Allahabad High Court
Kamlesh Bahadur Gond vs State Of U.P. And Others on 9 April, 2015
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 9 Case :- WRIT - A No. - 20050 of 2008 Petitioner :- Kamlesh Bahadur Gond Respondent :- State Of U.P. And Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner. Learned Standing Counsel appears for the respondents.
By means of the present writ petition the petitioner has prayed for following reliefs:-
"(i) issue a writ of certiorari or writ, order or direction in the nature of certiorari calling for record and quashing the impugned order dated 14.02.2008 and 19.03.2008 Annexure No.21 & 25 passed by respondent no.4 and 5.
(ii) issue a writ of mandamus or writ, order or direction in the nature of mandamus commanding the respondents from enforcing and implementing the impugned orders date 14.02.2008 and 19.03.2008 Annexure No.21 & 25.
(iii) issue a writ of mandamus or writ, order or direction in the nature of mandamus commanding the respondent no.5 to allow the petitioner to join and discharge of duties of Gram Vikas Adhikari and pay the salary admissible in law.
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case;
(iv) to award the cost of the writ petition to the petitioner."
This Court while entertaining the writ petition passed the following order on 19.04.2008:-
"The contention of the learned counsel for the petitioner is that previously Gond Caste was notified as a Schedule Caste however, by the S.C. and S.T. Orders (Amendment) Act 2002 Gond Caste was declared as a Scheduled Tribe in U.P. The State Government also in pursuance thereof issued a notification dated 3rd July 2003 and subsequently 30th September 2003 notifying Gond Caste as a Schedule Tribel.
In view of the aforesaid, the petitioner was issued a caste certificate by the Tehsildar, Lalganj, District Azamgarh on 15.4.2005 certifying that the petitioner belongs to Gond Caste which is the Scheduled Tribe. On the basis of the aforesaid certificate, the petitioner applied for appointment as a Gram Vikas Adhikari in the category of ST and he was selected and appointed as such on 25.2.2008. However, by the impugned order dated 19.3.2008 petitioner's aforesaid appointment has been cancelled on the ground that the petitioner is not a candidate belonging to ST.
Learned Standing Counsel prays for and is allowed six weeks time to file counter affidavit. Two weeks thereafter are allowed to the petitioner for filing rejoinder affidavit.
List for admission/ final disposal on the expiry of the above period.
Until further order of this Court the operation of impugned order dated 19.3.2008 (Annexure 25 to the writ petition) shall remain stayed."
Learned counsel for the petitioner submits that the petitioner belongs to 'Gond' caste, which is a scheduled tribe. In the parivar register and the educational certificates also the caste of the petitioner is shown as 'Gond'. After the inclusion of the petitioner's caste 'Gond' in Scheduled Tribes by Act No.10 of 2003 the petitioner applied for caste certificate of 'Gond'. After enquiry and verification of his caste, the Scheduled Tribe certificate of 'Gond' dated 15.4.2005 was issued by the Tehsildar Lalganj.
The respondent no.5 advertised reserved backlog vacancies of Junior Clerk and Gram Vikas Adhikari in the office. In response thereto the petitioner applied for the post of Gram Vikas Adhikari reserved for Scheduled Tribe. After physical test and interview he was selected for the said post and sent for training. After completing successful training he was given appointment letter dated 25.2.2008. When he reached for joining he was served a show cause notice stating that after verification of the caste certificate the Tehsildar, Lalganj vide letter dated 14.2.2008 informed that he belongs to Backward Caste Kahar, Sub-Caste of Gond and the caste certificate submitted by him is ineffective and explanation was called as to why his appointment be not cancelled. The petitioner submitted his reply dated 7.3.2008 to the show cause notice and stated that he is of 'Gond' caste by birth. He has also been issued certificate of 'Gond' treating him a Scheduled Tribe. The respondents have no authority to change the caste of the petitioner without giving any opportunity to him. It is submitted that a caste certificate issued by an empowered public authority under seal continued to be a valid document till it is cancelled by the said authority or by his superior authority. In the petitioner's case neither the superior authority nor the issuing authority has cancelled the caste certificate issued to the petitioner treating him as Scheduled Tribe. It is stated that before cancelling the certificate there is detailed procedure and that should be followed before cancelling any certificate. He submits that the entire action taken by the respondents is arbitrary, unreasonable and without giving any opportunity of hearing.
On the other hand, learned Standing Counsel submits that the respondents had acted absolutely in accordance with law. When it had come in the notice of the respondents that the petitioner does not belong to Scheduled Tribe community but he belongs to 'Gond' sub-caste of 'Kahar', which is a backward caste, his appointment was cancelled.
Learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court passed in Writ Petition No.2252 of 2013 (Bindra Prasad Gond v. State of U.P. & Ors.). He has also placed reliance on a judgment dated 5.8.2014 of this Court in Writ-A No.36990 of 2008 (Bindra Prasad v. State of U.P. & Ors.), in which the Court observed as under:-
"Learned counsel for the petitioner submits that the petitioner has filed another Civil Misc. Writ Petition No. 2252 of 2013 (Bindra Prasad Gond Vs. State of U.P. and others), by which the petitioner has challenged the cancellation of his caste certificate and the decision of the High Power Caste Scrutiny Committee, and the Division Bench vide order dated 06.02.2014 had allowed the writ petition with following observation:-
"We also take note of the fact that the petitioner who is a class IV employee has been made to approach the Court again and again for declaration of his status as Scheduled Tribe. Even after the dictum of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra), which was decided on 02.09.1994, the opposite parties did not adopt the procedure mentioned therein for verifying the social status of the petitioner rather the Tehsildar went on canceling his caste certificate on the pretext or other, with the result, the petitioner had to approach this Court again and again, at least 5 times. Even after passing of the judgment by this Court on 09.04.2010, the authorities did not take any action till the petitioner initiated contempt proceedings against them. The petitioner has suffered mental agony and incurred expenses on account of these litigations. Therefore, it is a fit case where the respondent no.1 deserves to be saddled with appropriate cost.
Considering the long period of litigation, specially, the facts that the report of the Vigilance Cell is not alleged to have been obtained fraudulently, we do not deem it fit to relegate the matter back to the authorities again. Since we are quashing the impugned decision of the Caste Scrutiny Committee, the caste certificate dated 17.01.2004 issued to the petitioner shall stand restored and the petitioner shall be treated as belonging to the Gond caste, a Scheduled Tribe.
For the reasons stated aforesaid, the impugned order of the Caste Scrutiny Committee dated 28.12.20012, cannot be sustained and is quashed.
The writ petition is allowed with cost.
The respondent no.1 will pay a sum of Rs. 25,000/- to the petitioner for this vexatious litigation within four weeks from the date of production of a certified copy of this order."
The Division Bench while allowing the writ petition no. 2252 of 2013 has clearly held that "This is the 5th round of litigation by the petitioner, who is a Driver in the Agriculture department of the Government of Uttar Pradesh, seeking restoration of his status as a Scheduled Tribe person.
Learned counsel for the petitioner submits that in view of the decision made by the Division Bench in Civil Misc. Writ Petition No. 2252 of 2013 dated 06.02.2014, by which the impugned decision of the High Power Caste Scrutiny Committee, has been quashed and direction has already been issued to the respondents to restore the caste certificate, which was issued to the petitioner on 17.01.2004, treating him as Gond caste (scheduled tribe). The present writ petition is liable to be allowed on the ground that petitioner admittedly belongs to Scheduled Tribes and his caste certificate has been restored.
Therefore, in view of the decision taken by the Division Bench in Civil Misc. Writ Petition No. 2252 of 2013 dated 06.02.2014, the sole reason for passing the impugned order dated 08.02.2008 passed by the respondent no.3 is no more survives specially on the ground that once the Division Bench has already restored the caste certificate of the petitioner as scheduled tribes then the order impugned dated 08.02.2008 is unsustainable and liable to be quashed.
Accordingly, in view of the aforesaid facts and circumstances, I am of the view, that the order dated 08.02.2008 is unsustainable and accordingly quashed.
Accordingly, the writ petition is allowed."
Learned counsel for the petitioner has also placed reliance on a Division Bench judgment of this Court in Praveen Kumar v. State of U.P. & Ors. reported in 2014 (8) ADJ 690 (DB), the relevant paragraphs of which are reproduced as under:-
"In the communication of the Tehsildar dated 12.10.2009, it is nowhere mentioned that there was any complaint with regard to the issuance of the caste certificate in favour of the petitioner. By the communication of the Commandant of C.R.P.F dated 3.9.2009, the Tehsildar was required to only verify the issuance of the caste certificate and not its correctness. Once the Tehsildar had verified the issuance of the said certificate, it had no power or jurisdiction to provide for review of the issuance of the said caste certificate or recommend for its cancellation, specially when there was no complaint by any authority or person with regard to the correctness of the same.
If the Tehsildar is allowed to initiate suo motu proceeding for cancellation, without there being any particular material or complaint with regard to issuance of such caste certificate, the same would create unnecessary complication, as any new Tehsildar, who is subsequently posted and is not satisfied with the person or his family in whose favour the certificate has been issued, can initiate proceedings for cancellation of caste certificate which may have been validly issued in favour of a particular person after due investigation.
In the present case, the communication of the Tehsildar clearly shows that he has proceeded on the presumption that the petitioner belongs to the Kamkar/Kahar caste, whereas there was no substantial material or document with Tehsildar in support of the same. Prior to the issuance of the said communication, the Tehsildar had not even given the petitioner any opportunity to show cause as to why the proceedings for cancellation of his caste certificate was to be initiated against him. As such, very initiation of the proceedings for cancellation of the caste certificate of the petitioner cannot be justified in law."
Having heard learned counsel for the parties, perusing the relevant material on record and considering the judgments cited at Bar, I find that the petitioner was issued caste certificate of 'Gond' treating him to be a Scheduled Tribe. On the basis of the same caste certificate he obtained appointment. On being enquired by the department from the Tehsidlar about the caste of the petitioner, the Tehsildar submitted report denying the certificate of the petitioner. I find that the judgments cited by the petitioner fully support his case. There was no complaint regarding genuineness of the certificate of the petitioner. The department has only enquired whether such certificate has been issued or not. The Tehsildar had gone beyond the query and submitted another report declaring that the petitioner does not belong to 'Gond' community, which is not a scheduled tribe community. The Tehsildar was required to only verify the issuance of the caste certificate and not its correctness. Once the Tehsildar had verified the issuance of the said certificate, it had no power or jurisdiction to provide for review of the issuance of the said caste certificate or recommend for its cancellation, specially when there was no complaint by any authority or person with regard to the correctness of the same. It is also relevant to mention that by letter dated 24.1.2008 the District Development Officer, Chandauli had only asked from the Tehsildar, Lalganj whether 'Gond' caste is Scheduled Tribe or not. The Tehsildar has overstepped the issue and denied the caste of the petitioner.
In view of the above, the writ petition is allowed. The impugned orders dated 14.2.2008 and 19.3.2008 are hereby quashed. The District Magistrate, Azamgarh is directed to consider the grievance of the petitioner and decide his claim within a period of six weeks from the date a certified copy of this order is produced before him.
Order Date :- 9.4.2015 SP/