Dharmananda Nayak Vs State of Odisha

Instant writ petition is filed by the petitioner challenging the issuance of notice dated 25^th April, 2017 under Annexure-5 and the proceeding initiated at the behest of opposite party No.6 with a direction to file show cause vis-à-vis complaint received on his caste status on the grounds inter alia that the same is untenable in law and hence, liable to be interfered with and set aside morefully on account of cancellation of Caste Certificate by opposite party No.4 and pendency of appeal before opposite party No.3.

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W.P. (C) No. 5416 of 2017 :

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Present writ petition is filed by the petitioner for quashment of orders under Annexures-1 & 2 with respect to cancellation of Caste Certificate by a decision of opposite party No.4 and consequential order of his removal from Government service by opposite party No.5 on the ground, such as, he is a Schedule W.P. (C) No. 9452 & 5416 of 2017 Page 1of 11

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Caste with caste ‘Patratanti’ which finds place in Entry 76 of the Schedule Part-XIII concerning Odisha of the Presidential Order, 1950, hence, such cancellation on the premise of ‘Pataratanti’ being not a Schedule Caste under the list published in the State Gazette with a decision thereon followed by order of termination to be legally not tenable.

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4 . Herd Mr. Mukherjee, learned Senior Advocate appearing for the petitioner and Mr. Rout, learned AGA for the State.

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5 . The undisputed facts are as follows. The petitioner joined as LD Clerk in the year 1979 and thereafter, appointed as Junior Assistant and joined in the establishment of Odisha State Sales Tax Tribunal, Cuttack in 1983. After clearing the Accounts Examination in 1987 and 1993, the petitioner was promoted to the post of Senior Assistant on a temporary basis on 16^th April, 1992 and was confirmed in the said post w.e.f 1^st August, 1985. As pleaded on record, the petitioner obtained the Caste Certificate dated 12^th January, 1977 and submitted the same at the time of his entry into the Government service with a caste ‘Patratanti’ but thereafter, it was cancelled by the learned District Welfare Officer, Puri and on such cancellation, it was challenged before the learned Collector, Puri, who set it aside and directed a fresh hearing and disposal in accordance with law complying the principles of natural justice, whereafter, a de novo proceeding was commenced, wherein, he filed reply on 25^th June, 2001. It is alleged that the learned District Welfare Officer, Puri in flagrant violation of the settled legal position and in a most cavalier manner passed the order of cancellation dated 19^th November, 2016, while exercising powers under Rule 8(2) of Odisha Caste Certificate (for Scheduled Castes and Scheduled Tribes) Rules, 1980 (hereinafter referred to as ‘the Rules’) without considering

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the show cause reply and response received from him and even did not bother to serve a copy of the said order (Annexure-3) later to which his service was terminated by the order of the Chairman, Odisha Sales Tax Tribunal, Cuttack. It is also not in dispute that the petitioner against the aforesaid decision on cancellation of Caste Certificate filed an appeal as provided under Rule 9 of the Rules pending before the learned Collector, Puri. It is further alleged that despite repeated requests even approaching the Grievance Cell on 30^th January, 2017, the appeal has not been disposed of yet. The decision as to cancellation of Caste Certificate and subsequent order of termination from service is under challenge in W.P.(C) No.5416 of 2017. Against the aforesaid backdrop, the petitioner questions the fresh action with notice by the State Level Scrutiny Committee (in short ‘SLSC’) with the plea that the same is a futile exercise all the more when the Caste Certificate earlier issued to him was later cancelled by the learned District Welfare Officer, Puri, subject-matter of which, is pending final decision in appeal before the learned Collector, Puri.

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6 . Mr. Mukherjee, learned Senior Advocate appearing for the petitioner would submit that the SLSC has no jurisdiction to initiate the proceeding and issue notice dated 25^th April, 2017 in view of the guidelines of the Apex Court in the case of Kumari Madhuri Patil Vrs. Additional Commissioner AIR 1995 SC 94 and the same is also not in consequence with the decision in Dayaram Vrs. Sudhir Batham (2012) 1 SCC 333. It is contended that the authorities below have given a go by to the principles of the natural justice as the petitioner was not provided any opportunity of hearing before cancellation of Caste Certificate and again with a notice for the purpose of verification of caste status, an action which is clearly not maintainable after such cancellation by the

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order of the learned District Welfare Officer, Puri. It is alleged that since there has been illegality committed by the concerned authority in cancelling the Caste Certificate even though an appeal is filed and pending disposal before the learned Collector, Puri, the action pursuant to notice by the SLSC is with a purpose and oblique motive to cure the illegality or any such defect of the earlier proceeding and to regularize it. As further submitted by Mr. Mukherjee, no cause of action lies for the SLSC to consider or verify the caste status of the petitioner morefully when the certificate issued to him stands cancelled in the meantime by order dated 19^th November, 2016 of the learned District Welfare Officer, Puri. In other words, according to Mr. Mukherjee, the exercise which has been undertaken with the issuance of notice by the SLSC is on the premise and for having a fake Caste Certificate to have been issued in favour of the petitioner which is no more in existence, the same having been cancelled by the learned District Welfare Officer, Puri. Referring to the decision in Dayaram (supra), it is argued by Mr. Mukherjee that the role and responsibility of the SLSC is only to carry out verification of Caste Certificates issued without prior enquiry or on the basis of selfaffidavits received from the applicants but cases where enquiry followed and held by the authority concerned with issuance of Caste Certificates are excluded therefrom. It is claimed that once there has been an enquiry and on the basis of an enquiry, a Caste Certificate was issued, in under such circumstances, without any evidence to show absence of any prior enquiry or such issuance to be based on self-declaration of the petitioner, the matter cannot be taken cognizance of by the SLSC, hence, therefore, issuance of notice for a show cause reply by him is beyond its scope and jurisdiction and furthermore, as per the settled law enunciated by the Apex Court in Dayaram (supra), the Committee is having no authority to reinvestigate into the matter. In fact, the contention W.P. (C) No. 9452 & 5416 of 2017 Page 4 of 11

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is that the SLSC cannot step into the shoes of the learned Collector, Puri like an Appellate Authority to examine and verify the caste status of the petitioner and therefore, impugned action notice dated 25^th April, 2017 even after cancellation of the Caste Certificate in 2016 and pendency of appeal before learned Collector, Puri suffers from legal infirmity. It is lastly contended that the removal of the petitioner from the Govt. service is unjust and illegal.

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On the contrary, Mr. Rout, learned AGA for the State justifies the initiation of action by the SLSC. Mr. Rout submits that the petitioner belongs to ‘Pataratanti’ caste which is not a Schedule Caste since as per the Presidential Order, ‘Patratanti’ is shown at Entry 76 under SC category of the said Order and the same is a different community and not similar in profession, so therefore, the cancellation by the order of the learned District Welfare, Puri is not erroneous. According to Mr. Rout, learned AGA, a field enquiry was held and the same revealed that the petitioner does not belong to the caste ‘Patratanti’ and considering the material received during such enquiry with a report i.e. Annexure A/4 of the counter of opposite party No.4 in W.P. (C) No.9452 of 2017, the cancellation was ordered. With respect to the notice by the SLSC referring to the reply affidavit filed therein by opposite party No.6, namely, RDC-cum-Chairman, SLSC, Central Division, Odisha, Cuttack, it is further submitted that on receipt of a complaint from an Advocate in 2013 regarding production of a false SC Caste Certificate by the petitioner, the matter was referred to the SLSC and as per the guidelines issued by the State Government in ST & SC Development Department, Odisha, the District Vigilance Cell (DVC) was requested to hold an enquiry, whereafter, a report was received. It is stated that the action has been initiated by the SLSC in 2013, whereas, the cancellation of

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Caste Certificate issued in favour of the petitioner has taken place in 2016, hence, therefore, the Committee has in no way exceeded its jurisdiction by serving a notice in 2017 and furthermore when, it was not aware of any such appeal to be pending before the learned Collector, Puri. In any case, Mr. Rout, learned AGA considers that the petitioner is not to be a Schedule Caste but of caste ‘Pataratanti, which is not similar to ‘Patratanti’ mentioned in the Presidential Order.

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8 . As per the resolution dated 2^nd May, 2006 of Government of Odisha in ST & SC Development Department, the SLSC has been constituted for verification of Caste Certificates. As per the said resolution, the Committee shall take up verification or scrutiny of the Schedule Caste/Schedule Tribe Certificates or applications referred to them for consideration and on such scrutiny or verification, if any such Caste Certificate is found to be false or spurious, it shall take a decision for its cancellation directing the issuing Authority to cancel the same with necessary consequences to follow. Such enquiry by the SLSC shall be in accordance with the directions of the Apex Court issued in the case of Kumari Madhuri Patil (supra). In fact, by resolution dated 1st January, 2010, ST & SC Development Department constituted a Vigilance Cell and outlined the manner in which enquiry into the caste status to be held and submitted for a decision of the SLSC. The very purpose of the SLSC is to verify the Caste Certificate in order to find out and ascertain as to if the same to be false or spurious. An elaborate process is to be followed and on receiving the reports of enquiry and evidence, the SLSC shall have to consider the genuineness of a Caste Certificate. As per the decision of Dayaram (supra), which has taken judicial notice of the scheme of verification formulated in Kumari Madhuri Patil (supra), the SLSC is to carry out verification of Caste Certificates issued without

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prior enquiry or on the basis of self-affidavits received with respect to the caste claims and in case, after due and proper enquiry, it is found that such is not the case, the certificates shall not be called for verification, inasmuch as, a verification is only for the purpose and with an intent to avoid false and bogus claims.

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9 . In the case at hand, the question is, whether, the petitioner belongs to the caste of ‘Patratanti’ which finds in the list under SC category in the Presidential Order and if at all, notice by the SLSC is proper and justified? In fact, an enquiry was held in connection with the caste status of the petitioner at the level of the learned District Welfare Officer, Puri. Such enquiry has led to the cancellation of Caste Certificate issued in favour of the petitioner. It is an admitted fact that the decision of the learned District Welfare Officer, Puri has been challenged and the same is pending decision in appeal. In the meantime, such a notice by the SLSC is received and served on the petitioner. As per the said notice, an enquiry was held by the District Vigilance Cell, on receipt of which, the petitioner was directed to submit the show cause reply. As it is made to suggest, the action initiated at the instance of the SLSC is on similar ground later to the receipt of a complaint from a lawyer. It is not in denial that even before initiation of the proceeding with the impugned notice at the behest of the SLSC, the Caste Certificate issued in favour of the petitioner stood cancelled. As there has been cancellation of Caste Certificate, according to Mr. Mukherji, learned Senior Advocate, no cause of action remains for any such proceeding before the SLSC.

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10 . So far as the evidence received by the learned District Welfare Officer, Puri is concerned, it is to be examined by the Appellate Authority. The claim of the petitioner regarding no opportunity

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being provided to question the material and evidence on record received by the learned District Welfare Officer, Puri is to be examined in appeal. The nature of evidence received by the authority concerned, which persuaded to take a decision against the petitioner with cancellation of Caste Certificate issued to him, is a matter to be looked into and thrashed out in appeal. In other words, the Court is of the view that the petitioner is having the scope and opportunity to challenge the decision vis-à-vis the cancellation of Caste Certificate confronting the evidence received towards it and such an exercise would be undertaken in the appeal pending before the learned Collector, Puri. The appeal is a continuation of the proceeding, hence, therefore, all such decision on facts and whether, the petitioner was provided reasonable opportunity to defend or otherwise could be taken cognizance of and decided while disposing it of. The contention of the petitioner and challenge to the notice is on the premise that nothing remains for the SLSC to do and deal with after cancellation of the Caste Certificate. Of course, an elaborate procedure is prescribed and to be followed by the SLSC at the time of verification of the caste claim. But then, when the Caste Certificate is already cancelled, what could possibly be an exercise by the SLSC under such circumstances. The cancellation of Caste Certificate of the petitioner is claimed to be not within the knowledge of the SLSC. At the cost of the repetition, it is stated that the duty and responsibility assigned to the SLSC is only to examine false and bogus claims on caste status. Such a Committee is in place to carry out verification of Caste Certificates issued without prior enquiry. It is also to be borne in mind that a proper enquiry with the issuance of Caste Certificate excludes the engagement of the SLSC. In other words, the Committee is not to undertake any further exercise in case proper enquiry was held by the authority concerned at the time of issuance of the Caste W.P. (C) No. 9452 & 5416 of 2017 Page 8 of 11

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Certificates. When an appeal is pending disposal before the learned Collector, Puri, again a question would arise, what the SLSC shall do after the cancellation of the Caste Certificate of the petitioner and whether, it is to confirm or reaffirm such decision or engage itself to reverify. In the humble view of the Court, any such re-examination or further verification by the SLSC, in the present set of facts, is not contemplated keeping in view the legal position expounded. If there is a Caste Certificate issued with no enquiry at all or on the basis of self-declaration receiving affidavits which are unlikely to establish the caste status conclusively, in under such circumstances, the SLSC is to carry out the verification of the same and not otherwise. The SLSC is not to involve itself in any such exercise where there has been a proper enquiry held. The exercise may be confined to ascertain, whether, prior enquiry was held and carried out before issuance of Caste Certificate. As earlier stated, initial enquiry was held by the learned District Welfare Officer, Puri, who rejected the petitioner’s caste claim and the same is challenged and currently lying before the learned Collector, Puri for a decision in appeal. As against the aforesaid background after cancellation of Caste Certificate of the petitioner, the conclusion of the Court is that further verification by the SLSC is unwarranted. It is not for the SLSC to reaffirm or confirm the decision on cancellation of Caste Certificate which has already taken place. So to say, during the pendency of the appeal before the learned Collector, Puri, a fact which is claimed to be not within its knowledge, any such further exercise by the SLSC with issuance of notice would certainly be a futile exercise.

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As regards termination of service of the petitioner, since the Caste Certificate has been cancelled supposedly with an enquiry by the learned District Welfare Officer, Puri, which is yet to be confirmed in appeal by the learned Collector, Puri, any such

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decision in that regard, as to if the same is justified and according to law, shall have to depend on the final order. Since on the ground of absence of a proper hearing before cancellation of Caste Certificate, the action is challenged besides opposing the notice issued by the SLSC, whether the petitioner is ‘Patratanti’ or ‘Pataratanti’ as it has been claimed by the State that both the castes are not similar, one of which is in the list of SC in the Presidential Order, till such time, a decision is rendered by the learned Collector, Puri on all such aspects, it would not be possible to reach at a conclusion about his termination from service to be illegal. Such removal from service of the petitioner on the premise that he furnished a fake Caste Certificate depends on the outcome in appeal. Hence, to question of the decision of the employer, the petitioner shall have to prove and satisfy that the Caste Certificate issued to him is not fake and it was based on proper enquiry and that he belongs to the caste ‘Patratanti’. So, therefore, the final conclusion of the Court is that the action with issuance of notice by the SLSC, in the peculiar facts and circumstances of the case, is uncalled for morefully when there has already been cancellation of Caste Certificate of the petitioner, however, termination of service of the petitioner and a decision thereon has to be subject to the result in appeal pending before the learned Collector, Puri.

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Hence, it is ordered.

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In the result, the writ petition in W.P.(C) No. 9452 of 2017 stands allowed. As a necessary corollary, the impugned notice under Annexure-5 issued by opposite party No.6 is hereby quashed, whereas, the other writ petition in W.P.(C) No. 5416 of 2017 is disposed of with the observations made herein before and conclusion drawn carrying a direction for opposite party No.3

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therein to expedite hearing and disposal of the appeal filed by the petitioner against the decision of opposite party No.4 on cancelation of Caste Certificate issued to him at the earliest preferably within eight weeks from the date receipt of a copy of the judgment, whereafter, subject to the decision in respect thereof, opposite party No.5 shall do well and deal with the subject matter in accordance with law.

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(R.K. Pattanaik) Judge

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Kabita/Rojina

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Signature Not Verified

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Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 24-Apr-2024 10:57:05

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W.P. (C) No. 9452 & 5416 of 2017 Page 11 of 11

Dharmananda Nayak v. State of Odisha

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Dharmananda Nayak v. State of Odisha

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