Khilendra Singh vs Union of India, Ministry of Agriculture through Secretary and Others

CIVIL APPEAL NO. ___19862_____ OF 2017 (Arising out of Special Leave Petition (Civil ) No.14201 of 2011)

Khilendra Singh .... Appellant

Versus

Union of India Ministry of Agriculture Through Secretary & Ors. ….Respondents

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

2. The Appellant applied for appointment to the posts of

Subject Matter Specialist (Crop Protection & Crop

Psychology) in Vivekananda Parvatiya Krishi Anusandhan

Sansthan, Almora. The Appellant belongs to “Jaat” caste

which was falling within the category of Other Backward

Classes (OBCs) in the State of Uttar Pradesh. The Tesildar,

Thakurdwara, Moradabad (U.P.) issued a certificate in favour

of the Appellant stating that he belongs to Other Backward

1|Page Classes on 22nd June, 2007. The Appellant was appointed on

2nd January, 2008 in a post reserved for OBCs. A show-cause

notice was issued to the Appellant asking him to explain as to

why his appointment should not be cancelled as the

community to which he belongs is not found in the Central

List of OBCs. The Appellant submitted his explanation on 6th

November, 2010. An inquiry was conducted and on the basis

of the recommendation of the Inquiry Committee, the

services of the Appellant were terminated on 20th November,

2010. He approached the High Court of Uttarakhand at

Nainital by filing Writ Petition challenging the order of

termination. The Writ Petition was dismissed vide judgment

dated 24th February, 2011, the legality of which is assailed in

the above Appeal.

3. The National Commission for Backward Classes was

constituted by the National Commission for Backward

Classes Act, 1993 (Act 27 of 1993). Section 9 of the Act

empowers the Commission to examine requests for inclusion

of any class of citizens as a backward class in the lists and

hear complaints of over-inclusion or under-inclusion of any

2|Page backward class in such lists and tender such advice to the

Central Government as it deems appropriate. Section 2(c)

defines “Lists” as follows:

(c) “lists” means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India

4. By a proceeding dated 10th September, 1993 the Government of

India finalised the Central List of OBCs for each State. A common

List for the State of Uttar Pradesh was annexed to the said

proceedings in which the caste of “Jaat” was not included. The

matter pertaining to the inclusion of “Jaat” in the Central List of

OBCs for the States of Uttar Pradesh, Madhya Pradesh, Haryana

and Rajasthan came up for consideration before the Commission

in the year 1997. The National Commission for Backward Classes

recommended inclusion of “Jaat” caste in the OBCs only for the

State of Rajasthan and not the other three States. On the basis of

the power of review that was conferred on the National

Commission for Backward Classes, the matter was examined

afresh. The National Commission for Backward Classes

conducted hearings in Delhi to consider the request of “Jaat”

3|Page caste in the Central List of OBCs for nine States including the State

of Uttar Pradesh. The National Commission for Backward Classes

advised the Central Government not to include the “Jaat” caste/

community in the Central List of OBCs. While rejecting the

recommendation made by the National Commission for Backward

Classes, the Central Government issued a notification including

“Jaat” caste/ community in the Central List of OBCs for the States

of Uttar Pradesh/ Uttarakhand and seven other States in 2014.

5. A perusal of the facts that are stated in the preceding paragraph

on the basis of the counter affidavit filed by the National

Commission for Backward Classes would show that “Jaat” caste/

community is in the Central List of OBCs for the State of

Uttarakhand from 2014. The Central List of OBCs prepared for the

States of Uttar Pradesh in 1993 did not include the “Jaat” caste/

community. The State of Uttarakhand was formed in 2000. By a

Resolution passed in 2010, the National Commission for Backward

Classes resolved that till the Central List for the State of

Uttarakhand was finalized, the List that was in operation in the

State of Uttar Pradesh will be followed for appointment to the

Central posts reserved for OBCs. The advertisement and

selection in this case was made in the year 2007 when the caste to

4|Page which the Appellant belongs i.e. “Jaat” was not in the Central List

for Uttar Pradesh.

6. We are not in agreement with the reasons given by the High

Court while dismissing the Writ Petition. It was held in the

impugned judgment that the List prepared by the State of

Uttarakhand would be applicable for appointment to Central

posts. We approve the final conclusion of the High Court that the

Appellant was not entitled for appointment in the post reserved

for OBCs, though for different reasons as stated supra.

7. The Appeal is dismissed accordingly. No costs.

........................................J. [S.A. BOBDE]

..……................................J. [L. NAGESWARA RAO]

New Delhi;

November 28, 2017.

5|Page NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 19859-19860 of 2017 (Arising out of Special Leave Petition (Civil ) Nos.18584-85 of 2012)

Union of India & Ors. .... Appellants

Versus

Kamal Kishore & Ors., Etc. ….Respondents

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

2. The writ petitions filed by the Respondents seeking

appointment to the post of Constable G.D. in Central Reserve

Police Force (CRPF) in the category of Other Backward

Classes (OBCs) were allowed by a learned Single Judge of

the High Court of Uttarakhand at Nainital. The Appeals filed

by the Union of India were dismissed by a Division Bench.

The Appellants have approached this Court challenging the

correctness of the said judgment of the High Court.

1|Page

3. An advertisement was issued on 24th July, 2010 duly

published in daily newspaper Uttar Ujala inviting applications

for appointment to the post of Constable G.D. in the CRPF

from Indian citizens residing in the States of Uttar Pradesh and

Uttarakhand. 78 vacancies were notified out of which nine

were reserved for OBCs. 13 backlog vacancies of OBCs were

also included in the notification. The Respondents who

belong to Saini, Momin (Ansar), Gujjar and Kahar communities

applied for being considered for appointment to the posts

reserved for OBCs. They qualified in the written examination

and appeared before a medical board for medical

examination. Their names were not included in the final list

that was prepared for appointment. On enquiry, they found

that their names were shifted to the general category from the

OBC category on the ground that the castes to which they

belong did not find place in the OBCs List for the Central

Government services for Uttarakhand State as per “Swamy’s

Compilation on Reservations and Concessions” book. They

could not be appointed on the basis of the marks they

obtained in the general category.

2|Page

4. The Respondents filed Writ Petitions in the High Court of

Uttarakhand seeking issuance of Mandamus for commanding

the Appellants to appoint them to the post of Constable G.D.

in CRPF against the post reserved for OBC candidates of

Uttarakhand. The Appellants filed a counter affidavit in the

High Court in which it was stated that the Respondents were

not entitled to be considered for appointment in the posts

reserved for OBCs as the castes to which they belong were

not included in the List of OBCs for Central Government

services, Uttarakhand State as per “Swamy’s Compilation on

Reservations and Concessions” book. The learned Single

Judge of the High Court of Uttarakhand at Nainital allowed the

Writ Petitions vide judgment dated 11th October, 2011

by relying upon a judgment of the High Court in Deepak

Kumar versus Gurukul Kangri University, Haridwar1. It was

also held that there is no dispute about the fact that the castes

to which the Respondents belong are OBCs in the State of

Uttarakhand. The Appellants could not succeed in convincing

the Division Bench of the High Court that the judgment of the

learned Single Judge warranted interference.

1 CWP No.1768 of 2011

3|Page

5. Pursuant to the judgment of this Court in Indra Sawhney

versus Union of India2, the Government of India decided to

implement reservation of 27% in civil posts and services in

favour of OBCs. On the recommendations made by an Expert

Committee, a Central List of OBCs was prepared for each

State. The Central List of OBCs prepared for the State of Uttar

Pradesh included the castes of the Respondents. The State of

Uttarakhand was created in the year 2000. In the judgment of

Deepak Kumar (supra) relied upon by the learned Single

Judge in this case, a reference was made to a letter dated 28th

July, 2011 issued by the National Commission for Backward

Classes. It was stated in the said letter that the Central List for

OBCs for the State of Uttarakhand was under process and that

till it was finalized, the List for Uttar Pradesh will be

applicable for appointment to Central posts in the State of

Uttarakhand. The National Commission for Backward Classes

has filed a counter affidavit in these Appeals supporting the

Respondents. The Commission stated in the affidavit that the

List of OBCs for the State of Uttar Pradesh will enure to the

benefit of those residing in Uttarakhand for appointment to

services under the Union of India till the Central List of OBCs 2 (2001) 1 SCC 168

4|Page for Uttarakhand is finalized. It was further stated that by a

Resolution dated 8th December, 2011, the Central

Government notified the Central List of OBCs for the State of

Uttarakhand which consisted of 84 castes.

6. Ms. Indu Malhotra, learned senior counsel appearing for the

Union of India relied upon a proceeding dated 12th March,

2007 which was filed along with the rejoinder to contend that

there was only one caste included in the Central List for the

State of Uttarakhand. She submitted that all the other OBCs

were included in the Central List only in 2011 and as the

selections in the present case were conducted in 2010, the

Respondents whose castes were not in the list of OBCs cannot

be considered in the posts reserved for OBCs. We are not in

agreement with the said submission as a perusal of the

proceeding dated 12th March, 2007 would show that it

pertains to inclusion/ amendments in the Central List of OBCs

in respect of various States. There is no doubt that one caste

Rai-Sikh (Mahatam) was shown in the proposed Entry at serial

No.1. It means that the caste was included by the proceeding

as an OBC. It does not mean that there was only one caste

falling within the category of OBCs in the State of Uttar

5|Page Pradesh. The position as it existed pertaining to reservation

to OBC posts in Uttarakhand is explained by the National

Commission for Backward Classes. It is clear from the

affidavit filed by the National Commission for Backward

Classes that a decision was taken in 2010 to apply the Central

List prepared for the State of Uttar Pradesh to the State of

Uttarakhand till the List of OBCs for Uttarakhand was finalized.

The List was finalized in 2011. There cannot be any doubt that

the Respondents belong to the castes which were included in

the Central List of OBCs for the State of Uttar Pradesh and

were entitled to be considered for the posts reserved for

OBCs in the advertisement that was issued on 24th July, 2010.

There was some confusion about the applicability of the Lists

of the OBCs prepared by the States of Uttar Pradesh and

Uttarakhand for implementing reservation in the State’s civil

posts. Those Lists have no relevance for appointment to

services under the Union of India.

7. Before concluding, it is necessary to mention that the

Respondents were deprived of their consideration to the

posts reserved for OBCs only on the ground that the castes to

which they belong did not find a place in “Swamy’s

6|Page Compilation on Reservations and Concessions” book. This

practice of relying upon private books for the purpose of

defeating the rights of citizens is deprecated. The Union of

India ought to have referred to the Resolutions of the National

Commission for Backward Classes and the Central List that

were prepared by the Government of India from the official

publications. For no fault of theirs, the Respondents were not

considered for appointment as Constables G.D. in CRPF in

the year 2010.

8. We uphold the judgment of the High Court and direct the

Appellants to consider the Respondents for appointment as

Constables G.D., CRPF in the posts reserved for OBCs in the

advertisement dated 24th July, 2010. The Appellants are

directed not to deny the appointment to the Respondents on

the ground that they are now over-aged provided they fulfil

the condition of fitness.

9. For the aforementioned reasons, the Appeals are dismissed.

........................................J. [S.A. BOBDE]

..……................................J. [L. NAGESWARA RAO] New Delhi;

November 28, 2017.

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