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2022 DIGILAW 1912 (ALL)

Raj Mangal Gond v. State of U. P.

2022-12-05

AJIT SINGH, SIDDHARTHA VARMA

body2022
JUDGMENT : Siddhartha Varma, J. Heard learned counsel for the parties. 1. The petitioner who claimed himself to be a Gond with a permanent domicile of Village Kasamriya, District Maharajganj had a Caste Certificate of being a Scheduled Caste which was dated 6.6.1996. However, when the parliament in the exercise of its power under Article 342(2) of the Constitution of India brought the Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 2002 and had considered Gond Caste residing in the District Maharajganj to be of the Scheduled Tribe, the petitioner again applied for a certificate holding that the petitioner was of the Scheduled Tribe. When the Tehsildar who was adjudicating the matter held that the petitioner was not of the Gond Caste but was of the Kahar caste, the petitioner challenged the matter before the District level Caste Scrutiny Committee, Maharajganj. On 04.10.2014 the District level Caste Scrutiny Committee, Maharajganj remitted the matter back to the Tehsildar for examining the evidence and directed him to reconsider the evidence and thereafter to issue the Caste Certificate in accordance with law. On 27.11.2014, the Tehsildar issued a Caste Certificate to the petitioner which indicated that the petitioner was of the Scheduled Tribe. The Caste Certificate according to the petitioner which was issued on 27.11.2014 was a certificate, which was issued by hand and since there were subsequent Government Orders which desired that a candidate had to have a Caste Certificate “Online” the petitioner applied again for the issuing of a Caste Certificate “On-line”. The petitioner alongwith certain other individuals who were also of the Scheduled Tribe applied for the issuing of the Caste Certificate On-line. The applications, however, were rejected in a mechanical manner and, therefore, the petitioner along with certain other individuals filed a writ petition being Writ-C No. 15552 of 2020 (Anoop Kumar Gond and 70 Others vs. State of U.P. and 4 Others), which was disposed of on 12.10.2020 with the following order:- “This writ petition has been filed, inter alia, for the following relief; "(i) Issue a writ order or direction in the nature of mandamus directing the respondents to take into consideration the Census-1891 for issuance of Scheduled Tribe certificate to the petitioners." Learned counsel for the petitioners stated that the petitioners have filed applications before the concerned Tehsildars for issuance of Caste Certificates but till date no order has been passed. Heard learned counsel for the parties and perused the record. Considering the facts and circumstances of the case and without expressing any opinion on the merits of the case, we grant liberty to the petitioners to make a comprehensive representation before the respondent-Tehsildars for passing appropriate orders on their applications filed for issuance of Caste Certificates within two weeks from today along with a copy of this order enclosing therewith a copy of the writ petition and its annexures and, if any such representation is made, the said authority shall make all endeavour to consider and pass appropriate orders on the same in accordance with law expeditiously preferably within 60 days from the date of receipt of the said representation. The writ petition stands disposed of. ” 2. Thereafter, in pursuance of the High Court's order, the impugned order dated 26.2.2021 was passed by the Tehsildar-Sadar, District Maharajganj. His order has been based on a certain enquiry report of the revenue authorities. Since the orders of the Tehsildar had rejected the claim of the petitioner to be declared as a Gond, which was Scheduled Tribe and he had in fact considered him as “Kahar”, the petitioner has filed the instant writ petition. Learned counsel for the petitioner states that when earlier the Tehsildar on 27.11.2014 had already passed an order to the effect that the petitioner was to be considered a member of the Scheduled Tribe and a certificate was also issued to that effect then the Tehsildar, who did not have the authority or jurisdiction to hold a fresh enquiry in support of the claim of the petitioner while considering the claim of the petitioner to issue On-line Caste Certificate, could not pass the order impugned. Learned Counsel for the petitioner submits that the matter ought to have been referred by the Tehsildar, if he was doubting whether the petitioner was of the Scheduled Tribe, to the District Level Caste Scrutiny Committee, Maharajganj. 3. Learned counsel for the petitioner submits that the Caste Scrutiny Committee was formed by the State Government, as per the Government Order dated 28.02.2011. Learned counsel for the petitioner relied upon the paragraphs no. 3. Learned counsel for the petitioner submits that the Caste Scrutiny Committee was formed by the State Government, as per the Government Order dated 28.02.2011. Learned counsel for the petitioner relied upon the paragraphs no. 3 and 4 of the Government Order which are being reproduced here asunder:- ^^3- blh lanaHkZ es nk;j fjV ;kfpdk la[;k & 1396@2011 ¼ihŒvkbZŒ,yŒ½ Fkk: 'kfDr lfefr egkjktxat o vU; cuke mŒizŒ jkT; o vU; eS tkfr izek.ki=ks ds lR;kiu ds laca/k es ekŒmPp U;k;ky; ds vkns'k fnukad 12-1-2011 es fn;s x;s laoh{k.k ds ifjis{; es tkfr izek.k i=ks ds lR;kiu dh O;oLFkk dks vkSj vf/kd ikjn'khZ rFkk lqxe cuk;s tkus gsrq tuin Lrj ij Hkh fuEukuqlkj lfefr xfBr dh tkrh gS 1- ftykf/kdkjh v/;{k 2- ftykf/kdkjh }kjk ukfer ,d vij ftykf/kdkjh Lrj dk vf/kdkjh lnL; 3- ftykf/kdkjh }kjk ukfer ,d mi ftykf/kdkjh lnL; 4- ftyk lekt dY;k.k vf/kdkjh lnL; lfpo ¼vuqŒ tkfr@vuqŒtutkfr gsrq½ ,oa ftyk fiNM+k oxZ dY;k.k vf/kdkjh ¼vU; fiNM+k oxZ gsrq½ mijksDr lfefr ds le{k ;FkkfLFkfr vH;FkhZ ds }kjk Loa;] mlds ekrk&firk ;k vfHkHkkod }kjk fdlh 'kSf{kd laLFkk es izos'k gsrq vFkok fdlh lsok es fu;qfDr ds fy, tkfr izek.k i=ksa ds lR;kiu gsrq vkosnu izLrqr fd;k tk;sxk] ftl ij lfefr }kjk lR;kiu dh iqf"V foyEcre 15 fnu dj nh tk;sxhA 4- blds vfrfjDr mDr lfefr }kjk tkfr izek.ki=ks ds laca/k esa fuEu izdkj ds ekeyks dk Hkh fUlrkj.k fd;k tk;sxk%& 1- fdlh fu;qfDr ds i'pkr lsok;kstu }kjk lsod ds tkfr izek.ki= ds lR;kiu@iqf"V gsrq izLrqr fd;s x;s ekeysA 2- fdlh O;fDr vFkok O;fDr;ksa ds lewg ds laca/k es tkfr izek.k i=ksa u cuk;s tkus laca/kh f'kdk;rksa ds ekeysA 3- tkfr izek.ki=ks ds QthZ gksus vFkok =qfViw.kZ tkfr izek.k i= cuk;s tkus laca/kh ekeysA 4- tkfr izek.ki=ksa ds lac/ka es fdlh vU; folaXkfr ds ekeysA^^ 4. Learned counsel for the petitioner in this regard also relied upon the judgements reported in 2011(1) ADJ 440 (DB), Hizwana Bano vs. State of U.P. and Others, 2014(8) ADJ 690 (DB), Praveen Kumar vs. State of U.P. and Others and 2015(8)ADJ 275 (DB), Rajesh Kumar Gond vs. State of U.P. and others. 5. Learned counsel for the petitioner in this regard also relied upon the judgements reported in 2011(1) ADJ 440 (DB), Hizwana Bano vs. State of U.P. and Others, 2014(8) ADJ 690 (DB), Praveen Kumar vs. State of U.P. and Others and 2015(8)ADJ 275 (DB), Rajesh Kumar Gond vs. State of U.P. and others. 5. Learned Standing Counsel, however, in opposition to the writ petition has submitted that the Tehsildar was the issuing authority of the Caste Certificate and if the petitioner was aggrieved by the decision arrived at by the Tehsildar then he should have filed an Appeal under the provisions of Uttar Pradesh Public Interest Guarantee Act, 2011 before the Sub-Divisional Magistrate. 6. Having heard the learned counsel for the petitioner, Sri H.R. Misra, learned Senior Advocate assisted by Sri K.M. Misra and Sri Swatantra Pratap Singh, learned counsel for the petitioners and the learned Standing Counsel, the Court is definitely of the view that when the Tehsildar had already earlier issued a certificate and was only issuing a fresh certificate “On-line” then he could not enter into the merits of the matter. The jurisdiction to verify the Caste Certificate and as to whether it should be validated or in-validated lay with the Caste Scrutiny Committee under the Government Order dated 28.02.2011. The authority i.e. the Tehsildar, which had earlier issued the Caste Certificate had no jurisdiction to cancel the same except when the Caste Certificate had been obtained by playing fraud or by concealing any relevant fact. In the instant case when the Tehsildar had cancelled the Caste Certificate issued by him on 27.11.2014, there was no finding in the impugned order that the earlier certificate was obtained by the petitioner by playing fraud on any authority. As a result, the impugned order dated 26.02.2021, so far as its relates to the petitioner is quashed and is set aside. 7. With these observations the writ petition stands allowed. 8. The Tehsildar shall issue the “Online” Certificate forthwith. If, however, the Tehsildar doubts the caste or the tribe of the petitioner he may refer the matter to the District Level Caste Scrutiny Committee, Maharajganj.