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2006 DIGILAW 800 (RAJ)

Badanlal v. State of Rajasthan

2006-03-08

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-By instant petition, petitioner is seeking declaration that castes “Rawal” & “Rawal Jogi” are one and the same; and caste “Rawal Jogi” shown in his caste certificate dated 16.07.1976 (Annexire-1) be also declared as member of Scheduled Caste; and based thereon, further seeking appointment on the post of Legal Assistant as he participated in process of selection initiated by Public Service Commission (“PSC”) in the year 1990 against reserved vacancy of Scheduled Caste category . 2. Facts, in brief , are that petitioner is by caste “Rawal Jogi”; on the basis of affidavit furnished by him alongwith report of Tehsildar Alwar duly verified by Sarpanch Gram Panchayat, Bhajit (Alwar), certificate dated 16.07.1976 (Annexure-1) declaring him Scheduled Caste under Rajasthan SC/ST (Amendment) Act, 1956 was issued by Sub Divisional Magistrate, Alwar. On the basis of such caste certificate, petitioner was initially appointed on the post of LDC vide order dated 21.07.1971 and joined service in the Court of Munsif and Judicial Magistrate, Tijara on 27.07.1991. While working as LDC, he applied for post of Legal Assistant advertised by PSC and participation in process of selection, and qualified written examination but before called for interview against vacancy reserved post for S.C., he was called by PSC vide letter dated 010.1991 (Annexure-3) to explain that his caste “Rawal Jogi” is not included in the Schedule to Government notification which has notified “Rawal” as Scheduled Caste and not his caste “Rawal Jogi” . 3. Petitioner submitted his explanation dated 010.1991 (Annexure-4) against letter (Annexure-3) and stated inter-alia that he belongs to scheduled caste “Rawal” and “Jogi” is its sub-caste and certificate (Annexure-1) was issued by competent authority wherein sub caste “Jogi” has been suffixed to scheduled caste “Rawal”. But at that point of time, matter could not be finally resolved, he was provisionally permitted to appear in the interview vide letter dated 210.1991 (Annexure-6) and was declared successful but it was shown to be provisional. Thereafter he was again called upon vide letter dated 30.10.1991 (Annexure-8) to submit original certificate, which he submitted alongwith his letter (Annexure-9). But before the PSC could finally decide the same, petitioner preferred this petition. 4. Thereafter he was again called upon vide letter dated 30.10.1991 (Annexure-8) to submit original certificate, which he submitted alongwith his letter (Annexure-9). But before the PSC could finally decide the same, petitioner preferred this petition. 4. Vide interim order dated 24.02.1992, this Court directed respondent to consider case of petitioner for appointment on the post of Legal Assistant as per his merit assigned in select list - as a consequence whereof , petitioner was appointed treating him to be Scheduled Caste against reserved vacancy of SC vide order dated 01.05.1993. It has been informed by petitioner that he has further been promoted as Head Legal Assistant on 20.07.1998. 5. Shri V.L. Mathur Counsel for petitioner contends that once certificate has been issued to petitioner of being member of Scheduled Caste by the authority competent on 16.07.1976, unless rescinded in accordance with law, the respondents are under obligation to treat him a member of Scheduled Caste in terms of certificate (Annexure-1) - in the absence whereof , action taken contrarily to decision of the authority in depriving him from appointment on the basis of caste certificate in his favour will be an arbitrary act of respondents and violative of Art. 14 of the Constitution . 6. Shri Mathur contends that caste “Rawal” and “Rawal Jogi” is one and the same and as a matter of fact, “Jogi” is sub caste to “Rawal” and merely petitioner has suffixed sub-caste “Jogi” alongwith “Rawal”, that will not eliminate him from being considered to be member of Scheduled Caste “Rawal” in terms of notification issued by the authority; and certificate (Annexure-1) was issued to him after due verification and inquiry in accordance with requirement under law; and he initially joined service as member of Scheduled Caste “Rawal” in 1971 as LDC and also submitted his application for the post of Legal Assistant against reserved vacancy and was permitted to participate by respondent; as such inquiry proposed by the PSC is beyond authority and competence and deserves to be set aside. 7. Counsel further contends that neither certificate has been rescinded by authority and there is no finding contrarily available on record which may show that certificate issued by authority is fake or forged - in the absence whereof , respondents were not justified in not treating him as member of Scheduled Caste for the purpose of employment. 8. 7. Counsel further contends that neither certificate has been rescinded by authority and there is no finding contrarily available on record which may show that certificate issued by authority is fake or forged - in the absence whereof , respondents were not justified in not treating him as member of Scheduled Caste for the purpose of employment. 8. Respondents in their reply inter-alia averred that as per list published by Union of India, only “Rawal” caste is scheduled at S. No. 50 and there is no caste “Rawal Jogi” enlisted in notification published by Union of India and that apart, as per list, denotified tribes, nomedic tribes and semi nomedic tribes are approved by Government in Social Welfare Department vide order dated 24.02.1964 wherein only Jogi Kalbelia and Jogi Kanphata are included in the category of Nomedic tribes at S. Nos. 6 & 7; but there is no caste by name of “Rawal Jogi ” in list (Annexure-R/1) . It has further been averred that from a bare perusal of certificate, he has been shown to be “Rawal Jogi” and indisputably, there is no such caste “Rawal Jogi” included in list of Scheduled Caste (Annexure-R/1) and the very premise on which certificate issued by an authority seems to be contrary to notification issued by Union of India. 9. The PSC has also filed separate reply reiterating almost submission made by co-respondent State. However, it has additionally been averred that since petitioner failed to satisfy despite explanation asked for of he being “Rawal Jogi” not included in the list of Scheduled Caste under Government notification (Annexure-R/1) - in absence whereof he was not considered suitable for appointment on the post of Legal Assistant against reserved vacancy and his name does not find place in select list of general category . 10. Pendente writ petition when this controversy arose as to whether he is by caste “Rawal Jogi” or “Jogi” and to which caste of community he belongs, this Court passed a detailed order on 24.02.1997 while considering 2nd stay petition No. 720/97, with the direction to District Collector to inquire into and submit report:- “Whether “Rawal Jogi” is a Scheduled Caste/Tribe within the ambit of notification, issued by State Government vide Annexure-5? “Whether “Rawal” and “Rawal Jogi” is one and the same caste or two different castes ? “Whether “Rawal” and “Rawal Jogi” is one and the same caste or two different castes ? & Whether they are covered by any notification of State Government of Rajasthan as a scheduled caste for benefit of reservation? But in fact no action was taken pursuant to order dated 24.02.1997 and when matter came before this Court for final hearing on 10.08.2004, this Court directed to submit report within two weeks and again no final result has come out, vide further detailed order dated 16.02.2005 in order to resolve the controversy, it was directed to find out as to community/caste of petitioner to which he belongs taking into consideration certificate dated 16.07.1976 (Annexure-1). Pursuant to order dated 16.02.2005, matter was inquired into by Collector, Alwar, before whom opportunity was afforded to petitioner as well and after taking note of material, he sent his report dated 23.05.2005 to this Court wherein he finally opined that petitioner is by caste Jogi and as per notification issued by State Govt. dated 06.08.1994, his caste “Jogi” comes within category of Other Backward Class (OBC). 11. Report of Collector and other material were also made available to petitioner and after going through report as also other material, when explanation was asked for, Shri V.L. Mathur, Counsel for petitioner only contends that certificate issued to him (Annexure-1) still has not been revoked by any authority and that apart, explanation of petitioner was not taken into consideration while submitting report (Supra), in the absence of which it cannot be looked into as it may cause prejudice his right of consideration for seeking appointment as member of Scheduled Caste. In support of his contention, Shri Mathur placed reliance on the decisions in A. Manmohan vs. Secy. Govt. of India, 1998 LabIC 66, Punjab National Bank vs. Surendra Nath, 2001 (1) WLC 352 (Raj); Yatish Kumar vs. State, 1988 (1) RLR 42, and unreported Judgment s of this Court in Election Petition No. 03/1980 Sampat vs. Babulal Bairwa (decided on 211.1983) and Dineshchandra vs. State (D.B. Civil Writ Petition No.1737/80) decided on 09.03.1989. 12. No assistance was provided on behalf of Government. However I must appreciate that Shri S.N. Kumawat Counsel for the PSC has endeavored to provide assistance to the Court despite that it was for the State Government to explain and resolve the issue involved herein. 13. 12. No assistance was provided on behalf of Government. However I must appreciate that Shri S.N. Kumawat Counsel for the PSC has endeavored to provide assistance to the Court despite that it was for the State Government to explain and resolve the issue involved herein. 13. Shri S.N. Kumawat Counsel for PSC submits that despite opportunity afforded, petitioner failed to satisfy the basis of the being member of Scheduled Caste owing to his caste “Rawal Jogi”, which is indeed not notified by State Government in its notification - in absence whereof , how far he is entitled to claim himself as member of Scheduled Caste. Shri Kumawat further submits that certificate issued to him was merely based on affidavits which he furnished, whereon no inquiry was undertaken by authority while issuing certificate (Annexure-1) and when this fact came to the notice of the PSC that there was no such caste “Rawal Jogi” enlisted/notified as Scheduled Caste, no error was committed in asking for his explanation before finalisation of his selection for appointment in question; and so far as inclusion or exclusion of caste “Rawal Jogi” in notification, it is purely within domain of the authority and this Court cannot usurp jurisdiction of it by substitution of caste enlisted in notification issued by the Government, in exercise of power of judicial review by this Court. In support of his contention, Shri Kumawat placed reliance upon decision of Apex Court in Nityanand Sharma vs. State of Bihar, 1996 (3) SCC 576 . 14. Shri Kumawat further urged that once independent inquiry has been entertained by Collector, Alwar who was the authority competent in issuing certificate in 1976 (Annexure-1) and after detailed inquiry while affording due opportunity of hearing to him, as well, he too has opined in his report submitted pursuant to direction of this Court that petitioner is by caste “Jogi”, which as per notification of Government dated 06.08.1994 falls within the category of OBC, this Court should refrain from acting as Court of appeal by re-appreciating facts considered and finally recorded by Collector, and to scrutinize the same unless what has been recorded by Collector in his report is either factually incorrect or is not supported by material on record and in the absence whereof , what has been recorded by Collector in his report has to be considered for the purpose of determining caste of petitioner. In support of his contention, Shri Kumawat relied upon decision in S. Nagarajan vs. District Collector Salem, 1997 (2) SCC 571 and Lillykutty vs. Scrutiny Committee, SC/ST, JT 2005 (12) SC 569. 15. I have considered rival contentions of the parties and with their assistance, examined material on record. This fact remained undisputed that petitioner is by caste “Rawal Jogi”; and as per list punished by Union of India, only “Rawal” is Scheduled Caste; and so far as “Jogi” caste is concerned it is included in list of OBC notified by State Govt. in its notification dated 06.08.1994 as referred to by Collector, Alwar in his report dated 23.05.2005 submitted pursuant to direction of this Court. There is no such caste like “Rawal Jogi” included in the list of Scheduled Castes and the certificate (Annexure-1) dated 16.07.1976 issued by SDM based on affidavit furnished by petitioner, himself , only specified that petitioner is by caste “Rawal Jogi” and he has been certified to be member of Scheduled Caste. Undeniably when there is no such caste like “Rawal Jogi” included in the list of Scheduled Castes under notification of Union of India, what has been observed in certificate (Annexure-1) issued to petitioner apparently on the face of record does not hold good to support his claim to be member of Scheduled Caste. 16. Undeniably when there is no such caste like “Rawal Jogi” included in the list of Scheduled Castes under notification of Union of India, what has been observed in certificate (Annexure-1) issued to petitioner apparently on the face of record does not hold good to support his claim to be member of Scheduled Caste. 16. Main thrust of Counsel for petitioner that once certificate has been issued to petitioner by competent authority certifying him as member of Scheduled Caste, in the absence of it being rescinded or revoked by due process of law at the instance of competent authority, petitioner has right to continue as member of Scheduled Caste, in my opinion, has no substance for the reason that pendente writ petition also, in order to resolve controversy, Collector Alwar who is competent authority for issuing caste certificate, conducted independent inquiry during which petitioner was also afforded opportunity of being heard in support of his claim pursuant to direction of this Court (Supra), and petitioner was called upon by the Collector to explain and submit if any member of his family of relative has ever been issued caste certificate of being member of Scheduled Caste or any member of their families, relatives including brothers have ever got married in families of Scheduled Caste or to any of them, and to which, petitioner came out with an excuse that he has no knowledge about it and apart from it in course of inquiry, it was further observed that in revenue record, petitioner has been shown to be by caste “Jogi” and no certificate of Scheduled Caste has ever been issued to any member of his family; and thus the Collector in his report observed that petitioner is by caste “Jogi” and as per notification dated 06.08.1994 falls in the category of OBC. What has been recorded by the Collector in his report is duly supported by “Parcha Mauka” (site inspection report), the inquiry made at the site duly signed by residents of his village and so also cross-examination by petitioner. What has been recorded by the Collector in his report is duly supported by “Parcha Mauka” (site inspection report), the inquiry made at the site duly signed by residents of his village and so also cross-examination by petitioner. Hence, I find that what has been stated in certificate (Annexure-1) which was based on affidavits furnished by petitioner and not after independent inquiry by the authority at the time of issuing it, and even in course of arguments, Counsel has not disputed this factual aspect which has been recorded by Collector in his report; as such in my opinion in absence of any contrary material placed by petitioner on record, certificate on the basis of which he has proceeded in treating himself to be a member of Scheduled Caste despite the fact that “Rawal Jogi” is not enlisted in either of notification of Scheduled Caste/Other Backward Caste issued by authority will not be of any assistance to him in treating him to be member of Scheduled Caste. 17. Judgment , on which Shri Mathur placed reliance in my opinion are of no assistance. A. Manmohan vs. Secy. Ministry of Shipping (Supra), Punjab National Bank vs. Surendra Nath (Supra), and unreported Judgment s of this Court in Dineshchandra vs. State (Supra) are the cases where caste certificate was issued by competent authority and inquiry was made by department on its own and in course of departmental inquiry, finding was recorded that caste certificate furnished by incumbent is fabricated or false; and question considered by the Court was that once certificate was issued by competent authority and accepted by appointing authority, can still be made subject matter of disciplinary proceedings for the purpose of veracity of such caste certificate and can disciplinary proceedings on the basis of such certificate be initiated against delinquent. While in instant case it was not the departmental inquiry initiated against him but it was the competent authority, himself , which afforded adequate opportunity of hearing to petitioner and took note of material made available at the site and so also explanation besides cross-examination made by petitioner, and thereafter the authority (Collector) made observation in his report; and this fact cannot be ignored that Collector Alwar was even otherwise authorise to issue caste certificate to incumbent; and who alone submitted his report after inquiry into matter. 18. 18. As regards Judgment in Yatish Kumar vs. State (Supra), and unreported Judgment of this Court in Election Petition No. 03/1980 Sampat vs. Babulal Bairwa (Supra), on the basis of material on record and evidence led by parties in election petition, finding was recorded by this Court. There is no such contrary material placed by petitioner in instant petition which may at all substantiate that being by caste “Rawal Jogi”, he can claim himself to be member of Scheduled Caste category as per notification of the Union of India. 19. Further submission made by Shri Mathur that in absence of certificate being rescinded or revoked in due process of law, the authority is under obligation to treat him as member of Scheduled Caste, in my opinion, does not hold good after the report has been furnished by Collector, Alwar under orders of this Court where adequate opportunity of hearing was afforded to petitioner in course of detailed inquiry in accordance with law. Further I find support from submission of respondents Counsel that once report has been furnished and material on which Collector has recorded finding, which has not been controverted by petitioner, this Court should not sit over as Court of appeal with a view to reappreciate entire material of the report of Collector, as held by Apex Court in S. Nagarajan vs. District Collector Salem (Supra) as under : “.. The High Court is not a Court of appeal to appreciate the evidence. The Collector after detailed consideration of the evidence placed by petitioner, has concluded that the appellant is not member of Scheduled Tribe (Kondereddi).” “It is obvious that the Constitution intended to give benefit of social and economic advancement and empowerment and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16, & 14 of the Constitution and that, therefore, only the persons who are members of Scheduled Tribes and Scheduled Castes alone are entitled to the benefit. By interpolation of the documents, none can get a particular social status unless it is recognized as per the Presidential Notification/order under Articles 341 or 342, to avail of the benefit of reservation made in that behalf . By interpolation of the documents, none can get a particular social status unless it is recognized as per the Presidential Notification/order under Articles 341 or 342, to avail of the benefit of reservation made in that behalf . The High Court was, therefore, correct in accepting the conclusion reached by the Collector that the appellant had not established his status as Scheduled Tribe.” It has recently been considered by Apex Court in Lillikutty vs. Scrutiny Committee SC/ST (Supra). It was also a case where under direction of the Court, committee constituted under Kerala (SC/ST) Regulations of Issue of Community Certificate Act, 1996, to consider case of appellant therein on the basis of material and to pass final order with regard to his caste; and Scrutiny Committee after affording opportunity recorded a finding that appellant failed to substantiate claim that he belonged to Scheduled Caste and against which matter came before Apex Court, which after examining material on record and so also report of Scrutiny Committee finally observed as under: “28. Since, we are of the view that the findings recorded by the Scrutiny Committee and confirmed by the High Court cannot be said to be contrary to law or based on no evidence or otherwise objectionable, the grievance of the appellant is ill-founded and no relief can be granted to her.” 20. That apart, in Nityanand Sharma vs. State of Bihar (Supra), Apex Court also held:-“15. It is for parliament to amend the law and the schedule and include in and exclude from the schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the tribes specified in the order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, “Scheduled Tribes” defined under Article 366(25) as substituted under the Act, and the second schedule thereunder are conclusive. The Court has no power to declare synonyms as equivalent to the tribes specified in the order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, “Scheduled Tribes” defined under Article 366(25) as substituted under the Act, and the second schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribes, was, in fact, included in the schedule concerned, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.” (emphasis added) 21. In view of what has been observed by Apex Court (supra), inevitable conclusion in instant case is that once scrutiny has been made in detail by Collector, Alwar under direction of this Court where adequate opportunity was afforded to petitioner to substantiate his claim and declaration of his caste “Rawal Jogi” being included in Scheduled Caste category or synonyms thereto, but he failed to do so, and in such fact situation, in my opinion report and conclusion drawn by Collector is not open to further scrutiny for judicial review under fettered and restricted scope of jurisdiction under Article 226 of Constitution of India and more so, when the finding recorded by the Collector is duly supported by material on record, in my opinion, as observed by Apex Court (supra), this Court atleast is devoid of power to substitute or declare caste “Rawal Jogi” as good as that of “Rawal” so as to include it in the list of Scheduled Caste notified by Union of India. 22. Consequently, I find no force in any of submissions urged on behalf of petitioner . Accordingly, this writ petition fails and is hereby dismissed. No costs. 23. 22. Consequently, I find no force in any of submissions urged on behalf of petitioner . Accordingly, this writ petition fails and is hereby dismissed. No costs. 23. However, before parting with Judgment , I must observe that in fact petitioner has not concealed or misrepresented to the authority at any stage throughout either at the time of issuing certificate (Annexure-1) or subsequent thereto and he has declared himself by caste “Rawal Jogi” which too has been recorded in caste certificate (Annexure-1) by SDM, Alwar and since he has been appointed as Legal Assistant, may be under interim order of this Court, his appointment made pursuant thereto, shall not be disturbed but, petitioner will not be entitled to get any further benefit in future on the basis of caste certificate (Annexure-1) for any other purpose under any law. 24. 2nd Stay petition No. 720/97 also stands disposed of .