Karnataka High Court
Sangappa vs The Commissioner For Backward Classes ... on 13 June, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13TH JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION No.1449/2006 (GM-CC)
BETWEEN:
SANGAPPA
S/O HASANAPPA MALENNAVAR
AGED ABOUT 29 YEARS
WARD NO.1 NEAR HONNALA DESAI'S HOUSE
KILLA, BAGALKOT
... PETITIONER
(BY SRI.JAYAKUMAR S PATIL, SR. COUNSEL. FOR
SRI.SANJAY S KATAGERI, ADV.)
AND:
1. THE COMMISSIONER FOR BACKWARD CLASSES
DEPARTMENT AND APPELLATE AUTHORITY FOR
VERIFICATION OF CASTE AND INCOME
CERTIFICATE, NRUPATHUNGA ROAD, BANGALORE
2. THE DEPUTY COMMISSIONER CHAIRMAN
DISTRICT CASTE AND INCOME CERTIFICATE
VERIFICATION COMMITTEE
BAGALKOT, DIST.: BAGALKOT
3. THE DISTRICT OFFICER
BACKWARD CLASSES AND MINORITIES
DEPARTMENT MEMBER SECRETARY BAGALKOT DISTRICT
2
CASTE INCOME VERIFICATION COMMITTEE,
BAGALKOT, DISTRICT: BAGALKOT
4. M V CHANDRAKANTH
AGED ABOUT 38 YEARS
S/O VENKATASHAMI
R/AT NO.1308 RAMADEVA GARDENS
KACHARKANAHALLI, BANGALORE -560 084
... RESPONDENTS
(BY SRI.A.S.PONNANNA, ADDL. ADV. GENERAL FOR R1 -R3;
SRI.M.S.BHAGWAT, SRI.SATHISH K AND
SRI.SURESH S BHAT, ADVS. FOR R4;
SRI.JAGADISH PATIL, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER VIDE ANNEXURE-D DATED 23.01.2006 IN NO.
BC/MASHA-1/CR-35/2005-06 PASSED BY RESPONDENT NO.1.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.03.2017 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The relief claimed by the petitioner is for issuance of writ of certiorari or any other appropriate writ for quashing the order Annexure-D dated 23.1.2006 in No.BC/MASHA-1/CR-35/05-06 passed by the first respondent, the Commissioner for Backward 3 Classes Department and Appellate Authority for Verification of Caste & Income Certificate.
2. The respondent No.4 who preferred an appeal before the first respondent, the appellate authority under Section 4-D of the Karnataka Scheduled Castes and Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc., ) Act, 1990, hereinafter referred to as `the Act' for short and he challenged the issuance of validation certificate bearing No.BCM/JA.A.PA:R:98:05-06 dated 21.10.2005 issued by the Deputy Commissioner and Chairman, District Caste and Income Verification Committee, Bagalkot for reservation benefit under category 2A and petitioner availed the said benefit for the post of Gazetted Probationers Group-A and B called for by the Karnataka Public Service Commission. The first respondent by the order dated 23.1.2006 allowed the appeal and the certificate issued by the Income and Caste Verification Committee, Bagalkot dated 21.10.2005 in favour of the petitioner has been set aside and further directed to launch criminal prosecution 4 against the petitioner. Being aggrieved of which, the present writ petition is filed.
3. The petitioner stated that he belonged to Ganiga Caste and he had applied for issuance of caste certificate to the competent authority. The competent authority, the Tahsildar, Bagalkot after verification of the matter as required under the provisions of the Act, issued caste certificate certifying that the petitioner belongs to Ganiga Caste for the purpose of reservation benefit under Group - 2A. On the basis of the said certificate, the petitioner had applied for Gazetted Group-A and B 1999 examination conducted by the KPSC and he had claimed reservation under Category 2-A on the basis of the certificate issued by the Tahsildar, Bagalkot. After successful completion of the written examination and also vio-voce, he got selected for the aforesaid probationer post and thereafter the Karnataka Public Service Commission forwarded his caste certificate to the District Caste and Income Verification Committee, Respondent No.2 herein, who is its Chairman for verification. The Committee issued notice to the petitioner directing him to produce required 5 documents and also held enquiry as to the correctness of the certificate issued by the Tahsildar. The Caste and Income Verification Committee has issued validity certificate in favour of the petitioner. The Public Service Commission published provisional and final list in which the petitioner got selected at Serial No.15 for the post of Assistant Commissioner.
4. The respondent No.4 contended in the appeal before the first respondent that petitioner belonged to Lingayat Community and hence he is not entitled for the benefit under Category 2A. The first respondent had issued notice and in pursuance of the same, the petitioner entered appearance through an advocate and made application for vacating the interim order. The first respondent instead of vacating stay, directed the respondent No.3 the District Officer, Backward Class and Minorities, Bagalkot to submit records. On issuance of such a direction, the respondent No.3 forwarded several documents. The petitioner stated, he was not given opportunity either to go through the records produced by the respondent No.3 or the school register etc., and without providing the fullest opportunity to go through 6 the records produced by the respondent No.3, the respondent No.1 the appellate authority has passed the impugned order dated 23.1.2006 as per Annexure-D as aforesaid.
5. The petitioner further stated that the reasons assigned by the respondent No.1 in setting aside the certificate issued by the Tahsildar are that the enquiry conducted by the Respondent Nos.2 & 3 the Deputy Commissioner, Income and Caste Verification Committee, Bagalkot and District Officer, Bagalkot is not proper, there should have been further detailed enquiry. If the respondents 2 & 3 have not conducted enquiry properly, then first respondent should have remanded to the respondents 2 & 3 for further detailed enquiry. The respondent No.1 presumed that the petitioner belongs to Lingayat Community and it comes under Category 3-B and not under 2A. The further reason stated by the first respondent is that after verifying the records, it is found that father of the petitioner belongs to Lingayat Community and hence petitioner cannot claim a different caste. The first respondent has not examined the evidence adduced by the petitioner and also the documents 7 produced to that effect. The petitioner had produced extract of Gazetteer of Bombay Presidency pertaining to Bijapur District, the extract of "Castes and Tribes of Southern India" by Edgar Thurston, the Circulars issued by the Government. He had also produced the caste certificate of his relatives along with the objection filed before the first respondent. The communication made by the respondent No.3 the District Officer, Bagalkot dated 17.12.2005 confirming the caste in the enquiry as per Annexure- F. The third respondent in the said communication had stated that he made enquiry on 20.10.2005 and on verification it is found that the petitioner belongs to Hindu Ganiga and Tahsildar also after enquiry had issued the certificate as Ganiga. Hence on verification the certificate was issued to him. The material was very much available before the first respondent. Despite the fact that petitioner had produced ample and sufficient materials, the first respondent has not considered the same, but mechanically rejected his case. It is stated by the respondent No.1 in the impugned order Annexure-D that the respondents 2 & 3 having conducted enquiry in a fair and proper manner, if it is found that 8 further more enquiry was needed, he should have remanded the matter to the respondents 2 & 3. Instead himself decided holding that the petitioner do not belongs to Hindu Ganiga but belongs to Lingayat Ganiga. Hence the impugned order is to be set aside. The documents which were produced before the first respondent were the same documents which were produced before the respondents 2 & 3 and same were considered and it was confirmed that the petitioner belonged to Hindu Ganiga.
6. The respondent No.2 in his communication dated 18.11.2005 to the Commissioner, Social Welfare, Bangalore confirmed the fact that the petitioner belonged to Hindu Ganiga. The copy is produced as Annexure-G. It is further stated by the petitioner that respondents 2 & 3 have conducted local enquiry on the basis of the notice sent by the KPSC to the office of the respondents 2 & 3 for confirmation/verification. The respondents 2 & 3 further examined about 11 persons as witnesses and recorded their statements at Bagalkot where the petitioner was residing initially at Honnihal, his native place. On the basis of the statements of the persons who were examined, 9 they have stated in their statement that the petitioner belongs to Ganiga Caste. That was the basis for issuance of validity certificate and confirmation to the Public Service Commission.
7. Since the interim order of status quo has been granted by this Court, the petitioner was issued appointment order as per Annexure-J on 1.2.2006 and since then he is working as such. By issuing Annexure-D and setting aside the caste certificate issued by the Tahsildar, the first respondent had further directed the Director of Civil Rights Enforcement Cell under Rule 7A of the Karnataka SC/ST, Backward Classes Reservation of Appointment Rules, 1992 (Amendment Rules 2000) to initiate prosecution after conducting enquiry as per Annexure-K dated 13.2.2006. In pursuance of the same, the Enquiry Officer, Civil Rights Enforcement, Bagalkot has conducted detailed enquiry with regard to case of the petitioner. Further detailed enquiry has been conducted by the C R E Cell, Panchanama was conducted at two different places one at Bagalkot and another at Honnihal and also he had verified the documents. The Enquiry Officer has made it clear that the 10 petitioner and his family belonged to Hindu Ganiga community and report has been submitted dated 21.6.2006. In view of the report submitted by the CRE Cell, it is found that validity certificate is issued after thorough investigation and also verifying the fact that he belongs to Hindu Ganiga. In the light of the above facts and circumstances, the learned senior counsel submitted that the impugned order passed by the first respondent is arbitrary and ultra vires the provisions of the Act and Rules and the same is to be set aside.
8. The learned senior counsel has relied upon the judgment reported in 1981(1) KLJ 255 (Prabhushankar K V. v. Selection Committee for Medical Colleges & others) wherein it has been held that among Lingayats there could be persons who belongs to the Ganiga Community. Further relied upon on AIR 1980 KNT 62 (Somashekhar Veerappa B. Murgod v. The State of Karnataka & another) to the effect, considering socio - Economic data and backward class commission report, this court held Kuruhina Shetty is not of Lingayat Community. ILR 1986 KAR 2672 (Kulkarni Geeta M vs., The State of Karnataka & others) to 11 the effect follower of Veerashaiva or Lingayat cult of devotion and bhakthi do not loses his caste. Further it was relied upon 2006(5) AIR Kar 170 to the effect without conducting proper enquiry and without affording sufficient opportunity, it violates principles of natural justice.
9. The respondent No.1 filed statement of objections. It is stated that the respondent No.4 and petitioner who got selected as Assistant Commissioner and Dy. S P by the Public Service Commission. On the petitioner having selected as Assistant Commissioner, respondent No.4 filed an appeal. It was the contention of the respondent No.4 that petitioner belongs to 3-B and not 2-A category. Since the respondent No.4 had filed appeal under Section 4-D of the Act and the Rules 1982, the Government in its order dated 23.2.2004 has directed the Commissioner of Backward Classes as an appellate authority for Caste and Income Verification Committee u/s 4-D of the Act. It was the case of the respondent No.4 that the petitioner had obtained false caste certificate. Notice was issued to the petitioner and ample opportunity was provided to both the 12 parties to put-forth their arguments and to verify the records. Hence the contention of the petitioner that he was not provided an opportunity cannot be accepted and decision was also taken by respondent No.1 to secure the school records of the petitioner's father and as well as the petitioner as per request of the counsel for respondent No.4. The respondents 2 & 3 were also issued notice and also directed to obtain school records of both. The Extension Officer of the Backward Classes, Bagalkot had submitted caste and income verification report of the petitioner drawn in October, 2005 to the third respondent's office and third respondent also drawn Mahazar on 20.10.2005 by obtaining 11 witnesses signatures. This is unbelievable that the second and first respondent acted on the same data and further the third respondent had drawn Mahazar much prior to report submitted to it by Extension Officer of the Backward Classes, Bagalkot. The report submitted by the respondents 2 & 3 have been examined and it was observed that the respondent No.3 while conducting enquiry has not at all enquired about father's caste nor he had examined the school records of the petitioner. 13 The validity certificate issued to the petitioner was signed by the Head Quarters Assistant to the Deputy Commissioner and not by the Chairman & Deputy Commissioner of Income & Caste Verification Committee. Hence the procedure followed by the respondent No.3 is not in order.
10. It is further stated that children inherits the caste of the father. The petitioner had admitted that his father belongs to Lingayat Community and when the father belongs to Lingayat Community as per the school records, the petitioner's caste shall also be Lingayat and not a Ganiga. When the documents of father namely the school records of the father discloses that he belongs to Lingayat Community, as against the same, report submitted by the third respondent dated 17.12.2005 addressed to the first respondent authority that the caste of father of the petitioner is Hindu Lingayat as per the primary school records and reiterates that the procedure followed in issuing the validity certificate to the petitioner as Ganiga under 2A. The respondent No.3 has not at all verified about the petitioner's father caste during his enquiry on 20.10.2005. The first respondent has 14 gone through the records, written arguments and after hearing the oral arguments of both sides and on the power vested under Section 4-D(2) of the Act and Rules 7(5) of Rule 1982, has passed the order. As per Rule 7(j), the appeal is to be disposed of within 45 days taking note of the same, the appeal was disposed on 23.1.2006 when it was filed on 5.12.2005 within 50 days. Hence there is no arbitrariness or non application of mind on the side of the respondent No.1.
11. The respondent No.4 submits to dismiss this petition. It is submitted that respondent No.1 has passed the order after affording opportunity. He verified the reports of respondents 2 & 3 and details furnished by them. It has been discussed by the respondent No.1 that the respondents No.2 & 3 while submitting reports did not verify records of father of the petitioner, they have verified the records of the petitioner and also recorded statement of 11 persons and submitted report that caste certificate issued by the competent authority is genuine since on the basis of the enquiry recording statement, it revealed that the petitioner does belong to Ganiga community. The first 15 respondent had specifically directed the respondents 2 & 3 to secure the school records of father of the petitioner on the basis of the application made by the Respondent No.4. The school records of father of the petitioner revealed that at the relevant column, it is mentioned as Lingavantha and Lingayat. When person belongs to Lingayat or LIngavantha, his sub-caste goes with the main caste. Father belongs to Lingayath or Lingavantha, may be incidentally Ganiga. It goes without any proof that children of the petitioner herein are also Lingayat Ganiga. Ganiga can be found in both 2-A and 3-B categories but it makes a lot of difference. Category 2-A carries 10% reservation whereas 3-B carries 5% reservation. Purpose for classification or grouping is on the basis of socio economic and educational qualification. The Government of Karnataka appointed Backward Class Commission to submit its report and on the basis of the report, government orders have been issued classifying various castes for the purpose of various reservations. Similarly the sub-castes of Lingayat have been grouped under particular group under Category 3B. Ganiga 16 found in 2-A is not synonym found under sub-castes of Lingayat. In this regard, the book captioned, Communities, Segments, Synonyms, Surnames and Titles of K S Singh, published by Anthropological Survey of India, Oxford University Press, Delhi, Bombay, Calcutta, Madras, 1996. At page 370 it refers, Ganiga is equivalent to Ganiga/Ganika.
12. The Castes and Tribes of Southern India, by Edgar Thurston K Rangachari in Seven Volumes, Volume-II C-J, published by Asian Educational Services, New Delhi, Madras, 2001 which describes Ganiga or Gandla that "name Ganiga is derived from the Telugu ganuga, meaning an oil-mill. The Ganigas are said to be "the oil pressers of the Canarese people, corresponding to the Telugu Gandla and the Tamil Vaniyan. This caste is sub-divided into three sections, none of whom eat together or intermarry. These sections are the Hegganigas, who yoke two oxen to a stone oil-mill; Kirganigas, who make oil in wooden mills; and Ontiyeddu Ganigas, who yoke only one animal to the mill. They are collectively known as Jotipans or Jotinagarams (people of the city of light). In addition to pressing 17 oil, they also make palm-leaf umbrellas, cultivate land, and work as labourers.
13. In another book, People of India, Karnataka, Volume XXVI Part Two, General Editor K.S.Singh, Anthropological Survey of India, affiliated East-West Press Pvt. Ltd., New Delhi, it describes the Ganiga as their name indicates, are an oil presser community. Ghana means oil-press and those who work with the Ghana are known as Ganiga. There are five subdivisions among them, namely, Jyotiphana, Sajjana, Hegganiga, Kiruganiga and Telugu Ganiga. Thurston (1909) mentions that in Sandhur (Bellary District), there are two subdivisions among the Ganiga, namely, yenne (oil), and kallu (stone). In the Five Volumes of The Mysore Tribes and Castes by L K A Iyer, a Mittal publication, describes Ganigas or Gandlas, as they are called in Telugu, are oil pressers. The common name of the caste is Ganiga, and they are also known as the Jyotiphana people. The word Ganiga as well as the word Gandla, is derived from a word meaning oil-mill. Jyotiphana, meaning the community of the lamp, has also reference to their profession of supplying oil for 18 lamps. A division of this caste styles themselves Jyotinagaradavaru, or the people of the city of light. They are largely found in the Mysore District.
14. These are the materials in order to classify Lingayat Ganiga and Ganiga for the purpose of reservation. On socio- economic and educational backwardness as the basis, classifications are made for the purpose of reservation. In the government order which classifies the Category 2A and 3B it is on the basis of various guidelines issued by this Court and also Supreme Court for the scientific evaluation of the backward classes. The question is, whether he is entitled to obtain certificate under category 2A instead of 3B. It is on the basis of the above discussion and meaning referred in the various books, it is found that Ganiga who is oil presser, they are mainly settled in some part of the land. They were in Andhra and migrated to other parts. Their main occupation is oil pressing. These things are not found in the case of the petitioner. Though 11 persons have been examined, they have stated, the petitioner belongs to Hindu Ganiga, contrary to the records of father of the petitioner 19 which was entered as to the caste of petitioner's father at an undisputed point of time, which revealed that father belongs to Lingayat and caste has been referred as Lingayat or Lingavantha. These documents are the basis and fundamental in nature which decides the fact that the petitioner belongs to Lingayath with sub-caste Ganiga. It is presumed that the petitioner is fully aware about this classification. This presumption is taken on the basis that he had made application for the post of Class I and Class II. His father was also a graduate. Consciously grandfather of the petitioner must have provided his caste as Lingayat and Lingavantha. That comes under Category 3B enumerating number of sub-castes but they are all to be classified under 3B and not 2B. Any quantum of material cannot dislodge the materials collected by the Respondents 2 & 3 on the basis of the direction issued by the Respondent No.1.
15. It is the burden on the part of the applicant to obtain certificate claiming that he belongs to a particular caste. Obtaining certificate as belonging to particular caste is not the 20 conclusive proof, he has to prove it. The petitioner had not relied upon the certificates of his father, but the respondent No.1 on the basis of the report submitted by respondents 2 & 3, in which it is mentioned as Lingayat and Lingavantha. The petitioner has utterly failed in substantiating the fact that entries of father are illegal or taken contrary to the facts. Since he has failed in it, the order passed by the respondent No.1 is to be held sound and proper and I have gone through the papers made available before me and I do not find any irregularity or non application of mind on the part of the Respondent No.1.
16. At an initial stage the respondents 2 & 3 enquired with the petitioner. He was directed to appear before them with all particulars and also it is stated that they have recorded the statement of 11 persons, but they did not secure the documents of his father. By merely examining the certificates of the petitioner, they refer that he is Hindu Ganiga. But when the certificates of his father looked into, then it was found, petitioner does not belong to Hindu Ganiga but he belongs to Lingayat Ganiga.
21
17. Though Ganiga is found in both Group 2A and 3B, the extent of reservation varies from one category to another. The petitioner had obtained certificate as Hindu Ganiga, that may be true also. The petitioner claims that he also belongs to Hindu GAniga. But for the purpose of claiming reservation, he has to look into the government order issued from time to time. The Government has issued notification clarifying that sub-caste Hindu lingayat they are coming under 3B whereas Ganiga and other castes, it comes Category 2A for the purpose of reservation. By merely `Ganiga' found in both 2A and 3B, it does not mean, person can claim more beneficial group for the purpose of reservation. Particular advantage given to the particular group shall not be knocked off by persons who are not entitled to it.
18. In (1996) 3 SCC 545 (Valsamma Paul (Mrs.) vs., Cochin University & others) it is observed in Para-3 that "The special provisions under Articles 15(4) and 16(4) of the Constitution of India intended for the advancement of socially 22 and educationally backward classes of citizens cannot be defeated by including candidates by alliance or by any other mode of joining the community. It would tantamount to making a mockery of the constitutional exercise of identification of socially and educationally backward classes of citizens. In para- 6 of the judgment, it is held as follows:
"6......Social democracy means "a way of life which recognizes liberty, equality and fraternity as principles of life". They are not separate items in a trinity but they form union of trinity. To diversity one from the other is to defeat the very purpose of democracy. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. Article 15(4) and 16(4), therefore intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrinied for protection of society. The right to social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the 23 Constitution, in particular, Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is to make the quality of the life of the poor, disadvantaged and disabled citizens of society, meaningful. Equal protection in Article 14 requires affirmative action for those unequals by providing facilities and opportunities....."
19. In (1995)4 SCC 32 (Director, Tribal Welfare vs., Laveti Giri & another), it is held that a false claim by fraud played by guardian, disentitle the candidate to the social status as a Scheduled Tribe.
20. The petitioner relied upon judgment reported in 1981(1) KLJ 255 (PRABHUSHANKAR K. VS., SELECTION COMMITTEE FOR MEDICAL COLLEGES & OTHERS). The petitioner therein claimed reservation for backward community. He claimed that he belongs to Ganiga community which is one of the backward community. It was opposed by the government that the claim of the petitioner to be rejected on the ground that he belongs to Lingayat community and not Ganiga community. The writ petition was allowed and direction was issued to the 24 first respondent to reconsider the claim of the petitioner that he belongs to Ganiga community and consequently entitled to selection against one of the seats reserved.
21. In another judgment reported in AIR 1980 Knt. 62 (Somashekhar Veerappa B Murgod v. The State of Karnataka & another) it has been held "the fact that he is Lingayat does not mean that he does not belong to Kuruhina Setty community as pointed out by the commission among persons belong to Kuruhina Setty, somehow becomes Lingayath, but all of them are considered and identified as belonging to Backward Community. Therefore, the Kuruhina Setty which has become Lingayat is entitled to benefit of reservation.
22. The above two judgments were rendered much prior to the notifications issued by the Government. Hence the above judgments cannot be pressed into service in the present case. The government order clarifies that the parsons who belong to Ganiga Community of Lingayath they got reservation but not under 2A. They have been classified into Category 3-B for the 25 purpose of reservation under Articles 15(4) and 16(4) of the Constitution. When they have been put in separate class, it is impermissible for them to claim benefit under Category 2A only for the reason that their community is figured. No person can transgress from one category to another category. The petitioner who is a Lingayat and Lingawantha since his father is a Lingayat, he should have declared before the competent authority to issue certificate under 3B and not under Category 2- A. However, he made a false claim before the competent authority, the Tahsildar and obtained a false certificate.
23. The learned senior counsel for the petitioner placed reliance on ILR 1996 KAR 2672 (Kulkarni Geeta M. vs., The State of Karnataka & others) relating to Beda Jangama - follower of Veerashaiva or Lingayat cult of devotion and bhakthi do not loses his caste and 2006(5) AIR Kar 170 - Ganga community certificate - without conducting proper enquiry and without affording sufficient opportunity, there will be violation of principles of material justice. These judgments are not applicable since the petitioner's case is totally on a different 26 footing. These judgments do not throw light for reconsideration of case of the petitioner.
24. The first respondent while passing the impugned order Annexure-D directed to initiate prosecution against the petitioner. It has been responded by the prosecution that on enquiry, since it is found petitioner is a Ganiga, no prosecution can be laid, is improper and arbitrary. It shall not be forgotten that C R E Cell is a part of the Government. Once the competent authority respondent No.1 directs the C R E Cell to initiate criminal prosecution, it should have been taken through or C R E Cell should have obtained permission or further direction in the matter. Independently, the C R E Cell has examined the case of the petitioner on the basis of the certificates and held that initiation of case is not permissible, is arbitrary and ultra vires the provisions of the Act and the Rules.
25. AIR 1994 Kar 295 (Miss. Rafia Shaheen & etc., v. State of Karnataka & others) has been referred by the petitioner, which is in respect of Darveshu groups among the Muslims. It 27 has been held that children of Darveshu community are entitled to reservation. There is no quarrel in it. But question is, whether the appellant is Darveshu or not. It was held that petitioner therein was Darveshu and hence son also to be classified for the said purpose. The said judgment is not applicable to the instant case.
26. ILR 2001 KAR 5023 (Smt.K N Kamalamma vs., Divisional Commissioner, Mysore Division & others) referred by the petitioner is not applicable since dispute in respect `Parivara' and `Nayaka', by virtue of amendment to the constitution, it has been held that the caste `Parivara', `Nayaka' etc., are held to be synonyms. The said question is not for consideration in the present case.
27. In Kumari Madhuri Patil & another v. Additional Commissioner, Tribal Development & others, reported in AIR 1995 SC 94 it is held, "It is obvious that Judicial Magistrate has no jurisdiction to issue caste certificate and it is a void certificate. The entries in the school certificate of father of 28 appellants, Laxman Patil being a pre-independence period, it bears "great probative value" wherein he declared himself to be "Hindu Koli" which is now recognized as backward class. The caste affirmation certificate issued by the Samaj "Caste Association" consist of these very communities who seek to get the status as Scheduled Tribes. It also does not, therefore, bear any probative value. School certificates and college certificates in favour of the appellants are the subject of enquiry, therefore, do not bear any value and independently their status is to be considered.
28. In the light of the above judgment, it is made very clear that the certificates of the father of the petitioner are more probative value and not the certificate of the petitioner himself. The certificate of father of the petitioner shows he belongs to particular caste and therefore the petitioner cannot claim a different caste, for the benefit, for which he is not entitled.
29. The petitioner has stated before the Respondent No.1 that grandfather of the petitioner was not educated and he has 29 not entered the caste of the petitioner's father as Hindu Ganiga cannot be accepted. The grandfather may be innocent or illiterate that does not mean, he could give a false statement. He must have shown proper caste of the petitioner's father. On the other hand, if the caste of the petitioner's father was wrong, it was open for him at the stage of completion of degree or even thereafter to get it rectified, that has not been done. This itself shows that grandfather of the petitioner, though he may be illiterate, he was innocent, but he has furnished the correct caste of father of the petitioner. In the circumstances, submission of the petitioner that caste of the petitioner is to be rectified as Hindu Ganiga cannot be accepted.
30. The other submission of the petitioner that the first respondent should have remanded the matter to the 2nd and 3rd respondents for reexamination has no merit. Remanding the matter to the subordinate authorities comes only when the disputed fact has not been assessed by collecting evidence or materials etc., In the instant case, no such things are made out. The question before the first respondent was whether the 30 certificate issued by the Tahsildar was genuine and further whether the petitioner obtained genuine certificate. In order to resolve these two issues, the relevant document examined by the first respondent is the report submitted by the 2nd and 3rd respondent. Initially the 2nd and 3rd respondent stated that the petitioner does belong to Hindu Ganiga and entitled for reservation. But the first respondent having not satisfied with the same, he further directed the 2nd and 3rd respondents to secure the school certificates of father of the petitioner. That showed that petitioner's father certificate showed that he belonged to Lingayat & Lingavantha, which was of undisputed point of time, in the year 1951. When caste of father of petitioner was clarified and cleared, question of remanding again to the 2nd and 3rd respondent does not arise. Remanding the case without any reason is also arbitrary. It cannot be automatic. There is no circumstance to warrant remand.
31. For the above reasons, I hold that the order passed by the first respondent is sound and proper. The said order does not 31 call for interference. The writ petition fails and it is accordingly dismissed.
Sd/-
JUDGE akd