# Dr. Anjana Parmar v. State of U.P. & others

- **Citation:** Service Bench No. 1815 of 2011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-10
- **Case number:** Service Bench No. 1815 of 2011
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi(Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anjana-parmar-v-state-of-u-p-others-42943
- **Pages:** 4

## Headnote

Constitution of India-Act-226- Termination
of Services-on ground Petitioner does not
belongs to S.C.-as the cost 'Bhotia' has been
ousted by letter dated 09.05.2007-heldonce by exercising Power under Art. 342the Central Govt. by G.O. dated 09.05.2007notified the cost of Bhotia as 'S.C.'-the letter
dated. 09.05.2007 merely a request-can not
overright the central Govt. notificationimpugned order passed on unfounded
ground-without
application
of
mindquashed.
Held: Para-5
We are of the view that till notification of
the year 1967 is operative, it has got
force of law and being constitutional
mandate, there is no option on the part
of the respondents except to obey and
provide
reservation
under
Bhotia,
Jannsari and Raji communities. The
impugned order seems to have been
passed on unfounded ground. The U.P.
Public
Service
Commission
has
incorrectly interpreted the letter dated
9.5.2007 (supra) sent by the State of
U.P. to Government of India. It is only
the request to accept or reject it. Since
prayer of the State Government of U.P. is
still under consideration, the impugned
order has been passed on unfounded
ground and without application of mind.

## Text

1 All Smt. Shyam Wati Vs. State of U.P. And Others
545
This relevance at all in as much as that in
this case the District Magistrate had
appointed the District Basic Education
Officer to hold a preliminary enquiry and
undisputedly, District Basic Education
Officer is a District level officer and,
therefore, being a district level officer and
having been nominated by the District
Magistrate for holding the preliminary
enquiry fully fall within the meaning of
Enquiry Officer as defined under Rule
2(c) of the Enquiry Rules. In the case in
hand there was no appointment of the
Enquiry Officer by the District Magistrate
and two members of the Enquiry
Committee appointed by the Chief
Development
Officer
who
is
not
competent to appoint Enquiry Officer
under 1997 Enquiry Rules, could not at all
act as Enquiry Officer and any report with
their participation in the Enquiry could
not be taken as an Enquiry Report under
Rule 4. Therefore, the case of Smt Malti
Devi (Supra) had no relevance or nay
bearing at all so far as the present case is
concerned.

64. In view of above, I am of the
considered view that the order impugned
is not sustainable in the eyes of law.

65. The writ petition as such is
allowed. The order impugned dated
04.03.2013 (Annexure No. 1) is hereby
quashed. The District Magistrate may
pass a fresh order in accordance with law

66. The parties shall bear their cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.04.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR
TRIPATHI(II), J.

Service Bench No. 1815 of 2011

Dr. Anjana Parmar ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Yadav Warsi

Counsel for the Respondents:
C.S.C., Sri Rajneesh Kumar

Constitution of India-Act-226- Termination
of Services-on ground Petitioner does not
belongs to S.C.-as the cost 'Bhotia' has been
ousted by letter dated 09.05.2007-heldonce by exercising Power under Art. 342the Central Govt. by G.O. dated 09.05.2007notified the cost of Bhotia as 'S.C.'-the letter
dated. 09.05.2007 merely a request-can not
overright the central Govt. notificationimpugned order passed on unfounded
ground-without
application
of
mindquashed.
Held: Para-5
We are of the view that till notification of
the year 1967 is operative, it has got
force of law and being constitutional
mandate, there is no option on the part
of the respondents except to obey and
provide
reservation
under
Bhotia,
Jannsari and Raji communities. The
impugned order seems to have been
passed on unfounded ground. The U.P.
Public
Service
Commission
has
incorrectly interpreted the letter dated
9.5.2007 (supra) sent by the State of
U.P. to Government of India. It is only
the request to accept or reject it. Since
prayer of the State Government of U.P. is
still under consideration, the impugned
order has been passed on unfounded
ground and without application of mind.

(Delivered by Hon'ble Devi Prasad Singh, J)
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

1. Heard learned counsel for the
petitioner and the learned counsel for the
respondents.

2. Instant writ petition under Article
226 of the Constitution of India, has been
preferred against the impugned order
dated 26.5.2011, passed by the U.P.
Public Service Commission, Allahabad,
rejecting petitioner's claim for benefit of
reservation under the caste Bhotia,
belonging to the category of scheduled
tribe. The reason assigned therein is that
in accordance with the Government order
dated 9.5.2007, the caste Bhotia, does not
fall within the category of scheduled tribe
in the State of U.P. By assailing the
impugned
order,
petitioner's
counsel
invited attention to the notification issued
under Article 342 of the Constitution of
India, in the year 1967 according to
which, Bhotia caste, has been included
under scheduled tribe. The notification as
filed with the writ petition, is reproduced
as under:-

"The
Constitution
(Scheduled
Tribes) (Uttar Pradesh) Order, 1967

(C.O.78)

In exercise of the powers conferred
by clause (1) of article 342 of the
Constitution of India, the President, after
consultation with the Governor of the
State of Uttar Pradesh, is pleased to make
the following Order, namely:-

1.The order may be called the
Constitution (Scheduled Tribes) (Uttar
Pradesh) Order, 1967

2.The tribes or tribal communities, or
parts of, or groups within tribes or tribal
communities specified in the Schedule to
this Order, shall for the purposes of the
Constitution of India, be deemed to be
Scheduled Tribes in relation to the State
of Uttar Pradesh so far as regard members
resident in that State.

THE SCHEDULE

1.Bhotia

2.Buksa

3.Jannsari

4.Raji

5.Tharu

Published with the Ministry of Law
Notice No.G.S.R. 960, dated the 24th
June,
1967,
Gazette
of
India,
Extraordinary, 1967, Part II, Section (1),
Page 311."

3. Aforesaid notification has got
constitutional mandate and accordingly,
Bhotia caste comes within scheduled
tribe. Article 342 provides that the
President with respect to any State, after
consultation with the Governor, shall
issue notification specifying the tribes or
tribal communities or part of or groups
within tribes or tribal communities which
shall for the purposes of the Constitution
be deemed to be Scheduled Tribes in
relation to that State. Accordingly, the
aforesaid
proposition
creates
constitutional rights in favour of the
petitioner to claim the benefit of Bhotia
caste under the category of scheduled
tribe.

4. Now, coming to the argument
advanced by the respondents' counsel that
in view of the order dated 9.5.2007, the
petitioner is not entitled to claim benefit
of reservation under scheduled tribe
category, seems to be misconceived
argument. The Government order dated
9.5.2007 (contained in Annexure No.2 to
the writ petition) reveals that matter has
1 All Dr. Anjana Parmar Vs. State of U.P. And Others
547
been referred to the Government of India
to exclude Bhotia, Jannsari and Raji
castes since they are not available in the
State of U.P. No decision has been taken
by the Government of India in this regard.
Whether the petitioner resides in State of
U.P. or not and belongs to Bhotia caste or
not, is a question of fact which may be
looked into by the respondents and it is
not for the Court but so far as the right of
persons belonging to Bhotia community is
concerned, it is well protected by the
notification of the year 1967 (supra) and
they may claim reservation as guaranteed
(supra) belonging to scheduled tribes
category. The letter dated 9.5.2007 is
reproduced as under:-

"संया--15/19/2001-- का--4--2007
ेषक,

सुरेश च यादव,

वशेष कायािधकार,

उर देश शासन।
सेवा म,

सिचव,

लोक सेवा आयोग,

उर देश, इलाहाबाद।

अनुभाग--4 लखनऊः*दनांकः 09
मई, 2007

वषयः- उर देश क, अनुसूिचत
जनजाितय0 के संबंध म ।

महोदय,

उपयु2 वषयक, समसंयक प3
*दनांक 03 जून, 2002 के 4म म आपको
यह अवगत कराने का मुझे िनदेश हआ है ु
*क
समसंयक
प3
*दनांक
26.7.2004 के 7ारा भारत सरकार से यह
अनुरोध *कया गया था *क भे*टया, बु:सा,
जौनसार, राजी एवं था> जनजाितय0 म से
मा3 बु:सा और था> जनजाितय0 के
कितया सद@य उर देश राAय के
कितपय Bे30 मे िनवास करते हC, भो*टया,
जानसार तथा राजी जनजाितय0 के
सद@य उर देश राAय म नहं हC, अतः
संवधान के अनुDछेद-342(1) के 7ारा
द श2य0 के आधार पर यापत
'संवधान
(अनुसूिचतनजाितयां)
(उर
देश) 1967' को संशोिधत करते हएु,
भो*टया, जौनसार एवं राजी जनजाितय0
को उ2 आदेश से वलोपत करने का कF
कर।

2. भारत सरकार 7ारा उर देश
राAय के उ2 @ताव के संबंध म कितपय
संवीBाय क, गयी हC Gजनका उर समाज
कHयाण वभाग के *दनांक 09 मई, 2007
के 7ारा भारत सरकार को ेषत करते
हएु, पूव ेषत @ताव के आधार पर
कायवाह करने का अनुरोध *कया गया है।

3. उपयु2 से यह @पF है *क सJित
करण भारत सरकार के वचाराधीन है।
भारत सरकार 7ारा िलये जाने वाले िनणय
से यथासमय आयोग को अवगत कराया
जायेगा।

भवदय,

(सुरेश च यादव)

वशेष कायािधकार।
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

संया--15/19/2001(1)--
का--4--
2007 त*Kनांक।

ितिलप, िनJनिलGखत के सूचनाथ
एवं आवLयक कायवाह हेतु ेषत

1. समाज कHयाण अनुभाग- 3 को
उनके
प3
संया-1719/26-3-2007-3
(11)/2006, *दनांक09 मई, 2007 के संदभ
म।

2. कािमक अनुभाग-2

आMा से,

(सुरेश च यादव)

वशेष कायािधकार।"

5. We are of the view that till
notification of the year 1967 is operative,
it has got force of law and being
constitutional mandate, there is no option
on the part of the respondents except to
obey and provide reservation under
Bhotia, Jannsari and Raji communities.
The impugned order seems to have been
passed on unfounded ground. The U.P.
Public
Service
Commission
has
incorrectly interpreted the letter dated
9.5.2007 (supra) sent by the State of U.P.
to Government of India. It is only the
request to accept or reject it. Since prayer
of the State Government of U.P. is still
under consideration, the impugned order
has been passed on unfounded ground and
without application of mind.

6. In view of the above, the writ
petition deserves to be allowed.

7. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 26.5.2011 contained in Annexure
No.1 to the writ petition with all
consequential benefit. Respondents shall
reconsider
the
petitioner's
case
for
selection
and
appointment
against
available vacancies in accordance with
Rules under ST category expeditiously
say, within four months.

8. No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.04.2013

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Service Bench No.1885 of 2011

Nupur Verma ...Petitioner
Versus
Central Ware Housing Corporation

 ...Respondent

Counsel for the Petitioner:
Sri
Rajesh
Singh
Chauhan,
Sri
Vikramaditya Gupta

Counsel for the Respondent:
Sri Anish Srivastava "Lal", Sri Hari Prasad
Gupta
Sri S.M. Royekwar, Sri Shishir Jain

Constitution of India, Art. 226- Termination
of
Service-post
of
Management
Trainee(General)-advertised with minimum
requisite qualification M.B.A. (marketing)-
Petitioner being M.B.A. from B.H.U.-online
application
wrongly
describer
her
qualification as M.B.A.(M)-after written
test-interview-undergone
training-on
verification of record faul game of petitioner
seen the light of day-order passed after
following the principle of Natural justicecontention of petitioner that M.B.A. being
equivalent to M.B.A. fully eligible to be
appointed-held-when
no
equivalent
qualification prescribed in advertisement-