# Kamlesh Bahadur Gond v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-09
- **Case number:** C.M.W.P. No. 20050 of 2008
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-bahadur-gond-v-state-of-u-p-ors-43166
- **Pages:** 6

## Headnote

Constitution of India-Service law-power of
review-once caste certificate issued-except
verifying genuineness of certificate-authority
has no power of review saying Gond caste
does not belong to S.T.-in view of Division
Bench judgment-order impugned quashed.
Held: Para-10
Having heard learned counsel for the
parties, perusing the relevant material on
record and considering the judgments cited
at Bar, I find that the petitioner was issued
caste certificate of 'Gond' treating him to be
a Scheduled Tribe. On the basis of the same
caste certificate he obtained appointment.
On being enquired by the department from
the Tehsidlar about the caste of the
petitioner, the Tehsildar submitted report
denying the certificate of the petitioner. I
find that the judgments cited by the
petitioner fully support his case. There was
no complaint regarding genuineness of the
certificate of the petitioner. The department
has only enquired whether such certificate
has been issued or not. The Tehsildar had
gone beyond the query and submitted
another report declaring that the petitioner
does not belong to 'Gond' community,
which is not a scheduled tribe community.
The Tehsildar was required to only verify
the issuance of the caste certificate and not
its correctness. Once the Tehsildar had
verified the issuance of the said certificate,
it had no power or jurisdiction to provide
for review of the issuance of the said caste
certificate
or
recommend
for
its
cancellation, specially when there was no
complaint by any authority or person with
regard to the correctness of the same. It is
also relevant to mention that by letter
dated 24.1.2008 the District Development
Officer, Chandauli had only asked from the
Tehsildar, Lalganj whether 'Gond' caste is
Scheduled Tribe or not. The Tehsildar has
overstepped the issue and denied the caste
of the petitioner.
Case Law discussed:
W.P. No. 2252 of 2013; Writ-A No. 36990 of
2008; 2014 (8) ADJ 690 (DB).

## Text

2 All]
 Kamlesh Bahadur Gond Vs. State of U.P. & Ors.
589
down by this Court. In this regard the High
Court must be guided by the principles laid
down by the Constitution Bench of this Court
in Waryam Singh (supra) and the principles
in Waryam Singh (supra) have been
repeatedly
followed
by
subsequent
Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam
Singh (supra), followed in subsequent cases,
the High Court in exercise of its jurisdiction
of superintendence can interfere in order
only to keep the tribunals and Courts
subordinate to it, `within the bounds of their
authority'.
(f) In order to ensure that law is
followed by such tribunals and Courts by
exercising jurisdiction which is vested in
them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in
(e) and (f), High Court can interfere in
exercise of its power of superintendence when
there has been a patent perversity in the
orders of tribunals and Courts subordinate to
it or where there has been a gross and
manifest failure of justice or the basic
principles of natural justice have been flouted.
(h)
In exercise of its power of
superintendence High Court cannot interfere
to correct mere errors of law or fact or just
because another view than the one taken by
the tribunals or Courts subordinate to it, is a
possible view. In other words the jurisdiction
has to be very sparingly exercised.
(i) .................................
(j) .................................
(k) ................................
(l) .................................
(m) ...............................
(n) This reserve and exceptional power
of judicial intervention is not to be exercised
just for grant of relief in individual cases but
should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article
226 is meant for protection of individual
grievance. Therefore, the power under
Article 227 may be unfettered but its exercise
is subject to high degree of judicial discipline
pointed out above.
(o)
An improper and a frequent
exercise of this power will be counterproductive and will divest this extraordinary
power of its strength and vitality.
13.
In the facts and circumstances of
the case in hand, I am of the opinion that the
Courts below have not erred in law or
committed any jurisdictional error in holding
that the petitioner defaulted in payment of
rent and had failed to pay the arrears,
accordingly, the petitioner is not entitled to
avoid decree of eviction on the ground of
default in payment of rent under Section
20(4) of the Act, as admittedly the petitioner
had acquired another house in the city itself.
There is no flaw in decreeing the suit on the
ground of default.
14. The writ petition is, accordingly,
dismissed
both
on
merits
and
maintainability.
15. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 20050 of 2008
Kamlesh Bahadur Gond
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri L.P. Singh
590
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.
Constitution of India-Service law-power of
review-once caste certificate issued-except
verifying genuineness of certificate-authority
has no power of review saying Gond caste
does not belong to S.T.-in view of Division
Bench judgment-order impugned quashed.
Held: Para-10
Having heard learned counsel for the
parties, perusing the relevant material on
record and considering the judgments cited
at Bar, I find that the petitioner was issued
caste certificate of 'Gond' treating him to be
a Scheduled Tribe. On the basis of the same
caste certificate he obtained appointment.
On being enquired by the department from
the Tehsidlar about the caste of the
petitioner, the Tehsildar submitted report
denying the certificate of the petitioner. I
find that the judgments cited by the
petitioner fully support his case. There was
no complaint regarding genuineness of the
certificate of the petitioner. The department
has only enquired whether such certificate
has been issued or not. The Tehsildar had
gone beyond the query and submitted
another report declaring that the petitioner
does not belong to 'Gond' community,
which is not a scheduled tribe community.
The Tehsildar was required to only verify
the issuance of the caste certificate and not
its correctness. Once the Tehsildar had
verified the issuance of the said certificate,
it had no power or jurisdiction to provide
for review of the issuance of the said caste
certificate
or
recommend
for
its
cancellation, specially when there was no
complaint by any authority or person with
regard to the correctness of the same. It is
also relevant to mention that by letter
dated 24.1.2008 the District Development
Officer, Chandauli had only asked from the
Tehsildar, Lalganj whether 'Gond' caste is
Scheduled Tribe or not. The Tehsildar has
overstepped the issue and denied the caste
of the petitioner.
Case Law discussed:
W.P. No. 2252 of 2013; Writ-A No. 36990 of
2008; 2014 (8) ADJ 690 (DB).
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard learned counsel for the
petitioner. Learned Standing Counsel
appears for the respondents.
2. By means of the present writ
petition the petitioner has prayed for
following reliefs:-
"(i) issue a writ of certiorari or writ,
order or direction in the nature of
certiorari calling for record and quashing
the impugned order dated 14.02.2008 and
19.03.2008 Annexure No.21 & 25 passed
by respondent no.4 and 5.
(ii) issue a writ of mandamus or writ,
order or direction in the nature of
mandamus commanding the respondents
from enforcing and implementing the
impugned orders date 14.02.2008 and
19.03.2008 Annexure No.21 & 25.
(iii) issue a writ of mandamus or writ,
order or direction in the nature of mandamus
commanding the respondent no.5 to allow
the petitioner to join and discharge of duties
of Gram Vikas Adhikari and pay the salary
admissible in law.
(iii) issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper, in the facts and
circumstances of the case;
(iv) to award the cost of the writ
petition to the petitioner."
3. This Court while entertaining the
writ petition passed the following order
on 19.04.2008:-
"The contention of the learned
counsel
for
the
petitioner
is
that
2 All]
 Kamlesh Bahadur Gond Vs. State of U.P. & Ors.
591
previously Gond Caste was notified as a
Schedule Caste however, by the S.C. and
S.T. Orders (Amendment) Act 2002 Gond
Caste was declared as a Scheduled Tribe
in U.P. The State Government also in
pursuance thereof issued a notification
dated 3rd July 2003 and subsequently
30th September 2003 notifying Gond
Caste as a Schedule Tribel.
In view of the aforesaid, the
petitioner was issued a caste certificate by
the Tehsildar, Lalganj, District Azamgarh
on 15.4.2005 certifying that the petitioner
belongs to Gond Caste which is the
Scheduled Tribe. On the basis of the
aforesaid
certificate,
the
petitioner
applied for appointment as a Gram Vikas
Adhikari in the category of ST and he was
selected and appointed as such on
25.2.2008. However, by the impugned
order
dated
19.3.2008
petitioner's
aforesaid appointment has been cancelled
on the ground that the petitioner is not a
candidate belonging to ST.
Learned Standing Counsel prays for
and is allowed six weeks time to file
counter affidavit. Two weeks thereafter
are allowed to the petitioner for filing
rejoinder affidavit.
List for admission/ final disposal on
the expiry of the above period.
Until further order of this Court the
operation of impugned order dated
19.3.2008 (Annexure 25 to the writ
petition) shall remain stayed."
4. Learned counsel for the petitioner
submits that the petitioner belongs to
'Gond' caste, which is a scheduled tribe.
In the parivar register and the educational
certificates also the caste of the petitioner
is shown as 'Gond'. After the inclusion of
the petitioner's caste 'Gond' in Scheduled
Tribes by Act No.10 of 2003 the
petitioner applied for caste certificate of
'Gond'. After enquiry and verification of
his caste, the Scheduled Tribe certificate
of 'Gond' dated 15.4.2005 was issued by
the Tehsildar Lalganj.
5. The respondent no.5 advertised
reserved backlog vacancies of Junior
Clerk and Gram Vikas Adhikari in the
office. In response thereto the petitioner
applied for the post of Gram Vikas
Adhikari reserved for Scheduled Tribe.
After physical test and interview he was
selected for the said post and sent for
training. After completing successful
training he was given appointment letter
dated 25.2.2008. When he reached for
joining he was served a show cause notice
stating that after verification of the caste
certificate the Tehsildar, Lalganj vide
letter dated 14.2.2008 informed that he
belongs to Backward Caste Kahar, SubCaste of Gond and the caste certificate
submitted by him is ineffective and
explanation was called as to why his
appointment
be
not
cancelled. The
petitioner submitted his reply dated
7.3.2008 to the show cause notice and
stated that he is of 'Gond' caste by birth.
He has also been issued certificate of
'Gond' treating him a Scheduled Tribe.
The respondents have no authority to
change the caste of the petitioner without
giving any opportunity to him. It is
submitted that a caste certificate issued by
an empowered public authority under seal
continued to be a valid document till it is
cancelled by the said authority or by his
superior authority. In the petitioner's case
neither the superior authority nor the
issuing authority has cancelled the caste
certificate issued to the petitioner treating
him as Scheduled Tribe. It is stated that
before cancelling the certificate there is
detailed procedure and that should be
followed before cancelling any certificate.
592
 INDIAN LAW REPORTS ALLAHABAD SERIES
He submits that the entire action taken by
the respondents is arbitrary, unreasonable
and without giving any opportunity of
hearing.
6. On the other hand, learned
Standing
Counsel
submits
that
the
respondents had acted absolutely in
accordance with law. When it had come
in the notice of the respondents that the
petitioner does not belong to Scheduled
Tribe community but he belongs to 'Gond'
sub-caste of 'Kahar', which is a backward
caste, his appointment was cancelled.
7. Learned counsel for the petitioner
has placed reliance on a Division Bench
decision of this Court passed in Writ
Petition No.2252 of 2013 (Bindra Prasad
Gond v. State of U.P. & Ors.). He has also
placed reliance on a judgment dated
5.8.2014
of
this
Court
in
Writ-A
No.36990 of 2008 (Bindra Prasad v. State
of U.P. & Ors.), in which the Court
observed as under:-
"Learned counsel for the petitioner
submits that the petitioner has filed
another Civil Misc. Writ Petition No.
2252 of 2013 (Bindra Prasad Gond Vs.
State of U.P. and others), by which the
petitioner has challenged the cancellation
of his caste certificate and the decision of
the
High
Power
Caste
Scrutiny
Committee, and the Division Bench vide
order dated 06.02.2014 had allowed the
writ petition with following observation:-
"We also take note of the fact that the
petitioner who is a class IV employee has
been made to approach the Court again
and again for declaration of his status as
Scheduled Tribe. Even after the dictum of
the Hon'ble Supreme Court in the case of
Kumari Madhuri Patil (supra), which was
decided on 02.09.1994, the opposite
parties did not adopt the procedure
mentioned therein for verifying the social
status of the petitioner rather the
Tehsildar went on canceling his caste
certificate on the pretext or other, with the
result, the petitioner had to approach this
Court again and again, at least 5 times.
Even after passing of the judgment by this
Court on 09.04.2010, the authorities did
not take any action till the petitioner
initiated contempt proceedings against
them. The petitioner has suffered mental
agony and incurred expenses on account
of these litigations. Therefore, it is a fit
case where the respondent no.1 deserves
to be saddled with appropriate cost.
Considering the long period of
litigation, specially, the facts that the
report of the Vigilance Cell is not alleged
to have been obtained fraudulently, we do
not deem it fit to relegate the matter back
to the authorities again. Since we are
quashing the impugned decision of the
Caste Scrutiny Committee, the caste
certificate dated 17.01.2004 issued to the
petitioner shall stand restored and the
petitioner shall be treated as belonging to
the Gond caste, a Scheduled Tribe.
For the reasons stated aforesaid, the
impugned order of the Caste Scrutiny
Committee dated 28.12.20012, cannot be
sustained and is quashed.
The writ petition is allowed with
cost.
The respondent no.1 will pay a sum
of Rs. 25,000/- to the petitioner for this
vexatious litigation within four weeks
from the date of production of a certified
copy of this order."
The Division Bench while allowing
the writ petition no. 2252 of 2013 has
clearly held that "This is the 5th round of
litigation by the petitioner, who is a
Driver in the Agriculture department of
the Government of Uttar Pradesh, seeking
2 All]
 Kamlesh Bahadur Gond Vs. State of U.P. & Ors.
593
restoration of his status as a Scheduled
Tribe person.
Learned counsel for the petitioner
submits that in view of the decision made by
the Division Bench in Civil Misc. Writ
Petition No. 2252 of 2013 dated 06.02.2014,
by which the impugned decision of the High
Power Caste Scrutiny Committee, has been
quashed and direction has already been
issued to the respondents to restore the caste
certificate, which was issued to the petitioner
on 17.01.2004, treating him as Gond caste
(scheduled tribe). The present writ petition is
liable to be allowed on the ground that
petitioner admittedly belongs to Scheduled
Tribes and his caste certificate has been
restored.
Therefore, in view of the decision
taken by the Division Bench in Civil Misc.
Writ Petition No. 2252 of 2013 dated
06.02.2014, the sole reason for passing
the impugned order dated 08.02.2008
passed by the respondent no.3 is no more
survives specially on the ground that once
the Division Bench has already restored
the caste certificate of the petitioner as
scheduled tribes then the order impugned
dated 08.02.2008 is unsustainable and
liable to be quashed.
Accordingly, in view of the aforesaid
facts and circumstances, I am of the view,
that the order dated 08.02.2008 is
unsustainable and accordingly quashed.
Accordingly, the writ petition is
allowed."
9. Learned counsel for the petitioner
has also placed reliance on a Division
Bench judgment of this Court in Praveen
Kumar v. State of U.P. & Ors. reported in
2014 (8) ADJ 690 (DB), the relevant
paragraphs of which are reproduced as
under:-
"In
the
communication
of
the
Tehsildar dated 12.10.2009, it is nowhere
mentioned that there was any complaint
with regard to the issuance of the caste
certificate in favour of the petitioner. By
the communication of the Commandant of
C.R.P.F dated 3.9.2009, the Tehsildar
was required to only verify the issuance of
the
caste
certificate
and
not
its
correctness. Once the Tehsildar had
verified
the
issuance
of
the
said
certificate, it had no power or jurisdiction
to provide for review of the issuance of
the said caste certificate or recommend
for its cancellation, specially when there
was no complaint by any authority or
person with regard to the correctness of
the same.
If the Tehsildar is allowed to initiate
suo motu proceeding for cancellation,
without
there
being
any
particular
material or complaint with regard to
issuance of such caste certificate, the
same
would
create
unnecessary
complication, as any new Tehsildar, who
is subsequently posted and is not satisfied
with the person or his family in whose
favour the certificate has been issued, can
initiate proceedings for cancellation of
caste certificate which may have been
validly issued in favour of a particular
person after due investigation.
In
the
present
case,
the
communication of the Tehsildar clearly
shows that he has proceeded on the
presumption that the petitioner belongs to
the Kamkar/Kahar caste, whereas there
was no substantial material or document
with Tehsildar in support of the same.
Prior to the issuance of the said
communication, the Tehsildar had not
even given the petitioner any opportunity
to show cause as to why the proceedings
594
 INDIAN LAW REPORTS ALLAHABAD SERIES
for cancellation of his caste certificate
was to be initiated against him. As such,
very initiation of the proceedings for
cancellation of the caste certificate of the
petitioner cannot be justified in law."
10. Having heard learned counsel for
the parties, perusing the relevant material
on record and considering the judgments
cited at Bar, I find that the petitioner was
issued caste certificate of 'Gond' treating
him to be a Scheduled Tribe. On the basis
of the same caste certificate he obtained
appointment. On being enquired by the
department from the Tehsidlar about the
caste of the petitioner, the Tehsildar
submitted report denying the certificate of
the petitioner. I find that the judgments
cited by the petitioner fully support his
case. There was no complaint regarding
genuineness of the certificate of the
petitioner. The department has only
enquired whether such certificate has been
issued or not. The Tehsildar had gone
beyond the query and submitted another
report declaring that the petitioner does not
belong to 'Gond' community, which is not
a
scheduled
tribe
community.
The
Tehsildar was required to only verify the
issuance of the caste certificate and not its
correctness. Once the Tehsildar had
verified the issuance of the said certificate,
it had no power or jurisdiction to provide
for review of the issuance of the said caste
certificate
or
recommend
for
its
cancellation, specially when there was no
complaint by any authority or person with
regard to the correctness of the same. It is
also relevant to mention that by letter dated
24.1.2008
the
District
Development
Officer, Chandauli had only asked from
the Tehsildar, Lalganj whether 'Gond' caste
is Scheduled Tribe or not. The Tehsildar
has overstepped the issue and denied the
caste of the petitioner.
11. In view of the above, the writ
petition is allowed. The impugned orders
dated 14.2.2008 and 19.3.2008 are hereby
quashed.
The
District
Magistrate,
Azamgarh is directed to consider the
grievance of the petitioner and decide his
claim within a period of six weeks from
the date a certified copy of this order is
produced before him.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE RAN VIJAI SINGH, J.
C.M.W.P. No. 20101 of 2015
Ramayan Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri A.P. Paul, Sri B.B. Paul
Counsel for the Respondents:
C.S.C.
U.P. Consolidation of Holdings Act, 1953Section 5(2)-Abatement of declaratory
suit-on publication of notification u/s 4 of
the Act-village in question brought under
consolidation scheme-SDO-refused to pass
order-even on application by petitioner-in
absence of direction of higher authoritiesheld-no scope of interference by higher
authorities in judicial function of CourtSDO-mislead himself-patently illegal and
arbitrary-quashed-with
fresh
direction
accordingly.
Held: Para-6
In view of the provisions contained
under sub-section (2) of Section 5 of the
Act
all
the
proceeding
regarding
declaration of right etc. shall stand
abated after notificaiton under subsection (2) of Section 4 of the Act after
notice to the parties. The Sub Divisional