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2004 Supreme(All) 896
2004 (3) AWC 2358
(ALLAHABAD HIGH COURT)
Sunil Ambwani, J.
C.M.W.P. No. 21352 of 1990
Decided on May 10, 2004
Panchoo Ram
Versus
State of U. P. and another
Counsel for the Petitioner: B. P. Srivastava.
Counsel for the Opposite Parties : B. P. Tripathi, S.C.
The central legal point established in the judgment is that reservation based on caste in employment cannot exceed a reasonable proportion and that discrimination based on caste in termination of services is prohibited by the Constitution of India.
Headnote:
Reservation - Employment Discrimination - U.P. Temporary Government Servants (Termination of Service) Order, 1975, Article 15, Article 16, Article 46, Article 335 - The court discussed the constitutional provisions related to reservation, specifically focusing on the prohibition of discrimination based on caste in employment. It highlighted the special provisions for advancement of socially and educationally backward classes of citizens and the protection of Scheduled Castes and Scheduled Tribes from social injustice and exploitation. The court emphasized that reservation based on caste cannot exceed a reasonable proportion and that the petitioner, belonging to O.B.C., was discriminated against due to illegal termination of services based on caste considerations.
Fact of the Case:
The petitioner, a temporary Sweeper-cum-Chawkidar, had his services terminated based on the ground that only a Scheduled Caste could be appointed to the post. The termination order did not provide any reason for the termination.
Finding of the Court:
The court found that the termination of the petitioner's services based on caste considerations violated the constitutional provisions related to reservation and employment discrimination.
Issues: The issues involved the legality of terminating the petitioner's services based on caste considerations and the applicability of reservation provisions in the Constitution of India.
Ratio Decidendi: The court held that the Constitution prohibits reservation on posts except to give adequate representation to backward class of citizens and that reservation based on caste cannot exceed a reasonable proportion. The petitioner, belonging to O.B.C., was discriminated against due to illegal termination of services based on caste considerations.
Final Decision: The writ petition was allowed, and the order terminating the petitioner's services was set aside. The petitioner was entitled to continue with all consequential benefits and awarded Rs. 5,000 as costs from the respondents.
Sunil Ambwani, J.—Heard Sri B. P. Srivastava for petitioner and learned standing counsel.
2. This writ petition was filed on 21.8.1990 against the order dated 31.7.1990 passed by Chief Medical Officer, Allahabad terminating the services of temporary Sweeper-cum-Chawkidar. The writ petition was admitted and an interim order was passed on 21.8.1990 directing that the operation of the impugned order shall remain in abeyance.
3. The petitioner was appointed on 28.1.1989, as a temporary Sweeper-cum-Chawkidar. The order dated 31.7.1990 does not give any reason for terminating petitioner’s services. It is apparently an innocuous order stating that the Government does not require services of Panchoo Ram, temporary Sweeper-cum-Chawkidar, that his services shall be terminated with immediate effect, and he shall be paid one month’s pay and allowances in lieu of notice. It appears to be passed under U. P. Temporary Government Servants (Termination of Service) Order, 1975.
4. In the counter-affidavit of L. L. Srivastava, Surveillance Inspector, in the Office of Chief Medical Officer, Allahabad it is stated in para 3 as follows :
“3. That before giving parawise reply to the averments made in the writ petition, it is necessary to give brief facts of the case which are as follows :
(a) That the post of Sweeper-cum-Chawkidar were fallen vacant under the Chief Medical Officer, Allahabad for which the selection was required in which only the candidates who belong to Sweeper Caste were to be selected but illegally the petitioner who is not belonging to Sweeper Caste was selected hence after thorough consideration the Government has taken a decision that the candidates who are not Sweeper caste nor belonging to Scheduled Caste cannot be retained in service hence the termination order was passed.
(b) That the petitioner claimed to be the Government servant of the U. P. Government hence if he has any grievance against his employment he should have filed the claim petition before the Hon’ble U. P. Public Service Tribunal, Lucknow and no writ petition can be filed directly before this Hon’ble Court hence the writ petition is pre-matured and is not maintainable.”
5. It is significant to note that the order or the averments in the counter-affidavit do not justify the termination, either on the ground of unsuitability, or that the termination is simpliciter, without casting any stigma. They refer to some decision taken by the State Government to the effect that the persons belonging to Sweeper Caste or Scheduled Caste cannot be retained in the service as sweeper.
6. The counsel for the petitioner is correct in his submission that the Constitution of India does not permit any such reservation for a particular job and post to be held by a particular caste. Sweeper-cum-Chawkidar is a post created by the State Government in the office of Chief Medical Officer, Allahabad.
7. A Schedule Caste is not a ‘Caste’, within the meaning of that word in Articles 15 (1) and 16 (2) of the Constitution of India. It has a special meaning, namely, a caste as notified by President of India under Article 366 (25), having regard to their extreme backwardness. Under Article 341 the President of India, after consultation with Governor, notifies for that State or U.T. and specifies that Castes, races, or tribes or part of or groups within them. The list is contained in the Constitution (Scheduled Caste) Order 1950, and can be amended by Parliament.
8. The Article 15 (4) was inserted by Constitution (First Amendment) Act, 1951 to make special provisions for advancement of any socially and educationally backward classes of citizens or for Scheduled Caste and tribes. Article 46 in Part IV, ‘Directive Principles of State Policy’ directs that State shall promote with special care the educational and economic interests of weaker sections of the people and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and
