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Himachal Pradesh High Court · body

2001 DIGILAW 125 (HP)

BHAT BRAHMAN KALYAN SAMITI v. STATE OF H. P.

2001-06-29

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body2001
JUDGMENT Lokeshwar Singh Panta, J.—In these three writ petitions filed under Articles 226 and 227 of the Constitution, common questions of fact and law have been raised for decision of this Court. It is, therefore, appropriate to take all the petitions for consideration and decide them by a common judgment. 2. Before adverting to individual petition, it may be necessary to state the facts of CWP No. 905 of 2000 filed by Bhat Brahman Kalyan Samiti, District Sirmaur through its President Shri K.R. Bhardwaj. The petitioner is a Society registered under the Societies Registration Act, 1860. The Society was formed in District Sirmaur with aims and objects stated in para-2 of the writ petition. The petitioner-society stated that in Sirmaur District Bhats who are basically Brahmans, constitute a recognizable caste. They have abandoned the essential religious rite^ of Brahmans and now they are also undertaking agricultural activities which otherwise were not taken by Brahmans in the olden days. There are more than 50 Gotras of Bhats which include Bhardwaj, Sehal, Panwar, Atri, Kashyap, Nagarvedi etc. etc., as reflected in the revenue records marked Annexures P-ll, P-12, P-13, P-14, P-15 and P-16. At different times, different entries were incorporated relating to the caste and Gotras of persons belonging to the Bhat community. At some places the entries are reflected as Bhat alone and at other places these are incorporated as Bhat Brahman or Bhat Brahman Bhardwaj or Bhat-Brahman and appendage of his Gotra. Basically, all such persons belong to caste Bhat and further described by different appendages as per their Gotras. 3. The petitioner also stated that in view of the social status of the caste Bhat in Himachal Pradesh, the State in its wisdom deemed it proper to declare and include the said caste in the category of Other Backward Classes (OBC) as notified from time to time by the State Government. The State Government has given benefit of reservation to OBCs in civil employment, grant of stipends and other concessions. Even in Panchayat Elections, certain Wards at the levels of Gram Panchayat, Panchayat Samiti and Zila Parishad are reserved for the persons belonging to OBC. Similarly, in Education Department also certain benefits are given to OBC candidates. The Education Department issued notification dated 21.11.1996 marked Annexure P-5, whereby free books are to be given to the students from Class 1 to 10 in Government Schools belonging to OBC category. Similarly, in Education Department also certain benefits are given to OBC candidates. The Education Department issued notification dated 21.11.1996 marked Annexure P-5, whereby free books are to be given to the students from Class 1 to 10 in Government Schools belonging to OBC category. The State Government have issued notification dated 4.10.1999 placed on record (Annexure P-6), regarding validity period of two years for Creamy Layer Certificate issued in respect of OBC categories. The notification contemplates that at the time of recruitment, the OBC candidate is required to submit an affidavit stating that his status has not been changed and he is not excluded from the category of OBC on account of being covered under Creamy Layer. The candidates who are declared as OBCs under the various notifications issued by the State (respondent No. 1) are entitled to apply for the civil posts advertised in different Government Departments. The selection shall be through Public Service Commission or Staff Selection Commission or H.P. Subordinate Services Board. Keeping in view the fact that the caste Bhat or Bhata, Darpi was included in the notification (Annexure P-4/2) at serial No. 10 Part-A, the competent authorities of State Government issued t)BC certificates to the candidates who applied for the same belonging to Bhat caste. However, a clarificatory letter dated -6.2:1999 (Annexure P-7) was addressed by the Additional Secretary (Welfare) to the Government of H.P. to the Deputy Commissioner, Sirmaur at Nahan (respondent No. 2) whereby it was pointed out that the caste Bhat-Brahman-Bhardwaj, Bhat-Brahman-Sehal and Bhat-Brahman-Keshav have not been included in the notification of OBC and as such they cannot be issued OBC certificates. In pursuance of the said order dated 6.2.1999, the operation of one OBC certificate No. 3 dated 7.11.1998 issued in favour of one Madan Gopal son of Krishan Dutt resident of village Bagrara, Tehsil Pachhad District Sirmour was suspended by the Additional District Magistrate, Nahan till further orders vide notification Annexure P-8. According to the petitioners belief there are unwritten instructions issued to the subordinate authorities not to issue OBC certificate in favour of such Bhats with whom there is any other appendage other than Brahmin. According to the petitioners belief there are unwritten instructions issued to the subordinate authorities not to issue OBC certificate in favour of such Bhats with whom there is any other appendage other than Brahmin. The effect of letters dated 6.2.1999 and 23.2.1999 (Annexures P-7 and P-8) was that all such candidates who were entitled to OBC certificate by virtue of their caste of Bhat and who were mentioned in the revenue records by different descriptions like Bhat-Brahman or Bhat-Brahman with some appendage of Gotra, were not issued OBC certificates or the certificates already issued were not renewed. Consequently, the net effect of such denial by the concerned authorities was direct attack on the right of consideration of such persons for civil employment under OBC category. Similarly, the non-issuance of OBC certificates or non-renewal thereof also affected such persons for the grant of other benefits which were admissible to other categories where such confusion created by issuance of letter dated 6.2.1999 (Annexure P-7) was not applied. The petitioner submitted that irrespective of appendage Brahman the caste Bhat itself was sufficient to entitle a person to claim OBC certificate and even if such appendage is added the same shall not disentitle him from claiming the OBC certificate. The logical conclusion which can be drawn from said assertion, according to the petitioner is that the subsequent appendage to the main caste cannot alter the main characteristic of the caste Bhat. Even if further appendage in form of Gotras is added to such caste the situation will remain the same and it was primarily on the basis of the caste that the competent authority had issued OBC certificate in favour of Bhats irrespective of appendages added to the main caste in the form of Brahman or the name of their Gotra. 4. The petitioner has placed on record Gazetteer of Sirmaur State, 1934 (Annexure P-9/1) which contained that the caste Bhats are by origin Brahmans and they were by occupation genealogists, and adopted Krewa (widow re-marriage) whereby they had lost their status. Similarly, in Himachal Pradesh Gazetteers, Sirmour, 1969 (Annexure P-9/ 2), it has been stated that though the Bhats call themselves Brahmans yet they have abandoned the essential religious rites of Brahmans and also due to their following the Krewa (widow re-marriage) they are branded as Bhats. Their customs and rites differ much from those of the Brahmans. 5. Similarly, in Himachal Pradesh Gazetteers, Sirmour, 1969 (Annexure P-9/ 2), it has been stated that though the Bhats call themselves Brahmans yet they have abandoned the essential religious rites of Brahmans and also due to their following the Krewa (widow re-marriage) they are branded as Bhats. Their customs and rites differ much from those of the Brahmans. 5. The petitioner contended that to identify the population of OBC throughout the State, a special survey was conducted by the State Government in the year 1995. In the said survey the OBCs existing in particular Panchayat or Block are identified and on the basis of survey, the State Government reserved particular wards of a Gram Panchayat or a Panchayat Samiti or a Zila Parishad for candidates belonging to OBC keeping in view the percentage fixed by the Government for them. In District Sirmour three wards of Zila Parishad namely Sangra, Badripur, Rampur-Bharapur have been reserved for OBCs. As per notification dated 7.11.2000 (Annexure P-10/T) the total population of Sangrah Block is shown as 53,207 and out of this number 5070 are shown belonging to OBC category as per 1995 special survey. All these identified OBC persons are Bhats with appendage Brahman or Brahmans with some Gotra. The petitioner contended that in case the clarification dated 6.2.1999 (Annexure P-7) issued by the Additional Secretary (Welfare) to the Government of Himachal Pradesh is to be accepted, then not even a single person out of 5070 OBCs in Sangrah Block can be issued OBC certificate which would mean that Maina-Ghadel Ward of Sangrah block reserved for OBC consisting of 5070 Bhats none can be issued OBC certificate and no nomination could have been filed by them to contest the election. Further result of letter dated 6.2.1999 (Annexure P-7) is that the special survey of 1995 becomes redundant and consequently, the decision of the State Government to reserve the said Ward also becomes meaningless. Similar is the situation in respect of other blocks in Sirmour District as for example in Shillai Block as mentioned in notification dated 7.11.2000 (Annexure P-10), there is 5130 OBC population as per the special survey of 1995. However, all persons belonging to caste Bhat have also been identified in Revenue Records, with different appendage like Brahmans or with name of Gotra. However, all persons belonging to caste Bhat have also been identified in Revenue Records, with different appendage like Brahmans or with name of Gotra. The petitioner also stated that in the revenue record the main caste is shown as Bhat of the members of the petitioner-society but at times some appendages are appended to their caste. According to the petitioner, now the Bhats with whom appendage in the form of Brahman with further appendage of their Gotra is added, are not being issued OBC certificates or certificates already issued are not being renewed after the period of two years as required under the rules and the effect is that the persons are deprived of their fundamental right of being considered for the civil posts reserved for the OBC category and further to get benefits admissible to OBC category as declared by the State Government from time to time. Further their statutory right to contest election against the seats reserved for OBC candidates is also infringed. The petitioner alleged that the Government has considered a particular caste for the purpose of reservation under OBC category and no distinction has been made in the abovesaid notifications on the basis of Gotras of the persons and even if for argument sake it is taken that the intention of the Government is to confine the benefit of reservation as OBC only to such persons with whom the name of Gotra is not included, in such a situation, such action of the Government becomes irrational and unreasonable and thus in violation of Article 14 of the Constitution of India and the action cannot satisfy the twin test of reasonable classification and also the object sought to be achieved by such classification. The caste Bhat is a homogeneous class and further sub-classification on the basis of nomenclature of Gotras or some other appendage is impermissible. The petitioner further stated that the respondent-State cannot be permitted to implement its decision in piecemeal as in some areas all Bhats are being given OBC certificates irrespective of the appendages added thereto whereas, in other areas the Bhats with appendages of their Gotras are deprived of the benefits flowing from the notifications of the State Government. The petitioner has also given some instances of Gaddi community. The petitioner has also given some instances of Gaddi community. On these premises, the petitioner-society seeks the following reliefs:— (i) that the letter dated 6.2.1999 (Annexure P-7) and order dated 23.2.1999 (Annexure P-8) may be quashed and set aside; (ii) that the respondents may be directed to issue OBC certificate to caste Bhat as per the notifications (Annexures P-4/1 to P-4/9) irrespective of the appendage of words Brahman or name of the Gotra with the caste Bhat*; (iii) that the use of any appendage to the main caste, unless specifically prohibited by the Government, may be declared meaningless for the purpose of counting that caste for benefits under OBC category; (iv) that the respondents may be directed to produce entire records relating to the identification of the caste Bhat as OBC for the perusal of this Honble Court; (v) any other relief deemed fit and proper in the circumstances of the case may also be granted; (vi) costs of the writ petition may also be awarded. CWP No. 663 of 2000 6. This writ petition has been filed by Ms. Santosh Bhardwaj who had applied for admission to B.Ed. (Non-Medical) Course in April, 2000 to the H.P. University, Shimla under OBC category. The University conducted the common entrance examination for Session 2000-2001 for selecting the candidates under reserved and non-reserved seats in different institutions. The entrance test was conducted on 28.5.2000 and the result was declared on 1.7.2000. The petitioner was issued OBC certificate by Sub-Divisional Officer (Civil), Nahan (respondent No. 4) and competed in that category in common entrance examination. The petitioner was directed to appear for counselling on 7.8.2000 before the Chairman Education Department, H.P. University, Shimla. She submitted her OBC certificate to the Admission Committee. The Admission, Committee on 8.8.2000 informed the petitioner that she was entitled to admission under OBC quota and she was directed to report to the Principal B.Ed. College Dharamsala (respondent No. 2) between 10.8.2000 to 14.8.2000. The petitioner reported to respondent No. 2 on 14.8.2000 and she was directed to deposit admission fee which she deposited on the same day and thereafter, she started attending the classes. Respondent No. 2 directed the petitioner to get the OBC certificate renewed as it related to the year 1997. College Dharamsala (respondent No. 2) between 10.8.2000 to 14.8.2000. The petitioner reported to respondent No. 2 on 14.8.2000 and she was directed to deposit admission fee which she deposited on the same day and thereafter, she started attending the classes. Respondent No. 2 directed the petitioner to get the OBC certificate renewed as it related to the year 1997. The petitioner approached respondent No. 4 for renewal of her OBC certificate but respondent No. 4 vide letter dated August 18, 2000 (Annexure P-4) informed her that in view of the letter dated 6.2.1999 issued by the Welfare Department of the Government of H.P., the required OBC certificate could not be issued to her as the category Bhat-Brahmari-Bhardwaj was not included in the OBC category. It appears that the admission of the petitioner was cancelled by respondent No. 2 due to non-production of said certificate and this Court had declined to grant provisional admission to the petitioner in her application seeking interim relief. In this petition, the petitioner has prayed the following reliefs:— (i) that Annexures P-4 and P-5 may be quashed and set aside and the respondent No. 4 may be directed to renew the OBC certificate (Annexure P-l) on the basis of original notification (Annexure P-6); (ii) that respondents 1 and 2 may be restrained from cancelling the admission of the petitioner made in B.Ed. (Non-Medical Course) in respondent No. 2 College till the renewed OBC certificate is issued by respondent No. .4 in accordance with the existing notification (Annexure P-6); (iii) any other relief deemed fit and proper in the circumstances of the case may also be granted; (iv) Costs of the petition may also be awarded. CWP No, 116 of 2001 7. The petitioner applied for recruitment to the post of Trained Graduate Teacher (TGT Non-Medical) to the H.P. Subordinate Selection Board (HPSSB) Hamirpur, under OBC category on the basis of certificate dated 18.9.1996 issued by the competent authority, marked Annexure P-5. After qualifying the Screening Test he was issued interview letter marked Annexure P-6 calling him to appear in the interview fixed for 25.11.20000. After qualifying the Screening Test he was issued interview letter marked Annexure P-6 calling him to appear in the interview fixed for 25.11.20000. He approached the State Administrative Tribunal by way of filing OA No. 3820/2000 wherein interim order dated 24.11.2000 marked Annexure P-7 was passed directing* the Board to interview the petitioner as also directing the competent authority to consider his renewal of OBC certificate within two weeks and renewed certificate was to be produced before the HPSSB within four weeks from the said order. However, the Deputy Commissioner-respondent No. 2 rejected the renewal of OBC certificate vide Annexure P-8 on the basis of the letter dated 6th February, 1999 of Additional Secretary (Welfare) to the Government of H.P. (Annexure P-2). Consequently, the petitioner was not considered by the HPSSB against the OBC category. 8. The petitioner challenged the order of respondent No.2 rejecting the renewal of his OBC certificate on the basis of Annexure P-2, inter alia, on the ground that the original lists of OBCs. have been notified by the State Government after the decision of the Cabinet to include particular category/caste in the list of OBC and letter dated 6.2.1999 (Annexure P-2) written by the Additional Secretary (Welfare) to the Government of H.P. was issued unauthorizedly to undo or to add something to the decision taken by the Cabinet. It appears that the Additional Secretary (Welfare) has interpreted the original notifications of the State Government and his action amounts to rewriting the Cabinet decision. The respondent cannot refuse to issue/renew the certificate of OBC to the petitioner and other Bhat category whether with or without any appendage of Brahman or name of their Gotras. The petitioner has sought the relief of setting aside the letter dated 6.2.1999 (Annexure P-2) and order dated 4.12.2000 (Annexure P-8) of respondent No. 2 as well as directing the respondent to renew/issue of OBC certificate to the petitioner as per the original notifications. 9. Reply to CWP No. 905 of 2000 on behalf of respondent-State has been filed on the affidavit of Sadh Ram Under Secretary (Welfare) to the Government of H.P. In preliminary objections, it is contended that the claim of the petitioner to get OBC certificate is not tenable and the caste Bhat-Brahman is not included in the State list of OBC. Reply to CWP No. 905 of 2000 on behalf of respondent-State has been filed on the affidavit of Sadh Ram Under Secretary (Welfare) to the Government of H.P. In preliminary objections, it is contended that the claim of the petitioner to get OBC certificate is not tenable and the caste Bhat-Brahman is not included in the State list of OBC. On merits, in reply to paras 9 and 10, it is contended that only Bhata whether with or without the appendage of Brahmin are entitled to OBC certificate as per notification dated 24.10.1994 of the State of H.P. (Annexure P-4/3). It is also contended that caste Bhat-Bhardwaj has not been included in the State list of OBCs, so the clarification sought for by the Deputy Commissioner, Sirmaur was given vide letter dated 6.2.1999 clarifying that castes Bhat-Brahman-Bhardwaj, Bhat-Brahman-Sehal and Bhat-Brahmin-Keshav, have not been included in the list of OBC. Bhardwaj is not a part of Bhat-Brahman. The clarification given in the letter dated 6.2.1999 is in consonance with the finding given by the H.P. State Commission for Backward Classes in its meeting held on 4.6.1999 marked Annexure R-l/A. 10. The Deputy Commissioner, Sirmaur (respondent No. 2) in his separate reply has admitted that Bhat-Brahman is a caste in Sirmaur District. The entries of Gotras incorporated in the revenue record are coming from the time of settlement with the consent of the land owners. In para 6 of the reply, it is admitted that certain benefits to the OBC persons are granted by the State Government and some seats were reserved in Panchayati Raj Elections. In reply to para 9 of the petition, it is admitted that Bhat was included in the notification and certificates were issued to the persons who applied for the same and certificate issued to Bhat Bhardwaj had been cancelled after clarification issued by the Government vide letter dated 6.2.1999 and on the basis of the said letter, respondent No. 2 has further issued directions to his subordinates on 16.11.2000. The SDM, Paonta Sahib has cancelled all certificates issued to Bhat-Bhardwaj on 24.11.2000 and OBC certificates issued to Bhat-Brahman by him are not withdrawn. In other two writ petitions identical reply(s) has been filed. 11. The SDM, Paonta Sahib has cancelled all certificates issued to Bhat-Bhardwaj on 24.11.2000 and OBC certificates issued to Bhat-Brahman by him are not withdrawn. In other two writ petitions identical reply(s) has been filed. 11. Pursuant to the order of this Court dated 2.5.2001 supplementary affidavit has been filed by the Commissioner-cum-Secretary (Welfare) to the Government of H.P. It is contended therein that the Government has issued notification No. WLF-F (l)/94 dated 24.10.1994 declaring certain castes/communities/classes as Other Backward Classes. The Deputy Commissioner, Sirmaur vide letter dated 14.1.1999 has sought clarification whether Bhat community which is entered as Bhat-Brahman-Bhardwaj, Bhat-Brahman-Sehal and Bhat-Brahman-Keshav in the revenue records are entitled to get OBC certificates and the Additional Secretary (Welfare) to the Government of H.P. vide letter dated 6.2.1999 has clarified that since the castes mentioned above are not included in the notification dated 24.10.1994, as such, the certificate cannot be issued to such category of persons. It is also stated that respondent No. 2 sent another reference dated 21.4.1999 requesting to reconsider the matter as all Brahmans have appended their Gotras, like Bhardwaj, Keshav and Attri etc. with their names as per revenue records and they all belong to Bhat-Brahman caste/community. The matter was referred to H.P. Commission for Backward Classes for examination vide letter dated 24.5.1999 and in response thereto the Commission vide letter dated 29.6.1999 clarified that only those Bhat-Brahman are entitled to get a certificate who are with or without the appendage Brahman. The Government received representations from the Public regarding inclusion of the category Bhat, Bhata with the appendage Keshav, Bhardwaj, Attri, Kaushik, Vashisht, Kashyap etc. in the OBC category in addition to the appendage Brahman. After examining the matter by the Government, it was decided to refer the matter to the Commission for carrying out, a fresh survey regarding Bhat community especially with regard to the appendages other than Brahman. The report of the Commission is awaited. The directions issued to Deputy Commissioner, Sirmaur regarding clarification qua issuance of OBC certificate to Bhat-Brahman-Bhardwaj, Bhat-Brahman-Sehal and Bhat-Brahman-Keshav have also been sent to all the Deputy Commissioners in Himachal Pradesh on 11.5.2001. It is also stated that in order to ascertain the position regarding issuance of OBC certificate to persons belonging to Bhat communities with suffixes i.e. Bhardwaj, Sehal and Keshav, all the Deputy Commissioners have informed that no OBC certificates have been issued to persons other than Bhat-Brahmans. It is also stated that in order to ascertain the position regarding issuance of OBC certificate to persons belonging to Bhat communities with suffixes i.e. Bhardwaj, Sehal and Keshav, all the Deputy Commissioners have informed that no OBC certificates have been issued to persons other than Bhat-Brahmans. Respondent No. 2 has also informed that no OBC certificate has been issued to the persons Using other appendages than Bhat-Brahman after the clarification has been given by the State Government. The State Commission informed the Government that hearing was given to various representatives of different classes/castes relating to Bhat/Bhata-Brah-man at Haripur Dhar and Rajgarh in District Sirmaur; Indora in Kangra District and Salooni in Chamba District. The Commission intends to conduct some more spot inquiries in which the social, educational and economic status of the community is to be thoroughly examined and their representation in the services, its adequacy and inadequacy has also to be looked into. The concerned revenue record is also being perused. The local officers who have contact with the members of the community are also being examined and deliberations are being held with them. After taking all these proceedings, the Commission will consider the matter on the basis of evidence collected and data available in the Commission. 12. We have heard Mr. Shrawan Dogra, learned Counsel for the petitioners and Mr. K.D. Batish, learned Additional Advocate General for the State and perused the material placed on record. 13. The Government of Himachal Pradesh Welfare Department had issued notification-dated 30th June/2nd July, 1982 (Annexure P-4/1) in supersession of notification of even number dated 28.3.1981 declaring the other Backward Classes in the State of H.P. According to the contents of the notification all residents of Himachal Pradesh whose family income was less than Rs. 5,000 per annum irrespective of the fact as to whichever castes or community or class they belong to and whatever profession they are following have been included in the category of OBC. Besides the above said category, persons belonging to the communities mentioned therein having family income of Rs. 7,500 shall also be considered backward in the State, irrespective of castes professing any religion other than Scheduled Castes/Scheduled Tribes. Besides the above said category, persons belonging to the communities mentioned therein having family income of Rs. 7,500 shall also be considered backward in the State, irrespective of castes professing any religion other than Scheduled Castes/Scheduled Tribes. Thereafter, in supersession of notification dated 30th June/2nd July, 1982, the Governor of H.P. vide notification dated 20.9.1994 (Annexure P-4/2) was pleased to declare certain castes/communities other than Scheduled Castes and Scheduled Tribes professing any religion as Backward Classes in the State of Himachal Pradesh subject to the exclusion on the basis of the "Creamy Layer Criteria" separately evolved throughout the State. Again at serial No. 10 of Part (A) Bhat or Bhata, Darpi, is included in the category of OBC. The categories of class/communities incorporated in the said notification are held entitled to facilities/concessions like: (i) Pre-Matric stipends at Primary, Midcile, Higher Secondary stages; (ii) Interest free loans; and (iii) Reservation in services as determined by the Government from time to time. 14. Now, we propose to consider the import of the notification issued by the State Government on which the entire claim of the petitioners is based. The notification is quoted in extenso : "GOVERNMENT OF HIMACHAL PRADESH DEPARTMENT OF SOCIAL AND WOMEN WELFARE Dated Shimla-2, the 24th October, 1994. No. WIF-F (l)-l/94 NOTIFICATION In supersession of this Department notification of even number dated the 20th September, 1994 the Governor, Himachal Pradesh is pleased to declare the following castes/communities, other than the Scheduled Castes and Scheduled Tribes, professing any religion, as Backward Classes in the State of Himachal Pradesh subject to the exclusion of the basis of the Creamy Layer Criteria specified as per enclosed Annexure-A: Throughout the Pradesh (A) 1. Aheri, Ahori, Heri, Naik, Thori, Turi. 2. Ard pop. 3. Boda. 4. Bahti. 5. Batta, Hansi, or Hosi. 6. Bagria. 7. Batoerha. 8. Baragi, Bairagi. 9. Bharbunha, Bharbhuja. 10. Blink or Bhata. (whether with or without the appendage of Brahman), Darpi. 11. Bhuhalia. 12. Chang. 13. Changar. 14. Chirimar. 15. Dhimar. 16. Dhosali, Dosal. 0 17.v Daiya. 18. Faquir. 19. Ghirath including Chang and Bhati. 20. Ghasi, Ghasiara or Ghosi. 21. Gorkha. 22. Ghai. 23. Gowala, Gwala. 24. Gadaria. 25. Gawaria, Gauria or Gwar. 26. Hajam, Nai. 27. Jhiwar, Dhiwar, Jhinwar, Dhinwar Jheur, Jheer. 28. Keshap, Rajput. 29. Kahar. 30. Kumbar. 31. Kangehro. 32. Kanjarokanchan. 33. Kurmi. 34. Labana. 35. Mahatam. 36. Madari. 37. Mirasi. 38. Mallah. 39. Mehra. 40. Ghirath including Chang and Bhati. 20. Ghasi, Ghasiara or Ghosi. 21. Gorkha. 22. Ghai. 23. Gowala, Gwala. 24. Gadaria. 25. Gawaria, Gauria or Gwar. 26. Hajam, Nai. 27. Jhiwar, Dhiwar, Jhinwar, Dhinwar Jheur, Jheer. 28. Keshap, Rajput. 29. Kahar. 30. Kumbar. 31. Kangehro. 32. Kanjarokanchan. 33. Kurmi. 34. Labana. 35. Mahatam. 36. Madari. 37. Mirasi. 38. Mallah. 39. Mehra. 40. Nai (Kullen Brahman). 41. Naiband. 42. Nar. 43. Pinja, Panja. 44. Roolband. 45. Soi. 46. Tarkhan, Badhai, Ramgarhia, Dhiman (excluding Lohar), Vishwakarama, Thawins. 47. Vanzara. (B) In Merged area only. 1. Keer. 2. Gaddi. 3. Gujjar. 2. The above categories of Class/Communities in Himachal Pradesh will be entitled to various facilities/concessions provided by the State Government to them including:— (I) Pre-Matric stipends at Primary, Middle, Higher Secondary/10+2 stages. (II) Interest free loans and (III) Reservation in services as determined by the Government from time to time. By Order. K. Lall. Commissioner-cum-Secretary (Welfare), Government of Himachal Pradesh." 15. In notification dated 24.7.1996 (Annexure P-4/4) in continuation of notification of even number dated 24th October, 1994 at serial number 30 of Part (A) categories of "Kumhar, Ghumar, Ghumbar" were included and similarly in notification of even number dated 10.12.1996 (Annexure P-4/5) at serial number 43 of Part (A) the words are to be read as Pinja, Panja, Nadaf and Nadaaf". The State Government on 4th March, 1999 issued another notification (Annexure P-4/6) whereunder the Governor of Himachal Pradesh was pleased to add categories i.e. "Bujhru, Dakaut" against entry after serial No. 47 of Part (A). Subsequently, vide notification dated 6.11.1999 (Annexure P-4/7) in addition to the amendments made in notifications dated 27.6.1996, 24.7.1996, 10.12.1996 and 4.3.1999, respectively, the Governor of H.P. was pleased to add the following entries after serial No. 48 and in Sr. Nos. 2 and 42 of the Part (A) of the said notification:— Sr. No. 2 : Ard Pop, Popo Brahman. Sr. No. 42 : Nar (aum). Sr. No. 49 : Sayasi, Gujrati, Vyas. Sr. No. 50 : Pumba. Sr. No. 51 : Maha Brahman, Acharj, Charj, Acharya. Sr. No. 52 : Hadi. 16. Nos. 2 and 42 of the Part (A) of the said notification:— Sr. No. 2 : Ard Pop, Popo Brahman. Sr. No. 42 : Nar (aum). Sr. No. 49 : Sayasi, Gujrati, Vyas. Sr. No. 50 : Pumba. Sr. No. 51 : Maha Brahman, Acharj, Charj, Acharya. Sr. No. 52 : Hadi. 16. From the above notifications, it becomes clear that the State of Himachal Pradesh has been making amendments from time to time in the notifications declaring certain categories as OBCs in the State of H.P and in continuation of the earlier notifications another notification dated 31.1.2000 (Annexure P-4/8) was issued in the name of the Governor adding "Populace living in Malana Revenue village of Kullu, District" at serial No. 53 of Part (A) and "Populace i.e. Bangahalias residing since time immemorial in Chhota Bangal and Bara Bhangal areas of Kangra District" at Serial No. 54. At serial Nos. 49 and 51, respectively, the Governor of Himachal Pradesh vide notification dated 4.2.2000 (Annexure P-4/9) was pleased to add the entries of "traditionally connected with the death rituals" in respect of the categories of "Sayasi", "Gujrati" and "Vyas" (Sr. No. 49) and "connected with the rituals of death and last rites of Hindus" in respect of "Maha Brahman", "Acharj", "Chari", "Acharya" (Sr. No. 51) categories. 17. In notification dated 21.11.1996 (Annexure P-5), the Governor of Himachal Pradesh was pleased to order that all students from Class I to X in Government Schools, in Himachal Pradesh who belong to Other Backward Classes as notified by the Department of Welfare, Government of H.P. from time to time will be provided free text books by the Government on the pattern of Scheme presently operational in respect of Scheduled Caste/Scheduled Tribes students as notified vide notification in Shiksha-ll-(J) 2-1/89, dated 2nd August, 1995. The Commissioner-cum-Secretary (Welfare) to the Government of H.P. addressed a letter dated 4.10.1999 (Annexure P-6) to all the Administrative Secretaries etc., of the State Government on the subject regarding validity period of Creamy Layer Certificate in respect of Other Backward Classes Categories, conveying the decision of the Government that henceforth Creamy Layer Certificates shall be issued for two years for Other Backward Classes category as notified by the Department Notifications No. WLF-F(l)-l/94 dated 24.10.1994, 27.6.1996, 10.12.1996 and 4.3.1999 on the condition that at the time of his/her recruitment the Other Backward Classes candidates shall submit an affidavit, duly attested by the Authority authorized under the Indian Oath Act, verifying that his/her status has not been changed and he/she is not excluded from the category of OBC on account of being governed under Creamy Layer. 18. In this backdrop of the matter, the grievance of the petitioners is against the change made by the Additional Secretary (Welfare) to the Government of H.P. in his letter dated 6.2.1999 (Annexure P-7) addressed to the Deputy Commissioner, Sirmour. The letter reads thus:— "No. WLF-A(3)-2/98 Government of Himachal Pradesh Department of Social and Womens Welfare From The F.C.-cum-Secretary (Welfare) to the Government of Himachal Pradesh. To The Deputy Commissioner, Sirmaur at Nahan, District Sirmaur, Himachal Pradesh. Dated, Shimla-2, the 6th February, 1999. Subject: Regarding issue of Sch. Tribe and OBC Certificates. Sir, I am directed to refer to your letter No. Vividh-10(56)/99-586 and 587 dated 14.1.1999 on the above subject and to say that in Himachal Pradesh, the caste Mussalman Gujjar, has not been included in the notification of Schedule Castes/Schedule Tribes, as such they cannot be issued the Sch. Tribes certificate. In this connection clarification given by the Law Department, Government of Himachal Pradesh is enclosed for your information and future guidance please. Similarly the caste Bhat-Brahmin-Bhardwaj, Bhat-Brahmin-Sehal and Bhat-Brahmin-Keshav have not been included in the notification of Other Backward Classes, as such they cannot also be issued the OBC certificate. Yours faithfully, Sd/- Additional Secretary (Welfare) to the Government of Himachal Pradesh." 19. We have perused the original record of the Department of Social and Women Welfare produced before us by the learned Additional Advocate General. Yours faithfully, Sd/- Additional Secretary (Welfare) to the Government of Himachal Pradesh." 19. We have perused the original record of the Department of Social and Women Welfare produced before us by the learned Additional Advocate General. On examination of the records, we find that in its second report dated 5th September, 1994, submitted by the H.P. State Commission for Backward Classes, constituted by the State of H.P. on directions of the apex Court in Indra Sawhney v. Union of India and others, 1992 Supp (3) Supreme Court Cases 215, the Commission had made suggestions for changes in the existing list of Backward Classes as notified by the State Government from time to time. The changes suggested were as under:— Existing Provision Changes as recommended by the Commission 10. Bhat, Bhata, Darpi 10. Bhat, or Bhatta (whether with or without the appendage Brahman), Darpi 26................................................ 26............................................ 27................................................ 27............................................ 46................................................ 46............................................ 20. It was suggested in the note that entry at serial No. 10 need not be changed as the same entry exists in the Mandal Commission Report regarding Himachal Pradesh. The proposal of the Commission was placed before the higher authorities by the Commissioner-cum-Secretary (Welfare) to the Government of H.P. on 28.9.1994 and finally the matter was placed before the Cabinet Meeting held on 10.10.1994. The proposal was discussed by the Cabinet in its meeting and decision to approve the proposal of the Commission was taken with some stipulations. It appears that on the basis of the acceptance of the interim report of the Commission, by the Cabinet, notification dated 24.10.1994 (Annexure P-4/3) was issued by the State Government. From the above notification, it becomes clear that Bhat or Bhata whether with or without the appendage Brahman is categorized as OBC in the State of Himachal Pradesh. 21. It was argued by the learned Counsel for the petitioners that once the State Government has taken conscious decision to include Bhat caste in OBC category, the Additional Secretary (Welfare) to the Government of H.P, has got no authority to issue the impugned letter dated 6.2.1999 (Annexure P-7), reviewing the action of the State Government without any justifiable reason and it was for the State Government to take policy decision which no doubt can be reviewed or modified by the Competent Authority and not by an administrative decision at the lower level. Since no reason whatsoever has been put forward by the State to make modification in the impugned letter dated 6.2.1999, the impugned letter written to the Deputy Commissioner, Sirmaur District at Nahan deserves to be quashed. We see considerable force in the arguments of the learned Counsel for the petitioners. 22. From the facts and circumstances narrated hereinabove, the core question which arises for determination of this Court is whether letter dated 6.2.1999 (Annexure P-7) issued by the Additional Secretary (Welfare) to the Government of H.P. can be said to be legal, valid and reasonable? The stand of the Government is that the letter dated 6.2.1999 (Annexure P-7) addressed by the Additional Secretary (Welfare) to the Deputy Commissioner, Sirmaur at Nahan was of clarificatory nature to the notification dated 24.10.1994 (Annexure P-4/3) and according to the said clarification castes of Bhat-Brahman-Bhardwaj, Bhat-Brahman-Sehal and Bhat-Brahman-Keshav have not been included in the notification of Other Backward Classes category, as such, the candidates falling in these categories cannot be issued OBCs certificate. We are not impressed by this contention projected by the State Government and pressed into service by the learned Additional Advocate General during hearing of the petitions. Once the State Government had approved and accepted the second report dated 5.9.1994 of the H.P. State Commissioner for Backward Classes, and issued notification dated 24.10.1994 (Annexure P-4/3) in the name of the Governor of H.P. in which Bhat or Bhata, (whether with or without the appendage of Brahman), Darpi, has been included in the category of OBC, the impugned letter dated 6.2.1999 of the Additional Secretary (Welfare) was apparently contrary to the decision of the Cabinet the highest policy decision making authority who had approved and accepted the report of the Commission and the Additional Secretary (Welfare) was not competent nor he had the authority to interpret or to suggest clarification about the category of caste Bhat or Bhata by inserting some words by executive fiat in his impugned letter addressed to Deputy Commissioner, Sirmaur. 23. The petitioners have filed copies of revenue record for the years 1949-50 (Annexure P-ll /T), 1953-54 (Annexure P-15/T), and 1998-99 (Annexure P-13/T) to substantiate their claim that in the said revenue records caste of the persons concerned has been incorporated as Bhat and their Gotra is shown as Brahman/, Bhardwaj or Keshav. 23. The petitioners have filed copies of revenue record for the years 1949-50 (Annexure P-ll /T), 1953-54 (Annexure P-15/T), and 1998-99 (Annexure P-13/T) to substantiate their claim that in the said revenue records caste of the persons concerned has been incorporated as Bhat and their Gotra is shown as Brahman/, Bhardwaj or Keshav. It appears that on the basis of the revenue records maintained by the Revenue Department in District Sirmaur, a clarification was sought by the respondent-Deputy Commissioner from the State Government about the category of Bhat, Brahman, Bhardwaj and Keshav. The Additional Secretary to the Government of H.P. vide impugned letter dated 6.2.1999 (Annexure P-7) appears to have added Gotras-Bhardwaj, Sehal and Keshav to caste Bhat or Bhatta (whether with or without the appendage of Brahman), la notification dated 24.10.1994, (Annexure P-4/3) the State Government has clarified in Part (A) at Sr. No. 10 that caste Bhat or Bhata, (whether with or without the appendage of Brahman) is included in the OBC category and the clarification was given in supersession of notification dated 20.9.1994 (Annexure P-4/2) where in Part (A) at Sr. No. 10 caste of Bhat or Bhata, Darpi was included in the OBCs category. Similar was the position reflected in notification dated 30th June/ 2nd July, 1982 (Annexure P-4/1) which was later on reasserted in the notification dated 20.9.1994 (Annexure P-4/2). Both these notifications appear to have been issued in the name of the Governor in exercise of purported power enshrined under Article 166 of the Constitution. Thus, the action taken by the Additional Secretary (Welfare) to the Government of H.P., is contrary to the earlier notifications of the State Government and it is arbitrary, invalid unreasonable and unsustainable. 24. On consideration of the entire material on record, the logical conclusion which can be drawn is that the subsequent appendage to the main caste cannot alter the main characteristics of caste Bhat and even if further appendage in the form of Gotra is added in the impugned letter dated 6.2.1999 by the Additional Secretary (Welfare), the situation will remain the same so far original caste of the person is concerned. In the facts and circumstances enumerated above, we are of the opinion that the main grievance raised by all the petitioners in these petitions has a substance as the Additional Secretary (Welfare) has acted without authority in violation of earlier notifications dated 20.9.1994 (Annexure P-4/2) and 24.10.1994 (Annexure P-4/3), respectively, issued by the State Government. 25. For the foregoing reasons, all the writ petitions deserve to be allowed and they are accordingly allowed to the extent that the letter dated 6th February, 1999 (Annexure P-7) addressed by the Additional Secretary (Welfare) to the Government of H.P. to the respondent-Deputy Commissioner, Nahan is hereby quashed and set aside. No costs. 26. Before parting with this judgment, we may clarify that the State Government or the H.P. State Commission for Backward Classes who is seized of the matter as per the latest position of survey being conducted by the Commission relating to category Bhat Bhata with appendage Keshav, Bhardwaj, Attri, Kaushik, Vashisht and Kashyap etc., as stated by the Commissioner-cum-Secretary (Welfare) to the Government of H.P. in her supplementary affidavit dated 19.5.2000, is not precluded from taking decision about the inclusion or non-inclusion or exclusion of any category including the categories of the petitioners in OBCs and the representations of the representationists, if any, pending before the Commission or the State Government shall be considered and decided in accordance with law and we are not inclined to interfere with the decision of the State Government involving the policy matter which is entirely within its domain and jurisdiction. Petition allowed.