# U.P. Power Corporation Ltd. Lucknow & Anr v. Nitin Kumar & Ors

- **Citation:** (2015) 2 ILRA 793
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-19
- **Case number:** Special Appeal No. 310 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-power-corporation-ltd-lucknow-anr-v-nitin-kumar-ors-43188
- **Pages:** 5

## Headnote

and other Backward Classes) Act 1994Section 3 (6)-Petitioner under OBC quotaparticipated in written examination-getting
much higher marks than last candidates of
General candidate-can not be treated as
reserved candidate-Learned Single Judge
rightly
declined
to
interfere-appeal
dismissed.
Held: Para-14
For these reasons, we are of the view
that there was no error in the judgment
of the learned Single Judge. The learned
Single Judge has upheld the right of the
appellants to carry out short-listing.
However, the appellants have been
faulted for having excluded candidates
belonging to the reserved categories
from the short-list of candidates for the
unreserved posts which has resulted in a
situation where candidates with higher
marks failed to get short-listed for the
unreserved posts merely because they
belong to a reserved category. The view
of
the
learned
Single
Judge
and
directions
which
have
been
issued
consequently do not suffer from any
error.
Case Law discussed:
(2009) 5 SCC 1; 2007 (2) ADJ 150 (DB)2;
2008 AWC 1391

## Text

2 All] U.P. Power Corporation Ltd. Lucknow & Anr. Vs. Nitin Kumar & Ors.
793
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
Special Appeal No. 310 of 2015
U.P. Power Corporation Ltd. Lucknow &
Anr.
 ...Appellants
Versus
Nitin Kumar & Ors.
...Respondents
Counsel for the Appellants:
Sri J.P. Pandey
Counsel for the Respondents:
C.S.C., Sri Siddharth Khare
U.P. Public Service (Reservation for SC/ST
and other Backward Classes) Act 1994Section 3 (6)-Petitioner under OBC quotaparticipated in written examination-getting
much higher marks than last candidates of
General candidate-can not be treated as
reserved candidate-Learned Single Judge
rightly
declined
to
interfere-appeal
dismissed.
Held: Para-14
For these reasons, we are of the view
that there was no error in the judgment
of the learned Single Judge. The learned
Single Judge has upheld the right of the
appellants to carry out short-listing.
However, the appellants have been
faulted for having excluded candidates
belonging to the reserved categories
from the short-list of candidates for the
unreserved posts which has resulted in a
situation where candidates with higher
marks failed to get short-listed for the
unreserved posts merely because they
belong to a reserved category. The view
of
the
learned
Single
Judge
and
directions
which
have
been
issued
consequently do not suffer from any
error.
Case Law discussed:
(2009) 5 SCC 1; 2007 (2) ADJ 150 (DB)2;
2008 AWC 1391
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The special appeal has arisen
from the judgment of a learned Single
Judge dated 16 April 2015.
2. An advertisement was issued by the
Electricity
Service
Commission1
for
recruitment on 2211 posts of Technician
Grade-II (Trainee) Electrical. Of these posts,
the posts reserved for OBC, Scheduled Caste
and Scheduled Tribe candidates were as
follows:
(i) OBC - 597 posts;
(ii) Scheduled Castes - 464 posts; and
(iii) Scheduled Tribes - 44 posts.
3.
Thus, out of 2211 posts that were
advertised, 1105 were reserved. 1106 posts
were unreserved and were to be filled up by
open competition. The selection process
comprised of a written test followed by an
interview. The Commission released a list of
candidates who were declared to be
successful in the written examination on the
basis of which candidates were to be called
for an interview. The Commission called
three times the number of candidates for
interview from each category applying what
is described as a '3x formula'. The petitioners
who filed writ proceedings before the learned
Single Judge were candidates belonging to
the OBC category. Their grievance was that
though
the
last
candidate
from
the
unreserved category had secured lower
marks, none of the petitioners were called for
the interview.
4. In the affidavit which has been
filed on behalf of the Commission, it has
794
 INDIAN LAW REPORTS ALLAHABAD SERIES
been stated that results of successful
candidates were declared for the written
test category-wise. In other words,
candidates belonging to the OBC category
were confined only against the merit list
of the OBC category. Consequently, an
OBC candidate who may have been
meritorious enough to be within the shortlist for the unreserved posts was not
included in the short-list on the ground
that such a candidate could only compete
for a post in the category to which the
candidate
belongs.
Hence,
the
Commission stated that in the process of
short-listing, candidates were short-listed
for interview category-wise. This is clear
from the following averments contained
in paragraph 8 of the affidavit filed by the
Secretary to the Commission in the
special appeal which reads as follows:
"That it is stated that a counter
affidavit on behalf of the appellants was
filed in the aforesaid writ petition. It was
specifically contended on behalf of the
appellants in the said counter affidavit
that the candidates had applied for
selection on the post of TG-II categorywise and as per law, the results of the
successful candidates in the written test
were also declared category-wise and
since the petitioners-Respondents were of
the OBC category and therefore, they can
set up their claims under their own
category and they have no right under the
law to over-lap under the different
category for which they have never
applied. It is, thus, a specific stand was
taken on behalf of the appellants that the
successful candidates were invited for
interview in the ratio of 3 times of the
existing vacancy of their own category in
which they had applied for and since the
petitioners have secured less marks and
therefore, they were out of the zone of
consideration in their own category as the
candidates securing higher marks in their
own category i.e. OBC were available.
The petitioners can not contend for
encroachment of posts which do not fall
under their own reserved category."
5.
The learned Single Judge in the
course of the judgement indicated the
consequence of the procedure of shortlisting
which was followed by the Commission, in
the following observations:
"...The petitioners have been left out
of the field of consideration for being
called in the interview only because there
were a large number of candidates in the
OBC category who had secured higher
marks than the petitioners and by
applying the three times formula it has
resulted in the ouster of the petitioners
from the field of consideration for being
called for interview. On the contrary the
petitioners having secured higher marks
in the written test than the last unreserved
category candidate, were entitled to
compete against the unreserved vacancies/
posts solely by virtue of their higher merit
and they cannot be relegated to take the
seats reserved for the OBC category to
which they belong. OBC candidates
having lower marks than the petitioners
would have to be adjusted against the
seats reserved for OBC..."
6. In the view of the learned Single
Judge, a candidate belonging to a
particular reserved category would be
entitled to be considered for short-listing
in the unreserved category if the position
on merit of a candidate was such as to fall
within
the
number
of
short-listed
candidates in the unreserved category.
Accordingly, a direction was issued by
the learned Single Judge to the appellants
2 All] U.P. Power Corporation Ltd. Lucknow & Anr. Vs. Nitin Kumar & Ors.
795
to apply the formula of shortlisting
uniformly to all categories reserved as
well as unreserved.
7. The Power Corporation and the
Commission are in appeal.
8. The submission which has been
urged on behalf of the appellants is based
on the provisions of Section 3 (6) of the
Uttar
Pradesh
Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act 1994. Section 3(6) provides
as follows:
"(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)"
9. The submission is that the
principle which is enunciated in subsection (6) of Section 3 applies only at the
stage of final selection and not at an
intermediate stage when a short-list of
candidates is drawn up for being called
for interview. At the present stage, it has
been submitted that the appellants were
justified in taking recourse to the process
of short-listing by confining reserved
category candidates to their own category
and necessarily therefore by excluding
them from the unreserved category for the
purpose of shortlisting. That is the
submission which falls for consideration.
10. Section 3 (6) is a statutory
recognition of the principle that if a
candidate
belonging
to
a
reserved
category is selected on the basis of merit
in
open
competition
with
general
candidates, such a candidate is to be
adjusted
not
against
the
vacancies
reserved for the reserved category to
which the candidate belongs but against
the unreserved seats. This proceeds on the
foundation that where a candidate is
meritorious enough to be placed within
the
zone
of
selected
candidates
independent of any claim of reservation
and purely on the basis of the merit of the
candidate, the candidate ought not to be
relegated to a seat against the reserved
category. The simple reason for this
principle is that reservation is a process
by which a certain number of posts or
seats
is
carved
out
for
stipulated
categories such as OBC, Scheduled
Castes and Scheduled Tribes. Unreserved
seats do not constitute a reservation for
candidates belonging to categories other
than
the
reserved
categories.
An
unreserved post or seat is one in which
every individual irrespective of the
category to which the person belongs can
compete in open merit. Hence, the
principle which is embodied in Section 3
(6) is not confined in its application only
at the stage when the final select list is to
be drawn up. If the submission of the
appellants were to be accepted, that would
result in seriously absurd consequences.
As the learned Single Judge noted, in the
present case itself, the petitioners who
belong to the OBC category had in fact
secured higher marks in the written test
than the last short-listed candidate from
the unreserved category. However, they
were sought to be excluded from shortlisting for the unreserved posts only on
the ground that as a candidate who had
declared himself or herself to be of a
reserved category, that candidate would
have to be excluded from shortlisting
from the unreserved category even if on
the basis of the position in merit, such a
796
 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate would otherwise fall in the list
of short-listed candidates in the open or
unreserved category. Such a consequence
would not be permissible in law.
11. The principle of law has been
laid down in the judgment of the Supreme
Court in Andhra Pradesh Public Service
Commission vs. Baloji Badhavath2 in the
following observations:
"One other aspect of the matter must be
kept in mind. If category wise statement is
prepared, as has been directed by the High
Court, it may be detrimental to the interest of
the meritorious candidates belonging to the
reserved categories. The reserved category
candidates have two options. If they are
meritorious enough to compete with the open
category candidates, they are recruited in that
category. The candidates below them would
be considered for appointment in the
reserved categories. This is now a well
settled principle of law as has been laid down
by this Court in several decisions. (See for
example, Union of India v. Satya Prakash3,
SCC Paras 18 to 20; Ritesh R. Shah v. Dr.
Y.L. Yamul4, SCR at pp. 700-701 and
Rajesh Kumar Daria v. Rajasthan Public
Service Commission5, SCC para 9.)"
12. In a decision of a Division Bench
of this Court in Sanjeev Kumar Singh vs.
State of U.P.6, the Division Bench held that
competition commences only at the stage
where all the persons who fulfill the requisite
conditions are short-listed. In that context, it
was also held that a concession in fee or
relaxation in the upper age limit are
provisions not concerned with the process of
selection. The Division Bench observed in
para 53 as follows:
"In a selection which can be termed
as open competition with general category
candidates,
the
candidature
of
the
reserved category candidates as well as
the general category candidates is to be
tested on the same merit and if in that
case a reserved category candidate
succeeds in the open competition with
general category candidates, he would be
placed amongst
the general category
candidates."
13. The judgment in Sanjeev Kumar
Singh (supra) was followed by another
Division Bench of this Court in Shiv
Prakash Yadav vs. State of U.P. In that
case, the learned Single Judge had held
that once a reserved category candidate
had exercised his option to be treated as a
reserved category candidate, the provision
of Section 3 (6) of the Act would not
apply. This view was held to be erroneous
in view of the judgment of the Division
Bench in Sanjeev Kumar Singh's case
(supra).
14.
For these reasons, we are of the
view that there was no error in the judgment
of the learned Single Judge. The learned
Single Judge has upheld the right of the
appellants
to
carry
out
short-listing.
However, the appellants have been faulted
for having excluded candidates belonging to
the reserved categories from the short-list of
candidates for the unreserved posts which
has resulted in a situation where candidates
with higher marks failed to get short-listed
for the unreserved posts merely because
they belong to a reserved category. The
view of the learned Single Judge and
directions
which
have
been
issued
consequently do not suffer from any error.
15.

The
special
appeal
is,
accordingly, dismissed. There shall be no
order as to costs.
--------
2 All] Dalip Singh & Ors. Vs. Vikram Singh & Ors.
797
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal Defective No. 421 of 2015
Dalip Singh & Ors.
 ...Appellants
Versus
Vikram Singh & Ors.
...Respondents
Counsel for the Petitioner:
Sri N.B. Nigam
Counsel for the Respondents:
C.S.C., Sri Rakesh Kumar
U.P. Consolidation of Holdings Act 1953Section 6(i)-Cancellation of consolidation
proceeding-on
ground
of
delay
in
conclusion of proceeding due to dereliction
in duty-learned Single Judge quashed
notification and directed to conclude and
finalize the proceeding itself-whether can
such direction issued? held-'No'-in view of
law developed by Apex Court in Hari Bhajan
Singh case-no individual right of any tenure
holder effected.
Held: Para-7
The principle of law which has been laid
down in the judgment of the Division
Bench and in the judgment of the
Supreme Court is that before persons
have entered into possession of the
holdings allotted to them, they do not
acquire any right, title or interest and
they would not lose their rights by the
issuance of a notification under Section 6
of the Act. That is the position in law.
The
writ
petition
challenging
the
notification under Section 6 of the Act
was not maintainable since there were
no rights enuring to the benefit of the
original petitioners which were taken
away or affected by a notification under
Section 6 of the Act.
Case Law discussed:
2011 AIR SCW 195; 1976 RD 35
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellants are in appeal against
a judgment and order of the learned Single
Judge dated 27 April 2015. The appellants
claim to be tenure holders of Village
Hanspur,
Gutaiyaj
Natthapur,
Tehsil
Puwaya, District Shahjahanpur. The village
was placed under consolidation and a
notification was issued under Section 4 of the
U.P. Consolidation of Holdings Act, 19531
on 5 August 1972. The first, second and third
respondents, who are the original petitioners,
moved
an
application
before
the
Consolidation Officer, Shahjahanpur in
2011-12 nearly forty years after the
commencement of consolidation proceedings
in 1972 and nearly thirty two years after the
framing of a preliminary consolidation
scheme in 1980. The Consolidation Officer
by an order dated 28 July 2012 rejected the
application. Appeals were filed against the
order of the Consolidation Officer. The
Settlement Officer (Consolidation) by an
order dated 12 November 2012 remanded
the proceedings back to the Consolidation
Officer for disposal afresh. On 9 July 2013, a
notification was issued by the Consolidation
Commissioner under Section 6(1) of the Act
cancelling the notification under Section 4 of
the Act. The first, second and third
respondents filed a writ petition seeking to
challenge the legality of the notification
dated 9 July 2013 and also seeking a
mandamus to the consolidation authorities to
conclude the consolidation proceedings
expeditiously. The appellants, who are tenure
holders, were not parties to the proceedings.
The writ petition was allowed by a learned
Single Judge by a judgment and order dated
27 April 2015 in the following terms: