Praveen Kumar Saraf Vs The State of U.P. and Others

B.S. Chauhan, J.@mdashThis writ petition has been filed for issuing a direction to the respondent authorities to appoint the petitioner in Uttar Pradesh Higher Judicial Service, giving the benefit of reservation of ''Other Backward Class'' category (in short ''OBCs) and not to appoint the respondents no. 6 and 7 in that category as the petitioner stood higher in merit than the said respondents.

2. The facts and circumstances giving rise to this case are that an advertisement dated 09.06.1996 was published for recruitment on 19 posts in the Uttar Pradesh Higher Judicial Services for the years 1992-94. Petitioner, who is a resident of Madhya Pradesh, applied in pursuance of the said advertisement, claiming the benefit of the reservation for OBCs. However, the respondents refused to consider him in the said category for the reason that he fell in the creamy layer in spite of the fact that he had been given the certificate by the Statutory Authority of the State of Madhya Pradesh that he did not fall within the creamy layer. The respondents did not accord him the said benefit of reservation, rather appointed respondents no. 6 and 7 in that category. Hence the present petition.

3. Shri Ram Niwas Singh, learned Counsel appearing for the petitioner has submitted that once the certificate has been issued by the Statutory Authority in Madhya Pradesh that the petitioner did not belong to creamy layer, there was no occasion for the respondent authorities not to give him the benefit of reservation in OBC category and to appoint respondents no.6 and 7 who were lower than the petitioner in merit, therefore, their appointments should be quashed and the petitioner should be appointed.

4. On the other hand, Shri Pradeep Kumar and the learned Standing Counsel appearing for the respondents no. 1 to 5 have very vehemently opposed the petition on the ground that the petitioner is not a resident of the State of Uttar Pradesh and, thus, he cannot claim the benefit of reservation under the provisions of the U.P. Public Services (Reservation of Scheduled Casts, Scheduled Tribes and Other Backward Classes) Act, 1994 (Act No. 4 of 1994), hereinafter called the Act, 1994''. the Act, 1994 provides only for the benefit to the residents of the State of the Uttar Pradesh and as the petitioner belongs to the State of Madhya Pradesh, he could not claim the benefit of the same. At the most, his candidature could be considered only as a general category candidate and the petition is liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

6. A Constitution Bench of the Hon''ble Supreme Court in Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Others, , considered the case of admission of students in a Medical College in Maharastra on the basis of the Scheduled Caste Certificate issued by the State of Andhra Praesh. The Hon''ble Apex Court rejected the contention observing that a person in one State may be Scheduled Caste/Scheduled Tribe but he may not be entitled for the benefit in another State. Similarly, in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the Action Committee on Issue of Caste Certificate to scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Vs. Union of India (UOI) and Another, , the Hon''ble Supreme Court examined the issue as to whether the benefit and privilege to the Scheduled Castes and Scheduled Tribes in State of Maharashtra was also available to the persons belonging to other States and held that it is for the State Government to choose whether to give the benefit of reservation or not for the reason that the State Government is competent enough to restrict the benefit of reservation to the persons belonging to the reserved category provided they belong to the said State and may not extend the same to the candidates belonging to other States for many, reasons. The aforesaid judgment clearly holds that a person belonging to reserved category in State "A" may not be able to claim the benefit in State "B" unless State "B" also so provides. Reservation depends on a large number of considerations including the social and financial status of a particular community, which may be restricted to a particular part of the State or even to a particular part of a District and a person belonging to the same community in a part of a District or a part of the State-, may be denied the said rights in the other parts. Therefore, whether the reservation is to be provided or not, fall within the exclusive domain of the State and no one else has any right to so claim. The Court further observed as under:-

"What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be Schedule Caste or a Schedule Tribe in relation to the State or Union Territory for which it is specified.

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It must also be realized that the language of clause (1) of both the Articles 341 and 342 is quite plain and unambiguous. It clearly states that the President may specify the castes or tribes, as the case may be, in relation to each State or Union Territory for the purposes of the Constitution. It must also be realized that before specifying the castes or tribes under either of the two Articles the President is, in the case of a State, obliged to consult Governor of that State. Therefore, when a class is specified by the President after consulting the Governor of State A, it is difficult to understand how that specification made in relation to that State'' can be treated as specification in relation to any other State whose Governor the President has not consulted."

7. In Union of India and Others Vs. Dudh Nath Prasad, the Hon''ble Supreme Court held that if a candidate belonging to a particular community has migrated at a very early age to another State where his community has been put under reserved category, he may be entitled for the benefit of the reservation policy for the purpose of contesting the election from the reserved constituency.

8. Division Bench judgment of this Court rendered on 24^th April, 2004 in Writ Petition No. 22271 of 2000, Sunil Kumar v. Life Insurance Corporation and Ors., in support of his submissions that the petitioner was entitled to the benefit of a Schedule Tribe even though the Meena Community had been declared a Schedule Tribe in the State of Rajasthan and not in the State of Uttar Pradesh. A perusal of the aforesaid Division Bench judgment indicates that it had placed reliance upon another Division Bench judgment of this Court in the case of Sanjay Kumar Singh v. State of U.P. Anr. (2000) 1 UPLBEC 729.

9. We, however, find that the aforesaid decision in the case of Sanjay Kumar Singh (supra) has been set aside by the Hon''ble Supreme Court in the case of U.P. Public Service Commission, Allahabad Vs. Sanjay Kumar Singh, and, therefore, it is not open to the petitioner to take the benefit of the decision given in the case of Sunil Kumar (supra). The Hon''ble Supreme Court in the said case considered whether it was open to the respondents to claim the benefit of reservation in public service in the State of Uttar Pradesh as a member of Scheduled Tribe though "Naga" was not specified Scheduled Tribe in the State of U.P. and observed as follows:-

"It may be noted that the reservation in favour of Scheduled Tribes to the extent of 2% is provided for by the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. There is no. particular definition of ''Scheduled Tribe'' in the Act. However, the term ''Scheduled Tribe'' can only be understood in - accordance with the provisions of Article 342 read with the notifications issued thereunder as interpreted by this Court....

The contention of the appellants . should therefore be accepted and the appellant cannot be treated as a Scheduled Tribe candidate so as to qualify himself to claim reservation against the vacancy reserved for Scheduled Tribe in public services in the State of U.P. The view of the High Court cannot be sustained as it goes counter to the pronouncements of this Court. Hence it is set aside and the appeals are allowed without cost. However, in the "peculiar circumstances of the case, the ends of justice would be met if the appellants are directed to consider the case of the respondent in general category and if in comparison with the general category candidates selected, the respondent had secured higher marks/grading he should be offered appointment to an appropriate post against one of the existing vacancies."

10. Thus, in view of the aforesaid observations of the Hon''ble Supreme Court, it has to be held that the petitioner cannot claim the benefit of reservation for the OBC on the sole basis that his caste had been declared as a OBC in the State of Madhya Pradesh.

11. The aforesaid judgment was followed by a Division Bench of this Court in the case of Satpal Meena and Ors. v. State of U.P. Public Service Commission and Ors. (2003) 1 UPLBEC 349, which related to Meena Caste and it was sought to be contended that since the said caste was considered as a Scheduled Tribe in Rajasthan, it should also be considered as a Scheduled Tribe in the State of U.P. This plea was rejected by the Court. .''

12. In S. Pushpa and Others Vs. Sivachanmugavelu and Others, the Hon''ble Apex Court reconsidered the issue and held that the provisions of Article 16(4) of the Constitution is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of backward classes of citizens which, in its opinion, are not adequately represented either numerically or qualitatively in services of the State but it confers no. constitutional right upon the members of the backward classes to claim reservation. The benefit is to the residents of that State but there is no bar in law extending that benefit to the residents of outside State''s candidates provided the Act specifically provide for it.

13. In M.C.D. Vs. Veena and Others, , the Apex Court while considering a similar case in respect of OBCs, held as under:-

"Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory -,"__.. for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the date for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs".

14. The law, as settled, by the Apex Court, therefore leads us to the conclusion that the petitioner, who is admittedly a domicile of another State, cannot get the benefit of reservation under U.P. Act No. 4 of 1994, unless there is a specific provision notifying the same in the State of U.P. No notification has been brought to our notice providing the benefit of the Act of 1994 for domiciles or candidates outside the State of U.P.

15. The petitioner has been unable to bring any material on record or otherwise through submissions so as to conclude otherwise. It remains absolutely immaterial as to whether petitioner falls in the creamy layer and as to whether the High Court or State of U.P. could hold inquiry in this regard in spite of the fact that petitioner has submitted the certificate duly issued by the competent authority that he did not fall within that layer. Petitioner cannot stake any claim for getting benefit of reservation merely being OBC in the State of Madhya Pradesh. At the most he could be considered as belonging to general category and it is not his case that any candidate of the said category lower to petitioner in merit has been appointed. All the vacancies in general category stood filled up long back. No candidate of general category has been impleaded as respondent. Thus, at such a belated stage, we cannot direct the respondents to consider the case of the petitioner as a general category candidate.

16. No case is made for interference under Article 226 of the Constitution of India and as such the petition stands dismissed. No order as to costs.