Rajvirbha Dadbha Gadhvi v. Director Social Welfare Deptt.
2013-10-03
A.G.URAIZEE, V.M.SAHAI
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DigiLaw.ai
JUDGMENT : A.G. Uraizee, J. These appeals, filed under Clause 15 of the Letters Patent, are directed against the common judgment and order dated 29th December 2005, passed by the learned Single Judge in Special Civil Application No.12744 of 1993 and 12745 of 1993 whereby the learned Single Judge dismissed both the petitions preferred by the appellant-original petitioner. As the common questions of law and facts are involved in both the appeals, they are heard together and are being disposed of by common judgment. 2. The facts giving rise to filing of the present appeals are as under: Letters Patent Appeal No.164 of 2006: (arising out of Special Civil Application No.12744 of 1993) 2.1 By notification dated 29th October 1956 issued by the Ministry of Home Affairs of the Government of India, persons belonging to Rabari, Bharvad and Charan Castes residing in the Ness area of the forests of Gir, Barda and Alech were included in the list of Scheduled Tribes. Accordingly, the petitioner - Dilubha Gadhvi was issued caste certificate dated 24th June 1968 by the Backward Class Welfare Officer, District Panchayat, Junagadh certifying that the petitioner being CHARAN by caste, which is one of the castes recognised by the Government of Gujarat as Scheduled Tribe. He obtained the said certificate on his declaration that he belonged to and/or his place of origin is of Alavani Ness. 2.2 The petitioner, on the basis of the said certificate, got appointment in the Sales Tax Department as Inspector on 28th April 1969 and he came to be promoted from time to time till he was promoted on the post of Deputy Commissioner of Sales Tax on 1.10.1984. It is the case of the appellant-original petitioner that on 30th July 1992 he received a notice from the Director of Social Welfare Department calling upon him to remain present in his office on 4th August 1992 with any proof regarding validity of the Caste Certificate issued to the petitioner. The petitioner remained present before the Director and submitted in writing that the original documents on the basis of which he could prove that his forefathers belonged to Alavani Ness were submitted before the District Panchayat Backward Class Welfare Branch, Junagadh in the year 1968 and that after so many years he had no other material and that his family originally hailed from Alavani Ness.
Thereafter, vide communication dated 1st November 1993, Director, Adijati Development Department cancelled the Caste Certificate issued in favour of the petitioner. The petitioner challenged the cancellation of his Caste Certificate by filing Special Civil Application No.12744 of 1993. The learned Single Judge, by the impugned common judgment, has dismissed said writ petition. Feeling aggrieved by the same, the appellant has preferred Letters Patent Appeal No.164 of 2006 before this Court. Letters Patent Appeal No.163 of 2006 (arising out of Special Civil Application No.12745 of 1993): 3.1 By notification dated 29th October 1956 issued by the Ministry of Home Affairs of the Government of India, persons belonging to Rabari, Bharvad and Charan Castes residing in the Ness area of the forests of Gir, Barda and Alech were included in the list of Scheduled Tribes. Accordingly, the petitioner - Rajvirbha Gadhvi was issued caste certificate dated 23rd September 1975 by the Mamlatdar, Visavadar, on the basis of Certificate issued in favour of his elder brother, Dilubha Gadhvi by the Backward Class Welfare Officer, District Panchayat, Junagadh, certifying that the petitioner being CHARAN by caste, which is one of the castes recognised by the Government of Gujarat as Scheduled Tribe. He obtained the said certificate on his declaration that he belonged to and/or his place of origin is of Alavani Ness. 3.2 The petitioner, on the basis of the said certificate, got appointment in Gujarat Agriculture University as Junior Clerk on 3rd September 1976. He came to be promoted on the post of Senior Clerk with effect from 21st December 1986. It is the case of the appellant-original petitioner that on 8th June 1992 he received a notice from the Director of Social Welfare Department calling upon him to remain present in his office on 29th June 1992 with any proof regarding validity of the Caste Certificate issued to the petitioner. The petitioner remained present before the Director and submitted in writing that he did not any proof to show that his forefathers belonged to Alavani Ness and he banked upon the Caste Certificate issued in favour of his brother viz. Dilubha Dadbha Gadhvi, appellant of Letters Patent Appeal No.164 of 2006. Thereafter, vide communication dated 1st November 1993, Director, Adijati Development Department cancelled the Caste Certificate issued in favour of the petitioner. The petitioner challenged the cancellation of his Caste Certificate by filing Special Civil Application No.12745 of 1993.
Dilubha Dadbha Gadhvi, appellant of Letters Patent Appeal No.164 of 2006. Thereafter, vide communication dated 1st November 1993, Director, Adijati Development Department cancelled the Caste Certificate issued in favour of the petitioner. The petitioner challenged the cancellation of his Caste Certificate by filing Special Civil Application No.12745 of 1993. The learned Single Judge, by the impugned common judgment, has dismissed said writ petition. Feeling aggrieved by the same, the appellant has preferred Letters Patent Appeal No.163 of 2006 before this Court. 4. We have heard Mr. Percy Kavina, learned Senior Advocate, assisted by Ms. Manisha Narsinghani for the appellant, Ms. Monali Bhatt, learned Assistant Government Pleader for Respondent Nos. 1 to 3 and Mr. S.J. Gaekwad, learned counsel for Anand Agriculture University. 5. Mr. Percy Kavina, learned Senior Advocate has vehemently submitted that the appellants were heard by one authority in pursuance of the notices issued by the Director of Social Welfare Department while the impugned orders cancelling their Caste Certificate were passed by another authority viz. Director, Adijati Development Department cancelled their Caste Certificates, which is not permissible. In support of his submission, he has relied upon the decision of the Apex Court in the case of Automotive Tyre Manufacturers Association v. Designated Authority and Others, (2011) 2 SCC 258 . 6. On the other hand, Ms. Monali Bhatt, learned Assistant Government Pleader has submitted that the learned Single Judge has considered all the relevant aspects and relying upon the reported judgments of the Supreme Court in the case of Kum Madhuri Patil v. Addl. Commissioner, Tribal Development, Thane and others, (1995) 4 SCC 32 and a judgment of Division Bench of this Court in Letters Patent Appeal No.1670 of 1999, decided on 31st August 2000, has rightly concluded that the appellants failed to produce any evidence in support of their claim that they belong to Scheduled Tribe and the learned Single Judge has rightly dismissed their petitions. She has further submitted that in the affidavit-in-reply filed in the respective petitions on behalf of Respondents Nos.1 to 3 it was stated that office of Respondent No.1 came to be bifurcated and office of Respondent No.2 i.e. Director, Adijati Development is culled out from Respondent No.1 vide Social Welfare and Tribunal Department Resolution No.AMSH-1487-3114G dated 31st July 1993.
She has further submitted that in the affidavit-in-reply filed in the respective petitions on behalf of Respondents Nos.1 to 3 it was stated that office of Respondent No.1 came to be bifurcated and office of Respondent No.2 i.e. Director, Adijati Development is culled out from Respondent No.1 vide Social Welfare and Tribunal Department Resolution No.AMSH-1487-3114G dated 31st July 1993. Hence, though notice and personal hearing was given by Respondent No.1, ultimately, the order cancelling the caste certificate was passed by Respondent No.2. 7. The appellants and the respondents are not at conflict so far as the fact that Rajvirbha Gadhvi, the appellant of Letters Patent Appeal No.163 of 1993 was issued the Caste Certificate on the basis of the Caste Certificate issued to Dilubha Gadhvi, the appellant of Letters Patent Appeal No.164 of 1993 by the competent authority, who happens to be the elder brother of Rajvirbha Gadhvi. There is nothing on the record which would even remotely suggests that the competent authority had received any complaint that the caste certificate obtained by the appellants was under misrepresentation and/or by resorting to suppression of fact that they do not belong to Scheduled Tribe community. There is no cavil that Rajvirbha Gadhvi, the appellant of Letters Patent Appeal No.163 of 1993 got the caste certificate on 23rd September 1975 while Dilubha Gadhvi, the appellant of Letters Patent Appeal No.164 of 1993 obtained the Caste Certificate on 24th June 1968. Almost 17 years thereafter the authorities thought it necessary to verify the source and the documentary evidence on the basis of which the appellants could have established their claim that they belong to Scheduled Tribe and therefore the appellants were called upon by Respondent No.1 by issuing the notice to the appellants of Letters Patent Appeal Nos.163 of 1993 and 164 of 1993 on 8th June 1992 and 30th July 1992 respectively calling upon them to produce the documentary evidence to show that they were residents of either Achela, Barda or Gir Forest prior to 1950. 8. The approach of the concerned respondent in calling upon the appellants to produce the relevant documentary evidence so as to verify their social status certificate in absence of any complaint by anyone is wholly unjustified and contrary to the established and well settled canons of law.
8. The approach of the concerned respondent in calling upon the appellants to produce the relevant documentary evidence so as to verify their social status certificate in absence of any complaint by anyone is wholly unjustified and contrary to the established and well settled canons of law. No complaint or grievance was raised before the authority concerned that the appellants have obtained their respective social status certificates on the basis of misrepresentation or suppression of facts and therefore the authorities concerned could not have initiated the exercise of verification of social status certificates of the appellants. Even in this exercise of verification of caste certificates of the appellants, the authorities concerned could not have called upon the appellants to produce the documentary evidence to re-assert that they belonged to Scheduled Tribe. It is pertinent to note at this stage that even the notices calling upon the appellants to produce the evidence of their origin nowhere expresses a shred of doubt that the appellants had obtained the respective caste certificates by misrepresentation, suppression of facts or on the basis of forged or bogus documents. Therefore, the approach and the conduct of the concerned respondents in calling upon the appellants to produce the documentary evidence as to their origin is wholly uncalled for and unwarranted. 9. The reliance placed by the learned Assistant Government Pleader in the case of Madhuri Patil (supra) is misplaced as it could be seen from the record that the order cancelling the caste certificate of the appellant is passed before 1995 when the judgment in the case of Madhuri Patil (supra) came to be delivered by the Honourable Supreme Court. We, therefore, are of the opinion that the ratio and the guidelines expounded by the Apex Court would not be applicable to the facts of the present case. 10. The submission canvassed by the learned Senior Counsel, Mr. Kavina that the order passed by Respondent No.2 cancelling the caste certificate issued in favour of the appellants cannot be sustained in view of the fact that notice and hearing was given by Respondent No.1 while the order was passed by Respondent No.2 requires thoughtful consideration. The notices calling upon the appellant to submit the documentary evidence are dated 8th June 1992 and 30th July 1992.
The notices calling upon the appellant to submit the documentary evidence are dated 8th June 1992 and 30th July 1992. It is further clear from the record that the appellants were heard by Respondent No.1 in person on 29th June 1992 and 4th August 1992 respectively whereas, admittedly, the order cancelling their caste certificate was passed by Respondent No.2. In Automotive Manufacturers Association (supra) the Honourable Supreme Court has held as under: “83. …. A personal hearing enables the authority concerned to watch the demeanour of the witnesses, etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli, if one persons hears and other decides, then personal hearing becomes an empty formality. “84. In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly.” 11. Thus, the ratio expounded by the Honourable Supreme Court is clearly applicable to the facts of the present appeals. The issuance of the notice and personal hearing by Respondent No.1 and thereafter passing of the order cancelling the caste certificates by Respondent No.2 has resulted into denial of natural justice and vitiated the exercise of cancellation of social status certificate. 12. For the reasons aforesaid, we cannot convince ourselves to agree with the reasons and conclusions arrived at by the learned Single Judge. As a result, the impugned judgment of the learned Single Judge has become vulnerable warranting interference in these appeals. For the reasons aforesaid, we allow this appeal and set aside the judgment of the learned Single Judge. There shall be no order as to costs. 13.
As a result, the impugned judgment of the learned Single Judge has become vulnerable warranting interference in these appeals. For the reasons aforesaid, we allow this appeal and set aside the judgment of the learned Single Judge. There shall be no order as to costs. 13. At this stage, learned counsel for the appellants has submitted that both the appellants had continued in service by virtue of protection granted by this Court all throughout but they have retired during the pendency of this litigation. The appellants are getting provisional pension, but their final pension and other retiral dues are to be finalised. We direct the respondents to finalise the pension and retiral benefits payable to the appellants within three months of the receipt of this order. Appeal allowed.