# Bhuneshwar Prasad Kureel v. State of U.P. & Ors

- **Citation:** (2013) 2 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-21
- **Case number:** Civil Misc. Writ Petition No. 27319 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhuneshwar-prasad-kureel-v-state-of-u-p-ors-42633
- **Pages:** 7

## Headnote

Constitution of India, Art. 226- Service lawdismissal
of
service-petitioner
was
appointed as mechanic in NOIDA Authority
under S.C./S.T. Category-cancellation of
appointment on ground petitioner being
resident
of
Chhatisgarh-could
not
be
treated as S.C./S.T. in U.P.-the date on
when-presidential notification made under
Art. 341 enlisted as S.C.-entitled to benefit
of
reservation
in
his
original
Stateimpugned dismissal order-erroneous- in
law and fact both-can not sustainedentitled to continue in Service.
Held: Para-15
Therefore, according to the said decision
a person claiming benefit will have to
show that he or his ancestors hailed on
the date of the notification from a caste
in the schedule from a place identified in
the
schedule.
In
other
words
the
relevant date is not the date of migration
but the date of inclusion of the caste or
tribe in the schedule.

Case Law discussed:
1994 Vol. 5 SCC Page 244; (1990) 3 SCC 130;
(2000) Vol. 2 SCC Page 20; (2009) Vol. 15
Page 458; W.P. No. 25844 of 2007; W.P. No.
26044 of 2000; Vol. 11 SCC Page 66; W.P. No.
3627 of 2011

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

1. This petition has been filed by the
petitioner being aggrieved by an award of
the Labour Court dated 3.1.2008 by which
the Labour Court has come to the
conclusion that the services of the
respondent workman were terminated in
violation of provisions of section 6-N of
the U.P. Industrial Disputes Act.

2. The Labour Court has reinstated
the workman along with 60% of his back
wages. From the record, it is reflected that
the workman was 53 years of age at the
time when he raised an industrial dispute.
Consequently he would have inevitably
retired in the year 2002. However this
aspect of the matter has not been taken
into in the award of the Labour Court.

3. Learned counsel for both sides
who are present in court have informed
the court that the workman is no more. He
passed away in the year 2009.

4. This petition was filed in the year
2008 and the court has passed an interim
order on 4.6.2008 by which the petitioner
was asked to comply with the provisions
of section 17-B of the Industrial Disputes
Act.

5. Petitioner states that he had
complied with the provisions of section
17-B of the Act and in pursuance thereof,
Rs.16,000/- have been deposited before
the Labour Court. The workman however
did not turn up.

6. In recent decision of the court in
Madhya
Pradesh
Administration
versus Tribhuban reported in (2007) 9
SCC 748 and Sita Ram versus Motilal
Nehru
Farmers
Training
Institute
reported in (2008) 5 SCC 75, the
Hon'ble Apex Court has opined that
subject to the facts in each given case, a
compensation in lieu of reinstatement
could be given where there is violation of
section 6-N of U.P. Industrial Disputes
Act.

7. In the facts and circumstances of
this case, the workman is no more and
finding of the Labour Court is that section
6-N of the Act is violated, the Labour
Court ought to have taken into account
these facts and the legal heirs of the
workman could have given compensation
in lieu of reinstatement and that too for
the period when he had not reached the
age of superannuation and no relief could
have been given beyond that.

8. Having heard learned counsel for
the parties and having perused the
material on record and in view of the law
settled by the Hon'ble Apex Court, I am
of the opinion that it would be just and
fair that since the workman is no more, a
compensation of Rs.16,000/- which has
already been deposited before the Labour
Court may be released to the heirs of
respondent workman along with another
sum of Rs.50,000/- which have been
agreed by both the parties before this
court, may be paid to legal heirs and
representative of the workman as full and
final compensation for violation of
provisions of section 6-N of the Act. It is
directed that the amount as indicated
above, shall be released to the legal heirs
and representative of the respondent
workman within a period of two months
from the date of passing of this order.

9. The writ petition is disposed of as
above. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2013

BEFORE
2 All] Bhuneshwar Prasad Kureel Vs. State of U.P. & Ors.
865
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.

Civil Misc. Writ Petition No. 27319 of 2013

Bhuneshwar Prasad Kureel ...Petitioner
Versus
State of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
Ashok
Khare,
Sri
Subhanshu
Srivastava

Counsel for the Respondents:
C.S.C., Sri Shivam Yadav

Constitution of India, Art. 226- Service lawdismissal
of
service-petitioner
was
appointed as mechanic in NOIDA Authority
under S.C./S.T. Category-cancellation of
appointment on ground petitioner being
resident
of
Chhatisgarh-could
not
be
treated as S.C./S.T. in U.P.-the date on
when-presidential notification made under
Art. 341 enlisted as S.C.-entitled to benefit
of
reservation
in
his
original
Stateimpugned dismissal order-erroneous- in
law and fact both-can not sustainedentitled to continue in Service.
Held: Para-15
Therefore, according to the said decision
a person claiming benefit will have to
show that he or his ancestors hailed on
the date of the notification from a caste
in the schedule from a place identified in
the
schedule.
In
other
words
the
relevant date is not the date of migration
but the date of inclusion of the caste or
tribe in the schedule.

Case Law discussed:
1994 Vol. 5 SCC Page 244; (1990) 3 SCC 130;
(2000) Vol. 2 SCC Page 20; (2009) Vol. 15
Page 458; W.P. No. 25844 of 2007; W.P. No.
26044 of 2000; Vol. 11 SCC Page 66; W.P. No.
3627 of 2011

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

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
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Maharashtra and another Vs. Union of
India and another reported in (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 reported in 2000 (2) SCC 20; the
decision in the case of S. Pushpa and ors.
vs. Sivachanmugavelu and Ors. reported
in (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 reported in (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 (supra) to be per-incuriam, has
already been referred to a larger bench in
the decision of State of Uttaranchal Vs.
Sandeep Kumar Singh (supra).

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 Volume 5 SCC Page 244, on
the issue of caste certificate the impugned
order has been passed recording that the
2 All] Bhuneshwar Prasad Kureel Vs. State of U.P. & Ors.
867
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.

4. Sri Ashok Khare contends that the
impugned order proceeds on a totally
erroneous application of law and without
even adverting to the facts on the basis
whereof
the
petitioner
was
claiming
reservation as a resident of the State of U.P.
under the scheduled caste category. Sri
Khare has taken the Court through various
documents including the certificates issued to
the petitioners from his migratory State,
namely, Chhattisgarh, which was part of
erstwhile Madhya Pradesh, and he also
contends that the ancestors of the petitioner
including his father were born in the State of
U.P. in the District of Unnao at the time of
the issuance of the Presidential Order. In
such circumstances the petitioner will be
entitled to the benefit of reservation in terms
of Article 341 of the Constitution of India.

5. He contends that the caste of the
petitioner has not been disputed in the
impugned order. The caste of the
petitioner is enlisted in the schedule for
the State of U.P. and the petitioner
belongs to the same caste. He further
contends that the issuance of the caste
certificate is only a certification of the
caste which has been placed in the
schedule
under
the
Presidential
notification and, therefore, in the absence
of any evidence to the contrary the denial
of the benefit of reservation is against the
Constitutional provision. He, therefore,
contends
that
the
impugned
order
ignoring these vital aspects has proceeded
to non suit the petitioner for reasons that
cannot be countenanced in law.

6. In short Sri Khare submits that
not only factually but also legally the
petitioner is a resident within the meaning
of Article 341 of the State of U.P. and
there is ample evidence to support it on
the basis whereof he was offered
employment which could not have been
cancelled on a summary basis as has been
done through the impugned order.

7. He further submits that against the
show cause notice the petitioner had filed
a complete reply bringing on record all
such documents and the same has also not
received attention on the part of the
authority, therefore, the impugned order is
also vitiated for non consideration of
relevant material.

8. Advancing his submissions Sri
Khare contends that the decision in the
case of Action Committee (supra) relies
on the Constitution Bench judgment in the
case of Marri Chandra Shekhar Rao
Vs. Dean, Seth G.S. Medical College,
(1990) 3 SCC 130 and other judgments
that have been referred to therein and the
said judgments nowhere, in any manner,
dilute the status of the claim of the
petitioner, as such, the said law has been
wrongly applied and the impugned order
deserves to be set aside.

9. Countering the said submissions
Sri Shivam Yadav has invited the
attention of the Court to the case of Union
of India Vs. Doodh Nath Prasad (2000)
Volume 2 SCC page 20 and he has
further contended that the judgment in the
case of Shubhash Chandra Vs. Delhi
Subordinate Services selection board
(2009) Volume 15 page 458 the meaning
of the words "Ordinary resident and
domicile" has been dealt with, and
according to which the petitioner has
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
failed to establish his domicile, and
consequently the conclusion drawn in the
impugned order does not suffer from
infirmity. He further submits that if the
petitioner does not belong to the State of
U.P. then he cannot be extended the
benefit of reservation as he had already
migrated a generation back to the
erstwhile State of M.P. and is now a
resident of Chattisgarh. Sri Yadav has
relied on the judgment of a learned Single
Judge of this Court in the case of Param
Jeet and others Vs. Chief Executive
Officer NOIDA Writ Petition No. 25844
of 2007 decided on 1st June, 2012 to
substantiate his submission.

10. Sri Shivam Yadav has then
urged that the appointment orders of
similarly situated employees are available
for perusal, and the petitioner as well as
the other incumbents whose services have
been terminated, have been unable to lead
any cogent evidence to factually establish
their domicile. They have failed to
discharge their burden as such the
impugned order does not require any
interference by this Court. He, therefore,
submits that the claim of the petitioner
deserves rejection.

11. He then invited attention of the
Court to a Division Bench Judgment in
the case of Mohammad Hasan Zafari
Vs.Director of Higher Education in
Writ Petition No. 26044 of 2000 decided
on 2nd April, 2004 to contend that if the
petitioner has failed to produce a valid
caste certificate from the State of U.P.
then the benefit of reservation under
Section 9 of the U.P. Public Services
Reservation for Schedule Caste and
Schedule Tribe and other backward 1994
cannot be extended to the petitioner.

12. With the support of the aforesaid
judgments and the other judgments that
have been cited at the bar including the
judgment in the case of Bhagwan Das
Vs. Kamal 2005 Volune 11 SCC Page
66 it has been urged that the domicile of
the petitioner having not been established
there is no occasion to extend the benefit
of reservation to the petitioner within the
State of U.P.

13. After the matter was heard at
length, all the learned counsel for the
parties agreed that the matter be disposed
of finally at this stage itself, and that no
further affidavits are required to be filed
keeping in view the legal issues that have
been raised in the present writ petition.
Accordingly, this writ petition is being
disposed of finally itself with the consent
of the parties.

14. The issue of extending the
benefit of reservation within the State of
origin is no longer res integra and
beginning with the case of Marri Chandra
Shekhar Rao (supra), this issue has been
universally accepted by all the High
Courts, and the judgments being affirmed
by the Apex Court, to the effect that a
Schedule Caste who is notified within his
state of origin as on the date of the
Presidential Order the said Scheduled
Caste is entitled to the benefit of
reservation in his State of origin only.

15. The peculiar circumstances that
arise, as has arisen in this case, is on
account of migrations. The question of
issuing certificates or recognition of the
caste in another State was dealt with in
the case of Action Committee (supra) and
the aforesaid issue is no longer res integra
where it has been reiterated that it is the
state of origin where a schedule caste duly
2 All] Bhuneshwar Prasad Kureel Vs. State of U.P. & Ors.
869
notified will get the benefit of reservation.
The peculiarity of the present case is that
the petitioner claims that his father was a
domicile and resident of the State of Uttar
Pradesh as on the date of notification of
the Presidential Order and, therefore, the
petitioner is also entitled to the benefit of
reservation even if he had migrated with
his father to the State of Madhya Pradesh
and now he is living in the State of
Chattisgarh. The aforesaid issue of claim
of reservation in relation to the State came
up for consideration in two cases of the
Bombay High Court, namely, Chetna wife
of Rajendra Vs. Committee for Scrutiny
of Caste 2005 Volume 4 Maharastra Law
general page 711 and in a latest decision
of the Bombay High Court in the case of
Preeti Gopalrao Kamble VS. The
Principal in writ petition No. 3627 of
2011 decided on 10th October, 2012. The
Bombay High Court was scrutinizing this
aspect of the matter and had catalogued
the entire law with regard to migration
and reorganization of States, and had then
drawn its conclusion to hold that the
object of including a caste or a tribe in the
schedule to the orders was to do away
with their disadvantaged position in the
areas where they resided viz a viz other
population. The crucial test, therefore,
was whether the person concerned suffers
the decree of disadvantage as claimed by
him by virtue of his being a schedule
caste of the State of his origin or not. It
has further been held that it is the date
which is equally relevant in order to
identify the persons as belonging to a
caste included in the schedule on the date
of such notification with reference to the
locality. Therefore, according to the said
decision a person claiming benefit will
have to show that he or his ancestors
hailed on the date of the notification from
a caste in the schedule from a place
identified in the schedule. In other words
the relevant date is not the date of
migration but the date of inclusion of the
caste or tribe in the schedule.

16. It is to be remembered that the
benefit of reservation in a State to a
particular caste is founded on the social
philosophy of the caste having been
oppressed for generations in his place of
origin. The inclusion of the caste in the
schedule is a testimony thereof. The birth
of a person in that caste, therefore, entitles
him to the benefit of reservation. How
migration can dissolve the status of
domicile and on the basis of what legal
foundation has not been indicated in the
impugned order.

17. Having considered the said
decision and the ratio thereof, the aforesaid
principle ought to have been observed by the
authority before having proceeded to have
cancelled the appointment of the petitioner
which apparently has not been done nor any
exercise has been undertaken to assess the
evidence which is being relied upon by the
petitioner. It is only on the basis of an
incomplete
legal
proposition
and
an
assumption, that the petitioner does not
belong to the State of Uttar Pradesh, that the
impugned order was passed. The factual
aspects have also not been thrashed out.

18. In my opinion, this exercise resulting
in the impugned order was clearly an erroneous
assumption both in fact and in law and
consequently the impugned order cannot be
sustained. The order dated 26.4.2013 is hereby
quashed. The petitioner shall be entitled to
continue in service and receive salary.

19. It shall be open to the authority
to pass any fresh order in case it is so
warranted in law, after examining the
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
entire gamut of facts and applying the law
as laid down by the Apex Court and as
observed hereinabove after giving an
opportunity of hearing to the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 35696 of 2008

Constable No. 491 C.P. Gabbar Singh

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri P.K. Kashyap, Sri Anoop Mishra

Counsel for the Respondents:
C.S.C.

U.P.
Police
Officers
of
Subordinate
Ranks(Punishment & Appeal) Rules 1991-
Rule 8(2)(b)-petitioner working as Police
Constable-placed
under
suspension
on
involvement in criminal case-even on fair
acquittal
by
appellate
Court-neither
disciplinary authority not appellate authority
taken into consideration thereof-based their
consideration
on
three
grounds-beyond
scope
of
statutory
provisions-power
exercised under Rule 8(2)(b)-contrary to
requirement-held-dismissal order set-a-side
with all consequential benefits.

Held: Para-14 & 15
14-After
considering
all
the
oral
and
documentary
evidences
petitioner
was
acquitted
which
will
be
termed
as
honourable
acquittal.
Surprisingly
the
appellate authority in its order dated
27.3.2008 did not consider the acquittal
order dated 20.7.2007 rather rejected the
plea taken by the petitioner on the ground
that there was report of Circle Officer,
Pilibhit
dated
22.1.2007
against
the
petitioner and charge sheet has been filed.
The said approach of the appellate authority
is illegal.

15. Moreover in view of the above
discussion it is clear that power exercised
by the Superintendent of Police, Pilibhit
under Rule 8(2) (b) of the Rules is contrary
to the requirement as laid down in the said
Rules. The order of dismissal does not fulfil
the requirement of the aforesaid Rule and,
therefore,
cannot
be
sustained.
The
appellate order also cannot survive. Both
the orders dated 26.6.2007 and 27.3.2008
are hereby quashed.

Case Law discussed:
2006(8) ADJ 570; 2006(4) ESC 2303 (All.) ;2005
(2) ESC (All.)1229; 2006(1) ESC 374; (1991) 1
SCC 362

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Anoop Mishra, learned
counsel for the petitioner and learned standing
counsel.

2. Challenge in the present writ
petition is the dismissal order dated
26.6.2007 and the appellate order dated
27.3.2008 dismissing the services of the
petitioner under the U.P. Police Officers
of Subordinate Ranks(Punishment and
Appeal) Rules, 1991(hereinafter referred
to as the "Rules, 1991").

3. The facts of the case in brief are
that petitioner while working as constable
in Pilibhit was dismissed by order dated
26.6.2007 passed by the Superintendent
of Police, Pilibhit invoking power under
Rule 8(2)(b) of the Rules. It was indicated
in the order of dismissal that case crime
no. 668 of 2006 under sections 364, 302,
201 I.P.C. has been registered by the
petitioner's son against him and three
other persons. Petitioner was arrested and
sent to district jail , Pilibhit. The charge
sheet no. 201/2006 dated 19.10.2006 was