# Shom Raj Shukla / v. Public Service Commission U.P. and others

- **Citation:** (2010) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-12
- **Case number:** Special Appeal No.17 of 2010
- **Bench:** C.K. Prasad, C.J. Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shom-raj-shukla-v-public-service-commission-u-p-and-others-41616
- **Pages:** 5

## Headnote

C.S.C.

U.P.
Public
Service
Commission
Reservation
for
Scheduled
Castes,
Scheduled Tribes & others backward
classes
Act-
1994
Section-
3(6)-
Appointment of work shop Instructor-
out of 17 General Category 12 post
occupied by scheduled Caste candidatesall those reserve category persons got
more marks than the last selected
candidate of General Category-argument
that if they allowed to occupy vacancy of
General
Category-reservation
exceed
more than 50% held-misconceived-it
can not be ground for reconsideration of
reservation policy by Govt.-but those
candidate
can
not
be
counted
in
reservation Quota-Single judge rightly
declined to interfere.

Held Para- 14

However,
we
hasten
to
add
that
appointment of a large number of
candidates belonging to the reserved
category in the general category on
merit, may be a ground to reconsider the
policy of reservation, but it cannot be
said that those members of the reserved
category who have been appointed on
merit, in the face of the language of
Section 3 (6) of the Act, 1994, have to be
counted amongst the members of the
reserved category.
Case law discussed:
1963 (Suppl.) SCR 439,1992 Supp. (3) SCC
217, [(2004) 2 UPLBEC 1445.

## Text

1 All] Shom Raj Shukla V. Public Service Commission, U.P. and others
1
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2010

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.17 of 2010

Shom Raj Shukla ...Appellants/Petitioner
Versus
Public Service Commission U.P. and
others
...Respondents/Opposite Party

Counsel for the Petitioner:
Sri Kamlesh Narayan Pandey

Counsel for the Respondents:
C.S.C.

U.P.
Public
Service
Commission
Reservation
for
Scheduled
Castes,
Scheduled Tribes & others backward
classes
Act-
1994
Section-
3(6)-
Appointment of work shop Instructor-
out of 17 General Category 12 post
occupied by scheduled Caste candidatesall those reserve category persons got
more marks than the last selected
candidate of General Category-argument
that if they allowed to occupy vacancy of
General
Category-reservation
exceed
more than 50% held-misconceived-it
can not be ground for reconsideration of
reservation policy by Govt.-but those
candidate
can
not
be
counted
in
reservation Quota-Single judge rightly
declined to interfere.

Held Para- 14

However,
we
hasten
to
add
that
appointment of a large number of
candidates belonging to the reserved
category in the general category on
merit, may be a ground to reconsider the
policy of reservation, but it cannot be
said that those members of the reserved
category who have been appointed on
merit, in the face of the language of
Section 3 (6) of the Act, 1994, have to be
counted amongst the members of the
reserved category.
Case law discussed:
1963 (Suppl.) SCR 439,1992 Supp. (3) SCC
217, [(2004) 2 UPLBEC 1445.

(Delivered by Hon'ble C.K. Prasad, CJ)

1.

Writ
petitioner-appellant,
aggrieved by order dated 26.11.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.35839 of 2004,
has preferred this special appeal under
Rule 5 Chapter VIII of the Allahabad
High Court Rules.

2. Shorn of unnecessary details facts
giving rise to the present appeal are that in
response to the advertisement made by the
U.P. Public Service Commission for
appointment to the post of Workshop
Instructor, the writ petitioner-appellant
(hereinafter called as 'the writ petitioner')
as also a large number of candidates
offered their candidatures. After usual
process of selection, the Public Service
Commission published the list of selected
candidates on 24.12.2003. The name of
writ petitioner does not find place in that.
He challenged the select list alleging that
out of 17 general posts, 12 posts have
been
filled-up
from
the
candidates
belonging to the reserved category, which
is impermissible in law and accordingly,
prayer was made to quash the list. It is not
the case of the writ petitioner that
advertisement
itself
provided
for
reservation to the extent indicated above.
The writ petitioner's prayer was resisted
on the ground that the candidates of
reserved category, who had secured equal
marks or more marks than the marks
secured by the last selected candidate of
the general category, have been appointed
and those will not account for in the
2 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
reserved category. The submission made
by the writ petitioner did not find favour
with the learned Single Judge and he
dismissed the writ application, inter alia,
observing as follows:-

"As per the provisions quoted above,
in case a candidate of reserve category
has received marks equivalent or higher
marks
than
the
general
category
candidate, then his/her candidature has to
be considered as general candidate. In the
present case exactly this has been done
and the 12 candidates of reserve category
have secured more marks than the general
category candidates, as such they have
been
treated
as
general
category
candidates on account of this mandatory
provision of Section 3 (6) U.P. Act No.4
of 1994. Ceiling of 50% to reserve
category candidates in no way is
applicable, inasmuch as the selection of
reserve category candidates, in the present
case, against quota meant for general
category candidates, cannot be treated to
be exceeding the quota of 50% provided
for under the reservation. This ground
raised by the petitioner is unsustainable
and cannot be subscribed."

3. Mr. Pandey, appearing on behalf
of the writ petitioner, submits that the
reservation of more than 50% posts in
favour of reserved category is a fraud on
the Constitution and on this ground alone,
the select list is fit to be quashed. In
support of the submission, reliance has
been placed on the Judgement of the
Supreme Court in the case of M.R. Balaji
and others Vs. State of Mysore [1963
(Suppl.) SCR 439] and our attention has
been drawn to the following passage from
the said judgement:-

"It is in this connection that courts
often consider the substance of the matter
and not its form and in ascertaining the
substance of the matter, the appearance or
the cloak, or the veil of the executive
action is carefully scrutinized and if it
appears
that
notwithstanding
the
appearance, the cloak or the veil of the
executive action, in substance and in truth
the
constitutional
power
has
been
transgressed, the impugned action is
struck
down
as
a
fraud
on
the
Constitution. We have already noticed
that the impugned order in the present
case has categorised the Backward
Classes on the sole basis of caste which,
in our opinion, is not permitted by Art. 15
(4); and we have also held that the
reservation of 68% made by the impugned
order is plainly inconsistent with the
concept
of
the
special
provision
authorised by Art. 15 (4). Therefore, it
follows that the impugned order is a fraud
on the Constitutional power conferred on
the State by Art. 15 (4)."

4. Reliance has also been placed on
a Constitution Bench judgement of the
Supreme Court in the case of Indra
Sawhney v. Union of India [1992 Supp.
(3) SCC 217, and our attention has been
drawn to paragraph 178 of the judgement,
which reads as follows:-

"178. It was for the first time that this
Court in Balaji has indicated broadly that
the reservation should be less than 50%
and the question how much less than 50%
would depend on the relevant prevailing
circumstances in each case. Though in
Balaji the issue in dispute related only to
the reservation prescribed for admissions
in
the
medical
college
from
the
educationally
and
socially
backward
classes, Scheduled Castes and Scheduled
1 All] Shom Raj Shukla V. Public Service Commission, U.P. and others
3
Tribes as being violative of Article 15 (4),
this Court after expressing its view that it
should be less than 50% observed further
that
"[T] he provisions of Article 15 (4)
are similar to those of Article 16 (4) ....
Therefore, what is true in regard to Article
15 (4) is equally true in regard to Article
16 (4)... reservation made under Article
16 (4) beyond the permissible and
legitimate limits would be liable to be
challenged
as
a
fraud
on
the
Constitution." (SCR pp. 473-74)
This decision has gone further
holding that the reservation of 68% seats
made in that case was offending Article
15 (4) of the Constitution. To say in other
words, Balaji has fixed that the maximum
limit of reservation all put together should
not exceed 50% and if it exceeds, it is
nothing but a fraud on the Constitution.
Even at the threshold, I may emphatically
state that I am unable to agree with the
proposition fixing the reservation for
SEBCs at 50% as the maximum limit."

5. Yet, another decision on which
reliance has been placed, is a Division
Bench decision of this Court in Prana
Vir Singh (Dr.) v. Chancellor, Chandra
Shekhar
Azad
University
of
Agriculture and Technology, Lucknow
and others, [(2004) 2 UPLBEC 1445]
and our attention has been drawn to
paragraph 12 of the judgement, which
reads as follows:-

"12. From the facts of the case it
appears that initially there were nine posts
of Subject Matter Specialist (Yield
Production), which had been advertised
by Annexure-2 to the writ petition. Out of
these nine posts two were reserved for
Scheduled Caste and three for other
Backward Class and four posts were in
general category. In our opinion, this
reservation of five out of nine posts was
clearly illegal as it exceeded 50%
maximum
permissible
limit
of
reservation. In the Constitution Bench
decision of the Supreme Court in P.G.
Institute of Medical Education and
Research v. Faculty Association, JT 1998
(3) SC 223, it has been observed (vide
Para 31)".

6. Reference has also been made to
an unreported decision of this Court dated
13.8.2008 passed in Civil Misc. Writ
Petition No.190 of 2006 (Dr. Shailendra
Singh Vs. State of U.P. and another). In
the said case, it has been held as follows:-

"We therefore find that the post
reserved for scheduled caste on which Dr.
Permanand T Dudhey was selected was in
excess of the percentage of reservation for
scheduled caste candidate."

7. We do not find any substance in
the submission of Mr. Pandey, and the
decisions
relied
on
are
clearly
distinguishable.

8. It is not the case of the writ
petitioner that out of 17 posts, 12 have
been filled-up from amongst the members
of the reserved category on the basis of
any concession given to them. It seems
that all these persons have qualified with
the members of the general category and
have been selected on merit. In our
constitutional
scheme,
there
is
no
reservation for the members of the general
category and the reservation is for the
members of the reserved category, i.e.,
Scheduled Caste, Scheduled Tribe, and
Other
Backward
Classes.
The
Constitution does not provide that the
vacancies, which are not reserved have to
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
be filled-up by the members of the
general category. The members of the
reserved category can claim appointment
on merit for the posts, which are not
reserved, but the converse is not true. The
members of the general category cannot
be
considered
for
appointment
on
reserved posts. Under the scheme of the
Constitution, no such reservation in
favour of the general category has been
provided.

9. It is relevant here to state that the
State Legislature has enacted the U.P.
Public
Services
(Reservation
for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994, to
provide for the reservation in public
services and posts in favour of the persons
belonging to the Scheduled Castes,
Scheduled Tribes and Other Backward
Classes of citizens. Section 3 (6) of the
aforesaid Act, which is relevant for the
purpose, reads as follows:-

3.
Reservation
in
favour
of
Scheduled Castes, Scheduled Tribes
and Other Backward Classes.-
xx

xx

 xx
(6). If a person belonging to any of the
categories mentioned in sub-section (1)
gets selected on the basis of merit in an
open competition with general candidates,
he shall not be adjusted against the
vacancies reserved for such category
under sub-section (1).
Xx

xx

xx"

10. From a plain reading of the
aforesaid provision, it is evident that if a
person belonging to any of the reserved
categories, gets selected on the basis of
merit in an open competition with general
candidates, he shall not be adjusted
against the vacancy reserved for such
category. Therefore, such of the candidate
of the reserved category selected on the
basis of merit in an open competition with
general category, shall not be accounted
for
calculating
the
percentage
of
reservation.

11. In that view of the matter, the
very plea of the writ petitioner that more
than 50% of the posts have been reserved
for the members of the reserved category,
is absolutely fallacious. Merely the fact
that more than 50% of the persons
belonging to reserved category have been
appointed, will not mean that reservation
had exceeded 50% of the vacancies and
had
exceeded
the
same.
De
jure
reservation of more than 50%, ordinarily
may not be permissible, but de facto it
may be possible that more than 50% of
the posts are filled by members of the
reserved category on merit, as had
happened in the present case.

12. It is not the case of the writ
petitioner that any candidate belonging to
his category and having secured less
marks than him, has been appointed and
the writ petitioner left out. His very
comparison with the members of the other
categories, who have been appointed on
the seat reserved for them, is absolutely
misconceived.

13. Now referring to the decision of
the Supreme Court in M.R. Balaji (supra),
the same is clearly distinguishable. In the
said case, the reservation of more than
50% was held to be fraud on the
Constitution. Here, reservation has not
been provided exceeding 50% of the
posts. As stated earlier, more than 50% of
the posts have been filled-up by the
members of the reserved category, not by
giving any concession to them, but on
1 All] Shiv Lochan V. State of U.P. and others
5
account of the fact that they had competed
and qualified along with the members of
the general category. For the same reason,
all the decisions relied on by the writ
petitioner are clearly distinguishable and
they do not support the writ petitioner's
contention.

14. However, we hasten to add that
appointment of a large number of
candidates belonging to the reserved
category in the general category on merit,
may be a ground to reconsider the policy
of reservation, but it cannot be said that
those members of the reserved category
who have been appointed on merit, in the
face of the language of Section 3 (6) of
the Act, 1994, have to be counted
amongst the members of the reserved
category.

15. We are of the opinion that the
consideration of the matter by the learned
Single Judge does not suffer from any
error calling for interference in this
appeal.

16. We do not find any merit in the
appeal and it is dismissed, accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 274 of 2010

Shiv Lochan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.C. Yadav

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Art.
226-Writ
jurisdiction-person
invoking
extraordinary jurisdiction must be with
clean hand-clean hearted-concealment
of dismissal of earlier petition as well as
Special Appeal-dis entitled the petitioner
for any sympathy-petitioner also guiltyof filing false affidavit-only dismissal will
not be substantial justice-but dismissal
of writ petition with exemplary cost of
Rs.25000/-proper.

Held: Para 10

A litigant who has approached this Court
in extra ordinary equitable jurisdiction
with unclean hands, his conduct makes
him liable to pay an exemplary cost for
abusing the process of the Court besides
wasting precious time of the Court which
could have been utilized for other more
delinquent
employee
serving
cases.
Moreover, he is also guilty of swearing a
false affidavit. Thus the petitioner must
be saddled with the liability of heavy
cost so that in future such thing may not
recur.
Case Law discussed:
(2006)2 SCC 541, 2003(Suppl.) 3 SCR 352,
AIR 2005 SC 3110, AIR 2005 SC 3330, JT
2004(1) SC 88, AIR 1964 SC 345, (2003)9 SCC
401.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is not only a frivolous and
mischievous petition but also apparently
the petitioner has approached this Court
with unclean hands by concealing the
material facts.

2. Though the writ petition has been
drafted in an innocuous manner, a simple
reading of paragraphs 4 and 5 shows that
he was initially appointed as Assistant
Teacher in Maharana Pratap Purva
Madhyamik Vidyalaya Punapar Bhatauli,