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2014 DIGILAW 49 (TRI)

Manoj Kumar Majumder v. State of Tripura

2014-02-05

U.B.SAHA

body2014
JUDGMENT U.B. Saha, J.:- The instant writ petition is filed by the petitioner for setting aside the order of the State Level Scrutiny Committee dated 27.06.2007 (Annexure-E to the writ petition), whereby and whereunder the State Level Scrutiny Committee cancelled the Castes Certificate dated 11.04.1978, issued by the Sub-Divisional Officer, Sonamura, West Tripura in favour of the petitioner and also directed the petitioner to return the aforesaid Scheduled Castes Certificate in original to the Director for Welfare of Scheduled Castes and OBCs within 15 days from that date and also for setting aside the order dated 05.09.2007, issued by the Member Secretary, State Level Scrutiny Committee, whereby the aforesaid order dated 27.06.2007 was communicated. Heard Mr. D. Chakraborty, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned Government Advocate appearing for the respondents. 2. The brief facts needed to be discussed are as follows: The petitioner being the member of Mahishya Das community, which has been declared as a Scheduled Castes community, as per the Presidential Order of 1950, followed by North Eastern Areas (Re-organization) Act, 1971, applied to the District Magistrate & Collector, West Tripura, Agartala for issuing a certificate showing him to be a member of Scheduled Castes community(Mahishya Das Community) and after elaborate enquiry, the District Magistrate & Collector, West Tripura, being satisfied as to the genuineness of his Castes, issued a Scheduled Castes Certificate being No. 942/DM/GL/(W)/76 dated 19.10.1976 (Annexure-A to the writ petition) in favour of the petitioner. The petitioner while studying was also allowed scholarship available to the students belonging to the Scheduled Castes community and thereafter, after completion of his studies, the petitioner made an application for his appointment to the post of Forest Ranger and being selected he was deputed to obtain Forest Rangers' training for two years in the year 1981. Ultimately he was appointed as Forest Ranger on 01.06.1982 against the quota reserved for Scheduled Castes candidates. While he was discharging the duties as Forest Ranger, he was promoted to the post of Senior Forest Ranger and then to the rank of Assistant Conservator of Forests in the year 2004, which is a cadre post incorporated in Tripura Cadre Service and both the promotions were against the reserved quota meant for the Scheduled Castes community. 2.1. While he was discharging the duties as Forest Ranger, he was promoted to the post of Senior Forest Ranger and then to the rank of Assistant Conservator of Forests in the year 2004, which is a cadre post incorporated in Tripura Cadre Service and both the promotions were against the reserved quota meant for the Scheduled Castes community. 2.1. The petitioner while receiving the benefits as a member of the Scheduled Castes community, then all on a sudden on 24.04.2007 a show cause notice was issued by the respondent No. 3, Member-Secretary (Director for Welfare of Scheduled Castes & OBCs), Tripura, Agartala, to show cause as to why his Scheduled Castes Certificate being No. 942/DM/GL/(W)/76 dated 19.10.1976 shall not be cancelled. Upon receipt of the aforesaid show cause notice, the petitioner has replied to the same through proper channel on 21.05.2007, wherein he has taken a specific plea that the Vigilance Cell after due enquiry submitted its report to the respondent No. 3, the Director of Scheduled Castes and OBCs, on 14.01.2005 and it was specifically stated that the petitioner belongs to Mahishya Das Community, which is recognized as Scheduled Castes in the State of Tripura and the Castes Certificate issued by the District Magistrate & Collector on 19.10.1976 (Annexure-A to the writ petition) was genuine and correct according to the vigilance enquiry report. But the State Level Scrutiny Committee without basing on the said vigilance report and depending upon the report of the Sub-Divisional Magistrate, Sonamura dated 21.08.1986, wherein the petitioner was shown as a member of 'Barui' community, which is not recognized as Scheduled Castes within the State of Tripura and ultimately cancelled the Certificate dated 11.04.1978, issued by the Sub-Divisional Officer, Sonamura, West Tripura, a non-existence certificate and asked the petitioner to return his Scheduled Castes Certificate to the respondent No. 3. Hence, the instant writ petition. 3. Though all the respondents are represented by Mr. T.D. Majumder, learned Government Advocate, but only the respondent Nos. 1 to 5 have submitted their counter affidavit. In the counter affidavit the respondent Nos. 1 to 5 stated that a complaint came from an inhabitant of Sonamura to the effect that the petitioner did not belong to Schedule Castes Community, but he is a member of Barujibi Community. T.D. Majumder, learned Government Advocate, but only the respondent Nos. 1 to 5 have submitted their counter affidavit. In the counter affidavit the respondent Nos. 1 to 5 stated that a complaint came from an inhabitant of Sonamura to the effect that the petitioner did not belong to Schedule Castes Community, but he is a member of Barujibi Community. The said complaint was addressed to the Director of Scheduled Castes Welfare and Religious Minority Department and the said complaint was got enquired at the local level within the jurisdiction of the Sub-Divisional Magistrate, Sonamura. Thereafter, the Sub-Divisional Magistrate had sent the matter to the Director, Schedule Castes Welfare, who in turn sent the matter to the State Level Scrutiny Committee-respondent No. 6 and the State Level Scrutiny Committee had conducted the inquiry as per settled norms following the direction of the Apex Court as well as the provisions of the Tripura SC & ST (Reservation of Vacancies and Posts) Act and Rules made there-under and thereafter the State Level Scrutiny Committee had passed the impugned order. It is further stated that the petitioner was given all opportunities, but he had misused the same, which is manifest from his representation. It is also stated that the case of the petitioner is not covered by the decision of the Gauhati High Court, Agartala Bench in Civil Rule No. 195 of 1998, as in that case, the Castes Certificate was cancelled by the authority, who had issued the said certificate and the direction of the Apex Court was not followed and on that ground, the order of cancellation of the Castes Certificate was quashed. But in the instant case, the petitioner was not denied any opportunity as required. 4. Mr. But in the instant case, the petitioner was not denied any opportunity as required. 4. Mr. Chakraborty, learned counsel for the petitioner has submitted that the whole enquiry was done by the State Level Scrutiny Committee through the Sub-Divisional Officer, Sonamura as the enquiry proceeding relating to the cancellation of the Castes Certificate of the petitioner was not only a hasty one but also without application of mind as it would be evident that though in the name of enquiry they have done so many things including the alleged opportunity given to the petitioner, but fact remains that the Certificate issued by the District Magistrate & Collector, West Tripura vide No. 942/DM/GL/(W)/76 dated 19.10.1976 was never taken into consideration and cancelled, rather a certificate dated 11.04.1978, issued by the Sub-Divisional Officer, Sonamura, West Tripura in favour of one Shri Manoj Kumar Majumder was cancelled by the State Level Scrutiny Committee and the said Certificate has also been confiscated. Placing the verification report of the Sub-Divisional Officer, Sonamura, West Tripura, Mr. Chakraborty has again submitted that the Sub-Divisional Officer, Sonamura enquired a certificate of one Sri Monoj Majumder, S/o. Late Anukul Majumder of Taijiling, at present living at Amtali, Agartala, whereas the name of the petitioner's father is late Ramoni Kumar Majumder. He has further submitted that admittedly a show cause notice was issued relating to the certificate issued by the District Magistrate & Collector, but the same has not been cancelled till date. Thus, it would be proper for the Court to set aside the impugned order dated 27.06.2007. He has also submitted that the State Level Scrutiny Committee even did not call the petitioner for adducing any evidence in support of his contention in reply to the show cause. He has further submitted that the respondents did not give any reason for non-accepting the report of the Vigilance Cell and they also acted in a mechanical way. He finally contended that the State-respondents are so vindictive that even after interim order was passed by this Court staying the order of the State Level Scrutiny Committee, they have terminated the petitioner and thereafter considering the consequences, they have revoked the said termination order. 5. Mr. Datta Majumder, learned Government Advocate, while countering the submission of Mr. He finally contended that the State-respondents are so vindictive that even after interim order was passed by this Court staying the order of the State Level Scrutiny Committee, they have terminated the petitioner and thereafter considering the consequences, they have revoked the said termination order. 5. Mr. Datta Majumder, learned Government Advocate, while countering the submission of Mr. Chakraborty, learned counsel for the petitioner, has referred to paragraph-7 of the counter, which has already been referred by this Court while narrating the case of the respondents. He has further submitted before the Court that paragraph-8 of the impugned order is nothing but a clerical mistake, which should be allowed to be corrected. Mr. Datta Majumder, in his usual fairness, has also submitted that the intention of the State Level Scrutiny Committee was to cancel the certificate issued by the District Magistrate & Collector (Annexure-A to the writ petition), but wrongly it has cancelled the certificate issued by the Sub-Divisional Officer, Sonamura, a non-existence document. 6. Having heard the learned counsel for the parties and on going through the records, it appears that the State Level Scrutiny Committee in the impugned order even did not say anything as to why it has not relied upon the report of the Vigilance Cell though the said Vigilance Cell enquired the status of the petitioner in details. The Sub-Divisional Officer in his letter of verification dated 27.08.1996 stated that the Scheduled Castes Certificate of the persons including the petitioners were placed before the Scheduled Castes Welfare Sub-Committee in its meeting held on 05.08.1996 at Melagarh Block Office and after examination of the cases, the Committee has opined that those persons belong to 'Barui' Community, which is not recognized as Scheduled Castes. It appears from the impugned order that the State Level Scrutiny Committee has not only taken note of a certificate dated 11.04.1998 not relating to the petitioner but also wrongly mentioned verification report of the Sub-Divisional Officer as 21.08.1996 in place of 27.08.1996, which itself shows that the State Level Scrutiny Committee did not apply its mind properly while doing so called cancellation of a non-existence certificate. From the letter of verification dated 27.08.1996, it appears that the Scheduled Castes Welfare Sub-Committee in its meeting on 05.08.1996 at Melagarh Block Office considered the Scheduled Castes Certificates of 10 persons, namely, (i) Sri Shymal Ch. Banda, S/o. Late Atul Ch. From the letter of verification dated 27.08.1996, it appears that the Scheduled Castes Welfare Sub-Committee in its meeting on 05.08.1996 at Melagarh Block Office considered the Scheduled Castes Certificates of 10 persons, namely, (i) Sri Shymal Ch. Banda, S/o. Late Atul Ch. Banda of Bagmara, (ii) Late Atul Ch. Banda, S/o. late Gagan Ch. Banda of Bagmara, (iii) Sri Ratan Roy, S/o. Sri Jogesh Ch. Roy of Taijiling (now living at Gakulpur, Udiapur), (iv) Smti. Rekha Bhowmik(Married), D/O. Sri Gopal Krishna Bhowmik of Taijiling, (v) Sri Debendra Bhwomik, S/o. Sri Gopal Krishna Bhowmik of Taijiling, (vi) Sri Bhabatosh Bhwomik, S/o. Sri Gopal Krishna Bhowmik of Taijiling, (vii) Smti. Rinku Roy (Married), D/O. Sri Haralal Roy of Taijiling, (viii) Sri Dilip Roy, S/o. Sri Anukul Roy of Taijiling, (ix) Sri Monoj Majumdar, S/o. late Anukul Majumder of Taijiling (now living at Amtali, Agartala) and (x) Sri Parimal Majumdar, S/o. Sri Amar Krishna Majumdar of Taijiling. Therefore, it can be safely said that the Castes Certificate relating to Sri Monoj Majumdar, S/o. Late Ramani Kumar Majumdar of Taijiling, i.e. the petitioner, was never considered by that authority and not only that from the record it also appears that except the Scheduled Castes Certificates the Scheduled Castes Welfare Sub-Committee did not consider the evidence of any other persons, who are either relation of the petitioner or residing in the neighbouring area of the petitioner to prove that the petitioner does not belong to the Scheduled Castes Community. 7. On the other hand, from the enquiry report of the Vigilance Cell, which is placed before us by Mr. Chakraborty, learned counsel, it appears that the vigilance Cell not only enquired regarding the certificate of the petitioner but also the certificate of his elder brother, Shri Madhusudhan Majumdar and the certificate issued by one Shri Gouranga Ch. Das, Chairman of the Scheduled Castes Sub-Committee of Melagarh R.D. Block in favour of the petitioner on 03.04.1976 and ultimately came to the conclusion that the petitioner belongs to Scheduled Castes Community (Mahishya Das Community) and the certificate issued by the District Magistrate & Collector is a genuine one. 8. Das, Chairman of the Scheduled Castes Sub-Committee of Melagarh R.D. Block in favour of the petitioner on 03.04.1976 and ultimately came to the conclusion that the petitioner belongs to Scheduled Castes Community (Mahishya Das Community) and the certificate issued by the District Magistrate & Collector is a genuine one. 8. In sub-rule (5) of Rule 7A of the Tripura Scheduled Castes & Scheduled Tribes Reservation Rules, 1992 it has been specifically stated that in case the report is in favour of the certificate holder and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter even the same procedure as is envisaged in sub-rule (4) shall be followed. The sub-rule (4) of the said Rules has stated that the Member Secretary of the Scrutiny Committee concerned, on receipt of the report from the Director of Vigilance if finds the claim for community status is not genuine or doubtful or spurious or falsely or wrongly claimed, then he shall issue a show cause notice to the holder of the certificate along with a copy of the vigilance report so that the holder of the certificate can place his case. Upon proper survey of the aforesaid provision it appears that only when the State Level Scrutiny Committee is of the opinion that the report submitted by the Director, Vigilance Cell/Vigilance Authority relating to castes status is not genuine and true, but procured or fraudulently obtained by the certificate holder the castes status from the Vigilance Authority, then only further verification is permissible under the law and in no other circumstances such verification is called for. In the instant case, the State Level Scrutiny Committee did not assign any reason as to why they did not accept the report of the Vigilance Cell, which is headed by the Director of Vigilance and not only that even they did not come to a finding that the status certificate relating to Scheduled Castes which was declared as genuine by the Director of Vigilance is not a genuine or a doubtful or spurious or falsely or wrongly claimed by the certificate holder. Thus, this Court is of the considered opinion that the State Level Scrutiny Committee while passing the impugned order not only committed wrong, but also committed injustice to the petitioner by relying upon the verification report dated 21.08.1996, which is a incorrect date, the correct one being 27.08.1996, on a non-existent certificate, and even if it is considered that the certificate is in existence in the said verification report, then also that is relating to one Monoj Majumder, S/o. Late Anukul Majumdar and not relating to the petitioner ignoring the report of the Vigilance Cell, which supports the case of the petitioner. 9. In view of the above, the impugned order dated 27.06.2007 is hereby quashed. However, quashing of the impugned order would not debar the State Level Scrutiny Committee to verify the Castes status of the petitioner relating to certificate issued by the District Magistrate & Collector after providing him all opportunities following the decision of the Apex Court and the provisions prescribed in the Tripura Scheduled Castes and Scheduled Tribes(Reservation of Vacancies and Posts) Act, 1991 and while they will proceed with the Castes status of the petitioner as mentioned in the paragraph-3 of the impugned order dated 27.06.2007, then they should also consider the report submitted by the special Vigilance Cell constituted for this purpose. 10. This Court is of further opinion that when the State Level Scrutiny Committee takes away the accrued right of a person, it should be more careful and this Court hope and trust that the State Level Scrutiny Committee shall also be more vigilant when it passes such type or order in future. In the result, the instant writ petition is allowed. No order as to costs.