Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 962 (MP)

Ajeeta Khedle v. State of M. P.

2009-08-11

DIPAK MISRA, R.K.GUPTA

body2009
ORDER Dipak Misra, J. 1. Regard being had to the similitude of the issue involved in these two writ appeals, they were heard analogously and are decided by this singular order. Be it noted, the order dated 15-5-2009 passed by the learned Single Judge whereby he has dismissed the two writ petitions is under assail in these writ appeals. 2. The facts which were exposited before the learned Single Judge are that the petitioners who are the daughters of one B.L. Khedle being resident of Sehore and 'dhobi' by caste are the members of Scheduled Caste as per Entry 22 of the Constitution (Scheduled Caste) Order, 1950. The petitioner in Writ Petition No. 15108/2007 had obtained a temporary/provisional caste certificate and got admission in College of Agriculture Engineering Jawaharlal Nehru Kendra Vishwa Vidyalaya as a Scheduled Caste candidate. Subsequent to her admission, the College Authority demanded the permanent caste certificate. Being apprehended, she approached this Court in Writ Petition No. 8441/2006 which was disposed of by order dated 30-8-2007 directing the Sub Divisional Officer, Sehore to issue caste certificate permissible under law and an interim protection was granted to the effect that till such decision is taken no adverse action be taken against her. Consequent to the aforesaid order, a Case No. 147/B-l21/2007 was registered and an inquiry was conducted by the Revenue Officer and eventually, by order dated 11-10-2007 the application for grant of certificate was rejected on the foundation that the father of the petitioner is originally resident of District Betul and lived at Sehore since 1961 and hence, though the petitioner was born at Sehore, she cannot treated to belong to a Scheduled Caste. 3. It is worth noting that the petitioner in Writ Petition No. 3229/2004 was denied such certificate when she applied for the same. 4. Questioning the action of the authority whereby he had refused to grant certificate, it was contended before the learned Single Judge that though the father of the petitioners had settled at Sehore in 1961, the grand-mother resided at Sehore in 1940 and thereafter at Betul since 1942 and again came to slay at Sehore permanently since 1961 and hence, they are the ordinary residents of District Sehore. It was canvassed that such being the position, they are entitled to be treated as Scheduled Caste being 'dhobi' covered under Entry 22 of the Constitution (Scheduled Castes) Order, 1950. It was canvassed that such being the position, they are entitled to be treated as Scheduled Caste being 'dhobi' covered under Entry 22 of the Constitution (Scheduled Castes) Order, 1950. Reliance was placed on Clause 2 of the Presidential Order, 1950 and the decision rendered in Beniprasad and Anr. v. Narbada Prasad (1997) 9 SCC 631 , wherein the Apex Court has affirmed the order passed by this Court in E.P. No. 15/1994. 5. The learned Single Judge posed the question whether the petitioners whose father migrated from District Betul and thereafter settled at Sehore can claim to belong to Scheduled Caste. He referred to the decisions rendered in Ku. Madhuri. Patil and Anr. v. Additional Commissioner, Tribal Department and Anr. AIR 2000 SC 94 , State of Maharashtra v. Milind (2001) 1 SCC 4 and Union of India v. Dudh Nath Prasad AIR 2000 SC 525 and eventually expressed the view as follows: 12. In the case at hand admittedly father of the petitioner settled down at Sehore in the year 1961, i.e., much after the issuance of the Constitution (Scheduled Castes) Order, 1950 and if the observations of Their Lordships of the Apex Court in Beniprasad (supra), is taken into consideration, i.e., "those who are born after the Presidential Notification would be rendered ineligible for being considered as belonging to the Scheduled Castes", would, disentitle the petitioner of any of any benefits which enure from Clause (2) of the Presidential Order, 1950, because the expression "thereof resident in the localities" has a nexus with the person actually residing at a place on the date when the Presidential Order, 1950 comes into existence but that is not so in the case at hand. At the time when the Presidential Order, 1950 came into existence, the petitioner's father was not an ordinary resident of Sehore but was residing at Betul. Therefore, the conclusion arrived at by the authorities concerned and rejection of application for caste certificate cannot be found fault with. 6. We have heard Mr. D.K. Dixit, learned Counsel tor the appellants, and Mr. Deepak Awasthy, learned Government Advocate for the State, in both the appeals. 7. Assailing the soundness of the order passed by the learned Single Judge, Mr. 6. We have heard Mr. D.K. Dixit, learned Counsel tor the appellants, and Mr. Deepak Awasthy, learned Government Advocate for the State, in both the appeals. 7. Assailing the soundness of the order passed by the learned Single Judge, Mr. Dixit has raised the following submissions: (a) When there is material on record and it was found after due inquiry that the ancestors of the appellants were ordinary residents of Sehore, a caste certificate could not have been refused on the ground that their father settled at Sehore only in 1961. (b) The appellants were born and brought up at Sehore and received school education there and, therefore, they are to be treated as ordinary residents of Sehore as a consequence of which they would be entitled to obtain the caste certificate. (c) The learned Single Judge has failed to appreciate the law laid down in Beniprasad (supra), which squarely covers the controversy and actually should have quashed the order impugned and directed for grant of caste certificate in favour of the appellants. (d) There is evidence on record that the grand-parents of the appellants had lived at Sehore and the said evidence has gone uncontroverted and hence, they should not have been deprived of the benefit of caste certificate. (e) The learned Single Judge should have applied the ratio laid down in Dudh Nath (supra) to the case at hand as the same squarely governs the field. 8. Mr. Deepak Awasthy, learned Government Advocate for the State, submitted that the order passed by the learned Single Judge is absolutely flawless inasmuch as he has rightly applied the ratio laid down in the case of Beniprasad (supra). It is urged by him that when the Presidential Order, 1950 came into existence, the father of the appellants was not ordinary residents of the district-Sehore and hence, the children are not entitled to be given the caste certificate on the basis that they belong to 'dhobi' caste. 9. Before we advert to the facts at hand it is apposite to refer to Clause 2 of the Presidential Order, 1950. It reads as under: 2. 9. Before we advert to the facts at hand it is apposite to refer to Clause 2 of the Presidential Order, 1950. It reads as under: 2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in (Parts I to XXVI) of the Schedule to this order shall, in relation to the State to which those parts respectively relate, be deemed to be Scheduled Castes so far as, regards member thereof resident in the localities specified in relation to them in those parts of that Schedule. 10. In Beniprasad (supra), the respondent had contested the election from Gotegaon as Scheduled Caste. The election was challenged on the ground that his forefather belonged to district Shahdol and was Kumhar by caste and, therefore, he could not have contested election as Scheduled Caste. This Court, while dealing with the election petition, held as follows: Since residence is only the criteria for deemed to be a Scheduled Caste of that area then in that respect, the respondent shall be deemed to be a Scheduled Caste of that area as he got his residence change to localities specified in that order. 11. The matter travelled to the Apex Court and Their Lordships expressed the view as follows: 2. It appears from the discussion in Para 19 of the impugned judgment that the question regarding the status of the respondent. In Shahdol District was considered on facts by the High Court and the High Court referred to the evidence which was recorded in this behalf earlier in point of time and after considering the evidence, the High Court reached the conclusion that the respondent had succeeded in proving that he was an ordinary resident of Shahdol District and also satisfied the test for being recognised as a "Kumhar" in Shahdol District and was, therefore, eligible to contest the election on that basis. The High Court came to the conclusion that the earlier enquiry undertaken for enrollment of his name in the voters' list for the constituency in question had become final and could not be questioned in the election petition and that when the dispute was raised earlier in point of time evidence was recorded and on the basis of that evidence a decision was taken that the respondent was a "Kumhar" in Shahdol District. The learned Counsel for the respondent also took us through the salient aspect of the oral evidence led in this behalf to satisfy us that the stand taken by the respondent was well founded. R.W. 1, A.D. Srivastava was examined as a witness in the High Court and he stated that he was an Assistant Registration Officer, Nagar Palika, Shahdol and that he had brought the record pertaining to objections filed against the respondent. He has further stated that after making the necessary enquiry he rejected the objection on the strength of the evidence of the witnesses who deposed before him and that the Panchnama was prepared by him. The learned Judge in the High Court, as stated earlier, had made a brief reference to the evidence in this behalf in Paras 19 and 20 of the impugned order and had come to the conclusion that the name of the respondent having been entered in the voters' list pursuant to an enquiry on the premises that he was an ordinary resident of Shahdol District, that part of the proceedings had terminated and could not be reopened. We also found that in the earlier proceedings after an elaborate enquiry by R.W. 1 it had been found that his family had been ordinarily residing in Shahdol District till 1952 when he shifted to the neighbouring Narsinghpur area where the respondent was born and thereafter the respondent had shifted to Shahdol District in 1969 and his name had been entered in the voters' list in 1985 and he had been residing there since then and had also contested elections earlier in point of time all of which went to show that he was an ordinary resident of that district. The fact that he was a "Kumhar" was not in question and as stated earlier that question was concluded in favour of the respondent. If he was a "Kumhar" in the Narsinghpur area the only question was whether he could get the benefit of belonging to the "Kumhar" community in Shahdol area also. It was not contended that he did not specify the requirements of being recognised as a "Kumhar" in the Shahdol District but what was contended was that he should have been a "Kumhar" in Shahdol District in 1950 when the Presidential Notification was issued. It was not contended that he did not specify the requirements of being recognised as a "Kumhar" in the Shahdol District but what was contended was that he should have been a "Kumhar" in Shahdol District in 1950 when the Presidential Notification was issued. That contention does not appear to he correct because in that case those who are born after the Presidential Notification would be rendered ineligible for being considered as belonging to the Scheduled Castes. (Emphasis supplied) 12. In Dudh Nath Prasad (supra), the respondent was a member of the Indian Administrative and Allied Services. He was appointed against a reserved vacancy as he was treated to belong to Nuniya community after being successful in the examination conducted by the UPSC. Paragraph 5 of the instructions to the candidates contained in the pamphlet issued for the Indian Administrative Services published under the authority of the Government of India stipulated that Scheduled Caste certificate has to be issued by District Officer or the Sub Divisional Officer of the district in which the parents of the candidate ordinarily reside. The note appended to the said paragraph stipulated that the term 'ordinary reside' will have the same meaning as in Section 20 of the Representation of the People Act, 1950. The respondent's parents admittedly belong to 'Nuniya' caste which has been declared as a Scheduled Caste in the State of West Bengal but not so in the State of Bihar. The respondent was born and brought up in the Stale of Bihar and he had education upto graduation in Bihar. However, his parents were living in West Bengal continuously for more than 30 years before the respondent joined the Indian Administrative and Allied Services. The respondent produced the caste certificate from West Bengal where it was a notified Scheduled Caste but not so declared in Bihar. His certificate was doubted on the ground that the respondent was born and educated in Bihar and hence, he could not be treated as belonging to 'Nuniya' community in the State of West Bengal. In that backdrop), Their Lordships expressed the view as follows: 26. His certificate was doubted on the ground that the respondent was born and educated in Bihar and hence, he could not be treated as belonging to 'Nuniya' community in the State of West Bengal. In that backdrop), Their Lordships expressed the view as follows: 26. We have already explained the meaning of the words "ordinarily resident" and have found that notwithstanding that the warrants or the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property also there, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, they be treated to be "ordinarily residing in the State of West Bengal". For the State of West Bengal, the President, in exercise of his powers under Article 341(1) read with Article 366(24) had already declared "Nuniya" Caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a reserved vacancy, after being declared successful at the examination held by the UPSC for the Indian Administrative & Allied Services in 1966. 13. In the case at hand, the father of the appellants shifted in the year 1961 to Sehore. The appellants were born and got educated at Sehore. Therefore, there can be no scintilla of doubt that they are residents of Sehore. Hence, they are to be treated as ordinarily residing in District Sehore. The Presidential Order in Entry 22 includes dhobV as Scheduled Caste in the districts of Bhopal, Raisen and Sehore. That apart, it is interesting to note that the evidence that has been brought on record shows that the grandparents and great-grandparents of the appellants belonged to Sehore. Their father was born at Betul and later on came and stayed at Sehore. The said aspect has borne out on record and has gone uncontroverted. Thus, they are to be treated as residents of District Sehore from both the angles. In Beniprasad (supra), Their Lordships have held that the contention to the effect that the respondent should have been a 'kumhar' in Shahdol District in 1950 when the Presidential Notification was issued was not correct because in that case those who are born after the Presidential Notification would be rendered ineligible for being considered as belonging to Scheduled Caste. In Beniprasad (supra), Their Lordships have held that the contention to the effect that the respondent should have been a 'kumhar' in Shahdol District in 1950 when the Presidential Notification was issued was not correct because in that case those who are born after the Presidential Notification would be rendered ineligible for being considered as belonging to Scheduled Caste. The ratio which has been reproduced by the learned Single Judge in Paragraph 12 is not correctly applied and, therefore, the error has crept in as the father of the petitioners was not ordinary resident of Sehore in 1950 when the Presidential Order came into existence and hence, the petitioners shall not be entitled to caste certificate. 14. In view of the aforesaid, we are of the considered opinion that the appellants are entitled to caste certificate as their ancestors were 'dhobi' in the district of Sehore. They were born at Sehore and got educated and, therefore, they become residents of Sehore in view of the factum that they do not lose their caste because of shifting of their father for some years. 15. Consequently, the writ appeals are allowed and the order passed by the learned Single Judge and the order passed by the Revenue Officer on 11-10-2007 refusing the caste certificate are quashed and it is directed that the caste certificate shall be issued in favour of the appellants within a period of four weeks hence. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.