The Commissioner and Appellate Authority, Vs Sri M H Chikkamuniyappa

THE COMMISSIONER AND APPELLATE AUTHORITY, SOCIAL WELFARE DEPARTMENT, 5^TH FLOOR, M.S. BUILDING, BENGALURU - 560 001. (BY SRI. C. JAGADISH, ADVOCATE) AND:

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SRI M.H. CHIKKAMUNIYAPPA S/O HANUMANTHAIAH, AGED ABOUT 62 YEARS, DEPUTY DIRECTOR OF BOILERS, DEPARTMENT OF FACTORIES, BOILERS INDUSTRIAL SAFETY AND HEALTH KALYANA SURAKSHA BHAVAN, BANNERGHATTA ROAD, DAIRY CIRCLE, BENGALURU - 560 029, R/O NO.135, COCONUT AVENUE ROAD, 8^TH CROSS, MALLESWARAM, BENGALURU - 560 003.

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…APPELLANT

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SRI GANGADHAR PERUR S/O GANGAPPA PERUR, AGED ABOUT 44 YEARS, R/AT NO.104, PEDDAYYANA HAKKAL

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HC-KAR

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INDIRA NAGAR P.V. ROAD

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HUBBALLI, DHARAWAD - 580 024.

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…RESPONDENTS

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(BY SRI. KESHAVA BHAT A., ADVOCATE FOR R-1)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 13.08.2024 PASSED BY THE HON'BLE SINGLE JUDGE IN W.P.NO.18375/2021 (GM-CC); AND DISMISS THE W.P.NO.18375/2021 (GM-CC) FILED BY THE RESPONDENT NO.1.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)

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The appellant, who is the Commissioner and Appellate

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Authority, Social Welfare Department, seeks to impugn the order dated 13.08.2024 passed by the learned Single Judge in W.P. No.18375/2021 (GM-CC). The said writ petition was filed by respondent No.1 impugning a show-cause notice dated 20.09.2021 issued by the appellant in the appellate proceedings instituted under Section 4-D of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.,) Act, 1990 [ the Act ]. The said appeal was preferred by respondent No.2 before the Appellate Authority.

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The learned Single Judge quashed the show-cause notice dated 20.09.2021 on the ground that respondent No.2 had no locus standi to question the Caste Certificate issued in favour of respondent No.1.

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It is relevant to refer to Sections 4-A, 4-B, 4-C, 4-D, 4-E and 4-F of the Act. The same are set out below:

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" 4-A. Issue of Caste Certificate and Income and Caste Certificate.- (1) Any candidate or his parent or guardian belonging to the Scheduled Castes 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.

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(2) Any candidate or his parent or guardian belonging to Other Backward Classes 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 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 an Income and Caste Certificate.

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(3) The Tahsildar may on receipt of an application under sub-section (1) or (2), and after holding such enquiry as he deems fit and satisfying himself regarding the genuineness of the claim made by 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 rejecting the application.

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(4) The Tahsildar shall follow such procedure as may be prescribed before passing the order under subsection (3).

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(5) The burden of proving that the candidate or his parent or guardian belongs to Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be on the applicant.

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4-B. Appeal against order under Section 4-A.- (1) Any person aggrieved by an order of the Tahsildar under Section 4-A may, within thirty days from the date of receipt of the order, prefer an appeal to Assistant Commissioner of the Revenue sub-division.

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(2) The Assistant Commissioner of the Revenue sub-division may after giving both parties an opportunity of being heard pass orders allowing or dismissing the appeal and in appropriate cases directing issue of a caste certificate, or as the case may be, an income and caste certificate to the applicant.

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4-C. Verification of Caste Certificate and Income

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and Caste Certificate.- (1) The State Government shall constituted one or more verification committees for each district consisting of such person or persons as may be prescribed for verification of caste certificate and income and caste certificate issued under Section 4-A or Section 4-B.

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(2) Any person who has obtained a caste certificate or an income and caste certificate under Section 4-A or A-B or the Appointing Authority or any authority making admission to a course of study in the University or any Educational Institution may make an application to the verification committee in such form and in such manner as may be prescribed for issue of a validity certificate.

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(3) The verification committee may after holding such enquiry as it deems fit within thirty days from the date of the application either grant a validity certificate in a prescribed from or reject the application.

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4-D. Appeal.- (1) Any person aggrieved by an order passed by the Verification Committee under Section 4-C may, within thirty days from the date of receipt of the order appeal. -

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(i) to the Commissioner/Director, Social Welfare in case the verification certificate relates to a person belonging to the Scheduled Castes;

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(ii) to the Director, Tribal Welfare in case the verification certificate relates to a person belonging to the Scheduled Tribes;

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(iii) to the Director, Backward Classes Department, in case the verification certificate relates to a person belonging to other Backward Classes,

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in such form and in such manner and on payment of such fee as may be prescribed.

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(2) The Appellate Authority shall after giving to both the parties on opportunity of being heard pass such order in appeal as it deems fit.

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(3) x x x x x.

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4-E. Tahsildar and the Verification Committee to exercise the powers of the Civil Court.- Tahsildar and the Verification Committee, while holding enquiry under this Act, shall have all the powers of a Civil Court while trying a suit under Code of Civil Procedure, 1908 (Central Act No.5 of 1908) and in particular in respect of following matters, namely.-

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(a) summoning and enforcing the attendance of any person and examining him on Oath;

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(b) discovery and production of any document;

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(c) receiving evidence on affidavits;

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(d) requisitioning any public record or copy thereof from any Court or office;

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(e) issuing commissions for the examination of witnesses or documents; and

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(f) any other matter which may be prescribed.

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4-F. Revision by Deputy Commissioner.- (1) The

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Deputy Commissioner may at any time either suo motu or on an application made to him with in the prescribed period, call for and examine the records relating to any decision made or order passed by the Tahsildar under Section 4-A or the Assistant Commissioner under Section 4-B, for the purposes of satisfying himself as to the legality, propriety of such decision or order and if, in any case, it appears to the Deputy Commissioner that any such decision or order shall be modified, annulled, revised or remitted for reconsideration, he may pass orders within thirty days accordingly:

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Provided that the Deputy Commissioner shall not pass any order prejudicial to any person unless such person is given an opportunity of being heard.

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(2) The Deputy Commissioner may, stay the execution of any such decision or order pending the exercise of his powers under sub-section (1) in respect thereof."

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Sub-section (1) of Section 4-A provides that any candidate belonging to the Scheduled Castes or the Scheduled Tribes may, in order to claim the benefit of reservation under Section 4 of the Act, make an application to the Tahsildar in such form and in such manner as may be prescribed.

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Similarly, Sub-section (2) of Section 4-A enables any candidate to seek an Income and Caste Certificate. Under Subsection (3) of Section 4-A, the concerned Tahsildar is required to hold such enquiry as he deems fit and upon satisfying himself regarding the genuineness of the claim, pass an order either

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issuing a Caste Certificate or an Income and Caste Certificate in the prescribed form or rejecting the application.

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Any person aggrieved by the order passed by the Tahsildar under Section 4-A, has a right to prefer an appeal to the Assistant Commissioner of the Revenue Sub-Division under Section 4-B of the Act. The Assistant Commissioner is required to afford both parties an opportunity to be heard and pass an order either allowing or dismissing the appeal. In appropriate cases, the Assistant Commissioner may also direct the issuance of a Caste Certificate or an Income and Caste Certificate to the applicant. It is apparent that the reference to both parties in Section 4-B of the Act is to the person aggrieved (who may be an applicant whose application is rejected) or the concerned State Authority.

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Sub-section (1) of Section 4-C of the Act provides that the State Government shall constitute one or more verification committees for each District consisting of such person or persons as may be prescribed for verification of Caste Certificate and Income and Caste Certificate issued under Section 4-A or Section 4-B of the Act.

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Under Sub-section (2) of Section 4-C, any person, who has obtained a Caste Certificate or an Income and Caste Certificate under Section 4-A or Section 4-B of the Act, or the Appointing Authority or any authority making admission to a course of study in the University or any Educational Institution, may make an application to the Verification Committee for issue of a validity certificate.

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Under Sub-section (3) of Section 4-C, the Verification Committee is required to make such enquiry as it deems fit and thereafter either to grant a validity certificate in the prescribed form or reject the application.

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Section 4-D of the Act provides that any person aggrieved by an order passed by the Verification Committee under Section 4-C may, within a period of 30 days from the date of receipt of the order, prefer an appeal before the Appellate Authority. The Commissioner/Director, Social Welfare Department is designated as the Appellate Authority in case the appeal relates to a validity certificate of a person belonging to the Scheduled Castes.

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In the present case, the appellant before us is the Appellate Authority and was required to adjudicate the appeal preferred by respondent No.2 against the validation of the certificate, which was verified by the District Caste Verification Committee on 01.08.2003.

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It is apparent from the plain language of Section 4-D that the proceedings before the Appellate Authority are adversarial proceedings. This is also evident from Sub-section (2) of Section 4-D, which requires the Appellate Authority to pass such order as it deems fit after giving both parties an opportunity to be heard.

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The present proceedings emanate from a writ petition filed by respondent No.1 against the proceedings instituted by respondent No.2. The appellant's role is confined to adjudicating the appeal preferred by respondent No.2, and it has no independent locus to initiate any proceedings.

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In the present case, respondent No.2, who had filed the appeal before the appellant and was a party to the writ petition, has not made any grievance in regard to the quashing of the appellate proceedings initiated by him. In the given circumstances, we find it difficult to appreciate that the appellant, who is an Appellate

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Authority, and whose role is to adjudicate the appeal after hearing the concerned parties, can maintain the present appeal. As noted above, the proceedings before the Appellate Authority (in this case, the appellant) are adversarial proceedings, which are to be decided by it. It follows that the Appellate Authority cannot, in a manner of speaking, join the lis. The Appellate Authority is not a party to the controversy, which it has to adjudicate as an independent and impartial adjudicator. The Appellate Authority cannot espouse the cause of any of the parties before it.

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