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2017 DIGILAW 1115 (ORI)

Sankarsan Pradhan v. State of Orissa

2017-10-09

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This writ petition involves a challenge to the decision of the State Level Scrutiny Committee dated 31.5.2013. 2. Short background involved in the case is that petitioner upon completion of his High School Certificate Examination in the year 1982 obtained a caste certificate from the competent authority i.e. the Tahasildar, Khandapara on 14.10.1982 by virtue of an outcome in the Misc. Case no.146 of 1982. His name being sponsored to the office of the opposite party No.3, the Board of Revenue, Orissa vide its order No.387 dated 11.1.1988 selected the petitioner for appointment as Junior Assistant. The petitioner joined service on 19.1.1988 and in course of his employment he has been promoted to the post of Senior Assistant on 1.2.1991, then to the post of S.O. Level-1 on 22.2.2001. In the meanwhile, petitioner has been promoted to the post of Section Officer, Level-1 on 28.5.2004. It is alleged that while the petitioner was continuing as such, a co-employee namely Baidyanath Majhi along with some other persons filed a complaint before the opposite party No.3 raising objection to the caste certificate produced by the petitioner for the purpose of employment. Based on which, the petitioner was asked by the opposite party No.2 to submit his caste certificate in original on or before 25.11.2006. Accordingly, the petitioner submitted his caste certificate along with the residential certificate before the opposite party No.2. Being not satisfied with the certificates produced by the petitioner, the opposite party No.2 directed the petitioner to submit a recent caste certificate from the concerned authority returning back the old one to the petitioner. It also appears that though the petitioner had applied for fresh caste certificate but in the meantime, the petitioner got promotion to the post of Establishment Officer on Adhoc basis. Petitioner though submitted his joining report but the same was not accepted by the authority and his case was referred to the opposite party no.1 for further action. In the meantime, the petitioner received a letter dated 22.12.2006 calling upon him to explain within three days from the date of receipt of the letter as to why disciplinary actions shall not be taken against him for his meeting the Joint Secretary in the matter of acceptance of his joining report without having prior permission from the competent authority. The petitioner submitted his explanation. The petitioner submitted his explanation. In the meantime, the petitioner was again reminded to produce the recent caste certificate, which compelled the petitioner to approach the opposite party No.1. Pursuant to which, the opposite party no.1 directed the opposite party no.2 to accept the joining report of the petitioner with a permission to the opposite party no.2 to conduct a confidential enquiry. Basing on the report to get into the appropriate disciplinary proceedings in the event the petitioner is found to have forged caste certificate, it is alleged that despite several directions the petitioner is not allowed to join in the promotional post. As such, the petitioner was constrained to approach the Orissa Administrative Tribunal by filing O.A. No.806 of 2007 for relief claimed therein. In the meantime, the opposite party No.2 referred the allegations involving the petitioner to the State Level Scrutiny Committee. The State Level Scrutiny Committee called for a report from the Tahasildar, Khandapara. At this stage, the Tahasildar, Khandapara reported that the petitioner has obtained the caste certificate under the claim that he was adopted by one Amin Pradhan, who is ‘Kandha’ by caste. The State Level Scrutiny Committee by its meeting dated 15.3.2007 cancelling the caste certificate of the petitioner directed for taking actions against the petitioner following the provisions contained in the Orissa Caste Certificate (S.C. & S.T.) Rules, 1980 and under the provisions of the I.P.C. Petitioner challenged the decision of the State Level Scrutiny Committee by filing W.P. (C) No.11668 of 2007 before this Court and this Court was pleased to remand the matter for fresh decision after setting aside the order passed by the State Level Scrutiny Committee. In the meantime, the State Level Scrutiny Committee again passed an order against the petitioner. Petitioner challenged the said order on the premises of being passed without affording opportunity to the petitioner vide writ petition vide W.P.(C) No.8621 of 2008 and this Court by its order dated 7.7.2009 while quashing the order of the State Level Scrutiny Committee remitted the matter again back to the State Level Scrutiny Committee for reconsideration of the matter. In the meantime, a criminal case was also initiated against the petitioner under Section 420, 468, 471 of I.P.C which matter ended with an order of acquittal vide judgment dated 31.1.2012. In the meantime, a criminal case was also initiated against the petitioner under Section 420, 468, 471 of I.P.C which matter ended with an order of acquittal vide judgment dated 31.1.2012. In the meantime, the petitioner was terminated from his service on the premises of getting employment on production of fake certificate. Petitioner filed an appeal seeking reinstatement before the Government of Orissa. Petitioner also challenged the order of termination by filing O.A. No.2299 of 2007. The Orissa Administrative Tribunal dismissed the original application by its order dated 22.11.2013 and the petitioner has filed a writ petition before this Court vide W.P.(C) No.8910 of 2013 which is claimed to be pending at this point of time. In the meantime, the proceeding before the State Level Scrutiny Committee was concluded against the petitioner holding that while reaffirming its previous order of cancellation of the caste certificate, directed the Tahasildar to correct the relevant records accordingly and while observing that the decision terminating the petitioner as appropriate, directed the D.W.O., Nayagarh to investigate and assess the kind and quantum of financial benefit enjoyed by the petitioner and his family members, further also to file necessary F.I.R to decide the criminal liability involving the petitioner, the S.P., Nayagarh was also directed therein to initiate the criminal proceeding under appropriate provisions of law, giving rise the petitioner to file the present writ petition 3. Assailing the impugned order, Sri S. Mishra, learned counsel for the petitioner submitted that there is sufficient materials available to establish the case of the petitioner that from the date of birth, the petitioner has been recognized as the son of Amin Pradhan and there has been absolutely no material to indicate that the petitioner is the son of Panu Sahu. It is alleged that for production of various public documents, the petitioner has been able to satisfy that he is the son of Amin Pradhan and therefore, claims that the report of the Tahasildar as well as the impugned order are all based on no material. It is alleged that for production of various public documents, the petitioner has been able to satisfy that he is the son of Amin Pradhan and therefore, claims that the report of the Tahasildar as well as the impugned order are all based on no material. For the grant of caste certificate on the basis of materials available on record by the competent authority, it cannot be stated that the petitioner has obtained the caste certificate on fraudulent basis and since the caste certificate is not based on fraud, cancellation of such a certificate cannot result in dismissal of a person from his service with recovery of financial benefits accrued in the meantime. There is not a single document available establishing that the petitioner is the adopted son of Amin Pradhan. Sri Mishra also claimed that there has been improper consideration of statement of Udayanath Sahu and Magi Sahoo. It is also claimed that the evidence of Udayanath Sahu and Magi Sahoo has no relevancy for the reason that both of them are in enemical term with the petitioner and there are some criminal cases pending between the petitioner and the said Udayanath Sahu and Magi Sahoo. Sri Mishra, learned counsel appearing for the petitioner also contended that the observation involving the R.O.R vide Khata no.1, Mouza-Badazhar, Tahasildar-Khandapara stands in the name of Udayanath Pradhan, Gangadhar Pradhan, Nakul Pradhan, Kokila Pradhan, Manguli Pradhan and Hara Pradhan, who are the sons and daughters of Amin Pradhan. Mere nonappearance of name of Sankarsan Pradhan in the R.O.R cannot be a ground to decide the case against the petitioner. Further, the observation of the State Level Scrutiny Committee on the basis of village address of Sankarsan Pradhan as well as the Amin Pradhan also claim to be erroneous. It is also contended that the observation and findings taking out the caste certificate of the petitioner on the basis of the petitioner’s performing Durga Puja, Grama Devi Puja, Thanapati Puja and Kali Puja along with the other co-villagers remaining in the same village, has no basis. The observation of the State Level Scrutiny Committee that the petitioner doesn’t have any knowledge of “Kandha Language” has also no foundation. The observation of the State Level Scrutiny Committee that the petitioner doesn’t have any knowledge of “Kandha Language” has also no foundation. Sri Mishra, learned counsel for the petitioner referring to several other documents annexed to the writ petition also made a claim that there is no material to disapprove the claim of the petitioner to be the son of Amin Pradhan and therefore, prayed this Court for interfering in the impugned order and setting aside the same. 4. Sri Patra, learned State Counsel on the other hand, opposing the case of the petitioner, drawing the attention of this Court to the counter affidavit filed by the opposite party nos.1 & 2 submitted that the petitioner has failed in producing any concrete material to establish that he is not the son of Panu Sahu and that he is the son of Amin Pradhan. It is also contended that there has been enquiries at different point of time involving the allegations against the petitioner and in all occasions the report pointed out one and only indication that the petitioner is the natural born son of Panu Sahu. Petitioner not only failed in bringing any oral evidence to support his case but also failed in demolishing the statement of his kith and kin as well as co-villagers, who have in one tone stated that the petitioner is the son of Panu Sahu who belongs to ‘Teli’ by caste. There is sufficient material available to establish that the petitioner is the natural born son of Panu Sahu. There is no single document available to show that the petitioner is the natural born son of Amin Pradhan. 5. Taking this Court to the detail discussions of the State Level Scrutiny Committee, learned State Counsel submitted that for the detail discussions by the State Level Scrutiny Committee, there is also otherwise no infirmity in the impugned order. Further, taking this Court to several decisions of the Hon’ble Apex Court learned State Counsel submitted that the case of the opposite parties has the support of the said decisions. Under the circumstance, learned State Counsel submitted that for the observations and reasons assigned in the impugned order, there is no scope for this Court to interfere in such matters. 6. Under the circumstance, learned State Counsel submitted that for the observations and reasons assigned in the impugned order, there is no scope for this Court to interfere in such matters. 6. Considering the rival contentions of the parties, this Court finds, during enquiry by the State Level Scrutiny Committee involving the doubts raised on the S.T. status of the petitioner, the Director, O.G.P vide his letter no.356 dated 28.12.2006 referred the matter to the Tahasildar, Khandapara for verification of the genuineness of the caste of Sri Sankarsan Pradhan and for submitting a confidential report thereon. In response to which, the Tahasildar by his letter dated 11.1.2007 reported that on local enquiry it has been found that Sri Sankarsan Pradhan is the natural born son of Sri Panu Sahu belonging to ‘Teli’ by caste and has been adopted by Amin Pradhan belonging to ‘Kandha’ by caste. It also appears from the report submitted by the Tahasildar, Khandapara involving the enquiry by State Level Scrutiny Committee, where the Tahasildar made it clear that the caste certificate granted in favour of the petitioner was based on the claim of the petitioner regarding his adoption by Amin Pradhan who belongs to “Kandha Tribe”. Petitioner completely failed in destabilizing such report of the Tahasildar and accordingly, failed in establishing that the caste certificate issued in his favour was not on the basis of development through adoption. In the enquiry, even though the petitioner was provided opportunity to satisfy his case by providing documentary and or oral evidence but it appears, the petitioner produced a Xerox copy of admission report in Lingaraj Nodal U.P. (M.E.) School, Khalisai for the year 1969-70 and he failed in producing either any other documentary evidence or any oral evidence to establish his claim. This certificate again established that petitioner is a resident of ‘Khalisai’ whereas his so called father belongs to ‘Badajhada’, P.S.-Khandapara. It also appears in the proceeding that the State Level Scrutiny Committee taking into consideration a copy of the R.O.R vide Khata no.1, Mouza-Badajhada, P.S./Tahasil-Khandapara found that the R.O.R stands in the name of Udyanath Pradhan, Gangadhar Pradhan, Nakula Pradhan, Manguli Pradhan, Kokila Pradhan and Hara Pradhan as the sons and daughter of Amin Pradhan with indication of the caste as “Malua Kandha”. There was no mentioning of the name of the petitioner in the said R.O.R. In spite of such a document being taken into consideration and in spite of the clear information with the petitioner that his name is not found place in the R.O.R relied upon, the petitioner did not examine any of the person named therein to at least establish that he is also a son of Amin Pradhan. Even though the R.O.R was not found available showing the petitioner as the son of Amin Pradhan but the State Level Scrutiny Committee again found from another R.O.R. that place of property indicated therein belongs to Khalisai which appears to be the village of his own father namely Panu Sahu whereas the Amin Pradhan belongs Badajhada. There has been examination of some witnesses from the side of State such as Sri Udayanath Sahu and Magi Sahoo, both are of village Khalisai. Udayanath Sahu being the natural cousin brother of the petitioner and Sri Magi Sahoo being also a co-villager, both of them have deposed that the petitioner is the natural born son of Panu Sahu who belongs to ‘Teli’ by caste. This Court finds surprise that the petitioner even though claims that he has enmity with these witnesses and statement of such persons should not be relied but he had not taken any step to bring either of any of his relation or co-villagers to support his claim. It is also found that the petitioner is never a residence of a village belonging to Amin Pradhan. There is also a statement of another witness namely Ratnakar Sahu of Khalisai appearing to be the natural cousin brother of the petitioner, who has also claimed that the petitioner has purchased Ac.0.37 decimals of land from his natural father Panu Sahu in the village Khalisai. From the statements recorded, it also appears that the petitioner firstly married with a lady belonging to the ‘Teli’ by caste at Puri and on the death of his 1st wife, he married twice thereafter and both the second and third wife also belong to ‘Teli’ by caste. At the time of recording his statement, the petitioner has also admitted that he not only worships the goddesses Durga, Grama Devati, Thanapati and Kali Puja but also celebrates like Jantal and Sala Puja etc. At the time of recording his statement, the petitioner has also admitted that he not only worships the goddesses Durga, Grama Devati, Thanapati and Kali Puja but also celebrates like Jantal and Sala Puja etc. He has also admitted to be belonging to ‘Nagasya’ Gotra, which is a Gotra belonging to Hindu Caste and he never appears to be a person belonging to the ‘Kandha’ by caste. There has also been examination of several documents. The documents nowhere establish that petitioner belongs to scheduled tribe community. Petitioner was also tested to get his strength on the language used by the Scheduled Tribe persons in the locality and other aspects involving the scheduled tribe are concerned, it appears, the petitioner has also failed to pass this acid test to prima facie establish his claim to be belonging to scheduled tribe community. All the above goes to show that the findings by the State Level Scrutiny Committee establishing that the petitioner does not belong to scheduled tribe community are based on number of sources indicated hereinabove. It is on the other hand, appears that the petitioner though born through Panu Sahu but may be has been adopted by Amin Pradhan. Law is fairly well settled that mere adoption of a person belonging to a non-tribe to a scheduled tribe, does not automatically become the scheduled tribe. 7. In the case of Valsamma Paul (MRS) versus Cochin University and others as reported in (1996) 3 SCC 545 the Hon’ble Apex Court in paragraph no.33 held as follows: “33. However, the question is : Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalists and Tribes suffered social and economic disabilities recognized by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. It is seen that Dalists and Tribes suffered social and economic disabilities recognized by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation’s life by providing them opportunities and facilities.” Ultimately the observation of the Hon’ble Apex Court is that a candidate born in forward class, transplant in backward class by adoption or any other voluntary act, cannot be entitled to benefit of reservation for the S.C. or S.T. In another case of Jayashri Bhaskar Gosavi v. Vishwanath Krishnath Panke and others as reported in (2016) 13 SCC 312 the Hon’ble Apex Court in paragraph-2 therein has a clear opinion that the tribal status should be based on one’s independent root and a wife cannot claim tribal status of her husband dependant on her merit. In the case of Lazarus Estates, Ltd. v. Beasley (1956) All E.R. 341, 345 Lord Denning, J. observed that “No Court will allow a person to keep an advantage which he has obtained by fraud.” 8. The proceeding before the State Level Scrutiny Committee is not a mere summary procedure where a party has fullest scope for documentary as well as oral evidence to establish his case. Even though the petitioner was given several opportunities to establish his case including two remand orders by this Court yet, the petitioner was unable to bring any satisfactory documentary evidence as well as oral evidence. Since the petitioner’s case before the State Level Scrutiny Committee was dependant on the validity of caste certificate already granted in his favour, it was incumbent upon the petitioner to satisfy at least the caste certificate already granted in his favour is not a fraudulent one. 9. From the entire pleadings and arguments of the petitioner, this Court nowhere finds, the petitioner had any endeavour to establish that the caste certificate granted in his favour is on the basis of information available on record so as to avoid the rigor of a document being obtain by fraud. 10. 9. From the entire pleadings and arguments of the petitioner, this Court nowhere finds, the petitioner had any endeavour to establish that the caste certificate granted in his favour is on the basis of information available on record so as to avoid the rigor of a document being obtain by fraud. 10. For the detail discussions in the impugned order by the State Level Scrutiny Committee, for the observations of this Court made hereinabove and for the settled position of law taken note of hereinabove, this Court finds, there is no infirmity in the impugned order. Accordingly, the writ petition stands dismissed, but however, in the circumstance, there is no order as to cost.