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Himachal Pradesh High Court · body

2001 DIGILAW 20 (HP)

BELI RAM v. STATE OF HP

2001-01-12

AVTAR SINGH, NARINDER SINGH THAKUR

body2001
JUDGMENT Narinder Thakur, Member (J)The present OA has been filed by the applicant for the following main reliefs:- (i) That the promotion order dated 6-2-1988, Annexure-p-3, passed by the District Primary Education Officer qua Shri Balvir Singh be quashed and the respondents {>e directed to make promotion in the Schedule Tribe quota in accordance with the law. (ii) That if the petitioner is found eligible to be promoted in the Scheduled Tribe quota he may be ordered to be promoted from the date on which Shri Balvir Singh was illegally promoted and granted all consequential benefits from the date. 2. The facts as stated in the OA are that the applicant was appointed as JBT Teacher on 1st December, 1985, as shown in the final seniority list issued on 17.3.1987. The applicant belongs to Bodh Community which is a Scheduled Tribe. Both the parents of the applicant are Scheduled Tribe. It is further stated that respondents No. 4, who is a retired Centre Head Teacher- as promoted on 6.2.1988 vide Annexure- P/3 and the same promotion has been challenged by the applicant in the present OA as being wrong and illegal, as the father of respondent No. 4 is alleged to be non-scheduled tribe and belonged to District Gurdaspur in Punjab. 3. It is also stated in the OA that the father of the respondent No.4, who was already married at his native place at Gurdaspur, was posted as a Doctor at Keylong in District Lahul Spiti in H.P. and during the course of his posting at Keylong he married another tribal women there and respondent No.4 is alleged to be born of this second marriage. 4. The applicant has also placed on record instructions dated 4/5 November, 1986 (Annexure- P/4) of the Govt. with regard to the status of a child born out of the wedlock of inter-caste marriages. As per these instructions, the status of the child will be determined on the basis of status of his/her father. 5. The applicant brought this fact to the notice of B.P.O. Kullu and the Secretary Education through a representation dated 11.3.1987 and 11.3.1988. As per the applicant respondent No.4 can not be treated as a scheduled tribe in view of these instructions. 6. 5. The applicant brought this fact to the notice of B.P.O. Kullu and the Secretary Education through a representation dated 11.3.1987 and 11.3.1988. As per the applicant respondent No.4 can not be treated as a scheduled tribe in view of these instructions. 6. On the other hand, the respondents state as well as respondent No. 4 have filed replies and have categorically stated that through the applicant has challenged the promotion of respondent No.4, but the applicant has annexed no document which invalidates the certificate issued by competent authority in respect of respondent No.4 being a member of Scheduled Tribe. The authorities concerned has relied upon the document as genuine being issued by the competent authority to issue such certificate. In other words, the applicant has not challenged the certificate showing the respondent No. 4 as Scheduled Tribe, as such he cannot validately maintain the present OA to challenge the promotion of respondent No.4. In any event, it was for the competent authority to see and examine the requisite conditions concerning issuance of certificate of Scheduled Tribe to the respondent No.4. 7. The certificate so issued has also been placed on record by the respondents alongwith their reply. The said certificate has been issued on 27.3.1980. 8. Respondent No.4 has also taken preliminary objection of limitation. It is stated in the reply that the respondent No.4 has been coming to be shown as senior to the applicant not only in the final seniority list as stood on 17-3-1987 put in the earlier seniority lists such as the one as circulated on 19.6.1986 and even prior to that also. 9. It has also been brought out clearly in the reply that the father of respondent No.4 was posted in Keylong some times in 1928 and the mother of respondent No.4 was also posted as Nurse there. The mother of the replying respondent No.4 was native of the Keylong and belongs to be Bodh Sect/ Community, which is a scheduled tribe. The said marriage between father and the mother of the respondent No. 4 was initiated in Bodh religion by the renowned scholar, Philosopher, Traveller, Rahul, Sanskritayan, who will quite late year was in contract with Dr. Bhagwan Singh, i.e. the father of respondent No.4. The said marriage between father and the mother of the respondent No. 4 was initiated in Bodh religion by the renowned scholar, Philosopher, Traveller, Rahul, Sanskritayan, who will quite late year was in contract with Dr. Bhagwan Singh, i.e. the father of respondent No.4. it has also stated that the marriage between the parents of respondent No.4 was performed in accordance with the customs prevailing amongst Bodh Community of the area from time immemorial and having acquired the force of law as both of the contracting parties to the marriage being Bodh. The father of the applicant was known as Bhagwan Singh Bodh till his death in the year 1970. Out of this marriage the respondents as well as two younger brothers and two sisters were born and the parents of the respondents continued to be posted at Keylong till 1938 and during this all period both the parents of respondent No.4 were recognise in the community as Bodh. 10. However, somewhere in the year 1938-1939 due to differences between the parents of the respondent No.4 a marriage was broken by way of customary divorce prevalent in the community. Thereafter all the children were brought up by the mother of respondent No.4 as Bodh at Keylong and were accepted by the community as such. It is also submitted neither the mother nor the children have inherited any property from late Shri Bhagwan Singh Bodh. 11. We have heard the learned counsel for the respective parties and have perused the record. The limited question for our determination is that whether this tribunal can grant the relief as claimed by the applicant in the absence of any challenge being put to the validity of the certificate issued by competent authority. 12. This contention of the Respondent has been supported by the case law cited by learned counsel for respondent No.4 1988 Vol-II Service Law Journal page-600 V. Bagavathy vs. District Collector and others wherein it has been observed in para-9 of this judgement:- 13. The decision in S.P. Sakthidevi vs. The Collector of Salem and others (supra) referred to above and relied on by the applicant clearly supports the applicants above stand. The following general directions have been give by a Division Bench of the Madras High Court for the guidance of all Courts and authorities:- “1. The decision in S.P. Sakthidevi vs. The Collector of Salem and others (supra) referred to above and relied on by the applicant clearly supports the applicants above stand. The following general directions have been give by a Division Bench of the Madras High Court for the guidance of all Courts and authorities:- “1. A Caste/ Community certificate issued by an empowered public authority under seal continues to be a valid document till it is cancelled by the said authority or by his superior authority, 2. Their contents are to be treated as correct and every public authority/undertakings, bodies, institutions, etc., which are bound by instructions relating to such certificates, are bound to act upon them, so long as they are not cancelled. 3. In no disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to the department or employer or organisation to ask the issuing authority or District Collector, as the case may be, to verify whether the certificate as issued could be still valid, on materials which have since come to theft1 knowledge. They can appear in the verification enquiry and place the materials. 4. If the certificate is cancelled, then disciplinary proceedings can be initiated for having furnished false information. 5. Appointing authorities have the right to verify the genuineness of the certificates by approaching the District Magistrate-Collector of the District or such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further harassed to prove his caste/ community in any other manner. 6. In causing verification, the Collector is bound to follow the procedure laid down in letter dated 7th July, 1983 of Government of Tamil Nadu. 7. In view of what is stated in Chapter 19 of Brochure on Reservation for Scheduled Castes and Scheduled Tribes, in Services, 6th edition (1982), the instructions issued by the Central Government from time to time relating to Scheduled Castes certificates are binding upon public sector undertakings, statutory and semi-government bodies and voluntary agencies receiving grant-in-aid from the Central Government, as provided therein." The said decision was rendered in more or less similar circumstances. There it was clearly held that so long as a certificate issued by a competent public authority continues to be a valid document, till it is set aside, the same is to acted upon and it is only when the certificate is cancelled by a competent authority it will cease to have any effect." 13. In our considered opinion the applicant cannot maintain the present OA without putting challenge to the certificate before the competent authority. The certificate has been issued by the competent authority and it is well settled law that there is a presumption of truth attached to its being valid until and as long as same has been challenged and quashed by the competent authority. 14. The Honble Apex Court (1997) 4 Supreme Court Cases 340 titled as Ganesh Son of Gulabraosuroshe Vs. State of Maharashtra, has upheld the Judgement of High Court of Bombay, Nagpur Bench whereby the Honble High Court has observed as under:- “This court can not examine the material on record as a appellate authority. If the conclusion reached by the committee is possible on the basis of the material on record, then this court cannot interfere with order of the Scrutiny Committee in exercise of the extra Ordinary jurisdiction under article 226 of the constitution of India. Accordingly it was dismissed." 15. On the other hand, we have perused the certificate which has been issued as far back as in 1980. The learned counsel for the applicant Mr. Khanna, for the applicant is relying on the instruction which has been issued on 4-5 November, 1986. These instructions have prospective effect and therefore, these instructions have no effect on the certificates issued as far back as on 27.3.1980. The learned counsel for the applicant has relied on a case law decided by the Apex Court in re: R. Kandasamy Vs. Chief Engineer Madras Port Trust (1997) 7 SCC page 505, which is reproduced as under:- "6 In our opinion the community certificate issued to a schedule tribe candidate by a Tehsildar prior to 11-11-1989 is good and valid community certificate for all purposes so long as such certificate is not cancelled. The authorities cannot decline to take that into consideration and insist upon a fresh certificate from the Divisional Officer." 16. In the instant case this is admitted position that this certificate issued to respondent No.4 has not been cancelled. 17. The authorities cannot decline to take that into consideration and insist upon a fresh certificate from the Divisional Officer." 16. In the instant case this is admitted position that this certificate issued to respondent No.4 has not been cancelled. 17. In view of the above discussion and observations we see no infirmity in the impugned action of respondent department. The OA is therefore, dismissed with no order as costs.