Ashiya alias Kavita vs State Election Commission and Others

Rajiv Sharma, A.C.J.

Per: Manoj K. Tiwari, J.

This special appeal is directed against the judgment rendered by learned Single Judge of this Court in Writ Petition No. 1148 of 2016 (M/S),

whereby the Caste Certificate issued in favour of the appellant (respondent no.7 in the writ petition) was quashed and Registrar General of this Court

was directed to lodge F.I.R. against the appellant for making false averments on oath before the Court.

It transpires that the appellant contested election for the Office of Member Zila Panchayat, Haridwar from a seat which was reserved for

Scheduled Caste person. The said election was held on 27.12.2015, in which appellant was declared as elected. After some time, Smt. Savita, who

also contested and lost in the said election, learnt that appellant had converted to Islam while marrying to one Mr. Moazzam, therefore, she filed a writ

petition challenging the Caste Certificate as well as Election of the appellant.

The said writ petition was allowed by learned Single Judge of this Court, mainly on the ground that she is married to one Mr. Moazzam and has

three children out of the said wedlock and all the documents indicate that she is legally wedded wife of Mr. Moazzam. Another ground on which, writ

petition was allowed is that appellant before her marriage was a permanent resident of Delhi, therefore she cannot get benefit of reservation in

Uttarakhand State.

Learned Single Judge also directed the Registrar General of the High Court to lodge F.I.R. against the appellant for making false averments on oath

before this Court regarding her marital status. Feeling aggrieved by judgment rendered by learned Single Judge, Smt. Ashiya @ Kavita has filed the

present appeal.

Learned counsel for the appellant submits that the findings recorded by learned Single Judge that appellant is legally wedded wife of Mr. Moazzam

is without any basis. He further submits that since Jatav Caste, to which appellant belongs, is notified as Scheduled Caste in both the States i.e. Delhi

and Uttarakhand, therefore, there is nothing wrong if the appellant contested election against a reserved seat for Scheduled Caste person, in District

Haridwar.

Several documents have been enclosed with the writ petition e.g. Caste Certificate issued by Tehsildar, Haridwar, Voters List for Jwalapur

Legislative Constituency for the years 2008, 2011 and 2012 and also declaration of Election Result, which indicate that appellant is the wife of Mr.

Moazzam. In the voter lists, appellant’s name is mentioned as Ashiya w/o Mr. Moazzam. This creates a presumption that it was the appellant,

who furnished this information to the Authorities while applying for Caste Certificate as well as while applying for inclusion of her name in the Voters

List.

It is settled position in law that reservation is State specific and a reserved category person, upon migration to another State is not entitled to the

benefit of reservation in that State as held by Hon’ble Supreme Court in the case of Sanjeev Kumar Vs. State of Bihar reported in (2016) 13 SCC

105 and Melwin Chiras Kujur Vs. State of Maharashtra and others reported in (2015) 17 SCC 549 and Uttar Pradesh Public Service Commission Vs.

Madhu Rana reported in (2012) 12 SCC 132.

Admittedly, Mr. Moazzam professes Islam religion, therefore if appellant has converted to Islam, then she cannot get benefit of reservation, even

though, she belonged to Scheduled Caste category earlier. This becomes apparent from reading of Clause 3 of the Constitution (Scheduled Caste)

Order, 1950, which reads as under:

“3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu 5 [the Sikh or the Buddhist]

religion shall be deemed to be a member of a Scheduled Caste.â€​

Learned counsel for the appellant submits that in the impugned judgment the issue of appellant’s election has not been dealt with and the only

discussion is regarding the ‘Caste Certificate’ issued to her on 25.01.2011, therefore, learned Single Judge erred in allowing the writ petition. In

view of the direction we are proposing to issue, we do not consider it worthwhile to deal with this aspect in this appeal.

It is settled position in law that fraud unravels everything as held by Hon’ble Supreme Court in the case of State of Orissa and another Vs.

Bibhisan Kanhar reported in (2017) 8 SCC 608. A person, who does not belong to Scheduled Caste, cannot claim any benefit, which is available to a

person belonging to Scheduled Caste. Since the seat in question was reserved for Scheduled Caste Category person, therefore, unless it is proved that

appellant belongs to that category, she cannot retain the benefit, which does not belong to her. Election of a general category person against a

reserved seat, amounts to fraud on the Constitution, which cannot be permitted to continue.

Hon’ble Supreme Court in the case of Chairman and Managing Director, Food Corporation of India & others Vs Jagdish Balaram Bahira &

others reported in 2017 (8) SCC 670, while dealing with the question of appointment to a post or admission in an educational institution has observed in

para 48 as follows:

“where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the

reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio.

The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured

appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class.

Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be

vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for

whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or

he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource

is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to

a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived

of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are

excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the

revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the

appointment or admission was obtained.â€​

Hon’ble Supreme Court in the case of Kumari Madhuri Patil & another v. Additional Commissioner, Tribal Development & others reported in

(1994) 6 SCC 241 has held that admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily

has the effect of depriving the genuine Scheduled Caste or Scheduled Tribe or O.B.C. candidates of the benefits conferred on them by the

Constitution. Hon’ble Supreme Court has also issued directions for streamlining the procedure for the issuance of Caste Certificates, their scrutiny

etc.

In the present case, appellant is relying upon a Caste Certificate, which according to her has been validly issued by a Competent Authority in

Uttarakhand. Smt. Savita (respondent no.7 herein) on the other hand contends that appellant cannot be treated as member of Scheduled Caste in view

of her conversion to Islam. This aspect can be more appropriately dealt with by the Scrutiny Committee constituted in terms of judgment rendered in

the Case of Kumari Madhuri Patil (Supra.) We are fortified in our view by a recent judgment rendered in the case of Bharati Reddy Vs. State of

Karnataka reported in (2018) 6 SCC 162.

Accordingly, we allow this appeal and set aside the judgment given by learned Single Judge. We, however, dispose of the writ petition filed by

respondent no.7 being Writ Petition No. 1148 of 2016 (M/S) by directing the State Caste Scrutiny Committee to look into the Caste status of the

appellant and take appropriate decision regarding validity of Caste Certificate issued to her upon due consideration of entire material and after hearing

appellant and Smt. Savita-respondent no.7.

The State Caste Scrutiny Committee shall take decision within three months from the date the matter is placed before it by the District Magistrate,

Haridwar. District Magistrate, Haridwar is directed to place the matter before the said Committee within ten days from date of production of certified

copy of this order. Till decision in the matter is taken by the said Committee, appellant’s membership of Zila Panchayat, shall remain suspended

and her election shall abide by the final decision taken by the said Committee.