Karnataka High Court
Ananya R Shetty vs The State Of Karnataka on 9 November, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09th DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO. 3701/2015 (GM-CC)
BETWEEN:
ANANYA R SHETTY
D/O RATHNAKAR SHETTY,
AGED ABOUT 18 YEARS,
R/AT AGRAHARA CHANTHARU
VILLAGE,
BHAHMAVARA UDUPI TALUK,
AND DISTRICT-576213 ... PETITIONER
(BY SRI K. SHASHIKIRAN SHETTY, SR. COUNSEL
FOR MS. FARAH FATHIMA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY DEPARTMENT
OF SOCIAL WELFARE,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. DEPUTY COMMISSIONER
UDUPI TALUK AND DISTRICT,
UDUPI-576213
3. TAHSILDAR
TALUK AND DISTRICT,
UDUPI-576213.
2
4. DISTRICT BACKWARD CLASSES
AND MINORITY OFFICER,
UDUPI TALUK AND DISTRICT,
UDUPI-576213.
5. NATIONAL INSTITUTE OF TECHNOLOGY
NH 66, SRINIVAS NAGAR,
SURATHKAL,
MANGALURU-575025,
REPRESENTED BY ITS
PRINCIPLE ... RESPONDENTS
(BY SMT B.P. RADHA, AGA FOR R1-4;
SRI. P.S. RAJAGOPAL. SR. COUNSEL FOR
SRI. JAYANTH DEVKUMAR FOR SRI. K.PUTTE
GOWDA, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED 31.12.2014 PASSED BY THE DEPUTY
COMMISSIONER THE R-2 IN SETTING AISDE THE ORDER
DATED 25.6.2014 PASSED BY THE R-3 AND CANCELLING
THE OBC CERTIFICATE OF PETITIONER STATING THAT
THE PETITIONER BELONGS TO BUNT COMMUNITY AND
NOT NADAVA COMMUNITY VIDE ANNEXURE-A.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioner was allotted a seat in Bachelor of Engineer Course in Information and Technology Branch under the category of Other Backward Classes (for short 'OBC') and was allotted a seat in fifth respondent college. Petitioner came to be admitted to the said course on the basis of caste and income certificate dated 25.06.2014 produced by petitioner whereunder it was certified that petitioner belonged to Nadora/Nadvar/Nadava community which is recognized as backward class under the Government of India list and as such she was admitted to the course in fifth respondent-college on 23.07.2014 under OBC category.
2. As per the extant rules of fifth respondent, to ascertain the caste status of the petitioner, fifth respondent referred the caste certificate to the District Caste Verification Committee. The said Committee after holding enquiry by order dated 31.12.2014 Annexure-A concluded that petitioner belongs to Bunts community which does not figure in the OBC list as notified by the 4 Central Government and as such it was ordered to cancel the caste certificate dated 25.06.2014 issued by the Tahasildar, Bramhavar whereunder it was certified that petitioner belonged to Nadora/Nadvar/Nadava caste.
3. Hence, a show cause notice dated 22.01.2015 Annexure-B came to be issued to the petitioner by fifth respondent calling upon her to show cause as to why her admission to B-Tech program/course should not be cancelled since caste certificate dated 25.06.2014 issued to her has been cancelled. At the request of the petitioner extension of time sought for to reply to the show cause notice was granted by extending the time for eight days with effect from 30.01.2015.
4. Immediately thereafter, petitioner has approached this Court by filing the present writ petition, contending inter alia that impugned order passed by second respondent is without application of mind; 5 documents furnished by the petitioner to support her claim that she belonged to Nadora/Nadvar/Nadava caste, which is classified as 'OBC' by Central list has not been considered in proper perspective; based on a mahazar report dated 05.11.2014, conclusion has been drawn by second respondent that petitioner belongs to Bunt Community; all the documents submitted by petitioner has not been considered at all; petitioner belongs to Bunt @ Nadvara community and similarly placed candidates belonging to Bunt @ Nadavar community has been issued with OBC certificate and rejection of the petitioner's claim for issuance of such certificate is discriminatory in nature; this Court on several occasions had directed the Authorities to consider the applications of the applicants belonging to Bun @ Nadavara community and hence similar direction requires to be issued to third respondent to restore the certificate dated 25.06.2014 issued in favour of the petitioner certifying that she belongs to OBC category. It is also urged in the petition that second 6 respondent being an instrumental of state ought to have acted in accordance with in transparent, fair and just manner and the mahazar report being the basis for cancellation ought not to have been relied upon as it has been drawn behind the back of the petitioner and it has been drawn without intimation to the petitioner or her family members and as such it is in violation of principles of natural justice. On these amongst other grounds urged in this writ petition, prayer made in the writ petition is sought to be granted. This Court stayed the operation of the order dated 31.12.2014 Annexure-A by exparte interim order dated 29.01.2015.
5. On respondents being notified first respondent - State has filed its statement of objections on 23.07.2015 contending inter alia that petitioner had submitted an application to issue OBC certificate for her education purposes on 17.03.2014 to Special Tahasildar, Bramhavar claiming that she belongs to Nadava community and her application she has entered her caste as Bunt/Nadava. It is also stated that 7 petitioner had enclosed the transfer certificate issued by Tarlubalu Central School, Davangere and Village Accountant of Chantaru had drawn the mahazar report and recorded the statement of petitioner's mother where she admitted that she belongs to Bunt caste and the Special Tahasildar Bramhavar had issued an endorsement on 14.05.2014 to the petitioner that Bunt/Nadava is not listed in OBC list. It is further contended that the petitioner had approached this Court in W.P. No.25977/2014 and this Court by order dated 11.06.2014 had directed the second respondent therein i.e., Special Tahasildar, Bramhavar to reconsider the application of the petitioner for issue of OBC certificate by keeping in view the observations made by this Court and the Special Tahasildar without considering her application and documents has issued OBC certificate on 25.06.2014 under which it is certified that petitioner belonged to Nadora/Nadvar/Nadava caste as mentioned at Sl.No.122 of OBC list issued by Government of India. It 8 is also further contended that the father and mother of the petitioner belonged to Bunt caste and Bunt @ Nadava caste will not come under the list of State or Central Government. It is specifically contended that at Sl.No.122 of OBC caste list there is entry as Nadora, Uppa Nadora, Thorke Nadora, Nadora/Nadvar/Nadava caste and under Category 2A of Backward Classes list issued by State Government, there is Nadava caste and Bunt caste is under Category 3B. It is also stated there is no entry of Bunt caste in Central OBC list.
6. It is further contended that even in the school records submitted by the petitioner herself, her caste is mentioned as Bunt and so also the mahazar report dated 06.11.2014. Hence, defending the impugned order passed by second respondent and contending that it is a speaking order passed after verifying the documents produced by the petitioner and contending it does not suffer from any infirmity whatsoever, respondents 2 to 4 have prayed for dismissal of the writ petition.
9
7. Fifth respondent has also filed its statement of objections and also an application for vacating interim stay. It is contended by sixth respondent that admission of petitioner was provisional against a seat reserved for other OBC and for verification of the caste certificate submitted by the petitioner it was referred to a District Caste and Income Verification Committee and said committee after holding enquiry by impugned order have concluded that petitioner belongs to Bunt's community which does not figure in the list of OBC list notified by the Central Government. It is further contended that on receipt of the impugned order dated 31.12.2014 fifth respondent had issued show cause notice to the petitioner to reply to the same and instead of replying the show cause notice, petitioner has prematurely filed the present writ petition.
8. It is also contended that when petitioner is not contending that the caste 'Bunt' is treated as a synonym of Nadora/Nadvar/Nadava caste and as such 10 petitioner is not entitled to be admitted against a seat reserved for other backward classes in the fifth respondent institute.
9. It is also contended that petitioner has been changing her caste status to suit her convenience and petitioner had obtained admission to Pre-University Course claiming that she belonged to the caste 'Bunt' which is treated as OBC - Group IIIB in the State list and when it came to the admission of the fifth respondent institute she has produced a certificate that she belongs to Nadava caste which is listed as OBC under the Central List.
10. It is also contended that against an order passed by the District Caste Verification Committee appeal lies to the Director, Backward Classes Department and as such writ petition is not maintainable. Contending that the list notified by the Government of India relating to OBC it would disclose at Sl.No.122 after having undergone modification it reads 11 as "NADORA, UPPUNADOR, UPANADOR/ UPANADAVAR, TORKE, NADOR, NADOR/ NADAVAR/ NADAVA" and it did not make any change and 'BUNTS' is not a caste classified as OBC for the purpose of reservation in Central Educational Institutions. Hence, contending Courts would not declare synonyms as one and it is outside the purview of the Court. Hence, they fifth respondent has prayed for dismissal of thew writ petition.
11. Petitioner has filed memo dated 15.04.2016 enclosing therewith 11 documents and a memo dated 22.06.2016 enclosing the research Article on Nadavas dated 16.01.2010 authored by Ravindra Mundkur & Hosabettu Vishwanath to contend that Nadora/Nadvar/Nadava is equivalent to Bunt.
12. I have heard the arguments of Sriyuths Shashikiran Shetty learned Senior counsel appearing for petitioner and Smt.B.P.Radha, learned Additional Government Advocate appearing for respondents 1 to 4 12 and Sri.P.S.Rajagopal, learned Senior Counsel appearing for fifth respondent.
13. Reiterating the grounds urged in the writ petition Sri. Shashikiran Shetty learned Senior counsel appearing for petitioner would contend that at the first instance the certificate dated 25.06.2014 came to be issued by the jurisdictional Tahasildar certifying thereunder that petitioner belongs to Nadora/Nadvar/Nadava community which is recognized as backward class under Sl.No.122 of the OBC list published by Government of India which was produced by the petitioner for admission in the fifth respondent institute though petitioner had secured admission for B.E course at PES Engineering College, Bengaluru and the said certificate which was issued to the petitioner was based on an enquiry conducted by the jurisdictional Tahasildar and it did not suffer from any error and as such the third respondent could not have set aside the same that too on the basis of mahazar 13 report dated 05.11.2014, which has resulted in the impugned show cause notice being issued by fifth respondent. He would also elaborate his submission by contending that the entire family history of the petitioner would disclose that petitioner belonged to Nadava's and as such action of the second respondent canceling the OBC caste certificate date 25.06.2014 issued by the petitioner is liable to be set aside and said caste certificate dated 25.06.2014 be restored to the petitioner. He would submit that by virtue of interim order petitioner has continued and completed the course not only successful but also with good merit and at this juncture if petitioner's admission is allowed to be set aside it would not result in great hardship to the petitioner but would also jeopardize her career. He would also submit that the alleged mahazar report dated 05.11.2014 Annexure-B is without noticed to petitioner or her parents, it is one sided, prepared behind the back of the petitioner, no opportunity was given to petitioner to substantiate her claim and as 14 such the impugned order is liability to be and prays for allowing the writ petition. In support of his submission he has relied upon the unreported judgment of the Division Bench of this Court rendered in W.A.No.2305/2014 (GM) dated 24.03.2015.
14. Per contra, Sri.P.S.Rajagopal learned Senior counsel appearing for fifth respondent would support the impugned order and contends that the petitioner has been issued with a shows cause notice and has been called upon to reply to the same and without submitting her reply, writ petition has been filed prematurely and as such it is liable to be rejected.
15. He would also submit that status of caste equivalence can be declared by the National Commission for backward classes set-up under the provisions of the National Commission for Backward Classes Act, 1993 which Commission possess the power to entertain, examine and recommend upon request for 15 inclusion and complaints of over inclusion and under inclusion in the list of OBC and the declaration of synonyms being a matter which falls within the domain of the Government would be outside the purview of the courts jurisdiction and as such the claim of the petitioner to declare the caste Bunts as equivalent to Nadora/Nadvar/Nadava caste is impermissible and as such the writ petition is liable to be rejected.
16. He would also elaborate his submission by contending that she belongs to the caste Bunt and it is equivalent to Nadora/Nadvar/Nadava caste which scrutiny would not be undertaken by the writ Court and there is no violation of natural justice. He would rely upon the following judgments in support of his arguments and prays for rejection of the writ petition.
(i) Dharmpal Satypal Limited vs.
Deputy Commissioner, Central Excise,
Gahuati -(2015) 8 SCC 519;
(ii) B.K.Khawas vs. Union of Indian and others - (2016) 8 SCC 715; and 16
(2017) 8 SCC 670.
17. Having heard the learned Advocate appearing for the parties and perusal of the pleadings and the records it would emerge therefrom that petitioner on completion of her 12th standard from Sri.Tarlabalu Central School, Davangere during the academic year 2013-14 had sought for admission to engineering course by appearing for the admission tests conducted by various authorities. She had also applied for JEE Architect and had secured an All India Rank of 68509 and was allotted a seat under OBC Category at the fifth respondent institute for the Branch of Information Technology.
18. Having applied for grant of OBC certificate on 17.03.2014 from the office of Tahasildar Brahmavar and contending that her father belong to Nadava Community, which is included in the Central List at 17 Sl.No.122 under the OBC category, her application was said to have been referred to Village Accountant who is said to have submitted a report that she belonged to Bunt Community and contending that the said report of the Village Account was without verification, she approached this court in W.P.No.25977/2014, since her application dated 17.03.2014 was rejected on 14.05.2014. This Court by order dated 11.06.2014 - Annexure-P allowed the writ petition directed the second respondent therein to reconsider the applicant of the petitioner keeping in view the observations made by Court and on perusing the documents furnished by the petitioner in support of her application. Hence, the Tahasildar is said to have reconsidered her application and issued a certificate on 25.06.2014 - Annexure-C certifying thereunder that petitioner belongs to Nadora/Nadvar/Nadava community which is recognized as backward class under Sl.No.122 of the OBC list published by Government of India.
18
19. Accordingly, petitioner's application with ranking of 68509 for admission to the Regional Engineering Colleges came to be considered and after counseling she was allotted a seat at fifth respondent institute on 23.07.2014 vide Annexure-R5/1.
20. On 01.09.2014 Annexure-S fifth respondent addressed a letter to the Additional Deputy Commissioner, Udupi to scrutinize and verify the OBC certificate dated 25.06.2014 submitted by the petitioner for seeking admission under OBC category. Pursuant to the same fourth respondent has issued notice to the petitioner on 01.10.2014 Annexure-T calling upon petitioner to appear with her parents on 15.10.2014 for verifying petitioner's caste and called upon the petitioner to produce the documents as specified or indicated in the said notice. On account of petitioner appearing for internal examination in the fifth respondent - institution wherein she was pursuing her B.E course, her parents requested for extension of time 19 upto 17.10.2014 and on the said date, petitioner along with her parents appeared and submitted the documents sought for in the notice dated 01.10.2014. Fourth respondent again called upon the petitioner to appear on 17.12.2014 for further enquiry in support of her caste by issuing notice dated 11.12.2014 Annexure-U and petitioner appeared and submitted the following documents.
"(i) Copy of the School admission
records of petitioner's father
where it has been stated as
Nadava Caste
(ii) Copy of the certificate dated
17.03.2014 issued by the
Bantara @ Nadavara Sangha at
Brahmavara, which is a
registered society under
Karnataka Societies registration
act established for the welfare of
Nadava Community.
(iii) Copy of the family partition dated 30.12.1976 by petitioners grandparents, wherein the caste has been mentioned as Nadava community.
(iv) Copy of the Ration Card."
20
21. Second respondent has thereafter cancelled the OBC certificate dated 25.06.2014 issued by third respondent by impugned order dated 31.01.2014 Annexure-A on the ground that the petitioner has not submitted any documents in support of her caste. The finding recorded by the second respondent is erroneous and contrary to the factual matrix. As could be seen from the records, petitioner in reply to the notice dated 01.10.2014 has appeared before the fourth respondent and submitted various documents on 17.10.2014. However, on 05.11.2014 fourth respondent is said to have conducted an equerry and visited the Chantaru village and has drawn a mahazar neither the petitioner was notified of such inspection or enquiry nor the petitioner has been furnished with the copy of the said mahazar to enable her to reply to the same. In fact the mahazar dated 06.11.2014 which has been drawn by the fourth respondent has been referred to under the impugned order dated 31.12.2014 Annexure-A by the 21 respondents to arrive at a conclusion that the petitioner has not produced documents to substantiate her caste and the mahazar dated 06.11.2014 would reflect that petitioner belonged to Bunt community and not Nadora/Nadvar/Nadava community. Thus, where a decision arrived at visits the person with civil consequences, then principles of natural justice requires to be followed at all stages. When a finding is being recorded under an order and same is based on a report or such report is being used against the petitioner or aggrieved then naturally the copy of the report, reliance of which has been placed by the authority passing the impugned order requires to be furnished, as otherwise it would be in violation of principles of natural justice. In that view of the matter the doctrine of 'useless formality theory' would not be applicable and contentions raised by the learned Senior counsel stands rejected.
22
22. In the instant case the report of the fourth respondent dated 06.11.2014 is based on a mahazar said to have been drawn by the said authority and forwarded to the second respondent and the first stage of violation of natural justice has occurred while not issuing notice to the petitioner of such proposed mahazar being drawn and the second stage of violation of principles of natural justice has occurred at second respondent level, by not providing a copy of the said report to the petitioner to have her say in that regard or to produce any material in rebuttal to the same and thereby the impugned order is vitiated and liable to be set aside.
23. Apart from the aforesaid factual matrix, it is also noticed that when petitioner has appeared before the second respondent on 17.12.2014 and had furnished the documents as already noticed herein above, it was incumbent upon the respondent to have considered those documents and should have passed 23 appropriate orders thereon. Non consideration of the documents produced by the petitioner before the second respondent which is found in the original records has also resulted in impugned order passed and as such it is liable to be set aside on that ground also.
24. That apart petitioner has placed on record several documents along with the memo dated 15.04.2016 and 22.06.2016 to substantiate her claim that she belongs to Nadava community. As rightly contended by Sri.P.S.Rajagoapl learned senior counsel appearing for respondent no.5 that declaration of synonyms is not in the domain of the courts and it is for the appropriate authorities to decide as to which caste the petitioner belongs to and as to whether the said caste would fall within any of the category enumerated in the concerned list or not. Said exercise is required to be under taken by the second respondent and without the finding recorded in that regard, the prayer sought for by the petitioner to restore the caste 24 certificate dated 25.06.2014 would not arise and based on the report of the second respondent, fifth respondent would be at liberty to take appropriate steps and petitioner would be at liberty to file reply to the show cause notice issued by the fifth respondent dated 22.01.2015 Annexure-V and pass appropriate orders thereon.
25. Hence, I proceed to pass the following:
< ORDER
(i) Writ petition is hereby allowed in part.
(ii) Order bearing No.BCMO/ZP/CR8/2014-15 dated 31.12.2014 Annexure-A is hereby quashed and matter/proceedings is remitted to the file of second respondent to adjudicate the claim of the petitioner for issuance of caste certificate and/or restoration of the caste certificate dated 25.06.2014 by affording opportunity to the petitioner and 25 considering all relevant documents which the petitioner may place in support of her claim;
(iii) Petitioner would be at liberty to place all such documents in support of her claim for restoration of the caste certificate dated 25.06.2014;
(iv) Second respondent shall expeditiously conclude the proceeding at any rate within an outer limit of three months from the date of receipt of certified copy of this order;
(v) Fifth respondent on receipt of report from
the second respondent shall issue fresh
show cause notice to the petitioner if
required and proceed to pass appropriate orders after considering the reply of the petitioner to such show cause notice;
26
(vi) In the event of a favourable report is forwarded by the second respondent to the fifth respondent in favour of the petitioner, it is needless to state that fifth respondent shall issue 8th Semester Marks card along with provisional/final degree certificate in B.E.course in Information and Technology Branch to petitioner if she has successfully passed and said exercise shall be undertaken by fifth respondent expeditiously and at any rate within an outer limit of four (4) weeks' from the date of the receipt of such report from second respondent.
No order as to costs.
Sd/-
JUDGE *sn