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2007 DIGILAW 681 (GAU)

Pritam Rongpi v. State of Assam

2007-10-04

H.N.SARMA

body2007
JUDGMENT H.N. Sarma, J. 1. The challenge made in this writ petition is the promotion of respondent No. 6 to the rank of Sub-divisional Agricultural Officer (for short SDAO) and further subsequent promotion to the rank of District Agricultural Officer on the count that he allegedly belongs to a member-of the ST (Hills) Community of the State of Assam, which falls under the reserved category under Article 16 of the Constitution of India. 2. The petitioner has alleged that the respondent No. 6 having been appointed initially as extension Officer (Agriculture) as a Scheduled Caste candidate is not permitted to change his social status at the later point of time to that of Scheduled Tribe (P) and is not entitled to get the benefit of reservation policy of the state in the matter of promotion, subsequently. 3. I have heard Mr. K. Bhattacharjee, learned Counsel for the petitioner. Mr. P.S. Deka, Government Advocate appearing for respondent Nos. 1, 2, 5 & 7 and other, learned counsels appearing for the respective remaining respondents. 4. Counter affidavit has been filed on behalf of the state respondents as well as respondent No. 6. The petitioner also filed a reply affidavit to the counter affidavit filed by State respondents. The case as emerged from the pleadings of the parties is as follows: 5. The petitioner was appointed initially as an Extension Officer (Agriculture) in the Agriculture Department to the Government of Assam the Respondent State on 14.7.1981 under Regulation 3(f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951. The petitioner was promoted to higher rank after serving necessary period as per service rule and presently he is holding the post of Senior Agricultural Development Officer. However, his promotion to the aforesaid post was made during the pendency of this writ petition. 6. The respondent No. 6 on the other hand was appointed as Extension Officer (Agriculture) which falls within the category of S.A.S. Class-I post as per the Rules, vide order dated 21.9.1977. The said appointment was made on the basis of the selection made by APSC which was published vide Notification dated 13.9.1978. 6. The respondent No. 6 on the other hand was appointed as Extension Officer (Agriculture) which falls within the category of S.A.S. Class-I post as per the Rules, vide order dated 21.9.1977. The said appointment was made on the basis of the selection made by APSC which was published vide Notification dated 13.9.1978. Again Vide Notification dated 24.7.96 the respondent No.6 was promoted to the rank of SDAO and was further promoted to the rank subject Matter Specialist (for short SMS) vide order dated 30.12.2002 and his service was placed at the disposal of Karbi Anglong Autonomous Council for posting him as Horticulturist Officer. The respondent No. 6 was further promoted to the rank of District Agricultural Officer vide Notification dated 7.12.2004. 7. The petitioner alleges that the respondent No 6 was appointed initially under the reservation policy as Schedule Caste candidate which is disclosed from the Gradation (Selection) list but his subsequent promotion to the higher rank was on the ground that he belongs to a member of the S.T. (Hills) Community. The petitioner alleges that the respondent No. 6 is not a member of the Schedule Tribes (Hills) Community and such status has been given to him on wrong notion of fact and law. 8. The contention of the respondent No. 6 is that while his father, a non-tribal person, was serving in the Karbi Anglong District, converted into Christianity and married a tribal woman from the Karbi Community as per Karbi traditions and customs and according to Christian ritual followed by Karbi Community, solemnized at Panjan Baptist Church. The father of the respondent also accepted the rituals and traditions of Karbi community and out of the said wedlock the petitioner having been born was brought up as the member of the Karbi Community and the Karbi Community also accepted him as such. The father of the respondent also accepted the rituals and traditions of Karbi community and out of the said wedlock the petitioner having been born was brought up as the member of the Karbi Community and the Karbi Community also accepted him as such. Following the Kabri traditions and customs the respondent No. 6 also accepted the Christian religion and all through out his life he has been following the traditions and customs of Karbi Community and in turn the Karbi Society has also accepted him as a member of their own tribe, more particularly in view of the fact that his mother being from Karbi Community, by birth, Further, case of respondent No. 6 is that while applying for the post of Extension Officer (Agriculture) he never stated to be a member of scheduled caste community and he was wrongly shown as S.C. in the Select List published by the A.P.S.C, although there is no record to show that he belongs to S.C. community and as such characterising him as S.C. candidate in the select list prepared by the A.P.S.C. is an apparent and inadvertent mistake. 9. The further contention of Respondent No. 6 is that he having accepted the traits of the Karbi people, he is to be treated as a member of Schedule Tribes (Hills) Community for all purposes. It is also stated that on the basis of certain allegations made against him in connection with his scheduled tribe status, such fact came to be verified and investigated by the Deputy Commissioner of the District by examining various people of the locality including the elderly people and upon such inquiry it has been categorically established that the petitioner belongs to Karbi Community and therefore he is a member of the ST (Hills) Community for all purposes. The respondent No. 6 further states that the necessary certificate certifying him to be a member of the ST (Hills) Community has also been issued by the Deputy Commissioner of the District and the said certificate is still subsisting and has not been questioned and as such status of the petitioner as ST (P) cannot be denied or disputed. 10. The respondent No. 6 further states that the necessary certificate certifying him to be a member of the ST (Hills) Community has also been issued by the Deputy Commissioner of the District and the said certificate is still subsisting and has not been questioned and as such status of the petitioner as ST (P) cannot be denied or disputed. 10. The state respondents also admit the fact that the necessary certificate has been issued to respondent No. 6 on 13.6.95 by the Deputy Commissioner stating that he belongs to Karbi Community (Mikir Tribes) which is recognized as Scheduled Tribes under the Constitution (Scheduled Tribes) Hills Order 1950, as amended from time to time. Further, the state respondent could not explain anything regarding as to how in the Select List prepared by the APSC selecting the petitioner for the post of Extension Officer earmarked him as Schedule Caste candidate, and stated the same to be an inadvertent mistake. There are also no records to show that respondent No. 6 belongs to S.C. Community and dispelling any doubt relating to this fact the records of selection also cannot be produced stating that those records are not available now after a lapse of about 30 years. 11. In the backdrop of facts, as demonstrated above, Mr. Bhattacharjee learned Counsel for the petitioner submits that the respondent No. 6 cannot be treated as a Schedule Tribes (Hills) candidate and the basis of his argument that the initial appointment of respondent No. 6 to the rank of Agricultural Extension Officer being as a SC candidate, he cannot be permitted later on to change his social status from Scheduled Caste to S.T. (Hills) Community and claim promotion on that basis. It is further submitted that if the promotion of respondent No. 6 to higher rank is not taken into consideration as a ST (H) candidate, in that event the petitioner as a ST (H) candidate should have been promoted earlier to the respondent No. 6 and the illegal promotion of the respondent No. 6 has blocked the promotion of the petitioner. 12. 12. In this writ petition no factual basis has been laid down regarding wrong principle followed by the state respondents in fixing the seniority of the respondent No. 6 above the petitioner and as such other relevant facts in order to arrive at a definite findings as to the effect that wrong has been done in fixing the seniority of respondent No. 6 above the petitioner. 13. The crux of the matter as highlighted, is as to whether the respondent No. 6 is to be accepted as a member of ST (Hills) Community. The Enquiry Report and the Caste Certificate furnished and issued by the D.C. Ex-facie disclose that the respondent No. 6 belongs to the ST (Hills) community. In the writ petition the petitioner has not challenged and questioned the validity and authority of the enquiry report. The state respondents have accepted the caste certificate submitted by the respondent No. 6 and the enquiry report furnished by the DC, Karbi Anglong district. Until and unless those are cancelled and set aside the respondent No. 6 is to be treated as the member of the ST (Hills) Community, but no challenge is made to that effect in this writ petition. It is to be noted herein that the State respondents have also not produced the relevant record to support the case of the petitioner to substantiate the claim that he was promoted on the basis that his belonging to ST (Hills) Community. 14. But the matter does not end here. The Deputy Commissioner. Karbi Anglong, Diphu submitted an Enquiry Report dated 29.7.2005 after conducting an enquiry in terms of the order of the Govt. vide No. AGA 424/2004/27 dated 28.4.2005 & No. AGA. 42/2004/29 dated 10.5.2005 to the Commissioner & Secretary to the Government of Assam, Agricultural Department. Admittedly the said Enquiry Report is relates to the authenticity of the social status of the petitioner as to whether he belongs to Karbi Community which is a recognized scheduled tribe. The dispute regarding such social status appears to be in increasing trend by now throughout the country and as such the matter came up before the Apex Court in the case of Kumari Madhuri Patil and Ors. Appellants v. Additional Commissioner, Tribal Development and Ors. Respondents reported in AIR 1995 SC 94 . The dispute regarding such social status appears to be in increasing trend by now throughout the country and as such the matter came up before the Apex Court in the case of Kumari Madhuri Patil and Ors. Appellants v. Additional Commissioner, Tribal Development and Ors. Respondents reported in AIR 1995 SC 94 . In that case the Apex Court while dealing with the case of admission into Medical College streamlined the procedure for issuance/cancellation of social status certificate, their scrutiny and approval laying down the following directives: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidates, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hairs from and other particulars as may be prescribed by the Directorate concerned. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (iii) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place migration to the town or city, the place from which he originally hailed from. 5. Each Directorate should constitute a vigilance consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place migration to the town or city, the place from which he originally hailed from. The Vigilance Officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also he parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their perculier anthropological and ethnological traits, deity, rituals, customs mode of marriage, death ceremonies method of burial of dead bodies etc. by the caste or tribes or tribal communities concerned. 6. The Director concerned, on receipt of the report from the vigilance officer, if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the Educational Institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association oppose such a claim, an opportunity to adduce evidence may be given to him/it. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association oppose such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidates or opponent and pass as appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be a false or spurious, they should pass an order canceling the certificate issued and confiscate the same. It should communicate within one month form the date of the conclusion of the proceedings the result of enquiry to the parent, guardian and the applicant. 10. In case of any delay in finalizing the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any should lie. 13. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ/petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/ guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or officers under the State or the Union or elections or any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. 15. The Apex Court at para 14 of the judgment further observed that since the procedure laid down above is fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or Backward Classes, as the case may be are not defeated by unscrupulous persons. The aforesaid procedure was further reiterated by the Apex Court in the case of Bank of India and Anr. Appellants v. Avinash Mandivikar and Ors. Respondents reported in AIR 2005 SC 3395 . 16. Again in the case of Anjan Kumar v. Union of India and Ors. The aforesaid procedure was further reiterated by the Apex Court in the case of Bank of India and Anr. Appellants v. Avinash Mandivikar and Ors. Respondents reported in AIR 2005 SC 3395 . 16. Again in the case of Anjan Kumar v. Union of India and Ors. reported in AIR 2006 SC 1177 the query and consideration which came up before the Apex Court was as to whether the offshoot of the tribal women married to non-tribal husband could claim status of Scheduled Tribe and on the basis of which the Scheduled Tribe and certificate could be given. 17. Yet in a recently reported decision of the Apex Court in the case of State of Maharashtra and Ors. Appellants v. Prakash Lal Kumar, Respondents reported in AIR 2007 SC 295 the Apex Court again considered the case of Madhuri Patil(supra) and observed that the aforesaid decision is an authority for the proposition that the scrutiny committee can go into the question as to whether the certificate has been rightly issued or not and the parties concerned are also found to have some role to play in finding out the correctness of the claim of issuance of such certificate. 18. The dispute as projected in this case relates to the caste of the petitioner. The caste is more a social combination than a religious group. It is a voluntary association of person for certain purposes. Castes are formed based not only on community of religion, but also on community of functions. A change in the occupation sometime creates a new caste. A common occupation sometimes combines members of different castes into a distinct body which becomes anew caste. Migration to another places makes sometimes a new caste. See [1976] 3 SCR 82 C.M. Arumugam v. S. Rajgopal and Ors. 19. In the instant case, the father of the respondent No. 6 accepted the tribal tradition of Karbi Anglong, converted himself into Christianity and married a tribal lady, out of which petitioner was born: the petitioner subsequently converted into Christianity and ordinarily on such conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an universal rule and depends on the structure of the caste and its rules and regulations. It is for the members of the caste to decide whether or not to admit a person within the caste. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just it may expel an existing member. (See The Principal Guntur Medical College, Guntur and Ors. v. Y. Mohan Rao reported in [1976] 3 SCR 1046. 20. In this case it is found that the inquiry regarding the social status of the respondent No. 6 was conducted by the DC, Karbi Anglong district on 29.7.2005. It being the requirement of the time and need of the situation the Apex Court in the case of Madhuri Patil(supra) has provided a guideline to streamline the procedure for issuance/cancellation of social status certificate and their scrutiny and approval directed all states to constitute a Committee of three officers namely (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. Each Directorate has also been directed to constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The duty of the Inspector has also been highlighted by the Apex Court. Such directions and guidelines as made by the Apex Court in the said case has been quoted herein above. 21. On the specific query by the Court to Mr. P.S. Deka, learned Government Advocate submits, upon instruction, that no such scrutiny community or Vigilance Cell has been--constituted by the State of Assam till date. 22. It is the need the time that such committee and Vigilance Cell should be constituted by following the directives of the Apex Court referred to above. The scrutiny of the caste of the Respondent No. 6 was not been considered by such Committee as alluded above but it has been done by the Deputy Commissioner, Karbi Anglong district. 22. It is the need the time that such committee and Vigilance Cell should be constituted by following the directives of the Apex Court referred to above. The scrutiny of the caste of the Respondent No. 6 was not been considered by such Committee as alluded above but it has been done by the Deputy Commissioner, Karbi Anglong district. Accordingly it is directed that the State of Assam shall immediately constitute a Scrutiny Committee and a Vigilance Cell in compliance with the directives of the Apex Court in the case of Madhuri Patil (supra). Upon such constitution the respondent authorities shall make wide publication informing the public about the constitution of such Committee and Cell. After such constitution the Scrutiny Committee and the Vigilance Cell, the authority if thinks fit, shall refer the case of the petitioner for necessary scrutiny by such Committee that shall be constituted, as directed above. 23. The constitution of the aforesaid scrutiny committee and Vigilance Cell be completed within a period of 30 days from the date of receipt of this order. However, it is made clear that till such steps are taken by the respondent authorities, the present social/caste status of the respondent No. 6 as found by the D.C. be allowed to continue. Let a copy of the judgment and order be forwarded to the Chief Secretary to the Government of Assam, Secretary W.P.T. & B.C. Department, and Secretary Personnel, Government of Assam, Dispur, Guwahati-6 for necessary compliance. With the aforesaid directions and observations the writ petition stands disposed of.