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2018 DIGILAW 117 (UTT)

Jabir Hasan v. State of Uttarakhand

2018-03-19

SUDHANSHU DHULIA

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JUDGMENT : 1. The petitioners before this Court have challenged the caste certificates given to the private respondent Nos.4 & 5 and prayed that a writ, order or direction in the nature of certiorari be issued to quash the caste certificates of respondent Nos.4 & 5 dated 21.07.2008 and 06.08.2002 respectively. Another prayer of the petitioners is for a writ, order or direction in the nature of certiorari to quash the order dated 10.07.2015 passed by the Screening Committee which after examining in detail the caste certificates of the private respondent Nos.4 & 5 has come to the conclusion that the caste certificates have been given to the private respondent Nos.4 & 5 on valid grounds and there is no justification for cancellation of these certificates. 2. The admitted facts of the present case are that both the private respondents No. 4 & 5 belong to a caste known as “Momin Ansar”. It is again an admitted fact that “Momin Ansar” has been notified as an Other Backward Class in the State of Uttarakhand as well as in the State of Uttar Pradesh. 3. By an Act of Parliament known as Uttar Pradesh Reorganization Act, 2000, the State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh. Both the private respondent Nos.4 & 5 were born in the erstwhile State of Uttar Pradesh prior to the creation of the State of Uttarakhand, when there was no Uttarakhand in existence. The private respondents No.4 & 5 claim to be the resident of Village Basedi Khadar, Tehsil Laksar, District Haridwar. Petitioners also belong to the same Tehsil i.e. Laksar, District Haridwar. On a complaint, the Screening Committee, which is presently constituted in the State of Uttarakhand for the same purposes i.e. to examine the validity of the caste certificates as and when they are challenged, had passed an order on 10.07.2015 and came to the conclusion that the private respondent Nos. 4 and 5 reside in the territory of the State of Uttarakhand at least since 1984, and therefore, they fulfill all the necessary conditions prescribed in the Government Order dated 02.04.2013 on the “appointed day” i.e. 09.11.2000. A person is said to be the permanent resident of the State of Uttarakhand, who has stayed for at least 15 years in the State of Uttarakhand on 09.11.2000. A person is said to be the permanent resident of the State of Uttarakhand, who has stayed for at least 15 years in the State of Uttarakhand on 09.11.2000. From this yardstick, both the private respondent Nos.4 & 5 are the permanent residents of the State of Uttarakhand. Since this is again an admitted fact that the private respondent Nos.4 & 5 belong to a caste known as “Momin Ansar” which is undisputedly an OBC caste, they were eligible for grant of both permanent resident certificate as well as the caste certificate, which have been granted in their favour. It was for the Authorities of the State of Uttarakhand who were the proper authorities to issue these certificates to the private respondent nos. 4 and 5. 4. What the learned counsel for the petitioners, however, would point out to this Court is Annexure No.10 of the writ petition, which is an affidavit allegedly sworn and submitted by the private respondent no. 5 and a second affidavit is alleged to have been sworn by private respondent No.4 in the year 2013 deposing therein that he had born in Village Basedi Khadar, Tehsil Laksar, District Haridwar and residing there since birth. This, according to the petitioners, is a false affidavit. 5. The private respondent nos. 4 and 5, on the other hand, deny that they gave any such affidavit to any Authority in the year 2013 and moreover there was no occasion for them to have given such an affidavit inasmuch as the heading of the affidavit clearly shows that it is for the purpose of grant of OBC certificate, whereas the private respondent Nos.4 & 5 had already received their OBC caste certificates in the year 2008 and 2002 respectively and after 2008 none of the private respondents have received any OBC caste certificate. Therefore, it is wrong to say that they had moved a false affidavit for issuance of the caste certificate. 6. It is undoubtedly true that in case it is established that the private respondent Nos.4 & 5 had procured the caste certificates falsely or by giving a false affidavit, such false caste certificates are liable to be quashed and the criminal proceedings could also be launched against them. But the fact remains that it has nowhere been proved that these caste certificates have been procured by the private respondents by submitting wrong details. 7. But the fact remains that it has nowhere been proved that these caste certificates have been procured by the private respondents by submitting wrong details. 7. This Court is not inclined to accept the argument of the learned counsel for the petitioners for the simple reason that since the OBC certificates were granted in favour of the private respondent nos. 4 and 5 much prior, i.e. in the year 2008 and 2002 respectively, and on the basis of which, they became teachers in Government Primary Schools in the year 2006 and 2007 respectively. Therefore, there was no occasion for the private respondent nos. 4 and 5 to move an application for issuance of another caste certificate in the year 2013. 8. Learned counsel for the petitioners has relied upon the judgment of Hon’ble Apex Court in the case of Rajeshwar Baburao Bone Vs. State of Maharashtra reported in (2015) 14 SCC 497, where the Hon’ble Apex Court has held that if a caste certificate is taken by fraud, the benefits of the same are liable to be withdrawn. However, as it has already been stated above that the facts of this case are entirely different. It has not been established that the certificates which the private respondents have procured was on the strength of the false affidavits. Learned counsel for the petitioners has also relied upon paragraph 10 of the judgment of a Division Bench of this Court in the case of Smt. Ranjana Kumari Vs. State of Uttaranchal and another, passed in Writ Petition (S/B) No. 297 of 2007. Paragraph 10 of the said judgment reads as under:- “10. Be that as it may, the said judgment had and has no bearing in the matter of grant of a Scheduled Caste certificate. The right of a Scheduled Caste is created on the date he or she is born. Since that right is affixed with the birth of the person, the same is affixed with the State in which such right has accrued. Petitioner, therefore, as a member of Scheduled Caste community, acquired rights applicable to members of the Scheduled Caste community of the State of Punjab on and simultaneously with her birth in Punjab. The moment she migrated to the State of Uttarakhand, whether on being married or otherwise, she did not bring with her the right that she acquired in the State of Punjab. The moment she migrated to the State of Uttarakhand, whether on being married or otherwise, she did not bring with her the right that she acquired in the State of Punjab. So far as the State of Uttarakhand is concerned, she never acquired any such right.” 9. What has been stated in paragraph 10 of the above judgment is pretty much what is the settled law in such cases, which in fact is also the mandate of Article 341 of the Constitution of India. Article 341 of the Constitution of India reads as under:- “341. Scheduled Castes. – (1) 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 castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 10. There are catena of decisions of the Hon’ble Apex Court on Article 341 of the Constitution of India wherein it has been clearly laid down that a person who belongs to a backward caste in State ‘A’ cannot get the benefit of the same caste in State ‘B’ even though the same caste is also declared as a “backward caste” in that State. This is for the reasons that the caste to which he belongs was declared as a backward caste by the President of India in consultation with the Governor of his State and not in consultation with the Governor of the State where he wants to get the benefit. 11. This is for the reasons that the caste to which he belongs was declared as a backward caste by the President of India in consultation with the Governor of his State and not in consultation with the Governor of the State where he wants to get the benefit. 11. All the same, in the present case because of the admitted facts that the State of Uttarakhand itself was carved out from the State of Uttar Pradesh on 09.11.2000 by an Act of Parliament known as Uttar Pradesh Reorganization Act, 2000, and when “Momin Ansar” was declared as an OBC caste in Uttar Pradesh, it was for the entire territory of Uttar Pradesh and not for any region which included the present territory of the State of Uttarakhand, which at relevant time was the part of the Uttar Pradesh and the same analogy will not apply in the present case. Therefore, both the contentions of the learned counsel for the petitioners cannot be accepted. 12. In view of the above observations, the writ petition fails and is hereby dismissed.