# Rakesh Kumar Nayak v. State of U.P. & Anr

- **Citation:** (2014) 2 ILRA 996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-04
- **Case number:** Civil Misc. Writ Petition No. 26182 of 2014
- **Bench:** Sheo Kumar Singh, Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-nayak-v-state-of-u-p-anr-43067
- **Pages:** 12

## Headnote

Constitution of India, Art. 342(2)-Cast
certificate-'Nayak'-included
as
SC
by
amendment of 2002-any executive order
contrary to that-not sustainable-petitioner
being Nayak by cast applied in S.C. Quotaqualified in written examination-but not
allowed to participate in interview-on
ground Nayak belongs to B.C. And not SC
candidate-held-illegal-direction issued to
hold interview and if aggregate found
more than last selected candidate-of SC
OR
General
category-Public
Service
Commission to -make recommendation.

Held: Para-38
In the peculiar facts and circumstances of
this case, it is accordingly ordered that
the caste certificate of the petitioner as
issued in the year 2007 and as affirmed
by the decision of the State Level Scrutiny
Committee
dated
29.06.2011
and
consequential order of the Tehsildar,
Farenda dated 16.01.2012, shall stand
restored and the petitioner shall be
treated as belonging to the scheduled
tribe.
Consequently,
the
U.P.
Public
Service
Commission
is
directed
to
consider the candidature of the petitioner
in the Uttar Pradesh Combined Upper
Subordinate Services Examination, 2010
under the category of scheduled tribe by
holding an interview for the said purpose
and
assigning
appropriate
marks
accordingly. If after calculating marks
obtained by the petitioner, in the said
examination, it is found that he has
secured
more
marks
than
the
last
selected candidate under the scheduled
tribe category or under the general
category, then suitable recommendation
shall be made, accordingly, to the State
Government
for
the
purpose
of
appointment and the latter shall offer
appointment to the petitioner, either
against an existing available vacancy
relating to the selection of 2010 or
against
future
vacancy,
within
a
reasonable time. The consequences shall
follow
in
accordance
with
law.
Case Law discussed:
AIR 1995 SC 94; [(2012) 1 SCC 333]; [2014
(3) ADJ 595].
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
997

## Text

996 INDIAN LAW REPORTS ALLAHABAD SERIES
appears to be under a misconception about
the application of the Act of 1978. If the total
wage-bill is Rs.50,000/- and default is of
only Rs.26530/- then it is not a default in the
payment of wage-bill of all the workmen in
the establishment, thus, outside the purview
of Act, 1978. If the wage-bill of workmen as
a whole is only Rs.26530/- and is in default,
then also, it is less than Rs.50000/- as such,
out of the purview of the said Act.

6. The Impugned order is quashed.

7. The amount deposited by the
petitioner in pursuance to the interim
order dated 11.05.2001 shall be refunded
to the petitioner.

8. It shall, however, be open for the
workmen to pursue the remedy available
to them under the Payment of Wages Act,
1936.

9. Subject to above, the writ petition
is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2014

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 26182 of 2014

Rakesh Kumar Nayak ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri H.R. Mishra, Sri K.M. Mishra
Counsel for the Respondents:
C.S.C., Sri Ajay Kumar

Constitution of India, Art. 342(2)-Cast
certificate-'Nayak'-included
as
SC
by
amendment of 2002-any executive order
contrary to that-not sustainable-petitioner
being Nayak by cast applied in S.C. Quotaqualified in written examination-but not
allowed to participate in interview-on
ground Nayak belongs to B.C. And not SC
candidate-held-illegal-direction issued to
hold interview and if aggregate found
more than last selected candidate-of SC
OR
General
category-Public
Service
Commission to -make recommendation.

Held: Para-38
In the peculiar facts and circumstances of
this case, it is accordingly ordered that
the caste certificate of the petitioner as
issued in the year 2007 and as affirmed
by the decision of the State Level Scrutiny
Committee
dated
29.06.2011
and
consequential order of the Tehsildar,
Farenda dated 16.01.2012, shall stand
restored and the petitioner shall be
treated as belonging to the scheduled
tribe.
Consequently,
the
U.P.
Public
Service
Commission
is
directed
to
consider the candidature of the petitioner
in the Uttar Pradesh Combined Upper
Subordinate Services Examination, 2010
under the category of scheduled tribe by
holding an interview for the said purpose
and
assigning
appropriate
marks
accordingly. If after calculating marks
obtained by the petitioner, in the said
examination, it is found that he has
secured
more
marks
than
the
last
selected candidate under the scheduled
tribe category or under the general
category, then suitable recommendation
shall be made, accordingly, to the State
Government
for
the
purpose
of
appointment and the latter shall offer
appointment to the petitioner, either
against an existing available vacancy
relating to the selection of 2010 or
against
future
vacancy,
within
a
reasonable time. The consequences shall
follow
in
accordance
with
law.
Case Law discussed:
AIR 1995 SC 94; [(2012) 1 SCC 333]; [2014
(3) ADJ 595].
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
997

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri H.R.Misra, learned
Senior
Advocate
assisted
by
Sri
K.M.Misra on behalf of the petitioner, Sri
R.B.Pradhan, learned Additional Chief
Standing Counsel for the State and Sri
Ajay Kumar, learned counsel for the
Commission.

2. This writ petition has been filed
seeking the following reliefs:

"(i) issue a writ, order or direction in
the nature of mandamus commanding the
respondents to direct the Uttar Pradesh
Public Service Commission, Allahabad to
conduct the interview of the petitioner of
the Uttar Pradesh Combined Upper
Subordinate
Services
(Mains)
Examination, 2010 as a Scheduled Tribe
category and thereupon to declare his
result;

(ii) issue a writ, order or direction in
the nature of mandamus commanding the
respondents authorities to consider the
candidature
of
the
petitioner
for
appointment
against
the
available
vacancies in the Scheduled Tribe category
on the basis of the over all marks obtained
by the petitioner (written and interview
examination) in case the marks obtained
by the petitioner is found higher than the
last selected candidate of Uttar Pradesh
Combined Upper Subordinate Services
(Mains) Examination, 2010;

(iii) issue a writ, order or direction in
the nature of mandamus commanding the
respondent authorities to consider the
candidature of the petitioner for his
appointment
over
and
above
the
candidates
finally
selected
in
the
Scheduled Tribe category on the basis of
over all marks secured by the petitioner
on the basis of written and interview
examination in Uttar Pradesh Combined
Upper Subordinate Services (Mains)
Examination, 2010;"

3. On 9th May, 2014, this Court
passed the following interim order.

"Heard Sri H.R.Misra, learned senior
counsel for the petitioner and Sri Ajay
Kumar,
learned
counsel
for
the
respondent no. 2, the U.P.Public Service
Commission as well as learned Standing
Counsel for the respondent no. 1, the
State.

The petitioner has come up praying
for a Mandamus directing the U.P.Public
Service Commission to consider his
candidature in respect of interviews to be
conducted for the U.P.Combined Upper
Subordinate
Services
(Mains)
Examination, 2010 under the Scheduled
Tribe category.

The petitioner claims himself to be of
'Nayak' caste and submits that he is
entitled to the benefit of such reservation
keeping in view the Presidential Order
dated 7th January, 2003, copy whereof
has been filed as Annexure 1-A to the writ
petition.
Sri H.R.Misra, learned senior counsel for
the petitioner points out that the dispute of
inclusion of the caste of the petitioner, has
already been settled by the Lucknow
Bench of this Court by the judgment
dated 24th February, 2014, copy whereof
has been filed on record and urged that in
spite of the same, the State Government
has yet not issued any direction in
compliance thereof as a consequence
whereof
the
petitioner
is
suffering
recurring loss.
998 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned counsel submits that the
petitioner is pursuing this litigation for
long, yet he has not been successful in
getting the benefit of the said caste as
Scheduled Tribe. Sri Misra has also
placed reliance on a Full Bench decision
of Madras High Court in the case of
Tamilnadu Public Service Commission
vs. R.Manikandan & others [2011 (Vol.
5) ESC 3146 (paragraphs 26 & 27 (E)] to
urge that in view of the status of the
petitioner and his caste, as provided in the
Presidential Order, the petitioner is
entitled
to
the
consideration
and
appointment as Scheduled Tribe.

In our considered opinion, primafacie,
the State Government has now to take
appropriate
steps
for
intimating
the
U.P.Public Service Commission about the
status of the petitioner and his caste as per
the judgement of the Lucknow Bench dated
24.02.2014.
The
respondent
State
Government is therefore, put to show cause
and produce the order passed in compliance
of the judgment of the Lucknow Bench dated
24.02.2014 by the next date of listing.

List on 26.05.2014."

4. On 26th May, 2014, when this
matter was taken up, learned Additional
Chief Standing Counsel appearing for the
State, informed that a meeting of the State
Level Screening Committee was scheduled
to be held on 3rd June, 2014, therefore, the
Court adjourned this case to 2nd July, 2014,
on which date, the decision so taken was to
be communicated to the Court as also to the
respondent Commission.

5. Ultimately, on 4th July, 2014,
matter was taken up and learned Additional
Chief Standing Counsel placed before us
copy of a letter dated 30th June, 2014
containing the decision taken by the State
Level Screening Committee in its meeting
dated 3rd June, 2014, which has been taken
on record and a perusal thereof reveals that
in spite of several rounds of litigations
regarding caste status of the petitioner and
despite pronouncement of the Lucknow
Bench of this Court dated 24th February,
2014 in writ petitions filed by the petitioner
earlier, being Writ Petitions (M.B.) Nos.
8803 & 2606 of 2012, the State Level
Screening Committee has again, without
assigning any plausible reason, taken a
decision for re-enquiry at the local level and
has accordingly issued directions to the
District Magistrate, Maharajganj.

6. We are constrained to observe
that the decision so taken by the State
Level Screening Committee is bereft of
any valid reason, therefore, we proceed to
decide this case.

7. Coming to the facts of this case, it
appears that the petitioner was issued a
caste certificate on 1st November, 2007
declaring him to be a scheduled tribe
being 'Nayak', on the basis whereof, he
applied for the Uttar Pradesh Combined
Upper Subordinate Services Examination,
2010 as a scheduled tribe candidate.

8. On 18th November, 2008, said
caste certificate was cancelled by the
Tehsildar.

9. Being aggrieved, the petitioner
filed Writ Petition No. 7218 (SS) of 2008
before Lucknow Bench of this Court,
which was disposed of with a direction to
the Principal Secretary Social Welfare to
decide petitioner's representation and look
into his grievances.

10. In the mean time, the petitioner
was declared successful in the written
examination held by the Commission but
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
999
due to uncertainty about his caste status,
he was not allowed to appear in the
interview.

11. However, in pursuance of the
direction dated 19.11.2008 of Lucknow
Bench of this Court passed in Writ
Petition No. 7218 (SS) of 2008, matter
was placed before the State Level
Scrutiny Committee, which called for a
report from the Vigilance Cell in
accordance with the dictum laid down by
the Supreme Court in the case of Kumari
Madhuri Patil & another vs. Additional
Commissioner Tribal Development and
others reported in (AIR 1995 SC 94). The
Vigilance Cell submitted its report in
favour of the petitioner whereupon it was
decided to get the same verified by the
Director Tribal Welfare in terms of
paragraph 2 (6) of the Government Order
dated 5th January, 1996, which was in
accordance with the pronouncement of
the apex Court in the case of Kumari
Madhuri Patil (supra).

12. The Director, Tribal Welfare
submitted a favourable report endorsing
the
report
of
the
Vigilance
Cell.
Accordingly, the State Level Scrutiny
Committee, on 29th June, 2011, decided
that the petitioner was entitled to be
issued a caste certificate of scheduled
tribe. The decision dated 29th June, 2011
is quoted herein-below:

"ek0 mPp U;k;ky;] bykgkckn esa ;ksftr fjV
;kfpdk la[;k& 7218@,l0,l0@2008 jkds'k
dqekj uk;d cuke m0 iz0 jkT; o vU; esa ek0 mPp
U;k;ky; }kjk ikfjr vkns'k fnukad 19-11-2008 ds
vuqdze esa izeq[k lfpo lekt dY;k.k foHkkx dh
v/;{krk esa xfBr LdwVuh desVh dh cSBd fnukad
15-6-2011 dks vk;ksftr dh x;hA mDr cSBd esa
funs'kd] vuqlwfpr tkfr ,oa vuqlwfpr tutkfr
'kks/k ,oa izf'k{k.k laLFkku] m0iz0] y[kuÅ rFkk
funs'kd tutkfr fodkl mifLFkr gq, lkFk gh
lrdZrk izdks"B ds vij iqfyl v/kh{kd Hkh
muifLFkr FksA LdwVuh desVh ds le{k viuk i{k
j[kus gsrq izdj.k esa oknh Jh jkds'k dqekj uk;d
mifLFkr gq,A

2& bl laca/k esa lfefr }kjk funs'kd fiNM+k
oxZ dY;k.k ds i= fnukad 28-3-2011 ds ek/;e ls
miyC/k djk;h x;h lrdZrk izdks"B dh tkap vk[;k
dk laKku fy;k x;kA lrdZrk izdks"B us viuh tkap
vk[;k esa Jh jkds'k dqekj uk;d dks vuqlwfpr
tutkfr dk izek.ki= fuxZr fd;s tkus dh laLrqfr
dh gSA viuh tkap vk[;k esa muds }kjk lkjka'kr%
;g mYys[k fd;k x;k gS fd U;k;fgr esa fdlh
O;fDr vFkok tuin fo'ks"k ds uk;d tkfr ds
O;fDr;ksa ds lkFk vU; tuinksa ds uk;d tkfr ds
yksxksa dh rqyuk esa HksnHkko fd;k tkuk lehphu ugha
gSA vr% tkap esa m)r lkfFk;ksa ds dFku ,oa vU;
lk{; ds izdk'k esa Jh jkds'k dqekj uk;d dks vuq0
tutkfr dk izek.ki= fuxZr fd;k tkuk fu;e
fofgr gksxkA

3& mDr rF;ksa ds n`f"Vxr lfefr }kjk lE;d
fopkjksijkUr ;g fu.kZr fy;k x;k fd lrdZrk
izdks"B dh tkap vk[;k ds n`f"Vxr funs'kd]
tutkfr fodkl] m0iz0 y[kuÅ dkfeZd foHkkx ds
'kklukns'k la[;k& 22@16@92&dk&2@1996&Vh0lh0&
III fnukad 05-01-1996 ds izLrj&2 1⁄461⁄2 ds vuqlkj
dk;Zokgh djrs gq, uk;d tkfr ds laca/k esa lqlaxr
fu;eksa ds ifjizs{; esa Jh jkds'k dqekj uk;d ds tkfr
izek.ki= dks lR;kfir djus ds laca/k esa Lor% Li"V
vkns'k tkjh djsaA
ch0ch0flag
funs'kd] cyfoUnj dqekj
funs'kd] tutkfr fodkl]
 izeq[k lfpo]
vuq0tkfr m0iz0 y[kuÅ lekt dY;k.k foHkkx]
,oa vuq0tkutkfr
'kks/k ,oa izf'k{k.k laLFkk

13.

Aforesaid
decision
was
communicated to the Public Service
Commission on 20th September, 2011.

14. Pursuant to the said decision,
Tehsildar, Farenda vide order dated 16th
January, 2012 restored the scheduled tribe
caste certificate issued to the petitioner to
its original serial no. 3588/ 01/ 11/ 2007.
The said decision was also communicated
by the petitioner to the Commission for
consequential action and consideration of
his candidature for the Uttar Pradesh
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Combined Upper Subordinate Services
Examination, 2010, as the sole hurdle in
this regard stood removed. However, the
Commission did not do the needful.

15. On 24/27.02.2012, the Director
Tribal Welfare on his own re-considered
the matter and came to the conclusion that
'Nayak' caste belongs to backward class.

16. Here, it is relevant to point out
that 'Nayak' was included in the list as
scheduled tribe only for certain districts of
Uttar Pradesh including the district
Maharajganj, of which the petitioner was
original inhabitant, by means of the
Scheduled Caste and Scheduled Tribe
Orders (Amendment) Act, 2002 (herein
after referred to as the Amendment of
2002) by which relevant constitutional
Orders were amended and there is no
dispute in this regard.

17. Being aggrieved by the aforesaid
order of Director Tribal Welfare, the
petitioner filed a writ petition being Writ
Petition (M.B.) Nos. 2606 of 2012 before
this Court at Lucknow Bench, and said
order of Director Tribal Welfare was
stayed on 11.04.2012.

18. In the mean time, the State Level
Scrutiny Committee took another decision
on 26.04.2012 cancelling its earlier
decision as also the caste certificate issued
to the petitioner. This decision was also
challenged by the petitioner before
Lucknow Bench of this Court by means
of Writ Petition (M.B.) No. 8803 of 2012.

19. Based on the aforesaid decision
of the Committee, a show cause notice
was issued by the Commission to the
petitioner on 12.10.2012 for having
misrepresented and fraudulently appeared
in the examination in question as a
scheduled tribe candidate. The petitioner
submitted his reply to the show cause
notice.

20. As the petitioner was not
allowed to appear in the aforesaid
examination, he filed writ petition no.
41545
of
2013
for
provisional
consideration of his candidature by the
Commission as the matter was being
unnecessarily delayed.

21. Writ Petitions (M.B.) Nos. 8803
& 2606 of 2012, which were clubbed
together, were heard and finally decided
vide
judgement
and
order
dated
24.02.2014, whereby decision of the
Director
Tribal
Welfare
dated
24/27/02.2012 and the decision of the
State Level Scrutiny Committee dated
26.04.2012, were quashed. The relevant
extracts of the said judgment are being
quoted herein-below:

"Considered the submissions made
by the parties. From the record it
transpires that on 8.1.2003, the Parliament
inserted Entry 6 declaring 'NAYAK' caste
as Scheduled Tribe in the specified
districts. The relevant portion of the
Gazette
Notification
published
on
8.1.2013 reads as under:-

"6. Gond, Dhuria, Nayak, Ojha,
Pathari, Raj Gond (in the districts of
Mehrajganj,
Siddarth
Nagar,
Basti,
Gorakhpur, Deoria, Mau, Azamgarh,
Jonpur,
Balia,
Gazipur,
Varanasi,
Mirzapur and Sonbhadra)."

Thus, it is clear that so long the
Presidential Order is not declared ultra
vires, persons belonging to 'Nayak' shall
continue to be the Scheduled Tribe.
Further, in view of the law laid down by
the Constitution Bench in State of
Maharashtra versus Milind [(2001 (1)
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
1001
SCC 4] and State of Maharashtra versus
Mana Ahim Jamat Mandal [(2006) 4 SC
98], no enquiry by the State Authorities is
permissible to interpret/modify/add the
entry of the Presidential Order.

It is relevant to point out that the
Apex Court in Kumari Madhuri Patil vs
Addl. Commissioner [1994 (6) SCC 241]
has held in clear words that once the State
Level Scrutiny Committee found the
Caste Certificate genuine on the basis of
Vigilance Cell Report, the Director or
Committee did not have jurisdiction to
review the said decision particularly,
when no fresh report of Vigilance Cell
was called or taken into consideration.

Though the Standing Counsel has
produced a Government Order, it is of no
help as it pertains to the year 2001 and he
fails to produce any Government Order
where
the
Nayak
Caste
has
been
considered as Scheduled Tribe after
amendment. Since the caste of the
petitioner has not been considered in light
of
the
aforesaid
Notification,
the
impugned orders are bad in law.

In view of what has been stated
above,
the
impugned
order
dated
21.6.2012 passed in Writ Petition No.577
(MB) of 2013, order dated 24/27.2.2012
passed in Writ Petition No.2606 (MB) of
2012 and order dated 26.4.2012 passed in
Writ Petition No.8803 (MB) of 2012 are
set aside and the matter is remitted to the
Government
for
re-consideration
of
Nayak Caste, which falls in Scheduled
Tribe category, in light of the The
Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 2002. The
State Government shall pass necessary
orders in this context within two months,
in light of the observations made here-inabove.

All the writ petitions are allowed in
above terms."

22. Even after the aforesaid
judgment
dated
24.02.2014,
the
respondents did not take consequential
action nor did they give consequential
benefits to the petitioner.

23. As no decision was taken by the
State Level Scrutiny Committee, the
petitioner filed this writ petition wherein
an interlocutory order, as quoted above,
was passed on 9th May, 2014. Thereafter,
the matter was taken up on 26th May,
2014 and 2nd July, 2014 but requisite
decision of the State Level Scrutiny
Committee could not be placed before the
Court and it was ultimately placed on 4th
July, 2014, when the matter was taken up,
heard and judgement was reserved.

24. Considering the history of
litigation, facts of the case and the settled
legal position, as also the fact that the
respondents have procrastinated in the
matter sufficiently long and have caused
grave
prejudice
to
the
petitioner
jeopardizing his right of fair consideration
in the matter of public employment and
the benefits of reservation available to
him as a scheduled tribe candidate, we did
not deem it fit to grant any further time to
the State for filing a response.

25. The Supreme Court, way back in
the year 1994 laid down the procedure to
be followed for determination of the caste
status of a person so as to ensure speedy
decision in this regard vide its dictum laid
down in the case of Kumari Madhuri Patil
(supra), the relevant extracts of which are
quoted herein-below:
1002 INDIAN LAW REPORTS ALLAHABAD SERIES

"12. The admission wrongly gained
or appointment wrongly obtained on the
basis of false social status certificate
necessarily has the effect of depriving the
genuine Scheduled Castes or Scheduled
Tribes or OBC candidates as enjoined in
the Constitution of the benefits conferred
on them by the Constitution. The genuine
candidates are also denied admission to
educational institutions or appointments
to office or posts under a State for want of
social status certificate. The ineligible or
spur may ious persons who falsely gained
entry resort to dilatory tactics and create
hurdles in completion of the inquiries by
the Scrutiny Committee. It is true that the
applications for admission to educational
institutions are generally made by a
parent, since on that date many a time the
student may be a minor. It is the parent or
the guardian who may play fraud claiming
false status certificate. It is, therefore,
necessary that the certificates issued are
scrutinised at the earliest and with utmost
expedition and promptitude. For that
purpose, it is necessary to streamline the
procedure for the issuance of social status
certificates, their scrutiny and their
approval, which may be the following:

1. The application for grant of social
status certificate shall be made to the
Revenue Sub-Divisional Officer and
Deputy
Collector
or
Deputy
Commissioner and the certificate shall be
issued by such officer rather than at the
Officer, Taluk or Mandal level. 2. The
parent, guardian or the candidate, as the
case may be, shall file an affidavit duly
sworn and attested by a competent
gazetted officer or non-gazetted officer
with particulars of castes and sub-castes,
tribe, tribal community, parts or groups of
tribes or tribal communities, the place
from which he originally hails from and
other particulars as may be prescribed by
the19 Directorate concerned.

3. Application for verification of the
caste
certificate
by
the
Scrutiny
Committee shall be filed at least six
months
in
advance
before
seeking
admission into educational institution or
an appointment to a post.

4. All the State Governments shall
constitute a Committee of three officers,
namely, (1) an Additional or Joint
Secretary or any officer higher in rank of
the Director of the department concerned,
(11) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the
case may be, and (III) in the case of
Scheduled Castes another officer who has
intimate knowledge in the verification and
issuance of the social status certificates.
In the case of the Scheduled Tribes, the
Research Officer who has intimate
knowledge in identifying the tribes, tribal
communities, parts of or groups of tribes
or tribal communities.

5. Each Directorate should constitute
a vigilance cell consisting of Senior
Deputy Superintendent of Police in overall charge and such number of Police
Inspectors to investigate into the social
status claims. The Inspector would go to
the local place of residence and original
place from which the candidate hails and
usually resides or in case of migration to
the town or city, the place from which he
originally hailed from. The vigilance
officer should personally verify and
collect all the facts of the social status
claimed by the candidate or the parent or
guardian, as the case may be. He should
also examine the school records, birth
registration, if any. He should also
examine the parent, guardian or the
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
1003
candidate in relation to their caste etc. or
such other persons who have knowledge
of the social status of the candidate and
then submit a report to the Directorate
together with all particulars as envisaged
in the pro forma, in particular, of the
Scheduled Tribes relating to their peculiar
anthropological and ethnological traits,
deity, rituals, customs, mode of marriage,
death ceremonies, method of burial of
dead bodies etc. by the castes or tribes or
tribal communities concerned etc.

6. The Director concerned, on receipt
of the report from the vigilance officer if
he found the claim for social status to be
"not genuine" or 'doubtful' or spurious or
falsely or wrongly claimed, the Director
concerned should issue show-cause notice
supplying a copy of the report of the
vigilance officer to the candidate by a
registered post with acknowledgement
due or through the head of the educational
institution
concerned
in
which
the
candidate is studying or employed. The
notice
should
indicate
that
the
representation or reply, if any, would be
made within two weeks from the date of
the receipt of the notice and in no case on
request not more than 30 days from the
date of the receipt of the notice. In case,
the candidate seeks for an opportunity of
hearing and claims an inquiry to be made
in that behalf, the Director on receipt of
such representation/reply shall convene
the committee and the Joint/Additional
Secretary as Chairperson who shall give
reasonable
opportunity
to
the
candidate/parent/guardian to adduce all
evidence in support of their claim. A
public notice by beat of drum or any other
convenient mode may be published in the
village or locality and if any person or
association opposes such a claim, an
opportunity to adduce evidence may be
given to him/it. After giving such
opportunity either in person or through
counsel, the Committee may make such
inquiry as it deems expedient and
consider
the
claims
vis-a-vis
the
objections raised by the candidate or
opponent and pass an appropriate order
with brief reasons in support thereof.

7. In case the report is in favour of
the candidate and found to be genuine and
true, no further action need be taken
except where the report or the particulars
given are procured or found to be false or
fraudulently obtained and in the latter
event the same procedure as is envisaged
in para 6 be followed.

8. Notice contemplated in para 6
should be issued to the parents/guardian
also in case candidate is minor to appear
before the Committee with all evidence in
his or their support of the claim for the
social status certificates.

9. The inquiry should be completed
as expeditiously as possible preferably by
day-to-day
proceedings
within
such
period not exceeding two months. If after
inquiry, the Caste Scrutiny Committee
finds the claim to be false or spurious,
they should pass an order cancelling the
certificate issued and confiscate the same.
It should communicate within one month
from the date of the conclusion of the
proceedings the result of enquiry to the
parent/guardian and the applicant.

10. In case of any delay in finalising
the proceedings, and in the meanwhile the
last date for admission into an educational
institution or appointment to an officer
post, is getting expired, the candidate be
admitted by the Principal or such other
authority competent in that behalf or
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed on the basis of the social status
certificate already issued or an affidavit
duly
sworn
by
the
parent/guardian/candidate
before
the
competent officer or non-official and such
admission or appointment should be only
provisional, subject to the result of the
inquiry by the Scrutiny Committee.

11. The order passed by the
Committee shall be final and conclusive
only subject to the proceedings under
Article 226 of the Constitution.

12. No suit or other proceedings
before any other authority should lie.

13. The High Court would dispose of
these cases as expeditiously as possible
within a period of three months. In case,
as
per
its
procedure,
the
writ
petition/miscellaneous petition/matter is
disposed of by a Single Judge, then no
further appeal would lie against that order
to the Division Bench but subject to
special leave under Article 136.

14. In case, the certificate obtained or
social status claimed is found to be false,
the parent/guardian/the candidate should
be prosecuted for making false claim. If
the prosecution ends in a conviction and
sentence of the accused, it could be
regarded as an offence involving moral
turpitude, disqualification for elective
posts or offices under the State or the
Union or elections to any local body,
legislature or Parliament.

15. As soon as the finding is
recorded by the Scrutiny Committee
holding that the certificate obtained was
false, on its cancellation and confiscation
simultaneously, it should be communicated
to the educational institution concerned or
the appointing authority by registered post
with acknowledgement due with a request to
cancel the admission or the appointment. The
Principal etc. of the educational institution
responsible for making the admission or the
appointing authority, should cancel the
admission/appointment without any further
notice to the candidate and debar the
candidate from further study or continue in
office in a post.

13. Since this procedure could be fair
and just and shorten the undue delay and
also prevent avoidable expenditure for the
State on the education of the candidate
admitted/appointed on false social status
or further continuance therein, every State
concerned should endeavour to give effect
to it and see that the constitutional
objectives intended for the benefit and
advancement of the genuine Scheduled
Castes/Scheduled Tribes or backward
classes, as the case may be are not
defeated by unscrupulous persons."

26. Here, it may also be stated that
the directions contained in aforesaid
judgement in Kumari Madhuri Patil's case
(supra), has been affirmed by the apex
Court in its recent pronouncement in the
case of Dayaram vs. Sudhir Batham &
others reported in [(2012) 1 SCC 333]
except direction no. 13 thereof.

27. The State Government also
appears to have issued a Government
Order dated 5th January, 1996 in keeping
with the aforesaid dictum by the Supreme
Court. The said Government Order as
well as the judgement of the apex Court
referred above, have been taken into
consideration by a Division Bench of this
Court in the case of Bindra Prasad Gond
vs. State of U.P. & others reported in
[2014 (3) ADJ 595].
2 All]. Rakesh Kumar Nayak Vs. State of U.P. & Anr.
1005

28. In the instant case 'Nayaks' were
included in the list of scheduled tribe under
Article 342 (2) of the Constitution of India
by the Amendment of 2002, as already
referred earlier and there is no dispute in this
regard. It is trite that the aforesaid entries in
the aforesaid Constitutional Order, cannot be
modified, either by any executive order or by
the Court. In view of this, it was not open for
the authorities to take the plea that 'Nayaks'
in district Maharajganj were not scheduled
tribe but belong to backward class in view of
some Government Order.

29. We have no manner of doubt
that once the State Level Scrutiny
Committee took a decision on 29.06.11 in
the matter, after following due procedure
as prescribed by the apex Court in the
case of Kumari Madhuri Patil (supra), i.e.
after calling for a Report of the Vigilance
Cell and getting it verified by Director
Tribal Welfare, there was no occasion for
the Director Tribal Welfare to have
undertaken a review subsequently i.e.
24/29.02.12, specially on an absolutely
misconceived
ground
based
on
a
Government Order that 'Nayaks' belong to
backward class wholly oblivious of the
amendment in the Constitutional Order
whereby said caste was included in the
list of scheduled tribe relating to district
Maharajganj in the State of U.P.

30. The aforesaid order of the
Director, Tribal Welfare was stayed by
the High Court on 11.04.2012, yet the
State Level Scrutiny Committee took the
decision on 26.11.2012 cancelling the
caste certificate issued to the petitioner
and directing the District Magistrate to act
accordingly. The said decision of the
Committee has been quashed by the High
Court subsequently on 24.02.2014, as
referred earlier.

31. A perusal of the directions
issued by the apex Court in Kumari
Madhuri Patil's case (supra), shows that a
time frame was prescribed for issuance of
the certificate of caste status of a person
so that prejudice may not be caused to a
genuine person and the fraudsters may not
claim benefits which are not due to them
and in the above quoted point no. 10 of
paragraph
12,
provisional
admission/appointment was directed to be
provided. In the instant case, in spite of
decision of the State Level Scrutiny
Committee dated 29.06.2011, no such
provisional consideration was done by the
Commission,
thereby
causing
grave
prejudice to the petitioner, as such, it is
necessary for this Court to undo the
wrong done by the respondents.

32. The violation of fundamental right
of fair consideration in matters of public
employment when established, as in the
instant case, the respondents cannot be
allowed to go scot free nor the victim be left
to suffer merely because the process of
examination may have been completed
during pendency of the aforesaid litigation.
The petitioner has already suffered a lot on
account
of
repeated
litigation
as
a
consequence of arbitrary and illegal actions
on the part of the respondents.

33. In view of above discussion, it is
amply clear that the petitioner who
belongs to a scheduled tribe, was entitled
to be considered for selection and
appointment to the Combined Upper
Subordinate Services in pursuance of the
examination process initiated in the year
2010, as a scheduled tribe candidate, but
the said right and benefit was denied to
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner without any justifiable
reason. Once the State Level Scrutiny
Committee took the aforesaid decision
dated 29.06.2011, it was obligatory upon
the
Commission
to
have
acted
accordingly and it should have considered
the candidature of the petitioner as a
scheduled tribe candidate but this was not
done.

34. In this regard the petitioner has
submitted that though he was treated
differently, others belonging to the same
caste were given benefit of reservation. In
support of his contention,
he
has
mentioned the name of Rajesh Kumar
Nayak, who was declared successful in
the examination in question against the
posts reserved for the scheduled tribe
candidates. Sri Rajesh Kumar Nayak
secured 942.41 marks as per the Select
List issued by the Commission and has
been appointed whereas the petitioner has
been denied fair consideration in the
aforesaid examination for no justifiable
reason.

35. The petitioner has also mentioned
in paragraphs 30 to 33 of the writ petition
that he was declared successful in the
written examination having secured 881.96
marks but was not allowed to appear in the
interview for the reason aforesaid. The
submission is that in case he would have
secured even the minimum 80 out of 200
marks allocated for the interview, he could
have secured 961.96 marks, which would
have been much more than several finally
selected candidates of the scheduled tribe
category.

36. Be as it may, this Court is of the
opinion that once the State Level Scrutiny
Committee vide its decision dated 29.06.2011
held the petitioner entitled to the status of the
scheduled tribe and the subsequent decision of
the
Director
Tribal
Welfare
dated
24/27.02.2012 has been declared without
jurisdiction and unsustainable by this Court
vide judgement dated 24.02.2014 and the
subsequent decision of the State Level
Scrutiny Committee dt. 26.11.2012 has also
met the same fate vide the same judgement,
the irresistible conclusion is that the petitioner
was rightly issued the caste certificate on
01.11.2007 and he was rightly declared as
belonging to the scheduled tribe by the State
Level Scrutiny Committee vide its decision
dated 29.06.2011, consequently, he is entitled
to the benefits of reservation available to the
candidates of scheduled tribe category in the
Uttar Pradesh Combined Upper Subordinate
Services Examination, 2010 irrespective of
the fact that the process of the said
examination may have been completed and
the appointments may have been made. The
respondents cannot be allowed to take
advantage of their own wrongs by taking the
plea as raised by the Commission that the
examination process was initiated way back in
the year 2010. The respondents are under an
obligation to make good the wrong committed
by them and to rectify their mistake. The
petitioner cannot be made to suffer for the
wrongs done by the respondents.

37. The State Level Scrutiny
Committee while directing re-inquiry on
30.06.2014, has neither expressed any
doubt regarding report of the Vigilance
Cell as affirmed by it earlier on
29.06.2011 nor has given any reason for
such a decision. Such a resolution is not
in terms of the dictum in Kumari Madhuri
Patil's case (supra). There cannot be an
unending inquiry into the status of
petitioner. We therefore, disapprove of
the decision dated 30.06.2014 placed
2 All]. Hazi Abdul Hakim Vs. State of U.P. & Ors.
1007
before us. The earlier decision dated
29.06.2011 was in accordance with
Kumari Madhuri Patil's case (supra).

38. In the peculiar facts and
circumstances of this case, it is accordingly
ordered that the caste certificate of the
petitioner as issued in the year 2007 and as
affirmed by the decision of the State Level
Scrutiny Committee dated 29.06.2011 and
consequential order of the Tehsildar, Farenda
dated 16.01.2012, shall stand restored and
the petitioner shall be treated as belonging to
the scheduled tribe. Consequently, the U.P.
Public Service Commission is directed to
consider the candidature of the petitioner in
the
Uttar
Pradesh
Combined
Upper
Subordinate Services Examination, 2010
under the category of scheduled tribe by
holding an interview for the said purpose and
assigning appropriate marks accordingly. If
after calculating marks obtained by the
petitioner, in the said examination, it is found
that he has secured more marks than the last
selected candidate under the scheduled tribe
category or under the general category, then
suitable recommendation shall be made,
accordingly, to the State Government for the
purpose of appointment and the latter shall
offer appointment to the petitioner, either
against an existing available vacancy relating
to the selection of 2010 or against future
vacancy, within a reasonable time. The
consequences shall follow in accordance
with law.

39. Before parting with the case, it
may also be clarified that during the course
of arguments a letter dated 18th June, 2014
of National Commission for Scheduled
Tribes was placed before us by the learned
Additional Chief Standing Counsel, which
refers to certain caste certificates of
scheduled tribes having been issued to
Brahmins,
Nayaks
&
Brahmin
Ojha
community of Uttar Pradesh and based
thereon, he submitted that the State
Government is seized with the matter and an
enquiry is required to be made with regard to
the same. The said letter does not refer
specifically to the case of the petitioner. In
any event, it is always open for the State
Government to conduct such enquiries and
during such enquiry, if some clinching and
conclusive evidence is found to the effect
that the petitioner does not belong to
scheduled tribe, then it shall be open for it to
take consequential actions and in that
eventuality, the appointment offered to the
petitioner, as directed above, shall be treated
to be provisional.

40. It is made clear that these
directions have been issued in the peculiar
facts and circumstances of the instant case
and will not be treated as a precedent.

41. The writ petition is accordingly
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 27132 of 2014

Hazi Abdul Hakim ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Umesh Narain Shrma, Sri Prabhat
Kumar, Srivastava, Sri Anand Prakash
Srivastava

Counsel for the Respondents:
C.S.C.. Sri S.P. Singh