GURUSIDDAYYA S/O CHANNAYYA HIREMATH vs. THE TAHSILDAR II

1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 3RD NOVEMBER, 2015 BEFORE THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY WRIT PETITION NO.110995/2014 (GM-CC) BETWEEN GURUSIDDAYYA S/O CHANNAYYA HIREMATH AGE 33 YEARS OCC: BEDAJANGAMA VRUTTI, R/O.NEAR KALMESHWAR TEMPLE SAIDAPUR, DHARWAD ... PETITIONER (BY SRI.PRAVEEN KUMAR RAIKOTE, ADVOCATE) AND 1. THE TAHSILDAR II D.C.COMPOUND, STATION ROAD DHARWAD-580001 2. THE REVENUE SHERESTIDAR OFFICE OF THE TAHSILDAR GRADE-II, D.C.COMPOUND DHARWAD-580001 3. THE VILLAGE ACCOUNTANT SAIDAPUR VILLAGE, OFFICE OF THE TAHSILDAR GRADE-II, D.C.COMPOUND DHARWAD-580001 ... RESPONDENTS (BY SRI.C.JAGADISH, SPL.AGA FOR R1-R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER

2 AT ANNEXURE-E DATED NIL, PASSED BY THE 1ST RESPONDENT AND ALSO DIRECT THE 1ST RESPONDENT TO INITIATE ACTION AGAINST THE 2ND RESPONDENT FOR FILING ONE MORE APPLICATION ON BEHALF OF THE PETITIONER AS PER ANNEXURE-F DATED 10.07.14 DATED 10.07.14. THIS WRIT PETITION COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER With the consent of both the learned counsel for appearing for the parties, the matter is taken up for final disposal. 2. The petitioner was issued caste certificate as Beda Jangama, which is a Scheduled Caste under the provisions of Karnataka Scheduled Caste and Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990. The petitioner claims that he belongs to Beda Jangama, which is a Scheduled Caste. For the purpose of his education and employment, the petitioner applied for caste certificate before the respondent No.1. The respondent No.1 issued caste certificate to the petitioner under Section 4-A of the Act after examining and satisfying the requirements under the

3 said Act, 1990. Before issuance of the said certificate, the application filed by the petitioner has been considered, mahazar has been drawn as per Annexure-B and the respondent No.1 himself satisfied that the petitioner belongs to Beda Jangama, which is classified as Scheduled Caste in the schedule. In this circumstance, the certificate issued in favour of the petitioner is strictly and purely in accordance with law. Once caste certificate is issued under Section 4A of the Act, if any person is aggrieved by such certificate can prefer an appeal under Section 4-B of the Act, except the said appeal provision, the Tahasildar himself who has issued certificate has no power to recall the said certificate by way of cancellation. 3. To substantiate his claim, the learned counsel for the petitioner referred the impugned order passed by the Tahasildar, in which without assigning any reason, he has cancelled the certificate, which is arbitrary and contrary to provisions of the Karnataka SC/ST & other BC (Reservation of Appointments, etc.) Act, 1990. He also referred the judgment of this Court in W.P.No.23470/2011

4 between Chandranaik vs. Tahasildar and submits refers to para-4, wherein it has been held as under: “4. Having heard the learned counsel appearing for the parties, it is to be noticed at the outset that the Tahasildar in fact had issued the caste certificate in favour of the second respondent. Therefore, the duty cast on Tahasildar with regard to the issue of caste certificate had already been performed and he had become functus-officio and therefore, the question of reconsidering the matter by Tahsildar at this stage did not arise. If the petitioner had any grievance against the caste certificate which had been issued by the Tahsildar, the petitioner was required to file an appeal as contemplated under Section 4-B of the Karnataka Schedule Caste and Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990 (for short the ‘Act’). The said position is in view of the fact that the certificate issued by the Tahsildar is under Section 4-A of the said Act. Therefore, the position at present is that if the petitioner is aggrieved, the appeal is to be filed before the Assistant Commissioner and to the said extent, the Tahsildar was justified in coming to the conclusion that he did not have jurisdiction to entertain the complaint at this stage.”

5 Once the certificate is issued by the Tahsildar, he had become functus-officio and has no power to cancel his order. 4. The learned counsel for the respondents who filed an application to vacate the interim order submitted to vacate the interim order granted on earlier date. 5. The Tahsildar exercised his power for cancellation of the caste certificate issued to the petitioner for the reason assigned by himself. In the impugned order, he has stated that by mistake and error of fact, he has issued caste certificate and after noticing the petitioner does not belong to Beda Jangama, which is classified as Scheduled Caste as held by the Hon’ble Supreme Court, decided to cancel the certificate. He also referred Transfer Certificate issued on 18.12.1998 by the Mrutyunjaya Higher Primary School vide Annexure-R4, in which at relevant column No.4, it is referred that the petitioner belongs to Lingayat. Hence, the respondents’ counsel submits that when a person who is entitled for caste

6 certificate, applies and obtains the certificate, but later the Tahsildar has got jurisdiction to cancel the same by assigning reasons for cancellation. To substantiate his submission he relied upon the judgment reported in (2008) 12 SCC 481 in the case of K.D.Sharma Vs. Steel Authority of India Limited and others, wherein it has been held that the Court may dismiss the petition at the threshold without considering the merits of the claim, the Court would be failing in its duty if it does not reject the petition on the said ground – the petitioner in such a case is also required to be dealt with for contempt of Court for abusing the process of the Court; and in the present case, the appellant did not approach the Court with clean hands by disclosing all the facts. For obtaining the certificate either as Scheduled Caste or other Backward Class under the provisions of the Karnataka SC/ST & other BC (Reservation of Appointments, etc.) Act, 1990 one has to make an application under Rule 3-A of the Karnataka SC/ST & other BC (Reservation of Appointments, etc.) Rule 1992 with an acknowledgement for receipt of application.

7 On receipt of the application, it is the duty of the Tahsildar to verify the information, documents and such other materials furnished by the applicant and on such verification, if he is satisfied with the correctness of the information, documents and evidence furnished by the applicant, he shall issue caste certificate. Section 4-A(1) further enables the applicant to obtain certificate by making an application. The words employed therein are that ‘any candidate or his parent or guardian belonging to the Scheduled Caste or the Scheduled Tribes may, in order to claim benefit of reservation under Section 4, either for appointment to any service or post or for admission to a course of study in a University or any educational institution, make an application to the Tahsildar in such form and in such manner as may be prescribed for issue of a caste certificate’. Sub-Section (3) of Section 4-A of the Act confers duty on the Tahsildar, that he may, on receipt of an application under Sub-Sections (1) and (2), and after holding such enquiry as he deems fit and satisfying himself regarding the genuineness of the claim made by

8 the applicant, pass an order issuing a caste certificate or, as the case may be, an income and caste certificate in such form as may be prescribed, or reject the application. By reading Section 4-A, which clarifies the position that any person can make an application for issuance of caste certificate and it is the duty of the Tahsildar to examine and enquire to issue or reject the caste certificate under sub-Section (3) of Section 4-A of the Act, 1990. Section 4- A(1) specifically mandates that any candidate or his parent or guardian belonging to any other particular caste, may in order to claim benefit of reservation under Section 4 of the Act, 1990 can make application. On enquiry by the Tahsildar under sub-Section (3) of the Act, 1990, if he is satisfied with the correctness of the information, documents and evidence furnished by the applicant, he shall issue caste certificate or he shall reject the application filed by the applicant. 6. In the light of the above, the caste certificate has been issued in favour of the petitioner by the Tahsildar. The question is as to whether Tahsildar has

9 power to cancel his own order? The provision does not specifically confer any power, which includes the Tahsildar to cancel his order. Then the next question would be whether the Tahsildar can cancel his order on the ground of technical lapse like non-application of mind or some other technical grounds? In the present case, the Tahsildar has issued caste certificate to the petitioner, after issuance of the certificate, he found that there is a mistake, then he can cancel his order. The Tahsildar retains the administrative power to cancel the same. A person having power to issue caste certificate can also retain the power to cancel the same by assigning reasons. 7. In para-2 of the cancellation order vide Annexure-E the Tahsildar has assigned the reasons as follows: “¸ÀzÀgÀ ¥ÀæªÀiÁt ¥ÀvÀæUÀ½UÉ Cl®fà d£À¸Éßû PÉÃAzÀæ¢AzÀ rflï PÁqÀð ªÀÄÆ®PÀ »A§gÀºÀ ¤ÃqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è DPÀ¹äPÀªÁV £ÀdgÀ ZÀÆQ¬ÄAzÀ C£ÀĪÉÆÃzÀ£É CAvÁ DVzÀÝjAzÀ CªÀÅUÀ¼À£ÀÄß vÀqÉ»rAiÀÄ®Ä (¨ÁèPÀ ªÀiÁqÀ®Ä) F PÀbÉÃj ¥ÀvÀæ ¢£ÁAPÀ 6/6/2014 gÀAzÀÄ Cl®fà d£À¸Éßû PÉÃAzÀæ ¨ÉAUÀ¼ÀÆgÀÄ EªÀjUÉ ¥ÀvÀæ §gÉAiÀÄÁVzÉ. »A§gÀºÀ ¤ÃqÀ¨ÉÃPÁzÀ ¸ÀzÀgÀ 2 CfðUÀ½UÉ £ÀdgÀ

10 ZÀÆQ¬ÄAzÀ ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À C£ÀĪÉÆÃzÀ£É DVgÀĪÀÅzÀjAzÀ ¸ÀzÀgÀ ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À£ÀÄß gÀzÀÄÝ¥Àr¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÉAzÀÄ PÀAqÀħA¢zÀÄÝ, £ÀdgÀ ZÀƬÄAzÀ C£ÀĪÉÆÃzÀ£ÉUÉÆAqÀ 1] ²æ UÀÄgÀĹzÀÝAiÀÄå ZÀ£ÀßAiÀÄå »gÉêÀÄoÀ, ¸Á: PÀÉäñÀégÀ zÉêÀ¸ÁÜ£ÀzÀ JzÀÄjUÉ ¸ÉÊzÁ¥ÀÆgÀ, 2] «ÃgÀtÚ ²ªÀ§¸ÀAiÀÄå »gÉêÀÄoÀ, ¸Á: ¹.©.£ÀUÀgÀ, zsÁgÀªÁqÀ EªÀgÀÄUÀ¼À PÀæªÀĪÁV Cfð £ÀA.RD0034813061443 ªÀÄvÀÄÛ RD0034813061444 £ÉÃzÀݪÀÅUÀ¼À ¨ÉÃqÀ dAUÀªÀÄ eÁw ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À£ÀÄß gÀzÀÄÝUÉƽ¸À®Ä F PɼÀV£ÀAvÉ DzÉò¹zÉ. DzÉñÀ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹zÀ PÁgÀtUÀ½AzÀ ¨ÉÃqÀ dAUÀªÀÄ eÁw PÉÆÃjzÀ Cfð 1] ²æ UÀÄgÀĹzÀÝAiÀÄå ZÀ£ÀßAiÀÄå »gÉêÀÄoÀ 2] «ÃgÀtÚ ²ªÀ§¸ÀAiÀÄå »gÉêÀÄoÀ EªÀgÀÄUÀ¼À PÀæªÀĪÁV Cfð £ÀA.RD0034813061443 ªÀÄvÀÄÛ RD0034813061444 £ÉÃzÀݪÀÅUÀ½UÉ »A§gÀºÀ ¤ÃqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è £ÀdgÀ ZÀÆQ¬ÄAzÀ ºÁUÀÆ DPÀ¹äPÀªÁV rflï PÁqÀð ªÀÄÆ®PÀ ¢£ÁAzÀ 5/6/2014 gÀAzÀÄ C£ÀĪÉÆÃzÀ£É ªÀiÁrzÀÝjAzÀ CªÀÅUÀ¼À£ÀÄß F ªÀÄÆ®PÀ vÀPÀët¢AzÀ eÁåjUÉ §gÀĪÀAvÉ gÀzÀÄÝUÉƽ¹ DzÉò¹zÉ ºÁUÀÆ ¸ÀzÀgÀ ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À£ÀÄß FUÁUÀÉà CfðzÁgÀgÀÄ Cl®fà d£À¸Éßû PÉÃAzÀæ¢AzÀ ¥ÀqÉ¢zÀÝ°è PÀÆqÀÉà F PÀbÉÃjUÉ ¥ÀgÀvÀ ¤ÃqÀ®Ä DzÉò¹zÉ.” 8. This reason goes to show that, while issuing the certificate by mistake, he issued the caste certificate. Hence, it is to be recalled. Secondly, Section 4-A mandates that any candidate or his parent or guardian belonging to the Scheduled Caste or the Scheduled Tribes may, in order to claim benefit of reservation under Section 4, either for

11 appointment to any service or for admission to a course of study in an University or any educational institution, make an application to the Tahsildar in such form and in such manner as may be prescribed for issue of caste certificate. In the instant case, the petitioner has failed to place any materials before this Court either his parents or guardian belonging to Scheduled Caste. From the Transfer Certificate issued by the School Authorities vide Annexure- R4, it is found in column No.4 that the petitioner belongs to Lingayat caste, a person who approach the Court under Section 226 of Constitution of India, must approach with clean hands. When the materials are suppressed in order to obtain an order, it is nothing but abuse of process of Court, that itself is sufficient to dismiss the petition. Further, a person who approaches the Court should approach with equity and seek justice. In the judgment reported in (2008) 12 SCC 481 in the case of K.D.Sharma Vs. Steel Authority of India Limited and others, the Hon’ble Supreme Court at para 39 has held as under:

12 “39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with 2 candid facts and `clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.” 9. In view of the judgment referred above, while approaching the Court, the applicant must approach the Court with clean hands. If the applicant approaches the Court with malafide intention, then it is for the Court to

13 dismiss the petition without any mercy. It is the case of the petitioner that neither of the parents nor the guardian belong to Lingayat community or any other caste. The Tahsildar committed an error in issuing the caste certificate. In the facts and circumstances of the case, the person who has the power to issue caste certificate also has the power to cancel the caste certificate. In this circumstance, the reasons assigned for cancellation of the caste certificate is sound and proper. Accordingly, the petition is rejected and the interim order is also vacated. Sd/- JUDGE Vnp*