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2012 DIGILAW 80 (UTT)

POOJA RAJPOOT v. DISTRICT MAGISTRATE, DEHRADUN

2012-02-25

SUDHANSHU DHULIA

body2012
JUDGMENT 1. Heard Mr. Arvind Vashisth, Advocate for the petitioner, Mr. Subhash Upadhyaya, Brief Holder for the State of Uttarakhand and Mr. N.S. Rawat, respondent no. 4 who is present in person. 2. The petitioner before this Court has challenged the order dated 27.9.2008 passed by the District Magistrate, Dehradun by which the caste certificate given to the petitioner has been cancelled. 3. The case of the petitioner is that she belongs to a caste called “Tanwar”. This caste, according to the petitioner, falls in the category of Other Backward Class (from hereinafter referred to as OBC) and is notified as an OBC in the State of Uttarakhand. The petitioner has also annexed the Government Notification to this effect as Annexure No.1 to the writ petition. In the said notification, there is a mention as “Tanwar Singhariya” as a caste at serial no. 69. However, there is a comma (,) between the words “Tanwar” and “Singhariya. The argument of the petitioner is that “Singhariya” is a sub-caste of “Tanwar” and in any case “Tanwar’ is a caste notified as OBC in the State of Uttarakhand. The case of the petitioner is that she was a resident of Delhi, prior to her marriage in the year 1997 where she got married to a person in Uttarakhand, namely, Mr. Manoj Rajpoot, resident of village Jonk, Tehsil Yamkeshwar(Kotdwar), District Pauri Garhwal. The petitioner was elected as “Gram Pradhan” of Village Jonk, Tehsil Yamkeshwar, District Pauri Garhwal in the year 2008. The present respondent no. 4, according to her, has an enmity with her in-laws and therefore has been making false complaints with the authorities alleging that the petitioner is not an OBC and has wrongly obtained a certificate to this effect, etc. 4. Earlier, respondent no. 4 had filed a writ petition before this Court being Writ Petition (M/S) No. 1541 of 2008 challenging the election of the present petitioner on the ground that she is not an OBC. This writ petition was dismissed by a learned Single Judge of this Court on 3.9.2008. The orders of the learned Single Judge have been perused. The said writ petition was dismissed by the learned Single Judge on the ground that the writ-petitioner actually challenges the election which cannot be done in a writ petition and the remedy for the petitioner (i.e. present respondent no. 4) is elsewhere. The orders of the learned Single Judge have been perused. The said writ petition was dismissed by the learned Single Judge on the ground that the writ-petitioner actually challenges the election which cannot be done in a writ petition and the remedy for the petitioner (i.e. present respondent no. 4) is elsewhere. The learned Single Judge had observed as follows :- “5. Therefore, the writ petition is dismissed with the observation that the petitioner may challenge the election by filing election petition under the relevant law after the election is over, and may raise objections on which nomination of respondent No.6 is challenged in this petition. (Interim relief application No. 5779 of 2008, stands disposed of). 5. According to the petitioner, she only knew from the newspaper report dated 29.9.2008 that her caste certificate has been cancelled by the District Magistrate, Dehradun. This cancellation order has been challenged before this Court. 6. The State as well as respondent no.4 have filed their counter affidavit, The admitted facts in the present case are that the petitioner is “Tanwar’ by caste. Now, “Tanwar’ is not a caste notified in the State of Uttarakhand. The caste which is notified as an OBC in Uttarakhand is a caste called “Tanwar Singhariya”. This is different from a caste called ‘Tanwar”. The argument. of the petitioner that in the Government Notification (Annexure No.1 to the writ petition) there is a “,” (comma) between “Tanwar’ and “Singhariya” is incorrect. This Court has summoned the original notification in which there is no “,” (comma), between Tanwar and Singhariya and the caste is one caste notified as “Tanwar singhariya”. Moreover, the original notification has been filed by the State Government as Annexure No.1 to the counter affidavit, which gives details of all the castes notified as OBC in the State of Uttar Pradesh (as applicable in the State of Uttarakhand) in which the caste notified is “Tanwar Singhariya”, which is “raoj fla?kkfM+;k” in Hindi. In other words, “Tanwar” is not notified as an OBC in the State of Uttarakhand. On this, there is no doubt. 7. However, it is also true that before cancelling the said caste certificate, since certain rights have accrued to a person in favour of whom such a certificate has been given, he must be given an opportunity of hearing or show cause before such a certificate is cancelled. On this, there is no doubt. 7. However, it is also true that before cancelling the said caste certificate, since certain rights have accrued to a person in favour of whom such a certificate has been given, he must be given an opportunity of hearing or show cause before such a certificate is cancelled. According to the petitioner, this has not been done. For this reason, the impugned order dated 27.09.2008 has been perused. From the order, it appears that the entire proceeding for cancelling of the caste certificate of the petitioner commenced on a complaint of one Sri N.S. Rawat (present respondent no. 4) who is resident of village Jonk, tehsil Yamkeshwar, district Pauri Garhwal. He moved such an application on 11.8.2008 for cancellation of caste certificate of the petitioner Mrs. Pooja Rajpoot, wife of Mr. Manoj Rajpoot, resident of village Jonk, tehsil Yamkeshwar (Kotdwar), district Pauri Garhwal. Although all the grounds raised by the complainant (i.e. present respondent no. 4) for cancellation of certificate may not be tenable, yet the fact is that the basic allegation is that the petitioner does not reside in Uttarakhand and is not an OBC. 8. The District Magistrate, Dehradun before proceeding in the matter called for a report from the Tehsildar, Rishikesh and also sought legal opinion in this matter from the learned District Government Counsel. Thereafter, the District Magistrate after receiving the reports constituted a Scrutiny Committee which constituted of the Additional District Magistrate (Finance and Revenue), Dehradun, District Social Development Officer, Dehradun, Sub Divisional Magistrate, Rishikesh and District Panchayat Raj Officer, Dehradun. These were all nominated officers. The Scrutiny Committee examined the documents and thereafter issued notices to the petitioner to place forward her case. In other words, a show cause notice was issued to the petitioner. The petitioner replied to the show cause notice on 8.9.2008. All it was stated that she is being unnecessarily harassed by respondent no. 4. She further stated that her parents originally hail from Rajasthan and have been residing for generations in Delhi and that she is “Tanwar’ which is an OBC, and that she has obtained the certificate of OBC in accordance with law. 9. The District Magistrate, Dehradun came to the conclusion that the petitioner is “Tanwar’ by caste and this caste ‘’Tanwar’’ is not notified as an OBC in the State of Uttarakhand. 9. The District Magistrate, Dehradun came to the conclusion that the petitioner is “Tanwar’ by caste and this caste ‘’Tanwar’’ is not notified as an OBC in the State of Uttarakhand. Even in Delhi this caste has not been notified as an OBC and the caste which is notified in Delhi is “Raya- Tanwar”. A certificate to this effect has been annexed which is letter of Commission for Other Backward Classes, Government of National Capital Territory of Delhi filed as annexure no. 7 to the counter affidavit filed by respondent no. 4. 10. A document has been filed by respondent no. 4 which is the application of petitioner before the Tehsildar; Rishikesh, Dehradun (Annexure SA-2 to the supplementary counter affidavit filed by respondent no. 4) for grant of OBC certificate in which she has stated that she belongs to “Tanwar Rajpoot”. The word “Rajpoot” though has been cancelled and therefore in effect she has asked for a certificate of “Tanwar’ and she further states that she is an OBC in the State of Uttarakhand. 11. Learned counsel appearing for the petitioner Mr. Arvind Vashisth has stated that the caste notified is “Tanwar, Singhariya” and not “Tanwar Singhariya”. This argument of the counsel is totally misplaced, as the documents which have been placed before this Court clearly show that the caste notified as an OBC in the State of Uttar Pradesh as well as in the State of Uttarakhand is “Tanwar Singhariya”, and there is no “comma”, in between “Tanwar” and “Singhariya”. 12. In short, what the petitioner is trying to do is get an interpretation from the State authorities that “Tanwar Singhariya” should also be read as “Tanwar” or at best “Tanwar” should be included as a part of “Tanwar Singhariya” This cannot be done. 13. The leading case on this matter of Hon’ble Apex Court is State of Maharashtra vs. Milind and other, (2001) SCC 4. Hon’ble Apex Court in the said judgment has held that under Article 342 of the Constitution of India once a Scheduled Tribe is notified as Scheduled Tribe under the presidential order, any changes, substitution or inclusion of sub caste or the special tribe of the main tribe under Article 342 of the Constitution of India can only be done by the Parliament and no other authority is entitled to do so. The same analogy will also apply the case of OBC as well. The same analogy will also apply the case of OBC as well. In the present case, once a caste is notified by an Act or State legislature, any changes can only be done by the State Legislature and not by any Executive Feat. The Hon’ble Apex Court in the aforesaid judgment has held as under:- “11. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words “castes” or “tribes” in the expression “Scheduled Castes” and “Scheduled Tribes” are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President’s Orders issued under Articles 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently, some orders were issued under the said articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by amendment Acts passed by Parliament. 15. Thus it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. 15. Thus it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. Number of persons in order to gain advantage in securing admissions in educational institutions and employment in State services have been claiming as belonging to either Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or subtribe is included in anyone of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard.The President had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included. 36. Finally, the Constitution Bench has concluded that: 1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority. 4. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar and Dina v. Narain Singh did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter.” 14. Although what has been stated above is the case for Scheduled Tribes under Article 342 of the Constitution of India yet the principle would apply here as well and therefore the District Magistrate or the executive has no powers to interfere or interpret to what has been given by the legislature. It other words, the legislature has given us “Tanwar Singhariya” only the legislature has the power to add “Singhariya” or any other sub-caste to it. All the same, as long as it remains “Tanwar Singhriya” it has to be only read as “Tawnwar Singhariya”. Nothing more and nothing less. 15. The other argument of the counsel for the petitioner is that the petitioner has been given no notice regarding the ground on which her caste certificate was cancelled otherwise she would have properly made reply to it. In other words, the petitioner alleges that no proper opportunity of hearing was given. This argument of the petitioner is highly misconceived for two reasons. In other words, the petitioner alleges that no proper opportunity of hearing was given. This argument of the petitioner is highly misconceived for two reasons. Firstly, in view of this Court full opportunity of hearing as contemplated under the law was given to the petitioner and the show cause notice and the reply thereof have been annexed by the petitioner herself, and secondly, the argument that the notice was different and the grounds on which caste certificate has been cancelled are different, are also not tenable for the reasons that this will not prejudice the case of the petitioner in any manner. Even before this Court, the petitioner has failed to show that she belongs to caste “Tanwar Singhariya” which is notified as OBC in the State of Uttarakhand. Moreover, the petitioner who has procured a caste certificate by misrepresentation cannot take the plea that an opportunity of hearing has not been given to her. In any case, this Court is clearly of the view that an opportunity has been given to the petitioner, but in the peculiar facts and circumstances of the case, considering that the caste certificate has been obtained by the petitioner clearly by misrepresentation, in any case there has been no violation of the principle of natural justice and fair play. 16. In view of the aforesaid, the writ petition has no merit and is liable to be dismissed and is hereby dismissed. 17. No order as to costs.