VIJAY SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition has been filed by the petitioner under a very peculiar factual circumstance. The petitioner belongs to "Gond" community which is treated to be Scheduled Caste in the entire State of U.P.. However, in the year 2003 a notification has been issued by the State, whereby in some of the districts inclusive of district Sonebhadra, such community is declared as Scheduled Tribe. The petitioner holds the Scheduled Caste certificate for last eight years and also obtained a fresh caste certificate on 20th August, 2011 from Lucknow where he is permanently residing. He wanted to contest the Assembly election from a constituency of district Sonebhadra, which is reserved for Scheduled Caste. Only on a complaint dated 24th January, 2012, the Tehsildar concerned passed an order cancelling the caste certificate of the petitioner on 27th January, 2012 i.e. within three days of making such complaint in haste. It has been specifically contended in paragraph 19 of the writ petition that even when the petitioner went to file the appeal before the higher authority i.e. Sub-Divisional Magistrate, the same was refused by saying that it will be filed after completion of the Assembly election. It has also been stated that the rejection of nomination paper is outcome of political conspiracy. The petitioner had earlier invoked the writ jurisdiction of this Court by filing Writ Petition No. 5988 of 2012 (Vijai Singh Vs. State of U.P. and others) for consideration of his represenaton by the Election Commission, when by an order dated 02nd February, 2012 this Bench directed the Election Commission to consider the grievance of the petitioner preferably within a period of seven days from the date of communication of the order in view of the urgency. In any event, the present position is that the last date for filing the nomination has already expired because of the nature of order which has been passed by the Tehsildar. Even the petitioner did not get any opportunity to file the appeal. Had it been the case that an appeal has already been filed, there would have been no necessity of interference of the writ Court at such stage.

(2.) In the course of hearing, a question arose whether Tehsildar has any power to cancel the caste ertificate or not, to which we are of the view that under the Uttar Pradesh Janhit Guarantee Adhiniyam, 2011 read with notification dated 15th January, 2011 first designated officer i.e. Tehsildar is to consider the cause of issuance of caste certificate. It is well known that power of issuance of a certificate of an officer includes the power of refusal. Therefore, the first designated officer is entitled to pass such order, with regard to which we can not make any comment as the Supreme Court has held in the judgment (Dayaram Vs. Sudhir Batham and others, 2012 1 SCC 333) following the direction given in (Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others, 1994 6 SCC 241) that it is necessary to form a Committee for the purpose of determination of caste and not by the Tehsildar. We are of the view that a misconception has spread in the society in connection thereto. At one point of time different Commitees were formed and till now the District Level Committee has been formed by the State to consider the definition of the Community whether they belong to Scheduled Caste, Scheduled Tribe or Other Backward Classes or any other caste etc. but not in the cases of invidual whether anybody enjoying caste certificate by playing fraud, mistrepresentation etc. The order of cancellation has been passed as a consequence of issuance of caste certificate by the authority. Law is very clear to that extent. Even in paragraph 22 of the recent judgment i.e. Dayaram it has been held as under:

(3.) Therefore, it can be safely presumed that the authority has no dearth of power. In any event, we are not concerned about the dearth of power but improper use of power. Whenever any complaint is made before the authority concerened, its bounded duty is to call for the record, go through the particulars, take any other evidence and thereafter pass appropriate order but not mechanically within a period of three days from the date of getting complaint. If any governmental authority acts contrary to law, misuse of power in refusing to entertain the appeal then it will touch very basic of the fundamental right and violates the principle of natural justice for which writ Court should entertain and pass appropriate order to streamline the same. If the authority refuses to entertain the appeal or if any authority seems that it is not mere the rejection of the caste certificate but consideration of the cause which caste belongs to and fails to refer the matter to an appropriate Committee in both the counts there will be complete failute in discharging their duty.