Smt. Asiya vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 5609 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 5
 

 
Case :- WRIT - C No. - 3858 of 2022
 

 
Petitioner :- Smt. Asiya
 
Respondent :- State Of U.P. Thru. Prin. Secy. (Social Welfare Deptt.) U.P. Lko. And Others
 
Counsel for Petitioner :- Ashish Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Dr. Arjun Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Om Prakash Tripathi,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

2. Sri Dr. Arjun Singh, learned counsel appearing for the opposite party no. 6, has raised a preliminary objection regarding maintainability of the writ petition and submitted that the order impugned is an interlocutory order and the petition is not maintainable against such order. The petitioner should wait for final order to be passed whereafter a statutory remedy of filing appeal will be available before Divisional Level Committee.

3. This writ petition has been filed challenging the order dated 08.06.2022 passed by the respondent no.2 District Level Caste Scrutiny Committee.

4. Learned counsel for the petitioner submits that in terms of a judgment rendered by the Supreme Court in the case of Kumari Madhuri Patil and Another vs. Additional Commissioner, Tribal Development and Others, AIR 1995 SC 94, where the Court has held that for examination of whether a candidate belongs a particular reserved category, the matter should be referred to the Vigilance Cell for conducting the inquiry for which it directed that each Directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police and such number of Police Inspectors to investigate into the claims for reservation, no enquiry by Vigilance Cell has been done.

5. The petitioner had filed an objection to complaint made against her. The District Level Scrutiny Committee should have referred the matter of the petitioner for investigation to Vigilance Cell. The petitioner's objection has been rejected by means of impugned order passed by District Level Scrutiny Committee saying that the directions issued by the Supreme Court in the case of Kumari Madhuri Patil (Supra) have been incorporated in the Government Orders dated 02.07.1994 and 05.01.1996. There being no direction in the two Government Orders for referring the matter for investigation to the Vigilance Cell, the petitioner's objection is misconceived.

6. Learned counsel for the petitioner submitted that in similar case, a coordinate Division Bench of this Court has entertained a petition, namely, Writ-C No.3338 of 2022 (Mohd. Israr Khan vs. State of U.P. and others). The Court has found that the order impugned passed by the District Level Scrutiny Committee was in violation of judgment of Supreme Court in the case of Kumari Madhuri Patil (Supra) and therefore, the Court has entertained the petition and directed the Standing Counsel to seek instructions and stayed the order impugned till the next date of listing.

7. This Court has perused the interim orders dated 06.06.2022, 21.06.2022 and 26.06.2022 passed in said petition. It is apparent that initially this Court had granted time to Standing Counsel to seek instructions as to why the directions issued by the Supreme Court in the case of Kumari Madhuri Patil (Supra) were not followed in such matters. When no instructions were forthcoming, the District Level Committee was restrained from passing a final order till the next listing of the petition.

8. Sri Manish Mishra, learned counsel appearing for the State-respondents has relied upon a Division Bench judgment in the case of Nasrin Bano vs. State of U.P. and others, M.B. No.36397 of 2018, wherein the order of District Level Scrutiny Committee was challenged by the petitioners and mandamus was sought to the State-respondents to enquire the dispute regarding Caste Certificate through Vigilance Cell as per Government Order dated 05.01.1996 in which guidelines had been framed in the light of a judgment of the Supreme Court in Kumari Madhuri Patil (Supra). The Division Bench considered the arguments made by the learned counsel for the petitioners in Nasrin Bano (Supra) that Scrutiny Committee should have referred the matter to the Vigilance Cell and should not have conducted inquiry through Revenue Officials. The Division Bench in the case of Nasrin Baso (Supra) thereafter has considered in detail judgments rendered by two Division Benches of this Court in Taramuni Tharu vs. State of U.P. and others, Writ Petition No.1611 (MB) of 2008, decided on 23.09.2010 and  PIL No.1396 of 2011, Tharu Shakti Samiti and another vs. State of U.P. and others, decided on 12.01.2011, wherein this Court had observed that State Government had constituted only one Scrutiny Committee and there was no appellate authority over such Scrutiny Committee for verification of Caste Certificate. Therefore, the Divisional Level Committee has been constituted by the Government Order dated 27.01.2011.

9. The Division Bench in Nasrin Bano (Supra) observed that after judgment rendered in Tharu Shakti Samiti (Supra), the State Government had issued another Government Order dated 28.02.2011 where scrutiny of Caste Certificate was to be done by the Committee of District Level and then Appeal was provided to the Divisional and State Level Committees. The Division Bench in Nasrin Bano (Supra) also considered the observations made by the Division Bench in the case of Hizwana Bano vs. State of U.P. and others, reported in 2011 (1) ADJ 441 and came to the conclusion that the Government Orders issued by the State Government on 05.01.1996, 27.01.2011 and 28.02.2011 had taken into account the observations made by the Supreme Court in the case of Kumari Madhuri Patil (Supra) and also by the Division Benches of this Court in Taramuni Tharu (Supra) and Tharu Shakti Samiti (Supra) and constituted a valid mechanism for investigation of Caste Certificates issued by the Revenue Officials. It had dismissed the writ petition of Nasrin Bano on 17.12.2018 finding that the relevant Government Orders had sufficiently complied with the observations made by the Supreme Court in Kumari Madhuri Patil (Supra) and by the judgments of earlier Division Benches of this Court.

10. In view of the submission made by Sri Manish Mishra, learned Standing Counsel, this Court finds that there is no good ground to give parity to the petitioner of the case of Mohd. Israr Khan and to give benefit of interim order granted by the Division Bench, which was passed only because the Standing Counsel could not produce relevant instructions, although, time had already been granted to him to do so.

11. Learned counsel for the petitioner in rejoinder has pointed out a Division Bench judgment of this Court in the case of Mairaj Ahmed vs. State of U.P. and others, Writ-C No. 160 of 2019. It has been submitted that the said writ petition was allowed by the Court and the impugned order had been set-aside giving a direction to the District Level Scrutiny Committee to adopt the procedure as given in the case of Kumari Madhuri Patil (Supra) to decide the validity of the Caste Certificate of the petitioner therein in accordance with the observations made by the Supreme Court in the case of Kumari Madhuri Patil (Supra).

12. This Court has carefully perused the Division Bench judgment dated 16.01.2019 and finds that the order challenged in the said writ petition was an appellate order passed by the Divisional Level Scrutiny Committee. The Court had considered the observations made by the Supreme Court in the case of Kumari Madhuri Patil (Supra) and the arguments raised by the learned counsel for the petitioner that guidelines framed therein were not followed. It had also referred to the facts of the writ petition wherein the petitioner being "Thathera" (Tinker of vessels) had alleged to be a Backward Caste at Serial No.59 of Schedule-1 of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994. However, after such certificate was issued to him and he contested the Election for the post of President of Nagar Panchayat, Sahanpur allegation of fraud was made by the private respondents saying that the petitioner was "Sheikh" and not a member of Backward Class of "Thathera".

13. The Division Bench referred a judgment rendered in Rasheed Ahmad vs. State of Uttar Pradesh and others reported in 2009 (7) AJD 385, where considering a similar case the Division Bench had observed that only because the name is prefixed by the word "Sheikh", the class of a person cannot be determined. The question as to whether a person belongs to upper caste or not is required to be decided on the basis of other relevant evidence.

14. It is apparent from the perusal of the judgment rendered in the case of Mairaj Ahmed (Supra) that Division Bench had not noticed the earlier Division Bench judgments rendered in the case of Nasrin Bano (Supra). Without noticing binding precedents of this Court or relevant Government Orders, the Division Bench had passed the order dated 16.01.2019 placing reliance only upon the question of fact relating to the ancestors of the petitioner prefixing their names with the word "Sheikh", cannot be said to be upper caste as per judgment rendered in the case of Rasheed Ahmad (Supra).

15. The judgment in the case of Mairaj Ahmed (Supra) cannot said to be rendered after considering all the relevant Government Orders and the Scheme framed therein in compliance of the judgment rendered by the Supreme Court in the case of Kumari Madhuri Patil (Supra) and the Division Bench judgments of this Court in the cases of Taramuni Tharu (Supra) and Tharu Shakti Samiti (Supra).

16. This writ petition is disposed of with a direction to the petitioner to approach the District Level Scrutiny Committee and place all the relevant facts with regard to the validity of the Caste Certificate claimed by the petitioner.

17. Since this Court is sitting in Division Bench and has considered the judgments rendered by earlier coordinate Benches and finds that there is a difference in approach of the two Division Benches in the cases of Nasrin Bano (Supra) and Mairaj Ahmed (Supra). The matter is referred to the Hon'ble Chief Justice to constitute a Larger Bench for considering the following questions:

(i) "Whether the Government Orders dated 05.01.1996, 27.01.2011 and 28.02.2011 have been issued in exercise of executive jurisdiction by the State Government after considering the directions issued by the Supreme Court in the case of Kumari Madhuri Patil (Supra)?"

(ii) "Whether the judgment rendered in the case of Mairaj Ahmed (Supra) can be considered to have laid down a valid proposition of law that the District Level Scrutiny Committee should not have ignored the observations made by the Supreme Court in the case of Kumari Madhuri Patil (Supra) for verification of Caste Certificate by a Vigilance Cell moved by Police Officers ?".

Order Date :- 30.6.2022

Monika