IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 836 OF 2010 (M/S) Smt. Nazis Jahan ….………Petitioner. Versus State of Uttarakhand and others. ….…..Respondents. Present: Mr. B.S. Adhikari & Mr. Abhishek Verma, Advocates for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Mr. Milind Raj, Advocate for respondent no. 5. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. B.S. Adhikari & Mr. Abhishek Verma, Advocates for the petitioner, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Mr. Milind Raj, Advocate for respondent no. 5. The petitioner has challenged the caste certificate given to respondent no. 5. Evidently, under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, an Act, which is also applicable in the State of Uttarakhand, “Other Backward Class” (from hereinafter referred to as OBC) was defined under Section 2 (b), which reads as follows:- “[(b) “other backward classes of citizens” means the backward classes of citizens specified in Schedule I ;]” In Schedule-I, “Dhafali” is mentioned at Serial No. 25. Evidently, the controversy arose as respondent no. 5 filed her nomination for election of “Gram Pradhan” as against a constituency, which was reserved for “OBC”. Respondent no. 5 was subsequently elected as a Gram 2 Pradhan in the said election. In order to challenge her candidature, the petitioner moved to the concerned Authority for cancelling her caste certificate. The application was moved before the Tehsildar, Kashipur, Udham Singh Nagar, who in turn, asked for information from Tehsildar, Thakurdwara, where respondent no. 5 was originally resided. Then Tehsildar, Thakurdwara wrote a letter dated 12.2.2009 (Annexure CA-4 to the counter affidavit) that as per the revenue records, respondent no. 5 is a “Shekh Dhafali”. In other words, the revenue records reveal that respondent no. 5 is not a “Dhafali” but a “Shekh Dhafali”, which is being presented now as a sub-caste or sub category of “Dhafali”. While interpreting provisions of Article 341 and 342 of the Constitution of India pertaining to scheduled castes and scheduled tribes respectively, the Hon’ble Apex Court in its seminal judgment, namely, State of Maharashtra Vs. Milind and others 2001 (1) SCC Page 4, has decided that it is not given to Government Authorities or even the State Government to make any changes in the order, whereby the President has declared a particular caste to be a “scheduled caste” or a “scheduled tribe”. It is not open to the Government to further interpret, add or subtract a caste from the Schedule in the Order. Applying the same logic, once a caste has been declared to be “OBC” by a particular name, it is not given to the revenue authorities or even to Government to make any interpretation, to add or to substitute a sub-caste in a particular caste which has been declared as “OBC”. This being the case, the interpretation of Tehsildar, Thakurdwara that “Shekh Dhafali” is also a sub-caste of “Dhafali” and therefore respondent no.5 is a member of “OBC Community” is 3 absolutely incorrect. Since this is the only document (Annexure CA-4) relied upon by the Tehsildar, Kashipur while giving the caste certificate to respondent no.5, it is patently illegal. Though this court was inclined to declare the caste certificate of respondent no. 5 as invalid. All the same, purely in the interest of justice, it is directed that the petitioner and respondent no.5 shall be present before the District Magistrate, Udham Singh Nagar on or before 10.6.2011. The District Magistrate, Udham Singh Nagar shall give the petitioner as well as respondent no. 5 an opportunity of hearing and take a decision on the matter as to whether respondent no.5 belongs to OBC category or not. It is made clear that in order to prove that respondent no.5 is OBC, she must categorically prove that she belongs to a caste which is notified in the Schedule in the Order as OBC. Mere interpretation by any authority that a particular caste is a sub caste of a Caste which has been notified as OBC will not do. The decision must be taken by the Authorities within a period of six weeks from 10th June, 2011, when parties shall present themselves before the concerned Authority. In case a decision is taken by cancelling the caste certificate, the petitioner will be at liberty to move the concerned authorities for any further relief. The District Magistrate, Udham Singh Nagar will give a reasonable opportunity to the petitioner to show that she belongs to “OBC” called “Dhafali” and the District Magistrate consequently will take a decision based on the evidence before him supplied by the petitioner or the Revenue Authorities. This Court has merely stated the legal position on this aspect inasmuch as the Revenue Authorities do not have any power to add or subtract 4 from the notifications a given caste or to put a sub caste to a caste. The District Magistrate, however, keeping this legal position in mind will take a decision on this aspect after appreciating the evidence placed before him. The writ petition is disposed of accordingly. No order as to costs. (Sudhanshu Dhulia, J.) 25.5.2011 Rathour