Shama Parveen vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

According to the pleadings raised by the petitioner, its her case that she is a permanent resident, she contends that she is resident of Mohalla Nai Basti, Ward No.13, Jaspur, District Udham Singh Nagar. It is her case in the writ petition, that the family of the petitioner had resided at the said place, however, since prior to her birth on 10.08.1986, i.e. at Jaspur District Udham Singh Nagar, in order to fortify the aforesaid facts that she happens to be a permanent resident of the State. She places reliance on the Permanent Resident Certificate No. 11269, issued in her favour on 29.05.2007 in pursuance to the Government Order No.2588/one-4/S.P./2001. The permanent resident certificate thus issued in favour of the petitioner is still valid, and stands issued in her favour by competent authority which is annexed as annexure No.1 to the writ petition being that of 29.05.2007. Hence, it is not the bone of contention or the controversy, as far as the instant writ petition is concerned that petitioner is a permanent resident of State of Uttarakhand.

The actual dispute which is involved for adjudication in the present writ petition is that the petitioner who claims herself to be belonging to a Caste called as "Chhipi", which happens to be an OBC Caste belonging to the Muslim community. Her case in the petition is that the said Caste is being recognized as OBC Caste as per Entry 19 of Schedule-I, which has been made applicable in the State of Uttarakhand and since she being a permanent resident of the State, she ought to have been issued with the Caste Certificate of OBC, so as to enable her to take the benefits, as are available to the reserved category candidates as per laws of reservation.

In fact her case is also that considering the aforesaid backdrop that since she was already accorded with the Caste Certificate No. A974 on 27.03.2008. Apart from the educational background which she has narrated in the writ petition, she has submitted that the OBC Caste Certificate when it was issued to her it was compared and it was also counter signed by the Tehsildar, Jaspur, Udham Singh Nagar as well as the Sub Divisional Magistrate, Kashipur on 27.03.2008. But all of a sudden, by virtue of the impugned communication dated 24.09.2018, as received by the petitioner on her Whatsapp message from the office of the Respondent Nos.2 & 3, which has been inferred and concluded that the Caste Certificate which stood granted in favour of the petitioner would be deemed to be treated as have been cancelled. The message as send on the whatsapp of the petitioner, which is impugned in the petition is quoted here under :-

"Your E-District

Application No-

UK02DOM0600/1800200

04 Your Application Has

Been Rejected"

its case of the petitioner that by virtue of the said communication her application for the grant of caste certificate as well as the application for the grant of permanent resident certificate has been rejected.

However, on scrutiny of the impugned order which is under challenge, it is very difficult to conclude as to what was the reason, on did the respondent Nos.2 and 3 intend to communicate in relation to the rejection of applications for grant of OBC Certificate and caste certificate despite the fact that the permanent resident certificate already stood granted in favour of the petitioner, but since the OBC Certificate has been treated to have been cancelled/rejected. It is the case of the petitioner that she would be deprived of her appointment as against the post of Lecturer (English) which she contends to have otherwise succeeded after participating in the selection process in pursuance to the advertisement issued on 04.09.2018 as an OBC Candidate. With the aforesaid situation, she contends that the mode adopted for cancellation of Caste Certificate and rejection of application for grant of it, was absolutely arbitrary and in derogation of the principle of natural justice because once the Caste Certificate already stood granted to her and considering the fact that the permanent residence certificate of the petitioner still continues to subsist then in that circumstances, the petitioner ought to be considered to be belonging to the said Caste being the permanent resident of State of Uttarakhand.

In the short counter affidavit of the respondent Nos. 2 & 3 they have come up with the case that the petitioner does not satisfy with the conditions of the Government order 02.04.2013, hence her application was rejected. However, this plea taken by the respondent was in fact qualifying the grounds, which is not depicted in the order impugned. The reason assigned by the respondent is that as per the said G.O. referred above it was the petitioner who should be permanent resident of the State prior to 09.11.2000 in the undivided State, this fact too has been pleaded that she was residing in the territory of Uttarakhand, even prior to 09.11.2000, as her grandfather was residing in the State ever since 10.08.1986, when he had purchased the property in the State.

As against the impugned order dated 24.09.2018, the petitioner had preferred the present writ petition and this Court initially at admission stage, by way of an interim order granted on 04.10.2018, had directed the respondents to provisionally issue the Caste Certificate, which would abide by the final decision of the writ petition. In compliance of the interim order dated 04.10.2018, it is an admitted case of the respondents that the provisional Caste Certificate No.270 was issued in favour of the petitioner on 08.10.2018, as would be apparent from document placed on record by the petitioner in her rejoinder affidavit as Annexure No.5, but the said document though it does not refer the period for which it would be treated to be valid, but since it was made as subject matter to the decision of the writ petition, it has to be determined in the light of the present order which is being passed.

Having gone through the impugned order herein and the arguments as extended by the learned Standing Counsel, this Court is of the view that the impugned order dated 24.09.2018, rejecting the application of the petitioner for issuance of the caste certificate cannot be sustained in the eyes of law for the reason being that it does not reflect from the impugned order that prior to passing the order of rejection of the application of the petitioner, she was heard and the order does not reflect that as a consequence of the communication to the rejection of the application for grant of Caste Certificate what would be the consequence to earlier Caste Certificate which already stood issued in favour of the petitioner by the Tehsildar, which was duly endorsed by the Sub Divisional Magistrate. Apart from it, on scrutiny of the impugned order it also does not reflect the reason or application of mind by respondents which contributed for rejection of the application of the petitioner for the grant of the Caste Certificate.

Considering the contingency which is being faced by the petitioner now on account of the impugned order, which is creating an impediment because she stands selected for the post of Lecturer (English) and she has to join her services by 07.06.2019 as argued by counsel for petitioner, and for the said purpose she would be necessarily requiring to submit all the relevant testimonials which includes the Caste Certificate and the permanent resident certificates, along with other essential documents.

In such an eventuality and in the peculiar circumstances which has emerged in the instant case, which involves the issue of career of the petitioner, it is hereby directed that the provisional Caste Certificate dated 08.10.2018, which has been earlier granted provisionally in pursuance to the interim order dated 04.10.2018 which according to the argument of the petitioner was valid for six months only, it is hereby directed that the provisional certificate as issued, would be treated to be extended for a further period of six months from the date of passing of today's judgment.

Furthermore it is directed that the respondent Nos. 2 & 3, would reconsider the application of the petitioner for grant of the Caste Certificate or permanent resident application as the case may be in the light of the pleading which has been raised in the writ petition and a direction is given to take a fresh decision on the same as per law, after providing her an effective opportunity of hearing as its rejection would have a civil bearing, within a period of two weeks from the date of presentation of the certified copy of this order. Considering the emergent contingency as pleaded, her joining as English Lecturer as scheduled for 07.06.2019, it would not be declined on the ground that she has not been able to produce the Caste Certificate, which she can always be supplied later on after, it is being provided permanently to her by the respondents on reconsidering the application of the petitioner for the same. However, it is made clear that the joining of the petitioner as Lecturer English would still remain subject to the decision to be taken by the respondent Nos. 2 & 3 on the application of the petitioner for the grant of Caste Certificate or Permanent Resident Certificate as the case may be in pursuance to today's order.

Subject to the above observations, the writ petition stands allowed. The impugned order dated 24.09.2018 (Annexure 7 to the writ petition) is quashed. The respondent No.3 is directed to reconsider the application of the petitioner for the grant of Permanent Caste Certificate or Permanent Resident Certificate within a period of two weeks from the date of presentation of the certified copy of this order.

Let the certified copy of this order be issued learned counsel for the parties by 30.05.2019 on payment of usual charges.

However, there would be no order as to cost.