Pal Singh vs State of Haryana and Others

K. Kannan, J.

C.M. No. 10215 of 2014

Application is allowed, as prayed for. Exemption granted. Notification dated 11.10.2014 (Annexure R-4/4) is taken on record.

Civil Writ Petition No. 4803 of 2013

The petitioner challenges the order issued on 04.02.2013 (Annexure P7) by the District Level Enquiry Committee setting aside the caste certificate issued by the Tehsildar declaring the person as belonging to khatik-the scheduled caste community. The decision was taken by the District Level Committee after a complaint was made by some of the local persons after the election to the post of Sarpanch was contested by the petitioner in a reserved constituency for SC/ST. The preliminary investigation carried out through the Deputy Commissioner yielded to a finding on the basis of the school certificate that he was of Lohar caste which was a backward category and not a scheduled caste. The enquiry by the District Level Enquiry Committee is challenged on the ground that the respondents who had complained, were rival contestants to the office of the Sarpanch and having failed in the election, they have resorted to dubious way of subverting his caste certificate which cannot be done. The challenge to the order issued under Annexure P7 is contained on two grounds: (i) the petitioner''s election could have been set aside only through an election petition and cannot be brought through a challenge to his caste status. The counsel would refer me to the decision of the Supreme Court in State of Himachal Pradesh and others v. Surinder Singh Banolta that considered the case of an action under the Himachal Pradesh Public Premises (Rent Recovery and Land Eviction) Act of 1971. It was a case of the respondent of election as a member of the Zila Parishad and it was found that the respondent had encroached upon the land of the authority prior to the election and hence, was not qualified to hold the elected post. Based on the fact that he had been ordered to be evicted under the Eviction Act, the Deputy Commissioner set aside the election by applying the disqualification provisions. This decision was found to be bad by the Supreme Court. I find no use for this authority to the fact of this case. There is no order which is brought before me that has set aside the election. The order impugned is only with reference to the caste status and whether a person shall be disqualified as an elected member on the basis of the order is still not an issue for consideration now. I will find the challenge to this certificate on that basis is not tenable.

As regards the claim that the certificate issued was not valid, the counsel points out to me that as per the notification issued by the Haryana Government under the Department of Welfare of Scheduled Caste and Backward Classes, scrutiny of the caste certificate could be undertaken by the District Level or the State level by 5 persons and 3 would constitute the quorum. 5 persons mentioned under the notification are as follows.-

The counsel would refer me to the proceedings of the District Level Enquiry Committee said to have been presided over by Ms. Sumedha Kataria, HCS, describing herself as Deputy Commissioner, Kurukshetra and would urge that a person of HCS rank could never have been a Deputy Commissioner and, therefore, the description as such cannot be valid or give her the status of a Chairman. It is also submitted that the order refers to the presence of 4 persons, of whom only 2 were qualified, namely, is a Sub Divisional Officer, Pehowa and the City Magistrate, Kurukshetra. The Superintendent of the office of the Welfare Officer cannot treat himself as a District Level Officer, who alone could be the competent person to be at the Scrutiny Committee. The Naib Tehsildar, Pehowa was also not a District Level Officer and he also cannot be a lawful member of the Committee. It would ultimately therefore turn out that only 2 persons'' names i.e. the Sub Divisional Officer and the City Magistrate were the members of the District Level Enquiry Committee and the decision made by them cannot be valid and binding.

The counsel for the respondent would state that the Deputy Commissioner on that relevant date was on leave and the powers as a Deputy Commissioner had been delegated to Ms. Sumedha Kataria, who was a Sub Divisional Officer. She had, therefore, a power to act as such Deputy Commissioner. The counsel would also argue that there has been no challenge anywhere in the petition that the person, who acted as a Deputy Commissioner, was not actually a Deputy Commissioner and, therefore, the constitution of the Enquiry Committee was bad. The counsel for the State is unable to assist me with reference to the details, for, according to him, there is no one in the department who could instruct him about the circumstances under which Ms. Sumedha Kataria was presiding over the said meeting as a Deputy Commissioner.

I thought for a while whether a plea which is not brought expressly in the petition could be urged by the petitioner. However, since the counsel for the private respondent himself admits that Ms. Sumedha Kataria was only a Sub Divisional Officer but she was acting as a Deputy Commissioner, I take it that she was acting as a delegate of the Deputy Commissioner. The constitution of a District Level Committee under express order of the Governor of Haryana and I have not been shown through any rule of business that would allow for delegation of the powers as a Deputy Commissioner to act as a Chairman of the District Level Committee could be made to any other subordinate officer. I will take it therefore that the order which is passed suffers from vice of the improper constitution of the Committee and, therefore cannot stand in the eye of law. The order impugned is quashed and the writ petition is allowed. The District Level Committee can reconstitute itself and take a decision on the evidence available in the manner known to law about the caste status of the petitioner within 8 weeks. The parties are at liberty to place such evidence as they seek to give for a proper appraisal within that time.