Ram Shabd Ram vs District Magistrate

Rakesh Tiwari and Bharat Bhushan, JJ.—Heard learned Counsel for the parties and perused the record. This Modification Application No. 261159 of 2013 has been filed by the petitioners stating that the order and judgment dated 8.8.2013 may be modified by the Court permitting them to approach the Civil Court for redressal of their grievance on questions of facts as to whether Dhuria is a sub-caste of "Gond" which falls under the category of scheduled caste community.

The contention of learned Counsel for the petitioners is that prior to the passing of the impugned orders neither any show cause notice nor any opportunity of hearing was provided to the petitioners, which is in violation of the principles of natural justice.

In support of the aforesaid contention learned Counsel for the petitioners submits that the impugned orders dated 12.10.2000 and 29.9.2000 passed by respondent No. 4 were challenged in the present writ petition in which an interim order was granted by the Court on 24.10.2000 staying the effect and operation of the impugned orders.

It is stated that the controversy in the petition was as to whether the petitioner falls under the purview Scheduled Castes and Scheduled Tribes Act, 1967 (hereinafter referred to as ''the Act'') in which ''Gond'' caste along with five castes namely, Dhuriya, Nayak, Ojha, Patheri and Raj Gond residing in Uttar Pradesh have been identified as Scheduled castes and that as per Government Orders dated 29.8.1977 and 15.6.1991 ''Gond'' (sub-caste Dhuriya) residing in Uttar Pradesh also belongs to Scheduled Caste Community and as such the respondents have illegally and arbitrarily passed the impugned orders dated 12.10.2000 and 29.9.2000 on the basis of exparte report dated 15.9.2000 submitted by the Tehsildar.

The findings recorded by the Court in its judgment dated 8.8.2013 read thus:-

After hearing learned Counsel for the parties and on perusal of the record it would be in a fitness of things to have a glance at the caste certificates issued to the petitioners. The caste certificates of both the petitioners are substantially the same, hence the caste certificate of petitioner No. 2, Ram Shabd Ram son of Sri Jagpati Ram is reproduced below.

In order to appreciate the contentions of learned Counsel for the parties the matter may be summarized thus: The case of the petitioners is that they belong to "Gond" caste (sub-caste Dhuriya) and are, therefore, entitled to the reservation as scheduled caste candidates, who have been rightly issued caste certificates. It appears that the petitioners, on the basis of record of the school, belong to ''Kahar'' caste whereas the case of the respondents is that the petitioners are not of "Gond" caste at all; that on an enquiry it is revealed that ancestors of the petitioners have been living there and they belong to ''Kahar'' caste, which is not a scheduled caste or Tribe. Further from letter dated 29.9.2000 it is apparent that some persons in the Azamgarh area have started writing their caste as "Gond" and have obtained Farji certificates on the basis of which they have taken employment.

After hearing learned Counsel for the parties and on perusal of the record we are of the considered opinion that if a person does not belong to scheduled caste and merely because he starts writing ''Gond'' caste as notified under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1967, he cannot get benefit of employment as a scheduled caste candidate. There is not even an iota of evidence to show that person of ''Kahar'' caste belong to scheduled caste category. In fact, ''Kahar'' belong to backward caste. On enquiry it has been revealed from the School Register that the petitioners belong to ''Kahar'' caste whose ancestors have been living in the village, therefore, they are not ''Gond'' by caste (sub-caste Dhuriya). It appears that the petitioners have done so in order to obtain caste certificates for the only purpose of taking employment.

This Court cannot permit that a vacancy or seat belonging to SC/ST category be filled in with a candidate of backward or forward class. If this is permitted it would tantamount to overriding the legislative wisdom depriving the socially and economically weaker persons from coming up in the society. The vision in our Constitution is for upliftment of such down trodden persons who belong to socially and economically weaker Section of the society and who have been brought under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1967. The intention of legislature appears to be that any OBC or forward class person by adopting the title of scheduled caste should not be able take up employment on the ground of his being a scheduled caste on the basis of a certificate issued to him in this regard.

It is apparent from record that petitioners belong to the same family and to the ''Kahar'' caste, which is not mentioned in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1967 to whom the reservation apply. There is a direct anomaly in the caste certificates issued to the petitioners and in the pleadings. The caste certificate shows that the petitioners belong to "Gond" caste (sub-caste Dhuriya) whereas the School record shows that the petitioners are ''Kahar'' by caste and not "Gond". The caste "Kahar" having not mentioned in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1967, as such the said caste certificates issued to the petitioners appear to be Farji.

We, therefore, do not find any fault in the impugned orders of the authorities below and the writ petition is liable to be dismissed.

For the reasons stated above, the writ petition is dismissed. The respondents are directed to take action against the petitioners in accordance with law.

No order as to costs.

Thus, on the basis of record it is apparent that the petitioners are ''Kahar'' by caste and not ''Gond'' as it is not mentioned in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1967.

Learned Counsel for the petitioner has relied upon the judgment rendered by the Apex Court in the case of Guljar Singh v. Sub-Divisional Magistrate and others, (Civil Appeal No. 437 of 1999) on 22.1.1999. In that case, the Apex Court held that caste certificate could not be cancelled without issuing any show cause notice or affording an-opportunity of hearing to the petitioner in a departmental enquiry as this could be in violation of the principles of natural justice. In paragraph 2 of the judgment the Apex Court held thus:-

It is clear from the facts on record that prior to the cancellation of the Scheduled Caste certificate by the impugned order dated 3.6.1997, no show cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Caste Certificate, certain rights accrued to the appellant. If this certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Caste Certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian then fairness would require that the said statements should be put to the appellant before a final decision is taken.

He has also relied upon the judgment rendered by the High Court in Srikant Gond v. State of U.P. and others, (Writ Petition No. 17194 of 2010) (DB) wherein the Court held that the Court in exercise of writ jurisdiction shall not re-appraise the evidence collected by the Sub-Divisional Officer. Dismissing the writ petition the Court observed that this shall not preclude to establish the right of the petitioner in a regular suit before a competent Court. The relevant extract of the judgment appended as Annexure-2 to the modification application reads thus:-

Heard Shri Sheo Ram Singh, learned Counsel for the petitioner.

By this writ petition, the petitioner has prayed for quashing the order dated 12.3.2010 passed by Sub Divisional Officer cancelling the Schedule Caste certificate granted to the petitioner on 31.12.2004. The Sub Divisional Officer canceled the certificate recording findings that petitioner does not belong to Schedule Caste (Gond) rather he belong to Caste "Kanhar".

Learned Counsel for the petitioner challenges the findings recorded by Sub Divisional Officer in the impugned order dated 12.3.2010. He contends that several evidences filed by the petitioner have not been considered by Sub Divisional Officer.

We have heard the learned Counsel for the petitioner and perused the record. The order of Sub Divisional Officer is based on consideration of certain materials as mentioned therein.

We are of the view that this Court in exercise of writ jurisdiction shall not reappraise the evidence relied by the Sub Divisional Officer. No ground is made out to interfere with the impugned order in exercise of writ jurisdiction, however dismissal of this writ petition shall not preclude the petitioner to establish his rights in a regular suit filed in competent Court.

The writ petition is dismissed subject to observation as made above.

Learned Counsel for the petitioner has also placed reliance upon the judgment rendered in Mishri Lal and others v. District Magistrate and others, (Civil Misc. Writ Petition No. 46385 of 2000) decided on 10.5.2007 wherein the Court held that-

Heard learned Counsel for the petitioners and learned Standing Counsel for the respondents.

By means of this writ petition the petitioners are seeking following relief:-

(i) issue a writ, order or direction in the nature of certiorari quashing the impugned orders of respondent No. 1 dated 12.10.2000 and 29.9.2000 (Annexures No. 4 and 3 to this writ petition) respectively.

(ii) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 not to proceed in any manner, in pursuance of their direction as given by respondent No. 1 vide orders dated 29.9.2000 and 12.10.2000 (Annexures No. 3 and 4).

(iii) issue any other writ, order or direction in favour of the petitioners which this Hon''ble Court may deem fit and proper in the circumstances of the case.

(iv) to award the cost of the petition.

Learned Counsel for the petitioners relied upon Annexure-1 to the writ petition wherein an inquiry is being directed in the matter of joining of service and continuing in service on the ground of some forge caste certificate. The inquiry is still going on at the level of the authorities and it does not appear to us that either any adjudication or any order has been passed by the authority to detriment the petitioners'' case.

In this view of the matter we think that this petition is pre mature at this stage. It is accordingly dismissed.

It is lastly argued that the controversy involved in the present writ petition can be decided after appreciation of oral and documentary evidence, therefore, the Court may consider the aforesaid evidence, which was not appreciated at the time of hearing of the writ petition and to modify the order dated 8.8.2013 directing the petitioners to approach the appropriate Court in regular suit where evidence can be led. It is stated that the petitioner had filed photocopy of the Pariwar Register in the writ petition which shows that he belongs to ''Gond'' caste and entries made therein are prior to entry of School Certificate but the photocopy of Pariwar Register was not properly appreciated by the Court and the judgment has been rendered by considering the entries made in the School records only, hence modification in the judgment dated 8.8.2013 directing the petitioner to approach the Civil Court for redressal of his grievance is necessary.

Learned Standing Counsel has drawn our attention to the order dated 18.3.2005 passed by the High Court, which was not placed by the learned Counsel for the petitioner before us. The order dated 18.3.2005 reads thus:-

As prayed by the learned Counsel for the petitioner, the case is adjourned for today.

Annexure-3 is the impugned order which mentions that at the time of passing High School, the petitioner showed himself as belonging to the Caste "Kahar". Subsequently, by way of after thought, he decided to get a fictitious certificate of belonging to Scheduled caste. There is no averment in the writ petition with regard to the Scholar Register referred in Annexure-3 to the writ petition.

Learned Standing Counsel further submits that there is nothing against the petitioner in the impugned orders dated 12.10.2000 and 29.9.2000. It is stated that the petitioner claims that neither any FIR was lodged against him pursuant to the aforesaid orders nor any departmental action has been taken, therefore, the question of showing cause and issuance of notice do not arise and therefore, the judgments relied upon by the learned Counsel for the petitioner are not attracted. It is also stated that the petitioner has approached this Court under Article 226 of the Constitution of India for exercise of extraordinary jurisdiction without any reasonable cause and even in Annexure-3, the observations of the authority, which is impugned in the writ petition, are in favour of the petitioner, therefore, he cannot be said to be aggrieved by the order and as such, the modification application is misconceived and is liable to be dismissed.

After hearing learned Counsel for the parties and on perusal of the record, suffice it to say that the Court dismissed Writ Petition No. 46385 of 2000 (Mishri Lal and others v. District Magistrate and others) holding it as premature for the reason that an enquiry was being conducted into the facts and circumstances of the case, whereas in the present writ petition an enquiry was made by the District Magistrate pursuant to a complaint dated 9.8.1997 made by Dr. Baliram, Member of Parliament (Lok Sabha), New Delhi and Sri Neer Singh, Vice-Chairman, Anusuchit Jati Evam Anusuchit Jan Jati Ayog, 10th Floor, Indira Bhawan, Lucknow, which reads thus:-

It also appears from Annexure-6 that a complaint dated 16.2.2000 was also lodged by Sri Gulab Ram, President Karmraj Ram, General Secretary addressed to Vice-Chairman, Anusuchit Jati Evam Anusuchit Jan Jati Ayog, Lucknow that some persons of other castes had on the basis of forged certificates taken appointment on various posts under reserved quota of Scheduled Castes and Scheduled Tribes category. In this regard it was requested that this fact may be considered after taking explanation from the Manager of the Bank and an enquiry be made at his own level and to take action against the erring officials, who had made such appointments. The complaint dated 16.2.2000 reads thus:-

The relevant fact in this regard is that the letter dated 15.6.1981 was issued by the Director, Harijan Evam Samaj Kalyan U.P. Monitoring Sondh Sarvekshan Evam Mulyankan, Kendra 38, Dr. B.N. Road, New Hyderabad, Lucknow, wherein it has been categorically stated that there are only five sub-castes of Caste ''Gond'' namely, Dhuriya, Nayak, Ojha, Pathari and Rajgond. In this letter caste ''Kahar'' (sub-caste Dhuriya) is conspicuously absent. The letter dated 15.6.1981 reads thus:-

Therefore, we are of the view that ''Dhuriya'' is sub-caste of ''Gond'' but ''Kahar'' is neither sub-caste of ''Gond'' nor sub-caste of Dhuriya. However, we clarify here that as according to the petitioner, neither any FIR was lodged against him nor any departmental enquiry has been initiated, therefore, there is no cause of action for the petitioner to be aggrieved. An enquiry was being conducted by the State in the matter of Fabricated caste certificates obtained by number of persons and a report in this regard was sought but as no departmental enquiry was ever initiated against the petitioner, there is no question of issuing any show cause notice or giving any opportunity of hearing to him. Apart from it we have dealt with the matter in detail in our judgment. We are of the view that the judgments relied upon by the learned Counsel for the petitioner are not applicable on the facts and circumstances of this case. We have in fact noted the arguments of the learned Counsel for the petitioners. It was not argued before us that some departmental enquiries are pending against the petitioner, hence our judgment needs no modification and the modification application is liable to be dismissed.

Another reason for dismissing the modification application is that there are two types of enquiries contemplated, one with regard to departmental enquiry as has been held by the Division Bench in the case of Guljar Singh (supra). In that case, no departmental enquiry was pending against the petitioner. The other reason is that the petitioner has not approached the appropriate forum inspite of the fact that the judgments cited by him before us today are prior to the filing of the writ petition. These judgments were also not brought to our notice at the time of hearing of the writ petition. In any case, since we have exercised extra-ordinary powers under Article 226 of the Constitution of India with regard to report of the District Magistrate only and not regarding any departmental enquiry etc. by which the petitioner might have been effected, we cannot allow the petitioner to approach the Civil Court enabling it to sit over judgment of this Court. For all the reasons stated above, the modification application is rejected.