Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Reservation Judgement Dated 5.10.2005 Partly Stayed In Special Appeal.
JUDGEMENT TITLE : State Of U.P. & Others Vs. Hari Ram Yadav On 10/11/2005 By Allahabad High Court
CASE NO : SPECIAL APPEAL NO. 1308 OF 2005
CORAM : Hon'ble Syed Rafat Alam,J. And Hon'ble Sudhir Agarwal,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.32

Special Appeal No.1308 Of 2005
State Of U.P. & Others Vs. Hari Ram Yadav And Others

And

Special Appeal No.696 Of 2005
State Of U.P. & Others Vs. Mannu Ram And Others And Others

And

Special Appeal No.697 Of 2005
State Of U.P. & Others Vs. Shiv Prakash Yadav And Others


Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.


We Have Heard Shri S.M.A. Kazmi, Learned Additional Advocate General For The Appellants, Shri Yatindra, Learned Counsel Appearing For Respondent No.1 And Shri Ashok Khare, Learned Senior Counsel Appearing For The Newly Added Respondent Nos.2 To9.

Shri Ashok Khare, Learned Senior Counsel Appearing For Respondent Nos.2 To 9 Raised A Preliminary Objection Regarding Maintainability Of The Special Appeal And Submits That The Writ Petition Filed By Respondent No.1 Has Been Dismissed By The Hon'ble Single Judge. The Ultimate Order Passed By The Hon'ble Single Judge Is In Favour Of The Appellant And, Therefore, The Prayer To Set Aside The Judgment And Order Dated 5.10.2005, Made In The Present Appeal On The Part Of The Appellant, Is Not Permissible And The Present Special Appeal Is Not Maintainable, At The Instance Of The Appellant, State Of Uttar Pradesh. He Has Relied Upon A Division Bench Judgment Of This Court In The Case Of All India New Bank Of India Employees Federation And Others Vs. Punjab National Bank And Others, (1996) 1 ESC (All) 441 Wherein The Division Bench Has Held That No Appeal Lies Merely Against The Finding Recorded In The Judgment Rejecting Some Contention Of A Party.

However, Learned Additional Advocate General Appearing On Behalf Of The Appellant Submits That Though The Prayer, In The Special Appeal, Has Been Coined Very Widely, But He Is Confining The Relief Only, To The Extent, That The Judgment Is Being Challenged In So Far As It Has Interpreted Sub Section 6 Of Section 3 Of The U.P. Act No.IV Of 1994 And Has Given A Different Meaning, Which Adversely Affects The Interest Of The Appellant. He Is Not, At All, Aggrieved Against The Ultimate Order Passed By The Hon'ble Single Judge Dismissing The Writ Petition And That Part Should Remain Intact, But The Way In Which Sub Section 6 Of Section 3 Of The U.P. Act No.IV Of 1994 Has Been Read By The Hon'ble Court, It Virtually Has Nullified And Made The Said Provision Redundant, Which Ultimately Affects The State Since The Law Of Legislature Has Been Made Ineffective, Thus He Confines His Relief Only To That Extent. He Submits For This Purpose, The Special Appeal Is Maintainable. Learned Additional Advocate General Has Relied Upon The Judgment Of The Hon'ble Apex Court In The Case Of J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. Collector Of Central Excise, 1998 (99) ELT 8 (S.C.) Wherein The Hon'ble Apex Court In Para 27 Has Clearly Stated As Follows: -
"The Respondents Cannot Be Precluded In This Appeal From Canvassing For Reversal Of A Finding Contained In The Impugned Judgment Despite Its End Result Being In Their Favour."

The Hon'ble Apex Court, In The Above Case, Has Relied Upon Its Constitution Bench Judgment In The Case Of Ramanbhai Asabhai Patel Vs. Dabbi Ajitkumar Fulsinji, 1965 (1) SCR 712 Wherein The Constitution Bench Had Also Taken Similar View.

We Have Considered The Rival Submissions Advanced By The Parties And Are Of The View That The Present Special Appeal, To The Extent, The Learned Additional Advocate General Has Confined His Submissions, Is Maintainable. Obviously, The Hon'ble Single Judge Has Dismissed The Writ Petition, But, While Dismissing The Same, By Process Of Interpretation Of Sub Section 6 Of Section 3 Of The U.P. Act No.IV Of 1994, The Hon'ble Single Judge Has Laid Down A Law, Which Has To Be Obeyed By The Appellant, So Long As It Continues. In Such Circumstances, It Cannot Be Said That The Appellants Are Not Aggrieved Against The Aforesaid Part Of The Judgment And Have No Right To File This Appeal. If Such Plea Is Accepted, It Would Mean That The Meaning Of The Judgment Would Be Confined Only To The Ultimate Result Of The Case And The Judgment Would Not Mean The Entire Judgment. When Various Issues Are Decided, They Also Constitute The Judgment Of The Court And Some Times, In The Facts And Circumstances Of The Case, The Party, In Whose Favour, Although The Ultimate Result Has Been, Yet It May Get Seriously Affected Due To Some Part Of The Judgment And Can Be Allowed To Maintain Appeal Against Part Of The Judgment, Which Is Against It. In The Circumstances, We Reject The Preliminary Objection Raised On Behalf Of Respondent Nos.2 To 9 And Hold That The Present Special Appeal, To The Extent The Relief Has Been Confined, As Aforesaid By The Learned Additional Advocate General, Is Maintainable.

On The Merit Of The Case, Learned Additional Advocate General Assisted By Shri C.B. Yadav, Learned Chief Standing Counsel Submitted That Similar Provision Came Up For Consideration Before The Hon'ble Apex Court While Considering The Office Memorandum Issued By The Government Of India Providing Reservation For Other Backward Classes. In Indra Swahney And Others Vs. Union Of India And Others, AIR 1993 SC 477 Where Hon'ble Court Held That The Candidates Belonging To Other Backward Classes, Who Have Secured Higher Marks Than General On Account Of Their Own Merit, Are Liable To Be Selected Along With General Candidates And Cannot Be Adjusted Against The Quota Prescribed For Reserved Category Candidates. Any Other View, Will Result In Reverse Discrimination, As It Will Amount To Reservation Of Remaining Vacancies For General Category, Which Is Impermissible. He Further Submits That The Law Laid Down By The Hon'ble Apex Court In The Case Of Indra Swahney And Others Vs. Union Of India And Others (supra) Has Omitted To Have Been Considered By The Hon'ble Single Judge And, Therefore, The Law Laid Down By The Hon'ble Single Judge Interpreting Sub Section 6 Of Section 3 Of The U.P. Act No.IV Of 1994, Is Per An Curium. He Further Submits That Another Single Judge In The Case Of Narendra Pratap Singh And Others Vs. Director General Of Police, U.P. And Others, (2002) 3 UPLBEC 2304 Also Considered Sub Section 6 Of Section 3 Of The U.P. Act No.IV Of 1994 And Took A View That The Reserved Category Candidates, Who Have Secured Higher Mark Than General Category Candidates, Are Entitled To Be Selected As General Category Candidates And Not To Be Adjusted Against The Quota Prescribed For Reserved Category Candidates And The Impugned Judgment, To That Extent, Is Inconsistent With The Aforesaid Judgment Of Another Single Judge. It Is Pointed Out By The Learned Additional Advocate General That The Judgment In The Case Of Narendra Pratap Singh And Others Vs. Director General Of Police, U.P. And Others, (supra) Was Considered By Another Division Bench Of This Court In Civil Misc. Writ Petition No.28209 Of 2005 (Ashutosh Tripathi And Others Vs. High Court Of Judicature At Allahabad And Others) Decided On 16.8.2005 In Which It Has Recorded Its Agreement With The View Taken By The Hon'ble Single Judge In The Case Of Narendra Pratap Singh And Others Vs. Director General Of Police, U.P. And Others, (supra) And, Therefore, The Impugned Judgment Is Also Inconsistent With The Aforesaid Division Bench Judgment Of This Court.

However, Shri Ashok Khare, Learned Senior Counsel Submits That The Judgment In The Case Of Narendra Pratap Singh And Others Vs. Director General Of Police, U.P. And Others, (supra) Did Not Consider Earlier Single Judge Judgment Of This Court In The Case Of Arvind Kumar Singh And Others Vs. State Of U.P. And Others, Writ Petition No.5844 (SS) Of 1999 Decided On 11.2.2002 And A Division Bench Judgment In The Case Of Dinesh Kumar Shukla Vs. State Of U.P. And Another, 2004 (4) AWC 3487 (LB) Wherein A Contrary View Was Taken And, Therefore, The Judgment In The Case Of Narendra Pratap Singh And Others Vs. Director General Of Police, U.P. And Others, (supra) Was Not Correct. He Further States That The Said Judgment Is Also Not Final As Special Appeal No.910 Of 2005 Is Pending. He, Therefore Submits That The Special Appeal Is Liable To Be Dismissed, As The Judgment Passed By The Hon'ble Single Judge Is Correct Considering The Present Scenario Where The Candidates, Belonging To Reserved Category Candidates, Are Being Selected And Appointed Far In Excess To The Quota Prescribed For Them Due To Wrong Interpretation And Application Of Section 3 Of The U.P. Act No.IV Of 1994.

We Have Considered The Rival Submissions Very Seriously And Found That There Are Different Views Expressed In Various Judgments Delivered By The Hon'ble Single Judges And The Division Benches. We Also Noticed That The Law Laid Down By The Hon'ble Apex Court In The Case Of Indra Swahney And Others Vs. Union Of India And Others (supra) Has Not Been Noticed In The Impugned Judgment. Even Otherwise, Considering The Nature Of The Matter, Since The Effect Of The Impugned Judgment Is Very Wide And Will Have Far Reaching Effect, Hence We Are Of The View That This Matter Requires Consideration.

Admit.

No Notice Is Required To Be Issued As Shri Yatindra, Learned Counsel Appears For Respondent No.1 And Shri P.N. Ojha, Learned Counsel Appears For The Other Newly Added Respondent Nos.2 To 9.

Connect And List This Appeal With Special Appeal No.910 Of 2005, Sanjeev Kumar Singh And Others Vs. State Of U.P. And Others.

Learned Additional Advocate General Also Prays For Interim Order, To The Extent, The Law Has Been Laid Down By The Hon'ble Single Judge In The Impugned Judgment, As Contained In Paras 22 And 24 Of The Judgment. He Submits That In Case The Interim Order Is Not Granted, A Number Of Selections, Already Going On, In Which Thousands And Lakhs Of Candidates Are Already Appearing, Would Be Jeopardized And Affected Adversely, And May Result In Irreparable Loss To Those Reserved Category Persons, Who Have Already Applied In Accordance With Law, As It Was Before The Impugned Judgment. Even Otherwise, He Submits That Since The Law, In This Regard, Has Already Been Laid Down Categorically By The Hon'ble Supreme Court, The Same Should Prevail And Must Be Allowed To Continue. The Appellants Thus Urge That The Effect And Operation Of The Judgment, To The Extent, Of Paras 22 And 24 Be Stayed During The Pendency Of This Present Appeal.

Shri Ashok Khare, Learned Senior Counsel Admits That, So Far As Respondent Nos.2 To 9 Are Concerned On Account Of Dismissal Of The Writ Petition, They Would Not Be Adversely Affected, If The Entire Judgment Is Not Stayed.

Considering The Submissions And Looking To The Facts And Circumstances Of The Present Case, As Discussed Above, We Direct That Until Further Order Of This Court, The Effect And Operation Of The Impugned Judgment And Order Dated 5.10.2005, To The Extent, As Contained In Its Paras 22 And 24, Shall Remain Stayed

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