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2010 DIGILAW 111 (GAU)

Subodh Debbarma v. State of Tripura

2010-02-15

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari. J. 1. The petitioner obtained a certificate, in the year 1977, issued by the District Collector, West Tripura, to the effect that the petitioner belongs to Tripuri community, which stands recognised as a Scheduled Tribe. Having been appointed as a Lower Division Clerk under the Directorate of Higher Education, Tripura, the petitioner joined his duty on 23.8.1979. On 17.8.1984, the petitioner was promoted to the post of Upper Division Clerk and, thereafter, he was also promoted to the post of Accountant on 12.7.1990. When the petitioner's promotion to the post of Office Superintendent fell due, a complaint was made to the respondent No. 5, namely, District Magistrate and Collector, West Tripura, Agartala, to the effect that the Scheduled Tribe Certificate, issued to the petitioner in the year 1977, was not genuine. The petitioner was accordingly asked by the respondent No. 5 to produce the original documents in support of his claim that he belongs to Tripuri community and, upon enquiry, made in this regard, by respondent No. 5, when respondent No. 5 found that the said certificate was genuine, the petitioner was promoted to the post of Office Superintendent as indicated hereinbefore. 2. 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, Government 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, ('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. 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 ('the SLSC'). There are two SLSCs, one for the Scheduled Tribes and the other for Scheduled Castes. 3. 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 ('the SLSC'). There are two SLSCs, one for the Scheduled Tribes and the other for Scheduled Castes. 3. Acting on a complaint received against the petitioner, while he was serving as Office Superintendent, to the effect that the petitioner had obtained Scheduled Tribe Certificate by making misrepresentation of fact that he is a member of Tripuri community, though he, in fact, belongs to Laskar community, which is not recognized as Scheduled Tribe, in the State of Tripura, under the relevant Presidential order, a notice to show-cause was issued, on 6.6.2005, by respondent No. 7, namely, Member-Secretary, State Level Scrutiny Committee, Government of Tripura, directing the petitioner to show-cause as to why his Scheduled Tribe Certificate be not cancelled. The notice aforementioned was accompanied by an enquiry report, which had been carried out by the Special Vigilance Cell, which is constituted, in this regard, under the said Act and the Rules. The petitioner submitted his representation, on 29.6.2005, to the respondent No. 7, i.e., Member-Secretary, State Level Scrutiny Committee, Government of Tripura, asserting that he was a member of Tripuri community, the complaint, made against him, was wholly baseless and that the complaint was aimed at harassing him. By his said representation, the petitioner requested respondent No. 7 to allow him to cross-examine those persons, who had purportedly made statements in the said enquiry and whose statements were being relied upon for the purpose of cancelling the petitioner's Scheduled Tribe Certificate. By his said representation, the petitioner also requested respondent No. 7 to allow him to adduce evidence in support of his assertion that he was a member of Tripuri community. By his said representation, the petitioner also requested respondent No. 7 to allow him to adduce evidence in support of his assertion that he was a member of Tripuri community. A notice, addressed to the petitioner, was then, issued, on 25.10.2006, by the respondent No. 7, informing the petitioner that considering the fact that the petitioner had, while making representation to the show-cause notice issued to him, sought for an opportunity of being heard and adduce evidence, he shall appear, either in person or through his authorised representative, before respondent No. 6, namely, Chairman, State Level Scrutiny Committee, in the premises of the Directorate of Tribal Welfare, on 20.11.2006, at 11 a.m. This notice also made it clear that if the petitioner fails to appear, either personally or through his authorised representative, on the date, time and venue as mentioned hereinbefore, the matter would be decided ex parte. On his appearance as had been directed by the notice, dated 25.10.2006, the petitioner made another representation, wherein, while claiming that he was a member of a Tripuri community, he renewed his request that he be allowed to cross-examine the person(s) on the basis of whose statements, his status as a member of the Tripuri community was being doubted. By his said representation, the petitioner also made it clear that he would demolish the enquiry report if he was given an opportunity to cross-examine the witnesses. The petitioner, therefore, once again, requested to allow him to cross-examine those witnesses on whose statements his status as a member of Tripuri community was being doubted and also to allow him to adduce evidence. No order, on this representation, was made: but an order was issued, on 4.1.2010, by the respondent No. 3 stating therein to the effect, inter alia, that the petitioner does not belong to Tripuri community, inasmuch as he was a member of Laskar community, which was not recognised as a Scheduled Tribe in the State of Tripura. No order, on this representation, was made: but an order was issued, on 4.1.2010, by the respondent No. 3 stating therein to the effect, inter alia, that the petitioner does not belong to Tripuri community, inasmuch as he was a member of Laskar community, which was not recognised as a Scheduled Tribe in the State of Tripura. Since the petitioner had enjoyed his seniority and promotional benefits as a reserved category candidate, whereas he ought to have been treated, in terms of the order, dated 4.1.2010, as a member of unreserved category, his promotion to the post of Office Superintendent too was withdrawn, he was reverted to the post of UDC as held by him on 11.7.1990 and it was made clear by the order, dated 4.1.2010, aforementioned, that the petitioner would enjoy the seniority and promotional benefits as an unreserved category candidate. By the order, dated 4.1.2010, aforementioned, it was further directed that the payments made to the petitioner on his promotion to the post of Office Superintendent be also recovered and an entry, in this regard, be made in the service record of the petitioner. It is the order, dated 4.1.2010, which stands impugned by the petitioner, in this writ petition, made under Article 226 of the Constitution of India, wherein the petitioner contends that the complaint, made against him, is wholly false and motivated and that the complaint is aimed at denying him promotion to the post of Accountant and that he had not been given any opportunity to cross-examine those witnesses, who had been examined by the Vigilance Cell, and on whose statements, the petitioner was being treated as a member of Laskar community. 4. I have heard Mr. K.N. Bhattacharjee, learned senior Counsel, for the petitioner, and Mr. T.D. Mazumdar, learned Additional Government Advocate, appearing on behalf of the respondents. 5. 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 7A, shall be followed. 6. From a close examination of the procedure, which Rule 7A prescribes, it becomes clear that the Director of Vigilance shall, under Rule 7A(2), constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall 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 7A 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 7A(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 7A(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 7A(4) lays down that in case, the certificate holder seeks an opportunity of hearing and claims an 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 7A(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 7A(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. 7. From the scheme of Sub-rule (4) of Rule 7A, 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 ho so chooses, to adduce his own evidence in support of his claim that he is a member of the community, which he was certified to he. Opportunity of hearing shall also include a right to the proceedee, if ho so chooses, to adduce his own evidence in support of his claim that he is a member of the community, which he was certified to he. Having held enquiry 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. 8. In the present case, the petitioner had been demanding that he be allowed to cross-examine the witnesses, whose statements were being relied upon by the authorities concerned for the purpose of treating the petitioner as a member of Laskar community. However, the authorities concerned have not allowed the petitioner to cross-examine the witnesses aforementioned. In such circumstances, cancellation of the petitioner's community certificate, on the ground that the petitioner does not belong to Tripuri community, is illegal and cannot but be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India. 9. In view of the above and in view also of the fact that the impugned order, reverting the petitioner to the post of UDC, and the consequential directions, issued in this regard, are all based on the order made by the respondent No. 7 cancelling the petitioner's community certificate, all these directions too need to be interfered with. 10. In the result and for the reasons discussed above, this writ petition partly succeeds; The cancellation of the petitioner's ST certificate as well as the impugned order are hereby set aside and quashed. The matter is remanded to the respondent No. 7, namely, Member Secretary, State Level Scrutiny Committee, Government of Tripura, Agartala, with direction to give the petitioner 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 belongs to Tripuri community and it is, thereafter, that appropriate order, in this regard, either cancelling the petitioner's ST 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 Tripuri community, it shall remain open to the respondents/authorities concerned 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. 7, can be taken by the respondents/authorities concerned in accordance with law. If, the petitioner delays disposal of the enquiry, which the respondent No. 7 is required to hold, respondent No. 7 shall remain at liberty to approach this Court for further appropriate directions. 11. With the above observations and directions, this writ petition shall stand disposed of. 12. No costs.