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2009 DIGILAW 214 (GAU)

Santanu Debbarma v. State of Tripura

2009-03-26

HRISHIKESH ROY

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S. Deb, learned senior Counsel appearing for the petitioner. Also heard Mr. S. Chakraborty, learned Addl. Government Advocate who represents the respondents. 2. By this petition, the order dated 7.11.2005 of the State Level Scrutiny Committee has been put to challenge by the petitioner. By the said order it has been concluded that the petitioner belongs to the 'Laskar' community and therefore, the scheduled tribe (ST) certificate granted to him on 11.6.1974 is no longer valid and the said ST certificate was ordered to be cancelled and the writ petitioner was directed to return the original certificate. 3. Mr. S. Deb, learned senior Counsel contends on behalf of the petitioner that the petitioner and also his father, have all along been recognized as member of the scheduled tribe community and necessary certificates to this affect are available both for the father and for the petitioner. During an earlier round of scrutiny, as seen from the report dated 9.2.1998 of the Addl. District Magistrate, West Tripura that the social status of the petitioner has been verified and it is concluded that the petitioner belongs to scheduled tribe community, and therefore, there should be no further occasion for any Authority to consider the petitioner to be a non ST person. 4. It is also contended by Mr. Deb that the vigilance inquiry report prepared by the Inspector of Police in the Vigilance Cell, has been relied upon to declare the petitioner as a non scheduled tribe person and since the said vigilance report dated 28.10.2004 has been prepared on the basis of statements of 8 persons, who were examined by the Vigilance Officer, the petitioner should have been afforded an opportunity to cross-examine those persons, before any adverse decision on the social status of the petitioner was taken by the Authorities. 5. Mr. Deb, learned senior Counsel also contends that the impugned order dated 7.11.2005 is vitiated in law because of non observation of the Principles of Natural Justice in as much as, the petitioner was not permitted to adduce evidence and cross-examine witnesses before the Scrutiny Committee and also because the impugned order of the Scrutiny Committee is devoid of any reason. On this ground alone, it is contended that, the impugned order has been vitiated in law. 6. Responding to the arguments, Mr. On this ground alone, it is contended that, the impugned order has been vitiated in law. 6. Responding to the arguments, Mr. S. Chakraborty, learned Government Advocate submits that the petitioner cannot cast any blame on the State Level Scrutiny Committee for not affording an opportunity to the petitioner to present his case, in as much as, it is the petitioner himself, who despite being afforded two chances being afforded by the Committee, failed to avail those chances and accordingly it cannot be claimed by the petitioner, that a fair opportunity has been denied to him to establish his status. 7. The respondents also contend that although the petitioner gave a long reply in response to the first show-cause notice dated 18.12.2004, issued by the Secretary of the Scrutiny Committee, none of the documents referred to in the said reply by the petitioner were furnished along with his reply dated 14.3.2005 to the Scrutiny Committee and accordingly, no fault can be attributed against the Member of the Scrutiny Committee, for non-consideration of those documents. 8. Mr. Chakraborty further submits that along with the show-cause notice dated 18.12.2004, the Inquiry Report dated 28.10.2004 of the Vigilance Cell has also been furnished to the petitioner and the petitioner was also furnished with copies of the statements of witnesses recorded by the Vigilance Inspector and thereafter the petitioner was also furnished with the opportunity to appear and make representation before the Scrutiny Committee and under such circumstances, it cannot be said that the petitioner has been denied a fair opportunity to present his case and accordingly, it is contended that Interference with the impugned declaration dated 7.11.2005 of the Scrutiny Committee, by the writ court may not be justified in law. 9. 9. It Is also contended by the learned Government Advocate that as the petitioner has claimed scheduled tribe status, it is for him to establish the said status by showing his roots in the State and also by providing evidences from other members of his community, to show that he deserves the scheduled tribe status and since the petitioner failed to indicate his roots in the State of Tripura and it is the finding of the Vigilance Inquiry that the forefathers of the petitioner migrated from village "Mogra" in Bangladesh, the claim of the petitioner that he is entitled to claim the scheduled tribe status in the State of Tripura is entirely misconceived. 10. It is relevant to note that the State Level Scrutiny Committee, which passed the impugned order on 7.11.2005 has been constituted in the State of Tripura in pursuant to the directions of the Supreme Court given in the case of Kumari Nadhuri Patil v. Addl. Commissioner, Tribal Development (1994)6 SCC 241 . In this case, the Supreme Court has laid down elaborate guidelines as to how claims of scheduled status are to be dealt with by the Committee. In the guidelines, it is provided that a Vigilance Cell is to he constituted to investigate into the social status of a person whose status is under a cloud and in the event of an adverse finding against such person by the Vigilance Cell, a show-cause notice is to be given to the affected person along with a copy of the report of the Vigilance Officer to enable him a reasonable opportunity to adduce or evidence in support of his claim of scheduled status before the Committee and thereafter the Committee may examine the rival contentions and pass appropriate order with brief reasons in support of the order. It is also provided by the Supreme Court that inquiry by the Committee should expeditiously concluded and if the claim of a person is found to be false or spurious, an order canceling the certificate should be issued and communicated within a month from the date of conclusion of the proceeding. 11. It is also provided by the Supreme Court that inquiry by the Committee should expeditiously concluded and if the claim of a person is found to be false or spurious, an order canceling the certificate should be issued and communicated within a month from the date of conclusion of the proceeding. 11. In the follow up judgment, in the case of Director of Tribal Welfare, Government of A.P. v. Laveti Giri (1995) 4 SCC 32 , the Supreme Court reiterated with approval the directions given in Kumari Madhuri Patil (supra) and further ordered that the Government of India must take necessary steps providing for penal consequences on persons who flout the Constitution and corner the benefits reserved for the real tribes, so that the menace of fabricating false records to gain unconstitutional advantage by spurious persons could be tackled. It has also been held in this case that burden of proof of social status is always on the person who seek Constitutional socio-economic advantage and it is not the burden of the State of disprove otherwise. It is also recorded that after falsely gaining advantage of appointment, when the social status of a person are put to question, they often resorted to dilatory tactics and create hurdles in completion of the inquiry by the Scrutiny Committee and therefore, the Scrutiny with regard to the genuineness of a scheduled status certificate must be completed with (sic) expedition and promptitude. 12. In the instant case it is seen that the petitioner, despite being afforded opportunity on two occasions by the Scrutiny Committee, chose to stay away from the Committee and therefore, he failed to adduce any evidence to prove his genuine status as a scheduled tribe person. The petitioner sought to cross-examine the persons, whose statements were relied upon during the vigilance inquiry, made by the Police, but he never made himself available before the Scrutiny Committee to put forward any of his contentions or to adduce any evidence. It may also be noted that the petitioner while giving his detail reply on 14.3.2005 to the Member Secretary of the State Level Scrutiny Committee in response to the show-cause notice dated 18.12.2004, mentioned several documents, without making available copies of any of those documents, for examination by the Scrutiny Committee. 13. It may also be noted that the petitioner while giving his detail reply on 14.3.2005 to the Member Secretary of the State Level Scrutiny Committee in response to the show-cause notice dated 18.12.2004, mentioned several documents, without making available copies of any of those documents, for examination by the Scrutiny Committee. 13. It is apparent in this case that the respondent-authorities proceeded to deal with the social status of the petitioner in terms of the directions given by the Supreme Court in the case of Kumar Madhuri Patil (supra) and reiterated thereafter in Laveti Giri (supra) case and therefore, it cannot be said that the proceedings on the basis of which the impugned order dated 7.11.2005 has been passed, suffers from any procedural irregularity. 14. As regards the specific contention raised by Mr. Deb, learned senior Counsel for the petitioner, that the impugned order does not contain any reasons for the said order, I find on examination of the impugned order dated 7.11.2005 that, the Scrutiny Committee took into account the Vigilance Inquiry Report on the caste status of the petitioner, the relevant portion of which can be usefully extracted for ready reference: From the statement of the witnesses and the documents examined, it revealed that Sri Santanu Deb Barma was born on 18.6.1959 at Sankar Chowmuhani, Agartala, West Agartala P.S. District Tripura West. He had taken School Education from Sisubihar H.S. School and Umakanta Academy and then Higher Education from M.B.B. College. He joined in the post of TCS Grade-II in the year 1991 and his appointment against the Reserve Post of S.T. on the basis of his S.T. Certificate issued vide No. 726/DM/GL/W/74 dated 11.6.1974 by the D.M. (West). It further revealed that his father name Late Mano Mohan Deb Barma (a) Nemal and his grandfather name is Late Sash Mohan Deb Barma. The forefather of Santanu Deb Barma were the desentendent of Laskar Community, otherwise known as "DESITRIPURI" and migrated to Kingly State of Tripura from a place called "Mogra" in Bangladesh. It revealed that there was no Tribal family of Deb Barma or Tripuri Community in place like Mogra and they were using "Deb Barma" as their surname during the Regime of Muharaja Birender Kisore Manikya Bahadur but did not belongs to Tripuri Community. It revealed that there was no Tribal family of Deb Barma or Tripuri Community in place like Mogra and they were using "Deb Barma" as their surname during the Regime of Muharaja Birender Kisore Manikya Bahadur but did not belongs to Tripuri Community. In view of the evidence discussed above, though there is no documentary evidence available due to partition of, the Country, it is clearly been established that Sri Santanu Deb Barma, S/o. it. Mono Mohan Deb Barma of Sankar Chowmuhani, Agartala, Tripura (West) is originally from "LASKAR" community (not from TRIPURI COMMUNITY) which now stands recognized as Scheduled Tribe as per Memo of Tribal Welfare Department, Government of Tripura, vide No. 38296-396/F.6-4(C-D)/TW/89 dated 31.3.1990. The Social Status Certificate belonging to Sri Santanu Deb Barma issued by the D.M. (West) vide No. 726/DN/GL/W/74 dated 11.6.1974 needs to be cancelled after observing all formalities. 14.1. From the above Vigilance Report, It is clearly reflected that the forefathers of the petitioner had migrated to the Stale of Tripura from village Mogra in Bangladesh and it is after their migration, the petitioner forefather abandoned their "Laskar" title and adopted the "Deb Barma" title, a title used by the indigenous Tribesmen of Tripura State. 14.2. The Scrutiny Committee in their impugned decision stated that they found that the writ petitioner belong to the "Laskar" Community, which Community is admittedly not a scheduled tribe in the State and on the basis of such reasoning, the petitioner was held to be not entitled to claim the scheduled tribe status. Therefore, I find that the contention raised on behalf of the petitioner that no reasoning has been given by the Scrutiny Committee is not worthy of acceptance, as the Scrutiny Committee has given definite reason for its conclusion. 15. Having regard to the above discussions and also in view of the conduct of the petitioner, who failed to avail the opportunity afforded to him to establish his claim before the Scrutiny Committee, I find that this case, cannot be considered to be a case where a fair opportunity was denied to the petitioner or it is a case where the principles of audi alteram partem has been breached. 16. 16. As a writ court examining the validity of an order of a Scrutiny Committee, it would not be appropriate for the court to subject the evidence against the petitioner to minute scrutiny and the court cannot sit in appeal on the appreciation of evidence made by a competent Committee, without strong justification. In the present case, I do not find that the finding of fact recorded by the Scrutiny Committee warrants a judicial review, as the Committee has taken note of all the relevant materials placed before it and has also applied it's mind to all the relevant facts before giving its decision. Under such circumstances I do not find any reason to take a view different from the one taken by the Scrutiny Committee. 17. In view of the above reasons, I do not find any merit in the instant writ petition and the same stand dismissed. 18. At the conclusion, Mr. S. Deb, learned senior Counsel submits that the petitioner joined in Government Service as a ST Category person as far back as in 1991 and have rendered service for about 18 years and he may be permitted to continue in service as a general category person, as the post he joined in the year 1991 cannot now be given to a ST candidate. In support of this submission, Mr. Deb relies on the Supreme Court decision's in the case of State of Maharashtra v. Milind (2001) 1 SCC 4 and Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 . I find that in these cases, the Supreme Court permitted retention of the medical degree in Milind's case (supra) and the appointment in the case of Raju Ramsing Vasave (supra) by exercising powers under Article 142 of the Constitution. Therefore, in my view, these cases cannot be taken as precedents for giving further directions of the same nature in the present case. Accordingly, I find no justification to give any positive direction to protect the service of the petitioner and consider it appropriate to leave it to his employer State to take a decision on the same. It is ordered accordingly. 19. The petition is disposed off in terms of the above order.