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2004 Supreme(All) 662
HIGH COURT OF ALLAHABAD
Yatindra Singh and M. Chaudhary, JJ.
Mohd Hassan Jafri
Versus
Director of Higher Education UP Allahabad
Civil Misc.Writ Petition 26044 of 2000
Decided On : 02 April 2004
Civil Misc. Writ Petition 26044 Of 2000
D.K.TRIPAHTI, PANKAJ MISHRA, S.A.Gilani,
The main legal point established in the judgment is that only ordinary residents of UP producing caste certificates as per the Act are entitled to reservation in public services and posts under the UP Public services (Reservation for Schedule caste, Schedule Tribe and other Backward Classes) Act, 1994.
Headnote:
reservation - public services - UP Public services (Reservation for Schedule caste, Schedule Tribe and other Backward Classes) Act, 1994 - Section 2(c), Section 2(b), Section 9 - The court discussed the entitlement to reservation in public services and posts under the Act for a resident of a State other than UP belonging to a caste in the reserved category in the other State. It concluded that ordinary residents of other States belonging to reserved categories are not entitled to reservation in UP under the Act, and only ordinary residents of UP producing caste certificates as per the Act are entitled to reservation.
Fact of the Case:
The petitioner, a resident of Bihar belonging to a caste in the reserved category in Bihar, applied for a teaching position in UP as an OBC candidate. He was initially successful but was later denied the appointment due to his non-resident status and non-compliance with the Act's caste certificate requirements.
Finding of the Court:
The court found that the petitioner, as a non-resident of UP, was not entitled to reservation under the Act. It also held that the petitioner should be considered as a general candidate and his candidature may be considered by UP Higher Education Service Commission as a general candidate.
Issues: The main issues were whether the petitioner, as a non-resident of UP, was entitled to reservation under the Act and whether he should be considered as a general candidate.
Ratio Decidendi: The court's decision was based on the interpretation of the Act, which specified that only ordinary residents of UP producing caste certificates as per the Act are entitled to reservation. It also emphasized that the petitioner should be considered as a general candidate.
Final Decision: The writ petition was partly allowed, and the petitioner was to be considered as a general candidate for the teaching position in UP.
( 1 ) THE main question involved in this writ petition is, whether a resident of a State other than the State of UP (the other State) belonging to a caste in the reserved category in the other State, is entitled to reservation in public services and posts in the State of UP under UP Public services (Reservation for Schedule caste, Schedule Tribe and other Backward Classes) Act, 1994 (the Act) ? facts
( 2 ) THE UP Higher Education Service Commission, Allahabad (the Commission) issued an advertisement no. 26/1998 for appointment of teachers in degree colleges in the State of UP. These posts are within the meaning of public services and posts as defined under the Act. There is reservation for Schedule caste, Schedule tribe and other Backward classes (SC/st/obc) in these posts as provided under the Act. The petitioner has qualified the National Eligibility Test (NET) and has minimum educational qualification under the advertisement. He is an ordinary resident of State of Bihar. He applied as an OBC candidate. He produced an OBC certificate dated 15. 9. 1995 issued by the Sub-Divisional Officer (SDO), district Nalanda, Bihar. This certificate is for OBC applying for appointment to the posts under the Government of India. It certifies that The petitioner ordinarily resides in village Jhala PO Karnal, PS Silao, district nalanda, Bihar. He belongs to momin community under Muslim faith. His caste is recognized as a backward class under the Government of India Ministry of Welfare Resolution no. 12011/63/93-BCC (C) dated 10. 9. 1993. He does not belong to the persons/sections (creamy layer) mentioned in column 3 of the Schedule to the Government of India, Department of personnel and Training Notification OM No. 36012/22/93 Hstt (SCT) dated 8. 9. 1993.
( 3 ) THE petitioner was called for the interview on 13. 7. 1999. The results were declared on 16. 7. 1999 and he was declared successful in the OBC category. He was given a joining letter dated 16/19. 7. 1999 by the Director of Higher Education UP Allahabad (the Director ). He was posted as lecturer in Psychology department at Agra College, Agra (the College ). However, the committee of management of the College did not permit the petitioner to join the College. The petitioner filed a representation before the Director for necessary directions and when no action was taken, he filed writ petition no. 43253 of 1999. This writ petition was disposed of on 4. 10. 1999 with the direction to the Director to decide the representation of the petitioner. The director rejected the representation of the petitioner on 1. 5. 2000 on the ground that: the caste certificate under the Act can only be issued to an ordinary resident of the State of UP. The petitioner is a resident of Bihar and his caste certificate can not be accepted as the caste certificate under the Act. The petitioner is not entitled to reservation. Hence the present writ petition. POINTS FOR DETERMINATION
( 4 ) WE have heard counsels for the parties (See Endnote-1 ). Following points arise for determination in this case:
(i) Whether the caste of the petitioner is also an OBC under the Act? (ii) Whether the petitioner belongs to creamy layer? (iii) Whether an ordinary resident of the other State is entitled to reservation under the Act if the caste of same nomenclatures is, (a) not included in the reserved category in the State of UP? (b) included in the reserved category in the State of UP? (iv) Whether the petitioner is entitled to benefit of reservation as other reserved category candidates from State of Bihar have been given benefit of reservation in the same selection? (v) Whether the petitioner is entitled to any relief?
POINT NO. 1 and 2: EVIDENCE IS NOT CONCLUSIVE
( 5 ) THE State of Uttar Pradesh has the Act for providing reservation in favour of SC/st/obc. This reservation is in public services and posts as defined under section 2 (c) of the Act. Broadly public services and posts have public colour and are in conne
