Allahabad High Court
Avadh Ram Singh Dhangar vs State Of U.P. Tru. District Magistrate ... on 3 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5265
Bench: Devendra Kumar Arora, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 5 Case :- MISC. BENCH No. - 18094 of 2017 Petitioner :- Avadh Ram Singh Dhangar Respondent :- State Of U.P. Tru. District Magistrate Kheri & Another Counsel for Petitioner :- Tung Nath Tiwari,Lohitaksha Shukla Counsel for Respondent :- C.S.C. Hon'ble Dr. Devendra Kumar Arora, J.
Hon'ble Alok Mathur, J.
(1) Heard learned Counsel for the petitioner and learned Standing Counsel for the State.
(2) The petitioner has approached this Court under Article 226 of the Constitution of India, challenging the order dated 22.1.2015 passed by the District Level Caste Scrutiny Committee headed by the District Magistrate, Lakhimpur Kheri, whereby the claim of the petitioner for re-consideration for inclusion of his caste in the category of Scheduled Caste has been rejected.
(3) The petitioner claims that he is Scheduled Caste in the State of U.P. and belongs to 'Dhangar' community, which is a sub-caste of 'Gaderiya' community.
(4) According to the petitioner, on 19.4.2010, he submitted an application before the District Magistrate, Lakhimpur Kheri for issuance of Scheduled Caste Certificate as he belonged to Dhangar sub-caste. The said application dated 19.4.2010 was rejected by the District Magistrate, Lakhimpur Kheri vide order dated 28.2.2011 inter alia on the ground that ''Gaderiya' and ''Dhangar' are two different castes; the former was belonging to Backward Caste; and later was belonging to Scheduled Caste.
(5) Feeling aggrieved by the order of the District Magistrate, Kheri dated 28.2.2011, the petitioner had approached this Court by means of writ petition No. 3683 (M/B) of 2011 : Avadh Ram Singh Dhangar Vs. State of U.P. and others, which was dismissed as withdrawn with liberty to seek his remedy elsewhere, as may be provided under law, vide order dated 21.4.2011. Thereafter, the petitioner had preferred an application dated 10.11.2014, which was rejected by the District Level Caste Scrutiny Committee headed by the District Magistrate, Lakhimpur Kheri vide order dated 22.1.2015.
(6) Hence the instant writ petition.
(7) Submission of the learned Counsel for the petitioner is that the document in evidence that has been adduced by him before district authority would go to show that the petitioner belongs to ''Dhangar' community, which is sub-caste of ''Gaderiya' community and stands notified as Scheduled Caste in State of U.P. and, therefore, interference is required by this Court.
(8) Countering the aforesaid submission, learned Standing Counsel, on the other hand, contended that the petitioner submitted an application on 24.8.2009 in Lokvani Centre, Lakhimpur, stating himself to be ''Dhanger'. On the said application, enquiry was conducted by the Area Revenue Inspector, who, after due enquiry, submitted its report dated 28.8.2009, stating therein that the caste of the petitioner has been found ''Gadriya' which comes under the Backward Category. Thereafter, on the basis of the enquiry report and after considering the matter, the District Magistrate has rejected the representation of the petitioner by means of a reasoned and speaking order dated 28.2.2011.
(9) Learned Standing Counsel has also submitted that while passing the order dated 28.2.2011, the District Magistrate has mentioned the report dated 27.2.2011 submitted by the Sub-Divisional Magistrate, Lakhimpur, wherein statements of various residents has also been recorded, stating that the petitioner belongs to ''Gadriya' caste which comes under backward category. Learned Standing Counsel in support of his submission has also placed reliance upon the Government Order dated 23.3.1994.
(10) We have examined the submissions of the learned Counsel for the parties and gone through the record.
(11) Pursuant to directive issued by the Apex Court in the case of Kumari Madhuri Patil Vs. Additional Commissioner Tribal Development: (1994) 6 SCC 241, the State Government on 05.01.1996 has provided the procedure that is to be adhered to in the matter of grant of Caste Certificates and other allied and incidental matters connected therewith, said decision in question is as follows:
"2- mijksDr ds dze esa eq>s ;g dgus dk funsZ'k gqvk gS fd ^^1994 ¼6½ ,l-lh-lh- 241 dqekjh ek/kqjh ikfVy cuke ,fM'kuy dfe'uj Vªkbcy^^ uked okn esa ek- mPpre U;k;ky; }kjk fnukad 2 flrEcj] 1994 dks ikfjr fu.kZ; rFkk mlds dze esa fjV ;kfpdk la0 2884 ¼,e0ch0½ vkQ 1995 Mk0 vkuUn izrki flag cuke m0iz0 jkT; o vU;^^ esa ek0 mPp U;k;ky; y[kuÅ ihB y[kuÅ }kjk ikfjr vkns'k fnukad 27 vDVwcj] 1995 ds vuqikyu esa mijksDr vf/kfu;e dh /kkjk&9 }kjk iznRr 'kfDr;ksa dk iz;ksx djds] 'kklu }kjk uhfr fu/kkZfjr djrs gq, fuEufyf[kr fu.kZ; fy;s x;s gS%& 1- vkosnu i= dk izLrqrhdj.k o tkfr izek.k i= tkjh fd;k tkuk vkj{k.k vuqeU;rk gsrq tkfr izek.k i= iznku djus ds fy, vkosnu i= mu {ks=] ftlesa lacaf/kr vH;FkhZ fuokl djrk gks vFkok tgka mldk tUe gqvk gks] ds ftykf/kdkjh ;k vfrfjDr ftykf/kdkjh ;k flVh eftLVsªV ;k ijxuk eftLVªsV vFkok rglhynkj dks lacaf/kr vH;FkhZ }kjk ;fn og o;Ld gks] vFkok mlds ekrk&firk ;k vfHkHkkod }kjk ;fn vko';d gks] izLrqr fd;k tk;sxk] ftlds lkFk jktif=r vf/kdkjh }kjk izekf.kr ,d 'kiFk i= ds lkFk vH;FkhZ dh tkfr] mitkfr] tutkfr] tutkrh; leqnk; ;k tutkrh;&leqnk; ds oxZ ;k Hkkx o vH;FkhZ ds ewy fuokl vkfn ls lacaf/kr ,sls fooj.k izLrqr fd;s tk;sxsa tks vuqlwfpr tkfr o vuqlwfpr tutkfr ds laca/k esa funs'kd] vuqlwfpr tkfr o vuqlwfpr tutkfr dY;k.k mRrj izns'k rFkk ukxfjdksa ds vU; fiNM+s oxksZa ds laca/k esa funs'kd fiNM+k oxZ dY;k.k] mRrj izns'k }kjk fofgr fd;s tk;sA 2- mijksDrkuqlkj ftl vf/kdkjh dks tkfr izek.k i= gsrq vkosnu i= izLrqr fd;k tk,xk] larq"V gksus ij ml vf/kdkjh }kjk tkfr izek.k i= tkjh fd;k tk;sxkA 3- tkfr izek.k i= dk lR;kiu&mijksDr O;oLFkk ds vuqlkj fuxZr fd;s x;s tkfr izek.k i= ds vk/kkj ij vkj{k.k dk nkok 'kklu }kjk xfBr dh x;h fuEufyf[kr LdzwVuh desVh }kjk fd;s tkus okys tkfr izek.k i= ds lR;kiu ds v/khu vuqeU; gksxk ftlds fy, mDr LdzwVuh desVh dks ;FkkfLFkfr Lo;a vH;FkhZ mlds ekrk&firk ;k vfHkHkkod }kjk 'kSf{kd vkfn laLFkkvksa esa izos'k vFkok fdlh in lsok esa fu;qfDr ds ;Fkk lEHko 6 ekl iwoZ vkosnu izLrqr fd;k tk;sxk%& 1- izeq[k lfpo] lekt dY;k.k foHkkx] m0iz0 'kklu v/;{kA 2- funs'kd vuqlwfpr tkfr o vuqlwfpr tutkfr] lnL; ¼mRrj izns'k vuqlwfpr tkfr;ka o vuqlwfpr tu tkfr;ka ds lEca/k esa½ ;k funs'kd] fiNM+k oxZ dY;k.k m0iz0 ¼ukxfjdksa ds vU; fiNM+s oxksZa ds laEcU/k esa½ 3- vuqlwfpr tkfr ds lEca/k esa izeq[k lfpo] lekt dY;k.k foHkkx }kjk ukfer vf/kdkjh ftUgs lEcfU/kr fo"k; dk vkR;f/kd Kku gks] vfrfjDr lnL;
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(12) Thereafter, as large number of issues connected with the veracity of caste certificates were coming before the Courts and the authorities, in order to streamline the situation, at Divisional Level, Appellate Forum, headed by Commissioner had been constituted, vide Government Order dated 27.01.2011, to resolve the disputes relating to the validity of caste certificate and thereafter to make things more transparent and smooth another Government Order dated 28.02.2011 has been issued, wherein District Level Caste Scrutiny Committee has been constituted with the District Magistrate as its Chairman and after decision of District Level Caste Scrutiny Committee, appeal has to lie before the Appellate Forum, headed by Commissioner. This entire exercise has been undertaken, pursuant to directives issued by this Court, firstly in the case of Taramuni Tharu vs. State of U.P. decided on 23.9.2010, Civil Misc. Writ Petition (M/B) No.1611 of 2008, culminating in issuance of Government Order dated 27.1.2011, and in the case of Tharu Shakti Samiti vs. State of U.P. (PIL) No.1396 of 2011, pursuant to directives issued, Government Order dated 28.2.2011 has been issued. Caste Scrutiny Committee has accordingly been constituted at different level, set up for specific purpose as it serves social and constitutional purpose to prevent fraud on the Constitution.
(13) Apex Court earlier also in the case of State of Maharashtra and others Vs. Ravi Prakash Babulalsing Parmar and another : (2007) 1 SCC 80 toeing the same lines has taken the view that Caste Scrutiny Committee is a quasi-judicial body and it has been set up for a specific purpose to prevent fraud on Constitution. Relevant extract of the aforesaid judgement is being extracted below:
"The Caste Scrutiny Committee is a quasi-judicial body. It has been set up for a specific purpose. It serves a social and constitutional purposes. It is constituted to prevent fraud on Constitution. It may not be bound by the provisions of Indian Evidence Act, but it would not be correct for the superior courts to issue directions as to how it should appreciate evidence. Evidence to be adduced in a matter before a quasi-judicial body cannot be restricted to admission of documentary evidence only. It may of necessity have to take oral evidence. Moreover the nature of evidence to be adduced would vary from case to case. The rights of a party to adduce evidence cannot be curtailed. It is one thing to say how a quasi-judicial body should appreciate evidence adduced before it in law but it is another thing to say that it must not allow adduction of oral evidence at all. It was furthermore not proper to suggest that all such bodies should be brought within the purview of Article 235 of the Constitution of India or only judicial officers should be appointed."
(14) Thereafter, Apex Court in the case of Dayaram Vs. Sudhir Batham and others: (2012) 1 SCC 333 has proceeded to mention that directives issued in the case of Madhuri Patil (Supra) were towards furtherance of the constitutional rights of Scheduled Caste/Scheduled Tribes, as the object of the same is to ensure that only genuine members of Scheduled Caste or Scheduled Tribe were afforded or extended the benefits as same are necessarily inherent to the enforcement of fundamental rights. In giving such direction, Apex Court neither re-wrote, the Constitution nor resorted to judicial legislation. The directions issued are intrinsic to fulfilment of fundamental right, and to ensure that eligible citizens entitled to affirmative action alone derive benefits of such action. Directions 1 to 15 have been reiterated to be valid and laudable, and it has been clarified that nothing contained in paragraph 15 shall be construed as placing any fetters in dealing with the writ petitions dealing with caste certificates and accordingly in reference of answer to question no. 2 has held as follows:
"22. Each scrutiny committee has a vigilance cell which acts as the investigating wing of the committee. The core function of the scrutiny committee, in verification of caste certificates, is the investigation carried on by its vigilance cell. When an application for verification of the caste certificate is received by the scrutiny committee, its vigilance cell investigates into the claim, collects the facts, examines the records, examines the relations or friend and persons who have knowledge about the social status of the candidate and submits a report to the committee. If the report supports the claim for caste status, there is no hearing and the caste claim is confirmed. If the report of the vigilance cell discloses that the claim for the social status claimed by the candidate was doubtful or not genuine, a show-cause notice is issued by the committee to the candidate. After giving due opportunity to the candidate to place any material in support of his claim, and after making such enquiry as it deems expedient, the scrutiny committee considers the claim for caste status and the vigilance cell report, as also any objections that may be raised by any opponent to the claim of the candidate for caste status, and passes appropriate orders. The scrutiny committee is not an adjudicating authority like a Court or Tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the scrutiny committee are also open to challenge in proceedings under Article 226 of the Constitution. Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate. As this Court found that a large number of seats or posts reserved for scheduled castes and scheduled tribes were being taken away by bogus candidates claiming to belong to scheduled castes and scheduled tribes, this Court directed constitution of such scrutiny committees, to provide an expeditious, effective and efficacious remedy, in the absence of any statute or a legal framework for proper verification of false claims regarding SCs/STs status. This entire scheme in Madhuri Patil will only continue till the concerned legislature makes appropriate legislation in regard to verification of claims for caste status as SC/ST and issue of caste certificates, or in regard to verification of caste certificates already obtained by candidates who seek the benefit of reservation, relying upon such caste certificates.
23. Having regard to the scheme for verification formulated by this Court in Madhuri Patil, the scrutiny committees carry out verification of caste certificates issued without prior enquiry, as for example the caste certificates issued by Tehsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self- affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper inquiry, such caste certificates will not call for verification by the scrutiny committees. Madhuri Patil provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one and a half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter."
(15) The Apex Court, once again in the case of Collector Bilaspur vs. Ajit P.K. Jogi, decided on 13.10.2011 and reported in AIR 2012 SC 44, has reiterated the situation, that once an issue is raised about social status of one's caste, then verification proceedings are required to be undertaken by duly constituted Scrutiny Committee, who shall undertake the exercise of verification/scrutiny of social status certificate. Such issues, on being raised are required to be answered and cannot be shut. Apex Court, once again in the case of Anand vs. Committee for Scrutiny and verification of Tribe claims and others, decided on 8.11.2011 and reported in AIR 2012 SC 314, has proceeded to law down broad parameters that has to be kept in view, while dealing with caste claim, as follows:
"(i) While dealing with documentary evidence, greater reliance may be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;
(ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
19. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case, the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim."
(16) On the parameter of the aforesaid Government Order dated 05.01.1996 and on the parameter of the dictum as has been laid down by the Apex Court from time to time, we are of the view that once full fledged mechanism has been provided for inclusion of caste, therefore, we are not entertaining the request of petitioner at this stage, but we leave it open to the petitioner to approach the Divisional Level Caste Scrutiny Committee headed by the Commissioner as Chairman for redressal of his grievance.
(17) In view of the above, it is provided that if the petitioner approaches the Divisional Level Caste Scrutiny Committee headed by Commissioner as Chairman within fifteen days from today, we hope and trust that the Divisional Level Caste Scrutiny Committee shall make an earnest endeavour to examine the issue and decide it in accordance with law, after affording opportunity of hearing to the petitioner, expeditiously, say, within a period of three months from the date of receipt of a certified copy of this order along with the application.
(18) The writ petition is, accordingly, disposed of.
Order Date :- 3.12.2018 Ajit/-