HIGH COURT OF UTTARANCHAL AT NAINIATL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 413 (S/B) of 2004 Arshad Jamil vs. State of Uttaranchal and others Approved for reporting. ______________________ Not approved for reporting Date of decision Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 413 (S/B) OF 2004 Arshad Jamil, S/o Sri Jamil Ahmad, R/o No. 7 Shekhpuri, Opposite Dev Nursing Home, Roorkee, District Haridwar. ……Petitioner Versus 1. State of Uttaranchal, through Principal Secretary Personnel Department, Dehradun. 2. Registrar General, High Court of Uttaranchal at Nainital. 3. Public Service Commission, Uttaranchal through its Secretary, Public Service Commission, Gurukul Kangri, Haridwar. 4. Legal Remembrancer/Law Secretary, Secretariat at Dehradun. 5. District Magistrate, Haridwar. ……Respondents Coram: Hon’ble Cyriac Joseph, C.J. Hon’ble Rajesh Tandon, J. Dated: December 23, 2005 Per Hon’ble Rajesh Tandon, J. 1. Heard Sri Sudhanshu Dhulia, Senior Advocate, assisted by Sri D.S. Patni, learned counsel for the petitioner and Shri Sharad Sharma, counsel for the respondent no. 2 and Standing Counsel for the respondents no. 1, 3, 4 and 5. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 18.12.2004 passed by respondent no. 1 terminating the services of the petitioner as Civil Judge (J.D.). Petitioner has, further, prayed for a writ of mandamus directing the respondents to allow the petitioner to work on the post of Civil Judge (Junior Division) and pay him salary regularly. 3. Briefly stated, an advertisement No. 2/2002-2003 was published inviting applications for the post of Civil Judge (Junior Division), by the Uttaranchal Public Service Commission (U.P.S.C.) The petitioner, being a member of the caste ‘Momin-Ansar’ which is included in the list of Other Backward Classes (O.B.C.) in Uttaranchal, applied for the post of Civil Judge (Junior Division). Admit Card was issued to the petitioner for the preliminary examination. The petitioner succeeded in the said examination and he was called for the main examination. The list of successful candidates for interview was published in the News Paper by the Public Service Commission. The petitioner was one of the candidates included in the list of successful candidates. Accordingly, a letter was sent on 26.06.2003 calling him to appear for interview on 26.07.2003. With this call letter for interview dated 26.06.2003, a format of OBC Certificate was sent which was to be submitted on the date of interview. The said OBC certificate on prescribed format sent by UPSC was duly issued by the Tehsildar Roorkee after examining the OBC Certificate of the petitioner No. 665 dated 29.06.2002. As per advertisement, apart from the said format of caste certificate issued by UPSC, there was no other requirement with regard to residence. The format as well as Certificate issued are quoted below:- ^^mRrjkapy ds vU; fiNMs+ oxZ ds fy, tkfr izek.k i= dk izi= izekf.kr fd;k tkrk gS fd Jh @Jherh @ dqekjh------------------------------- ---------------------------rglhy----------------------------uxj---------------------------------ftyk-------------------- mRrjkapy dh ----------------------------------------tkfr ds O;fDr gSaA ;g tfr mRrjizns’k yksd lsok ¼vuqlwfpr tkfr;ksa] vuqlwfpr tu&tkfr;ksa rFkk vU; fiNMs+ oxksaZ ds fy, vkj{k.k½ vf/kfu;e~ 1994 dh vuqlwph& 1 ds vUrZxr ekU;rk izkIr gSA ;g Hkh izekf.kr fd;k tkrk gS fd Jh@ Jherh@dqekjh---------------------------------------------------------------mDr vf/kfu;e] 1994 dh vuqlwph@ 2 ls vPNkfnr ugha gSA Jh @ Jherh @ dqekjh ---------------------------------------------------rFkk@vFkok mudk ifjokj mRrjkapy xzke-----------------------------------------------------------------------------rglhy-------------------uxj --------------------------------ftyk-----------------------esa lkekU;r;k jgrk gSA LFkku gLrk{kj---------------------------------- fnukad iwjk uke----------------------------------------------- fnukad inuke--------------------------------------------------- eqgj ftykf/kdkjh@ vfrfjDr @ ftykf/kdkjh @ flVh eftLVªsV @ ijxuk eftLVªsV @ rglhynkj Certificate issued by the Tehsildar:- izekf.kr fd;k tkrk gS fd Jh@ Jherh @ dqekjh vj’kn they lqiq= @ iRuh @ lqiq=h Jh they vgen fuoklh xzke 7 “ks[kjiqjh rglhy :M+dh uxj :M+dh ftyk gfj}kj mRrjkapy ds jkT; dh eksfeu valkj fiNMs+ tkfr ds O;fDr gSaA ;g tkfr m0 iz0 yksd lsok vuqlwfpr tkfr;ksa, vuqlwfpr tutkfr;ksa rFkk vU; fiNMs+ oxksZa ds fy, vkj{k.k vf/kfu;e] 1994 tSlk fd mRrjkapy jkT; ls izHkkoh gS] dh vuqlwph& 1 ds vUrZxr ekU;rk izkIr gSA mDr vf/kfu;e 1994 dh vuqlwph &2 ls vf/klwpuk la[;k &22@16@92&dk&2@1995 Vh lh fnukad 8 fnlacj] 1 9 9 5 }kjk ;Fkk la’kksf/kr ls vkPNkfnr ugha gSA Jh @ Jherh @ dqekj vj’kn they rFkk @ vFkok mudk ifjokj mRrjkapy ds xzke 7 “ks[kiqjh rglhy :M+dh uxj gfj}kj esa lkekU;r;k jgrk gSA LFkku :M+dh gLrk{kj----------------------------------------- -- fnukad 9&7&03 iwjk uke------------------------------------ in uke rglhynkj eqgj :M+dh ftykf/kdkjh @ vij ftyk eSftLVªsV@ flVh eSftLVªsV @mi ftyk eSftLVªsV @ rglhynkj English Text Office of the Tahsildar, Rurkee Letter No. 665 Na. Na. 2002 dt. CERTIFICATE OF OTHER BACKWARD CLASS Certified that Shri Arshad Jamil s/o Sri Jamil Ahmed r/o 7, Sekhpuri in front of Deo Nursing Home, Rurkee, Pargana and Tehsil Rurkee, District Haridwar is a member of Other Backward Caste, Momin Ansar of the State of Uttaranchal. This caste has been recognized under Schedule I of Uttaranchal Public Service Commission and Other Backward Classes Reservation Act, 1994 as enforceable in the State of Uttaranchal. It is also certified that Shri Arshad Jamil is not covered by Notification No. 22/16/92-ka-2/1995 TI.CI. dated 8 December, 1995 as amended vide Schedule-2 of the said Act, 1994. Sri Arshad Jamil and/or his family ordinarily resides at 7, Sekhpuri Village, Roorkee Tehsil Haridwar Nagar of Uttaranchal State. Dated: 29.6.2002 SD/- (illegible) Tehsildar, Rurkee After the interview, a list of successful candidates was issued by the UPSC recommending for appointment as Civil Judge (Junior Division). In this list the name of the petitioner found place at Serial No. 29 in the category of OBC, meaning thereby that the documents and certificates of the petitioner were found to be to the satisfaction of respondent no.3. The list of successful candidates is extracted below:- “SI. No Roll. No. Name Category 1- 6643 Nitin Kumar 2- 2321 Dhananjay Kumar 3- 2041 Ajai Chaudhari OBC 4- 566 Anuj Kumar Khulbe 5- 111 Rajeev Kumar Khulbe 6- 2119 Kaushal Kishor Shikla 7- 65 Sudhir Kumar 8- 527 Amit Kumar Sirohi 9- 12320 Neetu Joshi Women 10- 2013 Sujata Singh 11- 13723 Shahanshal Mohd. Dilber Danish 12- 2124 Srikant Kumar Pandey 13- 173 Rakesh Kumar Mishra 14- 12281 Vindhyachal Singh 15- 1879 Km. Rama Pandey 16- 5717 Manish Mishra 17- 6943 Neena Agrawal 18- 3018 Brijendra Singh SC 19- 6228 Amarinder Singh 20- 3244 Bharat Bhushan Pandey 21- 101 Arvind Kumar OBC 22- 175 Varun Kumar 23- 461 Sayan Singh OBC 24- 7658 Km. Monika Mittal Women 25- 465 Km. Neelam ” 26- 13108 Rajeev Kumar OBC 27- 3432 Anuj Shri Juyal Women 28- 12524 Preetu Rani “ 29- 12763 Arshad Jamil OBC 30- 1216 Sujeet Kumar SC 31- 2390 Mohd. Sultan OBC 32- 7467 Mahesh Chandra Kaushik OBC 33- 5981 Km. Shadav Bano OBC(W) 34- 9331 Naseem Ahamad OBC 35- 176 Abdul Kayum OBC 36- 10691 Mithilesh Jha Ex. Soldier 37- 6954 Shaish Chandra SC 38- 12519 Om Kumar SC 39- 337 Sanjeev Kumar SC 40- 1045 Km. Archana Sagar SC (Woman 41- 7866 Susum “ 42- 191 Nandan Singh ST 4. The respondents, after examining the documents submitted by the petitioner, issued appointment letter dated 18th September, 2003 appointing him to the post of Civil Judge (Junior Division) on probation for two years. The said appointment letter was issued subject to verification of character and medical report. 5. Pursuant to the said appointment order, a notification dated 18.9.2003 was issued by High Court of Uttaranchal posting the petitioner as Civil Judge (Junior Division) in the vacant Court at Purola, Uttarkashi. 6. The Uttaranchal Public Service Commission vide letter dated 15.09.2003 requested the District Magistrate to verify the OBC certificate of the petitioner. Subsequently, the District Magistrate, Haridwar vide letter dated 23.09.2003 wrote to Tehsildar Roorkee to verify the OBC certificate. In compliance of the order of the District Magistrate, the Tehsildar Roorkee, after taking the statement of neighbors and landlord of the petitioner and also after duly verifying the Assessment Register of the Nagar Palika, Roorkee, vide letter dated 31.10.2003 reported that the OBC certificate of the petitioner is correct and genuine and in accordance with the Government Order dated 29th March, 2003. The said correction is quoted below”- ^^izkFkhZ Jh vj’kn they iq= they vgen jgus okys 7 'ks[kiqjh nso uflZxa gkse ds lkeus viuk izek.k i= fnukad 29- 6-02 dks cuok;k gS ftlls 'kiFki= layXu fd;k x;k gS fd 'kiFki= easa viuk irk 7 'ks[kiqjh :M+dh mijksDr n’kkZ;k gSA rFkk viuh tkfr eksfeu valkj n’kkZ;k gSA Jh vj’kn they iq= they vgen fuoklh 7 'ks[kiqjh tkfr eksfeu valkj dk vU; fiNM+h tkfr fuoklh izek.k i= 'kklukns’kksa ds vuqlkj lgh tkjh fd;k x;k gSA^^ English Text: Applicant Shri Arshad Jameel s/o Jameel Ahmed resident of 7 Shekhpuri, in front of Deo Nursing Home has got a certificate dated 29.6.2002 and has sworn an affidavit showing his address as 7 Shekhpuri, Roorkee and his caste as Momin Ansar. The certificate issued to Sri Arshad Jameel s/o Jameel Ahmed showing his residence as 7, Shekhpuri and his caste as Momin Ansar, Other Backward Caste, was correctly issued in accordance with the Government orders. 7. The respondent simultaneously also inquired about the whereabouts of the petitioner through the Police agency. The Station Officer, Gangnahar Roorkee, submitted a report to the S.S.P. Haridwar vide GBR No. 331/03 in which it is stated that the petitioner and his family are staying at Roorkee for the last more than 15 years. details are quoted below:- Jheku th] layXu i=kad th0 oh0 vkj0 ua0 331@03 vj’kn they mijksDr ds lEcU/k esa iqu% tkap vey esa yk;h x;h rks vk[;k bl izdkj gSA Jh vj’kn they iq= they vgen fuoklh 'ks[kiqjh nso uflZax gkse ds lkeus :M+dh Fkkuk xaxugj :M+dh ftyk gfj}kj esa Jh Qqjdku vgen ds edku esa o"kZ 1991 ls fdjk;s ij lifjokj jgrk gSA blls igys o"kZ 1988 ls ;s eSk0 iqjkuh rglhy :M+dh esa Jherh tqfy’kk ds edku esa fdjk;s ij jgrs Fks ;s djhc 15 o"kksZa ls :M+dh esa LFkk;h :Ik ls fuokl dj jgs gSaA mlls igy eSk0 [kkyk ikj Fkkuk dks eq0 uxj fu0 eq0 uxj esa jguk irk pyk gSA jk’ku dkMZ oksVj fyLV] ernku igpku irk vkfn dh QksVks LVsV izfr layXu gSA 2& Fkkuk gktk ds fjdkMZ ds vuqlkj dksbZ ltk;kch vafdr ugha gSA 3& pfj= vPNk ik;k x;kA fjiksVZ ckn tkap egksn; dh lsok esa izsf"kr gSA English Text: Sir, Refer annexed letter G.V.R. No. 331/03. Fresh enquiry was conducted in respect of Arshad Jamil. The report is as hereunder: 1. Shri Arshad Jamil s/o Jamil Ahmed R/o Shekhpuri, resides with family in the house of Shri Rurkan Ahmed situated in front of Deo Nursing Home, P.S. Ganga Nahar, Roorkee as tenant since the year 1991. Prior to it he lived in the house of Smt. Julisha situated at Mohalla Old Tehsil, Roorkee since the year 1988 as tenant. He has been permanently residing at Rurkee for the last about 15 years. It has been informed that pior to it he had been residing at Mohgalla Khalapara P.S. Muzaffarnagar, District Muzaffar Nagar. The photocopies of Ration card, voter list, voter identification care, address etc. are enclosed. 2. As per the record of the police station there is no mention the report is forwarded to you, sir. 3. The character was found to be satisfactory. After enquiry the report is forwarded to you, Sir. 8. Through letter dated 22.05.2004 sent by the District Judge, Uttarkashi, a reference was made regarding office memorandum dated 13.05.2004 and D.O. letter dated 21.05.2004 sent by the Registrar General High Court, and explanation was called from the petitioner. It is alleged in the office memorandum dated 13.05.2004 that as per complaint of one Sri Abdul Kareem dated 12.01.2004, the petitioner obtained appointment in the judicial service on the basis of forged OBC certificate. It has further been alleged that on the said complaint, an inquiry was conducted by DM Haridwar, who has stated that the petitioner is a permanent resident of District Muzaffarnagar U.P. whereas the petitioner had stated that he was a resident of State of Uttaranchal. The petitioner was asked to explain why the appointment of the petitioner should not be cancelled. 9. According to for the petitioner, the said inquiry made by the District Magistrate, Haridwar was ex- parte and contrary to the guidelines contained in the Government Order dated 29.03.2003. It is also stated that no date has been mentioned in the report of the District Magistrate. 10. In reply to the aforesaid letter, the petitioner submitted his letter dated 29.05.2004 requesting to furnish the copies of documents/information to enable him to submit a proper explanation. The documents included the alleged complaint dated 12.01.2004. Contents of the reply letter of the petitioner are quoted below:- “Sir, I am in receipt of the aforesaid D.O. sent to me through the Hon’ble District Judge, Uttarkashi by which I have been called upon to submit my explanation against the aforesaid show cause notice. It is not possible to give reply to the aforesaid show cause notice unless the following documents/information are furnished to me. Kindly furnish the copies of following necessary documents/information to enable me to reply to the show cause notice. 1. Copy of the alleged complaint dated 12.01.2004 of some Sri Abdul Karim, S/o Waheed, R/o Sheikhpur, Roorkee against me. 2. Who is Abdul Karim, S/o Waheed, R/o Sheikhpuri, Roorkee and how and why is he interested in making complaint against me. 3. The order/letter by which District Magistrate, Haridwar was directed to conduct enquiry upon the said complaint against me. 4. The report/letter of District Magistrate, Haridwar by which he informed that I am not a resident of Roorkee, Distt. Haridwar. 4. The evidence before the District Magistrate, Haridwar on the basis of which he sent his enquiry report against me. Thanking you. Yours truly. (Arshad Jamil) Civil Judge (J.D.) Purola, Distt. Uttarakashi.” 11. Thereafter, on 13th July, 2004, recommendation was sent by the High Court for terminating the services of the petitioner. 12. Learned counsel for the petitioner submitted that despite the request to the respondent to furnish the documents, the same were not supplied to the petitioner and hence after waiting for some time the petitioner submitted his reply to the show cause notice on 21.07.2004 through the Registrar General, High Court of Uttaranchal at Nainital to the respondent no.1. Petitioner has submitted that the minutes of the Full Court meeting held on 13th July, 2004 with regard to the recommendation for terminating the petitioner’s services were not confirmed in the Full Court meeting held on 23.09.2004 or thereafter. 13. On 27.07.2004, the petitioner also submitted his reply to the explanation called by respondent no. 2 vide letter dated 21.05.2004. 14. Learned counsel for the petitioner has submitted that as stated in the impugned order, the reply of the petitioner dated 20/21.07.2004 was sent to the respondent no. 1 through respondent no. 3 on 07.08.2004 and that the forwarding letter of the reply by the respondent no. 3 indicates that the earlier recommendation sent by the High Court with regard to termination of service of the petitioner was not confirmed. 15. Learned counsel for the petitioner has confined his arguments to the following points: 1) There was no compliance of Article 235 of the Constitution of India as there was no material before the Full Court Meeting held on 13th July, 2004 to take a decision recommending the termination of the services of the petitioner. 2) Since the above decision taken in the Full Court Meeting held on 13th July, 2004, was not confirmed in the subsequent meeting of the Full Court held on 22.09.2004, it has become irrelevant. 3) In view of Section 9 of the U.P. Reservation (For Scheduled Caste, Scheduled Tribe and Other Backward Class) Act. 1994 read with the Government Order dated 29th March, 2003 which refers to the “Ordinary Resident”, the termination order is illegal and liable to be quashed. 4) The termination order has neither been passed by the Appointing Authority i.e. the Governor of Uttaranchal, nor any approval has been sought from the Governor. Hence the impugned order is without jurisdiction and is liable to be quashed. Point Nos. 1 and 2: 16. Article 235 of the Constitution of India provides as under:- “235. Control over subordinate courts.- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law”. As will appear form the aforesaid Article the control over district courts and the courts subordinate thereto, including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court. 17. In the case Registrar, High Court of Madras Vs. R. Rajih 1988 (3) SCC 211 their Lordships of the Apex Court have classified the requirement of Article 235 of the Constitution of India in two parts. Under the first part a decision has to be made as to whether any action is required to be taken against an officer and under the second part the decision will be carried out by a formal order. According to the Supreme Court the power of control envisaged under Article 235 pf the Constitution of India relates to the power of making a decision by the High Court against a member of the Subordinate Judicial Service and such a decision has to be taken by holding an inquiry by the High Court against the member concerned. Relevant paragraph 12 is quoted below:- “An action against any government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the government servant. Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned.” 18. While interpreting Article 235 of the Constitution of India with regard to the superintendence over lower judiciary in T. Lakshmi Narasimha Cahri Vs. High Court AIR 1996 SC 2067, it has been held by the Supreme Court that under Article 235 the power of the High Court is to recommend to the State and in formulating its recommendation, the High Court is to keep in view decisions relating to this aspect. 19. In Madan Mohan Chaudhary AIR 1999 SC 1026, the Apex Court has observed as under:- “It was thus a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely in terms of Rule 74 of the Bihar Service Code.” 20. In Registrar (Admn,) Vs. Sisisr Kanta Satapathy (1999) (7) SCC 725, relying upon the earlier judgment in Registrar, High Court of Madras Vs. R. Rajiah (1988) 3 SCC 211, the Supreme Court held as follows:- “12. In Registrar, High Court of Madras v. R. Rajiah (1988) 3 SCC 211, this Court had occasion to consider the validity of an order of compulsory retirement passed by the High Court. The learned Judges held that the proper procedure for the High Court was to recommend the case for compulsory retirement and it was for the Governor on whom the recommendation of the High Court was binding, to pass the formal order. This Court in the said case observed as follows: (SCC pp. 217-18, 219 and 220, para 12, 16 and 18) “12. The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member. But passing or signing of such order by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. An action against any government servant consists of two parts. Under the First part, the decision will have to be made whether an action will be taken against the government servant. Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the high Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. 16. It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken. It will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court. 18. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal (1998) 3 SCC 72, a two-Judge Bench of this Court while construing the scope and extent of Articles 233 to 235 of the Constitution, held as follows: (SCC pp. 86-87, para 34) “34. This article shows that the High Court has to exercise its administrative Judicial and disciplinary control over the members of the judicial service of the State. The word ‘control’ referred to in this article, is used in a comprehensive sense to include general superintendence of the working of the Subordinate Courts, disciplinary control over the Presiding Officer of he Subordinate Courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement ‘Control’ would also include suspension of a member of the judicial service for purposes of holding a disciplinary enquiry, transfer, confirmation and promotion.” 21. In Gauhati High Court Vs. Kuladhar Phukan AIR 2002 SC 1589, while interpreting Article 235 of the Constitution of India, the Apex Court has observed as under:- “The constitution here means meaningful, effective and conscious consultation. In Tej Pal Singh v. State of U.P. and another (1986) 3 SCC 604), it was held that in a matter affecting the service career of a judicial officer ordinarily the initiative for an action must come from the high Court and even otherwise in the absence of recommendation of the High Court an action taken by the Governor would be illegal and devoid of constitutional validity. Such, error, if committed, would be incurable and even an ex post facto approval would not cure the invalidity.” 22. In Samsher Singh Vs. State of Punjab AIR 1974 SC 2192 the Apex Court has observed as under:- “76. The High Court under Article 235 is vested with the control of subordinate judiciary. The High Court according to the appellant failed to act in terms of the provisions of the Constitution and abdicated the control by not having an inquiry through Judicial Officers subordinate to