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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
TARLOK SINGH CHAUHAN, JYOTSNA REWAL DUA, JJ.
Nikku Ram - Petitioner
Versus
Secretary, Social Justice & Empowerment and others - Respondents
CWP No. 01 of 2021
Decided On : 06-01-2021
Constitution of India, 1950 – Articles 341, 342 – Issuance of OBC Certificate – Petitioner has filed instant petition for grant of reliefs that respondents be directed to issue a fresh OBC Certificate in favour of petitioner – That respondents may kindly be directed to permit petitioner to file his nomination for upcoming elections – It is not in dispute that application of petitioner for issuance of ‘OBC’ Certificate was rejected in response to his application filed on online portal with remarks that applicant does not belong to ‘OBC’ Category and belongs to ‘Brahman’ Caste. – However, petitioner would claim that similar certificates have not only been issued in past, but on that basis, he had contested last elections held in year 2016. – Therefore, it is not open to respondents to dispute status of petitioner as ‘OBC’ – Held, It is evidently clear that it is for Parliament to amend law and Schedule and include in and exclude from Schedule a tribe or tribal community or part of or group within any tribe or tribal community for State, District or region and its declaration is conclusive. – Court has no power to declare synonyms as equivalent to tribes specified in Order or include in or substitute any caste/tribe etc. – No inquiry is permissible and no evidence can be led in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included. – Even States have no powers to amend Presidential Orders. – Courts cannot and should not expand jurisdiction to deal with question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of entries mentioned in Presidential Orders issued under Articles 341 and 342, particularly, so when in Clause (2) of said Article, it is expressly stated that said Orders cannot be amended or varied except by law made by Parliament. – Power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard. – President has benefit of consulting States through Governors of States which has means and machinery to find out and recommend as to whether a particular caste or tribe is to be included in Presidential Order. – If said orders are to be amended, it is Parliament that is in a better position to know having means and machinery unlike Courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. – Allowing State Governments or Courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in Schedule of Presidential Order, when it is not so specifically included, may lead to problems. – One comes to an inescapable conclusion that High Court cannot entertain the claim and decide whether a particular caste or tribe is to be included in Presidential Order – Writ Petition Dismissed
JUDGMENT :
TARLOK SINGH CHAUHAN, J.
1. The petitioner has filed the instant petition for grant of the following reliefs:
B. That the respondents may kindly be directed to permit the petitioner to file his nomination for the upcoming elections.”
2. It is not in dispute that the application of the petitioner for issuance of ‘OBC’ Certificate was rejected in response to his application filed on the online portal on 22.12.2020 with the remarks that the applicant does not belong to the ‘OBC’ Category and belongs to the ‘Brahman’ Caste. However, petitioner would claim that similar certificates have not only been issued in the past, but on that basis, he had contested last elections held in the year 2016. Therefore, it is not open to the respondents to dispute the status of the petitioner as ‘OBC’.
3. The respondents have categorically stated in their instructions that Certificate No. 7219 dated 24.11.2015 on the basis of which the petitioner contested the previous elections was issued inadvertently and, therefore, the respondents cannot be directed to repeat the mistake.
4. In the notification issued by the State Government on 09.09.2011, the following entry is found at Serial No. 41.
5. The petitioner, admittedly, is a ‘Brahman’ and is trying to claim the status of OBC on the basis of sub-caste (Gotar) being a ‘Acharj, which according to the respondents, is not permissible, as the OBC Certificate can only be issued on the basis of the caste and not on the basis of the subcaste.
6. However, the moot question is whether a dispute of the instant kind can be resolved by way of a writ petition.
7. A three Judge Bench of the Hon’ble Supreme Court in Civil Appeal No.4096/2020, titled ‘The State of Maharashtra and another versus Keshao Vishwanath Sonone and another’ decided on 18.12.2020 was confronted with somewhat similar issue. The Hon’ble Supreme Court framed the following questions for consideration:
(2) Whether the ratio of the judgment of the Constitution Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 1269 permits the High Court to take evidence to find out whether 'Gowari' are 'Gond Gowari' and is there any conflict in ratio of judgment of Constitution Bench in B. Basavalingappa and subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC 4?
(3) Whether the High Court could have entered into the adjudication of the issue that 'Gond Gowari' which is a Scheduled Tribe mentioned in Scheduled Tribes Order, 1950, as amended up to date is no more in existence and was extinct before 1911?
(4) Whether the conclusion of the High Court in the impugned judgment that 'Gond Gowari' Tribe was extinct before 1911 is supported on the materials which were on record before the High Court?
(5) Whether caste 'Gowari' is same as 'Gond Gowari' included at Item No.28, Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 and the High Court could have granted declaration to caste 'Gowari' as 'Gond Gowari' entitled for Scheduled Tribe certificate?
(6) Whether the High Court is correct in its view that 'Gond Gowari' shown as Item No.28 in Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence, its validity cannot be tested on the basis of affinity test specified in Government Resolution dated 24.04.1985?
8. Que
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