The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13075 of 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Janak Kumar Pradhan @ Nayak …. Petitioner -versus- Chairman, State Level Scrutiny Committee, Ganjam and Others …. Opposite Parties For Petitioners : Mr. P.C. Chhinchani, Adv. For Opp. Parties : Mr. A. Tripathy, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 06.11.2024 and Date of Judgment: 27.01.2025 --------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The Present Writ Petition has been filed inter alia challenging the final order passed by the State Level Scrutiny Committee on 29.03.2016 in F.C.C.No.57 of 2012 under Annexure-7. Vide the said order, State Level Scrutiny Committee (Southern Divn.) Opp. Party No.1 while directing for cancellation of the Caste Certificate // 2 // issued in favour of the Petitioner by holding the Petitioner having not belong to S.T, directed for cancellation of the Caste Certificate so issued in favour of the Petitioner along with other directions to initiate criminal proceeding and to remove the Petitioner from his services. 2. Learned counsel appearing for the Petitioner contended that Petitioner was issued with the Certificate in question by the Tahasildar, G. Udayagiri vide RMC No.27/86. In the said certificate, Petitioner was declared having belong to Scheduled Tribe category i.e. Kandha (Christian). Learned counsel appearing for the Petitioner contended that such a certificate was issued in favour of the Petitioner in RMC No.27/86, basing on the inquiry report submitted by the Revenue Supervisor under Annexure-1 series. It is contended that the concerned Revenue Supervisor basing on the direction issued by the Tahasildar, G. Udayagii not only caused a detailed inquiry but also submitted the report on 18.08.1979 under Annexure-1 series. In the said report, it was clearly indicated that the Petitioner belongs to Page 2 of 13 // 3 // Scheduled Tribe Community having belong to Kandha (Christian). A clear finding was also given that the Petitioner does not belong to Pano (Christian). It is also contended that such a finding was arrived at by the Revenue Inspector basing on the statement of various witnesses recorded by him.
Legal Reasoning
2.1. It is contended that basing on the report available under Annexur-1, not only Petitioner was issued with the Caste Certificate showing him having belong to S.T in RMC No.27/86, but also by utilizing the same, Petitioner was appointed as a Constable in C.R.P.F. A further submission was made that such an inquiry was conducted basing on the allegation made before the Tahasildar, G. Udayagiri under Annexure-1 series. 2.2. It is contended that not only Petitioner was declared as having belong to S.T, his caste being Kandha (Christian), but also in the R.O.R issued in the name of his father under Khata No.33 under Annexure- 4, Petitioner’s caste was shown as Kandha (Christian) i.e S.T. Page 3 of 13 // 4 // 2.3. It is contended that while the matter stood thus, basing on the report submitted by the I.O that Petitioner does not belong S.T Community, the proceeding in FCC No.57/2012 was initiated in the file of Opp. Party No.1. After initiation of the said Proceeding in FCC No.57/2012, Petitioner was issued with the show-cause by Opp. Party No.1 vide letter No.1217 dt.22.05.2014. 2.4. It is contended that on receipt of the show-cause vide letter dt.22.05.2014, Petitioner submitted his reply on 25.09.2014 under Annexure-6. It is contended that a stand was taken in the reply to the show-cause that Petitioner has been rightly issued with the Caste Certificate, having belong to ST, his sub-caste being Kandha (Christian) and the said certificate was issued basing on the inquiry report submitted by the Revenue Supervisor under Annexure-1. But Opp. Party No.1 without proper appreciation of the reply to the show cause so submitted under Annexure-6, passed the impugned order on 29.03.2016 under Annexure-7. While directing for cancellation of the certificate so issued in favour of the Petitioner in RMC No.27 of 1986, Page 4 of 13 // 5 // other directions were also issued for initiation of criminal proceeding and for recovery of the benefit received by the Petitioner from his service. 2.5. Learned counsel for the Petitioner contended that since without proper appreciation of the stand taken by the Petitioner in his reply under Annexure-6, the impugned order was passed directing for cancellation of the Certificate, the same is not sustainable in the eye of law. 2.6. It is also contended that because of the impugned order, Petitioner was removed from his services and Criminal Proceeding has also been initiated against him. However, because of the interim order passed by this Court, no further progress has been made in the criminal proceeding. 2.7. Learned counsel for the Petitioner also contended that even though the proceeding in question in FCC No.57 of 2012 was initiated against the Petitioner basing on the decision rendered by the Apex Court in the case of Kumari Madhuri Patil & Others Vs. Additional Page 5 of 13 // 6 // Commissioner, Tribunal Development, AIR 1995 SC 94, but in view of the subsequent decision rendered in the case of Dayaram Vs. Sudhir Batham and Others (2012) 1 SCC 333, the proceeding in terms of the decision in the case of Kumari Madhuri Patil was not maintainable. 2.8. It is contended that since the certificate in question in RMC No.27/86 was issued in terms of the provisions committed under the Orissa Caste Certificate (for Scheduled Castes & Scheduled Tribes) Rules, 1980, the direction contained in the case of Kumari Madhuri Patil is not applicable in the State of Orissa. View of the Apex Court in Para 22 of the decision rendered in the case of Dayaram reads as follows: 22. Therefore, we are of the view, that Directions 1 to 15 issued in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine Scheduled Caste and Scheduled Tribe candidates secured the benefits of reservation and the bogus candidates were kept out. By issuing such directions, this Court was not taking over the functions of the legislature but merely filling up the vacuum till the legislature chose to make an appropriate law. 2.9. It is also contended that following the decision in the case of Dayaram, this Court in the case of Sridhar Ku. Dalai Vs. State of Odisha and Others 2023 (I) Page 6 of 13 // 7 // OLR 614, clearly held that no proceeding in terms of the decision in the case of Kumar Madhuri Patil can be initiated in the State of Orissa as with regard to grant of such certificate, the Orissa Caste Certificate (for SC & ST )Rules, 1980 (in short Rules) prevails. View expressed by this Court in para 7 of the judgment in the case of Sridhar Ku. Dalai reads as follows: “7. Recently this Bench had dealt with this question by judgment dated 4th January, 2023 in W.P.(C ) NO.15048 of 2022 (Kunalata Nayak V. State of Odisha and others). There is no room for doubt, pursuant to clarification by the Supreme Court in Dayaram (supra) that Kumari Madhuri Patil (supra) was judgment delivered in exercise of power under article 142 in the Constitution. It was for purpose of filling the vacuum in absence of legislation in those States, where the directions were made to operate. Here, in Odisha, the rules prevail, as was found by this Bench in Kunalata Nayak(supra). 2.10. Placing reliance on the decision in the case of Dayarm so followed by this Court in the case of Sridhar Ku.Dalai, learned counsel appearing for the Petitioner contended that since the Certificate in question was issued in favour of the Petitioner in RMC No.27/86 in terms of the 1980 Rules, the proceeding in terms of the decision in the case of Madhuri Patil is not at all entertainable and accordingly the direction issued vide the impugned order under Annexure-7 is not Page 7 of 13 // 8 // sustainable in the eye of law. It is also contended that because of the interim order passed by this Court, no coercive action has been taken against the Petitioner save and except termination of the petitioner from his services. It is accordingly contended that the impugned order dtd. 29.03.2016 so passed by Opp. Party No.1 under Annexure-7 is not sustainable in the eye of law. 3. Mr. Arabinda Tripathy, learned Additional Government Advocate though on the other hand made his submission basing on the stand taken in the counter affidavit and contended that after receipt of the show- cause in FCC No.57 of 2012, since the Petitioner without raising any objection participated in the proceeding by filing his reply under Annexure-6, the stand taken that initiation of the proceeding in terms of the decision in the case of Kumari Madhuri Patil is not maintainable, is not acceptable. 3.1. It is contended that since without any objection, Petitioner participated in the proceeding with filing of the reply, the stand taken by the Petitioner that such a Page 8 of 13 // 9 // proceeding is not maintainable cannot be raised after passing of the impugned order under Annexure-7. 3.2. It is also contended that even though basing on the report of the I.O, Petitioner was issued with the show- cause vide letter dt.22.05.2014 and he submitted the reply under Annexure-6, but no documents were filed by the Petitioner in support of his claim that he belongs to Scheduled Tribe Community and the certificate has been issued in his favour rightly in RMC No. 27/86. 3.3. However, while countering the submission of the learned counsel for the Petitioner regarding the decision rendered in the case of Dayaram so followed by this Court in the case of Sridhar Ku. Dalai, learned counsel for the State contended that in the meantime while superseding the Orissa Caste Certificate (for Scheduled Castes and Scheduled Tribes) Rules, 1980 , a new rule has come into force vide notification dt.06.01.2024 i.e. Orissa Scheduled Castes, Scheduled Tribes and backward Classes (Regulation of Issuance of Verification of Caste Certificate) Rules, 2023. It is contended that a detailed procedure has been provided in the aforesaid Page 9 of 13 // 10 // 2023 Rules to deal with the issue, with regard to grant and cancellation of the Certificates issued in favour of Scheduled Castes, Scheduled Tribes and Backward classes. 3.4. It is contended that in view of the provisions contained under the aforesaid 2023 Rules, the State Level Scrutiny Committee is also competent to deal with the allegation made against the present Petitioner. It is accordingly contended that since after giving due opportunity of hearing, the Caste Certificate issued in favour of the Petitioner in RMC No.27/1986 has been cancelled vide the impugned order, the same has been rightly passed and it requires no interference of this Court. 4. Having heard learned counsel for the parties, considering the submission made and the materials placed, this Court finds that Petitioner was issued with the Caste Certificate in RMC No.27 of 1986. Vide the said certificate; Petitioner was declared as having belong to S.T community and his sub caste being Kandha (Christian). As found basing on the report submitted by Page 10 of 13 // 11 // the Inquiry Officer, the proceeding in question was initiated in FCC No.57 of 2012. After initiation of the proceeding in FCC No.57 of 2012, Opp. Party No.1 issued the show-cause to the Petitioner vide letter dt.22.05.2014. 4.1. As found the proceeding in question was initiated in terms of the decision rendered by the Apex Court in the case of Kumari Madhuri Patil as cited (supra). It is found that even though Petitioner was submitted a reply to the show cause under Annexure-6 and the proceeding
Decision
was disposed of vide the impugned order dt.29.03.2016 under Annexure-7, but this Court in view of the subsequent decision of the Apex Court in the case of Dayaram so followed by this Court in the case of Sridhar Kumar Dalai, as cited (supra) is of the view that the proceeding in FCC No.57 of 2012 could not have been initiated as the Certificate in question was issued under the 1980 Rules. 4.2. Therefore, in view of the decision rendered in the case of Dayaram so followed in the case of Sridhar Kumar Dalai, this Court is of the view that the Page 11 of 13 // 12 // proceeding in terms of the decision in the case of Kumari Madhuri Patil could not have been initiated in FCC No.57 of 2012. 4.3. However, taking into account the notification issued by the Government on 06.01.2024 and with coming into force of the Orissa Scheduled Castes, Scheduled Tribes and Backward Classes (Regulation of Issuance and Verification of Caste Certificates) Rules, 2023, the power is now vested on the State Level Scrutiny Committee to deal with the issue involved in the present Writ Petition. Therefore, this Court is inclined to quash order dt.29.03.2016 so passed by Opp. Party No.1 in FCC No.57 of 2012 under Annexure- 7. While quashing the same, this Court remits the matter to Opp. Party No.1 to take up the issue in terms of the provisions contained under the aforesaid 2023 Rules. 4.4. Since this Court is remanding the matter for its disposal in accordance with the amended 2023 Rules, this Court directs the Petitioner to appear before Opp. Party No.1 along with a copy of this order on 7th Page 12 of 13 // 13 // February, 2025. On his appearance, Opp. Party No.1 shall take up the issue and decide the matter in accordance with the 2023 Rules within the period of 4 (four months) from the date of appearance, as directed, in which this Court expresses no opinion. The Writ Petition accordingly stands disposed of. Orissa High Court, Cuttack Dated the 27th January, 2025/sangita (Biraja Prasanna Satapathy) Judge Page 13 of 13