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2010 DIGILAW 110 (GAU)

Swapan Kumar Roy v. State of Tripura

2010-02-15

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. The petitioner obtained a certificate, issued by the District Magistrate and Collector, Tripura, to the effect that the petitioner is a member of Scheduled Caste. After issuance of the said certificate, the petitioner came to be appointed, as an Assistant Teacher, in the month of July, 1970, by the Director of Higher Education, Tripura. While serving as an Assistant Teacher, the petitioner applied for the post of Inspector under the Customs and Central Excise, Government of India. After his selection, the petitioner received an offer of appointment to the post of Inspector of Customs and Central Excise subject to verification of his document(s) relating to his status as a member of Scheduled Caste. On verification, the petitioner was found to be a member of Scheduled Caste and he was accordingly appointed to the post of Inspector under the Customs and Central Excise, Government of India, and he joined his duties on 10.11.1980. In course of time, the petitioner was promoted to the post of Superintendent of Customs and Central Excise and, then, on ad hoc basis, as an Assistant Commissioner, Customs and Central Excise. While the petitioner was so serving as Assistant Commissioner, a notice, dated 5.8.2005, was issued by the District for Welfare of SC and OBCs, Govt. of Tripura, directing the petitioner to show cause as to why the certificate, which stood issued to the petitioner certifying him to be a member of the Scheduled Caste, be not cancelled on the ground that an enquiry, conducted by the Vigilance Cell, had revealed that the petitioner is not a member of scheduled caste. With the said notice to show cause, a copy of the enquiry report, conducted by the Vigilance Cell, was also enclosed. Responding to the notice to show-cause, the petitioner addressed a letter, dated 17.8.2005, to the Director for Welfare of Scheduled Caste and OBCs. Govt. of Tripura, seeking to have a copy of the complaint received by the authorities concerned. With the said notice to show cause, a copy of the enquiry report, conducted by the Vigilance Cell, was also enclosed. Responding to the notice to show-cause, the petitioner addressed a letter, dated 17.8.2005, to the Director for Welfare of Scheduled Caste and OBCs. Govt. of Tripura, seeking to have a copy of the complaint received by the authorities concerned. While the petitioner alleges that he had not been furnished the copy of the complaint, which had allegedly led to the whole enquiry and which was being relied upon by the State Level Scrutiny Committee (in short, 'the SLSC) constituted as per the provisions contained in Tripura Scheduled Caste and Scheduled Tribe Reservation Rules, 1992, the respondents claim that the copy of the complaint, as had been sought for by the petitioner, was sent to his address. The petitioner, however, denies receipt of the same by contending that he no longer lives at the address to which the copy of the complaint is claimed to have been sent. It is in this backdrop of facts that an order was passed, on 16.9.2009, by the SLSC, cancelling the petitioner's said scheduled caste certificate. By making this writ application, under Article 226 of the Constitution of India, the petitioner had put to challenge the order, dated 16.9.2009, seeking to get the same set aside and quashed. 2. I have heard Mr. A.M. Lodh, learned senior counsel, for the petitioner, and Mr. T.D. Mazumdar, learned Additional Govt. Advocate, appearing on behalf of the respondents. 3. Following the directions, issued by the Supreme Court, in Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors. 1994 (6) SCC 241 , which were reiterated in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri and Anr. 1995 (4) SCC 32 , the Tripura Scheduled Caste and Scheduled Tribe Reservation Act, 1991, has been enacted and Tripura Scheduled Caste and Scheduled Tribe Reservation Rules, 1992, (hereinafter referred to as 'the Rules') has been framed under the said enactment in tune with the directions, issued in Kumari Madhuri Patil (supra). The Rules provide, for constitution of two different scrutiny committees. A scrutiny committee is, according to Rule 2 (1) (g) of the Rules, a committee constituted by the State Government for verification of community certificate and also cancellation of community certificate. The Rules provide, for constitution of two different scrutiny committees. A scrutiny committee is, according to Rule 2 (1) (g) of the Rules, a committee constituted by the State Government for verification of community certificate and also cancellation of community certificate. Rule 5 embodies the procedure for issuance of certificate and Rule 6 provides for cancellation thereof. The scrutiny committee is popularly known as State Level Scrutiny Committee (in short, 'the SLSC'). There are two SLSCs, one for the Scheduled Tribes and the other for Scheduled Castes. 4. While considering the present writ petition, it needs to be noted, as already indicated above, that Rule 6 embodies provisions for cancellation of Scheduled Tribe as well as Scheduled Caste certificates. Rule 6 provides that an authority, who issues such a certificate, may, at a subsequent stage, cancel the certificate if after an enquiry and after giving the party concerned an opportunity of being heard, the authority finds that the person, to whom the community certificate was issued, does not actually belong to the Scheduled Caste or Scheduled Tribe, as the case may be. Having, thus, empowered the Scrutiny Committee, which is the competent authority, to cancel the ST certificate, which might have been issued to a person, who may not belong to a Scheduled Caste or Scheduled Tribe community. Rule 6 lays down that in order to arrive at a decision whether the community certificate, granted to a person, shall, or shall not, be cancelled, the procedure, prescribed by Rule 7-A shall be followed. 5. From a close examination of the procedure, which Rule 7-A prescribes, it becomes clear that the Director of Vigilance shall, under Rule 7-A (2), constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of police inspectors and sub-inspectors to investigate into the community status and claims as may be required. Sub-Rule (3) of Rule 7-A provides that the investigating officer shall go to the local place of residence and also the original place from which the candidate hails and usually resides or, in case of migration to the town or city, the place from which he originally hailed. Sub-Rule (3) of Rule 7-A provides that the investigating officer shall go to the local place of residence and also the original place from which the candidate hails and usually resides or, in case of migration to the town or city, the place from which he originally hailed. Rule 7 also provides that the investigating officer shall personally verify and collect all the facts of the social status claimed by the certificate holder or the parent or guardian, as the case may be, examine the school records, birth registration, etc., and examine the parent, guardian or the certificate holder in relation to their caste or such other persons, who have knowledge of the community status of the certificate holder, and submit a report to the Director of Vigilance, who shall verify the correctness of the report and transmit the same to the Member-Secretary of the concerned Scrutiny Committee. Rule 7-A(4) further provides that if the Member-Secretary of the Scrutiny Committee concerned, on receipt of a report from the Director of Vigilance, finds that the claim for community status is not genuine, doubtful, spurious, false or wrongly claimed, the Member-Secretary shall issue show-cause notice supplying a copy of the report of the Vigilance Officer to the community certificate holder by registered post with AD or through the head of the institution of the office in which the certificate holder is studying or employed. According to Rule 7- A(4), the show cause notice shall indicate that the representation or reply, if any, shall be made within two weeks from the date of receipt of the notice and, in no case, not more than 30 days from the date of receipt of the notice. Rule 7-A (4) lays down that in case, the certificate holder seeks an opportunity of hearing and claims at inquiry to be made in that behalf, the Member-Secretary, on receipt of such representation/reply, shall convene a meeting of the committee and the Chairperson of the Committee shall give a reasonable opportunity to the certificate holder and if, the certificate holder is a minor, to the parent/guardian to adduce all evidence in support of his claim and after giving such an opportunity, in person or through counsel, the Committee shall make such inquiry as it deems expedient and consider the claim as well as the objection raised by the certificate holder. Rule 7-A(5) provides that if the enquiry report is in favour of the certificate holder and found to be genuine or true, no further action shall be taken. Rule 7-A(6) lays down that the inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months and if, after the enquiry, the Committee finds the claim to be false, the Committee shall pass an order cancelling or confiscating the certificate. 6. From the scheme of Sub-Rule (4) of Rule 7-A, what becomes clear is that opportunity of hearing has to be accorded to the person, whose community certificate is sought to be cancelled. Such a hearing would, obviously, include the right of the person, proceeded against, to cross-examine all such person(s), whose statements were recorded by the vigilance cell and, depending on whose statements, it was opined by the vigilance cell that the holder of the certificate was not a member of the community to which he is certified and/or that the claim of the community status of the person, proceeded against, is not genuine, doubtful, false or wrong. Opportunity of hearing shall also include a right to the proceedee, if he so choose, to adduce his own evidence in support of his claim that he is a member of the community, which he was certified to be. Giving an opportunity to the proceedee to 'have his say in the matter' would be meaningless unless a copy of the complaint and/or statement(s) of the witnesses, who may have been examined by the officer of the Vigilance Cell, be furnished to the proceedee, particularly, when, the proceedee requests for making available to him such copies. Having held enquiry in the manner as mentioned hereinbefore, if the competent authority comes to the conclusion that the person, proceeded against, does not belong to the community, which he claims to belong to, his certificate shall be cancelled. Cancellation of such a certificate cannot be questioned by any suit or proceeding except in a Court lower than the Court of District Judge. 7. In the case at hand, this Court does not find that issuance of the show-cause notice by the SLSC was illegal when the investigation, conducted by the Vigilance Cell, had revealed that the petitioner was not a member of Scheduled Caste. 7. In the case at hand, this Court does not find that issuance of the show-cause notice by the SLSC was illegal when the investigation, conducted by the Vigilance Cell, had revealed that the petitioner was not a member of Scheduled Caste. In was in order to determine the correctness of this enquiry report that the said notice to show cause was issued to the petitioner. Hence, issuance of the show-cause notice cannot be said to be illegal or improper. 8. What is, now, of utmost importance to note is that the petitioner is entitled to receive a copy of the complaint if he so wishes and also copies of the statement of the witnesses, whose statements were being relied for the purpose of taking the view that the petitioner does not belong to Scheduled Caste. In this regard, I have already pointed out above, that there is a dispute as to whether a copy of the complaint, as had been sought for, by the petitioner, had or had not been made available to him. 9. Without, therefore, determining the correctness or veracity of the statement made by the petitioner that he had not received the copy of the complaint, because the same had been sent to an address, where the petitioner no longer lives, this Court is of the view that it would be, in the interest of justice, appropriate if a copy of the complaint and also the statement of the witnesses, which the Scrutiny Committee relies upon, be furnished to the petitioner, the petitioner be allowed to file his written statement responding to the said notice of show cause and, therefore, the Scrutiny Committee shall hold an enquiry, wherein the petitioner may cross-examine the witnesses and also adduce his evidence. 10. In the result and for the reason discussed above, this writ petition partly succeeds. The cancellation of the petitioner's ST certificate, by the impugned order, dated 16.9.2009, is hereby set aside and quashed. 10. In the result and for the reason discussed above, this writ petition partly succeeds. The cancellation of the petitioner's ST certificate, by the impugned order, dated 16.9.2009, is hereby set aside and quashed. The matter is hereby remanded to the respondent No. 3, namely, Member Secretary, State Level Scrutiny Committee, Government of Tripura, Agartala, with direction to furnish to the petitioner a copy of the complaint aforementioned and also copies of the statements of the witnesses, who have been examined by the Vigilance Cell and, then, also to provide to the petitioner an opportunity, if the petitioner so requires, an opportunity to cross-examine the witnesses aforementioned and also to give the petitioner an opportunity of adducing his own evidence in support of his claim that he is a member of Scheduled Caste and it is, thereafter, that appropriate order(s), in this regard, either cancelling the petitioner's SC certificate or upholding the same may be passed. The whole exercise, so directed, shall be completed expeditiously and until the time the enquiry is completed and a decision is taken by the competent authority as regards petitioner's status as a member of the Scheduled Caste, it shall remain open to the respondents/authorities concerned not to regularise his ad hoc promotion and/or not to grant any further promotion to the petitioner. Consequential action depending upon the result of the enquiry which may be held by the respondent No. 3, may be taken by the respondents/authorities concerned in accordance with law. If the petitioner delays disposal of the enquiry, which the respondent No. 3 is required to hold, respondent No. 3 shall remain at liberty to approach this Court for further appropriate directions. 11. With the above observations and directions, this writ petition shall disposed of. 12. No costs. Petition allowed.