“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._2617_OF 2009 (Arising out of SLP (Civil) No.15144 of 2007)

Kurapati Maria Das …. Appellant

Versus

Dr. Ambedkar Seva Samajan & Ors. ….Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. The order of the Division Bench of  the High Court confirming the

judgment  of  the  learned  Single  Judge  is  in  challenge before  us.   The

learned Single Judge had allowed the writ petition filed on behalf of the

respondent  Nos.  1  to  10  challenging  the  election  as  well  as  the

continuation  of  the  appellant  herein  as  the  Chairperson  of  the  Baptla

Municipal Council.   

3. The following facts will highlight the controversy:  

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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 Constitution.   

4. 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 appellant’s  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

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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 Hon’ble 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,  

(c) removing the 9th respondent from the office of the  Chairperson  and  from  the  office  of  the Councilor  of  the  Bapatla  Municipal  Council, Guntur District (representing Ward No. 8)

and  

(d) to  pass  such  other  order  or  orders  as  this Hon’ble Court may deem fit and proper in the circumstances of the case.

For the said reasons, it is prayed that this Hon’ble 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,

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Guntur District representing Ward No.8 thereof pending disposal of the writ petition and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

5. 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 appellant.

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6. 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 Christian.   

7. 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

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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 maintainable.

8. 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,

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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 category.

In 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 drawn.”

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9. 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 petition.

10. 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.

11. It  is  urged  by  Shri  N.  Nageshwar  Rao,  learned  Senior  Counsel

appearing  on  behalf  of  the  appellant  that  the  High  Court  has  erred  in

exercise of its jurisdiction under Article 226 of the Constitution, in view of a

clear bar in the Constitution under Article 243 ZG (b).  He further claims

that  firstly  no  objection  was  raised  to  the  nomination  papers  of  the

appellant  herein when he contested the election as a Scheduled Caste

candidate from Ward No.8 of Baptla Municipal Council which was reserved

for  the  Scheduled  Caste  Candidates.   He  further  pointed  out  that  the

election of the appellant from that Ward and the subsequent election as

Chairperson could have been challenged by Election Petition but even that

was not  done.   He pointed out  that  there  is  a  specific  provision under

Section 5 of the 1993 Act for the determination of the validity of the caste

certificate issue.  He pointed out that though such application was made,

yet, without waiting for the proceedings to be completed under that Act, the

writ petitioner rushed to the High Court which was not permissible.   

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12. The learned counsel  argues that  the  necessary result  is  that  the

caste certificate of the appellant still remains intact and, therefore, it is a

prima facie proof in support of the plea of the appellant that he belongs to

the Scheduled Caste community.  Lastly, learned counsel contends that

the  High  Court  has  gone into  the  fact  finding  exercise  which  was  not

permissible and has come to the erroneous conclusion that the appellant

had converted to the Christianity, which plea was never raised by the writ

petitioner.   Learned counsel  further buttressed his arguments by saying

that  the  service  record  of  the  petitioner  was  wholly  irrelevant  for  the

purpose  of  deciding  as  to  the  caste  he  belongs  to.   Learned  counsel

furthermore argued that under Article 226, the High Court could not have

gone out of its way to invite the files of the Department and then come to

the conclusion that the petitioner did not belong to the Scheduled Caste as

he had become Christian. By way of his last contention, learned Senior

Counsel urged that even if the appellant had converted to Christianity, that

did not  result  in  loosing the Scheduled Caste status  on the part  of  the

appellant.  Shri R. Sundarvardhan, learned Senior Counsel arguing for the

State  Government  also  supports  the  argument  of  the  appellant  and

contends  that  the  High  Court  could  not  have  gone  into  the  disputed

questions in a writ petition which itself was not tenable owing to the specific

bar under Article 243 ZG (b).

13. As against  this,  Shri  Gagan Gupta learned counsel  appearing on

behalf of the respondents herein argues that it would be a travesty to allow

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the appellant to continue as a Councilor or, as the case may be, as the

Chairperson of the Municipal Council, particularly, when that post was only

meant for a person belonging to the Scheduled Caste and where it was

proved that the appellant-petitioner did not belong to the Scheduled Caste.

Regarding the bar of jurisdiction under Article 243 ZG (b), learned counsel

submitted that the decision relied upon by the High Court reported as  K.

Venkatachalam  v.  A  Swamickan  &  Anr.  [1999  (4)  SCC  526], was

applicable and, therefore, it could not be said that there was a bar to the

entertainment  of  the  writ  petition  under  Article  226.   Learned  counsel

supported the factual findings recorded by the High Court to the effect that

the appellant was a Christian and, therefore, could not claim the status of a

person belonging to the Scheduled Caste, more particularly, caste “Mala”.

14. In the first place, it would be better to consider as to whether the bar

under Article 243 ZG (b) is an absolute bar.  The Article reads as thus:

“243ZG (b) no election to any Municipality shall be called in question  except  by  an  election  petition  presented  to  such authority and in such manner as is provided for by or under any law made by the Legislature of a State”.

15. At least from the language of clause (b), it  is clear that the bar is

absolute.  Normally, where such a bar is expressed in a negative language

as  is  the  case  here,  it  has  to  be  held  that  the  tone  of  clause  (b)  is

mandatory and the bar created therein is absolute.  This Court in its recent

decisions has held the bar to be absolute.  First such decision is reported

as Jaspal Singh Arora v. State of M.P. & Ors.[1998 (9) SCC 594].  In this

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case the election of the petitioner as the President of the Municipal Council

was challenged by a writ  petition under Article  226, which was allowed

setting aside the election of the petitioner.  In paragraph 3 of this judgment,

the Court observed:

“it  is  clear  that  the election could not  be called in question except by an election petition as provided under that Act.  The bar to  interference by Courts  in  electoral  matters contained under  Article  243  ZG  of  the  Constitution  was  apparently overlooked  by  the  High  Court  in  allowing  the  writ  petition. Apart from the bar under Article 243 ZG, on settled principles interference  under  Article  226  of  the  Constitution  for  the purpose  of  setting  aside  election  to  a  municipality  was not called  for  because  of  the  statutory  provision  for  election petition………”

16. The second such decision is reported as Gurdeep Singh Dhillon v.

Satpal & Ors. 2006 (10) SCC 616].  In that decision, after quoting Article

243 ZG (b) the Court observed that the shortcut of filing the writ petition

and  invoking  Constitutional  jurisdiction  of  the  High  Court  under  Article

226/227 was not permissible and the only remedy available to challenge

the election was by raising the election dispute under the local statute.

17. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities

(Decision  on  Election  Disputes)  Rules,  1967,  specifically  provides  for

challenging the election of Councillor or Chairman.  It was tried to be feebly

argued that this was a petition for quo warranto and not only for challenging

the election of the appellant herein.  This contention is clearly incorrect.

When  we  see  the  writ  petition  filed  before  the  High  Court,  it  clearly

suggests that what is challenged is the election.  In fact the prayer clauses

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(b) and (c) are very clear to suggest that it is the election of the appellant

which is in challenge.  Even when we see the affidavit in support of the

petition in paragraph 8, it specifically suggested that the Ward No. 8 was

reserved for the persons belonging to the Scheduled Castes from where

the appellant contested the election representing himself to be a person

belonging to the Scheduled Caste.  Paragraph 9 speaks about the election

of the appellant as the Chairperson. Paragraph 30 also suggests that the

complaint has been made against the appellant that he had usurped the

public office by falsely claiming himself to be a person belonging to the

Scheduled Caste.  In paragraph 33, it is contended that the first petitioner

had no remedy to question the election of the 9th respondent by way of an

election petition.  Therefore, though apparently it is suggested in the writ

petition was only for  the writ  of quo warranto,  what is prayed for is the

setting aside of the election of the appellant herein on the ground that he

did not belong to the Scheduled Caste.  It  is further clear from the writ

petition that the writ-petitioners were themselves aware of the situation that

the writ of quo-warranto could have been prayed for only on invalidation or

quashing  of  the  election  of  the  appellant,  firstly  as  a  Councillor  and

secondly,  as  a  Chairman  and  that  was  possible  only  by  an  Election

Petition.  The two decisions quoted above, in our opinion, are sufficient to

hold that a writ petition of the nature was not tenable though apparently the

writ  petition  has  been  couched  in  a  safe  language  and  it  has  been

represented as if it is for the purpose of a writ of quo warranto.

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18. Learned counsel Shri Gupta, however, invited our attention to some

other  decisions  of  this  Court  reported  as  K.  Venkatachalam  v.  A

Swamickan & Anr. [1999 (4) SCC 526] where a writ of quo warranto was

sought against the member of the Legislative Assembly on the ground that

his name was not found in the voters’ list  of that particular constituency

from where he was elected.  Our attention was invited to paragraphs 27

and 28.  In paragraph 27 after referring to the decision of the  Election

Commission  of  India  v.  Saka Venkata  Rao [AIR 1953 SC 210]  and

considering the Article 192, the Court observed that Article 226 is couched

in  widest  possible  language  and  unless  there  is  a  clear  bar  to  the

jurisdiction of the High Court, its powers under Article 226 can be exercised

when there is any act which is against any provision of law or vioative of

constitutional  provisions  and  when  the  recourse  cannot  be  had  to  the

provisions of the Act for appropriate relief.  Then the Court observed:  

“In circumstances like the present one, bar Under Article 329 (b) will not come into play when the case falls under Articles 191  and  193  and  the  whole  process  of  election  is  over. Consider the case where a person elected is not a citizen of India.  Would the court allow the foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?”

In paragraph 28, the Court went on to hold that the High Court had

rightly exercised its jurisdiction in entertaining the writ petition under Article

226.  This case has been very heavily relied on in the impugned judgment

of the Division Bench.   

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19. Shri N. Nageshwar Rao further points out that the factual scenario in

that case was different.  That was a case where admittedly the name of the

elected candidate was not in the voters’ list and the elected candidate had

tried to use similar name in the voters’ list which was admittedly not that of

the elected candidate.  There was no necessity of any proof, as a voter list

was an admitted document and it clearly displayed that the name of the

Legislator was not included in the list.  Therefore, the Court observed in

that case in paragraph 27 which we have quoted above to the effect:

“In circumstances like the present one, bar Under Article 329 (b) will not come into play when the case false under Articles 191 and 193 and the whole process of election is over.” (emphasis supplied)

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

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elected from the reserved constituency still remedy of writ petition under

Article 226 would be available.

21. 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 Caste.  

22. 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

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the continuance of the appellant as the Chairperson was not dependent

upon  something  which  was  posterior  to  the  appellant’s  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

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in fact  challenged is the validity of  the election of  the appellant,  though

apparently the petition is for the writ of quo warranto.

23. 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

decision.

24. 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 action.

25. Shri Gupta, however, pointed out that it was specifically proved that

the appellant was a Christian and as such he did not belong to the “Mala”

caste which was a Scheduled Caste.  Now there is no dispute that the

appellant was given two caste certificates within the definition of Section 2

(b)  of  the  1993  Act.   There  is  also  no  dispute  that  these  community

certificates were obtained by the appellant and they were valid and genuine

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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 a full-fledged 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 Act.   

26. 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 appellant’s 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

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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 nobody’s case that the petitioner ever was converted nor was it

anybody’s 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 case.

27. Shri Gupta then contended that there was no opportunity for the writ

petitioners  to  challenge  the  caste  as  the  application  filed  by  them  for

cancellation of the Caste before the authority under 1993 Act was never

decided.  It 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,

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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 appellant’s 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 controversies.

28. 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.

29. We, therefore, allow this appeal by setting aside two judgments one

of the learned Single Judge and the other of the Division Bench of the High

Court  filed  in  appeal  and direct  the dismissal  of  the writ  petition.   The

counsel’s fee is assessed at Rs. 25,000/-.  The appeal is allowed with the

aforementioned directions.

…………………………J.

[TARUN CHATTERJEE]

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…………………………J. [V.S. SIRPURKAR]

New Delhi April 17, 2009

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