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2008 DIGILAW 2148 (ALL)

KRIPAL SINGH v. STATE OF UTTAR PRADESH

2008-10-20

A.P.SAHI, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—The petitioner aggrieved by the order dated 28.7.2005 passed by the Tehsildar Nagina, district-Bijnor, (Annexure-10 to the writ petition), has prayed for quashing of the same. The order impugned cancels the Caste Certificate issued to the petitioner on 27.1.2004. 2. The petitioner was issued a caste certificate on 27.1.2004; copy whereof is Annexure-8 to the writ petition, wherein the petitioner was indicated to be of “Dhangar” caste which is included as a Scheduled Caste at Item No. 27 of The Constitution (Scheduled Castes) Order, 1950; a copy of the said Notification of 1950 is Annexure-1 to the writ petition. Such Certificates were being issued in the district of Bijnor and a complaint was made on 27.3.2004 by an organisation of Scheduled Castes, titled as “Vishwa Dalit Parishad”, stating therein that such Certificates are illegally being issued inasmuch as the persons, who have been issued such Certificates, belong to the caste of Gaderiya/Gareria, who are not Scheduled Caste and who are categorized under the Other Backward Category by the State Government. This complaint was moved through one Bhupendra Pal Singh and an inquiry on the strength of such complaint was set into motion. The said inquiry was entrusted to Naib Tehsildar-Nagina, who submitted a detailed report on 31.3.2004; a copy of the said complaint and the report aforesaid are Annexures-1 and 2 to the counter-affidavit filed on behalf of the State. The inquiry pertaining to the petitioner’s certificate was also simultaneously made and the petitioner was put to notice on 6.1.2005 to which the petitioner filed a reply on 5.2.2005; the reply submitted by the petitioner is Annexure-9 to the writ petition. The impugned order was passed thereafter. 3. We have heard Sri N.C. Gupta for the petitioner and Sri Neeraj Upadhyay, learned Standing Counsel, for the respondents. 4. Affidavits have been exchanged between the parties which have been perused by us. 5. Learned counsel for the petitioner urged that the order impugned is erroneous in law inasmuch as “Dhangar” is a sub-caste of “Gaderiya” and, therefore, the petitioner was rightly issued a Certificate and further the evidence filed by him along with his reply dated 5.2.2005 has not been considered as a result whereof the order impugned is liable to be set aside. It is contended that 26 items of evidence were detailed in the reply including a large number of documents which have not been considered and the petitioner has been non-suited only on the ground that the petitioner’s wife Pushpa Devi had been issued a Caste Certificate of OBC on 16.7.2003 and the petitioner’s real brother was also issued a caste certificate indicating the caste as Gaderiya which is an OBC. It is urged that as against the aforesaid 2 documents, the petitioner had filed a large number of documents along with his reply as referred to therein which have neither been discussed nor any finding recorded in respect thereof hence the impugned order be quashed. 6. Sri Gupta further relied on 2 commentaries, namely “The Tribes and Castes of the Central Provinces of India” by R.V. Russell and Hira Lal and “The Tribes and Castes of the North Western India” by W. Crooke, to urge that Dhangar is a sub-caste of Gaderiya which is also a Scheduled Caste and, therefore, the inquiry which was made by the Naib Tehsildar was not correct, inasmuch as the same does not include any consideration as to whether Dhangar is sub-caste of Gaderiya or not; and further the order impugned also suffers from the same vice. 7. Learned Standing Counsel, on the other hand, invited the attention of the Court to the counter-affidavit and urged that upon receipt of the complaint, a report was called for and the entire reports indicate that not only the petitioner but other persons, who had been issued Caste Certificate, belong to Gaderiya Caste which is notified as a backward caste under a State notification. On detailed inquiry, it was found that the petitioner and his family members belong to Gaderiya caste, as such, he was incorrectly granted the Certificate of Dhangar treating him to be scheduled caste. Sri Upadhyay, learned Standing Counsel, urged that under the Notification of the Central Government, it is only “Dhangar”, which is recognized as a Scheduled caste and since the petitioner was not a Dhangar and was a Gaderiya, therefore, he was not entitled for the Certificate issued earlier in 2004. Sri Upadhyay, learned Standing Counsel, urged that under the Notification of the Central Government, it is only “Dhangar”, which is recognized as a Scheduled caste and since the petitioner was not a Dhangar and was a Gaderiya, therefore, he was not entitled for the Certificate issued earlier in 2004. It was urged that the order impugned does not call for any interference as it was founded on the basis of facts collected during inquiry and in case the petitioner is aggrieved, he has to seek an appropriate declaration about the status of his caste. 8. Sri N.C. Gupta in rejoinder has reiterated his submissions and has urged that non-consideration of relevant material as relied upon by the petitioner in his reply, renders the order impugned invalid. 9. We have considered the rival submissions of the parties and it is relevant to mention that this Court cannot enter into the question as to whether the caste of “Dhangar” is a sub-caste of “Gaderiya” or not. Further it will also not be possible for this Court to draw any inference that “Gaderiya” would also be treated to be included as a Scheduled Caste in the Presidential Order. This issue is by now well settled by a decision of the Constitution Bench in the case of State of Maharashtra v. Milind and others, (2001) 1 SCC 4 . It has been categorically held that the High Court in its supervisory jurisdiction cannot re-examine the material and reach a different conclusion for considering the equivalence of a sub-caste to the main caste. Accordingly, this Court cannot go into the said question and, therefore, the prayer to that effect cannot be granted. 10. Coming to the next question as to whether the petitioner belongs to “Dhangar” caste or not, we find from the order impugned that reliance has been placed on the report of Naib Tehsildar Nagina which is a detailed and exhaustive report. Further the order impugned relies on the entries in respect of the petitioner’s brother whose caste in the Certificate is referred as Gaderiya. Then the Certificate issued in favour of petitioner’s wife on 16.7.2003 also indicates the caste as Gaderiya. 11. Apart from this, the finding recorded is that the evidence produced on behalf of the petitioner did not indicate that the same was either certified or they were original documents. Then the Certificate issued in favour of petitioner’s wife on 16.7.2003 also indicates the caste as Gaderiya. 11. Apart from this, the finding recorded is that the evidence produced on behalf of the petitioner did not indicate that the same was either certified or they were original documents. The order impugned recites that the findings are being arrived at after perusing the entire record and evidence relied upon by the petitioner. In this view of the matter, the findings recorded and the conclusion arrived at by the Tehsildar cannot be said to be arbitrary merely because he has not specifically referred to each and every piece of evidence relied upon by the petitioner. As a matter of fact, the report of the Naib Tehsildar dated 31.3.2004 which is on record along with the counter-affidavit has taken into account extensive information collected and evidence obtained upon survey in respect of all the Caste Certificates issued in the district of Bijnor; whereafter it has been concluded that such Certificates have been incorrectly issued treating the petitioner and other similarly situated persons as Scheduled Caste. 12. Having given our thoughtful consideration to the entire matter, we are of the opinion that in case the petitioner is aggrieved with regard to the declaration of his status as a member of a particular caste, then it is always open to him to approach the civil Court by filing an appropriate Suit for such declaration in accordance with law. The question of ascertaining the status of the petitioner’s caste would require leading of evidence and testing of the probative value of such evidence which exercise can only be undertaken by the civil Court and not by this Court. The order impugned does not call for any interference in exercise of any discretion under Article 226 of the Constitution. 13. In view of the above, the writ petition is, accordingly, dismissed. ————