High Court
Case Details
Court No. - 34 Case :- WRIT - A No. - 400 of 2023 Petitioner :- Jai Prakash Nayak Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Krishna Mohan Misra Counsel for Respondent :- C.S.C.,Avneesh Tripathi Hon'ble Ajit Kumar,J.
Legal Reasoning
From perusal of the report submitted by the Tehsildar concerned it is apparent that there is reference of same caste certificate. It is further stated that the aforesaid caste certificate, which was cancelled earlier had already been stayed by the Lucknow Bench of this Court in Writ Petition No. 10683 of 2014. It is unfortunate that despite of the afore-mentioned fact in the knowledge of the District Magistrate, Mau about the passing of the order in Writ Petition No. 10683 of 2014 and specifically in view of the fact that the caste certificate in question is subject matter of that writ petition, wholly illegally, the District Magistrate, Mau, is writing the letters to the University. In the facts and circumstances of the case, District Magistrate, Mau is directed to file his personal affidavit in the matter within ten days from today. Put up as fresh on 8.2.2023. Till the next date of listing, no coercive action is taken against the petitioner." 7. A compliance affidavit has been filed by the District Magistrate, Mau, Sri Arun Kumar in which vide para 4 it is admitted that the said writ petition is pending consideration before the Lucknow Bench and the order passed by the Tehsildar cancelling the caste certificate of the petitioner has been stayed. Paragraph 4 of the affidavit is reproduced hereunder: "4. That it is relevant to point out before this Hon'ble Court that petitioner was issued Caste Certificate No. 62109500082 on 08.07.2009. The aforesaid caste certificate was cancelled along with other certificates by the Office Letter dated 16.06.2014 of the Tehsildar, Ghosi, Mau in pursuance of the Office Letter dated 17.12.2013 of District Social Welfare Officer, Mau in view of the Order dated 17.12.2013 of the District Scrutiny Committee. Against which, Writ Petition No. 10683 of 2014, Upendra Kumar Nayak & 48 others Vs. State of U.P. & 2 others filed before this Hon'ble Court Bench at Lucknow; in which the Hon'ble Court was passed interim order on 28.10.2014 and directed in the order dated 28.10.2014 as follows: "It is contended that caste certificate issued to the petitioners has been cancelled by the Tehsildar without any authority of law inasmuch as the power is vested in the District Level Committee in view of the judgment of the Hon'ble Apex Court in the case of Kumari Madhuri Patil vs. Addl. Commissioner, Tribal Development and others. 1994(6) SCC 241. Prima-facie from a perusal of the record, there appears to be force in the submission and the matter requires scrutiny. Learned Standing Counsel representing the State respondents may file counter affidavit within four weeks. Petitioners will have two weeks thereafter for filing rejoinder affidavit. List after expiry of the aforesaid period. In view of the facts and circumstances of the case, effect and operation of the impugned orders contained in annexures no. 5 & 7 to the writ petition respectively shall remain in abeyance." A copy of Letter dated 16.06.2014 of the Office of Tehsildar, Ghosi, Mau is being filed herewith and marked as Annexure No. PA-1 to this affidavit." 8. Sri Avneesh Tripathi, learned counsel for the University has passed on the instructions received from the University dated 09.01.2023 wherein the Registrar has come to state that the Executive Council has come to resolve that the appointment of the petitioner on the post of Assistant Professor, Civil Engineering Department would abide by the final outcome of the petition being Misc. Bench No. 10683 of 2014 pending before the Lucknow Bench of this Court. Sri Tripathi submits that as a consequence of this stand taken by the Executive Council of the University, the petitioner would continue to function as Assistant Professor, Civil Engineering Department of the University and no more any issue remains or survives as far as appointment and continuation of the petitioner is concerned. Thus, he submits that since the University has disclosed its stand in favour of the petitioner, nothing survives to continue this petition and the petition has accordingly rendered infructuous. 9. Having perused the order of this Court, the order of stay passed by a Division Bench of this Court and instructions passed on by Sri Tripathi for the University, it is now clear that the petitioner would continue to function as Assistant Professor, Civil Engineering Department of the University and shall be paid his regular salary, however, his appointment will abide by final outcome of Misc. Bench No. 10683 of 2014 pending before the Lucknow Bench of this Court. 10. Thus, no order is further required to be passed and University is expected to abide by its stand taken in the instructions. 11. With the aforesaid observations, this petition stands disposed of. Order Date :- 13.3.2023 IrfanUddin Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad
Arguments
1. Heard Sri H.R. Mishra, learned Advocate assisted by Sri Krishna Mohan Misra, learned counsel for the petitioner, Sri Avneesh Tripathi, learned counsel for the respondent University and Sri Govind Narain Srivastava, learned Standing Counsel for the State. 2. The petitioner before this Court has come up with a prayer that a direction be issued in the nature of mandamus to allow him to continue, may be provisionally, on the post of Assistant Professor, Civil Engineering Department in the Harcourt Butler Technical University (for short 'University'). 3. It transpires from the pleadings as have come to be raised that the petitioner has been selected and appointed vide order dated 28.12.2021 as an Assistant Professor in the Department of Civil Engineering in the University and thus in pursuance of the order of appointment he submitted his joining and has continued to function as such. However, it further transpires that on some verification inquiry conducted by the University, the District Magistrate intimated the University about the cancellation of caste certificate of Scheduled Tribe category of the petitioner by the Tehsildar. 4. Relying upon said report furnished by the District Magistrate concerned, the Registrar of the University issued notice to the petitioner on 27.07.2022 requiring him to furnish a valid caste certificate and hence this petition. 5. The grievance of the petitioner is that once the cancellation of the caste certificate order by the Tehsildar has come to be stayed by a bench of this Court at Lucknow under its order dated 28.10.2014 and the petitioner is party to the misc. petition being Misc. Bench No. 10683 of 2014 which has been brought on record as Annexure No. 6 to this petition, the University was not justified in issuing any such notice. 6. Taking cognizance of the matter, this Court passed a detailed order on 10.01.2023 requiring the District Magistrate to file personal affidavit stating about the status of caste certificate of the petitioner. The order passed by this Court dated 10.01.2023 is reproduced hereunder: "Heard learned counsel for the parties and perused the record. It is argued by Sri H.R. Mishra, learned Senior counsel that in spite of the order passed by the Division Bench of the Lucknow Bench of this Court in Misc. Bench No.10683 of 2014 (Upendra Kumar Nayak & 48 Ors vs. State of U.P. and 2 Ors), which is continuing even today, a letter dated 14.12.2022 had been written by the University to the petitioner, asking the valid caste certificate. The order passed in the aforesaid writ petition is quoted as under:- "It is contended that caste certificate issued to the petitioners has been cancelled by the Tehsildar without any authority of law inasmuch as the power is vested in the District Level Committee in view of the judgment of the Hon'ble Apex Court in the case of Kumari Madhuri Patil vs. Addl. Commissioner, Tribal Development and others. 1994(6) SCC 241. Prima-facie from a perusal of the record, there appears to be force in the submission and the matter requires scrutiny. Learned Standing Counsel representing the State respondents may file counter affidavit within four weeks. Petitioners will have two weeks thereafter for filing rejoinder affidavit. List after expiry of the aforesaid period. In view of the facts and circumstances of the case, effect and operation of the impugned orders contained in annexures no. 5 & 7 to the writ petition respectively shall remain in abeyance." On the other hand, it is argued by learned counsel appearing on behalf of the respondent-University that the letter in question had been written by the University to the petitioner pursuant to the letter dated 16.8.2022, written by the District Magistrate, Mau. Copy of the aforesaid letter is placed before this Court. In the aforesaid letter there is a reference of the caste certificate dated 8.7.2009 being Caste Certificate no.62109800082.