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2009 DIGILAW 316 (UTT)

JYOTSANA v. STATE OF UTTARAKHAND

2009-06-17

V.K.BIST, V.K.GUPTA

body2009
JUDGMENT [Per : Hon’ble V.K. Gupta, C.J. (Oral)] The issue involved for consideration in this case is very peculiar as well as it is important and interesting. The facts are equally peculiar and interesting. In the ultimate analyses, how would the relief be moulded is also very peculiar as well as important. Facts first :- 2. The petitioner originally belonged to the State of U.P. After creation of the State of Uttarakhand, by virtue of cadre bifurcation in terms of U.P. Reorganization Act, 2000, the petitioners father was allocated to the Uttarakhand Cadre. At the relevant time he was posted and serving as District Judge, Bageshwar. Since the petitioner was residing in Bageshwar town alongwith her father, on 14th June 2002 the Competent Authority issued a caste certificate in her favour certifying that she belonged to Scheduled Caste. It is the undisputed case of the parties before us that the petitioner does belong to Jatav Caste, which undoubtedly is a Scheduled Caste in the State of Uttarakhand as well as in the State of U.P. 3. The petitioner appeared in the selection process for appointment as Civil Judge (Jr. Div.) in the year 2008 in the reserve category of Scheduled Caste (horizontal reservation for women). Petitioner’s name figured at serial no. 17 of the select list and this was on the basis of reservation benefit having been given to her in the Scheduled Caste quota and that too based on horizontal reservation (of women’s quota). The intervention applicant Ms. Shalini Dadar also in the Scheduled Caste quota (horizontal-women) having also appeared in the same selection process found her name figuring at serial no. 18 in the select list. Both the petitioner as well as the intervention applicant had obtained 489 marks in aggregate but petitioner was placed higher in order of merit by virtue of the fact that she had obtained higher marks in the written examination. This rule position is not under challenge before us. Whereas the petitioner had obtained 437 marks in written examination and 52 marks in viva-voce, totaling 489, Ms. Shalini Dadar had obtained 434 marks in written examination and 55 marks in viva-voce, totaling 489. 4. Despite the fact that petitioners name had appeared at serial no. 17 in the select list and vacancies were available but she not having been appointed by the State Govt., she filed Writ Petition no. Shalini Dadar had obtained 434 marks in written examination and 55 marks in viva-voce, totaling 489. 4. Despite the fact that petitioners name had appeared at serial no. 17 in the select list and vacancies were available but she not having been appointed by the State Govt., she filed Writ Petition no. 44 of 2009 in this Court, in which the following prayers were made:- i. Issue a writ, order or direction inh the nature of mandamus commanding the respondent to include the name of petitioner in the Appointment Order No. 327/30-1-2009-25 (16) 2004 T.C.-1 Dehradun dated 19.3.2009 and to allocate here posting in pursuance to her selection for the post of Civil Judge (J.D.) in the examination of Civil Judge (J.D.) Examination of 2008. ii. Issue a writ, order or direction in the nature of mandamus commanding the respondent to take an appropriation action on the petitioner’s representation dated 17.3.2009 (annexure no. 12 to the writ petition). iii. Issue a writ, order or direction which this Honble Court may deem fit and proper under the circumstances of the case. iv. Award the cost of the petition. 5. While the aforesaid writ petition was pending in this Court an order came to be passed by the State Govt. On 25th April 2009. In this order making a reference to the Scheduled Caste certificate issued in petitioners favour on 14th June 2002, State Govt. directed District Magistrate, Bageshwar to constitute a scrutiny committee to find out as to whether the aforesaid certificate dated 14th June 2002 was correctly issued or not? The scrutiny committee upon an inquiry came to the conclusion that the petitioner should not be given the benefit of reservation in Scheduled Caste category based upon the aforesaid certificate dated 14th June 2002. The State Govt. accordingly came to the conclusion in the aforesaid order dated 25th April 2002 that it was in agreement with the report and finding of the scrutiny committee. 6. A subsequent, consequential order was passed by the State Govt. on 6th May 2009, in which after making a mention of the aforesaid fact, it took two decisions; firstly, that the petitioner was not entitled to the benefit of reservation as a Scheduled Caste candidate on the basis of the certificate dated 14th June 2002 and secondly to cancel the said certificate. 7. The aforesaid two orders were passed by the State Govt. 7. The aforesaid two orders were passed by the State Govt. on 25th April 2009 and 6th May 2009 respectively during the pendency of W.P. No. 44 of 2009 filed by the petitioner. W.P. No. 44 of 2009 came up for consideration in the Court on 8th May 2009 when the following order was passed :- “As the arguments were in progress, Mr. Sharad Sharma, learned counsel appearing for the petitioner submitted that the petitioner be permitted to withdraw this petition, in the process the petitioner also relinquishing her claim vis-vis the caste certificate issued on 14th June 2002 in her favour but with liberty to the petitioner to apply afresh for the grant of a caste certificate in her favour to the effect that she belongs to a Scheduled Caste (Jatav). According to Mr. Sharad Sharma, the fact of the petitioner being married to a domicile of Uttarakhand in the year 2005, apart from her now having become a domicile of Uttarakhand State on the strength of her marriage with a domicile of Uttarakhand State, her belonging to Jatav caste, which is a recognized Scheduled Caste in Uttarakhand and she would be entitled to be granted the caste certificate by a Competent/Prescribed Authority. Mr. Sharad Sharma prays that the petitioner be permitted to withdraw this petition with liberty to apply to Competent/Prescribed Authority for the grant of caste certificate in the light of the submission made and recorded herein above. Writ petition is dismissed as withdrawn. Liberty prayed for is allowed. If the petitioner applies to the Competent/Prescribed Authority for the grant of a fresh caste certificate in her favour in the light of the submissions recorded herein above, before 4:00 p.m. by or before 12th May, 2009, the Competent/Prescribed Authority is directed to receive and process the petitioner’s said application and pass final order thereupon before 20th May 2009. The petitioner shall be entitled to a personal hearing also before Prescribed/Competent Authority. Time shall not be extended and if the final order is not passed before 20th may 2009, action shall be initiated against the Prescribed/Competent Authority for disobeying the Court’s order. While passing final order, the Prescribed/Competent Authority shall not be, in any manner, influenced by any earlier order passed on the subject by any Authority or the Government. Depending upon the order to be passed upon petitioners aforesaid application and the result thereof, the State Govt. While passing final order, the Prescribed/Competent Authority shall not be, in any manner, influenced by any earlier order passed on the subject by any Authority or the Government. Depending upon the order to be passed upon petitioners aforesaid application and the result thereof, the State Govt. is directed to take consequential action before 27th May 2009. Till 27th May, 2009 the existing vacancy in the Scheduled Caste (Women) category shall not be filled. The order to be passed shall be communicated to the petitioner the same evening by personally serving the same upon her. The petitioner shall have the liberty to approach this Court again if a fresh cause of action accrues to her. Petition disposed of finally. No order as to costs.” 8. After withdrawing the aforesaid writ petition, the petitioner indeed applied to Tehsildar, Haridwar-Respondent no. 3 herein for issuance of the caste certificate in her favour on the basis and force of two factors which she claimed entitled her to receive the caste certificate. Firstly, because she had married with Rohit Sikhola, a permanent resident of Uttarakhand State on 14th December 2005 and, secondly she belonged to Jatav caste which was a Scheduled Caste in Uttrakhand State. According to the petitioner her being a domicile of Uttarakhand by virtue of her marriage to a permanent resident of Uttarakhand entitled her to receive and be issued the caste certificate as well as the benefit thereof. In compliance with this Court’s order dated 8th May, 2009 (supra), Tehsildar, Haridwar (Competent Authority) rejected the petitioners application for issuance of caste certificate. Rejection clearly meant that the petitioner cannot be granted the benefit of belonging to Scheduled Caste category and the reservation with respect thereto. This was done by the Tehsildar by passing order dated 19.05.2009. Inter-alia, challenging this order, the petitioner accordingly has filed the present petition seeking the following reliefs :- i. Issue a writ, order for direction in the nature of mandamus commanding the respondents to include the name of the petitioner in the appointment order no. 327/3030-1-09-25 (16)/2004 T.C.-1 Dehradun dated 19.03.09 and to allocate her posting in pursuance to her selection for the post of Civil Judge (J.D.) in the examination of Civil Judge (J.D.) Examination of 2008. ii. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.05.2009 passed by Tehsildar Haridwar i.e. respondent no. 3. iii. 327/3030-1-09-25 (16)/2004 T.C.-1 Dehradun dated 19.03.09 and to allocate her posting in pursuance to her selection for the post of Civil Judge (J.D.) in the examination of Civil Judge (J.D.) Examination of 2008. ii. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.05.2009 passed by Tehsildar Haridwar i.e. respondent no. 3. iii. Issue a writ of mandamus commanding and directing the respondents to issue Caste Certificate in favour of the petitioner and further to direct the respondent no. 1 to keep one post reserve of Civil Judge (Junior Division) (S.C. Women category) till the disposal of the present writ petition. iv. Any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. v. Award cost of the petition. 9. What has come up for consideration in this case is whether in the light of the aforesaid facts the petitioner was entitled to be issued a caste certificate and consequently the benefit of reservation belonging to the reservation category. 10. Two facts at the risk of re-iteration are required to be stated which are also undisputed. Firstly, that after December 2005 the petitioner became a permanent resident and a permanent domicile of Uttarakhanad by virtue of her marriage to a permanent resident of Uttarakhand (refer to the ratio laid down with respect to this legal position in the Division Bench Judgment of this Court dated 16th December 2008 in the case of Jyotibala Versus State of Uttarakhand and another in W.P. No. 297 (SB) of 2008). The second undisputed fact is that the petitioner belongs to Jatav caste which is a recognized Schedule Caste in the State of Uttrakhand. The cumulative effect therefore, is that the petitioner being a domicile of Uttrakhand by virtue of her having married a permanent resident of Uttarakhand State cannot be deprived of the benefit available to an Uttarakhandi Scheduled Caste by virtue of the fact that she indeed is a Scheduled Caste belonging to jatav Caste. In our prima facie opinion therefore, the Tehsildar, Haridwar wasnot justified in rejecting the petitioners application for grant of a caste certificate vide the impugned order dated 19th of May 2009. He ought to have allowed this application and issued the certificate. 11. In our prima facie opinion therefore, the Tehsildar, Haridwar wasnot justified in rejecting the petitioners application for grant of a caste certificate vide the impugned order dated 19th of May 2009. He ought to have allowed this application and issued the certificate. 11. The impugned order apparently and prima facie suffers from an error apparent on the face of the order itself as well as it is against the established law on the subject. 12. The question which now arises for consideration, very peculiarly is as to what relief can be granted to the petitioner in the facts and circumstances of the present case. Mr. P.C. Bisht, learned Brief Holder appearing for respondent No. 1 and 3 and Mr. Manoj Tiwari, learned Senior Counsel appearing for Shalini Dadar (intervention applicant) have very vehemently argued that even if the action of Tehsildar, Haridwar in rejecting the petitioner’s application for grant of caste certificate is held to be invalid by this Court and even if the petitioner is held entitled by this Court to be issued a caste certificate in her favour, all this will and should operative prospectively in the sense the petitioner cannot be given the benefit of reservation with respect to 2008 selection process because undoubtedly as on the date of submission of application with respect to 2008 selection process the petitioner was not possessed of a valid Scheduled Caste Certificate. The argument does appear appealing at first sight but when we proceed to examine the issue in its correct perspective and also in the process proceed to invoke equity jurisdiction of this Court in the peculiar facts and circumstances of this case, and based on equitable consideration as we are proceeding to mould the relief in the exercise of our extraordinary jurisdiction, we find that the aforesaid benefit cannot be denied to the petitioner with respect to the selection process having been undertaken in the year 2008. We are saying so because we cannot remain oblivious to the fact that in the year 2008 when the petitioner had applied, she indeed was a domicile of Uttarakhand State and did belong to Jatav caste which is a recognized Scheduled Caste in the State of Uttarakhand. She was also in possession of a Scheduled Caste Certificate issued on 14th of June 2002 which later on was cancelled. She was also in possession of a Scheduled Caste Certificate issued on 14th of June 2002 which later on was cancelled. It is by virtue of the order passed by this Court on 8th of May 2009 that the petitioner was permitted to apply for the grant of a fresh caste certificate. In that order this Court had clearly observed that the consequential action would follow depending upon the order to be passed by the Tehsildar upon the petitioner’s application for grant of caste certificate. In other words what this Court intended to convey was that if the caste certificate was issued in favour of the petitioner the consequential action of her being appointed based upon her selection would follow. It was thus, in effect and substance in the midst of judicial proceedings pending in this Court that the aforesaid action was taken. 13. In the peculiar facts and circumstances of this case we feel we should not be bound by the technicalities of law. We have to balance equities because unless the equitable consideration overrides other considerations in this case, appropriate relief cannot be grantedwhich would amount to denial of substantial justice to the petitioner. 14. The writ petition is admitted to hearing. The respondents may file counter affidavits post admission. 15. In the light of the facts and circumstances of this case and based upon the reasoning that we have offered, we feel convinced that the petitioner deserves interim relief from this Court. While therefore staying the operation of the impugned order dated 19th May 2009 passed by the respondent no. 3 and being of the prima facie opinion that the petitioner is entitled to the grant of a caste certificate of belonging to a scheduled caste, we direct respondent no. 3 to issue a formal certificate to this effect to the petitioner within two days from today. 16. Being armed with this certificate, we direct respondent no. 1 to issue appointment order in favour of the petitioner within one week thereafter. We are fixing these very small time limits because of the fact that the candidates who have already been apponted in the Service are already undergoing training in the State Judicial Academy. Any delay with respect to the petitioner’s appointment shall result in her being deprived of the aforesaid training, thus jeopardizing her interests as well as future career prospects without any fault of her. 17. Any delay with respect to the petitioner’s appointment shall result in her being deprived of the aforesaid training, thus jeopardizing her interests as well as future career prospects without any fault of her. 17. The aforesaid interim arrangement, both with respect to the issuance of the certificate as well as the appointment is subject to the final result of this writ petition.