Hon'ble Sudhanshu Dhulia, J. (Oral)
Learned counsel for the Union of India Mr. H.S Rawal has stated that since their stand in both the aforesaid writ petitions are similar, he has filed a counter affidavit only in writ petition (S/S) no. 130 of 2011 and no formal counter affidavit needs to be filed in writ petition (S/S) no. 1013 of 2011.
The issue raised in both the writ petitions is similar and hence they are being heard and decided together by a common order.
The petitioners in the present writ petitions have been denied the benefit of reservation in the selection process to the post of constable made by Central Reserve Police Force (from hereinafter referred to as “CRPF”). The petitioners belong to castes known as “Gujar”, “Saini” and “Momin (Ansar)”. These castes are notified as Other Backward Class (from hereinafter referred to as “OBC”) in the erstwhile State of Uttar Pradesh prior to creation of State of Uttarakhand. After the creation of State of Uttarakhand the Act, under which these castes were declared as ‘OBC’ namely the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Class) Act, 1994 was adopted in the State of Uttarakhand and, inter alia, “Gujar”, “Saini” and “Momin (Ansar)” have been declared as ‘OBC’ in the State of Uttarakhand as well. These facts are not in dispute. The petitioners are permanent residents of State of Uttarakhand. All the same, the benefit of reservation was denied to the petitioners on the ground that “Gujar”, “Saini” and “Momin (Ansar)” have not been notified in the Central List as OBC pertaining to the State of Uttarakhand.
The contention of Union of India is wholly untenable, as it has merely denied the reservation to the petitioners on the ground that the castes “Gujar”, “Saini” and “Momin (Ansar)” have not been published in the list of the Central Government. In fact the precise reply in para 2 of the counter affidavit refers not to any notified central list of OBC pertaining to Uttarakhand but to Swamy's Compilation? The precise words in para 2 of the counter affidavit filed on behalf of respondent nos. 2 and 3 states:
“2. …While conducting medical examination of the petitioner, the medical board observed that the petitioner was admitted by the board in OBC category on the basis of OBC certificate of GUJJAR community which does not find place in OBC list for central Govt. employment from Uttarakhand State as per Swamy's complication on reservations and concessions' book (9th edition incorporated orders received upto October 2007). The case was taken up with IGP Central Sector by this office for clarification vide signal No. R.II-5/2010-EC-6 dated 23/1/2011. In reply to IGP vide their signal No. R.II-28/2010.CSEC-VII dated 28/1/2011 has directed that all OBC candidates whose sub caste are not notified in OBC category as incorporated in Swamy's complication on reservations and concessions' book (9 edition) may be switched over into General category. Accordingly all OBC candidates whose caste did not find place in OBC category including the petitioner was switched over into General category from the OBC category and he was not issued offer of appointment for the post of CT/GD-2010 as he could not find place in merit list.”
This stand is wholly untenable, even assuming for the sake of argument that the list of OBC as applicable to the State of Uttarakhand was not published by the Central Government. A learned Single Judge of this Court in Civil Writ Petition No. 1768 of 2011 (Deepak Kumar S/o Ramesh Chand v. Gurukul Kangri University Haridwar) while dealing with the similar issue has held that where a caste is declared as an OBC in the State of Uttarakhand and was not being given reservation for the reason that the National Commission for Backward Classes (from hereinafter referred to as ‘NCBC’) has not notified that particular caste in its website as an OBC it was held to be totally wrong. What was necessary, the learned Single Judge has held, is that particular State (i.e State of Uttarakhand) has notified that caste as an OBC in the State. There is no dispute that the castes “Gujar”, “Saini” and “Momin (Ansar)” are presently OBC in the State of Uttarakhand. Therefore merely on the lapse of Central Government or for that matter any lapse on the part of any authority who has made compilation of these castes, it would not stand in the way of petitioners in getting reservation.
The writ petitions are therefore allowed. A mandamus is issued to the respondents that in case the petitioners belong to “OBC” castes known as “Gujar”, “Saini” and “Momin (Ansar)” in the State of Uttarakhand, they shall be given reservation as an OBC candidate.
No order as to costs.