M.K. Mukherjee, C.J. - (1.) RESPONDING to an advertisement issued by the Government of Uttar Pradesh Ram Singar Yadav, the Appellant before us, applied for the job of a Sub -Inspector of Police. As his name did not find place in the list of successful candidates, he filed a writ petition before a learned Judge of this Court averring that he was a member of the backward class and, even though amongst the candidates of his class he had secured the highest marks, he had been illegally and unjustly denied appointment.
(2.) IN contesting the writ petition the Respondents contended that the question whether the Appellant belonged to backward class or not did not arise as he himself had in his application seeking employment specifically stated that he would appear as a candidate of the general category and that he had penned through the column in the application form, which was ear -marked to indicate whether the candidate was of backward class and intended to appear as such. In other words, according to the Respondents, the Appellant did not apply for the job claiming himself to be a member of the backward class. Consequently, it was submitted, the appellant's case was considered along with the candidates of the general category and as he was unsuccessful he was not given employment. After hearing the parties, the learned Judge rejected the writ petition on a finding that as the Appellant had applied for the job as a candidate of the general category, and not as a candidate of the reserved category belonging to backward class, he could not claim appointment even if his contention that he obtained highest marks amongst the candidates of backward category was true. Hence this special appeal at his instance.
(3.) MR . Yadav, the learned Counsel appearing for the Appellant, did not deny the fact that the Appellant had applied for the post as a candidate of the general category. But he contended that as along with the application the Appellant had filed a certificate to indicate that he was a member of the backward class, the Respondent were duty bound to treat him as a candidate of that class, notwithstanding that the fact that he had waived such a right, and offer him the job as he had secured the highest marks amongst the candidates of that class. Relying upon the decision of the Supreme Court in the case of Basheshar Nath v. Commissioner of Income -tax : AIR 1959 SC 149, Mr. Yadav urged that the fundamental rights incorporated in Part III of the Constitution of India could not be awaited by a citizen and therefore the Respondents ought to have recognised the right of the Appellant, as a citizen of the backward class, more particularly when it was within their knowledge.;