High Court
Case Details
Court No. - 37 Case :- WRIT - A No. - 10466 of 2022 Petitioner :- Dinesh Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Indra Raj Singh,Islam Ahmad Counsel for Respondent :- C.S.C.,Sunil Kumar Misra Hon'ble Mrs. Sangeeta Chandra,J. 1. Sri Sunil Kumar Misra, learned counsel for the respondents says that inadvertently certain wrong averments have been made in paragraph 3 of the counter affidavit, which may be ignored. 2. 3. The prayer as made orally is accepted. Heard Sri Indra Raj Singh, learned counsel for the petitioner. He has argued that the petitioner was appointed as Conductor with the respondents on 28.12.2007 and he worked to the entire satisfaction of the authorities. After 15 years of his service, a compliant was made to the General Manager, UPSRTC at Lucknow on 20th April, 2022 saying that the petitioner belongs to 'Kahar Jati' which is an OBC and not to 'Gond Janjati' which is a Scheduled Tribe and the petitioner on the basis of a false caste certificate has obtained reservation under Scheduled Tribe category. In pursuance of such complaint being received, no copy of which was given to the petitioner, the respondents asked the SDM, Sadar, Mirzapur to conduct an enquiry and report about the correctness of the caste certificate of the petitioner. The SDM, Sadar, Mirzapur sent a report dated 18.5.2022, no copy of which was given to the petitioner, saying that the petitioner belonged to 'Kahar Jati' which was an OBC. On the basis of such report of SDM, Sadar, Mirzapur based on the report of the Tehsildar, a show cause notice was issued to the petitioner on 17.6.2022. No copy of of the complaint or report of the SDM was sent along with the show cause notice. The petitioner in his reply dated 21.6.2022 asked for copies of complaint and of the report of the SDM. He was informed on 24.6.2022 by the respondents that he may get the copy of the report of SDM from the office of SDM on his own. Copy of such letter sent to the petitioner has been filed at page 29 of the paper book. In pursuance thereof, the petitioner had applied through registered post to the office of SDM, Sadar, Mirzapur for a copy of the report he had sent to his employers. He was not given a copy of such report by the office of SDM but since time was running out to file a reply to the show cause notice, the petitioner had
Legal Reasoning
filed a reply to the show cause notice wherein he stated firstly that some more time should have been granted to the petitioner for giving reply to the show cause notice as he had not been supplied copy of the complaint or of the report of the SDM, nevertheless he was answering to the show
Legal Reasoning
cause notice. It was submitted in his reply that the SDM has submitted a wrong report. The petitioner belongs to 'Gond Janjati' and his caste certificate has not yet been cancelled by any competent authority. The employers had lodged a false complaint against the petitioner because as per Government Order dated 5.1.1996, Government order No.428 dated 26.3.2011 and Government Order No.685 dated 26.3.2011, District Level Caste Scrutiny Committee and Divisional Level Appellate Caste Scrutiny Committee have been formed by the Government in compliance of the order passed by the Hon'ble Supreme Court in Kumari Madhuri Patil vs. Additional Commissioner, 1994 SCC (6) 241. Since the matter of the petitioner has not been referred to the Caste Scrutiny Committee and his caste certificate has not been cancelled by any competent authority, the show cause notice issued against the petitioner on a false complaint should be withdrawn. 4. After such reply to the show cause notice, the respondents have straightaway passed the order dated 6.7.2022 cancelling the appointment of the petitioner as Conductor from the date of such appointment i.e. 28.12.2007. All the dues of the petitioner for having worked for more than 14 years have been forfeited also and a direction has been issued for registration of the FIR and by the order impugned recovery has also been proposed to be made on the salary drawn by the petitioner. 5. Sri Sunil Kumar Misra, learned counsel for the respondents has relied upon his counter affidavit filed on 24.9.2022 wherein it has been stated that after complaint was received with regard to false caste certificate of the petitioner, the respondent no.4 had sent a request to the SDM, Sadar, Mirzapur on 12.1.2022 to examine the validity of the caste certificate issued to the petitioner on 29.1.2004 to avail the benefit of reservation of Scheduled Tribe category in the recruitment of Special Backlog Recruitment Drive of 2007. The respondent no.4 by his letter dated 2nd April, 2022 had again sought verification report from the SDM, Sadar, Mirzapur. The SDM, Sadar, Mirzapur submitted his report on 18.5.2022 enclosing therewith a copy of the report of the Tehsildar dated 14.5.2022 stating that the petitioner belongs to 'Kahar Jati' which is an OBC as his father Sri Tolan Ram was admittedly a 'Kahar'. The petitioner's father Tolan Ram had passed his Intermediate from Mangla Prasad Inter College, Bampur, Prayagraj and his transfer certificate/school leaving certificate showed him as belonging to 'Kahar Jati' which is an OBC. A copy of the report sent by the SDM, Sadar, Mirzapur along with copy of the enquiry conducted by the Tehsildar has been filed as Annexure-1 to the counter affidavit. It has been submitted that on the basis of such report a show cause notice has been issued to the petitioner and the petitioner replied to the same but he did not submit any substantive proof of his belonging to 'Gond Janjati'. Therefore, the respondents came to a conclusion that the petitioner having submitted a false caste certificate, and having obtained benefit of reservation of Scheduled Tribe, was ineligible for appointment in the first place and his appointment later on has been cancelled and consequently, recovery of salary and other dues given to the petitioner has been proposed while forfeiting his terminal benefits also. 6. Sri Indra Raj Singh, learned counsel for the petitioner in reply to the submission of Sri Sunil Kumar Misra, learned counsel for the respondents has read out the contents of reply submitted by the petitioner dated 28.6.2022 to the show cause notice dated 17.6.2022 and 24.6.2022. It has been submitted on the basis of the reply given to the respondents that the impugned order dated 6.7.2022 has not considered the points raised by the petitioner at all. The order impugned merely says that the petitioner having submitted his reply to the show cause notice has not been able to produce any substantive proof that he belongs to 'Gond Janjati' and not 'Kahar Jati' and therefore, the report of the SDM, Sadar, Mirzapur, is being relied upon and the appointment letter of the petitioner dated 28.12.2007 has been cancelled along with other civil consequences as aforesaid. 7. Having heard learned counsel for the parties, this Court has carefully gone through the order impugned dated 6.7.2022 and finds therein firstly the mention of the facts regarding appointment of the petitioner on the basis of Special Backlog Recruitment Drive by the respondents and of the complaint having received and the enquiry being conducted by the SDM, Sadar, Mirzapur and the report being submitted in this regard to the respondents. On internal page 2 of the order impugned, the respondents have merely mentioned that after report of the SDM, Sadar, Mirzapur was received a show cause notice was issued to the petitioner on 17.6.2022 and a reminder was sent to him on 24.6.2022 and that in his reply dated 27.6.2022 the petitioner had not submitted any substantive proof of his belonging to 'Gond Janjati' and there was no reason to disbelieve the enquiry report submitted by the SDM, Sadar, Mirzapur. 8. The Hon'ble Supreme Court in the case of Madhuri Patil (supra) has observed that it is not open for the employers/authorities to proceed on their own, without caste certificate being cancelled by the competent authority after due enquiry. In compliance of the order passed by the Supreme Court, the State Government has issued three Government Orders dated 5.1.1996 appointed the State Level Caste Scrutiny Committee, the second and third Government Orders dated 26.3.2011 as aforesaid have created District Level and Divisional Level Caste Scrutiny Committees. In the case of the petitioner, the caste certificate has not been cancelled by any competent authority. Even the SDM/Tehsildar, Sadar, Mirzapur has not cancelled the caste certificate earlier issued to the petitioner dated 29.1.2004, later on reiterated by the same authority on 25.1.2014, copy of which has been filed at page 16 and 17 of the writ petition. Only a fact finding enquiry was held by the SDM and a report was submitted without further action being taken for cancelling the caste certificate of the petitioner of 'Gond Janjati'. 9. This Court is of the considered opinion that the order impugned could not have been passed by the respondents without referring the matter to the Caste Scrutiny Committee and without any order having been passed by the competent authority cancelling the caste certificate of the petitioner, on the basis of which he had been given the benefit of reservation and appointment. 10. The order dated 6.7.2022 is set aside leaving it open for the respondents to proceed in accordance with law and pass appropriate orders as expeditiously as possible. 11.
Decision
The writ petition is allowed. 12. Since the order impugned has been quashed, the petitioner shall be allowed to continue to work as Conductor and to be paid his salary, subject of course to the final order being passed by the appropriate authority in pursuance of fresh enquiry to be conducted in the matter. Order Date :- 30.11.2022 SP Digitally signed by SALIM PRAVEJ Date: 2022.12.02 17:37:33 IST Reason: Location: High Court of Judicature at Allahabad