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2004 Supreme(All) 658
HIGH COURT OF ALLAHABAD
Yatindra Singh,DILIP KUMAR SETH
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 ordinary residents of other States belonging to reserved categories are not entitled to reservation in UP under the Act, and the conditions for entitlement to reservation under the Act were clarified.
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 of a resident of a State other than UP, belonging to a reserved category in the other State, to reservation in public services and posts in UP under the Act. The court held that ordinary residents of other States belonging to reserved categories are not entitled to reservation in UP under the Act, and clarified the conditions for entitlement to reservation under the Act.
Fact of the Case:
The petitioner, a resident of Bihar, applied for a teaching position in UP as an OBC candidate. He was initially successful but was later denied the appointment based on his residency and caste certificate.
Finding of the Court:
The court found that the petitioner was not entitled to reservation in UP under the Act due to his residency and the requirements for caste certification. The court also clarified that the petitioner could be considered as a general candidate for the position.
Issues: The main issues were the entitlement of a resident of another State to reservation in UP, the interpretation of the Act's provisions on caste certification, and the petitioner's eligibility for relief.
Ratio Decidendi: The court held that ordinary residents of other States belonging to reserved categories are not entitled to reservation in UP under the Act. It also clarified the conditions for entitlement to reservation under the Act and emphasized that the petitioner could be considered as a general candidate.
Final Decision: The writ petition was partly allowed, and the petitioner was entitled to be considered as a general candidate for the position.
( 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 con
