HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Civil Misc. Writ Petition No. 2494 of 2009 Rajesh Kumar Gond ------- Petitioner Versus State of U.P. & Ors. ------- Respondents Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
(Delivered by Hon'ble Krishna Muari, J.) Heard Shri L.P. Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner was issued a caste certificate of 'Gond' by respondent no. 3, Tehsildar, Sadar, Ghazipur duly countersigned by respondent no. 2, District Magistrate, Ghazipur on 18.10.2003. The said 'Gond' caste has been declared as Scheduled Tribes by the State of U.P. by Government Order dated 03.07.2003 amending the list of Scheduled Caste and Scheduled Tribes contained in Government Order dated 10.07.1986 in compliance of the Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 2002.
On the strength of the caste certificate issued to the petitioner, he was appointed as Chowkidar on 12.07.2006 and posted in the office of Chief Commissioner of Income Tax, XVII, Laxmi Nagar, New Delhi. Respondent no. 4, Income Tax Officer, Head Quarters, Personnel, Office of Chief Commissioner of Income Tax sent the caste certificate of the petitioner for verification to respondent no. 3, Tehsildar, Sadar, Ghazipur. Respondent no. 3 is alleged to have conducted some ex parte inquiry behind the back of the petitioner without any notice or knowledge to him, on the basis of whereof, he informed respondent no. 4 that petitioner has been found to be a member of 'Bhadbhujiya' caste, which is a backward caste and the caste certificate issued to him has been cancelled. On receipt of the said information from respondent no. 3, respondent no. 4 issued a show cause notice dated 25.06.2008 and served upon the petitioner a copy of the order dated 14.03.2008 cancelling the caste certificate issued to the petitioner.
Thereafter, the petitioner sought information under Right to Information Act and approached this Court by filing Civil Misc. Writ Petition No. 35298 of 2008, Rajesh Kumar Gond Vs. State of U.P. & Ors., which was disposed of vide judgment and order dated 25.07.2008 giving liberty to the petitioner to file representation before respondent no. 3 with the direction to him to decide the same, if possible within three months and till disposal of the representation, the order dated 14.03.2008 passed by respondent no. 3 was kept in abeyance. In compliance of the said order, petitioner submitted a representation dated 21.08.2008. Vide order dated 05.11.2008, respondent no. 3 rejected the representation of the petitioner without any opportunity of hearing to him.
Learned counsel for the petitioner contends that Tehsildar has no jurisdiction to pass the impugned order. He further submits that it is only a Caste Scrutiny Committee constituted by the State Government, which could have verified the caste certificate issued to the petitioner.
The Hon'ble Apex Court while considering the issue of caste certificate and its verification, has issued general directions in the case of Kumari Madhuri Patil & Anr. Vs. Additional Commissioner, Tribal Development & Ors., 1994 (6) SCC 241. The Apex Court in the said judgment has issued general directions for issuance of caste certificate, its scrutiny and approval. The State Government taking into consideration the general direction issued by the Hon'ble Apex Court in Kumari Madhuri Patil's case (supra), has issued a detail Government Order dated 5th January, 1991 providing for jurisdiction for issuance of caste certificate and procedure for verification of caste. By the said Government Order, a Scrutiny Committee headed by Principal Secretary, Social Welfare Department was constituted to verify the caste certificate.
A Division Bench of this Court, while considering a challenge to an order of District Magistrate rejecting the claim of issuance of caste certificate, issued certain directions in Writ Petition No. 1611 (MB) of 2008 Taramuni Tharu Vs. State of U.P. & Ors. Following observations were made by the Division Bench of this Court:-
"Considering the submissions made during the course of arguments and looking to the fact that this Court is flooded with the cases, where the caste certificates issued by the District Magistrate are in question, we find that there is no appropriate forum, where such a grievance can be raised by the persons who approach this Court under Article 226 of the Constitution.
Writ jurisdiction does not allow us to enter into the disputed questions of fact or to reassess or re-appreciate the findings recorded by the District Magistrate, unless, of course, it is established that the finding is perverse or absolutely arbitrary.
We also take notice of the fact that in the matters like the present one, suit for declaration would also not be maintainable, in view of the ratio of the judgment in the case of Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241.
In the similar circumstances, this Court had earlier in some cases, required the Chief Standing Counsel, to take instructions as to why an appellate forum be not provided but for one reason or the other, the instructions could not be made available.
We, under the circumstances, provide that the State Government may consider this question and it does not appear to be very difficult to provide a forum for the purpose, may be the Commissioner of the Division itself.
Let this order be communicated to the Chief Secretary, Government of U.P. for taking appropriate action for providing appellate forum for the purpose of deciding the disputes regarding issuance of caste certificates, against the orders passed by the concerned issuing authority."
In pursuance of the aforesaid observations of the Division Bench, the State government issued a government order dated 27th January, 2011 providing for appellate forum headed by Divisional Commissioner to scrutinize the caste certificates and to provide a forum to aggrieved persons from the decision of Collector, Sub-Divisional Officer/Tehsildar regarding caste certificate to file an appeal within 90 days.
Another Division Bench while hearing the Public Interest Litigation (PIL) No. 1396 of 2011 Tharu Shakti Samiti & Anr. Vs. State of U.P. & Ors., again issued directions on 12th January, 2011. The Division Bench of this Court has made the following directions.
"In the State of U.P., it appears that there is only one Committee to consider the caste certificates. There appears to be no mechanism by which caste certificate issued by the Tehsildar/Deputy Collector/ District Magistrate is to be verified. The reserved post or admission in professional colleges are only meant for those who are entitled to. Utmost care should be taken to see that a person who claims admission/appointment is a genuine person and not a person who has got admission/appointment on a certificate which may be false or fabricated. It is impossible to accept that in the State of U.P. that one committee will do the entire exercise.
Considering the above, the respondents to produce the following materials before this Court :
Firstly, as to whether the Committees had been constituted in terms of the Government Order dated 5.1.1996 for SC/ST/OBC and the Constitution of the Members, including the nominated members.
Secondly, whether the Vigilance Cell has been attached to the Committee, the strength of the Vigilance Cell and the persons selected for the Vigilance Cell.
Thirdly, since the inception, the number of caste certificates which have been scrutinized by the Scrutiny Committee.
Apart from that, the State Government also to place before this Court, considering the population of SCs, STs and OBCs in the State of U.P., the need to have such Scrutiny Committees at District Level so that all caste certificates issued in respect of which admissions have been obtained against reserved category posts/seats that these persons who occupy are genuine persons."
The State Government has again issued a Government Order dated 28th February, 2011 by which, for scrutiny of caste certificate, a Committee of District Level has been constituted under the Chairmanship of the Collector.
Another, Division Bench decision of this Court which is to be noted is the case of Hizwana Bano Vs. State of U.P. & Ors. reported in 2011 (1) ADJ 440, where the Division Bench considered in detail the entire mechanism regarding verification of caste certificate.
In paragraph no. 8 of the said judgment, it has been observed that the authority issuing the caste certificate, may not assume jurisdiction to cancel the caste certificate except in the cases of fraud on the face of the record. Following observations was made in paragraph nos. 8, 9 and 11.
"In Kumari Madhuri Patil (supra), the relevant directions of the Supreme Court are contained in direction nos. 4 to 9. In other words, the caste certificate issued in terms of direction no. (1) to be valid, can only be verified by the Committee and not by the Revenue Officers, like Sub-Divisional Officers, Deputy Collector or Deputy Commissioner, in the present case, the respondent no. 2.
The respondent no. 2, for the purpose of granting a caste certificate, has to consider what has been set out in para 3 of the Government Order, which is in consonance with the direction no. 2 of the directions issued by the Supreme Court in Kumari Madhuri Patil (supra). It is only in the event, the respondent no. 2 is satisfied, based on the material produced before him that the applicant belongs to the caste / tribe, then only the certificate would be verified. Once that be the procedure, it is not open to the respondent no. 2 to assume jurisdiction to cancel the caste certificate except may be in a case of fraud on the face of the record, as fraud vitiates all actions. Respondent no. 2, therefore, ordinarily would have no jurisdiction to reconsider the issuance of the caste certificate and pass orders cancelling the certificate or otherwise.
When a complainant contends that a caste certificate was wrongly issued or obtained by suppressing facts or the like, then in that event, it would be open to the complainant, even if the complainant is a stranger as long as his rights are affected, to move the Caste Scrutiny Committee, to verify the caste certificate by setting out the reasons and objections as to why the caste certificate should not be verified. Para 3 of the Government Order would show that verification is not only with regard to admission in any educational institution or appointment in any service but also for other reasons. Therefore, whenever a person seeks to rely on a caste certificate for claiming any benefits, he would be entitled to, then in that event, if a complainant intervenes to oppose the verification of such caste certificate or independently applies before the Caste Scrutiny Committee, the procedure for verification shall be followed and necessary orders shall be passed by the Committee after following due procedure.
If the issue is now considered in the light of the above discussions, it would be clear that the respondent no. 2 would cease to have jurisdiction, once the caste certificate was issued. The Tehsildar in these circumstances would have no authority to recall or cancel the same, except may be in a case of fraud. Respondent no. 2, however, would have the power to correct clerical or artificial mistakes. The jurisdiction to verify the caste certificate and whether it should be validated or invalidated is of the Caste Scrutiny Committee."
In view of the foregoing discussions, it is clear that the jurisdiction to verify the caste certificate and whether it should be validated or unvalidated, has to be scrutinized by the Caste Scrutiny Committee. The authority issuing the caste certificate has no jurisdiction to cancel the same, except where it has been obtained by playing fraud or concealing the relevant facts.
In the present case, the Tehsildar has cancelled the caste certificate by impugned order dated 05.11.2008, though there is no finding recorded by him that the caste certificate had been obtained by the petitioner by playing fraud on the authority.
As a result, order dated 05.11.2008 passed by respondent no. 3, Tehsildar, Sadar, Ghazipur is not liable to be sustained and is hereby set aside. The writ petition stands allowed.
It shall, however, be open to respondent no. 4 to get the caste certificate submitted by the petitioner verified from the District Level Committee, in accordance with the procedure prescribed.
However, in the facts and circumstances of the case, there shall be no order as to costs.
August 17th, 2015 VKS