Ajay Kumar vs State of Uttarakhand - 2012 Supreme(UK) 643

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(UK) 643

HIGH COURT OF UTTARAKHAND AT NAINITAL
Tarun Agarwala, J.
Ajay Kumar and other - Petitioner
Vs.
State of Uttarakhand & another - Respondents
Writ Petition No.124, 138, 208, 214, 923, 1138 of 2011 (M/S)
Writ Petition No.1213 of 2009 (M/S)
Writ Petition No.210, 1948, 2006, 2045, 2214, 2255 of 2010 (M/S)
Decided On : 17th August, 2012

Headnote:
The Court clarified the concept of "original resident" (Mool Niwasi) and "permanent resident" in the context of issuing caste certificates in the State of Uttarakhand. It held that these terms mean a person who is staying in a place for all practical purposes in a permanent capacity for a considerable long period of time. The Court also clarified that the appointed date of the Constitution (Scheduled Castes) Order of 1950 and the Constitution (Scheduled Tribes) Order of 1950 for the State of Uttarakhand is the date notified by the Central Government in the official Gazette which is 09.11.2000. Persons belonging to Scheduled Caste, Scheduled Tribe, or OBC residing in a permanent capacity on or before 09.11.2000 in any part of the State of Uttarakhand would be entitled to the benefits and privileges given by the State of Uttarakhand provided the caste of such persons is notified in the State of Uttarakhand.
Fact of the Case:

Numerous petitions were filed before the Court challenging the rejection of applications for caste certificates or cancellation of caste certificates on the ground that the petitioners were not the original residents of the State of Uttarakhand.
Finding of the Court:

The Court held that the words "resides", "residence", "ordinarily resides", "original resident" (mool niwasi), and "domicile" in relation to the issuance of a caste certificate mean "permanent residence" where a person is staying for all practical purposes in a permanent capacity for a considerable long period of time. The Court also held that the appointed date of the Constitution (Scheduled Castes) Order of 1950 and the Constitution (Scheduled Tribes) Order of 1950 for the State of Uttarakhand is the date notified by the Central Government in the official Gazette which is 09.11.2000. Persons belonging to Scheduled Caste, Scheduled Tribe, or OBC residing in a permanent capacity on or before 09.11.2000 in any part of the State of Uttarakhand would be entitled to the benefits and privileges given by the State of Uttarakhand provided the caste of such persons is notified in the State of Uttarakhand.
Issues: 1. Whether the petitioners were the original residents of the State of Uttarakhand? 2. Whether the petitioners were entitled to caste certificates?
Ratio Decidendi: 1. The Court held that the words "resides", "residence", "ordinarily resides", "original resident" (mool niwasi), and "domicile" in relation to the issuance of a caste certificate mean "permanent residence" where a person is staying for all practical purposes in a permanent capacity for a considerable long period of time. 2. The Court held that the appointed date of the Constitution (Scheduled Castes) Order of 1950 and the Constitution (Scheduled Tribes) Order of 1950 for the State of Uttarakhand is the date notified by the Central Government in the official Gazette which is 09.11.2000. Persons belonging to Scheduled Caste, Scheduled Tribe, or OBC residing in a permanent capacity on or before 09.11.2000 in any part of the State of Uttarakhand would be entitled to the benefits and privileges given by the State of Uttarakhand provided the caste of such persons is notified in the State of Uttarakhand.
Final Decision: The Court allowed the writ petitions and directed the State authority to pass a fresh order within four weeks from the date of production of the certified copy of the judgment in the light of the observations made above.

JUDGMENT :

1. Heard Mr. Parikshit Saini, the learned counsel for the petitioners in WPMS No.124/2011 and WPMS No.1138/2011, Mr. Yogesh Pacholia, the learned counsel for the petitioner in WPMS No.210/2010, Mr. Anil Kumar Joshi, the learned counsel for the petitioner in WPMS No.1948/2010, Mr. Manish Arora, the learned counsel for the petitioners in WPMS No.2006/2010 & 208/2011, Mr. L. K. Verma, the learned counsel for the petitioner in WPMS No.2045/2010 & 1213/2009, Mr. Lalit Tiwari, the learned counsel for the petitioner in WPMS No.2214/2010, Mr. S. K. Shandilya, the learned counsel for the petitioner in WPMS No.2255/2010, Mr. Ajay Veer Pundir, the learned counsel for the petitioner in WPMS No.138/2011, Mr. B. D. Pande, the learned counsel for the petitioners in WPMS No.214/2011, Mr. Arvind Kumar Sharma, the learned counsel for the petitioner in WPMS No.923/2011 and Mr. S. N. Babulkar, the learned Advocate General with Mr. B. D. Upadhyaya, the learned Additional Advocate General for the State.

2. In this group of petitions, the petitioners are aggrieved by the action of the respondents in rejecting their application for grant of a caste certificate or cancellation of the caste certificate or refusing to grant a caste certificate on the ground that the petitioners are not the original resident (Mool Niwasi) of the State of Uttarakhand. For facility, the facts of each case is narrated hereunder in brief.

3. In Writ Petition No.124 of 2011 (M/S), the petitioner is residing in District Haridwar since 1991 and belongs to a Jat caste which was notified as Other Backward Classes (hereinafter referred to as OBC) by the erstwhile State of Uttar Pradesh and the same is also notified as an OBC in the State of Uttarakhand. After the creation of the State of Uttarakhand, the petitioner was granted a permanent resident certificate by the authority on 24th June, 2010. The petitioner applied for a caste certificate, which was rejected by the Tehsildar by an order of 31st December, 2010 on the ground that the petitioner is not an original resident of Uttarakhand and that he is the original resident of District Muzaffarnagar, which is in the State of Uttar Pradesh. The impugned order admits that the petitioner was residing in District Haridwar, Uttarakhand for the past 15-20 years.

4. In Writ Petition No.1213 of 2009 (M/S), the petitioners contend that they are the original resident of District Fatehpur, which is in the State of Uttar Pradesh and that the petitioner no.1 settled in District Nainital in the year 1987 as he joined the services in H.M.T. Factory at Ranibagh, but subsequently, all the petitioners have started practice as an Advocate in the High court of Uttarakhand, Nainital. The petitioners claimed that they are residing in District Nainital for the past 24 years. The petitioners contend that they are ‘Kurmi’ by caste, which comes under the category of OBC and is recognized in Uttar Pradesh as well as in Uttarakhand. It is contended that the petitioners were issued a caste certificate by the State of Uttarakhand in 2001, 2005 & 2006, but, subsequently upon a fresh application being filed, the Tehsildar by an order of 13th July, 2009 has rejected the application for grant of a caste certificate on the ground that the petitioners are not the original resident of Uttarakhand and that they originally hail from Fatehpur, which is in the State of Uttar Pradesh.

5. In Writ Petition No.210 of 2010 (M/S), the petitioner contends that he was born in Haridwar and is residing in District Haridwar since then. The petitioner contends that he belongs to the Jat community, which falls under the OBC category in the State of Uttarakhand. The petitioner applied and was issued a permanent resident certificate as well as a caste certificate. On this basis, the petitioner applied for the post of Constable and was duly appointed, but subsequently, on a complaint being made, the matter was examined by the scrutiny committee, which found that

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