Karnataka High Court
Shri Vishnu N Bajanaikar vs The State Of Karnataka on 11 December, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.15428 OF 2012 (GM-CC)
Between:
Shri Vishnu N. Bajanaikar
Aged about 53 years
S/o Shri Nagappa Bajanaikar
Assistant Sub-Inspector
South Traffic Police Station
Hubli
...Petitioner
(by Shri Dinesh M. Kulkarni, Advocate)
And:
1. The State of Karnataka
Represented by its Secretary to Government,
Department of Home
Vidhana Soudha, Bangalore - 1
2. The Commissioner of Police
Hubli-Dharwad
Hubli
3. The District Social Welfare Officer
& Member Secretary
District Caste and Income Verification Committee
by its Chairman
Deputy Commissioner
2
Haveri District
4. The Director of Scheduled Tribes
Welfare and Appellate Authority
Krishi Bhavan, II Floor
Hudson Circle, Bangalore
5. The Tahsildar
Haveri Taluk
Haveri District
6. Ramappa
S/o Yamunappa Maraddi
Age 55 years
Occ: ASI
R/o Ghantikeri Police Station
Hubli, District: Dharwad
...Respondents
(By Shri K.S. Patil, HCGP for R1 to R3 and R5;
Shri C. Jagadeesh, Advocate for R4;
Shri R.K. Hatti, Advocate for R6)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash by issuing a writ of
certiorari or any other appropriate writ or order, the impugned
order dated 16.4.2012 issued by R4 vide Annexure-F as null and
void with all consequential benefits; and etc.
This petition coming on for preliminary hearing 'B' group,
this day, the Court made the following:
ORDER
The order dated 16th April 2012 passed in Appeal No.DSTW/Appeal/CR-10/2007-08 by fourth respondent- Appellate Authority and the Director of Scheduled Tribes Welfare 3 under Section 4D of the Karnataka SC/ST/OBC (Reservation in Appointments, etc.) Act, 1990 is challenged in this petition.
2. The case before the appellate authority is that the caste certificate dated 27th August 2004 issued by the District Caste Verification Committee, Haveri in favour of the third respondent- the petitioner herein as the one belonging to 'Hindu Valmiki' a Scheduled Tribe community, was illegal and sought to set aside the same. The appellate Court, by its order, dated 16th April 2012 allowed the appeal and the Tahsildar, Haveri was directed to take action to cancel the caste certificate issued to the petitioner herein.
3. The learned counsel appearing for the petitioner contends that the competent authority i.e. the Tahsildar, has issued caste certificate in his favour on 23rd October 2001 based on the materials and after also conducting an enquiry to that effect by showing the petitioner belongs to 'Hindu Valmiki' community a scheduled tribe and the Caste and Income Verification Committee has confirmed the caste certificate by its order dated 27th August 2004. The said orders have been 4 challenged by the sixth respondent on the ground that the petitioner belonged to Talawar caste by birth, which is classified as BCA-I and on the strength of the said certificate, the petitioner's caste was referred to in school register as 'Talawar community' and the petitioner also was appointed under general category and got further promotion on that basis itself. When, through out the school records and educational certificates, if the caste of the petitioner has been referred to as 'Talawar' by community, the Tahsildar and Caste Verification Committee has erred in issuing the Certificate stating that the petitioner belong to Scheduled Tribe. The case of the sixth respondent has been gone into by the Police Inspector, CRE Cell, Belgaum. In its report dated 17th Febraury 2012 addressed to Superintendent of Police, Belgaum, he has held that the petitioner belongs to 'Hindu Valmiki' community a scheduled tribe. The caste 'Valmiki' has been included in the scheduled tribe list with effect from 1981 and the President of India, issued notification to that effect. The said entry has been referred to by the Additional Director General of Police, Bangalore by its letter dated 28th February, 2012. The competent authorities have enquired into 5 and found that the petitioner belong to 'Hindu Valmiki' i.e. Scheduled tribe community. When such being the case, the appellate authority committed an error without application of mind by allowing the appeal and directing the Tahsildar to cancel the caste certificate, which is arbitrary and unconstitutional and hence is liable to be set aside. The appellate authority has referred to the records of the Deputy Superintendent of Police, CRE Cell, Belgaum dated 30th July 2007, which does not exist and were not communicated to the petitioner. Hence, the learned counsel submitted to set aside the order of the Appellate Authority.
4. The learned counsel appearing for the sixth respondent files statement of objections and produced materials. He has produced the records as per Annexure-R1 to R4 as also his representation to the Commissioner, Social Welfare Department, Bangalore. In these documents, the caste of the petitioner is referred as 'Hindu Talawar', which is not a scheduled tribe. Accordingly, the order passed by the appellate authority is just and proper and does not require any interference. 6
5. The learned High Court Government Pleader files statement of objections and supports the impugned order. Relying upon the date of birth and school certificate of the petitioner, he submits that the appointment and the service of the petitioner for all these years is on the basis that the petitioner belong to 'Talawar' community, which is classified as BCA-I and not scheduled tribe.
6. Heard the learned counsel appearing for the parties. The Tahsildar, is competent authority under the Karnataka SC/ST/OBC (Reservation in Appointments, etc.) Act, 1990. In Government of India order 1950, at entry No.38 the Castes 'Nayakara and Naik', 'Nayaka', 'Beda', 'Bedar' and 'Valmiki' are classified as scheduled tribe. Synonymous terms were included in 1950 order as per amendment to the Constitution in the year 1991. This Court, in a Full Bench judgment, in the case of JAYAMMA v. DEPUTY COMMISSIONER, CHITRADURGA AND OTHERS in Writ Petition No.28263 of 2004 (SC/ST) disposed of on 3rd August 2012 has held that amendment to Constitution in 7 year 1991 is to be considered as retrospective in effect. The observation made at paragraph 14 is extracted hereunder:
"14. So far as the facts of the present case are concerned, the original grantee's name was "£ÁAiÀ ÁAiÀÄPÀ"À in vernacular/Kannada. How this is to be spelt in English is the abiding question that arises even before us. If we translate it as 'Naikda' or 'Nayaka', then it was included in 1950 Presidential enumeration. If we are to translate it as 'Naika' or 'Nayak' then it is to be found in the subsequent amendment of 1991 only. The translation should have been made with greater care by the Assistant Commissioner and thereafter by the Deputy Commissioner. We are certain that the Schedule Tribe is the same, attracting only the variant spelling in the translation. Both the Assistant Commissioner as well as the Deputy Commissioner have erroneously concluded that since "£ÁAiÀÄPÀ"À (Naika or Nayak) was included as a Schedule Tribe only in 1991, the grantee did not fall within the purview of the PTCL Act and erroneously restored the land to the State. This error would not have manifested had the two authorities perceived the legal position that all entries in the Constitution (Scheduled Tribes) Order 1950 original or subsequent are only elucidatory and clarificatory in nature. To sum up, after careful cogitation we are of the conviction that the view expressed by the Division Bench in Krishnappa and Rangaiah has to be preferred. In these circumstances, 8 assuming that "£ÁAiÀÄPÀ"À was included as a Schedule Tribe in 1991, we shall nevertheless answer the Reference by stating that every inclusion would have retrospective effect and would therefore revert back to the Presidential Notification 1950."
7. In the light of the judgment, the synonymous terms have to get its effect with effect from 1950 and the approach of the statutory authority that these castes have been included in the year 1991, holds no water.
8. The statutory authority, viz. CRE Cell, Belgaum has gone into the matter and recorded evidence and conducted mahazar and recorded the statement of the petitioner and his relatives viz. Mallikarjuna S/o Nagappa Bajenaikara, Govindappa S/o Channabasappa Huligeppanavar, Smt. Basavva W/o Mallappa Bajenaikara, Puttaiah Paramaiah Maguda, Bharmappa Kodleppa Kaddi, Mahadevappa Daddabasappa Devamala, Rajappa Puttappa Kambali and documents have been collected and marked in his report dated 17th February 2012 in No.JAVI/H/02/NaHaJaNi/Belagavi/2010 dated 17th February 2012. Contrary to this or in order to dispute the findings, no 9 materials were made available to the appellate authority. The appellate authority in its six lines reasons and by referring a non-existing report dated 30th July 2007 held that the petitioner does not belong to 'Hindu Valmiki'. In the two pages order, by devoting one entire page to record contentions of parties and without application of mind and referring to various evidences and materials available in the enquiry report held that the petitioner belong to Talawara community and directed the Tahsildar to cancel the caste certificate, which on the face of it, is an error. The appellate authority is a statutory authority. He should not forget that he is dealing with the statutory and constitutional rights of the parties. Just by referring to a single word, he can change the fate of the party. Before holding that a particular person does or does not belong to a particular caste or while issuing a direction to the Tahsildar to issue the caste certificate or to cancel the caste certificate issued, he should examine the enquiry report and materials and also the evidence available on record. Without doing so, if it is permitted to declare that the caste certificate issued is false or is correct, it is arbitrary, unconstitutional and violation of Article 14 of the 10 Constitution of India. The special counsel who appeared before the Appellate Authority has submitted by relying on the school records, birth certificate and the appointment of the petitioner on general category. The said submissions and records itself are not ultimate documents to decide. In several cases, intentionally or unintentionally; purposefully or otherwise, a person would get a caste certificate or an income certificate. This happens by virtue of ignorance. But, once the ignorance is realised or on an advise, if the person makes an application for issuance of certificate, that does not mean that he does not belong to a particular caste. The fault or error committed and continued for a long length of time, would not be a ground to reject the caste and the claim of a party. In the instant case, as it is reported by an enquiry officer, 'talawar' has been referred in village atmosphere instead of scheduled tribe or 'valmiki' community. The parents of the petitioner have referred the caste as 'talawar' for the purpose of admission to school and that does not mean that he does not belong to 'Hindu Valmiki' community a scheduled tribe.
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9. Under these circumstances, though the competent authority to issue caste certificate is Tahsildar and confirmation has to be done by the Caste Verification Committee, both these authorities are at liberty to examine and re-examine the enquiry report submitted by the CRE Cell. If they come across any contra or rebutting evidence or material against the finding of the enquiry report, it is for them to deny the issuance of caste certificate to a person. As long as such exercise has not been done, it is arbitrary to hold that the petitioner does not belong to scheduled tribe community. In the instant case, both the Tahsildar as well as the Income and Caste Verification Committee have held in favour of the petitioner and caste certificate has been issued to that effect. Under the circumstance, it is evident that abundant evidence was available before the authorities, which were in favour of the petitioner. The appellate authority, who decides the fate of the petitioner by assigning six lines reasons is astonishing and unbecoming.
10. With these observations, I hold that the petitioner has to succeed. The order of the appellate authority is set aside. 12 For further examination, the matter is remitted to the Income and Caste Verification Committee to re-look into the matter and pass appropriate order. In terms of the above the petition is allowed.
SD/-
JUDGE lnn