Mallappa vs The Assistant Commissioner, Bagalkot Sub-Division and Others

L. Narayana Swamy, J.—The petitioner has obtained caste certificate in Form - D under Rule 3-A(1) of Karnataka Scheduled Castes & Scheduled Tribes & other Backward Classes (Reservation of Appointments etc.,) Act, 1990, hereinafter referred to as ''the Act'' for short, in No. MSC/CR/416/2000 in which it says that the case of the petitioner as Meda and the certificate was issued only for contesting the elections. It is submitted that as per the government notification Meda Caste is classified as Scheduled Tribe. Notwithstanding the fact that the petitioner belongs to Scheduled Tribe (Meda Caste), proceedings was initiated by the Assistant Commissioner in MSC/CR/8/2010-11 dated 8.11.2010 Annexure-F and holds that the cancellation of Caste Certificate issued by the Tahsildar was confirmed on the ground that the petitioner does not belong to Meda community.

The order of the Assistant Commissioner has been challenged on the first ground, the Assistant Commissioner could invoke the power under Rule 3-B under the Karnataka SC/ST & other Backward Classes (Reservation of Appointments etc.,) Rules, 1992, hereinafter referred to as ''the Rules'', in case if the certificate is issued under Section 4-A of the Act, which came into force only for persons who claim reservation for the purpose of education and for appointment. Since the very certificate was issued only to contest the election and not for claiming reservation as aforesaid, the Assistant Commissioner does not get any power to sit as an appellate authority. Secondly it is contended that the Assistant Commissioner has committed an error in exercising suo motu power which is contrary to Rule 3-B of the Rules which provides, only on an appeal, the Assistant Commissioner, as an appellate authority, could exercise the power. In the instant case, no person has preferred an appeal. In the circumstances, the order is bad in law. In support of his case, the petitioner produced as many as 18 documents, which are not looked into by the Assistant Commissioner.

The learned counsel Sri Jagadish appearing for the respondents submits to dismiss this petition primarily on the ground that whoever approaches this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution should come with clean hands and he is not supposed to suppress any material. If the petitioner claims that he belongs to Meda caste, he should produce some documents to satisfy this Court, but the petitioner has not produced any documents which is nothing but suppression. Secondly, the jurisdiction of the Assistant Commissioner cannot be raised at this stage because he himself obtained the caste certificate under the said provisions. Annexure-A certificate was issued under Rule 3-A(1) of the Rules. Hence he has to accept the authority on the part of the Assistant Commissioner for the purpose of cancellation. From the statement of objections filed before the Assistant Commissioner he had stated that he belongs to Medara and further he has stated that Medara and Meda are of same caste. With reference to the statement of objections, the learned counsel submits that as per the list provided by the Government of Karnataka vide Government Order No. SWD 225 BCA 2000 dated 30.3.2002 at Serial No. 36(A) Medara Community is referred against the category No. I. According to this category, the petitioner belongs to Category I, does not belong to Scheduled Tribe. The Schedule Tribe List is also furnished by the Constitution Scheduled Tribe Order 1950 in which Meda has been referred at Serial No. 37 and Medara is not mentioned for the purpose of synonyms. The question would be, whether the petitioner is Medara or Meda on the basis of the materials placed by himself.

The learned counsel for the respondents has relied upon the decision of the Hon''ble Supreme Court in the case of Director of Tribunal Welfare, Government of Andhra Pradesh Vs. Laveti Giri and another, and submitted referring Para-6 therein that burden of proof is on the person who approaches the Court to establish his caste. It is also referred the case in K.D. Sharma Vs. Steel Authority of India Ltd. and Others, and submitted that the High Court has to examine whether the person has concealed or suppressed any material to avail relief under Article 226 .

Heard both the parties.

The Act came into force specifically to cover the field for the purpose of obtaining caste certificate for appointment or post in service under the said Act. When this Act enables a person to obtain the certificate only for service under the State or for education, then the petitioner initially should not have invoked the provisions thereof to obtain the certificate. It is not forthcoming from the materials as to whether the petitioner has made the application under the provisions of the Act. Further the certificates have been issued in Form-D under Rule 3-A(1) of the Rules. Whenever the certificate has been issued under this provision, necessarily Assistant Commissioner alone has got jurisdiction and rightly he has entertained the appeal. Notwithstanding whether the petitioner has obtained the said certificate or the Assistant Commissioner has exercised his power but the fact would be, he obtained the certificate not for appointment purpose, it is only to contest the election. Whenever the certificates are obtained for the purpose other than the employment and education purpose and whenever it is challenged by the aggrieved person, it is the District Income and Caste Verification Committee for which the Deputy Commissioner is an ex-officio member, shall have the jurisdiction. Hence it is proper for the Caste Verification Committee, the Deputy Commissioner, Bagalkot to initiate proceedings against the petitioner to decide whether the petitioner belongs to Meda or Medara for the purpose of Scheduled Caste or Category I.

The submission of the respondent that the petitioner who has approached this court, has to furnish all materials and he is not supposed to suppress any of them. Suppression of material fact is a good ground to dismiss the petition. I find from the petition that the petitioner has not produced any material. Extraordinary jurisdiction under Article 226 of the Constitution could be invoked and exercised in a case where right and fundamental rights have been infringed by the administration. A person who has approached with unclean hands or suppressed material fact, such cases are to be dismissed mercilessly and further in case the materials are not produced and disclosed, it amounts to suppression of material facts. If the petitioner had sufficient documents in his possession, he should have produced before this Court but the same has not been done. Though it amounts to suppression of material facts, in the facts and circumstances, I am not inclined to non-suit the petitioner on the said ground.

From the documents produced before the Assistant Commissioner, it is seen that his children are also issued such certificates in the year 1992 and 1999. These documents are also required to be examined.

In the circumstances, the proceedings before the Assistant Commissioner in MSC/CR.8/2010-11 dated 8.11.2010 be transmitted to the office of the Deputy Commissioner, Bagalkot who is an ex-officio Chairman of Income and Caste Verification Committee and the petitioner is permitted to appear before the Deputy Commissioner along with copy of this order without awaiting any notice on 28.12.2015. The Committee shall pass appropriate order after affording opportunity to the petitioner. It is needless to say that the burden of proof is on the person who claims the benefit and the said burden of proof cannot be shifted on the Government to prove that he does not belong to a particular caste. The Committee is directed to dispose of the matter not beyond six months from the date of receipt of the order.

Writ Petition is accordingly disposed of.