Narayan V. Shiroor, vs The Tahsildar,

Verification Committee, dated 09.07.2015, produced at Annexure-"B", insofar as respondent No.2 is concerned.

ii) Pass such other order/orders as this Hon'ble Court deems fit in the facts and circumstances of the case, including an order as to costs, in the interest of justice and equity.

3. The factual matrix are that the petitioner belongs

to Samagar caste, which is notified as scheduled caste

under Article 341 of the Constitution of India and that the

2nd respondent belongs to Category-I backward class

notified by the State under G.O. No.SWD 225 BCA 2000

dated 30th March, 2002. The said notification has been

issued by invoking the power vested with the State under

the Provisions of Articles 15(4) and 16(4) of the

Constitution of India. That the 2nd respondent in collusion

with the 1st respondent has obtained a caste certificate,

certifying him as belonging to a schedule caste community

and that the certificate came to be issued on 19.08.2014. 4

4. It is submitted that aggrieved by the order of the

Tahsildar, the petitioner has preferred an appeal before the

Assistant Commissioner. The Assistant Commissioner

referred the matter to the District Caste Verification

Committee and that the Verification Committee by its

Order dated 23.11.2014, directed respondent No.1-

Tahsildar to verify and cancel the Caste Certificate, issued

in favour of respondent No.2. Pursuant to the orders

passed by the Verification Committee, the Assistant

Commissioner, Batkal has issued a letter to cancel the

Caste Certificate of respondent No.2. But, despite the long

passage of time, respondent No.1 has not taken any steps

to cancel the said caste certificate and to further

complicate the issue, respondent No.1 has addressed a

letter seeking clarification from the Deputy Commissioner

as to whether Grade II Tahsildar like himself had the

jurisdiction to cancel the caste certificate and in response

to the same, the Deputy Commissioner by a

Communication dated 09.07.2015 has issued a direction to

respondent No.1 to cancel the Caste Certificate issued to 5

respondent No.2. The 1st respondent was further put on

notice, in the event of his failure to abide by the direction,

the omission would be viewed seriously. Despite such a

stringent advise, the 1st respondent has omitted to abide

by the direction issued by the competent authority and

hence, the petitioner is before the Court, seeking for a

direction to the 1st respondent to initiate action and comply

with the direction issued by the Deputy Commissioner,

who is also a Chairman of the Verification Committee.

5. The writ petition is stoutly resisted by the 2nd

respondent. Learned counsel appearing on behalf of the

2nd respondent would vehemently contend that the writ

petition itself is not maintainable and that the petitioner

has no locus standi to maintain the writ petition. He would

contend that the petitioner is a third party and he is not a

person, who is affected or aggrieved by the Certificate

issued by the 1st respondent. He would contend that the

order of the 1st respondent is perfectly in order and does

not call for any interference and that the writ petition 6

ought to be rejected at the threshold. In this regard,

learned counsel for the 2nd respondent would place a

reliance on the ruling of the Hon'ble Apex Court, in the

case of Ayaaubkhan Noorkhan Pathan Vs. State of

Maharashtra, reported in Laws(SC)-2012-11-11. He would

draw the attention of this Court to the observations of the

Hon'ble Apex Court at patragraph 5 and would contend

that it is a settled legal proposition that a stranger cannot

be permitted to meddle in any proceeding, unless he

satisfies the Authority/Court, that he falls within the

category of aggrieved persons. He would further contend

that only a person who has suffered, or suffers from legal

injury can challenge the act/action/order etc. in a court of

law. He would contend that the petitioner is a stranger

and has suffered no legal injury and hence, the writ

petition is unsustainable.

6. Per contra, learned counsel for the petitioner

would submit that the petitioner belongs to the schedule

caste category and that the persons belonging to the

scheduled caste as a class have been conferred certain 7

rights by way of reservation and the said right has been

infringed by the act of the respondents by which an undue

advantage has been conferred upon the 2nd respondent,

which he otherwise was disentitled to.

7. He would contend that the omission of the 1st

respondent to remedy the breach of statutory duty is

despite the orders by the statutory authority and by the

authority having superintendence over the 1st respondent

is the cause of action for the writ petition as it amounts to

an act of misfeasance. He would also draw the attention

of the Court to the observation of the Hon'ble Apex Court

with regard to the definition of an aggrieved person as

stated in the aforesaid citation itself. The Hon'ble Apex

Court in the aforesaid decision has in paragraph 7 placed

reliance on its own Judgment in the case of A.Subhash

Babu Vs. State of A.P., reported in AIR 2011 SC 3031,

wherein it was held as follows:

"The expression 'aggrieved person' denotes an elastic and an elusive concept. It 8

cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant"

8. A reading of the above would demonstrate that

the person invoking jurisdiction of this Court must have a

semblance of right, to maintain the petition before this

Court. In the instant case, it is an admitted fact that it is

the petitioner, who has been instrumental in complaining

to the competent authority regarding the illegality of the

Certificate issued to the 2nd respondent, thereby conferring

upon him an undue advantage and entitling him to certain

benefits, which he otherwise in law, was disentitled to. It

is seen that the 2nd respondent has not raised any similar

objection regarding locus standi before the authority and

the entire proceedings has been at the instance of the 9

petitioner. It is seen that the premises on which the writ

petition proceedings have been initiated is on account of

the abdication of duty by the 1st respondent and as held by

the Hon'ble Apex Court that breach of a statutory duty

would constitute a cause of action for a person to maintain

the writ petition. It is also not in dispute that the

petitioner belongs to the scheduled caste community,

whose members alone have been conferred with certain

rights and it is the basis of the plaint of the petitioner, that

the 2nd respondent though not belonging to the said

community and despite being disentitled to the benefit,

has been illegally conferred with similar benefits. In view

of the above discussion, this Court is of the considered

opinion that the above petition complaining breach of

statutory duty is maintainable and the contention of the

2nd respondent regarding maintainability stands rejected.

Hence, the objection to the present petition cannot be

countenance and is accordingly rejected and it is held that

the writ petition is maintainable.

10

9. A useful reference could be made to the

provisions of Section 4-B of the Karnataka SC/ST and

Other BC (Reservation of Appointments, Etc.) Act, 1990

[hereinafter referred to as "the Act 1990" for short] which

provides that any person aggrieved by an order of

Tahsildar issuing a caste certificate may prefer an appeal

before the Assistant Commissioner and in the instant case,

the petitioner had preferred the appeal before the

Assistant Commissioner. It is admitted by the learned

counsel for the 2nd respondent, that no objection relating

to the maintainability of the appeal was raised.

10. Nextly, learned counsel for the 2nd respondent

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 11

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 petition requires

to be rejected.

11. Per contra, learned Special Standing Counsel

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 12

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 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 petitioner 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 13

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. ..."

12. 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 AIR 2006

SC 1177 [Anjan Kumar Vs. Union of India & Ors.] 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 14

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 duty-bound 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."

13. 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 1st respondent, to exercise its

power in a judicious manner and ought to have concluded

as to whether the 2nd respondent belongs 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 15

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 certified issued in favour

of the 2nd respondent, which the 1st respondent 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; reported in

[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,

reported in [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 16

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 petition 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 17

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,..."

18 14. From a summation of the above facts the point

that falls for consideration before this Court is;

Whether the authorities have acted as per the mandate of law?

15. The undisputed facts are that the 1st respondent

has issued a Caste Certificate on 19.08.2014 certifying

that the 2nd respondent belongs to "Moger" Scheduled

Caste Community. It is not made known to this Court as

to whether the 1st respondent held an enquiry as

prescribed by sub-Section (3) of Section 4-A of the Act

1990 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 dated 19.08.2014.

16. It is seen that the petitioner has 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 19

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

restrained to conclude the act as a probable dilatory

tactics. This Court is constrained to construe so in view of 20

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

referring to the 1st respondent and the act of the 1st

respondent in calling for a verification from the Deputy

Commissioner 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 was not supported by the

enactment.

17. In this regard, it is necessary to refer to the

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 being

done in some other manner.

18. The Hon'ble Apex Court in the case of State of

Bihar and another Vs. J.A.C. Saldanna and others,

reported in 1980 SC 326 was pleased to hold at paragraph

17 as follows:

21

"... 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 Ch D 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] Supp 2 SCR 812 at p.823, spelt

out the combined effect of the aforementioned principles

thus;

22

"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. It is mandatory on the Tahsildar to follow 23

such procedure as prescribed before passing the Order

under sub-Section (3).

19. That 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 24

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 - 1st respondent to 25

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.

Accordingly, while holding so, it is to be seen that the relief

sought for i.e., prayer No.(1) sought for by the petitioner

cannot be granted as no powers of cancellation are vested

with the Tahsildar under the provisions of sub-Section (2)

of Section 4-B of the Act 1990 and it is the Appellate

Authority, who alone can either confirm the grant of

Certificate or set aside the Certificate granted.

20. In the peculiar facts and circumstances of the

case, the following direction is issued:

The parties are directed to appear before the jurisdictional Assistant Commissioner, Bhatkal on 06.03.2017 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 26

(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 petition stands disposed of in the above

terms.

Sd/-

JUDGE.

Ksm*