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1999 DIGILAW 1137 (PAT)

Akhilesh Kumar v. State Of Bihar

1999-10-29

AFTAB ALAM

body1999
Judgment 1. Altogether different communities, occupying vastly different positions in the statutory scheme of reservation in government employment, in some cases have names which are not only phonetically similar but also have a very minor difference of spelling. Lured by far more attractive reservation prospects and taking advantage of the similarity in the names of the two communities it some times happens that individuals and families actually belonging to one community would try to assume the identity of the other group. The Circle Officer, Bhabua and the District Magistrate, Kaimur and Bhabua seem to take the view that this is what the petitioner is trying to do. The petitioner on the other hand strongly resents the view taken by the respondent authorities and asserts that he actually belongs to the community as claimed by him. 2. Admitted position is that GOND (also spelt some times as GONR) is a tribal group being one of the Scheduled Tribes. It is also admitted that GAUR (also spelt sometimes as GOD) is the name of a caste which is included as backward classes : Annexure-l. The dispute in this case is whether the petitioner is a member of GOND tribe and hence, entitled to the reservation facility available to a member of the Scheduled tribes or whether he belongs to the GAUR caste and entitled only to the reservation facility available to the backward classes : Annexure-l. 3. The petitioner had from before Caste Certificates issued by the Subdivisional Officer. Bhabua (Annexure-12) and the District Magistrate, Bhabua (Annexure-13) describing him as a member of GOND tribe being one of the Scheduled tribes. These certificates were issued in the years 1982 and 1992 respectively. 4. The petitioner appeared in a selection test held by the Life Insurance Corporation of India for appointment to the posts of Assistant. In his application he described himself as a member of the Scheduled Tribes being a GOND. The petitioner was successful in the written test and was called for interview. At the time of interview, however, he was unable to produce his Caste Certificate in the prescribed form and the Corporation refused to accept the Caste Certificate produced by him. He then made an application, dated 8.3.1996 before the Circle Officer, Bhabua Circle, Kaimur for giving him a Caste Certificate in the form prescribed by the Life Insurance Corporation. At the time of interview, however, he was unable to produce his Caste Certificate in the prescribed form and the Corporation refused to accept the Caste Certificate produced by him. He then made an application, dated 8.3.1996 before the Circle Officer, Bhabua Circle, Kaimur for giving him a Caste Certificate in the form prescribed by the Life Insurance Corporation. He aiso made a similar application, dated 29.3.1996 before the District Magistrate, Kaimur at Bhabua. It appears that he faced some difficulty in getting his Caste Certificate in the form prescribed by the Life Insurance Corporation and he approached this court in C.W.J.C. No. 4936/96. That writ petition was disposed of by order, dated 6.5.1996 (Annexure-1) with a direction to the Circle Officer to consider the petitioners application for grant of Caste Certificate in the prescribed form and to take all necessary steps in that regard within a week from the date of receipt of a copy of that order. Thereafter the Circle Officer. Bhabua passed a detailed order dated 21.8.1996 which is on record as Annexure-11. In that order it was stated that the petitioners application along with supporting documents, including the Caste Certificate dated 3.7.1992 earlier issued in his favour by the District Magistrate, Bhabua was carefully considered: that pursuant to the order passed by the High Court, the Circle Officer made local enquiries and also examined the relevant revenue records; that in that connection reports were also received from the local revenue Karamchari/Circle Inspector and that from the enquiries it became clear that the petitioner was not a member of the Schedueld tribe GOND but was a member of GAUR caste which was included in backward classes : Annexure-l. It was further stated in that order that the petitioners Caste Certificate was accordingly issued on 28.5.1996 but he refused to accept it. The Caste Certificate dated 28.5.1996 was then sent to his address; 5. Against the order passed by the Circle Officer and the Certificate issued by him, describing the petitioner as a member of GAUR caste, the petitioner made a representation/ appeal before the District Magistrate, Kaimur at Bhabua claiming himself to be a GOND and asking for a Caste Certificate describing him as such. By his order, dated 3.10.1996 the Collector rejected the petitioners representation and upheld the finding of the Circle Officer concerning the petitioners Caste. By his order, dated 3.10.1996 the Collector rejected the petitioners representation and upheld the finding of the Circle Officer concerning the petitioners Caste. The relevant extract from the Collectors order is as follows : "Clause 25 of Article 300 of the Constitution of India defines "Scheduled Tribes as 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." "It has been held in "Kumari Madhuri Patil V/s. Addl. Commr., Tribal Development, (1994) 6 SCC 241 (1994 A.I.R. SCW 4116) by Hon. Supreme Court that "Despite the cultural advancement, the Genetic traits pass on from generation to generation and no one could escape or forget or get them over. The tribal customs are peculiar to each tribe and are still being maintained and preserved. Their cultural advancement of some extent may have modernized but they would not be obligious or ignorant of their customary and cultural part to establish their affinity to the membership of particular tribe." "It is clear that the Circle Officer in course of his local inquiry did not find any distinct tribal customs, rituals and usage being followed by the petitioner and came to the conclusion that the petitioner was a OBC and not a scheduled tribe. In my opinion the present instant seems to be part of a chain of retrograde steps being taken by certain OBC individuals and communities to corner the benefits intended for Schedule tribe by seeking to get the status of Schedule tribe." 6. In his order the Collector seems to have wondered as to how people from a tribal group came to be found living in the dusty riverine plains of Bihar and has expressed the opinion that the claim of the petitioner seemed to be part of a chain of retrograde steps being taken by the certain OBC individuals and communities to corner the benefits intended for Scheduled tribes by seeking to get the status of Scheduled tribes. 7. Dr. Sadanand Jha, learned counsel for the petitioner assailed the order of the District Magistrate, Kaimur on the ground that it was passed without taking into consideration a number of documents which clearly showed the petitioner to be a member of GOND tribe. 8. Dr. 7. Dr. Sadanand Jha, learned counsel for the petitioner assailed the order of the District Magistrate, Kaimur on the ground that it was passed without taking into consideration a number of documents which clearly showed the petitioner to be a member of GOND tribe. 8. Dr. Jha first brought to my notice a copy of the Khatian (Annexure-15) in which the name of the petitioners father was recorded as Nehal Gond (f%H ifis). 9. He also brought to my notice the photostat copies of the extracts from four sale deeds (Annexure-15/1) by which some lands were evidently purchased by the family members of the petitioner. In those sale deeds special care seems to have been taken to describe the community of the vendors. Though the sale deeds are in Hindi and the word GOND/GONR is also written in Hindi but in three deeds care has been taken to right the word GOND in English also. There was no apparent reason for thus highlighting the community to which the vendors belonged in the sale deeds. 10. Dr. Jha then submitted that the petitioner was the descendant of one Banshi Gond who had three sons, namely, Bhagwati Gond, Nehal Gond and Raja Ram Gond. The petitioner is the son of Nehal Gond. Dr. Jha then brought to my notice a certificate, dated 13.2.1982 issued by the Subdivisional Officer, Bhabua, Rohtas in the name of Raja Ram, describing him as a Gond being one of the Scheduled Tribes. It is noted above that a similar certificate of the same date (Annexure-12) was earlier issued in favour of the petitioner as well. 11. He then invited my attention to another certificate dated 30.9.1991 (Annexure-20) issued by the District Magistrate in favour of Ajit Kumar son of Raja Ram in which he was described as a member of Gond tribe being one of the Scheduled tribes. Another certificate, dated 27.4.1969 is at Annexure-21 according to which Tara Shankar Singh son of Bhagwati Singh was a member of Gond tribe being one of the Scheduled tribes. 12. Dr. Jha submitted that the Collector, Kaimur did not take into consideration any of these materials before passing the impugned order, dated 3.10.1996. 13. It is not clearly stated in the writ petition that all these aforementioned materials were produced before the Collector and he did not take them into consideration though these materials were on record before him. 12. Dr. Jha submitted that the Collector, Kaimur did not take into consideration any of these materials before passing the impugned order, dated 3.10.1996. 13. It is not clearly stated in the writ petition that all these aforementioned materials were produced before the Collector and he did not take them into consideration though these materials were on record before him. 14. It is true that the materials brought to my notice lend considerable support to the petitioners claim to belong to Gond tribe but those materials can by no means said to be conclusive evidence of his belonging to GOND tribe. , For, whatever can be said against the petitioner can be said with equal force against his uncles and cousins; that they were obtaining their certificates with the same nefarious object and motive; and that those certificates were issued without much care and without making a proper enquiry. 15. There is however, some substance in the grievance made on behalf of the petitioner that a number of documents quite relevant to the issue were not taken into consideration before arriving at the finding that the petitioner is a member of GOUR caste and does not belong to GOND tribe. 16. The dispute being purely one of fact, it can be resolved only after a full dressed enquiry at the level of the District Magistrate and the writ court can hardly be expected to express any opinion in this matter. In the facts and circumstances of the case, however, i am satisfied that this matter calls for further enquiry. The impugned order, dated 3.10.1996 passed by the District Magistrate, Kaimur is accordingly set aside and the matter is remanded back to the District Magistrate with a direction to hold further enquiry in this matter. It will be open to the petitioner to produce all materials, including those brought to my notice as indicated above before the Collector in support of his claim of being a member of GOND tribe. The Collector after giving the petitioner an opportunity of hearing will pass a fresh order in this matter on the basis of the materials brought before him in course of enquiry and a Caste Certificate will be issued to the petitioner accordingly. A final order in this regard must be passed by the District Magistrate, Kaimur within two months from the date of receipt/production of a copy of this order. 17. A final order in this regard must be passed by the District Magistrate, Kaimur within two months from the date of receipt/production of a copy of this order. 17. This writ petition thus stands disposed of with the aforesaid observations and directions.