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2014 DIGILAW 225 (TRI)

Basana Debbarma v. State of Tripura

2014-06-16

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Briefly stated, the undisputed fact unfolded in the writ petition is that the petitioner was appointed as the Lower Division Clerk (the 'LDC' in short) on 07.03.1981 against a vacancy reserved for the Scheduled Tribe (ST) candidates and her service was confirmed as the LDC on 21.07.1983. She was promoted to the post of UDC on 08.05.1987 against a vacancy reserved for the ST category candidates. 2. On the basis of a complaint, the State Level Scrutiny Committee had issued a show cause notice on the petitioner on 17.03.2005, Annexure-2 to the writ petition, alongwith a report of the Vigilance Officer, calling her response thereto. In the report of the Vigilance Officer, it has been observed that the petitioner does belong to the 'Laskar' Community and, as such, the status certificate issued by the District Magistrate and Collector, West Tripura recognising her as a member of the Scheduled Tribe Community vide No. 285/DM/GL/W/77, dated 28.04.1977 be cancelled, as the said certificate had been issued on misrepresentation of the fact. The petitioner did not contest that report as well as did not participate in the proceeding, launched by the State Level Scrutiny Committee. Based on the said report of the Vigilance Officer, the status certificate of the petitioner, issued on 28.04.1977 was cancelled by the order dated 21.07.2007, Annexure-3 to the writ petition, with the following observation: On careful examination of available records submitted by the Vigilance Cell collected during enquiry, the Committee has come to the conclusion that Smti. Basana Debbarma belongs to Laskar Community. The ST certificate bearing No. 285/DM/GL/W/77 dated 28-4-77 held by Smti. Deb Barma is no longer valid after the issue of Notification No. 38296-396/F.6-4(C-D)/TW/89 dated 31/3/90. So the Scheduled Tribes certificate is hereby cancelled and Smti. Basana Debbarma is directed to return the original ST certificate to the Director, Tribal Welfare Deptt., Government of Tripura, Gurkhabosti, Agartala immediately. The order dated 21.07.2007 passed by the State Level Scrutiny Committee was never challenged or disputed by the petitioner. 3. In compliance to the direction contained in the order dated 21.07.2007, the petitioner had returned her original ST Certificate to the Director, Tribal Welfare Department, Govt. of Tripura and that fact is evident from the communication dated 20.03.2008, Annexure-1 to the writ petition and the communication dated 13.02.2008, Annexure-4 to the writ petition. 4. Mr. 3. In compliance to the direction contained in the order dated 21.07.2007, the petitioner had returned her original ST Certificate to the Director, Tribal Welfare Department, Govt. of Tripura and that fact is evident from the communication dated 20.03.2008, Annexure-1 to the writ petition and the communication dated 13.02.2008, Annexure-4 to the writ petition. 4. Mr. P.K. Biswas, learned senior counsel appearing for the petitioner has submitted that when the petitioner was appointed on promotion to the post of Head Clerk by the Office Order dated 23.02.2007, Annexure-5 to the writ petition, the petitioner came forward of her own and communicated that since she does belong to the 'Laskar' Community after 31.03.1990, she can no longer be treated as the Scheduled Tribe candidate. She urged for cancellation of the said order of promotion to the post of the Head Clerk. On receipt of the order dated 20.09.2007 from the State Level Scrutiny Committee, the Chief Engineer, PWD(R & B), the appointing authority of the petitioner, by issuing the Memorandum dated 01.12.2008, Annexure-7 to the writ petition, held that the competent authority had provisionally decided to dismiss the petitioner from service for obtaining and holding false ST Certificate. However, the petitioner had been given opportunity to make her representation. 5. In response to the said Memorandum dated 01.12.2008, the petitioner had filed an elaborate representation on 26.12.2008, Annexure-9 to the writ petition, whereby she had stated inter alia that: That the order dated 21.7.2007 issued by the State Level Scrutiny Committee which was communicated by the Member Secretary, State Level Scrutiny Committee, Director of Tribal Welfare Deptt. vide his letter dated 20.9.2007 as mentioned in the memorandum dated 1.12.2008 issued by your honour will show that there is no allegation that by misrepresentation of fact I have obtained the ST Certificate and there is no finding that the ST Certificate issued in my favour was cancelled on the ground that I have obtained the said certificate by misrepresentation of fact, but the same was cancelled as I belongs to Laskar Community and the member of Laskar Community were favoured with ST certificate as decided by the Govt. of Tripura which was subsequently withdrawn and the said order was challenged and the same was finally decided by the Hon'ble Supreme Court as mentioned above by holding that the decision of the Govt. of Tripura which was subsequently withdrawn and the said order was challenged and the same was finally decided by the Hon'ble Supreme Court as mentioned above by holding that the decision of the Govt. that the Laskar Community do not belongs to ST and the benefits already availed by the Members of Laskar Community as ST on the basis of the certificate issued by the State Govt. will not be withdrawn till the decision of the Union of India and if it is decided by the Union of India that the Members of Laskar Community do not fall under the category of ST, in that case, the State Govt. will be at liberty to take appropriate action as per law, but the benefits already accrued on the basis of ST Certificates will not be disturbed but they will not get any benefit in future on the basis of those certificates and accordingly the Govt. of Tripura by Notification No. 38296-396/F.4(C-D)/TW/89 dated 31.3.1990 of Tribal Welfare Deptt., stating that Laskar Community are not ST and in view of notification dated 31.3.1990 the benefits availed by the Members of Laskar Community on the basis of ST certificate were not disturbed and accordingly I also did not avail any benefit on the basis of ST certificate after 30.3.1990 and as such in view of the above facts and circumstances your honour would be kind enough holding that I am not guilty of any misrepresentation of fact and accordingly your honour would be kind enough not to take any action against me and oblige thereby. 6. Notwithstanding what the petitioner had stated in her representation dated 26.12.2008, the petitioner has been sought to be terminated from the Government service with immediate effect by the Memorandum dated 15.01.2009, Annexure-8 to the writ petition. The said Memorandum dated 15.01.2009 is under challenge in this writ petition. 7. Mr. S. Chakraborty, learned Addl. Govt. Advocate appearing for the respondents has referred to the statement made by the respondents in the counter-affidavit, which reads as under: It is a fact that the "Laskar" Community was treated as ST Community, but subsequently it was withdrawn by the Government of Tripura vide Memo No. 38296-396/F.6-4(C-D)/TW/89 dated 31-3-1990 as per judgment of Hon'ble Supreme Court of India in Civil Appeal No. 479 between Srish Ch. Chaudhury Vrs. State of Tripura & Others. Chaudhury Vrs. State of Tripura & Others. The ST Certificate was issued in favour of the petitioner not as a Laskar Community but as a Tripuri Community. The petitioner neither surrendered her ST Certificate nor approached the District Authority for modification of her community. Mr. Chakraborty, learned Addl. Govt. Advocate has further contended that the petitioner while obtaining the ST Certificate, had represented her as the member of the 'Tripuri' Community, not as a member of the 'Laskar' Community. As such, the petitioner cannot now be treated as the member of the 'Laskar' Community and that she cannot get the benefits as extended by the Notification dated 31.03.1990. Had the petitioner claimed to be the member of the 'Laskar' Community, she would have been allowed to enjoy the benefit that she would have derived from the ST Certificate, but for her suppression and misrepresentation of the material fact she was issued with the certificate designating her to be a member of the 'Tripuri' Community. However, Mr. Chakraborty, learned Addl. Govt. Advocate has admitted that the petitioner does belong to the 'Laskar' Community. In para 14 of the counter-affidavit, the respondents have referred the report of the Vigilance Officer, where it has been observed that the petitioner belongs to the 'Laskar' Community and the status certificate obtained by the petitioner was a false one, which was issued on incorrect information. Thus, there is no infirmity in the impugned order calling for interference. 8. What has surfaced from the above averments is that there is no dispute that the petitioner does belong to 'Deshi Tripura (Laskar)' Community, which was treated as a part and parcel of the 'Tripuri' Community and, as such the members of that community were getting the benefits as the Scheduled Tribes in the State of Tripura. After the judgment of the apex court in B. Basavalingappa Vs. D. Munichinappa & Ors., reported in (1965) 1 SCR 316 : AIR 1965 SC 1269 , these persons were de-recognised as the Scheduled Tribes in the State of Tripura. In view of the said judgment of the apex court, it was considered necessary that the synonyms of sub-caste/tribe of various recognised Scheduled Tribes notified in the Presidential Order should be re-determined and the order modified to incorporate the genuine synonyms and sub-caste/tribe. In view of the said judgment of the apex court, it was considered necessary that the synonyms of sub-caste/tribe of various recognised Scheduled Tribes notified in the Presidential Order should be re-determined and the order modified to incorporate the genuine synonyms and sub-caste/tribe. This question was gone into by the Lokur Committee as well as by the Joint Committee on the Scheduled Caste and Scheduled Tribe Order (Amendment) Bill, 1967. Both those Committees did not recognise 'Deshi Tripura' as a synonym or sub-tribe of Tripura Tribe. Ultimately, by the Memorandum No. 18887-19077/TW/6-4(L-D)79, dated 28.04.1979, it had been decided after careful examination of the matter, in consultation with the Law Department, that the certificates issued by the various authorities of Tripura showing the 'Laskar Community' as Scheduled Tribes are to be treated as infructuous. The said memorandum dated 28.04.1979 was challenged in the representative capacity by one Srish Chandra Choudhury by filing the writ petition, being Civil Rule No. 139/1979 and the petition was decided by the Gauhati High Court on 18.03.1985: (1985) 2 GLR 117. The High Court did not interfere with the decision of the State, not to treat the 'Laskar' Community any longer as the Scheduled Tribe in the State of Tripura and to declare the Scheduled Tribe Certificates made in favour of the members of the 'Laskar' Community as infructuous. However, in the said judgment it has been recorded as under: We keep on record the statement made by the learned Advocate-General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887/19077/TW/6-4(L-D) dated 28-4-79 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificate they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively, in so far as the future benefits are concerned. 9. The said decision of the Gauhati High Court had been challenged before the apex court. The apex court, by the judgment and order dated 23.02.1990 delivered in Civil Appeal No. 479/1986: AIR 1990 SC 991 , has affirmed the decision of the High Court and dismissed the claim of the writ petitioner. 9. The said decision of the Gauhati High Court had been challenged before the apex court. The apex court, by the judgment and order dated 23.02.1990 delivered in Civil Appeal No. 479/1986: AIR 1990 SC 991 , has affirmed the decision of the High Court and dismissed the claim of the writ petitioner. But, the apex court while dismissing the appeal, has observed as under: The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdiction and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities concerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the tribes is genuine and should, therefore, be entertained. 10. After the said judgment reported in AIR 1990 SC 991 , the Govt. of Tripura had issued the Notification No. 38296-396/F.6-4(C-D)/TW/89, dated 31.03.1990, communicating that no benefit would be extended to any person who had enjoyed the benefit of ST Community as the member of the 'Laskar' Community, which was earlier treated as part of the Tripura, Tripuri, Trippera Community with immediate effect. This cut-off date is not in dispute in any manner. The solitary question that remains to be responded to is whether the petitioner by claiming that she belonged to 'Tripuri' Community, has deliberately caused misrepresentation of fact for obtaining the status certificate or not. According to the respondents, the petitioner had caused misrepresentation by designating her as the member of the 'Tripuri' Community and, as such, her status certificate was liable to be cancelled. The petitioner was not entitled to any benefit by virtue of the Notification dated 31.03.1990. 11. From the decision in Srish Chandra Choudhury, it is apparent that both the High Court and the Apex Court held that previously the 'Deshi Tripura (Laskar)' Community was treated to be part and parcel of the Tripura, Tripuri and Trippera Community. Thus, even if the petitioner, belonging to the 'Deshi Tripura (Laskar)' Community, had claimed that she belonged to the 'Tripuri' Community, it could not constitute misrepresentation in the context of this case. Thus, even if the petitioner, belonging to the 'Deshi Tripura (Laskar)' Community, had claimed that she belonged to the 'Tripuri' Community, it could not constitute misrepresentation in the context of this case. Moreover, the State Level Scrutiny Committee has nowhere in their order held that for misrepresentation, the status certificate of the petitioner has been cancelled. From the order dated 21.07.2007, it would be apparent that the basis of the cancellation of the status certificate of the petitioner was that the petitioner belongs to the 'Laskar' Community. This aspect that the 'Deshi Tripura (Laskar)' was treated part and parcel of Tripura, Tripuri and Trippera Community had never fallen for inquiry and the petitioner was not given any opportunity to have her say on that aspect. Thus, without affording any opportunity to the petitioner, any decision if taken, is bound to be in contrast to the principles of natural justice. Principles of natural justice is one of the fundamental facets of the Rule of law and the respondents cannot be allowed to perish any limb of the rule of law. Hence, the plea of the respondents for terminating the petitioner from her service is unsustainable. 12. Since there is no dispute that the petitioner does belong to the 'Deshi Tripura (Laskar)' Community, the petitioner is entitled to get all benefits of the said Notification No. 38296-396/F.6-4(C-D)/TW/89, dated 31.03.1990. Hence, the benefits including her promotions, which the petitioner had enjoyed anterior to 31.03.1990 cannot be disturbed by the respondents. As such, the impugned order of termination dated 15.01.2009, Annexure-8 to the writ petition, cannot survive and, accordingly, the same is interfered with and set aside. It is made clear that the petitioner will not get any further benefit whatsoever and she shall be treated as the un-reserved category since 01.04.1990. Since, by virtue of the interim orders dated 24.02.2009 and 06.04.2009, delivered in C.M. Appl. No. 69/2009, arising from this writ petition, the petitioner has been continuing in the service, no further consequential order needs to be passed. 13. In the result, this writ petition stands allowed. There shall be no order as to costs.