MADAN MOHAN GOND Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE writ petitioner is in appeal against the judgment dated 29th August 2013 passed in WPC No. 6140/2012 by the learned Single Judge refusing to entertain his writ application. The appellant being aggrieved by the order dated 14th September 2012 passed by the Sub Divisional Officer, Pakur cancelling his election as Mukhiya of Shaharkol Panchayat, had preferred the writ application seeking quashing of the same. The appellant had contested the election for the post of Mukhiya of the said panchayat falling within the district of Pakur claiming himself to be a member of the Scheduled Tribe on the basis of a caste certificate issued by the Sub Divisional Magistrate. The appellant was declared elected for the said post. The respondent No. 4 challenged his election before the Sub Divisional Magistrate, Pakur on the ground that he does not belong to the Scheduled Tribes Category and was not eligible to contest the election as a Scheduled Tribe Candidate for the post of Mukhiya of Shaharkol Panchayat.

(2.) ACCORDING to the respondent No. 4, the petitioner belongs to the caste 'Gode' and not 'Gond'. Sub Divisional Officer, Pakur after hearing the appellant and the respondent No. 4 and after going through the inquiry report prepared at the direction of the Deputy Commissioner, Pakur came to the conclusion that the petitioner has been elected on the post of Mukhiya on false representation of being a Scheduled Tribe candidate for the reserved seat of Shaharkol Panchayat and cancelled his election.

(3.) LEARNED Senior Counsel for the appellant has submitted that the impugned judgment suffers from error as the learned Single Judge has erroneously held that such disputed questions of fact can be adjudicated in the declaratory suit before the competent civil court. According to the appellant, in a circumstance relating to the determination of question whether a particular person falls within the Scheduled Caste/Scheduled Tribe category or otherwise, the Hon'ble Supreme Court in the case of Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others [ : AIR 1995 SC 94] has clearly directed that such an issue should be resolved by a Caste Scrutiny Committee. It has been submitted that such committee has been constituted by the State of Jharkhand vide notification dated 8th July 2004 and the committee comprises of Commissioner and Secretary, Social Welfare Department, Tribal Welfare Commissioner, person nominated by the State Government having special knowledge of Scheduled Caste/Tribe and Managing Director, Scheduled Tribe Cooperative Development Corporation. Therefore, the learned Single Judge committed an error in not entertaining the writ application and relegating the petitioner to seek a declaration from the competent civil court. Learned Senior Counsel has submitted that the very issue whether 'Gaur/Gond' community is to be treated as a Scheduled Tribe and the same as 'Gond', has been decided by the Government of Bihar vide its DOPT resolution dated 20th July 2007 which is enclosed as annexure -13 to the instant appeal. It is submitted that the State of Jharkhand in the revised list of Most backward caste and backward caste published on 31st March 2010 vide resolution No. 1816 of DOPT, Government of Jharkhand, has also deleted 'Gond' community from the list of Most backward Class at serial No. 24 of the earlier list. According to the appellant, Sub Divisional Officer, Pakur issued a caste certificate in favour of the petitioner on 2nd September 2005 (Annexure -5) categorically declaring him to be the member of the Scheduled Tribe category which cannot be annulled by the Sub Divisional Magistrate in a election petition preferred by the respondent No. 4. It is submitted that the impugned order passed by the Sub Divisional Magistrate therefore suffers from complete lack of jurisdiction and the only authority which could have determined the correctness of the caste certificate, is the Caste Scrutiny Committee created by the State of Jharkhand in terms of judgment passed by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (Supra). Counsel for the appellant submits that the list of most backward caste published in the year 1991 for the purposes of reservation under The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Ordinance, 1991 earlier contained the 'Gour' or 'Gonr' community in the list of Extremely Backward and Backward Classes at serial No. 24. The matter was though considered by the State of Bihar and by resolution dated 20th July 2007, 'Gour/Gonr' community and 'Gond' community have been treated to be the member of the Scheduled Tribe Community. The State of Jharkhand have also followed the same resolution vide annexure -12 and deleted the 'Gour'/'Gonr' community from the list of Most Backward Classes. The appellant deserves to be treated as a member of the scheduled tribe and his election could not have been set aside by the Sub Divisional Officer, Pakur in the election appeal No. 01/12 -13 at the instance of the respondent No. 4. It has been further submitted on behalf of the learned Senior Counsel that the learned Single Judge has failed to appreciate the entire facts and erroneously dismissed the writ petition.