Barin Ghosh, C.J.
CLMA No. 9061 of 2011 (Delay Condonation Application)
1. Considering the averments made in the application for condonation of delay in preferring the appeal and being satisfied with the reasons furnished therein, we allow the application for condonation of delay in filing the appeal.
Special Appeal No. 198 of 2011
2. In the writ petition, the contention of the private Respondent was that the Appellant does not belong to Other Backward Class communities, as notified by the State Government. By the judgment and order under appeal, a learned Single Judge of this Court has directed the District Magistrate to consider the said contention of the private Respondent. The District Magistrate has considered the representation and has taken a decision that the Appellant is not a member of any Other Backward Class communities of the State. The decision of the District Magistrate is pending consideration in another writ petition filed by the Appellant. In view of the pendency of the said writ petition, it would not be appropriate on the part of this Court to go into the question, whether the decision so rendered by the District Magistrate is or is not interferable. When a contention was raised in the writ petition that the Appellant does not belong to Other Backward Class communities, it was appropriate on the part of the writ court to direct the District Magistrate to consider such contention.
3. In such view of the matter, there is hardly any scope of interference with the judgment and order under appeal in relation to the ultimate decision rendered in the judgment and order under appeal. However, while doing so, the learned Judge expressly held that the Court was inclined to declare the caste certificate of the Appellant as invalid. We feel when District Magistrate was asked to consider the contention of the private Respondent an observation in support thereof was uncalled for. The said observation was made by the learned Judge by borrowing the word "Shekh" in the caste certificate of the Appellant. The caste certificate of the Appellant did not indicate that the Appellant is a member of the community known as "Shekh Dhafali". The Other Backward Class Certificate of the Appellant had shown that the Appellant belong to the community "Dhafali" and there is No. dispute that the community "Dhafali" has been declared by the State Government as an Other Backward Class community. The learned Judge felt that, in fact, the Appellant belonged to "Shekh Dhafali" community and, accordingly, it was inappropriate on the part of the authority concerned to issue a caste certificate in favour of the Appellant showing that he is "Dhafali". The learned Judge felt that whether "Shekh Dhafali" and "Dhafali" are or are not the same can only be declared by the Parliament.
4. In order to come to the said conclusion, the learned Judge placed reliance upon Articles 341 and 342 of the Constitution of India and interpretation thereof, as given by the Hon''ble Supreme Court in the case of State of Maharashtra v. Milind and Ors. reported in 2001 (1) SCC 4. The learned Judge felt that the analogy of Articles 341 and 342, as interpreted by the Hon''ble Supreme Court in the aforementioned case, is applicable with the same logic insofar as Other Backward Class communities are concerned.
5. We feel that the learned Judge erred in proceeding on that basis. Articles 341 and 342 do not deal with Other Backward Class communities. The strict provisions contained in the said Articles have got No. relevance or connection with Other Backward Class communities. In the Constitution, there is No. Article akin to Articles 341 and 342 dealing with Other Backward Class communities. In the circumstances, applying the provisions contained in Articles 341 and 342 of the Constitution of India in relation to Other Backward Class communities was wholly inappropriate. It is settled law that when a statute is made by a competent legislature in exercise of its legislative power, Court has every competence to interpret such statute, and while doing so, it can supply as well as deduct words used in the statute. The said power in view of Articles 341 and 342 of the Constitution of India is absent to the Court when recourse to Articles 341 and 342 is to be taken. That is what is the ratio of the judgment of the Hon''ble Supreme Court, rendered in the case referred to above. We, accordingly, set aside the judgment and order under appeal but retain the directions contained therein directing the District Magistrate to consider and decide the claim and contention of the writ Petitioner / Respondent No. 5 that the Appellant was not a member of Other Backward Class communities.
