Judgment:
(Prayer: This writ petition is filed under Articles 226 and 227 of the constitution of India praying to call for the entire records relating to Annexures B, C, D and F dated 31.12.2003, 27.5.2004, 31.5.2004 and 6.8.2004 respectively peruse the same and quash the said orders and proceedings as void and unsustainable in law and etc.,)
Order On Reference:
Vikramajit Sen, C.J. (Oral):
1. This matter has been referred to the Division Bench by a learned Single Judge. However, no question has been formulated for our consideration. Earlier, the writ petition had come up for consideration on 13.01.2009 and was dismissed in default of appearance and for want of prosecution. Thereafter, it appears to have been restored. However, on 1.9.2010, it was once again dismissed for non-prosecution and thereafter it was restored again on 28.10.2010.
2. The petitioner had secured an appointment with the Canara Bank on the basis of a caste certificate issued by the Tahsildar on 3.2.1990. A pseudonymous complaint was received by the Bank which eventually lead to scrutiny and investigation being conducted into the Scheduled Caste status of the petitioner by her employer. The District Caste Verification Committee (in short DCVC), by its order dated 31.12.2003 concluded that the caste certificate issued by the Tahsildar, Udupi on 3.2.1990 was not correct; and the caste certificate was accordingly cancelled. This view was upheld by the first appellate authority on 6.8.2004. WP No.46548/04 came to be filed thereafter and in the hearings held on 31.10.2006, the learned Single Judge referred the question to a larger Bench in terms of Sec.9 of the High Court Act, 1961. We have perused the said section and find that it does not contemplate a referral to a larger bench. That power is contained in Section 8 which, however, deals with Revisions. Therefore, as the Rules presently stand, when raised with the writ petition, whenever a learned Single Judge is seized with a writ petition he must decide the lis even though he may find himself in the awkward position of being confronted by disparate dialectics of a Division Bench on the same question.
3. The Reference has been found necessary in view of the decision of Single Bench rendered in WP No.18799/92. However, the learned Single Judge who referred the matter was not entirely correct in assuming that a Reference could be made merely because he was not in agreement with the opinion of another learned Single Judge. WP No.18799/92 was decided on the premise that the dispute was fully covered by the decision of the Division Bench in Writ Appeal No.4452/95 along with Writ Appeal No.4453/95. The learned Single Judge was duty bound to extrapolate the ratio of the Division Bench into the case before him. We have gone into this aspect of the case to emphasize that the law of precedents which every common law system assiduously respects, ordains that the opinion of a larger Bench will invariably prevail on a similar factual matrix. In other words, even if the Referral Bench was ad idem with the reasoning of the Division Bench in Writ Appeal No.4452/95 it could have done no more than diplomatically and respectfully recording its reasoning and thereafter, follow the ratio set down by the Division Bench. Consistence and discipline in law is far more important than the possibility of an incorrect legal interpretation remaining in force till it is referred to a larger Bench by a co-equal or coordinate Bench, or is set at naught by a larger Bench.
4. We shall now move on to the aspect of the other question namely whether it is legally correct and proper to accept the correctness or genuineness of a Caste Certificate as per conclusions arrived at by the DCVC, or where the caste certificate has been issued by the Tahsildar in accordance with the then prevailing law. Whether it is only Tahsildar to whom it can be reverted to, and whose opinion would then prevail? In this regard, we also have the advantage of a decision of the Full Bench rendered in WP No.8520-38/1989 pronounced on 19.9.1997 titled Savitha Chandrashekar Shirali vs. State, which is unquestionably relevant for the determination of the present controversy. A perusal of the said Judgment makes it manifestly clear that although the Full Bench had given its imprimatur to the DCVC conclusion, it refrained from going conundrum of whether the decision of DCVC would prevail over that of the Tahsildar. The learned Single Judge in our view, should have extracted the ratio of the said decision rendered by the Full Bench and applied it. This ratio is that the decision of the DCVC prevails over the decision of the Tahsildar, regardless of whether the later occurred before the statute creating the DCVC was promulgated.
5. A piquant situation has emerged, namely, the learned Single Judge who disposed of Writ Petition No.18799/92 holding that it was covered on all fours by the decision rendered by the Division Bench in Writ Appeal No.4452/95 was one of the Honble members of the Full Bench which pronounced the Judgment dated 19.9.1997. Disregarding both these features thereafter, on 30.8.2001, the same learned Single Judge took the view that, the full bench of this Court which has referred the matter to DCVC earlier had lost sight of the legal position. It cannot be overemphasized that the paramount concomitant of the jural convention of precedents, now a binding discipline, is that it imparts certainty and continuity in law. Detracting from an existing precedent therefore should be a rarity. Added to the doctrine of Precedents is that of Stare Decisis which enjoins adherence to the decision rendered by a co-ordinate Bench which has endured the passage of considerable time and thus adorned the mantle of venerability. We respectfully disagree with the approach taken by the Single Judge who referred the question to us as well as the learned Single Judge who was one of the Honble members of the Full Bench and yet expressed doubt on the correctness of its ration.
6. In the Judgment dated 30.8.2001 entitled Bhovi Samaj Seva Sangha vs. Divisional Commissioner, Belgaum, already referred to above, the conclusions of the learned Single Judge was that Bhovi was a scheduled caste in the Constitutional dispensation. That decision was assailed by the Divisional Commissioner, Belgaum Division, but without success. The issue before the Division Bench in this Appeal reported as Divisional Commissioner, Belgaum Division vs. Bhovi Samaja Seva Sangha, Sirsi (ILR 2003 KARNATAKA 1584) was within the parameter of whether the members of Bhovi community were entitled to all the privileges available to other scheduled caste communities. It therefore, has no bearing on the conundrum before us.
7. On the wider issue spelt out above, viz., the paramountcy of the Tahsildar in the matter of issuance of caste Certificate, the matter is no longer res integra in view of the decision of the Constitution Bench in R.Vishwanath Pillai vs. State of Kerala 2004(2) SCC 105, as will be evident from a reading of the following extract:
20. Another point argued by the learned Senior Counsel for the appellant was that the law laid down by this Court in Kumari Madhuri Patil Case would operate prospectively and could not be applied in the case of the appellant. We do not find any substance in this submission as well. The judgment in Kumari Madhuri Patil case was delivered on 2.9.1994. Inquiry against the appellant had started in the year 1988 by KIRTADS. Report of the Inquiry committee is dated 11.4.1994. Report of the Scrutiny Committee is dated 18.11.1995. The order of removal from service is dated 11.10.2000. Keeping in view the fact that the order was passed subsequent to the order of this Court, it cannot be held that the law laid down in Kumari Madhuri Patil case is being applied retrospectively. Because of this decision cases which were concluded prior to the judgment of the Court are not being reopened. Procedure/rule laid down in Kumari Madhuri Patil case is being applied to a case in which fraud was detected after the Judgment.
8. This comprehensively and completely answers any doubts that may remain in the mind of the learned Single Judge. Having regard to the ratio of Pillais case what the learned Single Judge would have to satisfy himself, on is whether the investigation into the genuineness of the caste certificate produced by the petitioner had come to its culmination before the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1993 came into force. The DCVC is a creature of these Rules. If the answer is in the negative Pillai will clarify that there is no scope to hold to conviction that retrospectively of the Rules would result.
9. We hold that after the promulgation of Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1993, it will only be the DCVC which is the Competent Authority to look into the genuineness or otherwise of any caste certificate, even if it be had been issued by the Tahsildar in the previous legal regime as it was then prevailing.
10. The Reference is answered accordingly. The case be placed before the learned Single Judge for further proceedings on 31.07.2012 as per roster.
11. Writ Appeal No.530/2007 be listed for consideration before Court on 18.07.2012 subject to orders of Honble Chief Justice.