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2014 DIGILAW 411 (ALL)

Bindra Prasad Gond v. State of U. P. & others.

2014-02-06

RAJAN ROY, TARUN AGARWALA

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Rajan Roy, J.:- This is the 5th round of litigation by the petitioner, who is a Driver in the Agriculture department of the Government of Uttar Pradesh, seeking restoration of his status as a Scheduled Tribe person. 2. By means of this writ petition the petitioner has challenged the decision of the High Powered Caste Scrutiny Committee, which has cancelled the Caste Certificate dated 17.01.2004 issued to the petitioner by which he had earlier been treated as belonging to the Gond Tribe i.e. Scheduled Tribe. 3. The petitioner's case is that he is the original inhabitant of village Raipur, Tehsil Jakhaniya, District Ghazipur. Initially a caste certificate was issued to him on 08.12.1993 treating him to be a Scheduled Caste as at that point of time Gond caste was included in the list of Scheduled Castes. In the year 2002, an amendment was made in the Presidential Scheduled Tribe Order and the Gond caste was included in the list of Scheduled Tribes interalia for district Ghazipur in the State of U.P.. Subsequent to the aforesaid amendment, on 17.01.2004, a caste certificate was issued to the petitioner certifying him to be belonging to a Scheduled Tribe by the competent authority of district Ghazipur, U.P.. 4. Thereafter, selection process was initiated for appointment on the post of Driver in the Agriculture Department and the petitioner considering himself eligible, applied for the same under the reserved category for Scheduled Tribes. His caste certificate dated 17.01.2004 was sent for verification to the Tehsildar Jakhaniya, District Ghazipur, who vide report dated 19.11.2007 informed that the said certificate had been issued to the petitioner and is mentioned in the issuing register of the office at sl. no. 132. 5. However, subsequently it appears that a contrary report was sent by the Tehsildar Jakhaniya that the Gond caste fell in backward caste category. Be that as it may, the petitioner was appointed on the post of Driver on 22.11.2007 under the reserved category for Scheduled Tribes and consequent thereto he joined duty on 04.12.2007. 6. no. 132. 5. However, subsequently it appears that a contrary report was sent by the Tehsildar Jakhaniya that the Gond caste fell in backward caste category. Be that as it may, the petitioner was appointed on the post of Driver on 22.11.2007 under the reserved category for Scheduled Tribes and consequent thereto he joined duty on 04.12.2007. 6. It appears that on account of the contradictory reports referred above, certain queries were made regarding the veracity of the caste certificate of the petitioner and ultimately the same was cancelled by the Tehsildar Jakhaniya vide his order dated 10.01.2008, which was challenged by the petitioner before this Court by means of Writ Petition No. 14773 of 2008, Bindra Prasad vs. State of U.P. & others and the said writ petition was allowed and the order dated 10.01.2008 was set aside on the ground that the same had been passed without affording any opportunity of hearing to the petitioner and liberty was granted to the authorities to pass fresh orders in accordance with law. 7. Thereafter, the petitioner submitted relevant documents before the authorities in support of his claim of belonging to a Scheduled Tribe and after due opportunity, the Tehsildar again passed an order dated 15.01.2009 cancelling the caste certificate dated 17.01.2004 issued to the petitioner interalia on the ground that the petitioner had submitted only photostat copies of the documents, he had not availed the benefits of scholarships available to the Scheduled Castes and Scheduled Tribes during his schooling thereby raising a presumption that he did not belong to the said category, Gonds reside only in Kaimur Range of Mirzapur district and the petitioner in fact appears to belong to bhadbhooja caste which is a backward caste and not a Scheduled Tribe. 8. The petitioner again approached this Court by means of Writ Petition No. 14108 of 2009 challenging the aforesaid order dated 15.01.2009. This writ petition was also allowed with the observation that the Tehsildar Jakhaniya has failed to consider the amendment of 2002 in the Constitution (Uttar Pradesh) Scheduled Tribes Order, 1967 according to which, the Gond caste of district Ghazipur in the State of U.P. had been included in the list of Scheduled Tribes, therefore, the stand of the State authority was misconceived. This Court also observed that even if the petitioner had only filed photostat copies of the relevant documents, the same could always be verified by the revenue authorities from their own records as they were very well available with them. After quashing the order dated 15.01.2009, this Court granted liberty to the Tehsildar to pass appropriate order and take appropriate decision strictly in accordance with law. 9. Thereafter, the petitioner again submitted the relevant documents before the authorities. He was given an opportunity of hearing but on 15.07.2009 an order was passed by the Tehsildar Jakhaniya cancelling petitioner's caste certificate on a fresh ground that the caste certificate dated 08.12.1993 was not entered in the register of caste certificates thereby raising a presumption that the same was forged and fabricated. 10. Having no other option, the petitioner again approached this Court by means of Writ Petition No. 42436 of 2009 challenging the aforesaid order dated 15.07.2009 and this Court vide its order dated 09.04.2010 directed the petitioner to make an application before the Chief Secretary, Government of Uttar Pradesh, Lucknow with a further direction to the Chief Secretary to refer the matter to the High Powered Committee constituted for determining the nature and status of the petitioner's community as to whether they are covered under the Scheduled Tribes or not and take appropriate decision in accordance with law within six weeks after giving opportunity of hearing to the petitioner and other concerned parties. This Court also took note of the judgment of Hon'ble Supreme Court in the case of Kumari Madhuri Patil & another vs. Additional Commissioner Tribal Development and others reported in AIR 1995 SC 94 . Needless to say the exercise referred above was to be made in light thereof. 11. The petitioner submitted an application to the Chief Secretary on 30.05.2010 in accordance with the above mentioned judgment but no action was taken thereon by the Caste Scrutiny Committee, as such, he was compelled to initiate contempt proceedings. It is only thereafter that the authorities woke up from their slumber and asked the petitioner to appear before the Caste Scrutiny Committee on 19.01.2011. The Caste Scrutiny Committee referred the matter to the Vigilance Cell for enquiry as was required under the dictum of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). 12. It is only thereafter that the authorities woke up from their slumber and asked the petitioner to appear before the Caste Scrutiny Committee on 19.01.2011. The Caste Scrutiny Committee referred the matter to the Vigilance Cell for enquiry as was required under the dictum of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). 12. After conducting an enquiry, the Vigilance Cell submitted its report dated 28.07.2011 to the effect that the petitioner belongs to Gond Tribe, which is notified as Scheduled Tribe in district Ghazipur, therefore, the caste certificate of Scheduled Tribe may be issued to the petitioner. 13. It appears that the Caste Scrutiny Committee was not satisfied with the report of the Vigilance Cell, as such, on 07.09.2011 it directed the District Magistrate Ghazipur to conduct an enquiry regarding the claim of the petitioner. 14. The petitioner challenged this order of the Caste Scrutiny Committee by means of Writ Petition No. 56945 of 2011 wherein a counter affidavit was called for and the writ petition is still pending. 15. It appears that on 07.11.2012, the Caste Scrutiny Committee disagreed with the report of the Vigilance Cell and referred the matter to the District Level Committee under the chairmanship of the District Magistrate, but no report was received from the District Level Committee/District Magistrate. Thereafter, on 28.12.2012 a decision was taken by the Caste Scrutiny Committee holding that the petitioner did not belong to the Scheduled Tribe and it accordingly cancelled the caste certificate dated 17.01.2004 issued to him. It is this decision of the Caste Scrutiny Committee, which is under challenge in the instant writ petition. 16. We have heard the learned counsel for the petitioner as well as the learned Standing Counsel appearing on behalf of the opposite parties and have also perused the record of the case. 17. The question that falls for our consideration in the instant case is as to whether the impugned decision of the High Powered Caste Scrutiny Committee cancelling the caste certificate of the petitioner and holding that he does not belong to a Scheduled Tribe, is sustainable in light of the dictum of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996 issued in pursuance thereof or not. 18. 18. The submission on behalf of the petitioner is that the impugned decision wrongly rejects the report of the Vigilance Cell and it is not in conformity with the pronouncement of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996. The Caste Scrutiny Committee has rejected the report of the Vigilance Cell in a cryptic manner and on unfounded grounds. It has not taken into consideration the relevant aspects of the matter. The further submission is that the impugned decision suffers from non-application of mind. 19. The learned Standing Counsel appearing for the opposite parties on the other hand contends that the reports referred in the order dated 10.01.2008, which was set aside by this Court only on the ground of violation of the principles of natural justice, have not been set aside and that the decision dated 15.07.2009 has also not been set aside, therefore, the same being against the petitioner, he is not entitled to be treated as belonging to a Scheduled Tribe. He further contends that the Caste Scrutiny Committee has taken into consideration all relevant aspects of the matter and the decision does not suffer from any error warranting interference from this Court. 20. As per Article 342 (1) of the Constitution of India, the President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. Sub-clause (2) of the said Article provides that the Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. The legal position in this regard is very well settled that the Scheduled Tribes notified in the list referred in Article 342 cannot be subtracted nor any tribe can be added thereto, either by the Courts or by the Executive. The legal position in this regard is very well settled that the Scheduled Tribes notified in the list referred in Article 342 cannot be subtracted nor any tribe can be added thereto, either by the Courts or by the Executive. Undisputedly, the Constitution (Uttar Pradesh) Scheduled Tribes Order, 1967 was amended in the year 2002 so as to include Gond tribe as a Scheduled Tribe interalia for district Ghazipur in the state of Uttar Pradesh. Thus, there is no dispute about the fact that the Gond tribe in district Ghazipur is a notified Scheduled Tribe under Article 342 of the Constitution of India. 21. In view of above, the only question which remains to be considered is as to whether the petitioner belongs to Gond tribe or not. The Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) had laid down the procedure for verification of the caste status/caste certificate of Scheduled Castes and Scheduled Tribes. In paragraph 13(5) of the said judgment it was provided that each Directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police in over all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. by the castes or tribes or tribal communities concerned etc. In paragraph 13 (6 & 7) of the said judgment it was further provided that if the Director concerned, on receipt of the report from the Vigilance Cell found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, then he would issue show cause notice along with report to the candidate and take further action as contemplated in the said judgment. However, in case the report is in favour of the candidate and found to be genuine and true, no further action need to be taken. 22. In compliance of the aforesaid pronouncement, the State of U.P. issued a Government Order dated 5th January, 1996, copy of which has been annexed as Annexure 15 to the writ petition. As per paragraph 2 (4) of the said Government Order, a Vigilance Cell shall be constituted under the U.P. Scheduled Caste and Scheduled Tribe Welfare Directorate and Backward Class Welfare Directorate with an officer of the rank of the Superintendent of Police as its head along with requisite number of police inspectors who shall be provided by the State Government. As per paragraph 2 (5) of the Government Order, the inspectors of the Vigilance Cell shall visit the original place of residence or the usual place of residence of the candidate and shall inquire about the caste certificate issued to him and shall verify and collect the relevant facts. As per paragraph 2(6) of the Government Order, if as per report of the Vigilance Cell, the veracity of the caste certificate is duly verified and found to be true then the concerned Director shall approve such caste certificate. However, in the event the report of the Vigilance Cell does not certify the caste certificate i.e. it is against the candidate, then the procedure as prescribed in the said Government Order shall be followed which is almost the same as mentioned in the pronouncement of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). 23. However, in the event the report of the Vigilance Cell does not certify the caste certificate i.e. it is against the candidate, then the procedure as prescribed in the said Government Order shall be followed which is almost the same as mentioned in the pronouncement of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). 23. In the instant case, all the earlier reports and decisions with regard to the social status of the petitioner were based on the reports of the Tehsildar and the matter had never been referred to the Vigilance Cell in accordance with the dictum of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996. It is only after the judgement dated 09.04.2010 passed in Writ Petition No. 42436 of 2009 filed by the petitioner that the matter was referred to the Vigilance Cell, that too after initiation of the contempt proceedings by the petitioner. The report of the Vigilance Cell dated 28.07.2011 has been annexed by the petitioner as Annexure R.A. 1 to the rejoinder affidavit. A perusal of the said report reveals that the officers of the Vigilance Cell visited the original place of residence of the petitioner and recorded the statements of other residents who had knowledge about the social status of the petitioner. Apart from it, it also conducted a confidential enquiry wherein also statements of various residents of the area were recorded. All these statements supported the case of the petitioner that he belongs to the Gond tribe. Further, the Vigilance Cell has also analysed the evidence both oral as well as documentary. Further it has also considered the school transfer certificate relating to the petitioner when he was in class 5, family register, revenue records pertaining to 1356 F, all of which, mentioned that the petitioner belongs to Gond tribe. The report of the Vigilance Cell dated 28.07.2011 was accepted by the Director Backward Class Welfare and was forwarded to the Principal Secretary, social welfare and the Director, social welfare, U.P.Lucknow with the endorsement that the same was self explanatory. The letter dated 28.07.2011 is also annexed as part of Annexure R.A. 1 to the rejoinder affidavit. Thus, evidently the Director did not disagree with the report of the Vigilance Cell nor did he find it to be "not genuine" or 'doubtful' or false or fraudulently obtained. The letter dated 28.07.2011 is also annexed as part of Annexure R.A. 1 to the rejoinder affidavit. Thus, evidently the Director did not disagree with the report of the Vigilance Cell nor did he find it to be "not genuine" or 'doubtful' or false or fraudulently obtained. In view of paragraph 13 (7) of the dictum of Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra), in such an eventuality no further action was required to be taken i.e. the candidate was to be treated as belonging to a Scheduled Tribe. 24. However, in the instant case it appears that when the report of the Vigilance Cell was placed before the Caste Scrutiny Committee, it disagreed with the same and referred the matter to the district level committee headed by the District Magistrate for verification. Though strictly speaking, this could not have been done as per the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) but assuming for a moment that the same was permissible, even then, the subsequent decision taken by the Caste Scrutiny Committee canceling the caste certificate is not sustainable. After having referred the matter to the district level committee headed by the District Magistrate, the Caste Scrutiny Committee without waiting for any such report and without receiving any such report, hurriedly took the decision presumably on account of the contempt proceedings pending in this Court. 25. We have perused the decision of the Caste Scrutiny Committee dated 28.12.2012. It reveals that the report of the Vigilance Cell was rejected by it solely for the reason that it was based only on oral evidence, which is factually incorrect. As we have already noticed, the Vigilance Cell report discusses and considers not only oral but also the documentary evidence. Moreover, even as per the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996, oral evidence is necessarily to be collected from the persons of the area in which the candidate resides, who have knowledge of the social status of the candidate. Moreover, even as per the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996, oral evidence is necessarily to be collected from the persons of the area in which the candidate resides, who have knowledge of the social status of the candidate. Further, we find that the Caste Scrutiny Committee on its part, though it has referred to various documentary evidences filed by the petitioner before it, yet has not considered the same but has only considered one document i.e. caste certificate dated 08.12.1993.The other documentary evidences i.e. family register, the school transfer certificate issued by the Primary Pathshala Kyav, Ghazipur and khatauni 1356 F, all of which mention the caste of petitioner as being Gond which is a Scheduled Tribe, have been ignored. Moreover, the Caste Scrutiny Committee has also not considered the various oral statements recorded by the Vigilance Cell in its report. It is thus, clearly established that the Caste Scrutiny Committee has not considered the relevant material while taking the impugned decision. 26. So far as the caste certificate dated 08.12.1993 is concerned, it is relevant to mention that the subject matter in issue before the Caste Scrutiny Committee was the veracity of the caste certificate dated 17.01.2004, by which the petitioner was declared to be a Scheduled Tribe whereas the caste certificate dated 08.12.1993 was issued earlier when Gond was considered as a Scheduled Caste. Moreover, merely because the said caste certificate did not find mention in the register of caste certificates, by itself, could not be a ground for concluding that the same was forged or fabricated, unless and until, a categorical finding was recorded after due and proper enquiry but no such enquiry was done nor any such finding has been recorded in any of the reports. Therefore, the inference drawn by the Caste Scrutiny Committee is unfounded and perverse. The omission to enter the caste certificate in the register could be a bonafide mistake or it could have occurred due to negligence or for other such reasons. Thus, the conclusion drawn by the Caste Scrutiny Committee regarding social status of the petitioner merely on the basis of the alleged fabrication of an earlier caste certificate dated 08.12.1993, is not sustainable. Thus, the conclusion drawn by the Caste Scrutiny Committee regarding social status of the petitioner merely on the basis of the alleged fabrication of an earlier caste certificate dated 08.12.1993, is not sustainable. The Caste Scrutiny Committee has failed to consider the relevant aspects of the matter which, in fact, have been dealt with and analysed threadbare by the Vigilance Cell in its report, perusal of which leaves no doubt that the petitioner in fact belongs to Gond tribe which is a Scheduled Tribe in district Ghazipur, state of U.P. 27. The Constitution (Uttar Pradesh) Scheduled Tribes Order, 1967 was amended in the year 2002 which appears to have not been taken note of by the Caste Scrutiny Committee and as such, the decision of the Committee also suffers from non-application of mind and therefore, is not sustainable. 28. Thus, we conclude that the decision of the Caste Scrutiny Committee is not in consonance with the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996 whereas the report of the Vigilance Cell is in consonance with it and the Caste Scrutiny Committee was not justified in rejecting the said report. 29. So far as the contention of the learned Standing Counsel based on the reports mentioned in the order dated 10.01.2008 and the decision dated 15.07.2009 is concerned, the same is also misconceived. Once the earlier decisions dated 10.01.2008 and 15.01.2009 stand quashed by this Court vide its judgments dated 23.05.2008 & 15.01.2009, the said decisions and the reports mentioned therein do not have any relevance. Further, so far as the order dated 15.07.2009 is concerned, the same was challenged in Writ Petition No. 42436 of 2009, wherein the matter was referred to the High Powered Committee for consideration in light of the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). Further, so far as the order dated 15.07.2009 is concerned, the same was challenged in Writ Petition No. 42436 of 2009, wherein the matter was referred to the High Powered Committee for consideration in light of the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). As we have already mentioned, earlier decisions were not taken in accordance with the procedure prescribed in the dictum laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) and the Government Order dated 5th January, 1996 as there is no indication therein that the matter was ever referred to the Vigilance Cell for enquiry prior to filing of the Writ Petition No. 42436 of 2009 nor any such report of the Vigilance Cell has been considered in the earlier decisions. Therefore, for this reason also, all the earlier decisions and reports are meaningless for determination of social status of the petitioner. 30. We also take note of the fact that the petitioner who is a class IV employee has been made to approach the Court again and again for declaration of his status as Scheduled Tribe. Even after the dictum of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra), which was decided on 02.09.1994, the opposite parties did not adopt the procedure mentioned therein for verifying the social status of the petitioner rather the Tehsildar went on canceling his caste certificate on one pretext or other, with the result, the petitioner had to approach this Court again and again, at least 5 times. Even after passing of the judgement by this Court on 09.04.2010, the authorities did not take any action till the petitioner initiated contempt proceedings against them. The petitioner has suffered mental agony and incurred expenses on account of these litigations. Therefore, it is a fit case where the respondent no. 1 deserves to be saddled with appropriate cost. 31. Considering the long period of litigation, specially, the fact that the report of the Vigilance Cell is not alleged to have been obtained fraudulently, we do not deem it fit to relegate the matter back to the authorities again. Therefore, it is a fit case where the respondent no. 1 deserves to be saddled with appropriate cost. 31. Considering the long period of litigation, specially, the fact that the report of the Vigilance Cell is not alleged to have been obtained fraudulently, we do not deem it fit to relegate the matter back to the authorities again. Since we are quashing the impugned decision of the Caste Scrutiny Committee, the caste certificate dated 17.01.2004 issued to the petitioner shall stand restored and the petitioner shall be treated as belonging to the Gond caste, a Scheduled Tribe. 32. For the reasons stated aforesaid, the impugned order of the Caste Scrutiny Committee dated 28.12.2012, cannot be sustained and is quashed. 33. The writ petition is allowed with cost. 34. The respondent no. 1 will pay a sum of Rs. 25,000/- to the petitioner for this vexatious litigation within four weeks from the date of production of a certified copy of this order. ________