Satnam vs State Of Uttarakhand And Others
2021 Latest Caselaw 3218 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (M/S) No. 2523 of 2020
Satnam                                               ...      Petitioner

                               Vs.
State of Uttarakhand and others                      ... Respondents

Advocates :    Mr. B.M. Pingal, Advocate, for the petitioner.
               Mrs. Mamta Bisht, Deputy Advocate General for the State of
               Uttarakhand.

Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

Brief facts, which engages consideration in the present writ petition are, that the petitioner has agitated his grievance being aggrieved as against the impugned order dated 17.12.2020, which was passed by respondent no.3, by virtue of which, his application for the grant of caste certificate has been rejected.

2. If the reason for rejection of the application of the petitioner are taken into consideration, primarily, the reason for denial to issue the caste certificate has been on a sole ground, that the petitioner has not placed any evidence on record to show that he was the resident of the State of Uttarakhand or within its territory prior to 1985. The other facts, which are apparent from the record of writ petition are that the petitioner has come up with the case, that the petitioner and his predecessors stood settled in the village called as Aloo Farm, Hempur Ismail, Kashipur, District Udham Singh Nagar, where they have got their

landed property and at the time of creation of the State of Uttarakhand, they were already the residents of the State, apart from the fact that the petitioner himself has taken birth on 08-01-1999, and accordingly based on the aforesaid facts he brought on record, the petitioner has contended that he would be entitled to be issued with the caste certificate.

3. The respondents after conducting an enquiry and based on the Government Order No. 2588 dated 20-11- 2001, had already issued a permanent resident certificate in favour of the petitioner. Apart from it, the petitioner has also submitted that he had done all his schooling from the Institutions, which are located within the territorial domain of the State of Uttarakhand. For example, Government Higher Secondary School, Jaitpur Ghosi, Kashipur, District Udham Singh Nagar, from where he studied in the said institution ever since 24.04.2004 to 31.03.2012 and as per the school records also, and the testimonials supplied by the school authorities, his caste has been recorded therein as to be 'Jatav'.

4. He submits that the caste, to which the petitioner belongs, is 'Hindu Jatav', which is included in the schedule, which has been issued by the State of Uttarakhand, and has been included in the list of the Scheduled Castes, which is being recognised by the State and the said caste is contained at item no. 24 of Part XXIV- Uttaranchal in the Amendments to the Constitution

(Scheduled Castes) Order, 1950. The respondents had rejected the application of the petitioner merely on the ground, that there was no evidence on record to substantiate as against of the petitioner that he had complied with the conditions given by the Government Order dated 02.04.2013, and that he was the resident of the State of Uttarakhand, prior to 1985, which was the cut-off- date as provided in the said Government Order dated 02.04.2013.

5. An identical issue had come up for consideration before the Coordinate Benches of this Court including this Court also, that in those eventualities where a person applying for the grant of a caste certificate has taken birth within the territorial domain of the State of Uttarakhand, as when it was created w.e.f. 09.11.2000 and particularly when the cast to which he belongs falls in the scheduled of recognized castes to whom, the caste certificate would be issued by the competent authority of the State. In that eventuality, as a consequence of the judgment rendered by this Court reported in 2002(2) UD 561, Neha Saini Vs. State of Uttarakhand and another, and particularly the reference may be had to para-6 of the said judgment that a recognition of the caste were always be dependent upon the place on permanent residence of the person consent. Para-6 of the said judgment is extracted hereunder:-

"6. What goes to the root of the present dispute is the concept of "domicile" and the misconception prevalent in the State and particularly with those, who are authorised to deal

with the issues related to domicile. Therefore, first and foremost this concept has to be defined and its legal position clearly stated. However, before we come to the core issue, which is domicile, it must be clearly understood first that the merely because the petitioner is married into a higher caste, she will not seize to be a member of an OBC. She has married into a "family", and not into a community, and therefore she will not loose her claim on reservations, which are available to a member of an OBC community. Learned counsel for the petitioner Sri Parikshit Saini has placed before this Court a ruling of the Apex Court in Valsamma Paul v. Cochin University and others, AIR 1996 SC 1011, where the Honble Apex Court has held that once a high caste woman marries a Scheduled Caste she will not be entitled for the benefits of "reservation" which exists for such a Scheduled Caste. As according to the Apex Court, the disadvantages of the Caste would mean being born into that caste and since the petitioner was not born into a Scheduled Caste she will not be entitled to the benefit of reservation.

This ratio was arrived at by the Apex Court after discussing the entire law on the subject its previous decisions. Now logically the converse must also be true! Meaning thereby that the benefits, which are legally admissible to a Schedule Caste or an Other Back Ward Class are not washed out merely because such an OBC or SC (or the case might be) has now married into a higher caste! Since the determining factor is the birth in a socially disadvantageous community, a person born into a socially disadvantageous community, such as the petitioner, must carry with her the benefit of reservation. It also goes without saying that this caste certificate can only be claimed by her in the State of Uttarakhand, where she originally resides and where her parents still reside and where the status of her caste is that of an OBC. The Caste Certificate has to be given by the authorities in the State where the person claiming such certificate is born. Reference was made here by the learned counsel for the petitioner of a Kerala High Court judgment

in N. Pushpa Devi v. The Kerala Public Service Commission and others reported in 1996 Lab IC 874."

6. In the instant case, the evidence which has been placed on record and the facts which has been pleaded which remained uncontroverted the petitioner apart from the fact that he was born in the State of Uttarakhand prior to its creation, he had all his schooling from the institution, which are situated in Uttarakhand, apart from the fact that the respondents after conducting an inquiry had issued a permanent resident certificate also in favour of the petitioner, hence in view of the said fact and also in view of one of the judgment rendered by the Coordinate Bench of this court in a judgment reported in 2012(2) UD 320, Ajay Kumar vs. State of Uttarakhand & another, where for the purposes of issuance of the caste certificate, the very impact of the permanent residence certificate, was taken into consideration. The Court has held that the availability of a benefit of the caste to a person belonging to those caste which are notified by the State as to be a reserved category, if he is issued with the permanent resident certificate, he would be entitled to be granted the caste certificate and as it has been laid down in para-75 of the said judgment which is extracted hereunder:-

"75. In the light of the aforesaid, the following salient points are to be read in the Government Orders issued by the State Government while issuing the caste certificates, namely:

(i) The words "resides", "residence", "ordinarily resides", "original resident" (mool niwasi) and "domicile" in relation to the issuance of a caste certificate means "permanent residence" where

a person is staying for all practical purposes in a permanent capacity for a considerable long period of time.

(ii) "Permanent residence" means and qualifies such persons as per the parameters laid down in the Government Order dated 20.11.2001.

(iii) "Permanent resident" would also include a person born in Uttarakhand as per the Government Order dated 29.03.2003.

(iv) If after marriage, the wife adopts the permanent residence of her husband which is in the State of Uttarakhand she becomes a bonafide resident of the State of Uttarakhand and is entitled for issuance of a caste certificate in view of the decision of the court in Jyoti Bala (supra).

(v) If a person is permanently allocated the State of Uttarakhand pursuant to the U.P. Reorganization Act, 2000, he is treated to be a bonafide resident as well as a permanent resident in view of the decision in Mrs. Jyotsana (supra).

(vi) The appointed date of the Constitution (Scheduled Castes) Order of 1950 and the Constitution (Scheduled Tribes) Order of 1950 for the State of Uttarakhand is the date notified by the Central Government in the official Gazette which is 09.11.2000.

(vii) Persons belongs to Scheduled Caste, Scheduled Tribe or OBC residing in a permanent capacity on or before 09.11.2000 in any part of the State of Uttarakhand would be entitled, the benefits and privileges given by the State of Uttarakhand provided the caste of such persons is notified in the State of Uttarakhand.

(viii) A person of Uttar Pradesh who belongs to the reserved category and who migrated from one part of Uttar Pradesh to another part of Uttar Pradesh and enjoyed the privileges of that caste in the State of Uttar Pradesh and who is staying for all practical purposes in a permanent capacity for a considerable period of time, will continue to enjoy the same privileges upon the creation of the State of Uttarakhand provided his caste is notified by the State of Uttarakhand. The said person could not be treated to be the original resident of Uttar Pradesh and the State Government of Uttarakhand could not treat this person as "not an original resident of Uttarakhand" or reject his application on the ground that he originally belongs to the State of Uttar Pradesh.

(ix) Once a caste is specified by the State, the person belonging to that caste is given the privilege in that State and it is immaterial if a particular person migrates from one corner to another corner of the same State. Consequently, when the State of Uttar Pradesh was bifurcated and State of Uttarakhand was created from the composite State of Uttar Pradesh, the geographical limits of the entire State of Uttar Pradesh will be taken into consideration in relation to the State of Uttarakhand, which has been bifurcated from the State of Uttar Pradesh. The geographical limits cannot be confined to those geographical limits, which has come in the State of Uttarakhand.

(x) Any person who has migrated from one part of Uttar Pradesh to another part of Uttar Pradesh and was living permanently for a considerable period of time and was enjoying the privileges of that particular caste in the State of Uttar Pradesh and that part has now become a part of Uttarakhand would be treated as a permanent resident of Uttarakhand upon the creation of the State of Uttarakhand and would also be entitled to all the benefits and privileges of that caste provided that caste was also notified in the State of Uttarakhand.

(xi) "Original resident" (Mool Niwasi) does not mean that the person or his forefathers must be the "original resident" of the State of Uttarakhand or reside in the geographical limits of Uttarakhand prior to its creation on or before the date of the issuance of the first Presidential Order of 1950. The geographical limits means and includes the geographical limits of the entire State of Uttar Pradesh prior to the creation of the State of Uttarakhand. "

7. This Court also had on a occasion to deal with an identical issue based on the aforesaid principles of the Coordinate Benches, which has been affirmed, has rendered a judgment in Writ Petition No. 107 of 2021, Mohd, Rizwan vs. State of Uttarakhand and others, where based upon the Government Order as referred above

dated 02.4.2013, issued by the State Government laying down the criteria to be resorted to for the purposes of issuing the caste certificate the Court has taken a view that issuance of a caste certificate is only a recognition of a caste, which is otherwise notified in the State as to be a reserved caste and as such once the State Government has issued a Government Order No. 2588 of 2020 laying down the parameters for certifying a person to be a permanent resident of the State of Uttarakhand, if that certificate is issued, after conducting an inquiry as postulated in the said Government Order, in that eventuality at later stage, the respondents state cannot take a summersaulted stand that a person, who applies for the grant of caste certificate as per the Government Orders, has had to prove his residence in the State prior to 1985, is absolutely preposterous and contrary to their own certificate which has been issued under the Government Order of 20.11.2001. Hence, I am of the view that as soon as the permanent resident certificate, is issued in favour of a person by the State in accordance with the Government Order as applicable for determining the parameters for issuance of the permanent resident certificate, in that eventuality the issuance of a caste certificate will be only limited to the extent that the caste for which the certificate has been applied for has had to be included in the scheduled of castes recognised caste by the State.

8. In that eventuality and in the light of the ratio laid down by the aforesaid judgment including the judgment rendered in Writ Petition No. 107 of 2021 dated

06.08.2021, the writ petition preferred by the petitioner would stand allowed. The impugned order rejecting the application of the petitioner for the grant of caste certificate based on the fact that he was unable to place any evidence on record that he was the resident of the State prior to 1985 would stand quashed. A writ of mandamus is issued to respondent no.3. to issue the caste certificate to the petitioner, after considering the propriety of his application no. UK02CAC0104/200035784, within a period of one month from today .

9. Subject to the above observations, the writ petition stands allowed.

(Sharad Kumar Sharma, J.) 23.08.2021 Nahid