- (1.) Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Sudhanshu Srivastava for the petitioner and Sri Shivam Yadav for the Respondent Nos. 3 and 4 and learned Standing Counsel for the Respondent Nos. 1 and 2.
(2.) This petition was entertained and the matter was heard on three previous days and ultimately the following questions were framed on 17th May, 2013 to enable the learned counsel to advance their submissions on the legal issues that have been raised vis a vis the challenge to the legality of the impugned order dated 26th April, 2013 resulting in the termination of the services of the petitioner.The order passed on 17th May, 2013 is quoted hereinunder: "Heard Sri Ashok Khare, learned Senior Counsel for the petitioners alongwith other counsel who are appearing in the connected cases and Sri Shivam Yadav for the respondent authority and the Sri A.K. Yadav, learned Standing Counsel for the State. The issue involved in all these writ petitions is in relation to the claim of benefit as a Scheduled Caste by the petitioners for appointment in the respondent authority. Prima facie there does not appear to be any dispute with regard to the status of their caste and the only ground on which their services have been terminated is that they are not a domicile or a resident of State of U.P. and therefore they were not entitled to be appointed so as to receive the benefit of reservation as a scheduled caste. The impugned order proceeds on the law laid down by the apex court in the case of Action Committee On Issue Of Caste Certificate To Scheduled Castes of Maharashtra and another Vs. Union of India and another, 1994 5 SCC 244. The matter was heard yesterday and today as well and judgments have been cited at the bar including the decision in the case of Union of India Vs. Dudh Nath Prasad, 2000 2 SCC 20; the decision in the case of S. Pushpa and ors. vs. Sivachanmugavelu and Ors., 2005 3 SCC 1; State of Uttaranchal Vs. Sandeep Kumar Singh and others, 2010 12 SCC 794; M. Chandra vs. M. Thangamuthu, 2010 9 SCC 712. The contention raised by Sri Khare is that the issue of domicile would not be relevant for the purpose of such a consideration, inasmuch as, there is no dispute with regard to the fact that the petitioners are a notified scheduled caste under the presidential order in the State of U.P. He submits that merely because they have migrated to a different State they do not get any benefit of such reservation in the migrated State and it is only in their parent State that they would be entitled to such benefit. He therefore contends that the provisions of Article 341 cannot be interpreted so as to render it nugatory by adding the requirement of domicile. He submits that there is neither any statutory provision nor is there any executive instruction or office memorandum explaining the aforesaid position as sought to be justified while passing the impugned termination order. He therefore contends that the respondent authority could not have terminated the services on this ground. Sri Shivam Yadav and Sri A.K. Yadav have vehemently urged that the Supreme Court in the decision of Subhash Chandra Vs. Delhi Subordinate Services Selection Board, 2009 15 SCC 458, which is being relied upon by the learned counsel for the petitioners, and which in paragraph 96 declares the earlier law in the case of Dudh Nath Prasad to be per-incuriam, has already been referred to a larger bench in the decision of State of Uttaranchal Vs. Sandeep Kumar Singh . They contend that if a scheduled caste of his parent State has migrated to another State, and is not a resident of the State of U.P., as in the present case then he does not suffer from any disadvantage so as to entitle him to claim any benefit within the State of U.P. for public employment. They contend that the issue of domicile therefore is intertwined with the issue of claim of reservation and the same cannot be read in a divorced manner. Sri Shivam Yadav however prays that the matter be adjourned for today to enable him to further address the court on this issue and assist the court on such requirement. Put up on Tuesday next as fresh along with the connected matters."
(3.) The dispute centers around the appointment of the petitioner as a mechanic against a Class-IV post in the Respondent NOIDA authority. The petitioner was extended the benefit of appointment on the claim of reservation under the Scheduled Caste Category. The petitioner's appointment has been annulled by the impugned order on the ground that the petitioner is not entitled to the benefit of reservation as a scheduled caste inasmuch as he is a resident of another place out side the State of U.P. Consequently, applying the ratio of the judgment of the Apex Court in the case of Action Committee Vs. Union of India, 1994 5 SCC 244, on the issue of caste certificate the impugned order has been passed recording that the benefit of reservation extended to the petitioner was erroneous and, therefore, his appointment was invalid. Consequently, the services have been terminated invoking the powers under Clause 22(2) of the NOIDA Service Rules, 1981.;