IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32 (2) (b) Description of Case writ Petition No. 408 of 2006 (S/B) Date of decision :- 13.08.2008 A.F.R (Approved for Reporting) Date :- 13.08.2008 Initials of Judge Note:-Bench Reader will attach this at the top of the first page of the judgment when it is put up before the judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 408 of 2006 (S/B) Arshad Jamil S/o Sri Jamil Ahmad R/o No. 7 Shekhpuri, Opposite Dev Nursing Home Roorkee, District Haridwar …. Petitioner Versus State of Uttarakhand and others … Respondents Mr. Sudhanshu Dhulia, Senior Advocate with Mr. D. S. Patni, Advocate for the petitioner. Mr. L.P. Naithani, Advocate General with Mr. Sudhir Kumar, Brief Holder for the State. Date of Delivery of Judgment :- 13th August, 2008 JUDGMENT Coram : Hon. V.K. Gupta C.J. Hon. J.C.S. Rawat, J. Per:- Hon. J.C.S. Rawat, J. By means of this petition, the petitioner has sought the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 01.09.2005 passed by respondent no.2 (Annexure-1 to the writ petition). (ii) Issue a writ of certiorari or any other appropriate writ, order or direction quashing the Government Order issued by Secretary, General Administration Department, Government of Uttarakhand bearing No.2563/1-4/Sa-Pra dated 20.11.2001 declaring the same as ultravires, void and nonest of the provisions of Article 16 of the Constitution of India. (iii) Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Award the cost of the petition to the petitioner. 2. It is admitted case of the parties that the petitioner being a member of the caste ‘Momin-Ansar’ which is included in the list of Other Backward Classes (OBC) in Uttarakhand, applied for the post of Civil Judge (Junior Division). The petitioner has obtained the first OBC caste certificate dated 26.06.2002 issued by the Tehsildar, Roorkee. Ultimately, the petitioner got successful in the examination and a letter was sent to the petitioner calling him to appear for interview on 26.07.2003. With this interview letter, a prescribed format of OBC Certificate was sent which the petitioner had to submit on the date of interview. The prescribed format of OBC certificate sent by the UPSC was duly issued by the Tehsildar, Roorkee on 09.07.2003 after examining the OBC certificate of the petitioner dated 29.06.2002. Thereafter, the respondents issue appointment letter dated 18th September, 2003 appointing him against the reserved category of OBC to the post of Civil Judge (Junior Division). The said appointment letter was issued subject to verification of character and medical report. Pursuant to the appointment letter, a notification dated 18.09.2003 was issued by the High Court of Uttarakhand posting the petitioner as Civil Judge (Junior Division) in the vacant court at Purola, Uttarkashi, Uttarakhand. Thereafter, a complaint dated 12.01.2004 was sent by one Sri Abdul Kareem alleging therein that the petitioner obtained appointment in judicial service on the basis of a forged OBC certificate. On the said complaint, an inquiry was got conducted by the District Magistrate, Haridwar in which it was concluded that the petitioner did not belong to Uttarkashi and he was not entitled to get the benefit of OBC candidates. The petitioner was asked to explain as to why the appointment order should not be cancelled because he has wrongly stated that he was a resident of Uttarakhand, as a matte5r of fact, he has been the resident of District Muzaffarnagar, U.P. On the other hand, on the basis of the findings of the inquiry, the caste certificate dated 29.06.2002 was cancelled by the Tehsildar, Roorkee vide order dated 02.03.2005. 3. Feeling aggrieved by the order of cancellation of caste certificate, the petitioner filed a Writ Petition No. 448 of 2005 (M/B) before this Court and this Court vide order dated 06.05.2005 while allowing the petition and consequently quashing the order dated 02.03.2005 by which the caste certificate of the petitioner was cancelled, has observed that it would be open to the respondent to issue notice to the petitioner proposing to cancel his caste certificate already issued to him and after giving him reasonable opportunity to file his objection the respondents shall pass fresh order in accordance with law. 4. In the meanwhile, as a consequence of order dated 02.03.2005 cancelling the caste certificate, the petitioner was terminated from the service vide order dated 18.12.2004. Felling aggrieved by the termination order, the petitioner filed another Writ Petition No. 413 of 2004 (S/B) before this Court and this Court vide order dated 23.12.2005 while quashing the termination order has directed the respondents to reinstate the petitioner in service. It was also held that the petitioner would be treated to have continued in service without any break, but he would not be entitled to any salary or allowance for the period which he has not actually worked. Feeling aggrieved by the aforesaid order passed in W.P. No.413 of 2004 (S/B), the State respondent no.1 and the High Court of Uttarakhand have filed Special Leave Petitions before the Hon’ble Supreme Court and the said SLPs are still pending. 5. Pursuant to order dated 06.05.2005 passed in W.P. No.448 of 2005(M/B) by which the order dated 02.03.2005 cancelling the caste certificate was quashing and it was also directed that it would be open to the respondent (authority concerned) to issue notice to the petitioner proposing to cancel his caste certificate already issued to him and give him reasonable opportunity to file his objection and to pass fresh order in accordance with law, the authority concerned issued a notice No.518/N.N. dated 06.06.2005 asking the petitioner as to why the caste certificate should not be cancelled. The petitioner submitted his objection to the Tehsildar, Roorkee on 11.07.2005. After examining the objection and other relevant records, the Tehsildar, Roorkee vide impugned order dated 01.09.2005 cancelled the caste certificate of OBC issued to the petitioner. Feeling aggrieved by this, the present petition has been filed by the petitioner. 6. We have heard learned counsel for the parties and perused the record. 7. The impugned order has been challenged on the grounds that the caste certificate issued to the petitioner was in accordance with the G.O. dated 29.03.2003; the finding recorded by the respondent no. 2 (Tehsildar, Roorkee) that the petitioner was not a resident of Roorkee, District Haridwar is perverse and mala-fide; the petitioner was residing at House No.7, Shekhpuri, Roorkee, District Haridwar, Uttarakhand since long; the name of the petitioner and his father had been shown as tenant in the said house as per municipal records; assuming that the petitioner was not a bona-fide resident of Uttarakhand even then he is entitled to get benefit of OBC community in view of the fact that he belongs to ‘Momin-Ansar’ which has been notified as OBC in U.P. as well as in Uttarakhand after reorganization of the Sates, as such, he is entitled to get the benefit of being OBC category in the State of Uttarakhand too. 8. Learned Advocate General contended that the petitioner had fraudulently obtained the caste certificate; the names of petitioner and his family member had been enrolled in the electoral roll of Muzafaranagar constituency in the year 1993, 1995, 1998 and 2003; the voter identity card was also issued to the petitioner from Muzafarnagar Assembly Constituency in House No.225, Mohalla Khalapur; the petitioner managed to get enrolled his name in the electoral roll of Roorkee Assembly Constituency of the of the State of Uttarakhand in the year 2003; his name was not in the earlier electoral rolls of the Roorkee Assembly Constituency from house No.7 Shekhpuri, Roorkee, District Haridwar, Uttarakhand; and while issuing the Ist caste certificate to the petitioner the revenue authority did not make any inquiry as is evident from the inquiry report of the revenue officials. It was further contended by the learned Advocate General that the findings recorded by the respondent no.2 are perfectly correct and in accordance with the evidence before him. 9. The respondent no.2 vide impugned order has held that the petitioner belongs to Monin-Ansar community which comes within the O(BC category and after obtaining the case certificate several complains were received to the authorities. The District Magistrate constituted the Committee of the officers to enquire into the matter as to whether the petitioner belongs to OBC category or not. Ultimately, it was found that the petitioner had obtained caste certificate fraudulently. The petitioner was originally resident of Mohalla Khalpur, Muzafarnagar, U.P. because his name was mentioned in Part No. 42 of 408, Muzafarnagar Vidhan Sabha Kshetra Electoral Roll, 1995. His name was also mentioned in polling booth No. 39 of 392, Muzaffarnagar Vidhan Sabha Electoral Rools, 2003. The voter identity card No.JZ/1748490 was issued to the petitioner by the Election Commissioner of India. The petitioner has been member of the District Bar Association, Muzaffarnagar, U.P. The respondent no.2, Tehsildar Roorkee has further held that the petitioner was originally the resident of Muzaffarnagar, U.P. and his primary education was from Muzaffarnagar, U.P. He passed the intermediate examination from the district Muzaffarnagar and he had taken the law decree from the district Aligarh, U.P. The respondent no.2 has also considered the evidence adduced by the petitioner i.e. copies of the Nagar Palika assessment register from 1987 to 1993 which obtained in the year 2003. It was further held that Hibanama dated 28.08.1987 was not a registered document and the evidence of petitioner is not sufficient to hold him to be a resident of Uttarakhand. The respondent no.2 after giving due opportunity to the petitioner for filing the objection cancelled the caste certificate issued to him earlier by the impugned order. 10. It is not disputed that the election commission makes annual revision in the electoral rolls and the names of the persons who had died or left the local residence, become eligible to be the voter after attaining the majority or who have come to reside in the local area from outside are enrolled in the electoral rolls. For doing so, the officials of Election Commission go door to door in order to enquire about the eligible voters and then the voter list is prepared and it is revised by the higher authorities. A person who eligible voter if not included in the local electoral roll ha to apply for it to the concerned registration officer and after scrutiny of the claim the name is included or the application roll he has to apply for it and after scrutiny the name is either struck off or the application is rejected as the case may be. A person whose name is included in the electoral rolls of a particular polling station on moving to reside in the other polling station has to inform the registration officer of the previous polling station of the fact so that his name may be struck off from the electoral roll of the previous polling station. 11. The petitioner claims to be the resident of Roorkee town and he claims that his father has been staying at Roorkee since 1988 in commection with his business activities. But neither the name of the petitioner nor his father nor other family members of petitioner was recorded in the electoral rolls of Roorkee town in district Hairdwar prior to 2003. It is revealed from the record that the name of the petitioner was included in the electoral rolls of Muzaffarnagar in the year 1993 on the basis of door-to-door survey made by the election commission. He was found residing in the area so his name was included in the voter list. If the petitioner would not have been residing in Muzaffarnagar since 1993 to 2003; he could have moved an application to the authorities concerned to remove his name from the electoral rolls of District Muzaffarnagar, U.P. He did not make any such attempt to do so. Hence it can safely be presumed that he had been residing in the District Muzaffarnagar, U.P. Apart from this, if the petitioner would have been residing at Roorkee a claimed by him, his name should have been recorded in the voter list of Roorkee constituency since 1993. He could have made an application to the competent authorities to record his name in Roorkee. By not doing so, the presumption goes against the petitioner that he would not have been residing at Roorkee. The name of the petitioner was included in the electoral rolls of Roorkee constituency in the year 2003. But his name had been continuously recorded in the electoral roll of Muzaffarnagar till 2007. The voter identity card was also issued to the petitioner from Muzaffarnagar, constituency. The name of the petitioner was recorded in the Roorkee constituency in the year 2003 though his name was continuing in the voter list of Muzaffarnagar constituency till 2007. It is the clear mandate of the election law that the name of a person cannot be recorded in the voter list of two constituencies simultaneously. It is also punishable offence under the election laws. 12. The petitioner has filed tow copies of House and Water Tax Assessment, out of which, one relates to Mohalla Purani Tehsil, Nagar Palika Parishad Roorkee for the period w.e.f. 01.04.1998 to 31.03.1993 and second relates to Mohalla Shekhpuri, Nagar Palika Parishad Roorkee for the period w.e.f. 01.04.1998 and 2003 (Annexure-8 to the writ petition). The first assessment shows that Mr. Jamil Ahmad-father of petitioner was an occupier of the property. The property has been mentioned in column no.3 as old No. 15(5) and new No.17(5) and the name of the owner of property has been shown as Smt. Tamizulnisha. The second assessment shows that it pertains to old house No.24(1-2) and new no.24 in which Mr. Furkan Ahmad has been shown as the owner of the property. When we inquired that these assessments pertain to some other property and the same did not pertain to House No.7, Shekhpuri as mentioned in caste certificate, learned Senior counsel for the petitioner stated that these properties are different from House No.7 Shekhpuri in which the name of the petitioner’s father had been shown as the occupier of the house. The learned senior counsel for the petitioner could not show us any assessment of Nagar Palika in which the name of the petitioner or his father had been recorded as occupant of House No.7, Shekhpuri, Roorkee, District Haridwar. Thus, these assessment did not relate to House No.7, Shekhpuri and it did not support the version of the petitioner that he had been residing in House No.7, Shekhpuri, Roorkee. The habinama/ gift deed dated 20.08.1987 (Annexure-14 to the writ petition) which is said to have been in favour of the petitioner is not a registered document and as such it cannot be relied upon as a conclusive proof of the fact that the said property was actually gifted in the year 1987 as mentioned in Hibanama. The petitioner has filed a copy of the certificate issued from National Institute of Hydrology, Roorkee wherein it has been certified that the petitioner worked as project officer w.e.f. 01.03.1992 to 31.03.1993 on purely temporary and contractual basis. A person is domiciled in the State in which he is considered to have his permanent home. Residence is a physical act. No volition is need to establish it It should not be transitory, feeling or causal. It is not established from the aforesaid certificate that he resided in Roorkee during that period. It is pertinent to mention that the distance between Roorkee and Muzaffarnagar is about 50 Kms. Even if he statey during the period of employment w.e.f. 01.03.2002 to 31.03.2002 at Roorkee, it can not be considered that he resided in Roorkee permanently. The stay at Roorkee during that period would be treated mere transitory, fleeting or causal stay. As against this, the respondents in its counter affidavits have stated that vide letter dated 05.10.2007 the Sub Divisional Magistrate, Roorkee was directed to obtain the relevant information from the office of District Election Officer, Muzaffarnagar. The information was submitted by the Assstt. District Election Officer, Muzafarnagar on 11th October 2007 which shows that the petitioner was enrolled in the electoral rolls of Muzaffarnagar constituency since 1993 till 2003. The documents also reveal that the name of the petitioner was excluded form the electoral roll of Muzaffarnagar, U.P. in the year 2007 on the information submitted on 27.08.2006 at the time of the revision of electoral rolls by the father of the petitioner. It was informed by the father of the petitioner that the petitioner is not residing in Muzafarnagar. On the basis of the said information the name of the petitioner was struck off from the electoral roll of 2007 and the reason mentioned for striking off the name of the petitioner from the electoral roll was shown as “Change of residence” (category(S). Copy of the letter dated 11.10.2007 addressed to S.D.M. from the Asst. District Election Officer is read as follows:- ** izas’kd] ftyk fuokZpu vf/kdkjh] eqt¶QjuxjA lsok esa] mi ftykvf/kdjh] :M+dhA Ik=kad 232@29&125 fnukad 11 vDVwcj 2007 fo’k; & fjV ;kfpdk la[;k 408 @ ¼,l0 ch0½@2006 vj’kn tehe cuke mRrjk[k.M o vU; ds laca/k esa mRRjk[k.M ’kklu }kjk pkgs x;s vfHkys[kks dh izfr;k miyC/k djk;s tkus ds laca/k esaA egksn;] mijksDr fo’k;d vkids i=kad fnukad 01 ih, fnukad 11 vDVwcj 2007 ds lUnHkZ ds vj’kn they ds izdj.k ls lacaf/kr mRrjk[k.M “kklu ] dkfeZd vuqHkkx &1 nsgjknwu fnukad 19-09-2007 esa vafdr fcUnw la[;k 1 ls 5 rd ij pkgh xbZ okfNr lwpuk fuEu izdjk gS& 1& Jh vj’kn tehy dk Jh vj’kn tehy dk uke fo/kkulHkk Ukke eqt¶Qjuxj dh ernkrk lwph esa o’kZ 2003 esa dSls ntZ gqvk {ks= dh ernkrk lwph esa o’kZ 1993 esa l/ku iqujh{k.k ds le; ?kj&?kj tkdj lR;kiu ds nkSjku ntZ fd;k x;k tks fd o’kZ 1993 ls yxkrkj ntZ pyk vk jgk gSA 2& D;k ernkrk lwph esa uke igys ls ntZ FkkA Jh vj’kn tehy dk uke ernkrk lpwh esa o’kZ 1993 ls ntZ FkkA 3& D;k muds ifjokj ds fdlh lnL; us mudk uke QkeZ ij Hkjdj fn;k Fkk ;k Jh vj”kn tehy us Lo;a gh viuk uke Hkjdj dHkh fn;k FkkA l?ku iqujh{k.k ds le; o’kZ 1993 esa fuokZpd ukekoyh dk dk;Z djus okys deZpkjh }kjk Jh vj’kn tehy o muds ifjokj ds lnL;ksa dk uke ernkrk lwph esa ntZ fd;k x;kA 4 Jh vj’kn tehy dk uke ernkrk lwph esa dc ls pyk vk jgk gSA Jh vj’kn tehy dk uke ernkrk lwph esa o’kZ 1993 ls ntZ pyk vk jgk gSA 5& ernkrk lpwh esa Jh vj’kn tehy dk irk dgka dk vafdr gSA ekSgYyk [kkykikj] e0u0225 eqt¶Qjuxj dk irk vafdr gSA mDRk lwpuk vki }kjk Hksts x;s okgd vij rglhnkj :M+dh dks gLrxr djk nh x;h gSA Hkonh; lgk;d ftyk fuokZpu vf/kdkjh eqt¶Qjuxj ** 13. The caste certificate issued on 29.06.2002 in favour of the petitioner was based on the report of Lekhpal and Revenue Inspector, which is as follows:- ^^egksn;] izkFkhZ vj’kn tehy iq= tehy vgen fu- 7 ’ks[kiqjh :M+dh dh tkfr ekSfeu vlkaj rlnhd gSA vuqlwph 2 ls vkPNkfUnr ugha gSA gLrk{kj 29-6-02 egksn;] tkfr eksfeu vlkaj rlnhd gqbZ tks vuqlwph 2 ls vkPNkfUnr ugha gSA gLrk{kj jk-fu- 14. Perusal of the said reports reveal that the concerned officials before giving their reports did not made any inquiry a to whether the petitioner was permanent resident of Uttarakhand or not. The reports reveal that they had stated that the petitioner belongs to Monin-Ansar community which comes in the OBC category. The said report of the Likhpal is based on the certificate issued by Furkan Ahmad which is as follows:- vj’kn tehy iq= tehy vgen fu- 7 “ks[kiqj ¼nso uflax gkse ds lkeus½ :M+dh] esjs edkj u- 7 “ks[kiqjh esa fiNys 10 o’kkZs ls jg jgs gSA ftudh tkfr eksfeu valkj gSA ¼Qqjdkj vgen½ iq= vCnqy yrhQ fnukad 28-06-2002 u- 7 ’ks[kiqjh :M+dh 15. Thus, the certificate issued by Mr. Furkan Ahmad clearly indicates that the petitioner has been residing as tenant in his house for the last ten years. It is not in dispute that the petitioner had his schooling upto ninth standard at Muzafaranagar, U.P. and he passed High School from Holy Angles Convent School, Muzaffarnagar, U.P. in the year 1983. Thus petitioner completed his Higher Secondry Education from Aligarh Muslim University in the year 1985. He did graduation in Engineering from Mysore University in the 1991. He completed his graduation in law from the Chaudhary Charan Singh University, Meerut in the year 1998. He only worked at Roorkee in a project of the National Institute of Hydrology, Roorkee w.e.f. 01.03.1992 to 31.03.1993. The fact of his studies reveals that he could not have resided at Shekhpuri, Roorkee for the last 10 years. A certificate datred 18.06.2002 issued by his alleged landlord Mr. Furkan Ahamd is factually incorrect in view of the above. Thus, the petitioner has obtained a caste certificate on the basis of a false certificate which was issued by Mr. Furkan Ahmad. No further inquiry was conducted by the officials of the revenue department. Apart this, the certificate (Annexure-15 to the writ petition) issued by District Bar Association, Muzaffarnagar dated 05.07.2002 reveals that he had been practicing in lower court of District Muzaffarnagar, U.P. If he would have been residing at Roorkee he could have very well practiced in Roorkee itself. There was no occasion for the petitioner to go to Muzaffarnagar daily from Roorke. Thus, it is evident that the petitioner was bona-fide resident of Muzaffarnagar. U.P. The respondent no.2 was justified in holding that the petitioner was a bona-fide resident of Muzzaffarnagar and he is not a resident of Roorkee, District Haridwar, Uttarakhand. It is evident from the record that the petitioner has shown his false address of Roorkee town in order to obtain the certificate of OBC from Roorkee, District Haridwar, Uttarakhand. In view of the above, we do not find that there is any perversity in the findings recorded by the respondent no.2-Tehsildar. We are in agreement with the findings recorded by the respondent no.2. 16. Learned senior counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in Yougesh Bhardwaj Vs. State of U.P. & others 1990 (3) SCC 355 in which the appellant was nominated by the State of Himanchal Pradesh to undergo the B.D.S. course in the State of U.P. The appellant successfully completed his course of studies in U.P. and secured the BDS degree. For that purpose he had stayed in the State of U.P. for over a period of five years. He later applied for admission to the MDS course at King George Medical College, Lucknow. He secured admission to the course, gut in a subject other than that of his choice. The subject of his choice was Oral Surgery, but what was offered to him was Periodontics. The reason for denying the appellant the subject of his choice was that he had to step down in favour of who had come within the rule of preference as per the Notification dated August 19, 1983 issued under Section 26(5) of the U.P. State Universities Act, 1974 providing for reservation of seats and prescribing a residence qualification for selection to the MDs course. Clause 2 of Notification dated August 19, 1983 issued under Section 26(5) of the U.P. State Universities refers to a ‘bona fide resident’ and such a person is defined under clause 4 of the Notification to include a person who has resided in Uttar Pradesh for not less than five years at the time of making his application. These two clauses indicate that a person should have resided in Uttara Pradesh for the requisite period lawfully and bona fide. The question was before the Hon’ble Supreme Court whether he was a ‘bona-fide resident of Uttar Pradesh’. It was held by the Hon’ble Supreme Court that a person,