2004 Supreme(Guj) 12

Gujarat High Court
Judgename :M.S.Shah
IMRAN ALI RAJABHAI POLARA - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A.15578 of 2003
Decided On : 01/17/2004

Headnote:(a) General Clauses Act, 1897 (Central Act 10 of 1897) - Sec. 21 - Bombay General Clauses Act, 1904 - Sec. 21 - Commission - Identification of the socially and educationally backward caste - State Government having power can delegate power to District Social Welfare Officer who can issue certificate in favour of an individual claiming the status - The power to issue certificate also include power to cancel it - Therefore, there is no force in the contention that Director has no power to cancel the certificate issued by District Social Welfare Officer.

       Once this power is recognised in the State Government, just as it is open to the State Government to delegate to the District Social Welfare Officer the power to issue certificate in favour of an individual claiming the status of a Socially and Educationally Backward Class, it is equally open to the Government to cancel the certificate issued by the District Social Welfare Officer. The power to issue a certificate also includes the power to cancel the certificate as provided in Sec. 21 of the General Clauses Act, 1897 and Sec. 21 of the Bombay General Clauses Act, 1904. But the principles of natural justice have to be followed before taking any decision regarding cancellation of such certificate. This discussion, therefore, answers both the preliminary contentions - the one raised by Dr. Sinha for the petitioners challenging the review exercise undertaken by the Director and the challenge is negatived and so also the submission made by the learned AGP against any inquiry being held, whether the caste or community in question is included in the list of SEBCs or not.

       [Para 13]

       (b) Constitution of India, 1950 - Art. 226 - Jurisdiction - Cancellation of certificate - Courts would not sit in appeal over the jurisdiction of the authority cancelling caste certificate issued by lower authority - Circumstances under which interference permissible - Stated.

       There can be no controversy that in such matters, the Courts would not sit in appeal over the jurisdiction of the authority cancelling the caste certificate issued by the lower authority. Even so, the Court will consider whether the higher authority has committed any error apparent on the face of the record. If the Court finds that the authority has exercised its jurisdiction on the basis of the irrelevant considerations or has not taken into consideration the relevant factors or if the authority has not carefully appreciated the relevant constitutional provisions or adequate opportunity to lead evidence or adequate opportunity of hearing was not afforded to the person before cancellation of the caste certificate, the Court would be justified in interfering with the decision of the authority.

       [Para 14]

       (c) Constitution of India, 1950 - Arts. 15(4), 16(4), 226 & 340 - Caste certificate - Cancellation - Merely because there is no evidence of the caste or school record of parents, it could not be held that a person cannot be conferred the status under any circumstances - Director has erred in declining to exercise the jurisdiction vested in him for considering whether muslim weavers in Kanodar could be considered as muslim julayas or not to be covered under socially, educationally backward caste for the benefit of reservation - Court setting aside impugned order of Director dated 25.9.2003 remanded the matter to Director Welfare department to redecide after considering relevant material and giving opportunity to petitioner for evidence.

       It will be the record of parents, which would carry the greatest probative evidentiary value for the purpose of conferring the status upon the person, but it cannot be said that if there is no evidence at all of the caste or school record of the parents, a person cannot be conferred the status under any circumstances. In absence of such record, the authority will have to examine the case with more care and caution and it will be for the person concerned to show any other authenticated or reliable material which can throw light upon the caste of the parents at the time when the policy came to be declared.

       All the submissions made by the petitioners before the Director were required to be considered independently without being obsessed by only one fact whether the School Leaving Certificates of the petitioners fathers mentioned their caste or Muslim Julaya or not. The Director has erred in declining to exercise the jurisdiction vested in him for considering whether the Muslim weavers in Kanodar could be considered as Muslim Julayas or not. The Director has proceeded on the basis as if it was not open to the Director to permit any evidence to be led to show whether community B was synonymous to community A included in the list of SEBCs. As already discussed earlier, the embargo placed by the provisions of Clause (2) in Art. 341 and Clause (2) in Art. 342 does not apply to the list of SEBCs.

       The Government would be required to examine the claim of a community with reference to its social and educational status before identifying or equating a community as a socially and educationally backward class. All this exercise would involve inquiry into various factual aspects and, therefore, this Court would not undertake such an exercise while hearing a petition under Art. 226 of the Constitution.

       [Para 15]

       It, therefore, appears to the Court that this is a fit case where the impugned orders passed by the Director on 25.9.2003 deserve to be quashed and set aside and the matter deserves to be remanded to respondent Nos. 1 & 2 for holding a fresh inquiry and to decide whether the petitioners belong to Muslim Julaya community which is already declared as a Socially and Educationally Backward Class or whether the community of Muslim weavers in Kanodar village constitute a Socially and Educationally Backward Class. For this purpose, it will be open to the respondent authorities to take into consideration the views of the Commission for Other Backward Classes constituted under Art. 340 of the Constitution.

       [Para 16]