Binod Saha & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 2280 Cal

04.04.2023
sayandeep
Sl. No. 01
Ct. No. 05



                                WPA 18549 of 2022

                                  Binod Saha & Ors.
                                       -Versus-
                           The State of West Bengal & Ors.

                   Mr. Syamal Kr. Das
                   Mr. Krishna Yadav
                                               ..... for the petitioners

                   Mr. S.N. Mookherjee
                   Mr. Sk. Md. Galib
                   Ms. Subhra Nag
                                                     ......for the State


                   The petitioners have challenged the vires of Rule

             3 of The West Bengal Scheduled Castes and Scheduled

             Tribes (Identification) Rules, 1995 and the Guidelines

             issued   vide a Memorandum dated 27.07.2015.          The

             petitioners have prayed for an interim order restraining

             the respondent No. 3, being the Sub-divisional Officer,

Malda Sadar, from proceeding in terms of an order

passed by the said authority on 20.06.2022 and served

on the petitioners under cover of a letter dated

28.07.2022.

The impugned order directed the

petitioners/certificate holders of Caste Certificates to

deposit the original certificates in the office of the SDO

and to submit their replies as to why the certificates

should not be cancelled under Rule 3 of the West

Bengal Scheduled Castes and Scheduled Tribes

(Identification) Rules, 1995. The petitioners were given

15 days to respond to the impugned order and submit

their replies.

Learned counsel appearing for the petitioners

submits that the impugned order is liable to be

challenged as the decision was taken by an individual

without the order being referred to the Committee as

constituted under Section 8A of The West Bengal

Scheduled Castes and Scheduled Tribes (Identification)

Act, 1994. Counsel submits that the petitioners have a

right to have the decision referred to the Committee as

provided under the 1994 Act and for the Committee to

arrive at a fresh decision on the impugned findings.

Counsel relies on a Judgment of a co-ordinate Bench in

Krishnapada Sardar & Anr. vs. The State of West Bengal

in WP No. 24655(w) of 2018 in this respect.

The learned Advocate General appearing for the

State respondents relies on a Notification published in

the Official Gazette on 28th November, 2022 inserting

Section 9A in the 1994 Act under which an appeal

against any cancellation of a certificate would lie to the

District Magistrate under sub-Section(a) of Section

9A(1). Counsel places a judgment of a Division Bench

of this Court in Sri Biswajit Das vs. The State of West

Bengal reported in (2017)5 CHN 497.

The limited question which is to be considered at

the stage of interim relief is whether the petitioners can

seek a direction on State Scrutiny Committee to revisit

the findings and directions in the impugned order

passed by the SDO/Certificate issuing authority.

A reading of Sections 9(1) and 9(2) of the 1994 Act

would indicate that both these provisions are

independent of each other. Section 9(1) empowers the

certificate issuing authority to make an enquiry as to

the furnishing of any false information,

misrepresentation or suppression of any material

information by the certificate-holder and take steps for

canceling, impounding or revoking of such certificate in

the manner as prescribed under Rule 3 of The West

Bengal Scheduled Castes and Scheduled Tribes

(Identification) Rules, 1995. Section 9(2) confers the

same powers on the State Scrutiny Committee to

cancel, impound or revoke a certificate on the basis of

the person furnishing false information,

misrepresentation. Sections 9(1) and 9(2) do not

mandate that a person aggrieved by an order passed by

the certificate issuing authority under Section 9(1) will

have an automatic right to approach the State Scrutiny

Committee under Section 9(2).

This was also the finding of a co-ordinate Bench

in Sumitra Sarkar vs. State of West Bengal & Ors. - WPA

15952 of 2018 which held Krishnapada Sardar & Anr.

Vs. The State of West Bengal to be per incuriam. Notably,

both the judgments were passed by the same learned

Judge. This line of reasoning can also be found in an

earlier Division Bench decision in Sri Biswajit Das vs.

The State of West Bengal; (2017) 5 CHN 497. The

decisions in Kumari Madhuri Patil vs.. Addl.

Commissioner, Tribal Development; (1994)6SCC 241

were also considered and the Division Bench held that

the decisions will only have persuasive value.

The Notification placed by the learned Advocate

General on Section 9A as providing an appellate forum

to an aggrieved party from an order of cancellation by

the certificate issuing authority is restricted to a post-

cancellation scenario. In the present case, the

impugned order has not reached that stage and is in

the nature of a show-cause where the petitioners are to

respond to the allegations therein.

This Court has also independently read and

considered the import of Rule 3 of the 1995 Rules.

Rule 3 provides for the procedure for cancellation

of a certificate. Under Rule 3(1), a certificate issuing

authority is authorized to act on a complaint by any

person or suo motu and take appropriate action against

a person who is the holder of a Scheduled Caste or

Scheduled Tribe Certificate on the ground that the

person concerned does not belong to the Scheduled

Caste or Scheduled Tribe. The certificate issuing

authority is empowered to hold a preliminary enquiry

and is under an obligation thereafter to record the

reasons as to its satisfaction of the truth or otherwise of

the complaints received and start proceedings for

cancellation of a certificate if required. Under sub-Rule

(2), the certificate issuing authority is further

authorized to ask the certificate holder, by way of a

written notice, to deposit the certificate in original.

Sub-Rule (3) refers to the next stage which is that the

certificate issuing authority shall issue a notice to the

certificate holder asking to show-cause within a period

of 15 days or as the authority may think fit as to why

the certificate should not be cancelled, impounded or

revoked.

The present writ petition has been filed at the

stage of Rule 3(3) of the 1995 Rules where the petitioner

has received the order dated 20.6.2022 to show-cause

as to why the petitioner's Tribe Certificate shall not be

cancelled. The petitioner has also been asked to deposit

the original certificate. It is clear from Rule 3(4)(a) that

the petitioner will be given an opportunity to give

evidence in support of the petitioner's caste and against

findings of the show-cause Notice. Rule 3(4)(a) provides

that the certificate issuing authority shall fix a date of

hearing and the certificate holder shall be at liberty to

bring oral or documentary evidence against or in

support of the caste or tribe identity of the holder of the

certificate.

Rule 3(4)(a) makes it clear that the petitioner

shall not be deprived of any opportunity of hearing

before a final decision is taken by the certificate issuing

authority. The contentions of the petitioner brought

before the Court at this stage can well be taken at the

time of hearing before the certificate issuing authority

as provided under the Rules.

The order passed by this Court in Subhajit

Mandal vs. The State of West Bengal & Ors., shown by

the Advocate General is not relevant to the present facts

since that order was passed against an order of

cancellation by the concerned SDO.

This Court finds no reasons to interfere with the

impugned order in view of the above reasons.

Since counsel appearing for the petitioners and

the Advocate General are yet to address the Court on

the challenge to the vires of Rule 3 of the 1995 Rules,

the matter is to be listed on 12th April, 2023 for hearing

counsel on that issue.

(Moushumi Bhattacharya, J.)