Allowed

Kshirod Ku.Majhi v. State and Ors.

Orissa HC15 Feb 2024WP(C)/23364/2013

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a writ petition quashing a State Level Scrutiny Committee order classifying the petitioner as an imposter for availing caste-based reservations due to lack of evidence proving he produced a fake certificate at recruitment.

What did the court decide?

The final order of the State Level Scrutiny Committee dated 23rd August 2013 is quashed with no order as to costs.

Kshirod Ku.Majhi Vs State and Ors. — Service and Employment | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.23364 of 2013

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Kshirod Kumar Majhi …. Petitioner Mr. Sanjib Mohanty, Advocate

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-Versus-

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State of Orissa & others

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…. Opposite Parties Mr. J.P. Patra, ASC

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CORAM:

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JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:15.02.2024

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Instant writ petition is filed by the petitioner challenging the impugned order under Annexure-7 of the State Level Scrutiny Committee (in short as ‘the SLSC’) with consequential relief.

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2 . In fact, the petitioner is a retired DPO and he has assailed the impugned decision dated 23^rd August, 2013 of the SLSC. The contention of the petitioner is that he belongs to Kaibarta (Dewar) caste which is admittedly one of the castes declared as SC as per the Presidential Order as at Annexure-1. It is also claimed by referring to Annexure-2, a copy of the RoR and the entry made therein that the petitioner is a Scheduled Caste since Kaibarta is synonymous to Dewar which finds place at Serial No.24 of Annexure-1. As a matter of fact, in 1977, the Panchayat Raj Department, Government of Odisha had an advertisement for recruitment to the post of Junior Auditor pursuant to which the petitioner applied and appeared in the writing test and viva voce and was selected, whereafter, he was given appointment. It is stated that thereafter the petitioner was promoted to the rank of SDPO and continued in such capacity till 5^th March, 2000 and then, joined as DPO, Kendrapara after promotion. The

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contention is that the decision of the SLSC duly communicated vide Annexure-7 is liable to be interfered with and set aside since the onus to prove and substantiate the allegation has not at all been discharged and the action against the petitioner amounts to double jeopardy. It is contended that a complaint was received in the year 2011 and the matter was enquired into and caste of the petitioner was verified which revealed him to be a Scheduled Caste with a report i.e. Annexure-4 submitted by the local Tahasildar. The enquiry report under Annexure-6 also revealed that the petitioner may belong to Scheduled Caste being a SubCaste Kaibarta, however, despite the aforesaid reports, the SLSC reached at a conclusion otherwise and the same is, therefore, not legally tenable.

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3 . Perused Annexure-7, such as, the decision of the SLSC.

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4 . Heard Mr. Mohanty, learned counsel for the petitioner and Mr. Patra, learned ASC for the State.

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5 . Mr. Mohanty, learned counsel for the petitioner submits that the petitioner faced disciplinary proceeding in the year 2001 which was finalized in 2005, wherein, the charges could not be established against the petitioner, nevertheless, the punishments, such as, stoppage of two increment without cumulative effect and period of suspension from 25^th July, 2001 to 2^nd January, 2002 was treated as such and in that view of the matter, any further action pursuant to Annexure-7 would prejudice him immensely. The contention of Mr. Mohanty is that the petitioner is not found guilty of any fraud committed and in the meantime, he having retired from service, the matter should not have been reopened with an order under Annexure-7.

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6 . On the contrary, Mr. Patra, learned ASC for the State justifies the impugned order under Annexure-7 and submits that the

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Kshirod Kumar Majhi Vrs. State of Orissa & others

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petitioner availed the benefit of reservation as a Scheduled Tribe and not only in the initial recruitment but also in subsequent promotions to the posts of SDPO and DPO when he neither belongs to ST or SC at the time of appointment in 1977. It is further contended that even after 1981, the petitioner availed promotion as an ST. Even assuming for the sake of argument that he was a Scheduled Caste since the initial appointment is invalid, so therefore, all such subsequent benefits the petitioner has availed of being treated as an SC, according to Mr. Patra, stands invalidated on account of fraud and hence, rightly the SLSC concluded that he is not entitled to post retiral benefits and furthermore, liable for criminal action under the law.

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7 . Pursuant to the decision of this Court in Kumari Madhuri Patil and Another Vrs. Addl. Commissioner, Tribal Development and Others AIR 1995 SC 1994 , the verification of the caste status of the petitioner was referred to the SLSC in 2012 before which the petitioner filed Written Statement claiming himself as a Scheduled Caste and even produced a recently issued caste certificate but not the original. The SLSC allowed the petitioner time to submit evidence with respect to the original caste certificate produced at the time of recruitment, however, it could not be failing which it was presumed that no such certificate was produced by him. The decision under Annexure-7 is on the premise that Kaibarta caste was treated as a Scheduled Caste in 1981, whereas, the petitioner joined in Government service as Junior Auditor in 1977 and which was by availing reservation as a Scheduled Tribe. It has been held by the SLSC that by then petitioner was not a Scheduled Tribe which he is admittedly not and was revealed during the departmental proceeding nor was a Scheduled Caste as Kaibarta was included as a SC in 1981, hence, the initial appointment as a Scheduled Tribe has to be held as illegal,

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8 . In course of hearing, Mr. Patra, learned ASC for the State refers to Annexure-A/2 to contend that the Dewar caste was included at Entry 24 after amendment to the Presidential Order with a notification dated 18^th December, 2002 introduced by the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002. A copy of the gradation lists for GP Audit and Selection in SDPO as at Annexures-A/2 and D/2 series respectively are placed reliance on to claim that the petitioner availed the benefit of reservation as a Scheduled Tribe which he was not. A copy of the charge head i.e. Annexure-C/2 is with respect to the departmental proceeding initiated against the petitioner in 2000. All such matters on record are pressed into service from the side of the State to justify the impugned decision under Annexure-7. The sum and substance of the argument of Mr. Patra, learned ASC for State is that fraud was perpetuated by the petitioner from the time of initial appointment as he was never a Scheduled Tribe and therefore, all such benefits availed as an ST is illegal, inasmuch as, the appointment promotion are outrightly invalid. Mr. Patra, learned ASC for the State refers to the following decisions, such as, Bhubaneswar Development Authority Vrs. Madhumita Das and Others 2023 SCC Online SC 977 ; District Collector, Satara and Another Vrs. Mangesh Nivrutti Kashid (2019) SCC 166 ; Renuka Majhi and Others Vrs. State of Orissa and Others 2015 (II) ILR-CUT-1077 ; Dayaram Vrs. Sudhir Batham and Others (2012) 1 SCC 333 ; Regional Manager, Central Bank of India Vrs. Madhulika Guruprasad Dahir and Others (2008) 13 SCC 170 ; Nityananda Sharma and Another Vrs. State of Bihar and Others (1996) 3 SCC 576 ; State of Maharashtra Vrs. Milid and Others (2001) 1 SCC 4 ; Lochan Majhi Vrs. State of Orissa and Others (2011) 111 CLT 90 and finally, Kumari Madhuri Patil (supra).

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9 . Mr. Mohanty, learned counsel for the petitioner has cited a judgment of the Apex Court in the case of Bipra Charan Digal Vrs. W.P.(C) No.23364 of 2013 Page 4 of 10

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Kshirod Kumar Majhi Vrs. State of Orissa & others

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State of Orissa and others 2012(Supp.I) OLR 480 and it is contended that the petitioner never produced a forged certificate at the time of initial appointment and therefore, the conclusion under Annexure-7 that such appointment was based on any such forged certificate as ST cannot not be sustained. The contention is that in absence of any such record to show that a fake ST certificate was produced at the time of selection and appointment by the petitioner, the SLSC was incorrect to assume it with a conclusion that fraud was committed by him. In the decision (supra), the question was whether the petitioner therein furnished any caste certificate claiming himself as a ST Kandha while the petitioner therein seeking appointment as a peon but this Court concluded that no such fraud was committed since the record did not disclose it. In fact, in the said decision, the Court noticed that a wrong entry was made in the service roll maintained by the department with regard to the caste of the petitioner and hence, in under such circumstances, production of a forged caste certificate as concluded by the SLSC was held to be unjustified. In so far as the present case is concerned, the facts are no similar as the petitioner continued in service and finally retired but the Court finds that there is no record available to ascertain as to if any such fake ST certificate was ever produced by the petitioner at the time of recruitment in 1977. Interestingly, the petitioner was perhaps held to be a Scheduled Caste with a departmental proceeding culminated and penalty imposed revealed from Annexure-7 itself. The question is whether the petitioner is guilty of having committed fraud with production of any fake ST certificate? Admittedly, Dewar is a Scheduled Caste as according to the Presidential Order and it was included by the Central Act 108 of 1976 published in the Odisha Gazette in the month of July, 1978. In so far as Annexures-2 and 3 are concerned, there is no denial to the fact that the petitioner is stated to be a Kaibarta by

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caste with the entry in the RoR and issued with a caste certificate in 1997 as a Scheduled Caste since Kaibarta is held to be synonymous with Dewar. The report vide Annexure-6 after an enquiry suggested that the petitioner may be a Scheduled Caste since belong to Sub-Caste Kaibarta. It has been concluded by the SLSC that the petitioner availed the benefit of reservation as a Scheduled Tribe and managed the selection and appointment as a Junior Auditor in 1977. Whether such a claim is borne out of record that the petitioner furnished a fake ST certificate at the time of initial appointment? Admittedly, the gradation lists show that the petitioner was treated as a Scheduled Tribe. In fact, the promotion to different ranks of the petitioner from Junior Auditor by the decision of the Inquiring Officer was directed to be modified treating him as a Scheduled Caste. So the crux of the matter is whether the petitioner did initially produce a fake ST certificate. The appointment of the petitioner is questioned by the SLSC on the ground that he was not a Scheduled Tribe. It is not in dispute that Kaibarta has been treated as a caste synonymous to Dewar as at Entry No.24 of the Presidential Order applicable to the State of Odisha. A Government circular and clarification was issued in 1972 followed by another dated 6^th March,1978 by the State Government in Tribal & Rural Welfare (T& RW) Department addressed to the Collectors requesting them to exercise due caution while issuing caste certificates in respect of the persons, who claim themselves as Dewar and even recommended exclusion of the said caste, however, later to the judgment in the case of Narayan Behera Vrs. State of Orissa through Secretary, Trial & Welfare Department and Others V-49 1980 CLT 47 , it was introduced with a notification published after the amendment incorporated by Act No.61 of 2002.

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10 . In Bipra Charan Digal (supra), this Court held that in absence of any evidence on record to show that a forged certificate was

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submitted, the candidate cannot be held responsible if any wrong entry has been made in his service roll maintained by the department with regard to his caste. Referring to the aforesaid decisions, it issubmitted by Mr. Mohanty, learned counsel for the petitioner that the decision of the SLCS is erroneous as there has been no proof of the petitioner having committed any mischief and with regard to his caste status mentioned in the service record, rather, the department was at fault. On the contrary, it is made to reveal that the petitioner was promoted considering him as a Scheduled Tribe which was though later on corrected after the decision and penalty imposed at the end of a disciplinary proceeding, which has been the reply and response of the State referring to Annexure-B/2 series. In Damodar Mohapatra Vrs. Union of India and others 114 (2012) CLT 298 , a decision which has been referred to from the side of the petitioner relates to a disciplinary proceeding, wherein, this Court found no acceptable evidence in support of the charge levelled against him and stood exonerated by the Inquiring Officer but held guilty by the disciplinary authority ignoring the finding of a Division Bench and therefore, he was deemed to be continuing in service from the date of termination till superannuation and held entitled to all financial benefits. In the said case, after the delinquent was found not guilty of the charge of having produced fake caste certificate, he was exonerated in full. By placing reliance on the decision in Madhumita Das (supra), it is contended that the petitioner applied for a post reserved for Scheduled Tribe or for that matter, Scheduled Caste, when he was not but managed to get an appointment depriving and displacing a genuine candidate. Mr. Patra, leaned ASC for the State would submit that when the petitioner was not a Scheduled Caste as Kaibarta a Sub-Caste of Dewar was held as Scheduled Caste in 1981 only, he managed to get through the selection process as a Scheduled Tribe, hence,

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therefore by the time of appointment he was not a candidate of reserved category. With the above submission, Mr. Patra justifies the decision of the SLSC.

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11 . In Mangesh Nivrutti Kashid (supra), the Apex Court held that issuance of caste verification certificate is not a casual exercise and the SLSC must take assistance of the Vigilance Cell to ensure that non-entitled persons do not get benefited at the cost of genuine candidates. In Renuka Majhi (supra), this Court held that extraordinary and equitable jurisdiction under Article 226 of the Constitution of India cannot be exercised in favour of a person, who approached with unclean hands since it was found therein that the father of the petitioners obtained fake ST certificate by tampering School Admission Register and took unfair advantage in securing their employment. In Dayaram (supra), the Supreme Court considered the effect of the decision in Madhuri Patil (supra) in absence of suitable legislation and the laudable purpose it is intended to achieve. Madhulika Guruprasad Dahir (supra), it is held and observed that the appointment based on false caste certificate despite delay in taking decision by the SLSC or that the appointee had put in long service in the meanwhile cannot be a ground to overturn it since equity, sympathy and generosity have no place in such a situation. In Nityanand Sharma (supra), the Apex Court declined judicial intervention vis-à-vis the Presidential Order with a conclusion that alteration, inclusion, substitution or exclusion therefrom cannot be ordered by the Court nor it can declare synonyms of the SCs/STs or parts or groups thereof mentioned therein. The petitioner is alleged of having committed fraud since he has not been a Scheduled Caste or Scheduled Tribe but treated as an ST and continued to receive promotions with other citations referred to above, which are not elaborately and separately discussed since the law on the subject is well settled.

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12 . The materials on record through Annexure-B/2 series show that the petitioner was considered as an ST during the time of promotions. It is also admitted that on complaint received, an enquiry was held with a disciplinary proceeding initiated against the petitioner and though the Inquiring Officer recommended that the charges could not be established and hence he may be exonerated, the Government was pleased to impose the punishments withholding two increments without cumulative effect and treated the period of suspension as such without relieving him from service. So to say, the petitioner as it appears was allowed to continue in service being treated as an SC. The question hence is, whether any such SC certificate was produced by the petitioner at the time of initial appointment? Or if the petitioner did submit an ST certificate initially while appearing for the recruitment looking at the service record and for availing promotions with such caste status as held by the SLSC? As stated before, the petitioner was provided an opportunity to submit the document produced with the information collected under the RTI Act and since he failed to do so, the SLSC finally proceeded to consider and verify his caste status taking into account the available materials at its disposal.

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13 . To hold that the petitioner had produced an ST certificate at the time of his initial recruitment in absence of any evidence in that regard is unacceptable. Not merely for the reason that during the time of promotions, the service record revealed the petitioner as an ST by itself cannot be a ground to reach at a conclusion that a false and fake caste certificate was produced by him at the time of initial recruitment. There has to be clear and unimpeachable evidence to hold someone guilty of fraud for having produced a fake certificate. To assume such mischief to have been committed by the petitioner without any such material on record, which the SLSC could have directed to be produced by the parent

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department, would not be just, fair and proper. No evidence is also on record to substantiate the allegation that the petitioner produced a fake SC certificate which admittedly he was not since Sub-Caste Kaibarta was treated as SC in the year 1981, whereas, the recruitment was held much earlier. It could be possible that an SC certificate was produced having been obtained issued under the impression that the caste Kaibarta is synonymous to Dewar, which is a Scheduled Caste as per the Presidential Order but again the Court is not to presume or assume it. The disciplinary proceeding was initiated and the penalties were imposed on the petitioner and he has apparently been treated as a Scheduled Caste since then for whatever reasons. So, therefore, the Court is left with no option except to hold that the conclusion of the SLSC that the petitioner is guilty of fraud ever since his initial appointment is indefensible in absence of evidence on record to support it. The Court is alive to the settled position of law and principles enunciated by the Apex Court in the decisions referred to above but is of the humble view that the recommendation of the SLSC for action against the petitioner as per the final order dated 23^rd August, 2013 cannot be sustained.

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14 . Hence, it is ordered.

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15 . In the result, the writ petition stands allowed for the reasons assigned. As a logical sequitur, the final order dated 23^rd August, 2013 of the SLSC vide Annexure-7 is hereby quashed, however, in the circumstances, there is no order as to costs.

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(R.K. Pattanaik) Judge

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Signature Not Verified

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Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. StenographerTudu Reason: Authentication Location: OHC,CTC Date: 20-Feb-2024 11:07:35

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Kshirod Ku.Majhi v. State and Ors.

Case brief

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Kshirod Ku.Majhi v. State and Ors.

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