Point of Law: Article 14 is not meant to perpetuate illegality and it does not envisage negative equality

JUDGMENT :

Tarlok Singh Chauhan, J.

The petitioner has filed the instant petition for grant of the following reliefs:

“A. That the respondents be directed to issue a fresh OBC Certificate in favour of the petitioner.

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.

“41. Maha Brahman,Acharj, Charj, Acharya, connected with the rituals of death and last rites of Hindus.”

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 sub-caste.

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:

“1) Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste "Gowari", which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as "Gond Govari" which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?

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. Questions