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2017 DIGILAW 1078 (ORI)

Harisankar Prasad Ram v. State of Odisha

2017-09-18

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. Though this writ petition involves a challenge to the impugned order under Annexure-10 as a whole but during course of hearing learned counsel for the petitioner confined his challenge to the recommendations at Sl.Nos.3, 5, 6, 8 and 9 in the impugned order. 2. Short background involved in the case is that petitioner claiming to be belongs to Kol-Lohars community finding place in the Scheduled Tribe Community as per the Presidential Order, taking help of the indication of his caste by the Revenue Authority in the latest record-of-right as Kol-Lohars applied for a caste certificate before the competent authority filing Misc. Case No.1563 of 1981. The competent authority after due inquiry and with the recommendation of the then local M.L.A., in favour of the petitioner, granted caste certificate in favour of the petitioner. It is on the basis of grant of caste certificate, petitioner applied for the post of Inspector of Cooperative Society at Bhawanipatna ARCS Circle in the year 1982 as a Scheduled Tribe candidate. Petitioner was selected and also appointed against the said post. In the process, petitioner was promoted to the post of Assistant Project Director, D.R.D.A., Khurda and while filing the writ petition, the petitioner was working at A.R.C.S, Chhatrapaur Circle, Ganjam. When the petitioner’s position stood thus, one Shyam Sundar Bhoi, President, Adivasi Harijana Unnayana Mancha, Salia Sahi, Bhubaneswar lodged a complaint before the opposite parties alleging that petitioner has fraudulently availed Scheduled Tribe reservation benefits by producing fake Scheduled Tribe certificate. Following the decision of the Hon’ble Apex Court rendered in the case of Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development Department, AIR 1995 SC 94 , the State send the matter for consideration of such dispute by the State Level Scrutiny Committee, the Committee took up the allegation against the petitioner. On the basis of a direction of opposite party no.3, the D.V.C., Khurda conducted an inquiry involving the allegation against the petitioner and submitted a report to the opposite party no.3 indicating that the petitioner belongs to General Caste on examining the 2nd elder brother and 3rd sister-in-law of the petitioner. In the process, the opposite party no.3 served a notice on the petitioner on 17.6.2011 enclosing therein the inquiry report asking the petitioner to file show cause establishing his case within fifteen days. In the process, the opposite party no.3 served a notice on the petitioner on 17.6.2011 enclosing therein the inquiry report asking the petitioner to file show cause establishing his case within fifteen days. The petitioner, as a consequence filed his show cause clarifying the position thereby while submitting that the certificate being granted after due recommendation of the competent authority based on supporting materials cannot be held to be obtained by applying fraud. Basing on the show cause response, opposite party no.3 directed for re-inquiry and as a consequence a fresh inquiry was conducted by the S.D.P.O., Khurda. Based on the report submitted by the S.D.P.O., Khurda, the petitioner was again asked to submit a show cause. Based on the response in his show cause, this time the opposite party no.3 again directed the Sub-Collector, Khurda to conduct another inquiry. The Sub-Collector, Khurda conducted a fresh inquiry and submitted report adverse to the claim of the petitioner. The petitioner was again asked to file a show cause. This time also petitioner filed his show cause justifying his claim. It is alleged that in spite of petitioner’s asking for calling for the records, the matter was concluded haphazardly by passing the impugned order wherein while declaring that the caste certificate granted in favour of the petitioner wrong, the State Level Scrutiny Committee further made recommendations vide Clause Nos.3, 5, 6, 8 and 9 not only directing initiation of criminal proceeding against the petitioner but also drawing appropriate proceeding, penal and disciplinary actions by the competent authority for the petitioner’s enjoying certain benefits relying on such wrong certificate even with a recommendation for removal of the petitioner from service without entering into any further proceedings. 3. Referring to the show cause filed by the petitioner at different stages, Sri Mishra, learned counsel appearing for the petitioner referring to the stands taken therein all through being common submitted that the certificate issued in favour of the petitioner being based on inquiry at the particular stage referring to an indication on the caste of the petitioner in the record-of-right and further on the recommendation of the then local M.L.A. finding the caste of the petitioner not belong to Scheduled Tribe, the State Level Scrutiny Committee inquiry cannot be construed as a caste certificate obtained playing fraud. Further, taking this Court to the discussions made in the report of the State Level Scrutiny Committee particularly holding that the grant of certificate in favour of the petitioner becomes wrong, Sri Mishra, claimed that the recommendations made vide Clause Nos.3, 5, 6, 8 and 9 on the pretext of petitioner’s enjoying certain benefits on application of fraud is not only wrong but perverse to the finding of the State Level Scrutiny Committee itself. Relying on a decision in the case of Shalini v. New English High Sch. Assn. & Ors. involving Civil Appeal No.10997 of 2013 decided on 12.12.2013, Sri S.K. Mishra, learned counsel for the petitioner contended that even assuming that the caste certificate granted in favour of the petitioner becomes wrong but for the certificate being obtained under bonafide impression and for the observations in the aforesaid Supreme Court judgment, the direction so far as to taking action against the petitioner while calling back the certificate in favour of the petitioner are improper and illegal. Consequently, Sri Mishra, learned counsel requested this Court for interfering in the impugned order and setting aside the recommendations of the State Level Scrutiny Committee vide Clause Nos.3, 5, 6, 8 and 9. 4. Learned State Counsel in its opposition while opposing the submissions of Sri Samir Kumar Mishra, Sri Somanath Mishra defending the impugned order taking this Court to the reports available for consideration of the State Level Scrutiny Committee and particularly, the observations of the State Level Scrutiny Committee in the high level inquiry proceeding submitted that not only the grant of certificate in favour of the petitioner was wrong but the State Level Scrutiny committee also justified in recommending the actions vide Clause Nos.3, 5, 6, 8 and 9. Under the above premises, Sri Mishra, learned State Counsel defending the impugned order at Annexure-10, as a whole, prayed for dismissal of the writ petition. 5. Considering the rival contention of the parties, this Court finds there is no dispute that the caste certificate was granted in favour of the petitioner based on consideration by competent authority and relying on not only the information available with regard to the caste of the petitioner in the record-of-right but also on recommendation being made by the local M.L.A. at the relevant point of time. Further entering into an inquiry process information and the materials utilized for the purpose to grant of caste certificate in favour of the petitioner cannot be claimed to have been obtained under fraud representation of the petitioner and as a consequence, this Court even though finds the observation of the State Level Scrutiny Committee claiming the caste certificate to be wrong but observes that under no stretch of imagination process obtaining such caste certificate can be termed to be involving a fraud attempt. Further looking to the observations of the State Level Scrutiny Committee at several stages of the matter and the impugned order, this Court finds the State Level Scrutiny Committee has rightly used the word “wrong” in the grant of the caste certificate. After coming to such conclusion, particularly, holding grant of caste certificate in favour of the petitioner wrong and in absence of any observations and findings as to holding the grant of caste certificate on application of fraud, the attempt of the petitioner can be at best to be a bonafide action. This Court therefore finds force in the submission of Sri S.K. Mishra, learned counsel for the petitioner with regard to his contentions on the recommendations vide Clause Nos.3, 5, 6, 8 and 9. In the case of Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430 , Hon’ble Justice Thakur, as His Lordship then was, analyzing as many as eleven precedents and on review of all the eleven precedents observed that since the party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. 6. On scrutiny of the judgment produced by the learned counsel for the petitioner involving the case of Shalini (supra), this Court finds the Hon’ble Apex Court in the aforesaid judgment following the decision reported in the case of Kavita Solunke (supra) considering a case of similar nature interfering in the judgment of the High court while allowing the S.L.P. directed reinstatement of the petitioner but restricting future advantages being a scheduled tribe candidate for the cancellation of tribe certificate granted in favour of the petitioner involved therein. 7. 7. For the observations of this Court in paragraphs-5 and 6 hereinabove and for the decision of the Hon’ble Apex Court rendered in the case of Kavita Solunke (supra) as well as the decision of the Hon’ble Apex Court involving Civil Appeal No.10997 of 2013, this Court while interfering in the report of the State Level Scrutiny Committee recommending for cancellation of the certificate granted in favour of the petitioner and the recommendation made in paragraph-7 of the report, declares the recommendations made vide Clause Nos.3, 5, 6, 8 and 9 as bad. This Court also makes an observation that the petitioner is also henceforth debarred from getting any future promotion on account of his being appointed on the basis of a certificate granted in his favour wrongly as stood cancelled in the meanwhile. 8. In the result, the writ petition succeeds to the extent indicated hereinabove. No cost.