1 RSA No.1353/2008 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE30H DAY OF JUNE2014BEFORE THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA BETWEEN: RSA No.1353/2008 (RES) 1.
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5. THE GOVERNMENT OF KARNATAKA, REPRESENTED BY DEPUTY COMMISSIONER, BAGALKOT. THE DIRECTOR, PUBLIC INSTRUCTIONS DEPT. NRUPATUNGA ROAD, BANGALORE. THE DEPUTY DIRECTOR, DEPT. OF PUBLIC INSTRUCTIONS, BAGALKOT. THE BLOCK EDUCATION OFFICER, JAMKHANDI. THE HEAD MASTER, GOVERNMENT KANNADA MEDIUM GIRLS HIGH SCHOOL, BANAHATTI, TQ.JAMKHANDI. (BY SRI.H.HANUMANTHARAYAPPA, GOVT.ADVOCATE) … APPELLANTS AND:
1. KUMARI SHILPA SHRISHAIL BARAGADAGI, AGE:
22. YEARS, OCC: STUDENT, R/O BANAHATTI, TQ.JAMKHANDI. 2 RSA No.1353/2008 2. THE PRINCIPAL (HIGH SCHOOL SECTION), S.R.A. HIGH SCHOOL, BANAHATTI, TQ.JAMKHANDI. (R1 AND R2 SERVED) … RESPONDENTS THIS APPEAL IS FILED UNDER SECTION100OF CPC AGAINST THE JUDGMENT
AND DECREE DATED0612.2007 PASSED IN R.A.NO.68/2007 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), JAMKHANDI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED2107.2007 PASSED IN O.S.NO.48/2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), BANAHATTI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND MANDATORY INJUNCTION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Heard the learned Government Advocate who appears for the appellants. Respondent No.1 served and unrepresented. Respondent No.2 are the school authorities. The present appeal is filed under Section 100 of CPC challenging the concurrent findings granted against the defendants in O.S.No.48/2007, which was pending on the file of the Civil Judge (Jr.Dn.), Banahatti and the affirmation of the same by the first appellate Court in R.A.No.68/2007. Appellants are defendants No.1 to 5 in the said suit. 3 RSA No.1353/2008 respondent No.1 is the plaintiff in the said suit. Respondent No.2 is defendant No.6 in the said suit. Parties will be referred to as plaintiff and defendant Nos.1 to 6 as per their ranking given in the trial Court.
2. Plaintiff chose to file a suit for the relief of declaration that she belongs to ‘Hindu Hatagar’ caste and for consequential relief of rectification of her school records by incorporating her caste as ‘Hindu Hatagar’ instead of ‘Hindu Lingayat’. According to the plaintiff, she belongs to ‘Hindu Hatagar’ caste, which is a backward community and by oversight her caste is mentioned as ‘Hindu Lingayat’. According to her, ‘Hindu Hatagar’ caste to which she belong, comes within the Category II-A as per the notification issue by the Social Welfare Department, Government of Karnataka. It is her case that she came to know of the mistake committed by the school authorities by incorporating her caste as ‘Hingu Lingayat’ on 29.12.2006. 4 RSA No.1353/2008 3. Defendant No.4 alone had filed detailed written statement denying all the material averments. Other defendants except defendant No.6 have adopted the same. According to defendant No.4, suit itself is not maintainable, as the relief sought for is nothing but a declaration of the plaintiff belonging to the backward caste, which act will have to be done by the authorities as per a separate statute. All the averments made in the plaint have been specifically denied. Plaintiff has been called upon to prove the contents of the plaint. On the basis of the above pleadings following issues came to be framed. i) Whether the plaintiff proves that she belongs to Hindu Hatagar caste?. ii) Whether suit of the plaintiff is within limitation?. iii) Whether the plaintiff entitled for the relief?.
4. Plaintiff herself is examined as P.W.1 and she has got marked 16 exhibits. Defendant No.4 is examined as D.W.1 5 RSA No.1353/2008 and 2 exhibits have been got marked on behalf of the defendants. Ultimately, all the issues have been answered in the affirmative and the suit is decreed declaring her as the member of a ‘Hindu Hatagar’ caste and necessary directions given to make corrections in the school records of the plaintiff within three months vide judgment dated 21.07.2007.
5. Against the said judgment and decree, an appeal came to be filed under Section 96 of CPC in R.A.No.68/2007 by defendant Nos.1 to 5. Ultimately, the said appeal has been dismissed after contest and consequently, the judgment of the trial Court is confirmed. The decisions reported in AIR1997SC1199and AIR2001SC393have been referred to and it is held that, they are not applicable to the facts of the case. Hence, concurrent findings are called in question before this Court.
6. After hearing the learned Government Advocate, following substantial question of law has been framed on 04.06.2014. 6 RSA No.1353/2008 “Whether the trial Court and the 1st Appellate Court have committed a serious error in rectifying the caste of the 1st respondent in spite of there being a specific prohibition under Karnataka Scheduled Caste and Scheduled Tribe and other Backward Classes (Reservation of Appointments, etc) Act, 1990 and thus, the judgments are illegal and perverse?.” 7. Heard the learned Government Advocate on merits.
8. The case of the plaintiff, as put forth in the trial Court is that, she belongs to ‘Hindu Hatagar’ caste, which comes within the ambit of Category-II-A as per the notification issued by the Social Welfare Department, Government of Karnataka and that her caste is wrongly mentioned as ‘Hindu Lingayat’ in the school records. Hence, she sought the main relief of declaration that she belongs to ‘Hindu Hatagar’ caste and consequential relief of rectification of school records.
9. Defendant No.4 has taken up a specific stand that very suit of the plaintiff is not maintainable and that the suit 7 RSA No.1353/2008 of this nature could not have been entertained, more particularly, in the light of inhibition found under Section 9 of CPC. Reliance is placed upon the relevant statute namely, the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) Act, 1990.
10. Except the self serving statement of the plaintiff that she belongs to ‘Hindu Hagagar’ caste, there is no corroborative evidence. Plaintiff has relied upon a document marked as Ex.P1. This Ex.P1 is stated to be a certificate issued by the President of Hatagar Samaj Welfare Association Niyamit, Banahatti, Jamkhandi Taluk. In Ex.P1, it is certified that plaintiff Shaila daughter of Shrishail Baragadagi is a resident of Banahatti and she belongs to ‘Hindu Hagagar’ caste. On the basis of this Ex.P1 stated to have been issued by the President Hatagar Samaj Welfare Association Niyamit and her self serving statement, the trial Court has decreed the suit. Author of Ex.P1 is not examined. 8 RSA No.1353/2008 11. Ex.P3 is the certificate issued by the Head Master of the school in which she studied. Her caste is mentioned as “Bharatiya Lingayat” and her date of birth is 01.06.1984. She had made a similar representation to the Chief Head Master, Higher Primary School, Banahatti, Jamkhandi requesting to change her caste as ‘Hindu Hatagar’ caste instead of ‘Hindu Lingayat’ on 08.01.2007. The Head Master has given an endorsement stating that the same cannot be done, as the said incorporation is made on the basis of the information provided by the parents at the time of her admission to the school.
12. It is to be seen that the plaintiff has not chosen to examine either her father or her mother in support of her contention that she belongs to ‘Hindu Hatagar’ caste. Suit came to be filed on 20.03.2007 and the written statement was filed on 18.06.2007 and issues were framed on 20.06.2007 and the evidence of the plaintiff was recorded on 25.06.2007 and the evidence of defendant was recorded on 02.07.2007. 9 RSA No.1353/2008 On the basis of the self serving statement of the plaintiff and as per Ex.P1, the suit came to be decreed on 21.07.2007. If the caste of the plaintiff is accepted as ‘Hindu Hatagar’ caste, she would be getting 15% reservation. If her caste as forthcoming in the school records is accepted as ‘Hindu Lingayat’, she will come within the ambit category III-B and the reservation for appointment is only 5%, as per the Gazette notification issued by the Social Welfare Department, Government of Karnataka, which is gazetted on 11.04.2002 13. The trial Court has not only declared the caste of the plaintiff as ‘Hindu Hatagar’ caste, but also directed the school authorities to make necessary corrections in the school records by treating her caste as ‘Hindu Hatagar’ caste. A decision of this Court reported in ILR1996KAR3693has been relied upon by both the Courts. As per the facts of the said case, the only relief granted was treating the plaintiff therein as a person belonging to ‘Koshti’ community and not ‘Lingayat’. Being aggrieved by the rejection of consequential relief of rectification of school records, plaintiff had filed an 10 RSA No.1353/2008 appeal under Section 96 of CPC and that appeal had been allowed. Therefore, the State of Karnataka chose to file an appeal against the said decision under Section 100 of CPC.
14. As per the provisions of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments Etc.) Act, 1990, a committee is constituted to verify the income and caste. The said Act has stood amended by Act No.27 of 1997, which received the assent on 29.09.1997. As per Section 4-A, 4-B, 4-C and 4-D have been inserted to Section 4 by virtue of Act 27 of 1997. As per Section 4, a Caste Verification Committee is constituted in all the districts to verify the caste and also the income. Deputy Commissioner of the district will be the Ex- Officio Chairman and Deputy Secretary (Administration ZP) and Tahasildar of Taluk will be the members and District Welfare Officers will be the member secretaries. As per Section 3(A) of the said Act, an application will have to be made to the Tahasildar who will verify the information, documents and such other materials furnished by the 11 RSA No.1353/2008 applicant and on such verification if he is satisfied with the correctness of the information, documents and evidence furnished by the applicant, he will issue a caste certificate or income certificate in forms D, E or F. An appeal is provided under Section 4(A) to the Assistant Commissioner. Rules have been framed in this regard and they have come into effect from 08.02.2000 vide gazettee notification bearing No.SWD132SAD97 15. Therefore, the decisions of this Court reported in ILR1996KAR3693in the case of State of Karnataka Vs. Varadashankar Chinnappa Javalgi is not of any help, in the light of subsequent amendments to the above Act. A specific mechanism is provided under the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments Etc.) Act, 1990. Hence, civil Court’s jurisdiction is impliedly barred, more particularly, in the light of an appeal being provided under Section 4(B) against an order passed under Section 4(A) by the Tahasildar regarding issuance of caste certificate and income certificate. 12 RSA No.1353/2008 In this view of the matter, the very suit of the plaintiff is not maintainable in view of inhibition under Section 9 of CPC. Hence, appeal is to be allowed dismissing the suit.
16. Suffice to state that civil Court’s jurisdiction is specifically barred to entertain the suits of this type. Hence, the substantial question of law is answered in the affirmative and consequently, the appeal is liable to be allowed. ORDER
Appeal filed under Section 100 of CPC is allowed and the judgments passed in O.S.No.48/2007 which is affirmed in R.A.No.68/2007 is set aside and consequently, O.S.No.48/2007 is dismissed. Notwithstanding the allowing of this appeal, plaintiff is at liberty to approach the competent authority for redressel of her grievance and in such an event, the authorities shall expedite the matter without undue delay. There is no order as to costs. MBS/- SD/- JUDGE.