Narendra Kumar vs New Okhala Industries Development Authority and Others

Yashwant Varma, J.—Heard Sri H.P. Dubey, learned counsel appearing in support of this petition and Sri Ramendra Pratap Singh who has appeared for the contesting respondents. Consequent to the exchange of affidavits this petition with the consent of learned counsel for parties has been taken up for final disposal.

The petitioner lays challenge to an order dated 7 May 2007 passed by the second respondent. The order impugned proceeds to hold that the petitioner was not a member of a Scheduled Tribe and that consequently the appointment accorded to him on the assumption of him being a member of a Scheduled Tribe was incorrect and that the petitioner was therefore not eligible to apply for or be appointed to the said post. As a consequence of the above, the second respondent has proceeded to terminate the services of the petitioner.

The undisputed facts which appear from the record are that the New Okhla Industrial Development Authority1 issued an advertisement on 27 May 2003 for appointment of Beldars. The advertisement reserved two posts for Scheduled Tribes. In response to the above advertisement the petitioner also applied and participated in the selection process. The petitioner was called for an interview on 16 June 2003 and upon being declared selected was appointed on 28 June 2003. He is stated to have joined the post of Beldar under the Authority on 5 July 2003 and continued to function as such.

On 7 March 2007 a show cause notice was issued by the Authority calling upon the petitioner to explain why the irregular appointment made in his favour be not declared as void and consequently set aside. The basis for the notice to show cause was that the caste certificate which had been presented by the petitioner had not been issued from the State of U.P. and that consequently the petitioner had concealed material facts and had applied for the post even though he was not eligible. Responding to the notice the petitioner submitted a reply on 16 March 2007 in which the following contentions were taken: (a) the Caste Certificate was dated 20 September 1998 and had been issued by the Tehsildar, Dehradun at a time when the said territory continued to be a part of the State of U.P.; (b) The State of Uttaranchal subsequently came to be created by bifurcation of certain territories of the State of U.P.; (c) the petitioner while responding to the advertisement and filling up the application form had clearly disclosed his permanent address as being Village Matakmajri, Post Office Kulhal, District Dehradun, Uttaranchal - 248148; (d) The advertisement did not restrict applications to be submitted only by permanent residents of the State of U.P. Accordingly, it was prayed that the proceedings by dropped. On 7 May 2007, the second respondent proceeded to pass the impugned order by holding that on 6 June 2002 the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 20022 came to be promulgated and that the caste of the petitioner did not find mention in the said notification. Accordingly the second respondent as noted above held that the petitioner was not eligible for the post and consequently terminated his services.

Sri Dubey, learned counsel appearing in support of the petition has submitted that the impugned order suffers from complete non-application of mind inasmuch as no material facts had been concealed by the petitioner while applying for the post. It was submitted that the application form clearly disclosed the permanent address of the petitioner which ex facie established that he was a resident of the State of Uttaranchal. The non-application of mind by the second respondent, Sri Dubey would submit, is further evident from the fact that he proceeded to rely upon the Ordinance, 2002 dated 6 June 2002 which admittedly enumerated the "Other Backward Classes" in the State of U.P only and did not relate to Scheduled Tribes at all. This, Sri Dubey submits obviously because the list of Scheduled Tribes was liable to be notified by a Presidential Order referable to the provisions of Article 342 of the Constitution of India.

Sri Ramendra Pratap Singh, learned counsel appearing for the contesting respondents has on the other hand sought to rely upon the various pleas as taken in the Counter Affidavit filed in these proceedings to contend that the petitioner was not eligible for being appointed as Beldar. Sri Singh however could not dispute the fact that the notification of 6 June 2002 and which formed the very foundation of the impugned order related to Other Backward Classes and not to Scheduled Tribes.

When this petition was initially taken up for consideration on 23 May 2007, an interim order came to be passed in the following terms.

"Shri Dhananjay Awasthi has appeared for respondent No. 1 and 2 only. He prays for and is allowed two weeks time to file a counter affidavit. Two weeks thereafter is allowed for rejoinder affidavit.

The Counsel for the petitioner contends that advertisement was issued for scheduled castes and scheduled tribes and the petitioner who is a member of scheduled tribe applied and was appointed on 28.06.2003. The counsel for the petitioner contends that the petitioner has been continuing for last about more than three years and by the impugned order dated 07.05.2007 now his services are being terminated on the ground that he does not belong to scheduled tribe.

The learned counsel for the petitioner contends that petitioner is a member of the scheduled tribe which is clear from annexure-3 to the writ petition i.e. list of scheduled castes and scheduled tribes. He submits that there was no such condition in the advertisement that only residents of the U.P. can apply against the advertisement.

In view of the facts of the present case and submissions made, the petitioner has made out a prima facie case for grant of interim relief.

Let a counter affidavit be filed within two weeks.

List on 9.7.2007.

In the meantime, the impugned order dated 7.5.2007 shall remain stayed."

The Authority chose to challenge the above interim direction by preferring a Special Appeal3. This appeal came to be dismissed as not maintainable on 12 August 2010 with a Division Bench making the following observations:

"Heard Shri Zafar Naiyer, Additional Advocate General assisted by Shri J.K. Tiwari, Standing Counsel for the appellants. Shri S.C. Verma appears for the petitioner-respondent.

This Special Appeal has been preferred against the interim order dated 23.5.2007 in Writ Petition No. 24404 of 2007 passed by learned Single Judge, by which he has stayed the order impugned in the writ petition terminating petitioner-respondent''s services on 7.5.2007, on the ground that the certificate produced by him, that he belongs to Scheduled Tribe, was issued prior to the bifurcation of the State of U.P. and establishment of the State of Uttrakhand. The Chief Executive Engineer, Noida was of the opinion that the Scheduled Tribe ''Buksa'' is not notified as Scheduled Tribe in the State of Uttar Pradesh.

Shri Zafar Naiyer has relied upon a Division Bench judgment of this Court in M.K. Bajpai Vs. State of U.P. and Others, , in which it was held that where valuable right of appellant is affected by the interim order, the Special Appeal against an interim order is maintainable. He has also relied upon the judgment in State of U.P. and Others Vs. Desh Raj, in which the Supreme Court has held that the High Court should not have allowed the writ petition on the date of preliminary hearing.

In the present case, the appointment was given to the petitioner-respondent by the Noida authorities. The reply given by the petitioner to the notice was not considered, except in stating that he is not a resident of the State of U.P.

We are informed that the counter and rejoinder affidavits have been exchanged in the writ petition.

The interim order is not of such a nature, that may cause any irreparable loss, or harm to the Noida authorities. The application for vacating the interim order is still pending.

The interim order passed by learned Single Judge does not have the trapping of a judgment, nor does it irreparably harm the interest of the Noida.

The Special Appeal is not maintainable and is accordingly dismissed with observations that the stay vacation application or if learned Single Judge finds it appropriate, the writ petition itself, should be decided very expeditiously."

On 30 March 2015, this Court noticed that consequent to the dismissal of the special appeal the interim order passed by a learned Single Judge on 23 May 2007 continued to operate but found that the respondents had not complied with the same. Accordingly the proceedings were adjourned to be listed again on 16 April 2015. However the learned counsels do not dispute that the interim order of this Court did not stand complied with and prayed that the matter be finally disposed of in light of the submissions on merits advanced and noticed above.

The petitioner is stated to belong to the "Buksa" tribe which is specified as a Scheduled Tribe under the Presidential Order issued by virtue of Article 342 of the Constitution of India. Upon creation of the State of Uttaranchal, a separate Presidential Order is stated to have been issued on 9 November 2000 pursuant to which "Buksa" was classified as falling amongst Scheduled Tribes in relation to the State of Uttaranchal also. Consequently, this Court finds that the "Buksa" tribe stands classified as a Scheduled Tribe both in the State of U.P. as well as in the State of Uttaranchal. More importantly and which aspect has not been considered or alluded to by the respondents is that the caste certificate of the petitioner is dated 29 September 1998 and had been issued by the Tehsildar, Dehradun at a time when the said territory formed part of the State of Uttar Pradesh. In any view of the matter, it was a caste certificate which had been issued prior to the promulgation of the presidential order under Article 342 of the Constitution of India for the State of Uttaranchal. This Court finds that the second respondent has completely failed to take into consideration any of the pleas which stood enumerated in the reply of the petitioner dated 16 March 2007. The non-application of mind is stark and evident when the impugned order rests the decision on an ordinance dated 6 June 2002 which admittedly was confined to the classification of "Other Backward Classes" in the State of U.P. The Ordinance, 2002 dated 6 June 2002 was not a Presidential Order with respect to Scheduled Tribes referable to Article 342 of the Constitution and obviously therefore could not have formed the basis for deciding the eligibility or otherwise of the petitioner. In light of the above, this Court is of the opinion that the above factors when taken into consideration clearly render the impugned order unsustainable.

Accordingly, this petition shall stand allowed. The impugned order dated 7 May 2007 is hereby quashed. The petitioner shall be entitled to all consequential reliefs. It is however, left open to the respondents to proceed in the matter afresh if so advised, and in such an eventuality fresh proceedings may be drawn up and the respondents may proceed in accordance with law and after affording due opportunity of hearing to the petitioner.

The writ petition stands allowed in the above terms.

1Authority

2Ordinance, 2002

3Special Appeal No. 743 of 2007 [New Okhla Industrial Development Authority through Secy. & Anr. v. Narendra Singh]