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2006 DIGILAW 636 (UTT)

VINEET KUMAR PANGTEY v. UNION OF INDIA

2006-11-14

B.C.KANDPAL, P.C.VERMA

body2006
JUDGMENT Delivered by Hon’ble P.C. Verma, J. The controversy involved in both these writ petitions is one and the same, hence they both are being disposed of by this common order. 2. By means of Writ Petition (M/B) No.41 of 2005, the petitioner has prayed for quashing the impugned order dated 10.1.2005 passed by Chief Secretary, Forest Department, Govt. of Uttaranchal- Respondent No. 3, by which the request of the petitioner regarding allocation to Uttaranchal Cadre was rejected and in Writ Petition (S/B) No. 402 of 2002, the petitioner has prayed for writ of mandamus commanding Respondent Nos.1 and 2 to change the cadre of the petitioner from Uttar Pradesh to Uttaranchal. 3. Brief facts of the case as narrated by the petitioner are that he is the Deputy Project Director in the Watershed Department of State of Uttaranchal and is presently posted at Dehradun. The petitioner was directly recruited in the Indian Forest Services in the year 1988. It is pertinent to mention here that the State cadre of Indian Forest Services comprises of direct recruits and promotees. Direct recruits are those who are recruited on the basis of an All India competitive examination conducted by UPSC while the promotees are those who are promoted to the IFS from the State Forest Services and the petitioner is directly recruited as an Officer in the IFS in the year 1988. After the creation of State of Uttaranchal from the State of U.P. by an Act of Parliament known as U.P. Reorganization Act, 2000 (hereinafter referred to as the Act), an Advisory Committee was constituted under Section 76 of the Act for allocation/reallocation of persons of All India Services. The said Advisory Committee gave its final report to Respondent No.2 in October 2000. The summary recommendation at Sl. No. 2 of the report of the said committee refers to ‘insiders’ and ‘outsiders’ amongst direct recruit officers of All India Services and for State of Uttaranchal, an “insider” would mean an officer whose domicile in official record is in one of the 13 Districts from the State of Uttaranchal. The petitioner has alleged that he is a domicile of Almora which is a District of State of Uttaranchal and hence he is “insider” by the definition of the Advisory Committee. The petitioner has alleged that he is a domicile of Almora which is a District of State of Uttaranchal and hence he is “insider” by the definition of the Advisory Committee. The petitioner is direct recruit member of I.F.S. of 1998 batch and he was appointed to IFS on probation on 4.7.1988 vide notification dated 15.5.1999. The petitioner has further alleged that the appointment letter of the petitioner dated 16.5.1998 is addressed to his Almora address which clearly states the permanent place of stay and the domicile of the petitioner is at Almora, which is a part of State of Uttaranchal. The petitioner has also alleged that he belongs to “Bhotia” community which has been declared as a Scheduled Tribe in the erstwhile State of U.P. in the Schedule Tribe Order, 1967 and as per Section 25 read with Schedule 6 of the Act, the aforesaid Schedule Tribe Order now stands amended and “Bhotia” tribe to which the petitioner belongs is now a scheduled tribe of State of Uttaranchal and not of U.P. The petitioner has also filed in this regard a certificate given to the petitioner by District Magistrate, Almora on 3.2.1988 i.e. prior to the petitioner’s initial appointment as an IFS Officer which also certifies that the petitioner belongs to “Bhotia Tribal Community”. The petitioner also moved a representation before Respondent No.1 in which he also stated the fact that he has to take care of his mother who is also a widow and resides with him and his mother is also a patient of Allergic Rhinitis with Asthmatic Bronchitis. The petitioner made repeated representations before the respondents but all were in vain due to which the petitioner filed a Writ Petition No.402 of 2002 (S/B) in which this Court has passed the following order :- “The Respondents shall show cause as to why the case of the petitioner was not considered for the allocation of the petitioner by the Govt. of India and if in fact it has not been considered, the Govt. of India shall reconsider the case of the petitioner and shall pass appropriate order within ten days.” 4. of India and if in fact it has not been considered, the Govt. of India shall reconsider the case of the petitioner and shall pass appropriate order within ten days.” 4. In pursuance of the aforesaid order, the respondents after a lapse of 2½ years decided this representation of the petitioner vide order dated 10.1.2005, by which they have rejected the representation of the petitioner holding that he had been allotted to Uttar Pradesh as an outsider and he has also declared that he was a domicile of Madhya Pradesh who did not want to be allocated to his home state. Feeling aggrieved by the aforesaid order, the petitioner has come up in the writ petition, which was numbered as W.P. 41 of 2005 (M/B). 5. A counter affidavit has been filed by the respondents – Union of India in which it has been stated that the application form submitted by the petitioner to UPSC before his appointment to the IFS, he had indicated that he was born in Bhilai (M.P.) and his home-State was Madhya Pradesh and he also indicated that he would not like to be considered for allocation to M.P. After bifurcation of State of U.P. on its reorganization, the petitioner was re-allocated to State of U.P. on the basis of recommendations made by the Advisory Committee and he had however given his option for State of Uttaranchal at the time of bifurcation of the State of U.P. After his re-allocation to State of U.P., the petitioner among others had submitted a representation to Grievance Committee set up by the Department of Personnel & Training in the Central Govt. to consider cases of genuine hardships caused due to bifurcation of the State. The said Committee noted that Sri Pangtey (petitioner) has been retained in the U.P. cadre in accordance with the prescribed guidelines and also observed that as a member of an All India Service, Sri Pangtey was liable to serve in any part of the country. The Committee also felt that the grounds mentioned by the petitioner in his representation could not be treated as grounds of genuine hardship and the Committee accordingly rejected the representation of Sri Pangtey. Subsequently, the petitioner submitted another representation to the Ministry of Environment and Forests in the Central Govt. seeking change of his cadre from State of U.P. to State of Uttaranchal. Subsequently, the petitioner submitted another representation to the Ministry of Environment and Forests in the Central Govt. seeking change of his cadre from State of U.P. to State of Uttaranchal. The representation of the petitioner was examined in the Ministry of Environment and Forests and it was referred to the Deptt. of Personnel & Training for consideration of his case either on medical grounds of his mother and grandmother or on the grounds of actual domicile. The Deptt. of Personnel & Training vide their office memorandum dated 24.5.2002 stated that after consideration of the case by the Grievance Committee, there was no justification to recommend his case and that there was no change in the grounds on which his case had been rejected, however the Deptt. of Personnel & Training stated that competent authority to consider the cases of change of cadre of All India Service Officers is the Appointments Committee of the Cabinet and that his case may be considered by Ministry of Environment and Forests in accordance with the policy guidelines on the inter-cadre transfer. The representation of the petitioner was thereafter re-examined in consultation with the Ministry of Law & Justice. The Ministry of Environment & Forests vide its letter dated 10.1.2005 rejected the representation of the petitioner treating the petitioner to be an “outsider” as his home State was treated as Madhya Pradesh. It has also been stated that on the basis of information furnished by the petitioner at the time of filling up of UPSC form, he had indicated his place of birth as ‘Bhilai’ in M.P., and the petitioner while being allocated U.P. cadre was treated as an “outsider” as his home State and Domicile State were treated on the basis of birth in that State. It has also been stated that the petitioner in his application form to UPSC had indicated in Col.23 that he was born in Madhya Pradesh and in Col.24, he had mentioned that he did not want to be allocated in M.P., however in the attestation form and descriptive roll submitted by the petitioner, he had declared ‘Almora’ in U.P. as his permanent home address. It has also been stated that the Grievance Committee constituted by Govt. of India had considered the representation on merits and disposed of the same. It has also been stated that the Grievance Committee constituted by Govt. of India had considered the representation on merits and disposed of the same. The case of the petitioner was also considered by Grievance Committee and the same was also rejected and his subsequent representation was also considered and disposed of by the Ministry of Environment & Forests. 6. In the last paragraph of the counter affidavit, a prayer has been made by the respondents for guidance of this Court as to what constitute a domicile, whether the place of birth or the place where a person has been living for a number of years or where his parents belongs to, specially in the case of an officer who belongs to a Scheduled Tribe notified in relation to a given State but born in another State. 7. The petitioner also filed a rejoinder affidavit in reply to the counter affidavit filed by the respondents in which it has been stated that the petitioner was formally appointed in the service since 4.7.1988 and the documents pertaining to this period clearly state that the permanent address of the petitioner is of District Almora. It has also been stated that the representation of the petitioner has not been considered by the respondents and there has been a total non-application of mind, moreover relevant facts have not been considered by the respondents which is evident from the fact stated in the counter affidavit by which respondent No.1 has sought clarification of this Court on this aspect. It has also been stated that the application form for examination with Bhilai (M.P.) represented by the respondents is not the document pertaining to the domicile of the petitioner. There are other relevant documents pertaining to the initial appointment and hence the reliance of the respondents on the examination form is purely totally misconceived. It has also been stated that the petitioner belongs to Scheduled Tribe, Bhotia which has been notified by the Presidential order under Article 342 of Constitution of India as scheduled tribe in relation to U.P. 8. It has also been stated that the petitioner belongs to Scheduled Tribe, Bhotia which has been notified by the Presidential order under Article 342 of Constitution of India as scheduled tribe in relation to U.P. 8. The petitioner also filed a supplementary affidavit in which it is stated that he is domicile and permanent resident of Uttaranchal and that he has ancestral property in Almora, Uttaranchal and the said property has passed on to the petitioner from his grand mother Smt.Bhawani Devi Pangtey and has been recorded in the name of the petitioner in the revenue records of Nagar Palika. The petitioner annexed a copy of registered sale deed dated 18.07.1967 executed in the name of his grandmother as Annexure No. SA-l. Annexure No. SA-2 filed by the petitioner also shows that the said property was mutated in the name of his grandmother Smt.Bhawani Devi Pangtey in revenue record. It is also stated in the supplementary affidavit that consequently the name of the petitioner was mutated in the revenue record i.e. Khatoni pertaining to the said property. True copy of Khatoni dated 13.06.2002 filed by the petitioner is on record as Annexure No. SA-3. 9. The petitioner also asserted in the supplementary affidavit that sale deed (Annexure No. SA-l) clearly shows that the property which was bestowed to the grandmother of the petitioner is also a house which is in the possession of the vendee i.e. grand mother of the petitioner and the grandmother of the petitioner was staying on the property since 1932. The fact that the petitioner’s family was staying in the property in Almora since 1932 is verified from a registered letter which was received by the grand mother of the petitioner at Almora from Bombay on the said address in the year 1932. The petitioner filed the postal impression on the letter pertaining to the said period as Annexure No. SA-4 to the supplementary affidavit. 10. In support of his assertion to the supplementary affidavit the petitioner also filed the copy of house tax, water tax, bills of Nagar Palika of Almora pertaining to the said property in Almora for the year 1964, 1974 and 2004 as Annexure Nos. SA-5, SA-6 and SA-7 respectively. 10. In support of his assertion to the supplementary affidavit the petitioner also filed the copy of house tax, water tax, bills of Nagar Palika of Almora pertaining to the said property in Almora for the year 1964, 1974 and 2004 as Annexure Nos. SA-5, SA-6 and SA-7 respectively. These documents show that the bills pertaining for the year 1964 is in the name of petitioner’s father Shri Satyaveer Singh Pangtey sent by the U.P.C. to Bhilai (M.P.) address and the subsequent bill of year 1974 is in the name of petitioner’s grandmother and the third bill pertaining to the year 2004 is in the name of petitioner. The resident certificate issued by Nagar Palika, Almora to the petitioner also shows that the family house of the petitioner is in Almora, which is known as ‘Pangtey Cottage’ at Ranidhara, Almora. The petitioner annexed certificate dated 20.4.2006 issued by the Nagar Palika Almora as Annexure No. SA-9 to the supplementary affidavit. The petitioner also annexed the certificate of domicile and permanent residence issued to him by Sub Divisional Magistrate, Almora as Annexure No. SA-9 to the supplementary affidavit. 11. Therefore, the factum of birth was not liable to be considered in the present case where the petitioner had gained entry in Indian Forest Service on the basis of Scheduled Tribe which was scheduled tribe in relation to U.P. It has also been stated by the petitioner that his representation has been rejected in a mechanical manner without their being any application of mind to the reality and genuine hardship of the petitioner. Apart from above, in all the succeeding paragraphs, the contents of the counter affidavit have strongly been refuted. 12. As it is evident from the documentary evidence brought on record by the petitioner that the petitioner’s father and his ancestors are the residents of District Almora (Uttaranchal) and petitioner has inherited and succeeded those properties and rights in District Almora. The petitioner was born in Madhya Pradesh while his father was posted in Bhilai, Madhya Pradesh. The petitioner’s father was holding a transferable post and in case of an employee holding a transferable post, child taking birth at the place of posting of the father will not determine the “domicile” but the real test to determine the domicile is the residence of ancestors and the father who is in service. The petitioner’s father was holding a transferable post and in case of an employee holding a transferable post, child taking birth at the place of posting of the father will not determine the “domicile” but the real test to determine the domicile is the residence of ancestors and the father who is in service. It has also been establish that the petitioner was selected as scheduled tribe candidate notified under Article 342 of the Constitution of India in relation to U.P. as at that time Almora was the district of Uttar Pradesh. The rejection of the representation by the Committee merely on the ground of application form filed by the petitioner in Public Service Commission giving his address of Madhya Pradesh is not correct. The Union of India has sought the guidance from this Court, therefore this Court required evidence from the petitioner regarding his domicile of Almora. The petitioner has filed the copy of registered sale deed dated 18.07.1967 executed in favour of his grandmother (Annexure No.SA-l), copy of record showing mutation in the name of his grandmother in revenue record of the said property (Annexure No.SA-2), Khatoni dated 13.06.2002 (Annexure No. SA-3), Annexure No.SA-4 the postal impression on the letter pertaining to year 1932 verifying the fact that the petitioner’s family was staying in the said property in Almora in the year 1932, Annexure Nos. SA5, SA-6 and SA-7 copy of house tax, water tax and other bills for the year 1964, 1974 and 2004, resident certificate issued by Nagar Palika, Almora (Annexure No. SA-8) and certificate of domicile and permanent residence issued by Sub Divisional Magistrate, Almora (Annexure No.SA-9). All these documents establish that the ancestors and the father of the petitioner are the domicile of Almora and petitioner has inherited those properties. The petitioner became domicile of Almora (Uttaranchal). 13. The petitioner had been allocated existing State of Uttar Pradesh under the cadre of Indian Forest Service for the reason that in existing State of Uttar Pradesh, Almora was the district and the petitioner was permanent resident of District Almora and domicile of existing State of Uttar Pradesh. The petitioner became domicile of Almora (Uttaranchal). 13. The petitioner had been allocated existing State of Uttar Pradesh under the cadre of Indian Forest Service for the reason that in existing State of Uttar Pradesh, Almora was the district and the petitioner was permanent resident of District Almora and domicile of existing State of Uttar Pradesh. Since the basis of allocation of petitioner to the existing State of Uttar Pradesh in IFS cadre was that he was permanent resident of District Almora and domicile of existing State of Uttar Pradesh, now for allocation of petitioner to the State of Uttaranchal after the reorganization, the same factum that the petitioner is permanent resident of Almora and is domicile of Uttaranchal cannot be ignored. By the documentary evidence it is established that the petitioner is permanent resident of District Almora. Therefore, under the guidelines prescribed for allocation to the State of Uttaranchal, the petitioner is entitled to be allocated the State of Uttaranchal. 14. Therefore, the impugned order dated 10.01.2005, contained in Annexure No. 13 to the writ petition No.41 of 2005 (M/B) is hereby quashed. The respondent No.1/Union of India is directed to issue necessary notification under Section 73(2) of U.P. Reorganization Act, 2000 allocating the petitioner to State of Uttaranchal in IFS cadre. 15. Both the writ petitions are allowed. No order as to costs.