SCA/11847/2007 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11847 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== PATHAN JUNEDKHAN AMANULLAKHAN - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ===================================================== Appearance : MR MUKUL SINHA for Petitioner(s) : 1, MR MAULIK NANAVATI, AGP for Respondent(s) : 1 - 3 ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA SCA/11847/2007 2/20 JUDGMENT Date : 15/10/2007 ORAL JUDGMENT 1. Rule. Learned AGP appearing for respondents is directed to waive service. The petition is taken up for final hearing and disposal today in light of the view that the Court is inclined to adopt. 2. This petition has been preferred challenging order dated 18.04.2007 made by respondent No.2, the Director (Developing Caste) Social Welfare Department (hereinafter referred to as the Director) whereby the caste certificate issued to the petitioner on 15.03.1996 issued by Social Welfare Officer (Developing Caste), Palanpur has been cancelled. 3. On 07.08.2006 the petitioner was called upon to present evidence in support of the claim of the petitioner that the petitioner is a “Muslaman Sipai”. On the said day, the petitioner presented four documents: SCA/11847/2007 3/20 JUDGMENT (i)Revenue record of Danta State relating to land bearing Survey No.222 occupied by one Shri Bhana Kashiram indicating the payment of land revenue by the said gentleman and the boundaries of the plot with a noting regarding house of one Sipai Hyderkhan in eastern side; (ii) Parvana No.811 dated 14.10.1948 issued by State of Danta granting a parcel of land to Sipai Samatkhan Hyderkhan Pathan, who is petitioner's grand father's brother's son; (iii) Pedhinama (pedigree) to show that petitioner's great grand father Sherdilkhan Mehbubkhan was a Sipai (Pathan); (iv) School leaving certificate issued by St.Xavier School, Loyala Hall at Ahmedabad on 24.05.2001 issued to the petitioner. 4. On 08.08.2006, the father of the petitioner had recorded a written statement before the Director that the original document relating to the neighbour of uncle of the petitioner's father cannot be produced as there are family disputes with the SCA/11847/2007 4/20 JUDGMENT brothers of the petitioner's father. Subsequently, the petitioner's father has produced School Leaving Certificate No.461 dated 30.03.1967 issued by Sir Bhavanisinh Vidhaylaya, Danta, Bhavangadh, District: Bansakantha. After considering the aforesaid evidence and the submissions made by the petitioner and his father, respondent No.2 has passed the impugned order holding that the evidence produced by the petitioner and his father does not establish that the petitioner belongs to the Musalman (Sipai) community / class and hence, the certificate issued by Social Welfare Officer (Developing Caste), Palanpur has been issued without application of mind, without any independent inquiry and in a mechanical manner. 5. The learned advocate for the petitioner has assailed the impugned order on the ground that the School Leaving Certificate issued to the petitioner has been rejected on an erroneous reasoning when the said piece of evidence has been discarded by the Director stating that the column relating to religion and caste shows Islam Pathan (Sipai) but the same is after 23 years of the report of the S.E.B.C. SCA/11847/2007 5/20 JUDGMENT Commission (Baxi Commission) which had been submitted in 1976, and hence does not have any probative value. Similarly, the reasons for discarding the remaining pieces of evidence are also not germane to the issue and the Director has proceeded on an entirely incorrect finding. That the Director has failed to consider the fact that in Muslims no caste system as such exists and hence, the surname can never reflect the caste or the sub-caste of the person. That in- fact, even as per the report of Baxi Commission it becomes clear that the term Sipai has been used to describe a class of persons who are engaged in a particular vocation, namely, that of a solider or in the armed forces. It was, therefore, submitted that the entire approach of the Director was not only erroneous in law but perverse. The reliance on the Apex Court decision in Kumari Madhuri Patil & Another V/s. Additional Commissioner, Tribal Development & Others. (1994) 6 SCC 241 was misplaced because the said judgment of the Apex Court was in relation to the caste / sub-caste which appear only in Hindu Communities and hence, the observations made by the Supreme Court have to be understood and appreciated SCA/11847/2007 6/20 JUDGMENT in that context. In support of the submissions made reliance has been placed on decision of this Court in the case of Imran Ali Rajabhai Polara V/s. State of Gujarat & Ors. 2004(1) GLR 811 to submit that this Court has come to the conclusion that the Authority is required to exercise the jurisdiction and consider the evidence independently and not being guided solely by the observations made by Supreme Court in the case of Kumari Madhuri Patil (Supra). That this decision in case of Imran Ali Rajabhai Polara (Supra) has been followed by this Court in the case of Momin Mohammad Akbar Gulam Kasam (Minor) V/s. State of Gujarat & 2 in Special Civil Application No.14344 of 2005 decided on 13.09.2006. It was, therefore, urged that the impugned order deserves to be quashed and set aside by upholding the Certificate issued by the Social Welfare Officer. 6. On behalf of the respondent-Authority the learned AGP, apart from placing reliance on the affidavit-in-reply, read extensively from the impugned order to submit that the Court was only required to consider as to whether the Authority had SCA/11847/2007 7/20 JUDGMENT considered all relevant material while arriving at the decision and if yes, it was not open to the High Court in exercise of jurisdiction under Article 226 of the Constitution to interfere with the findings of fact based on appreciation of evidence. Referring to the Notification dated 1st April, 1978 as well as the report of Baxi Commission it was contended that even if the contention raised on behalf of the petitioner that Muslim Community does not have system of caste / sub-caste is accepted that by itself would not preclude the Authority from independently examining whether the petitioner falls within the class which is declared to be Socially and Educationally Backward Class (S.E.B.C.). In other words, the burden was on the petitioner to show that petitioner fulfilled the requirement of being a person of class of Sipai. That the petitioner had failed to discharge such a burden and hence, no relief was required to be granted. In support of the submissions made reliance has been placed on decision of this Court in the case of Asif Shaukat Hussainbhai V/s. State of Gujarat & Ors. in Special Civil Application No.12847 of 2003 decided on 02.09.2003 as well as decision in case of Shaikh SCA/11847/2007 8/20 JUDGMENT Seemaband V/s. State of Gujarat in Special Civil Application No.1599 of 2005 decided on 04.05.2005. It was submitted that in both the decisions this Court has come to the conclusion that once the Authority has considered the relevant evidence and recorded certain decisions, this Court in exercise of jurisdiction under Article 226 of the Constitution would not interfere, and further that the ratio of the Apex Court decision in case of Kumari Madhuri Patil (Supra) is applicable even in case of persons claiming to be Muslims. That in-fact, the earlier decision in case of Asif Shaukat Hussainbhai (Supra) the case was of a claim under the entry of “Sunni Patni Jamat” and the said entry was finding place at Serial Number 68 of Notification dated 01.04.1978, which is also the entry relating to the Sipai class. 7. In Rejoinder, the learned advocate for the petitioner has, after reiterating the submissions made in principal address, invited attention to supplemental Affidavit dated 01.10.2007 to point out that there were certain caste certificates issued by the Competent Authority to some of the O.B.C. Muslim SCA/11847/2007 9/20 JUDGMENT persons under the category of Sipai despite the fact that the said persons did not bear the surname Sipai prior to Notification of 1978. 8. On behalf of the respondents a bunch of documents was sought to be placed on record at the time of hearing on 10.10.2007 to point out that in cases of persons genuinely belonging to the class of Sipai various pieces of evidence in the form of School Leaving Certificates etc. issued prior to 1978 are also available to establish that in-fact persons who belong to said class have professed-so since inception, and not after Notification of 1978. Therefore, it was incorrect on part of the petitioner to claim that merely because there was no system of caste / sub-caste in Muslim community a person belonging to a particular caste would not have it entered in the records at the appropriate time. The learned advocate for the petitioner objected to the last mentioned group of documents being placed on record and considered at the fag end of hearing. SCA/11847/2007 10/20 JUDGMENT 9. In light of the objection raised to the bunch of documents placed on record by the learned AGP at the last moment, the Court has not taken the said bunch of documents in consideration. 10. The emphasis on behalf of the petitioner that Muslims do not have any system of caste or sub- caste and hence, the surname would not reflect such a caste or sub-caste is correct, but only to an extent. In-fact, if one considers the report of Baxi Commission in paragraph No.2.31, the said aspect has already been considered in the following words: 2.31. The dangers of adopting a Caste criterion are also obvious. The criterion, for example, will fall and will not apply in the case of Muslims. Backwardness, ignorance, illiteracy and such other social depressants may stick to a group for sometime, but it is likely that changes may occur and may disappear altogether in course of time. Synonymous caste names exist both among high and the low castes, and it is possible that a particular group might not have retained its original name. New structure with old caste names may have come SCA/11847/2007 11/20 JUDGMENT into existence due to several factors such as inter-caste marriages, conversion, change of permanent habitation and geographical and occupational changes. Mirs, for example amongst Muslims have no caste. Their traditional occupation is singing; but along with it they also resort to a mode of asking monetary assistance which is almost akin to begging. Now this mode of life has kept them back from education and improved methods of living and has continued their poverty from generation to generation. Although, therefore, they have no caste, they retain characteristics of backwardness. 2.32 Therefore, in dealing with the question of backwardness, although it may not be irrelevant to consider the caste of a group and although the caste of the group may be a relevant factor, its importance in the consideration of backwardness should never be exaggerated. 11. The report under Chapter II relating to CONCEPT OF BACKWARDNESS states as under:- Main contents of the concept 2.10 The main contents of concept of backwardness, if we are to group them under SCA/11847/2007 12/20 JUDGMENT appropriate headings are :- (i)social backwardness, (ii)educational backwardness, (iii)economic backwardness, (iv) caste, (v) other similar or relevant factors. The words “socially and educationally backward classes” occur in Article 45(4). This expression, however, has not been defined in the Constitution. It can, however, generally be said that socially and educationally backward classes would include such classes, groups, communities whose social progress is retarded, who are illiterate or poorly educated and who on account of poverty, ignorance, lack of education and other social disabilities suffer from lack of adequate opportunities in the matter of self- development. 12. While declaring various castes / classes / groups as Socially and Educationally Backward the Commission has listed at Entry No.68 “Sipai (Muslim), Patni Jamat, or Turk Jamat and in relation to the said entry observed as under:- SCA/11847/2007 13/20 JUDGMENT Sipai The Sipais are Muslims and possibly they settled in India 3 or 4 centuries back and worked in the police force of the Mogul Princes. Some of them may also be local converts to Islam, who served in the State police force. The concentration of the Sipai is mostly in the districts of Saurashtra and Ahmedabad. A majority of the Sipai population stays in kuchcha or mud houses or chawls and most of them do not have adequate accomodation for residence on account of their poor economic condition. 2. The main occupation of this community was to work as members of the police force and even today, many of them are serving in the police force. Formerly, they were engaged in the Princely State services as “Sepoys”. But at present, some of them are working as peons and are engaged in some other petty jobs such as 'bidi' workers, hotel-boys, house-carriage drivers etc. On an average, their monthly income ranges from 100 to 200 rupees per family. Possibly, on account of abolition of the princely class, many of them suffered heavily in employment and had to take to different types of petty occupations and services. Many of the women observe 'Purdah' (veil) and therefore, are not able to freely help the family in its earning by undertaking outside work. On certain SCA/11847/2007 14/20 JUDGMENT occasions like long sickness in the family, they resort to superstitious beliefs, in 'pirs' etc. 3. The percentage of literacy amongst the Sipai is about ten to twenty and very low amongst females. The percentage of secondary and higher education is also very low. On account of bad economic condition, the boys have to be employed in hotels and other labour work to earn a living and this leads to lack of secondary and higher education. They have to live in small hut-like houses which are like slums and being economically poor are consequently deprived of the means of education and civilized life. At certain places some of them are addicted to drink. In the Saurashtra region, the Sipais were considered as other Backward Classes. Turk Jamat It may be mentioned that the “Turk Jamat”, Veraval, had approached the Commission for being considered as backward as they are a part of the Sipai community. This being so and since the Turks have almost all the characteristics of the Sipai, they are included as socially and educationally backward alongwith the Sipais. Patni Jamat The Patnis are almost a section of the Sipai, community and have the same characteristics. SCA/11847/2007 15/20 JUDGMENT They should therefore, be included as socially and educationally backward alongwith the Sipais. 13. Therefore, while determining whether a person falls within one of the reserved classes the Authority is required to bear in mind the contents of the Concept of Backwardness and apply various factors which govern a particular entry, because in every case the test of caste per-se may not be relevant or may break down. Whether the claimant fulfills the test of social backwardness, educational backwardness and economic backwardness, and other similar or relevant factors are required to be taken into consideration. One of the such similar relevant factors would be, as in the present case, the main occupation of the community. However, no particular singular factor would be determinative for declaration of a person falling within a particular class of reserved category. For example, in the case of the class of persons described as 'Sipai' Baxi Commission itself has recorded that though the main occupation of the community was to work as members of the police force, and even today, many of them are SCA/11847/2007 16/20 JUDGMENT serving in the police force, at present, i.e. in 1976 when the report was tendered, some of them are working as Peons, Bidi Workers and Hotel Boys, etc. Similarly, the test of educational backwardness or the level of literacy also would be one of the relevant factors. The Court does not intend to lay down any straight jacket formula, but the Authority would be well advised to bear in mind the tests formulated by the Baxi Commission, which again are not exhaustive or self limiting. However, it can be stated, without fear of contradiction, that such tests provide a guidance for the Authority to appreciate the evidence on record. Hence, where the evidence is not clear, cogent and unequivocal, the authority will have to call upon the claimant to establish the claim with reference to ancestral moorings in light of various factors as noted hereinbefore in the particular factual matrix. 14. Though the Apex Court decision in case of Kumari Madhuri Patil (Supra) is in relation to the dispute whether the appellants therein were Mahadev Kolis or Kolis simplicitor, the observations made SCA/11847/2007 17/20 JUDGMENT therein in relation to the constitutional scheme cannot be brushed aside on the specious plea that the Court was dealing with a Hindu sub-caste. In paragraph No.11 of the Judgment Supreme Court has recorded as under: “The caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth”. only to emphasis the fact that a caste or class, to which a person belongs, is determined on the basis of the caste / class of the parents, basically for the reason that the same is acquired by birth. Similarly, the guidelines laid down in paragraph No.13 of the Judgment which prescribe a procedure which would be fair and just while shortening the undue delay in determination of social status of a claimant cannot be stated to be restricted in its application to only cases of Hindu claimants. Therefore, the contention of the petitioner on this count cannot be accepted. 15. It is necessary to record that the burden of proof is always on the claimant concerned to SCA/11847/2007 18/20 JUDGMENT establish that the claimant falls within one or the other reserved category. Merely by placing reliance on the certificate issued by the Authority, claimant cannot shift the burden on the Director for establishing that the caste certificate issued by the Social Welfare Officer is not correct. The authority cannot be asked to discharge a negative burden. 16. In paragraph No.15 of the Judgment, the Apex Court has laid down as under: “15. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have SCA/11847/2007 19/20 JUDGMENT led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts”. 17. In normal circumstances, the Court would have adopted the aforesaid approach and not entered into any elaborate discussion as to the evidence on record, the High Court not being a Court of appeal is not required to appreciate the evidence. The powers of judicial review of the High Court are subject to limitations of interference with findings of fact and though another view, as a Court of appeal may be possible, it would not be a ground to reverse the findings. The Court has to see whether the Authority has considered all the relevant material placed before it or has not applied its mind to relevant facts which have led to the ultimate finding. Each case has to be considered in the back-drop of its, own facts and not on basis of some observations made in one or the other judgment. 18. Applying the aforesaid tests to the impugned order it would not be possible for the Court to SCA/11847/2007 20/20 JUDGMENT interfere with the findings of fact recorded by the Authority. However, as noted hereinbefore, while recording such findings of fact the Authority is required to consider the various tests for social backwardness, educational backwardness, economic backwardness and similar other factors. The impugned order has not dealt with the aforesaid aspect of the matter and hence, it is necessary that the Authority once again undertakes such an exercise. Accordingly, the impugned order is quashed and set aside leaving it open to the Authority to proceed afresh from the stage of show cause notice in light of what is stated hereinbefore and the principles enunciated by various decisions of the Apex Court and this Court. The order dated 18.04.2007 made by the Director is hereby quashed and set aside in the aforesaid terms. 19. The petition is accordingly allowed to the aforesaid extent. Rule made absolute. There shall be no order as to costs. (D.A.MEHTA, J.) ashish//