Harish Kumar vs State Of U.P. And 3 Others
2023 Latest Caselaw 22676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:168372-DB
 
Court No. - 40
 

 
Case :- WRIT - C No. - 28127 of 2023
 
Petitioner :- Harish Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shri Krishna Mishra,Ajay Mishra
 
Counsel for Respondent :- C.S.C.,A.S.G.I.
 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Surendra Singh-I,J.

1. Heard learned counsel for the petitioner; Sri F.A. Ansari, learned Standing Counsel for State respondent nos.1 to 3 and Sri Prem Shanker Prasad, learned counsel for Union of India (respondent no.1).

2. By means of present writ petition, the petitioner has sought following reliefs:-

"I. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.05.2023 passed by the respondent No.2 (Annexure No.13 to the writ petition).

II. Issue a writ, order or direction in the nature of mandamus directing the respondent No.3 to issue the certified copy of the caste certificate in English version which was issued on 03.08.2017 in favour of the petitioner within stipulated period.

III. Issue any other writ, order or direction in the nature of writs as this Hon'ble Court may deem fit and proper to meet ends of justice.

IV. Award the cost of this writ petition to the petitioner."

3. Learned counsel for the petitioner submits that the petitioner is resident of Village Meerpur Kalan, Post Office Mahmoodpur, Tehsil Sadar, District Hapur. His caste is 'Kori' and thus, he is a member of Scheduled Caste. The petitioner applied for and was issued Scheduled Caste Certificate by the Competent Authority on 03.08.2017 mentioning his caste as 'Kori' (U.P., Scheduled Caste). The Staff Selection Commission (SSC) published a notice on 12.08.2022 inviting application for appointment on the post of Junior Engineer (Civil, Mechanical, Electrical and Quantity Surveying & Contracts) Examination, 2022. In pursuance of the said notice, the petitioner also applied for and was finally selected for the post of Junior Engineer (Civil) through SCC against Examination-2022 subject to fulfillment of physical efficiency test, medical examination and submission of documents. Thereafter, the respondent no.4 has issued a letter on 28.07.2023 directing the petitioner to submit the caste certificate and other documents on 23.08.2023. Meanwhile, one Mool chand Kori had moved an application on 02.05.2023 and on the basis of the report of the Tehsildar, the District Level Caste Scrutiny Committee vide impugned order dated 20.05.2023 has cancelled the caste certificates of 23 persons including the petitioner at serial no.16, without affording any opportunity of hearing to the petitioner.

4. Learned counsel for the petitioner further submits that the cousin brother of the petitioner, namely, Ravi Kumar was also issued a caste certificate of 'Kori' in Hindi by the Tehsildar, Hapur on 31.10.2012 after obtaining report from subordinate authorities, who stated his caste to be 'Kori' and the same has not been cancelled. The cousin brother of the petitioner has also been selected for Group 'D' post in the Railway department and the last date for submission of caste certificate (English version) was 28.04.2023. Therefore, he had applied before the respondent no.3 on 20.01.2023 for issuing caste certificate (English version). Once the respondent no.3 did not take any decision on his application dated 20.01.2023 then he had approached this Court by preferring Writ C No.13371 of 2023 (Ravi Kumar vs. State of UP and 2 others) and a coordinate Bench of this Court had proceeded to allow the said writ petition with following observations:-

"This writ petition has been filed praying for the following relief:

"1. Issue a writ, order or direction in the nature of mandamus directing the respondent No.3 to consider the application dated 20.01.2023 and issued the caste certificate in favour of the petitioner in English version within the period stipulated by this Hon'ble Court."

2. Briefly stated facts of the present case are that according to the petitioner his caste is 'Kori' and thus, he is a member of Scheduled Caste. As per family register of Village- Meerpur Kala, Tehsil- Hapur, District- Hapur, the caste of the petitioner is shown as 'Hindu Kori'. As per Student Transfer Certificate of Government Polytechnic, Moradabad issued by the Principal, the caste of the petitioner is 'Kori SC'. The Caste Certificate No.730341207077 dated 31.10.2012 was issued to the petitioner in Hindi mentioning his caste as 'Kori' (Scheduled Caste). In the letter written by the Central Admission Committee Joint Entrance Examination Council, U.P. dated 16.06.2015 addressed to the Principal, Government Polytechnic, Moradabad, the caste category of the petitioner is shown as 'Scheduled Caste'. The cousin brother of the petitioner, namely, Harish Kumar was also issued a caste certificate (English version) of 'Kori' by the Tehsildar, Hapur on 03.08.2017 after obtaining report from subordinate authorities, who stated his caste to be 'Kori'.

3. There is already a Caste Certificate (Hindi) No. 730341207077 dated 31.10.2012 issued by the competent authority to the petitioner mentioning the caste of the petitioner as 'Kori' (Scheduled Caste). This caste certificate has not been cancelled.

4. It appears that the petitioner has been selected for Group D post in the Railway Department and the last date for submission of caste certificate (English version) is 28.04.2023. Therefore, the petitioner applied before the respondent no.3 on 20.01.2023 requesting him to issue an English version of his caste certificate. In this application, the petitioner has simply requested for issuance of English version of his Scheduled Caste Certificate, but for the reasons best known to him the Lekhpal, namely, Arun Veer Singh submitted a report on 27.01.2023 mentioning that the petitioner has applied for verification of his caste of 'Hindu Julaha (Kori)'. Thereafter, the aforesaid Lekhpal has mentioned that 'Kori' certificate issued to 'Hindu Julaha' is illegal and, therefore, 'Hindu Julaha' cannot be issued caste certificate of 'Kori'. This report, without any application of mind was forwarded to the Tehsildar. The manner in which the Lekhpal submitted the report, in the same manner, the District Magistrate has filed a counter affidavit and baselessly mentioned in paragraph no.5 that admittedly the petitioner, Ravi Kumar belongs to 'Hindu Julaha (Koli)' caste of Village- Meerpur Kalan, Pargana, Tehsil and District- Hapur and petitioner's application dated 20.01.2023 for issuance of English version of the caste certificate was rejected by the Tehsildar on 25.02.2023 on the basis of the report of the Lekhpal dated 27.01.2023.

5. We specifically asked learned Additional Chief Standing Counsel to show the basis of the aforesaid averment of the District Magistrate, Hapur that the petitioner has admitted himself to be 'Hindu Julaha (Koli)' caste but the learned Additional Chief Standing Counsel completely failed to point out from any material on record that the petitioner admitted himself to be the 'Hindu Julaha (Koli)' caste. Learned Additional Chief Standing Counsel attempted to draw an inference that since in old family register, the petitioner's grandfather is mentioned as Hindu and no caste is mentioned and when a recommendation was made by the Gram Sabha on 19.10.1979 for grant of residential pattas of land to some of the Scheduled Caste families of the village, the name of the petitioner's ancestors does not find place in that list.

6. We find that the submission made by learned Additional Chief Standing Counsel, on the basis of the averment made in paragraph no.5 of the counter affidavit, is totally baseless. Merely because some people of Scheduled Caste category were granted pattas in the year 1979 and the name of the petitioner's ancestors were not mentioned therein that does not mean that the petitioner's ancestors or the petitioner does not belong to the caste 'Kori'. Similarly, not mentioning the word 'Kori' in the old family register also does not support the averment of paragraph no.5 of the counter affidavit.

7. Learned counsel for the petitioner has also produced before us several caste certificates of 'Kori' (Scheduled Caste) as well as copies of family register of several families related to the petitioner mentioning their caste as 'Kori'.

8. In view of the aforesaid, we are of the considered view that the respondents have harassed the petitioner by not issuing the English version of his caste certificate, which is a serious matter and, therefore, requires serious action for imposition of cost upon the respondents.

9. For all the reasons aforestated, we direct the respondent nos.2 and 3 to ensure that English version of the caste certificate of the petitioner mentioning the caste of the petitioner as 'Kori' (Scheduled Caste) is issued to the petitioner today by 3:00 P.M., failing which the respondent nos.2 and 3 both shall remain personally present tomorrow before this Court at 10 A.M. and shall show cause for non-compliance of the order. They shall also submit a report of compliance and action taken against the erring officers, through learned Additional Chief Standing Counsel by 3:30 P.M.

10. The writ petition is allowed with cost of Rs.5,000/-, which the respondents shall pay to the petitioner within a week from today by an account payee bank draft. Liberty is granted to the State Government to recovery the cost from the salary of the erring officers.

11. After this order was dictated in the open Court, learned Additional Chief Standing Counsel has stated that the respondent no.2 is a young officer and, therefore, this Court may take a lenient view against her, otherwise, it shall affect her career.

12. Considering the request of learned Additional Chief Standing Counsel and on his assurance that the respondent no.2 shall remain careful in future while filing counter affidavits or passing orders, we provide that any observation made in the body of this order shall not be treated as adverse to the deponent of the counter affidavit/respondent no.2."

5. Learned counsel for the petitioner in this backdrop states that so far as the aforesaid judgement passed in Ravi Kumar's case (supra) is concerned, the same has attained finality and at no point of time, it has been assailed by the State respondents before Hon'ble Apex court and eventually the same has been complied with but in most arbitrary manner without considering the factual aspect of the matter the claim of the petitioner has been denied. It is claimed that once the cousin brother of the petitioner namely Ravi Kumar has already been accorded relief by this Court then similar indulgence may also bee extended in favour of the petitioner. The impugned order has been passed in violation of principle of natural justice and the same is liable to be set aside.

6. Per contra, Sri F.A. Ansari, learned Standing Counsel has vehemently opposed the writ petition on the ground that against the order impugned the petitioner has got efficacious remedy to question the validity of the impugned order before the Divisional Level Caste Scrutiny Committee and thereafter the State Level Caste Scrutiny Committee. Once efficacious remedy is available then there is no reason or occasion to bypass the statutory remedy. Moreover, while passing the impugned order the claim of the petitioner has been considered by the respondents in detail and no interference is required in the matter.

7. Heard rival submissions and perused the record.

8. We have occasion to peruse the record in question and the judgement dated 27.4.2023 passed by the coordinate Bench of this Court in Writ C No.13371 of 2023 (Ravi Kumar vs. State of UP and others) wherein the Division Bench has considered the claim of the cousin brother of the petitioner namely Ravi Kumar and found that the caste certificate was issued in his favour on 31.10.2012 mentioning that his caste is 'Kori' (Scheduled Caste) and the same has not been cancelled. The Division Bench has held that merely because some people of Scheduled Caste category were granted pattas in the year 1979 and the name of the petitioner's ancestors were not mentioned therein that does not mean that the petitioner's ancestors or the petitioner does not belong to the caste 'Kori'. Finally, the aforesaid writ petition was allowed by judgement and order dated 27.4.2023 with cost of Rs.5000/-. The aforesaid judgement has not been challenged before Hon'ble Apex Court and the same has attained finality.

9. It is a common notion that Writs under Article 226 of the Constitution are not maintainable where an alternative statutory remedy is available. Hon'ble Apex Court has consistently held that the High Courts should exercise their discretionary jurisdiction inspite of availability of alternative remedy, where the authority has acted without jurisdiction or in violation of the principles of natural justice or where vires of the Act has been challenged or for enforcement of a fundamental right.

10. In the case of Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai and others [(1998) 8 SCC 1], Hon'ble Supreme Court in Para-15 of the judgment has held as follows :

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of, which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental Rights or where there was been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

11. Once it is brought into the notice that the Division Bench has already accorded reprieve in favour of Ravi Kumar, who is cousin brother of the petitioner then in such situation we are of the considered opinion that the writ petition may not be dismissed on account of alternative remedy and accordingly, the first objection raised by learned Standing Counsel is, accordingly, rejected.

12. So far as the principle of natural justice is concerned, a bare perusal of the impugned order reveals that the impugned order has been passed by the respondent no.2 without giving any kind of opportunity to the petitioner. A fact finding authority is under statutory obligation to consider with due care every fact for and against the petitioner and to record its finding in a manner, which would clearly indicate as to whether the facts on which the order was passed have been established. Absence of the findings to disclose reasons in an order in the manner indicated above would render the order to be indefensible/unsustainable. Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice. Thus, failure to give reasons amounts to denial of justice.

13. The principle of natural justice has twin ingredients; firstly, the person, who is likely to be adversely affected by the action of the authorities, should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders.

14. In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457, Hon'ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice."

15. In the facts and circumstances, the impugned order cannot sustain and the same is set aside. The matter is remitted back to the authority concerned to decide afresh in the light of the judgment passed in Ravi Kumar's case (supra) within a period of three weeks from the date of production of certified copy of this order.

16. The writ petition is partly allowed.

Order Date :- 22.8.2023

RKP