JAYASHREE GURUDAS MOGER Vs. TAHASILDAR, BHATKAL

JUDGEMENT

(1.) This is an intra Court appeal directed against the judgment and order of the learned Single Judge in W.P.No.103506/2016 dated 16.02.2017 whereby the learned Single Judge has directed the jurisdictional Assistant Commissioner, Bhatkal, to 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.

(2.) The appellant contends that he belongs to Moger caste which is a Schedule Caste. The appellant obtained Caste Certificate from the Tahsildar, Bhatkal. The appellant contested the Uttara Kannada Zilla Panchayat Election as Zilla Panchayat Member and was elected from reserved category. Later on, the appellant has been elected as Adhyaksha of Zilla Panchayath on 27.04.2016. The respondent No.2 herein had filed an appeal against the order of the Tahsildar, Bhatkal, before the Assistant Commissioner, Bhatkal under Section 4 (B) of the Karnataka Schedule Caste/Schedule Tribe and Other Backward Classes (Reservation of Appointments, etc., ) Act, 1990 (for short 'the Act, 1990') challenging the caste certificate of the appellant. It appears, the Assistant Commissioner, Bhatkal, referred the matter to the Caste Verification Committee, Uttar Kannada District. The Caste Verification Committee had directed the Assistant Commissioner, Bhatkal to instruct the 1st respondent to cancel the caste certificate of the appellant. It is the grievance of the appellant that no opportunity was provided by the Assistant Commissioner as well as the Caste Verification Committee while directing to the 1st respondent to cancel the caste certificate of the appellant. It transpires that the 1st respondent sought clarification from the Deputy Commissioner, Uttara Kannada, who directed the Tahsildar, Bhatkal, to take immediate action to cancel the certificate. It is contended that the appellant is oblivious of these orders passed by the authorities. The 2nd respondent filed Writ Petition No.103506/2016 before this Court seeking for a direction to the 1st respondent to cancel the caste certificate issued in favour of the appellant in pursuance of the letter addressed by the Deputy Commissioner, Uttara Kannada. Learned Single Judge by order dated 16.02017 allowed the writ petition directing the Assistant Commissioner, Bhatkal to dispose of the appeal. Aggrieved by the same, this appeal is preferred by the appellant.

(3.) Learned counsel Sri R.G.Hegde, appearing for the appellant argued that the learned Single Judge lost sight of the relevant aspect that in exercise of the power conferred under Article 341(2) of the Constitution of India, the parliament enacted the Schedule Caste and Schedule Tribe (Amendment) Act, 1976 which was made enforceable with effect from 27.07.1997 and Part VII of the said Act pertains to the State of Karnataka whereby Moger caste is figured at Sl.No.78. The learned Single Judge ought to have appreciated that having regard to the aforesaid Central Act, any Notification issued by the State Government is of no consequence and the Central Act prevails. Nextly, it was contended that the petitioner/respondent No.2 has no locus to challenge the caste certificate issued to the appellant. He has not established how he is an aggrieved person and what legal injury he has suffered. Thirdly, it was argued that the learned Single Judge's view, inasmuch as, the abdication of duty by the 1st respondent as held by the Hon'ble Apex Court constituted a cause of action for a person to maintain the writ petition, is contrary to the provisions of the Act, 1990. Fourthly, it was argued that two division bench judgments of this Court in Writ Petition No.43169/2002 and Writ Petition No.11756/2010 (Public Interest Litigations), having held that whether or not, persons belonging to the Moger caste, residing throughout the State of Karnataka, has to be treated as Schedule Caste irrespective of the place of residence of the members thereof, directed the State Government to issue a Circular to all concerned officers dealing with the grant of certificates in the entire State of Karnataka to ensure compliance of the order passed in W.P.No.11756/2010 dated 29.06.2011.