# Suman v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Writ A No. 8312 of 2021
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suman-v-state-of-u-p-ors-47353
- **Pages:** 7

## Headnote

A. Constitution of India - Article 341 and
342 - OBC List and Scheduled Caste list -
Nature and its extent - List of backward
classes is maintained by States of the
Union individually. It is not akin to lists of
Scheduled Castes or Tribes which are
notified
by
a
Presidential
Order
promulgated in terms of the provisions
made in Articles 341 and 342 of the
Constitution. (Para 8)
B. Service law - Constitution of India -
Article 16 - Reservation - Marriage in
another State - OBC certificate issued by
the State, where birth took place - It's
non-acceptance by the State, where the
woman married - Validity - Held, benefits
of reservation cannot be obtained by
virtue of marriage - Caste as is well
106 INDIAN LAW REPORTS ALLAHABAD SERIES
settled
is
determined
by
birth.
The
identification of a person as belonging to a
particular caste or social class has an
unbroken and undeviating connect with
the family of the individual - A certificate
issued by an authority in Rajasthan was
rightly not accepted by the respondents as
certifying the petitioner as belonging to a
backward class recognised by the State of
U.P. (Para 9, 10 and 11)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

9 All. Suman Vs. State of U.P. & Ors.
105
uncertainty. Those families, thus, stand on
a completely distinct footing from others.
In any case, the aim of the policy as noted
above clearly appears to be to provide some
relief and comfort to the families of those
who serve in the Forces. The restriction of
that clause to those whose spouses are
"currently serving" thus cannot be said to
be either irrational or arbitrary.

10. The Court also bears in mind that
the policy makes adequate provision for a
situation where one of the parent is
physically challenged as well as in respect
of families which are headed by a single
parent thus clearly providing adequate
avenues for the petitioner and other
similarly situate teachers to have asserted
their right to seek consideration. What the
Court seeks to underline is that the policy
as promulgated does provide for situations
where
teachers
are
single
parents
irrespective of whether their spouses are
serving, retired or erstwhile members of the
Forces. The policy similarly introduces
sufficient provisions for situations where
both parents are serving under the State. It
is thus manifest that the policy does not
operate arbitrarily or irrationally.

11. A challenge to a policy measure,
it becomes relevant to note, must be
evaluated bearing in mind the need for a
certain degree of discretion and leeway
being recognised to vest in the executive. A
stipulation made therein would not merit
interference unless it appears to be
manifestly unjust or patently arbitrary.
Courts while exercising their power of
judicial review cannot take over the mantle
of framing policy. That must necessarily be
left to the executive. Courts are obliged to
step in where there is either a failure on the
part of the executive to discharge their
constitutional functions and obligations or
where it is found that a measure adopted by
the State causes grave injustice or operates
harshly from a constitutional standpoint.
The challenge in the instant case fails to
meet that well recognised threshold.

12. The writ petition consequently
fails and shall stand dismissed.
----------
(2021)09ILR A105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 8312 of 2021

Suman ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Shukla, Sri R.P. Mishra, Sri Arvind
Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri Akhilesh Chandra Srivastava

A. Constitution of India - Article 341 and
342 - OBC List and Scheduled Caste list -
Nature and its extent - List of backward
classes is maintained by States of the
Union individually. It is not akin to lists of
Scheduled Castes or Tribes which are
notified
by
a
Presidential
Order
promulgated in terms of the provisions
made in Articles 341 and 342 of the
Constitution. (Para 8)
B. Service law - Constitution of India -
Article 16 - Reservation - Marriage in
another State - OBC certificate issued by
the State, where birth took place - It's
non-acceptance by the State, where the
woman married - Validity - Held, benefits
of reservation cannot be obtained by
virtue of marriage - Caste as is well
106 INDIAN LAW REPORTS ALLAHABAD SERIES
settled
is
determined
by
birth.
The
identification of a person as belonging to a
particular caste or social class has an
unbroken and undeviating connect with
the family of the individual - A certificate
issued by an authority in Rajasthan was
rightly not accepted by the respondents as
certifying the petitioner as belonging to a
backward class recognised by the State of
U.P. (Para 9, 10 and 11)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Vipin Kumar Maurya & 4 ors. Vs St.of U.P. &
3 ors. 2019 (2) ADJ 133
2. Gaurav Sharma Vs St. of U.P.; 2017 (5) ADJ
494 (FB)
3. Sobha Hymavathi Devi Vs Setti Gangadhara
Swamy (2005) 2 SCC 244
4. Sunita Singh Vs St.of U.P; (2018) 2 SCC 493
(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioner, Sri Birendra Pratap Singh,
learned Standing Counsel and Ms. Archana
Singh, learned Additional Chief Standing
Counsel appearing for the Basic Education
Officer.

2. This petition has been preferred
seeking the following relief:-

"i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 09.012021 passed by
respondent no.4 (Basic Education Officer,
Hathras) as contained in Annexure no.1 to
this writ petition.

ii) Issue a writ, order or direction
in the nature of certiorari quashing the
Govt. Order No.1656/68-5-2020 Basic
Shiksha
Anubhag-5,
Lucknow
dated
04.12.2020 (Copy of which is not available
to the petitioner)

iii) Issue a writ order or direction
in the nature of mandamus directing
commanding the respondents to appoint the
petitioner on the post of Assistant Teacher
in pursuance of advertisement dated
05.12.2018 being "Sahayak Adhyapak
Bharti Pariksha-2019"."

3. The petitioner had appeared in a
recruitment
exercise
initiated
by
the
respondents for appointment of Assistant
Teachers. She claimed the benefits of
reservation by virtue of belonging to the
OBC category. By the impugned order
however her candidature has been rejected
with the respondent noting that the
petitioner had furnished an OBC certificate
which bore the name of her husband and
not the father. Additionally, it was noted
that the OBC certificate which carried the
name of her father had been issued by an
authority in the State of Rajasthan and thus
was not liable to be accepted. The
respondents ultimately referring to the
provisions made in a Government Order of
04 December 2020, have consequently held
that the petitioner cannot be offered
appointment.

4. Learned counsel for the petitioner
assailing the aforesaid decision places
reliance upon a judgment rendered by a
learned Judge in Vipin Kumar Maurya
and 4 others Vs. State of U.P. and 3
others1 to submit that merely because the
petitioner originally hailed from Rajasthan
and subsequently married in Uttar Pradesh,
she could not be denied benefits of
reservation as otherwise provided to OBC
candidates. It was then contended that the
Government Order of 04 December 2020
cannot be said to apply since it admittedly
came to be issued not just after the
initiation of the recruitment process but
after the counseling process had come to an
9 All. Suman Vs. State of U.P. & Ors.
107
end. Learned counsel then placed reliance
upon the certificate dated 15 March 2004
issued
by
the
Tehsildar,
Bharatpur,
Rajasthan to contend that the aforesaid
certificate which bore the name of her
father clearly qualified as being in
sufficient compliance with the conditions
which were imposed under the recruitment
notification. It was lastly contended by
learned counsel that even if her candidature
under the OBC category came to be denied
on grounds noted above, it was incumbent
upon the respondents to consider her
candidature in the General category.

5. The Court finds itself unable to
sustain the aforenoted submissions for the
following reasons.

6. Firstly, Vipin Kumar Maurya was
a decision which dealt with the issue of
whether a woman from outside the State of
U.P. could be excluded from a recruitment
exercise initiated by the State. The learned
Judge on the basis of the submissions
which were addressed, proceeded to record
his conclusions in paragraph 58 in the
following terms: -

" 58. In our constitutional scheme
women of this country are otherwise a
homogeneous lot and they cannot be
differentiated unless reasons and materials
exists for their further classification.
Classification based only on residence
would otherwise be permitted only by law
made by the Parliament, which is not the
case here. In such circumstances and for
the reasons disclosed, it is held that Clause
(4) of the Government Order dated
9.1.2007 restricting grant of horizontal
reservation only to the women who are
original residents of Uttar Pradesh as also
specific
stipulations
in
that
regard,
contained in Advertisement No. 14 of 2015
would be contrary to Articles 16(2) and
16(3) of the Constitution of India."

7. It is thus manifest that Vipin
Kumar Maurya strictly speaking was not
dealing with the question which arises in
the instant petition namely of whether a
caste certificate bearing the name of the
husband of a candidate can be considered
as valid for the purposes of certifying the
holder thereof as belonging to the OBC
category. The aforesaid decision principally
dealt with the constitutional validity of the
restriction imposed by the respondents
excluding women from outside the State of
U.P. from participating in the recruitment
exercise.
As
noted
hereinabove,
the
candidature of the petitioner here has not
been rejected on the ground that she
originally hailed from Rajasthan. The
application has been refused solely on the
basis of her failure to furnish a caste
certificate compliant with the requirements
placed under the advertisement.

8. That then takes the Court to
evaluate the claim of the petitioner based
on the certificate issued by the revenue
authority in the State of Rajasthan. It is by
now well settled, that the list of backward
classes is maintained by States of our
Union individually. It is not akin to lists of
Scheduled Castes or Tribes which are
notified
by
a
Presidential
Order
promulgated in terms of the provisions
made in Articles 341 and 342 of the
Constitution. It is also not the case of
parties
that
Article
342
A
of
the
Constitution applied to the recruitment in
question. Dealing with the requirement of
members of the OBC being obliged to
produce
a
certificate
issued
by
the
appropriate State governments in matters of
recruitment, the Full Bench of the Court in
Gaurav Sharma Vs. State of U.P.2 held: -
108 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Before we proceed to rule
upon
the
questions
framed
for
our
consideration, it would be apposite to bear
in mind certain basic precepts. While a
Scheduled Caste or a Scheduled Tribe
comes to be identified and declared as such
by virtue of the constitutional orders
promulgated by Parliament in terms of
Articles 341 and 342 of the Constitution,
the classification of OBC's is a subject
which is left in the province of individual
State Governments. While a Scheduled
Caste or a Scheduled Tribe may also be
mentioned
and
identified
under
the
constitutional orders with reference to a
particular State, it is settled law that the
States can neither expand nor modify any
entry appearing in the two constitutional
orders nor can they by an executive or
administrative order expand upon or read
something into an entry which appears in
the orders promulgated under Articles 341
and 342. OBC's however are identified and
recognized by individual States with
reference to the backwardness of a
particular caste, class or group in that
particular State. Therefore, it logically
follows that a list of OBC's which is
prepared by a particular State cannot have
an over arching or pan-India operation or
effect. Castes which come to be included in
a list of OBC's prepared by a State have to
be necessarily read to mean OBC's in that
particular State alone. The OBC's specified
in Schedule-I to the 1994 Act is, therefore,
a list of castes/communities which are
conferred the status of an OBC in the State
of U.P. alone. This issue does not brook
any debate. However, it is useful to refer to
the following observations which appear in
the judgment of the Supreme Court in
M.C.D. v. Veena6:

"Castes or groups are specified in
relation to a given State or Union Territory,
which zobviously means that such caste
would include caste belonging to an OBC
group in relation to that State or Union
Territory for which it is specified. The
matters
that
are
to
be
taken
into
consideration for specifying a particular
caste in a particular group belonging to
OBCs would depend on the nature and
extent
of
disadvantages
and
social
hardships suffered by that caste or group in
that State.

However, it may not be so in
another State to which a person belongs
thereto goes by migration. It may also be
that a caste belonging to the same
nomenclature is specified in two States but
the considerations on the basis of which
they been specified may be totally
different. So the degree of disadvantages of
various elements which constitute the data
for specification may also be entirely
different. Thus, merely because a given
caste is specified in one State as belonging
to OBCs does not necessarily mean that if
there be another group belonging to the
same nomenclature in other State and a
person belonging to that group is entitled to
the
rights,
privileges
and
benefits
admissible to the members of that caste.
These aspects have to be borne in mind in
interpreting
the
provisions
of
the
Constitution with reference to application
of reservation to OBCs.

xxxxxxxxxxx

xxxxxxxxxxx

A
careful
reading
of
this
notification would indicate that the OBCs
would be recognised as such in the
Government of National Capital Territory
of Delhi as notified in the Notification
dated 20.01.1995 and further for the
purpose of verification of claims for
belonging to castes/communities in Delhi
as per the list notified by the National
Capital Territory of Delhi the certificates
will have to be issued only by the specified
9 All. Suman Vs. State of U.P. & Ors.
109
authorities and certificates issues by any
other authority could not be accepted. The
Government of India has also issued
instructions from time to time in this regard
which indicated that a person belonging to
OBC on migration from the State of his
origin in another State where his caste was
not in the OBC list was entitled to the
benefits or concessions admissible to the
OBCs in his State of origin and Union
Government, but not in the Sate to which
he has migrated. Thus the High Court lost
sight of these aspects of the matter in
making the impugned order in either
ignoring the necessary notifications issued
in
regard
to
classification
of
OBC
categories or in the matter of verification
thereof. Thus the order made by the High
Court in this regard deserves to be
reversed."

9. In view of the aforesaid, this Court
is of the opinion that a certificate issued by
an authority in Rajasthan was rightly not
accepted by the respondents as certifying
the petitioner as belonging to a backward
class recognised by the State of U.P.

10. Insofar as the OBC certificate
bearing the name of the husband of the
petitioner is concerned, the Court finds that
the stipulation of the caste certificate
bearing the name of a parent serves a
salutary and significant purpose. Caste as is
well settled is determined by birth. The
identification of a person as belonging to a
particular caste or social class has an
unbroken and undeviating connect with the
family of the individual. The candidate
must therefore necessarily establish that he
or she was born into a family which
belongs
to
a
backward
class
duly
recognised as such by the appropriate
government. A certificate bearing the name
of the parent thus serves the purposes of
enabling the respondents to ascertain and
verify the actual caste of the holder thereof
as existing at the time of birth.

11. While it is well settled that
benefits of reservation cannot be obtained
by virtue of marriage, the Court may only
extract the following passage from the
decision of the Supreme Court in Sobha
Hymavathi Devi v. Setti Gangadhara
Swamy3:-

"10. What then remains is the fact
that the appellant though assigned the caste of
her father Murahari Rao, namely, the Sistu
Karnam community, had married a tribal
belonging to the Bhagatha community. On
the basis of this marriage, it is argued that she
must be taken to have acquired membership
in the community of her husband and
consequently treated as a member of that
community. It is in that context that the
decision in Horo [(1972) 1 SCC 771 : AIR
1972 SC 1840] was relied on. It is also
contended that the decision in Horo [(1972) 1
SCC 771 : AIR 1972 SC 1840] related to an
election dispute and consequently, the ratio of
that decision should govern the present case.
We have already indicated that there is
nothing to show that the marriage of the
appellant with Appala Raju was sanctioned or
approved by the elders of the Bhagatha
community or the Panchayat concerned or
was in tribal form or that the formalities
attending such a tribal marriage were
observed and the marriage was performed
after obtaining the approval of the elders of
the tribe. Even otherwise, we have difficulty
in accepting the position that a non-tribal who
marries a tribal could claim to contest a seat
reserved for tribals. Article 332 of the
Constitution speaks of reservation of seats for
Scheduled Tribes in Legislative Assemblies.
The object is clearly to give representation in
the legislature to Scheduled Tribe candidates,
110 INDIAN LAW REPORTS ALLAHABAD SERIES
considered to be deserving of such special
protection. To permit a non-tribal under cover
of a marriage to contest such a seat would
tend to defeat the very object of such a
reservation. The decision of this Court in
Valsamma Paul v. Cochin University [(1996)
3 SCC 545 : 1996 SCC (L&S) 772 : (1996)
33 ATC 713] supports this view. Neither the
fact that a non-backward female married a
backward male nor the fact that she was
recognised by the community thereafter as a
member of the backward community, was
held to enable a non-backward to claim
reservation in terms of Article 15(4) or 16(4)
of the Constitution. Their Lordships after
noticing Bhoobum Moyee Debia v. Ram
Kishore Acharj Chowdhry [(1865) 10 MIA
279] and Lulloobhoy Bappoobhoy Cassidass
Moolchund v. Cassibai [(1879-80) 7 IA 212 :
ILR 5 Bom 110] held that a woman on
marriage becomes a member of the family of
her husband and thereby she becomes a
member of the caste to which she has moved.
The caste rigidity breaks down and would
stand as no impediment to her becoming a
member of the family to which the husband
belongs and to which she gets herself
transplanted. Thereafter, this Court noticed
that recognition by the community was also
important. Even then, this Court categorically
laid down that the recognition of a lady as a
member of a backward community in view of
her marriage would not be relevant for the
purpose of entitlement to reservation under
Article 16(4) of the Constitution for the
reason that she as a member of the forward
caste, had an advantageous start in life and a
marriage with a male belonging to a
backward class would not entitle her to the
facility of reservation given to a backward
community. The High Court has applied this
decision to a seat reserved in an election in
terms of Article 332 of the Constitution. We
see no reason why the principle relating to
reservation under Articles 15(4) and 16(4)
laid down by this Court should not be
extended to the constitutional reservation of a
seat for a Scheduled Tribe in the House of the
People or under Article 332 in the Legislative
Assembly......"

12. Reiterating the aforesaid position
in law in Sunita Singh v. State of U.P4.,
the Supreme Court succinctly observed: -

5. There cannot be any dispute that
the caste is determined by birth and the caste
cannot be changed by marriage with a person
of
Scheduled
Caste.
Undoubtedly,
the
appellant was born in "Agarwal" family,
which falls in general category and not in
Scheduled Caste. Merely because her husband
is belonging to a Scheduled Caste category,
the appellant should not have been issued with
a caste certificate showing her caste as
Scheduled Caste. In that regard, the orders of
the authorities as well as the judgment of the
High Court cannot be faulted.

13. Regard must be had to the fact
that in Sunita Singh, the Supreme Court
was dealing with a caste certificate which
came to be issued based on the caste of the
husband. It was in the aforesaid backdrop
that it held that the caste certificate was
invalid. It is thus evident that it was to
avoid such situations and claims that the
respondents
insisted
upon
the
caste
certificate bearing the name of the parent of
the candidate. The aforesaid stipulation has
neither been challenged by the petitioner
nor can it be described as being arbitrary or
superfluous.

14. The Court additionally shudders
to imagine the enormous burden that would
stand placed upon a recruiting body before
whom caste certificates such as the one
produced by the petitioner here were placed
in support of claims for extension of
9 All. Pragati Dwivedi Vs. State of U.P. & Ors.
111
reservation benefits. In all such cases, the
recruiting agency would then have to
independently verify the family origins of
each such candidate in order to ascertain
whether the individual was born in a social
class to which benefits under Article 16 of
the Constitution stand conferred. Ms.
Archana Singh, learned counsel, apprises
the Court that the present recruitment was
undertaken to fill up 69,000 posts of
Assistant
Teachers.
Learned
counsel
informs the Court that 146060 candidates
participated in the selection process. The
facts as noticed above underscore the
enormity of the avoidable and unnecessary
obligation which would stand placed on the
recruitment agency. In fact, placing such an
onus on the recruiting body may also have
a deleterious effect on the paramount
requirement of completing a selection
process connected with appointment to
public posts within a defined timeline. The
Court in view of the aforesaid facts is of the
considered
view
that
there
is
no
justification
for
such
an
additional
responsibility being legally foisted upon the
respondents.

15. The challenge to the Government
Order of 4 December 2020 on grounds as
urged by learned counsel, pales into
insignificance in light of what has been
held and in any case cannot be viewed as
imposing a burden or otherwise ushering in
a position which would be either legally
unsustainable or one which could not have
been recognised to exist irrespective of its
promulgation.

16. Insofar as the submission of
learned counsel with respect to the
candidature
of
the
petitioner
being
considered under the General category is
concerned, the Court notes
that no
foundation in support of the aforesaid
submission stands laid in the writ petition.
The petitioner has not disclosed the
qualifying marks which were obtained by
the last admitted candidate under the
General category to enable the Court to
ascertain whether she could have claimed
an appointment without the benefits of
reservation being extended to her.

17. The writ petition consequently
fails and shall stand dismissed.
----------
(2021)09ILR A111
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 12623 of 2020

Pragati Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Pandey

Counsel for the Respondents:
C.S.C., Sri Bajrang Bahadur Singh, Sri
Krishna Kumar Chand, Sri Satya Prakash
Singh

A.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Ch. II Reg. 1 -
Appointment - Post of Lecturer in Music
(Instrument) - Selection held by the
Board,
however,
the
Management
contended that the said post is for Music
(Instrument-Tabla) - Under the statute,
an institution would be recognized by the
Education Board for teaching in Music
(Vocal) and Music (Instrument) and not
for
teaching
a
particular
musical
instrument or a particular branch of vocal
or instrumental music - The institution
was granted recognition by the Education