Karnataka High Court
Ms M.N. Kalavathi vs The State Of Karnataka on 2 January, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.1898 OF 2021 (GM - CC)
BETWEEN:
MS.M.N.KALAVATHI
D/O LATE N.NARASIMHAIAH,
AGED ABOUT 66 YEARS,
WORKED AS FIRST DIVISION ASSISTANT,
PHYSICAL EDUCATION,
SPORTS SCIENCE AND STUDY SECTION,
MYSORE UNIVERSITY, MYSORE,
NOW RESIDING AT DOOR NO.2938,
PETE BEEDI,
OPP.GANESHA MEDICAL STORE,
MALAVALLI TOWN,
MANDYA DISTRICT - 571 430.
... PETITIONER
(BY SRI FAYAZ SAB B.G., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HIGHER EDUCATION,
M S BUILDING, K.R.ROAD,
BENGALURU - 560 001.
2. THE VICE CHANCELLAR
MYSORE UNIVERSITY,
2
KRAPHARD BHAVANA,
MYSURU - 570 005.
3. THE REGISTRAR
MYSORE UNIVERSITY,
PHYSICAL EDUCATION,
SPORTS SCIENCE AND STUDY DIVISION,
MYSURU - 570 005.
4. THE PRINCIPAL
PHYSICAL EDUCATION,
SPORTS SCIENCE AND
STUDY CENTER/DIVISION,
SPORTS PAVILION,
MYSORE UNIVERSITY
MYSURU - 570 005.
5. THE COMMISSIONER
DEPARTMENT OF SOCIAL WELFARE,
5TH FLOOR, M.S.BUILDING,
BENGALURU - 560 001.
6. THE DEPUTY COMMISSIONER AND PRESIDENT
DISTRICT CASTE VERIFICATION COMMITTEE,
MANDYA DISTRICT,
MANDYA - 571 401.
7. THE DISTRICT SOCIAL WELFARE OFFICER
DISTRICT SOCIAL WELFARE DEPARTMENT,
FIRST FLOOR,
GOVERNMENT OFFICES COMPLEX,
NEAR DEPUTY COMMISSIONER'S OFFICE,
MANDYA DISTRICT - 571 401.
8. THE POLICE SUB-INSPECTOR
CIVIL RIGHTS ENFORCEMENT CELL,
MYSORE DISTRICT,
MYSURU - 570 005.
3
9. THE TAHASILDAR
MALAVALLI TALUK,
MANDYA DISTRICT,
MANDYA - 571 430.
... RESPONDENTS
(BY SRI M.VINOD KUMAR, AGA FOR R1 AND R9;
SRI K.S.BHEEMAIAH, ADVOCATE FOR R2 TO R4;
SRI C.JAGADISH, SPL.GA FOR R5 TO R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS PERTAINING TO THE CASE OF THE PETITIONER;
QUASH THE IMPUGNED ORDER DATED 16.01.2021 PASSED IN
APPEAL NO.CR 05/2019-20 BY THE R-5, WHEREIN DISMISSED THE
APPEAL FILED BY THE PETITIONER HOLDING THAT THE
PETITIONER HEREIN BELONGS TO BANAJIGA BACKWARD CLASS
CATEGORY-IIIA AND DOES NOT BELONGS TO BHANGI SCHEDULED
CASTE COMMUNITY, CONFIRMING THE ORDER PASSED BY R-6 AND
7, WHICH IS PRODUCED AND MARKED AS ANNEXURE-M AS
ILLEGAL, ARBITRARY, CAPRICIOUS, DISCRIMINATORY AND
PASSED WITHOUT APPLICATION OF MIND AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.12.2022, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question order dated 16-01-2021 passed by the Appellate Authority dismissing the appeal filed by the petitioner against the order of the District Caste 4 Verification Committee holding that the petitioner does not belong to Bhangi community, but is a Banajiga and has also sought a consequential direction by issuance of a writ in the nature of mandamus directing the respondents to release all her terminal benefits which have been withheld on account of caste status of the petitioner.
2. Sans details, the facts in brief are as follows:-
The petitioner after completion of graduation in Arts discipline from Mysore University applies to the jurisdictional Tahsildar seeking issuance of a caste certificate along with certain documents claiming to be belonging to Bhangi community, which is a scheduled caste. It appears that on 23.12.1993 a caste certificate was issued certifying the petitioner to be belonging to Bhangi community, a scheduled caste which the petitioner claims that it was issued after due verification. On the strength of the said caste certificate the petitioner applied through the District Employment Exchange and was selected to the post of Clerk/Assistant in the Mandya Post-Graduate Centre of the Mysore University and was placed on probation. The probation was declared to have been 5 completed satisfactorily and the petitioner continued in the post of Assistant. She was at the relevant point in time working as a First Division Assistant.
3. During the service of the petitioner a civil suit is instituted between the petitioner's brother and one M.A. Chikkaraju before the jurisdictional Court at Malavalli. A complaint then comes to be registered before the Tahsildar, Malavalli Taluk alleging that the petitioner did not belong to Scheduled Caste but was a Banajiga which is not a Scheduled Caste but other backward class. A notice comes to be issued upon the complaint on 08-10-2013 by the Tahsildar and the petitioner claims to have submitted a detailed reply on 21-10-2013. On consideration of the reply so submitted by the petitioner, the Tahsildar appears to have issued a show cause notice as to why proceedings should not be initiated against the petitioner. Thereafter, a final notice comes to be issued by the Tahsildar. Challenging these notices, the petitioner approaches this Court in W.P.No.51712 of 2013 contending that the Tahsildar had no jurisdiction to issue notice as it was to be done by the District Caste Verification Committee. This Court by its order dated 6 04-12-2013 allowed the petition and quashed the proceedings instituted by the Tahsildar. The Court observed that it would be open to the 5th respondent to refer the matter to the District Caste Verification Committee.
4. The petitioner appeared before the District Caste Verification Committee and produced all the documents. The District Caste Verification Committee holds that the petitioner does not belong to Bhangi caste but belonged to Banajiga caste which is not a scheduled caste in terms of its order dated 08-01-2015. Again the petitioner knocks the doors of this Court in Writ Petition No.1372 of 2015. An interim order of stay of the said order was granted and by order dated 31-05-2019 the petitioner was directed to approach the Appellate Authority as it was an appealable order under the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 ('the Act' for short). The Appellate Authority rejects the appeal affirming the finding of the District Caste Verification Committee in terms of its order dated 16-01-2021. It is during the aforesaid proceedings, the petitioner retires on attaining the age of superannuation on 7 30-09-2014 and is not paid any terminal benefits on the ground that the caste status of the petitioner yet to be decided. It is the proceedings i.e., the proceedings under the Act with regard to the caste certificate and non-payment of terminal benefits on account of pendency of those cases, is what drives the petitioner to this Court in the subject petition.
5. Heard Mr. B.G. Fayaz Sab, learned counsel appearing for the petitioner, Sri M.Vinod Kumar, learned Additional Government Advocate appearing for respondent No.1, Sri K.S.Bheemaiah, learned counsel appearing for respondents 2 to 4 and Sri C. Jagadish, learned Special Government Advocate appearing for respondents 5 to 8.
6. The learned counsel appearing for the petitioner would seek to contend that a complaint is registered by a stranger. A stranger could not have triggered initiation of so many proceedings against the petitioner. He would, therefore, contend that all the proceedings that have taken place pursuant to the initial complaint registered before the Tahsildar are all a nullity in law. He would also submit that the petitioner has rendered more than 21 years of 8 service and, therefore, cannot be seen to be going home without any terminal benefits in her kitty. He would further submit that the petitioner is a foster daughter of one Sri M.Narasimhaiah and during her young age her parents have passed away who were working as daily wage employees in the house of M. Narasimhaiah. Therefore, the said M.Narasimhaiah has brought her up. Sri M.Narasimhaiah belongs to Banajiga Caste and the petitioner belongs to Scheduled Caste is what is ignored by the Authorities is the emphatic submission of the learned counsel for the petitioner.
7. On the other hand, the learned counsel appearing for respondents 5 to 8 would vehemently refute the submissions to contend that the story sought to be twined by the petitioner itself demonstrates that the caste certificate secured by the petitioner as Bhangi notwithstanding the fact that she was a Banagija is admitted. Complainant may have been one M.A.Chikkaraju who was a defendant in a suit registered by the brother of the petitioner. That does not mean validation of a false caste certificate that is in her possession. Petitioner seeks employment on the strength of the said caste certificate, completes 21 years of service 9 by taking promotion to the post of First Division Assistant again on the basis of caste certificate and now again contend that the Authorities have not applied their mind to the facts and have passed the orders impugned. It is not the question whether M.A.Chikkaraju registers the complaint. The falsity of the caste status of the petitioner is what is abused on the Constitution is his emphatic submission. In such cases no terminal benefits have been granted. As a matter of fact he would submit that entire salary should be recovered from the petitioner.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. The petitioner obtains a caste certificate on 23-12-1993 as belonging to Bhangi community and enters the service through the District Employment Exchange as a clerk in the Mandya Postgraduate Centre then coming under Mysore University. Then completes her service and retires on attaining the age of superannuation on 30-09-2014. In 10 the interregnum there were several civil disputes between the petitioner's brother and one M.A.Chikkaraju. M.A.Chikkaraju complains to the Tahsildar, Malavalli taluk alleging that the petitioner has secured employment on the basis of a false caste certificate. Proceedings began since then. The proceedings have ended in cancellation of the caste certificate of the petitioner by the Caste Verification Committee and its confirmation by the Appellate Authority on 16-01-2021 holding that the petitioner is not a Bhangi which is a scheduled caste, but belongs to Banajiga, a backward class community. The proceedings are drawn up by the Competent Authority.
10. No fault can be found with the order that is passed, as the petitioner has failed to demonstrate that she belonged to scheduled caste and has snatched away an employment which ought to belong to a genuine scheduled caste candidate. It is no doubt an action that would result in cancellation of the caste certificate.
Terminal benefits to the petitioner are not paid on the ground that the caste status of the petitioner is still under a cloud. It is for that reason, the learned counsel for the petitioner would seek, that 11 the petitioner has rendered 21 years of service and terminal benefits ought to be paid to the petitioner.
11. Though it is a proceeding before and by the Competent Authority, at whose instance the proceedings sprang is what is germane to be noticed. It is not by a candidate who lost the appointment on account of appointment of the petitioner. The complainant was not the one who was a participant in the selection process. The complainant was the one who had an axe to grind against the petitioner for her brother had instituted certain civil proceedings against the complainant. It is therefore, a complaint in the form of a letter is sent to the Tahsildar and proceedings instituted thereafter. Therefore, the very genesis suffers from want of locus to challenge the issuance of caste certificate to the petitioner. It is this that merits consideration and not the merit of the matter.
12. The issue whether the complainant has locus or otherwise to call in question a caste certificate issued need not detain this Court for long or delve deep into the matter. A Division Bench of this Court in the case of R.S.MAHADEV V. B.R.GOPAMMA & 12 OTHERS1 while considering the issue of locus qua the challenge to a caste certificate, has considered the entire spectrum of law on the issue and has held as follows:
"15. Having heard learned counsel for the respective parties, the points that arise for our consideration are:
(1) Whether the order of the learned single Judge would call for interference in this appeal? (2) What order?
16. The undisputed facts are that the first respondent herein by birth did not belong to the Scheduled Caste. However, she married Govindaiah - a person belonging to the Scheduled Caste community. It is also not in dispute that she was issued a caste certificate stating, she belonged to the scheduled caste community in the year 1979 and thereafter, was appointed as a Kannada Teacher in J.S.S. High School which is an aided institution on the basis of the said caste certificate. It is also not in dispute that she retired from service on attaining the age of superannuation on 30.9.2015. The appellant herein filed a complaint against the first respondent herein on 08.9.2011 on the premise that she had obtained a caste certificate by making a false averment and had suppressed true facts and illegally obtained the benefits available to a person who belonged to Scheduled Caste and had also obtained employment on that basis. The said complaint ultimately resulted in order dated 26.12.2015 being passed which was after the first respondent retiring from service by which, the caste certificate issued to her in the year 1979 was been cancelled and also First Information Report was registered against her on 18.12.2014.
1W.A.No.1242 of 2019 dd. 03-06-2021 13
17. It is not necessary to reiterate the proceedings that have taken place in the interregnum for, what was challenged before the learned Single Judge in Writ Petition No.8209/2016, out of which this appeal arises, was, order dated 26.12.2015 and the first information report registered against the first respondent on 19.12.2014. The same have been quashed by the learned Single Judge and a direction has been issued that the petitioner is entitled to terminal benefits on the basis of the caste certificate issued in her favour, which means that the appointment of the first respondent on the basis of the said caste certificate is held to be valid and legal. However, learned Single Judge has stated that she would not be entitled to claim any benefit available to a person belonging to Scheduled Caste in future.
18. The learned Single Judge during the course of his detailed order, has referred to several decisions of the Hon'ble Supreme Court as well as this Court, in order to arrive at the aforesaid conclusion. We shall refer to those decisions in a chronological manner as they have been adverted to by the learned counsel for the respective parties during their submissions.
(a) In N.E.Horo, it was held that even if a female is not a member of a tribe by virtue of her birth, she, having been married to a tribal, after due observance of all formalities and after obtaining the approval of the elders of the tribe, would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husband's domicile.
In that case, the facts were that on May 1, 1970, the Election Commission of India had issued a notification for holding a poll in Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar. Two nomination papers were filed. The respondent therein, being the widow of late Sri Jaipal Singh and a member of the Munda Scheduled Tribe in the State of Bihar, had filed her nomination on the basis of the certificate issued in her favour. Objection was raised to her nomination and an order was passed rejecting the nomination of the respondent therein (Smt.Jahan Ara). In the election petition, filed by Smt.Jahan Ara, it was stated that she belonged to Munda Scheduled Tribe although she was a Christian by religion. That as per Munda Customary Law, when a Munda male married 14 outside the Munda Tribe, if his marriage is accepted by the Tribe, he continues to be a member of that Tribe and his wife also acquires its membership. While considering the said issue, whether, the respondent Smt.Jahan Ara could have placed reliance on a certificate issued to her that she belonged to the Munda Tribe and therefore was entitled to contest in the reserved Constituency meant for Scheduled Tribe. It was observed as stated above, that, even if the respondent (Jahan Ara) was not a member of a Munda Tribe by virtue of birth, she, having been married to a member of Munda Tribe after due observation of all formalities and after obtaining the approval of the elders of the Tribe would be entitled to invoke the doctrine of domicile and as she would become member of a Munda Tribe. Consequently, when a person, in the course of time, has been assimilated in the community, it is difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. As a result, the appeal filed by the returning candidate N.E.Horo was dismissed sustaining setting aside his election.
(b) In Sobha Hymavathi Devi, the question was regarding the claim that could be made by a woman of a forward caste on marriage to a man from Scheduled Tribe. It was held that such reservation can benefit only those who belong to a Scheduled Caste or Scheduled Tribe and that is by birth and not those who claim to acquire the status by marriage.
In the aforesaid case, an earlier judgment in Mrs. Valsamma Paul vs. Cochin University and others [(1996) 3 SCC 545] (Valsamma Paul) was followed and the judgment referred to above in N.E.Horo was overruled. It was observed that, the reservation to the Lok Sabha or Legislative Assembly Constituency was made intending to benefit the really underprivileged and not those who come to the class by way of marriage. Hence, the decision in N.E.Horo to that extent would run counter to the above rule and was not correct. In that case it was observed that it was difficult to accept the position that a non- tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be 15 deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. Neither the fact that a non-backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a non- backward to claim reservation in terms of Article 15(4) or 16(4) of the Constitution.
It was observed that, the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution for the reason that she was a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. On the basis of said analogy, the Hon'ble Supreme Court did not accept the ruling in N.E.Horo and consequently, the same was overruled. The said judgment was delivered on 28.1.2005.
(c) In Valsamma Paul's case it was observed that when a lady belonging to a non-reserved class married to a Scheduled Caste/Scheduled Tribe or other backward class citizen, or a person belonging to non-reserved class transplanted by adoption or any other voluntary act to a family belonging to such reserved class, would not ipso fact entitle the lady/adoptee to claim reservation under Article 15(4) or 16(4), as the case may be, in view of the advantageous start in life availed by her or him.
19. Before referring to the recent judgment of the Hon'ble Supreme Court in the case of Jagadish Balaram Bahira, it would be useful to refer to the judgment relied upon by the learned counsel for respondent No.1 in the case of Smt.Kalavathi S.Nergi. In that case, it was held that the appellant/employee having made an application for employment in the belief that she was entitled to claim the status of a Scheduled Caste community on account of her marriage to a person from that community was therefore legal and tenable and in consequence of the law of the land at the relevant point of time; that a 16 legal position was upset only in the year 1996; that the appellant/employee therein having been conferred the benefit of a person belonging to a notified community would have the benefit to claim under that category even if, at a later point of time, the change in the legal position as to a wife not being able to claim the status of the community to which her husband belonged is declared.
20. In that regard, reliance was placed on State of Maharashtra vs. Reshma Ramesh Meher and Another [2008(4) LLN 127] (Reshma Ramesh Meher), a Co- ordinate Bench of this Court, held that the judgment of the Supreme Court in the case of N.E.Horo was overruled only in the year 1996 in Valsamma Paul. Valsamma Paul is a judgment dated 04.01.1996 and subsequently, Sobha Hymavathi Devi is a judgment passed on 28.01.2005.
21. Learned counsel for respondent No.1 therefore contended that the caste certificate issued to respondent No.1 in the year 1979 was, having regard to the judgment holding the field at the relevant point of time, namely N.E.Horo and therefore, the subsequent declaration of law which is adverse to the case of respondent No.1 cannot be applied retrospectively. We find considerable force in the contention of the learned counsel for respondent No.1, which has also been accepted by the learned Single Judge.
22. The other aspect of the matter is that in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra, [(2013) 4 SCC 465] (Ayaaubkhan Noorkhan Pathan), it has been observed that it is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from a legal injury can challenge the act/action/order in a court of law. The relevant discussion on the concept of aggrieved person is at paragraph Nos.9 to 13, which are extracted as under:
"9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons.17
Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty be a public body, using its writ jurisdiction at the behest of a person provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved"
does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised.
11. In Anand Sharadchandra Oka v.
University of Mumbai, a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, than he cannot be said to be a person aggrieved regarding the election or the selection of other person.
1812. In A.Subash Babu vs. State of A.P., this Court held: (SCC pp.628-29, para 25) "25. The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
13. This Court, even as regards the filing of a habeas corpus petition, has explained that the expression "next friend" means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody."
23. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or abstain from doing something. Existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under Article 226. For instance, a rival in a trade has no locus standi to challenge the grant of licence to other trader on the ground that the licence was granted illegally or suffers from defect of jurisdiction, vide J.M.Desai vs. Roshan Kumar, [AIR 1976 SC 578], (J.M.Desai); Nagpur Rice and Flour Mills vs. Teekappa Gowda and Brothers, [AIR 1971 SC 246] (Nagpur Rice and Flour Mills). In J.M.Desai, provisions of Bombay Cinemas Registration Act, 1953 and the Bombay Cinema Rules, 1954 came up for consideration and paragraphs 36 to 41 of the said judgment read as under:
"36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person 19 aggrieved'; (II) 'stranger'; (ii) busybody of meddlesome interloper, Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past- time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busy bodies at the threshold.
37. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer-zone may not be "persons aggrieved".
38. To distinguish such applicants from 'strangers', among them, some board tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or 20 injury, in the sense, that his interest, recognized by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved"
is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?
39. Now let us apply these tests to the case in hand. The Act and the Rules to which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, "person aggrieved" must receive a strict construction.
40. Did the appellant have a legal right under the statutory provisions or under the general law which has been subjected to or threatened with Injury? The answer in the circumstances of the case must necessarily be in the negative.
41. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option, in common with the rest of the public, to lodge an objection in response to the notice 21 published under Rule 4. The appellants did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not denied. No explanation has been given as to why he did not prefer any objection to the grant of the No- Objection-Certificate before the District Magistrate or the Government. Even if he had objected before the District Magistrate, and failed, the Act would not give him a right of appeal. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any license under Section 8. Obviously, the appellant was not a "person aggrieved" within the contemplation of Section 8A".
(underlining by us) Thus, a person who is not aggrieved by any discrimination complained of, cannot maintain a writ petition. [D.Nagaraja vs. State of Karnataka, AIR 1977 SC 876] (D.Nagaraja).
24. That apart, Section 4-B of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Act, 1990, reads as under:
"4-B. Appeal against order under Section 4-A.- (1) Any person aggrieved by an order of the Tahsildar under Section 4-A may, within thirty days from the date of receipt of the order, prefer an appeal to Assistant Commissioner of the Revenue sub- division.
(2) The Assistant Commissioner of the Revenue sub-division may after giving both parties an opportunity of being heard pass orders allowing or dismissing the appeal and in appropriate cases directing issue of a caste certificate, or as the case may be, an income and caste certificate to the applicant."22
On a reading of the same it is evident that the only a person aggrieved by an order of the Tahsildar under Section 4-A with regard to issuance of caste certificate and income certificate, can file a appeal to the Assistant Commissioner of the Revenue sub-division and not otherwise.
25. The expression "a person aggrieved/aggrieved person/aggrieved" could be further explained with reference to K.J.Iyer's "Judicial Dictionary", 16th Edition (2014), as under:
• The word 'aggrieved refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation;
• A man who has suffered a legal grievance-a man against whom a decision has been pronounced, which has wrongly deprived him of something or wrongfully affected his title. [Re. Sidebotham (1880) 24 Ch D 458].
• A person injured or damaged in a legal sense. The question whether a person is 'aggrieved' for the purpose of complaining against another, is to be determined by the nature of injury or offence, and the special circumstance of each case. Any fanciful or sentimental grievance does not suffice; there must be injuria or a legal grievance, that is, such grievance as law can appreciate and not a stat pro ratione valuntas reasons. [3 CrLJ 187], • The expression 'aggrieved person' means a person who has got a legal grievance, i.e., a person is wrongfully deprived of anything of which he is legally entitled and not merely a person who suffered some sort of disappointment. [Gopal Prasad Chourasia vs. Prasanna kumar Shrivastava, (1999) JLJ 478 (487) (MP) (DB)).
• Not every person who has suffered some disappointment or whose expectations have not been realised as a result of the decision or order can claim to be an 'aggrieved person', [Bar Council of Maharashtra vs. M.V.Dabholkar, AIR 975 SC 2092).23
26. In V.N.Krishna Murthy vs. Ravikumar, [(2020) 9 SCC 501], the Hon'ble Supreme Court has held as under:
"19. The expression 'person aggrieved' aces not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised [vide Shanti Kumar R. Canji vs. Honte Insurance Company of New York, (1974) 2 SCC 387, and State of Rajasthan vs. Union of India, (1977) 3 SCC 592]."
27. The appellant herein has not made out a case as to how he was aggrieved by issuance of a caste certificate in favour of respondent No.1. He was not a person who had applied to the post of Kannada Teacher in the Aided Institution, to which respondent No.1 was appointed. He has not been denied any benefit on account of issuance of the caste certificate in favour of respondent No.1, which he had claimed. Therefore, the appellant had no right to file a complaint against respondent No.1 herein and he had no locus standi to do so.
28. Learned counsel for the appellant drew our attention to Circular dated 30.6.2007 issued by the State Government that Circular is contrary to the provision of law, which we have extracted above. As already noted, it is only a person who is aggrieved can file an appeal under Section 4-B of the Act. The Circular cannot be contrary to the provision of the statute. In fact, the said Circular nowhere enables the appellant herein to file a complaint, as the appellant had no locus standi to do so. Merely because, the said Circular enables a person to file a complaint, would not imply that, any person, although does not have the locus standi to do so as he is not an aggrieved person, can file such a complaint. It is only an aggrieved person who is a stakeholder, such as an employer or the person who has been denied a caste certificate or a person who has been denied of a post in Government or public service or a seat in an educational institution on account of a fraudulent caste certificate obtained by another person, who can file such a complaint. Therefore, placing reliance on the aforesaid dictum of the Hon'ble Supreme Court in Ayaaubkhan, we hold that the appellant herein had no 24 locus standi to file a complaint against respondent No.1, as he was not a person aggrieved.
29. It is necessary to refer to the Circular issued by the Ministry of Home Affairs, Government of India, in April, 1975, which has stated that: "......no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe. Similarly, a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that Scheduled Caste or Scheduled Tribe as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe."
30. The aforesaid Circular was adopted by the State by Government Order dated 23.03.1987 and hence, till then, the judgment in N.E.Horo held the field and was applicable to the persons who had been issued caste certificate on the basis of their marriage to a Scheduled Caste or Scheduled Tribe person, even though by birth they did not belong to the said caste.
31. This brings us to the latest judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant, which is in the case of Jagadish Balaram Bahira. The said judgment could be distinguished even on a reading of the preface to the said judgment under the heading "A. The perspective". The Hon'ble Supreme Court in the said case dealt with the problem confronted by the legislatures, policy makers as well as Courts as enforcers of the rule of law, when the benefits of affirmative action programmes are captured by persons who do not genuinely belong to the beneficiary groups. For a better understanding of the same, it would be useful to extract the following passages from the judgment:
"2. .....But the problem which has confronted legislatures, policy makers as well as courts (as enforcers of the rule of law) is a capture of the benefits of affirmative action programmes by persons who do not genuinely belong to the beneficiary groups. This kind of capture poses a serious dimension. When a person who does not belong to a caste, tribe or class for whom reservation is meant, 25 seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. For one thing a person who is disentitled to the benefit of a welfare measure obtains the benefit. For another this deprives a beneficiary who is genuinely entitled to receive those benefits of a legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution. It is a fraud on state policy. Confronted with this problem, the legislatures have intervened with statutory instruments while the executive has, in Implementation of law, set down administrative parameters and guidelines to prevent the usurpation of benefits.
3. The batch of cases with which the court is confronted involves individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been found to be invalid. Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe or backward community, the intervention of the Court is invoked in the exercise of the power of judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of being protected either by the High Court (in the exercise of its jurisdiction under Article 226) or by this Court (when it discharges the constitutional function of doing complete justice under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect Individuals who have secured access to the benefit of reservation in spite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended."
32. After reviewing a catena of judgments rendered earlier by the Hon'ble Supreme Court, certain conclusions were arrived at in paragraph No.67 thereof. The said judgment essentially deals with the directions, which were issued in the case of State of Maharashtra vs. Milind [(2001)1 SCC 4] 26 and Kum.Madhuri Patil vs. Additional Commissioner [(1994) 6 SCC 241] in the context of the statutory framework provided regulating the issuance of a caste certificate, scrutiny or verification of the claims and cancellation of caste certificate etc. The said judgment is in the context of a false caste certificate being issued by the authority, on the basis of incorrect or false averments being made or claims to have been putforth before the authority. That judgment does not have any relevance to the controversy in the instant case. Hence, no assistance could be drawn on the basis of the said judgment.
33. Learned counsel for respondent No.1 placed reliance on Kavita Solunke vs. State of Maharashtra and Others [(2012)8 SCC 430] to contend that, it is only in a case of a false, fabricated caste certificate being obtained or by misrepresentation on fraud, which would disentitle a candidate from getting relief from the Court or when, on the basis of such a fraudulent caste certificate being issued, no benefits could be derived.
34. But, in the instant case, there was no falsehood, fabrication, manipulation or concealment made by respondent No.1, while being issued the caste certificate in the year 1979. The same was issued to her on the basis of the law prevailing at the relevant point of time, namely the judgment of the Hon'ble Supreme Court in N.E.Horo. Subsequent declaration of law by overruling the N.E.Horo cannot ipso facto result in the caste certificate issued to respondent No.1 herein being fraudulent, illegal or invalid. In this regard, we find considerable force in the submission of the learned counsel for respondent No.1.
35. We have perused the detailed order of the learned Single Judge. We do not find any merit in the appeal. Hence, the appeal is dismissed.
36. Consequently, respondent No.1 is entitled to seek the terminal/retiral benefits in accordance with law. Respondent No.6 is directed to process the case of respondent No.1 for the purpose of grant of terminal benefits on the basis of the caste certificate issued in her favour and release the terminal benefits as expeditiously as possible. However, as ordered by the learned Single Judge, respondent No.1 shall not be entitled to claim benefit of a person belonging to the scheduled caste in 27 future. The judgment of the learned Single Judge is sustained in all respects."
(Emphasis supplied) The Division Bench in the aforesaid judgment of R.S.MAHADEV (supra) considers an identical situation where the challenge was by a complainant who could not be attributed to the status of being a person aggrieved. He was a stranger. Therefore, the Division Bench upholds the judgment of the learned Single Judge and directs payment of terminal benefits.
13. The issue, in the case at hand, is akin to what is decided by the Division Bench, as the complainant M.A.Chikkaraju was not the applicant along with the petitioner nor claims to have lost employment on account of the petitioner securing employment as a scheduled caste candidate and does not even belong to scheduled caste. Therefore, the very genesis of the complaint suffers from want of locus. If the foundation suffers from want of locus, the super structure would tumble down as if the complaint itself was not maintainable and any finding on a complaint that was not even maintainable is a nullity in law.
2814. This Court though would appreciate the efforts made by the learned counsel Sri.C.Jagadish to bring in the case of the petitioner within the fold of a fraud played on the Constitution by the petitioner as admittedly it was a false caste certificate, the same would have merited acceptance if the complainant had locus to complain, as the issue of locus cuts at the root of the matter. I decline to accept the contention of the learned counsel for respondents 5 to 8 Sri.C.Jagadish that by allowing the petition and directing payment of terminal benefits, this Court is permitting to allow the thief to retain the stolen property. This Court is bound by the judgment rendered by the Division Bench which bears consideration of the entire spectrum of law as laid down by the Apex Court on the issue.
15. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned order dated 16-01-2021 passed in Appeal No.CR 05/2019-20 by the 5th respondent stands quashed.29
(iii) Mandamus issues to the respondents to settle the terminal benefits of the petitioner.
SD/-
JUDGE bkp CT:MJ