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2020 DIGILAW 1924 (KAR)

Killikyatara Parashuramappa v. State Of Karnataka

2020-09-30

G.NARENDAR

body2020
JUDGMENT G.Narendar, J. - In light of the judgment rendered in W.P.No.104832/2016, which reads as under, the instant petition stands disposed of. "ORDER Heard the learned counsel for the petitioners and the learned Special Standing counsel for the respondents. 2. The above writ petitions are preferred praying for the following reliefs: i) Quash the Order under Annexure-"A" - insofar it relates to petitioners at Sl. No.5, page No.3 of Annexure-"A" passed by the 2nd respondent by the issue of a Writ of Certiorari, such other writ, direction or order as in the circumstances this Hon'ble Court deems fit. ii) Quash Annexure-"B" - bearing No.Ji.Sa. Ka.Aa.Moger.C.R.-10/2015- 16/354 dated 09.07.2015 issued by the 2nd respondent by the issue of a Writ of Certiorari, such other writ, direction or order as in the circumstances this Hon'ble Court deems fit. 3. The factual matrix are that the petitioners belong to "Moger" Caste, which they claim is notified as scheduled caste. They obtained caste certificate from the Tahsildar, Bhatkal. Thereafter, they contested the Uttara Kannada Zilla Panchayat Election as Zilla Panchayat Member from reserved category. One Narayan Shiroor has filed appeal against the order of the Tahsildar, Bhatkal before the 3rd respondent-The Assistant Commissioner. The 3rd respondent referred the matter to the 2nd respondent- The Chairman, Uttara Kannada District Caste Verification Committee and Deputy Commissioner. The 2nd respondent without issuing any notice to the petitioners and without affording any opportunities to them, passed an Order dated 23.12.2014 as per Annexure-"A" asking the 3rd respondent to direct the Tahsildar, Bhatkal to cancel the caste certificate of the petitioners. Thereafter, the Tahsildar, Bhatkal appears to have sought for certain clarification for which the 2nd respondent directed the Tahsildar, Bhatkal to take immediate action as per Annexure-"B". The petitioners were unaware of the proceedings before the 3rd respondent and the 2nd respondent. Aforesaid Narayan V.Shiroor filed W.P. Nos.103502 to 103512/2016 before this Court, seeking for direction to the Tahsildar, Bhatkal to cancel the caste certificate issued in favour of the petitioners. The petitioners have received notice from the Hon'ble Court in the aforesaid petitions. The petitioners contended that the 2nd respondent without conducting any enquiry in terms of Rule 7(1) of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments Etc.) Rules 1992, has passed an order as per Annexure-"A" and directed the Tahsildar, Bhatkal to take action against the petitioners. The petitioners contended that the 2nd respondent without conducting any enquiry in terms of Rule 7(1) of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments Etc.) Rules 1992, has passed an order as per Annexure-"A" and directed the Tahsildar, Bhatkal to take action against the petitioners. The Tahasildar, Bhatkal, is pressurized to cancel the caste certificate of the petitioners pursuant to Annexure-"B". Hence these petitions. 4. Learned counsel for the petitioners would contend that the issue as to whether the "Moger" caste/community in the State of Karnataka are scheduled caste or not has been laid to rest by a ruling of the Division Bench of this Court. He would further refer to the pronouncement in W.P. No.11756/2010 dated 29.06.2011 and would submit that the Division Bench has categorically held that in view of the entry at Sl. No.78 of the Notification issued by the Presidential Order under the provisions of Article 341 of the Constitution of India, it is not open for the parties to contend or plead that the "Moger" caste residing or hailing from a particular part of the State alone are entitled to be declared as belonging to the scheduled caste category and plea of "Moger" caste/community hailing or residing in other parts of the State come under the backward caste/community as notified by the State. He would also contend that in view of the ruling by the Division Bench. The question now raised is no more res-integra and the writ petitions require to be allowed. 5. Per contra, learned Special Standing Counsel for the respondents would submit that the issue has not attained finality and in fact, the State has appealed against the same and the Hon'ble Apex Court has condoned the delay vide Order dated 16.10.2012 and that Special Leave to Appeal [Civil] No.28993/2012 is pending consideration before the Hon'ble Apex Court. He would also draw the attention of the Court to the ruling of the Division Bench of this Court in C.C.C. No.2393/2011 [Civil], whereby the Division Bench was pleased to reject the contempt petition and has observed as follows: "3. The State Government had passed a circular contrary to the Presidential Order of 1976 imposing an area of restriction. The said circular of the State Government has been struck down in W.P. No.11756/2010. The State Government had passed a circular contrary to the Presidential Order of 1976 imposing an area of restriction. The said circular of the State Government has been struck down in W.P. No.11756/2010. The Division Bench decision does not deal with the matter, whether the "Moger" Fisherman community comes under Category-I, and the "Moger" Scheduled Caste found in the Presidential Order are one and the same. The order of the learned single Judge also does not determine that the petitioners belongs to "Moger" community belonging to Scheduled Caste. A direction is issued to the Caste Verification Committee to pass an appropriate order and issue necessary certificate, keeping in view the Judgment of the Division Bench and also observation made in the order. 4. On thoroughly going into the facts and the issue, we find that in the first place, it is to be seen that the question whether "Moger" Scheduled Caste and "Moger" Fisherman are one and the same and whether "Moger" Fisherman included under Category-I, could be issued a Scheduled Caste certificate is the question that requires to be determined. " 6. Learned Special Standing Counsel would submit that the issue, as to whether the "Moger" Fisherman community are also included in the list of Scheduled Castes as notified under Article 341 of the Constitution of India has not attained finality. He would place reliance upon another ruling of the Hon'ble Apex Court in [ Anjan Kumar Vs. Union of India & Ors, (2006) AIR SC 1177 .] and submits that a certificate endorsing the person as belonging to the scheduled caste or scheduled tribe is not a largesse to be distributed at the discretion of the authority. He would draw the attention of the Court to paragraph 15 of the said citation, which reads as follows: "The Scheduled caste and Scheduled Tribe Certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities socially, economically and educationally cumulatively. The concerned authority, before whom such claim is made, is dutybound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. Any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty." 7. The concerned authority, before whom such claim is made, is dutybound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. Any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty." 7. Learned Special Standing counsel relying on the observation, quoted supra, and also relying upon the distinction drawn by the Division Bench in the contempt petition, noted supra, would submit that it was required of the authority, being the Tahsildar, to exercise its power in a judicious manner and ought to have concluded as to whether the petitioners belong to "Moger" Fisherman community as notified by the State under the backward class list or "Moger' scheduled caste/community as notified at Sl. No.78 of the Presidential Order notified under the provisions of Article 341 of the Constitution of India. He would further submit that it was this failure that resulted in the statutory authority i.e., the District Caste and Income Certificate Verification Committee, directing the Tahsildar to verify the caste certificate issued in favour of the petitioners, which the Tahsildar has omitted to comply with. He would further rely upon the authoritative pronouncement of the Hon'ble Apex Court in the case of Dayaram Vs. Sudhir Batham and others, (2012) 1 SCC 333 ; wherein the Larger Bench of the Hon'ble Apex Court, hearing the reference with regard to the validity of the direction issued in Madhuri Patil case, (1994) 6 SCC 241 , was pleased to uphold the directions issued by the Two Judges of the Hon'ble Apex Court in Madhuri Patil case and he would further submit that it was mandatory upon the authority issuing the certificate to hold an enquiry and satisfy itself regarding the genuineness of the claim and thereafter pass an order accepting or rejecting the application and in the instant case, the original authority has failed to act inconsonance with the provisions of law. Hence, he would submit that the writ petitions could be disposed of by directing the competent authority to conduct an enquiry as specified under the Act and pass appropriate orders. He would also draw the attention of the Court to the observation of the Hon'ble Apex Court at paragraphs 6 and 7 of Dayaram's case, which reads as follows: "6. Hence, he would submit that the writ petitions could be disposed of by directing the competent authority to conduct an enquiry as specified under the Act and pass appropriate orders. He would also draw the attention of the Court to the observation of the Hon'ble Apex Court at paragraphs 6 and 7 of Dayaram's case, which reads as follows: "6. In Madhuri Patil, a two- Judge Bench of this Court found that spurious tribes and persons not belonging to Scheduled Tribes were snatching away the reservation benefits given to genuine tribals, by claiming to belong to the Scheduled Tribes. This Court found that the admission wrongly gained or appointment wrongly obtained on the basis of false caste certificates had the effect of depriving the genuine Scheduled Castes or Scheduled Tribes of the benefits conferred on them by the Constitution. It also found that the genuine candidates were denied admission to the educational institutions or appointments to posts under the State, for want of social status certificate; and that ineligible or spurious candidates who falsely gained entry resorted to dilatory tactics and created hurdles in completion of the inquiries by the Scrutiny Committee, regarding their caste status. It noticed that admissions to educational institutions were generally made by the parents, as the students will be minors, and they (parents or the guardians) played fraud in claiming false status certificate. 7. This Court was therefore of the view that the caste certificates issued should be scrutinized with utmost expedition and promptitude. To streamline the procedure for the issuance of caste (social status) certificates, their scrutiny and approval, this Court issued the fifteen directions, " 8. The undisputed facts are that the Tahsildar has issued a Caste Certificate certifying that the petitioners belong to "Moger" Scheduled Caste Community. It is not made known to this Court as to whether the Tahsildar held an enquiry as prescribed by sub-Section (3) of Section 4-A of the the Karnataka SC/ST and Other BC (Reservation of Appointments, Etc.) Act, 1990 [hereinafter referred to as "the Act 1990" for short] or whether he has followed the prescribed procedure as mandated by sub-Section (4) of Section 4-A of the Act 1990 while issuing the Caste Certificate. 9. 9. It is seen that the third party had preferred an appeal under sub-Section (1) of Section 4-B of the Act and the Appellate Authority was required to conduct an enquiry after giving both the parties an opportunity of being heard and thereafter it was required to pass orders allowing or dismissing the appeal. In the instant case, the Assistant Commissioner has abdicated the duty cast upon him. On the contrary, he has referred the appeal to the District Caste Verification Committee, which in the considered opinion of this Court is contrary to the provisions of sub-Section (2) of Section 4-C of the Act 1990, which limits the class of people who may refer a certificate for verification to the Committee. A reading of sub-Section (2) of Section 4-A of the Act 1990 would demonstrate that it is only the person, who has obtained the caste certificate under Section 4-A or 4-B of the Act 1990 or the Appointing Authority or any Authority making admission to a course of study in University or any Educational Institution alone are entitled to make the application to the Verification Committee, seeking authentication of the Caste Certificate issued or submitted to them. Thus, the reference of the appeal by the Assistant Commissioner to the Caste Verification Committee is without the authority of law and in the back-drop of the facts of this Case, this court is constrained to conclude the act as a probable dilatory tactics. This Court is constrained to construe so in view of not only the above said act of reference by the Appellate Authority but also the subsequent conduct by the other authorities i.e., the act of the District Verification Committee in referring it to the Tahsildar and the act of the Tahsildar seeking clarification from the 2nd respondent with regard to the powers to pass such an order. A reading of a scheme of the Act would clearly demonstrate that the said action is not supported by the enactment. 10. The Hon'ble Apex Court in the case of State of Bihar and another Vs. A reading of a scheme of the Act would clearly demonstrate that the said action is not supported by the enactment. 10. The Hon'ble Apex Court in the case of State of Bihar and another Vs. J.A.C. Saldanna and others, (1980) AIR SC 326 was pleased to hold at paragraph 17 as follows: " It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the Court would not expect its being done in some other manner ." It was further contended that because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In ex-parte Stephens,1976 3 ChD 659, the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Debi, (1963) Supp2 SCR 812 at p.823, spelt out the combined effect of the aforementioned principles thus; "A general Act must yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way." A reading of the Scheme of the Act mandates that any person or any candidate or his/her parents or guardian desirous of claiming a benefit of reservation under Section 4 either for appointment in any service or post are required to make an application to the jurisdictional Tahsildar. In such form and in such manner as prescribed, for issue of an income and Caste Certificate. Upon receipt of such an application either under sub-Section (1) or sub-Section (2) of Section 4-A of the Act 1990. Sub-Section (3) mandates the Tahsildar to hold such enquiry and after satisfying himself regarding the genuineness of the claim and upon arriving at such conclusion, he is required to issue the Caste Certificate in the prescribed form or reject the application. Sub-Section (3) mandates the Tahsildar to hold such enquiry and after satisfying himself regarding the genuineness of the claim and upon arriving at such conclusion, he is required to issue the Caste Certificate in the prescribed form or reject the application. It is mandatory on the Tahsildar to follow such procedure as prescribed before passing the Order under sub-Section (3). 11. Thus a conjoint reading of the above provision would demonstrate that the Act stipulates the requirement for an enquiry under sub-Section (3) and that the enquiry ought to be in conformity with the procedure prescribed and as mandated by sub-Section (4) of the said Section. Section 4-B of the Act, 1990 stipulates that any person aggrieved by the order of the Tahsildar may prefer an appeal to the Assistant Commissioner of the Divisional sub-Division. Sub- Section (2) of Section 4-B of the Act 1990 stipulates that the Assistant Commissioner of the Revenue Sub- Division after giving both the parties an opportunity of being heard shall pass orders allowing or dismissing the appeal or in appropriate case directing issue of Caste Certificate or Income and Caste Certificate to the applicant i.e., in essence sub-Section (2) empowers the Appellate Authority with limited powers with regard to the relief it could grant. The Assistant Commissioner can either allow or dismiss the appeal or direct issue of Certificate. That in the instant case, the Appellate Authority has ventured to refer the same to the Verification Committee, which power is not vested with the Assistant Commissioner. The Act i.e., sub-Section (2) of Section 4-B having stipulated the nature of the relief and orders that could be granted by the Appellate Authority. The Appellate Authority could not have ventured to grant the relief other than those stipulated under the Act in the light of the above discussion and in the light of the law laid-down by the Hon'ble Apex Court in the case of J.A.C. Saldanna, the act of the Appellate Authority in referring the appeal to the Verification Committee is contrary to the Scheme and mandate of the Act and hence, the same is unsustainable. Consequently, it is held that the reference of the appeal to the Verification Committee and the consequential reference of the same to the Tahsildar by the Verification Committee and the Order of the Deputy Commissioner and the instructions of the Deputy Commissioner directing the Tahsildar to cancel the Certificate are unsustainable being contrary to the principles of law-laid down by the Hon'ble Apex Court and the provisions of the Act 1990 and the provisions of sub-Section (2) of Section 4-B of the Act 1990. In view of the above facts and circumstances and in the light of the view adopted in W.P. No.103502/2016 [GM-CC] dated 16.02.2017, the writ petitions are partly allowed. The order impugned at Annexures-"A" and "B" are set aside and the matter is remitted back to the 3rd respondent-The Assistant Commissioner/Appellate Authority under the Act 1990 for re-consideration. In the peculiar facts and circumstances of the case, the following direction is issued: The petitioners are directed to appear before the jurisdictional Assistant Commissioner, Bhatkal on 20.03.2017 and the Assistant Commissioner, Bhatkal, before whom the appeal was preferred originally shall hear the parties on merits and pass necessary orders in conformity with the provisions of sub-Section (2) of Section 4-B of the Act 1990. That the Authority shall conduct the proceedings strictly in conformity with the law and mandate of the Act. The copy of this order be forwarded to the Assistant Commissioner, Bhatkal for compliance. The writ petitions stand disposed of in the above terms." The impugned order is set-aside and writ petition stands disposed of in the above terms with liberty to respondent No.5 to prefer an appeal. No order as to costs.