JOGENDRA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Sidharth Dhaon, learned counsel for the petitioner and the learned standing counsel for opposite parties no. 1 to 4. The petitioner, who was Pradhan of Gram Panchayat, Moorha Bujrug, Development Block Nighasan, District Kheri, has challenged the order of his removal passed by the District Magistrate, Kheri dated 9.3. 2009. This order is contained in annexure-1 to this writ petition. The petitioner was elected in the year 2005 on 17.11. 2005. The post of Pradhan of aforesaid village was of reserved category ( schedule caste ) and the petitioner was elected as belonging to the schedule caste. The State Govt. took cognizance of the fact that the petitioner belonged to Mallah caste, which comes in other backward castes category and hence, it was alleged that by misrepresentation of fact, the petitioner has usurped the post of Pradhan by getting elected to this post, which was reserved for the schedule caste category. The case of the petitioner is that a notification was issued by the State Government on 10.10. 2003, under which the caste of Mallah along with certain other castes were included in the list of schedule caste. The petitioner obtained the certificate of schedule caste by Tehsildar, which was issued on 8.11. 2005 and which has been annexed as annexure- 5 to this writ petition. The petitioner claims that he was eligible to contest the election on his caste certificate because in the application made to the Tehsildar, he has clearly shown that he has obtained the certificate for contesting the election, hence there was no concealment of fact either before the Tehsildar or before the Election Officer. The petitioner was duly elected as per rules relevant at the time of election. The State Government taking suo moto cognizance, conducted an enquiry alleging that due to misrepresentation of facts, the petitioner has usurped this post and he should be removed. The enquiry conducted by the District Magistrate is also under challenge by the petitioner on the ground of violation of U.P. Panchayat ( Removal of Pradhan, Up-pradhan and Members ) Enquiry Rules, 1997. Learned counsel for the petitioner submits that the order impugned is totally arbitrary, based on extraneous consideration and against all norms of principles of natural justice. Learned standing counsel has drawn the attention of this Court to the two orders dated 29.1. 2008 and 10.4. 2008 contained as annexure no. 12 and 13 to this writ petition. He has stated that the District Magistrate has taken cognizance only because of these Govt. orders. Be that as it may, the fact still remains that on the date of election, the petitioner was duly declared scheduled caste candidate and there was no law on that particular date to debar him from that benefit. In any view of the matter, the election of the Pradhan was valid and genuine as caste certificate was also in his favour. I find it expedient, in the interest of justice, that the order dated 9.3. 2009 is stayed. Learned standing counsel prays for and is granted four weeks time to file counter- affidavit. He may also produce the record if he so chooses on the next date of listing. Meanwhile, the operation and implementation of the order dated 9.3. 2009 as contained in annexure-1 to this writ petition, shall remain stayed. List this petition after four weeks.