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2018 DIGILAW 53 (UTT)

Hirdesh Devi v. State of Uttarakhand

2018-02-16

SUDHANSHU DHULIA

body2018
JUDGMENT : 1. It is the claim of the petitioner that she belongs to the caste Dhangar, which is a Scheduled Caste community, as is given in the Presidential Order of 1950, which is an order related to the Uttar Pradesh. It is true that in the said order passed under clause (1) of Article 341 of the Constitution of India, Dhangar is placed in the Scheduled Caste community in the erstwhile State of Uttar Pradesh. After creation of the State of Uttarakhand by the Parliament under the U.P. Reorganization Act, 2000, Dhangar is a Scheduled Caste in the State of Uttarakhand as well. In other words, Dhangar is a Scheduled Caste community. 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, 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.” 2. Petitioner was elected as Pradhan of Village Aurangabad, Tehsil and District Haridwar. The present private respondent no. 6, who is also a member of the Scheduled Caste community, made a complaint with the State authorities, which was ultimately referred to the State Government claiming that the petitioner is not a member of the Scheduled Caste community, but in fact, she is a member of Other Backward Castes (OBC) as by trade, the petitioner is a Gadariya, i.e. shepherd, and the petitioner has wrongly claimed to be a member of the Scheduled Caste community. The matter was referred to the Scrutiny Committee which came to the conclusion that the petitioner’s brother has been given the OBC Certificate and therefore the petitioner also belongs to OBC community, and not to the Scheduled Caste community. 3. The matter was referred to the Scrutiny Committee which came to the conclusion that the petitioner’s brother has been given the OBC Certificate and therefore the petitioner also belongs to OBC community, and not to the Scheduled Caste community. 3. The main contention of the learned Counsel for the petitioner is that Scheduled Caste is defined under clause (24) of Article 366 of the Constitution of India which reads as under: “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purpose of this Constitution” 4. The Constitution under Article 341 declared Dhangar as a Scheduled Caste community and notified this caste as such for the State of U.P. and subsequently for the State of Uttarakhand as well. Merely because for some reason, the brother of the petitioner at some stage has been given certificate of OBC cannot be a ground for coming to the conclusion that the petitioner in fact belongs to OBC community, and not to the Scheduled Caste community. 5. The controversy came up for hearing before a Division Bench of the Allahabad High Court which by its judgment and order dated 14.3.2012 referred the matter to National Commission for Scheduled Castes (respondent no. 5 herein) to decide as to whether Dhangar is a Scheduled Caste or not. The confusion actually arose when in the year 1986, Government of Uttar Pradesh issued the list of Scheduled Castes in Hindi wherein the caste /kuxj (Dhangar) has been changed to /kkaxj . The National Commission for Scheduled Castes examined the matter and came to the conclusion that Dhangar is a Scheduled Caste and directed that the Scheduled Caste certificate be given to the members belonging to /kuxj (Dhangar) community, and not to /kkaxj caste. 6. Despite all this, when the Scheduled Caste certificate was not issued to the petitioner by the authority concerned, the petitioner filed the Writ Petition (M/S) No. 1510 of 2016 before this Court wherein by order dated 2.6.2016, this Court referred the matter to the Scrutiny Committee (respondent no. 4 herein). The Scrutiny Committee after examining the issue recommended vide its order dated 1.10.2016 to cancel the caste certificate of the petitioner and thereafter subsequent order dated 27.10.2016 was passed canceling the Scheduled Caste Certificate of the petitioner. 7. 4 herein). The Scrutiny Committee after examining the issue recommended vide its order dated 1.10.2016 to cancel the caste certificate of the petitioner and thereafter subsequent order dated 27.10.2016 was passed canceling the Scheduled Caste Certificate of the petitioner. 7. It appears that this aspect which has been considered in detail by the National Commission for Scheduled Castes and the order passed by it has not been taken into consideration by the Scrutiny Committee. 8. Consequently, I allow this writ petition and set aside the impugned orders dated 1.10.2016 and 27.10.2016 and direct the Scrutiny Committee (respondent no. 4) to reconsider the issue and take a decision in the matter in the light of the facts discussed above.