Hon'ble Sudhanshu Dhulia, J. (Oral)
1. The petitioner by means of this petition has challenged the order dated 19.3.2010 passed by the Scrutiny Committee (Annexure-1 to the writ petition) by which the representation of the petitioner for cancellation of the caste certificate relating to Other Backward Class category (hereinafter referred to as “OBC”) granted in favour of respondent no. 4, has been rejected. The petitioner, therefore, filed present writ petition with the following two main prayers:-
“a) To issue a writ, order or direction in the nature of certiorari quashing the order dated 19.3.2010 passed by Scrutiny Committee (Annexure No. I to this writ petition).
b) To issue a writ, order of direction in the nature of mandamus commanding the respondent nos. 1 & 2 to cancel the Caste Certificate dated 25.3.2008 (Annexure No. II to this writ petition) of the respondent no. 4.”
2. Respondent no. 4 belongs to “OBC” category and is a resident of Laksar, district Haridwar, Uttarakhand. The petitioner has challenged the validity and veracity of the caste certificate granted in favour of respondent no. 4 by the concerned authority in Uttarakhand pertaining to caste “Dhiver”. The contention of the petitioner is that respondent no. 4 does not belong to OBC caste “Dhiver” for which he obtained a certificate, but he actually belongs to a caste called “Kashyap Rajput”, which is not notified an OBC in the State of Uttarakhand. Hence, the petitioner has challenged the order of the scrutiny committee.
3. This case has a rather chequered history which must be stated here briefly. The petitioner had earlier filed a writ petition being Writ Petition No. 683 (PIL) of 2008 (Rajbeer Singh v. State of Uttarakhand) challenging the caste certificate granted in favour of respondent no. 5. The said writ petition was disposed of by this Court on 29.8.2008 with a direction to the District Magistrate to ensure that the representation addressed to him by the petitioner with respect to respondent no. 5 be disposed of on merits in accordance with law very very expeditiously. Meanwhile, a notice had been issued (in another matter) to respondent no. 4 by the District Magistrate, which was challenged by the respondent no. 4 before this Court by means of a writ petition being Writ Petition No. 1695 (MS) of 2009. The writ petition was dismissed on 7.10.2009 and consequently, respondent no. 4 filed a special appeal being Special Appeal No. 197 of 2009. Since the matter was relating to the caste certificate of respondent no. 4, the special appeal was disposed of with the following directions:-
“In view of the above, the instant special appeal is disposed of with the direction to the District Magistrate, Haridwar, to allow the rival parties to lead evidence. The evidence collected by the District Magistrate, Haridwar, shall be submitted to the Secretary, Social Welfare, Uttarakhand, within two months from today, whereupon, the Secretary, Social Welfare, Uttarakhand, after affording an opportunity of hearing to the rival parties, will pass a final order within a further period of one month.”
4. Consequently, the District Magistrate, Haridwar gave a report to the Secretary, Social Welfare, Uttarakhand who passed an order holding that respondent no. 4 belongs to OBC.
5. From the argument of the learned counsel for the parties, what emerged is that though respondent no. 4 may have been born in the State of Uttarakhand in the year 1954 in an area which presently constitute the territory of Uttarakhand i.e Laksar, Haridwar, the fact of the matter is that parents of respondent no. 4 migrated from Punjab. During the argument before this Court the record of Other Backward Class notified in the State of Punjab were placed before this Court. The document given to this Court are not disputed by the petitioner as well as by respondent no. 4. This is the list of the caste, which is notified as OBCs in the State of Punjab where at Sl. No. 35 is “Dhimar”, “Mallah”, “Kashyap Rajputs” meaning thereby “Kashyap Rajput” is a sub caste of “Dhiver” or vice versa. From the school record of respondent no. 4, it appears that the caste of respondent no. 4 is recorded as “Kashyap Rajput”. The petitioner relied upon the school certificate of respondent no. 4 and stated that when respondent no. 4 was admitted in the school the caste was mentioned as “Kashyap Rajput”. Subsequently in the year 2008 on the information received by the petitioner under the Right to Information Act, 2005 the petitioner has come to know that respondent no. 4 on an application had changed it from “Kashyap” to “Dhiver” and the word “Rajput” has been deleted meaning thereby the caste of respondent no. 4 from the school record has been changed and recorded as “Dhiver”/“Kashyap”. It is an admitted position of law that in the State of Uttarakhand while “Dhiver” is notified as an OBC caste, “Kashyap Rajput” is not notified as an OBC caste nor is it a sub caste of “Kashyap”, which is (i.e “Kashyap”) notified as OBC in Uttarakhand. Moreover in the State of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 “Kashyap” is a sub caste of “Kahar” in the State of Uttarakhand (as it is in the State of Uttar Pradesh). The petitioner has submitted two documents (Annexure-16 to the writ petition) wherein respondent no. 4 while admitting his son Sukhvinder Singh and Amarjeet Singh in the school in his own handwriting has stated that the caste of his son has been mentioned as “Kashyap”, which is an OBC in the State of Uttarakhand.
6. The scrutiny committee has relied upon this certificate i.e the caste certificate of the son of respondent no. 4 where his caste is mentioned as “Kashyap”. This certificate could not have been given for two reasons. Firstly; though for determining the caste of a father, the caste certificate of his son though may be material but cannot be a conclusive evidence. Secondly whereas respondent no. 4 contends to be a member to be “Dhiver” as OBC community as he has given a caste certificate to his son as “Kashyap” and “Kashyap” is an OBC in the State of Uttarakhand, whereas respondent no. 4 actually belongs to “Kashyap Rajput”, which is defined in the OBC category only in the State of Punjab, not in Uttarakhand.
7. The caste certificate which has been granted in favour of respondent no. 4 as “Dhiver” were in the year 2003 and in the year 2008. This Court is of the considered view that while granting the caste certificate, the concerned authority had not applied its mind. Throughout respondent no. 4 has been shown as “Kashyap Rajput” and “Kashyap Rajput” is OBC caste in the State of Punjab from where father of respondent no. 4 has actually migrated! Whether respondent no. 4 is “Kashyap” or “Dhiver” is of no material difference inasmuch as both are the sub caste of each other but what is material is that this is so in the State of Punjab. In the State of Uttarakhand “Kashyap Rajput” is sub caste of “Dhiver” and “Kashyap” is sub caste of “Kahar”.
8. In the seminal case, decided on this point by the Apex Court in the case of State of Maharashtra v. Milind reported in [(2001) (1) SCC 4] it has been held that Parliament alone is competent by law to include or exclude a caste/tribe from the list of Scheduled Castes and Scheduled Tribes specified in notifications issued under Clause (1) of the Article 341 and 342. Further it has been laid down by the Hon'ble Apex Court if a caste is shown as OBC in two States the person belongs to one State cannot be given the benefit of reservation in another State, although that caste may be notified also as an OBC in that other State as well. The same analogy has to be drawn in the case of OBC and same principle has also to be applied for OBC as well. Respondent no. 4 is “Kashyap Rajput” from the State of Punjab and in Punjab “Dhimar” is a sub caste of “Kashyap Rajput”. Though respondent no. 4 and their relatives got the certificate from Punjab for “Dhimar” or “Kashyap Rajput” is immaterial. However, respondent no. 4 cannot be given OBC certificate in the State of Uttar Pradesh as “Dhiver”. The Scrutiny Committee has neglected this all important aspect. Respondent no. 4 cannot be considered as OBC in the State of Uttarakhand.
9. For the reasons as discussed above, the writ petition succeeds and the order of the scrutiny committee is liable to be set aside. The consequence of this order would be that respondent no. 4 shall not be given the benefit of the caste certificate which was procured by him purely by way of misrepresentation of facts. He is a “Kashyap Rajput” originally from Punjab. He is only trying to take an advantage of the fact that in Uttarakhand a caste with a name similar to the one in Punjab i.e “Kashyap” is notified as an OBC. Clearly this cannot be permitted.
10. The writ petition succeeds and is allowed, and order dated 19.3.2010 passed by the Scrutiny Committee is quashed.
11. No order as to costs.