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2001 DIGILAW 250 (GAU)

Arabinda Kumar Saha v. State of Assam and Ors.

2001-09-01

R.S.MONGIA, RANJAN GOGOI

body2001
R. S. Mongia, C. J. (Acting). — This judgment and order of ours will dispose c of Appeal No. 145 of 1995 and Appeal No. 146 of 1998> which have been filed by the two brothers against the common judgment of the learned Single Judge dated 13.5.1998 by which two writ petitions, Civil Rule No.2544 of 1996 and Civil Rule No.4980 of 1996 were disposed of. The facts and point of law in both the cases are almost identical. The facts are being taken from Writ Appeal No. 145 of 1995. 2. The appellant herein Sri Arabinda Kumar Saha was bom out of the wedlock between Basanta Kumar Saha of general category i.e., caste Hindu, (in other words not belonging to Scheduled Castes or Scheduled Tribes or a backward class) and Smti Subhadra Das belonging to the Kaibarta Community a Scheduled Castes in the State of Assam. He was born on 1.8.1947. In other words he was the child of a non-Scheduled Castes father and Scheduled Castes mother. In 1967, the appellant-writ petitioner applied for grant of certificate as belonging to Scheduled Castes. It is the case of the appellant that he had duly disclosed that his father belonged to general category and was not a Scheduled Castes and mother belonged to a Scheduled Castes community. Appropriate authority i.e. Additional Deputy Commissioner, Dhubri, gave the petitioner a caste certificate as belonging to Scheduled Castes category on 12.6.67. The relevant portion of the certificate is reproduced below: "This is to certify that Shri Arabinda Kumar Saha, son of Sri Basanta Kumar Saha, Village/Town Dhubri in District/Division Goalpara of the State/Union Territory of Assam belongs to the Kaibarta Caste/Tribe under the Scheduled Castes and Scheduled Tribes Dists (Modification) Order, 1956. Shri AK Saha and/or his family ordinarily reside (s) in Village/Town Tamarhat of Goalpara District/Division of the State of Assam." 3. The appellant was inducted into a Govt service in the year 1972 as a Scheduled Castes. He joined the service as a Sub Inspector in the Food and Civil Supplies Department and got his promotion as a member of the Scheduled Castes to the post of Inspector in the year of 1984 and then to the rank of Superintendent which post he is holding now. He joined the service as a Sub Inspector in the Food and Civil Supplies Department and got his promotion as a member of the Scheduled Castes to the post of Inspector in the year of 1984 and then to the rank of Superintendent which post he is holding now. It is the case of the appellant that he has all along been treated as a member of the Scheduled Castes community and during his entire educational career as well as entry into the Govt service the appellant has been known and treated as member of Scheduled Castes. He was elected as Vice President of the Annusuchit Jati Karmachari Parishad, Dhubri and he is also been member of the Executive Committee of the Assam Annusuchit Jati Karmachari Santha since many years. Further it is the case of the appellant that one Sudhir Singh Chowdhury, Chairman of the Sub Divisional Scheduled Castes Development Board had some prejudice against the appellant because the appellant was instrumental in getting some action taken in connection with a complaint against Shri Chowdhury regarding corruption etc regarding working of the Co-operative Store in the Department of Food and Civil Supplies which b led him to file a complaint against the appellant on 16.5.94 that the appellant is not a member of Scheduled Castes community and had wrongly obtained a caste certificate professing himself to be a member of the Scheduled Castes community. 4. On the basis of the complaint an enquiry was instituted and an EAC was asked to hold the enquiry whereupon a show cause notice was issued to the appellant. The appellant while showing cause stated that has been brought up in the community of the Scheduled Castes and he has been accepted in that community and his mother and father were residing together. However, the enquiry report went against the appellant holding that he could not be said to be belonging to the Scheduled Castes community inasmuch as his father was a non-Scheduled Castes and he was under his influence and had really been brought up by the j father which did not entitle him to claim that he belonged to the Scheduled Castes community. An order was passed on the basis of the enquiry cancelling the certificate granted to the appellant which was given to him on 12.6.67. This order of cancellation was passed on 24.5.96. An order was passed on the basis of the enquiry cancelling the certificate granted to the appellant which was given to him on 12.6.67. This order of cancellation was passed on 24.5.96. This led the appellant to file the writ petition. However, the learned Single Judge did not agree with the petitioner and dismissed the writ petition. Hence the appeal. 5. We have heard the learned counsel for the parties. The authority which is to give the certificate to a particular person is required to be satisfied that the person applying for certificate really belongs to Scheduled Castes category. It is for the authority as to how it gets satisfied as to whether the applicant belongs to Scheduled Castes category or not but satisfaction is a must before issuance of any such certificate. A presumption is attached to the issuance of such a certificate / is that due procedure under the law must have been followed before issuance of the certificate. It is not the case of the respondent that the appellant did not disclose earlier that his father is not a Scheduled Castes and his mother was a Scheduled Castes. It will be assumed that the authority who gave the certificate must have been satisfied with the evidence whatever produced by the appellant that he belonged to the Scheduled Castes category. It is also not the case of the % respondent that the appellant played any fraud while getting the certificate in the year 1967. This is specially in the circumstances of this case the certificate was issued in the year 1967 whereas complaint is made 27 years thereafter. 6. It is also not the case of the % respondent that the appellant played any fraud while getting the certificate in the year 1967. This is specially in the circumstances of this case the certificate was issued in the year 1967 whereas complaint is made 27 years thereafter. 6. Learned counsel for the appellant cited before us a judgment in Wilson Read vs. CS Booth reported in AIR 1958 Assam 128 wherein it was observed as under: "The test which will determine the membership of the individual will not be the purity of blood, but his own conduct in following the customs and the way of life of the tribe, the way in which he was treated by the community and the practice amongst the tribal people in the matter of dealing with the tribal people in the matter dealing with persons whose mother was a Khasi and father was a European." Learned counsel also drew our attention to the case of Muthuswamy vs. Masulman reported in ILR 38, Madras 342 where His Lordship held as under: "It is not uncommon process for a class or tribe outside the pale caste to another pale and if other communities recognised their claim they are treated as of that class or caste. The process of adoption into the Hindu hierarchy through caste is common both in the North and in the South India. As we have already pointed out, in the past there have been cases where people who judge from the purity of blood could not be Khasis, were taken into their fold or the orthodoxy did not standing the way of their assimilation into the Khasi community." Another judgment which was cited by the learned counsel for the appellant was in the case of W Giri vs. DS Dora reported in AIR 1959 SC 1318 (1327) wherein it was observed as under : "The caste status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry. There is no evidence on this point at all. There is no evidence on this point at all. Besides the evidence produced by the appellant merely shows some acts by respondents, which no doubt were intended to assert a higher status, but unilateral acts of this character cannot be easily taken to prove that the claim for the higher status which the said acts purport to make is established. That is the view which the High Court is absolutely right." 7. From the aforementioned authorities it is evident that primarily to determine as to whether a person belongs to particular class or community it is to be seen whether he is accepted by that community as a part of it. In the present case, as observed above, the appellant-petitioner has not only been the office holder of Annusuchit Jati Karmachari Parishad but the Scheduled Castes community treated the appellant as belonging to Scheduled Castes and even the non-Scheduled Castes people treated the appellant-petitioner as Scheduled Castes inasmuch as in his college career and his service career he was treated as member belonging f to the Scheduled Castes. 8. On the basis of the judgments referred to above we are of the view that the authorities were not justified in cancelling the certificate issued to the appellant as belonging to the Scheduled Castes which was issued in the year 1967. Apart from above we are also of the view that such a certificate regarding which there is no allegation of fraud etc should not be allowed to be cancelled by the authorities & after almost 30 years of the grant of the same. At the cost of the repetition we may observe that the authority granting the certificate should look into the matter very carefully but once the certificate is granted in the case like the present one, it cannot be cancelled in the manner it has been done in the present case. 9. For the foregoing reasons the judgment and order of the learned Single Judge dated 13.5.98 and the order of the Additional Deputy Commissioner, Dhubri dated 24.5.96 and notice dated 30.8.96 in both the cases are set aside and quashed. However there will be no order as to costs.