Paras v. State of Uttarakhand & Ors.

Mr.K.S.Bora Advocate & Mr. M.K.Ray, Advocate, learned counsel for the petitioners. Mr. K.P.Upadhyay, learned Additional C.S.C. for the respondents. (2) Writ Petition (M/S) No. 1385 of 2009. Pankaj Kumar, S/O Shri Shanti Swaroop, R/O A-34, BHEL, Ranipur, Haridwar. Vs. … Petitioner.

#1. State of Uttarakhand through Secretary Ministry of Health and Family Welfare.

#2. Mahanidesek Swasthya Evam Parivaar Kalyan Vibhag, Dehradun.

#3. Uttarakhand Technical University, Dehradun through its Registrar.

#4. District Magistrate/Collector, District Haridwar. 5. Tehsildar, Tehsil Haridwar, District Haridwar. 6. V.C.S.G.Govt. Medical College, Srinagar, Distt. Pauri Garhwal, Uttarakhand through its Principal. …Respondents. Mr. S.KShandilya, Advocate, learned counsel for the petitioner. Mr. K.P.Upadhyay, learned Additional C.S.C. for the respondents. 2 Date May 12, 2010. Hon’ble B.S.Verma, J. Since the controversy involved in all these three writ petitions is similar, therefore, for the sake of convenience all the writ petitions are being decided by this common order. In all these petitions, the petitioners have sought a writ in the nature of mandamus directing the respondent authority to issue caste certificate to the petitioners. Besides the petitioners in all the petitions except Writ Petition (M/S) No. 1385 of 2009 have also sought quashing of the order passed by the respondent no. 4-Tehsildar concerned, whereby the applications of the petitioners for issue of caste certificate have been rejected on the ground that the petitioners are not domicile of the State of Uttarakhand, as prescribed by Government Order No. 1301/XXX(2)/2006 dated June 22, 2006. In Writ Petition No. 1385 of 2009 (M/S), the petitioner has sought a writ in the nature of certiorari to quash the impugned order dated 01-09- 2009 passed by the respondent No.4- District Magistrate Haridwar, whereby the application of the petitioner for grant of caste certificate has been rejected on the ground that the petitioner is not a domicile of the State of Uttarakhand, as prescribed by Government Order No. 1301/XXX(2)/2006 dated June 22, 2006. In Writ Petition No. 1359 of 2009(M/S), according to the petitioner, the petitioner is a domicile/permanent resident of Pantnagar, Tehsil Kichha and he was issued domicile certificate by Sub- Divisional Magistrate Rudrapur. The petitioner belongs to Scheduled Caste “Chamar”. His father was an employee of Pantnagar University of Agriculture and Technology since 1964 to 1997 and after his retirement, he has been permanently residing at Pantnagar. The grievance of the petitioner is that although he is member of Scheduled Caste, the caste certificate is not being granted to the petitioner and his career is at stake. In W.P.M.S. No. 1607 of 2009, petitioner Anil Kumar has stated that he is member of Scheduled Caste ‘Dhobi’ and is a permanent resident of District Udham Singh Nagar since he is residing 3 there since his birth. The father of the petitioner had been an employee of Pantnagar University since 1971 and he is permanently residing in Pantnagar since then. The grievance of the petitioner is that the respondent authority is not issuing caste certificate to the petitioner due to which the future of the petitioner is at stake. In W.P.M.S. No. 1385 of 2009, the petitioner Pankaj Kumar has stated that he is a permanent resident of District Haridwar and he belongs to Scheduled Caste ‘Chamar’. But due to non-issuance of caste certificate by the respondent authority, he is likely to suffer irreparable loss in his career. On behalf of the respondents, counter affidavit has been filed. According to the respondents, the petitioners are original domicile of the State of Uttar Pradesh and they are not entitled to the benefit of reservation of Scheduled Caste in view of the Government Order No. 1301/xxx(2)/2006 dated 22-6-2006. The petitioners are not the domiciles of the State of Uttarakhand. The applications of the petitioners have been rightly rejected as they are the permanent domicile of the State of Uttar Pradesh and not the State of Uttarakhand. In reply, it has been urged on behalf of the petitioners that the case of the petitioners is altogether different and they are covered by the Government Order No. 736/XXX(2)/200 dated May 27, 2004, wherein the State Government has issued directions pertaining to reservation in the State service, educational institutions etc. The petitioner in WPMS No. 1359 of 2009 has filed amendment application and has annexed copy of the affidavit filed by him before the authority concerned. In the affidavit, the petitioner has stated that the father of the petitioner Sri Sirpat is living in Pantnagar since 1957. In paragraph no. 3, the petitioner has stated that his father was a resident of village Parapati, Tehsil Kerakat, district Jaunpur (U.P.) In the counter affidavit, the Tehsildar has supported the impugned order and it is stated that the petitioner’s father is a domicile of district Jaunpur, State of U.P. and the petitioner is not entitled for issuance of caste certificate. 4 The grievance of the petitioners in the present writ petitions is that the caste-certificate has been refused by the respondent authority on the ground that the petitioners are not the permanent resident of the State of Uttarakhand. I have heard learned counsel for the parties and perused the material placed before this Court. Learned counsel for the petitioners has submitted that the petitioners were already granted permanent resident certificate by the Up Ziladhikari concerned, therefore, it is established in each case that they are residing permanent in the State of Uttarakhand, when this State was a part of undivided State of Uttar Pradesh. Learned counsel for the petitioners also contended that the only requirement of the G.O. No.736/XXX(2)/2004 dated 27-5-2004 is that the persons belonging to Scheduled Caste/Scheduled Tribes who have been permanently residing in the State of Uttarakhand since before the creation of this State, as prescribed in paragraph 2 of the said Government Order are entitled to reservation and other relevant facilities, therefore, the petitioners are entitled reservation against Scheduled Caste/Scheduled Tribes quota under the State services. With reference to Writ Petition No. 1359 of 2009, Paras Vs. State and others, it has been contended by the learned counsel for the petitioner that the affidavit filed by the petitioner was not properly considered and finding that the father of the petitioner is a domicle of Uttar Pradesh has wrongly been derived by the Tehsildar. On behalf of the State, learned Additional Chief Standing Counsel has contended that the alleged permanent resident certificates were issued in favour of the petitioners as per Government Order No. 2588/F-4/Sa.Pra./2001, while the scrutiny pertaining to issuance of Scheduled Caste, Scheduled Tribes and other backward class has to be made in a particular manner as prescribed under the G.O. No. 1301/xxx(2)/2006 dated June 22, 2006 and since the petitioners are not the original resident (Mool Nivasi) of Uttarakhand their claims have been rightly rejected by the Tehsildar concerned. It would not be out of place to mention here that when the claims were made by those persons of Scheduled Caste/Scheduled 5 Tribes category for reservation in the government services, who were residing within the territory of Uttarakhand within the undivided State of Uttar Pradesh, at the time of its creation, by the Government Order No. 736/XXX(2)/2004, dated May 27, 2004, the State of Uttaranchal has resolved the controversy and the Government has taken a decision that the members of the Scheduled Caste/Scheduled Tribes, who are living in the State of Uttaranchal at the time of U.P. Reorganization Act, 2000 would be entitled for issuance of the caste certificate, if they are residing permanently in Uttaranchal. According to the petitioner Paras in WPMS No. 1359 of 2009, his father is residing in Pantnagar since 1957 and the petitioner is also in service in Pantnagar University. The order passed by the Tehsildar is that the petitioner is not a domicile of the State of Uttarakhand. Tehsildar has relied upon the Government Order No. 1301/XXX(2)/2006 dated 22-6-2006 referred to in the order. It is pertinent to mention here that in the counter affidavit filed on behalf of the respondent-authorities, there is no specific denial that the petitioners are the members of Scheduled Caste. The only challenge of the respondents is with regard to the permanent residence. So far as the contention of the learned State counsel that the petitioners cannot be deemed to be permanent residents of the State of Uttarakhand is concerned, the same is not at all acceptable for the reasons- firstly, that the G.O. No. 1301/xxx(2)/2006 dated 22-6-2006, nowhere provided that the earlier Government Order of 2001 on the basis of which the permanent resident certificates have been issued in favour of the petitioners or any other Government Orders issued earlier stood superseded or recalled and secondly, in the Government Order No. 736/XXX(2)/2004 dated May 27, 2004 relied upon by the petitioners, the only requirement is that the members of the Scheduled Caste and Scheduled Tribes should have been residing permanently in the State of Uttarakhand since before the creation of this State. This Government Order in the last line of paragraph 1 specifically provides that the persons who are residing since before its creation in the State of Uttarakhand shall be treated Mool Nivasi (domicile) of the Uttaranchal State, which has been created from a part of Uttar Pradesh. 6 Thirdly, while in paragraph 1, the expression ‘Mool Nivasi’ has been used but in the second paragraph, the requirement is that the petitioners should have been permanently residing in the State of Uttaranchal (now Uttarakhand) since before its creation. The petitioners fulfill this requirement and the force of this Government Order dated 27-5-2004 has not been questioned by the respondents. Lastly, it has not been denied from the side of the respondents that the category of the Scheduled Caste of petitioners is not covered by the Fifth Schedule appended to the Uttar Pradesh Reorganisation Act,

#2000. In view of the discussion above, I am of the considered view that the petitioners have substantiated their claim for issuance of Caste Certificate before the authorities concerned and in view of the Government Order No. 736/XXX(2)/2004, dated May 27, 2004, the petitioners are entitled for issuance of caste certificate in their favour. The writ petitions are therefore deserve to be allowed. All the three writ petitions are allowed. The impugned orders are accordingly set aside. The Tehsildars concerned are directed to issue Caste Certificate to the petitioner in each writ petition within a period of four weeks from the date of production of certified copy of this order. Costs easy. RCP (B.S.Verma,J.) 7 8