IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition PIL No. 362 of 2008 K.S. Kunwar. .……… Petitioner Versus State of Uttarakhand & others. .………. Respondents. Mr. Chetan Joshi, Advocate for the petitioner. Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for the respondents. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C. J. (Oral) U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the “Act”) applies in full force in the State of Uttarakhand. Schedule I thereto describes communities of Backward Classes. After the State of Uttarakhand came into being, Gorkha community was included in the said Schedule to the Act to include them within Backward Classes. 2. On 20th February, 2006, Tehsildar wrote a letter to the former village Pradhan of Gram / Post Office Siakuri stating that in the letter of the BRO, Pithoragarh dated 1st August, 2000, it has not been mentioned that sub-caste Bora is a part and parcel of Gorkha community and, accordingly, the claim of Sri Ravindra Singh, who belongs to sub-caste Bora, cannot be treated to be a member of Gorkha community. In the said letter, it was mentioned that Thapa, Gurung, Karki, Mal, Shai, Rana and Bhandari are sub-castes of Gorkha community. In exercise of right to information, the petitioner has been able to ascertain that many other sub-castes are treated as members of Gorkha community. In the writ petition, which is in the nature of public interest, the petitioner, who represents another backward class community, prays for notifying list of sub-castes of Gorkha community and for cancellation of certificates of Other Backward Classes granted to persons, who are not notified in the said list of sub-castes of Gorkha community. 2 3. No step has yet been taken to make the writ petition a representative petition. Despite that, it is surprising that it was submitted to this Court on behalf of the State, on the last occasion, that some sub- castes of Gorkha community should be taken out from Gorkha community, while recognising them as Other Backward Classes, in consultation with Other Backward Classes Commission. The Court, accordingly, granted some time to the State to do the needful. Today, we have been reported that the State has not been able to move an inch further. The question is what should be done in the circumstances. 4. Who should be brought within the Other Backward Classes has been left by the Legislature with the State Government. The State Government, in exercise of its such power, has declared that members of Gorkha community, residing in this State, shall be treated to be belonging to Other Backward Classes. While doing so, the State did not say that any part of Gorkha community would not be treated as Backward Classes. Therefore, whoever is a member of Gorkha community, according to the decision of the State, is a member of the Backward Classes. 5. In the writ petition, it is being contended that the persons, who do not belong to Gorkha community, are being granted certificates suggesting that they belong to Other Backward Classes, on the basis of recommendation by Gorkhali Sudhar Sabha. If that be so, it would be appropriate on the part of the petitioner to challenge, individually, the certificates, thus, granted before appropriate forum after making the certificate holder a party, inasmuch as, it is a requirement of law, to denude a person of the benefit already given to him, to give him an opportunity to establish that the benefit given has been given appropriately. In the name of a Public Interest Litigation, behind the back of such person, no adverse order can be obtained from any court. 6. It is not the contention of the petitioner, in the present writ petition, that a part of Gorkha community is not entitled of being recognised as belonging to Other Backward Classes community. That being the situation, it was not at all germane, in the present writ petition, for the 3 learned counsel for the State to submit that the State is considering such a matter. 7. In the event, it appears to the petitioner that some members of the Gorkha community should not be treated, for the reasons highlighted, as members of Backward Classes community, it shall be open to the petitioner to take such appropriate action as he may be advised, but that being not the subject matter of the present writ petition and, as aforesaid, the present writ petition having not been instituted in representative capacity, we cannot go into that question. 8. We, accordingly, conclude the Public Interest Litigation upon preserving the liberty of the petitioner as above. (V.K. Bist, J.) (Barin Ghosh, C. J.) 30.08.2010 30.08.2010 G