Allowed

Rashmi Bantenakhate v. State Of Chhattisgarh

Chhattisgarh HC22 Oct 2024WPS/5975/2016

Case brief

AI extract

What is this about?

A writ petition challenged the Scheduled Tribe Commission's order recommending cancellation of the petitioner's appointment as Store Keeper. Holding the Commission's functions under the 1995 Act are advisory only and it has no adjudicatory jurisdiction, the High Court set aside the impugned order.

What did the court decide?

Impugned order dated 19.08.2016 of the Commission set aside; writ petition allowed; no costs.

Rashmi Bantenakhate Vs State Of Chhattisgarh — Service and Employment | Chhattisgarh HC (2024)

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WPS No. 5975 of 2016

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Digitally ANKIT signed byANKITKUMAR KUMAR SINGH SINGH Date:2024.10.26 12:06:03 +0530

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2024:CGHC:41966

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 5975 of 2016

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Rashmi Bante (Nakhate) W/o. Sunil D. Bante, aged about 33 years, working as Store Keeper In Zila Stariya, Chhattisgarh Aadim Jaati Kalyan Aavasiya Avam Ashram Shaikchhanik Sansthan Samiti District Raigarh, R/o. C/o. R. D. Katore, Railway Banglapara, Raigarh District Raigarh Chhattisgarh.

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... Petitioner

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versus

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State of Chhattisgarh through Secretary, Scheduled Tribe and Scheduled Caste Welfare Department, Mahanadi Bhawan, New Raipur District Raipur Chhattisgarh.

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Chhattisgarh State Scheduled Tribe Commission, Through its Secretary, Chhattisgarh State Scheduled Tribe Commission, 61- Jal Vihar Colony, Raipur District Raipur Chhattisgarh.

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Collector, Raigarh, District Raigarh Chhattisgarh.

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Zila Stariya Chhattisgarh Aadim Jaati Kalyan Aavasiya Avam Ashram Shaikchhanik Sansthan Samiti, Through its Secretary Cum Assistant Commissioner, Tribal Welfare Department, Raigarh, District Raigarh Chhattisgarh.

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... Respondents For Petitioner :- Mr. Vibhor Govardhan, Advocate on behalf of Mr. Anup Majumdar, Advocate. For State-Respondents : Dr. Surendra Kumar Dewangan, No.1, 3 & 4 Panel Lawyer. For Respondent No.2 :- Mr. A.S. Kachhawaha, Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

23/10/2024

WPS No. 5975 of 2016

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This writ petition is directed against the impugned order dated 19.08.2016 passed by the Chhattisgarh Rajya Anusuchit Janjati Ayog (hereinafter referred as “the Commission”) by which it has firstly been held that the process of appointment of the petitioner on the post of Store Keeper is not in accordance with law and further recommended that the appointment of the petitioner be cancelled and new recruitment will be issued for the post of Store Keeper.

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Mr. Vibhor Govardhan, learned counsel for the petitioner, would submit that issue involved in the present case is fully covered by the decision of this Court passed in WPC No.1760 of 2012 ( Tulsi Ram v. State of Chhattisgarh and Others ) vide order dated 07.11.2016, therefore, the impugned order is liable to be dismissed in light of the principles of law laid down by this Court in the matter of Tulsi Ram (supra) and the instant writ petition deserves to be allowed.

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Mr. A.S. Kachhawaha and Dr. S.K. Dewangan, learned counsel for the respondents would oppose the prayer made by learned counsel for the petitioner and support the impugned order dated 19.08.2016.

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WPS No. 5975 of 2016

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I have heard learned counsel for the parties, considered their rival submissions made herein in above and gone through the records thoroughly and extensively.

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The Chhattisgarh Rajya Anusuchit Janjati Ayog has been constituted under Section 3 the Act, 1995. The function of the Commission has been provided under Section 9 of Act, 1995. Section 9 of the Act, 1995 is reproduced below for sake of convenience:-

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“ 9. Functions of the Commission .-(1) It shall be the function of the Commission-

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(a) to act as watch-dog Commission for the protection afforded to the members of the Scheduled Tribes under the Constitution and under any other law for the time being in force;

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(b) to recommend to the State Government to take steps to add particular tribes or tribal communities or parts of or groups within tribes or tribal communities in the Constitution (Scheduled Tribes) Order, 1950.

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(c) to watch the proper and timely implementation of programmes meant for welfare of Scheduled Tribes and to suggest improvement in such programmes of the State Government or any other body or authority responsible for such programmes;

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(d) to tender advice regarding reservation for Scheduled Tribes in public services and admission in educational institutions;

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(e) to perform such other functions as may be assigned to it by the State Government.

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WPS No. 5975 of 2016

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(2) The advice of the Commission shall, ordinarily be binding upon the State Government, where, however, the Government does not accept the advice, it shall record its reason therefor.”

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A careful reading of sub-section (1) of Section 9 of the Act, 1995 would show that the function of the Commission is to protect the interest of the members of the Scheduled Tribes particularly the protection afforded to them under the Constitution or under any other law for time being in force and to ensure timely implementation of programmes meant for the members of the Scheduled Tribes and also to extend advice regarding reservation for them in public services and admission in educational institutions. By virtue of subsection (2) of Section 9 of the Act, 1995, advice of the Commission is ordinarily binding upon the Government and as such the function of the Commission is advisory/recommendatory in nature. From the scheme of the Act, 1995, it appears that the Commission has not been conferred with the adjudicatory function, it is only an advisory/recommendatory body having advisory jurisdiction.

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In the matter of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and

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WPS No. 5975 of 2016

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another 1, the Supreme Court considered the extent of power of the State Commission for Women constituted under Section 3 of the Orissa State Commission for Women Act, 1993 and after analyzing the scheme of the Act, it has been held that no power or authority has been conferred to the State Commission to adjudicate or determine of the rights of the parties. It was held succinctly as under:-

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“10. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and health care that may help in overall development of the women of the State; gather statistics concerning offences against women; probe into the complaints relating to atrocities on women, deprivation of women of their rights in respect of minimum wages, basic health, maternity rights, etc. and upon ascertainment of facts take up the matter with the authorities concerned for remedial measures; help women in distress as a friend, philosopher and guide in enforcement of their legal rights. However, no power or authority has been given to the State Commission to adjudicate or determine the rights of the parties.

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Mr Ranjan Mukherjee, learned counsel for Respondent 2 submitted that once a power has been given to the State Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorised to decide these complaints. We are afraid, no such implied power can be read into Section 10(1)(d) as suggested by the learned counsel. The provision contained in Section 10(1)(d) is expressly clear that the State Commission may receive complaints in relation to the matters specified therein and on receipt of such complaints take up the matter with the authorities concerned for

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1 (2010) 8 SCC 633

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WPS No. 5975 of 2016

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appropriate remedial measures. The 1993 Act has not entrusted the State Commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The State Commission is not a tribunal discharging the functions of a judicial character or a court.

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It is clear to us that the legislature has not gone so far as to give jurisdiction to the State Commission to make an order such as the one that has been made. From whatever angle we may examine the validity of the directions given by the State Commission in its order dated 11-5-2009, it appears to us that the said order was outside the jurisdiction, power or competence of the State Commission. It was an order which the State Commission had no competence to make and, therefore, a void order. The High Court instead of correcting that order went a step further and directed that DNA test of the child as well as the appellant shall be conducted.”

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Dealing with the powers of the Chief Commissioner and the Commissioners under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rules thereunder, the Supreme Court in the matter of State Bank of Patiala v. Vinesh Kumar

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Bhasin2 has struck the similar proposition of law by crystallizing condensely as under:-

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“18. It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil

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2 (2010) 4 SC 368

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WPS No. 5975 of 2016

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court which are not vested in them by the provisions of the Disabilities Act.”

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Similarly, the Supreme Court in the matter of Collector, Bilaspur v. Ajit P.K. Jogi and others3 considered the duty

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of National Commission for Scheduled Caste and Scheduled Tribes provided under Article 338(5) of the Constitution of India and held that the Commission cannot determine/adjudicate the caste or tribe status of any particular individual. Relevant extract of report states as under:-

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“17. It is evident from Article 338 as it originally stood, that the Commission was constituted to protect and safeguard the persons belonging to Scheduled Castes and Scheduled Tribes by ensuring: (i) anti-discrimination, (ii) affirmative action by way of reservation and empowerment, and (iii) redressal of grievances. The duties under clause 5(b) of Article 338 did not extend to either issue of caste/tribe certificate or to revoke or cancel a caste/tribe certificate or to decide upon the validity of the caste certificate. Having regard to sub-clause (b) of clause (5) of Article 338, the Commission could no doubt entertain and enquire into any specific complaint about deprivation of any rights and safeguards of Scheduled Tribes. When such a complaint was received, the Commission could enquire into such complaint and give a report to the Central Government or the State Government requiring effective implementation of the safeguards and measures for the protection and welfare and socio-economic development of the Scheduled Tribes. This power to enquire into “deprivation

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3 (2011) 10 SCC 357

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WPS No. 5975 of 2016

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of rights and safeguards of the Scheduled Castes and Scheduled Tribes” did not include the power to enquire into and decide the caste/tribe status of any particular individual. In fact, as there was no effective mechanism to verify the caste/tribe certificates issued to individuals, this Court in Madhuri Patil v. Commr., Tribal Development⁴ directed constitution of scrutiny committees.

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The contention that there was sufficient material to reach such a conclusion is not relevant. The scope of the duties of the Commission as noticed above, did not involve inquiry or adjudication in regard to the rights of parties or caste status of the parties. The same is the position even under Article 338-A (which was subsequently inserted) providing for a separate Commission for Scheduled Tribes with identical duties. The order of the Commission cannot therefore be sustained. The High Court was justified in setting aside the said order dated 16-10-2001.”

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Following the principle of law enunciated in above-stated judgments rendered by Their Lordships of the Supreme Court, it is quite vivid that the function of the Chhattisgarh Rajya Anusuchit Janjati Ayog constituted under the Act of 1995 is advisory in nature. The power and jurisdiction to make enquiry and adjudication in regard to the rights of the Schedule Tribes have not been conferred to the State Commission by Act of 1995. Therefore, the Commission constituted under the Act of 1995 has no adjudicatory jurisdiction and as such State commission is not a tribunal

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4 (1994) 6 SCC 241

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WPS No. 5975 of 2016

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exercising functions of judicial character or Civil Court and cannot determine rights of the Schedule Tribes. The State Commission can by virtue of functions entrusted to him by Section 9(1) of the Act can supervise and see that the protection granted to members of Scheduled Tribe under the Constitution of India or under any other law for the time being in force is actually extended to them and proper implementation and execution of programmes meant for them and also to make recommendation for the State Government for insertion of certain tribes/group of tribes in the Constitution (ST) Order 1950 and further advice for representation of Scheduled Tribe in public service and admission in educational institution, but cannot perform adjudicatory function being only a body competent to make recommendation to the State Government as well as to make advise to the State Government.

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In that view of the matter, the Commission could not have been adjudicated that the appointment of the petitioner was not in accordance with law and thereafter, it could not have been recommended for cancellation and fresh recruitment as this jurisdiction is of the Jurisdictional Court and the Commission has only power to make recommendation/advice to the Government. As such, in

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WPS No. 5975 of 2016

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consequence of the aforesaid discussion, the writ petition is allowed; the impugned order dated 19.08.2016 is hereby set aside. No order as to cost(s).

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Sd/-

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Sd/(Sanjay K. Agrawal) Judge

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Ankit

Rashmi Bantenakhate v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rashmi Bantenakhate v. State Of Chhattisgarh

Case brief

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What did the court decide?

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