Supreme Court of IndiaArshad Jamil vs State Of Uttarkhand & Ors on 7 September, 2011Equivalent citations: AIR 2011 SUPREME COURT 3806, 2011 (9) SCC 313, 2011 AIR SCW 5074, 2012 (1) AIR JHAR R 631, (2012) 1 MAH LJ 22, (2011) 4 JCR 119 (SC), (2011) 8 MAD LJ 759, (2011) 131 FACLR 383, (2012) 1 MPLJ 9, (2011) 5 SERVLR 772, (2011) 6 ALLMR 936 (SC), (2011) 10 SCALE 151, (2011) 5 ESC 705, (2011) 3 SERVLJ 367, (2012) 6 ALL WC 6202, 2011 (4) KLT SN 53 (SC), 2012 (1) ADJ 3 NOC, (2012) 2 BOM CR 676Author:Mukundakam SharmaBench:Anil R. Dave,Mukundakam SharmaREPORTABLE


               IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDICTION



                 CIVIL APPEAL NO.  7721 of  2011

             [Arising out of SLP (C) No. 25203 of 2008]




ARSHAD JAMIL                                             ....Appellant (s)




                               VERSUS




STATE OF UTTARAKHAND & ORS.                    ....Respondent(s)


                                WITH


                 CIVIL APPEAL NO.  7722 of 2011

             [Arising out of SLP (C) No. 9209 of 2006]


                                WITH


                     CIVIL APPEAL NO. 7723 of 2011

             [Arising out of SLP (C) No. 8617 of 2006]





                               JUDGMENTDr. MUKUNDAKAM SHARMA, J.1. Leave Granted.2. By this Judgment and Order, we propose to dispose of three appeals, 



  arising out of SLP (C) No. 25203 of 2008 filed by the appellant hereinPage 1 of 25against the order dated 13.8.2008, SLP (C) No. 8617 of 2006 filed by 



   the   State   of   Uttaranchal   against   the   Judgment   and   Order   dated 



   23.12.2005   and   finally   SLP   (C)   No.   9209   of   2006   filed   by   the 



   appellant against the Judgment and Order dated 23.12.2005 passed 



   by the High Court of Uttaranchal at Nainital.3. In   SLP   (C)   No.   25203   of   2008   filed   by   the   appellant,   the   impugned 



   Judgment   and   Order   dated  13.8.2008   was   challenged,   whereby   the 



   High Court dismissed the writ petition filed by the appellant, praying 



   for   quashing   the   order   passed   by   the   respondent,   cancelling   the 



   caste certificate issued to the appellant.4. SLP   (C)   No.   8617   of   2006   was   filed   by   the   State   of   Uttaranchal 



   against   the   Judgment   and   Order   dated   23.12.2005,   whereby   the 



   High Court issued a direction for reinstatement of the Arshad Jamil, 



   whose service was terminated by an order dated 18.12.2004.5. SLP   (C)   No.   9209   of   2006   was   filed   by   the   appellant   herein, 



   challenging the Judgment and Order dated 23.12.2005, to the extent 



   it   denies   the   appellant   payment   of   any  salary   or  allowances   for   the 



   period for which he had not actually worked.Page 2 of 256. Since   the   subject   matters   involved   in   these   appeals   are   inter-connected   and   similar,   all   these   appeals   are   being   taken   up   for 



   consideration   together,   and   therefore,   a   common   Judgment   and 



   Order is being passed.7. The Uttrakhand Public Service Commission issued an advertisement 



   in the  year 2002  inviting applications for recruitment to the post of 



   Civil Judge [Junior Division]. In the said advertisement, it was clearly 



   mentioned   that   only   residents   of   the   State   of   Uttrakhand   would   be 



   entitled   to   the   benefit   of   reservation   under   the   category   of   Other 



   Backward  Classes.   The  said  advertisement  also  carried  a  proforma 



   of   the   caste   certificate   to   be   submitted   alongwith   the   application, 



   wherein   it   required   a   certification   as   to   "ordinarily   resident"   of   the 



   applicant.   The appellant, herein, obtained a caste certificate, which 



   was issued by the Thesildar, Roorkee to the effect the appellant is a 



   resident of Roorkee and belongs to "Momin Ansari Caste".   The said 



   certificate was dated 29.06.2002.8. A   Memorandum   was   issued   by   the   Government   of   Uttrakhand 



   prescribing the format of the caste certificate which an applicant was 



   required   to   submit   in   case   he   was   seeking   an   appointment   in   the 



   reserved category  i.e.  SC/ST/OBC.    The  appellant  herein submittedPage 3 of 25his application offering his candidature for the post enclosing a caste 



   certificate   issued   by   the   Tehsildar,   Roorkee   dated   29.06.02   and 



   appeared   in   the   written   examination   held   for   the   purpose   of 



   recruitment to the aforesaid post of Civil Judge [Junior Division], and 



   after   being   successful   in   the   examination   he   was   called   for   an 



   interview on 26.7.2003 under letter dated 26.06.2003. The appellant 



   was   found   successful   and   was   selected   for   the   post   of   Civil   Judge 



   [Junior   Division],   against   a   reserved   category   post   meant   for   other 



   backward classes, by an appointment order dated 18.9.2003.9. The   appellant   was   appointed   as   Civil   Judge   [Junior   Division]   on 



   probation for a period of two years.  The aforesaid appointment letter 



   was   issued,   subject   to   the   condition   that   the   character,   verification 



   and   report   of   the   health   examination   of   the   concerned   candidate 



   should   be   satisfactory   for   judicial   service.   After   he   submitted   his 



   joining   report,   the   appellant   was   posted   as   Civil   Judge   [Junior 



   Division]   at   Purola,   Utarkashi,   Uttrakhand   and   assumed   charge   on 



   22.9.2003.10.The   District   Magistrate,   Haridwar   received   a   letter   issued   by   the 



   Secretary,   Public   Service   Commission,   Uttaranchal,   Haridwar 



   informing   him   that   a   complaint   had   been   received   by   thePage 4 of 25Commission against the appellant herein, wherein it was complained 



  that   Arshad   Jamil   is   a   permanent   resident   of   House   No.   156, 



  Janshath House, Ansari Road, District - Muzaffarnagar, and that his 



  name   appeared   at   Sl   No.   862   of   part   No.   141   of   Electoral   List   of 



  constituency No. 408 of Muzaffarnagar Legislative Assembly and that 



  he   is   a   Member   of   the   Muzaffarnagar   Bar   Association.       By   the 



  aforesaid   letter   sent   on   15.09.2003,   the   District   Magistrate   was 



  requested   to   inform   the   Commission   on   priority   basis   about   the 



  validity   of   the   caste   certificate   of   OBC   issued   to   the   appellant   on 



  29.06.2002   so   that   the   Commission   could   take   a   decision   on   the 



  aforesaid complaint.11.Pursuant to the aforesaid letter, an inquiry was conducted and the 



  Tehsildar   Roorkee   submitted   a   report  dated   09.07.2003,   confirming 



  that   Arshad   Jamil,   son   of   Jamil   Ahmed,   resident   of   7,   Sheikhpuri, 



  Roorkee,   Haridwar   has   been  residing   at   that  place   since   1991,   and 



  that he belonged  to caste  Momin Ansari,  which  comes  in the list  of 



  other backward class in Uttaranchal.   In the said report, it was also 



  stated   that   it   is   possible,   that   prior   to   his   stay   in   Roorkee   he   was 



  staying in Muzaffarnagar.   In the said report, it was also stated that 



  Arshad   Jamil   was   residing   in   Roorkee   for   about   12   years   since   hisPage 5 of 25name   appeared   in   the   Municipality   records   as   tenant.     It   was   also 



   stated   that   he   was   residing   in   Roorkee   from   3.6.1998   to   2003   as   a 



   resident   of   Old   House   No.   24   and   New   Number   7,   Sheikhpuri, 



   Roorkee,   Haridwar.     It   appears   that   a   police   report   was   also 



   submitted   on   8.12.2003,   that   the   appellant   has   been   residing   at 



   Roorkee since 1991.12.A   letter   was   sent   by   the   District   Magistrate   dated   9.1.2004   to   the 



   Principal   Secretary,   Social   Welfare   Department,   Uttaranchal 



   Government,   stating   that   the   jurisdiction   to   cancel   the   caste 



   certificate lies with the State Government and not with him.  A show 



   cause   notice   was   issued   to   the   appellant   by   the   Chief   Secretary, 



   Government of Uttaranchal.  Under his letter dated 13.5.2004, it was 



   alleged   that   one   Shri   Abdul   Kareem   had   submitted   a   complaint   by 



   his letter dated 12.1.2004 alleging that the appellant had succeeded 



   in getting appointed in the Uttaranchal State Judicial Service on the 



   basis   of   a   fake   caste   and   residence   certificate,   at   the   address   of 



   Sheikhpuri,   Roorkee   in   collusion   with   the   Tehsildar   of   Roorkee.     In 



   the   said   letter,   it  was   also   mentioned  that   an   inquiry   was  made   by 



   the   District   Magistrate,   Haridwar,   who   had   informed   the   State 



   Government that the appellant was a permanent resident of DistrictPage 6 of 25Muzaffarnagar,   Uttar   Pradesh   but   he   had   produced   a   certificate   of 



   Other Backward Classes showing himself to be a permanent resident 



   of   Uttaranchal   and   therefore,   was   not   entitled   to   get   the   benefit   of 



   OBC   Caste   in   Uttarakhand,   as   he   is   a   permanent   resident   of   Uttar 



   Pradesh.     He   was,   therefore,   asked   to   show   cause   as   to   why   his 



   appointment   in   the   judicial   service   should   not   be   cancelled   for   the 



   aforesaid reason.13.The   appellant   submitted   his   reply   as   against   the   aforesaid   show 



   cause notice on 20.7.2004.  The contents of the aforesaid reply were 



   considered but even thereafter another show cause notice appears to 



   have   been   issued   to   the   appellant   on   18th  September,   2004.       The 



   contents of the show cause notices and replies filed were considered 



   by   the   State   Government.   On   scrutiny   thereof,   it   was   found   by   the 



   Government   that   the   appellant   was   born   in   District   Muzaffarnagar, 



   UP   and   that   he   had   also   completed   his   education   there.     A   Ration 



   Card   had   been   made   in   his   name   and   in   the   names   of   his   family 



   members in District Muzaffarnagar and he completed his law course 



   being a student from Muzaffarnagar. He also got himself enrolled in 



   the Muzaffarnagar Bar Association. His name was also entered in the 



   electoral roll of Muzaffarnagar up to 2007, when his name came to bePage 7 of 25deleted   from   the   voters   list   after   his   father   informed   the   concerned 



   authorities that  the name  of the appellant  is  to  be deleted from  the 



   voters list as he is now residing in Roorkee.14.Considering the aforesaid facts, it was held that the defense taken in 



   the   replies   by   the   appellant   was   baseless   and   that   since   he   was 



   neither   a   permanent   resident   of   the   State   of   Uttaranchal   nor 



   belonged   to   Other   Backward   Classes   of   State   of   Uttarakhand,   his 



   appointment   to   the   post   of   Civil   Judge   [Junior   Division]   was 



   terminated as per order dated 18.12.2004.15.Another order came to be issued on 2.3.2005, whereby the Tehsildar 



   Roorkee,   who   was   the   competent   authority,   cancelled   the   caste 



   certificate   issued   to   the   appellant   on  29.6.2002   on  the   ground   that 



   after   a   detailed   inquiry   it   was   revealed   that   the   appellant   had 



   obtained   the   caste   certificate   by   showing   himself   a   resident   of 



   Roorkee   in   a   mischievous   manner,   while   he   was   actually   a 



   permanent   resident   of   Muzaffarnagar,   and   thereby   he   has   misused 



   the said caste certificate.16.The   appellant   filed   a   writ   petition   challenging   the   legality   and   the 



   validity   of   the   order   dated   02.03.2005.     The   said   writ   petition   was 



   registered as Writ Petition (Civil) No. 448 of 2005.  The aforesaid writPage 8 of 25petition, filed by the appellant, was allowed by the Uttrakhand High 



   Court by its order dated 6.5.2005, whereby the High Court quashed 



   the   said   order   on   the   ground   of   violation   of   principles   of   natural 



   justice, with liberty to the Tehsildar to issue notice to the appellant 



   and  to give  reasonable  opportunity to  file  his objections  against  the 



   proposal to cancel the caste certificate.17.Consequently,   a   show   cause   notice   was   issued   to   the   appellant   by 



   the Tehsildar on 6.6.2005, calling upon him to show cause as to why 



   the   caste   certificate   issued   to   him   on   29.6.2002   should   not   be 



   cancelled,   for   the   reasons   stated   in   the   said   notice.     The   appellant 



   submitted his reply to the aforesaid show cause notice.  Thereafter, a 



   second   show   cause   notice   dated   11.8.2005,   in   continuation   of   the 



   notice dated 6.6.2005, was issued to Shri Arshad Jamil.  After replies 



   sent by the appellant,  he was  also given an opportunity to examine 



   the documents on record by issuing a letter dated  11.8.2005 which 



   was   sent   to   his   address   House   No.   7,   Opposite   Dev   Nursing   Home, 



   Roorkee.18.Despite the aforesaid letter, he did not appear and therefore, a notice 



   was  pasted   at the  address intimating  him to  be  present  to  examine 



   and peruse the relevant documents.  As the appellant did not appearPage 9 of 25to examine the said documents, the Tehsildar, Roorkee proceeded to 



  pass an order dated 1.9.2005.   In the said order, the Tehsildar held 



  that  after  going  through   the   documents   relied  upon by  the   objector 



  and   other   records   available,   it   is   revealed   that   the   objector   Arshad 



  Jamil was originally a resident of Mohalla Khalapar, Muzaffarnagar, 



  which   is   established   by   the   fact   that   his   name   is   mentioned   as 



  against   House   No.   225   of   Serial   No.   147   of   Part   No.   42   of   408 



  Muzaffarnagar Vidhan Sabha Kshetra Electoral Roll, 1995.  From the 



  Electoral Rolls of 2003, it was also found that a photo identity card of 



  Arshad Jamil was prepared by the Election Commission of India for 



  Electoral   Roll   of   Muzaffarnagar   Vidhan   Sabha,   wherein   his   name 



  appeared   until   it   was   deleted   in   2007   on   the   basis   of   information 



  supplied by his father on 27.08.06. His father informed them that his 



  son was now staying at Roorkee.19.The other documents filed by the appellant were also considered, by 



  which   it   was   deduced   that   the   objector   had   obtained   the   caste 



  certificate   in   question   by   fraud.   In   that   view   of   the   matter   the 



  Tehsildar,   Roorkee   held   that   such   caste   certificate   should   not   have 



  been issued to the appellant and therefore, passed an order that thePage 10 of 25caste   certificate   dated   29.6.2002   be   cancelled   by   issuing   his   order 



  dated 1.9.2005.20.Meanwhile,   the   appellant   filed   writ   petition   No.   413   of   2005 



  challenging the order dated 18.12.2004, terminating his service.   He 



  also   filed   another   writ   petition   being   writ   petition   no.   408   of   2006 



  challenging   the   order   of   cancellation   of   his   caste   certificate.     The 



  High Court considered the writ petition no. 413 of 2005 filed by the 



  appellant,   which   was   allowed   by   the   High   Court   by   order   dated 



  23.12.2005.     By   the   said   order,   the   High   Court   directed   the 



  reinstatement of the appellant with continuity of service without any 



  break, but ordered that the said reinstatement would be without any 



  salary   or   allowances   for   the   period   for   which   he   had   not   actually 



  worked.21.The writ petition No. 408 of 2006 was taken up for final hearing by 



  the High Court and by Judgment and Order dated 13.8.2008 the writ 



  petition   was   dismissed   holding   that   the   appellant   cannot   get   the 



  benefit   of   being   OBC   status   in   the   State   of   Uttrakhand   as   he   is   a 



  permanent resident of Muzaffarnagar, UP and also that he obtained a 



  false   certificate   of   being   resident   of   Roorkee,   District   Haridwar, 



  Uttrakhand.Page 11 of 2522.As against the  aforesaid, the two orders passed by  the High  Court, 



  three   Special   Leave   Petitions   as  aforestated   came   to   be   filed   in   this 



  Court in which notices were issued.   The same were listed before us 



  for   hearing   and   we   heard   the   learned   counsel   appearing   for   the 



  parties   on   the   said   Special   Leave   Petitions   and   by   this   common 



  Judgment   and   Order   we   are   disposing   of   all   these   Special   Leave 



  Petitions, after granting leave therein and by giving our reasons.23.Counsel  appearing for the appellant-Arshad Jamil forcefully argued 



  that the respondent-State did not have any jurisdiction to review the 



  order granting caste certificate in favour of the appellant. According 



  to   him,   after   the   grant   of   the   aforesaid   caste   certificate   dated 



  29.6.2002,   the   matter   was  once   reviewed   by   the   Tehsildar,   Roorkee 



  and   in   the   fresh   inquiry   also   it   was   found   and   revealed   that   the 



  appellant   was   ordinarily   a   resident   of   Uttarakhand   and   that   he 



  belongs  to   Other   Backward   Classes   and  therefore   no  further   review 



  was   called   for   and   permissible.   According   to   him,   the   police   also 



  made a verification wherein it was also established that he has been 



  residing   in Roorkee for  a  very  long  time  and,  therefore,  an  ordinary 



  resident   of   Roorkee.   He   therefore   submitted   that   the   subsequent 



  review   made   by   the   Tehsildar   regarding   the   caste   verification   wasPage 12 of 25without jurisdiction. Counsel also submitted before us that there has 



been enough cogent evidence on record to justify and prove that the 



appellant has been in Roorkee at least from the year 1998, which fact 



is proved from the municipal records itself, and the police verification 



report  also  having stated  that  he  has been in  Roorkee  for  about  12 



years,   the   order   of  cancellation   of  the  caste   certificate   is   illegal   and 



without   jurisdiction.   He   submitted   that   the   expression   "ordinarily 



resident"   does   not   bar   simultaneous   residence   at   some   other   place 



also, for  a person could  be at two  places at the same  time.  He also 



submitted that the order of cancellation of his caste certificate came 



to be passed on the basis of the dictation of the District Magistrate, 



which is apparent on the face of the records and, therefore, such an 



order   which   is   passed   at   the   behest   and   dictation   of   a   higher 



authority  is illegal  and irrational.  According  to the counsel, there  is 



enough   evidence   on   record   like   lawyers'   identity   card   issued   by 



Uttarakhand  HC Bar Association, entry of his name in the electoral 



roll   of   Roorkee   in   the   year   2003,   the   Hibanama   and   also   the 



certificate of the landlord showing him as a resident of Roorkee and 



the municipal records indicating the residence at Roorkee from 1998 



to 2003 which, when collectively read, would support the contention 



that   the   appellant   is   ordinarily   resident   of   Roorkee   and,   therefore,Page 13 of 25entitled   to   get   a   caste   certificate   of  the   nature   which   was  issued   to 



   him   and,   therefore,   cancellation   of   the   same   by   the   authority   was 



   illegal and is liable to be set aside.24.Counsel   appearing   for   the   respondent   however,   while   rebutting  the 



   aforesaid   contentions,   submitted   that   the   documents   on   record 



   clearly   indicate   that   the   appellant   has   been   a   resident   of 



   Muzaffarnagar,   UP   at   least   upto   2002   and   thereafter,   in   order   to 



   make   himself   eligible   to   apply   for   a   reserved   post,   he   created 



   documents to indicate that he is an ordinary resident of Roorkee. He 



   has   also   drawn   our   attention   to   the   various   documents   on   record, 



   including the document which he had submitted to the Bar Council 



   of   India   applying   for   enrolment   and   the   certificate   given   by   the   Bar 



   Council,   showing   his   residence   to   be   at   Muzaffarnagar.   It   was   also 



   submitted by him that the High Court was justified in upholding the 



   administrative   action   taken   by   the   respondent   State,   as   judicial 



   review   of  such   administrative   action  should   and   could   be   exercised 



   only in a very limited sphere. He submitted that the aforesaid order 



   of   cancellation   of   the   caste   certificate   was   done   after   an   order   was 



   passed   by   the   High   Court   directing   for   giving   a   hearing   to   thePage 14 of 25appellant   and   that   upon   giving   such   reasonable   opportunity   to   the 



   appellant, his caste certificate was finally cancelled.25.In the light of the aforesaid submissions of the counsel appearing for 



   the   parties,   we   have   perused   the   records   and   also   perused   the 



   decisions relied upon by the counsel appearing for the parties.26.Undisputedly,   and   as   agreed   to   by   the   counsel   appearing   for   the 



   parties   during   the   course   of   hearing   of   arguments,   if   the   order 



   passed   by   the   High   Court   upholding   the   cancellation   of   a   caste 



   certificate   is   confirmed   by   this   Court,   in   that   event  it   would   not   be 



   necessary to go into the other aspect regarding the issue of legality or 



   otherwise   of   the   order   of   termination   as   also   the   order   regarding 



   payment   of   back   wages   to   the   appellant.   On   the   other   hand,   if   we 



   find  that  the  order  of the  High Court   cannot be  sustained  and  that 



   the caste certificate was issued legally and justifiably, in that event, 



   not   only   the   order   canceling   the   caste   certificate   is   to   be   set   aside 



   with a direction to restore the caste certificate to the appellant but at 



   the same time the order of termination shall also have to be quashed.Consequently,  the   question  with   regard  to   the   claim  for   payment  of 



   arrear of wages shall have to be considered.Page 15 of 2527.Therefore,   in   our   considered   opinion,   the   issue   with   regard   to   the 



   issuance   of   caste   certificate   and   cancellation   thereof,   is   the   crucial 



   question   which   goes   to   the   root   of   the   dispute   between   the   parties 



   and the same requires our consideration at the very initial stage.28.Our   attention   was   drawn   to   the   advertisement   issued   by   the 



   respondent-State   inviting  applications  for  filling  up  the  post  of  Civil 



   Judge   [Junior   Division].   In   the   said   advertisement   it   was   clearly 



   mentioned that the candidates who claim reservation by claiming to 



   belong to Other Backward Classes of Uttarakhand, have to produce a 



   caste   certificate   in   terms   of   the   format   attached   thereto.   It   was 



   mentioned therein that the candidate who claims to be a member of 



   the backward classes of Uttarakhand and is ordinarily a resident of 



   Uttarakhand   has   to   submit   a   caste   certificate   in   format.   The 



   appellant   also   while   applying   for   the   said   post,   obtained   a   caste 



   certificate which was issued by the Tehsildar on 29.6.2002, which is 



   under challenge.29.It   is   no   doubt   true   that   the   Tehsildar,   Roorkee   subsequently   also 



   reiterated   his   stand   that   the   appellant   is   a   member   of   the   other 



   backward   classes   and   is   also   ordinarily   a   resident   of   Uttarakhand.Subsequently,   however,   the   same   was   cancelled   by   an   order   datedPage 16 of 2502.03.2005   whereby   the   Tehsildar,   Roorkee,   who   is   the   competent 



authority,   cancelled   the   caste   certificate   issued   to   the   appellant   on 



29.6.2002, on the ground that after a detailed inquiry it was revealed 



that   the   appellant   had   obtained   the   caste   certificate   by   showing 



himself to be a resident of Roorkee in a mischievous manner, while 



he   was   actually   a   permanent   resident   of   Muzaffarnagar   and   has 



thereby, misused the said caste certificate. A copy of the said order is 



on   record.   The   said   order   indicates   that   District   Magistrate   had 



advised  cancelling   the   certificate.   The  said   order   also   indicates  that 



the   same   was   cancelled   without   giving   any   opportunity   to   the 



appellant.   Therefore,   a   writ   petition   was   filed   by   the   appellant 



challenging   the   legality   and   the   validity   of   the   order   dated 



02.03.2005.   The   said   writ   petition   was   allowed   by   the   Uttarakhand 



High   Court   by   its   order   dated   06.05.2005,   whereby   the   High   Court 



quashed   the   said   order   on   the   ground   of   violation   of   principles   of 



natural justice, with liberty to the Tehsildar to issue a notice to the 



appellant   and   to   give   reasonable   opportunity   to   file   his   objections 



against   the   proposal   to   cancel   the   caste   certificate.   In   view   of   the 



aforesaid   order   passed   by   the   High   Court,   the   State   Government 



became empowered to pass a fresh order in the matter of cancellation 



of caste certificate, after giving notice to the appellant to show causePage 17 of 25as to why it should not be cancelled. There is no dispute with regard 



   to   the   fact   that   subsequent   thereto   the   appellant   has   been   given 



   such an opportunity  and he had  filed replies  thereto. The Tehsildar 



   thereafter   passed   a   reasoned   order   by   referring   to   the   various 



   documents filed by the parties and giving reasons for his decisions by 



   relying upon the documents which are on record.30.The   High   Court,   where   the   validity   of   the   order   passed   by   the 



   Tehsildar on 02.03.2005 was challenged, considered the contentions 



   raised by the appellant, but dismissed the writ petition holding that 



   the   appellant   cannot   get   the   benefit   of   Other   Backward   Classes 



   status in the State of Uttarakhand as he is a permanent resident of 



   Muzaffarnagar, UP. The High Court has also recorded a finding that 



   the   appellant   obtained   a   false   certificate   of   being   a   resident   of 



   Roorkee, District-Haridwar, Uttarakhand.31.Although, the power and the jurisdiction of this Court in the matter 



   of re-appreciation of evidence is restricted and also keeping in mind 



   the   well-settled   principles   that   the   scope   of   judicial   review   of 



   administrative action is very restricted and limited and, therefore, we 



   should   be   slow   in   interfering   with   the   finding   of   facts   arrived   at   by 



   the   High   Court,   we   still   looked   into   the   entire   records   and   thePage 18 of 25documents   relied   upon   in   order   to   satisfy   ourselves   that   the   action 



   taken   by   the   respondent-State   in   canceling   the   certificate   of   the 



   appellant is legal, just and proper.32.On   considering   the   evidence   on   record   and   the   documents   placed 



   before   us   we   find   that   the   appellant   received   his   education   in 



   Muzaffarnagar   except   for   a   period   when   he   studied   in   Mysore.     He 



   also   obtained   his   Law   Degree   from   Muzaffarnagar   Law   College.During   the   aforesaid   period   he   was   a   resident   of   Muzaffarnagar 



   which   is   established   from   the   records   available   with   us.   The 



   appellant thereafter obtained his graduation from the Law College at 



   Muzaffarnagar,   and   got   himself   enrolled   with   the   Bar   Council   of 



   Uttar   Pradesh,   Allahabad.   He   submitted   his   application   on 



   01.12.1999   and   he   received   the   enrolment   on   09.03.2000   in   which 



   also   his   address   was   shown   as   225,   Khalapur,   District-Muzaffarnagar,   U.P.   His   name   as   well   as   the   names   of   his   family 



   members were included in the ration  card which  has been  made  in 



   District-Muzaffarnagar.   The   said   ration   card   however   came   to   be 



   cancelled   by   the   supply   office   in   the   year   2001,   during   card 



   verification scheme for want of a photograph. Despite his claim that 



   he   was   residing   in   Roorkee,   there   is   no   documentary   evidence   toPage 19 of 25prove the said fact except for a document which has been placed on 



record, being municipal record, but issued in the year 2003 showing 



him   as   a   tenant   of   Furkan   Ahmed   in   Mohalla   Shekhpuri  for   the 



period from 1998 to 2003. But if he was staying in Roorkee from the 



year 1998, there was no reason why other documentary evidence is 



not   available   in   support   of   his   contention   that   he   was   ordinarily   a 



resident   of   Roorkee.   His   name   came   to   be   recorded   in   the   electoral 



roll   of   Roorkee   in   the   District-Haridwar   only   in   the   year   2003.   The 



records   placed   before   us   show   that   the   name   of   the   appellant   was 



included   in   the   electoral   roll   of   Muzaffarnagar   in   the   year   1993   on 



the basis of door to door survey made by the election commissioner.Since   he   was   found   residing   in   Muzaffarnagar,   his   name   was 



included  in  the  voters   list  of Muzaffarnagar   constituency.  His  name 



finds place in the electoral roll of Muzaffarnagar constituency for the 



year   1993,   1995,   1998   and   2003.   The   voter   identity   card   of   the 



appellant   was  also  issued  to   him  from   the   Muzaffarnagar   Assembly 



constituency   showing   him   to   be   a   resident   of   House   No.   225, 



Mohalla-Khalapur,   District-Muzaffarnagar,   U.P.   The   name   of   the 



appellant   in   the   aforesaid   voter   list   continued   to   be   there   till   his 



father informed them in the year 2006 that his son is now residing in 



Roorkee and, therefore, his name is to be deleted from the voters list.Page 20 of 25The   appellant   submitted   his   application   for   being   appointed   for   the 



   post   of   Civil   Judge   [Junior   Division]   alongwith   the   cast   certificate 



   issued to him on 29.6.2002. There is no contemporaneous document 



   prior   to   the   same   showing   and   justifying   his   claim   that   he   was 



   ordinarily a resident of Roorkee.33.Our   attention   was   also   drawn   to   theSection   21of   the 



   Representation of Peoples Act, 1950 laying down the procedure and 



   method   for   the   preparation   and   revision   of   electoral   rolls   in   a 



   constituency.   Our   attention   was   also   drawn   to   Rule   7   of   the 



   Registration  of Electors  Rules,  1960 which prove and  establish that 



   an electoral roll is prepared on the basis of enumeration done by the 



   election staff after making a door to door verification and on the basis 



   of   the   information   disclosed   by   the   family   members   and   the   house 



   they  visit. On the  said disclosures made, the  name of the appellant 



   was   included   in   the   voters   list   of   Muzaffarnagar   upto   2003   and 



   therefore, it cannot be said that he was not only ordinarily resident of 



   Muzaffarnagar but a permanent resident thereof.34.In   view   of   such   authentic   and   sufficient   documentary   evidence   on 



   record to reject the claim of the appellant that he was an ordinarily 



   resident of Roorkee, the findings recorded by the Tehsildar, RoorkeePage 21 of 25in   his   order   dated   02.03.2005   and   also   those   recorded  by   the   High 



  Court   cannot   be   sought   to   be   in   any   manner   arbitrary,   illegal   or 



  irrational.35.In the case of  Action Committee on Issue of Caste Certificate to  


  SC   and   ST   in   theState   of   Maharashtra   and   Anr.  v.  Union   of  


  India
            & Anr.reported in (1994) 5 SCC 244 a Constitution Bench of 


  this   Court   considered   the   issue   regarding   a   person   belonging   to 



  SC/ST in relation to his original State of which he is a permanent or 



  ordinary   resident.   While   examining   the   said   issue   it   was   held   that 



  such  a person  who  belongs  to  SC/ST in  one  State  of which  he  is  a 



  permanent or ordinary resident cannot deem to belong to SC/ST in 



  relation   to   another   State   on   his   migration   to   that   State   for   the 



  purpose   of   employment,   education,   etc.   The   aforesaid   conclusions 



  were arrived at by the Constitution Bench of this Court after referring 



  to the Government order wherein the expression "ordinary residence"came   to   be   explained   as   residence   which   is   not   for   the   purpose   of 



  service,   employment,   education,   confinement   in   jail,   etc.,   and   in 



  short   it   means   permanent   and   not   a   temporary   residence.   The 



  Constitution Bench also referred toSection 20of the Representation 



  of Peoples Act, that so far as the Government of India is concerned, itPage 22 of 25has   firmly   held   the   view   that   a   Scheduled   Caste/Scheduled   Tribe 



   person who migrates from the State of his origin to another State in 



   search of employment or for education purposes or the like, cannot 



   be treated as a person belonging to the Scheduled Caste/Scheduled 



   Tribe  of  the  State   to  which  he   migrates   and   hence  he   cannot   claim 



   benefit as such in the latter State.36.The  order   which  is  passed  by  the  Tehsildar   whereby  he  had finally 



   cancelled   the   caste   certificate   of   the   appellant   and   which   is   the 



   impugned order under challenge in the writ petition, was a detailed 



   order giving cogent reasons for the decision rendered. The said order 



   cannot be termed as an order passed by him at anybody's behest or 



   at   the   dictation   of   his   superior   officer.   The   aforesaid   order   was 



   passed   independently   exercising   his   own   independent   mind   and 



   upon detailed examination of the records. Therefore, the submission 



   that the same was passed at the dictation of the higher authority or 



   that   the   same   was   passed   for   extraneous   consideration   is   baseless 



   and without any merit.37.The   appellant   has   failed   to   prove   and   establish   that   he   is   an 



   ordinary   resident   of   Roorkee   in   the   year   2002   when   he   made   an 



   application   for   his   appointment   to   the   post   of   Civil   Judge   [JuniorPage 23 of 25Division]   and   also   when   he   applied   for   and   obtained   the   caste 



  certificate.   The   caste   certificate   was   initially   issued   to   him   without 



  making   a   proper   and   detailed   inquiry,   and   the   Tehsildar   proceeded 



  on the basis of certain observation of two persons. A caste certificate 



  is   a   very   important   and   substantial   document   and,  therefore,   while 



  granting   the   same   a   proper   inquiry   is   required   to   be   made   by   the 



  Tehsildar which appears to have been not done in the present case, 



  and the Tehsildar issued the said caste certificate to the appellant in 



  a   perfunctory   manner   and   therefore,   the   same   was   cancelled   by   a 



  detailed order giving cogent and valid reasons thereof.38.Consequently, we find no infirmity in the judgment and order dated 



  13.08.2008,   in   writ   petition   no.   408   of   2006   passed   by   the   High 



  Court,   upholding   the   order   of   the   Tehsildar   canceling   the   caste 



  certificate of the appellant. The appeal filed by the appellant against 



  the order dated 13.8.2008 of the High Court fails.39.Consequently,  the  appeal  filed  by   the  State  of  Uttarakhand  against 



  the order dated 23.12.2005, passed by the High Court, setting aside 



  the   order   of   termination   of   the   appellant   in   writ   petition   no.   413   of 



  2004 stands allowed in terms of this order.Page 24 of 2540.In   view   of   the   aforesaid   position,   the   appeal   filed   by   the   appellant 



   against the order dated 23.12.2005, passed by the High Court in writ 



   petition no. 413 of 2004, claiming payment of back wages is rendered 



   infructuous, which is also dismissed in terms of this order.............................................J

                                                      [Dr. Mukundakam Sharma]





                                                ............................................J

                                                  [Anil R. Dave]

New Delhi,

September 7, 2011.Page 25 of 25