Karnataka High Court
Dr. Bharati Hiremath D/O Lingabasayya ... vs The State Of Karnataka & Ors on 4 July, 2013
Author: Mohan M.Shantanagoudar
Bench: Mohan M.Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 04TH DAY OF JULY 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN M.SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
WRIT APPEAL NO.50185 OF 2013 (GM-CC)
Between:
Smt Dr.Bharati Hiremath
D/o Lingabasayya Hiremath
Aged about 44 years
Occ:Doctor Govt. Ayurvedic and
Homeopathy Hospital
R/o Mahgaon Tq. and Dist. Gulbarga.
. . . Appellant
(By Sri Praveen Raikote for
Sri Sanjeev Kumar C.Patil, Adv.)
And:
1. The State of Karnataka
By its Secretary
Dept. of Social Welfare
Vikash Soudha
Bangalore.
2. The Superintendent of Police
CRE Cell, Gulbarga.
2
3. The Tahasildar
Gulbarga Taluk
Gulbarga.
4. The Police Inspector
Brahmpur Police Station
Gulbarga.
. . . Respondents
(By Sri Manvendra Reddy, Adv.)
This Writ Appeal filed under Section 4 of the
Karnataka High Court Act r/w Articles 226 and 227 of
the Constitution of India, praying to call for the relevant
records and set aside the order passed by the Single
Judge of this Hon'ble Court in Writ Petition
No.83003/2009 (GM-CC) dated 27.03.2013 by allowing
the writ appeal.
This coming on for Orders this day, Mohan
M.Shantanagoudar J., delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant and the learned Government Advocate for the respondents.
2. A caste certificate is stated to have been issued in favour of the appellant in the year 1990 to the effect that the appellant is belonging to Scheduled Caste. Pursuant to such caste certificate, the appellant was selected and appointed as Government Doctor by the 3 State Government. Subsequently, a circular came to be issued as per Annexure 'A' dated 30.06.2007 by the State Government, empowering the authorised Officer i.e., Tahsildar to review the caste certificates issued prior to coming into force of The Karnataka Scheduled Castes, Scheduled Tribes And Other Backward Classes (Reservation Of Appointments, Etc.) Act, 1990 (hereinafter referred to as 'the Act' for brevity). In the meanwhile, it appears a complaint also came to be lodged by third parties against the appellant before the Civil Rights Enforcement Cell (hereinafter referred to as 'CRE Cell' for short) for initiating action against the appellant and to cancel the caste certificate. It seems the CRE Cell has passed an order against the appellant regarding the caste certificate. Thereafter the CRE Cell directed the Tahsildar to cancel the caste certificate. Pursuant to such direction by CRE Cell, the Tahsildar has passed the order as per Annexure 'B' dated 28.01.2008 cancelling the caste certificate. The order at 4 Annexure 'B' was questioned by the appellant in W.P.No.83003/2009 before the learned Single Judge, which came to be dismissed.
3. Sri Praveen Kumar Raikote, learned Advocate for the appellant submits that the appellant was neither notified nor heard by the Tahsildar or by the CRE Cell in accordance with law and therefore, the impugned order Annexure 'B' is bad in the eye of law, inasmuch as it is in violation of the principles of natural justice. He further submits that the learned Single Judge has gravely erred in considering the matter on other points without verifying as to whether the notice is necessary to the affected party prior to passing the impugned order.
4. The circular at Annexure 'A' dated 30.06.2007 clearly reveals that the Tahsildar made review of/reopened the caste certificates issued prior to the commencement of the Act after notice to the persons who would be affected. Even without such a clause in the Circular, the rules of natural justice require that the 5 affected person should be notified and he should have opportunity to submit his case. In the matter on hand, admittedly, no notice is issued to the appellant and consequently, she is not heard in the matter either before the Tahsildar or before the CRE Cell. If it is so, the impugned order Annexure 'B' dated 28.01.2008 is liable to be quashed. Accordingly, the same stands quashed.
5. The learned Single Judge without considering the aforementioned position of law has dismissed the writ petition by observing that the jurisdiction of this Court under Article 226 of the Constitution of India is quite wide and unless a serious prejudice or irreversible prejudice or injustice is caused, she cannot have any grievance. The learned Single also observed that the appellant could have produced the records before the learned Single Judge in writ proceedings. The aforementioned observation by the learned Single Judge, in our considered opinion, is not just and proper. 6 Unless the appellant has got opportunity to produce evidence before the original authority, she cannot substantiate her case before this Court in writ proceedings. The proceedings on hand, do not strictly come under Article 226 of the Constitution of India, but come under Article 227 of the Constitution of India.
6. In view of the same, the order passed in W.P.No.83003/2009 also stands quashed. It is open for the State Level Committee constituted under Circular dated 06.05.2009 to initiate action against the appellant if it so chooses in accordance with law. It is needless to observe that the appellant shall be notified and shall be heard in the matter by the Committee before taking appropriate steps as per law.
SD/-
JUDGE SD/-
JUDGE JT/-