- (1.) Heard Sri H.P. Dubey, learned counsel appearing in support of this petition and Sri Ramendra Pratap Singh who has appeared for the contesting respondents. Consequent to the exchange of affidavits this petition with the consent of learned counsel for parties has been taken up for final disposal The petitioner lays challenge to an order dated 7 May 2007 passed by the second respondent. The order impugned proceeds to hold that the petitioner was not a member of a Scheduled Tribe and that consequently the appointment accorded to him on the assumption of him being a member of a Scheduled Tribe was incorrect and that the petitioner was therefore not eligible to apply for or be appointed to the said post. As a consequence of the above, the second respondent has proceeded to terminate the services of the petitioner.
(2.) The undisputed facts which appear from the record are that the New Okhla Industrial Development Authority, Authority issued an advertisement on 27 May 2003 for appointment of Beldars. The advertisement reserved two posts for Scheduled Tribes. In response to the above advertisement the petitioner also applied and participated in the selection process. The petitioner was called for an interview on 16 June 2003 and upon being declared selected was appointed on 28 June 2003. He is stated to have joined the post of Beldar under the Authority on 3 July 2003 and continued to function as such. On 7 March 2007 a show cause notice was issued by the Authority calling upon the petitioner to explain why the irregular appointment made in his favour be not declared as void and consequently set aside. The basis for the notice to show cause was that the caste certificate which had been presented by the petitioner had not been issued from the State of U.P. and that consequently the petitioner had concealed material facts and had applied for the post even though he was not eligible. Responding to the notice the petitioner submitted a reply on 20 March 2007 in which the following contentions were taken: (a) the Caste Certificate was dated 9 August 1994 and had been issued by the Tehsildar Chakrata, Dehradun at a time when the said territory continued to be a part of the State of U.P.; (b) The State of Uttaranchal subsequently came to be created by bifurcation of certain territories of the State of U.P.; (c) the petitioner while responding to the advertisement and filling up the application form had clearly disclosed his permanent address as being Village Mandauli, District Dehradun, Uttaranchal; (d) The advertisement did not restrict applications to be submitted only by permanent residents of the State of U.P. Accordingly, it was prayed that the proceedings be dropped. On 7 May 2007, the second respondent proceeded to pass the impugned order by holding that on 6 June 2002 the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 2002, Ordinance, 2002 came to be promulgated and that the caste of the petitioner did not find mention in the said notification. Accordingly the second respondent as noted above held that the petitioner was not eligible for the post and consequently terminated his services. Sri Dubey, learned counsel appearing in support of the petition has submitted that the impugned order suffers from complete non-application of mind inasmuch as no material facts had been concealed by the petitioner while applying for the post. It was submitted that the application form clearly disclosed the permanent address of the petitioner which ex facie established that he was a resident of the State of Uttaranchal. The non-application of mind by the second respondent, Sri Dubey would submit, is further evident from the fact that he proceeded to rely upon the Ordinance, 2002 dated 6 June 2002 which admittedly enumerated the "Other Backward Classes" in the State of U.P only and did not relate to Scheduled Tribes at all. This, Sri Dubey submits obviously because the list of Scheduled Tribes was liable to be notified by a Presidential Order referable to the provisions of Article 342 of the Constitution of India. Sri Ramendra Pratap Singh, learned counsel appearing for the contesting respondents has on the other hand sought to rely upon the various pleas as taken in the Counter Affidavit filed in these proceedings to contend that the petitioner was not eligible for being appointed as Beldar. Sri Singh however could not dispute the fact that the notification of 6 June 2002 and which formed the very foundation of the impugned order related to Other Backward Classes and not to Scheduled Tribes.
(3.) When this petition was initially taken up for consideration on 23 May 2007, an interim order came to be passed in the following terms. "Shri Dhananjay Awasthi has appeared for respondent No. 1 and 2 only. He prays for and is allowed two weeks time to file a counter affidavit. Two weeks thereafter is allowed for rejoinder affidavit. The Counsel for the petitioner contends that advertisement was issued for scheduled castes and scheduled tribes and the petitioner who is a member of scheduled tribe applied and was appointed on 28.06.2003. The counsel for the petitioner contends that the petitioner has been continuing for last about more than three years and by the impugned order dated 07.05.2007 now his services are being terminated on the ground that he does not belong to scheduled tribe. The learned counsel for the petitioner contends that petitioner is a member of the scheduled tribe which is clear from annexure-3 to the writ petition i.e. list of scheduled castes and scheduled tribes. He submits that there was no such condition in the advertisement that only residents of the U.P. can apply against the advertisement. In view of the facts of the present case and submissions made, the petitioner has made out a prima facie case for grant of interim relief. Let a counter affidavit be filed within two weeks. List on 9.7.2007. In the meantime, the impugned order dated 7.5.2007 shall remain stayed.";