Gujarat High Court
Babubha Lakhansinh Panchaliya vs State Of Gujarat Through on 11 June, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
BABUBHA LAKHANSINH PANCHALIYA....Petitioner(s)V/SSTATE OF GUJARAT THROUGH SECRETARY C/SCA/1981/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1981 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ BABUBHA LAKHANSINH PANCHALIYA....Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3....Respondent(s) ================================================================ Appearance: MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 MR BIPIN BHATT, AGP for the Respondent(s) No. 1 - 3 NOTICE SERVED BY DS for the Respondent(s) No. 4 RULE SERVED BY DS for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 11/06/2013 ORAL JUDGMENT
The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India challenging the impugned orders passed by the Respondent No.2 dated 17.01.2011 at Annexure-A as well as order dated 24.03.2006 at Annexure-E, on the grounds stated in the memo of petition.
The facts of the case briefly summarized are that the petitioner is a national citizen of India and belonging to Charan community. It is the case of the petitioner that the forefathers of the petitioner were resident of Jambuthara Ness of Gir Forest. As per the Notification of the Central Government dated 29.10.1956, Bharvad, Rabari and Charan Communicty whose forefathers resided in the area of Gir, Alech and Barda, are given the status of scheduled Tribes. Therefore, the petitioner belonging to Charan community had made an application for grant of Caste Certificate to the Mamlatdar, Talala in the year 1978. The application was accompanied by necessary documents including the certificate issued by the Range Forest Officer, Sasangir dated 17.04.1978, school leaving certificate and certificate from local MLA. On the basis of the said documents, the Mamalatdar Talala issued caste certificate dated 20.04.1978 in favour of the petitioner.
A complaint came to be filed by one Kanaji Mohan Damor against the petitioner about genuineness of the caste certificate. On the basis of which, initial inquiry was made and the matter was referred to the Vigilance Commissioner regarding genuineness of the caste certificate issued to the petitioner in the year 1978. As it appears there is reference to other proceedings including petition being Special Civil Application No.13337 of 2010 filed by the petitioner and also Special Civil Application No.11756 of 2009. Thus, on the basis of complaint filed by one Kanaji Mohan Damor, vigilance inquiry was initiated on the ground that the caste certificate issued in favour of the petitioner in the year 1978 is not genuine. Therefore, the petitioner employed as teacher on the basis of that caste certificate is also false, which has led to other proceedings. It is in this background, the present petition has been filed challenging the impugned orders passed by Respondent No.2, by which the caste certificate issued in favour of the petitioner in the year 1978 produced at Annexure-C, is cancelled.
Heard learned Advocate Shri Dipen Desai for the petitioner and learned AGP Shri Bipin Bhatt for the Respondent-State.
Learned Advocate Shri Dipen Desai for the petitioner has referred to the papers at length and tried to submit that the caste certificate which is produced at Annexure-C dated 20.04.1978 issued by the Mamalatdar, Talala is sought to be cancelled, only on the basis of the complaint made by one Kanaji Mohan Damor. He submitted that subsequently an inquiry was conducted and even at the time of such inquiry, the petitioner had produced necessary documents including the certificate of the Range Forest Officer, Sasangir, which confirms about the fact that the Mamlatdar, Talala had issued the caste certificate after verifying all the relevant documents at the relevant time. He has pointedly referred to the letter/ communication produced at Annexure-RI dated 28.05.2008 addressed by the Range Forest Officer to the petitioner. He has addressed this letter confirming that on the basis of verification and examination of the records, the signatures are confirmed. He has also referred to the letter of the Commissioner, Tribal Development Department addressed to the Deputy Conservator of Forest dated 25.11.2010 and submitted that the Commissioner, Tribal Development Department has specifically asked about confirmation of aforesaid signature of the Range Forest Officer, contained in letter dated 28.05.2008. In reply to the said letter of the Commissioner, Tribal Development dated 25.11.2010, the office of the Deputy Conservator of Forest, Gir, Junagadh has specifically stated in his letter dated 20.01.2011 that necessary verification and examination has been made on the basis of the report, which is sent to the Social Welfare Officer.
Learned Advocate Shri Desai submitted that the Range Forest Officer, Gir vide communication dated 30.12.2010 addressed to the Deputy Conservator of Forest has specifically stated on verification of the record that signature of the Range Forest Officer obtained on other records, which have been verified, is confirmed. He submitted that in spite of this confirmation, the Commissioner, Tribal Development Department has passed the impugned order regarding cancellation of the caste certificate. He submitted that in fact after 24 years, such an inquiry, which is sought to be made without giving fair opportunity of hearing to the petitioner, is arbitrary and illegal. He further submitted that the petitioner has produced whatever documents he had, including the certificate of Range Forest Officer, Sasangir dated 17.04.1978 supporting his caste certificate and he should not have been called upon to establish that the certificate is genuine. He submitted that in fact it was for the Respondent Authority to establish that the certificate is not genuine. The report of the Vigilance Commissioner regarding inquiry of such certificate, has revealed that admittedly there was no material to come to the conclusion that the certificate was not genuine.
Learned Advocate Shri Desai has pointedly referred to such report dated 28.04.2004 produced at Annexure R-II as well as other report dated 06.05.2004 produced at Annexure R-III and submitted that inquiry was conducted and the record was called for, but admittedly no record was available with the Respondent Authority. He, therefore, submitted that if the record is not available, no other material is shown, then it cannot be assumed that the caste certificate is not genuine in absence of any material or evidence. He further submitted that as per the report produced at Annexure R-II dated 28.04.2004, it appears that the petitioner has produced certificate of the Range Forest Officer, Sasangir, before the Mamlatdar and on the basis thereof the Mamlatdar, Talala has issued a caste certificate. He submitted that it has been recorded in the report that since the petitioner is failed to establish his case by any evidence that the father or the forefathers of the petitioner were residing in or around Jambuthara Ness of Gir Forest in 1950 to 1952 and therefore the caste certificate issued in favour of the petitioner by the Mamlatdar, Talala is not genuine. He further submitted that one fails to understand how the petitioner could produce any record or evidence and if the certificate of the petitioner needs verification/scrutiny, which should have been scrutinized or examined by the Respondent Authority, for which the petitioner cannot be made to suffer by cancellation of such a certificate after 24 years, merely on the basis of some complaint filed by somebody.
Learned Advocate Shri Desai further submitted that in fact the principle of estoppel will come into play and the Respondent cannot resort to any such procedure, by which the rights created in favour of the petitioner on the basis of the caste certificate are not only taken away but the petitioner is also punished. He submitted that the petitioner got an employment on the basis of such caste certificate and was promoted and thereafter also retired but his retirement benefits are not paid on account of such complaint filed by one Kanaji Mohan Damor alleging that the caste certificate was not genuine. In other words, the complaint filed by Kanaji Damor that the employment got by the petitioner many years back was falsely obtained on the basis of the caste certificate, which was not genuine. Therefore, even though he is retired, his retirement benefits are not paid for which another petition is filed. Learned Advocate Shri Desai further submitted that recovery of the salary paid to the petitioner during tenure of his job is sought to be recovered. He submitted that it is a matter of litigation, filed by the petitioner being Special Civil Application No.13337 of 2010, which is pending before the High Court.
Per contra, learned AGP Shri Bipin Bhatt referred to the papers and submitted that in order to get the benefits under Notification of Central Government dated 29.10.1956, one has to fulfill the criteria. He referred to the affidavit-in-reply in detail to support his contentions to the fact that the certificate was issued to the petitioner at the relevant time in the year 1978 was without any proper verification. Therefore, when the complaint was filed, the matter was referred to the Vigilance Department. He submitted that on the basis of the inquiry conducted, where the petitioner has failed to establish or show any evidence regarding fact that the petitioner s father or forefathers are belonging to such Jambuthara Ness of Gir Forest, on the basis of which they can claim such caste certificate. He, therefore, submitted that the Mamalatdar, Talala has given the certificate as per the Central Government Notification, which is not clear. He submitted that it has not been verified that the conditions as per the Notification of the Central Government dated 29.10.1956, have been fulfilled, that the petitioner and his forefathers were the resident of Jambuthara Ness of Gir Forest.
Learned AGP Shri Bhatt submitted that the Scrutiny Committee rejected the caste certificate issued by the Mamlatdar, Talala dated 20.04.1978 as stated in detail in his affidavit-in-reply. He also referred to the report made by the Vigilance Commissioner and submitted that genuineness of the caste certificate was not established by the petitioner by the evidence and the same has been cancelled. He submitted that the petitioner has failed to prove that he belongs to Charan community and his forefathers were the resident of Jambuthara Ness of Gir Forest, which would enable the petitioner to claim benefits as per the Notification of Central Government dated 29.10.1956.
In rejoinder, learned Advocate Shri Dipen Desai has also referred to the affidavit-in-rejoinder to clarify about the contentions raised in the petition. He has pointedly referred to the affidavit-in-rejoinder and submitted that Scrutiny Committee has completely ignored the facts that the forefathers of the petitioner were the resident of Jambuthara Ness of Gir Forest. Further, the necessary receipts that the forefathers of the petitioner were resident of Jambuthara Ness of Gir Forest issued in 1939 were produced alongwith certificate issued by the Range Forest Officer, which could not have been ignored. He submitted that though there is no record available with the respondent to cross-check the caste certificate issued in favour of the petitioner is cancelled on the ground that it is not genuine without any basis. He submitted that whatever certificates and evidences the petitioner can produce he had produced, and the same have not been cross-checked, as it could not have been verified or scrutinized in absence of any evidence/record, to come to the conclusion that it is not genuine. He further submitted that cancellation of the caste certificate on the ground that it is not genuine is without any basis and material or evidence. He again reiterated that the petitioner had produced the certificate issued by the Range Forest Officer, Sasangir dated 17.04.1978 and had also produced Masawadi Receipt (Junagadh) issued in favour of the grandfather of the petitioner in the year 1939, which would prima facie, suggests that the forefathers of the petitioner were residing at Jambuthara Ness of Gir Forest. He, therefore, submitted that the present petition may be allowed.
In view of these rival submissions and the record, it is evident that the genesis of the entire issue is regarding genuineness of the caste certificate issued in favour of the petitioner in the year 1978. It is not in dispute that whole inquiry or question or doubt arose on the basis of the complaint filed by one Kanaji Mohan Damor. The petitioner in order to get the benefits of the caste certificate at the relevant time had produced the necessary evidence like Masawadi Receipt of 1939 as well as certificate of the Range Forest Officer, Sasangir dated 17.04.1978 and on that basis aforesaid caste certificate has been issued dated 20.04.1978 in favour of the petitioner. The said certificate is sought to be cancelled after 24 years based on the report, which is required to be considered. Both the reports produced by the respondents at Annexure R-II and Annexure R-III clearly suggest that the conclusion that it is not genuine and also the decision to cancel the caste certificate is without any basis. It is not evident as to the basis for such conclusion. Admittedly, there is no record available on the basis of which it could have been verified. Moreover, whatever the documents including the receipts issued in favour of the forefathers of the petitioner in the year 1939 justifying about their residence in Jambuthara Ness of Gir Forest coupled with the certificate of the Range Forest Officer are produced by the petitioner. As discussed above, the same were sought to be scrutinized or cross-checked and in response thereto the letter as stated above has been confirmed by the Forest Officer, including the signature of the said certificate that it has tallied with other records. Thus, the respondents have proceeded on assumption that the petitioner has not produced any evidence about his residence at Jambuthara Ness of Gir Forest and the certificate issued by the Mamlatdar, Talala at the relevant time in the year 1978 is without any verification. Further, such an assumption is without any justification as discussed above and the caste certificate issued in favour of the petitioner could not have been cancelled on the ground that it was no genuine.
It is for the authority to scrutinize and verify about genuineness of the certificate issued in favour of the petitioner. The petitioner in response to the notice has produced the necessary certificates including the caste certificate and other material like certificate of Range Forest Officer, Sasangir dated 17.04.1978, Masawadi Receipt of 1939 issued in favour of the forefather/ grandfather of the petitioner. Now, the burden lies on the Respondent Authority to verify and scrutinize genuineness of the certificate on the basis of their own evidence or material. Admittedly, there is no material or evidence or record available with the Respondent Authority, therefore the inference has been drawn that the petitioner has not been able to produce anything and the certificate is not genuine, which is totally erroneous. Therefore, the burden of proof could not have been shifted regarding proof for the domicile or the residence when the petitioner has discharged the same by giving the prima-facie evidences. It was for the Respondent Authority to verify the same on the basis of material before canceling the same, after providing an opportunity to the petitioner in compliance with Rules of Natural Justice.
Further, as rightly submitted by learned Advocate Shri Desai that the certificate which has been produced during the inquiry was sought to be verified by the authorities. In fact on the contrary the Range Forest Officer by communication dated 28.05.2008 has confirmed the signature. Again, the Commissioner, Tribal Development Department- Respondent No.2 has vide the letter dated 25.11.2010 sought clarification that on what basis the report of the Deputy Range Forest Officer has been made. Thereupon, again as could be seen from the reply of the Range Forest Officer vide communication dated 30.12.2012 produced on record, the Deputy Conservator of Forest has confirmed about genuineness of the signature. The Deputy Conservator of Forest therefore replied to the Social Welfare Officer with the aforesaid report.
In spite of this, the conclusion as stated above has been reached that the petitioner has failed to establish by any evidence and therefore the caste certificate is cancelled. In fact, the Vigilance Officer addressed a letter to the Commissioner, Tribal Development Department stating that for verification/ scrutiny of the caste certificate dated 20.04.1978, he had deputed a person and the deputed person had also made efforts to verify, but due to the election, which could not be verified. It is also clarified that since the report was to be made within time, the report has been made that the petitioner has failed to establish by necessary evidence, that his forefathers were resided in Jambuthara Ness of Gir Forest. In compliance with the requirement of Notification dated 29.10.1956, the certificate issued by the Mamlatdar, Talala dated 20.04.1978 appears to be without proper verification, which itself suggests the approach and the way in which the so called inquiry has proceeded after such a long lapse of time. In fact, from the record it appears that it is only at the instance of the complaint made by one Kanaji Mohan Damor, the whole gamut started when the Respondent Authority could not confirmed about genuineness of the caste certificate on the basis of any material or record, issued in favour of the petitioner. The inference has been drawn and therefore the burden of proof could not have been shifted regarding proof for the domicile or the residence when the petitioner has discharged the same by giving the prima-facie evidences. It was for the Respondent Authority to verify the same on the basis of material before canceling the same. In fact, if there was anything, the petitioner could have been given an opportunity to meet with it in compliance with Rules of Natural Justice.
It is required to be mentioned that the law would presume that the official act or duty, which is required to be done, should be done in the manner provided under the law. Therefore, when the Mamlatdar, Talala has issued the certificate for which, prima facie, evidences have also been produced by the petitioner as recorded hereinabove, there is no reason to make any inference that such a certificate was issued by the Mamlatdar, is without any proper verification, and therefore it is not genuine after 24 years. In fact, once the certificate is issued, the presumption would be that it is genuine and valid unless and until it is established after following proper procedure or scrutiny that it was not genuine. In the facts of the case, there is no scrutiny or verification based on any material or evidence, and admittedly no record was available with the Respondent. Therefore, it could not be said that the caste certificate issued in favour of the petitioner was not genuine merely because the respondent could not confirm it in absence of any record or material.
In any view of the matter, the principle of estoppel would also stare in the face, as on the basis of the such certificate, the petitioner has obtained service, got promotion and has completed his service. Now, it cannot be set at knot contending that the certificate was not genuine without any material or proof. It is merely inference or ipse dixit of the concerned Respondent, which is reflected in the report itself. Therefore, when the petitioner is not shown to have obtain such certificate by suppression of fact or fraud and when the certificate is not found to be bogus on the basis of any material or record, such an inference for cancellation of the certificate cannot be made. The impugned orders, therefore, cannot be sustained and deserve to be quashed and set aside.
The petition stands partly allowed in terms of Para No.6(a). The impugned orders dated 17.01.2011 at Annexure-A as well as order dated 24.03.2006 at Annexure-E passed by the Respondent No.2 Commissioner, Tribal Development Department are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(RAJESH H.SHUKLA, J.) Tuvar Page 16 of 16