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2009 DIGILAW 398 (GAU)

Anjali Medhi v. State of Assam

2009-06-06

HRISHIKESH ROY

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. N. Dutta, learned senior counsel appearing for the petitioner. Also heard Mr. R.K. Bora, learned Government Advocate who appears for respondent Nos. 1, 2 and 10. Mr. P.J. Saikia, learned Advocate appears for the respondent Nos. 4, 5 and 6. The contesting respondent No. 7 is represented by Mr. M.K. Choudhury, learned senior counsel. Mr. P. Bayan, learned Advocate appears for respondent Nos. 8 and 9. Respondent No. 11 have intervened in the matter and filed counter-affidavit. 2. This matter pertains to selection for allotment of an LPG dealership to be commissioned at Chaygaon under the Bharat Petroleum Corporation Ltd. (hereinafter referred to as BHPL) and only schedule tribe category persons were eligible to be considered for the said LPG Distributorship. The petitioner Anjali Medhi claiming herself to be a "Rabha", who are recognized as Scheduled Tribe (P) in the State, offered her candidature along with a certificate dated 11.11.1990 certifying her status. There were other 21 applicants including respondent No. 7 and following the selection by the dealer selection board, the list of successful candidates were notified on 30.8.2001, where the petitioner was enlisted at merit position 1 and the respondent No. 7 in position 2 in the said result notification. 3. At the instance of respondent No. 7, the Guwahati District Committee of the All Assam Tribal Sangha (hereinafter referred to Tribal Sangha) filed an objection on 30.8.2001 against the selection on the petitioner by contending that the petitioner does not belong to the "Rabha" community and was therefore not entitled to claim Scheduled Tribe status. The petitioner responded to the objector and eventually by communication dated 20.2.2002 the General Secretary of the Tribal Sangha informed the Deputy Commissioner, Kamrup about a resolution taken by the Central Executive Committee of the Tribal Sangha in its meeting dated 20.2.2002, wherein a resolution was adopted that the petitioner belongs to Schedule Tribe (P) "Rabha" community. 4. In the mean time on the basis of objections received on the social status of the petitioner, the Circle Officer of Palasbari Revenue Circle (respondent No. 3) decided to enquire into the matter and accordingly a notice was issued on 21.9.2001 by the Circle Officer, requiring the petitioner to contact the Circle Officer on 26.9.2001 in connection with the objection raised against the petitioner. 5. 5. It is averred by the petitioner that 26.9.2001 being a holiday she could not meet the Circle Officer on the appointed date but could meet him on 28.9.2001. It is averred that during her meeting with the officer, the Circle Officer Dinesh Chandra Nath demanded a huge amount or a partnership in the dealership as illegal gratification, for deciding the social status of the petitioner in her favour. 6. At around the same time the petitioner also received a notice dated 18.10.2001 from the Additional Deputy Commissioner, Kamrup wherein the objection of the Guwahati District Committee of the Tribal Sangha against the petitioner's status and the supporting stand of the All Assam Tribal Sangha was referred to and the petitioner and the representatives of the 3 Tribal Sangha were asked to appear in the office of the Additional Deputy Commissioner on 22.10.2001, so that appropriate inquiry into the matter could be made. 7. It is averred that when the petitioner met the concerned Additional Deputy Commissioner in his office on 20.10.2001, she was informed by that Additional Deputy Commissioner (one Shri Lahon) that another Additional Deputy Commissioner namely one Jogesh Chandra Pathak had passed an order on the previous date i.e., 19.10.2001 whereby it was declared that the petitioner does not belong to the Scheduled Tribe ("Rabha") community. The petitioner avers that Mr. Pathak the Additional Deputy Commissioner was not dealing with her matter and had no authority to take up a case pending before another Additional Deputy Commissioner, to render a decision against the petitioner particularly without hearing her, and that too on a off date. 8. The petitioner filed a writ petition WP (C) No. 7751/01 to challenge the order of the Additional Deputy Commissioner dated 19.10.2001. Simultaneously the respondent No. 7 also filed a writ petition WP (C) 7736/01 with the claim that he should be granted the dealership, in view of the declaration that the petitioner is not a member of the Scheduled Tribe community. 9. Simultaneously the respondent No. 7 also filed a writ petition WP (C) 7736/01 with the claim that he should be granted the dealership, in view of the declaration that the petitioner is not a member of the Scheduled Tribe community. 9. In a parallel development purportedly on the basis of the objections received on the social status of the petitioner from various organizations the Deputy Commissioner, Kamrup on the report of the Circle Officer of Palasbari Revenue Circle (respondent No. 3) concluded that the petitioner has no right to claim tribal status and should be treated as an 'OBC' with sub-caste 'Koch' and accordingly a communication was made by the Deputy Commissioner on 25.1.2002 to the BHPL authorities informing them that the Scheduled Tribe certificate granted in favour of the petitioner be treated as cancelled. The petitioner filed a writ petition WP (C) No. 1496/2002 to challenge the aforesaid communication dated 25.1.2002 of the Deputy Commissioner. 10. All the 3 writ petitions were taken up together and eventually this Court by order dated 4.1.2005 concluded that the petitioner was not given any opportunity to show cause or make submissions, before the adverse declaration on her tribal status was made and accordingly the writ petitions were disposed of with a direction to the Deputy Commissioner (Rural), Kamrup to take a fresh decision and the contesting parties were also directed to be heard, before such a fresh decision was taken by the Deputy Commissioner. 11. After the Court's order dated 4.1.2005, the petitioner as well as the respondent No. 7 were asked to appear before the District Magistrate by a notice dated 4.3.2005 issued by the ADM and by an order dated 31.5.2005 passed by the Deputy Commissioner, Kamrup, it was declared that the petitioner does not belong to a Scheduled Tribe community but to the "Sarania Kacharies" community and on the basis of such conclusion, the Scheduled Tribe certificate granted to the petitioner on 11.11.1990, was declared to be invalid and the same was cancelled. 12. The petitioner filed WP (C) No. 4459/2005 to challenge the Deputy Commissioner's order dated 31.5.2005 where it was contended by the petitioner that the Deputy Commissioner in passing the order dated 31.5.2005, did not take into account all the relevant documents. 12. The petitioner filed WP (C) No. 4459/2005 to challenge the Deputy Commissioner's order dated 31.5.2005 where it was contended by the petitioner that the Deputy Commissioner in passing the order dated 31.5.2005, did not take into account all the relevant documents. On the other hand it was contended on behalf of the respondent No. 7 that the finding of fact arrived at by the authority on the basis of the related materials should not be interfered within exercise of writ jurisdiction. The learned Judge took note of the inquiry report dated 28.11.2002 given by the Circle Officer, Palasbari Revenue Circle (respondent No. 3) wherein a conclusion was drawn by the Circle Officer that the petitioner did not belong to the "Rabha" community. The Court also took note of the communication dated 20.2.2002 of the Tribal Sangha which supported the tribal status claimed by the petitioner. The Court further held that finding of fact arrived at by authority cannot be interfered with lightly, in exercise of writ jurisdiction in absence of any error apparent on the face of record. The learned Judge also recorded that the Court cannot be oblivious of the stand of the Deputy Commissioner who took the decision on 31.5.2005 to declare that the petitioner is not a member of the Scheduled Tribe community as she is a "Sarania Kacharies" and the fact that the Deputy Commissioner while taking the said decision against the petitioner had not taken note of the supporting communication dated 20.2.2002 of the Tribal Sangha. Accordingly the learned Judge by his order dated 14.3.2008 directed the Deputy Commissioner, Kamrup to consider the effect of Tribal Sangha's supporting letter on the adverse decision on the petitioner's tribal status and it was further ordered that if in such circumstances it is found that there is justification for review of the Deputy Commissioner's order dated 31.5.2005, the same would be considered and ordered. The Court also directed that apart from the petitioner and the contesting respondent No. 7 the representatives of the Tribal Sangha who issued the supporting letter dated 20.2.2002 should also be heard by the Deputy Commissioner. 13. Following this Court's order dated 14.3.208 in the 2nd round, notice to the petitioner was accordingly issued on 10.4.2008 by the Additional Deputy Commissioner directing the presence of the parties on 18.4.2008 before the District Magistrate. 13. Following this Court's order dated 14.3.208 in the 2nd round, notice to the petitioner was accordingly issued on 10.4.2008 by the Additional Deputy Commissioner directing the presence of the parties on 18.4.2008 before the District Magistrate. On the date fixed for hearing i.e. on 18.4.2008 a letter was addressed to the Deputy Commissioner by the Tribal Sangha whereby the Deputy Commissioner was informed that the Tribal Sangha had in the mean time enquired into the social status of the petitioner at various levels and after such inquiry, it was intimated that the Tribal Sangha had come to a conclusion that the petitioner has lost all the characteristics of a tribal and does not belong to the "Rabha" community. 14. The petitioner filed a representation before the Deputy Commissioner stating that the charge of stand of the Tribal Sangha vis-a-vis the petitioner, as communicated through the letter dated 18.4.2008 was not preceded by any inquiry for the adverse conclusion referred to in the said letter and accordingly it was claimed that the said letter dated 18.4.2008 was issued by the Secretary of the Tribal Sangha (respondent No. 9) in this individual capacity and it could not be the organizational stand of the Tribal Sangha. 15. The Additional Deputy Commissioner, Kamrup after receiving the petitioner's complaint wrote on 24.4.2008 to the General Secretary of the Tribal Sangha asking for a detailed report of the inquiries that the Tribal Sangha has claimed to have made, for reversing its earlier decision and stand on the tribal status of the petitioner and the Sangha was also asked to furnish the evidence to show that the petitioner was involved when such so called inquiries were made by the Tribal Sangha. 16. Most conspicuously, by the letter dated 7.5.2008, 20 days after the cancellation letter dated 18.4.2008 written by the General Secretary (respondent No. 9) of the Tribal Sangha, the petitioner was informed that the Tribal Sangha is proposing to conduct an inquiry into the caste status of the petitioner and accordingly she was asked to appear before in the office of the Sangha on 9.5.2008 with all documents is support of her tribal status claim. 17. 17. The petitioner responded to the notice issued by the respondent No. 9 and it is averred that she appeared in the Tribal Sangha's office on the first day i.e. on 9.5.2008 when the hearing was adjourned to 13.5.2008, when she again appeared in the office of the Sangha on 13.5.2008. It is averred in the writ petition that on 13.5.2008, because of the differences amongst the members of the Tribal Sangha, the hearing on the status of the petitioner had to be abandoned and the petitioner was formally informed by the Secretary of the Sangha by letter dated 13.5.2008 that the inquiry against the petitioner could not be done. 18. Subsequently a formal intimation was given on 13.5.2008 by the General Secretary of the Tribal Sangha that the resolution on 5.4.2008 was adopted in the Central Executive Committee Meeting in connection with the caste issue of the petitioner. The said resolution dated 4.5.2008 indicates that the decision that the petitioner is not a tribal was taken, on the basis of the understanding of the members of the Sangha that a person belonging to a Scheduled Tribe community looses her tribal status by change of her caste or religion and since the petitioner has converted and has become a "Sarania Kacharies", she is not entitled to claim the status as a Scheduled Tribe person. 19. The resolution passed by Tribal Sangha on 4.5.2008, the communication dated 13.5.2008 made by the respondent No. 9 with the Additional Deputy Commissioner; the letter dated 13.5.2008 addressed by the respondent No. 9 to the petitioner; and also the letter dated 7.5.2008 addressed to the petitioner informing her about the proposed inquiry by the Tribal Sangha on 9.5.2008, were all subsequent developments after the adverse decision in the letter dated 18.4.2008, withdrawing the earlier supporting letter dated 20.2.2002 was issued. Thus the conclusion recorded in the communication dated 18.4.2008 by the Tribal Sangha, was not based on any other materials, beyond what was available before when Tribal Sangha issued the supporting letter dated 20.2.2002 in favour of the petitioner. It further appears from the communication dated 18.4.2008 that the Sangha had also based its decision on the inquiry report dated 28.11.2001 prepared by D. Nath (respondent No. 3), who was the Circle Officer of Palasbari Revenue Circle on 29.11.2001. 20. Mr. It further appears from the communication dated 18.4.2008 that the Sangha had also based its decision on the inquiry report dated 28.11.2001 prepared by D. Nath (respondent No. 3), who was the Circle Officer of Palasbari Revenue Circle on 29.11.2001. 20. Mr. N. Dutta, learned senior counsel appearing for the petitioner submits that the respondent No. 3 despite being arrayed as respondent in the present proceeding has failed to answer to the averments made against him to the effect that on 28.11.2001, the Circle Officer demanded a tribe from the petitioner and on petitioner's refusal to meet his demand, he vindictively prepared an adverse report on 28.11.2001 by deliberately recording an incorrect and contrary version of the local witnesses. It is pointed out by the learned senior counsel that the respondent No. 3 to suit the adverse conclusion in his report dated 28.11.2001 mischievously showed that, Rameshwar Nath (old resident of the village of the petitioner) and Rameshwar Rabha (local gaon Bura), had denied petitioner's tribal status claim. The learned Counsel refers to the respective affidavits sworn on 5.4.2008 and 31.5.2008 of Rameshwar Rabha (Annexure 29) and Rameshwar Nath to show that these 2 old residents categorically stated that they supported the tribal status claimed by the petitioner, by making appropriate statements before the Circle Officer. But the inquiry officer out of sheer vindictiveness, made just the contrary recording of their statements and prepared a perverse report to suit his mischievous agenda. Thus the basis on which the adverse report prepared by the Circle Officer, Palasbari Revenue Circle (respondent No. 3) are demolished by the statement on oath given by Rameshwar Rabha the Gaon bura and also by Rameshwar Nath the old resident of petitioner's village, who knew several generations of the petitioner's family. The affidavits of these two persons contradicts the version as recorded by the Circle Officer, and accordingly Mr. Dutta contends that the Circle Officer prepared a biased report, as the petitioner did not entertain his claim for illegal gratification demanded on 28.9.2001. I find Mr. Dutta's submissions to be acceptable and declare that the said report dated 28.9.2001 of the respondent No. 3 is a perverse report and cannot be used for any purpose accept to perhaps draw up an appropriate proceeding against the author of the report. 21. I find Mr. Dutta's submissions to be acceptable and declare that the said report dated 28.9.2001 of the respondent No. 3 is a perverse report and cannot be used for any purpose accept to perhaps draw up an appropriate proceeding against the author of the report. 21. The biased and wrong inquiry finding by itself would not have been cause so much concern for this Court but for the fact that, all the other State authorities such as the Additional Deputy Commissioner Jogesh Chandra Pathak while passing the order dated 19.10.2001; the Deputy Commissioner for his communication dated 21.5.2002 to the BHPL authorities and also the Tribal Sangha for issuing the communication dated 18.4.2002, had relied upon this false and vindictive report dated 28.11.2001 of the Circle Officer, for reaching an adverse conclusion, on the tribal status of the petitioner. 22. I find that the Government of Assam on 30.10.1989 had issued a circular wherein it is indicated that if there is any doubt on the social status claimed by a reserved category person, the matter is to be enquired into independently by the Deputy Commissioner or SDO where special care has to be taken in case of change of surname and adoption of general caste title. The circular requires recording of oral and documentary evidences, before a decision is taken on a complaint of doubtful caste status of a person. 23. From the materials on record, I find that all the authorities including the Tribal Sangha have based their conclusion against the tribal status claim of the petitioner, on the report of the Circle Officer, which does not inspire confidence of this Court because of the previous interaction between the petitioner and the respondent No. 3 on 28.9.2001 and the allegations which have gone unrebutted. Under this circumstances, I am of the considered opinion that inquiry into the status of the petitioner after complaints were filed, have not been made in consonance with the Government Circular dated 30.10.1989. 24. Instead of clearing the cobwebs, the various orders of the State authorities and the conclusions of the Tribal Sangha have added significantly to the confusion on the status of the petitioner. The Deputy Commissioner, in his letter dated 25.1.2002 (Annexure 13) stated that the petitioner should be treated as an OBC with sub-caste "Koch". 24. Instead of clearing the cobwebs, the various orders of the State authorities and the conclusions of the Tribal Sangha have added significantly to the confusion on the status of the petitioner. The Deputy Commissioner, in his letter dated 25.1.2002 (Annexure 13) stated that the petitioner should be treated as an OBC with sub-caste "Koch". In the order of the Deputy Commissioner dated 31.5.2005 (Annexure 17) the petitioner is declared to be a "Sarania Kachari". By the impugned order dated 26.5.2008 (Annexure 28) the Deputy Commissioner reiterates the earlier order dated 31.5.2005. But the Tribal Sangha by letter dated 22.9.2001 (Annexure- 7) and 20.2.2002 (Annexure-14) says that the petitioner is a "Rabha" which stand is changed in the later communication dated 18.4.2008 (Annexure 21) where the petitioner is described to have become a "Koch" from "Rabha" after taking "Saran" and therefore not a Scheduled Tribe (P). Then the further stand of the Tribal Sangha as per resolution dated 4.5.2008 (Annexure-27) that a tribal loses her status by change of caste ("'jyatantar") and religion ("dharmantar"). These confusions are required to be resolved because even after 3 rounds of litigations and several enquiry proceedings, it is not possible to give a definite conclusion on the social status of the petitioner. 25. From the family tree given by the petitioner at page 7 which can be extracted herein for ready reference: Gadho Rabha I ________________________I________________________ I I Madha Ram Sadha Ram Rabha Rabha (G.B.) I I Dharmeswar Medhi/Bilati (wife) I I Anjali (Petitioner). It is apparent, that the petitioner and her forefather were "Rabhas" a recognized Scheduled Tribe (P) of the State. But her father took the surname "Medhi" which is not a tribal specific but a generic surname. Whether in such process the petitioner loses her tribal status or gets converted from "Rabha" to "Koch" community or "Sarania Kacharis" are matters which requires investigation on facts i.e. whether tribal practices have been abandoned to altogether loose the tribal identity. Issue of law is also involved as conversion is alleged. There has be a determination on these issues by a competent authority before a declaration on the claim of the petitioner can be made. 26. That takes us now to a vital question raised by Mr. Issue of law is also involved as conversion is alleged. There has be a determination on these issues by a competent authority before a declaration on the claim of the petitioner can be made. 26. That takes us now to a vital question raised by Mr. M.K. Choudhury, learned senior counsel, as to whether in view of the order passed by this Court on 14.3.2008 giving direction to the Deputy Commissioner to re-examine the matter, this Court can take note of all the above circumstances to declare that the impugned decision dated 26.5.2008 of the Deputy Commissioner is unsustainable. 27. On careful reading of the said judgment dated 14.3.2008, I find that there was no affirmative conclusion by the learned Judge on the social or caste status of the petitioner. What the Court recorded was that writ jurisdiction should not be lightly exercised to disturb a finding of fact given by the primary authority. The Court also recorded that the error in the decision on facts must be apparent on the face of the record to justify interference by a writ Court with such conclusion on fact. I also find that liberty was given to the Deputy Commissioner to take an appropriate decision to review the earlier order passed on 31.5.2005 against the petitioner, in the context of the stand taken by the Tribal Sangha. 28. Bearing in mind the aforesaid direction of the Court given on 14.3.2008, when this Court finds that the decision has been taken by primary authorities like the Deputy Commissioner, the Additional Deputy Commissioner and an interested party like Tribal Sangha on the basis of a perverse report dated 28.11.2001 given by the Circle Officer (Annexure A in Deputy Commissioner's counter), it is apparent that the said factual decisions of the primary authorities have been vitiated and the error of the decisions is apparent on the face of the record, since both Rameshwar Nath and Rameshwar Rabha, whose statements were made the basis for the Circle Officer's conclusion for his report on 28.11.2001, have categorically stated that during the enquiry by the Circle Officer, they supported the tribal status claim of the petitioner, notwithstanding the change of surname by the father and some other relatives of the petitioner. 29. 29. Having concluded as above, I find that the exercise ordered to be carried out by this Court by the judgment and order dated 14.3.2008, was not carried out properly in terms of the Court's direction as I find that the 2nd letter dated 18.4.2008 of Tribal Sangha to withdraw the petitioner supportive 1st letter dated 20.2.2002 was issued, without there being any inquiry or fresh material and only on the basis of the aforenoted perverse enquiry report of the Circle Officer (respondent No. 3). 30. It is also seen that although this Court gave direction on 14.3.2008 to the Deputy Commissioner to hear the petitioner as well as the contesting party, the Deputy Commissioner, as can be seen from the communication dated 24.4.2008 and also from the various communications of the respondent No. 9, decided to delegate the said responsibility of hearing to the Tribal Sangha and no hearing was afforded to the petitioner by the Deputy Commissioner himself, before the impugned decision was rendered on 26.5.2008 (Annexure 28). 31. In the above view of the matter, I find enough justification to interfere with the said order of the Kamrup Deputy Commissioner, Kamrup which I hereby do. 32. After pronouncement of the above order in open Court, Mr. R.K. Bora, learned Government Advocate has produced a notification dated 18.5.2009 issued by the Commissioner Secretary to the Government of Assam, WPT & DC Department to show that the Assam Government has now constituted a State Levels Scrutiny Committee, for verification of the social status of reserved category persons, as per the order passed by the Supreme Court in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development reported in (1994) 6 SCC 241 and he submits that in view of the quashing of the findings recorded by the Deputy Commissioner, the status of the petitioner should be referred to for inquiry and verification before the State Level Scrutiny Committee constituted by the notification dated 18.5.2009. 33. Normally when the exercise earlier ordered by the Court on 14.3.2008 is held to have been inappropriately exercised the fresh scrutiny should be by the very same authority But at the time of Court's earlier order, no State Level Scrutiny Committee was notified as per order of the Supreme Court, and such matters were being examined by the DCs and SDOs. But now that a State Level Scrutiny Committee has been constituted to specifically to deal with such matters, the views of the counsels appearing for the parties were sought as to whether, whey would agree to scrutiny of the status of the petitioner, by the State Level Scrutiny Committee constituted by the Government in terms of the Supreme Court order in Kumari Madhuri Patil's case. All the counsels appearing before the Court including the counsel appearing for the writ petitioner and for the respondent No. 7 have stated that the fresh scrutiny and consideration should now be made by the committee as notified on 18.5.2009 by the State Government. 34. In view of the above agreement, I now close this petitions by directing that the State Level Scrutiny Committee would verify the claim of the petitioner as to whether she is a person belonging to the "Rabha" community and is entitled to claim Scheduled Tribe (P) status, to justify her selection for LPG dealership at Chaygaon under BHPL. As sufficient time has already elapsed due to litigations at various levels, the fresh exercise is to be carried out expeditiously and ordered to be concluded within a period of 3 months from the date of receipt of a copy of this order. It is made clear that the State Level Scrutiny Committee will make their independent inquiry and will not take into account the report dated 28.11.2001 of the then Circle Officer, Palasbari Revenue Circle (respondent No. 3), which has been held to be a perverse report. 35. The Scrutiny Committee would give appropriate opportunity to the parties in terms of the decision given by the Supreme Court in Kumari Madluri Patil (supra). 36. It is also made clear that till decision is given by the above Committee on the status of the petitioner, the respondent authorities would not do anything which would undermine the selection result declared on 30.8.2001 by the BHPL, with regard to the LPG dealership at Chaygaon. A copy of this order be furnished to Mr. R.K. Bora, learned Government Advocate for appropriate communication.