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Bans Bahadur vs State Of U.P.Thr.Prin Secy Home … on 6 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 17

Case :- SERVICE SINGLE No. – 8228 of 2008

Petitioner :- Bans Bahadur

Respondent :- State Of U.P.Thr.Prin Secy Home Dept.Of Civil Sectt.

Counsel for Petitioner :- P R Maurya,Rajendra Prasad,Shiv Prakash Shukla

Counsel for Respondent :- C.S.C

Hon’ble Manish Mathur,J.

1. Heard Sri Shiv Prakash Shukla learned counsel for petitioner and the learned State Counsel appearing on behalf of opposite parties.

2. Petitioner has challenged order dated 9th December, 2008 whereby he was removed from service on the post of Head Constable in police department on the ground that appointment had been obtained by him on the basis of a forged caste certificate.

3. As per averments made in the petition, petitioner was selected on the post of Constable on 16th August, 1997 on the basis of caste certificate dated 26th June 1994 indicating him to be a person belonging to scheduled tribes granting benefit of exemption from minimum height required for entering into service.

4. It has been stated that petitioner was born to his natural parents who belong to ‘Chamar Community’ under schedule caste category but subsequently he was adopted on 7th March, 1981 by late Fenku alias Samharu Buksha and Smt. Chanauli Devi belonging to scheduled tribes category under provisions of Hindu Adoption and Maintenance  Act, 1956 although the said adoption deed was unregistered. It has been further stated that on the basis of adoption deed petitioner was also recorded in family register of Sri Fenku and on that very basis, caste certificate was issued indicating him as belonging to scheduled tribe.

5. It has been stated that after gaining entry into service and after promotion on post of Head Constable, a charge sheet dated Ist September, 2005 was issued to petitioner with the allegation that he belongs to ‘Chamar Community’ under scheduled caste category and therefore was not entitled  to relaxation granted to him considering him as belonging to scheduled tribe. After inquiry into the matter, petitioner was removed from service holding that the caste certificate was a forged document.

6. Learned counsel for petitioner has submitted that based upon petitioner’s adoption by Sri Fenku and his wife, caste certificate indicating him as belonging to scheduled tribe was issued by competent authorities. He has submitted that even in paragraph 19 of petition it has been stated that the caste certificate dated 26th June, 1994 was never cancelled and is still in existence. He has drawn attention to paragraph 17 of counter affidavit in which the said fact has not been specifically denied. He has further submitted that as per averments made in paragraph 16 of petition, it has been stated that impugned order has been passed without verification of caste certificate from educational institutions where petitioner had obtained education. It has been submitted that the said paragraph has also not been denied in paragraph 15 of counter affidavit.

7. Learned counsel has placed reliance on judgment of Hon’ble Supreme Court rendered in Kumari Madhuri Patil and another versus Additional Commissioner, Tribal Development and others reported in AIR 1995 Supreme Court 94 in which procedure for grant of caste certificates and grievances related to same have been indicated to the effect that all State Governments were directed to form a committee of three officers who had intimate knowledge in verification and issuance of social status certificates and in identifying tribes/tribal communities, parts of or groups of tribes or tribal communities.

8. He has also placed reliance on judgment rendered by Hon’ble Supreme Court in Dayaram versus Sudhir Batham and others reported in  (2012) 1 SCC 333 in which judgment rendered in Kumari Madhuri Patil (supra) was explained by a bench of three Hon’ble Judges of Supreme Court and it was specifically held that scheme for verification formulated in Madhuri Patil case would carry out verification of caste certificates issued without proper inquiry. It was submitted that the case of Kumari Madhuri Patil (supra) provides for verification only to avoid false and bogus claims. Learned counsel for petitioner has also relied upon judgment rendered by Hon’ble Supreme Court in Ayaaubkhan Nookhan Pathan  versus State of Maharashtra reported in AIR 2013 Supreme Court 58 in which both judgments rendered herein above have been followed with  approval.

9. Refuting submissions advanced by learned counsel for petitioner, learned State Counsel placing reliance on the counter affidavit and supplementary counter affidavit has submitted that aforesaid judgments would be inapplicable in the present case since an inquiry was conducted by competent authorities and vide report dated 30th November, 2015 annexed as Annexure No. SCA 2 to the supplementary counter affidavit it was found that caste certificate of petitioner was a forged one since no such caste certificate had been issued. It has been submitted that once the caste certificate was found never to have been issued by competent authorities, there was o occasion to cancel the same. In such circumstances there was also no occasion to refer the matter to committee as indicated in judgments of Hon’ble Supreme Court.

10. Learned State Counsel has also submitted that adoption deed referred to by the petitioner can also not be relied upon in view of the fact that it was an unregistered document and as per State amendment to Section 16 of Hindu Adoption and SectionMaintenance Act, 1956 after Ist January, 1977 no adoption deed can be considered unless it has been registered and since in present case, the adoption deed is of 7th March, 1981, it would be hit by amended provisions of Section 16 of the said Act as indicated herein above. Learned State Counsel has also submitted on the basis of counter affidavit that order impugned does not warrant any interference since the same has been passed after affording opportunity of hearing to the petitioner.

11. Heard learned counsel for parties and perused the record.

12. Since the only issue in present dispute pertains to issuance of caste certificate on the basis of which petitioner was granted entry into service, question of validity or otherwise of adoption deed relating to petitioner would not, in the opinion of this Court, be a relevant issue for consideration of present dispute and as such the validity of caste certificate only is being adjudged.

13. It is an admitted fact that petitioner was granted entry into service on the basis of caste certificate dated 26th June, 1994 thereby granting him certain relaxation admissible to a person belonging to scheduled tribes. It is also an admitted fact that the said caste certificate has never been cancelled by any authority or Court.

14. So far as judgments of Hon’ble Supreme Court pertaining to the issue as indicated herein above are concerned, it can be seen that Hon’ble Supreme Court in the case of Kumari Madhuri Patil (supra) has clearly held in paragraph 12(iv) that all State Governments shall constitute a committee of three officers namely (i) an Additional or Joint Secretary or any office higher in rank of the Director of  concerned department,(ii) the Director, Social welfare/Tribal Welfare/ Backward Class Welfare, as the case may be, and (iii) in the case of Scheduled Castes, another officer who has intimate knowledge in verification and issuance of social status certificates. In case of the scheduled Tribes, Research Officer who has intimate knowledge in identifying tribes, tribunal communities, parts of or groups of tribes or tribal communities. The said case has indicated a clear procedure to be adopted while issuing a caste certificate. The relevant paragraph of the said judgment is as follows:-

“12. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.

4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.”

15. The judgment of Kumari Madhuri Patel(supra) was subsequently considered by Hon’ble Supreme Court in Dayaram versus Sudhir Batham (supra) in which the scheme for verification formulated in Kumari Madhuri Patil’s case was approved while holding that matters pertaining to caste certificate are subject matter of judicial review of this Court under SectionArticle 226 of Constitution of India. It has been held that the purpose of scrutiny committees as indicated in Kumari Madhri Patil’s case is to carry out verification of caste certificates which have earlier been issued. Relevant paragraph of the said case is as follows:-

“23. Having regard to the scheme for verification formulated by this Court in Madhuri Patil, the scrutiny committees carry out verification of caste certificates issued without prior enquiry, as for example the caste certificates issued by Tehsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self- affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper inquiry, such caste certificates will not call for verification by the scrutiny committees. Madhuri Patil provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one and a half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter.”

16. Both the aforesaid judgments were subsequently considered again by Hon’ble Supreme Court in Ayaaubkhan Nookhan Pathan (supra) with approval. The said case also pertained to verification of caste certificate issued earlier against which a complaint had been made. Hon’ble Supreme Court in the said judgment has clearly held that the purpose of issuing directions in Dayaram (supra) and Kumari Madhuri Patil (supra) was only to examine those cases where caste certificates had been issued without conducting any prior inquiry, on the basis of self affidavits regarding one’s caste alone. It was held that said directions would not be applicable in cases where caste certificates were issued by holding proper inquiry in accordance with  duly prescribed procedure since the same would not require any further verification by scrutiny committee. Relevant paragraph of the said judgment is as follows:-

“39. Thus, it is evident from the aforesaid judgment in Daya Ram (supra), that the purpose of issuing directions in Km. Madhuri Patil (supra), was only to examine those cases, where caste certificates had been issued without conducting any prior enquiry, on the basis of self- affidavits regarding one’s caste alone, and that the said directions were not at all applicable, where a legislation governing or regulating the grant of caste certificates exists, and where caste certificates are issued after due and proper enquiry. Caste certificates issued by holding proper enquiry, in accordance with duly prescribed procedure, would not require any further verification by the scrutiny committee.”

17. A perusal of aforesaid judgments clearly indicates the fact that a due procedure has been laid down by Hon’ble Supreme Court in order to test the genuineness of a caste of person either prior to issuance of caste certificate or even after issuance of such caste certificate on the basis of certain complaints made against a person. However the procedure indicated in said judgments would be inapplicable in case caste certificates have been issued after proper inquiry and not only on the basis of self affidavits. The said procedure presumably has been laid down on account of the fact that a caste certificate once issued after proper inquiry does not require any further verification and would stand on a better footing than a caste certificate issued without any prior inquiry.

18. In the present case it can be seen from a perusal of the caste certificate that it was issued after conduct of inquiry. In such circumstances, it can be said the caste certificate was issued to petitioner after finding his claim to be genuine and therefore there was no requirement of remitting the matter pertaining to petitioner’s caste certificate to the committee as indicated in the said judgments.

19. However in the present case, it is not the case of opposite parties that caste certificate has been wrongly issued. On the contrary, it is the case of opposite parties that caste certificate of petitioner was never issued at all and therefore also there was no occasion to have referred the matter to committee as indicated in aforesaid judgments of Hon’ble Supreme Court.

20. In order to buttress his submissions regarding aforesaid, the learned State Counsel has placed reliance on the inquiry report dated 30th November, 2015 submitted by Tehsildar Sigadi, Azamgarh with the submission that a proper inquiry had taken place with regard to caste certificate of petitioner whereafter it was found that no such caste certificate had ever been issued. It was therefore submitted that there was no occasion to cancel the caste certificate since it was void document even otherwise.

21. A perusal of the impugned order dated 9th December, 2008 makes it clear that the caste certificate pertaining to petitioner has been found to be a forged document on the basis of an inquiry report which was submitted to authorities concerned. Although impugned order does not indicate the date of any such inquiry report, but in paragraph 13 of counter affidavit, it has been submitted that impugned order was passed on the basis of report of Tehsildar dated 18th January, 2008. Although a copy of said report is not on record, but a copy of the same has been furnished by learned State Counsel which is therefore taken on record.

22. In the supplementary counter affidavit dated 15th February, 2016/3rd March, 2016 it has been submitted that even during pendency of petition, another verification exercise was carried out and even as per subsequent report dated 30th November, 2015 submitted by Tehsildar Sigari, District Azamgarh, it has been found that no such caste certificate had been issued in favour of petitioner. Said report dated 30th November, 2015 also refers to earlier report dated 18th January, 2008.

23. A perusal of the report dated 18th January, 2008 clearly indicates the submission that the caste certificate pertaining to petitioner can not be verified since registers pertaining to 1994 were unavailable. Despite the same, in single line it has been indicated that petitioner belongs to ‘Chamar’ caste and is therefore belonging to scheduled caste category and not scheduled tribe. The said report does not indicate as to how the authority concerned reached the conclusion that petitioner belonged to ‘Chamar’ caste.

24. Even in the report dated 30th November, 2015 it has been indicated that verification of caste certificate pertaining to petitioner can not be done since registers/records pertaining to the year 1994 are unavailable. However even in the said report dated 30th November, 2015 it has been indicated that as per local inspection, petitioner was found belonging to ‘Chamar’ caste and therefore under the scheduled caste category.

25. It is quite apparent from a reading of said two reports i.e. 18th January, 2008 and 30th November, 2015 that it is the specific case of opposite parties that caste certificate of petitioner can not be verified in the absence of relevant records. Thereafter both the reports have mentioned petitioner belonging to ‘Chamar’ caste without indicating any material to reach such a conclusion. The said reports also do not indicate whether petitioner was ever asked to produce any record to substantiate his claim. In fact reading of the said reports makes it clear that petitioner was not at all involved at any stage during the alleged inquiries into the caste certificate. As such it can be said that neither the report dated 18th January, 2008 nor the report dated 30th November, 2015 are based on any cogent evidence.

26. The impugned order dated 9th December, 2008 also clearly indicates that petitioner has been removed from service only on the basis of report submitted by Tehsildar. No independent evidence or conclusion has been drawn by the authority concerned while passing impugned order. Since it has already been held herein above that neither the report dated 18th January, 2008 nor the report dated 30th November, 2015 inspire any confidence and are actually not based on any cogent evidence, the said factor would definitely vitiate even the impugned order dated 9th December, 2008.

27. Once Hon’ble Supreme Court has clearly indicated a procedure which is required to be followed in case of caste certificates, it is incumbent upon all authorities of the State to have followed such a procedure. Even if the authorities concerned did not find the caste certificate of petitioner to be genuine, it was always open to them to refer  the matter to committee as indicated in the aforesaid judgments. Such recording of caste of petitioner independently without adverting to the committees renders the entire decision vitiated.

28. In view of aforesaid, a writ in the nature of Certiorari is issued quashing the order dated 9th December, 2008 removing petitioner from service. A further writ in the nature of Mandamus is issued directing the opposite party No.3 i.e. Superintendent of Police, District Lakhimpur Kheri to reinstate the petitioner in service with all consequential service benefits. However arrears of salary admissibly to petitioner shall be confined to only 50% of the basic salary and emoluments as revised from time to time in view of the fact that petitioner actually did not perform any duty during the said period. The orders pertaining to reinstatement of petitioner shall be issued within a period of one week from the date a copy of this order is produced before the said authority and orders pertaining to payment of arrears of service benefits including salary, emoluments etc. shall be made within a period of six months from the date a copy of this order is produced before the said authority.

29. In terms of the aforesaid, the writ petition stands allowed.

Order Date :- 6.11.2019

prabhat

 

 

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