Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 37 of 2006 State of Uttaranchal and others. …..…Appellants. Versus Bhoodev Singh. ……Respondent. Mr. B. K. Gupta, Additional Advocate General for State of Uttarakhand/appellants. Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondent. Dated :- October 22, 2009 Coram : Hon’ble Tarun Agarwala, ACJ. Hon’ble Alok Singh, J. (Per Alok Singh, J) Heard Mr. B.K. Gupta, learned Additional Advocate General for State / appellant and Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondent. In the present appeal the impugned judgment is dated 19.11.2005 passed by learned Single Judge in the writ petition no. 548 (S/S) of 2005 (Bhoodev Singh Vs. State of Uttaranchal and others) thereby quashing the order dated 21.04.2005 passed by original respondent no. 4 in writ petition on the ground that Caste – Dhivar has been shifted from Scheduled Caste Category to OBC Category in the State of Uttarakhand. The brief facts of the writ petition inter alia are that original writ petitioner had applied for the Special BTC Course in the year 2003 under Scheduled Caste Category, but did not join the Special BTC Course. Again in the year 2 2004, petitioner applied for Special BTC Course under the Backward Class Category (OBC Category). However, his admission was cancelled by respondent no. 4 vide impugned order dated 21.04.2005 (Annexure no. 2 to the writ petition) on the ground that Deputy Collector, Kashipur and Additional District Education Officer, U.S. Nagar had observed that petitioner’s caste certificate and domicile certificate are highly suspicious because in the year 2003 petitioner had applied under the Scheduled Caste Category (Turaiha Caste) with the address village – Aaspur, Tehsil – Kashipur, District – Nainital whereas in the year 2004 petitioner applied under OBC Category (Dhivar Caste) showing resident of Village – Pandari, Tehsil – Sitarganj, District – Udham Singh Nagar. This fact has not been disputed by the petitioner. In para 6 and 7 of the writ petition, the petitioner admitted that in the year 2003 he had applied under the Scheduled Caste Category showing himself as belonging to caste Turaiha while in the year 2004 he applied under OBC Category belonging to caste – Dhivar. Learned counsel for appellant Sri Gupta, Additional Advocate General argued that it was not clear whether writ petitioner belongs to caste Turaiha or he belongs to caste – Dhivar. The domicile certificate of the petitioner is also highly suspicious and it is not known what is the correct address of the writ petitioner and as such, in the facts and circumstances of the cases the impugned order was rightly passed by the respondent no. 4 - Principal, DIET, Bhimtal, Nainital. The learned counsel further stated that the learned Single Judge committed an error in holding that the caste of the petitioner was shifted from Scheduled Caste to Other Backward Class Category in 3 State of Uttarakhand. He stated that neither the State Government nor the Central Government has ever issued any notification to this effect. In reply to the argument of the learned counsel for the appellant, Senior Advocate Mr. Kandpal stated that the petitioner’s original caste was Dhivar, however, his sub caste is Turaiha. Hence, both the caste certificates issued by Tehsildar – Sitarganj as well as Tehsildar – Kashipur are correct. He further stated that since the petitioner did not avail the benefit of Scheduled Caste Certificate in the year 2003, hence, he had rightly availed the benefit of OBC Certificate in the year 2004. We have carefully perused the record. Annexure no. 15 to the Appeal (paper no. 103 of the paper book on the record) is the caste certificate issued by Tehsildar, Kashipur, showing that the petitioner belongs to Caste – Turaiha and is a resident of Village – Aaspur, Tehsil – Kashipur, District – Nainital while paper no. 109 of the paper book (Annexure No. 15 to the Appeal) is the caste certificate issued by Tehsildar, Sitarganj, District – Udham Singh Nagar which shows that the petitioner belongs to Caste – Dhivar, which is OBC Category in the State of Uttarakhand and is a resident of village – Pandari, Tehsil – Sitarganj. Section 24 of U.P. Reorganization reads as under: Amendment of the Scheduled Castes Order – On and from the appointed day, the Constitution (Scheduled Castes) Order, 1950, shall stand amended as directed in the Fifth Schedule to this effect. 4 Schedule V of the U.P. Reorganization Act shows that caste – Turaiha is under Scheduled Caste Category at serial No. 65 while paper no. 130 of the Paper Book shows that caste – Dhivar, which is at Serial No. 26 is, under OBC Category. If Caste - Turaiha is a scheduled caste as shown in Schedule V of U.P. Reorganization and caste – Dhivar is OBC Category as shown in paper no. 130 of the Paper Book then it cannot be said by any stretch of imagination that Turaiha would be a sub caste of Dhivar as alleged by the petitioner. In view of this, it cannot be said as to whether petitioner belongs to Turaiha Caste (Scheduled Caste) or he belongs to Dhivar Caste (Other Backward Class). This Court while exercising the power under Article 226 of the Constitution of India or in an appeal arising out of writ petition cannot enter into the factual aspect to decide as to what is the correct caste of the petitioner. Moreover, no such material is available on record to show as to what is the correct caste of the petitioner. Petitioner has not approached this Court in the writ petition with clean hands. At one place he claims himself to be a scheduled caste candidate and at another place he claims himself to be a Backward Class candidate. Hence, applying the principle “he who seeks equity must come with clean hands”, the writ petition ought to have been dismissed. As far as observation made by learned Single Judge is concerned that Dhivar – Turaiha was shifted from Scheduled Caste Category to OBC category in the State of Uttarakhand, we find no material on record to this effect. Neither the appellant nor the respondent (original petitioner) could place any notification / government 5 order on record to this effect on being repeatedly asked by the Court during the course of hearing of the appeal. Rather Mr. M.C. Kandpal fairly conceded that there is no material which could show that Caste Turaiha has been shifted from Scheduled Caste Category to OBC Category. In view of the above, we have no option except to allow the present appeal. The impugned order dated 19.11.2005 passed by the learned Single Judge is set aside. Special Appeal is allowed. The writ petition is dismissed. No order as to costs. (Alok Singh, J.) (Tarun Agarwala, ACJ.) 22.10.2009 SKS 6