# High Court in Bombay Snuff (P) Ltd v. Union of India, 2006 (194) ELT 264

- **Citation:** (2007) 3 ILRA 1008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-02
- **Case number:** Civil Misc. Writ Petition No. 11336 of 2006
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/high-court-in-bombay-snuff-p-ltd-v-union-of-india-2006-194-elt-264-40983
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.
226Cancellation
of
Admission-petitioner
applied as S.T. candidate-at the time of
counseling
produced
the
original
certificate-allowed to persue 5 years
M.B.B.S.
course-cancellation
of
admission on the ground that petition is
not S.T. candidate particularly when the
father of petitioner-working as S.T.
candidate with central Government.

Held: Para 13

The further important factor of this case
that the petitioner was admitted to the
Course of five years in the year 2002 but
3 All] Vijay Soren V. The State of U.P. and others
1009
when the petitioner was in fourth year
and only one year was left to be
completed for full course, at that stage,
the admission of the petitioner has been
cancelled. If there was any doubt in the
mind of the respondents at the time of
admission
that
the
certificate
of
scheduled
tribe
submitted
by
the
petitioner is not in accordance with
guidelines, it should have been verified
immediately and if the respondents
comes to the conclusion at that stage,
the admission would have cancelled. But
after completion of four years, of course,
the admission of the petitioner has been
cancelled.

## Text

1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
471 wherein Hon'ble Lahoti, J., as His
Lordship then was, had also taken the
same view and the said decision of
Hon'ble Delhi High Court was followed
by Division Bench of Hon'ble Bombay
High Court in Bombay Snuff (P) Ltd.
Vs. Union of India, 2006 (194) ELT 264.
Both the judgements of Hon'ble Delhi
High Court and Hon'ble Bombay High
Court have been affirmed by Hon'ble
Apex Court in Ambica Industries
(Supra). Moreover, concept of part of
cause of action as laid down in
Nasiruddin Vs. STAT, 1975 (2) SCC
671:AIR 1976 SC 331 and Kusum
Ingots & Alloys Ltd. Vs. Union of
India, 2004 (6) SCC 254, which was
relied upon in order to contend that the
jurisdiction would lie in the High Court
within
whose
territorial
jurisdiction
Tribunal has decided the matter, has also
been considered and distinguished in para
30 in Ambica Industries (Supra).

7. What has been observed by the
Apex Court in para 30 of the judgment in
Ambica Industries (Supra) squarely
apply to the present case also. Here also if
it is held that the petitioners can elect to
file writ petition either before Allahabad
High Court or Uttarakhand High Court,
that may likely to result in conflicting
judgements besides the fact that the
judgment of Allahabad High Court may
not be binding on the authorities who are
outside the territorial jurisdiction of this
Court.

8. In our view, the preliminary
objection
with
respect to
territorial
jurisdiction is squarely covered by the
Apex
Court
decision
in
Ambica
Industries (Supra) and has to be
sustained. The law laid down in Jamshed
N. Guzdar (Supra) was wholly on
different facts and circumstances and has
no relevance to the issue involved in the
present writ petition. Accordingly, we
uphold the preliminary objection and
dismiss the writ petition for lack of
territorial jurisdiction since, in our view,
the petitioner can file writ petition before
the Hon'ble Uttarakhand High Court and
not in Allahabad High Court. The writ
petition is accordingly dismissed for want
of territorial jurisdiction. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2007

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 11336 of 2006

Vijay Soren

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Shyamal Narain

Counsel for the Respondents:
Sri Mahendra Pratap Singh
S.C.

Constitution
of
India,
Art.
226Cancellation
of
Admission-petitioner
applied as S.T. candidate-at the time of
counseling
produced
the
original
certificate-allowed to persue 5 years
M.B.B.S.
course-cancellation
of
admission on the ground that petition is
not S.T. candidate particularly when the
father of petitioner-working as S.T.
candidate with central Government.

Held: Para 13

The further important factor of this case
that the petitioner was admitted to the
Course of five years in the year 2002 but
3 All] Vijay Soren V. The State of U.P. and others
1009
when the petitioner was in fourth year
and only one year was left to be
completed for full course, at that stage,
the admission of the petitioner has been
cancelled. If there was any doubt in the
mind of the respondents at the time of
admission
that
the
certificate
of
scheduled
tribe
submitted
by
the
petitioner is not in accordance with
guidelines, it should have been verified
immediately and if the respondents
comes to the conclusion at that stage,
the admission would have cancelled. But
after completion of four years, of course,
the admission of the petitioner has been
cancelled.

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition the petitioner has approached this
Court for quashing the order dated
7.2.2006 passed by the Principal B.R.D.
Medical College, Gorakhpur cancelling
the petitioner's admission to the MBBS
Course (Annexure 11 to the writ petition).
Further a writ in the nature of mandamus
directing the respondents to allow the
petitioner to pursue his studies in the
MBBS Programme at B.R.D. Medical
College, Gorakhpur.

2. The facts arising out of the
present writ petition are that the petitioner
is a son of one Sri Smanta Rai Soren who
originally belongs from village Deo
Kundi,
District
Mayurbhanj,
Orissa.
Petitioner belong to Santhal tribe which is
recognised as a scheduled tribe under the
Constitution (Scheduled Caste) Order
1950, the Constitution (Scheduled Tribes)
Order 1959 as amended by Scheduled
castes
and
Scheduled
Tribes
(Amendment) year 1976. Petitioner's
father is a Central Government employee
and was entered in service as medical
officer in the year1981 as a reserved
category candidate on the instant of his
being a member of scheduled tribe. The
father of the petitioner was given benefit
of reservation and presently posted as
Chief
Medical
Officer
Central
Government Health Scheme at Lucknow.

3. The petitioner appeared in
combined Pre Medical Test in 2002 as a
Scheduled
Tribe
candidate
claiming
benefit of reservation. The result was
declared in October, 2002 and the name
of the petitioner appeared in the list of
successful candidates. The counselling
taken place at King George Medical
College Lucknow on 25th October, 2002.
At the time of counselling the petitioner
submitted a scheduled tribe certificate
dated 23.7.1997 issued by Tehsildar
Bahalda District Mayurbhanj Orissa and
another certificate dated 12.6.2001 issued
by the Additional City Magistrate (IIIrd)
Lucknow. It has been mentioned in the
said
certificate
that
the
aforesaid
certificate is being issued on the basis of
certificate dated 23.7.1997. An objection
was taken by the authorities at the time of
counselling that the certificate dated
12.6.2001 not being as per prescribed
proforma, as such, the petitioner was
required to submit a fresh certificate in
the
prescribed
format.
Under
these
circumstances, the father of the petitioner
approached the authority and petitioner
furnishes
a
fresh
certificate
dated
25.10.2002 in a prescribed format issued
under a sealed and signature of Prabhandh
Adhikari on behalf of the District
Magistrate, Lucknow. The petitioner was
allocated
B.R.D
Medical
College,
Gorakhpur and was admitted to the
MBBS Course on 31.10.2002. The
petitioner was pursuing his studies and
was presently studying in Fourth year in
1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
MBBS examination (i.e. the penultimate
year of the course).

4. The petitioner was served with a
show cause notice dated 19.11.2005, with
an allegation that the certificate of
scheduled
tribe
submitted
by
the
petitioner had been sent to the District
Magistrate, Lucknow for verification
whereupon the District Magistrate had
replied stating therein that the said
certificate had not been issued by the
office and as such, the same was not
being confirmed. The show cause notice
further states that as on the alleged refusal
on the part of the office of the District
Magistrate,
Lucknow
regarding
confirming the petitioner's certificate, the
petitioner was directed to show cause by
7.12.2005 that as to why the admission be
not cancelled. The petitioner was not
furnished with a copy of the alleged letter
of the District Magistrate, Lucknow dated
10.6.2005 nor the letter of the Director
General dated 9.10.2002. There was no
whisper in the said show cause notice that
which
certificate
furnished
by
the
petitioner had been sent to the District
Magistrate office for verification. As the
show cause notice was served upon the
petitioner on 1.12.2005 therefore, a
request was made by the petitioner to the
Principal of the College vide request letter
dated 3.12.2005 for granting one month
time for submitting the explanation.
Though no letter was issued by the
Principal of the College extending the
time but it was verbally allowed the
petitioner to submit his reply on the basis
of request made by the petitioner. The
petitioner submitted a reply on 4.1.2006
which was received in the office of
principal on 6.1.2006. With the reply, the
petitioner has also submitted a fresh
scheduled tribe certificate dated 3.1.2006
issued in a prescribed format under the
seal and signature of tehsildar, Sadar,
Lucknow. A bare perusal of the said
certificate would show that the same has
been issued on the basis of the enquiry
report dated 12.12.2005 submitted by the
Revenue
Inspector,
Lucknow
dated
23.12.2005 written by the Tehsildar,
Bahalda,
Mayurbhanj,
Orissa.
The
petitioner came to know that the principal
of the college has sent a letter to the
Director General Medical Education and
Training, Lucknow on 24th December,
2005 conveying the petitioner's request
for grant of one month's time for filing his
reply. On 10.1.2006, the principal has sent
a fax letter to the Director General
recommending
cancellation
of
the
petitioner's admission. The petitioner is
not in a possession of the said letter and it
was never served to the petitioner. When
the petitioner came to know regarding the
aforesaid fact, as a measure of abundant
precaution, sent directly a reply of the
show cause notice to the Director General
on 18.1.2006, annexing all the relevant
documents.
It
appears
that
without
considering the reply of the petitioner to
the show cause notice, the admission of
the petitioner to MBBS was cancelled
vide order dated 7.2.2006 passed by the
Principal of the said college. Aggrieved
by the aforesaid order of cancellation, the
petitioner has approached this Court.

5. Notices were issued and the
respondents were granted time to file
counter affidavit. Further a direction was
given to permit the petitioner to continue
his course and permit him to appear in the
semester as well as in the written
examination
without
taking
into
consideration the order dated 7.2.2006,
but the result will be subject to the
decision of the writ petition.
3 All] Vijay Soren V. The State of U.P. and others
1011
6. It has been submitted by the
learned counsel for the petitioner that
even the reply of show cause notice dated
19.11.2005 was received in the office of
the Principal on 6.1.2006. The impugned
order
contains
a
specific
and
unambiguous recital to the effect that the
documents and letter furnished by the
petitioner in his defence had been
forwarded to the Director General dated
24th December, 2005. A bare perusal of
the impugned order clearly appears that a
direction issued by the Director General
vide letter dated 20.10.2006 copy of the
same has never been furnished to the
petitioner. The letter dated 24th December,
2005 sent to the Director General was
confined the issue of grant of further time.
As the reply filed by the petitioner is only
submitted in the office of the principal on
6.1.2006, there could not be any question
of his reply and other documents and
letters annexed thereof being forwarded to
the Director General for consideration. As
the order dated 7.2.2006 cancelling the
candidature of the petitioner is on the
basis of the principal's letter dated
24.12.2005, a conclusion can be drawn
that the said direction has been issued
without considering the reply of the
petitioner.

7. The order dated 7.2.2006 has been
passed
arbitrarily
without
affording
proper opportunity to the petitioner. The
respondents while passing the aforesaid
order
have
failed
to
take
into
consideration the undisputed fact that
subsequent
certificate
issued
from
Lucknow is on the basis of the original
certificate dated 23.7.1997 issued by the
State of Orissa from where the petitioner
and his family belongs. There is no
dispute that the father of the petitioner is
in government service on the strength of
his candidature as a member of a
recognised scheduled tribe, enjoying the
benefits of reservation in job. As the
petitioner's
father
is
indisputedly
a
member of one of the recognised
scheduled tribes enjoying the benefit of
reservation and serving in a government
job as a reserved category candidate, it
cannot be presumed that the certificate
submitted by the petitioner in any way is
false and fabricated. The effect of the
cancelling of the admission by impugned
order dated 7.2.2006, the petitioner being
a IVth year student of five years medical
course, the effect of the cancellation is
that the career of the petitioner has come
to halt and the petitioner has been stopped
from attending the classes and also been
directed to vacate the hostel.

8. Further submission has been
made by the learned counsel for the
petitioner is that the caste certificate
submitted at the time of counseling was
issued from the State of Orissa by the
competent authority. It is not the case of
the respondents that certificate dated
23.7.1997 is forged one and has not been
issued from the office of tehsildar
Bahalda, State of Orissa. The relevant
authority situated at Lucknow has issued
the subsequent certificate on the basis of
the certificate dated 23.7.1997 and a
verification to that effect has also been
made by the authority sitting at Lucknow.
Therefore, it cannot be presumed in any
manner that petitioner does not belong to
scheduled tribe. Further it has been
submitted that Annexure 2, which is the
order
regarding
promotion
of
the
petitioner's father, clearly goes to show
that the petitioner's father is being treated
as a scheduled tribe and as such, the son
cannot be treated otherwise. It is also not
the case of the respondents that the
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
certificate which has been submitted by
the petitioner was in any way forged and
fabricated
by
the
petitioner.
The
certificate dated 3.1.2005 clearly states
that the certificate is being issued on the
basis of certificate of tehsildar Bahalda,
dated 23.7.1997, therefore, under no
imagination it can be presumed that there
is any fault on the part of the petitioner.
Further relevant factor to be considered
by the Court is that as submitted by the
petitioner that the impugned order dated
7.2.2006
has
been
passed
without
consideration of the reply submitted by
the petitioner, as such, the presumption
will be that the said order is an order
without affording an opportunity to the
petitioner, therefore, the same is against
the principle of natural justice.

9. A counter affidavit has been filed
on behalf of the contesting respondents
stating therein that the petitioner was
required to produced original caste
certificate
issued
by
the
concerned
District Magistrate i.e. District Magistrate
Lucknow. Point No.7 indicates that the
students
granted
admission
against
reserved category shall have to submit
original caste certificate issued by the
concerned District Magistrate. Further it
was mentioned that if in future it is found
that the caste certificate submitted by the
candidate is false, there will be a
cancellation of admission. As the District
Magistrate
through
his
letter
dated
15.6.2005 informed the principal that the
certificate in question was not issued from
his office, on that basis a show cause
notice was given. Further it has been
stated in the counter affidavit that on the
basis of the letter dated 20.1.2006 the
principal of the institution has cancelled
the admission of the petitioner. The
student admitted against the reserved
category must submit the original caste
certificate
from
concerned
District
Magistrate,
therefore,
the
certificate
issued from Tehsildar Bahalda, State of
Orissa,
cannot
be
taken
into
consideration, so far as U.P. CPMT
examination
is
concerned.
As
the
admission
of
the
petitioner
was
provisional, therefore, the admission of
the petitioner was cancelled.

10. I have heard learned counsel for
the petitioner and learned counsel for the
respondents and have perused the record.

11. There is no dispute to this effect
that the father of the petitioner is a central
government employee having granted
benefit of scheduled tribe. Therefore,
legally it will be presumed that the
petitioner is also entitled to benefit of the
category of scheduled tribe. It is also
apparent from the record that at the time
of
counselling,
the
petitioner
has
submitted a caste certificate issued from
the office of Tehsildar Bahalda dated
23.7.2007 and when the petitioner was
directed to submit a certificate of district-
Lucknow, a certificate was issued in
favour of the petitioner with a clear
indication that the said certificate is being
issued to the petitioner on the basis of
certificate of 1997. Subsequently, again,
the petitioner has obtained a certificate
dated 3.1.2006 in a proper format in
which it has also been mentioned after
verification it was found that the said
certificate of Scheduled Tribe is being
issued on the basis of the certificate dated
23.7.2007 and it is also relevant that the
said certificate of 1997 has been verified
by the concerned authority.

12. Further it is also clear from the
order dated 7.2.2006 that the said order
3 All] Vijay Soren V. The State of U.P. and others
1013
has been issued by the Principal of the
institution on the basis of the direction
issued by the Director General. It is also
apparent that the letter dated 24.12.2005
is a letter sent by the Principal to the
Director General for taking guidance that
what action has to be taken on the basis of
reply submitted by the petitioner. It is not
clear from the order that reply submitted
by the petitioner to the Principal of the
institution was ever forwarded to the
competent authority for a direction to pass
the appropriate orders. It is also clear
from the record and there is no denial by
the respondents that the petitioner has
directly submitted a reply of show cause
to the Director General, it was only
submitted on 6.1.2006 in the office of
Principal.
Therefore,
there
was
no
question that the principal has forwarded
any paper in the letter dated 24.12.2005.
With abundant precaution the petitioner
has submitted a reply, directly to Director
General annexing all the documents on
18.1.2006. The order dated 7.2.2007
clearly
indicates
that
letter
dated
24.12.2005 is only a letter of guidance.
This clearly goes to show that reply
furnished by the petitioner has never been
forwarded, as such, there will be a
presumption that reply of the petitioner
has not been considered.

13. The further important factor of
this case that the petitioner was admitted
to the Course of five years in the year
2002 but when the petitioner was in
fourth year and only one year was left to
be completed for full course, at that stage,
the admission of the petitioner has been
cancelled. If there was any doubt in the
mind of the respondents at the time of
admission that the certificate of scheduled
tribe submitted by the petitioner is not in
accordance with guidelines, it should have
been verified immediately and if the
respondents comes to the conclusion at
that stage, the admission would have
cancelled. But after completion of four
years, of course, the admission of the
petitioner has been cancelled.

14. In my opinion, it will ruin the
career of the petitioner. Further from the
record there is no denial by the
respondents that the father of the
petitioner who is a government servant
has not been given benefit of scheduled
tribe and it is not the case of the
respondents
that
original
certificate
submitted
by
the
petitioner
dated
23.7.1997 is in any way forged and
fictitious document and the caste shown
therein
is
not
define
under
the
Constitution as scheduled tribe.

In view of the aforesaid fact, the writ
petition is allowed. The order dated
7.2.2006 (Annexure 11 to the writ
petition) passed by the principal B.R.D
Medical College, Gorakhpur is hereby
quashed. A mandamus is issued to the
respondents to permit the petitioner to
continue his studies and permit him to
appear in semester as well as in the
written examination and further the
petitioner will be permitted to complete
his MBBS Course. It is further directed
that respondent No.5 will declare the
result of those examinations in which the
petitioner has already appeared and if due
to inaction of the respondent No.5
petitioner has not been permitted to any of
the paper, he will be permitted to appear
in the next examination.

No order as to costs.
Petition
Allowed.
---------
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 16109 of 1996

Miss Manju Shikdar

...Petitioner
Versus
The General Manager (Planning and
Development), State Bank of Indore and
others

...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Srivastava
Sri Swarn Kumar Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art.
226termination of probationer-inspite of
extension
of
probation
period-not
improved-after
assessment
of
workperformance found unsatisfactory-heldsuch termination neither can be founded
on misconduct nor stigmatic nor amount
to colorable exercise of power-warrant
no interference.

Held: Para 21 & 22

The petitioner in the present case was
also similarly not only given opportunity
to improve herself but even period of
probation was extended yet she could
not avail opportunity and the authorities
found her unsuitable for the job and
unfit for confirmation.

Considering the facts of the present case
as well as after careful reading of the
impugned order of termination and the
law
laid
down
in
above
discussed
authorities, we are clearly of the view
that the impugned order of termination
is neither founded on alleged misconduct
of the petitioner nor can be said to be
stigmatic nor is vitiated on account of
alleged biased or colourable exercise of
power on the part of the appointing
authority. The writ petition, therefore,
devoid of merit and is accordingly
dismissed.
Case law discussed:
AIR 1999 SC-983, AIR 2002 SC-23, 2003 (96)
FLR-1002 (SC), 2005 (106) FLR-1214, J.T.
2005 (7) SC-512, J.T. 1991 (1) SC-108, 2002
(1) SCC-743, 2003 (3) SCC-263, AIR 2005 SC344, AIR 1996 SC-2030, AIR 2006 SC-3471,
AIR 1987 SC-2408

(Delivered by Hon'ble S. Rafat Alam, J.)

1. The order dated 20.01.1999,
dismissing the writ petition in default,
having been recalled vide order of date
passed on the recall application, the writ
petition is restored to its original number.

2. Since the matter is pending since
1996, with the consent of learned counsel
for the parties, we have heard the matter
on merits.

3. The petitioner, who was working
as probationer in the State Bank of Indore
(hereinafter referred to as the "Bank"),
has been terminated by the General
Manager of the Bank vide order dated
16.08.1995 on the ground that after
adjudging her work and performance she
has not been found fit for confirmation
and, therefore, has been terminated during
the period of probation.

4. Learned Counsel for the petitioner
contended that though the petitioner was
probationer, yet the impugned order cast
stigma upon the petitioner and, therefore,
could not have been passed without
giving
any
opportunity.
He
further
contended that the petitioner has made a
complaint against the Branch Manager,
respondent no.4 and it is on account of the