The Allahabad High Court has dismissed a petition seeking 10 per cent reservation under EWS (Economically Weaker Section) in the Higher Judicial Services Examination-2020.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Ajai Tyagi passed this order while hearing a petition filed by Sandeep Mittal.
The writ petition has been filed by the Sandeep Mittal-petitioner, the interim prayer prayed for as follows:-
“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow this application and to stay the effect and operation of the direct recruitment to Uttar Pradesh Higher Judicial Service 2020, impugned notification dated 20.01.2021 passed by respondent no.2, during the pendency of the writ petition.”
The petitioner’s final prayer is as follows :-
“I. Issue a writ, order or direction in the nature of certiorari quashing the impugned notification dated 20.01.2021 passed by the respondent no.2.
II. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 to issue amended notification for 10% reservation for Economically Weaker Sections (E.W.Ss.).
III. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 i.e. Registrar General, High Court of Judicature at Allahabad to decide the representation of the petitioner dated 08.02.2021, 18.02.2021 and 12.04.2021 within some stipulated period.”
The facts of the writ petition are that the petitioner is a practicing advocate and practicing since 18.12.2005 till date in District Court Meerut, U.P.
The respondents issued a notification for Direct Recruitment to Uttar Pradesh Higher Judicial Service, 2020.
The total vacancies notified were 98 and 87 vacancies for direct recruitment out of the same, 18 vacancies are reserved for Scheduled Castes candidates, 01 vacancy is reserved for Scheduled Tribes candidates, 23 vacancies are reserved for Other Backward Class candidates and 45 vacancies are for General Category candidates. 11 unfilled vacancies of reserved category were also notified.
The petitioner applied for the same on 18.02.2021. The experience certificate and character certificate issued by the District Judge are not in dispute. A representation was made by the petitioner by speed post so as to grant benefit to the petitioner belonging to Economically Weaker Sections (E.W.S.) belong to the General Category other than the category of O.B.C, SC/ST.
It is submitted by the counsel for the petitioner that respondents did not take any action on the representation of the petitioner and no information was given.
The petitioner submitted that as per the Constitutional mandate and the amendment in the Constitution, 10% reservation to be provided to the E.W.S General Category candidates. As per the Article 16(6), the Uttar Pradesh Legislative Assembly also passed the bill in the year 2020.
It is also submitted that the same reservation should have been applicable to the High Court also and non providing of such reservation is against the constitutional mandate. Petitioner submits that the Rajasthan High Court which issued notification prior to the notification of the Court earmarked 10% reservation and similar was the case with Punjab and Harayana High Court.
The parity was sought by the petitioner. According to the petitioner, the respondents while recruiting and issuing the notification has committed violation of Article 14 and 16(6) of the Constitution of India and, therefore, has sought a mandamus against the respondents so as to declare the inaction or omission on the part of the respondents issued illegal, arbitrary, mala fide and is manifest error of law.
The petitioner has approached the Court on 11.8.2021 for permitting him to take the examination of U.P Higher Judicial Services. During this period, he has not cleared the preliminary examination. He has contended that from the beginning, the petitioner is eligible for the reservation in Economically Weaker Sections Quota as per the Constitutional Amendment and Legislative Amendment, adopted by the State of U.P.
Counsel for the petitioner submitted that petitioner belongs to the Economically Weaker Sections category. It is also submitted that Rajasthan High Court has provided 10% reservation for Economically Weaker Sections candidates. According to 103rd Amendment of Constitution of India, 10% reservation is provided to the Economically Weaker Sections candidates, under Article 16(6) dated 12.01.2019, hence, petitioner be given benefit of said reservation as per the constitutional amendment and legislative amendment adopted by the State of U.P.
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Ashish Mishra, counsel for the respondents submitted that the Constitutional Amendment, which is brought in the legislation and made part of the Constitution has to be adopted by the High Court.
It is next submitted that the petitioner is seeking reservation which will not be applicable this year i.e notification dated 20.01.2021 because the High Court has taken a view that an advertisement had already been issued before adopting the aforesaid amendment.
Counsel for the petitioner orally submitted that either the petitioner be permitted to take the main examination or he may be given one more chance by raising the age as he would become disqualified next year for being overage.
“We are unable to subscribe to the oral requests of the petitioner. We cannot issue a writ of mandamus where the petitioner has appeared in preliminary examination as general category candidate with open eyes. It is admitted by the petitioner that he never challenged the rules of Uttar Pradesh Higher Judicial Services. It is also the admission of the petitioner that he has not cleared the preliminary examination.
We are unable to accept the submissions of the petitioner. The advertisement issued by the respondents cannot be termed as illegal or arbitrary and against the mandate of the Constitution of India. It cannot be said that the petitioner is discriminated against”
-the Court said.
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“The decision of the Apex Court in Nawal Kishore Mishra and Others Vs High Court of Judicature of Allahabad through its Registrar General and Others, (2015) 5 Supreme Court Cases 479, would apply to the case. The autonomy of the High Court as envisaged under Article 233 to 235 is the basic structure of the Constitution. The State legislature was not permitted to lay down a statutory scheme of reservation, which would govern judicial service and which would be bypassing the constitutional mandate for Articles 233 to 235.
In our case, the High Court in his wisdom had not adopted the said rules for the academic year 2020. We have our sympathy with the candidates but we cannot grant a mandamus to the petitioner to reconsider where the rules are silent”
-the Court held.
“Once the advertisement is out, it would not be just and proper for the authorities to insert any new clause. The Apex Court has also held that change of any condition in the advertisement would be violative of constitutional mandate. Hence, we cannot direct the High Court by way of mandamus to provide reservation benefits to the Economically Weaker Sections category candidates for taking the examination this year. However, we request the High Court of Judicature at Allahabad to adopt the same, if not adopted”
-the Court observed while dismissing the writ petition.