Shiv Prakash Yadav & Ors. v. The State Of U.P & Ors.

1. This intra court appeal arises out of the judgment of Hon'ble Single Judge dated 5.10.2005 dismissing the writ petitions No. 42041 of 2000, 1187 of 2002 and 23630 of 2003 preferred by the appellant Shiv Prakash Yadav (hereinafter referred to as ‘petitioners’).

2. The Special Appeals No: 1308 of 2005 1410 of 2005 and 1411 of 2005 have been filed by the State of U.P (herein-after referred to as ‘respondents’) challenging the aforesaid judgment of Hon'ble Single Judge being aggrieved by the findings re: corded by Hon'ble Single Judge on certain aspects particularly with reference to application of Section 3(6) of U.P Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as ‘1994 Act’) and despite the fact the writ petitions have been dismissed, the State of U.P has prayed for setting aside judgment of the Hon'ble; Single Judge. The facts in brief giving rise to the present appeal are that an advertisement was made on 31.8.1998 advertising 43 posts of Village development Officer for which after holding written examination and interview, the final result was published on 29.5.1999 wherein 19 candidates were declared to have qualified in general category, 13 in other backward classes and 11 in the category of scheduled castes/scheduled tribes. A waiting list was also prepared containing the names of 25 candidates. One person, who was in the wait list of OBC category filed writ petition No. 42041 of 2000, Hari Ram Yadav v. State of U.P claiming that he has secured 48.87 marks while another general category candidate namely Rajeev Nain Tiwari has Secured 48.23 marks. He (Hari Ram Yadav) has been placed on the top of the general category wait-list, though he ought to have been placed in the list of general category candidates in place of Rajeev Nain Tiwari by applying the provisions of Section 3, (6) of 1994 Act. The writ petition was allowed by judgment dated 27.7.2001 holding that the select list was in violation of Section 3(6) of 1994 Act and consequently the authorities were directed to prepare a fresh select list. Two appeals, namely, Special Appeal No. 256 of 2002 and 264 of 2002 were filed by the general category candidates aggrieved by the judgment dated 27.7.2001 complaining that despite the fact that they were necessary and interested party, but without impleading them, the writ petition has been decided against them. Both these Special Appeals were allowed vide judgment dated 20.5.2002 and the judgment passed by Hon'ble Single Judge was set aside. Matter was directed to be re-heard by the Hon'ble Single Judge. Meanwhile, since some of the selected candidates who were issued appointment letters did not join, claiming appointment against the resultant vacancies, Sri Shiv Prakash Yadav filed writ petition No. 2258 of 2000 and another writ petition No. 23630 of 2003 was filed by one Munnu Ram before this Court which were disposed of on 17.8.2000 directing the competent authority to dispose of the application/representation of the petitioners within six weeks from the date of production of certified copy of the order. The representation, consequently, was considered and rejected by the Commissioner, Rural Development, U.P holding that all the 13 candidates of O.B.C having joined, no vacancy left for the candidates in the wait list of O.B.C category and since both the aforesaid petitioners belongs to O.B.C Category, they cannot be given appointment against the resultant vacancies which in fact did not occur against O.B.C quota. Challenging the said order, writ petition No. 1187 of 2003 was filed by the petitioner-appellant Shiv Prakash Yadav and 4 others seeking following reliefs:

a) issue a writ, order or direction in the nature of certiorari quashing the order dated 5-5-2001 and 24-5-2001, (Annexure-3 and 3-A to the writ petition) passed by learned Commissioner, Rural Development, U.P and District Development Officer, Varanasi relating to the petitioner No. 1 and petitioner No. 5, respectively.

b) Issue a writ, order or direction in the nature of mandamus directing the respondents to appoint the petitioners on the basis of fresh select list as per judgment dated 27-7-2001 passed by this Hon'ble Court in Civil Misc. Writ Petition No. 42041 of 2000, Hari Ram Yadav v. State of U.P

c) Award/cost of the petition to the petitioner.

3. It also appears that in the meantime the respondents pursuant to the order dated 27-7-2001 (reported in 2001 (44) All LR 677) passed by the Hon'ble Single Judge in Writ Petition No. 42041 of 2000 prepared a fresh select list on 6th May, 2002 and thereafter two persons namely Munnu Ram and Santosh Singh filed writ petition 23630 of 2003 claiming appointment on the post of Village Development Officer in accordance with select list prepared pursuant to the order dated 27-7-2001 of Hon'ble Single Judge. All the aforesaid three writ petitions have been dismissed by the Hon'ble Single Judge vide judgment impugned in these appeals on the ground that once a re served category candidate has exercised his option to be treated as a reserved category candidate in such case provisions of Section 3, sub-section(6) would not apply and, there fore, no relief can be granted to the petitioner.

4. Aggrieved by the judgment of the Hon'ble Single Judge, the petitioners have filed the special appeal No. 1377 of 2005. It is contended that applying similar standards, the respondents held selection and no extra advantage was given to reserve category candidates. In these circumstances, merely, because the reserved category candidates have mentioned in their application forms that they belong to reserved category in order to avail the benefit of vacancies which are reserved for them, they cannot be denied right of consideration against unreserved vacancies. It is also contended that the issue is now squarely covered by a Division Bench judgment of this Court in Sanjeev Kumar Singh v. State of U.P, 2007 (2) ALJ 86.

5. Learned standing counsel, in effect, supported the contention of the petitioners insofar as the Hon'ble Single Judge has held that Section 3, sub-section (6) cannot be applied to a candidate who has exercised his option to be considered as a reserved category candidate and contends that the said finding and reason assigned by the Hon'ble Single Judge in the judgment in question is incorrect and liable to be set aside, but opposing the relief sought in the writ petition, he contended that in the written test, separate merit list was prepared for general and reserved category candidates and on the basis thereof interview was held, therefore, it cannot be said that till selection is over all the candidates were considered with identical standards. He submits that thus, the respondents have rightly refused benefit of Section 3(6) in the case in hand and the order rejecting their representation is justified and in accordance with law. He also placed reliance on the Division Bench Judgment of this Court in the Case of Sanjeev Kumar Singh (supra).

6. Sri Ashok Khare, learned counsel appearing on behalf of private respondents No. 4 to 11 in Special Appeal No. 1377 of 2005 contended that in view of me judgment of this Court in Sanjeev Kumar Singh (supra) all the Special Appeals are liable to be dismissed though the reasons may vary inasmuch some of the reasons given by the Hon'ble Single Judge in the judgment, impugned in these appeals, are contrary to the Division Bench Judgment in Sanjeev Kumar Singh (supra) and to that extent findings of the Hon'ble single Judge may not be said to be correct but the ultimate conclusion arrived at by the Hon'ble Single Judge warrants no interference and cannot be faulted.

7. The Special Appeal No. 1411 of 2005 has been filed by the State of U.P and others challenging judgment dated 5-10-2005 passed by Hon'ble Single Judge in writ petition No. 1187 of 2002 Shiv Prakash Yadav v. State of U.P on the ground that the finding recorded by the Hon'ble Single Judge with respect to Section 3(6) of 1994 Act is incorrect and even otherwise contrary to another Single Judge Judgment of this Court in Narendra Pratap Singh v. Director General of Police, U.P reported in 2002 (3) UPLBEC 2304 : (2002 All LJ 1941). It is thus prayed that the judgment of the Hon'ble Single Judge dated 5.10.2005 be set aside.

8. The Special Appeal No. 1410 of 2005 has been filed by the State of U.P challenging the same judgment in writ petition No. 23630 of 2003 Mannu Ram v. State of U.P and Special Appeal No. 1308 of 2005 is against the judgment in writ petition No. 42041 of 2000 Hari Ram Yadav v. State of U.P and reliefs sought in these two appeals is same as in the earlier mentioned appeal of the State of U.P The grounds taken therein to assail the impugned judgment are also common.

9. We have heard learned counsel for the parties and perused the record. The question as to whether Section 3, sub-section (6) would be applicable to such candidates who have opted to be considered against reserved vacancies has been considered by this Bench in Sanjeev Kumar Singh (2007 (2) ALJ 86) (supra) and in paras-39, 40, 51, 52 and 55 of the judgment, we have held as under:

“39. This leads us to the manner, mechanism and inter relationship of various concessions and reservation, which may operate together or individually, as the case may be. It cannot be doubted that any concession provided by the competent authority to achieve the goal under Article 16(4) without keeping a seat reserve for a backward class of citizen is permissible. Simultaneously without providing any concession it may make provision for reservation of seat. The third contingency would be where certain concessions and benefits are provided as also seats are reserved and both may operate together or separately, as the case may be. In the cases where the concessions and reservation operate separately there is no difficulty in giving effect to since in such a case the question of adjustment or application of Section 3(6) of the Act of 1994 to the reserved candidates availing both would not arise. The grievance germane where availing concession, a backward class candidate competes, and, if secure mark's more than general category candidates, claims unreserved seat instead of a reserved seat.

40. At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve seats can always compete for unreserved seats. The unreserved seats are available to all the candidates who participate in the selection irrespective of category for which they belong but a reserve seat is available only to the category of the candidate to which such reserve seat is meant for. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs, 18 for S.C and 2 for S.T candidates, it would mean that an O.B.C candidate would be able to compete against 27 seats reserved for O.B.C as well as remaining 53 unreserved seats. Similarly a S.C candidate would be able to compete against 18 seats reserved for S.C as well as remaining 53 unreserved seats, and a S.T candidate would be able to compete against 2 seats reserved for S.T as well as remaining 53 unreserved seats. On the contrary a general category candidate would be able to compete only against 53 unreserved seats. The zone of consideration, therefore, against the unreserved seats is much wider and extend to 100% of the candidates who participate in the selection but it is not so for reserved seats. The only rider would be, if in the selection process, the test of assessment, merit etc. is different qua unreserved seats and reserved seats, and the candidates belonging to reserved seats enbloc are considered, separately at any stage, than such difference in standard or criteria or indicia having a material bearing in the assessment of merit and influence the open competition and in such case the reserve category candidate may not compete for unreserved seats on account of variation in the standard and not otherwise. It is true and as already observed above, a reasonable balance has to be struck between the rival claim of respective categories.”

“51. It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P, Section 3(6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which does not include relaxation in age or fee. The State therefore has not treated relaxation in age and fee as relaxation in the standard of selection and the crucial question for consideration before us whether such relaxation can deprive a reserve category candidate denuding his status as a candidate competing in open competition with general category candidate when all other things are equal except the fact that such candidate has availed concession in fee and/or age limit. Having given our very serious; indepth; thoughts to the question, we are of the view that relaxation in age and fee cannot be treated to be a relaxation in standard of selection and shall not deny a reserve category candidates selection in open Competition with general category candidates. As we have observed, the term “reservation” comprises various kinds of concession, relaxation etc. but section 8(1) of Act of 1994 is confined to only two kinds of relaxation/concession namely “concession in fee” and “relaxation in upper age limit”. Subsection 2 of Section 8 however provides that if any Government order is in force on the date of commencement of the Act, providing any concession, relaxation including concession in fee for any competitive examination, interviewed relaxation in upper age limit relating to reservation in direct recruitment or promotion which are not inconsistent with the provisions of the Act, shall continue to be applicable till they are modified or revoked as the case may be. We are informed that presently and for selection in dispute, only concession in fee and relaxation in upper age limit and no other concession or relaxation is available to the reserve category candidates specified under Section 3(1) of the Act of 1994.

52………………………… In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e open competition itself but are the provisions pertaining to eligibility i.e to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate, in the open competition irrespective of difference in the eligibility qualification. Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself, in that case only such an adjustment under Section 3(6) of Act of 1994 would not be applicable and not otherwise. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. For example in the present case, all the candidates, securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all. Similarly in the physical test also all the candidates irrespective of their category, securing at least 50% marks qualify and appear in the main written test. Again all the candidates who secured 40% and above in main written test were declared successful in written test and thereafter, all of them appeared in interview. It is only after interview, a final merit list on the basis of marks secured in main written test and interview is prepared and thereafter the final select list is prepared applying reservation. At any stage prior thereto, the candidate's identity had no relation or relevance in the process of selection whatsoever. Thus, in our view, ex-facie and undoubtedly, at the time of final select list, Section 3(6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unreserved seat without being adjusted against a reserved seat.”

“55. The reason for considering reserve category candidates against unreserved seats is writ large. As said earlier, an unreserved seat is available to all the candidates who are in the zone of consideration but a reserve seat is confined to a candidate of that particular person. In an open competition, general category candidate is entitled to compete only against an unreserved seat but a reserve category candidate in addition to his right to be considered against the reserve seat is also entitled to be considered against unreserved seats. His option in the application for consideration of his candidature for reserve seat is only a declaration of his intention to be considered against reserve seat without depriving himself right to be considered against an unreserved seat………”

(Emphasis added)

10. In view of the Division Bench judgment of this Court, the view taken by the Hon'ble Single Judge in the impugned judgment that as soon as a reserved category candidate opt to be considered for reserved vacancies, he cannot be considered against general vacancies cannot be said to be correct and being inconsistent with the aforesaid Division Bench judgment of this Court to that extent, findings of the Hon'ble Single Judge in the impugned judgment cannot sustain and, therefore, are set aside.

11. However, the matter does not rest here inasmuch mere reversal of the reasoning given by the Hon'ble Single Judge by itself would not result in allowing the writ petition. The question as to whether in this particular case on the facts and circumstances, Section 3(6) of 1994 Act would be attracted or not has yet to be seen. In our view this is also covered by the law laid down by this Court in Sanjeev Kumar Singh (2007 (2) ALJ 86) (supra) and in view thereof it is evident that the said provision could not have been applied in the present case and therefore, all the writ petitions were liable to be dismissed. In supplementary affidavit filed on behalf of the State of U.P sworn by Sri Rajeev Bankata posted as District Development Officer, Varanasi in Special Appeal No. 696 of 2005 the procedure of selection has been narrated in paras 3, 4, 5 and 6 which is reproduced as under:

“3. That the entire selection was to be held in accordance with the provisions of U.P Procedure for Direct Recruitment for Group ‘C’ Posts (Outside the Purview of U.P Public Service Commission) Rules, 1998 and a common written examination/test was held at Varanasi and after the examination the answer books of the candidates were sealed and sent to Institute of Management Development U.P (IMDUP), Lucknow and the result was prepared there only which was subsequently received in Varanasi under the signature of Joint Director of Institution. It is submitted that the result so prepared by IMDUP Roll number wise also category wise to facilitate the identification of the candidates falling within different categories for the purpose of interview as the list under the Rules, 1998 was to be prepared category wise on the basis of the result of the written examination.

4. That after the receipt, of the result the same was published by letter dated 29-5-1999.

5. That the selection committee thereafter was constituted under the Chairmanship of District Development Officer, and the other members of the said committee were the Project Director, District Rural Development Agency, District Employment Officer, District Panchayat Raj Officer and the Block Development Officer, Arazi Lines. The Selection Committee was advised to award minimum 4 marks and maximum 9 marks to the candidates who was to be interviewed by the Selection Committee.

6. That interview was held in three groups and the interview were held of all the candidates belonging to the General Category on 4th, March, 1999, O.B.C on 5th March, 1999 and Scheduled Castes candidates on 6th March, 1999.”

12. It is, thus, evident that at the time of preparing result of the written test, the result was prepared categorywise and various candidates were divided in respective categories, namely, general, scheduled castes, scheduled tribes and OBC etc. Even the interview was held in different groups namely for general category on 4th March, 1999, for OBC on 5th March, 1999 and for Scheduled caste on 6th March, 1999. In this kind of selection, it has clearly been held in Sanjeev Kumar Singh (supra) that Section 3, sub-section 6 of 1994 Act cannot be applied. The findings recorded by this bench in Paras-53 and 54 of the judgment in Sanjeev Kumar Singh (supra) are as under:

“53…………………An examination consists of written test and interview. The result of written test is declared categorywise preparing list of successful candidates applying reservation and preparing lists separately. Further, the interview is held by fixing different dates for general category candidates and reserve category candidates and thereafter the interview is also held categorywise. In such a cases, since the identity of the different category of candidates in the midst of selection has played an important role differentiating it from an open competition, therefore in such case Section 3(6) of Act of 1994 would not apply. A similar question came up for consideration before a single Judge of this Court in Arvind Kumar Singh v. State of U.P, Writ Petition No. 5844 (SS) of 1999 decided on 11.12.2002 and the Court held:—

“The phrase “open competition with general candidates” bears significance, as unless there is competition amongst the general candidates and reserved category candidates at the same level, the benefit of the said phrase may not be available to the reserved category candidate. In case a separate list is prepared according to the merit of the reserved category candidates in written examination and likewise separate interviews are held of the reserved category candidates excluding the general category candidates. The State Government has also not disclosed the criteria or the minimum marks which have been kept as qualifying marks for the reserved category candidates in the written examination and for genera] category candidates respectively. Likewise, the criteria for interview and the minimum marks prescribed in the interview for reserved category candidates and minimum marks fixed for the general category candidates has also not been disclosed.

In a selection which can be termed as open competition with general category candidates, the candidature of the reserved category candidates as well as the general category candidates is to be tested on the same merit and if in that case a reserved category candidate succeeds in the open competition with general category candidates, he would be placed amongst the general category candidates. In the instant case, the result so declared in the written examination does indicate that a separate criteria appears to have been adopted for examining the copies with respect to reserved category candidates and general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared categorywise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates.

It may be true mat in view of the advertisement the selection process ought to have been adopted in a manner also that it could have been an open competition with general candidates, i.e by comparing the merit of the reserved category candidates along with the merit of the general category candidates and thereafter final select list could have been prepared by placing the reserved category candidates in the list of finally selected candidates as per their merit but this procedure was not adopted. In the absence of given procedures being adopted, the benefit of Section 3(6) of the Act perhaps would not be available to the reserved category candidates.”

54. Similarly where a combined written test is held but thereafter the process of selection is categorized inasmuch as the result is declared categorywise one for general category candidates and others for reserve category candidates, and thereafter interview is held. Whether interview is held categorywise, separately or different category candidates are interviewed in a combined manner by itself would not make any difference for the reason that once in the process of open competition, different categories are identified for the purpose of declaration of result even for qualifying purpose, it cannot be said that there is an open competition amongst the general and reserve category candidates and in such case, Section 3 sub-section (6) would not be attracted. In Dinesh Kumar Shukla v. State of U.P, 2004 (4) AWC 3487 : (2004 All LJ 2887) (LB) a Division Bench of this Court, while interpreting Section 3 sub-section (6) of Act of 1994, held as under:

“In the case in hand, which is based on similar facts as in the case, referred to above, the selection so held cannot be said to be a selection based on merit in an open competition amongst the general category candidates, except that a combined written examination was held and the entire process of selection has been taken separately and categorywise. The result of the written examination was declared categorywise, meaning thereby that different criteria was adopted for declaring the candidates successful in the written examination, namely, one for the general category and other for the reserved category. The merit list was, thus, a separate merit list, prepared for the purpose. The interviews were also held separately and the result was also declared categorywise. Thus, it cannot be said that it was an open competition amongst the general category candidates and reserved category candidates and, therefore, Section 3(6) would not be attracted. Consequently, action of the petitioner could not have been termed as a misconduct.”

13. Learned counsel for the petitioners placing reliance on para-8 of the supplementary affidavit contended that since the same standard was adopted while awarding marks to the candidates by the examining body and also by the selection body in written test as well as interview, hence, it must be assured that all the candidates were considered alike and, therefore, Section 3 sub-section (6) of 1994 Act would apply to the present case.

14. We do not find ourselves in agreement thereto, particularly in view of the specific stands taken by the State of U.P that after the written test, result was declared categorywise and thereafter interview was also held categorywise. Once in the zone of successful candidates of general and reserved category candidates, separate lists were prepared, it cannot be said that it is a ‘open competition’ with general candidates as interpreted by this Bench in Sanjeev Kumar Singh (supra) and, therefore, in our view, Section 3 sub-section (6) of 1994 Act was rightly not applied by the respondents in the selection in question. Hence, no relief can be granted to the petitioners.

15. In view of the aforesaid discussions, subject to our findings and to the extent we have reserved the reasoning given by the Hon'ble Single Judge with respect to Section 3 sub-section (6) of 1994 Act, to that extent the findings of the Hon'ble Single Judge in the impugned judgment stands set aside and shall not be treated to be good law. We, however, confirm the judgment insofar as the Hon'ble Single Judge has dismissed all the writ petitions.

16. With the aforesaid direction, all these appeals are dismissed. No costs.

17. Appeals dismissed