Jharkhand High Court
Samri Lal vs The State Of Jharkhand Through The Chief ... on 31 January, 2023
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1583 of 2022
Samri Lal, son of Late Mishri Lal Balmiki, resident of House No. 354, RIMS
Staff Quarter, P.O. & P.S.-Bariatu, District- Ranchi
..... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Ranchi
2. The Principal Secretary, Department of Scheduled Tribe, Scheduled
Caste, Minority and Backward Class Welfare, Government of Jharkhand,
Ranchi
3. The Member Secretary, Caste Scrutiny Committee-cum-Special
Secretary, Department of Scheduled Tribe, Scheduled Caste, Minority and
Backward Class Welfare, Government of Jharkhand, Ranchi
4. Suresh Kumar Baitha
.... .... Respondents
CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Kumar Harsh, Advocate
For the Respondent Nos. 1 to 3 : Mr. Ashutosh Anand, A.A.G.-III
For the Respondent No. 4 : Mr. Indrajit Sinha, Advocate
CAV on 10.01.2023 Pronounced on 31. 01.2023
Rajesh Shankar, J. :
Office is directed to correct the designation of the respondent no. 3 as "The Member Secretary, Caste Scrutiny Committee-cum-Special Secretary, Department of Scheduled Tribe, Scheduled Caste, Minority and Backward Class Welfare, Government of Jharkhand, Ranchi" in the cause title of the writ petition.
2. The present writ petition has been filed for quashing the order as contained in memo no. 1053 dated 01.04.2022 (Annexure-6 to the writ petition) issued under the signature of the Member Secretary, Caste Scrutiny Committee-cum- Special Secretary, Department of Scheduled Tribe, Scheduled Caste, Minority and Backward Class Welfare, Government of Jharkhand (the respondent no.3) whereby the Caste Scrutiny Committee (hereinafter referred as "the Committee") has cancelled Caste Certificate No. 6819 dated 31.10.2009 issued in favour of the petitioner by the Circle Officer, Town Circle, Ranchi treating the same to have been illegally issued.
3. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner, submits that the petitioner belongs to 'Bhangi (Mehtar)' caste which was included in the Schedule of the Constitution (Scheduled Castes) Order, 1950 (in short "the Order, 1950"), Part-III- Bihar by virtue of the Scheduled Castes and Scheduled Tribes List (Modification) Order, 1956 (in short "the Modification Order, 1956") and accordingly, Caste Certificate -2- No. 6819 dated 31.10.2009 was issued in his favour by the Circle Officer, Town Anchal, Ranchi. The petitioner is a member of Jharkhand Legislative Assembly from Kanke assembly constituency which is a reserved seat for Scheduled Caste. He was born and brought-up in Ranchi and had been contesting different elections since 1985 without objection raised by anyone. It is further submitted that at the time of filing nomination papers to contest the last assembly election from the said constituency, the petitioner's caste certificate was challenged by filing a writ petition being W.P.(C) No. 6502 of 2019 (Priya Ranjan Sahay Vs. The Election Commission of India & Others) claiming that the petitioner had suppressed the fact of his place of origin i.e., State of Rajasthan, however the said writ petition was dismissed by this Court vide order dated 4.12.2019 observing that since the election process was continuing and the dispute raised by the petitioner of the said writ petition was in relation to acceptance of nomination papers by the returning officer, the said writ petition was not maintainable. Subsequently, the respondent no. 4- Suresh Kumar Baitha filed a complaint before Caste Scrutiny Committee for cancellation of the petitioner's caste certificate alleging that the petitioner is not an original resident of Jharkhand, rather his father had migrated from the State of Rajasthan in search of livelihood. The respondent no.4 also objected the petitioner's election by filing an election petition being E.P. No. 03/2020 which is still pending adjudication before a Bench of this Court. It is also submitted that the respondent no. 3 issued various show causes notices to the petitioner which were replied by him asserting that he is a permanent resident of the State of Jharkhand and is legally entitled to take benefit of reservation in view of the fact that he belongs to the caste "Bhangi (Mehtar)" which was included in the list of scheduled castes by the Modification Order, 1956. The petitioner also produced some documents in support of his claim, however the Caste Scrutiny Committee, vide order as contained in memo No. 1053 dated 01.04.2022, cancelled his caste certificate treating the same to have been illegally issued.
4. Learned senior counsel for the petitioner further submits that as per the mandate of Article 341 (1) of the Constitution of India, the President of India with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification may specify the castes, races or tribes or parts thereof or -3- groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory. The Order, 1950 was promulgated by the President of India in exercise of the powers conferred by Clause (1) of Article 341 of the Constitution of India, which was notified by the Ministry of Law, Government of India on 10.08.1950 and published vide gazette notification dated 11.08.1950. "The Schedule" of the said Order provides State-wise lists of various castes included under the category of Scheduled Castes and an entry being 'Hari including Mehtar' has been mentioned at Serial No. 11 of Part-II-Bihar. Subsequently, in exercise of the powers conferred under Articles 341(2) and 342(2) of the Constitution of India, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 was promulgated which took the shape of "the Modification Order, 1956" published vide gazette notification dated 29.10.1956 whereby the Schedule of the Order, 1950 was modified by inserting certain castes under the category of Scheduled Castes. "The Schedule" of the Order, 1950, Part II-Bihar was substituted with Part III- Bihar and an entry being 'Hari', 'Mehtar' or 'Bhangi' was mentioned at Serial No. 12 as one of the Scheduled Castes in the erstwhile State of Bihar modifying the earlier entry of 'Hari including Mehtar' as was mentioned at Serial No. 11, Part II-Bihar of the Order, 1950. It is also submitted that the caste/sub-caste of "Bhangi" was included in the Order, 1950, Part-III- Bihar by virtue of the Modification Order, 1956 and therefore, the cut-off date of determining the residents and/or migrants for "Bhangi" caste would be 29.10.1956 and not 10.8.1950. The Ministry of Home Affairs, Government of India, vide circular dated 22.3.1977 addressed to the Chief Secretaries of all the State Governments/Union Territory Administrations, clarified that the residence of a particular person in a particular locality assumes a special significance and the term 'residence' has not been understood in the literal or ordinary sense of the word, rather it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality. Thus, a person, who is temporarily away from his permanent place of abode to earn livelihood or to seek education etc. at the time of issuance of the notification of the Presidential Order applicable in his case, can also be regarded as scheduled caste or scheduled tribe, as the case may be, if -4- his caste/tribe has been specified in that order in relation to his State/Union Territory but he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order. Another circular dated 22.02.1985 was issued under the signature of the Joint Secretary, Ministry of Home Affairs, Government of India whereby the Chief Secretaries of all the State Governments/Union Territory Administrations were directed to issue Schedule Caste/Schedule Tribe Certificates to the migrants of other States/Union Territories clarifying that a member of the scheduled caste/scheduled tribe category, who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc., will be deemed to be a Scheduled Caste/Scheduled Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. It is further submitted that the Principal Secretary, Department of Personnel, Administrative Reforms, and Rajbhasha, Government of Jharkhand, vide letter no. 6763 dated 5.8.2016, also clarified the relevant date of ascertaining residentship in the State of Jharkhand as well as the criteria and procedure for the purpose of issuance of caste certificate.
5. Learned senior counsel for the petitioner further submits that the procedure laid down in judgment rendered by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Another Vs. Additional Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241, has not been followed by the Caste Scrutiny Committee. Moreover, there is complete non-consideration of reply and the relevant documents filed by the petitioner. Paragraph- 13 of the said judgment lays down certain guidelines for the purpose of verification and cancellation of caste certificate which mandates for making inquiry by the Vigilance Officer regarding local and original places of residence of the person whose caste certificate is under challenge, however no such inquiry was conducted by the Vigilance Officer either at the local place of residence of the petitioner or at his original place of residence as alleged in the complaint. It is also submitted that the purported inquiry is completely sham and conducted in complete disregard and non- compliance of the dictum of Kumari Madhuri Patil (supra). The petitioner was also not provided proper opportunity to reply to the -5- enquiry report. In fact, no notice was issued to the petitioner in terms with paragraph-13 (6) of the judgment rendered in the aforesaid case. That apart, the petitioner in his reply raised the issue of unlawful inquiry, however, this aspect has also not been discussed and considered by the Committee.
6. According to learned senior counsel for the petitioner, it is an admitted position that the caste "Bhangi" was inserted vide the Modification Order, 1956, however the Committee has considered 10.08.1950 as relevant date for consideration of residentship of the petitioner. There is no conclusive evidence on record to suggest that the petitioner has migrated from the State of Rajasthan and thus, the finding of the Committee is not based on evidence, rather based on surmises and conjectures. The Circle Inspector, Bargai, Ranchi in his inquiry report submitted to the Circle Officer, Bargai, Ranchi regarding caste verification of the petitioner (Annexure-12 to the writ petition) has admitted the fact that the ancestors of the petitioner had settled in the State of Jharkhand prior to independence. The petitioner had filed copy of the Service Book of Gulabia Devi (maternal aunt of the petitioner) annexing with his reply to the show case notices in support of the fact that she was working as 'Safai Karmchari' in Ranchi Municipality since 05.03.1950, however the Committee did not bother to take note of the said document. The Committee also did not consider the document suggesting that the petitioner's cousin (son of the petitioner's uncle) namely Sri Sajna Ram was enrolled on the post of Animal Keeper in Ranchi University on 25.01.1955 and superannuated from service on 28.02.1999 and at present he is resident of Harmu Road, Kishore Ganj, Ranchi. Non- consideration of the aforesaid documents filed by the petitioner along with his reply to show cause notices clearly suggests that the order passed by the Committee suffers from patent illegality and the findings recorded inter alia are perverse. The State Government, vide letter as contained in memo no. 3540 dated 03.07.2004, issued under the signature of Commissioner and Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand to different authorities of the State Government, has given the guidelines for issuance of caste certificate according to which the same has to be generally issued on the basis of documents relating to land record/ panchayat/ nagar panchayat/ municipality/ municipal corporation/ -6- registered deeds, however if a person does not produce any of these documents, then the caste certificate can be issued on the basis of local inquiry. Following the said direction, the caste certificate of the petitioner was issued on 31.10.2009 by the Circle Officer, Town Circle, Ranchi after due inquiry. It is also submitted that it is not the case of the complainant (the respondent no. 4) that the petitioner had migrated from Rajasthan, rather the allegation is that his forefathers had migrated to the State of Jharkhand.
7. Learned senior counsel for the petitioner further submits that that the caste certificate was issued in favour of the petitioner in the year 2009 by the competent authority after due inquiry and therefore, any doubt created on the basis of a circular issued in the year 2019 has no connection with the said certificate. The Committee had no power to make inquiry with respect to the genuineness of the caste certificate of the petitioner which was issued after due inquiry in view of the judgment rendered by the Hon'ble Supreme Court in the cases of Dayaram Vs. Sudhir Batham and Others reported in (2012) 1 SCC 333 and Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Others reported in (2013) 4 SCC 465 and thus the inquiry made by the Committee is beyond jurisdiction and without any authority of law. It is also submitted that the Committee is only empowered to make enquiry and verification of those certificates which have been issued on self- affidavit. In the instant case, the Committee has neither examined any witness nor has sought any document to be exhibited or tendered by the complainant and thus the impugned order has been passed without any iota of evidence on record.
8. It is also submitted that the words "application for verification"
used in Paragraph 13(3) of the judgment rendered in the case of Kumari Madhuri Patil (supra) means an application for verification of the caste certificate filed by the objector before the Scrutiny Committee within six months from the date of its issuance. However in the present case, the caste certificate was issued on 31.10.2009 and the complaint was filed by the respondent no. 4 on 24.11.2020, hence it was not maintainable on that ground as well. Moreover, the scheme framed in the judgment of Kumari Madhuri Patil (supra) applies only in cases of seeking admission in educational institution or appointment to a post.
9. Learned senior counsel further submits that the Caste Scrutiny -7- Committee was not constituted in accordance with the direction given in the judgment of Kumari Madhuri Patil (supra). As per Para 13(4) of the said judgment, the Committee shall consist of three officers i.e.,
(i) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and
(iii) in the case of Scheduled Castes another officer who has intimate knowledge in verification and issuance of the social status certificates. However, in the present case, the committee consists of five members which is material error and thus the same vitiates the entire proceeding. In support of said argument, learned senior counsel puts reliance on a judgment rendered by learned Division Bench of this Court in the case of The Jharkhand Bijli Vitran Nigam Ltd. Vs. Vexcel Upkram Private Limited (L.P.A No. 242 of 2022).
10. Learned senior counsel for the petitioner by referring to Article 329(b) of the Constitution of India, submits that no election to either House of Parliament or to the House or either House of Legislature of a State can be called in question except by presenting an election petition and since in the present case, election petition is already pending for the same cause, parallel recourse taken by the respondent no.4 before the Committee is bad in law.
11. Learned senior counsel also puts reliance on the judgment rendered by the High Court Patna in the case of Rajani Kumari Vs. State Election Commission through its Secretary and Others reported in 2019 SCC OnLine Pat. 1715 wherein it has been held that a person pursuing an election petition on the ground of 'disqualification' that was existing on the date of election of the returned candidate, cannot simultaneously pursue a complaint before the State Election Commission as two parallel statutory remedies cannot be applied and proceeded with at the same time.
12. On the contrary, Mr. Ashutosh Anand, learned AAG-III appearing on behalf of the respondent nos. 1 to 3, submits that a complaint was filed by the respondent no.4 before the Committee on 24.11.2020 alleging that the petitioner had fraudulently obtained caste certificate of reserved category under scheduled caste of Jharkhand by furnishing false information with respect to his State of Origin and residence of his ancestors. It is further submitted that vide departmental letter no. 2385 -8- dated 26.11.2020, a preliminary report was sought from the Deputy Commissioner, Ranchi which was submitted by the said authority vide letter no. 235 dated 10.12.2020 and thereafter notice was issued to the petitioner along with a copy of the complaint and report submitted by the Deputy Commissioner, Ranchi. However, the petitioner asked for three months' time to file reply and in the meantime, Ranchi Municipal Corporation (RMC) and RIMS, Ranchi, vide departmental letters dated 01.04.2021 and 08.04.2021 respectively, were requested to send relevant records with respect to the residential status of the petitioner/his ancestors as well as service records of his father late Mishrilal Balmiki. Both RMC and RIMS however replied that they were unable to find any such document in their record. Thereafter, the Committee requested the Deputy Commissioner, Ranchi to submit its further report on specific point as to whether at the time of issuance of caste certificate on 31.10.2009, guidelines mentioned in various letters of Government of India as well as Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand were followed. In response to the said query, it was reported by the Deputy Commissioner, Ranchi that there was no record available in his office to show that the petitioner's family was residing within the territorial jurisdiction of the State of Jharkhand prior to the year 1950. The Deputy Commissioner, Ranchi further reported that the benefit taken by the petitioner on the basis of the caste certificate issued to him in the year 2009 was illegal as he did not fulfill eligibility criteria of being a member of Scheduled Caste of the State of Jharkhand. Having received the report of the Deputy Commissioner, Ranchi, the Committee sought reply from the petitioner, however he again requested for two months' time to submit reply. Subsequently, the petitioner, vide his letter dated 14.03.2022, submitted his response wherein instead of showing proof with respect of his claim of residentship status, he claimed that since the election petition being E.P No. 03 of 2020 was pending before this Court in which the caste certificate of the petitioner was also questioned, parallel proceeding for the same cause was liable to be stayed. Thereafter, the Committee, on examination of the petitioner's reply and taking legal opinion, observed that the election case is a separate and independent proceeding whereas the proceeding before the Committee cannot be treated as parallel proceeding. A last opportunity was then given to the petitioner to submit his reply. The petitioner -9- appeared before the Committee on 28.03.2022 and requested for staying the said proceeding. Thereafter, the Committee in terms with the proceeding of meeting dated 28.03.2022, decided to examine the validity of the caste certificate of the petitioner on the basis of the documents available on record and in course of examination, the Committee perused various letters issued by the Government of India as well as the Government of Jharkhand and came to a finding that a person belonging to a scheduled caste, who has migrated from the State of Origin to the other State for the purpose of seeking education and employment etc. will be deemed to be the scheduled caste of the State of Origin and therefore such person will not be entitled to avail the benefit of reservation in the State to which he/she has migrated. It is further submitted that the State Government, vide letter no. 3557 dated 18.10.2005 issued to different state authorities, had specified the procedure for issuance of caste certificates to the persons who had migrated from other State clarifying that they would not be entitled to derive benefit of reservation in the State of Jharkhand. It is also submitted that the petitioner failed to establish before the Committee that he is a member of the Scheduled Caste originating from the State of Jharkhand and is not a migrant. Similarly, he also failed to establish that his father had not come from the State of Rajasthan to the territory of the erstwhile State of Bihar (now Jharkhand). The Caste Scrutiny Committee is a fact finding committee constituted as per the law laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the said Committee upon consideration of materials available on record has come to a conclusion that the caste certificate issued to the petitioner in the year 2009 was not in accordance with law and thus, the same has been cancelled which is not required to be interfered by this Court under extraordinary writ jurisdiction.
13. Learned A.A.G.-III also submits that the Committee can go into the question as to whether a caste certificate has rightly been issued or not as also it can find out the correctness or otherwise of the claim with respect to issuance of a caste certificate. In support of the said contention, learned A.A.G.-III puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of State of Maharashtra & Others Vs. Ravi Prakash Babulalsing Parmar & Another reported in (2007) 1 SCC 80.
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14. Learned A.A.G.-III also puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Chandrabhan v. State of Maharashtra & Others reported in (2021) 9 SCC 804 wherein it has been held thus:-
"9. --------
69.2. Since the decision of this Court in [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] which was rendered on 2-9-1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for:
(a) the issuance of caste certificates;
(b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government;
(c) the procedure for the conduct of investigation into the authenticity of the claim;
(d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine;
(e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and
(f) Prosecution for a criminal offence".
15. Learned A.A.G.-III further submits that the Caste Scrutiny Committee is a fact finding committee constituted in terms with the direction of the Hon'ble Supreme Court of India as contained in paragraph-13(4) of the judgment rendered in the case of Kumari Madhuri Patil (supra) which is not bound by the provisions of the Indian Evidence Act. Placing reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Lillykutty Vs. Scrutiny Committee, SC & ST & Others reported in (2005) 8 SCC 283, learned A.A.G.-III also submits that the burden of proof is on the person who claims the status of a Scheduled Caste or a Scheduled Tribe.
16. Learned A.A.G.-III puts further reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Pournima Suryakant Pawar Vs. State of Maharashtra & Others reported in (2013) 3 SCC 690 and submits that the petitioner cannot challenge the finding of fact arrived at by the Committee. In Pournima Suryakant Pawar (supra.), their Lordships affirmed the order of the High Court and did not interfere with the finding of the Caste Scrutiny Committee observing that the conclusions recorded by the Scrutiny Committee were reasonable and fully supported by the material placed on record.
17. Mr. Indrajit Sinha, learned counsel appearing on behalf of the respondent no.4, submits that the petitioner and his ancestors originally
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belong to the State of Rajasthan and they are not the permanent residents of the State of Jharkhand. The father of the petitioner obtained employment in RIMS Ranchi on 03.07.1965 and thereafter his family migrated to the erstwhile State of Bihar (now Jharkhand). The wife of the petitioner namely Anita Jedia is currently employed in Primary Health Centre, Bakhtarpura, Rajasthan under the Scheduled Caste category of Rajasthan. Thus, the family of the petitioner is getting benefit of reservation in two States which is in derogation of the constitutional mandate. It is further submitted that letter dated 22.02.1985 issued by the Ministry of Home Affairs, Government of India as well as the letters dated 18.10.2005 and 05.08.2016 issued by the Department of Personnel, Administrative Reforms & Rajbhasa, Government of Jharkhand clearly stipulate that caste certificates can be issued to a migrant belonging to reserved category, who has migrated to other State seeking employment, education etc. on the basis of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin. He will be entitled to derive benefits from his State of Origin and not from the State to which he has migrated. The petitioner may be said to be a member of Scheduled Caste in the State of his origin i.e Rajasthan but having migrated to the State of Jharkhand, he cannot be treated as a person belonging to the Scheduled Caste of the State of Jharkhand. It is also submitted that in the Order, 1950 (amended vide the Modification Order, 1956), the castes namely "Bhangi and "Mehtar" have separately been included as Scheduled Castes for the State of Rajasthan, as mentioned at serial nos. 13 and 43 respectively in the Schedule of the said State. Similarly, the caste namely "Bhangi" or "Mehtar" is also included as Scheduled Caste for the erstwhile State of Bihar (now Jharkhand), as mentioned at serial no. 12 in the Schedule of the said State. Coincidently, it may be possible that a caste bearing the same nomenclature is specified as scheduled caste in two States but the consideration on the basis of which those have been specified may be totally different. The degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in a particular State as a Scheduled Caste does not necessary mean that, if there exists another caste bearing the same nomenclature in another State, the person belonging to the former will be entitled to the rights, privileges
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and benefits admissible to the members of Scheduled Caste of the later State.
18. Mr. Indrajit Sinha puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Bir Singh v. Delhi Jal Board & Others reported in (2018) 10 SCC 312 wherein it has been held as under:-
"20. There are various parameters by which a caste/race is recognised as 'Scheduled Caste/Scheduled Tribe' in a State/Union Territory or a particular part thereof. There is no doubt that before the Presidential Orders were issued under Article 341(1) or under Article 342(1), elaborate enquiries were made and only after such enquiries that the Presidential Orders were issued. While doing so, the Presidential Orders not only provided that even specified parts or groups of castes, races or tribes/tribal community could be Scheduled Castes/Tribes in a particular State/Union Territory but also made it clear that certain castes or tribes or parts/groups thereof could be Scheduled Castes/Tribes only in specified/particular areas/districts of a State/Union Territory. The reason for such an exercise by reference to specific areas of a State is that judged by standards of educational, social backwardness, etc. races or tribes may not stand on the same footing throughout the State. The consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes and Scheduled Tribes or Backward Classes in any given State depends on the nature and extent of the disadvantages and social hardships suffered by the members concerned of the class in that State. These may be absent in another State to which the persons belonging to some other State may migrate."
19. Mr. Indrajit Sinha, further submits that the time limit of period not exceeding two months as fixed in Kumari Madhuri Patil (supra) for making inquiry is directory not mandatory and thus on mere ground that the time limit has not been followed, the entire proceeding is not liable to be vitiated. In support of the said submission, he puts reliance on a judgment rendered by this Court in the case of Madhusudan Vs. The State of Jharkhand & Others reported in 2017 SCC OnLine Jhar 3038 wherein it has been held that the time limit prescribed by the Hon'ble Supreme Court is directive in nature depending upon various eventualities.
20. Mr. Indrajit Sinha further submits that the Election Case and case before the Caste Scrutiny Committee are different from each other and therefore, both are not alternative but parallel remedies.
21. In response to the argument of the learned counsel for the respective respondents, Mr. Anil Kumar Sinha, learned senior counsel for the petitioner, submits that the respondent no.4 and the State have relied upon the judgments of the State of Maharashtra where there is already a
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legislation i.e., the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 and in view of section 6 of the said Act, both claim and objection for Caste Certificate is to be decided by the Scrutiny Committee. However in the State of Jharkhand, no such legislation has been promulgated.
22. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the order as contained in memo no. 1053 dated 01.04.2022 passed by the Caste Scrutiny Committee whereby the caste certificate dated 31.10.2009 issued to him by the Circle Officer, Town Circle Ranchi has been cancelled observing that he is not the original resident of the State of Jharkhand.
23. The primary argument of the learned senior counsel for the petitioner is that the Committee had no jurisdiction to make an enquiry about the genuineness of the caste certificate of the petitioner since the same was issued by the competent authority after making due inquiry and verification as stipulated in the guidelines issued in this regard by the Government. In support of the said contention, learned senior counsel for the petitioner has put reliance on the judgments rendered by the Hon'ble Supreme Court in the cases of Dayaram (supra) and Ayaaubkhan Noorkhan Pathan (supra).
24. On the contrary, Mr. Indrajit Sinha, learned counsel for the respondent no. 4, by referring to paragraph- 36 of the judgment rendered in the case of Dayaram (supra), has contended that the Caste Scrutiny Committee may not have any role to go into the aspect of issuance of caste certificate only if there is a legislation and the caste certificate has been issued on due and proper inquiry. The conjunction "and" here means that both 'existence of legislation' and 'holding of inquiry' together will oust the jurisdiction of caste scrutiny committee. However, in the case in hand, there is no such legislation in the State of Jharkhand and therefore it cannot be said that the caste certificate of the petitioner was not challengeable before the Caste Scrutiny Committee.
25. To appreciate the contentions of learned counsel for the parties, I have gone through the judgment rendered in the case of Dayaram (supra) wherein two appeals were referred by two-Judges Bench to a larger Bench (Three Judges) doubting the legality and validity of the
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directions issued in Kumari Madhuri Patil (supra). Their Lordships held thus:
"35. 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 the Scheduled Castes and Scheduled Tribes were being taken away by bogus candidates claiming to belong to Scheduled Castes and Scheduled Tribes, this Court directed the 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 [(1994) 6 SCC 241] will only continue till the legislature concerned makes an 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.
36. Having regard to the scheme for verification formulated by this Court in Madhuri Patil [(1994) 6 SCC 241] the Scrutiny Committees carry out verification of caste certificates issued without prior enquiry, as for example, the caste certificates issued by Tahsildars 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 [(1994) 6 SCC 241] 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 [(1994) 6 SCC 241] should not continue in the absence of any legislation governing the matter."
26. In the case of Dayaram (supra.), a Bench of three judges of the Hon'ble Supreme Court affirmed the directions given in paragraph 13 of the judgment rendered in the case of Kumari Madhuri Patil (supra) except overruling the second sentence of direction no. 13 which was modified observing that intra-court appeal/letters patent appeal will be filed wherever writ petitions are filed challenging the orders of Caste Scrutiny Committee and heard by a Single Judge. Their Lordships also held that the entire scheme of Kumari Madhuri Patil (Supra.) will continue till the concerned legislature makes an appropriate legislation in this regard to verify the claims of caste status being scheduled
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caste/scheduled tribe and issuance of caste certificates or with respect to verification of caste certificates already obtained by candidates who seek the benefit of reservation relying upon the same. Their Lordships further held that if there is a legislation governing or regulating grant of caste certificates and if such caste certificates are issued after due and proper inquiry, the same will not be called for verification by the Scrutiny Committee.
27. I have also gone through the judgment rendered in the case of Ayaaubkhan Noorkhan Pathan(supra) wherein the caste certificate was issued to the appellant by the competent authority following due procedure of law and the vigilance cell attached to the Scrutiny Committee had also verified the said certificate and had found that the appellant belonged to 'Bhil Tadvi' (Scheduled Tribe). After 9 years, the respondent no. 5 of the said case filed a complaint before the Scrutiny Committee for recalling the said caste validity certificate but the Committee rejected the said complaint observing that it had no power to recall or to review a caste validity certificate. However, the High Court set aside the order of the Committee and remitted the matter for rehearing. Pursuant to the direction of the High Court, the Committee examined the matter wherein the appellant filed an application for recalling three witnesses for cross-examination as also sought time of 30 days for filing reply under Rule 12(8) of the Rules, 2003. Another application was also filed by the applicant to call the records from the office of the Tahsildar so as to ascertain the genuineness of the certificate impugned, however none of the said applications was decided and thus the matter travelled to the Supreme Court.
28. Their Lordships by following the judgment rendered in Dayaram (supra) held that the purpose of issuing directions in Kumari Madhuri Patil (supra) was only to examine those cases where caste certificates were issued without conducting any prior enquiry on the basis of self-affidavits regarding one's caste alone, and that the said directions were not at all applicable, where a legislation governing or regulating the grant of caste certificates existed, and where caste certificates were issued after due and proper enquiry. The caste certificates issued by holding proper enquiry, in accordance with duly prescribed procedure, would not require any further verification by the Scrutiny Committee. It was further held that the affidavit of the
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complainant could not have been relied upon as he was not examined before the Committee. In view of illustration (e) of Section 114 of the Evidence Act, the court should pronounce that the decision has been taken by the Scrutiny Committee in regular course and the caste certificate has been issued after due verification. Very strong material/evidence is required to rebut the presumption. Once the complainant had challenged the caste certificate, he was required to act seriously and to bring the material before the Caste Scrutiny Committee to show that the earlier decision was improbable or factually incorrect. It was also held that such a view stands fortified by a catena of decisions rendered by the Supreme Court holding that presumption is based on legal maxim omnia rite esse acta praesumuntur i.e., all acts are presumed to have rightly and regularly been done. Such a presumption can be rebutted by adducing appropriate evidence. The onus of rebuttal lies on the person who alleges that the act had not been regularly performed or the procedure required under the law had not been followed.
29. Thus, in view of judgment rendered in the case of Dayaram (supra), there are twin conditions to oust the jurisdiction of the Committee so as to make verification of a caste certificate i.e there is a legislation with respect to verification of caste certificate and the caste certificate has been issued after due and proper enquiry as envisaged in the legislation.
30. In the State of Jharkhand, there is no legislation governing the field of verification of the claims for caste status as Scheduled Caste/Scheduled Tribe and for issuance of caste certificates or with regard to verification of caste certificates already obtained by candidates who seek the benefit of reservation relying on such caste certificates.
31. It appears that the Commissioner-cum-Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand, vide letter dated 03.07.2004, provided guidelines for issuance of caste certificates and the same were effective at the time of issuance of caste certificate of the petitioner. It was mentioned in the said letter that caste certificate used to be generally issued on the basis of documents related to Land Records/ Panchayat/Nagar Panchayat/ Municipality/ Municipal Corporation/ Registered Deeds, however if any person who was not able to produce any such document, the caste would be determined with fairness on the basis of local inquiry. It was further
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mentioned in the said letter that for the purpose of employment and participating in competitive examination, the caste certificate issued by the officer below the rank of Sub-Divisional Officer would not be valid but for other purposes, the caste certificate issued by the Block Development Officer/Circle Officer/Sub-Divisional Welfare Officer would also be valid.
32. In the present case, on bare perusal of the caste certificate of the petitioner dated 31.10.2009, it appears that the same was issued by the Circle Officer, Town Anchal, Ranchi containing an endorsement - "on the basis of local inquiry, Samri Lal is 'Bhangi' by caste". It is however not clear as to whether the migration aspect was inquired while issuing the said caste certificate which was under scrutiny of the said Committee constituted pursuant to the judgment rendered in the case of Kumari Madhuri Patil (Supra.). Thus, I am of the view that merely because there is an endorsement of local inquiry on the caste certificate of the petitioner, the jurisdiction of the Committee to entertain the complaint doubting the genuineness of the petitioner's caste certificate on the ground of migration from other State cannot be ousted.
33. Accordingly, there is no substance in challenge made to the maintainability of the complaint before the Caste Scrutiny Committee regarding validity of the petitioner's caste certificate.
34. Coming to the next argument of the learned senior counsel for the petitioner to the effect that the direction contained in Kumari Madhuri Patil (supra) has not been duly followed by the Caste Scrutiny Committee and therefore the entire proceeding gets vitiated.
35. To counter the said argument of the learned Senior Counsel for the petitioner, Mr. Indrajit Sinha, learned counsel for the respondent no.4, submits that the procedure laid down in para 13 of the judgment rendered in the case of Kumari Madhuri Patil (Supra.) has to be followed by the Caste Scrutiny Committee only when someone applies for verification of the caste certificate so as to get his/her social status verified. It is further submitted that in case where application has been filed for cancellation of any caste certificate, then the Committee may device its own procedure.
36. Mr. Indrajit Sinha puts further reliance on judgment rendered by the Hon'ble Supreme Court in the case of Ritesh Tewari & Another Vs. State of U.P. & Others reported in (2010) 10 SCC 677 wherein it has been held that the power under Article 226 of the Constitution is
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discretionary and supervisory in nature. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court is not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The writ court has to balance competing interests keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. A writ petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner.
37. Learned counsel for the respondent no. 4 also puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Raj Kumar Soni & Another Vs. State of U.P. & Another reported in (2007) 10 SCC 635 wherein it has been held as under:
"17. In M.C. Mehta V. Union of India this Court, relying upon Venkateswara Rao observed: (SCC p. 244, para17) "The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law."
38. To appreciate the contention of the learned counsel for the parties, it is relevant to note that in the case of Kumari Madhuri Patil (supra), the Hon'ble Supreme Court has observed that some persons are getting admission on the basis of false social status certificates which deprive genuine Scheduled Caste, Scheduled Tribe or OBC candidates of their rights conferred by the Constitution. It is, therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude.
39. Having observed so, Their Lordships have streamlined the procedure for the issuance of social status certificates, their scrutiny and approval as contained in paragraph-13 which is as under:
"1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by
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such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer high-er in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the
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Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
40. Thus in the case of Kumari Madhuri Patil (supra), the Hon'ble
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Supreme Court has laid down detailed procedure for investigating the claim of social status of any person. It has been observed that there should be a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector will visit the local place of residence and original place from where the candidate hails and usually resides or in case of migration to a town or city, the Inspector will visit the place from which the said candidate hails. The vigilance officer should personally verify and collect all the facts of social status claimed by the candidate or the parents or guardian, as the case may be. He should examine the school records, birth registration, if any, as well as the parents, guardian or the candidate in relation to their caste etc. or such other persons who may have knowledge of social status of the candidate and then to submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribe relating to its peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Their Lordships have further held that if on receipt of the report from the vigilance officer, the Director concerned finds the claim for social status to be "not genuine" or 'doubtful' or "spurious" or "falsely or wrongly claimed", the said authority will issue show-cause notice to the candidate supplying a copy of the report of the vigilance officer and in case the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director concerned on receipt of such representation/reply shall convene meeting of the committee and the Joint/Additional Secretary as Chairperson of the Committee, shall afford reasonable opportunity to the candidate/parents/guardian to adduce all evidence in support of their claim. It has also been held that a public notice shall also be published in the village or locality so as to give opportunity to the concerned person for adducing evidence if he wishes to oppose such a claim and thereafter the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and then pass an appropriate order with brief reasons in support thereof.
41. Facts of the present case suggests that the said Committee on receipt of the complaint of the respondent no.4 sought inquiry report
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from the Deputy Commissioner, Ranchi vide departmental letter no. 2385 dated 26.11.2020 whereupon the Circle Officer, Badgai, Ranchi was directed to make an enquiry who after conducting the same submitted his report vide letter no. 896 dated 09.12.2020 which was sent to the Committee through the Deputy Commissioner, Ranchi and thereafter a notice was issued to the petitioner along with copies of the complaint and report. It further transpires that the Committee in the meantime also called for the records from the Ranchi Municipal Corproation and RIMS with respect to the residential status of the petitioner/his ancestors and service records of his father- Late Mishrilal Balmiki, however the same were not sent by both RMC and RIMS due to unavailability of such records. Thereafter the Committee requested the Deputy Commissioner, Ranchi to submit its further report on specific point as to whether at the time of issuance of caste certificate in the year 2009, the guidelines mentioned in various letters of Government of India as well as of Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand were followed. In response to the said query, it was reported by the Deputy Commissioner, Ranchi that no record was available in the office of the Circle Officer, Town Circle, Ranchi to suggest that the petitioner's family was residing within the territorial jurisdiction of State of Jharkhand prior to the year 1950. The Deputy Commissioner, Ranchi further reported that the benefit taken by the petitioner on the basis of caste certificate issued to him in the year 2009 was improper as he did not fulfill the eligibility criteria of being a member of Scheduled Caste belonging to the State of Jharkhand. The petitioner was then asked to submit reply and thereafter the Committee passed the impugned order cancelling his caste certificate.
42. Thus, It would be evident that the inquiry was not conducted by the vigilance cell as mandated in Kumari Madhuri Patil (Supra). Moreover, no inquiry was conducted in the State of Rajasthan from where the petitioner's father is allegedly said to have migrated.
43. Thus, the guidelines issued by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and reiterated in the case of Dayaram (supra) were not followed by the Committee as were required to do in absence of any legislation in this regard in the State of Jharkhand. In the case of Dayaram (supra), Their Lordships have held that directions issued in Kumari Madhuri Patil (supra) in exercise of
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power under Articles 142 and 32 of the Constitution of India are valid and laudable as those were made to fill the vacuum in the absence of any legislation so as to ensure that only genuine Scheduled Caste and Scheduled Tribe candidates may secure the benefits of reservation and the bogus candidates may be kept out. The argument of learned counsel for the respondent no.4 that the Committee is free to derive its own procedure cannot be accepted as the procedure has been duly elaborated by the Hon'ble Supreme Court and unless an appropriate legislation is made in the State, the Committee is bound to adhere to the same. That apart, in case of migration, an inquiry at the place from where the petitioner's father is alleged to have migrated, was necessary so as to verify the veracity of the allegation made in the complaint. The reason behind it is that mere migration is not sufficient to deny the benefit reservation, rather date of such migration is critical and of extreme importance. In view of letter dated 22.03.1977 issued by the Ministry of Home Affairs, Government of India, a certificate of scheduled caste or scheduled tribe is to be issued to a person who he is a permanent resident of any State on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality.
44. In the present case, the claim of the petitioner is that he is born and brought up in Ranchi, rather his ancestors had come to the erstwhile State of Bihar (now Jharkhand) in the year 1940 and since then they settled here and has thus claimed that his ancestors were the permanent residents of the State of Jharkhand before inclusion of his caste in the Order, 1950 (amended vide the Modification Order, 1956). Since the complainant (the respondent no. 4) had alleged that the petitioner's father had migrated to the State of Jharkhand for the purpose of employment, the vigilance cell was required to verify the year of migration of the petitioner's father/ancestors by collecting evidence from the original place of residence as well as the present place of residence. The impugned order however suggests that the said Committee has cancelled the caste certificate of the petitioner holding that he failed to show any documentary evidence to prove that he/his father was permanent resident of the State of Jharkhand prior to the year 1950. I am of the view that in terms with the judgment rendered in the case of Kumari Madhuri Patil (supra), the vigilance cell was required to collect evidence regarding the social status of the petitioner. Moreover,
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the guidelines dated 03.07.2004, 26.02.2015 and 25.02.2019 issued by the Government of Jharkhand for issuance of caste certificate of any person mandates that in absence of any documentary evidence, the caste certificate may be issued on local enquiry.
45. Moreover, the petitioner filed several documents before the Committee in support of his claim that his ancestors settled in the State of Jharkhand prior to the date on which his caste was included as scheduled caste in the Order, 1950 (amended vide the Modification Order, 1956). However, the Committee has not discussed those documents while passing the impugned order dated 01.04.2022. The Committee has also not discussed the report of the Circle Inspector, Badgain, Ranchi wherein it has been mentioned that during local inquiry, the members of 'Bhangi' caste claimed that they were brought here from Rajasthan during pre- independence period, however they failed to show any document in this regard.
46. The principles of natural justice does not only demand serving of show cause notice seeking explanation on the allegation levelled against the delinquent but also providing due opportunity of hearing to reply the same. Natural justice further demands passing of reasoned order discussing contentions raised in the reply of the delinquent.
47. The Hon'ble Supreme Court in the case of Asha Sharma vs. Chandigarh Administration and Others reported in (2011) 10 SCC 86, has held as under:-
"14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided."
48. In the case of NOIDA Entrepreneurs Association Vs. NOIDA & Others reported in (2011) 6 SCC 508, the Hon'ble Supreme Court
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has held as under:-
"39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law."
49. In the case of Man Singh Vs. State of Haryana & Others reported in (2008) 12 SCC 331, the Hon'ble Supreme Court has held as under:-
"20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of "fair play" and reasonableness."
50. Thus, an order of an administrative authority adversely affecting the right and interest of any party is required to be passed with sound and fair reasoning on due consideration of explanation submitted by the affected party in reply to the show cause notice. Such decision will also facilitate the higher forums to appropriately exercise their jurisdiction. It is not required that the reason should always be elaborate, rather it should be clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. When an administrative authority passes any order which is determinative in nature, it is the duty of such authority to exercise its discretionary power in conformity with the principles of fairness and good governance as well as such action should neither be suggestive of discrimination, nor be apparently giving an impression of biasness.
51. In view of the aforesaid discussion, it emerges that the impugned order also suffers from violation of the principles of natural justice.
52. So far as challenge to the constitution of the Committee is concerned, it appears that the Committee consists of six members i.e.
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(i) Member (Representative), Joint Secretary, Jharkhand State Backward Class Commission, Ranchi, (ii) Member, Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand, (iii) Member Secretary (Special Secretary), ST, SC, Minority and Backward Class Welfare Department, Jharkhand Ranchi, (iv) Member, Adivasi Welfare Commissioner, Jharkhand Ranchi, (v) Director, Tribal Welfare Research Institute, Ranchi and (vi) Chairman-cum-Secretary, ST, SC, Minority and Backward Class Welfare Department Jharkhand Ranchi. In the case of Kumari Madhuri Patil (supra), it has been stipulated that the Committee shall consist of three members. The idea behind constitution of three members committee seems to include the experts of different fields so as to take just decision properly appreciating the complexity of caste system and tribal features. The constitution of the present committee suggests that the said purpose is fulfilled. On mere ground that three more persons have been included in the Committee, the same cannot be said to be illegal. In the Judgment rendered by learned Division Bench of this Court in L.P.A No. 242 of 2022, facts and circumstance were entirely different from the present case. In the said case, the Jharkhand Micro, Small & Medium Enterprises Facilitation Council was consisting of eight members including chairman which was in the teeth of the provision of Section 21 of the Micro, Small & Medium Enterprises Development Act, 2006 which provides that the Council shall consist of members not less than three but not more than five. However, in the case of Kumari Madhuri Patil (supra), no such outer limit has been fixed by Hon'ble Supreme Court. Thus, the case cited by the learned senior counsel for the petitioner will not be applicable in this case.
53. Next question posed by learned senior counsel for the petitioner is that the Committee was wrong in shifting the initial burden of proof to the petitioner by asking to show documentary evidence that he settled in the State of Jharkhand prior to the year 1950 as per letter dated 05.08.2016 issued by the respondent no. 2. Learned senior counsel refers Section 101 of the Evidence Act and submits that since the respondent no.4 alleged in the complaint that the petitioner's father migrated from Rajasthan to erstwhile State of Bihar (now Jharkhand) in search of employment, the onus to prove the said fact was upon him by adducing sufficient evidence, however the respondent no.4 failed to discharge the
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said onus. Learned senior counsel by referring to para 45 of the judgment of the Hon'ble Supreme Court rendered in the case of Ayaaub Khan (supra), submits that the onus of rebuttal lies upon the person who alleges that the act has not been regularly performed or the procedure required under the law has not been followed.
54. Mr. Indrajit Sinha, learned counsel for the respondent no. 4, by referring Section 106 of the Evidence Act submits that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. It is also submitted that the petitioner cannot put the burden on the complainant to prove that his forefathers migrated to the erstwhile State of Bihar (now Jharkhand).
55. In reply to the said argument, learned senior counsel for the petitioner puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Anil Rishi Vs. Gurbaksh Singh reported in (2006) 5 SCC 558 wherein the plaintiff had alleged that the sale deed was forged and fabricated and the trial judge instead of placing initial onus of proof on the plaintiff, asked the defendant to disprove the said allegation on the ground that it was always difficult to prove invalidity of a document. The matter having travelled to the Hon'ble Supreme Court, it was held that difficulty which may be faced by a party to the lis can never be the determinative factor to ascertain as to on whom the burden of proof would lie.
56. I am of the view that since the caste certificate of the petitioner had once been issued on the basis of guidelines as contained in letter dated 03.07.2004 of the Commissioner-cum-Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand, the presumption lies that the same had been legally issued and the said presumption was rebuttable by the party who intended to controvert it. Since the complaint was filed by the respondent no.4 challenging the caste certificate of the petitioner, the initial burden was on him to prove the allegation. In Kumari Madhuri Patil (supra) also, it has been observed that on an application for verification of caste, the vigilance cell has to verify the fact and collect evidence and if on receipt of the report of vigilance cell, the concerned Director finds that the caste certificate is not genuine, then only show cause notice is required to be issued to the person whose caste certificate is under verification.
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57. In the case in hand, the preliminary inquiry was conducted at the level of the Circle Officer who reported that the petitioner's caste certificate was issued on 31.10.2009. He further reported that no evidence was found to the effect that the petitioner or his ancestors were residing in the State of Jharkhand prior to the year 1950. However, the Circle Officer could not ascertain as to when and from which village/town/district of Rajasthan, the petitioner's ancestors had migrated to the State of Jharkhand. Thus, the preliminary inquiry made by the Circle Officer was also neither proper nor in conformity with the judgment rendered by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra).
58. In view of the aforesaid discussion, the impugned order dated 01.04.2022 passed by the Caste Scrutiny Committee cannot be sustained in law and thus the same is quashed. The matter is remitted to the Cast Scrutiny Committee with following directions:-
(i) The concerned department of the Government shall constitute a Vigilance Cell in conformity with the guidelines issued by the Hon'ble Supreme Court in Kumari Madhuri Patil (supra).
(ii) The Vigilance Cell will conduct a preliminary inquiry on the complaint of the respondent no.4 and submit a report to the Committee strictly following the procedures laid down in the judgment rendered in the case of Kumari Madhuri Patil (supra).
(iii) If it is found from the report that the caste certificate of the petitioner is illegal, the Committee will issue show cause notice to the petitioner to submit reply, otherwise the Committee will drop the proceeding.
(iv) The Committee, after receiving reply of the petitioner (if the situation so warrants), will provide adequate opportunity to the petitioner as well as the respondent no.4 to adduce their respective evidences and to rebut the rival claims.
(v) Thereafter, the Committee will pass final order on affording due opportunity of hearing to the parties.
59. The Writ petition is disposed of with aforesaid observations and directions.
60. I.A. No. 8921 of 2022 also stands disposed of.
Ritesh/-AFR (Rajesh Shankar, J.)