THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Sri Rajesh Jaiswal, S/o Sri Radha Raman Jaiswal, Resident of Thana Back Road, Ward No. 11, New Amolapatty, Golaghat Versus- WP(C) No. 1051/ Petitioner 1. The State of Assam, Represented by Commissioner and Secretary, Welfare of Plains Tribe & Backward Classes Department, Dispur, 2. The Deputy Secretary, Welfare of Plains Tribe & Backward Classes Department, Dispur, 3. The Deputy Commissioner, Golaghat, Government of Assam, Office of the Deputy Commissioner, Golaghat. 4. Additional Deputy Commissioner, Golaghat, Government of Assam, Office of the Deputy Commissioner, Golaghat. 5. Sub-Divisional Officer (S), Golaghat, Office of the Deputy Commissioner, Golaghat. 6. Director (Higher Education), Assam, Kahilipara, Guwahati Golaghat Commerce College, Represented by the Governing Body through its President, P.O. Golaghat, Dist- Golaghat. 8. Sri Bijoy Kumar Das, S/o Late Mona Ram Rabi Das, Resident of Hindi School Road, P.O. & P.S. Golaghat, Dist-Golaghat, Assam. 9. Golaghat District Anusuchit Jati Parishad, Chandmari (Near Circuit House), Golaghat , Assam, through its President. *** As per the Hon ble Court s order dated , passed in Misc. Case No. 2529/2008 in, respondent Nos. 8 and 9 have been impleaded. - Respondents BEFORE HON BLE MR. JUSTICE A. K. GOSWAMI

2 2 Advocates present: For the petitioner : Mr. K. N. Choudhury, Senior Advocate Mr. D. Nath, Advocate, For respondent Nos. 1 to 6 : Ms. M. Goswami, Government Advocate, For respondent Nos. 8 and 9 : Mr. S. Borgohain, Advocate, Dates of hearing : and Date of judgement and order : JUDGMENT AND ORDER (ORAL) Heard Mr. K. N. Choudhury, learned Senior counsel, appearing for the petitioner. Also heard Ms. M. Goswami, learned State counsel, appearing for respondent Nos. 1 to 6, and Mr. S. Borgohain, learned counsel, appearing for respondent Nos. 8 and 9. Also heard Mr. R. Phukan, learned counsel for respondent No The petitioner claims to be a member of Bania community, which falls under Scheduled Caste. The Sub-Divisional Officer (S), Golaghat, had issued a Caste Certificate dated certifying that the petitioner belongs to Bonia caste, which is recognized as a Scheduled Caste under the Constitution (Scheduled Caste) Order, Ten years down the line there was an advertisement dated issued by the Principal i/c and Secretary, Golaghat Commerce College, inviting applications for filling up the posts of, amongst others, Lecturers in Commerce, indicating therein that preference would be given to SC/ST candidates. The petitioner responded to the said advertisement and, on being successful, was appointed by an order dated and the petitioner is still continuing to serve the said institution. While the petitioner was so discharging his duties as a Lecturer, the President, Golaghat Block Congress Committee and another lodged a complaint on (Annexure-10) before the Deputy Commissioner, Golaghat, contending that the petitioner may belong to any other caste but not Bania Caste. On the said complaint, an enquiry was conducted through Extra Assistant Commissioner, Golaghat, and he submitted a report dated holding that it would not be justifiable to come to a conclusion that the petitioner does not belong to Scheduled Caste or that he produced fake Schedule Caste Certificate to get the job of Lecturer. However, it was opined that a clarification may be sought from the Government as to whether Jaiswal community is considered as Bania Caste. Thereafter, on , respondent No. 8, who was a former Member of Sub- Divisional Scheduled Caste Development Board, Golaghat, lodged a complaint (Annexure- 14) before the Commissioner to the Government of Assam, WPT & BC Department, praying

3 3 for cancellation of the Scheduled Caste certificate issued in favour of the petitioner. In the said complaint, it is stated that the petitioner belongs to Kalwar community and, furthermore, his father having come from Uttar Pradesh, he cannot be recognized as an indigenous and native Bania community of Assam. 3. By a letter dated , the Deputy Secretary to the Government of Assam, WPT & PC Department, wrote a letter to the Deputy Commissioner, Golaghat, to make a proper verification and submit a report to WPT & BC Department. On , respondent No. 9 lodged a complaint (Annexure-16) before the Deputy Commissioner, Golaghat, against the petitioner in respect of his Caste Certificate. Vide letter dated (Annexure-17), the Deputy Secretary to the Government of Assam, WPT & PC Department, informed the Deputy Commissioner, Golaghat, that Joyshowal community or outside the State of Assam cannot be considered Bonia community of Assam and accordingly requested him to take urgent necessary action. On a notice was issued by the Deputy Commissioner, Golaghat, to the petitioner to show cause as to why the Caste Certificate dated , issued to the petitioner, should not be cancelled and asked the petitioner to furnish his explanation within 15 days from the date of receipt of the notice failing which, it was indicated that an enquiry would be conducted without waiting for his explanation. It appears that one Sub-Divisional Officer (S) was appointed as Enquiry Officer and the Enquiry Officer, thereafter, submitted an enquiry report dated (Annexure-22) to the Additional Deputy Commissioner, Golaghat, opining that the petitioner is not a member of Bania community which is recognized as Schedule Caste in Assam. Thereafter, based on the aforesaid report dated as well as the Government letter dated , the Deputy Commissioner, Golaghat, by his order dated (Annexure-23), cancelled the Caste Certificate issued to the petitioner holding that the petitioner is not a member of Bania community of Assam which is recognized as Scheduled Caste. The petitioner has put to challenge in this writ petition the letter dated (Annexure-17), the Enquiry Report dated (Annexure-22) and the order dated (Annexure-23). 4. Mr. Choudhury, learned Senior counsel for the petitioner has not invited the attention of the Court to the merits of the case and has submitted that any dispute relating to the Caste Certificate issued to the petitioner has to be adjudicated, in view of the decision of the Apex Court in the case of Kumari Madhuri Patil and Another vs. Additional Commissioner, Tribal Development and Others, reported in (1994) 6 SCC 241, by a Caste Scrutiny Committee and, therefore, the decision taken to cancel the Caste Certificate of the petitioner is wholly without jurisdiction as it was the Deputy Commissioner who had

4 4 cancelled the Caste Certificate earlier granted to the petitioner without the same being subjected to scrutiny by the Caste Scrutiny Committee as envisaged in Kumari Madhuri Patil (supra). Mr. Choudhury has also placed reliance on a judgement of this Court in the case of Pritam Rongpi vs. State of Assam and Ors., reported in 2008 (1) GLT 248, wherein, in a similar circumstance, this Court had observed that the dispute relating to Caste Certificate had to be considered by the Scrutiny Committee. 5. Mr. S. Borgohain, learned counsel for respondent Nos. 8 and 9 has submitted that there was no compliance by the State of Assam of the Direction of the Apex Court, as given in the judgement rendered in Kumari Madhuri Patil (supra), towards constitution of a Caste Scrutiny Committee as well as of the order of this Court in Pritam Rongpi (supra) and that the decision rendered by the Deputy Commissioner cannot be held to be arbitrary and illegal. He has submitted that the Caste Certificate of the petitioner was cancelled after affording due opportunity of hearing to the petitioner and by observing principles of natural justice and, therefore, no interference is called for with the order of the Deputy Commissioner cancelling the Caste Certificate issued to the petitioner. He has further submitted that in the event this Court does not accept the contention that the cancellation of the petitioner s Caste Certificate was not rightly done by the Deputy Commissioner, direction should be issued to the Government to constitute a Caste Scrutiny committee within a specified time-frame so as to ensure that the issue raised by the respondent Nos. 8 and 9 is dealt with and resolved within a definite time-bound period. 6. Mr. Borgohain has further submitted that in such eventuality, pending adjudication by the Caste Scrutiny Committee, the finding recorded by the Deputy Commissioner, Golaghat should be allowed to prevail without, however, affecting the service condition of the petitioner at the moment, subject to the finding of the Scrutiny Committee. 7. Mr. Phukan has submitted that in view of the report, it appears to the respondent No. 7 does not belong to Bania Community and that the Caste Certificate of the petitioner was rightly cancelled. He has also adopted the arguments of Mr. Borgohain. 8. Though the case was taken up on and five days had elapsed in the meantime, it appears that Ms M. Goswami, learned State counsel has not received any instruction as to whether Caste Scrutiny Committee is in existence despite arguments advanced by Mr. Borgohain on contending that there is no Caste Scrutiny Committee. In the affidavit filed by the respondent No. 1 also this aspect was not adverted to and in the said affidavit reliance is placed on the report of the Deputy Commissioner, Golaghat.

5 5 9. I have considered the submissions for the learned counsel for the parties and also perused the materials on record. 10. However, it is to be noted that in Pritam Rongpi (supra) as it was submitted before the Court that no Scrutiny Committee had been constituted, this Court had directed constitution of the Scrutiny Committee and Vigilance Cell within a period of 30 days from the date of receipt of the order. 11. This Court will have no reason to presume that the order of this Court, in Pritam Rongpi (supra), was not duly complied with. Yet, at the same time, this Court is not in a position to comment decisively as to whether as of today there is a Scrutiny Committee. But mandate of law is that the State must have a Scrutiny Committee for scrutiny in respect of issuance and cancellation of social status certificate. If there is no scrutiny committee, the State respondents will constitute a Scrutiny Committee within a period of one month from today. 12. The Apex Court in Paragraph 13(4) and 13(15) of Madhuri Patil (supra) had given the following directions: 4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. *** *** *** 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. 13. No doubt notice was issued by the Deputy Commissioner to the petitioner to show cause as to why his caste certificate should not be cancelled and the petitioner was also

6 6 afforded opportunity of hearing. However, in view of the decision rendered in Madhuri Patil (supra), I am of the considered opinion that dispute relating to the caste of the petitioner has to be considered by the Caste Scrutiny Committee. The Caste Scrutiny Committee shall decide the issue within a period of three months from the date of constitution, if not already constituted. 14. I am not inclined to accept the submission of Mr. Borgohain that till the decision is rendered by the Caste Scrutiny Committee, the decision rendered by the Deputy Commissioner, Golaghat should be allowed to prevail as it is the Caste Scrutiny Committee which is the authority to decide the question as to whether the petitioner belongs to a particular caste or not. 15. In that view of the matter, the order dated passed by the Deputy Commissioner Golaghat as well as the reports leading to the passing of the said order are quashed. 16. The respondent Nos. 8 and 9 are permitted to produce a certified copy of this order along with the copy of the complaints, i.e. Annexure-14 and Annexure-16 before the Caste Scrutiny Committee for necessary action in terms of this order. 17. The petition is allowed as indicated above. No cost. JUDGE RK

7 7 As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.