# Bindresh Singh v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-14
- **Case number:** Writ-A No. 5259 of 2020
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindresh-singh-v-state-of-u-p-ors-46124
- **Pages:** 7

## Headnote

law
-
Selection
on
the
Constable post - Failure to submit O.B.C.
Certificate - Effect - Held, merely for the
reason that O.B.C. certificate was not
submitted by the petitioner within the
time,
the
authorities
would
not
be
justified
in
denying
petitioner's
consideration for appointment in O.B.C.
category - If a person belonging to a
reserve category, a certificate issued by
the competent authority to this effect is
only affirmation of the fact which is
already in existence - The purpose of such
certificate is enable the authorities to
believe in the assertion of the candidate
that he belongs to a reserved category.
(Para 13)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES
प्रलिक्षण की अनुमति प्रिान करें। इस तनिेि के
साि ििथमान आज्ञापत्र याचिका थिीकार ि
अंतिम रुप से तनथिाररि की जािी है।
----------
(2021)01ILR A738
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2020

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-A No. 5259 of 2020

Bindresh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

A.
Service
law
-
Selection
on
the
Constable post - Failure to submit O.B.C.
Certificate - Effect - Held, merely for the
reason that O.B.C. certificate was not
submitted by the petitioner within the
time,
the
authorities
would
not
be
justified
in
denying
petitioner's
consideration for appointment in O.B.C.
category - If a person belonging to a
reserve category, a certificate issued by
the competent authority to this effect is
only affirmation of the fact which is
already in existence - The purpose of such
certificate is enable the authorities to
believe in the assertion of the candidate
that he belongs to a reserved category.
(Para 13)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Ram Kumar Gijroya Vs Delhi Subordinate
Services Selection Board reported in (2016) 4
SCC 754.
2. Special Appeal No. 762 of 2016, Arvind
Kumar
Yadav
Vs
U.P.
Recruitment
and
Promotion Board & ors. decided on 05.12.2016
3. Special Appeal No.156 of 2017 (Gaurav
Sharma Vs State of U.P. & ors.) decided on
04.05.2017
4. Seema Kumari Sharma Vs St. of H.P. (1998)
9 SCC 128

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Siddharth Khare, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner has preferred the
present writ petition with the prayer to
direct
the
respondents-authorities
to
consider the candidature of the petitioner
under OBC category and to undertake
follow up proceeding for appointment of
the petitioner on the post of Constable
pursuant
to
the
advertisement
dated
16.11.2018..

3. Facts in brief as contained in the
writ petition are that an advertisement was
issued by the respondents on 16.11.2018
inviting applications for the post of
constable in Civil Police and Provincial
Armed Constabulary (in short "P.A.C.").
The process of selection comprises of
written examination followed by the
document
verification
and
physical
standard
test
which
is
subsequently
followed by physical efficiency test and
medical examination.

4. The petitioner is an O.B.C.
candidate and pursuant to the aforesaid
advertisement, he applied for the post of
constable. An admit card was issued by the
respondents permitting the petitioner to
appear in the written examination which
was held on 28.1.2019. The petitioner duly
1 All. Bindresh Singh Vs. State of U.P. & Ors.
739
appeared in the written examination. The
petitioner duly passed the same and
thereafter, the petitioner was issued admit
card for document verification/physical
standard test (hereinafter referred to as
"DV/PST"). The petitioner duly appeared
in the aforesaid examination on 19.12.2019
at Reserved Police Line, Gorakhpur.
During the course of document verification,
an objection was raised by the respondentsauthorities to the effect that the petitioner
was not able to produce the OBC certificate
within cut off date. Though the petitioner
was not able to produce the aforesaid caste
certificate but he was permitted to undergo
physical efficiency test. Final result of the
aforesaid examination was declared on
2.3.2020 and the name of the petitioner was
placed at serial No.5659 in the list of
selected candidates. In the aforesaid select
list, the candidature of the petitioner was
considered as general class category
candidate. It further reflects from perusal of
the result that the petitioner secured
179.5000 marks where as the cut of marks
under OBC category is 176.2834. Insofar
as the general class category candidates are
concerned, the cut of marks was 180.4081.

5. It is argued that as per procedure
prescribed under Para 5.4 (under the
heading of remark) that OBC certificate
was required to be issued between
01.04.2018 and 08.12.2018. The petitioner
has OBC certificate dated 29.11.2018. It is
argued that at the relevant point of time, the
aforesaid caste certificate was misplaced,
as such he was not able to produce the
same at the time of document verification
and physical standard test. It is further
argued that though the petitioner was not
able to produce the caste certificate dated
29.11.2018 before the aforesaid committee
but he was able to produce OBC
certificates before the aforesaid committee
which were issued on 04.02.2018 and
07.02.2018. The aforesaid caste certificates
were duly accepted by the respondentsauthorities and the petitioner was permitted
to
participate
in
the
document
verification/physical standard test. It is
argued that only objection which was raised
by the respondents-authorities is that at the
relevant point of time, the caste certificate,
which was duly produced by the petitioner
before the authorities, was not within the
cut of date. In this view of the matter, the
candidature of the petitioner was shifted to
the general category candidate from OBC
category candidate. It is further argued that
it is settled principle of law that in case, a
person belonging to a particular category
and if he failed to submit document at the
time of verification, the same would not
give authority to the respondents either to
cancel his candidature or shift from OBC
category to general category. Learned
counsel for the petitioner also placed
reliance upon a judgement of Hon'ble
Supreme Court in the case of Ram Kumar
Gijroya Vs. Delhi Subordinate Services
Selection Board reported in (2016) 4 SCC
754. In the aforesaid case, it has been held
by Hon'ble Supreme Court that even if
there is a delay in furnishing the caste
certificate, the same would not be fatal in
order to non-suit the candidature of a
candidate. It is argued that in view of the
aforesaid judgment, respondents are liable
to treat the candidature of the petitioner as
O.B.C. category candidate and appoint him
as constable pursuant to the advertisement
in question.

6. A counter affidavit has been filed
by the learned Standing Counsel on behalf
of the respondents. It is argued by learned
Sanding Counsel that Board has advertised
the posts of constable in Civil Police and
Constable P.A.C 2018 in the year 2018 and
740 INDIAN LAW REPORTS ALLAHABAD SERIES
online forms were invited from 19.11.2018
and the last date for submission online form
was 08.12.2018. It is further argued that the
candidate should submit his/her online
form between 19.11.2018 and 08.12.2018
pursuant to the advertisement in question.
Learned Standing Counsel relied upon
paragraphs 5, 6, point 6 and point No.10 of
paragraph No.5 of the advertisement dated
16.11.2018 which provides for reservation.
The aforesaid paragraphs are quoted
below:-

Paragraph 5 of the advertisement dated
16.11.2018:-

"mRrj izns'k yksd lsok (vuqlwfpr tkfr;ksa
vuqlwfpr tutkfr;ksa vkSj vU; fiNMs oxksZa ds fy,
vkj{k.k )vf/kfu;e & 1994 (le; le; ij ;Fkk
la'kksf/kr) dh vuqlwph&nks ds vuqlkj dzhehys;j ds
vUrZxr vkus okys mRrj izns'k ds vU; fiNMs oxZ ds
vH;fFkZ;ksa dks vkj{k.k dk ykHk vuqeU; ugha gSA vU;
fiNMs oxZ ds fy, tkfr izek.k&i= (izk:i&1) 01
vizSy, 2018 ;k mlds ckn dk fdUrq bl HkrhZ izfd;k
gsrq fu/kkZfjr vkosnu djus dh vfUre frfFk rd fuxZr
gksuk pkfg,A"

Paragraph 6 of the advertisement dated
16.11.2018:-

"vU; fiNMs oxZ ds fy, tkfr izek.k i= jkT;
ljdkj }kjk fu/kkZfjr izk:i&1 ij (01 vizSy, 2018
;k mlds ckn dk fdUrq bl HkrhZ izfd;k gsrq fu/kkZfjr
vkosnu djus dh vfUre frfFk) fuxZr gksuk pkfg,A"

Point No.6 of Paragraph 5 of the
advertisement dated 16.11.2018:-

"vkj{k.k@vk;q esa NwV dk ykHk pkgus okys
mRrj izns'k ds vkjf{kr Js.kh ds vH;FkhZ vkosnu esa
viuh Js.kh vo'; vafdr djsa rFkk fu/kkZfjr izk:i ij
l{ke vf/kdkjh }kjk tkjh izek.k i= vkosnu djus ls
iwoZ izkIr dj ysa ,oa tc muls vis{kk dh tk;s tc os
mls izLrqr djsaA jkT; ljdkj }kjk fu/kkZfjr izk:i ds
vfrfjDr fdlh vU; izk:i esa izLrqr izek.k i= ekU;
ugha gksxkA""

Point No.10 of Paragraph 5 of the
advertisement dated 16.11.2018:-

"vkj{k.k dh nkosnkjh ds leFkZu esa lEcfU/kr
ewy izek.k i= fu/kkZfjr izk:i es izLrqr u fd;s tkus
ij ;g vo/kkj.kk dh tk;sxh fd vH;FkhZ vkj{k.k dk
nkosnkj ugha gS ,oa rnkuqlkj ;g nkosnkjh fujLr dj,
;fn vH;FkhZ lkekU; Js.kh dh leLr ik=rkvksa dks iw.kZ
djrk gks rks, mls lkekU; Js.kh ds vUrxZr ekurs gq,
HkrhZ izfdz;k esa lfEefyr dj fy;k tk;sxkA bl
lEcU/k esa fdlh la'kks/ku@ifjorZr gsrq iqu% dksbZ
volj iznku ugha fd;k tk;sxkA"

7. It is argued that the petitioner has
not followed the provisions prescribed in
the advertisement issued by the Board for
submitting
O.B.C.
certificate
issued
between 01.04.2018 and 08.12.2018 and as
such the candidature of the petitioner was
shifted from O.B.C. category to general
category. It is stated in sub paragraph 6 of
paragraph No.7 of the counter affidavit that
cut of marks of the petitioner is 179.50000
which is less than cut off marks 180.4081
of general category candidates (Male) and
as such the petitioner is not entitled for his
selection.
Learned
Standing
Counsel
further relied upon judgment rendered by
this Court in Special Appeal No.762 of
2016 (Arvind Kumar Yadav Vs. U.P.
Recruitment and Promotion Board and
others). He further relied upon a full bench
judgment of this Court passed in Special
Appeal No.156 of 2017 (Gaurav Sharma
Vs. State of U.P. and others) decided on
04.05.2017. It is argued that insofar as the
law laid down by Hon'ble Supreme Court
in the case of Ram Kumar Gijroya (supra)
is concerned, the ratio of the same is not
applicable in the facts and circumstances of
the case.

8. In response to the arguments raised
by the learned Standing Counsel, it is
argued by Sri Siddharth Khare, learned
counsel for the petitioner that the facts of
1 All. Bindresh Singh Vs. State of U.P. & Ors.
741
the case before the full bench is different
from this case and the law laid down by the
Supreme Court in the case of Ram Kumar
Gijroya (supra) is fully applicable in the
present facts and circumstance of the case.

9. Heard learned counsel for the
parties and perused the record.

10. The Apex Court in the case of
Ram Kumar Gijroya (supra), reliance of
which has placed by the learned counsel for
the petitioner, deals with the provisions that
whether a candidate, who appears in the
examination under the O.B.C. category and
submits his certificate after the last date
mentioned in the examination, is eligible
for selection to the post under the O.B.C.
category or not. Learned counsel placed
reliance upon following paragraphs of the
aforesaid judgment:-

"3. The important question of law to
be decided in these appeals is whether a
candidate who appears in an examination
under the O.B.C. category and submits the
certificate after the last date mentioned in
the advertisement is eligible for selection to
the post under the O.B.C. category or not.

4 . As the question of law arising in all
these appeals is similar, for the sake of
convenience and brevity, we refer to the
facts of Civil Appeal arising out of SLP(C)
No. 27550 of 2012, which has been filed
against the impugned judgment and order
dated 24.01.2012, The necessary relevant
facts required to appreciate the rival legal
contentions advanced on behalf of the
parties are stated in brief hereunder:

"The Respondent-Delhi Subordinate
Services
Selection
Board
(hereinafter
referred to as "the DSSSB") invited
applications for selection to the post of
Staff Nurse in the Department of Health
and Family Welfare, Govt. of NCT of Delhi
by way of publishing an Advertisement No.
09/2007 in the Newspaper. The last date of
submission of the application form in the
advertisement for the said post was
21.01.2008. The Appellant submitted his
application form before the due date and
was subsequently issued the admit card to
appear
in
the
examination.
Having
appeared in the examination, he was
shortlisted for selection. However, his name
did not appear in the final list of selected
candidates. On enquiry, he was informed
by the concerned official that he was not
selected to the post for the reason that he
had failed to submit the OBC certificate
issued by the appropriate authority along
with application form before the last date
of submission of application form."

6. The learned single Judge disposed
of the writ petition vide judgment and order
dated 24.11.2010, placing reliance on the
judgment in the case of Pushpa (supra),
wherein the controversy centred around the
same advertisement/Notification issued by
the same Respondent. The learned single
Judge observed that the only ground for
declining the applications filed by the
Appellants was that the O.B.C. certificates
had been issued and submitted after the cut
off date and therefore they were not eligible
for appointment to the post. The learned
single
Judge
further
held
that
the
Respondent did not cite any other authority
to distinguish the decision in Pushpa's case
(supra) from the facts of the present case.
Consequently, the learned single Judge
disposed of the writ petition and directed
the
Respondent
to
reconsider
the
application of the Appellant and the other
aggrieved candidates against the O.B.C.
category within a period of one month.

14. The Division Bench of the High
Court erred in not considering the decision
rendered in the case of Pushpa (supra). In
that case, the learned single Judge of the
742 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court had rightly held that the
Petitioners therein were entitled to submit
the O.B.C. certificate before the provisional
selection list was published to claim the
benefit of the reservation of O.B.C.
category.
The
learned
single
judge
correctly examined the entire situation not
in a pedantic manner but in the backdrop of
the object of reservations made to the
reserved categories, and keeping in view
the law laid down by a Constitution Bench
of this Court in the case of Indra Sawhney
v. Union of India 1992 (Supp) 3 SCC 217
as well as Valsamma Paul v. Cochin
University and Ors. (1996) 3 SCC 545. The
learned single Judge in the case of Pushpa
(supra) also considered another judgment
of Delhi High Court, in the case of Tej Pal
Singh (supra), wherein the Delhi High
Court had already taken the view that the
candidature of those candidates who
belonged to the S.C. and S.T. categories
could not be rejected simply on account of
the late submission of caste certificate.

The relevant paragraph from the
judgment of this Court in the case of Indra
Sawhney (supra) has been extracted in the
case of Pushpa (supra) along with the
speech delivered by Dr. Ambedkar in the
constituent assembly and reads thus:

9....

xxx

251. Referring to the concept of
equality
of
opportunity
in
public
employment, as embodied in Article 10 of
the
draft
Constitution,
which
finally
emerged as Article 16 of the Constitution,
and the conflicting claims of various
communities for representation in public
administration, Dr. Ambedkar emphatically
declared
that
reservation
should
be
confined to 'a minority of seats', lest the
very concept of equality should be
destroyed. In view of its great importance,
the full text of his speech delivered in the
Constituent Assembly on the point is
appended to this judgment. But I shall now
read a few passages from it. Dr Ambedkar
stated:

"...firstly, that there shall be equality
of opportunity, secondly, that there shall be
reservations
in
favour
of
certain
communities which have not so far had a
'proper look-in' so to say into the
administration .... Supposing, for instance,
we were to concede in full the demand of
those communities who have not been so
far employed in the public services to the
fullest extent, what would really happen is,
we shall be completely destroying the first
proposition upon which we are all agreed,
namely, that there shall be an equality of
opportunity .... Therefore the seats to be
reserved, if the reservation is to be
consistent with Sub-clause (1) of Article 10,
must be confined to a minority of seats. It is
then only that the first principle could find
its place in the Constitution and effective in
operation ... we have to safeguard two
things, namely, the principle of equality of
opportunity and at the same time satisfy the
demand of communities which have not had
so far representation in the State, ...
Constituent Assembly Debates, Vol. 7, pp.
701-702 (1948-49).

These words embody the raison d'etre
of
reservation
and
its
limitations.
Reservation is one of the measures adopted
by
the
Constitution
to
remedy
the
continuing evil effects of prior inequities
stemming from discriminatory practices
against various classes of people which
have resulted in their social, educational
and economic backwardness. Reservation
is meant to be addressed to the present
social,
educational
and
economic
backwardness
caused
by
purposeful
societal discrimination. To attack the
continuing ill effects and perpetuation of
such injustice, the Constitution permits and
1 All. Bindresh Singh Vs. State of U.P. & Ors.
743
empowers the State to adopt corrective
devices even when they have discriminatory
and
exclusionary
effects.
Any
such
measure, in so far as one group is preferred
to
the
exclusion
of
another,
must
necessarily be narrowly tailored to the
achievement
of
the
fundamental
constitutional goal."

15. In the case of Pushpa (supra),
relevant paragraphs from the case of Tej
Pal
Singh
(supra)
have
also
been
extracted, which read thus:

11....

xxx

17. The matter can be looked into from
another
angle
also.
As
per
the
advertisement dated 11th June, 1999 issued
by the Board, vacancies are reserved for
various categories including 'SC' category.
Thus in order to be considered for the post
reserved for 'SC' category, the requirement
is that a person should belong to 'SC'
category. If a person is SC his is so by birth
and not by acquisition of this category
because of any other event happening at a
later
stage. A
certificate
issued
by
competent authority to this effect is only an
affirmation of fact which is already in
existence. The purpose of such certificate is
to enable the authorities to believe in the
assertion of the candidate that he belongs
to 'SC' category and act thereon by giving
the benefit to such candidate for his
belonging to 'SC' category. It is not that
Petitioners did not belong to 'SC' category
prior to 30th June, 1998 or that acquired
the status of being 'SC' only on the date of
issuance of the certificate. In view of this
position, necessitating upon a certificate
dated prior to 30th June, 1998 would be
clearly arbitrary and it has no rationale
objective sought to be achieved.

18. While taking a particular view in
such matters one has to keep in mind the
objectives behind the post of SC and ST
categories as per constitutional mandate
prescribed in Articles 15(4) and 16(4)
which are enabling provisions authorising
the Government to make special provisions
for the persons of SC and ST categories.
Articles 14(4) and 16(4), therefore, intend
to remove social and economic inequality
to make equal opportunities available in
reality. Social and economic justice is a
right enshrined for protection of society.
The right in social and economic justice
envisaged in the Preamble and elongated in
the Fundamental Rights and Directive
Principles of the Constitution, in particular
Articles 14, 15, 16, 21, 38, 39 and 46 are to
make the quality of the life of the poor,
disadvantaged and disabled citizens of the
society meaningful."

11. So far as the judgment delivered
by the Full Bench of this Court in Gaurav
Sharma (supra) is concerned, the same,
apparently, has no applicability; in as much
as, the Full Bench of this Court was dealing
with the candidature of an OBC candidate,
for which declaration had to be in the
format as requisite information had to be
furnished so as to determine as to whether
the person is belonging to non-creamy
layer in the OBC category of State or not?
In view of the same, the court is of the
opinion that ratio of the full bench
judgement will not apply in the facts and
circumstance of the present case.

12. The Supreme Court in the case of
Seema Kumari Sharma vs. State of H.P.
(1998) 9 SCC 128 has considered the issue
regarding failure of a candidate to furnish a
certificate regarding reservation claimed by
her along with the application form. The
Hon'ble Supreme Court has observed that
the failure of a candidate to submit
certificate
regarding
weightage
or
reservation at the time of submission of
744 INDIAN LAW REPORTS ALLAHABAD SERIES
application form does not dis-entitle her to
claim consideration on the basis thereof.
The Supreme Court observed that the
respondents did not dispute the certificate,
but only disputed the time of its production
before them to claim consideration. The
appellant had already appeared for the
examinations conducted, but her result had
not
been
announced.
She
filed
a
representation claiming award of 10 marks
allotted for the candidates belonging to
IRDP Families (Families belonging to
backward Panchayat). The Supreme Court
allowed the appellant's claim and directed
declaration of her result and for inclusion
of her name in the training meant for Junior
Basic Teachers' Training Course and also
directed her appointment to be considered
in accordance with the Rules, if she
completed her training successfully. The
Supreme Court in fact, directed that the
certificate produced by the candidate,
which would otherwise entitle her to claim
weightage, even on a later date, can be
considered for providing appointment.

13. In the facts and circumstances of
the case merely for the reason that O.B.C.
certificate was not submitted by the
petitioner within the time, the authorities
would
not
be
justified
in
denying
petitioner's consideration for appointment
in O.B.C. category. If a person belonging to
a reserve category, a certificate issued by
the competent authority to this effect is
only affirmation of the fact which is
already in existence. The purpose of such
certificate is enable the authorities to
believe in the assertion of the candidate that
he belongs to a reserved category.

14. In view of the same, the court
is of the opinion that the petitioner is
entitled for the relief as claimed for by
him in the present writ petition.

15. In view of the aforesaid, this
writ petition is disposed of with the
direction upon the authorities concerned
to
treat
the
petitioner
as
O.B.C.
category candidate and pass further
orders in respect of his candidature.

16. It goes without saying that
correctness of the certificate would,
otherwise, be open to be examined
before issuing a formal order of
appointment to the petitioner.

17. The aforesaid exercise be
completed within a period of three
months from the date of production of
self attested computer generated copy
of this order downloaded from the
official
website
of
High
Court
Allahabad.

18.

With
the
aforesaid
observations,
the
writ
petition
is
allowed.
----------
(2021)01ILR A744
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 8509 of 2020

Ashish Kumar Mishra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Laltaprasad Misra, Prafulla Tiwari

Counsel for the Respondents:
C.S.C.,
Manish
Jauhari,
Mohd.
Altaf
Mansoor, Nitin Kapoor, P.K. Srivastava,
Pradip Kumar Srivastava, Renu Mishra