M. v. Chandrakanth v. Sangapppa & Ors

INDIRA BANERJEE, J. Leave granted. 2. This appeal is against a judgment and final order dated 31 st March 2021 passed by a Division Bench of the High Court of Karnataka M. V. CHANDRAKANTH v. SANGAPPPA & ORS. (Dharwad Bench), allowing Writ Appeal No.100388 of 2017(GM-CC) filed by the Respondent No.1 and setting aside an order dated 13th June 2017 passed by the Single Judge dismissing Writ Petition No.1 449 of 2006 (GM-CC) filed by the Respondent No.1 claiming the benefit of reservation for Other Backward Classes as a member of th e ‘Ganiga’ caste. 3. By a Government Orderbeing G.O. No. SWD 150 BCA 94 dated 17th September 1994, the Government of Karnataka formulated a Reservation Policy, for ‘Scheduled Castes’, ‘Scheduled Tribes’ and ‘Other Backward Classes’ for admission to professional courses for the year 1994-95, which is hereinafter referred to as the “Reservation P olicy”. As per the Reservation Policy the percentage of reservation was as follows:- “CATEGORY -I - 4% CATEGORY -II(A) - 15% CATEGORY -II(B) - 4% CATEGORY -III(A) - 5% CATEGORY -III(B) - 5% SCHEDULED CASTES - 15% SCHEDULED TRIBES - 3%” 4. By a Government Order being G.O.No.SWD 251 BCA 94 dated 31st January 1995, the Reservation Policy was made applica ble to employment under the State. 5. In 1999, the Appellant as well as the Respondent No.1 applied for Group A and Group B posts of GazettedProbationary Officers claiming the benefit of reservation under Category II-A of the Reservation Policy. 6. While the Appellant claimed reservation under Category II-A as a ‘Kuruba’ by caste, the Respondent No.1 claimed Reservation as a ‘Hindu Ganiga’ by caste. 7. On or about 31 st December 1999, a certificate was issued to the Respondent No.1 from the office of the Tehsildar, Bagalkot certifying that the Respondent No.1 belonged to the Ganigasub- caste. The Respondent No.1 applied for the Group A and Group B posts of Gazetted Probationary Officer, on the strength of the aforesaid certific ate. 227 8. On or about 30 th March 2002, the Government of Karnataka issued an order in terms whereof the Lingayat Ganigawas exclu ded from the benefit of reservation to the ‘Ganiga’ sub-caste under Category II-A, and placed under Category III-B. 9. On or about 7 th October 2005, the Karnataka Public Service Commission (KPSC) published the provisional list of candidates selected for the Group A and Group B posts of Probationary Officers. A fter publication of the provisional list on 7 th October 2005, KPSC sent the caste certificate of the Respondent No.1 to the Respondent No .3 for verification. On 21 st October 2005, the Respondent No.3 issued a certificate validating the caste certificate submitted by the Respondent No.1. 10. KPSC notified the final list of selected candidates on 29 th November 2005. The Appellant was selected for the post of Dep uty Superintendent of Police and the Respondent No.1 was selected for the post of Assistant Commissioner (Junior Grade Scale). Both the Appellant and the Respondent No.1 were selected under the Reserved Categ ory II-A of the Reservation Policy. The Respondent No.1 secured 1152 marks and was placed at Sl. No. 15 in the category of posts of Assistant Commissioner,whereas the Appellant secured 1151 marks and was placed at Sl. No.6 in the category of posts of Deputy Superintendent of Police. 11. The Appellant claims that in 2005, he came to know that the Respondent No.1’s father belonged to the ‘Lingayat’ caste whereas the Respondent No.1 had claimed the benefit of reservation under Category II-A of the Reservation Policy claiming that he belonged to the ‘Ganiga’ caste. The Appellant contends that the ‘Lingayat’ caste including the sub-castes thereof fall under Category III-B with 5% reservation whereas Hindu Ganiga falls under Category II-A with 15% reservation. 12. The Appellant filed an appeal under Section 4D of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation ofAppointments, etc.) Act, 199 0, hereinafter referred to as “SC/ST and OBC Reservation Act”before the Respondent No.2 challenging the Caste Validity Certificate issued to the Respondent No.1 by the Respondent No.3. In the said appeal, the Appellant enclosed the school extract of Government Higher Primary School, Honniha la, Bagalokote wherein the caste of the Respondent No.1’s father was recorded as ‘Hindu Lingayat’. M. V. CHANDRAKANTH v. SANGAPPPA & ORS. [INDIRA BANERJEE, J. ] 13. The Appellant alleges that Respondent No.3 issued the Validity Certificate dated 21st October 2005 in undue haste, with scant regard to the procedure laid down in Rule 7 of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reserv ation ofAppointment, etc.) Rules 1992, hereinafter referred to as “Karnataka SC/ST and OBC Reservation Rules “. 14. By an interim order dated 5th December 2005, the Respondent No.2 stayed the Validity Certificate issued to the Respondent No.1 until further orders. Thereafter, the Respondent No.2 called for the recor ds from the Respondent No.1. Notices were also issued to the Head Masters of the concerned schools for production of original school admission registers pertaining to the Respondent No.1 and his father. 15. After hearing the parties and perusing the reco rds, the Respondent No.2 passed an order dated 23 rdJanuary 2006, concluding that the Respondent No.1 belonged to the ‘Hindu Lingayat’ caste as he would inherit the caste of his father. Relying on the school register of the Respondent No.1’s father of the year 1953, his High School records and the Service Register of DCC Bank where he (the Respondent No.1 ’s father) had worked as Supervisor, the Respondent No.2 cancelled the Validity Certificate. The Respondent No. 2 inferred that the entr ies in the school records of the Respondent No.1 had been made in the y ear 1982, with a view to obtain the benefit of reservation. 16. Being aggrieved, the Respondent No.1 filed the aforesaid writ petition being Writ Petition No.1449 of 2006 (GM-CC) in the Karnataka High Court at Dharwad on or about 27 th January 2006 and obtained an interim order of status quo. The Appellant filed a Counter Affid avit enclosing extract of the school records of the Respondent No.1’s father showing that he belonged to the Hindu Lingayat caste. 17. On or about 1 stFebruary 2006, the Government issued appointment orders of the selected candidates. The Appellant was appointed as Deputy Superintendent of Police under II-A Category. On 13th February 2006, the Respondent No.2 directed the Civil Rig hts Enforcement Cell to initiate prosecution against the Respon dent No.1 under Rule 7A of the Karnataka SC/ST and OBC Reservation Rules for having obtained false certificate under Category II-A. 18. On or about 21 st June 2006, the Civil Rights Enforcement Cell, after conducting an enquiry into the caste of the Respondent No.1, 229 submitted a report to the effect that the Respondent No.1 b elonged to the ‘Ganiga’ caste, and therefore no prosecution could be initiated against him. 19. On 11th July 2007, the Respondent No. 1 was appointed to the post of Assistant Commissioner. According to the Ap pellant, the appointment was in violation of the status quo order granted by the High Court in Writ Petition No.1449 of 2006. The Respondent No.2 filed a counter statement to the Writ Petition in the High Court of Karnataka. 20. On or about 27th January 2009, the Government of Karnataka issued an order,whereby 19 sub-castes within the ‘Veerashaiva Lingayat’ caste were included in Category III-B of the Reservation Policy. T he sub-castes included ‘Ganiga’ sub caste of the ‘Veerashaiv a Lingayat’ caste. As against 15% reserved for Category II-A, only 5% of the posts were reserved for Category III-B. 21. By an order dated 28 th February 2009, the Government of Karnataka reverted the position of reservation of some of the sub-castes of the Veerashaiva Lingayat caste except ‘Lingayath/ Veerashaiva- VeerashaivaPanchamashali’ in Serial No.13 to the position existing prior to the order dated 27th January 2009. The sub-castes included the ‘Ganiga’ sub-caste of the Veerashaiva Lingayat caste. The ‘Li ngayat’ caste continued to remain in Category III-B. 22. On 4th July 2013, the Appellant was promoted to the post of Superintendent of Police (Non-IPS) based on Seniority-cum-Merit. On 24th March 2017, the Appellant was appointed to the Kar nataka Administrative Service (Junior Scale) with effect from 1st February 2006 by creation of supernumerary post by the State Government. The State Government had placed the matter before the Cabinet and the Cabin et took the decision to appoint the Appellant with retrospective effect with effect from 1st February 2006 with all consequential benefits in the cadre of Karnataka Administrative Service (Junior Scale). The Appellant joined service in the cadre of Karnataka Administrative Service (Junior Scale) on 30th March 2017. 23. By an order dated 13 th June 2017, the Writ Petition filed by the Respondent No.1 was dismissed by the Single Judge. The Single Judge came to the conclusion that the Respondent No.1 belonged to the Hindu Lingayat caste as his father’s school records reveal that his father was a Lingayat or Lingavantha. The Single Bench found that the c aste M. V. CHANDRAKANTH v. SANGAPPPA & ORS. [INDIRA BANERJEE, J. ] ‘Ganiga’ was to be found both in Category II-A and III-B. There was a lot of difference in the two entries. There was reservat ion of 15% for persons in Category II-A but 5% for persons in Category III -B. The Single Bench was of the view that the caste ‘Ganiga’ in Categor y II-A was not equivalent to Lingayat Ganiga sub-caste of Lingayat. 24. Being aggrieved, the Respondent No.1 impugned the order of dismissal by filing Writ Appeal No. 100388 of 2017 in the Division Bench of the High Court. 25. By the impugned judgment and order dated 31st March 2021, the Division Bench of Karnataka High Court (Dharwad Bench) allowed the Writ Appeal filed by the Respondent No.1, set aside the order of the Single Judge passed in Writ Petition No.1149 of 2006 and quashed the order of Respondent No.2. In the meanwhile, on 20 th September 2019, the Appellant was promoted to the Senior Scale in t he Karnataka Administrative Service. 26. The Division Bench observed that from the findings given by the Single Judge, it was apparent that the Single Judge was also of the opinion that caste of the Respondent No.1 was ‘Lingayat-Ganiga’. The Single Judge, however, held that he could not claim reservatio n under Category II-A. The Division Bench accepted that ordinarily chi ldren belong to the caste of their father. The Division Bench, however, observed, in effect, that the Single Judge also accepted that the caste of the Respondent might be Lingayat-Ganiga but erred in arriving at the finding Lingayat-Ganigacould not be construed Hindu Ganiga. 27. The Division Bench referred to the judgments of Karnatak a High Court in Somashekhar Veerappa B. Murgod v. State of Karnataka and Another 1and Prabhushankar K. V. v. Selection Committee for Medical Colleges & others 2. In Somashekhar V eerappa B. Murgod (supra), the Single Bench held:- “6. The evidence recorded and the conclusion reache d by the Commission, in particular the underlined portions, clearly disclose that in the State there is a community which is call ed ‘KuruhinaSetty’. The hereditary avocation of this communit y is ‘neyge’(weaving). At some point of time in the past s ome of the Kuruhina Settys adopted Veerashaiva or Lingayat faith. 1 AIR 1980 Karnataka 62 2 (1981) 1 Kant.L.J. 255 231 Among KuruhinaSettys, there are both vegetarians an d non- vegetarians and those who have adopted Lingayat fai th are vegetarians. From the finding recorded by the Commission, it is clear that all persons belonging to KuruhinaSetty community are considered as backward irrespective of the fact that som e of them are Lingayats and others are not. The petitioner has claimed that he is a KuruhinaSetty, though he is a Ling ayat. He had also produced certificate issued by the Tahasildar i n which it is specifically stated that the petitioner belongs to KuruhinaSetty Community. The only reason given by t he Selection Committee for rejecting the claim of the p etitioner is that in the transfer certificate produced by the petitioner, the community of the petitioner is given as Lingayat. Even the petitioner does not dispute that he is a Lingayat. The fact th at he is a Lingayat does not mean that he does not bel ong to KuruhinaSetty community. As pointed out by the commission, among persons belonging to KuruhinaSetty community some have become Lingayats, but all of them are consider ed and identified as belonging to backward community. There fore, a KuruhinaSetty who has become a Lingayat is not disen titled to the benefit of reservation. In this behalf it is neces sary to set out the relevant portion in the appendix-1 to Government Order No. ED 44 TGL 77, Bangalore, dated 18 th May, 1977, which sets out all the communities falling under the categor y of Neygi who are considered as Backward Community. The relevant portion reads: “(i) BACKWARD COMMUNITIES XXX XXXXXXXXX 10. Neygi :Kuruhinasetti, Bilimagga, Thogata, Seniga, Jamkhana, Ayiri, Avir, Sale, Padmasale, Saale, Kaikolan, Neikar, Jadar, Jandra, Swakulasale.” *** 9. In the result, I hold that every person who belo ngs to KuruhinaSetty community whether a Lingayat or not belongs to Backward community for the purpose of the Governm ent Order, and can claim the benefit of special provisions subjec t to the income test prescribed in the Government Orde r and, M. V. CHANDRAKANTH v. SANGAPPPA & ORS. [INDIRA BANERJEE, J. ] therefore, the Selection Committee erred in rejecting the c laim of the petitioner for selection to 1 st Year M.B.B.S. Course as against seats reserved for Backward Communities.” 28. In Prabhushankar v. Selection Committee for Medical Colleges (supra), a Single Bench of Karnataka High Court held:- “6. In my view there is nothing unnatural in the co nduct of the petitioner or his parents in not indicating tha t the petitioner apart from being a Lingayat also belonge d to Ganiga Community, as no one knew at that stage that special provisions would be made in their favour and omission to do so does not preclude the petitioner from claiming the benefi t of reservation if in truth the petitioner belongs t o Ganiga community as indicated in the certificate issued by the Tahsildar who is the competent authority to issue the necessa ry certificate. 7. In the face of the certificate issued by the Tahsildar, it was not open for the Selection Committee to reject the claim of t he petitioner on the mere ground that in the transfer cer tificate the community of the petitioner was shown as Lingayat as the possibility of a Lingayat being a Ganiga could not be excluded. Therefore in the absence of any other material evid ence before the Selection Committee on the basis of which it could have come to the conclusion that the positioner did not belong to Ganiga Community, the application could not have been rejected.Therefore, the petitioner is entitled to t he reconsideration of his case.” 29. The Division Bench analysed the facts of the case but found that reservation to backward classes had not been introduced when the Respondent No.1’s father had been admitted to school in 1953. By the timethe Appellant came to be admitted to school, Reservation Policy for backward classes had been introduced. This could be the rea son why the caste was not entered in the school records of the Respondent No.1’s father where only ‘Lingayat’ was mentioned but in the case of the Respondent No.1 the caste was mentioned as ‘Hindu-Ganiga’ 30. The Division Bench rightly held that, if the Respondent No.1’s father was, in fact,Ganiga, the mere fact that his castemay not have been mentioned in his school records, or elsewhere, would not mean 233 that he would have to be treated as a non-Ganiga by caste. The Division Bench referred to a report of the Karnataka Backwar d Classes Commission constituted under the Chairmanship of L.J. Havanur and in particular Paragraph 11 thereof which reads:- “11. Veerashaivas (Lingayats) claim to belong to a religion of their own, though legally they are considered as a H indu denomination. It originated by uniting certain cast e-blocks, and has grown by adding new ones which did not accept the principle of status or rank ascribed by birth. The unit of endogamy amongst veerashaivas in principle, is thei r denominational community, but in the process of exp anding itself into a still larger community, it has allowe d, perhaps, the new entrants to retain their autonomy and identit y. That appears to be the reason why we find separate religious head s and monasteries of each section widespread in the State. The cases of those caste-units who have not yet been wh olly assimilated into, or are half-way to, the Veerashaiva community but who could be readily identified and whose popul ation could be ascertained have been considered separatel y. Such cases include the Ganigas (oil pressers), the Kumba ras (potters), the Kshowrikas (barbers), the Agasas (washermen), some Neygis (weavers), etc.” 31. It appears that the finding of the Single Bench that the earlier notification in which Category II-A comprised many castes of whichGaniga was one, did not include Lingayat-Ganiga is misconceived. In the Government notification issued on 3rd March 2002, Category II-A comprised of Ganiga and other castes without referring to Ling ayat Ganigas. Subsequently, on 27thJanuary 2009, an order was issued by the Government of Karnataka to the effect that 19 sub-c astes within Veerashaiva Lingayat were included in Category III-B. One of the castes so brought under Category III-B was Lingayat/Veerashaiva-Ganig a. Subsequently, however the Government issued a Notification on 28 th February 2009 to the effect that the caste in Serial No.1 to 12 and 14 to 19 which were included in Category III-B as per the order/notification dated 27 th January 2009 were deleted from the Category III-B and restored to the earlier position prevailing before 27th January 2009. 32. As observed by the Division Bench, the order dated 27th January 2009 shows that 19 sub-castes of Lingayat/Veerashaiva were included M. V. CHANDRAKANTH v. SANGAPPPA & ORS. [INDIRA BANERJEE, J. ] in Category III-B. One of the sub-castes was ‘Lingayat/Ve erashaiva- Ganiga’. However, by another notification issued within a month that is 28th February 2009, the caste mentioned in Serial Nos. 1 to 12 and 14 to 19 Category III-B were deleted and the position prevailing be fore 27th January 2009 was restored. Lingayat/Veerashaiva-Ganigawas deleted. The intent of the order was to extend the benefit of reservation under Category II-A to the Lingayat-Ganigas also. 33. The Division Bench found that the finding of the Single Judge that Hindu-Ganiga and Lingayat-Ganigawere two different castes wa s not possible to accept. A Lingayat is also a Hindu governed by the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956. The caste of the Respondent No.1 was thus shown as ‘Hindu- Lingayat’ in the school registers by the Respondent No.1’s father. 34. The Division Bench was correct in its finding that, the mere fact that the Caste Verification Committee gave a report of about 16 candidates in a few days cannot be a reason to doubt the correctness of the report. The Division Bench found that the report was made in accordance with the provisions of SC/ST and OBC Reservation Act. 35. Furthermore, during the pendency of the Writ Pe tition, Respondent No.1 produced a registered document of the year 1909 where the caste of the great grandfather of the Respondent No.1 was sho wn as ‘Ganiger’. The said document was taken on record by the Writ Court, but there was no discussion about it in the impugned order. The document is relevant in that it proves the caste of the Respondent N o.1 to be ‘Ganiga’. ‘Ganiger’ is a variant of the word ‘Ganiga’ found in nor th Karnataka region. Respondent No.1 had also relied u pon caste certificates issued to the relatives of the Respondent No.1 showing their caste as ‘Ganiga’. 36. The Respondent No.1 also referred to an order of this Court in Lawrence Salvador D’Souza v. State of Maharashtra &Ors. (Civil Appeal No.6539/2016), where this Court directed the Committee to consider the caste certificate of the niece of the Appella nt in that case for making a report about his caste. In this case, the App ellant has produced a number of caste certificates of his relatives indicating their caste as ‘Hindu-Ganiga’. After perusing the documents produced, t his Court held that since the caste of the forefather of the Appel lant was 235 mentioned as ‘Ganiger’, an inference may be drawn with the hel p of this document that the caste of the Appellant was also ‘Ganiga’. 37. The decision of the Civil Enforcement Cell not to initiate the prosecution may have been against the directions is sued by the Respondent No.2. The decision however, was justified, considering the materials on record showing the caste of the forefather and relatives of the Respondent No.1 as ‘Ganiger’ or ‘Ganiga’. Even if the Caste Certificate and the ValidityCertificate are ignored , there are materialsincluding a pre-constitution registered sa le deed of the Respondent No.1’s grandfather showinghis caste was ‘Ganiga’. 38. In our considered opinion, the well reasoned judgment and order of the Division Bench does not call for interference. Considering that the disputes pertaining to the case of the Respondent No.1 has been going on for years, the Division Bench rightly did not remand the matter to the Respondent No.2 for adjudication. We find absolutely no ground to interfere with the judgment. The appeal is, accordingly, dismissed. Divya Pandey and Amarendra Kumar Appeal dismissed. (Assisted by : Pragya Samal, LCRA) M. V. CHANDRAKANTH v. SANGAPPPA & ORS. [INDIRA BANERJEE, J. ]