Jai Prakash Chaurasiya vs State Of U.P. Thru. Prin. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - C No. - 8859 of 2022
 

 
Petitioner :- Jai Prakash Chaurasiya
 
Respondent :- State Of U.P. Thru. Prin. Secy.(Panchayat Raj), Lko. And Others
 
Counsel for Petitioner :- Chetan Kumar Tiwari,Pankaj Gupta
 
Counsel for Respondent :- C.S.C.,Ajay Kumar Ojha,Prabhat Kumar Ojha
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Pankaj Gupta, learned counsel for the petitioner, learned Standing counsel for respondent No.s 1 and 2 and Sri Prabhat Kumar Ojha for respondent No.3.

2. In light of the proposed order notice to respondent No.s 4 to 11 is dispensed with.

3. By means of the present writ petition the petitioner has challenged the order dated 10.11.2022 passed by Sub Divisional Magistrate, Raniganj, Pratapgarh thereby rejecting the election petition preferred by the petitioner assailing the election of respondent No.3 to the post of Gram Pradhan.

4. The said election petition was filed under Section 12-C of the U.P. Panchayat Raj Act, 1947. Learned counsel for the petitioner has submitted that the said election petition was preferred on the ground that the post of Gram Panchayat Sandaura, Block Shivgarh, Pargana Patti, Tehsil-Raniganj, District Pratapgarh was reserved for Other Backward Class category and the petitioner also belongs to the said community while the election was contested by respondent No.3 and after the elections respondent No.3 was returned as a winning candidate. It is the case of the petitioner that respondent No.3 does not belong to other backward class category and yet contested the election on fake caste certificate. The Sub Divisional Magistrate while deciding the election petition has also recorded the fact that no other point was urged by the petitioner in his challenge to the election of respondent No.3 except on the ground that the returned candidate does not belong to other backward class category. It was also stated that with regard to the caste certificate filed by respondent No.3 the District Level Scrutiny Committee vide its order dated 28.3.2022 had cancelled the said certificate in pursuance to the directions issued by High Court in writ C No.2768 of 2022 vide order dated 22.4.2022. Against the order of cancellation of the caste certificate respondent No.3 has preferred an appeal before the Commissioner, Prayagraj Division, Prayagraj on 27.4.2022 which is still pending. The Sub Divisional Magistrate, Raniganj, considered the fact that the appeal of respondent No.3 challenging the cancellation of his caste certificate is pending before the appellate authority has deferred the proceedings till such time the said matter attains finality by the appellate authority.

5. The petitioner has assailed the said order on the ground firstly that once the Caste Scrutiny Committee has come to the conclusion that the caste certificate issued to respondent No.3 was fake the election of the respondent No.3 should be declared as null and void and the election petition preferred by the petitioner should have been allowed.

6. Learned counsel for respondent No.3 as well as learned Standing counsel have opposed the writ petition. They have submitted that the the law with regard to the manner in which the validity of the caste certificate can be adjudicated has been dealt with by Supreme Court in the case of Kumari Madhuri Patil and another Vs. Additional Commissioner (1994) 6 SCC 241. It is stated that according to the judgment of Supreme Court validity of caste certificate can be looked into only by Caste Scrutiny Committee constituted by the State Government in this regard. The relevant findings of Supreme Court are as under:-

"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.

4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.

10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

12. No suit or other proceedings before any other authority should lie.

13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.

14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.

14. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons."

7. From the aforesaid judgment of the Supreme Court in the case of Kumari Madhuri Patil (supra) it is clear that the object behind the directions and procedure laid down therein is to protect the constitutional rights of the reserved category candidates in the context of admissions to educational institutions and appointment to posts/service in a way that genuine candidates belonging to the reserved category are not denied the benefits of reservation and ineligible or spurious persons do not usurp the benefits of made fro the reserved category fraudulently and illegally. One of the objectives sought to be achieved is as observed by the Supreme Court-"The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create in completion of the inquiries by the Scrutiny Committee".

8. It is keeping this in mind that the directions have been issued by the Supreme Court and as per Direction No.3 after obtaining Social Status Certificate (Caste Certificate), the applicant who had applied for grant of caste-certificate is required to apply for verification of the caste certificate by the Scrutiny Committee six months in advance. The object is obviously that during this six months' period after caste certificate has been obtained by the applicant, he gets the same verified by a Scrutiny Committee so that whatever disputes arise in this regard are settled within six months prior to the date of actual admission or appointment, as the case may be, so as to avoid a scenarios where illegal appointments or admissions are gained by the candidates belonging to Unreserved or General category and thereafter the proceedings are prolonged and benefits are reaped by them thereby compromising the constitutional objectives.

9. The Supreme Court has also dealt with in paras 11 and 12 of the said judgment that the orders passed by Scrutiny Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution and that no suit or other proceedings before any other authority should lie.

10. Though in the case of Kumari Madhuri Patil (supra) was confined only for admissions but the same law has been held to be good in election matters. The State Government has issued Government Orders dated 5.1.1996 and 27.1.2011 where the District Level Committee and Divisional Level Committees have been constituted to look into validity of the caste-certificates of the candidates.

11. In light of the judgment of Supreme Court this Court is of the considered view that adjudication with regard to the case of the returned candidate should have been looked into only by the Scrutiny Committee constituted by the State Government. It is also admitted by the parties that the appeal has been preferred against cancellation of the caste-certificate of respondent No.3 which is pending before the Commissioner and the hearing of the appeal has been deferred till such time as the appellate proceeding are finalized

12. This Court is of the considered view that law in this regard has been correctly interpreted and applied by the Sub Divisional Magistrate, Raniganj and there is no infirmity in the same and the writ petition is liable to be dismissed.

13. Learned counsel for the petitioner has submitted that the appeal which was filed on 7.4.2022 and more than seven months have lapsed but the matter has not attained finality due to which the election petition is still pending. He further submits that according to the aforesaid government order of 2011 the appeal has to be decided within a maximum period of one month.

14. Learned counsel for the respondents also do not contest in case any direction is issued by this Court to the appellate authority to consider and decide the appeal expeditiously.

15. In light of the above, let the appellate authority decide the appeal preferred by respondent No.3 expeditiously, say within two months from the date a certified copy of this order is produced before him.

16. Subject to aforesaid observations the petition is dismissed.

Order Date :- 18.1.2023 (Alok Mathur, J.)

RKM.