement, it is amply clear that a candidate belonging to reserve category would be entitled to age relaxation as is admissible under the relevant Rules in this behalf.
Learned standing counsel relying upon the pleadings set out in the counter affidavit has justified the impugned order on the ground that once the advertisement is made for filling up general selection posts alone, the age relaxation to a reserve category candidate would not be available unless the same is provided in terms of the advertisement which is to follow the rules.
When the submission of learned standing counsel is tested in the light of terms of the advertisement, this Court has no hesitation to record that as per the advertisement itself, the age relaxation was available to the candidates belonging to reserve category and to this extent participation of reserve category candidates though being above the maximum age of 35 years was permissible. Therefore, once the terms of the advertisement specified that the age relaxation would be available to reserve category candidates, it is not open to the State to substantiate its argument on the strength of Articles 14 and 16 of the Constitution of India saying that the appointment of the petitioner has created a disparity or discrimination.
Article 16 of the Constitution of India is the source of legislation for implementing the rule of reservation in favour of reserved category candidates including OBC. Once percentage of reservation is prescribed under law in the spirit of Article 16 of the Constitution of India so as to achieve the object of social justice, whether grant of age relaxation in the matter of open selection to a reserve category candidate would offend the mandate of Articles 14 & 16 (1) of the Constitution of India is the real question that has cropped up in the instant writ petition and deserves to be answered in the light of relevant law settled on the subject.
Rule 11 of the Group 'D' Employees Service Rules, 1985 being relevant is also reproduced below:-
"11. Relaxation for ex-servicemen and certain other categories.- Relaxation, if any, from maximum age-limit, educational qualifications or/and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependants of military personnel dying in action, dependants of Uttar Pradesh government servants dying in harness and sportsmen shall be in accordance with the general rules or orders of the Government in this behalf in force at the time of recruitment."
Rule 9 of the Service Rules has already been referred to herein above which clearly provides that age relaxation shall be admissible to the candidates belonging to reserved categories as per Government Orders notified from time to tome. Rule 7 of the Service Rules, 1985 provides for reservation belonging to various reserved categories as per the Rules in force at the time of recruitment. So far as age relaxation is concerned, in terms of Rule 11 of the Group 'D' Employees Service Rules, 1985 relaxation of maximum age limit is also available to ex- servicemen, disabled military personnel, dependents of military personnel etc. in the matter of direct recruitment. Once the statutory rules provide for age relaxation to the reserve category candidates as well as other categories specified in Rule 11, the stand taken by Government fails and cannot be approved of.
Learned counsel for the petitioner has drawn my attention to the Judgment rendered by the Hon'ble Apex Court in the case of Jitendra Kumar Singh and another Vs. State of U.P. and others reported in (2010) 3 Supreme Court Cases 119. While citing the Judgment, learned counsel for the petitioner has drawn my attention to paragraphs 74,75,76 and 77 which are reproduced below :-
"74. It is not disputed before us that relaxation in age is not only given to members of the Scheduled Castes, Scheduled Tribes and OBCs, but also the dependents of Freedom Fighters. Such age relaxation is also given to Ex-servicemen to the extent of service rendered in the Army, plus three years. In fact, the educational qualifications in the case of Ex-servicemen is only intermediate or equivalent whereas for the General category candidates it is graduation. It is also accepted before us that Ex-servicemen compete not only in their own category, but also with the General category candidates. No grievance has been made by any of the appellants/petitioners with regard to the age relaxation granted to the Ex-servicemen. Similarly, the dependents of Freedom Fighters are also free to compete in the General category if they secure more marks than the last candidate in the General category. Therefore, we do not find much substance in the submission of the learned counsel for the appellants that relaxation in age "queers the pitch" in favour of the reserved category at the expense of the general category.
75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition.
76. Mr. Rao had suggested that Section 3 (6) ensures that there is a level playing field in open competition. However, Section 8 lowers the level playing field, by providing concessions in respect of fees for any competitive examination or interview and relaxation in upper age limit. We are unable to accept the aforesaid submission. Section 3 (6) is clear and unambiguous. It clearly provides that a reserved category candidate who gets selected on the basis of merit in open competition with general category candidates shall not be adjusted against the reserved vacancies. Section 3(1), 3(6) and Section 8 are inter-connected. Expression "open competition" in Section 3 (6) clearly provides that all eligible candidates have to be assessed on the same criteria.
77. We have already noticed earlier that all the candidates irrespective of the category they belong to have been subjected to the uniform selection criteria. All of them have participated in the Preliminary Written Test and the Physical Test followed by the Main Written Test and the Interview. Such being the position, we are unable to accept the submissions of the learned counsel for the petitioners/appellants that the reserved category candidates having availed relaxation of age are disqualified to be adjusted against the Open Category seats. It was perhaps to avoid any further confusion that the State of UP issued directions on 25.3.1994 to ensure compliance of the various provisions of the Act. Non-compliance by any Officer was in fact made punishable with imprisonment which may extend to period of three months."
The Hon'ble Apex Court as regards age relaxation granted to the reserve category candidates has clearly observed that such a relaxation granted to the reserve category candidates in the open competition does not offend Articles 14 and 16(1) of the Constitution of India, inasmuch as, the concession relaxes the eligibility criteria and not the merit. The Apex Court has also observed that mere bringing a reserve category candidates within the zone of consideration to participate in the open competition on merit does not amount to any reservation.
In my considered opinion, the age relaxation was rightly availed of by the petitioner. The impugned order, therefore, is clearly illegal, arbitrary and without authority of law.
In the result, the writ petition succeeds. The impugned order dated 17.3.2009 contained in Annexure-8 to the writ petition is hereby set aside. The petitioner shall be reinstated in service with all consequential benefits.
Accordingly the writ petition is allowed.
Order Date :- 17.10.2014 Hasnain ( Attau Rahman Masoodi, J.)