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2007 Supreme(Guj) 643
2008 (1) GCD 72 (Guj)
Hon’ble Mr. Justice D.A. Mehta
Pathan Junedkhan Amanullakhan
Versus
State of Gujarat & Ors.
Special Civil Application No. 11847 of 2007
Decided on 15/10/2007
Point in Issue :
Whether order of cancellation of impugned caste certificate issued by Social Welfare Officer validly made?
Headnote:Head Note :
Constitution of India, 1950 — Article 226 — Caste certificate — Issued by Social Welfare Officer — Order of cancellation — Challenge there to — Sustainability — Finding as to — While ordering cancellation of caste certificate the authority is required to consider the various tests for social backwardness, Economic backwardness and similar other factors — The impugned order of cancellation of Caste Certificate issued to petitioner by Social Welfare Officer has not dealt with the aforesaid aspects of the matter and hence it is necessary that Authority should again undertake such an exercise — Court accordingly quashed and set aside impugned order leaving it open to the Authority to proceed afresh from the stage of show-cause notice to petitioner in the light of principles enunciated by Apex Court and this Court.
Held :
While determining whether a person falls within one of the reserved classes the Authority is required to bear in mind the contents of the Concept of Backwardness and apply various factors which govern a particular entry, because in every case the test of caste per-se may not be relevant or may break down. Whether the claimant fulfills the test of social backwardness, educational backwardness and economic backwardness, and other similar or relevant factors are required to be taken into consideration. One of the such similar relevant factors would be, as in the present case, the main occupation of the community. However, no particular singular factor would be determinative for declaration of a person falling within a particular class of reserved category. [Para 13]
The Court has to see whether the Authority has considered all the relevant material placed before it or has not applied its mind to relevant facts which have led to the ultimate finding. Each case has to be considered in the back-drop of its, own facts and not on basis of some observations made in one or the other judgment. [Para 17]
While recording such findings of fact the Authority is required to consider the various tests for social backwardness, educational backwardness, economic backwardness and similar other factors. The impugned order has not dealt with the aforesaid aspect of the matter and hence, it is necessary that the Authority once again undertakes such an exercise. Accordingly, the impugned order is quashed and set aside leaving it open to the Authority to proceed afresh from the stage of show cause notice in light of what is stated hereinbefore and the principles enunciated by various decisions of the Apex Court and this Court. The order dated 18.04.2007 made by the Director is hereby quashed and set aside in the aforesaid terms. [Para 18]
Case Law Analysis :
Kumari Madhuri Patil & Anr. vs. Additional Commissioner, Tribal Development & Ors., 1994 (6) SCC 241 [Para 5];; Imran Ali Rajabhai Polara vs. State of Gujarat & Ors., 2004 (1) GLR 811 [Para 5];; Momin Mohammad Akbar Gulam Kasam (Minor) vs. State of Gujarat & Ors., Special Civil Application No. 14344 of 2005, decided on 13.09.2006 [Para 5];; Asif Shaukat Hussainbhai vs. State of Gujarat & Ors., Special Civil Application No. 12847 of 2003, decided on 02.09.2003 [Para 6];; Shaikh Seemaband vs. State of Gujarat, Special Civil Application No. 1599 of 2005, decided on 04.05.2005 [Para 6].—Relied on
Appearance :
Mr. Mukul Sinha, for the Petitioners.
Mr. Maulik Nanavati, AGP, for the Respondents.
Conclusion :
The impugned order of cancellation of caste certificate in favour of petitioner made without considering relevant factors is not sustainable hence quashed and set aside.
Decided in Favour of :
Petitioner
Petition Allowed
D.A. Mehta, J.—Rule. Learned AGP appearing for respondents is directed to waive service. The petition is taken up for final hearing and disposal today in light of the view that the Court is inclined to adopt.
2. This petition has been preferred challenging order dated 18.04.2007 made by Respondent No. 2, the Director (Developing Caste) Social Welfare Department (hereinafter referred to as the Director) whereby the caste certificate issued to the petitioner on 15.03.1996 issued by Social Welfare Officer (Developing Caste), Palanpur has been cancelled.
3. On 07.08.2006 the petitioner was called upon to present evidence in support of the claim of the petitioner that the petitioner is a “Muslaman Sipai”. On the said day, the petitioner presented four documents :
(i) Revenue record of Danta State relating to land bearing Survey No. 222 occupied by one Shri Bhana Kashiram indicating the payment of land revenue by the said gentleman and the boundaries of the plot with a noting regarding house of one Sipai Hyderkhan in eastern side;
(ii) Parvana No. 811 dated 14.10.1948 issued by State of Danta granting a parcel of land to Sipai Samatkhan Hyderkhan Pathan, who is petitioner’s grand father’s brother’s son;
(iii) Pedhinama (pedigree) to show that petitioner’s great grand father Sherdilkhan Mehbubkhan was a Sipai (Pathan);
(iv) School leaving certificate issued by St. Xavier School, Loyala Hall at Ahmedabad on 24.05.2001 issued to the petitioner.
4. On 08.08.2006, the father of the petitioner had recorded a written statement before the Director that the original document relating to the neighbour of uncle of the petitioner’s father cannot be produced as there are family disputes with the brothers of the petitioner’s father. Subsequently, the petitioner’s father has produced School Leaving Certificate No. 461 dated 30.03.1967 issued by Sir Bhavanisinh Vidhaylaya, Danta, Bhavangadh, District: Bansakantha. After considering the aforesaid evidence and the submissions made by the petitioner and his father, Respondent No. 2 has passed the impugned order holding that the evidence produced by the petitioner and his father does not establish that the petitioner belongs to the Musalman (Sipai) community/class and hence, the certificate issued by Social Welfare Officer (Developing Caste), Palanpur has been issued without application of mind, without any independent inquiry and in a mechanical manner.
5. The learned Advocate for the petitioner has assailed the impugned order on the ground that the School Leaving Certificate issued to the petitioner has been rejected on an erroneous reasoning when the said piece of evidence has been discarded by the Director stating that the column relating to religion and caste shows Islam Pathan (Sipai) but the same is after 23 years of the report of the S.E.B.C. Commission (Baxi Commission) which had been submitted in 1976, and hence does not have any probative value. Similarly, the reasons for discarding the remaining pieces of evidence are also not germane to the issue and the Director has proceeded on an entirely incorrect finding. That the Director has failed to consider the fact that in Muslims no caste system as such exists and hence, the surname can never reflect the caste or the sub-caste of the person. That infact, even as per the report of Baxi Commission it becomes clear that the term Sipai has been used to describe a class of persons who are engage in a particular vocation, namely, that of a solider or in the armed forces. It was, therefore, submitted that the entire approach of the Director was not only erroneous in law but perverse. The reliance on the Apex Court decision in Kumari Madhuri Patil & Anr. vs. Additional Commissioner, Tribal Development & Ors., 1994 (6) SCC 241, was misplaced because the said judgment of the Apex Court was in relation to the caste/sub-caste which appear only in Hindu Communities and hence, the observations made by the Supreme Court have to be understood and appreciated i
