Court No. - 38
Case :- WRIT - A No. - 14460 of 2019 Petitioner :- Shesh Nath Gond Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Nikhil Kumar,Munna Yadav Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Following orders were passed in the matter on 18.9.2019:-
"Petitioner was selected for appointment to the post of Constable, but subsequently his appointment has been cancelled on the ground that the caste certificate furnished by the petitioner was not on prescribed format.
Learned counsel for the petitioner submits that it is not in issue that petitioner is a Schedule Tribe as he is belongs to 'Gond' by caste and a certificate was issued by the competent authority to him for employment in offices subordinate to Central Government. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another 2016 (4) SCC 754 in order to submit that for any procedural error in the submission of the caste certificate, it would not be open for the respondents to cancel petitioner's candidature.
Learned Standing Counsel may obtain instructions in the matter. Post as fresh on 30th September 2019."
Learned Standing Counsel has obtained instructions according to which petitioner's appointment has been cancelled as his Scheduled Tribe certificate is not on the prescribed format. It is not in dispute that the petitioner belongs to Scheduled Tribe category inasmuch as he is 'Gond' by caste.
Learned standing counsel, on the other hand, submits that petitioner's Scheduled Tribe certificate is not in accordance with the format annexed along with the advertisement and therefore, petitioner has been treated as a candidate in general category. Reliance is placed upon a Full Bench decision of this Court in Gaurav Sharma Vs. State of U.P. and Others reported in (FB) 2017 (5) ADJ 494.
Learned counsel for the petitioner, on the other hand, has placed reliance upon a judgment of Apex Court in Ram Kumar Gijoroya Vs. Delhi Subordinate Service Selection Board and another 2016(4) SCC 754. Reliance is placed upon para 16 of the judgment, which reads as under:
"16. In the case of Pushpa (supra), relevant paragraphs from the case of Tej Pal Singh (supra) have also been extracted, which read thus :-
"11......
17. The matter can be looked into from another angle also. As per the advertisement dated 11th June, 1999 issued by the Board, 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. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. 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 thereon by giving the benefit to such candidate for his belonging to 'SC' category. It is not that petitioners did not belong to 'SC' category prior to 30th June, 1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30th June, 1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.
18. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), 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, in particular Arts. 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful."
I have heard learned counsel for the parties and have perused the material brought on record.
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 Tribe candidate. Benefit of Scheduled Tribe category has to be granted to a person whose caste is included in Schedule to the Presidential Order (Scheduled Tribe) 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 Tribe 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 Tribe is concerned. There would be no rationale or justification for insisting upon production of Scheduled Tribe certificate in the prescribed format, once it is brought on record, before the authorities, that petitioner belongs to Scheduled Tribe. 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 Tribe certificate is not on the format, the authorities would not be justified in denying petitioner's consideration for appointment in Scheduled Tribe 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 Tribe 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.
Order Date :- 30.9.2019 n.u.