Saurabh Shyam Shamshery,J

1. Heard Sri H.R. Mishra, learned Senior Counsel assisted by Sri Krishna Mohan Mishra, learned counsel for petitioners and Sri Ashish Kumar (Nagvanshi) and Sri K.Shahi, learned counsel for B.S.A.

2. The present writ petitions are arising out of a dispute of Caste Certificate issued to Nayak Caste/Community. It is a case of petitioners that they belonged to Nayak Caste/ Community and are resident of District- Gorakhpur and their respective Caste Certificates were initially issued prior to 2014.

3. It is further case of petitioners that controversy in regard to validity of Caste Certificate was reached up to State Level Caste Scrutiny Committee and by a common order dated 28.07.2014, all certificates issued till that date to persons of Nayak Caste/ Community Gorakhpur including petitioners were cancelled. Copy of the order is not on record.

4. The aforesaid order was challenged before Division Bench of this Court (leading writ petition bearing No.8666 of 2014), which was finally disposed of relegating the petitioners therein to prefer appeals before Divisional Level Caste Scrutiny Committee and thereafter aggrieved persons have preferred appeals before Divisional Caste Scrutiny Committee, Gorakhpur which were decided by a common order dated 21.09.2019. Copy of order is not on record.

5. The order impugned therein i.e. order dated 28.07.2014 was set aside, however, certain observations were made therein and the matter was remitted to District Magistrate to pass fresh orders, which was again challenged before this Court by way of filing a writ petition bearing No.35021 of 2019 (Aush J. Nayak & others Vs. State of U.P. & others), wherein interim order was passed and further proceedings before District Magistrate were stayed and orders were also passed for provisional appointment of petitioners therein subject to outcome of litigation. Some other writ petitions were also filed.

6. Petitioners in present bunch have participated in selection process of Assistant Teacher of primary schools and their names were found in select list also, being Schedule Tribe, but they were not appointed and it was delayed presumably on a ground that their Caste Certificate requires further verification.

7. The petitioners have approached the concerned respondents for their appointments and when no decision was taken they have approached this Court by way of filing present writ petitions mainly seeking following reliefs :-

." It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to;

I. To issue a writ, order or direction in the nature of mandamus directing respondent authorities to undertake the counselling of the petitioners for their joining at the allocated Primary School;

II. To issue a writ, order or direction in the nature of mandamus directing and commanding the respondent authorities not to cancel the candidature of the petitioners for their appointment to the post of Assistant Teacher Primary Schools in Scheduled Tribe category on an illegal and imaginary ground that their original Caste Certificate are doubtful which requires further verification and/or for want of fresh Caste Certificate of Scheduled Tribe category

II. To issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case to meet the ends of justice.

IV. To award the cost of the writ petition in favour of the petitioners."

8. This Court has entertained the writ petition and passed an interim order on 05.08.2021 and when respondents have not complied the above order, they initiated contempt proceedings which is still pending before concerned Court. Order dated 05.08.2021 is mentioned hereinafter:-

“Connect this matter along-with record of Writ A No. - 5247 of 2020 (Piyush Kumar Nayak Vs. State Of U P And 2 Others ). Heard learned counsel for the petitioners, learned Standing Counsel for the State respondents and Sri Arun Kumar, learned counsel for the contesting-respondent.

Petitioners are before this Court with a request commanding the respondent authorities not to cancel the candidature of the petitioners for appointment to the post of Assistant Teacher Primary Schools in Scheduled Tribe category on an illegal and imaginary ground that their original Caste Certificate is doubtful.

Identical issues have been raised in Writ A No. - 5247 of 2020, wherein, this Court has proceeded to pass a detailed interim order on 10.11.2020 to the following effect:-

"The petitioner is aggrieved by the failure of the respondents to process his appointment on the post of Medical Officer (Ayurved) on the foot that the caste certificate issued by the competent authority is not acceptable. The undisputed facts of this case are these. The petitioner was issued a caste certificate by the competent authority of District-Gorakhpur on 15.12.2007 depicting him as a member of the Nayak community which falls in the Schedule Tribes category. The Presidential notification issued in exercise of powers vested under Article 342(2) of the Constitution of India on 08.01.2003 contains the following recitals. The relevant part of the notification is extracted hereunder:

An Act to provide for the inclusion in the lists of Scheduled Tribes, of certain tribes or tribal communities or parts of or groups within tribes or tribal communities, equivalent names or synonyms of such tribes or communities, removal of area restrictions and bifurcation and clubbing of entries; imposition of area restriction in respect of certain castes in the lists of Scheduled Castes, and the exclusion of certain castes and tribes from the lists of Scheduled Castes and Scheduled Tribes, in relation to the States of Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Goa, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, KeraIa, Madhya Pradesh, Maharashtra, Manipur, Mizoram, Orissa, Sikkim, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal:

Be it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:-

1. This Act may be called the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002. The relevant part of the Second Schedule of the said enactment is hereunder:

"(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after entry 5, insert-

"6. Gond, Dhuria, Nayak, Ojha, Pathari, Raj Gond (in the districts of Mahrajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Gazipur, Varanasi, Mirzapur and Sonebhadra).

7. Kharwar, Khairwar (in the districts of Deoria, Ballia, Ghazipur, Varanasi and Sonebhadra)."

The aforesaid Scheduled Tribes certificate issued to the petitioner was cancelled by the order dated 28.07.2014 passed by the District Level Caste Scrutiny Committee.

The aforesaid Scheduled Tribes certificate issued to the petitioner was cancelled by the order dated 28.07.2014 passed by the District Level Caste Scrutiny Committee.

The petitioner is aggrieved by the observations made in the body of the order dated 21.09.2019, which states that Nayaks are synonyms of Gond community and are entitled to grant of Scheduled Tribes certificate after the requisite investigations.

Prima facie, the order passed by the Divisional Level Caste Scrutiny Committee/appellate forum is in the teeth of the Presidential notification dated 08.01.2003. The Divisional Level Caste Scrutiny Committee/appellate forum does not have any authority in law to add or subtract anything from the notification which clearly stipulates that the Nayak community in District-Gorakhpur (among other districts) falls in the Scheduled Tribes category.

In any case the consequence of quashment of the order of cancellation of the Scheduled Tribes certificate leads to the revival of the earlier Scheduled Tribes certificate issued to the petitioner.

Sri K.M.Mishra, learned counsel for the petitioner has also pointed out that in various writ petition the interim orders have been passed by this Court namely, in Writ-A No.19997 of 2019 (Kritika Nayak Vs. State of U.P. and another) rendered on 11.02.2020 as well as the order passed by the learned Division Bench in Writ-A No.61611 of 2015 (Prashant Kumar Nayak Vs. State of U.P. and others) along with companion writ petitions dated 08.03.2017.

Some of the other writ petitions were granted interim orders which are detailed below:

"Dozens of orders have been placed before us passed by different Division Benches and learned Single Judge of this Court, whereby directions have been issued for provisional appointment letter being given to the selected candidates on different posts. List of such petitions is detailed below:

1. Writ - A No. - 63383 of 2015 (Atul Kumar Nayak Vs. State of U.P. and 2 others).

2. Writ - A No. - 27078 of 2016 (Ajay Kumar Nayak Vs. State of U.P. and 3 others).

3. Writ - A No. - 11979 of 2015 (Km. Nilam Nayak Vs. State of U.P. and 6 others).

4. Writ - A No. - 3032 of 2015 (Dhananjay Nayak Vs. State of U.P. and 2 others).

5. Writ - A No. - 4232 of 2015 (Anand Kumar Nayak Vs. State of U.P. and 3 others).

6. Writ - A No. - 6565 of 2016 (Anup Kumar Nayak Vs. State of U.P. and 2 others).

7. Writ - A No. - 17516 of 2016 (Atul Kumar Nayak and another Vs. State of U.P. and 3 others).

8. Service Single No. - 03 of 2016 (Anoop Nayak and 4 others Vs. State of U.P. and another).

9. Writ - A No. - 58844 of 2015 (Sandeep Kumar Nayak & 2 others Vs. State of U.P. & 2 others).

10. Writ - A No. - 31543 of 2015 (Suyanka Nayak Vs. State of U.P. and 3 others)."

On the foot of the aforesaid reasoning and also in view of the fact that this Court has consistently passed the interim orders in similar cases, the petitioner is also entitled an interim order

An interim mandamus is issued commanding the respondent No.2-Secretary, Uttar Pradesh Public Service Commission, Prayagraj as well as respondent No.1-Principal Secretary, Kaarmik, Government of U.P. at Lucknow to execute the following directions:

1. The appointment of the petitioner shall be processed in accordance with law treating the Scheduled Tribes certificate issued to the petitioner by the competent authority on 15.12.2007.

2. The said respondents are directed to issue a provisional letter to the petitioner for the post to which he has been selected. The appointment of the petitioner shall be subject to the final outcome of the dispute in regard to the caste certificate.

Learned Standing Counsel for the State respondents prays for and is granted four weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.

List thereafter.

Till further orders of the Court, the order 21.09.2019 passed by the Divisional Level Caste Scrutiny Committee /appellate forum in so far as it remands the matter to the District Level Scrutiny Committee shall remain stayed and finds that the Nayak community is liable to be treated as a Scheduled Tribes community as a "synonym" of Gond community."

In view of the above, following the same set of reasoning, in the present petition also an interim mandamus is issued commanding the respondent No. 2 - Secretary, Basic Education Parishad, Prayagraj as well as respondent No. 3- Director General, Basic Education Parishad, U.P. Lucknow to execute the following directions:

1. The appointment of the petitioners shall be processed in accordance with law treating the Scheduled Tribes certificate issued to the petitioners by the competent authority on 02.11.2007, 29.10.2007 and 22.01.2008.

2. The said respondents are directed to issue a provisional letter to the petitioners for the post to which they have been selected. The appointment of the petitioners shall be subject to the final outcome of the dispute with regard to the caste certificate.

Meanwhile, the parties may exchange their affidavits.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. ”

9. Sri H.R. Mishra, learned Senior Counsel for petitioners submitted that since main controversy is still pending in another matter and there are interim orders in favour of present petitioners, therefore, the same may be complied with. He also submitted that in similar circumstances, appointments were granted to similarly situated candidates on basis of interim orders in different departments. He further submitted that interim order dated 05.08.2021 may be made absolute, subject to any adverse order passed in other litigation(where dispute is arising out of common order passed by Divisional Level Caste Scrutiny Committee).

10. Sri K.Shahi, learned counsel for respondent-Basic Shiksha Adhikari has opposed the above submission and submitted that before interim order dated 05.08.2021 was passed, the District Selection Committee has already passed an order dated 17.05.2021, whereby respective appointments of petitioners were cancelled, since they failed to submit their respective recent Caste Certificates. The said order is part of counter affidavit as CA-2 and relevant part thereof is mentioned hereinafter :-

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11. It is also submitted by learned counsel for respondents that aforesaid order has not been challenged by petitioners till date, even the counter affidavit was filed way back on 22.11.2021.

12. In rejoinder, learned Senior Counsel for petitioners submitted that there is no need to challenge the aforesaid referred order dated 17.05.2021 as petitioners’ case has to be decided in terms of interim order passed by this Court and this order could be challenged on oral submission also. On instructions, learned Senior Counsel for petitioners has also submitted that petitioners have recent Caste Certificates also and he reiterated that petitioners be appointed in terms of interim order dated 05.08.2021 subject to outcome of order to be passed in other litigation.

13. Heard counsel for parties and perused the record.

14. In the aforesaid circumstances, dispute in regard to certificate of Nayak Caste/Community is presently seized with this Court in another bunch of writ petitions. It is not on record that whether petitioners before this Court have individually or collectively are party, either as a petitioner/ intervenor etc in the said proceedings where substantial order passed by Divisional Level Caste Scrutiny Committee is under challenge i.e. Aush J. Nayak(supra) and connected writ petitions.

15. It is also not under dispute that before this Court passed an interim order on 05.08.2021, the petitioners’ candidature were cancelled by District Selection Committee vide order dated 17.05.2021. The said order has not been challenged though it was brought on record by respondent way back in the year 2021 by way of filing a counter affidavit.

16. The argument of learned Senior Counsel that there is no need to challenge the above referred order dated 17.05.2021 has no legal basis. This is a relevant adverse order against the petitioners and for that in order to get any relief from this Court they are required to take a legal recourse available to them i.e. to challenge it and this Court cannot made the interim order dated 05.08.2021 absolute, ignoring that even before it, candidature of petitioners was cancelled by order dated 17.05.2021.

17. I have carefully perused the order of cancellation which is placed on record by way of counter affidavit. It appears that petitioners’ stand was not considered or they have not submitted any reply since reason assigned in impugned order was that the petitioners failed to submit their recent Caste Certificate.

18. During the argument, learned Senior Counsel for petitioners has submitted that petitioners have recent Caste Certificate also, therefore, considering overall circumstances of case and that larger controversy in regard to Caste Certificate issue to Nayak Caste/Community is pending before this Court in another litigation, an opportunity could be granted to petitioners to present their claim/stand before the District Selection Committee.

19. In the aforesaid circumstances, these writ petitions are disposed of with following orders :-

(i) The order dated 17.05.2021 passed by the District Selection Committee shall remain in abeyance for a period of six weeks from today.

(ii) During the aforesaid period, petitioners are permitted to place their stand along with recent Caste Certificates as well as status of litigation pending before this Court in regard to Nayak Caste/Community i.e. whether they are party to it or not, preferably within three weeks from today.

(iii) The District Selection Committee will pass a reasoned order preferably within a period of three weeks thereafter.

(iv) In the aforesaid circumstances, since matter has been relegated to District Selection Committee, therefore, interim order has lost its relevancy and accordingly it is vacated.

20. The writ petitions are finally disposed of.