Rajasthan High Court - Jaipur
Hasnoo Khan vs State (Panchayati Raj Dep )Ors on 20 January, 2017
Author: M.N. Bhandari
Bench: M.N. Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 4560 / 2015
Hasnoo Khan S/o. Shri Salamat Khan, aged about 56 years, R/o.
House No.83, Brahmin Mohalla, Boreli, Tehsil Baseri, District
Dholpur (Rajasthan).
----Petitioner
Versus
1. State of Rajathan through Principal Secretary, Panchayati Raj
Department, Secretariat, Jaipur
2. The Chairman, Rajasthan Other Backward Commission, Jaipur.
3. The Commissioner, Rajasthan State Election Commission,
Secretariat,Jaipur.
4. The District Collector, Dholpur.
5. Ms. Malvi D/o.Shri Satyapal, by caste Thakur, at present
Sarpanch, Gram Panchayat Boreli, Panchayat Samiti Baseri,
District Dholpur.
----Respondent
_____________________________________________________ For Petitioner(s) : Mr.Madhav Mitra Mr.Jeetendra Sharma For Respondent No.5. : Mr.RP Singh, Sr. Adv. with Mr.Shashikant Saini For Respondent State : Ms.Charu Jain for Mr.JM Saxena, AAG (2 of 5) [CW-4560/2015] HON'BLE MR. JUSTICE M.N. BHANDARI Judgment 20/01/2017 This writ petition is listed on an application, however,with the consent of learned counsel for both the parties, it is heard finally.
By this writ petition, a prayer is made to discontinue the respondent No.5 - Ms.Malvi from the post of Sarpanch based on the OBC certificate, which is said to be forged and otherwise caste - Thakur (Parmar) does not belong to OBC category. Any other appropriate relief, as deem fit and proper in the facts and circumstances of the case, was also prayed from the Court.
It is submitted that the non-petitioner No.5 was given OBC certificate based on a Notification dated 30 th September, 2013 where "Krishak (Karsa) of Rajput communities including Parmar were notified to be OBC. She contested election on the post of Sarpanch against the seat reserved for OBC. The Notification dated 30th September, 2013 was challenged before the Division Bench of the Principal Seat at Jodhpur in DB Civil Writ Petition No.4707/2015 in the case of Uda Ram Vs. State of Rajasthan & Ors. decided on 05th January, 2017. The Notification was held to be illegal for any other area than Kumbhalgarh, Nathdwara and Rajsamand of District Rajsamand. The State Government was,however, given a liberty to take appropriate steps, if required to include those castes in the category of other backward classes other than three areas, named above.
Learned counsel submits that after quashing of the (3 of 5) [CW-4560/2015] Notification, the OBC certificate issued in favour of the non- petitioner No.5 does not survive, rahter, it was even cancelled earlier by the official respondents. The non-petitioner No.5 challenged the cancellation where case was remanded but no interim order exists against the cancellation of caste certificate. In the light of the facts given above, OBC certificate granted to the non-petitioner No.5 would not survive, so as the election.
Learned counsel for the non-petitioner No.5 has contested the writ petition. It is submitted that challenge to the OBC Certificate has been made alleging it to be forged, whereas, it had been issued by the competent authority. It is, however, a fact that the Notification dated 30 th September, 2013 has been held illegal other than for three areas namely, Kumbhalgarh, Nathdwara and Rajsamand of District Rajsamand. A liberty is, however, given to the State Government to include those castes for other areas, if so required. The State Government may thus be given direction to make survey for inclusion of the castes even for the other areas of the State of Rajasthan.
Learned counsel appearing for the State Government has not contested the direction sought the light of the judgment of the Division Bench in the case of Uda Ram (supra). It is stated that the State Government has already cancelled the caste certificate thus nothing survives in the present writ petition and accordingly, it may be rendered infructuous.
I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.
The caste certificate issued in favour of the non-
(4 of 5) [CW-4560/2015] petitioner No.5 has been challenged. The prayer is to treat it to be forged, though, a prayer is also made not to include caste Thakur (Parmar) in the category of OBC. A further prayer is made for appropriate relief, as is deemed fit in the facts and circumstances of the case.
It is not in dispute that caste certificate issued in favour of the non-petitioner No.5 was based on the Notification dated 30 th September, 2013 where the caste Parmar was included in the category of OBC. The Notification dated 30 th September, 2013 is held to be illegal for any other area than Kumbhalgarh, Nathdwara and Rajsamand of District Rajsamand by the Division Bench in the case of Uda Ram (supra). The State Government was, however, given liberty to take appropriate steps, if required to include the caste referred in the Notification dated 30 th September, 2013 for any other area.
The caste certificate issued in favour of the non- petitioner No.5 was cancenlled. The non-petitioner No.5 thereupon preferred an appeal where the matter has been remanded but no interim order exists against cancellation of caste certificate thus status as on the date is of non-existence of the caste certificate in favour of non-petitioner No.5 after its cancellation. It is further a fact that once the Notification dated 30 th September, 2013 has been held to be illegal for any other area than of Kumbhalgarh, Nathdwara and Rajsamand of District Rajsamand, it cannot apply to a person of the other area like the present one to be Dholpur. Accordingly, when the caste certificate itself has been cancelled, nothing survives in the writ petition. The arguments of learned (5 of 5) [CW-4560/2015] counsel for the non-petitioner No.5 that the challenge to the certificate is by treating it to be forged is of no effect.
In view of the facts referred above, challenge to the certificate does not survive as it has already been cancelled and, otherwise, mere pendency of challenge to cancellation in the hands of the non-petitioner No.5 is now of no consequences till the judgment of the Division Bench in the case of Uda Ram (supra) is reversed or the Government come out with the Notification to include the caste for the area concerned.
As a consequence of the aforesaid, the post held by the non-petitioner No.5-Ms.Malvi cannot be retained, as she is not belonging to OBC category, for which, it was reserved.
With the aforesaid, the writ petition stands disposed of. The consequence to follow as per the provisions of the Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994 and accordingly, election on the post would be conducted.
The compliance of this order would be made within a period of three months from the date of receipt of copy of this order.
(M.N. BHANDARI)J. Preeti,PA/25