Partly allowed

Arvind Kumar v. State of U.P. Thru Secy. Revenue and Others

Allahabad HC13 Sept 2018WRIA/26858/2008

Case brief

AI extract

What is this about?

The Court quashed an order rejecting the petitioner's claim of Scheduled Tribe status for a Peon appointment. Finding the District Magistrate failed to apply mind to contradictory reports, the matter was remitted for a reasoned order with an opportunity of hearing within six months, noting the petitioner had not yet established his category.

What did the court decide?

Quashed the order dated 02.05.2008; remitted matter to District Magistrate, Chandauli for fresh consideration with hearing within six months; issued mandamus to Collector, Chandauli.

Arvind Kumar Vs State of U.P. Thru Secy… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 26858 of 2008 Petitioner :- Arvind Kumar Respondent :- State Of U.P. Thru' Secy. Revenue & Others Counsel for Petitioner :- A.K. Maurya,Bimal Prasad,C.K.Parekh Counsel for Respondent :- C.S.C.

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Hon'ble Ajay Bhanot,J.

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Heard Sri Ajay Kumar Pandey, learned counsel for the petitioner and learned Standing Counsel for the respondents.

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The petitioner applied for appointment on the post of Peon in the Collectorate of District Azamgarh. An advertisement was taken out in various widely circulated newspapers on 20.07.2007 inviting applications for appointment to the post of Peon and Driver in the Collectorate of District Azamgarh. The recruitment drive was to be filled up by back-log vacancies of Scheduled Caste and Scheduled Tribe. Two posts of Peon were earmarked from the candidate of Scheduled Tribe category.

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The petitioner applied for appointment as a Peon in response to the aforesaid advertisement. The petitioner claims to be a member of Gond tribe which falls in the scheduled tribe category. The petitioner applied as a scheduled tribe candidate. The petitioner stood first in the merit list. A verification of the antecedents, credentials and testimonials of the petitioner was undertaken prior to the issuance of a formal letter of appointment. The verification report recorded that the petitioner did not belong to scheduled tribe category. His candidature was rejected. Aggrieved by the action of the respondent authorities the petitioner instituted a writ petition before this Court being Writ Petition No. 14923 of 2008. The writ petition was finally decided by judgment and order entered on 27.03.2008. The operative portion of the judgment is reproduced hereunder:-

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"For redressal of his grievance the petitioner has already moved a representation before the District Magistrate, Azamgarh dated 22.02.2008, as contained in Annexure-6 of the writ petition. The District Magistrate, Azamgarh is directed to decide the same by passing a reasoned and speaking order within a period of four weeks from the date of production of a certified copy of the order passed by this Court.

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With the aforesaid observation and direction the writ petition stands disposed of finally."

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In compliance of the order passed by this Court the representation of the petitioner was considered by the competent authority. The representation of the petitioner was rejected by order dated 02.05.2008. The petitioner is aggrieved by the order dated 02.05.2008 rejecting his representation along with his claim of belonging to the scheduled tribe.

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The petitioner claims that he is a resident of Nagar Panchayat Chakiya, District Chandauli, which fell within the territorial limits of District Varanasi at the relevant point in time. The petitioner belongs to the Gond tribe. The Gond tribe is notified as a scheduled tribe. The petitioner relies upon a notification issued by the Government of U.P. annexed as SA-4 to the supplementary affidavit filed on 17.05.2011. The aforesaid notification आ०स०/26.3.2003 (7)/2003 ससख्यय-111 ददिनयसक 3.7.2003 of the Government of U.P., has notified Gond tribe as scheduled tribe in District Chandauli. The district Chandauli was carved out from district Varanasi. A verification into the scheduled tribe status of the petitioner was done by the Sub Division Magistrate, Chakia, District Chandauli. The letter No.

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634/एसटट/2008 जयजाँच/ dated 09.01.2008 issued by Sub Divisional Magistrate, Chakia, Chandauli, records that the petitioner belongs to the Gond tribe. The Gond tribe and the Kharwar castes are recorded in the register for scheduled caste and scheduled tribe maintained by the Tehsildar. The entry in the aforesaid register maintained by the Tehsil authorities records that the petitioner belongs to the Gond caste. On the footing of the aforesaid documents the caste certificate was issued in favour of the petitioner.

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The impugned order dated 02.05.2008 has placed reliance on a report given by the Naib Tehsildar dated 22.12.2007 against the petitioner. On the foot of the said report the order concludes that the petitioner belongs to the Bhadbhuja caste which falls under the Other Backward Class category. The impugned order has also considered the earlier report of the Sub-Divisional Magistrate dated 22.04.2007.

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There is apparent contradiction between the report of the Sub Divisional Magistrate dated 09.01.2008 and the report of Tehsildar, Chakia dated 22.12.2008. This contradiction has not been addressed in the impugned order. In view of such contrary material in the record, the impugned order dated 02.05.2008 self destructs. The District Magistrate, Azamgarh has not recorded reasons for approving one report dated 22.12.2008 and relying on the same, while ignoring the other report dated 09.01.2008 made by the Sub-Divisional Magistrate without rejecting the same. Moreover, the categorisation of the Gond tribe as scheduled caste or scheduled tribe has to be made with reference to government notifications in this regard. The same has not been done in the

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impugned order.

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The categorisation of citizens into the scheduled caste and scheduled tribe category confer constitutional rights. When such categorisation is proposed to be recalled or altered, principles of natural justice have to be observed and a meticulous exercise has to be undertaken by the competent authority. This has to be duly reflected in the orders passed by the authorities. A perusal of the order dated 02.05.2008 impugned in this writ petition shows that the aforesaid criteria is not met.

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From the discussion in the preceding paragraphs it is found that the District Magistrate while passing the order dated 02.05.2008 did not apply his mind to the relevant facts in the record. The order dated 02.05.2008 overlooked various material aspects of the controversy. The order dated 02.05.2008 was passed in violation of the principles of natural justice. The order dated 02.05.2008 is arbitrary and illegal and cannot stand.

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There is yet another aspect to the matter which has almost decisive significance. By order dated 19.05.2011 passed by the District Magistrate, Chandauli, the father of the petitioner Sri Ram Dularey was found to be a member of Gond caste which came under the category of scheduled caste in the erstwhile and undivided district of Varanasi. Consequently the District Magistrate, Chandauli found that the father of the petitioner Ram Dularey was eligible for grant of a scheduled caste certificate.

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In view of the above discussion made in the preceding paragraphs the order dated 02.05.2008 passed by the District Magistrate, Azmagarh is quashed. The matter is remitted back to the respondent no. 2 for fresh consideration. A mandamus is

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issued to the Collector, Chandauli to execute following directions;

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(i) The District Magistrate, Chandauli shall provide an opportunity of hearing to the petitioner. Any adverse material or report been relied upon against the petitioner shall be provided to him.

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(ii) The petitioner shall be given full opportunity to tender his defence and adduce any evidence in support of his claim of belonging to the scheduled tribe.

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(iii) The District Magistrate, Chandauli shall also consider the order passed by the predecessor District Magistrate, Chandauli dated 19.05.2011 approving grant of scheduled caste certificate to the father of the petitioner. This fact is material to the controversy and requires due consideration.

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(iv) After hearing the petitioner and other necessary parties and considering all the relevant facts, documents, evidences, government orders and provisions of law the District Magistrate, Chandauli shall pass a reasoned and speaking order in accordance with law deciding the issue as to whether the petitioner belongs to the scheduled tribe or not and also make positive finding on the caste category of the petitioner.

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(v) The aforesaid exercise shall be completed by the Collector, Chandauli within a period of six months from the date of receipt of a certified copy of this order alongwith fresh copy of the representation.

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It is clarified that the quashment of the order dated 02.05.2008 does not entitle the petitioner for appointment as Peon under the

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scheduled tribe category since the petitioner has failed to establish that he belong to the said category before this Court.

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The writ petition is partly allowed.

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Order Date :- 13.9.2018 Pravin

Arvind Kumar v. State of U.P. Thru Secy. Revenue and Others

Case brief

What is this about?

What did the court decide?

Arvind Kumar v. State of U.P. Thru Secy. Revenue and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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