Case: Kurapati Maria Das Vs. M/S. Dr. Ambedkar Seva Samajan

The appellant herein contested the election from Ward No.8 of Bapatla as a Councilor in the election held on 24.09.2005. He was declared elected. Later on he was elected as the Chairperson of the Council by all the elected Councilors. The said Ward was reserved for Scheduled Castes and the office of the Chairperson of Bapatla Municipal Council was also reserved for the Scheduled Castes by a Notification dated 18.08.2005 issued by the Government of Andhra Pradesh. The appellant herein claimed that he belonged to the Scheduled Caste, namely, Mala, which is one of the castes specified in the Constitution4. After about six months of the election of the appellant as the Chairperson, a representation came to be filed by the 1st respondent on 22.03.2006 to the Superintendent of Police, Guntur to investigate into the issue relating to appellants community status. A further representation came to be made on 14.04.2006 for initiation of action against the appellant as he had got himself elected by making false claim of being a member of the Scheduled Caste. Similar representation was made to Andhra Pradesh State Commission for Scheduled Castes and Scheduled Tribes. A complaint was made on 18.04.2006 before the District Collector, Guntur under Section 5 read with Section 12 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (hereinafter referred to as `the 1993 Act for short). An application was also filed under the Right to Information Act, 2005 for supply of documents such as the application filed by the appellant in the month of August, 2005 for issuing the caste certificate and the documents annexed to such application for substantiating his claim of belonging to the Scheduled Caste, the previous certificate, if any, issued to the appellant and the caste certificate issued to him pursuant to his application made in the month of August, 2005. Ultimately, on 20.8.2006, a writ petition came to be filed before the Andhra Pradesh High Court purportedly for the writ of quo warranto. In the said writ petition, the following prayers were made:For the said reasons, it is prayed that this Honble Court may be pleased to issue a writ or order or direction more particularly one in the nature of Writ of Quo Warranto against the 9th respondent(a) directing the 9th respondent to disclose the authority under which he is holding the office of the Chairperson and the office of the Councilor of the Bapatla Municipal Council, Guntur District (representing Ward No.8)(b) directing the 9th respondent to vacate the offices of the Chairperson and the Councilor of the Bapatla Municipal Council, Guntur District (representing Ward No.8), or,(d) to pass such other order or orders as this Honble Court may deem fit and proper in the circumstances of the caseFor the said reasons, it is prayed that this Honble Court may be pleased to issue an interim injunction restraining the 9th respondent from functioning as the Chairperson and as the member of the Bapatla Municipal Council, Guntur District representing Ward No.8 thereof pending disposal of the writ petition and pass such other order or orders as this Honble Court may deem fit and proper in the circumstances of the case5. In the said writ petition, one application being WPMP 23998/06 was also filed praying the Court to receive a copy of the report of the Inspector of Police dated 21.08.2006 giving the details of the representations made by the respondent No.1. Along with the writ petition, the 1st respondent had also filed copy of Service Rules of the present appellant maintained by In-charge of the Establishment of the office of Assistant Engineers operation Bapatla, Andhra Pradesh, State Electricity Board and seniority list of the Assistant Lineman prepared by the Southern Power Distribution Company of Andhra Pradesh Ltd. Operation Division, Tenali which was the successor of Andhra Pradesh State Electricity Board. It was pointed that in these documents the appellant was described as the Christian Mala belonging to the Backward Class `C category. Even in the Affidavit, in support of the writ petition, it was averred that the 1st respondent Association and the other respondents had came to know that appellant belonged to the backward class `C category as he was a Mala converted to Christianity and that he had obtained employment in the Andhra Pradesh State Electricity Board and continued in service till his retirement. In paragraph 11 of the affidavit in support of the petition, the petitioners had relied on the documents regarding the service record of the appellant6. The appellant denied all these claims and further claimed specifically that he had never converted to Christianity and did not belong to backward class `C category. He asserted that he was born at Pedavadlapudi, a village at Mandal Mangalaguri in the District Guntur in the family of the caste Mala belonging to Hindu religion and his father is one Shri Sangeeta Rao and family of his parents and ancestors belonged to Hindu Mala community and he never followed Christianity and was never baptized to Christianity. He relied on the Caste Certificate issued by Mandal Revenue Officer in August, 2005 and other certificate issued by the Mandal Revenue Officer in the year 2004 showing that he belonged to Hindu Mala category. In short, he categorically disputed the claim of the writ petitioners (respondents herein) that he was not a Hindu Mala Scheduled Caste but was a Christian7. He also pointed out that firstly his nomination and his election as a Ward member which he had contested as a Scheduled Caste candidate, was never challenged by way of an Election Petition though there is a specific remedy provided in the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967. He also pointed out that the caste certificates issued by the authorities in the year 2004-05 were still intact and not cancelled. He also pointed out that this was nothing but an indirect way of challenging his election as a Councilor and, thereafter, as the Chairperson by way of a writ petition without filing any Election Petition which was specifically barred under Article 243 ZG of the Constitution of India. He, therefore, averred that the petitioners before the High Court who are respondents herein had bypassed the specific remedy provided under the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, challenging the election by way of an Election Petition and have resorted to the filing of writ petition raising the disputed questions of fact and, thus, the writ petition was not maintainable8. The learned Single Judge of the High Court took note of the efforts made by the respondents by their representations to the various authorities as also their complaint made under Section 5 of the 1993 Act. The learned Single Judge after noting the rival contentions, extensively quoted and relied on the documents filed by the writ petitioners (respondent herein) relating to the service record of the appellant as also the representations filed by the writ petitioners. The Learned Single Judge held that the authenticity of the service record and the entries produced before the High Court could not be doubted in view of the stand taken by the appellant in his counter affidavit. He held that the said stand against these documents was unsatisfactory. He therefore, came to the following factual findings in paragraph 23 of his judgment:23. On a careful analysis of the whole material available on record, the following aspects emerged:-(1) The fact that the 9th respondent worked in A.P. Electricity Board is not in serious dispute. The fact that he retired from service also is not in serious dispute. The Service Book, the Entries, authenticity thereof also cannot be in serious dispute, especially in the light of the nature of the stand taken by the 9th respondent in the counter affidavit(2) The Caste Certificates were obtained by the 9th respondent after retirement claiming to be of the Scheduled Caste community;(3) The stand taken by the 9th respondent is not one of re-conversion into Hinduism again but the stand is that he was never Baptized and the family continues to be a Hindu family only belonging to Scheduled Caste;(4) It is pertinent to note that the petitioners had taken a specific stand that for about two generations the family of the 9th respondent had embraced Christianity and continues to have the Christian faith;(5) The conduct of the 9th respondent in seeing that the document are not furnished as reflected from the orders also would go to show that the stand taken by him is not bona fide; and(6) In the light of the whole material available on record, this is a case of play of fraud on the Constitution depriving the Scheduled Caste category persons from being elected to the respective offices though the said respective offices are reserved for the said categoryIn the light of the above facts, this court is of the considered opinion that this is a fit case where the 9th respondent cannot be permitted any longer to occupy the respective offices claiming benefits under the category of Scheduled Caste, taking shelter under the false Scheduled Caste Certificate obtained by him for the purpose of election or otherwise after retirement. On a careful analysis of the whole episode, this is only irresistible conclusion at which this Court can arrive at, since no other conclusion is possible to be drawn9. Ultimately, on this basis he came to the conclusion that the writ petition was not only maintainable but was also liable to be allowed. In that manner he allowed the writ petition10. An appeal came to be filed against this judgment before the Division Bench. However, the Division Bench dismissed the said appeal. That is how the appellant is before us

Reasoning: 20. We are afraid, we are not in position to agree with the contention that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the Scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . Every case is an authority for what is actually decided in that. We do not find any general proposition that even where there is a specific remedy of filing an Election Petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available21. Again as we have stated earlier, there was no dispute and no challenge to the findings of the High Court that K. Venkatachalam, the petitioner in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] was not a Legislator in electoral roll of the constituency for the general elections for December, 1984 and he blatantly and fraudulently represented himself to be a Legislator of the constituency using the similarity with the name of another person. The situation in the present case is, however, entirely different in the sense that here the petitioner very seriously asserted that firstly, he was not a Christian and, secondly, that he belongs to the Scheduled Caste22. Shri Gupta, however, further argued that in the present case what was prayed for was a writ of quo warranto and in fact the election of the appellant was not called in question. It was argued that since the writ petitioners came to know about the appellant not belonging to the Scheduled Caste and since the post of the Chairperson was reserved only for the Scheduled caste, therefore, the High Court was justified in entering into that question as to whether he really belongs to Scheduled Caste. In short, the learned counsel argued that independent of the election of the appellant as a Ward member or as a Chairperson, his caste itself was questioned in the writ petition only with the objective to see whether he could continue as the Chairperson. This argument is clearly incorrect as the continuance of the appellant as the Chairperson was not dependent upon something which was posterior to the appellants election as Chairperson. It is not as if some event had taken place after the election of the appellant which created a disqualification in appellant to continue as the Chairperson. The continuance of the appellant as the Chairperson depended directly on his election, firstly, as a Ward member and secondly as the Chairperson which election was available only to the person belonging to the Scheduled Caste. It is an admitted position that Ward No.8 was reserved for Scheduled Cast and so also the Post of Chairperson. Therefore, though indirectly worded, what was in challenge in reality was the validity of the election of the appellant. According to the writ petitioners, firstly the appellant could not have been elected as a Ward member nor could he be elected as the Chairperson as he did not belong to the Scheduled Caste. We can understand the eventuality where a person who is elected as a Scheduled Caste candidate, renounces his caste after the elections by conversion to some other religion. Then a valid writ petition for quo warranto could certainly lie because then it is not the election of such person which would be in challenge but his subsequently continuing in his capacity as a person belonging to a particular caste. The Counsel for the appellant rightly urged that the question of caste and the election are so inextricably connected that they cannot be separated. Therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the validity of the election of the appellant, though apparently the petition is for the writ of quo warranto23. There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in actionThere is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after ad enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this caseIt was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition