Jharkhand High Court
Suresh Kumar Baitha vs Smmari Lal on 24 October, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Election Petition No. 03 of 2020
....
Suresh Kumar Baitha, aged about 45 years, son of Late Puran
Baitha, resident of Jagatpuram (Behind Hot Lips), PO-Gandhi
Nagar, PS-Gonda, District- Ranchi-834008 (Jharkhand)
...... Petitioner
Versus
1. Smmari Lal, aged about 57 years, son of Late Mishri Lal
Balmiki, resident of 354, RIMS Staff Quarter, Bariatu, PO-
Bariatu, PS- Bariatu, District- Ranchi
2. Returning Officer, 65, Kanke (Scheduled Caste), Assembly
Constituency, Jharkhand State Legislative Assembly Election-
2019, 203, B. Block, D. C. Office, Near Kutchery Chowk, PO,
GPO- Ranchi, PS- Kotwali, District-Ranchi
......Respondents
-----
PRESENT
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Bibhash Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
For the Resp. No. 1 : Mr. Rajendra Krishna, Advocate
Mr. Kumar Harsh, Advocate
Mr. Surya Prakash, Advocate
For the Resp. No. 2 : Dr. Ashok Kumar Singh, Advocate
.......
JUDGMENT
C.A.V. dated 02/04/2024 Pronounced on 24 /10/2024 This Election Petition has been filed on behalf of the petitioner-Suresh Kumar Baitha for a declaration that election of Respondent no. 1, Smmari Lal from 65, Kanke (Scheduled Caste), Assembly Constituency, Jharkhand State Legislative Assembly Election-2019 be declared void and his election may be set aside on the ground that the Returning Officer has caused improperly received for nomination of Respondent no. 1 and by illegally allowing him to contest from 65, Kanke (Scheduled Caste), 1 Assembly Constituency, Jharkhand State Legislative Assembly Election-2019, which was reserved Constituency for the member of Scheduled Caste in the State of Jharkhand.
2. The case of the petitioner, in brief, is as follows:-
(I.) The Governor of Jharkhand had called upon to constitute the 5th Jharkhand State Legislative Assembly through General Election (Jharkhand State Assembly Election-2019) on the basis of adult franchise. Accordingly the Election Commission of India ("ECI") announced that the general election to constitute 81 elected Members of People Representative to the Jharkhand State Assembly will be held in 5 phases in the State of Jharkhand. As per notification of Election Commission of India, date of completion of election process was 29.12.2019. (II.) The programme for holding the Election of 65, Kanke (Scheduled Caste) Assembly Constituency, under 3rd phase was as under: -
Sl. Subject of Programme Dates
Nos.
(i) Issue of notification 16.11.2019
(ii) Last date of filing nominations 25.11.2019
(iii) Scrutiny of nominations 26.11.2019
(iv) Last date for withdrawal of candidate 28.11.2019 upto
03:00 Ρ.Μ.
(v) Date of allotment of symbols 28.11.2019
(vi) Date of Polling 12.12.2019
(vii) Date of counting and declaration of 23.12.2019
result
(viii) Date of completion of election 29.12.2019
process
2
(III.) The seat of 65, Kanke, State Assembly Legislative Constituency is reserved for Scheduled Caste Candidate of the State of Jharkhand.
(IV.) The petitioner filed his nomination as candidate set up by Indian National Congress ("INC") for being elected as Member of State Legislative Assembly from 65, Kanke (SC), Assembly Constituency. He filed his nomination papers as a Scheduled Caste Candidate of State of Jharkhand along with valid documents including original valid Caste Certificate issued by the competent authority. At the time of scrutiny, no objection whatsoever from any corner raised by any of the candidate or their authorized agent against the validity of the documents submitted by the petitioner along with his nomination.
(V.) The Respondent no. 1 and 11 other candidates also filed their respective nomination papers before the Returning Officer. The Respondent no. 1 filed his nomination paper with self-declaration in "Form 2B, Part-III" that he is Member of "Scheduled Caste", which is a Scheduled Caste in the State of Jharkhand. The Respondent no. 1 was set up as a candidate by the Bhartiya Janta Party. The Respondent no. 1 has not even specified the name of the caste from which he belongs to.
VI. The petitioner as well as its party (Indian National Congress) raised written objection on 26.11.2019 before the Returning Officer regarding Caste Certificate of Respondent no. 1. It was seriously contended that the Respondent no. 1 is not the permanent resident of Jharkhand and, hence, he is not entitled for any reservation in the State of Jharkhand. It is stated that a Scheduled Caste / Scheduled Tribe person who migrates from one State of his origin to another State in search of employment or for education purpose or the like, cannot be treated as a person 3 belonging to the Scheduled Caste / Scheduled Tribe of the State to which he migrates and, hence, he cannot claim benefit as such in the later State.
(VII.) It is stated that as per the guidelines of Election Commission of India, the candidates are required to submit their original Caste Certificate along with nomination papers. The Respondent no. 1 along with his nomination paper submitted a photo copy of caste. certificate, which was also objected by the petitioner on the ground that the nomination paper of Respondent no. 1 is incomplete, but, the Returning Officer did not deliberately took any decision on it and cleared the scrutiny of the documents of Respondent no. 1. (VIII.) After the date of withdrawal of nomination paper, altogether 12 candidates including the petitioner were declared as contesting candidates for 65, Kanke (Scheduled Caste Constituency) in Jharkhand State Legislative Assembly Election-2019 and their respective symbols were allotted to them.
(IX.) The polling was held on the specified date i.e. 12.12.2019. After the counting was done, results were declared on 23.12.2019, and the Respondent no. 1 was declared to be elected. (X.) The Respondent no. 5, Smmari Lal from BJP secured 1,11,975 votes whereas the petitioner- Suresh Kumar Baitha from Indian National Congress had secured 89,435 votes and other ten (10) candidates were secured least votes than them. (XI.) The Respondent no. 1 has got himself elected by suppressing the material information and by adducing false declaration that he is a Member of Scheduled Caste in relation to the State of Jharkhand. This wilful wrong disclosure amounts to misinformation about his caste and the same has rendered the election of Respondent no. 1 to be void.
4(XII.) The Respondent no. 1 has played fraud for setting himself as candidate in an Assembly Constituency which is reserved for candidate of Scheduled Caste of the State of Jharkhand. (XIII.) The Returning Officer illegally allowed the Respondent no. 1 to contest from 65, Kanke (SC) Constituency which is a reserved seat for Scheduled Caste Candidate of the State of Jharkhand. (XIV.) The father of Respondent no. 1 and their ancestors originally belong to State of Rajasthan.
(XV.) It is stated that the Respondent no. 1 is a permanent resident of Rajasthan and he is not permanent resident of Jharkhand. Ministry of Home, Government of India, Letter No. BC16015/1/82SC & BC-I dated 20.02.1985, Letter No. 7/Bha.Vi.Sa. 016-15/04 Ka 3557 dated 18.10.2005 and Letter No. 14/Ja.Ni.-03- 13/2016 Ka.6763 dated 05.08.2016 both issued by Department of Personnel, Administrative Reforms & Rajbhasa, Government of Jharkhand clearly provide that unless the applicant or his ancestor is a permanent resident of the State prior to issuance of the Constitution (Scheduled Castes) Order, 1950, no Caste Certificate can be issued to such person. In view of the aforesaid, Caste Certificate of Respondent no. 1 is ex-facie illegal, void as the same has been obtained by misrepresentation and suppression of material facts.
(XVI.) The Respondent no. 1 may 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 Jharkhand to which he migrated. The Respondent no. 1 cannot claim status of benefit of Scheduled Caste in Jharkhand.
(XVII.) The Respondent no. 1 got himself elected from a seat which is reserved seat for a member of Scheduled Caste of the State 5 of Jharkhand. The Respondent no. 1 is not a member of Scheduled Caste of the State of Jharkhand and, thus, he was never eligible to contest from 65, Kanke (SC) Assembly Constituency. (XVIII.) The result of election of 65, Kanke (SC) State Assembly Constituency has been materially effected by improper acceptance of nomination of Respondent no. 1. Likewise, the entire election for the said seat has also been materially effected due to non-compliance of the provisions of Section 33 of Representation of People Act, 1951, and also for violation of Article 332 and 341 of the Constitution of India.
(XIX.) That the Respondent no. 1 has committed offence under Section 125A of Representation of People Act, 1951, as he has given false information with an intent to be elected in the election. The Caste Certificate obtained by Respondent no. 1 is not a valid certificate.
(XX.) The petitioner was a contesting candidate of 65, Kanke (SC) State Assembly Constituency in Jharkhand State Assembly Election- 2019, and as such, he has right under Section 81 of Representation of People Act, 1951, to file this election petition. (XXI.) The petitioner is only claiming declaration that election of Respondent no. 1 to be declared as void without any further claim for declaration about himself or any other candidate to be duly elected as Returned Candidate, therefore, in view of Section 82(a) of Representation of People Act, 1951, only the Returned Candidate is required to be arrayed as necessary party in this election petition.
3. On the other hand, the case of the Respondent no. 1, in brief, is as follows:-
6(I.) The Election Petition filed by the petitioner is absolutely false, frivolous and vexatious and is liable to be dismissed with compensatory cost.
(II.) The election petition filed by the petitioner is barred by limitation.
(III.) The election petition filed by the petitioner is barred by the principles of waiver, estoppel and acquiescence. (IV.) It is stated that prior to filing of the instant election petition one Priya Ranjan Sahay had filed writ petition before the High Court being W.P.(C) No. 6502 of 2019 for issuance of direction upon the respondent nos. 1 to 4 therein to pass final order upon the complaint lodged by the writ petitioner stating therein that the nomination filed by Smmari Lal, a BJP candidate from Kanke (Reserved. Assembly Constituency for SC) by suppressing his place of origin and by projecting himself as a member of Scheduled Caste of the State of Jharkhand, although his origin is from the State of Rajasthan and as such he disqualifies himself to be a candidate in the assembly election. The writ petitioner further prayed to stay participation of the respondent no. 7 therein in the election or to stay the result of the same till the matter is finally adjudicated by the High Court. (V.) The Respondent no. 1 here in contested the writ petition mainly on the ground that the writ petitioner, who is not in the electoral roll of the Kanke Assembly Constituency, has no right to challenge the nomination paper submitted by the respondent no. 7 therein. It was further stated that as a matter of fact three other candidates of Kanke Assembly Constituency challenged the candidature of the respondent no. 7 therein by filing objection before the Returning Officer which were duly considered and rejected. It was also stated that the Respondent no. 1 herein is an old resident of 7 the State of Jharkhand and the writ petition has been filed with malice only to put hindrance in the election process. (VI.) This High Court, after hearing the other persons i.e. Respondent no. 1 to respondent no. 7 had dismissed the said Writ Petition i.e. W.P.(C) No. 6502 of 2019 vide order dated 04.12.2019. (VII.) The Respondent no. 1 filed his nomination paper for election to the Legislative Assembly from the Kanke Constituency in the prescribed form supported with relevant documents including the Caste Certificate issued by the Circle Officer Town Anchal Ranchi to the effect that the Respondent no. 1 namely Smmari Lal is Bhangi by caste being a member of Scheduled Caste with self- declaration that he is a member of Scheduled Caste in the State of Jharkhand and he is permanent resident of Jharkhand. The Respondent no. 1 was set up as a candidate by Bhartiya Janta Party. (VIII.) It is incorrect that the Respondent no. 1 is not the permanent resident of Jharkhand. It is incorrect that a Scheduled Caste/ Scheduled Tribe person, who migrates from one State of his origin to another state in search of employment or for education purpose or like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefits as such in the latter State. It is stated that the Respondent no. 1 is permanent resident of Jharkhand. The Respondent no. 1 was born and brought up at Ranchi in the State of Jharkhand. The Respondent no. 1 has passed his Matriculation Examination in the year 1979 from Zila School, Ranchi and he did Graduation in the year 1983 from Ranchi University and thereafter he passed Master of Arts examination in the year 1985 from Ranchi University. The Respondent no. 1 was also enrolled in N.C.C. which is evident from the provisional certificate issued by the Commanding Officer and the Respondent no. 1 was also registered 8 in the Ranchi Employment Exchange on 27.11.1983 being registration no. 873/83 for the purpose of his employment. The Respondent no. 1 namely Smmari Lal is permanent resident of Ranchi District in the State of Jharkhand which is evident from the Aadhar Card issued by the Government of India.
Photostat copies of the Matriculation Certificate, Mark sheets of Intermediate, Β.Α. (Hons), M.A. examination, Certificate issued by the Commanding Officer N.C.C., Employment Exchange Card and Aadhar Card have been enclosed as Annexure A series to the written statement.
(IX.) It is incorrect that as per the guidelines of the Election Commission of India, the candidates are required to submit their original Caste Certificate along with nomination papers. The Respondent no. 1 submitted all the relevant documents including Caste Certificate in accordance with the guidelines of Election Commission of India. The nomination paper of the Respondent no. 1 was fully complete and the same was in accordance with the guidelines issued by the Election Commission of India. As a matter of fact three other candidates of Kanke Assembly Constituency including the petitioner challenged the candidature of the Respondent no. 1 by filing objection before the Returning Officer which were duly considered and the Returning Officer, after proper scrutiny of the documents of the Respondent no. 1, rejected the objection and the nomination paper of the Respondent no. 1 was found valid and the same was cleared after the scrutiny of the documents.
(X.) It is incorrect that the Respondent no. 1 has got himself elected by suppressing the material information and by adducing false declaration that he is a member of Scheduled Caste in relation to the State of Jharkhand. It is stated that the Respondent no. 1 had 9 submitted Caste Certificate issued by the Circle Officer, Town Anchal, Sadar, Ranchi in which it has been specifically mentioned that the Respondent no. 1 is by caste Bhangi being the member of scheduled caste and such declaration made by Respondent no. 1 regarding his caste is quite legal and valid.
Photostat copy of the Caste Certificate issued by the Circle Officer is enclosed as Annexure B to the written statement. (XI.) The falsity of the claim of the petitioner would be evident from the very fact that the Respondent no. 1 was also nominated as Executive Councillor of Jharkhand Area Autonomous Council (JAAC) in the year 1995 and he was allotted residential quarter in Ranchi. It is stated that the Respondent no. 1 has contested the Assembly elections from Kanke constituency several times in the past. He contested in the year 1985 as an independent candidate, in 1990 and 1995 as a Janta Dal candidate, in 2000 as a RJD candidate and in 2005 & 2009 as Jharkhand Mukti Morcha candidate respectively. The nomination of the Respondent no. 1 was found valid after scrutiny of the documents including the Caste Certificate.
The Caste Certificate produced by the Respondent no. 1 is quite legal and valid. The name of the Respondent no. 1 finds place at serial no. 439 of the voter list of the Assembly election of Kanke constituency 2019.
Photostat copy of the letter issued by the Returning Officer and the voter list have been annexed as Annexure C series to the written statement.
(XII.) It is incorrect that the Returning Officer illegally allowed the Respondent no. 1 to contest from 65, Kanke (SC) Constituency which is a reserved seat for a Scheduled Caste candidate of the State of Jharkhand. It is incorrect that this illegal act of the Returning Officer has materially affected the outcome of election because the 10 nomination paper of the Respondent no. 1 was invalid. It is incorrect that the Returning Officer has improperly accepted nomination of Respondent no. 1 and an ineligible candidate was allowed to contest from a seat which is a reserved seat for member of Scheduled Caste of the State of Jharkhand. It is stated that the Respondent no. 1 is a member of scheduled caste which is evident from bare perusal of the Caste Certificate submitted along with the nomination paper in the prescribed form before the Returning Officer.
(XIII.) It is incorrect that the father of the Respondent no. 1 and their ancestors originally belonged to the State of Rajasthan and they are not permanent residents of the State of Jharkhand. It is incorrect that the family of Respondent no. 1 migrated to the erstwhile State of Bihar thus the Respondent no. 1 is not the permanent resident of the State of Jharkhand. It is stated that the father of the Respondent no. 1 namely, Mishri Lal Balmiki since deceased was employed in Rajendra Institute of Medical Sciences in the year 1965 and rendered his services to the satisfaction of all superior authorities concerned. The Respondent no. 1 is permanent resident of the State of Jharkhand.
Photostat copy of the office order issued by the Director R.I.M.S. on 26.11.2019 is enclosed as Annexure D to the written statement.
(XIV.) It is incorrect that the Respondent no. 1 cannot claim status of benefit of Scheduled Caste in Jharkhand. It is stated that the Respondent no. 1 is a permanent resident of the State of Jharkhand. (XV.) It is stated that the Caste Certificate issued by the Circle Officer, town Anchal, Sadar, Ranchi is a valid document in order to prove that the Respondent no. 1 is a member of Scheduled Caste and he is legally entitled to all the benefits admissible to a member of Scheduled Caste in the State of Jharkhand.
11(XVI.) It is incorrect that the result of election of 65, Kanke (SC), State Assembly Constituency has materially affected by improper acceptance of nomination of Respondent no. 1. It is incorrect that the entire election for the said seat has also been materially affected due to the non-compliance of the provisions of Section 33 of Representation of People Act, 1951 and also for violation of Article 332 and 341 of the Constitution of India. There has been no violation of any of the provisions of the Representation of People Act, 1951 nor any violation of the provision enshrined in the Constitution of India and the result of election is quite legal and valid.
(XVII.) It is incorrect that the Respondent no. 1 has committed offence under Section 125 A of Representation of People Act, 1951 as he has given false information with an intent to be elected in an election.
(XVIII.) The Respondent no. 1 has not suppressed any material information nor false declaration has been made. The Respondent no. 1 has not played fraud for setting himself as a candidate in an Assembly Constituency which is reserved for candidate of scheduled caste of the State of Jharkhand. The Respondent no. 1 has not fraudulently obtained false Caste Certificate. The Caste Certificate submitted by the Respondent no. 1 is quite legal and valid and hence, the Election Petition may be dismissed.
4. Heard learned counsel for the Petitioner and learned counsel for the Respondent no. 1 and learned counsel for Respondent no. 2.
5. Learned counsel for the petitioner has submitted that the election of the Respondent no. 1 may be declared void and illegal as the Respondent no. 1 has illegally supressed his caste while contesting the election of 2019 from 65 Kanke (Scheduled Caste) Constituent Assembly and had produced false Caste Certificate.
126. It is submitted that the Respondent no. 2 has made improper reception of nomination of the Respondent no. 1 as Respondent no. 1 is not Scheduled Caste Candidate in the State of Jharkhand and the Respondent no. 1 was allowed to contest as Scheduled Caste Candidate illegally and action may be taken against the Respondent no. 2 under Section 125-A of the Representation of People Act. It is submitted that the petitioner is a candidate of Indian National Congress and stood 2nd in the voting and the petitioner is a member of Scheduled Caste. It is submitted that the petitioner has filed the nomination paper in Form- 2 (k) Rule 4, marked as Ext.-9 and which reveals that the Election Petitioner is by Caste Dhobi and which is a Scheduled Caste in the State of Jharkhand. It is submitted that the petitioner has filed all the documents as per the check list dated 22.12.2019 at 2.40 PM and has mentioned the Caste Certificate dated 15.11.2019 issued by the Circle Officer, Namkum in the Column -4 of the nomination paper. It is submitted that Ext.-10 is the nomination paper of the Respondent no. 1 dated 23.11.2019 and in page-3, the Respondent no. 1 has merely given declaration that Respondent no. 1 is member of Scheduled Caste, but he has not mentioned his caste in Ext.-10. Respondent no. 2, on scrutiny, has mentioned that the Election Petitioner scrutiny filled up properly and Form-A and Form-B, Caste Certificate etc. are correct and no objection was raised by any one including the Respondent no. 1 on the point of filing of nomination paper and nomination of election petitioner was accepted by the Returning Officer. It is submitted that serial no. 09 reveals the order dated 26.11.2019, which shows the filing of nomination paper by Smmari Lal i.e. the Respondent no. 1 and which also shows that the petitioner had filed objection and three persons had raised objection on the nomination of the Respondent no. 1, who were Suresh Kumar Baitha (i.e. the 13 petitioner), Kamlesh Ram and one Rajan Nayak and the petitioner has filed written objection, which has been marked as Ext.-1.
7. It is submitted that as per the letter issued by the Jharkhand Pradesh Congress Committee it has been pointed out that the Respondent no. 1 is the resident of Rajasthan and living in Ranchi since 1978 and his ancestors came to Ranchi and he is not the resident of Jharkhand. It has also been pointed out that the Respondent no. 1 got prepared wrong Caste Certificate manually in the year 2001 and which may be verified and Caste Certificate filed by the Respondent no. 1 is defective upon the Rules of Department of Personal, Administrative, Reforms and Rajbhasa, Government of Jharkhand issued in the year 2016. It is submitted that Clause-2 of the said letter i.e. Ext.-11 clearly shows that the residence of such persons will not be governed in the State of Jharkhand, who had worked in their original State in light of the order dated 22.02.1985 issued by the Government of India. It is submitted that the election of the Respondent no. 1 as a winning candidate is also void in view of Section 33 read with Section 100 (d) (I) to (IV) of the Representative of People Act and also in violation of the Article 332 and 341 of the Constitution of India. The election of the Respondent no. 1 is also void in view of the Section 43 of the Representative of People Act and also in light of the Annexure-9 Ext.-18/64 and Annexure-10 Ext.-18/67 respectively.
8. It is further submitted that the Respondent no. 1 has not mentioned specific caste of Scheduled Caste at the time of filing his nomination paper and the Respondent no. 1 had not produced his original Caste Certificate before the Respondent no. 2 at the time of filing of his nomination paper.
14Thus, there is suppression of material fact by the Respondent no. 1 and even the Respondent no. 2 has illegally accepted the nomination paper of the Respondent no. 1.
9. Learned counsel for the petitioner has referred Article 332 and 341 of the Constitution of India and has submitted that in view of the Constitution (Scheduled Caste) Order 1950 and Government Order dated 28.10.1956, the benefit of caste reservation cannot be extended and benefit of reservation cannot be given to the Respondent no. 1 as it has to be given to the resident of original State of Jharkhand only.
10. It is further submitted that even the wife of the Respondent no. 1 is a member of Scheduled Caste in the State of Rajasthan and she has also secured appointment in the State of Rajasthan by virtue of being a member of Scheduled Caste. Therefore the Respondent no. 1 cannot take the benefit of him being Scheduled Caste in the State of Jharkhand and his wife cannot be allowed to take reservation in the State of Jharkhand besides the State of Rajasthan. It is submitted that the wife of the Respondent no. 1 namely Anita Jedia is currently employed in Primary Health Centre, Bakhtarpura, Rajasthan as 4th Grade Employee and as such, it is evident that the Respondent no. 1 is enjoying the benefit of reservation in both the States, ie. The State of Jharkhand as well as State of Rajasthan.
11. Learned counsel for the petitioner, in support of his contention, has relied upon the following Judgments:-
(i) in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Versus Union of India and Another reported in (1994) 5 SCC 244.
(ii) in the case of Kisan Shankar Kathore Versus Arun Dattatray Sawant and Ors. reported in (2014) 14 SCC 162, and 15
(iii) in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312.
12. On the Other hand, learned counsel for the Respondent no. 1 has submitted that this Election Petition is misconceived one and liable to be dismissed. It is submitted that this Election Petition has been filed by way of rivalry by the petitioner as he could not succeed in the Election. It is submitted that the Respondent no. 1 is Scheduled Caste of State of Jharkhand and the Respondent no. 1 has been born and brought up in the State of Jharkhand and he has passed all the exams right from Class-I to Matric Examination from the State of Jharkhand. It is submitted that the Respondent no. 1 had passed Matriculation Examination in the year 1979 and thereafter he had passed I. A. Examination in the Year 1981 and had passed BA Examination in the year 1983 and had passed M. A. Examination in the year 1985 and thus the entire Educational Studies of the Respondent no. 1 is based in Jharkhand since the time of his birth. It is submitted that the Caste Certificate of the Respondent No. 1 issued on 31.10.2009 is valid and legal and no illegality has been committed by the Anchal Adhikari, Bargain, Ranchi and also by any State Officials. It is submitted that the petitioner is by Caste 'Bhangi' (Mehtar), which was found and mentioned as per the local enquiry by the Officials of State of Jharkhand and he has issued Caste Certificate dated 31.10.2009, which is enclosed as Annexure-B. It is submitted that even initially the Caste Certificate was issued in favour of the Respondent no. 1 by the officials of the Jharkhand Government on 20.01.2005 and thus the Respondent no. 1 has been treated as Bhangi, which is Scheduled Caste in the State of Jharkhand and also in the erstwhile State of Bihar. It is submitted that the ancestors of the Respondent no. 1 had been 16 brought from State of Rajasthan during British Period by the Britishers since before the independence in Ranchi to clean the sewerage, road etc. and they were settled at Balmiki Nagar, Harmu Road, Ranchi even before the independence of India. Thereafter the father of the Respondent no. 1 was appointed in Rajendra Institute of Medical Sciences (earlier RMCH now RIMS) and he had retired from RIMS and his father was getting pension from RIMS. It is submitted that the Caste Certificate of the Respondent no. 1 was challenged by the petitioner and the Caste Scrutiny Committee had cancelled the Caste Certificate of the Respondent no. 1 and thereafter the Respondent no. 1 had filed W. P. (C) No. 1583 of 2022 and the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Rajesh Shankar) of this Court had set aside the order dated 01.04.2022 passed by the Caste Scrutiny Committee by remanding the matter before the said Committee and thus the Caste Certificate of the Respondent no. 1 is still existing. It is submitted that as the ancestors of the Respondent no. 1 had settled at Ranchi and as such, Constitution (Scheduled Caste) order no. 1950 and Constitution (Scheduled Caste and Scheduled Tribe) order 1956 are not applicable in his case.
13. It is submitted that the judgement rendered in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Versus Union of India and Another reported in (1994) 5 SCC 244 and in the case of Kisan Shankar Kathore Versus Arun Dattatray Sawant and Ors. reported in (2014) 14 SCC 162 and in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 are not applicable on the facts and in the circumstances of the case. It is submitted that Article 341 and 342 of the Constitution of India mandates for reservation of the seats of 17 Assembly/ Lok Sabha Constituency for the members of Scheduled Caste and Scheduled Tribe. It is submitted that the Caste Certificate of the Respondent no. 1 was issued by the Anchal Adhikari after local inspection and as per the report of the Circle Inspector, which has been marked as Exhibit-15. It is submitted that Ext.-16 is the letter written by the petitioner to Welfare Department for issuance of Caste Certificate. It is submitted that in view of the judgment reported in J. Chitra Vs. Disrict Collector Chairman, State Level Vigilance Committee, Tamil Nadu & Ors. reported in 2021 (9) SCC 811 at para-8 there is no need to verify the Caste Certificate even from the Caste Scrutiny Committee. It is submitted that the Caste Certificate is valid and the Respondent no. 1 is still acquiring the same status. It is submitted that Ext. -9 is the nomination paper of the petitioner in which he has been declared himself his Caste as "Dhobi" whereas Ext.-10 is the nomination paper of the Respondent no. 1, Smmari Lal and he has also mentioned his category as Scheduled Caste.
14. It is further submitted that the Constitution with the aid of Article 341 and 342 of the Constitution of India, a group of castes have been identified to be notified as Schedule Caste and therefore, by way of this legal fiction created by the Constitution makers, Schedule Castes and Scheduled Tribes have been identified. The sanctity and legality of Schedule Castes is as such is no caste and has no social acceptance in aspect of castes but a group of castes have been identified with the consultation of the State Government/Governor, who recommends that the castes may be identified as Scheduled Castes and therefore, only after Presidential Order, a particular caste notified would be deemed to be said as belonging to Scheduled Caste. It is the settled principle that the election petition must set out all material facts where from 18 inferences vital to the success of the election petition and enabling the Court to grant relief prayed for by the petitioner can be drawn subject to averments substantiated by cogent and appealing evidences.
The Caste Certificate of the petitioner is Ext. No.15, which is issued on 31.10.2009 as contained in Memo No. 6819, it is clear that the petitioner is a "Bhangi sub-caste (Mehtar)" and it also states that the Caste Certificate has been issued after due local enquiry. It is further submitted that the Hon'ble Supreme Court in Ganu Ram vs. Rikhi Ram Kaundal reported in 1984 (3) SCC 649 has exactly dealt with the same issue and observed that the certificate produced/annexed by the Respondent no. 1 has to be treated as part of the nomination paper and declaration thereto. It has been alleged that the petitioner originally belongs to Rajasthan and the petitioner has referred to Circular dated 20.2.1985 issued by Government of India, Ministry of Home Affairs. It is submitted that Section 36 of Representation of People Act clearly deals with scrutiny of nomination and also specifies the persons who can scrutinize the nomination and file their objection to the nomination paper of opposite candidates.
15. It is submitted that Section 36(1) of R. P. Act has been legislated only with the purpose that any outsider or stranger cannot come and file their objection to the nomination of candidates.
For the sake of brevity and convenience Section 36(1) of R.P. Act is quoted hereunder:-
"36. Scrutiny of nomination. -
(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer 1 of each candidate, and one other person duly 19 authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33."
16. The learned counsel for the Respondent no. 1 referred Ext. 2 and submitted if neither carries any name nor designation of the persons who had filed objection. It is submitted that neither the petitioner in his pleadings nor in his testimony specifies as to whether they were election agents, proposers or authorized persons. Even those four persons have not come forward as a witness. It is submitted that the petitioner had not made them his witnesses and in view of the above this objection letter Ext.-2 cannot be entertained at all. It is submitted that the Respondent no. 1 has not concealed or suppressed any material fact. The Caste Certificate, which till date is valid, runs in the name of Respondent no. 1 and as such presumption lies in favour of the Respondent no. 1, that the Respondent no. 1 is a person belonging to Schedule Caste in relation to State of Jharkhand.
17. It is submitted that upon a complaint made by the petitioner before the Caste Scrutiny Committee for cancellation of Caste Certificate, an enquiry was conducted by Circle Inspector, Bargain upon the direction of the Deputy Commissioner, Ranchi, which submitted the report dated 30.11.2021 (Ext. 19/2) stating that upon local enquiry made with local persons belonging to Bhangi caste, it has been brought to notice that the ancestors of Samri Lal had been settled at Ranchi from the State of Rajasthan prior to independence by British Government for the purpose of manual scavenging. In fact, the petitioner was examined as P.W.1 who 20 himself stated at para-17 that he cannot say as to from which town to Rajasthan the Respondent no. 1 hailed. At para-19 he further stated that the father of Smmari Lal migrated from the State of Rajasthan during the time of United Bihar. It is submitted that United Bihar was founded on 22.3.1912. However, the petitioner at para-20 contradicts himself and stated that he does not known in which year they had migrated from Rajasthan.
When question was put to petitioner i.e. PW-1 that whether the father of Respondent no. 1 was living in then State of Bihar since before the independence of the country, he answered at para-37 that he cannot say whether the father of Respondent no. 1 was living in the then State of Bihar since before the independence of the country.
In fact, no averment has been made in the entire election petition as in which year the ancestors of the Respondent no. 1 has migrated from State of Rajasthan. It is also pointed that there has been contradictory evidence of all the PWs. i.e. PW 1 and PW 2. They could not even state the place, district of Rajasthan from where the Respondent no. 1 belonged to i.e. the place of origin of Respondent no. 1. The whole case of the petitioner is based on assumption and presumption. As per the mandate of Section 106 of Indian Evidence Act, it is bounden duty of the petitioner to prove his case and the burden lies upon the person who alleges the same. The petitioner has failed to discharge his duty to substantiate his allegation with material facts and cogent evidences. In fact no evidence has been produced and brought on record by the petitioner to substantiate the Respondent no. 1 is a permanent resident of State of Rajasthan. It is submitted that 14 witnesses have stated on behalf of the Respondent no. 1 that the ancestors of Respondent no. 1 were residing since before independence in Ranchi. It is submitted that documentary evidences have also been produced by the petitioner 21 marking the writ petition of the Respondent no. 1 to be exhibit and in that exhibits (Ext. 5, Page 113), there is an affidavit of the Respondent no. 1 stating that the ancestors of the Respondent no. 1 were settled in the year 1928 at Balmiki Nagar, Kishoregunj, Ranchi. He also stated that his cousin brother Sajna Ram was in service at Nagar Palika from 1940 till 1955 and thereafter in 1955 he joined Ranchi University. He stated that his Aunt was also an employee of Ranchi Nagar Palika and was appointed in the year 1950. He states that he had filed RTI application. He has also produced the service record of Sajna Ram (his cousin). Ext. 5 starting from page 78, which states the date of beginning of service to be 25.1.1955. At page no. 82 of the same, the residence is noted as Harmu Road, Kishoreganj. It is submitted that the petitioner has also produced the Service Book of Gulabia Devi (i.e. DW-3), who happens to be Mami of Respondent no. 1, which at page no. 75, Ext. 5, suggests that she is the resident of Harmu Road, Harijan Colony as would appear from page 77 a noting in which LTI has been taken on 5.3.1950.
18. Learned counsel for the Respondent no. 1, in support of his contention, has relied upon the following Judgments:-
(1) in the case of Kanimozhi Karunanidhi Versus A. Santhana Kumar and Others reported in 2023 SCC Online SC 573,
(ii) in the case of Laddu Ram Versus Jaipal Singh passed in Election Petition No. 08 of 2019 vide judgment dated 08.11.2023 by the High Court of Madhya Pradesh at Gwalior,
(iii) in the case of Jaipal Singh v. Sumitra Mahajan reported in (2004) 4 SCC 522,
(iv) in the case of Smt. Saroja Devi Gupta Vs. Smt. Aruna Jaiswal reported in 2018 SCC OnLine Chh 755, 22
(v) in the case of Sadashiv H. Patil Versus Vithal D. Teke and Others reported in 2000 (8) SCC 82,
(vi) in the case of Anil Vasudev Salgaonkar Versus Naresh K. Shigaonkar reported in 2009 (9) SCC 310 ,
(vii) in the case of Rajendra Kr. Meshram Versus Vanshmani Prasad Verma and Another reported in 2016 (10) SCC 715,
(viii) in the case of Santosh Yadav Versus Narendra Singh reported in 2002 (1) SCC 160,
(ix) in the case of Union of India and Others. Versus Dudh Nath Prasad reported in 2000 (2) SCC 20,
(x) in the case of Prashant Vidyarthy (In 4050) and Suman Kr.
Singh (In 3912) Versus State of Jharkhand and Ors. Reported in 2002 SCC Online Jhar 1011 .
It is submitted that in view of the above, this Election Petition may be dismissed.
19. Dr. Ashok Kumar Singh, learned counsel appearing on behalf of the Respondent no. 2 has submitted that the nomination paper of the Respondent no. 1 has been validly accepted by then Respondent No. 2. It is submitted that as per guidelines issued by Election Commission of India with regard to Caste of the Candidate, the Returning Officer has acted properly and all the steps have been taken by the Returning Officer as per 'Handbook' provided to him by the Election Commission of India. It is submitted that power to conduct election is vested under Article 324 of the Constitution of India to control and conduct the election. It is submitted that the guideline of the Election Commission of India is statutory. It is submitted that Clause- 6.10 provides grounds for rejection of nomination paper. It is submitted that in light of the Sub-clause (viii) item no-iii of the Clause 6.10 and item no. (viii) the Caste Certificate has to be seen mainly on the ground as follows:-
23(i) Forged certificate or genuine,
(ii) Whether it was issued by the Competent Authority or not ?
20. It is submitted that the Returning Officer has acted in the mandate of Handbook of Election Commission of India. It is further submitted that the Election Petitioner has not challenged before the Respondent no. 2 that the Caste Certificate of the Respondent no. 1 was a forged certificate, rather the election-petitioner has challenged the validity of Caste Certificate merely and as such, the Returning Officer has acted within its jurisdiction and as per guideline provided in the Handbook of Election Commission of India. Thus, there is no merit in this Election Petition. It is submitted that even the Returning Officer had made local enquiry and had obtained the report of the Circle Inspector as well as Circle Officer, Bargain, Ranchi and the objection raised by the Election-petitioner was considered and found that the same was devoid of merit and thus, this Election Petition may be dismissed.
21. In reply, learned counsel for the petitioner has submitted that there is no question of application of Article 324 of Constitution of India in the present case. It is submitted that argument raised by the Respondent no. 1 is beyond pleadings. It is submitted that the Respondent no. 2-Election Commission of India has not filed any counter affidavit to the ground raised in the Election Petition by the petitioner. It is further submitted that the Returning Officer has been examined as a Respondent's witness as DW-15-A and the Respondent no. 2 is hand in glove with the Respondent no. 1. It is submitted that 'Handbook' filed in this case by the Election Commission is not part of the record and as such, no reliance can be placed upon the same. It is further submitted that no verification report has been brought on record by the Returning Officer in the order sheet dated 26.11.2019 and the Returning 24 Officer has not discharged his duties diligently as an Election Officer. It is further submitted that the Returning Officer has not named any person as a witness for verification of the Caste Certificate of the Respondent no. 1. It is submitted that even the place of verification of the certificate of Respondent no. 1 has not been disclosed by the Returning Officer either by filing any counter affidavit or during the evidence before this Court. It is further submitted that the Returning Officer has committed grave illegality by accepting the photocopy of the Caste Certificate produced by the Respondent no. 1 and the Returning Officer has illegally and wrongly accepted the Caste Certificate filed on behalf of the Respondent no. 1, Smmari Lal. It is submitted that neither any slip nor any chit of paper was filed by the Returning Officer to show that the Caste Certificate of the Respondent no. 1 was verified by the particular Circle Officer. Hence, the election of the Respondent no. 1 may be declared as void.
22. By way of reply, learned counsel for the Respondent no. 1 has further submitted that there was no Clause in the nomination paper to file Original Caste Certificate and as such, the original Caste Certificate was not required to be produced at the time of filing of nomination paper. It is further submitted that the Original Caste Certificate of the Respondent no. 1 was filed before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Rajesh Shankar) in W. P. (C) No. 1583 of 2022 and it was also filed before the Caste Scrutiny Committee.
23. Perused the record of this case and considered the submission of both the sides.
24. It transpires that prior to filing of this Election Petition No. 03 of 2020, one Priya Ranjan Sahay, a Voter of Ranchi Assembly Constituency had filed W.P.(C) No. 6502 of 2019 before 25 this Court for issuance of direction upon the respondent nos. 1 to 4 including Returning Officer for passing final order upon the complaint lodged by him on the ground that the nomination filed by Smmari Lal ( i.e. Respondent no. 7 in that writ petition) - a B.J.P. candidate from Kanke (reserved assembly constituency for Scheduled Caste) by suppressing his place of origin and by projecting himself as member of Scheduled Caste of the State of Jharkhand, although his origin is from the State of Rajasthan.
25. The above W.P.(C) No. 6502 of 2019 was disposed of on 04.12.2019 by the Co-ordinate Bench of this Court (Hon'ble Justice Rajesh Shankar) with the following observations as follows:-
"Para-14:- In view of the aforesaid discussion, I am of the considered view that since the election process is continuing and the dispute has been raised by the petitioner in relation to acceptance of the nomination papers of the respondent no. 7 by the returning officer, the writ petition preferred by him is not maintainable. So far as the facts pleaded by the petitioner in the present writ petition is concerned, he has not brought on record any such conclusive proof or an adjudication by appropriate court of law/forum that the respondent no. 7 is a permanent resident of the State of Rajasthan . Be that as it may. Since those are the questions of facts and as has been observed by this Court that the present writ petition preferred by the petitioner is not maintainable as the election process is still continuing, there is no need to entertain the said factual issues raised by the petitioner in the present writ petition.
15. The writ petition is accordingly dismissed."
26. It further transpires that during pendency of the instant Election No. 03 of 2020 before the Co-ordinate Bench of this Court, the Caste Certificate dated 31.10.2019 of the Respondent no. 1 was cancelled by the Caste Scrutiny Committee and thereafter the Respondent no. 1, Smmari Lal had filed W. P (C) No. 1583 of 2022 26 for quashing the order dated 01.04.2022 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 in the said W. P (C) No. 1583 of 2022) by which the Caste Certificate dated 31.10.2009 of the Respondent no. 1, Smmari Lal was cancelled.
27. Thereafter, the said W. P (C) No. 1583 of 2022 was disposed of vide order dated 31.01.2023 by the Co-ordinate Bench of this Court (Hon'ble Justice Rajesh Shankar) and the operative portion of the order as mentioned in para-58 and 59 read as follows:-
Para-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 the case of 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.27
(v) Thereafter, the Committee will pass final order on affording due opportunity of hearing to the parties.
Para-59:- The Writ petition is disposed of with aforesaid observations and directions."
28. It has been informed during course of hearing of this Election that the Election Petitioner had filed Letters Patent Appeal before the Division Bench of this Court. Although the LPA number has not been disclosed before this Court by either side of the parties, However, while going through the website of the Jharkhand High Court, it appears that L.P.A. No. 51 of 2023 was filed by the Election Petitioner, Suresh Kumar Baitha whereas the L.P.A. No. 93 of 2023 was filed on behalf of the State of Jharkhand and L.P.A. No. 130 of 2023 was filed on behalf of the Respondent no. 1, Smmari Lal before the Division Bench of this Court. However, all the above Letters Patent Appeals were dismissed as not pressed for on 04.07.2024.
29. The web copy of the order dated 04.07.2024 obtained from the website of the High Court of Jharkhand passed in L.P.A. No. 51 of 2023 along with L.P.A. No. 93 of 2023 and L.P.A. No. 130 of 2023, reads as follows:-
"All these three appeals have been listed together with respect to adjudication of the issue of caste status of the appellant and the respondent.
It has been informed by the learned counsels appearing for the parties that during pendency of the issue of caste, the appellant of L.P.A. No.130 of 2023 has already won the election. Thereafter, Election Petition has been filed by the appellant of L.P.A. No.51 of 2023. It has further been submitted that in the said Election Petition, i.e., Election Petition No.03 of 2020, the hearing has been concluded and judgment has been reserved.28
In view of the aforesaid fact, the learned counsels for the parties are not pressing the appeals since the final declaration is expected to come in Election Petition No.03 of 2020. Considering the aforesaid facts that the very issue of the status of caste is already under consideration before the learned Trial Court for its adjudication in Election Petition No.03 of 2020, these appeals are dismissed as not pressed.
Pending Interlocutory Applications, if any, also stand disposed of."
30. It transpires from the record that the Election-Petitioner, in support of his case, has got examined following witnesses, who are as follows:-
(i) P.W.-1, Suresh Kumar Baitha, i.e. the Election-Petitioner and
(ii) P. W.-2, is Gulzar Ahmad.
31. The Election-Petitioner, in support of his case, has got proved following documents, which are as follows:-
(i) Exhibit-1 is the Copy of Letter No.265/11/2019 dated 26.11.2019 filed by Indian National Congress Committee.
[Objection petition filed by the Indian National Congress dated 26.11.2019 under the signature of Suresh Kumar Baitha)
(ii) Exhibit- 2 is the Copy of Letter Ref. No.02 of 2019 dated 26.11.2019 filed by Election Petitioner. [Another objection petition filed by the Jharkhand State Congress Committee dated 26.11.2019 signed by Alok Kumar Dubey, Kishore Kumar Sahdeo, Rajiv Ranjan Prasad and Rajesh Thakur).
(iii) Ext. -3 is the certified copy of the W. P. (C) No. 1583 of 2022 filed by the Respondent no. 1, Smmari Lal challenging the order dated 01.04.2022 passed by the Caste Scrutiny 29 Committee by which his Caste Certificate dated 31.10.2009 has been cancelled, was challenged before this Court.
(iv) Ext.-4 is the Supplementary Affidavit dated 28.04.2022 filed by the Respondent no. 1, Smmari Lal before the Co- ordinate Bench of this Court in W. P. (C) No. 1583 of 2022 by which he has enclosed the reply on 21.01.2022 filed before the Principal Secretary, Caste Scrutiny Committee.
(v) Ext. -5 is another Supplementary Affidavit dated 16.04.2022 filed in the said W. P. (C) No. 1583 of 2022 by the Respondent no. 1, Smmari Lal by which the letter dated 03.07.2004 as contained in Memo No. 3540 issued under the signature of Chief Secretary, Government of Jharkhand, had issued direction for issuance of Caste Certificate and which is enclosed as SA/1 to this affidavit. He has also enclosed letter dated 26.05.2015 as contained in Memo No. 1853 issued to all the Deputy Commissioners of the State of Jharkhand regarding procedure to be adopted while issuing of Caste Certificate on the basis of local enquiry and which enclosed as SA/2 to this affidavit. He has also enclosed the document in SA/3, SA/4 to SA/7 series, which are the directions issued by the State Government from time to time. Annexure-SA/4 is the letter dated 18.11.1982 issued by the Ministry of Home Affairs, Government of India regarding issuance of Scheduled Caste/Scheduled Tribe Certificate to migrants from other States/Union Territories.
(vi) Exhibit-6 is the Certified copy of Interlocutory Application No.3643 of 2022 filed by Election Petitioner in W.P.(C) No.1583 of 2022.
(vii) Exhibit- 7 is the Certified copy of Interlocutory Application No.3053 of 2022 filed by Respondent no. 1 in 30 W.P.(C) No.1583 of 2022 for stay of order dated 01.04.2022 contained in Memo No.1053 passed by the Caste Scrutiny Committee.
(viii) Exhibit- 8 is the Certified copy of order sheet of Writ Petition W.P.(C) No.1583 of 2022.
(ix) Ext. 9 is the certified copy of the nomination paper of the Election-Petitioner, Suresh Kumar Baitha along with Form- A, which is communication with regard to Authorized Person to intimate the name of candidate settled by recognized National Party and the name of the petitioner has been authorized by one Dr. Rameshwar Oraon, President, Jharkhand Pradesh Congress Committee, Ranchi along with certified copy of the Caste Certificate of the petitioner dated 15.11.2019 issued by the Circle Officer, Namkum and also Format C-I and declaration by candidate/election agent/proposal while submitting photograph of the candidate, information of Bank Account number for showing election expenses and also recording his name in the voter list in the prescribed format.
(x) Ext. -10 is the certified copy of the nomination paper of the Respondent no. 1, Smmari Lal consisting of Part-III, Part-IV and petition filed by the candidate in prescribed format.
Form- B notice is of the name of candidate set up by the political party dated 11.11.2019 containing details of investment and also declaration by candidate/ election agent/proposal while submitting photograph of the candidate, information of Bank Account number for showing election expenses and also recording his name in the voter list in the prescribed format.
Ext.-10 reveals that the wife of Smmari Lal is Grade-IV employee in the State of Rajasthan and employed in Primary 31 Health Centre at Bakhatarpura registration as Grade-IV employee.
Form-A discloses that the name of the Respondent no. 1 was authorized by Laxman Gilua, State Party President of BJP.
(xi) Ext.-11 is letter dated 05.08.2016 issued by the Principal Secretary of Personnel, Administration Forms and Rajbhasha Department and para-2 of which reveals that as per the guideline of Home Ministry dated vide letter dated 22.02.1985, the election of such people is not admissible, who has come to this State for the purpose of taking education and employment from the other State. Such person can be provided certificate on the basis of Caste Certificate of his father in which, the Original State is mentioned.
(xii) Ext.-12 is the letter dated 18.10.2005 issued by the Principal Secretary of Personnel, Administrative Reforms and Rajbhasha Department showing superseding of the letter dated 18.11.1982 issued by Union of India.
(xiii) Ext.-13 is the General Notice dated 01.04.2017 of the above of Sub-Divisional Officer, Sadar, Ranchi for the purpose of maintaining the name of SC/ST/OBC.
(xiv) Exhibit - 14 is the Signature of the witness on the copy of the Writ Petition filed in this court vide W.P.(C) No.1583 of 2022.
(xv) Exhibit - 15 is the Caste Certificate annexed with the said Writ Petition vide W.P.(C) No.1583 of 2022.
(xvi) Exhibit - 16 is the Copy of complaint petition of Suresh Kumar Baitha annexed with the Writ Petition vide W.P.(C) No.1583 of 2022.
(xvii) Exhibit - 17 to 17/7 respectively are the Letter dated 06.01.2021, 15.03.2021, 15.03.2021, 19.07.2021, 19.07.2021, 32 07.09.2021, 21.01.2022, 21.01.2022 respectively from Caste Scrutiny Committee annexed with the Writ Petition vide W.P.(C) No.1583 of 2022 as Annexure-4 Series are marked as Exhibits-17 to 17/7 before the Co-ordinate Bench of this Court. (xviii) Exhibit - 18 and Ext. -18/1 and Ext.-18/2 respectively are the reply of Smmari Lal to Member Secretary, Caste Scrutiny Committee dated 31.03.2021, 18.08.2021 and 20.07.2021 respectively.
(xix) Ext.-18/3 to 18/8 respectively is the reasoned order passed by the Scheduled Tribe, Scheduled Caste, Minority and Backward Class, Social Welfare Department, Jharkhand, Ranchi (xx) Ext.-18/9 to 18/18 respectively are the Gazette Notification dated 10.08.1950 with regard to The Constitution (Scheduled Castes) Order 1950, which including the castes declared in the States of the India including Bihar and Rajasthan etc. (xxi) Ext.-18/19 to 18/63 respectively are the Gazette Notification dated 29.10.1956 issued with regard to the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 (marked before the Co-ordinate Bench). (xxii) Ext.-18/64 to 18/66 respectively are the notification dated 22.03.1977 issued by the Government of India, Ministry of Home Affairs dated 22.03.1977 to the Chief Secretary to all the State Governments/ Union Territory Administrations with regard to issue of Scheduled Caste and Scheduled Tribe Certificates Clarifications regarding.
(xxiii) Ext.-18/67 to 18/68 are the letter dated 22.02.1985 issued by the Joint Secretary, Government of India/Bharat Sarkar, Ministry of Home Affairs.
33(xxiv) Ext.-18/69 is the Letter No. 14 dated 05.08.2016 issued by the Government of Jharkhand, Department of Personnel, Administrative Reforms and Rajbhasha to all the Deputy Commissioners for issuance of Caste Certificate. (xxv) Ext. -18/70 is the letter dated 30.11.2021 sent by the S.I. Bargain, Ranchi to Anchal Adhikari, Bargain, Ranchi with regard to Caste of Smmari Lal (MLA) Kanke Vidhan Sabha. (xxvi) Exhibit- 19 to 19/1 are letter dated 09.12.2020 sent by Anchal Adhikari, Bargain, Ranchi to the Deputy In-charge District Confidential Section, Ranchi Exhibit- 19/2 is letter dated 30.11.2021 sent by Circle-Inspector, Bargain, Ranchi to Anchal Adhikari, Bargain, Ranchi.
32. The Respondent no. 1, in support of his case, has got examined the following witnesses, who are as follows:-
(i) D.W.-1 is Dilip Ram,
(ii) D.W.-2 is Jugal Ram,
(iii) D.W.-3 is Gulabiya Devi,
(iv) D.W.-4 is Sajna Ram,
(v) D.W.-5 is Binod Ram, S/o Bannu Ram,
(vi) D.W.-6 is Krishna Ram,
(vii) D.W.-7 is Tikam Chand Pawar,
(viii) D.W.-8 is Basant Ram,
(ix) D.W.-9 is Anand Kumar Balmiki,
(x) D.W.-10 is Binod Ram, S/o Baiju Ram,
(xi) D.W.-11 is Parbhati Ram,
(xii) D.W.-12 is Bhagi Ram,
(xiii) D.W.-13 is Brij Kishore Viyay,
(xiv) D.W.-14 is Smmari Lal i.e. Respondent no. 1 himself,
(xv) D.W.-15 is Damodar Ram, (xvi) D.W.-15A is Manoj Kumar Ranjan (Returning Officer) 34 (xvii) D.W.-16 is Jyoti Kumar Singh, and (xviii) D.W.-17 is Kund Chandra Mehta.
33. The Respondent no. 1, in support of his case, has got proved the following documents, which are as follows:-
(i) Exhibit-A is the Letter/ Memo of retirement dated 06th May, 2003 of Mr. Prabhati Lal @ Prabhati Ram (D.W.11).
(ii) Exhibit-B is the Office Order dated 28.04.2014 with respect to retirement of Bhagi Ram Balmiki (D.W.12) .
(iii) Exhibit -C is the Letter dated 17.10.2022 addressed to the Hon'ble Governor.
(iv) Exhibit-D is the Photocopy of the Caste Certificate of Respondent no. 1
(v) Exhibit -D/1 is the Original copy of Aadhar Card of Respondent no. 1
(vi) Exhibit- D/2 is the Original Certificate of Matric Examination of Respondent no. 1
(vii) Exhibit-D/3 is the Original Certificate of Mark-sheet of Intermediate of Respondent no. 1.
34. The following documents have been marked for identification on behalf of the petitioner:-
(i) Document - 'X' is Khatiyan,
(ii) Document - X/1 is Khewat and
(iii) Document - X/2 is Malguzari Receipt.
35. The following documents have been marked for identification of the Respondent no. 1:-
(i) Document -Y is the photocopy of Service Book of Sri Sajna Ram, Biology Department, Ranchi College, Ranchi erstwhile employee of Ranchi University and
(ii) Document -Y/1 is the photocopy of application for pension other than family pension and for gratuity.35
36. The Co-ordinate Bench of this Court (Hon'ble Mr. Justice Anil Kumar Choudhary) has framed the following issues on 03.12.2021, which are as follows:-
(i) Whether the petition as framed and filed is maintainable?
(ii) Whether there is cause of action for filing this Election Petition?
(iii) Whether the petition is barred by limitation, doctrine of waiver, estoppel and acquiescence?
(iv) Whether the petitioner is a member of Scheduled Caste in relation to State of Jharkhand?
(v) Whether the Respondent no. 1 has fraudulently obtained Caste Certificate and using the same has deceived the Respondent no.2 to setup himself as a candidate in Reserved Constituency for Scheduled Caste candidate of the State of Jharkhand?
(vi) Whether the Respondent no.2 has illegally allowed the Respondent no. 1 to contest from 65, Kanke (SC) Constituency?
(vii) Whether the father of the Respondent no. 1 and his ancestors originally belong to State of Rajasthan?
(viii) Whether the Respondent no. 1 is not a permanent resident of State of Jharkhand?
(ix) Whether the family members of Respondent no. 1 are taking the benefits of reservation both in the State of Jharkhand and Rajasthan as Scheduled Castes persons?
(x) Whether the result of election of 65, Kanke (SC) State Assembly Constituency has been materially affected by improper acceptance of nomination of Respondent no. 1?
(xi) Whether the Respondent no. 1 is by caste Bhangi and a member of Scheduled Caste?36
(xii) Whether the Caste Certificate issued to the Respondent no.
1 is in violation of Letter No.BC16015/1/82SC & BC-2 dated 20.02.1985, Letter No.7/Bha.Vi.Sa. 016-15/04 Ka 3557 dated 18.10.2005 and Letter No.14/Ja.Ni.-03-13/2016 Ka.6763 dated 05.08.2016 issued by the Department of Personnel, Administrative Reforms & Rajbhasa, Government of Jharkhand?
(xiii) Whether the election of Respondent no. 1 from the 65, Kanke (SC) Constituency is liable to be set aside?
(xiv) To what relief/reliefs, the petitioner is entitled to ?
37. So far as oral evidence is concerned, P.W. -1 is Suresh Kumar Baitha i.e. the Election Petitioner, who has filed his affidavit on an affidavit in Hindi by stating therein that he is the petitioner of this case and has challenged the election of the Respondent no. 1 of the 65 Kanke (SC), Constituency Assembly Region during the Election of Vidhan Sabha of the State of Jharkhand, 2019. He stated that this 65 Kanke (SC), State Legislative Assembly Region is reserved for the candidate of Scheduled Caste and he filed his application for electing him as candidate from Indian National Congress and had participated in the election. He has filed his nomination papers before the Court, which are in 32 pages. He further stated that apart from him, the Respondent no. 1 and eleven (11) other persons had filed their nomination papers. The Respondent no. 1 had filed his nomination papers as a candidate of Bhartiya Janta Party (in short BJP) being addressing himself as Scheduled Caste Candidate and has also filed nomination papers. He further stated that the Respondent no. 1 has deceitfully and wrongfully participated in the election by declaring himself as a candidate of Scheduled Caste whereas the Respondent no. 1 is not Scheduled Caste of resident of State of Jharkhand. The Party i.e. 37 Indian National Congress of the petitioner had filed an application before the Chief Election Officer on 26.11.2019 for restraining the Respondent no. 1 from participating in the election as Scheduled Caste Candidate.
38. He also filed his objection before the Returning Officer on 26.11.2019 for verifying and cancelling the nomination paper of the Respondent no. 1 and the said objection was marked as Ext. I. However, despite objection raised by the petitioner, neither the Returning Officer nor the Chief Election Officer did anything and the Respondent no. 1 was permitted to contest in the Assembly Election only on the basis of photocopy of the Caste Certificate of Respondent no. 1 and the Respondent no. 1 was wrongly permitted to participate in the Election from the reserved seat as the Respondent no. 1 is not Scheduled Caste of the State of Jharkhand. Hence, he was not competent to contest the election. He further stated that the Returning Officer had accepted the nomination paper of the Respondent no. 1 in the wrong manner and allowed him to participate in the election whereas 65 Kanke (SC), Constituent Assembly which is reserved for the candidate of Scheduled Caste. He further stated that the Respondent no. 1 is the mainly resident of the State of Rajasthan and his father was given job in Rajendra Ayurvedic Sansthan i.e. (Rajendra Institute of Medical Science), Ranchi. The family member of the Respondent no. 1 had migrated to erstwhile State of Bihar and thus, the Respondent no. 1 is not permanent resident of Jharkhand. Even his wife Anita Jedia is Class- IV Employee in the Primary Health Centre as a candidate of Scheduled Caste in the State of Rajasthan under the Rajasthan Government.
Thus, the Respondent no. 1 and his family are taking benefits of reservation in both the States i.e. Jharkhand and 38 Rajasthan and the Respondent no. 1 is not the Scheduled Caste of Jharkhand.
He proved the letter no. 14 dated 05.08.2016 issued by the Department of Personnel Administrative Reforms and Rajbhasa, Government of Jharkhand to be marked as Ext. -11 He also proved Letter No. 7 dated 08.10.2005 issued by the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand marked as Ext. -12
39. He further stated that the Respondent no. 1 has wrongly and deceitfully filed the Scheduled Caste Certificate and against which he had also raised objection before the Caste Scrutiny Committee and on his objection so raised, the Caste Scrutiny Committee started legal process and after following all the procedure established in law, it has cancelled the Caste Certificate of the Respondent no. 1 vide order dated 01.04.2022. Thereafter the Respondent no. 1 had filed the writ petition before the High Court challenging the order dated 01.04.2022 by filing W. P. (C) No. 1583 of 2022.He has filed the certified copy of the writ petition, (which are in 140 pages) which is marked as Exhibit-3 and also filed certified copy of the Supplementary Affidavit dated 08.04.2022, (which are in 7 pages) marked as Exhibit-4 and also filed further certified copy of Supplementary Affidavit dated 16.04.2022, (which are in 137 pages) and which have been marked as Ext-5.
40. He had also filed I. A. No. 3643 of 2022 in the said W. P. (C) No. 1583 of 2022 and the certified copy of the said I. A. No. 3643 of 2022 has been marked as Ext. -6.
He also stated that even the Respondent no. 1 has filed Interlocutory Application being I. A. No. 3053 of 2022, which are in 17 pages, which has been marked as Ext. -7 39 He also filed the certified copy of the order passed in the said W. P. (C) No. 1583 of 2022, (which is in six pages) and which has been marked as Ext.-8.
41. He further stated that the Respondent no. 1 is not Scheduled Caste of the State of Jharkhand, despite this fact, he wrongly obtained Caste Certificate and had participated from the reserved seat of Scheduled Caste and which is completely illegal and hence, the election of the Respondent no. 1 may be declared as illegal and election may be cancelled and fresh election may be held.
He further lead evidence before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary). He proved the Election Petition in his writing and signature, which has been marked as Ext. -I. The petitioner has further proved two objection petition filed by the Indian National Congress before the Chief Election Officer and Election Officer on 26.11.2019. This Objection Petition is in the typed form and was signed by Alok Kumar Dubey, Kishore Kumar Sahdeo, Rajesh Ranjan Prasad and Rajesh Thakur and it was typed by Damodar which is marked as Exhibit -2. (Before the Co-ordinate Bench of this Court)
42. During cross-examination, he stated that his name figures in the record of rights of the year 1932 and Khata No. of 1932 Khatiyan is 605 Village Rajaulatu and he is native resident of that village under Ranchi District. This Khata was recorded in the name of his grand-father Late Ranjit Dhobi and he lives at his village as well as at Ranchi. His grand-father was having four brothers and on partition, this land pertaining to this Khata was allotted to him. He did his Middle School education from St. Josheph School of his Village and then High School from St. Jons School, Ranchi and did his Graduation from St. Xaviers College, 40 Ranchi. He did his P.G. from Ranchi University. He came in politics after he passed Matriculation Examination. His date of birth is 14th January, 1975 and his father was a farmer. He joined the Congress Party since beginning and for the first time, he contested election in 2009 on ticket from Indian National Congress in which he lost the election. The other contesting candidates to that election were Ramchandra Baitha of BJP, Smmari Lal of JMM and the candidate of BJP has won the election.
However, he had not raised any objection in the year 2009 against the candidature of Smmri Lal i.e. the Respondent no. 1. However, he raised this objection this time before the Returning Officer.
He also admitted that the Caste Certificate of Smmari Lal i.e. the Respondent no. 1 was filed in the Election of 2009 which was also issued by the Ranchi Municipal Corporation, Ranchi. Even at the time of the preparation of Voter List in the year 2009, he did not raise any objection regarding caste of Smmari Lal i.e. the Respondent no. 1.
He also stated that his Caste Certificate i.e. the Election Petitioner Caste Certificate was issued by the Circle Officer, Namkum and he has been contesting the election since the year 2009. However, the petitioner further asserted during his cross- examination at Para-17 that the Respondent no. 1 belongs to Bharatpur in State of Rajasthan, but he cannot say in which town from Rajasthan, Respondent no. 1 hailed. However he asserted that the father of Smmari Lal had migrated from Rajasthan during the time of United Bihar, but he does not know, in which year, he had migrated from there. However, he raised the objection regarding the Caste Certificate of Summari Lal at time of filing of the nomination paper, the things were stalled for about an hour but thereafter his 41 nomination paper was accepted. He does not remember the entire list of Scheduled Caste of 1950 and he cannot say whether in that list the cast of Smmari Lal figured or not.
The State of Jharkhand came into being on 15.11.2000 and the father of Smmari Lal was not employed in the State of Jharkhand, but his father was employed in RIMS, Ranchi and he had retired from there whereas Smmari Lal was born in the year 1963.
He shown ignorance about passing of order by the Jharkhand High Court in Writ Petition No. 6502 of 2019 and he stated that he does not know Priya Ranjan Sahay.
He firstly filed Election Petition in 2020 and then he went before the Caste Scrutiny Committee, but neither he got examined any witness in that case nor he was also examined.
He filed the petition for the cancellation of the nomination of the Respondent no. 1 which was in his writing and signature and objection was raised because the original copy as required to be filed along with the photocopy was not annexed with the nomination paper. He raised objection with regard to the Caste Certificate at the time of filing of the nomination paper in 2019 Assembly Election. The Congress Party had also raised objection regarding the Caste Certificate of the candidate. He has filed the decision of the Caste Scrutiny Committee regarding the domicile of the Respondent no. 1. He had lost the election by about 21,000 votes. Smmari Lal- Respondent no. 1 had not concealed any fact in his nomination paper. However, he could not say whether the father of Respondent no. 1 was living in then State of Bihar since before the independence of the Country. He denied the suggestion for being set up by his party. He denied for giving false evidence in this case.
43. Thus, from scrutinizing the evidence of P.W.-1, Suresh Kumar Baitha i.e. Election Petitioner, it is evident that both the 42 parties i.e. the Election Petitioner and the Respondent no. 1, Smmari Lal had contested 65 Kanke (SC), State Legislative Assembly Constituency during the Election of Vidhan Sabha of the State of Jharkhand in the year 2019 for being declared as MLA and total 12 persons had filed their respective nomination papers. He had pointed out that the Respondent no. 1 is not Scheduled Caste of the State of Jharkhand as his father was resident of Rajasthan in the District of Bharatpur and he was employed in RIMS at the relevant time.
He also pointed out that the nomination paper of the Respondent no. 1 was filed deceitfully and wrongly and despite objection raised by the Election Petitioner, the Returning Officer had directed him to participate in the Election, and these objections were neither dealt with by the Returning Officer nor by the Chief Election Officer and the Respondent no. 1 was permitted to contest the election and the Returning Officer has wrongly accepted the nomination paper of the Respondent no. 1, which was reserved for the Candidate of the Scheduled Caste. He pointed out that Circular of the Personnel and Administrative Reforms and Rajbhasa Department, Government of Jharkhand and also Letter No. 7 dated 08.10.2005 issued by the said Department. \ He has even filed certified copy of W. P. (C) No. 1583 of 2022, which are in 140 pages and in supplementary affidavit dated 08.04.2022 (in 7 pages) and copy of I. A. No. 3643 of 2022 and I. A. No. 3053 of 2022 and the certified copy of order sheet of W. P. (C) No. 1583 of 2022 (in six (6) pages) and another supplementary affidavit dated 16.04.2022 (in 137 pages). He has also shown ignorance about the order dated 04.12.2019 passed by the High Court in W. P (C) No. 6502 of 2019, which was filed by one Priya Ranjan Sahay. He further asserted that he raised objection of Caste Certificate of the Respondent no. 1 in the year 2019 for the 43 first time before the Returning Officer, whereas, on the other hand, he had admitted at Para. 13 and 14 of his cross-examination that the Respondent no. 1, Smmari Lal had contested the Assembly Election of 2009 as a candidate of JMM and the petitioner had also contested the Assembly Election of 2009 as a Candidate of Indian National Congress(i.e. INC), even the winning candidate of 2009 election i.e. Candidate of BJP namely Ramchander Baitha had not raised any objection on the Caste Certificate of the Respondent no. 1. However, it is evident from the evidence of the PW.-I that not only the Election Petitioner Suresh Kumar Baitha, but also the Indian National Congress had filed objection in writing before the Returning Officer during 2019 Assembly Election in writing, which has been marked as Ext. -2.
The assertion of the petitioner will be seen and examined again after perusal of the entire document and evidence of the other witnesses of the petitioner as well as Respondent no. 1.
44. P.W.-2 is Gulzar Ahmad, who had also filed his evidence on an affidavit on 13.09.2022 stating therein that the petitioner has filed this application for cancelling/set aside the Assembly Election of 2019 of the Respondent no. 1 from 65 Kanke (SC), State Legislative Assembly Constituency of the State of Jharkhand, 2019 and he was nominated as Election Agent of the petitioner-Suresh Kumar Baitha and the petitioner has made him his Election Agent. He also asserted that the Respondent no. 1, Smmari Lal does not fall in the category of Scheduled Caste in the State of Jharkhand and he has deceitfully participated in the 2019 Election on the basis of false Caste Certificate. Even the petitioner and the Indian National Congress had raised objection on 26.11.2019 with regard to acceptance of nomination paper of the Respondent no. 1, Smmari Lal, but the Returning Officer/ Election Officer deliberately 44 did not take any steps and had allowed the Respondent no. 1, Smmari Lal to contest the 2019 Election from the reserved seat of Scheduled Caste.
He further stated that Late Mishri Lal Balmiki, who was the father of the Respondent no. 1, Smmari Lal, had come to Ranchi from Rajasthan in the year 1965 for doing service in then Rajendra Medical College and Hospital and this migration was for the purpose of doing job. He also asserted that the family of the Smmari Lal is also taking the benefit of reservation of Scheduled Caste in the State of Rajasthan and his wife is working in Primary Health Centre, Bharatpur, Rajasthan as a candidate of Scheduled Caste and after completing procedure describes, the Caste Scrutiny Committee vide its order dated 01.04.2022 has declared the Caste Certificate of Smmari Lal as illegal. He also stated that Smmari Lal is not a member of Scheduled Caste Candidate in Jharkhand and has wrongly participated in the Election and hence the election of the Respondent no. 1 may be declared illegal.
45. During his cross-examination, he stated that he was born in the year 1980. He again stated that father of Smmari Lal had come to Ranchi in the year 1965, but he had no personal knowledge of it. He stated that he is acquainted with Suresh Kumar Baitha for the last about 15 years and he knows Smmari Lal for the last 5-6 years. He had not given any objection before the Election Officer. He had not appeared as a witness before the Caste Scrutiny Committee and had not seen the report of the Caste Scrutiny Committee dated 01.04.2022. He also stated that the wife of Smmari Lal i.e. the Respondent no. 1 (he learnt her name from the Photocopy of her AADHAR Card, which was given to him by the petitioner- Suresh Kumar Baitha) is taking benefit of reservation in the State of Rajasthan and employed in the Health Department, 45 Bharatpur, Rajasthan. However, he has stated that he does not know whether Smmari Lal, Respondent no. 1 is getting any benefit of Reservation in the State of Rajasthan or not.
46. Thus from the scrutinizing the evidence of PW.-2, Gulzar Ahmad, it is evident that though he had stated that the father of Smmari Lal had come to Ranchi in the year 1965, but he had no personal knowledge of it as he was born in the year 1980. However, he has also asserted that wife of the Respondent no. 1 is taking benefit of reservation of Scheduled Caste in the State of Rajasthan and wife of the Respondent no. 1 is working in the Health Department, Bharatpur, Rajasthan.
Thus, PW.-2, Gulzar Ahmad has merely supported the claim and the evidence of PW.-1, Suresh Kumar Baitha. His evidence is worthy to be considered.
47. So far as the evidence of the Respondent no. 1 is concerned.
48. D. W. -1 is Dilip Ram (i.e. son of DW-4) who had also filed his evidence on an affidavit by stating therein that he is acquainted with the Smmari Lal ie. the Respondent no. 1 since the time of his birth and this case has been instituted by the petitioner- Suresh Kumar Baitha to cancel the election of 2012 (due to typographical error, it has been mentioned as '2012' instead of '2019'). He further stated that his grand-father and father of the Respondent no. 1 i.e. Smmari Lal were cousin brothers and his grand-father and grand-father of Smmari Lal i.e. Respondent no. 1 came to Ranchi since before the Independence of India, which was part of the United Bihar and they were brought to Ranchi by British People for cleaning work and they were residing at Balmiki Nagar, Harmu Road, Ranchi. The Respondent no. 1, Smmari Lal was born at Ranchi in the month of June, 1962 and since then, the Respondent 46 no. 1 is living in Ranchi since his birth. He also stated that Smmari Lal i.e. the Respondent no. 1 is by Caste Bhangi (Mehtar) and follows the Hindu religion, and he comes in the category of Scheduled Caste. Smmari Lal i.e. the Respondent no. 1 has not taken the benefit of reservation in any other State except Jharkhand (erstwhile State of Bihar).
49. During cross-examination, he admitted that the Respondent no. 1 had not won any election before 2019. He further stated that Late Mohan Ram is his grand- father (i.e. grand-father of the DW-1) and late Janki Ram was the grand-father of Smmari Lal. However, he had not filed any residential proof of Smmari Lal or his ancestors in the Court. He has shown ignorance about the name of wife of the Smmari Lal i.e. Respondent no. 1, but stated that she is posted somewhere in Rajasthan. He admitted that the Respondent no. 1, Smmari Lal happens to be his relative. He denied the suggestion of giving false evidence as being related to Smmari Lal.
50. Thus, from scrutinizing the evidence of D. W. -1, Dilip Ram, it is evident that he is second generation cousin brother of the Respondent no. 1 and has stated that his grand-father as well as grand-father of the Respondent no. 1 had been brought from Rajasthan to Ranchi by the British People for the purpose of cleaning works etc. and they were employed and provided job in RIMS before the independence of India and they had settled in the erstwhile the State of Bihar and now in the State of Jharkhand after bifurcation of State. He had also admitted that the wife of the Respondent no. 1 i.e. Smmari Lal is doing job in the State of Rajasthan.
51. It is evident that DW-1 has been examined on the point of settlement of the ancestors of the Respondent no. 1 in Ranchi and 47 also on the point that Respondent no. 1 had been born in the month of June, 1962 at Ranchi.
Thus, DW-1 has supported the case of the Respondent no. 1.
52. D.W.-2 is Jugal Ram, who has filed his evidence on an affidavit on 01.12.2022, stating therein that he is acquainted with Smmari Lal since his childhood and he resides in the same Muhulla. He further stated that Late Janki Ram, grand-father of the Respondent no. 1, Smmari Lal and Mishri Ram, father of the Respondent no. 1, Smmari Lal were resident of Balmiki Nagar, Ranchi since before the independence and they were residing in Balmiki Nagar, Harmu Road, which is known as Harijan Colony. He further stated that Smmari Lal is living in Ranchi since the time of his birth and belongs to Scheduled Caste Category and has taken education in Ranchi.
53. During his cross-examination, he denied to have any personal knowledge as to where Janki Ram was employed and where he was living. He has shown unawareness that Caste Certificate of Smmari Lal has been cancelled and he is unaware of the relief for which the present petition has been filed.
54. Thus, from scrutinizing the evidence of D.W.-2, Jugal Ram, it is evident that he has been examined on the point of permanent residence of grand-father of the Respondent no. 1, who came from Rajasthan and settled at Ranchi since before the Independence and were living in Balmiki Nagar, Harmu Road, Ranchi. Thus, DW-2 has also supported the case of Respondent no. 1.
55. D.W.- 3 is Gulabia Devi, aged about 88 years and her evidence has also been filed on an affidavit, stating therein that she is acquainted with Smmari Lal, Respondent no. 1 since the time of his birth and she is aware of filing of this case by the petitioner- Suresh Baitha against the Respondent no. 1, Smmari Lal. She was 48 born and brought up in Ranchi and her father was also resident of Balmiki Nagar, Harmu Road, Ranchi and she was married with Late Ganpath Ram in Balmiki Nagar. She has been living in Balmiki Nagar, Ranchi since before the time of Independence. She was working as Sweeper from 03.03.1950 till her retirement in Ranchi Municipal Corporation and she has also filed her Service Book.
She has also stated that her original service book was lost and she has filed photocopy of her said Service book. She also stated that Respondent no. 1, Smmari Lal was born in Balmiki Nagar, Ranchi and comes in the category of Harijan and she is Mami (i.e. Maternal Aunt) of the Respondent no. 1 in relation.
56. During cross-examination, she could not say the name of father of Smmari Lal. She admitted that Mishri Lal Balmiki and Nagar Ram were neither brothers nor relatives to each other. She had not reported to any competent authority that her original service book which has been lost. She cannot say from where Mishri Lal Balmiki had come to Ranchi, but she had seen him at Ranchi.
57. Thus, from scrutinizing the evidence of DW-3, Gulabia Devi, it is evident that she has fully supported the case of the Respondent no. 1, Smmari Lal on the point of his being resident at Balmiki Nagar, Harmu Road, Ranchi and also on the point of his birth in Ranchi. She also stated that grand-father of the Respondent no. 1 was residing at Balmiki Nagar, Ranchi and she was working as Sweeper in Ranchi Municipal Corporation since 1980 till the date of her retirement. She could not say the name of father of the Respondent no. 1, Smmari Lal, but she stated that Mishri Lal Balmiki had come to Ranchi, who was the father of the Respondent no. 1, Smmari Lal.
58. DW.-4 is Sajna Ram, who is aged about 85 years and has filed his evidence on an affidavit, stating therein that Smmari 49 Lal S/O Late Mishri Lal Balmiki i.e the Respondent no. 1 is his brother and their ancestors were brought by British People since before Independence at Ranchi and they were made to settle at Harmu Road, Kishorganj, Balmiki Nagar at Ranchi and since then they are residing there. He was also born in Harmu Road, Kishorganj, Balmiki Nagar at Ranchi and his mother Shanti Devi was also employed in Ranchi Municipal Corporation and retired from there and she was getting pension throughout her life and his wife Umrao Devi has also retired from Ranchi Municipal Corporation and she is also getting pension. This witness i.e. DW-4 had also worked in Ranchi University, Ranchi from 25.01.1955 to 28.02.1999 and he is a pensioner employee and he is getting pension in the Bank Account No. 141 of Central Bank of India, Ranchi College Campus Ranchi and his original service is in save custody in the Ranchi University. He had also filed photocopy of his service book. He further asserted that his Uncle and late Mishri Lal Balmiki, father of Smmari Lal, i.e. the Respondent no. 1, was paid pension throughout his life while working in RIMS, Ranchi. He and the ancestors of Smmari Lal have been living together at Balmiki Nagar, Harmu Road, Kishorganj, Ranchi prior to Independence. His two sons are now pensionary employee and living in Ranchi.
59. He further asserted that total four persons i.e. he himself in Ranchi University, his wife Umrao Devi in RIMS Ranchi, his son Dilip Ram in CMPDI and his another son Tikam Chand Ram in Ranchi University were Government Servant in State of Jharkhand and they are the Pensioner Employees. He started service from 25.01.1955 on the salary of Rs. 17 and 8 Aana in the pay-scale of Rs. 19, 1/2-1/2-22,1/2. After retirement he was nominated as member of District Level Caste Recommendation Committee by the erstwhile State of Bihar. Minister of the then State Government had 50 issued Character Certificate to him for doing work for Balmiki Society by him. He also stated that prior to doing job in the University in the year 1955, he had worked as Sweeper in the Ranchi Municipal Corporation.
60. However, during his cross-examination, he could not file any documentary evidence in support of the contention that Mishri Lal (father of the Respondent no. 1) had been settled at Ranchi during British period. He shown his ignorance regarding documentary evidence that the ancestors of Smmari Lal i.e. the Respondent no. 1 have been living at Ranchi since before the independence.
61. Thus, from scrutinizing the evidence of D.W.-4, Sajna Ram, it is evident that he has fully supported the case of the Respondent no. 1, Smmari Lal on the point that their ancestors (i.e. ancestor of DW-4 and ancestor of Respondent no. 1) have been brought from Rajsathan to Ranchi by the British People since before the Independence and even DW.-4 and his wife and his two sons were given employment at Ranchi University, RMCH and CMPDI respectively and all of them have retired from their service and they are getting pension and are living at Balmiki Nagar, Harmu Road, Kishorganj, Ranchi. It is also evident that documentary evidence of ancestors of Smmari Lal for living at Ranchi could not be filed by him. However, at the same time, the witnesses of the Respondent no. 1 had been cross-examined on the point of their Ancestors coming from Rajasthan to Ranchi.
62. DW.-5 is Binod Ram, who is aged about 57 years and he has filed his evidence on an affidavit, stating therein that his grand-father Late Nathu Ram was working in CPWD on the post of Lineman and he had been living at Balmiki Nagar, Harmu, Kishorganj, Ranchi prior to independence. He has stated that 51 presently his uncle Om Prakash Ramis living with his family members in Balmiki Nagar. He stated that he has been working since 1986 in Union Bank, Shyamli Colony, Doranda whereas his grand-mother late Laxmiramu had retired as Sweeper from Ranchi Municipal Corporation in the year 1992 and had died in the year 1998 while residing at Balmiki Nagar, Harmu Road, Kishorganj, Ranchi.
63. He also asserted that his grand-father and grand-mother have been living along with family members of Smmari Lal at Balmiki Nagar, Harmu, Kishorganj, Ranchi prior to independence. The Respondent no. 1, Smmari Lal has been contesting election since 1985 from various political parties i.e. RJD, JMM and BJP and at that time, none had raised objection on the caste of Smmari Lal i.e. Respondent no. 1.
64. During cross-examination, he stated that Janki Ram was the grand-father of the Respondent no. 1, Smmari Lal. However, he has shown ignorance that the Caste Certificate of Smmari Lal had already been cancelled by the Caste Scrutiny Committee of the State of Jharkhand.
65. Thus, from scrutinizing the evidence of DW.-5, Binod Ram, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of his permanent resident at Ranchi and asserted that even grand-father of the Respondent no. 1 ie. Smmari Lal had been brought by British People from the State of Rajasthan to erstwhile State of Bihar prior to independence.
66. D.W.-6, Krishna Ram, who is aged about 51 years, has also filed his evidence on an affidavit stating therein that his father Late Babu Lal had died in the year 1996 while working in Ranchi Collge and was appointed on compassionate ground on account of the above fact. He also stated that his ancestors and ancestors of Smmari 52 Lal i.e. Respondent no. 1 had been living at Balmiki Nagar, Harmu Road, Ranchi prior to independence and presently he along with his elder brother are living with all family members in Balmiki Nagar, Harmu Road, Ranchi. He was born at Balmiki Nagar, Harmu Road, Ranchi in the year 1972 and he has good relationship with Smmari Lal. He claimed that relationship between his family and family members of Smmari Lal is very cordial. He also stated that his ancestors as well as ancestors of Smmari Lal i.e. the Respondent no. 1 were participated in the Indian Movement. He also claims that his ancestors as well as ancestors of Smmari Lal had also participated in independence movement and they had participated in procession and their ancestors were also beaten by British People. He also asserted that his ancestors as well as ancestors of Smmari Lal were made to settle at Balmiki Nagar by British People for the purpose of cleaning work.
66. During his cross-examination, he stated that Janki Ram was the father of Smmari Lal. He also could not file any document with regard to residential proof of Smmari Lal. He also could give the case number in which during independence movement ancestors of Smmari Lal was made an accused.
67. Thus, from scrutinizing the evidence of D.W.-6, Krishna Ram, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of settlement of his ancestors as well as settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to independence and he also got job on compassionate ground. Thus, it would appear that even the Ancestors of DW-6 were also brought from Rajasthan by the British People apart from the ancestors of the Respondent no. 1, Smmari Lal.
5368. D. W. -7 is Tikam Chand Pawar, aged about 67 years and he also filed his evidence on affidavit by stating therein that he was born at Balmiki Nagar, Harmu Road, Ranchi and had retired from the post of Estate Officer from Ranchi Universityin the year 2016. He stated that his ancestors along with ancestors of his Uncle Smmari Lal i.e. Respondent no. 1 have been living at Balmiki Nagar, Harmu Road, Ranchi prior to independence. He stated that Smmari Lal had contested election of KankeVidhan Sabha Reason on several time and it was never objected by anyone in the name of his Caste. He had also worked for Smmari Lal from KankeVidhan Sabha Election, which is reserved seat of Scheduled Caste and their Caste used to support Smmari Lal.
69. He was cross-examined only on the point of not filing of any document in support of residential proof of ancestors of Smmari Lal i.e. Respondent no. 1. He admitted that the Caste Certificate of Smmari Lal was cancelled by the Caste Scrutiny Committee.
70. Thus, from scrutinizing the evidence of D. W. -7, Tikam Chand Pawar, it is evident that D. W. -7, Tikam Chand Pawar is the son of D.W.-4, Sajna Ram and he had also retired from the post of Estate Officer from Ranchi University in the year 2016. He had also supported the claim of the Respondent no. 1 that their ancestors were brought from Rajasthan to erstwhile State of Bihar by the British People for cleaning work and they were made to settle at Balmiki Nagar, Harmu Road, Ranchi.
71. D. W. -8 is Basant Ram, aged about 64 years. He also filed evidence on an affidavit by stating therein that his father late Birju Ram came to Ranchi since before independence and they were working as Sweeper in Ranchi College and retired from there and they had died in the year 1984. He also stated that his ancestor and 54 ancestor of Smmari Lal have been living at Balmiki Nagar, Harmu Road, Ranchi. He also stated that Smmari Lal had contested the election from Kanke Vidhan Sabha several times and his nomination was never objected by anyone. He further stated that prior to independence, Habei Campus was situated in the campus of St. Xavier College, where English People used to reside. He is fully acquainted with late Mishri Lal Balmiki i.e. the father of Smmari Lal, who was working in RMCH and he used to reside with his ancestors at Balmiki Nagar, Harmu Road, Ranchi. He stated that he also started job in Ranchi University in the Year 1978 and retired in the year 2018 and presently he is getting pension from Punjab Natinal Bank, Ranchi University Branch.
72. This witness was cross-examined only on the point of not filing any documentary evidence in support of the residential proof of ancestors of Smmari Lal at Ranchi prior to independence. However, he was aware of cancellation of Caste Certificate of Smmari Lal.
73. Thus, from scrutinizing the evidence of D. W. -8, Basant Ram, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of settlement of his ancestors as well as settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to independence and he also got job in Ranchi University in the Year 1978 and retired in the year 2018.
74. Thus, it would appear that even ancestors of DW-8 were also brought from Rajasthan by the British People apart from the ancestors of the Respondent no. 1, Smmari Lal for cleaning work and they were made to settle at Balmiki Nagar, Harmu Road, Ranchi.
5575. D.W.-9, Anand Kumar Balmiki, aged about 53 Years, has filed his evidence on an affidavit by Stating that his ancestors along with the ancestors of Smmari Lal, Respondent no. 1 have been living at Balmiki Nagar, Harmu Road, Ranchi prior to independence. And his father late Birsa Ram had taken VRS from Punjab National Bank in the year 2000. He stated that his grand- father, late Mala Ram was nominated Councillor of Ranchi Municipal Corporation and who was known as Mala Ram Commissioner. He stated that he as well as Smmari Lal were studying at Ranchi College and the Respondent no. 1 was General Secretary of the Student Union. He stated that Smmari Lal had also contested election from Kanke Vidhan Sabha Constituency several times and he was never objected.
76. This witness was also cross-examined only on the point of not filing any documentary evidence in support of the residential proof of ancestors of Smmari Lal at Ranchi prior to independence. He further stated that he was not aware of cancellation of Caste Certificate of Smmari Lal. He has denied the suggestion falsely deposing before the Court in collusion with Smmari Lal.
77. Thus, from scrutinizing the evidence of D. W. -9, Anand Kumar Balmiki, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of settlement of his ancestors as well as settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to independence. Thus, even the ancestors of DW-9 were also brought from Rajasthan by the British People apart from the ancestors of the Respondent no. 1, Smmari Lal for cleaning work and they were made to settle at Balmiki Nagar, Harmu Road, Ranchi.
78. D.W.-10, Binod Ram, aged about 60 years has filed his evidence on affidavit by stating therein that his father, late Baiju 56 Ram came to Ranchi prior to independence and was posted as Sweeper at BIT in its Care Taker Officer prior to 1960. He was a daily wage labour. He joined in UCO Bank, Mesra Branch, Ranchi in the year 1979 and has retired from service on 31.05.2022. He further stated that his ancestor and ancestor of Smmari Lal were brought to Ranchi where his ancestors were settled at BIT Mesra whereas the ancestors of Smmari Lal i.e. Respondent no. 1 had settled at Balmiki Nagar, Kishorganj, Ranchi. He admitted that the Respondent no. 1, Smmari Lal is in his relation and contested the election of Kanke Vidhan Sabha several times and there was no objection with regard to his Caste. He stated that he is filing the certificate issued by the BIT. He stated that his mother late Kamla Devi was working as Namkum.
He learnt from his father that he was working in CMPDI and thereafter working in Sainik Astabal.
79. This witness was also cross-examined only on the point of not filing any documentary evidence in support of the residential proof of ancestors of Smmari Lal at Ranchi prior to independence. However, he was aware of cancellation of Caste Certificate of Smmari Lal. Even he has asserted during his cross-examination that the Respondent no. 1 is related to him and hence, he knew that their ancestors were living at Ranchi since before the independence.
80. Thus, from scrutinizing the evidence of D. W. -10, Binod Ram, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal that his ancestors had settled at BIT Meshra as well as ancestors of Smmari Lal i.e. Respondent no. 1 had settled at Balmiki Nagar, Harmu Road, Ranchi prior to independence.
81. D.W.-11, Parbhati Ram @ Parbhati Ram, aged about 85 years has filed his evidence on affidavit by stating therein that he 57 had retired after doing job in BIT and Respondent no. 1 Smmari Lal is his relative. He stated that his ancestors and ancestor of Smmari Lal came to Ranchi before the Independence and their family members were living at Nevari, Ranchi whereas ancestors of Smmari Lal i.e Respondent no. 1 had been living at Balmiki Nagar, Ranchi. He started doing job at BIT in the year 1966 and has retired in the year 2004 and he has filed Caste Certificated issued by the BIT Mesra and issued his certificate by the BIT Mesra vide Memo No. Ref. Stf (P-03-04 685 C dated 6th May 2003), which has been marked as Ext.-A on behalf of the Respondent no. 1. He has further stated that his Bua Late Bahami Devi wife of Late Banvari Lal was working in Ranchi Municipal Corporation and his Phupha was working at BIT Mesra and they have been residing at Balmiki Nagar, Harmu Road, Ranchi before 1950.
82. This witness was also cross-examined only on the point of not filing any documentary evidence in support of the residential proof of ancestors of Smmari Lal at Ranchi prior to independence. He stated that he was living at Delhi before 1962, however, his father did not settle at Ranchi, but he used to visit off and on. He further stated that he shown ignorance about cancellation of Caste Certificate of Smmari Lal by the Caste Scrutiny Committee.
83. Thus, from scrutinizing the evidence of D.W.-11, Parbhati Ram @ Parbhati Ram, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to independence. Thus, even ancestors of DW-11 were also brought from Rajasthan by the British People apart from the ancestors of the Respondent no. 1, Smmari Lal for cleaning work and they were made to settle at 58 Balmiki Nagar, Harmu Road, Ranchi and DW-1 is a competent witness to support the case of Respondent no. 1 Smmari Lal.
84. DW-12 is Bhagi Ram Balmiki, aged about 68 Years filed his evidence on affidavit by stating therein that his ancestor came to Ranchi since before independence and even the ancestors of Smmari Lal came since before independence and settled at Balmiki Nagar, Harmu Road, Ranchi. He worked at Army Headquarter between 1968 to 1970 and thereafter he worked at Airport and retired from there. He stated that his father late Amrit Ram while working in CCL Darbhanga House had died in the year 1978. He has proved even the order issued by Airport Authority of India dated 25.04.2014 marked as Ext.-B. His grand-mother used to disclose him that his grand-father late Devi Ram used to work at Habsi Campus, Piska More, Ratu Road, Ranchi from 1945.
85. During further examination-in-chief, he stated that he was serving in Airport Authority of India as Sweeper and he had retired from service in the year 2014. He has proved his retirement letter issued under the signature of Suresh Kumar Mohanti, who was Junior Executive in Ranchi Airport and the letter is marked as Exhibit-B (with objection).
86. This witness was also cross-examined only on the point of not filing any documentary evidence in support of the residential proof of ancestors of Smmari Lal at Ranchi prior to independence. However, he admitted to be aware of cancellation of Caste Certificate of Smmari Lal.
87. Thus, from scrutinizing the evidence of DW-12, Bhagi Ram Balmiki, it is evident that he has also supported the case of the Respondent no. 1, Smmari Lal on the point of settlement of his ancestors as well as settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to 59 independence. Thus, even ancestors of DW-12 were also brought from Rajasthan by the British People apart from the ancestors of the Respondent no. 1, Smmari Lal for cleaning work and they were made to settle at Balmiki Nagar, Harmu Road, Ranchi.
88. DW-13, Brij Kishore Vijay aged about 62 years, has filed affidavit stating therein that he was election agent of Smmari Lal, who was one of the candidate of BJP from Assembly Election Reason of 2019 from Kanke Vidhan Sabha Reason. His ancestors were the Khatiani Raiyat of State of Jharkhand and they used to tell him that the ancestors of Smmari Lal i.e. the Respondent no. 1 were residing as Marwari Bhangi at Balmiki Nagar, Harmu Road, Ranchi. He further stated that Smmari Lal had contested the election from Kanke Reserved Assembly Region Since 1985 as a candidate of various parties and he had also contested the election from RJD, JMM and also contested with the support of Congress in the election and prior to this election, no objection was raised by anyone. He further stated that Late Mishri Lal Balmiki, who was the father of Smmari Lal, Respondent no. 1 had worked at RMCH, Ranchi since 1960. He further stated that one W. P. (C) No. 6502 of 2019 was filed in Jharkhand High Court with regard to nomination of the Respondent no. 1, Smmari Lal, which was dismissed. He asserted that Smmari Lal has filed any wrong Caste Certificate. He further stated that demand has been made for staying the cancellation of Caste Certificate by wrong manner of Smmari Lal by giving representation before the Hon'ble Governor by the Jharkhand State BJP on 17.10.2022. He further stated that on 30.11.2021, Circle Inspector, Bargain Cirle, Ranchi had submitted his report before Circle Officer, Bargain that during course of local inspection, he learnt that ancestors of Smmari Lal alongwith other people of Bhangi Caste were brought to Ranchi from Rajasthan since before 60 Independence. Even the Caste Scrutiny Committee had not made any local inspection with regard to Caste Certificate of the Respondent no. 1, Smmari Lal in Balmiki Nagar, Harmu Road, Ranchi and if enquiry is conducted then it will be clear that ancestors of Smmari Lal are residing in Balmiki Nagar, Harmu Road, Ranchi since before the independence. He further stated that direction was given to enquire about the Caste Certificate of Smmari Lal by the Caste Scrutiny Committee to the Deputy Commissioner, Ranchi and the Deputy Commissioner, Ranchi vide letter no. 4518/ga dated 29.11.2021 addressed to the Anchal Adhikari, Bargain and Circle Officer, Town Anchal to make local inspection, but merely in ten (10) hours, both Anchal vide Memo No. 746(ii) dated 30.11.2021 had submitted the report to the Deputy Commissioner, Ranchi instead of making local inspection. He asserted that honest enquiry has not been done with regard to the Caste Certificate of the Respondent no. 1, Smmari Lal.
89. This witness has proved the letter dated 17.10.2022 addressed to Hon'ble Governor filed as typed by one S. N. Jha and under the signature of Amar Kumar Bauri (MLA of Chandankyari), which has been marked as Ext. -C (with objection).
He has further marked the Khatian as X and Khewat as X/1 and Malguzari Receipt as X/2 for identification.
90. During cross-examination, he stated that he admitted for not any document regarding letter of authorization to work as an Election Agent of Smmari Lal in 2019 Assembly Election. However, he has filed in the Court the Khatiyan of his ancestor, Onkar Mal Malwari. He has not filed any document regarding residential proof of ancestors of Smmari Lal since before independence. He admitted that since 1985, Smmari Lal has contested elections 7 times and won in 2019. He stated that He has 61 not filed the Service book of father of Smmari Lal, namely, Late Mishri Lal and also his Caste Certificate. He is aware of cancellation of the Caste Certificate of Smmari Lal by Caste Scrutiny Committee and he was aware that one Sudhir Kumar Srivastava used to appear on behalf of Smmari Lal before the Caste Scrutiny Committee. He has not filed any inspection report of the Circle Officer, Bargain. However, he had seen that the final order of Caste Scrutiny Committee. He stated that Office of the Deputy Commissioner office, Ranchi has sent its report to Caste Scrutiny Committee on 30.11.2021.
91. Thus, from scrutinizing the evidence of DW-13, Brij Kishore Vijay, it is evident that he was the Election Agent of Respondent no. 1 Smmari Lal and has supported his case on the point of contesting the election by Smmari Lal, Respondent no. 1 since 1985 from the various political party i.e. RJD, JMM and BJP and at that time, no objection was raised. He also supported the fact that ancestors of Smmari Lal, had settled by the British People at Balmiki Nagar, Harmu Road, Ranchi for cleaning work from Rajasthan to Ranchi. He has also asserted that proper enquiry has not been done with regard to Caste Certificate of the Respondent no. 1, Smmari Lal by Anchal Adhikari, Bargain and neither report has been submitted. This witness, DW.-13 is khataini raiyat of State of Jharkhand and marked the documents for identification i.e. the Khatian as X and Khewat as X/1 and Malguzari Rasid as X/2.
Thus, D.W.-13 has also supported the case of the Respondent no. 1 Smmari Lal.
92. DW-14 is Smmari Lal i.e. the Respondent no. 1. He has also filed evidence on an affidavit stating therein that he belongs to Bhangi Caste, which is Scheduled Caste. He had contested the 2019 Assembly Election from Kanke Assembly Reason from Bhartiya 62 Janta Party (BJP) and has filed his nomination paper alongwith all desired relevant documents for e.g. Caste Certificate and other documents and he has made self declaration that he belongs to Scheduled Caste, Bhangi Caste of State of Jharkhand. He has proved his Caste Certificate marked as Ext.-15, which was enclosed in the writ petition at page no. 36. He further stated that he is permanent resident of Jharkhand as Scheduled Caste Persons and he was born and brought up in Ranchi. His date of birth is 23.06.1962. He passed his Matriculation Examination in the year 1979 from Zila School, Ranchi and has passed Graduation in the year 1983 from the Ranchi University and passed M.A. from Ranchi University in the year 1985. He has proved his Matriculation Certificate, Intermediate Mark Sheet, Graduation Mark Sheet and M.A Mark Sheet as Exhibits. He further proved the Certificate issued by NCC, which has been marked as Ext. -D/6. He has further proved the Certificate issued by the Ranchi Employment Exchange upon his registration on 27.11.1983, which has been marked as Ext.-D/7. He further stated that the Election -Petitioner, Suresh Kumar Baitha and two other persons had filed objection before the Returning Officer and which was properly verified by the Returning Officer and rejected by the Returning Officer after hearing all the sides. He also stated that he was nominated as Member of Jharkhand Regional Autonomous Council of Scheduled Caste and he had filed its photocopy because he lost his original certificate, which has been marked as Ext. -D/8. He further state that he had contested the election as an independent candidate in the year 1985 and in the year 1990 and 1995 he had contested election as a candidate of a Janata Dal candidate and in the year 2000 he had contested election as a candidate of RJD candidate and in the year 2005 and 2009 he had contested election as a Scheduled Caste candidate of Jharkhand 63 Mukti Morcha and at that time none had raised any objection. He further stated that he was born in Balmimi Nagar Harmu Ranchi and his father had worked in RMCH from 1965 till his retirement and he has filed this original certificate, which has been marked as Exhibit- D/9. He further stated that after some years his father was allotted a quarter in RMCH and they started living in the same quarter and from there they used to go to the District School for studies and during holidays he used to go to his aunt Gulabiya Devi's house in Balmiki Nagar. However, his Maternal Aunt did not come to the RMCH quarter because it was her niece's in-laws' house there. He further stated that he is Voter of the Kanke Assembly Constituency in the year 2019 and he also filed the certified copy of the voter list, which has been marked as Exhibit-D/10. He has been elected by people of the Kanke Assembly constituency and allowed him to serve the people and he has been legally and validly elected in the Election of the Kanke Assembly Constituency. He has stated that elder cousin brother Sanjana Ram, DW-4 was given letters of appreciation by then Minister and he has filed photocopy of the said letter, which has been marked as Ext.-D/11 as the same was available in his old file and it was handed over by him by his elder brother Sajana Ram, DW-4. He further stated that the Election- Petitioner has filed a case on false and fabricated ground and the Respondent no. 1, Smmari Lal has not given any false declaration that he belongs to the Scheduled Caste Bhangi Caste of Jharkhand State, rather it is true that he is member of Scheduled Caste and he is a permanent resident of State of Jharkhand. He further asserted that his ancestors were brought since before the independence to Ranchi by the British People for the purpose of cleaning work. He stated that the petitioner has falsely stated that the Respondent no. 1, 64 Smmari Lal has made any forgery. He has denied for filing the wrong Caste Certificate.
93. He has denied the assertion of the Election-Petitioner that his father came to State of Bihar after getting a job in RMCH, rather as a matter of fact, his grandfather, his brother and other families were brought to Ranchi by the British People since before independence for doing cleaning work etc. He denied the assertion that the family members of the Respondent no. 1 is taking benefit of reservation in both the States. He has not violated any law in India. He has not violated any provision of the Representation of People's Act, 1951 or the Constitution of India. He stated that the Election- Petitioner has filed this case out of political jealousy and the election of the Respondent no. 1 is free from any vices. Hence, the allegation of the Election Petitioner to cancel the election is baseless and without any reason. He has further proved the report dated 30.11.2021 submitted by Circle Inspector, Bargain to Circle Officer, Bargain, Ranchi by which it has been informed that his ancestors were brought by the British People since before the independence and the report dated 30.11.2021 is marked as Exhibit-19/2.
94. During cross-examination, he identified his signature on the copy of W.P.(C) No.1583 of 2022 filed in this Court, which has been marked as Exhibit-14. This witness i.e. DW-14 admitted his Caste Certificate annexed with the Writ Petition, which has been marked as Exhibit-15. This witness i.e. DW-14 also identified the copy of the complaint petition filed by Suresh Baitha and which is annexed as Annexure-3 in the Writ Petition vide W.P.(C) No.1583 of 2022 and which has been marked as Exhibit-16. This witness i.e. DW-14 admitted that he had received letters from the Caste Scrutiny Committee, which have been annexed with W.P.(C) No.1583 of 65 2022 by him and enclosed as Annexure-4 Series and all these letters have been marked as Exhibits-17 to 17/7 respectively before the Co- ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary). This witness i.e. DW-14 identified his reply submitted to the Caste Scrutiny Committee under his signature and which were enclosed with the W.P.(C) No.1583 of 2022 and all these letters have been marked as Exhibits-18 to 18/70 respectively before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary). This witness i.e. DW-14 identified Annexure-6 of the Writ Petition being W.P.(C) No.1583 of 2022, which is the final order of the Caste Scrutiny Committee. This witness i.e. DW-14 identified the report of the Circle Officer, Bargain, Ranchi addressed to the Deputy Commissioner, Ranchi and enclosed in W.P.(C) No. 1583 of 2022 by this petitioner and which have been marked as Exhibits-19 to 19/2 respectively. This witness i.e. DW-14 admitted that his father was employed in RIMS, Ranchi as a temporary employee sometimes in 1963-64 and was permanently employed in the year 1965. However, he has not filed the Caste Certificate of his father before this Court. Though he tried to get service book of his father, but he could not get the same and as such, the same could not be filed. He admitted that he was married in the year 1982. His wife lives in her natal home in District-Jhunjhunu, Rajasthan where she works as a Sweeper in Primary Health Centre, Baktiarpura, but he cannot say in which year his wife joined her service. He stated that he is not aware whether the order rejecting the objection of Suresh Baitha has been filed in this Court from his side or not. However, he could not say after how many years of his marriage, his wife got employment in the State of Rajasthan. He could not remember for filing the Nomination paper in this case. However, from 1985 till this Assembly election, no one has ever 66 challenged or objected to his Caste Certificate. He further stated that he has not filed any documentary evidence regarding residential proof as they were landless belonging to Dalit community without such certificate. However, he has submitted his papers with respect to Maternal Uncle and Aunt since before 1950. He has denied to have obtained false Caste Certificate of Schedule caste and had illegally contested Assembly Election in the year 2019 from the Reserved Constituency of Kanke. He denied for taking the benefit of Caste Certificate from Jharkhand whereas his wife is also have beneficiary of Caste Certificate in the State of Jharkhand (it appears that due to typographical error State of Jharkhand instead of State of Rajasthan), which she got after marriage.
95. Thus, from scrutinizing the evidence of DW-14, Smmari Lal, it is evident that he has denied assertion of the petitioner that he is not the resident of Jharkhand and not the Scheduled Caste of the State of Jharkhand. He has taken the specific plea that his ancestors, grand-father and several other persons from Rajasthan were brought to Ranchi by the British People for cleaning works and some of them had settled at Balmiki Nagar, Harmu Road, Ranchi whereas some of them had settled at BIT Mesra, Hapsi Colony. He has also asserted that he has filed nomination paper as Scheduled Caste Candidate not only as independent candidate in the year 1985, but also in the year 1990 and 1995 as a candidate of a Janata Dal candidate and in the year 2000 as a candidate of RJD candidate and in the year 2005 and 2009 as a Scheduled Caste candidate of Jharkhand Mukti Morcha and at that time none had raised any objection. On the point of filing of residential certificate of his ancestor has been brought from Rajasthan to Ranchi, he has stated that his ancestors were landless people and as such he could not get the same. He also stated that he had tried to obtain service book of 67 his father from RIMS, Ranchi, but he could not succeed. However, he has asserted that several relatives i.e. Gulabia Devi, DW-3 and Sajna Ram, DW-4 had led their evidence that they have been brought from Rajasthan to Ranchi by the British People for doing cleaning work.
He has filed his Matriculation Certificate, Intermediate Mark Sheet, Graduation Mark Sheet and M.A Mark Sheet, which have been marked as Exhibit-D/2, D/3, D/4 and D/5 resepectively.
96. DW-15 is Damodar Ram aged about 65 Years and who has filed his evidence on affidavit by stating therein that he has retired from Bank of Baroda, Main Branch, Ranchi in the year 2017 and he was employed in the said Bank on Compassionate Ground on account of death of his father. He stated that his grand-father late Pokhan Ram had come along with ancestors of Smmari Lal i.e. Respondent no. 1 and settled at Harmu Road, Ranchi. He stated that Smmari Lal is his relative and father of Smmari Lal was working in RMCH whereas his father was working in Coal Server Depot and they alongwith their respective family members used to reside at Balmiki Nagar. His grand-father was working in the house of Rai Bahadue Budhia and they participated in the freedom movement with full zeal and enthusiasm and their elders used to tell him that the Britishers used to hang the Freedom Fighters. He stated that Smmari Lal has contested seven (7) elections and no one has raised objections.
97. During his cross-examination, he has shown ignorance about cancellation of Caste Certificate of Smmari Lal by the Caste Scrutiny Committee.
98. Thus, from scrutinizing the evidence of DW-15, Damodar Ram, it is evident that he has supported the case of Respondent no. 1, Smmari Lal on the point of settlement of his ancestors as well 68 as settlement of ancestors of Smmari Lal i.e. Respondent no. 1 at Balmiki Nagar, Harmu Road, Ranchi prior to independence.
99. DW-15 'A' is Manoj Kumar Ranjan, who is LRDC, Ramgarh, who was examined before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary). He stated during his evidence that he was Returning Officer in 2019 Jharkhand Assembly Election at 65 Kanke Constituency and he had accepted the Nomination Paper of Smmari Lal i.e. the Respondent no. 1. He had examined the Caste Certificate of the Respondent No. 1, Smmari Lal as per the 'Handbook' of Returning Officer and had found it to be valid. Sri Suresh Kumar Baitha was also a candidate in the Assembly Election and he had raised objection on the nomination of Smmari Lal. He forwarded the objection to Smmari Lal and asked him to submit his reply by 3 PM on the same day. After receiving reply and hearing both the parties, in the presence of their learned counsels and also after verifying the Caste Certificate from the Issuing Authority, he had overruled the objection and accepted the nomination paper of Smmari Lal.
100. During cross-examination, he stated that the notice was issued upon him in this case. However, he has not filed any document with regard to the electoral process in this case.
101. On being asked in the question and answer form, as to whether he had any order or permission from the Election Commissioner or this Court to have the Original nomination paper ? He answered that the Original nomination papers are kept with the Returning Officer and at present he is posted at Ramgarh. He stated that after he received the notice for appearing as the Witness in this case, he obtained this document from D.C.L.R., Ranchi. He got this paper verbally. He could not state the time at which Suresh Baitha had raised objection on the day of nomination. However, he stated 69 that during the scrutiny of the nomination paper, he had sought the verification of the Caste Certificate from Circle Office, Sadar, Ranchi who was the Issuing Officer. The Peon had taken the Caste Certificate for verification and he received the verification report before 3 PM. He stated that he can file the verification report before this Court.
During further cross-examination, he stated that he did not remember whether any order sheet had been maintained by him with regard to electoral process. He denied the suggestion for working in collusion with Smmari Lal and he has denied for not verified the Caste Certificate of Smmari Lal, and in order to favour him and he has not filed the written statement.
102. Thus, from scrutinizing the evidence of DW-15 'A' i.e. Manoj Kumar Ranjan before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary), it is evident that he was the Returning Officer of 65-Kanke (Scheduled Castes) Constituent Assembly and though he was posted as LRDC, Ramgarh, but he has produced the Original Nomination Paper of the Respondent no. 1, Smmari Lal from the DCLR, Ranchi and he got this paper verbally. Although, copy of original nomination paper were filed before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary), but witness was confronted on the point of time of scrutiny of nomination paper and also on the point of verification of the Caste Certificate from the Circle Officer, Sadar, Ranchi and he admitted that the Peon had taken the Caste Certificate for verification and he received the verification report before 3.00 PM.
103. Thus, the evidence of DW-15 "A" appears to be cryptic on the point of sending the Caste Certificate to the Issuing Officer 70 through Peon for obtaining report, but he had not concealed anything before the Co-ordinate Bench of this Court.
104. DW.-16 is Jyoti Kumar Singh, Assistant Municipal Commissioner, Ranchi Municipal Corporation and who stated during evidence that he does not have this information that Gulabia Devi was in the employment of Ranchi Municipal Corporation. He could not say whether the service book of Class IV employees is maintained by those, who have retired form service and which is kept in Municipal Corporation office or not. This information can be given only on verification of office records.
105. During cross-examination, he could not say whether any written information had been given regarding the missing of the service book of Gulabia Devi.
Evidence of the DW-16 was recorded before the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary) on the point of employment of Gulabia Devi, DW-3, whose reply was evasive and he had not produced any document before the Co-ordinate Bench of this Court, although photocopy of the service book was filed by the Gulabia and DW-3, Gulabia Devi has claimed that she was working Ranchi Municipal Corporation since 1950 as Sweeper till her retirement.
106. D.W.-17 is Mukund Chandra Mehta, Registrar, Ranchi University, Ranchi, who has been examined before this Court.
He has stated that he had joined Ranchi University on 11 th November, 2020 and all the documents of the working employees are being kept in the College. On being shown the Photocopy of service book of Sajna Ram (DW-4), Biology Department, Ranchi College, Ranchi, erstwhile employee of Ranchi University, the Witness admits that it is Service Book in 8 sheets, which has been marked for identification as 'Y' and the photocopy of application for 71 pension other than family pension and for gratuity which is in one sheet, which has been marked for identification as 'Y/1'.
107. Issue No. IV :-
This relates to as to whether the petitioner is a member of Scheduled Caste in relation to State of Jharkhand ? It is evident from the evidence of P.W.-1, Suresh Kumar Baitha, i.e. the Election- Petitioner and P. W.-2, Gulzar Ahmad that the petiotner- Suresh Kumar Baitha is member of Scheduled Caste in the State of Jharkhand as well as their ancestors were also Scheduled Caste in the erstwhile State of Bihar and they are the Khatiyani Raiyat, but the same has not been rebutted by the Respondent No. 1.
Ext. -9 is the certified copy of the nomination of Election Petitioner in (Format -'Ka"), which also contains the Caste Certificate of the petitioner issued by the Circle Officer, Bargain, which reveals that the petitioner is a member of Scheduled Caste. This Certificate has not been challenged by the Respondents including respondent no. 1. Thus, Issue No. IV is also decided in favour of the petitioner.
108. Issue No. IX:- From the evidence of PW.- 1 and PW-2, it is evident that they have asserted about taking benefits in the State of Rajasthan by the wife of the Respondent No. 1, Smmari Lal as Scheduled Caste and the Respondent No. 1, Smmari Lal has also taken the benefit of reservation in the State of Jharkhand.
Even DW-14, Smmari Lal has admitted that his wife is Grade-IV employee in the State of Rajasthan and employed in Primary Health Centre at Bharatpur district as Grade-IV employee. The Respondent No. 1, Smmari Lal had contested the Jharkhand Assembly Election at 65 Kanke Constituency reserved for Scheduled Caste members and as such it is evident that both i.e. the Respondent no. 1, Smmari Lal and his wife namely Anita Jedia have taken the 72 benefits as Scheduled Caste persons both in the State of Jharkhand as well as in the State of Rajasthan.
However, neither the petitioner nor the respondent no. 1 have brought any evidence on record to show that wife of the respondent no. 1 has secured employment in the State of Rajasthan after marrying with the Respondent no. 1. However, it is onus upon the petitioner to prove that the wife of the respondent no. 1 has secured employment in the State of Rajasthan, after she has been married with the Respondent No. 1. However, the petitioner has failed to prove the same as neither the Election Petitioner while examined as P.W.-1, Suresh Kumar Baitha not his Election Agent P.W.-2 namely Gulzar Ahmad have stated that the wife of the respondent no. 1 had been appointed in the State of Rajasthan after marrying with the respondent no. 1. Hence, issue no. IX is decided against the petitioner.
109. Issue No. V and XII :-
These issues are interlinked with each other and it relates to obtaining Caste Certificate by the Respondent no. 1, Smmari Lal fraudently and also as to whether he is by Caste Bhangi and a member of Scheduled Caste or not ?
110. It has been pleaded in the plaint of the Election -Petitioner that father of the Respondent no. 1 and their ancestors originally belonged to the State of Rajasthan and the Respondent No. 1, Smmari Lal is permanent resident of Rajasthan and he is not a permanent resident of Jharkhand. Hence Caste Certificate could not be issued to such persons in light of the letters of the Ministry of Home, Government of India and Circular of the Department of Personnel, Administrative Reforms & Rajbhasa, Government of Jharkhand.
73In support of his claim, the petitioner has examined himself as P.W.-1 and has stated during his evidence that the Respondent no. 1, Smmari Lal is not Scheduled Caste of the State of Jharkhand and as such, he is not entitled to contest the election from 65 Kanke Constitut Assembly as his father is originally resident of Rajasthan and had come to Rajendra Medical College and Hospital and thereafter the family of the Respondent No. 1, Smmari Lal migrated to erstwhile State of Bihar. The Respondent No. 1, Smmari Lal has obtained Caste Certificate wrongly in violation of Letter No.14/जा०नि०-03-13/2016 का0 6763 कजमक 05-08-2016 (marked as Exhibit - 11) and Letter No.7/Hkk+-fo-l- 016-16/04 का-3557 dated 18.10.2005 (marked as Exhibit - 12 respectively).
However, during cross-examination, P.W.-1, Suresh Kumar Baitha admitted at Para- 14 to 20 that he had not raised any objection in respect of the Caste of the Respondent no. 1, Smmari Lal at the time of preparation of Voter list in 2019 Election. He further asserted that the Respondent No. 1, Smmari Lal is a member of Scheduled Caste from the State of Rajasthan, but he does not come in the category in the State of Jharkhand. However, he asserted in para-18 to 20 that father of Smmari Lal i.e. the Respondent No. 1 has migrated from Rajasthan during the time of united Bihar, but he does not know in which year he had migrated from there.
111. P.W.-2, Gulzar Ahmad has not stated any fact against the Respodnent No. 1 during his evidence by filing affidavit with regard to obtaining the Caste Certificate fraudently in violation of Letter No.14/जा०नि०-03-13/2016 का0 6763 कजमक 05-08-2016 marked as Exhibit - 11 and Letter No.7/Hkk+-fo-l- 016-16/04 का-3557 dated 18.10.2005 marked as Exhibit - 12 respectively.
74Thus, P.W.-2, Gulzar Ahmad has not supported the claim of P.W.-1 i.e. the petitioner on the point of obtaining false Caste Certificate of Scheduled Caste by the Respondent no. 1 fraudently.
112. Exhibit - 12 is the Letter dated 18.10.2005 which relates to guidelines for issuance of Caste Certificate and it has been issued by the Principal Secretary, Department of Personnel Administrative Reforms and Rajbhasa, Government of Jharkhand along with list of Caste to all the Principal Secretaries/Secretaries/All the Head of Departments/All Divisional Commissioners/All Deputy Commissioners by which it has been informed by pointing out towards the Department Letter No. 2216 dated 12.07.2005 that candidate of Reserved Category from other States, who are residing in this State, Government of Home Department Vide Letter No. BC/16014/1/82 S.C. and B.C.D-I dated 18.11.1982 are facing difficulties and had issued direction for issuance of Caste Certificate. [It has been informed that Government of Home Department has substituted the said Letter vide Letter No. BC/16014/1/82 S.C. and B.C.D-I dated 22.02.1985 by superseding the said Letter No. BC/16014/1/82 S.C. and B.C.D-I dated 18.11.1982.] Hence the Caste Certificate should be issued in light of the direction given by the Ministry of Home vide Letter No. BC/16014/1/82 S.C. and B.C.D-I dated 22.02.1985 and thus Letter No. 2216 dated 12.07.2005 be modified accordingly.
113. The letter dated 18.11.1982 is enclosed as Annexure- SA/4. Ext.-5 [which is Supplementary Affidavit dated 16.04.2022filed on behalf of Smmari Lal i.e. the Respondent No. 1 in W. P (C) No. 1583 of 2022].
In this above letter Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya addressed to all the Chief Secretaries to all State Governments/Union Territory Administrations 75 by which it has been informed that on the representation on those persons belonging to SC/ST, who have migrated from one State to another for the purpose of employment, education, etc. experience great difficulty in obtaining Caste/Tribe Certificate from the State from which they have migrated. In order to remove this difficulty, it has been decided in modification of the instructions issued in letter No. BC-12025/2/76-SCT I, dated 22.03.1977 and letter No. BC- 12025/11/79-SC & BCD IV IV, dated 29.03.1982 that the prescribed authority of a State Government/Union Territory Administration may issue the Scheduled Caste/Tribe certificate to a person who has migrated from another State, on the production of the genuine certificate issued to his father/mother by the prescribed authority of the State of the father's/mother's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. It has also been directed that the certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. This facility does not alter the Scheduled Caste/Scheduled Tribes status of the person in relation to the one or the other State.
Therefore, letter dated 18.11.1982 prescribes that the Scheduled Caste Certificate to such persons can be issued by the Competent Authority, who have migrated from other State and this facility does not alter the Scheduled Caste/Scheduled Tribes status of the person in relation to the one or the other State.
114. Letter No. BC/16014/1/82 S.C. & B.C.D-I dated 22.02.1985 marked as Ext-/18/67 issued by Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya under the Signature of Joint Secretary to all the Chief Secretaries to all State Governments/Union Territory Administrations by which it was 76 clarified that Scheduled Caste/ Tribe persons, 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 Scheduled Caste/ 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 was also prescribed that this letter dated 22.02.1985 substitutes the Ministry's letter of even number dated 18.11.1982.
115. Thus, vide Ext.-12 i.e. Circular dated 18.10.2005 prescribes that the Authority should issue the Caste Certificate to the Scheduled Caste/Scheduled Tribe to such persons only on production of genuine certificate issued to his father by the prescribed Authority of the State of father origin.
However, in the present case, the Caste Certificate has been issued to the Respondent no. 1 in the year 2009 or as per the Circular dated 18.10.2005.
116. Ext.-11 is the Circular dated 05.08.2016 issued by the Department of Personnel Administrative, Reforms and Rajbhasa, Government of Jharkhand by which it has been clarified to all the Deputy Commissioners of Jharkhand on the point of issuance of Caste Certificate. It was clarified as follows:-
(i) For the purpose of admission, educational institution and reservation in employment. Facilities available only to Original People of the State as their Caste is notified/classified in Scheduled Caste/Scheduled Tribe/Extremely Backward Classes, Schedule-1 and Backward Classes, Schedule-II (united Bihar Government Letter No. 70 dated 11.06.1996 and letter no. 5448 dated 12.09.2011).
(ii) Letter No. BC/16014/1/82 S.C. & B.C.D.-I dated 22.02.1985 issued by the Ministry of Home, Government of India that if some persons settles from another State for the purpose of taking education and obtaining employment, then it does not mean that they will be 77 entitled to reservation in the said State. Such person will be come under the Migratory Category and they will be entitled to reservation from the Original State. However, such person will be entitled to issuance of Caste Certificate by Competent Officer on production of Caste Certificate of his father. However, the benefits of the reservation is not to be extended to the State of Jharkhand to such persons of other State.
(iii) All person will not be automatically entitled to reservation in the definition of local people of Jharkhand.
However, it was further clarified as follows:-
" (i) Caste Certificate should be issued on the basis of records of Land Revenue/ Panchayat/ Nagar Panchayat /Municipal Corporation/Registration Documents.
(ii) if no records is produced in support of his claim by applicant, then the Competent Authority in light of the Circular dated 28.01.2016 can determine the Caste of such person as per the procedure and the Competent Officer can issue Caste Certificate on being his satisfaction.
(iii) Unless they are not satisfied that the applicant or his ancestors are actually residing as Scheduled Caste/Scheduled Tribe as per the Constitution (SC/ST) Order, 1950 are residing as permanent resident or as Most Backward Classes-I and Backward Classes- from the Year 1978 permanently till then Caste Certificate cannot be issued.
117. It further transpires that State of Jharkhand has also issued Circular/letter dated 05.08.2016 regarding issuance of Caste Certificate. Clause -II and Clause-III of the said letter dated 05.08.2016 as follows:-
"Clause-II यनि आवेिक की जानि के सम्बन्ध में नकये गये िावे के समर्थि में कोई अनिलेख प्रस्तुि िही ीं नकया जाय िो नविागीय i=akd-1853, नििाक-25.02.2015 में नवनहि प्रनिया अपिाकर उस व्यक्ति 78 के जानि का निर्ाथ रण नकया जा सकिा है और सक्षम पिानर्कारी अपिी सिु नि के आर्ार पर जानि प्रमाण पत्र निगथ ि कर सकिे है ।
Clause-III जब िक यह सींिुनि िही ीं हो नक आवेिक या उिके पूवथज वास्तव में इस राज्य में अिुसूनिि जानि/अिुसूनिि जिजानि के मामले में सीं नवर्ाि (अिुसूनिि जानि / अिुसूनिि जिजानि) आिे श, 1950 के समय से स्र्ायी रूप से निवास करिे आ रहे है . या अत्यन्त नपछडा वगथ (1) और नपछडा वगथ के मामले में वर्थ 1978 से स्र्ाई रूप से निवास कर रहे हैं , िब िक जानि प्रमाण पत्र निगथ ि िही ीं नकया जाये ।"
118. Therefore, circular dated 05.08.2016 prescribes that the certificate of such person of SC/ST/MBC can be issued if the applicant or his ancestors are residing on permanent basis atleast since 1978 and in the present case, it is asserted by the petitioner that his grand-father and father of the respondent no. 1 were the residents of Rajasthan, but father of the petitioner was working in RMCH from the year 1965 and he retired from RIMS.
119. It would appear that the father of the Respondent no. 1 was treated as Scheduled Caste in the erstwhile State of Bihar while he was serving in Ranchi.
120. It is evident from the evidence of i.e. D.W.-1 Dilip Ram, D.W.-2 Jugal Ram, D.W.-3 Gulabiya Devi, D.W.-4 Sajna Ram, D.W.-5 Binod Ram, S/o Bannu Ram, D.W.-6 Krishna Ram, D.W.-7 Tikam Chand Pawar, D.W.-8 Basant Ram, D.W.-9 Anand Kumar Balmiki, D.W.-10 Binod Ram, S/o Baiju Ram, D.W.-11 Parbhati Ram, D.W.-12 Bhagi Ram, DW-13, Brij Kishore Vijay and DW-14, Smmari Lal that the ancestors of the Respondent no. 1 were living in Ranchi much before the independence. Even DW-3, Gulabia Devi and DW-4, Sajna Ram have stated that they were also working in Ranchi Municipal Corporation and they had retired from Municipal Corporation as Scheduled Caste.
Thus, provisions of Circular dated 05.08.2016 complied to the extent that ancestors of the respondent no. 1 are living in Ranchi much before the year 1978 i.e. Circular dated 05.08.2016, Ext.-11 and Circular dated 18.10.2005, Ext.-12. Even Circular dated 79 18.10.2005, Ext.-12 did not bar for issuance of Caste Certificate to the Respondent No. 1, Smmari Lal.
121. P.W. -1 is Suresh Kumar Baitha i.e. the Election Petitioner himself, who had emphatically stated that the father of Respondent No. 1, Smmari Lal came from Rajasthan for the purpose of employment and they are not the resident and Scheduled Caste of Original State of Bihar as their ancestors belong to State of Rajasthan.
Even this fact has also been admitted by DW-14, Smmari Lal that his ancestors had come from Rajasthan, but they were brought by the British People since before the independence of India. Thus, on this aspect there is admission on the part of the Respondent No. 1, Smmari Lal that his ancestors had arrived from the State of Rajasthan.
Thus, the real identity of the Respondent no. 1, Smmari Lal is not in dispute. However, the question remains as to whether the ancestors of the Respondent No. 1, Smmari Lal can be treated as Scheduled Caste or not for the State of Bihar, although the Respondent No. 1, Smmari Lal has been born in the erstwhile State of Bihar in Ranchi District (after bifurcation Ranchi District falls in the State of Jharkhand).
Thus, not only the father of the Respondent no. 1, but also the other relative of the Respondent no. 1 i.e. DW-3, Gulabia Devi and DW-4, Sajna Ram were recognized as Scheduled Caste in the State of Jharkhand and also in the erstwhile State of Bihar.
122. Therefore, this Court finds that there is no illegality in issuance of Caste Certificate to the respondent no. 1 and there is nothing on record to show that the Authority had raised objection on finding the respondent no. 1 as Scheduled Caste member. The petitioner has not led any evidence that any Authority has raised any 80 objection, when the Caste Certificate of the Respondent No. 1 was issued by the Circle Officer, Bargain. The petitioner i.e. PW-1 and PW-2 have failed to prove any fraud committed by the respondent no. 1 at the time of issuance of Caste Certificate.
123. From perusal of Annexure-12 of Election Petition, which is letter dated 30.11.2021 marked as Ext. -18/70, it appears that Cirle Inspector, Bargain, Ranchi has sent letter to Anchal Adhikari, Bargain, Ranchi by informing him that he made local inspection as per the order and during course of local inspection, local Bhangi (Valmiki) Caste People informed that the ancestors of Smmari Lal as well as people of other Bhangi Caste had been brought by British People from the State of Rajasthan for the purpose of cleaning work. However, they could not produced any written document. In support of his evidence they could inform from their ancestors have come from the State of Rajasthan. Hence, it is evident that Sri Smmari Lal as well as his family are originally from the State of Rajasthan and they have settled her for the purpose of livelihood.
Neither PW-1 and PW-2 have stated that any person or any Authority had raised any objection with regard to the Caste Certificate of the Respondent no. 1, Smmari Lal when it was issued in the year 2009. No evidence has been brought on record by the Election Petitioner during pleadings and during his evidence as PW-1 and also during evidence of PW-2 that the Respondent no. 1, Smmari Lal had played any fraud on the concerned Authority before issuance of certificate of Scheduled Caste in his name.
Thus, this Court finds that there was no violation at the time issuance of Caste Certificate to the Respondent no. 1.
Thus Issue Nos. V and XII are decided in favour of the Respondent no. 1 and against the petitioner.
81Issue Nos VII, VIII and XI :-
124. These issues are being tried together as they are interlinked to each other and its result will dispose of main case also.
125. PW-I i.e. the petitioner, Suresh Kumar Baitha, during his evidence has stated that the Respondent No. 1, Smmari Lal is originally resident of Rajasthan and his father had been given job in Rajendra Institute of Medical Sciences, Ranchi and due to which the family of the Respondent No. 1, Smmari Lal migrated to erstwhile State of Bihar hence the Respondent No. 1, Smmari Lal is not a permanent resident of Jharkhand.
During cross-examination, he stated that the Respondent no. 1, Smmari Lal belongs to Bharathpur, Rajasthan. However, he again says on his own that he cannot say as to from which town of Rajasthan the Respondent no. 1 had arrived. He further stated that the Respondent No. 1, Smmari Lal is a member of Scheduled Caste from the State of Rajasthan. However, he also admitted that father of Smmari Lal had migrated from Rajasthan during the time of United Bihar, but he does not know in which year, he had migrated from there.
Thus the petitioner is not able to say as to from District of Rajasthan the ancestors of the Respondent No. 1, Smmari Lal migrated to erstwhile State of Bihar (now Jharkhand) He does not remember the entire list of Scheduled Caste of 1950 and he is not able to say as to whether in that list, the Caste of Smmari Lal has figured or not.
He merely stated that late Misri Lal Balmiki, who was the father of the Respondent No. 1, Smmari Lal had come to Rajendra Institute of Medical Sciences (RIMS) for the purpose of job in the year 1965 from the State of Rajasthan and his migration was for the purpose of job. He also stated that the family of Smmari Lal is still taking benefit of Scheduled Caste in the State of Rajasthan and his 82 wife is employed at Primary Health Centre at Bharatpur, Rajasthan as a member of Scheduled Caste.
During cross-examination, he stated that father of Smmari Lal had come to Ranchi in the year 1965, but he has no personal knowledge of it. He has also not aware that as to whether the Respondent No. 1, Smmari Lal is taking any benefit of his reservation in the State of Rajasthan.
126. Thus, PW.-1, Suresh Kumar Baitha has also merely stated that the father of Smmari Lal had come to Ranchi from Rajasthan in the year 1965. Therefore, it is evident that both P.W.-1, Suresh Kumar Baitha i.e. the Petitioner and PW.-2, Gulzar Ahmad have merely stated that father of the Respondent No. 1, Smmari Lal had come to Ranchi (erstwhile State of Bihar) from Rajasthan and they could not say even the name of district of Rajasthan. PW.-1, Suresh Kumar Baitha is silent as to from which district of Rajasthan father of Smmari Lal has come and even PW.-2, Gulzar Ahmad is also not sure of the real identity of the Respondent No. 1,Smmari Lal regard his ancestors from the State of Rajasthan, if any.
127. It has been held in the case of Tomaso Bruno and Another Versus State of Uttar Pradesh reported in (2015) 7 SCC 178 that the principle underlying Section 106 of the Evidence Act is that the burden to establish those facts, which are within his personal knowledge is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference may be drawn against him.
128. So far as the documentary evidence is concerned the petitioner in support of his case has got Exhibited the several documents, which have been mentioned earlier.
Ext.16 is the complaint petition filed by the petitioner Suresh Kumar Baitha annexed with the W. P. (C) No. 1583 of 2022.
83Ext.-17 to 17/7 respectively is the letters dated 06.01.2021, 15.03.2021, 19.07.2021, 07.09.2021, received from Caste Scrutiny Committee.
Ext.-18 to 18/2, respectively is the reply of Summari Lal, the Respondent No. 1 to Member Secretary, Caste Scrutiny Committee dated 31.03.2024, 18.08.2021 and 20.07.2021 respectively.
Ext. -18/9 to 18/18 is the Gazette Notification dated 10.08.1950 with regard to Constitution (Scheduled Castes) Order, 1950.
Ext. -18/19 to 18/63 is the another Gazette Notification dated 28.10.1956 with regard to the Constitution (Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956.
Ext.-18/64 to 18/66 are the Notification dated 22.03.1977 issued by the Government of India, Ministry of Home Affairs.
Ext. -18/67 to 18/68 is the letter dated 22.02.1985 issued by the Government of India/Bharat Sarkar, Ministry of Home Affairs/Grih Mantralaya
129. Although, Ext. -18/9 to 18/18 is the Gazette Notification dated 11.08.1950, which was issued after the presidential order made by the Hon'ble President of India by which the order has been made by the Hon'ble President with regard to Constitution (Scheduled Castes) Order, 1950 and it has been clarified that subject to provisions of this order the Caste, Races or Tribes or Groups within Castes or Tribes is specified in Part-I to XVI of Schedule to this order shall in relation to the State to which those part respectively relates be deemed to be the Scheduled Caste so far as regard members as they are residents in the localities specified in relation to them in those parts of that schedule.
84130. Ext. -18/10 is the part of this Gazette Notification dated 10.08.1950 and Part-II of notification reveals that altogether 21 Castes have been shown as Scheduled Castes.
131. Ext. -18/9 is the Gazette Notification dated 10.08.1950 issued by the Government of India by the order of President of India has notified the Constitution (Scheduled Castes) Order, 1950 by which list of Caste have been included as Scheduled Castes in different States of the Country and which also includes the Scheduled Caste of the State of Bihar in Part-II of the Schedule, is quoted hereunder:-
PART-II-BIHAR
1. Bauri 11. Hari, including Mehtar
2. Bantar 12. Kanjar
3. Bhogta 13. Kurariar
4. Chamar 14. Lalbegi
5. Chaupal 15. Mochi
6. Dhobi 16. Musahar
7. Dom 17. Nat
8. Dusadh, including Dhari or 18. Pan
9. Ghasi 19. Pasi
10. Halalkhor 20. Rajwar
21. Turi
2. In Patna and Tirhut divisions, and the districts of Monghyr Bhagalpur, Purnea and Palamau:-
Bhumij
3. In Patna, Shahabad. Gaya and Palamau districts:- Bhuiya
4. In Shahabad district:-
Dabgar Which has been marked as Ext.-18/10 before the Co- ordinate Bench of this Court.
The Caste of the Respondent no. 1 is at serial no. 11 is shown in the erstwhile State of Bihar as Scheduled Caste whereas the Caste of the Election-Petitioner is at serial no. 6 as Scheduled Caste.85
Serial No. 6 shows ' Dhobi' i.e. Caste of the Election- Petitioner whereas the Serial no. 7 denotes Caste 'Dom' whereas serial no. 21 denotes the Caste "Hari including Mehtar". The Respondent No. 1, Smmari Lal has claimed to be the Caste of Mehtar.
132. Ext. -18/17 is the part of the Gazette Notification dated 10.08.1950 by which it reveals that altogether 44 category of Castes is shown as member of Scheduled Castes in Rajasthan. Serial No. 17 shows Dome whereas Serial No. 32 shows the Caste Mehtar and serial no. 44 shows the Caste Valmiki. Later on this notification was further modified and extended by another Gazette of India Extraordinary Notification dated 29.10.1956 by which the Hon'ble President has issued order for THE SCHEDULED CASTES AND SCHEDULED TRIBES LISTS (MODIFICATION) ORDER, 1956, which is in total 45 sheets. However, the office of the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Gautam Kumar Choudhary) had marked each page of notification as separate Exhibits i.e. Ext.- 18/19 to 18/63 respectively page wise.
133. It further reveals from Ext.-18/17, which includes the name of lists of Scheduled Caste of the States of Rajasthan as per the averment of the Election-Petitioner the Respondent no. 1 Caste is mentioned at Serial No. 10 as Bhangi or at Serial at No. 19 as Garancha Mehtar. Part-XIV-Rajasthan is as follows:
Throughout the State:-
1 Adi Dharmi 23 Kapadia Sansi 2 Aheri 24 Khangar 3 Badi 25 Khatka 4 Bagri 26 Kooch Band 5 Bajgar 27 Koria 86 6 Bansphor 28 Kunjar 7 Bargi 29 Madari (Bazigar) 8 Bawaria 30 Majhabi 9 Bhand 31 Mehar 10 Bhangi 32 Mehtar 11 Bidakia 33 Mochi 12 Chamar 34 Nut 13 Chura 35 Pasi 14 Dabgar 36 Raigar 15 Dhankia 37 Ramdasia 16 Dheda 38 Rawal 17 Dome 39 Sarbhangi 18 Gandia 40 Singiwala 19 Garancha Mehtar 41 Sansi 20 Godbi 42 Thori 21 Jatia 43 Tirgar 22 Kalbelia 44 Valmiki
134. However, later on the said Gazette of India was modified by amending/modifying the Constitution (Scheduled Castes) Order, 1950 to the extent and as is specified in Schedule-I and it reveals from Ext.-18/22, which is shown number of Scheduled Castes in the erstwhile State of Bihar in Part-III. However, Scheduled Castes were amended in the State of Rajasthan at Par-II of the said Gazette of India notification by incorporating several other Castes in the 87 various districts of Rajasthan were added in various districts, which is evident from Ext.-18/37 to 18/39 respectively.
135. Ext.-18/22 is Part-II of the said Notification dated 28.10.1956 (i.e. Ext. -18/19), which reveals the member of Scheduled Caste in the State of Bihar and it shows that altogether 21 different members of Scheduled Castes have been identified as Scheduled Castes. The remarkable fact in this Gazette Notification dated 28.10.1956 is concerned that there is no change in the specific members and members of Scheduled Castes of the State of Bihar (it has remained the same as published in the Constitution (Scheduled Caste) Order, 1950 (i.e. Ext. 18/9) and it has remained the same whereas certain members of Scheduled Castes and Scheduled Tribes have been modified by the order of Hon'ble President of India.
136. Part-11 of the said Notification dated 28.10.1956 reveals that the members of Scheduled Castes in Rajasthan on denotes/shown altogether 23 Castes have been identified as Scheduled Caste and there are certain changes in the some districts in the State of Rajasthan.
137. Ext. -18/64 is the letter no. BC-12025/2/76-SCT (I) dated 22.03.1977 issued by the Government of India, Ministry of Home Affairs to all the Chief Secretaries to All State Governments/Union Territory Administrations clarifying the issue of Scheduled Cast/Scheduled Tribe certificates that a person, who is temporarily away from his permanent place of a above at the time of the notification of the Presidential Order applicable in his case, say for example to earn a living or seek education etc. can also be regarded as Scheduled Caste or a Scheduled Tribe, as the case may be, if his Caste/Tribe has been specified in that order in relation to his State/U.T. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his 88 caste/tribe has been scheduled in respect of that area in any Presidential Order.
138. Therefore, for the first time, Government of India made clarification that if a person is temporarily away from his original State for earning his livelihood for the purpose of education, then he will not be treated as a member of Scheduled Caste/Scheduled Tribe in the another State. For this purpose, the Government of India has made special provisions in the prescribed Performa for issuance of such certificate so that certificates may be issued to the deserving persons and it was observed that proper verification based primarily on revenue records and if need be, through reliable enquiries, is made before such certificates are issued. Thus, power has been vested to the Revenue Authority before issuing such certificate. However, it was also cautioned by the Government of India to the Authorises not to issue Caste Certificate merely on the basis of certificate issued by MPs, MLAs, Gazetted Officers etc. Thus, Ext.-18/63 clearly shows that the concept of permanent residence is of primary consideration.
139. Apart from this, it was also clarified that the concept of 'residence' connotes the permanent residence of persons on the date of notification of Presidential Order scheduling his caste/tribe in relation to that locality. Therefore, much emphasis has been given on the point of permanent residence of person concern for issuing the Caste Certificate, but not on the basis of temporarily residence of a person, who may be away for the livelihood or for the purpose of education on the date of issuance of Presidential Order i.e. the Constitution (Scheduled Castes) Order, 1950 as Ext.-18/9 and the Constitution (Scheduled Caste and Scheduled Tribe) modification order dated 29.10.1956, Ext. -18/19.
89140. It further transpires that the above notification was further clarified by Government of India Ministry of Home Affairs No. BC- 12025/2/76-SCT(I), dated 22.03.1977, which has been marked as Ext.-18/64 by which the concept of term "residence" was clarified by the Government of India by referring to all the Chief Secretaries to All State Governments/Union Territory Administrations with regard to issue of Scheduled Caste and Scheduled Tribe Certificates.
141. This letter is part of Annexure-9 of this Election Petition and which has been clarified as follows:-
"Clause-2:- As required under Articles 341 and 342 of the Constitution, the President has, with respect to every State and Union Territory and where it is State after consultation with the Governor of the concerned State, issued orders notifying various Castes and Tribes as Scheduled Castes in relation to that State or Union Territory from time to time. The inter-state area restrictions have been deliberately imposed so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Castes or Scheduled Tribes status, only benefit from the facilities provided for them. Since the people belonging to the same caste but residing in different State/Union Territories may not necessarily suffer form the same disabilities, it is possible that two persons belonging to the same caste but residing in different State/U.Ts may not both be treated to belong to Scheduled Caste/Tribes or vice versa. Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not been understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribes in relation to that locality. Thus a person who is temporarily away from his permanent place of a abode at the time of the notification of the Presidential Order applicable in his case, say for example to earn a living or seek education etc. can also be regarded as Scheduled Caste or a 90 Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that order in relation to his State/U.T. 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. Clause-3:- It is to ensure the veracity of this permanent residence of a person and that of the caste/tribe to which he claims to belong that the Government of India has made a special provision in the proforma prescribed for the issue of such certificate. In order that the certificates are issued to the deserving persons it is necessary that proper verification based primarily on revenue records and if need be, through reliable enquiries, is made before such certificates are issued."
142. It further transpires that vide letter dated 22.02.1985 issued by Joint Secretary, Government of India/Bharat Sarkar, Ministry of Home Affairs/Grih Mantralaya, which is marked as 18/67 and 18/68 before the Co-ordinate Bench of this Court, it has been clarified at Clause-2 of the said letter as follows:-
"Clause-2:- It is also clarified that a Scheduled Caste/ tribe persons 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/ 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."
143. Therefore, moot question arises as to whether the person(s), who may be residents from the other States, who is the member of the Scheduled Caste of Original State, can be treated as Scheduled Caste of the State of Jharkhand prior to issuance of Gazette Notification dated 10.08.1950, (Ext-.18/09), to the migrated State and what will be the fate of successor or legal heirs of the Original Migrants person.
91144. The Respondent No. 1, Smmari Lal has filed his written statement and claimed that he is 'Bhangi' by Caste and is a member of Scheduled Caste in the State of Jharkhand. It has been asserted by the Respondent No. 1 that he is permanent resident of Jharkhand and he was born and brought up at Ranchi in the State of Jharkhand. He has passed Matriculation Examination in the year 1979 from Zila School, Ranchi. He did Graduation in the year 1983 from Ranchi University and thereafter he passed Master of Arts examination in the year 1985 from Ranchi University. He has filed photocopy of his Caste Certificate, which was evident as Annexure-B in his written statement, which reveals that it was issued on 31.10.2009 by the office of Anchal Adhikari, Town Anchal, Ranchi, Jharkhand showing his Sub-caste as 'Bhangi' (Mehtar) and religion Hindu. It reveals from Annexure-B, which was later on marked as Ext. -D that this Caste Certificate was issued on 31.10.2009 on the basis of local inspection and it was clarified that Smmari Lal i.e. the Respondent No. 1 is by Caste 'Bhangi'. This Certificate was given on 31.10.2009 and it bears the signature of some Authority and which is endorsed by the Circle Officer, Town Anchal, Ranchi on 31.10.2009. The Respondent No. 1, Smmari Lal has enclosed another Caste Certificate dated 20.01.2005 issued by the Anchal Adhikari, Sadar Anchal, Ranchi by which it reveals that the Respondent No. 1, Smmari Lal i.e. by Caste 'Bhangi' (Mehtar). The Respondent No. 1 has filed service book of one Gulabia Devi, DW-3, but the same is illegible, which is for the period 01.04.1051 to 01.04.1968.
145. In this background the evidence of the Respondent no. 1 is required to be scrutinized to arrive at just conclusion.
146. D. W. -1 is Dilip Ram (Son of DW-4), who has stated during his evidence that his grand-father and grand-father of the respondent no. 1 were own cousin brother and both his grand-father 92 and grand father of Smmari Lal had been brought by the by British People in Ranchi, (which was part of the erstwhile State of Bihar) since before the Independence for the purpose of cleaning work and they had settled at Balmiki Nagar, Harmu Road, Ranchi. He also stated that the Respondent no. 1, Smmari Lal was born in June, 1962 at Ranchi and he belongs to Caste Bhangi (Mehtar) and follows the Hindu religion, and he comes in the category of Scheduled Caste and he has taken the benefit of reservation only in Jharkhand (erstwhile State of Bihar) and not from any other State.
He was cross-examined only on the point of name of his grand-father and to which this witness, DW-1 stated that his grand- father Late Mohan Ram and grand-father of Summari Lal is late Janki Ram. However, he had not filed any residential proof of Smmari Lal or his ancestors in the Court. He fairly admitted that the Respondent No. 1, Smmari Lal is his relative.
147. Therefore, this witness was not cross-examined by the petitioner on the point of his ancestors migrating from Rajasthan and he was not confronted on the point of District of Rajasthan from which grand-father of Respodnent No. 1, Smmari lal had arrived. Even DW-1 was not cross-examined on the point of arrival of year of grandfather of the Respondent No. 1, Smmari Lal. Even the PW-1, Suresh Kumar Baitha had not cross-examined DW-1 on the point that only his father has migrated to Ranchi in the year 1965 for the purpose of job and he was employed in Rajendra Medical College and Hospital i.e. RMCH.
Thus, evidence of DW-I remains intact on the point of arrival of ancestors of the Respondent no. 1 i.e. grand-father of the respondent no. 1 from the State of Rajasthan much before the date of Independence of India ( i.e. before 15.08.1947) and also on the point that they were brought by the British People to Ranchi for cleaning 93 work etc. Thus, DW-1 fully supports the case of the Respondent No. 1, Smmari Lal and evidence of PW-1, Suresh Kumar Baitha and P.W.-2, Gulzar Ahmad is contradictory from DW-1 on the point of arrival of father of the respondent no. 1, Smmari Lal in the year 1965 at Ranchi.
148. D.W.-2 is Jugal Ram, who also stated during his evidence that Late Janki Ram, grand-father of the Respondent no. 1, Smmari Lal and Mishri Ram Balmiki, father of the Respondent no. 1, Smmari Lal were resident of Balmiki Nagar, Ranchi prior to the independence and the Respondent No. 1, Smmari Lal is also resident of Balmiki Nagar, Ranchi, which is known as Harijan Colony and the Respondent No. 1 is living in Ranchi since the time of his birth.
This witness was examined only on the point of employment of grand- father of the Respondent no. 1, Smmari Lal to which he stated that he has no personal knowledge as to where Janki Ram was employed. However, this witness was not cross-examined by the petitioner on the point of arrival of grand-father of the respondent no.1, Smmari Lal from the State of Rajasthan by the British People. DW-2 has also not been cross-examined on the point of birth of Smmari Lal, who was born in the year 1962 and is living in Ranchi since them.
Therefore, DW-2 has also supported the fact of the Respondent No. 1, Smmari Lal that ancestors i.e. grand-father and father of Smmari Lal were living in Ranchi since before the independence and his grand-father were brought to Ranchi (erstwhile State of Bihar) since before the independence.
Thus, DW-2 supports the case of the Respondent No. 1, Smmari Lal and contradicts the evidence of PW-1, Suresh Kumar Baitha and P.W.-2, Gulzar Ahmad.
94149. D.W.- 3 is Gulabia Devi, aged about 88 years on the date of her evidence and she stated that she was born and brought up in Ranchi and her father was residing at Balmiki Nagar, Harmu Road, Ranchi. She had worked in Ranchi Municipal from 09.03.1950 till the date of her retirement and has filed the photocopy of her service book. She also asserted that the Respondent No. 1, Smmari Lal was born at Balmiki Nagar, Ranchi and he belongs to Harijan Caste.
During cross-examination, she could not say as to from where Mishri Lal Balmiki (father of the Respondent No. 1, Smmari Lal) had arrived at Ranchi, but she had seen him at Ranchi.
Thus, D.W.- 3, Gulabia Devi has supported the fact of birth of the Respondent No. 1, Smmari Lal at Ranchi, who is said to be born in the year 1962.
150. DW.-4 is Sajna Ram, who is aged about 85 years and he has stated that his ancestors were brought to Balmiki Nagar, Ranchi by British People since before Independence and they had settled there at Ranchi. He has submitted that the Respondent No. 1, Smmari Lal is his brother (cousin brother). He had worked in Ranchi University, Ranchi from 25.01.1955 to 28.02.1999 and he is pensioner and he had also filed photocopy of his service book. He further asserted that his father and father of Smmari Lal were living at Balmiki Nagar, Harmu Road, Kishorganj Ranchi prior to independence together and his uncle and father of Summari Lal i.e. the Respondent No. 1 had worked at RIMS, Ranchi and got pension in their whole life. He was also made Member of District Level Caste Recommendation Committee by the erstwhile State of Bihar.
During cross-examination, this witness was mainly confronted on the point of not filing any documentary evidence in support of contenstion that Mishri Lal (father of the Respondent No. 1, Smmari Lal) had been settled at Ranchi during British Raj and for 95 not having documentary evidence of the ancestors of Smmari Lal i.e. the Respondent no. 1 living at Ranchi since before the independence.
151. No doubt, DW-4 has not filed any documentary evidence of ancestors of the Respondent No. 1, Smmari lal for living at Ranchi, but even DW-4 was not confronted in oral testimony that as to which year, the ancestors of Smmari Lal i.e. the Respondent no. 1 had been brought at Ranchi by the British People. Even DW-4 had also not been confronted on the question of employment of father of Smmari Lal i.e. the Respondent No. 1 at RIMS from 1965.
The petitioner has failed to rebut oral testimony of the evidence of DW-4, who is retired Government Servent and later on he was nominated as Member of District Level Caste Recommendation Committee.
Thus, D.W.-4, Sajna Ram has also supported the case of the Respondent No. 1, Smmari Lal and has contradicted the evidence of DW-1, Dilip Ram and DW-2, Jugal Ram.
152. DW.-5 is Binod Ram and who is working in Union Bank, Shyamli Colony, Doranda since the year 1986 and had also supported the case of Smmari Lal, i.e. The Respondent No. 1 that the family of the Smmari Lal i.e. the Respondent No. 1 were living along with family of his grand-father and grand-mother at Balmiki Nagar, Harmu, Kishorganj, Ranchi since before the independence. Howeer, he has gone to the extent by stating that the Respondent no. 1, Smmari Lal has been contesting election since 1985 from various political parties i.e. RJD, JMM and BJP and at that time, none had raised objection on the caste of Smmari Lal i.e. Respondent no. 1.
During cross-examination, he stated that Janki Ram was the grand-father of the Respondent no. 1, Smmari Lal, although he 96 cannot file document with regard to residential proof of Janki Ram prior to independence.
Thus, DW-5 has also supported the case of the Respondent No. 1, Smmari Lal that his ancestors were living with the ancestors of Smmari Lal since before the independence at Balmiki Nagar, Ranchi.
The petitioner has failed to rebut the oral evidence of DW-4 who is also a Government Servant.
DW-5 was not confronted by the petitioner on the point of service of the father of the Respondent No. 1, Smmari Lal at RIMS in the year 1965 and thus the evidence of DW-5 clearly contradicts the evidence of PW-1, Suresh Kumar Baitha and P.W.-2, Gulzar Ahmad on the point of arrival ancestors of the Respondent No. 1, Smmari Lal at Ranchi.
153. DW-6 is Krishna Ram who has stated during his evidence that his ancestors and ancestors of Respondent no. 1 Smmari Lal were living at Balmiki Nagar, Harmu Raod, Ranchi prior to independence of the country. He was born in the year 1972 at Balmiki Nagar, Ranchi and since the time of his birth, they have good relationship with Respondent no. 1 Smmari Lal. He also stated that his ancestors and ancestors of Smmari Lal were brought to Ranchi at Balmiki Nagar by the British people.
During cross-examination, he stated that Janki Ram was father of Smmari Lal.
Though DW-6 has not correctly stated the name of father of Respondent no. 1 Smmari Lal as he has named Janki Ram as father of Smmari Lal instead of Mishri Lal Balmiki. However, he admitted and asserted that his ancestors and ancestors of Respondent no. 1 Smmari Lal were brought to Ranchi by the British people prior to independence. DW-6 has not been 97 confronted on the question of arrival of their ancestors of Smmari Lal and his ancestors from Rajasthan. EVen DW-6 is working as a Government Employee and was appointed on compassionate ground at Ranchi College and is a truthful witness.
Thus, DW-6 has fully supported the case of Respondent no. 1 Smmari Lal that his ancestors were brought to Ranchi from Rajasthan. Even this DW-6 has not been contradicted on the point of arrival of father of Respondent no. 1 Smmari Lal in the year 1965 for doing job at RMCH, Ranchi.
154. DW-7 is Tikam Chand Pawar (son of DW-4 Sajna Ram) who also supported the case of Respondent no. 1 Smmari lal on the point that their ancestors and ancestors of Smmari Lal were living at Balmiki Nagar, Harmu Road, ranchi prior to independence. This DW-7 is also a Government servant and retired from the post of Estate Officer, Ranchi University in the year 2016. He further stated that Respondent no. 1 Smmari Lal had contested elections several times from Kanke Assembly Region and there was no protest during election on the basis of caste. This witness was not confronted on the point of arrival of ancestors of Smmari Lal in Ranchi before independence in the erstwhile State of Bihar rather, he was questioned for not filing any document in support of residential proof of ancestors of Smmari Lal. He admitted to have knowledge of cancellation of Caste Certificate of Respondent no. 1 Smmari Lal by Caste Scrutiny Committee.
The DW-7 has fully supported the case of the Respodnent No. 1, Smmari Lal.
155. DW-8 is Basant Ram who has also supported the case of Respondent no. 1 Smmari lal. He also stated that his ancestors and ancestors of Respondent no. 1 Smmari Lal were living at Balmiki Nagar, Harmu Road, Ranchi. He also stated that his father and 98 family members were came to Ranchi before independence and was working as Cleaning Employee at Ranchi College and as his father had retired from Ranchi College as Cleaning Employee and had retired in the year 1984. He was also an employee in Ranchi University and retired in the year 2018 and is getting pension from P.N.B, Ranchi Branch.
Even this witness was cross-examined only on the point of not filing any documentary evidence in support of ancestors of Respondent no. 1 Smmari Lal.
The petitioner has failed to rebut the evidence of DW-8. Thus, DW-8 namely Basant Ram has fully supported the case of the Respondent No. 1, Smmari Lal.
156. DW-9 is Anand Kumar Balmiki who has also supported the case of Respondent no. 1 Smmari Lal by stating that his ancestors and ancestors of Smmari Lal were residing at Balmiki Nagar, Harmu Road, Ranchi prior to independence and Respondent no. 1 Smmari Lal had contested Kanke Assembly Election several times.
During cross-examination, During cross-examination, he stated that Janki Ram was father of Smmari Lal.
However, he admitted and asserted that his ancestors and ancestors of Respondent no. 1 Smmari Lal were brought to Ranchi by the British people prior to independence. DW-9 has not been confronted on the question of arrival of their ancestors of Smmari Lal and his ancestors from Rajasthan. Thus, DW-9 is working as a Government Employee and was appointed on compassionate ground at Ranchi College and is a truthful witness.
Thus, DW-9 has fully supported the case of Respondent no. 1 Smmari Lal that his ancestors were brought to Ranchi from Rajasthan. Even this DW-9 has not been contradicted on the point 99 of arrival of father of Respondent no. 1 Smmari Lal in the year 1965 for doing job at RMCH, Ranchi.
157. DW-10 is Binod Ram who is a Bank Employee of UCO Bank from the year 1979 till 31.05.2022 and has also supported the case of Respondent no. 1 Smmari Lal by stating that his ancestors and ancestors of Respondent no.1 had come to Ranchi since before independence. His ancestors and ancestors of DW-10 had settled at B.I.T Mesra whereas ancestors of Respondent no. 1 Smmari Lal had settled at Balmiki Nagar, Kishoreganj, Ranchi and Respondent no. 1 Smmari lal is relative. Respondent no. 1 Smmari Lal had contested Kanke Constitutency of Assembly Election several times but no one raised objection with regard to his caste. Even the father of DW-10 i.e. Binod Ram was working as Sweeper in the year 1960 at B.I.T in Caretaker Office.
DW-10 asserted that his ancestors and ancestors of Respondent no. 1 Smmari Lal were brought to Ranchi by the british people prior to independence. DW-10 has not been confronted on the question of arrival of their ancestors of Smmari Lal and his ancestors from Rajasthan. Thus, DW-10 was working as a Government Employee and was appointed in the Bank.
Thus, DW-10 has fully supported the case of Respondent no. 1 Smmari Lal that his ancestors were brought to Ranchi from Rajasthan. Even this DW-10 has not been contradicted on the point of arrival of father of Respondent no. 1 Smmari Lal in the year 1965 for doing job at RMCH, Ranchi.
158. DW-11 is Prabati Ram who is a retired employee of B.I.T and who had worked in B.I.T from the year 1966 till the year 2004 and ancestors of Respondent no. 1 Smmari Lal came to Ranchi since before independence and family DW-11 started living at Neori, Ranchi whereas ancestors of Respondent no. 1 Smmari Lal 100 have been living at Balmiki Nagar, Ranchi. DW-11 is aged about 85 years.
During cross-examination, he mainly confronted on the point of not filing any documentary proof of ancestors of Smmari Lal who was living at Ranchi since before independence.
Thus, DW-11 has also supported the case of Respondent no. 1 Smmari Lal.
159. DW-12 is Bhagi Ram Balmiki who has also supported the case of Respondent no. 1 Smmari Lal by stating that his ancestors as well as ancestors of Respondent no. 1 Smmari Lal came to Ranchi before independence and had settled at Balmiki Nagar, Harmu Road, Ranchi. He had worked in Army Headquarter from the year 1968 to 1970, then he worked in Airport and retired from there.
The retirement order of DW-12 is marked as Exhibit and it reveals from the office order of Airports Authority of India that DW-12 Bhagi Ram Balmiki had retired from the services on 30.04.2014.
Even this witness was cross-examined only on the point of not filing any documentary evidence in support of ancestors of Respondent no. 1 Smmari Lal. Thus, DW-12 has also supported the case of Respondent no. 1 Smmari Lal.
160. DW-13 is one Brij Kishore Bijay who was the Election Agent of Respondent no. 1 Smmari Lal in the Assembly Election of 2019. He also supported the case of Respondent no. 1 Smmari Lal that the father of Respondent no. 1 had worked in RMCH from the year 1965. He also stated that it was ascertained during local inspection that the ancestors of Smmari Lal and other people of 'Bhangi Jati' were brough to Ranchi from Rajasthan by the British Government.
101During cross-examination, he stated that Respondent no. 1 Smmari Lal had contested elections seven (7) times since the year 1985.
Thus, DW-13 has also supported the case of Respondent no. 1 Smmari Lal as he was Election Agent of Respondent no.1. DW-13 has proved Exhibit-C (with objection) which is the photocopy of letter dated 17.10.2022 addressed to Hon'ble Governor under the signature of Amar Kumar Bauri (MLA of Chandankyari).
161. DW-14 is Smmari Lal i.e. Respondent no. 1. He stated and asserted during his evidence that he is by caste 'Bhangi' and permanent resident of State of Jharkhand and he was born in Ranchi on 23.06.1962 and has filed the Aadhar Card in support of his evidence. He has also filed the photocopy of Matriculation Certificate, Intermediate Marksheet, Graduation Marksheet and Marksheet of M.A. and stated that he has passed Matric exam in the year 1979 and had passed Graduation in the year 1983 from Ranchi University and also passed M.A. exam in the year 1985 from Ranchi University, Ranchi. He also filed the photocopy of NCC Certificate and Registration Certificate of Ranchi Employment Exchange which has been marked as Exhibit-D/6 and Exhibit-D/7 He also stated that he was selected as Member of Jharkhand Regional Autonomous Council as Member of Scheduled Caste in the year 1985 and has filed photocopy of the said certificate. He asserted that his father has worked in RMCH from the year 1965 till the date of his retirement. He also proved the photocopy of Appreciation Certificate issued by then Minister to his cousin brother Sajna Ram which has been marked as Exhibit-D/11. He has also asserted that his ancestors were brought to Ranchi at Balmiki Nagar by the British people since before 102 independence for doing the cleaning work. He had denied for committing forgery. He had denied the assertion of the petitioner for doing forgery and for deceiving the Returning Officer or any other voters. He empathetically denied that his father came to the erstwhile State of Bihar after getting Job in RMCH because as a matter of fact, his grandfather and brother of his grandfather and other family members were brought and settled at Ranchi by the British people for the cleaning work since before independence. He also denied for violating any provision of Representation of People's Act, 1951. He also admitted the Certificate/Report dated 30.11.2021 handed over to him by Circle Inspector, Bargain to Circle Officer, Bargain, Ranchi. The said report dated 30.11.2021 is marked as Exhibit-18/70 (marked on behalf of the petitioner) and also marked as 19 to 19/2 (marked on behalf of the petitioner).
162. From perusal of Exhibit-19 to 19/2, it would appear that Circle Officer had forwarded his report dated 19.12.2020 to the Deputy Collector, In-charge by stating that Misri Lal Balmiki was father of Smmari Lal was posted in Ranchi from 03.07.1965. It was also reported that Sajna Ram i.e. DW-4 who is the President of Bharat Ambedkar/Balmiki Panchayat, Ranchi had submitted report on his letter pad in writing that Smmari Lal son of Late Misri Lal Balmiki is by caste 'Bhangi'. Even, several people who was present in the meeting at the resident of Respondent no. 1 Smmari Lal is living in the quarter of RIMS since last 45-50 years and he belongs to 'Bhangi' caste. The Circle Officer has given reference to Letter No. 7 dated 03.07.2004 issued by Personnel, Administrative Reforms and Rajbhasa Department. He has further referred the Circular dated 05.08.2016 (marked as Exhibit-11) for issuance of Certificate to the Member of Scheduled Caste and Scheduled Tribes in the State of Jharkhand. However, he could not 103 find any evidence of ancestors of Smmari Lal for residing in Jharkhand prior to 1950.
163. Exhibit-19/2 is the report dated 30.11.2021 sent by Circle Inspector to Circle Officer, Bargain, Ranchi by which it has been informed that as per local inspection/investigation made by Circle Inspector, he was informed by the local members of 'Bhangi' (Balmiki Caste) that ancestors of Smmari Lal i.e. Respondent No. 1 and people of other Bhangi Caste were brought by the British people from Rajasthan but they could not produced any documentary evidence and they could not explain as to from which district of Rajasthan their ancestors had come, but stated that Smmari Lal and his ancestors were mainly from the State of Rajasthan and have settled for their livelihood at Ranchi.
However, Circle Officer has not disclosed the name of any witness.
164. Thus, Exhibit-19, 19/1 and 19/2 respectively are vague. Although, Circle Inspector had found during local inspection that ancestors of Smmari Lal and other people of Bhangi Caste were brought to Ranchi since before independence by the British people for the cleaning work yet, he avoided by giving them correct picture and also gave his opinion that family members of Respondent no. 1 Smmari Lal belong to Rajasthan and had settled at Ranchi. However, it is evident from the evidence of DW-14 i.e. Respondent no. 1 that his ancestors have been brought to Ranchi since before independence by the British people and which is also corroborated from the evidence of D.W.-1 Dilip Ram, D.W.-2 Jugal Ram, D.W.-3 Gulabiya Devi, D.W.-4 Sajna Ram, D.W.-5 Binod Ram, S/o Bannu Ram, D.W.-6 Krishna Ram, D.W.-7 Tikam Chand Pawar, D.W.-8 Basant Ram, D.W.-9 Anand Kumar Balmiki, D.W.-10 Binod Ram, S/o Baiju Ram, D.W.-11 Parbhati 104 Ram, D.W.-12 Bhagi Ram, he has been born in Ranchi in the year 1962 and he has been brought up in Ranchi and his educational studies right from the Matriculation to M.A exam from Ranchi in the erstwhile State of Bihar (now Jharkhand). It is evident that Respondent no. 1 Smmari Lal is living in Ranchi since the year 1962 and his grandfather were brought to Ranchi by the British Administration.
165. DW-15 is Damodar Ram who is a retired employee of Bank of Baroda, Main Branch, Ranchi in the year 2017 and he also stated that his grandfather late Pokhan Ram had settled with ancestors o Respondent no. 1 at Harmu Road, Ranchi. He stated that father of Smmari Lal was working in RMCH whereas, father of DW-15 was working at Coal Server Depot in Ranchi and even the Respondent no. 1 Smmari Lal had contested the election seven (7) times.
Thus, This witness was cross-examined only on the question of cancellation of Caste Certificate of Respondent no. 1 Smmari Lal by the Caste Scrutiny Committee. DW-15 has not been confronted on the question of arrival of ancestors of Smmari Lal since before independence at Ranchi.
Thus, DW-15 has supported the case of Respondent no. 1 Smmari Lal.
166. DW-16 is Jyoti Kumar Singh who is the Muncipal Commissioner and he has been examined only on the point of maintaining the service book of DW-3 Gulabiya Devi.
Thus, DW-16 is a formal witness, but his evience suggests that DW-3 was working in Ranchi Municipal Corporation.
167. DW-17 is Mukund Chandra Mehta who was examined only on the point of maintaining service book of DW-4 i.e. Sajna Ram who was working in Biology Department at Ranchi College, 105 Ranchi and he has proved the service book of DW-4 i.e. Sajna Ram for identification marked as "Y".
Thus, DW-17 is a formal witness who has come to identify the documents which is the service book and application for pension of DW-4 Sajna Ram. However, the evidence of DW- 17 reveals that DW-4 Sajna Ram was working in Ranchi College, Ranchi. Thus, the evidence of DW-17 supports the case of Respondent no. 1 Smmari Lal.
168. It has been held by the Hon'ble Supreme Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Versus Union of India and Another reported in (1994) 5 SCC 244, at para-6, 7, 8, 16, 17 and 18 as follows:-
"Para-6:- The Government of India in the Ministry of Home Affairs noticed that certificates belonging to a particular Scheduled Caste/Scheduled Tribe were not issued strictly in accordance with the principles governing the issue of such certificates presumably on account of lack of understanding of the legal position regarding the concept of the term "residence" on the part of the authorities concerned. With a view to clarifying the legal position the communication of 22-3-1977 came to be issued. The relevant part of that communication may be reproduced for ready reference:
"As required under Articles 341 and 342 of the Constitution, the President has, with respect to every State and Union Territory and where it is State after consultation with the Governor of the concerned State, issued orders notifying various Castes and Tribes as Scheduled Castes and Scheduled Tribes in relation to that State or Union Territory from time to time. The inter-State area restrictions have been deliberately imposed so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Caste or Scheduled Tribe status, only benefit from the facilities provided for them. Since the 106 people belonging to the same caste but living in different State/Union Territories may not both be treated to belong to Scheduled Caste/Tribe or vice versa. Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the liberal or ordinary sense of the word. On the other hand 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 or abode at the time of the notification of the Presidential Order applicable in his case, say for example, to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribe, as the case may be, if 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."
The communication further states that with a view to ensuring the veracity of permanent residence of a person and that of the caste/tribe to which he claims to belong, the Government of India made a special provision in the pro forma prescribed for the issue of such certificates. In order to ensure that competent authorities should alone issue such certificates the Government of India (Department of Personnel and Administrative Reforms) by a letter dated 6-8-1975 indicated the authorities locality-wise who should issue the certificates. The communication then proceeds to add:
"Thus the Revenue Authority of one District would not be competent to issue such a certificate in respect of persons belonging to another District. Nor can such an authority of one State/Union Territory issue such certificates in respect of persons whose place of permanent residence at the time of the notification of a particular Residential Order, has been in a different State/Union Territory."107
This was emphasised because only the revenue authorities of the locality of which the individual is the resident alone would have access to revenue records to be in a position to make reliable enquiries before the issuance of the certificate. In regard to persons born after the date of the notification of the relevant Presidential Order, the communication states that the place of residency for the purpose of acquiring Scheduled Caste or Scheduled Tribe certificate is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which they claim to belong to such a caste/tribe.
Para-7:- Subsequent to the issuance of the said communication by the Government of India, the Commissioner for Scheduled Castes and Scheduled Tribes submitted his 22nd Report wherein he pointed out that instances had come to his notice where false certificates were produced by non-Scheduled Caste/Scheduled Tribe persons to secure government service or admission to educational institutions. The report disclosed that such certificates were being issued without the authority issuing the same being even aware of basic requirements necessary for such certificates. On the basis of the recommendations made by the Commissioner and having regard to the procedure adopted by the State of West Bengal which was commended for acceptance by the Commissioner, the Government of Maharashtra, in modification of the existing orders directed that caste certificates issued by the Special Executive Magistrates should be treated as 'preliminary certificates' and final certificates should be issued only by the Executive Magistrate authorised by the District Magistrate in that behalf. It was also directed that Special Executive Magistrates should certify only the castes to which they themselves belonged. The Government states that if despite these instructions incorrect caste certificates are issued, a serious view will be taken. In the instructions appended to the said Government Order it was, inter alia, stated in paragraphs 13 and 19 as under:
"13. Caste Certificates should be issued only to those who have ordinary residence of the place within the jurisdiction of the 108 competent authority. Ordinary residence means residence which is not for the purpose of service, employment, education, confinement in jail, etc. In short, it means permanent residence and not a temporary residence.
19. Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State from which he has migrated. The competent authority should not, therefore, issue a caste certificate to a person from other State, whether he is ordinary (sic) residing in this State or not."
By the subsequent letter of 12-2-1981, it was further clarified that in order to become eligible for being treated to be a member of Scheduled Caste/Tribe in relation to the State of Maharashtra a person should be a permanent resident of the State of Maharashtra before 10-8-1950, and 6-9-1950, respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the castes/tribes in relation to the State of Maharashtra. Since there was no State of Maharashtra in 1950 it would be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra. At the foot of the pro forma of the certificate the following note was appended:
"Note : The term 'ordinarily reside(s)' used here will have same meaning as in Section 20 of the Representation of the People Act, 1950."
Section 20 of the Representation of the People Act, 1950, reads as under:
"20. Meaning of 'ordinarily resident'.-- (1) A person shall not be deemed to be ordinary resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. (1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(1B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an 109 elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.
(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein. (3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.
(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply, shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in sub-section (3) or sub-section (4) made in the prescribed form and verified in the prescribed manner, that but for his having the service qualifications or but for his holding any such office as is referred to in sub-section (4) he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.
(6) The wife of any such person as is referred to in sub-section (3) or sub-section (4) shall, if she be ordinarily residing with such person be deemed to be ordinarily resident in the constituency specified by such person under sub-section (5). (7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.110
(8) In sub-sections (3) and (5) 'service qualification' means--
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modifications; or
(c) being a member of an armed police force of a State, who is serving outside that State; or
(d) being a person who is employed under the Government of India, in a post outside India."
Para-8:- In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty experienced by them the earlier instructions contained in the letter of 22-3-1977, and the subsequent letter of 29- 3-1982, were modified, in that, the prescribed authority of a State/Union Territory was permitted to issue the Scheduled Caste/Scheduled Tribe Certificate to a person who had migrated from another State on production of a genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority considered a detailed enquiry necessary through the State of origin before issue of certificate. It was further stated that the certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. Of course, this facility did not alter the Scheduled Caste/Tribe status of the person in relation to the one or the other State. The revised form of the certificate was circulated. Further, it was clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of education, employment, etc., will be deemed to be Scheduled Caste/Tribe of the State of his origin only and will be entitled to derive benefits from that State and not from the State to which he 111 had migrated. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. This was reiterated in a subsequent letter dated 15-10-1987 addressed to Smt Shashi Misra, Secretary, Social Welfare, etc., in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated:
"Further, a Scheduled Caste person, who has migrated from the State of his origin, which is considered to be his ordinary place of residence after the issue of the first Presidential Order, 1950, can get benefit from the State of his origin and not from the State to which he has migrated."
So stating the proposal regarding reduction in the period of cut-off point of 1950 for migration was spurned. It was stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22-3-1977, it has firmly held the view that a Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to 112 which he migrates and hence he cannot claim benefit as such in the latter State.
Para-16:- We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also 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 State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:
"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in 113 this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them...."
Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.
Para-17:- Lastly the Constitution Bench referred to the cleavage in the views of different High Courts on the interpretation of Articles 341 and 342 of the Constitution and the consequential orders passed by the Government of India and the State Governments. It referred to the two decisions of the Gujarat High Court as well as the decision of the Karnataka High Court which place the interpretation canvassed before us by Mr Raju Ramachandran. The other side referred to the decisions of the Orissa High Court in K. Appa Rao v. Director of Posts & Telegraphs, Orissa [AIR 1969 Ori 220 :
35 Cut LT 55] , the decision of the Full Bench of the Bombay High Court in M.S. Malathi v. Commissioner, Nagpur Division [AIR 1989 Bom 138 : 1988 Mah LJ 1041 : (1988) 90 Bom LR 532 (FB)] and the decision of the Punjab & Haryana High Court in V.B. Singh v. State of Punjab [ILR (1976) 1 P&H 769] which take the contrary view canvassed before us by the respondents. All these decisions were considered by the Constitution Bench which agreed with the latter view. It upheld the view expressed in the communication dated 22-2-1985 and negatived the challenge of the petitioner that the said view was ultra vires Articles 14, 15, 16 or 21.
It, however, observed that in the facts and circumstances of the case and having regard to the fact that the petitioner student's career was involved it directed the authorities to consider whether the petitioner 114 was a 'Goudi' and if yes, the institution may consider if he can be allowed to complete his studies in the institution. However, on the interpretation of the relevant provisions of the Constitution this Court was clear in its view that legally speaking he was not entitled to admission in the Scheduled Tribe quota.
Para-18:- We are in respectful agreement with the above view expressed by the Constitution Bench in the aforesaid decision. All the points which were canvassed before us by Mr Raju Ramachandran were also canvassed by him in the said matter. They were negatived by the Constitution Bench. Nothing has been pointed out to persuade us to think that the view taken by the Constitution Bench requires reconsideration by a larger Bench. In fact we are in complete agreement with the interpretation placed on the various provisions of the Constitution, in particular Articles 341 and 342 thereof, in the said judgment. We, therefore, see no merit in this writ petition and dismiss the same. However, we make no order as to costs."
169. It has been held by the Hon'ble Supreme Court in the case of Kisan Shankar Kathore Versus Arun Dattatray Sawant and Ors. reported in (2014) 14 SCC 162 at para-43 as follows:-
"Para-43:- When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the Returning Officer at that time to conduct a detailed examination. Summary enquiry may not suffice. The present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the 115 nomination was improperly accepted. Ms Meenakshi Arora, learned Senior Counsel appearing for the Election Commission, rightly argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125-A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced."
170. It has been held by the Hon'ble Supreme Court in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 at para-24 and 26 as follows:-
"Para-24:- Whenever States' reorganisation had taken place in the past, Parliament had exercised its powers under Articles 341(2) and 342(2) and provided for specific Castes/Tribes that were entitled to be recognised as Scheduled Castes and Scheduled Tribes in relation to the reorganised States/Union Territories. The Scheme of the Constitution (Scheduled Castes) and (Scheduled Tribes) Orders 116 makes it clear that Parliament's intention was to extend the benefits of reservation in relation to the States/Union Territories only to the castes, races or tribes as mentioned in the Presidential Orders. Para-26:- Though in a different context i.e. in relation to Backward Classes this Court in MCD v. Veena [MCD v. Veena, (2001) 6 SCC 571 : 2001 SCC (L&S) 992] , has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder: (SCC p. 574, para 6) "6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."
171. It has further been observed by the Hon'ble Supreme Court in the case of Bir Singh Versus Delhi Jal Board and Others 117 reported in (2018) 10 SCC 312 at para-11 to 14 and 34 as follows:-
"Para-11:- The caste system in India, which is the bane of a just social order, has a long history which can be traced to the earliest times. Ancient Hindu religious scriptures refer to the practice. Division of society based on birth and the calling/profession of a person has continued to dominate Hindu thinking and way of life and is perhaps one of the thorny problems inherited by the British Administration which had tried to resolve the same by giving legal recognition to what came to be termed as the "depressed classes".
Such recognition was in the form of a protective regime which extended to representation in the legislature and in the services under the State. Exercises in finding out the numerical strength of the depressed class in the early 20th century (by Southborough Committee) revealed a grim picture indicating such number to be as high as 20 per cent of the majority population (Hindu) in eight (08) Indian Provinces of Madras, Bombay, Bengal, United Provinces, Punjab, Bihar and Orissa, Central Provinces and Assam. The above figure did not include primitive or aboriginal tribes who later came to be known as the Scheduled Tribes and included in the list of Scheduled Tribes under the different Presidential Orders issued from time to time.
Para-12:- The Government of India Act, 1935 (hereinafter referred to as "the 1935 Act") (also referred to as "the Constitution Act") brought into force the expression "Scheduled Castes" for the first time in Indian constitutional history. Entry 26 Part I of the First Schedule to the 1935 Act stipulates that:
"26. (1)the Scheduled Castes means such castes, races or tribes or parts of or groups within the castes, races or tribes, being castes, races, tribes, parts or groups, which appear to His Majesty in Council to correspond to the classes of persons formerly known as "the depressed classes", as His Majesty in Council may specify;"
(emphasis supplied) 118 Para-13:- Thereafter a Gazette Notification was published on 6-6-1936 promulgating the Government of India (Scheduled Castes) Order, 1936 notifying the list of castes that are to be considered as "the Scheduled Castes" across the territory of India. A look at the Schedule which consisted of nine (09) parts i.e. Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central Provinces, Assam, Orissa would indicate that identification of the different castes for inclusion as Scheduled Castes in the Schedule to the 1935 Act was based on an elaborate exercise conducted for each of the provinces so much so that while some castes have been identified as Scheduled Castes throughout a province, others have been so identified to limited areas within a province. The post constitutional exercise by the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, as originally enacted under Articles 341 and 342 of the Constitution, was basically an exercise in re-casting the Schedule to the 1935 Act. The subsequent amendments to the aforesaid two Orders, from time to time, have been necessitated to bring the position in tune with the amendments to the First Schedule to the Constitution made at different points of time by creation of new States and alterations in the area and boundaries of existing States.
Para-14:- Article 366 of the Constitution which defines expressions appearing in the Constitution specifically defines "Scheduled Castes" [clause (24)] to mean "such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution".
(emphasis supplied) Similarly, clause (25) of Article 366 defines "Scheduled Tribes" to mean "such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution".
(emphasis supplied) 119 Para-34:- Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'."
172. It further transpires that the Hon'ble Supreme Court of India in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Versus Union of India and Another reported in (1994) 5 SCC 244 (Constitution Bench of Hon'ble Supreme Court of India) has held that a person arrived at the migrated State from the original State will not be entitled to benefit of reservation. It has been observed that power is vested only with the Hon'ble President of India to decide the benefit of reservation in favour of particular Caste to one State or the other State.
173. At this stage it is relevant to refer Article-332, 341 and 342 of the Constitution of India, which read as follows:-
"ARTICLE 332: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States--
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, 9[except the Scheduled Tribes in the autonomous districts of Assam], in the Legislative Assembly of every State 10*** 120 (2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam. (3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State.
[(3A) Notwithstanding anything contained in clause (3), until the taking effect, under article 170, of the re-adjustment, on the basis of the first census after the year 2000, of the number of seats in the Legislative Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly of any such State shall be,--
(a) if all seats in the Legislative Assembly of such State in existence on the date of coming into force of the Constitution (Fifty-seventh Amendment) Act, 1987 (hereafter in this clause referred to as the existing Assembly) are held by members of the Scheduled Tribes, all seats except one;
(b) in any other case, such number of seats as bears to the total number of seats, a proportion not less than the number (as on the said date) of members belonging to the Scheduled Tribes in the existing Assembly bears to the total number of seats in the existing Assembly.] [(3B)Notwithstanding anything contained in clause (3), until the re- adjustment, under article 170, takes effect on the basis of the first census after the year 2000, of the number of seats in the Legislative Assembly of the State of Tripura, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly shall be, such number of seats as bears to the total number of seats, a proportion not less than the number, as on the date of coming into force of the Constitution (Seventy-second Amendment) Act, 1992, of members belonging to the Scheduled Tribes in the Legislative Assembly in existence on the said date bears to the total number of seats in that Assembly.] (4) The number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State. (5) The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district (6) No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district 3*** [Provided that for election to the Legislative Assembly of the State of Assam, the representation of the Scheduled Tribes and non- Scheduled Tribes in the constituencies included in the Bodoland 121 Territorial Area District, so notified, and existing prior to the constitution of the Bodoland Territorial Areas District, shall be maintained.] ATTICLE 341: Scheduled Castes-- (1) The President 16[may with respect to any State 17[or Union Territory], and where it is a State18*** , after consultation with the Governor19.*** thereof,] by public notification20, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State 17[or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
ARTICLE 342: Scheduled Tribes-- (1) The President 21[may with respect to any State 17[or Union territory], and where it is a State 18***, after consultation with the Governor19*** thereof,] by public notification22, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State 17[or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
174. It is further evident that the above judgment i.e. (1994) 5 SCC 244 was also considered in the case of in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 by another Constitution Bench of Hon'ble Supreme Court of India and it has been observed at para-19 as follows:-
"Para-19:- Articles 341 and 342 also makes it clear that the caste, race or tribe or part of or group within any caste, race or tribe as specified in the Presidential Order under Article 341(1) or a tribe or tribal community as may be specified in the Presidential Order under Article 342(1) shall be deemed to be Scheduled Castes/Scheduled Tribes for the purposes of the Constitution in relation to that State or Union Territory, as the case may be. The above position is further made clear by Clause 122 (2) of the two Presidential Orders which are in the following terms.
"Clause 2 of the Constitution (Scheduled Castes) Order, 1950
2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.
Clause 2 of the Constitution (Scheduled Tribes) Order, 1950
2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule."
175. Thus, it is evident that in the above judgment also (2018) 10 SCC 312 the Hon'ble Supreme Court of India has observed that a person will not be entitled to get benefit of reservation of migrated State unless he is able to produce the evidence of reservation of the origin of the State of his father. In the above judgment also four Hon'ble Judges of Hon'ble Supreme Court has concurred with the similar view, which was delivered by Hon'ble Mr. Justice Ranjan Gogoi, then His Lordship was. However, even Hon'ble Mrs. Justice R. Banumathi has also concurred the view of majority by giving Her Lordship own reasoning in separate paragraphs.
123176. However, in the case of Kumari Madhuri Patil and Another versus Additional Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241, the Judgment of the Constitution Bench of Hon'ble Supreme Court reported in 1994 (5) SCC 244 was not taken note of. However, the above judgment has been passed in different context with regard to issuance of Caste Certificate and in case of dispute in issuance of Caste Certificate of any particular Student, person or candidate, a detailed guideline has been provided in para-13.
177. It has been held in the case of Kumari Madhuri Patil and Another versus Additional Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241 at Para nos. 8 and 13 as follows:-
Para:-8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College [(1990) 3 SCC 130 : (1990) 14 ATC 671] , this Court declared that subject to the law made by Parliament under sub-section (2) of Section 342, the tribes or tribal communities or parts of or groups within tribes or tribal communities specified by the President by a public notification shall be final for the purpose of the Constitution. They are the tribes in relation to that State or Union Territory and that any tribe or tribes or tribal communities or parts of or groups within such tribe or tribal communities, not specified therein in relation to that State, shall not be Scheduled Tribes for the purpose of the Constitution. The father of one Chandra Shekhar Rao who hailed from Tenali in Guntur District of Andhra Pradesh is a Settibalija by caste which is recognised as a backward class. His father obtained a certificate from the Tahsildar, Tenali that he belonged to Scheduled Tribe and had got an appointment in a public undertaking of Bombay. On the basis of social status certificate obtained by his father and entries in service record of his father, he applied for admission into medical college as Scheduled Tribe. When he was not admitted, he filed the writ petition in this Court under Article 32 seeking a declaration that Settibalija though was not declared to be Scheduled Tribe in Maharashtra it was a Scheduled Tribe for the purpose of the Constitution and that he was entitled to the admission into the medical college on the basis of his social status as a Scheduled Tribe. This Court did not uphold the contention. This Court held 124 that the declaration by the President by a public notification in relation to a State in consultation with the Governor of that State is conclusive and court cannot give such a declaration. The same view was reiterated by another Constitution Bench in Action Committee on issue of Caste Certificate to SCs and STs in the State of Maharashtra v. Union of India [(1994) 5 SCC 244] . Para;-13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
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 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 125 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 126 claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, 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 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.
12714. 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."
178. The guidelines also envisages in the case of Kumari Madhuri Patil (Supra) was given by two Hon'ble Judges of Hon'ble Supreme Court and this has been approved by the Larger Bench of three Hon'ble Judges of Supreme Court in the case of Dayaram versus Sudhir Batham and Others reported in (2012) 1 SCC 333 by which the Three Judges of Hon'ble Supreme Court has upheld the detailed guideline as prescribed in the judgment reported in the case of Kumari Madhuri Patil and Another versus Additional Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241 with minor modification by which it has been held that intra Court Appeal i.e. LPA will be maintainable against the Judgment passed by the Learned Single Judge of the said Supreme Court and all the remaining guidelines except the above one has been approved.
179. It has been held in the case of Dayaram versus Sudhir Batham and Others reported in (2012) 1 SCC 333 at Para nos. 22, 35, 36 and 44 which are as follows:
128Para:-22. Therefore, we are of the view, that Directions 1 to 15 issued in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine Scheduled Caste and Scheduled Tribe candidates secured the benefits of reservation and the bogus candidates were kept out. By issuing such directions, this Court was not taking over the functions of the legislature but merely filling up the vacuum till the legislature chose to make an appropriate law. Para:- 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 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] 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.
Para:-36. Having regard to the scheme for verification formulated by this Court in Madhuri Patil [(1994) 6 SCC 241 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] 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 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] 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 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] should not continue in the absence of any legislation governing the matter.
Para:- 44. In view of the above, we hold that the second sentence of Direction 13 of Madhuri Patil [(1994) 6 SCC 241 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] providing that where the writ petition is disposed of by a Single Judge, no further appeal would lie against the order of the Division Bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper and therefore, to that extent, is held to be not a good law. The second sentence of Direction 13 stands overruled. As a consequence, wherever the writ petitions against the orders of the Scrutiny Committee are heard by a Single Judge and the State law or Letters Patent permits an intra-court appeal, the same will be available.
180. The above judgment in the case of Dayaram versus Sudhir Batham and Others reported in (2012) 1 SCC 333 was not 129 under consideration in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 by the Hon'ble Supreme Court. However, direction given in the case of Kumari Madhuri Patil (Supra), which was approved in the case of Dayaram versus Sudhir Batham and Others reported in (2012) 1 SCC 333 has not been disturbed by the Hon'ble Supreme Court of India in the subsequent Judgment.
181. At this stage, it further transpires that learned counsel for the Respondent No. 1 has filed the judgment of passed in the case of Laddu Ram Versus Jaipal Singh passed in Election Petition No. 08 of 2019 vide judgment dated by the High Court of Madhya Pradesh at Gwalior that ordinary resident has to be considered liberally also if a candidate is living at one particular place for several years.
182. It has been held in the case of Laddu Ram Versus Jaipal Singh passed in Election Petition No. 08 of 2019 vide judgment dated 08.11.2023 by the High Court of Madhya Pradesh at Gwalior at para- 25, 26, 50, 51, 54, 61, 73 as follows:-
"Para-25:- That, the Respondent No. 1 was never accepted as a member of Scheduled caste. The community also did not consider him to be a member of the scheduled caste. Persons of 'NAT' community also did not accept him to be a 'NAT'. Respondent No. 1 also calls himself 'NAT' (Baazigar) and he does not fall in Entry No. 41 mentioned above.
Para-26:- That, the Respondent No. 1 has not disclosed that his family was living prior to the year 1950 at Punjab. Shri Sita Ram Raghuvanshi S/o Lalji Ram Raghuvanshi Ashok Nagar Road, Sadora and Rajendra Singh Raghuvanshi S/o Amar Singh R/o Durga Colony, Ashok Nagar and Respondent No. 1 and the people living in that constituency No. 32, all knew that the family came to Guna after 1950, the Respondent No. 1 was migrated in Ashok Nagar much after 1950.130
Para:- 50 "since the respondent no. 01 originally hails from Punjab, whether he could be treated as member of Schedule Caste in the State of Madhya Pradesh"?
Para-51:- As discussed above the issue of caste of the respondent no. 1 has finally been decided up to the Apex Court and as per the caste certificate, he belongs to 'NAT' Caste/Scheduled Caste. It is also crystal clear that in the light of case of Madhuri Patil (supra) the question of genuineness of the caste certificate can not be decided in this election petition. Therefore, on the basis of order of the Caste Scrutiny Committee, it is found to be proved that the respondent No. 1 could be treated as member of Schedule Caste in the state of Madhya Pradesh.
Para-54:- In the judgment of the Madhuri Patil (supra), the Apex court held that verification, scrutiny and approval of any caste certificate can be adjudicated by the quasi-judicial authority State Level High Power Caste Scrutiny Committee and had prescribed the procedure. Para 15 of the said judgment deals with scope, dimension, limit and extent of jurisdiction of the High Court under Article 226 of the Constitution while addressing a challenge made to report and recommendations of High Power Caste Scrutiny Committee. The same is also relevant for the purpose of this petition and is reproduced as under:--
"15. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed 131 before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts."
(Emphasis supplied) In view of the above law laid down in the case of Ku. Madhuri Patil (supra), it is crystal clear that validity of caste certificate cannot be adjudicated in the election petition (trial) and verification, scrutiny and approval of any caste certificate can be adjudicated by the quasi judicial authority i.e. State Level High Power Caste Scrutiny Committee.
Para-61:- As discussed above, at the time of filling the nomination form and at the time of declaration of result in favour of Respondent No.-1 the stay order dated 25.10.2013 was in existence by which the D.B. of this court had stayed impugned order dated 16.09.2013 passed by the High Level Caste Scrutiny Committee, and the order was stayed until the final decision of the writ petition No. 7047/2013. In the light of said stay order the Returning Officer had rejected the objection no. 2 raised by the petitioner vide order date 13.11.2018. Aggrieved by, the election petitioner has filed an instant election petition.
Para-67:- In view of the aforesaid discussions, the petition sans merits and therefore, instant Election Petition No. 08/2019 Ladduram Kori v. Jajpal Singh "Jajji" is hereby dismissed.
Para-73:- The aforesaid evidence of election petitioner and his witnesses clearly indicate that the preset petition is filed only when the election petitioner lost the election in the year 2018 objecting that the respondent No.-1 does not belong to Scheduled Caste whereas he (respondent No.-1) contested the earlier elections in the year 2013 and also election in the year 2021 under the same category but no objection was raised his not being the member of SC community. The conduct of the election petitioner along with the evidence adduced by him indicate that present petition is filed 132 only on account of political rivalry after defeat in election of 2018 against respondent No.-1 and for which he (respondent No.-1) has to suffer enormous amount of mental agony. The evidence of witnesses of election petitioner indicate that the allegations without pleadings and supporting documents were made."
183. It further transpires that in the case of J. Chitra versus District Collector and Chairman, State Level Vigilance Committee, Tamil Nadu and Others reported in (2021) 9 SCC 811 has held that ordinary residence has to be considered also at the time of deciding the case of a person, who has migrated from other State.
184. It has been held in the case of J. Chitra versus District Collector and Chairman, State Level Vigilance Committee, Tamil Nadu and Others reported in (2021) 9 SCC 811 at Para-8 is as follows:-
Para 8:- In Dayaram, this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceeding under Article 226 of the Constitution of India. It was further held by this Court that 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. It was observed that the entire scheme in Madhuri Patil will only continue till the legislature concerned makes and appropriate legislation in regard to verification of claims for caste status as SC/ST. it was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees.
185. It has been held in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and Others reported in (2013) 4 SCC 465 at Para nos. 2, 3, 6, 7, 44, 45 and 46 which are as follows:-
133Para;- 2. The facts and circumstances giving rise to this appeal are as follows : the competent authority in the present case, issued a caste certificate dated 19-10-1989, after following due procedure, in favour of the appellant stating that he does in fact, belong to Bhil Tadvi (Scheduled Tribes). On the basis of the said certificate, the appellant was appointed as Senior Clerk in Municipal Corporation of Aurangabad (hereinafter referred to as "the Corporation") on 6-2-1990, against the vacancy reserved for persons under the Scheduled Tribes category. The Corporation referred the caste certificate of the appellant for the purpose of verification, to the Caste Certificate Scrutiny Committee (hereinafter referred to as "the Scrutiny Committee"). The Vigilance Cell attached to the Scrutiny Committee, upon conducting vigilance enquiry vide order dated 29-12-1998, found that the appellant did in fact belong to Bhil Tadvi (Scheduled Tribes) and thus, the said certificate was verified. The Scrutiny Committee on the basis of the said report and also other documents filed by the appellant in support of his case, issued a validity certificate dated 23-5-2000 to the appellant belonging to Bhil Tadvi (Scheduled Tribes).
Para;- 3. After the lapse of a period of 9 years, Respondent 5 filed complaint dated 9-1-2009, through an advocate before the Scrutiny Committee, for the purpose of recalling the said validity certificate on the ground that the appellant had obtained employment by way of misrepresentation, and that he does not actually belong to the Scheduled Tribes category. In fact, the appellant professed the religion of Islam and therefore, could not be a Scheduled Tribe. The Scrutiny Committee rejected the said application vide order dated 13-3-2009, observing that it had no power to recall or to review a caste validity certificate, as there is no statutory provision that provides for the same.
Para:- 6. Shri A.V. Savant, learned Senior Counsel, appearing for the appellant has submitted that Respondent 5 does not belong to any reserved category, in fact, he belongs to the general category and hence, he has no right or locus standi to challenge the appellant's certificate. Thus, the High Court committed an error by directing the Scrutiny Committee to entertain the complaint filed by Respondent 5. It has further been submitted that, despite the directions given by this Court, the Scrutiny Committee failed to ensure compliance with the principles of natural justice, as the appellant was denied the opportunity to cross-examine witnesses, and no order was passed with respect to his application for recalling such witnesses for the purpose of cross-examination, which has no doubt, resulted in the grave miscarriage of justice.134
The affidavit filed by the Scrutiny Committee did not clarify, or make any specific statement with respect to whether or not the appellant was permitted to cross-examine witnesses. It further did not clarify whether the application dated 28-2-2012 filed by the appellant to recall witnesses for the purpose of cross-examination, has been disposed of. Moreover, the procedure adopted by the Scrutiny Committee is in contravention of the statutory requirements, as have been specified under the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes, (VimuktaJatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act 23 of 2001) (hereinafter referred to as "the 2001 Act") and the 2003 Rules which are framed under the 2001 Act and therefore, all proceedings hereby stand vitiated. The appellant placed reliance upon several documents which are all very old and, therefore, their authenticity should not have been doubted. The earlier report submitted by the Vigilance Cell dated 29-12-1998 clearly stated that the traits and characteristics of the appellant's family matched with those of Bhil Tadvi (Scheduled Tribes). The action of Respondent 5 is therefore completely mala fide and is intended, solely to harass the appellant, and the High Court committed grave error in not deciding the issue related to the locus standi of Respondent 5 in relation to him filing a complaint in the first place, as the said issue was specifically raised by the appellant.
Therefore, the present appeal deserves to be allowed. Para:-7. Per contra, Shri Shankar Chillarge, learned counsel appearing for the Scrutiny Committee, has made elaborate submissions, in support of the impugned judgment and subsequent proceedings. Mr Udaya Kumar Sagar and Ms Bina Madhavan, learned counsel appearing for Respondent 5, have also supported the impugned judgment [(2010) 3 Bom CR 717 : (2010) 1 Mah LJ 205] of the High Court and has further submitted that even though Respondent 5, does not belong to the Scheduled Tribes category, he most certainly could file a complaint against the appellant, at such a belated stage, as the appellant had obtained employment in 1989, by way of misrepresentation and fraud. Respondent 5, being a public-spirited person has espoused the cause of the real persons who have been deprived of their right to be considered for the said post occupied by the appellant. Respondent 5 has also filed affidavits of relevant persons before the Scrutiny Committee, to prove his allegations. Thus, the present appeal lacks merit and is liable to be dismissed.
135Para:-44. The affidavit of Mr Supdu Musa Tadvi referred to hereinabove cannot be relied upon, as the said deponent never appeared before the Scrutiny Committee. The conduct of Respondent 5, who has been pursuing the said matter from one court to another, is found to be reprehensible, and without any sense of responsibility whatsoever, as he could not submit any satisfactory response to the directions issued by this Court on 29- 10-2012 [AyaaubkhanNoorkhan Pathan v. State of Maharashtra, SLP (C) No. 29472 of 2009, order dated 29-10-2012 (SC), wherein it was directed:"Leave granted. List on 5-11-2012 for further hearing as part-heard. Meanwhile, Respondent 5 may file the affidavit as on what date he appeared before the Scrutiny Committee and what was the material produced by him and as to whether on that date the petitioner had a notice of his appearance before the Scrutiny Committee and whether the Committee has allowed the petitioner to cross-examine Respondent 5. Parties may also file written submissions, if so advised, in the meanwhile."] . In view of the above, we are highly doubtful as regards his bona fides. He has, therefore, disentitled himself from appearing either before this Court, or any other court, or committee, so far as the instant case is concerned.
Para:-45. The Scrutiny Committee in ordinary circumstances examined the matter and after investigation through its Vigilance Cell and considering all the documentary evidence on record and after being satisfied, granted the caste verification certificate in 2000. Section 114 Illustration (e) of the Evidence Act provided for the court to pronounce that the decision taken by the Scrutiny Committee has been done in regular course and the caste certificate has been issued after due verification. Very strong material/evidence is required to rebut the presumption. In fact, Respondent 5 has no legal peg for a justifiable claim to hang upon. Once Respondent 5, for the reasons best known to him, had challenged caste certificate under the garb of acting as a public- spirited person espousing the cause of legitimate persons who had been deprived of their right of being considered for appointment, Respondent 5 must have acted seriously and brought the material before the Scrutiny Committee to show that the earlier decision was improbable or factually incorrect. Such a view stands fortified by a catena of decisions rendered by this Court where it has been held 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. Mere statement made in the written statement/petition is not enough to rebut the presumption. The 136 onus of rebuttal lies upon the person who alleges that the act had not been regularly performed or the procedure required under the law had not been followed. [Vide Gopal Narain v. State of U.P. [AIR 1964 SC 370] , Narayan Govind Gavate v. State of Maharashtra [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 : AIR 1977 SC 183] , Karewwa v. Hussensab Khansaheb Wajantri [(2002) 10 SCC 315 : AIR 2002 SC 504] , Engg. Kamgar Union v. Electro Steels Castings Ltd. [(2004) 6 SCC 36 : 2004 SCC (L&S) 782] , Mohd. Shahabuddin v. State of Bihar [(2010) 4 SCC 653 : (2010) 2 SCC (Cri) 904] , Punjab SEB v. Ashwani Kumar [(2010) 7 SCC 569 : (2010) 3 SCC (Civ) 147] , M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907 : AIR 2011 SC 146] and R. Ramachandran Nair v. State of Kerala (Vigilance Deptt.) [(2011) 4 SCC 395 : (2011) 2 SCC (Cri) 251 :
(2011) 2 SCC (L&S) 691] .] Para:-46. In view of the above discussion and considering the seriousness of the allegations, as the Scrutiny Committee has already conducted an inquiry in relation to this matter, and the only grievance of the appellant is that there has been non-compliance with the principles of natural justice, and the fact that the applications filed by him were not decided upon, we direct that before the submission of any report by the Scrutiny Committee, his application for calling the witnesses for cross-examination must be disposed of, and the appellant must be given a fair opportunity to cross-examine the witnesses, who have been examined before the Committee. We further direct the Scrutiny Committee to pass appropriate orders in accordance with the law thereafter. In case the Scrutiny Committee has already taken a decision, the same being violative of the principles of natural justice, would stand vitiated.
186. It has been held in the case of Union of India and Others. Versus Dudh Nath Prasad reported in 2000 (2) SCC 20 at para- 12, 17, 18, 28 and 29 as follows:-
"Para-12:- Learned counsel for the appellant has contended that in view of the "Note" appended to para 5 of the "Instructions", the term "ordinarily reside" has to be given the same meaning as in Section 20 of the Representation of the People Act, 1950, and if that meaning is taken into consideration, the respondent cannot be said to belong to the State of West Bengal and consequently he could not 137 take advantage of the notification by which the "Nuniya"
community was declared as a Scheduled Caste community in that State. Section 20 of the Representation of the People Act, 1950, provides as under:
"20. Meaning of 'ordinarily resident'.--(1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. (1-A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(1-B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.
(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein. (3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.
(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in sub-section (3) or sub-section (4) made in the prescribed form and verified in the prescribed manner, that but for his having the service 138 qualification or but for his holding any such office as is referred to in sub-section (4) he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.
(6) The wife of any such person as is referred to in sub-section (3) or sub-section (4) shall, if she be ordinarily residing with such person, be deemed to be ordinarily resident in the constituency specified by such person under sub-section (5). (7) If in any case a question arises as to whether a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.
(8) In sub-sections (3) and (5) 'service qualification' means--
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act, 1950 (46 of 1950) have been made applicable whether with or without modifications; or
(c) being a member of an armed police force of a State, who is serving outside that State; or
(d) being a person who is employed under the Government of India in a post outside India."
Para-17:- The word "reside" came to be considered by this Court in Jagir Kaur v. Jaswant Singh [AIR 1963 SC 1521 : (1964) 2 SCR 73] in the context of the jurisdiction of the Magistrate under Section 488 of the Code of Criminal Procedure, 1898, for entertaining the petition of a wife for maintenance. After considering the meaning of the word "reside" in Oxford Dictionary, which we have already set out above, the Court observed as under:
"The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a 139 casual stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense."
(emphasis supplied) Para-18:- Considering the facts of this case in the light of the statutory provisions contained in Section 20 of the Representation of the People Act, 1950 as also the provisions contained in para 5 of the "Instructions", since the parents of the respondent were, admittedly, residing in District Howrah for more than 30 years, they would be treated to be "ordinarily residing" in that district and the mere fact that they held some property in a village in District Siwan in the State of Bihar would not affect their status. Para-28:- In view of the above, the concept of "domicile" as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, "domicile" and "residence" are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used. We are principally concerned with the expression "ordinarily reside" as used in the Note to para 5 of the "Instructions" and the expression "ordinarily resident" used in Section 20 of the Representation of the People Act, 1950. This Act and the Representation of the People Act, 1951, both deal with the election matters including delimitation of constituencies, right to contest the election as also right to vote in a constituency. Para-29:- We have already explained the meanings of the words "ordinarily resident" and have found that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property there also, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, 140 they shall be treated to be "ordinarily residing" in the State of West Bengal. For the State of West Bengal, the President, in exercise of his powers under Article 341(1) read with Article 366(24) had already declared the "Nuniya" caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a reserved vacancy, after being declared successful at the examination held by UPSC for the Indian Administrative and Allied Services [ [sic Indian Audit and Accounts Service (IA&AS)]] in 1966."
187. It has been held in the case of Prashant Vidyarthy (In 4050) and Suman Kr. Singh (In 3912) Versus State of Jharkhand and Ors. Reported in 2002 SCC Online Jhar 1011 at para -17 to 24, 33 to 35, 80, 81, 82, 83, 94, 97 and 98 as follows:-
"Para-17:- The difficulty, however, has arisen with respect to the definition of the 'local resident' and the procedure prescribed for identification of such 'local residents'.
Para-18:- The word 'reside' has been defined in Oxford Dictionary, to mean "dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place." This meaning, therefore, covers not only the place where the person has his permanent residence, but also the place where the person has resided for a "considerable time."
Para-19:- In Black's Law Dictionary, 5th Edn., the word 'reside' has been given the following meaning:
"Live, dwell, abide, sojourn, stay, remain, lodge. To settle oneself or a thing in a place, to be stationed to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place to be present as an element, to inhere as a quality to be vested as a right."
Para- 20:- In the same Dictionary, the word 'residence' has been defined as under:--
141"Personal presence at some place of abode with no present intention of definite and early removal and with pur-pose to remain for undetermined-period, not infrequently, but not necessarily combined with design to stay permanently. Bodily presence and the intention of remaining in a place, to sit down, to stay in a place, to settle; to remain and is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies some thing more than mere physical presence and something less than domicile."
Para- 21:- What Is of paramount importance, therefore, is that intention, to stay at a particular place for a considerably long time must/be there, as opposed to a casual visit or what is popularly called a 'flying visit' or as Dr. B.R. Ambedkar referred in the Constituent Assembly as the birds of passage without any roots, without any connection with that particular Province who just come, apply for a post and take the plums and walk away." In the case of Jagir Kaur v. Jaswant Singh, reported in AIR 1963 SC 1521, their Lordships of the Supreme Court gave the following meaning to the word 'reside':--
"The said meaning therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the-strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit" to, a particular place. In short, the meaning of the word would, in the ultimate analysis depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense.".
Para- 22:- Viewed thus, the definition of the "local residents" as occurring in the impugned Notifications appears to us to be unreasonable, arbitrary and not based on any intelligible differentia, also not linked with any fair nexus. To recall the statement of Mr. P.P. Rao, learned Sr. Counsel appearing for the respondent-State, 142 that a person who has been living or whose forefathers have been living in the State for three generations, each generation of 30 years should be eligible to be called a 'local resident', we feel that the State has gone too far in excluding genuine, bona fide, and well intentioned local residents who had established themselves in the State in the aftermath of the circumstances leading to the creation of the State as late as on 15th November, 2000 or who had been living here for a considerable period of time even before 15.11.2000. This definition also takes away from its ambit and scope such citizens of India who because of the unfortunate event of the Partition, of Indian Sub-continent in 1947 had to migrate from such Indian territories which because of the event of partition had to go to the then Dominion of Pakistan. As we made a brief reference in ah earlier part of this judgment, persons who in or before 1947 belonged to and lived in the territories now in Bangladesh or Pakistan and had to migrate and settle in such parts of India in 1947 itself which has now become the State of Jharkhand, the impugned two Notifications would exclude even such persons from the definition of 'local resident'. To say the least, this is wholly unexplainable, untenable and runs counter to the basic concept of citizenship as is enshrined in and attributable to Articles 5 and 6 of the Constitution of India. Whatever be the other considerations, relevant or otherwise, no State can be permitted to exclude from the definition of 'local resident' (for any purpose whatsoever) any such person who being a citizen of India or on becoming a citizen of India in accordance with the provisions of the Constitution or other relevant laws, has set up his residence in any part or territory of such State, notwithstanding the fact that the period for which the residence has been set up is shorter as compared to the natives, originals or the ab-originals. The State has to prescribe a more meaningful, more purposeful, more rationable definition of 'local resident'.
Para- 23:- When in the aforesaid backdrop, therefore, we examine the correctness of the two impugned Notifications, what we find is 143 that these Notifications in so far as the definition, of the "local resident" and, therefore, correspondingly the procedure prescribed for obtaining the Certificate etc. are concerned, suffer from the vice of arbitrariness, subjectivity and non-application of mind as also hostile discrimination against such persons who otherwise have been bona fide residents of Jharkhand State after its formation on 15th November, 2000 and even for a considerable length of time before 15th November, 2000 when the territories now constituting Jharkhand State were part of the erstwhile State of Bihar. By insisting upon defining "local residents" only such persons who have been living in Jharkhand area for three generations, each generation spanning about 25-30 years, the impugned Notifications have excluded such other persons who have been living in Jharkhand area for, say 20 years, 30 years, 40 years or even practically 55 years now (those who settled here consequent upon the event of partition in 1947). We have to clearly distinguish between natives, the originals or the ab-originals on the one hand, and the "ordinary" residents on the other. There may be classes of residents who may come in the categories of "natives", "originals" or "ab-originals", but to term them alone local as "local residents"
and in the process to exclude the so-called non-natives, the so-called non-originals or the so-called non-aboriginals who have been residing in Jharkhand for decades and decades would clearly be a patent violation of Article 14 of the. Constitution and would also run counter to the spirit of Articles 5 and 6 of the Constitution, depriving the natural citizens of this Country the status of "residents" in a particular State and the rights that flow from such status. After all the persons who have been residing in Jharkhand for few decades or even few years cannot be asked to move out of the State to other areas because there also they might face the same problem. The concept of "local residence", therefore, has to be made more broad based. Whereas casual visitor or the flying bird, of course, cannot become a "local resident"; depriving, in the process, however, even such a person who has settled his home in Jharkhand, 144 who has made Jharkhand his State, who has grown his roots here for years or decades, whose children were born here, who has taken up vocations here on permanent basis by holding an employment or by being self-employed or who has set up his business here cannot be excluded from the concept, status and definition of "local resident"
because excluding him, perhaps, might drive out millions and millions of people from the State, in the process rendering them homeless, what in other term is called "refugees". We, therefore, have no doubt whatsoever in our minds that the definition of "local residents" in the two impugned Notifications is too narrow, too pedantic, too constricted and so arbitrary that on the touch-stone of Article 14 of the Constitution of India, it must fall. Para- 24:- We have also to draw a clear distinction between regular bona fide residents in a place and what Dr. Ambedkar referred to as "mere birds of passage" or such persons "who are flying from one Province to another, from one State to another" but "without any roots, without any connection with that particular province, just to come, apply for posts and, so to say, take the plums and walk away." The former are those who live here in a regular and usual manner who have chosen this place as their abode, who give birth to, and rear their children here and who have developed a social, cultural and personal ties with the people and the place and whose relationship here over a period of time becomes so well entrenched and deep-rooted that this becomes their permanent home. In the former category also are those persons who have developed interest, everlasting and deep-rooted, at social and cultural levels as well as have inter-linked themselves inextricably with their commerce, business, vocations, profession or job- orientation. The former category, therefore, by no stretch of imagination can be excluded from the definition of 'local resident'. It is the latter category alone which may be termed as non-locals. Para-33:- The Committee noticed that the Jharkhand region is comprised of Chhotanagpur Plateau and the Santhal Paraganas covering an area of 1.90 lakhs square K.Ms, having population of 145 1.80 crores according to 1981 Census. The overall per. centage of Tribal was 30.26% ranging from 9% to 15% in Hazaribagh, Dhanbad, Deoghar and Giridih Districts; from 16% to 30% in Palamau and Godda District; from 30% to 50% in Ranchi, Singhbhum, Dumka and Sahebganj Districts; and 59% in Lohardaga, as well as 74% in Gumla-districts.
Para- 34:- In Chhotanagpur, the concept of 'Sadan' has been applied to cover all sections of non-tribals, except those who have come recently. The termology. 'Sadan' is used for 'Sadavasi';
"Anadivasi" and so on, to trace their status as very old inhabitants, as old as Tribals themselves. They are called "Mulvasis".
Para- 35:- The contempt of non-tribal 'Sadan' is not there in Santhal Parganas or in adjoining areas of Orissa, West Bengal and Madhya Pradesh, though they were in sympathy with the demand for autonomy. The Committee reported that the concept of the 'son of the soil' had not crystallized (as in May, 1990), though there were demands that those who came to Chhotanagpur, Santhal Parganas region after the last revisional settlement, should be declared as 'outsiders'. Some people demanded that the dividing line should be the year of independence.
Para- 80:- In the case of Union of India v. Dudhnath Prasad, reported in (2000) 2 SCC 20 : AIR 2000 SC 525 : [2001 (1) PUR (SC) 71], the Supreme Court held that the concept of domicile cannot be used for determining 'ordinary residence'. Para- 81:- The Court further observed that etymologically 'residence' and 'domicile' carry the same meaning, inasmuch as both refer to 'permanent home', but under the Private International Law 'domicile' carries a little difference cone and except the many facets. 'Domicile' and 'Residence' are relative concepts and have to be understood in the context of knowledge they are used, having regard to the nature and purpose of statute in which these words are used.
Para- 82:- The word 'residence' has been defined in the Oxford Dictionary as "dwelt permanently or for a considerable time to 146 have once settled or usually abode; to live in or at a particular place."
Para- 83:- In the aforesaid case, the Supreme Court held that the meaning of 'residence' therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a 'considerable time'.
Para-94:- The guidelines prescribed under Resolution No. 05/vividh-09/2001/Ka-4737 dated: 19th August, 2002 is mainly based on records of right or on the identification by five khatiyanis i.e. those whose or their ancestors, names are appearing in the records of right. They will give certificate to the effect that the concerned person is residing in the area for generation after generation (Pirhi dar Pirhi). 95. According to the petitioners the criteria for determination of 'local persons' on the basis of last survey records of right is itself, arbitrary and strikes at the very route (sic--root?) of Article 14 of the Constitution of India and is unreasonable having no nexus with the object sought to be achieved. Para- 97:- According to him, survey was made under Chhotanagpur Tenancy Act for the Chhotanagpur area/region and under Regulation-III of 1872 for the Santhal Parganas. In the Santhal Parganas region of Jharkhand, the records of rights have been prepared on the basis of report prepared by J.F. Gantzer popularly known as Gantzer's Report. The survey operation commenced in October, 1922 and concluded in February, 1935 excluding the following areas:
(i) "Sauria Paharia hills of the Rajmahal and Godda Sub division.
(ii) The "Ganges Diara Trackts" of Rajmahal.
(iii) The Municipal Town of Dumka, Sahebganj, Deoghar, and
(iv) The Jungle Trackts of Santhal. Pargana.
Para-98:- Thus, if the definition of 'local persons' is based on last survey records of rights, the Santhals of Raj Mahal, Godda, Dumka, Sahebganj, Deoghar and Madhupur never be able, to secure certificates of 'local persons', though they are the original inhabitants of Jharkhand."
147188. The Judgment reported in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Versus Union of India and Another reported in (1994) 5 SCC 244 and in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 relates to definition of temporary residence. In the above cases, all the applicants were temporarily residence and were claiming the Caste Certificate for securing Educational studies on account of posting of their father in the State of Mumbai.
Therefore, the Constitution Bench of Hon'ble Supreme Court had declined the relief by observing that a person, who has migrated from one State to another State temporarily for the purpose of employment and study, cannot be given benefit of reservation of latter State and they will be entitled to reservation in their parent State. However, in the present case, the Respondent No. 1, Smmari Lal has been born and brought up to Ranchi in the year 1962, he has asserted and proved that he was born on 23.06.1962 at Ranchi and he had completed his educational status from Ranchi by passing Matriculation examination in the year 1979, BA in 1983 and MA in 1985 and has produced all the Original Documents of his Educational Qualification as well as Certificate of NCC and also receipt of Ranchi Employment Exchange issued in the year 1985, which clearly reveal that the Respondent No. 1, Smmari Lal is also a permanent resident of Ranchi, (which was part of erstwhile State of Bihar now Jharkhand) and even their ancestors were residing in Ranchi.
189. It has been held in the case of Anil Vasudev Salgaonkar Versus Naresh K. Shigaonkar reported in 2009 (9) SCC 310 at para-57, 58, 59 and 61 as follows:-
148"Para-57:- It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies. Para-58:- There is no definition of "material facts" either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case [(2005) 13 SCC 511] tried to give various meanings of "material facts". The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27) "48. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus (3rd Edn.), p.
349.] The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."149
Para-59:- In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. Para-61:- The legal position has been crystallised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act."
190. It has been held in the case of Smt. Saroja Devi Gupta Vs. Smt. Aruna Jaiswal reported in 2018 SCC OnLine Chh 755 at para-20 to 26 as follows:-
"Para-20:- Similarly in the matter of Jaipal Singh v. Sumitra Mahajan (Smt.)3, again their Lordships of the Supreme Court have emphasized the importance of specific pleadings and held as under:--
"7. Section 83 deals with contents of petition. It states that an election petition shall contain a concise statement of material facts, on which the petitioner relies and shall state full particulars of any corrupt practices which petitioner alleges and which shall be signed by him and verified in the manner laid down in the Code of Civil Procedure. In the case of Sopan Sukhdeo Sable v. Assistant Charity Commissioner, it has been held that the Order VI Rule 2(1) of CPC deals with basic rule of pleadings and declares that the pleading has to state material facts and not the evidence; that there is a distinction between material facts and not the evidence; that there is a distinction between' material facts' and 'particulars' and the words 150 'material facts' show that the facts necessary to formulate a complete cause of action must be stated. Omission of single material fact leads to an incomplete cause of action and consequently, the plaint becomes bad."
Para-21:- In the matter of Anil Vasudev Salgaonkar v. Naresh Kushali Shiqaonkar4, their Lordships of the Supreme Court while considering the words "material facts and material particulars" held as under:--
"57. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies."
60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground.
61. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to plead even a single material facts amounts to disobedience of the mandate of Section 83(1)(a) of the Act."
Para-22:- Recently, the Supreme Court in the matter of Rajendra Kumar Meshram v. Vanshmani Prasad Verma5 has held as under:--
"16. The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of 151 Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on the grounds mentioned in Section 100(1)(A) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a).
17. In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent- election petitioner has made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not to consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100(1)(a) and 100(1)(d) of the 1951 Act."
Para-23:- The Supreme Court in the matter of Sadashiv H. Patil v. Vithal D. Teke6 had clearly held that election law has to be construed strictly and observed as under:--
"14. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified.152
Looking at the penal consequences flowing from an elected councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly..A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act."
Para-24:- Reverting to the facts of the present'case in light of the principle of laid down by the Supreme Court in the afore-cited cases and considering the para materia provisions of the Representation of the People Act, 1951, it is quite vivid that the election petitioner herein did not expressly plead that respondent No. 1 was the OBC (Female) in the State of Madhya Pradesh and she was not the OBC (Female) candidate of the State of Chhattisgarh, therefore, she was not qualified, to be chosen as President of Nagfer Panchayat, Pendra; the petitioner also failed to establish by improper acceptance of the nomination paper of respondent No. 1, result of the election, id so far as it concerns to the returned candidate, has been materially affected; the petitioner only pleaded that caste certificate (Ex. P-7) issued to respondent No. 1 was on the basis of caste of her husband whereas it ought to have been on the basis of her father, and the caste certificate ought to have been issued after making enquiry from the State of Madhya Pradesh. As per law laid down by the Supreme Court in the afore-cited judgments read with Section 20(5) of the Act of 1961; it ought to have been specifically pleaded by the election petitioner that respondent No. 1 did not belong to OBC (Female) candidate of the State of Chhattisgarh and she is only OBC (Female) of State of Madhya Pradesh, therefore, the was not qualified to be chosen as President in the State of Chhattisgarh. Even the petitioner did raise an objection before the; Returning Officer but again she has simply pleaded that caste certificate has been issued on the basis of caste of her husband, which, is contrary to law, She never pleaded either before the 153 returning officer or before the Election Tribunal that respondent No. 1 herein was OBC (female) candidate of the State at Madhya Pradesh and she is not the OBC (female) candidate of State of Chhattisgarh and, therefore, she was not qualified to be chosen as President of Nagar Panchayat, Pendra.
Para-25:- As such, the election petitioner has failed to plead and establish the grounds which she has urged before this Court that respondent No. 1 was not the OBC (Female) candidate belonging to the State of Chhattisgarh, therefore, she was not entitled to contest the election for the post of President Nagar Panchayat, Pendra. She has only pleaded that the caste certificate issued by the competent authority/State of Chhattisgarh was not in accordance with law, therefore, she was not qualified to contest the election of the president, Nagar Panchayat, Pendra as held by their Lordships of the Supreme Court in the matter of Sadashiv H. Patif (supra) that election law has to be pcinstnied??? strictly and strict pleading and the clinching evidence is required toflstablish the said ground. Para-26:- Further, the judgment cited by learned counsel appearing for the petitioner in the case of Bir Singh1 (supra) is not applicable in the instant case, as in the instant case there is complete lack of pleading and grounds which she has urged before this Court and the said ground was even not taken specifically either before the Returning Officer or before the Election Tribunal."
191. Although a series of Judgment have been filed on behalf of the respondent no. 1, but the same are not being discussed as it is not relevant to deicide the present case and it will also amount to wastage of time. In Above Judgment passed by Hon'ble Madhya Pradesh High Court at Gwalior Bench, it has been held that the Caste Certificate cannot be decided the subject matter of Election Petition.
192. In view of the discussion made above, this Court is of the opinion that as because the ancestors (i.e. grand-father and father) of the Respondent No. 1, Smmari Lal were brought from Rajasthan to 154 Ranchi (erstwhile State of Bihar now Jharkhand) by British Administration, the provisions of presidential order published in Gazette of India extraordinary, the Constitution (Scheduled Castes) Order, 1950 will not be applicable in the case of the Respondent No. 1 as the above the Constitution (Scheduled Castes) Order, 1950 marked as Ext.-18/09 that it will be applicable on the persons staying temporary in the concerned through migrated State (S) after 10.08.1950 as well as 28.10.1956 respectively.
193. Even the Hon'ble Supreme Court in the case of Kisan Shankar Kathore Versus Arun Dattatray Sawant and Ors. reported in (2014) 14 SCC 162 and in the case of Bir Singh Versus Delhi Jal Board and Others reported in (2018) 10 SCC 312 has held that the Presidential Order i.e. the Constitution (Scheduled Castes) Order, 1950 will be relevant from the date of issuance of Gazette Notification.
194. It further transpires that the petitioner has failed to examine any independent witness(es) except the Election Agent (i.e. P.W.-2, Gulzar Ahmad) to prove that the father of the Respondent No. 1, Smmari Lal had come to Ranchi from erstwhile State of Bihar for the purpose of employment and job in RMCH, Ranchi.
This Court finds that the Election Agent (P.W.-2, Gulzar Ahmad) is an interested persons as he was employed by the petitioner for performing his duties and as such, the Election Agent i.e. P.W.-2, Gulzar Ahmad is under the influence of the Election-Petitioner.
195. On the other hand the Respondent No. 1, Smmari Lal has examined the number of witnesses i.e. D.W.-1 Dilip Ram, D.W.-2 Jugal Ram, D.W.-3 Gulabiya Devi, D.W.-4 Sajna Ram, D.W.-5 Binod Ram, S/o Bannu Ram, D.W.-6 Krishna Ram, D.W.-7 Tikam Chand Pawar, D.W.-8 Basant Ram, D.W.-9 Anand Kumar Balmiki, D.W.-10 Binod Ram, S/o Baiju Ram, D.W.-11 Parbhati Ram, 155 D.W.-12 Bhagi Ram to prove that his ancestors (i.e. his grand-father and father) had arrived to Ranchi (erstwhile State of Bihar) since before the independence i.e. before 15th August, 1947 from State of Rajasthan by the British People for doing cleaning work (it is hazardous work for cleaning) in Ranchi and his ancestors were residing since before the independence in Ranchi, which was erstwhile part of State of Bihar (now Jharkhand). Therefore, grand- father, Janki Ram and father of the Respondent No. 1, Mishri Lal Balmiki were permanent resident of Ranchi, [which was part of erstwhile State of Bihar (now Jharkhand)] before issuance of the Constitution (Scheduled Castes) Order, 1950 in the above order marked as Ext.-18/09.
196. It is evident that the Caste of the Respondent No. 1 at Serial No. 11 in the erstwhile State of Bihar (now Jharkhand). Even subsequently the Constitution Order was modified by the another Gazette Notification dated 28.10.1956 with regard to the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, Group/Clause of persons mentioned in Scheduled Caste remains the same and serial no. 11 shows the caste Mehtar. Hence, this Court is of the view that the ancestors of the Respondent No. 1, Smmari Lal were the permanent residence of Bihar as there was no chance of their going back in those days, who were brought from Rajasthan to Ranchi by the British People since before the Independence.
197. The petitioner has further failed to produce any witness to show that the ancestors of the Respondent No. 1, Smmari Lal were the permanent residence of Rajasthan and no documentary evidence for example Caste Register for any documentary evidence was produced before this Court. The petitioner has relied upon the report of the Circle Officer by submitting that there is no evidence to show that the ancestors of the Respondent No. 1, Smmari Lal had arrived 156 from Rajasthan to Ranchi. However, this Court on perusal of Ext.-19 and Ext.-19/1 and Ext. 19/2 respectively finds that Circle Inspector during making local inspection had observed and pointed out that Balmiki people during the course of inspection had informed him that the ancestors of the Respondent No. 1, Smmari Lal were brought from Rajasthan to Ranchi, but this was completely ignored by the Circle Officer by sending the letter dated 09.12.2020 to the Deputy Collector (In-charge).
198. D.W.-1, Dilip Ram, D.W.-2, Jugal Ram, D.W.-3, Gulabiya Devi, D.W.-4, Sajna Ram, D.W.-5, Binod Ram, S/o Bannu Ram, D.W.-6, Krishna Ram, D.W.-7, Tikam Chand Pawar, D.W.-8, Basant Ram, D.W.-9, Anand Kumar Balmiki, D.W.-10, Binod Ram, S/o Baiju Ram, D.W.-11, Parbhati Ram, D.W.-12 , Bhagi Ram have not been confronted on behalf of the petitioner on the point as to when the grand-father, Janki Ram or father (Mishri Lal Balmiki) of the Respondent No. 1, Smmari Lal had arrived at Ranchi.
199. The order passed by the Caste Scrutiny Committee dated 01.04.2022 is Annexure-2 of the Ext.-7 whereby the Caste Certificate of the Respodent No. 1, Smmari Lal has been cancelled. Although the above order dated 01.04.2022 passed by the Caste Scrutiny Committee has been quashed by the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Rajesh Shankar) of this Court and the matter is sub judice before the members of the Caste Scrutiny Committee. Hence, this Court refrains from giving any observation. However, it is evident that even while passing the order dated 01.04.2022 by the Caste Scrutiny Committee, reasonable opportunity was not given to the Respondent No. 1, Smmari Lal to produce his witness and documents.
From perusal of order dated 01.04.2022 (i.e. Annexure-2 of Ext.-7) and Ext.-5 containing the Annexures- SA/1, SA/2, SA/3, it 157 appears that the Respondent No. 1, Smmari Lal had applied before Ranchi Municipal Corporation, Ranchi on 01.04.2021 for residential proof and also vide Letter No. 1038 dated 08.04.2021 for service book of his father through RTI from RIMS, Ranchi, but the same have not been supplied to the Respondent No. 1, Smmari Lal on the ground of its non-availability, which is surprising. However, on the other hand, his case has been rejected by the members of the Caste Scrutiny Committee for not producing the evidence.
Therefore, it is evident that the Respondent No. 1, Smmari Lal has not been given proper opportunity even before the Caste Scrutiny Committee to produce its supportive evidence.
200. It also appears that the Respondent No. 1, Smmari Lal has filed service book of Gulabia Devi, who has been examined as DW-3 before this Court, but even the Respondent No. 1, Smmari Lal was not permitted to examine the said Gulabia Devi and prove his service book maintained by the Ranchi Municipal Commissionery for the period 1951 to 1968 and this depicts that the proper opportunity was not given to the Respondent No. 1, Smmari Lal to prove his case.
201. Had, Respondent No. 1, Smmari Lal given opportunity to produce service book of his father, who was working in RIMS, Ranchi at the relevant time through the means of RTI, he would have been rebutted the case of the petitioner by showing that his father was resident of Ranchi and was a member of Scheduled Caste, but Respondent No. 1, Smmari Lal was deprived of such opportunity by required documents by officials of the State Governments.
202. Even during course of hearing before this Court, neither the said Circle Inspector nor the said Circle Officer, Bargain nor the Deputy Collector (In-charge), Ranchi were examined as witness on behalf of the petitioner to prove the said report of Circle Inspector 158 and Circle Officer, which have been marked as Ext.-19 and Ext.-19/1 respectively.
203. The petitioner has failed to show that father of the Respondent No. 1, Smmari Lal had ever gone to the State of Rajasthan for taking the benefit of Reservation for their personal gain. It is onus upon the petitioner to proof that the Respondent No. 1, Smmari Lal is permanent resident of Rajasthan and as such, burden of proof lies upon the petitioner to prove the above fact. However, the petitioner, during his evidence, failed to produce any witness or documents to show that the Respondent No. 1, Smmari Lal had gone to Rajasthan and had taken benefit of reservation in Rajasthan for employment himself.
204. Thus, the petitioner has completely failed to prove his case on this aspect whereas on the other hand, the Respondent No. 1, Smmari Lal has produced D.W.-1, Dilip Ram, D.W.-2, Jugal Ram, D.W.-3, Gulabiya Devi, D.W.-4, Sajna Ram, D.W.-5, Binod Ram, S/o Bannu Ram, D.W.-6, Krishna Ram, D.W.-7, Tikam Chand Pawar, D.W.-8, Basant Ram, D.W.-9, Anand Kumar Balmiki, D.W.- 10, Binod Ram, S/o Baiju Ram, D.W.-11, Parbhati Ram, D.W.-12 , Bhagi Ram, D.W.-13, Brij Kishore Viyay, D.W.-17, Kund Chandra Mehta in support of his contention and which could not be rebutted on behalf of the petitioner except mere asking them for not filing the documentary evidence for residential proof of ancestors of the Respondent No. 1, Smmari Lal.
205. Thus, Issue no. VII, VIII and XI are decided in favour of Respondent no. 1 Smmari Lal.
Issue No. VI, X and XIII:-
206. Learned counsel for the petitioner has submitted that Respondent no. 2 Smmari Lal has illegally allowed the Respondent no. 1 to contest from Kanke (SC) Constitutency by 159 accepting his nomination paper. It is submitted that Respondent No. 1 Smmari Lal has not mentioned his caste in the nomination paper filed by him whereas, the petitioner has filed his Caste Certificate and described his caste as 'Dhobi' in his nomination paper. It is further asserted that even the local inspection, it was found that there was no evidence of ancestors of Respondent no. 1 Smmari Lal coming to Ranchi since before independence and hence, Respondent No. 2 has illegally accepted the nomination paper of the petitioner and allowed the respondent to contest Kanke-65 Kanke Constituency which is mainly for the member of Scheduled Caste.
It is further submitted that the Respondent no. 2 has illegally accepted the nomination paper of the Respondent no. 1 Smmari Lal in contravention of Section 33 and Section 36 of the R.P. Act.
On the other hand, learned counsel for the respondent has asserted that he has also filed the Caste Certificate with the nomination paper at the time of filing his nomination. It is submitted that the provisions of Section 33 and 36 of R.P Act has also been complied with.
207. In this regard, it will be relevant to refer firstly to the evidence of DW-15 (A) Manoj Ranjan who has stated during his evidence that he accepted the nomination paper of Respondent No. 1 Smmari Lal in the light of Handbook of the Returning Officer. He has asserted that he had examined the Caste Certificate of Respondent No. 1 Smmari Lal as per Handbook of the Returning Officer and had found it to be valid. He had also forwarded objection raised by the petitioner Suresh Kumar Baitha to Smmari Lal i.e. Respondent No. 1 and asked him to submit his reply at 3 PM on the same date i.e. on 25.11.2019 and after 160 receiving reply and hearing both the parties, in presence of their counsel and also after verifying the Caste Certificate from Issuing Authority, he overruled the objection and had accepted the nomination paper of Respondent no. 1 Smmari Lal During cross-examination, he admitted that he had sought verification of Caste Certificate from Circle Office, Sadar, Ranchi who was the Issuing Authority and Peon had taken the Caste Certificate for verification and he had received the verification report before 3 PM.
208. Thus, evidence of DW-15 (A) mainly lies on the fact that he had accepted the nomination paper in the light of 'Handbook' given to the Returning Officer. It appears that the Handbook of Returning Officer have been issued by the Election Commissioner of India and the same has not been marked as Exhibit on behalf of the petitioner or also on behalf of the Respondent no. 1 Smmari Lal.
209. It has been held in the case of Rajendra Kr.
Meshram Versus Vanshmani Prasad Verma and Another reported in 2016 (10) SCC 715 at para-16 to 19 as follows:-
"Para-16:- The trial of an election petition, as per Section 87 of the 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of Para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant returned candidate is a voter of No. 80 Singrauli Constituency but he had omitted to 161 enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Sections 33(4) and 33(5) of the 1951 Act. Para-17:- Under Section 33(4) the Returning Officer must satisfy himself that a candidate's name and electoral roll number is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the Returning Officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant returned candidate was a voter of another constituency i.e. No. 80 Singrauli Constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.
Para-18:- In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on the abovesaid basis, it is not necessary to go into the question raised on behalf of the respondent election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Sections 100(1)(a) and 100(1)(d) of the 1951 Act.162
Para-19:- Though a number of precedents have been cited on behalf of the respondent election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the 1951 Act which is not in issue before us in the present appeal."
210. It has been held in the case of Ganu Ram versus Rikhi Ram Kaundal and Others reported in (1984) 3 SCC 649 at Para nos. 6, 7 and 8 which are as follows:-
Para 6:- It is manifest that the legislative purpose underlying sub- section (2) of Section 33 of the Act is that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belongs and the area in relation to which that caste or tribe is a Scheduled Caste or Scheduled Tribe of the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magistrate as an annexure to his nomination paper the appellant had clearly made it known that he was filing the nomination as a candidate belonging to the "Lohar" caste, which is admittedly a Scheduled Caste in the entirely of the area of the State of Himachal Pradesh. It is also significant that no objection whatever was raised against the nomination filed by the appellant at the time of scrutiny. The Returning Officer had published a notice of nominations under Section 35 of the Act and in the said notice it was expressly stated that the appellant had filed hi nomination as a candidate belonging to the Scheduled Caste namely 'Lohar'. Having regard to all the facts and circumstances of the case and the legal position as explained above, we consider that the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning Officer was improper.
Para 7:- A faint attempt was made before us by the learned counsel appearing on behalf of the first respondent to make out that the finding entered by the High Court that the appellant does, in fact, belong to the Scheduled Caste "Lohar" is erroneous and unsupported by the evidence but we see no merit at all in the said contention. The said finding recorded by the High Court is hereby confirmed.163
Para 8:- The conclusion that emerges from the foregoing discussion is that the High Court was not justified in setting aside the election of the appellant on the ground that the nomination paper filed by the appellant was invalid. It follows that this appeal has to be allowed and the order of the High Court invalidating the election of the appellant has to be set aside.
211. It has been held in the case of Santosh Yadav Versus Narendra Singh reported in 2002 (1) SCC 160 at para- 15 and 16 as follows:-
"Para-15:- A word about the pleadings. Section 83 of the Act mandates an election petition to contain a concise statement of the material facts on which the petitioner relies. The rules of pleadings enable a civil dispute being adjudicated upon by a fair trial and reaching a just decision. A civil trial, more so when it relates to an election dispute, where the fate not only of the parties arrayed before the court but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material facts wherefrom inferences vital to the success of the election petitioner and enabling the court to grant the relief prayed for by the petitioner can be drawn subject to the averments being substantiated by cogent evidence. Concise and specific pleadings setting out all relevant material facts, and then cogent affirmative evidence being adduced in support of such averments, are indispensable to the success of an election petition. An election petition, if allowed, results in avoiding an election and nullifying the success of a returned candidate. It is a serious remedy. Therefore, an election petition seeking relief on a ground under Section 100(1)(d) of the Act, must precisely allege all material facts on which the petitioner relies in support of the plea that the result of the election has been materially affected. Unfortunately in the present case all such material facts and circumstances are conspicuous by their absence.164
Para-16:_ The law as regards the result of election having been materially affected in case of improper acceptance of nomination may be summed up as under:
1. A case of result of the election, insofar as it concerns the returned candidate, having been materially affected by the improper acceptance of any nomination, within the meaning of Section 100(1)(d)(i) of the Representation of the People Act, 1951 has to be made out by raising specific pleadings setting out all material facts and adducing cogent evidence so as to enable a clear finding being arrived at on the distribution of wasted votes, that is, the manner in which the votes would have been distributed if the candidate, whose nomination paper was improperly accepted, was not in the fray.
2. Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner.
3. The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and cogent evidence. If the petitioner is unable to adduce such evidence the burden is not discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but the court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof.
4. The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility.
There is no room for any guesswork, speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice merely to say that all or the majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far 165 that proof should go or what it should contain is not provided by the legislature.
5. The casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. It is not permissible to accept the "ipse dixit" of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground."
212. However, Dr. Ashok Kumar Singh the learned counsel appearing on behalf of the Respondent no. 2 had filed the copy of original Handbook issued by the Election Commissioner of India for the election scheduled to be held in the year 2019.
213. It will be relevant to refer Clause 5.11.1, Clause 6.10 of hand book of election paper which reads as follows:-
Clause- 5.11.1 As each nomination paper is filed, Returning Officer or the Specified Returning Officer, as the case may be, is required by law to examine it then and there from the technical standpoint as required under Section 33(4) of the Act of 1951. But Returning Officer is not required to hold any formal scrutiny of any nomination papers at this stage. This preliminary examination is restricted to entries relating to the name and electoral roll details relation to the candidate and the proposer(s) as given in the nomination paper (s) and those as entered in the electoral roll. The following aspects may be examined at this stage:
(i) if the candidate is an elector in Returning Officer's constituency, he should compare the entries in the nomination paper with the entries in the electoral roll relating to the serial number and name of the candidate and his proposer/s.
(ii) If he comes from another constituency, Returning Office or the Specified Assistant Returning Officer should compare the entries in the nomination paper with the entry relating to the 166 candidate's name in the electoral roll of the constituency or the relevant part thereof or certified copy of such entry filed by him.
The candidate is required by law to produce before Returning Officer or the Specified Assistant Returning Officer such electoral roll or the relevant part thereof or a certified copy of relevant entries thereof [Section 33{5}].
(iii) Make sure that the electoral roll with which Returning Officer or the Specified Assistant Returning Officer makes such comparison is the one currently in force for the constituency in either case.
(iv) Check whether the affidavit in revised Form 26 is duly filled up and attached along with the nomination paper. If not attached, Returning Officer or the Specified Assistant Returning Officer should bring it to his notice this requirement through a notice by way of the check list.
(v) Check whether all columns of the affidavit are filled up, as incomplete affidavits are liable to be rejected leading to rejection of nomination paper. In case any of the columns are left blank by the candidate, Returning Officer or the Specified Assistant Returning Officer will mention it in the checklist and hand it over to the candidate against proper receipt. In such cases the candidate will have opportunity to file a fresh candidate complete in all respects by the time fixed for commencement of scrutiny. Clause- 6.10 Returning Officer must reject a nomination paper, if
(i) the candidate is clearly not qualified in law to be a member of the Legislature concerned, or
(ii) the candidate is clearly disqualified in law to be such member, or [N.B. As regards the persons who have been disqualified under Section 8A and 11A(b) (for corrupt practices) and 10-A (for failure to lodge account of election expenses) for the said Act, 1951, there would be a list of such disqualified persons. Returning Officer should obtain the list from CEO]. Complaints 167 regarding other disqualifications, Returning Officer has to decide based on summary inquiry.
(iii) Requirements of Section 33 of R.P. Act, 1951 are not fulfilled.
(iv) The prescribed affidavit has not been filed at all by the candidate, or [N.B. if the prescribed affidavit has been filed but are alleged or found to be defective or containing false information, the nomination should NOT be rejected on the ground.]
(v) The nomination paper has not been signed by the candidate and/or by the required number of his propers(s), or
(vi) The proper deposit has nto been made in accordance with Section 34, or
(vii) The oath or affirmation is not made by the candidate as required under the Constitution of India, Government of Union Territories Act, 1963 or the Government of National Capital Territory of Delhi Act, 1991, as the case may be, or
(viii) The candidate does not belong to the Scheduled Caste or the Scheduled Tribe and he has filed nomination paper to contest a seat reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes, or
(ix) Where the candidate is not an elector of the constituency for which he has filed nomination paper and he has neither filed a copy of the electoral roll of the constituency in which he is registered as an elector or of the relevant part thereof or a certified copy of the relevant entries relating to his name in such electoral roll along with the nomination paper nor produced the same at the time of scrutiny as required under Section 33{5} of the said Act.
(x) Columns were left blank in the affidavit and fresh affidavit not filed in spite of notice.
Note on item (viii): In order to prevent non-SC/ST persons contesting election from reserved constituencies, the Returning Officers at the time of scrutiny of nominations should satisfy 168 themselves that the candidates constesting from reserved constituencies belong to SC or ST, as the case may be. Wherever in doubt, the Returning Officer must insist on production of SC/ST certificate issued by competenet authorities. Where, however, the certificate produced by the candidate is also challenged, the Returning Officer need not go into that question, except where it is alleged that the certificate produced is forged or is not issued by competent authority. In the case of any allegation/suspicion about the genuineness of the certificate, the Returning Officer should get the position cross-checked with the authority which purportedly issued the SC/ST certificate in question, before deciding the validity of the nomination paper of the candidate concerned. If on such cross-checking/verification, the Returning Officer is satisfied that the certificate in question is not genuine, he should not only reject the nomination of the candidate concerned but should also initiate criminal proceeding against the candidate for adducing forged documentary evidence before him. (Instruction No. 4/3/2008/JS-II(vol.III) dated 2.7.2008.
214. Thus, from perusal of Sub-Clause-viii of Clause 6.10 of hand book to Returning Officer issued by the Election Commissioner of India, it would appear that the Returning Officer has to see only the Caste Certificate filed before him by the candidate of any particular party or any person independently contesting elections and in case of benefit of doubt, the advantage will go to the candidate who has produced the Caste Certificate and benefit of doubt will be given to the candidates to the Caste Certificate in case of any controversy/dispute.
215. It further reveals that the order sheet of the nomination paper of the candidate has not been maintained by the Returning Officer, but on this aspect has to be seen by the State Election Commission as well as the Election Commission of India as the 169 Returning Officer (X) in light of the guideline of Election Commission of India. Hence, the State Election Commission should formulate guidelines for maintain the order sheet by the Returning Officer at the time of by accepting or rejecting the nomination paper of any contesting candidates either independently or through any political party. This Court is not issuing any direction to the Caste Scrutiny Committee in view of the order passed by the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Rajesh Shankar) of this Court in W. P. (C) No. 1583 of 2022 vide order dated 31.01.2023 as it will amount to overlapping of the order passed by the Co-ordinate Bench of this Court (Hon'ble Mr. Justice Rajesh Shankar) of this Court and as such, this Court refrains from passing any order.
216. Ext.-12 is circular dated 18.10.2005, which reveals that the same has been issued by then Principal Secretary, Government of Jharkhand by observing that the liberal approach should be adopted in issuing Caste Certificate to the needy person by placing reliance upon the letter dated 18.11.1982 and 20.02.1985 respectively. Therefore, the Caste Certificate of the Respondent No. 1, Smmari Lal was based on the basis of circular dated 18.10.2005 issued by the Competent Authority of the State Government. Moreover, there was no direction or suggestion to file the Original Caste Certificate to any candidate. No doubt the Election Petitioner had filed his Original Caste Certificate whereas the Respondent No. 1, Smmari Lal has filed his photocopy of the Caste Certificate, but that was not one of the guidelines of the Election Commission of the India that Original Caste Certificate was required to be submitted at the time of filing of nomination paper. Thus, even if there was some irregularity in filing the Caste Certificate of the Respondent No. 1, Smmari Lal, but the same was curable in nature and it cannot be taken as omission on the 170 part of the Respondent No. 1, Smmari Lal or on the part of the Returning Officer.
217. Apart from this, the genuineness and veracity of Caste Certificate of the Respondent No. 1, Smmari Lal cannot be examined in this Election Petition. This Court has relied upon the judgment passed by the Hon'ble Madhya Pradesh High, Gwalior Bench, Madras High Court and Chhatishgargh High Court to the effect that genuineness of Caste Certificate cannot be decided in the Election Petition. The genuineness of the Caste Certificate has to be decided in light of the Judgement passed in the case of Kumari Madhuri Patil (supra) in which an elaborate guidelines have been provided, which are very exhaustive in nature. It has been pointed out that both the parties have to be examined their respective witnesses and also to prove their documents within a certain time frame and the Caste Scrutiny Committee has been authorized to take proper decision in accordance with law within a period of three month and they have been prescribed Authority in view of the Judgment of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil and Another versus Additional Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241 and which have been approved by the Hon'ble Supreme Court in the case of Dayaram versus Sudhir Batham and Others reported in (2012) 1 SCC 333 and it has been observed that so long as no guideline has been provided by the Legislature, the guideline shows in the case of Kumari Madhuri Patil (Supra) will continue.
The guidelines and instruction prevalent at the time of in issuing Caste Certificate dated 31.10.2009, but that cannot be decided at this stage in this Election Petition.
218. The petitioner is further estopped from raising the contention of Caste Certificate i.e. Scheduled Caste of the 171 Respondent No. 1 on the ground that the Respondent No. 1, Smmari Lal had contested the several Elections right from year 1985 till the year 2009 and he had earlier contested from various political parties i.e. Janta Dal, RJD, JMM and also as independent candidate, but at no point of time, such objection was raised by the petitioner earlier and even the petitioner had contested election from the same 65, Kanke (Scheduled Caste), Assembly Constituency, Ranchi, but no objection was raised and for the first time, the petitioner has raised this objection alongwith Congress Party to which he is a candidate and as such, the same is frivolous and as such the petitioner is estopped from raising the Caste Certificate of the Respondent No. 1, Smmari Lal.
219. It has been held in the case of Small Industries Development Bank of India Versus SIBCO Investment Private Ltd. reported in (2022) 3 SCC 56 at Para-49 and 50 is as follows:-
"Para-49:- It is evident from the record, that when the payment warrants were received by the plaintiff, it effaced (quaere enfaced) the warrants by handwritten remark "Received". Pertinently, in the first instance, protest was only raised in reference to excessive TDS deduction by the defendant while remitting the dues. The demand for interest on delayed payment, was raised after passage of 7 months, when the books of SIBCO were allegedly audited. This justification does not appear to be reasonable. In fact, as has been stated previously in this judgment, the plaintiff was entitled to demand interest for delayed payment in its writ petition as well. But SIBCO has consistently failed to raise this demand at every stage including at the stage of accepting the sum tendered by the defendant, without any protest. Para-50:- Hence, it is clear that the plaintiff accepted the payment from the defendant as due settlement of its 172 claims. SIBCO's failure to raise protest and demand for interest at the earliest possible stage, amounted to sub silentio acceptance. Accordingly, the plaintiff is barred from raising this demand after several months applying the principle of waiver/acquiescence."
220. In view of the discussion made above and considering the evidence of DW-1 to DW-12 and DW-14 and the documents discussed above and also in view of the guideline provided in Clause
-6.10 of the Handbook of the Election Commission of India, this Court finds that no illegality has been committed by the respondent no. 2 by allowing the respondent no. 1, Smmari Lal to contest the 65, Kanke (Scheduled Caste), Assembly Constituency and the result of 65, Kanke (Scheduled Caste), Constituent Assembly Election has not been materially affected by accepted/acceptance of nomination of the respondent no. 1, Smmari Lal and election of the respondent no. 1, Smmari Lal from 65, Kanke (Scheduled Caste), Assembly Constituency is not liable to be set aside. Thus, Issue Nos. VI, X and XIII are answered against the petitioner and in favour of the respondent no. 1, Smmari Lal.
Issue Nos. I, II, III and XIV:-
221. In view of the discussions made above, this Court finds that there is no cause of action for filing this Election Petition and as such, this Election Petition is not maintainable and this Election Petition is devoid of merit and the petitioner is estopped from raising the issue of Caste of the Respondent No. 1, Smmari Lal and hence, the petitioner is not entitled to any relief (s).
Thus, Issue Nos. I, II, III and XIV are also decided against the petitioner and in favour of the Respondent no. 1, Smmari Lal.
222. In view of the discussion made above, this Election Petition is dismissed, but without any costs.
173223. All the pending I.As., if any, stand disposed of.
224. Let this Judgment be communicated to the Election Commission of India, the State Election Commission and Office of Hon'ble Speaker, Jharkhand Vidhan Sabha and to all concerned by the Office at once.
225. Office is directed to return the document to the paties after keeping the photocopy of the same.
(Sanjay Prasad, J.) Kamlesh/A. F. R. 174