WPMS/2233/2008 of MS MANISHA BHARTI and ANOTHER Vs STATE and OTHERS

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 2233 of 2008 (M/S)

Ms. Manisha Bharti & another …. Petitioners

Versus

The State of Uttarakhand & others

… Respondents

Mr. A. Rab, Advocate for the petitioners. Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the State of Uttarakhand.

13thJuly, 2009

Hon’ble Sudhanshu Dhulia, J.

This writ petition has been filed by the petitioners challenging the order dated 28.9.2008passed by the Principal, Government Medical College, Srinagar Pauri by which the admission granted to the petitioners has been cancelled as the caste certificate which was filed by them was found “forged and fabricated”. The order dated 15.12.2008 of the District Magistrate also refers order dated 6.11.2008 and it appears that this order has been passed in compliance of the order dated 6.11.2008 of the learned Single Judge of this High Court in Writ Petition No. 1969/2008 (M/S). It is the contention of the petitioners that the order dated 15.12.2008 passed by the District Magistrate, Dehradun was never served on the petitioners. In fact before passing order dated 28.9.2008 as well, it is an admitted case that the petitioners were not heard by the Principal or any other authority. The case of the petitioners is that they belong to Scheduled Caste community which is notified as Scheduled Caste under the Constitution (Scheduled Caste) Order, 1950 as “Chamar” and consequently after the creation of State of Uttarakhand under the U.P. Reorganisation Act, 2000, the caste “Chamar” was notified as Scheduled Caste in the State of Uttarakhand as well. The case of the petitioners is that their father was

appointed as X-ray technician on 30.11.1989 in Government Hospital, Mussoorie. His two daughters which are the present petitioners were born on 17.7.1989 and 10.9.1987 respectively at Mussorrie. The petitioners have annexed their birth certificate obtained from the Nagar Palika Parishad, Mussoorie which shows that the petitioners were born on the aforesaid dates at Mussoorie in Uttarakhand. The father of the petitioners who was lab technician in the year 1989, when Mussoorie was part of erstwhile State of Uttar Pradesh, has submitted his caste certificate which he had obtained from district Basti. It is also an admitted case that prior to coming Mussoorie, the father of the petitioners belonged to Basti and as such he had obtained caste certificate from Basti.

Now, apart from the fact that once the petitioners had got admission in the medical college, certain rights accrued to them and vested with the petitioners and, therefore, opportunity of hearing and show cause was absolutely necessary and on this count as well, the propriety of the order dated 28.9.2008 has to be examined. However, what goes to the root of the matter is whether the petitioners can claim caste benefit such as reservation and admission into schools and colleges as member of Scheduled Caste Community. In case this Court comes to the conclusion that these benefits are applicable to the petitioners then in any case this writ petition has to succeed.

Earlier the petitioners had filed writ petition before this Court bearing Writ Petition No. 1969 of 2008 (M/S) wherein it was stated that the admission of the petitioners has been cancelled without showing any cause or opportunity of hearing to them. The father of the petitioners is Scheduled Caste and they are residing in Uttarakhand for last 20 years. The father of the petitioners is Government servant, etc., etc. This writ petition was disposed of by the learned Single Judge by order dated 6.11.2008 with the direction that the petitioners may make fresh representation which shall be decided by the

District Magistrate. The District Magistrate has disposed of the representation of the petitioners stating that the petitioners cannot be given the benefit of the Scheduled Caste in the State of Uttarakhand on the logic that the petitioners derive caste from the father who has caste certificate from Basti which is not part of the State of Uttarakhand and, therefore, any caste benefit at all which can be given to the petitioners can be given only in the State of Uttar Pradesh and not in the State of Uttarakhand. The District Magistrate has cited certain rulings of the Hon’ble Supreme Court, namely, Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and another; (1994) 5 SCC 244, wherein the law laid down by the Hon’ble Supreme Court is that if particular caste is notified as Scheduled Caste or Scheduled Tribe in more than one State, even then the benefit of that caste will be given to the person of that caste only to the State to which they belong as notification of caste by the President is in reference to State which is done in consultation with the Governor of that State and, therefore, the caste benefits can be given only in that State. There can be no dispute regarding aforesaid decision of the Hon’ble Supreme Court which has in fact been reiterated by the Hon’ble Supreme Court in many subsequent cases and it is in fact the law of the land. However, in the present case, the facts are so glaringly different that the course adopted by the District Magistrate, does not seem to be proper course. It is an admitted fact that the petitioners were born in the State of Uttarakhand and have been residing in the State of Uttarakhand for the last 20 years or so. There are Government Orders of the State of Uttarakhand by which one can claim certificate of resident in the State of Uttarakhand, if one is residing in the State of Uttarakhand for the last 15 years and, therefore, the petitioners being not only the ordinary residents of Uttarakhand are in any case liable to claim their caste

benefits from the State of Uttarakhand. Apart from this, distinction has to be drawn in the present case where the complexity of reorganization of State is also an issue.

In Sudhakar Vithal Kumbhare v. State of Maharashtra and others; (2004) 9 SCC 481, case had come before the Hon’ble Supreme Court wherein the appellant who was an original resident of Village Sawargaon, Post Pandhurna, District Chhindwara in the State of Madhya Pradesh, however, after the reorganization of States in the year 1956, the said area of Chhindwara which was originally in the State of Madhya Pradesh became part of the State of Madhya Pradesh. The appellant in that case belonged to Scheduled Tribe called “Halba” which was recognized prior to reorganization as Scheduled Tribe for the Madhya Pradesh and after reorganization when Chhindwara was included in the territory of Maharashtra, the said “Halba” was again recognized as Scheduled Tribe for the State of Maharashtra. It was not dispute in that case that the appellant was born and brought up and educated in the district of Chhindwara. However, subsequently he applied for job in Maharashtra State Electricity Board for the post of Junior Engineer (Civil) against non-reserved vacancy. Further, in the year 1987 the appellant was promoted to officiate as Assistant Engineer (Civil) against reserved vacancy which was reserved for Scheduled Tribe, on the basis of the certificate he had obtained for “Halba” from the State of Madhya Pradesh. This appellant received show cause notice dated 22.8.1988 by the authorities as to why he should not be reverted from the post of Assistant Engineer to that of Junior Engineer as he was not entitled to the benefit of reservation for the Scheduled Tribe in the State of Maharashtra. He gave his explanation and did not find favour with the authority and was actually reverted from the post of Assistant Engineer to that of Junior Engineer. Aggrieved, he filed writ petition under Article 226 before the Bombay High Court which was dismissed and it was held that

the petitioner belong to Scheduled Tribe “Halba” which is though recognized as Scheduled Tribe in Maharashtra but these rights cannot be granted to him since he actually belongs to Madhy Pradesh.

Aggrieved by the order of the Bombay High Court, the appellant preferred an appeal before the Hon’ble Apex Court. The Apex Court referred to the earlier law laid down on the said subject and stated that undoubtedly Scheduled Tribe notified in one State may not be given benefits therefor in another State having regard to the plain expression “in relation to that State” in Article 342 of the Constitution. The Hon’ble Apex Court has referred to the decisions in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India (1994) 5 SCC 244 andU.P. Public Service Commission v. Sanjay Kumar Singh (2003)7 SCC 657.Therefore, para 5 and 6 of the judgment in Sudhakar Vithal Kumbhare case are relevant and quoted below :

“5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, part of which, on States’ reorganization, has come to the State of Maharashtra, was entitled to the benefit of consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, part of which, on States’ reorganization, has come to the State of Maharashtra, was entitled to the benefit of

reservation. It is one thing to say that the expression “in relation to that State” occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that tribe which has been included as Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States’ Reorganisation Act. With view to find out as to whether any particular area of the country was required to be given protection is matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganization

might have agreed for inclusion of the said tribe Halba/Halbi as Scheduled tribe in the State of Maharashtra having regard to the said fact in mind.

6. Here we find that the Maharashtra State Electricity Board acting upon the direction of the State Government has reverted the appellant without referring the matter to the Scrutiny Committee which was not the correct way to deal with the appellant’s case. In fact, in such situation the employer was required to refer the question before the Scrutiny Committee which admittedly had been constituted and established for coming to the matter. We may notice that in Kumari Madhuri Patil Case this Court observed (SCC p. 254, para 13)

13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by parent, since on that date many time the student may be minor. It is the parent or the guardian who appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by parent, since on that date many time the student may be minor. It is the parent or the guardian who

may play fraud claiming false certificate.”

status

Similar observations have been made in Director of Tribal Welfare v. Laveti Giri. This aspect of the matter has been noticed following the observations of this Court in Kumari Madhuri Patil (II) v. Addl. Commr., Tribal Development (SCC at p. 438, paras 3 & 5) and in Punit Rai v. Dinesh Chaudhary (JT at pp. 574-75) : (SCC pp. 221-22, para 40)

“3. As regards prayer (b) read with Direction (iv) of the order of this Court, we too appreciate the inconvenience caused due to vast area of the State. Therefore, instead of one committee of three officers, there will be three Scheduled Tribe/Caste Scrutiny Committees comprising of five members with quorum of three members, as suggested in para 4 of the directions, to take decision. At Pune, Nasik and Nagpur, six Caste Scrutiny Committees for SCs, Denotified Tribes, Nomadic Tribes, Other Backward Classes and the Special Backward Category in existence Mumbai, Pune, Nasik, Aurangabad,. Amaravati and Nagpur would continue to scrutinize the certificates issued by the respective officers and take decision in that behalf. In this regard, it is also suggested by Shri Dholakia learned Senior Counsel for the applicant, that in case any certificate has been wrongfully refused by the certificate issuing authority, the aforestated Committees also would go into the question and decide in that behalf, whether refusal was wrongful and in case it

finds that the refusal was wrongful, they are at liberty to direct the authority to grant the certificate

5. With regard to prayer (d), along with

the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers.”

On the basis of the aforesaid, the appeal was allowed to the extent that the matter was referred to the Scrutiny Committee.

The petitioners have also relied upon the judgment of Hon’ble Supreme Court in Union of India and others v. Dudh Nath Prasad (2000) 2 SCC 20. Dudh Nath’s case (supra) was emphasized for the purposes whether the petitioner was an ordinary resident or not and based on these parameters of the law presently applicable in this area, this Court is also of the considered view that since the petitioners born and brought up in the State of Uttarakhand and are residing for the last 20 years, they have to be considered as ordinary residence of Uttarakhand and, therefore, the benefits including the caste benefits are liable to be given to the petitioners in the State of Uttarakhand.

The matter, such as the present case, had come up before the Division Bench of this Court where the petitioner was born on 19.6.1976 in Haridwar, which is now part of Uttarakhand and his father had joined services in BHEL, Haridwar in the year 1976 and he originally belonged to Scheduled Caste namely “Dhanuk” in district Nalanda in Bihar. He migrated to Haridwar in Uttar Pradesh and gained employment in BHEL. The caste “Dhanuk” is also notified as Scheduled Caste in Uttar Pradesh and this petitioner was

claiming benefit of Scheduled Caste which was notified to them. The Division Bench had to say as follows :

“7. The expression “original resident” ¼ewy fuoklh½ has not been defined anywhere. In the absence of specific definition of this expression, we have to adopt meaningful as well as purposeful and constructive approach to extend construction so as to define this expression to mean such persons who have been and or ordinarily residing in the State of Uttarakhand. One aspect which can be taken in constructing the aforesaid interpretation is to include the period of residence of 15 years so as to connote the purpose and meaning of the expression “original resident” ¼ewy fuoklh½. By adopting the aforesaid approach and in extending the aforesaid construction to the expression “original resident” ¼ewy fuoklh½, we cannot help noticing that in the present case, the petitioner was born in the State of Uttarakhand in the year 1976 to his parents, who had been living in the State before the date. We cannot help noticing the fact also that the petitioner, after his birth, took up his entire education in the State of Uttarakhand and, thereafter applied for selection while residing in the State of Uttarakhand. By no stretch of imagination nor by adopting any plausible stand, can it be argued that such person should not be treated as “original resident” ¼ewy fuoklh½ of Uttarakhand State. Any such argument has to be out rightly rejected.

8. Article 14 of the Constitution of India strikes at any arbitrary action of the executive. It also disapproves taking of stand by the executive

which is not based on objective criteria. The unreasonableness of stand taken by the executive is also not approved by Article 14 of the Constitution. We have no hesitation in holding and saying that the stand taken by the respondent State in the present case to the effect that the petitioner cannot be included in the category of “original resident” is totally unacceptable by us.

9. For the foregoing discussion, the writ petition is allowed. Respondents 1 & 3 are directed to issue caste certificate to the petitioner by treating him bona fide resident of the State of Uttarakhand.”

For these reasons also, the order dated 15.12.2008 of the District Magistrate which he has passed in pursuance of the direction of this Court is not an order in the right perspective of law presently in force in the State of Uttarakhand and is quashed. The order of the Principal, Government Medical College, Srinagar, Pauri in any case cannot stand as the petitioners were rightly given admission as they belong to the Scheduled Caste community. The order of the Principal is in violation of principles of natural justice and fair play and, therefore, is liable to be quashed and is hereby quashed. Another important fact which must be taken note of is that in order dated 28.9.2008 the words used are “forged and fabricated”, however, they have been granted to the petitioners by authorized persons in accordance with law. Therefore, once the caste certificates which have been issued in favour of the petitioners, in view of this Court, in any case are valid certificates because they have not been cancelled, revoked, modified or set aside by any authority and, therefore, there is no good ground for cancelling the admission of the petitioners. The order of the Principal is bad to this extent as well.

In view of the aforesaid, order of the Principle dated 28.9.2008 is set aside. Since the order of the Principal has been quashed, the necessary consequence would be that the admission of the petitioners has to be restored in the medical college. However, for the reasons of prudence and practice, it is directed that the petitioners shall commence their studies of M.B.B.S. Course from the academic session 2009-10 which according to the statement made at the bar by the learned counsels for the parties, will commence in July-August, 2009.

It is also made clear that any fees or expenses which have been deposited by the petitioners in lieu of the earlier admission shall be adjusted for the new academic session.

With these observations, writ petition is allowed.

13.7.2009 Avneet

(Sudhanshu Dhulia, J.)