The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25864 of 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Dibya Kumar Pradhan …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. S.K. Misha For Opp. Parties : Mr. A. Tripathy, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:27.11.2024 and Date of Judgment:27.11.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J.
Legal Reasoning
“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.” 3.3. It is contended that following the decision in the case of Dayram, this Court in a reported decision in the case of Sridhar Kumar Dalai Vrs. State of Odisha and Others, reported in 2023 1 OLR 614 held that since for the State of Odisha, a specific rule is there with regard to grant of Caste Certificate and cancellation thereof, no such proceeding could have been initiated against the petitioner placing reliance on the decision in the case of Kumari Madhuri Patil. The view expressed by this Court in Para-7 of the said judgment reads as follows:- “7. Recently this Bench had dealt with this question by judgment dated 4th January, 2023 in Page 3 of 15 // 4 // WP(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).” 3.4. Placing reliance on the decision in the case of Dayaram as cited (supra) so followed by this Court in the case of Sridhar Kumar Dalai, learned counsel for the petitioner contended that the proceeding initiated against the petitioner in FCC Case No.49 of 2012 placing reliance on the decision in the case of Kumari Madhuri Patil is vitiated and accordingly the final order passed by the Committee on 24.05.2013 under Annexure-5 is a nullity in the eye of law and cannot sustain legal scrutiny. It is also contended that petitioner is protected by an interim passed by this Court on 26.03.2014. 4. Mr. A. Tripathy, learned Addl. Govt. advocate on the other hand contended that in terms of the decision Page 4 of 15 // 5 // rendered in the case of Kumari Madhuri Patil, the proceeding was initiated in Fake Certificate Case No.49 of 2012 against the petitioner. Petitioner without raising any objection participated in the said proceeding and accordingly the final order was passed on 24.05.2013 under Annexure-5. 4.1. It is also contended that initially basing on the report submitted by the vigilance cell Fake Certificate Case No.74 of 2008 was initiated against the petitioner before the SLSC. The Committee vide order dated 05.05.2009 under Annexure-3, when cancelled the ST Caste Certificate so issued in favour of the petitioner, the same was challenged before this Court in W.P.(C) No.9375 of 2009 and this Court vide order dated 02.08.2011 while quashing order dated 05.05.2009, remitted the matter to SLSC with a direction to start the proceeding denovo with the following direction: “The same is remanded back to the SLSC to start the proceeding denovo giving opportunity to the petitioner only after those disputed of supplying documents to be confronted with on the basis of which the report has been submitted by the vigilance officer and the copies Page 5 of 15 // 6 // same be placed on record of course provide the petitioner to produce his rebuttal evidence.” 4.2. It is also contended that on such remand of the matter FCC No.49 of 2012 was initiated against the petitioner. It is also contended that by the time the proceeding in question was initiated, view of the Hon’ble Apex Court in the case of Dayaram as cited (supra) was not there. It is accordingly contended that since petitioner without any objection participated in the proceeding, he can rely on the decision rendered subsequently in the case of Dayaram so followed by this Court in the case of Sridhar Kumar Dalai as cited (supra). 4.3. It is also contended that not only that placing reliance on the notification issued by the Govt. on 06.01.2024, learned Addl. Govt. Advocate contended that 1980 Rules which is relied on by this Court in the case of Sridhar Kumar Dalai is no more in existence as the same has been superseded with framing of a new rule vide the notification dated 06.01.2024. As per the said notification, a new Rule has come into force Page 6 of 15 // 7 // i.e. Odisha Scheduled Castes, Scheduled Tribes and Backward Classes (Regularization of Issuance and Verification of Caste Certificate) Rules, 2023. 4.4. As per the said 2023 Rules, a detailed procedure has been provided for verification of the genuineness of the caste certificate under Rule-7. Rule-7 of the said Rules reads as follows:- “7. Procedure for the proceedings for verification of genuineness of a Caste Certificate issued by the Competent Authority, it shall proceed in the following manner, namely: (a) The Scrutiny Committee, shall forward the petition to the concerned District Vigilance Cell for conduct of inquiry into the case by its officer; (b) The Inspector of Police of the concerned area, where the candidate whose social status is to be verified originally hails or usually resides, shall go to the local place of residence and original place from where the candidate hails and usually resides or in case of migration to the town or city, the place from which he or she originally hailed from and shall collect the information regarding ethnological traits, deity, of marriages, death rituals, ceremonies, method of burial of dead bodies etc.by the concerned castes or tribal communities; customs, mode (c) The Inspector of Police shall personally verify and collect all the facts of the social status claimed by the candidates or the parent or legal guardian, as the case may be, and examine the school records, birth registration, if any; (d) The Inspector of Police shall also examine the parent, legal guardian of the candidates in relations to their castes etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Scrutiny Committee together with all the particulars necessary; Page 7 of 15 // 8 // to (e) In particular, about the Scheduled Tribes, the Inspector of Police of the area concerned shall enquire their peculiar anthropological and relating ethnological traits, deity, rituals, customs, mode of marriages, death ceremonies, method of burial of dead bodies etc. by tribal the concerned communities; tribes or (f) For conducting the enquiry, the Inspector of Police may take assistance of the local Tahasildar or Revenue Inspector and peruse the revenue records as may be necessary; Note: While verifying revenue records, RoR issued at different time period shall be examined and compared and the one that has been recorded earliest shall be taken as determinant Document. (g) The Inspector of Police (Inquiring Officer) shall submit the Checklist 1, Checklist 2 and Geneological Chart of the alleged person given at Appendix B with the enquiry report before its submission to the competent authority. (h) After the completion of the enquiry, the District Vigilance Cell shall take steps to prepare a report which shall be submitted to the Scrutiny Committee having a definite logical conclusion along with supporting documents within a period of two months from the date of receipt of the petition for enquiry. (2) In case of failure to submit the enquiry report within the period stipulated in clause (h) of sub-rule (1), the officer-in-charge of the District Vigilance Cell or its concerned enquiring officer shall be summoned to appear before the Scrutiny Committee to explain the reasons of delay orally and also in writing and if the reasons are the Scrutiny found satisfactory, Committee may grant extension of time not exceeding one month and for unsatisfactory explanations and failure to submit report by the end of extended time period, its adverse remarks on the conduct of the enquiring officer in his report and forward the same to the concerned Superintendent of Police for necessary disciplinary action against the officer concerned and ask for conduct of enquiry and submission of report within next two weeks by engaging another officer, if so required. the Scrutiny Committee shall record (3) While conducting enquiry, the concerned officer shall observe the principles of natural justice and Page 8 of 15 // 9 // shall issue notice to the person whose certificate is under verification and provide such person a reasonable opportunity to defend and to produce records, statements and witnesses in support of defence, as may be required, in all stages of enquiry. (4) The Scrutiny Committee shall also intimate the complainant and the alleged person to attend and cooperate in the process of enquiry and their act of noncooperation, if so found, shall be recorded in the into proceedings of enquiry and will be taken consideration by the Scrutiny Committee while passing the final order. (5) After receipt of the enquiry report from the District Vigilance Cell, the Scrutiny Committee shall hold its meeting to scrutinize the report and in case it is not found to be satisfactory, the ScrutinyCommittee shall record its observations in its proceedings which shall be intimated to the District Vigilance Cell with the direction to conduct re-enquiry with reference to the observations of the Scrutiny Committee and to submit the report within a period of one month failing which the procedure as per sub-rule(2)shall be followed. (6) The enquiry report from the District Vigilance Cell, if found satisfactory by the Scrutiny Committee, it shall proceed to the next stage of asking for show cause reply from the person whose certificate is under verification and the MemberConvener of the Scrutiny Committee shall send the notice along with the copy of the enquiry report and the copy of the complaint petition to such person asking for show cause reply, and if such person wants to avail the opportunity of personal hearing before the Scrutiny Committee, he or she shall appear in person or through his or her authorized representative within fifteen days from the date of receipt of such notice. (7) The period stipulated under sub-rule (6) may be extended by the Scrutiny Committee for a further period of fifteen days upon receipt of written request from him or her on reasonable grounds. (8) In case of failure of the person to submit show cause reply either by written statement or by personal appearance within the stipulated period, he or she shall be given the second and last chance to appear before the Scrutiny Committee on the scheduled date and time along with his or her show cause reply and for personal hearing, if he or she so desires. Page 9 of 15 // 10 // (9) After receipt of the show cause reply from the person, opportunity of personal hearing may be offered to such person and notice shall also be issued to the complainant and the witnesses on both the sides summoning them for their appearance before the Scrutiny Committee on the date and time to be fixed by the Scrutiny Committee. (10) The concerned field officers like the Enquiring Officer or an officer of the District Vigilance Cell, the District Welfare Officer or the Additional District Welfare Officer, the Tahasildar or the Additional Tahasildar having knowledge of the facts and findings of the case may also be summoned to appear on the date of personal hearing to appraise the Scrutiny Committee about the case by submission of relevant records and their written statements. their witnesses (11) While conducting the personal hearing, the person whose certificate is under verification shall be offered an opportunity of hearing the depositions of the first and an complainant and opportunity to cross examine them so that he or she can defend himself or herself by submission of his or her written statement of defence, production of relevant records and witnesses and observing the principles of natural justice andthe proceedings of the personal hearing shall be transparent providing such person full opportunity to defend himself or herself against the allegation and the Scrutiny Committee may also ask some the complainant and the alleged person during the hearing to ascertain the truth. leading questions to (12) Except in extraordinary circumstances, the failure to submit the show cause reply by the stipulated time period and failure for appearance for personal hearing before the Scrutiny Committee on the scheduled date and time by the alleged person shall not ordinarily be pardoned by the Scrutiny Committee without reasonable grounds to be communicated in writing by the alleged person to the Chairperson or Member Convener of the Scrutiny Committee. (13) To ensure that the notice for show cause reply and the notice for personal hearing issued by the Member Convener of the Scrutiny Committee is delivered to the alleged person in the address in which he or she is available at that time, it shall be sent by Registered Post or Speed Post or through reliable official channels and the records of dispatch and delivery shall be kept in the concerned case record. Page 10 of 15 // 11 // (14) After conducting the personal hearing, the Scrutiny Committee shall issue proclamation through the concerned District Welfare Officer and Tahasildar in the locality of the alleged person inviting objections from persons and registered organizations within fifteen days from the date of issue of proclamation by beat of drum or any other mode and to accomplish the task, the Member Convener of the Scrutiny Committee shall send the copies of the allegation petition, the enquiry report of the District Vigilance Cell, the show cause reply of the alleged person and the statements of the alleged person, the complainant and the witnesses recorded during personal hearing to the concerned District Welfare Officer or Tahasildar translated into the local language. (15) Any person or organization who wants to say anything in the case, shall intimate the Chairperson of the Scrutiny Committee in writing adducing evidences either through the concerned District Welfare Officer or the Tahasildar, as the case may be, or directly within the stipulated period of fifteen days after which no petitions shall be entertained. (16) Within a week from the date of expiry of the period of fifteen days, the District Welfare Officer or Tahasildar, as the case may be, shall intimate the Member Convener of the Scrutiny Committee about the date of proclamation and the petitions received from any quarter. to adduce evidences before (17) In case the petitioner wants to be heard in person and the Scrutiny Committee he or she shall be allowed to do so either in person or through counsel. (18) The date of hearing to be fixed by the Scrutiny Committee shall be duly intimated to such petitioner and the hearing shall be conducted transparently in presence of the alleged person and his or her counsel, if any, providing him or her opportunity to defend himself or herself and the proceedings of the hearing shall be recorded. (19) After the hearing, if so required, the Scrutiny Committee may make further enquiries through the District Vigilance Cell and other concerned officers to gather evidences and ascertain truth and thereafter the process of enquiry shall be concluded. the (20) After conclusion of the process of enquiry, the Chairperson of the Scrutiny Committee shall fix up a date for consideration of the facts and findings of the Page 11 of 15 // 12 // case and pass the final speaking order and if any new facts come to notice, the Scrutiny Committee shall decide to address the same in the manner as it may like and then pass the final order. (21) The final order of the Scrutiny Committee shall be intimated for necessary action to the alleged person, the Collector and District Magistrate, Superintendent of Police, District Vigilance Cell, District Welfare Officer and Tahasildar of the district, to the concerned authorities through whom the alleged person has availed the benefits of reservation including the appointing authority, the authority of the educational institution where he or she has taken admission, the authority under whom he or she is an elected peoples’ representative or the authority under whom he or she has made land transactions, whichever is applicable with the direction to report compliance within a month. (22) In case the Caste Certificate is found to be valid after verification by the Scrutiny Committee, a Validity Certificate shall be granted by the Scrutiny Committee in Form J.” 4.5. It is contended that since a new set of rules has come into force in the State in terms of the aforesaid 2023 Rules which is in pari materia to the direction issued in the case of Kumari Madhu Patil as cited (supra), claim of the petitioner has been rightly considered by the scrutiny committee with passing of the impugned order dated 24.05.2013 and requires no interference. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the certificate issued in favour of the petitioner Page 12 of 15 // 13 // having belong to Scheduled Tribe in RMC No.139/88 was the subject matter of dispute before the Scrutiny Committee in Fake Certificate Case No.49 of 2012. The committee after receipt of the Enquiry Report under Annexure-1, initiated FCC No.74 of 2008 and issued the show-cause to the petitioner on 29.12.2008 and petitioner filed his reply under Annexure-2. Initially the Committee when goes against the petitioner and declared the Caste Certificate to be cancelled vide order dated 05.05.2009 under Annexure-3, the same was challenged by petitioner in W.P.(C) No.9375 of 2009. This Court while setting aside the order dated 05.05.2009, remitted the matter to the Committee to take a fresh decision and accordingly committee after giving due opportunity of hearing to the petitioner passed the final order on 24.05.2013 under Annexure- 5 in FCC No.49 of 2012. 5.1. It is found that petitioner at no point of time raised any objection with regard to maintainability of the proceeding before the Committee and instead he participated in the said proceeding all through. When Page 13 of 15 // 14 // the committee decided against the petitioner, petitioner challenged the said order before this Court and on remand petitioner again participated in the said proceeding before the Committee without raising any objection with regard to maintainability of the proceeding before the Committee. 5.2. Since petitioner without any objection participated in the proceeding all through, it is the view of this Court that after failing before the Committee, petitioner cannot challenge the said order placing reliance on the decision in the case of Dayaram so followed by this Court in the case of Sridhar Kumar Dalai. 5.3. Be that as it may, since in the meantime a new rule has come into force vide notification dated 06.01.2024 and a procedure has been prescribed under Rule-7 of the said Rules to deal with the issue, this Court in view of the subsequent decision in the case of Dayaram so followed by this Court in the case of Sridhar Kumar Dalai, while quashing the final order passed by the Committee on 07.05.2013 in FCC No.49 Page 14 of 15 // 15 // of 2012 remitted the matter to the Committee to re- decide the issue in terms of the provisions contained under Rule-7 of the 2023 Rules. This Court directs the Committee to take a fresh decision in terms of the said rules within a period of 6 (six) months from the date of receipt of this order. Petitioner is directed to appear before the Committee along with a copy of this order on 13.12.2024. On receipt of this order, the Committee shall proceed with the matter and decide the issue in terms of the provisions contained under Rule-7 of the 2023 Rules. Petitioner is also directed to co-operate for disposal of the proceeding at every stage. 6.
Arguments
1. Heard Mr. S.K. Mishra, learned counsel for the petitioner, Mr. A. Tripathy, learned Addl. Govt. Advocate for the State. 2. Petitioner has filed the present Writ Petition inter alia challenging the final order passed by the State // 2 // Level Scrutiny Committee vide order dated 24.05.2013 under Annexure-5 in Fake Certificate Case No.49 of 2012 so initiated against the present petitioner. 3. It is contended that the final order so passed by the State Level Scrutiny Committee is in the proceeding initiated by the Committee in terms of the decision rendered by the Hon’ble Apex Court in the case of Kumari Madhuri Patil and Another Vrs. Addl. Commissioner Tribal Development and Others, reported in AIR 1995 SC 94. 3.1. Placing reliance on the decision of the Hon’ble Apex Court so rendered subsequent to the decision in the case of Kumari Madhuri Patil in the case of Dayaram Vrs. Sudhir Batham, reported in (2012) 1 SCC 333, it is contended that since with regard to grant of caste certificate, a specific rule was there in the State of Odisha i.e. Odisha Caste Certificate (for Scheduled Castes and Scheduled Tribes) Rules, 1980, in view of the decision in the case of Dayaram as cited (supra), no such proceeding could have been initiated Page 2 of 15 // 3 // against the petitioner placing reliance on the decision in the case of Kumari Madhuri Patil as cited (supra). 3.2. Hon’ble Apex Court in Para-22 of the decision in the case of Dayaram has held as follows:-
Decision
The Writ Petition is accordingly disposed of. Orissa High Court, Cuttack Dated the 27th November, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Dec-2024 11:30:56 Page 15 of 15