Smt. Bhajno Devi vs State Of U.P. Thru Secy. And Others
2012 Latest Caselaw 1043 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 20611 of 2012
 

 
Petitioner :- Smt. Bhajno Devi
 
Respondent :- State of U.P. through Secretary and others
 
Petitioner Counsel :- Satish Mandhyan
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal, J.

1. Writ petition is directed against the order dated 12.4.2012 passed by District Magistrate, Bijnor removing petitioner from post of Gram Pradhan of Gram Panchayat Teep under Section 95 (1) (g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") on the ground that seat was reserved for Scheduled Caste woman and petitioner contested the election claiming herself to be a Scheduled Caste candidate (caste Bajgi) though actually she does not belong to that caste and even the caste certificate dated 29.9.2010 alleged to have been issued by Tahasildar was not actually issued by him as has been confirmed by Tahasildar by letter no. [email protected] [email protected] [email protected] lR;[email protected] 2012 dated 6.1.2012. Therefore the very election of petitioner to the post of Gram Pradhan was void ab-initio.

2. Sri Madhyan learned counsel for petitioner contended that the impugned order has been passed in utter violation of principles of natural justice and on the basis of enquiry conducted against petitioner behind her back and hence is liable to be set aside. He submitted that neither the report submitted by Tahasilar was ever apprised to petitioner nor petitioner was confronted with any material which was against her and considered by District Magistrate in passing the impugned order. Reliance is placed on a Full Bench Judgement in Vivekanand Yadav Vs. State of U.P. & others 2010 (10) ADJ 1 in support of submission that the procedure of enquiry as contemplated in Act, 1947 is mandatory and in case any order of removal has been passed without following the said procedure, it shall be illegal and void ab-initio.

3. It is not in dispute that petitioner belong to Bajigar caste which is declared to be scheduled caste in the State of Punjab. It is not so declared in the State of U.P. is also not disputed. Petitioner was married to Sri Lazza Ram, who belong to caste Bajgi which is scheduled cast in State of U.P. Without looking to the other questions, two questions which are relevant on the basis of facts averred in para 4 of writ petition would be:

(1) Whether a Scheduled Caste in one State can claim benefit of such status in another State in which he/she is not declared to be a Scheduled Caste.

(2) Whether by virtue of marriage, caste of a women would become that of husband entitling her to contest the election on a seat reserved for that caste or community.

4. So far as first question is concerned, the Apex Court has already replied this question in UP Public Service Commission, Allahabad Vs. Sanjai Kumar Singh (2004) 1 UPLBEC 217 wherein it was held that an ordinarily residents of other State whose caste is not in the reserved category in the State of U.P. is not entitled to benefit of reservation even if they belong to the reserved category in their own State. A division bench of this Court earlier took the same view in Civil Misc. Writ Petition No. 3936 of 2002 (Satpal Meena and others Vs. UP Public Service Commission, Allahabad and others) decided on 5.9.2002. The above authorities have been relied and followed by a Division Bench of this Court in Civil Misc Writ Petition No. 26044 of 2000 (Mohd Hassan Jafri Vs. The Director of Higher Education UP Allahabad and others) decided on 2.4.2004.

5. Coming to the second question, this is also no more res integra having been answered by Apex Court in Sandhya Thakur Vs. Vimla Devi Kushwaha (2005) 2 SCC 731, wherein the Apex Court observed has under:

"...the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community. Therefore, it is not possible to accept the argument that the appellant was entitled to contest a seat reserved for a backward community merely because of her marriage to a person belonging to the Namdev community or caste."

6. It is, thus, evident that in view of admitted facts as stated in para 4 and 5 of writ petition as also exposition of law as discussed above, the petitioner was not eligible or entitled to contest the election of Gram Pradhan of Village Teep, being not a Scheduled Caste, as per the notified list of Scheduled Caste in State of U.P. and therefore her very election was illegal since its inception, hence she could have been removed from Office having been elected in violation of statutory provisions.

7. Coming to the question of application of principles of natural justice, suffice is to mention that once it is admitted that the very election of petitioner was not in accordance with Statute and facts in this regard are virtually admitted and only one conclusion is possible, under Article 226 this Court is not obliged to interfere with an order which has resulted in substantive justice merely on the ground of some defect in the matter of procedure i.e. denial of opportunity of hearing since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution.

8. In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa AIR 2005 SC 1933, the Apex Court held:

"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...".

9. In Punjab National Bank and others Vs. Manjeet Singh and another AIR 2007 SC 262, the Apex Court said:

"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."

(emphasis added)

10. This Court also in Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others) decided on 18.5.2011 has taken somewhat similar view as under:

"... it is well settled that if only one conclusion is possible, the Court would not interfere in the impugned order ...."

11. In P.D. Agrawal Vs. State Bank of India and others (2006) 8 SCC 776, it has been observed by Apex Court:

"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets."

12. This Court also in Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others) decided on 29.4.2011 has held as under:

"16. The principles of natural justice cannot be kept in a straight jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules.

17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed."

13. In view of above, I do not find any reason to interfere.

14. Dismissed.

Dt. 30.4.2012

PS