Chattisgarh High Court
Smt. Vidya Kumbhare vs State Of Chhattisgarh on 30 January, 2023
-1-
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (C) No.95 of 2021
1. Smt. Vidya Kumbhare W/o. Arun Kumbhare, Aged About 42 Years
Occupation- Service, R/o 75, Vidhya Nagar, Wathoda Layout, Near Kali
Mata Mandir, Nagpur (Maharashtra).
---- Petitioner
Versus
1. State of Chhattisgarh Through its Secretary, Scheduled Caste and
Scheduled Tribes Development Department, Mahanadi Bhawan Naya
Raipur, District Raipur Chhattisgarh.
2. The High Power Certification Scrutiny Committee, Raipur, Chhattisgarh,
Through Its Member Secretary, Pandit Deen Dayal Upadhyay Nagar
Sector-4, Raipur Chhattisgarh.
3. State Bank of India, Regional Business Office-I, Zone-I, Kingsway, Nagpur
through its Assistant General Manager.
____
---- Respondents
For Petitioner : Shri Anil Mardikar, Sr. Advocate along
with Shri Gary Mukhopadhyay, Advocate.
For State : Ms. Akanksha Jain, Dy. Govt. Advocate.
For Respondent No.3 : Shri P.R. Patankar, Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
30.01.2023.
1. The challenge in the present writ petition is to the impugned order
Annexure P/1 passed by the respondent No.2 dated 07.09.2019
dispatched to the petitioner on 10.10.2019. Vide the said impugned order
the respondent No.2 have cancelled the caste certificate that the petitioner
had dated 27.03.1995 and 11.01.2000 issued by the office of the Tehsildar,
Rajnandgaon, under the erstwhile State of Madhya Pradesh as it then
stood, certifying that the petitioner belonged to the Halba, Scheduled Tribe
community.
2. Pursuant to the impugned order dated 07.09.2019, as a consequence the
respondent No.3, under whom the petitioner was working, has terminated
the services of the petitioner w.e.f. 04.03.2020.
3. Brief facts of the case is that the petitioner was born in Village Khairagarh,
District Rajnandgaon on 19.12.1978. She completed her education in
District Rajnandgaon itself. Thereafter, she got a caste certificate issued
Annexure P/3 dated 27.03.1995 issued by the office of the Naib Tehsildar,
Rajnandgaon. Based upon the said caste certificate, the petitioner
subsequently got an employment with the State Bank of India, the
respondent No.3, vide order dated 30.06.2020.
4. According to the petitioner, her father namely Balasaheb Varodkar was
infact a native of Village Sendurjana Ghat, District Amravati which was
originally part of C.P. Barar. That on 01.11.1950 under the reorganization
of the States, the new State of Madhya Pradesh was carved out and
District Amravati fell in the State of Maharashtra. The father of the
petitioner also had a caste certificate issued on 17.01.1964 certifying that
the father of the petitioner belonged to the Halba community which falls in
the Scheduled Tribe category. The said certificate was again issued from
the office of the authority authorized by the District Magistrate/Collector,
District Amravati. Based upon the said caste certificate that the petitioner's
father had got an employment with the Postal Department under the
Government of India and was initially posted in the Bastar District of the
erstwhile State of Madhya Pradesh. The order of appointment of the
petitioner's father was of 1965 and on the basis of the said appointment
order the petitioner's father continued to serve in the areas which now
stands within the territories of the State of Chhattisgarh all through his
career till his retirement. The father of the petitioner settled himself at
Khairagarh, District Rajnandgaon where the petitioner was born and
brought up and had also undertaken her education.
5. It would be relevant at this juncture to take note of a circular that was
issued by the Government of India, Ministry of Home Affairs, dated
18.11.1982, the contents of which, for ready reference is being reproduced
hereinunder:
"I am directed to say that it has been represented to this
Ministry that persons belonging to Scheduled
Caste/Scheduled Tribes, who have migrated from one State
to another for the purpose of employment, education etc.
experience great difficulty in obtaining caste/tribe certificate
from the State from which they have migrated. In order to
remove this difficulty, it has been decided in modification of
the instructions issued in letter No.BC-12025/2/76-SCT I,
dated 22.03.1977and letter No.BC-12025/11/79-SC & BCD
I/IV, dated 29.03.1982 that the prescribed authority of a State
Government/Union Territory Administration may issue the
Scheduled Caste/Tribe Certificate to a person who has
migrated from another State, on the production of the
genuine certificate issued to his father/mother by the
prescribed authority of the State of the father's/mother's
origin except where the prescribed authority feels that
detailed enquiry is necessary through the State of origin
before issue of the certificate. The certificate will be issued
irrespective of whether the Caste/Tribe in question is
scheduled or not in relation to the State/Union Territory to
which the person has migrated. This facility does not alter the
Scheduled Caste/Scheduled Tribes status of the person in
relation to the one or the other State. The revised form of the
Scheduled Caste/Tribe certificate is enclosed."
6. The petitioner also, in between, sought for issuance of a caste certificate
and which was duly issued by the office of the Naib Tehsildar vide
Annexure P/3 dated 27.03.1995, based upon which she too got an
employment as has been narrated in the preceding paragraph under the
respondent No.3.
7. Down the line, the respondents No.1&2 is said to have received some
complaint in respect of the caste certificate which was in possession of the
petitioner on the basis of which she had obtained employment. The matter
was subjected to enquiry by the respondent No.2 alleging that the
petitioner belonged to the Koshti community and the caste certificate
declaring the petitioner belonging to Halba community was a fake
document obtained for the purpose of getting an employment. The said
complaint was accepted by the respondent No.2 and put in for
scrutiny/verification/enquiry.
8. From the perusal of the impugned order itself it reflects that the
respondent No.2 upon taking cognizance of the complaint received by
them in respect of the caste certificate of the petitioner, called upon the
petitioner by issuing a notice and asking the petitioner to produce records
to establish that she belonged to the Halba community itself. From the
plain reading of the impugned order it further reflects that the petitioner did
approach the respondent authorities and submitted the documents in
respect of the caste status of her father, the documents which she had in
her favour i.e. the caste certificate that was issued in her favour both on
27.03.1995 and another on 11.01.2000 certifying her to be belonging to
the Halba community. Both of these documents were issued by the
competent authorities of the State Govt.
9. A fact which needs to be further appreciated is that Halba was a notified
Scheduled Tribe in the erstwhile State of C.P. Barar and also now in the
State of Maharashtra as well. It is also a notified Scheduled Tribe in the
State of Madhya Pradesh, so also in the State of Chhattisgarh also.
10. The Vigilance Cell of the respondent No.2 submitted its report to the
respondent No.2, the High Powered Caste Scrutiny Committee, where the
Vigilance Cell's conclusion is reflected in paragraph 7. Relying upon the
said finding the Respondent No.2 held that the two caste certificates that
were in possession of the petitioner issued on 27.03.1995 and 11.01.2000
declaring her of belonging to the Halba Scheduled Tribe community to be
cancelled and thereafter directions were also issued to the respondent
No.3 to take appropriate decisions in the light of the cancellation of the
caste certificate.
11. For ready reference the relevant portion i.e. paragraph 7 of the order dated
07.09.2019 is reproduced hereinunder :
"7. lrdZrk izdks"B }kjk izLrqr vUos"k.k izfrosnu e; vkuq"akfxd
vfHkys[kksa] /kkjd ds }kjk izLrqr dkj.k crkvks uksfVl i= ds
mRrj ,ao muds }kjk izLrqr nLrkostksa ds vk/kkj ij ;g ik;k
x;k fd %&
U;k;ky; rglhynkj] jktukanxkao e-iz- ls fnukad 27-03-1995
,ao fnukad 11-01-2000 dks /kkjd ds }kjk **gYck** vuqlwfpr
tutkfr dk izek.ki= izkIr fd;k x;k gSA
LFkkuh; iz/kku dk;kZy; Hkksiky ds Kkiu fnukad
30-06-2000 ds vuqlkj dq- fo?kk o:M+dkj iq=h Jh ckyklkgsc
o:M+dkj dh fu;qfDr fyfidh; laoxZ esa dh xbZ gSA
/kkjd ds }kjk viuh nkok dh xbZ lkekftd izkfLFkfr dks
lkfcr fd;s tkus gsrq vuqlwfpr tutkfr lac/kh jk"Vªifr
vf/klwpuk fnukad 06-09-1950 dh fLFkfr ds dksbZ Hkh lqlaxr
nLrkost u rks foftysUl lsy ds le{k izLrqr fd;s x;s u gh
Nkuchu lfefr ds le{k izLrqr fd;s x;sA
/kkjd ds }kjk izdj.k ds vUos"k.k esa foftysUl lsy dks
visf{kr lg;ksx iznku djrs gq, Hkjs gq, u`tkrh; izi=]
oa'kkoyh ,ao lqlaxr nLrkost miyCk ugha djk;s x;sA
/kkjd dh cM+h cgu Jherh iq"iyrk MsdkVs ¼o:M+dj½ ds
tkfr izek.k i= dh tkWp lacaf/kr vUos"k.k esa izLrqr vfHkys[kksa
ds vuqlkj /kkjd ds iwoZtksa dk ewy fuokl LFkku lUnqjtuks
?kkV vejkorh egkjk"Vª gksuk ik;k x;kA
lrdZrk izdks"B ds vUos"k.k izfrosnu ds vuqlkj /kkjd ds
iwoZtksa dks fnukad 06-09-1950 ds iwoZ N-x jkT; dh HkkSxksfyd
lhek esa fuokljr gksuk ugha ik;k x;kA /kkjd ds firk o"kZ
1965 esa iksLVy foHkkx nqxZ e-iz esa lsok esa vk,A lkFk gh
/kkjd ds iwoZtksa dk ewy fuokl LFkku lsUnqjtuk ?kkV
vejkorh egkjk"Vª gksuk ik;k x;kA
/kkjd ds }kjk viuh nkok dh xbZ lkekftd izkfLFkfr dks
nLrkosth lk{;ksa ds ek/;e ls lkfcr ugha fd;k tk ldkA
vFkkZr~ os viuh tkfr dks lkfcr djus esa iw.kZr% vlQy
jgsA**
12. Consequently, vide Annexure P/13 dated 04.03.2020, the respondent No.3
issued the order of termination terminating the services of the petitioner
from the respondent No.3-Bank.
13. The contention of the counsel for the petitioner was that the impugned
order is per se bad for the reason that there was no independent enquiry
as such conducted by the Vigilance Cell of the respondent No.2. There
was no evidence or proof collected by the Vigilance Cell to hold that the
petitioner belonged to some other caste or Tribe other than the Halba
Tribe of which the petitioner and her father have a caste certificate issued
from the competent authority under the State Govt. That, the entire basis
for the issuance of the impugned order was the finding that is reflected in
Paragraph-7 which by itself would reveal that there was no separate
enquiry conducted by the respondent No.2. Nor did the Vigilance Cell
under the respondent No.2 except for the directions given to the petitioner
to produce documents to establish that they belonged to the State of
Chhattisgarh of a period prior to 06.09.1950 i.e. the date on which the
Presidential notification was published so far as the social status is
concerned collect any sort of information so far as the social status of the
petitioner or her family.
14. To counter this, the counsel appearing for the State submitted that from
the plain reading of the impugned order itself it would reveal that they
were issued with notices and with periodical reminders to approach the
respondent No.2 by producing strong and cogent documents to establish
that they did belong to the Halba community. They were also granted
sufficient opportunity and time to produce documents in respect of their
proof of being residents of the State of Chhattisgarh of a period prior to
06.09.1950. When the petitioner failed to produce the relevant documents,
the impugned order was passed drawing an adverse inference that the
petitioner was not in a position to prove the fact with cogent proof of her
belonging to the Halba community.
15. The counsel for the State referred to the provision of Section 14 of The
Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward
Classes (Regulation of Social Status Certification) Act, 2013 (in short, The
Act, 2013) which envisages the burden of proof to be that upon the
applicant who has moved an application for issuance of a social social
status certificate or in any enquiry so conducted by the District Level
Committee or the High Powered Caste Scrutiny Committee.
16. It was the further contention of the respondents that shifting of father of
petitioner from Amravati, Maharashtra to the State of Madhya Pradesh or
to the State of Chhattisgarh cannot be brought within the term of an
involuntary migration, rather it is a case where he had voluntarily shifted to
the State of Madhya Pradesh. Therefore the benefits so enumerated in the
circular of the Government of India of 1982 would not be applicable. The
State counsel relied upon the decision of Supreme Court in case of Marri
Chandra Shekhar Rao Vs. Dean, Seth GS Medical College, 1990(3)SCC
130.
17. So far as the counsel for the respondent No.3 is concerned, it was the
contention of the counsel for respondent No.3 that the order of
termination, Annexure P/13 has been issued strictly in compliance of the
order Annexure P/1 dated 07.09.2019 where the caste certificate that was
issued in favour of the petitioner dated 27.03.1995 and 11.01.2000 stood
cancelled by the respondent No.2. It was the further contention of
respondent No.3 that before issuance of Annexure P/13, the order of
termination, the Bank or the employer as such has not conducted any sort
of enquiry per se in respect of the social status of the petitioner or for that
matter the caste certificate produced for employment to be either fake or
false.
18. It is necessary at this juncture to take note of a recent decision of the
Supreme Court in case of Pankaj Kumar Vs. State of Jharkhand & Others,
Civil Appeal No.4864 of 2021 (2021 SCC Online SC 616). The relevant
portions of the said judgment which would be relevant for the proper
adjudication of the present dispute also is paragraphs 4, 15, 21, 46, 54, 56
and 57 which for ready reference is being reproduced hereinunder:
"4. In Civil Appeal @ SLP(Civil) No. 13473 of 2020, the
appellant's father originally belonged to District Patna in the
State of Bihar but as alleged, the appellant was born on 27th
November, 1974 in Hazaribagh where his father was residing
which earlier was part of the unified State of Bihar but after
the Bihar Reorganisation Act, 2000(hereinafter being referred
to as "Act, 2000") came into force from the appointed day,
i.e. 15th November 2000, District Hazaribagh became part of
the successor State of Jharkhand.
15. But the case of the appellant is not of voluntary or
involuntary migration from the State of Bihar to the State of
Jharkhand rather it is a case where the unified State of Bihar
is divided into the two successor State of Bihar and State of
Jharkhand under the Act, 2000 and with the inclusion of the
caste/tribe under the Presidential Order 1950 as amended
from time to time, the caste was identified because of the
disadvantages and social hardships being faced by the
members concerned in the integrated State of Bihar who
were entitled to seek the benefit of reservation throughout
the State of Jharkhand for public employment.
21. After the unified State of Bihar has been divided into two
successor States, i.e. State of Bihar and State of Jharkhand
under the Act 2000 w.e.f. 15th November, 2000, and 18
districts of the unified State of Bihar had been carved out
under Section 3 of the Act, 2000 to the successor State of
Jharkhand with a further rider/restriction under the Act as
being reflected under part VIII which relates for serving
employees and Section 73 read with Section 74 in particular
protects the rights of persons in employment working on or
before the appointed date, i.e. 15th November, 2000, and
who are residents of 18 districts notified under Section 3 of
the Act became part of State of Jharkhand, their rights stand
protected for all practical purposes in the given
circumstances, it may not be justiciable for the State of
Jharkhand to say that the rights of the incumbent including
his caste certificate which he holds shall be protected in
terms of Section 74 of the Act 2000 even for his promotion
against the vacancy of SC/ST at a later point of time but the
same incumbent will not be permitted to participate in the
open selection in the State of Jharkhand as a member of the
reserved category for the reason that his place of origin for
the issuance of the caste certificate is in the State of Bihar
particularly when he was working on or before the appointed
date, i.e. 15th November, 2000 either in one of the 18
districts which formed part of Jharkhand or employees who
tendered option, their services were protected by virtue of
Section 73 of the Act 2000 and such class of incumbents
would not be considered to be migrants to the State of
Jharkhand and according to him, their cases are covered by
the judgments of this Court in Sudhakar Vithal
Kumbhare(supra) and Sau Kusum(supra) and submits that
the minority view is the correct view which deserves to be
considered by this Court with a minor correction that in the
minority judgment, the learned Judge has expressed that
such of the members of the SC/ST/OBC who belong to
notified castes in the State of Bihar and State of Jharkhand
under the Presidential Order 1950 are entitled to claim
benefit of reservation in both the States is not the correct
view for the reason that one can claim benefit of reservation
in either of the State and once these incumbents became
ordinary resident of the State of Jharkhand,
46. The question that emerges for our consideration in the
instant appeals is whether a person, who has been a
resident of the State of Bihar and where the
Constitution(Scheduled Castes)/(Scheduled Tribes) Order,
1950 identifying castes/tribes is issued extending the benefit
to members of SC/ST throughout the integrated State of
Bihar which was later on bifurcated by virtue of a statutory
instrument, i.e., the Act, 2000, into two successor States
(State of Bihar and State of Jharkhand) with their rights and
privileges to the extent being protected by legislative
enactment under the provisions of the Act 2000, could still be
considered to be a migrant to the successor State of
Jharkhand depriving them of their privileges and benefits to
which the incumbent or their lineal descendants has availed
from the very inception of the Presidential Order 1950 in the
integrated State of Bihar.
54. The collective readings of the provisions of the Act, 2000
makes it apparent that such of the persons whose place of
origin/domicile on or before the appointed day was of the
State of Bihar now falling within the districts/regions which
form a successor State, i.e., State of Jharkhand under
Section 3 of the Act, 2000 became ordinary resident of the
State of Jharkhand, at the same time, so far as the
employees who were in public employment in the State of
Bihar on or before the appointed day, i.e. 15 th November,
2000 under the Act 2000, apart from those who are domicile
of either of the district which became part of the State of
Jharkhand, such of the employees who have submitted their
option or employees who are junior in the cadre of their
seniority as per the policy of the Government of India of
which a reference has been made, either voluntarily or
involuntarily call upon to serve the State of Jharkhand, their
existing service conditions shall not be varied to their
disadvantage and stands protected by virtue of Section 73 of
the Act, 2000.
56. It is made clear that person is entitled to claim benefit of
reservation in either of the successor State of Bihar or State
of Jharkhand, but will not be entitled to claim benefit of
reservation simultaneously in both the successor States and
those who are members of the reserved category and are
resident of the successor State of Bihar, while participating in
open selection in State of Jharkhand shall be treated to be
migrants and it will be open to participate in general category
without claiming the benefit of reservation and vice-versa.
57. We are of the view that the present appellant Pankaj
Kumar in Civil Appeal @ SLP(Civil) No.13473 of 2020, being
a serving employee in the State of Jharkhand by virtue of
Section 73 of the Act 2000, would be entitled to claim the
benefit of reservation including the privileges and benefits
admissible to the members of Scheduled Caste category in
the State of Jharkhand for all practical purposes including
participation in open competition seeking public
employment."
19. The same view has been further reiterated by three Judges Bench of the
Supreme Court again in Akhilesh Prasad Vs. Jharkhand Public Service
Commission and Other, 2022 SCC Online SC 510.
20. Earlier also this court itself in WPS No.576 of 2010, decided on 11.02.2019
in somewhat identical factual backdrop, distinguishing the judgments of
the Supreme Court in case of Marri Chandra Shekhar Rao (Supra) which
was relied upon by the State Govt. in the said case as well, had set aside
the order of the High Powered Caste Scrutiny Committee and held in
paragraph 8 to 13 as under :
"8. Having heard the contention put forth on either side and
on perusal of record it would be relevant to take note of
certain admitted factual position of the present case :-
(i) The petitioner was born and brought up in the original state
of Bihar in the area which subsequently came under the State
of Jharkhand after 01/11/2000, the date on which the State of
Jharkhand was carved out of the erst while State of Bihar.
(ii) The petitioner came to the erst while State of MP on her
being married to a person from the State of MP on
29/12/1986.
(iii)The petitioner as well as the husband of the petitioner both
belonged to the Oraon community.
(iv) The petitioner's husband is the resident of District
Jashpur and the petitioner's family belonged to the District
Gumla in the State of Jharkhand which is an adjoining district
to district Jashpur.
(v) Oraon community is a notified Scheduled Tribe in all the
four States i.e. the erst while State of Bihar and in the
subsequently created State of Jharkhand Oraon is also a
notified Scheduled Tribe in the erst while State of MP and
also in the State of Chhattisgarh.
(vi) After her marriage to a person belonging to the same
community the petitioner obtained a domicile certificate on
03/07/1989.
(vii) The petitioner also obtained caste certificate from the
office of Naib Tahsildar, Bhopal on 05/07/1989.
(viii) The petitioner got an appointment with the State
Government as an Assistant Grade-III vide order dated
28/04/1992.
(xi)The State of Chhattisgarh was carved out from the erst
while State of MP w.e.f. 01/11/2000.
(x)The petitioner and her husband both have been allocated
to the State of Chhattisgarh as per the provision of the
Madhya Pradesh Reorganization Act, 2000.
9. Now it would be relevant at this juncture to refer to the
circulars of the State of Madhya Pradesh so far as obtaining
the benefit of reservation. The State of MP as early as in the
year 1967 issued a memo dealing with the said issue and it
would be relevant to refer to the contents of the said memo
the relevant portion of which is reproduce herein under:-
"Subject :- Reservation of posts in Public Services-
Scheduled Castes and Schedules Tribes.
The question has been raised whether candidates belonging
to Scheduled Castes and Scheduled Tribes included in the
lists of the other States but not included in the list of
Scheduled Tribes and Scheduled Tribes as notified for
Madhya Pradesh are entitled to the various concessions
granted by the State Government from time to time and in
particular to reservation of posts in public services. This
question has been carefully examined by the State
Government and the State Public Service Commission has
also been consulted. It is hereby clarified that only such
castes and tribes should be considered to be
Scheduled Castes and Scheduled Tribes which have been
specifically included in the lists of Scheduled Castes and
Schedules Tribes notified for Madhya Pradesh under the
provisions of Article 341 & 342 of the Constitutions. It would
thus follow that such of the castes and tribes which are in the
lists of other States but are not included in the lists of Madhya
Pradesh will not be recognised as Scheduled Castes and
Scheduled Tribes and consequently will not be entitled to the
benefits in the matter of reservation of posts, relaxation of
age limits and other concessions granted by the State
Government from time to time."
10. The said memo of 1967 has been further reiterated by the
State of MP in another notification dated 04/05/1987 issued
by the Government of MP. It would be relevant at this juncture
to reproduced the contents of the said notification also.
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lanHkZ%& lkekU; iz'kklu foHkkx dk Kkiu dz- 898&1747¼AAA½&66
fnukad [email protected]@1967-
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gS ;k os LFkkbZ rkSj ij jkstxkj] f'k{kk vkfn ds fy, izns'k esa fuokl dj
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funsZ'k izlkkfjr fd;s x, gSA ijarq fQj Hkh 'kklu ;g eglwl djrk gS
fd bl laca/k esa eSnkuh vf/kdkfj;ksa ds le{k dgh&dgh fLFkrh Li"V
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esa vuqlwfpr [email protected] tutkfr dh lqfo/kk,Wa rHkh izkIr gksxh
tc mudh tkfr e/; izns'k esa Hkh vuqlwfpr [email protected] dh lwph
esa lfEeyhr gksaA ;fn mudh tkfr e/;izns'k ds fy, ?kksf"kr
vuqlwfpr [email protected] dh lwph esa u gks rks mUgs ;g lqfo/kk,Wa izkIr
ugh gks ldsxh vkSj u gh tkfr izek.ki= izkIr gks ldsxkA bl laca/k
es ;g Hkh Li"V fd;k tkrk gS fd os vius ewy jkT; esa vuqlwfpr
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11. From the aforesaid two memos and notification what
stands established is that the erst while State of MP had a
policy decision accepted the fact that for the purpose of
obtaining the benefits of reservation in respect of those
persons who have migrated from the other States that was
required whether their original caste/tribe to which they
belonged is also a notified Scheduled Caste and Scheduled
Tribe in the migrated State i.e. in the State of MP also.
12. The aforesaid two memo/notification has not been
withdrawn or cancelled or recalled by the State Government
nor has the said memo/notification been held to be bad by
any Court of law. The aforesaid two memo/notification was in
operation or in other words was in force when the petitioner
first obtained caste certificate and later when she obtained
the employment under the erst while State of MP. Both these
orders also was in force when the services of the petitioner
stood allocated to the State of Chhattisgarh.
13. In view of the fact that the original employer i.e. the State
of MP since at the time of the appointment of the petitioner
had accepted the factual matrix as it stood then and had
taken a policy decision for granting reservation to those
migrated persons from other States who in their parent State
belonged to the same caste/tribe and which was also a
notified caste/tribe in the parent State."
21. Recently again this court had an occasion of dealing with such an issue in
case of Anand Masih Vs. State of Chhattisgarh i.e. WPS No.3136 of 2007
whereby this court taking into consideration the specific directions that
were issued by the Hon'ble Supreme Court in the case of Kumari Madhuri
Patil and Another Vs. Addl. Commissioner, Tribal Development and
Others, 1994(6)SCC 241 so far as how the Vigilance Cell of the High
Powered Caste Scrutiny Committee has to conduct itself before cancelling
a caste certificate, in paragraphs 7 to 11 has held as under:
"7. At this juncture, it would be relevant to refer to the
judgment of the Supreme Court in the case of Kumari
Madhuri Patil (supra) which is the leading case on the issue
involved in the present case. After considering the entire
factual matrix of the case while streamlining the procedure for
issuance of social status certificate, the Supreme Court in
very categorical term has laid down certain procedure which
should be adopted by the State Govt. after consideration of
the High Power Caste Scrutiny Committee. Relevant portion
of the said judgment is reproduced hereinunder:
"5. Each Directorate should constitute a vigilance cell
consisting of Senior Deputy Superintendent of Police
in over-all charge and such number of Police
Inspectors to investigate into the social status claims.
The Inspector would go to the local place of residence
and original place from which the candidate hails and
usually resides or in case of migration to the town or
city, the place from which he originally hailed from.
The vigilance officer should personally verify and
collect all the facts of the social status claimed by the
candidate or the parent or guardian, as the case may
be. He should also examine the school records, birth
registration, if any. He should also examine the
parent, guardian or the candidate in relation to their
caste etc. or such other persons who have knowledge
of the social status of the candidate and then submit a
report to the Directorate together with all particulars
as envisaged in the pro forma, in particular, of the
Scheduled Tribes relating to their peculiar
anthropological and ethnological traits, deity, rituals,
customs, mode of marriage, death ceremonies,
method of burial of dead bodies etc. by the castes or
tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report
from the vigilance officer if he found the claim for
social status to be "not genuine" or 'doubtful' or
spurious or falsely or wrongly claimed, the Director
concerned should issue show-cause notice supplying
a copy of the report of the vigilance officer to the
candidate by a registered post with acknowledgment
due or through the head of the educational institution
concerned in which the candidate is studying or
employed. The notice should indicate that the
representation or reply, if any, would be made within
two weeks from the date of the receipt of the notice
and in no case on request not more than 30 days
from the date of the receipt of the notice. In case, the
candidate seeks for an opportunity of hearing and
claims an inquiry to be made in that behalf, the
Director on receipt of such representation/reply shall
convene the committee and the Joint/Additional
Secretary as Chairperson who shall give reasonable
opportunity to the candidate/parent/guardian to
adduce all evidence in support of their claim. A public
notice by beat of drum or any other convenient mode
may be published in the village or locality and if any
person or association opposes such a claim, an
opportunity to adduce evidence may be given to
him/it. After giving such opportunity either in person or
through counsel, the Committee may make such
inquiry as it deems expedient and consider the claims
vis-a-vis the objections raised by the candidate or
opponent and pass an appropriate order with brief
reasons in support thereof."
8. The same analogy has further been reiterated by the
Supreme Court in the case of Director of Tribal Welfare,
Government of A.P. Vs. Laveti Giri and another reported in
(1995) 4 SCC 32 wherein the Supreme Court has
reproduced the entire paragraph-13 of the said judgment
holding it to be taken as guidelines for the purpose of an
enquiry to be conducted by the High Power Committee in
each of the States.
9. In furtherance to the aforesaid principle of law laid down
by the Supreme Court so far as the procedural aspect is
concerned, it would be relevant to refer to a judgment of the
Supreme Court in the case of Collector, Bilaspur Vs. Ajit P.K.
Jogi and others reported in (2011) 10 SCC 357 wherein
paragraph-18 it has been held as under:
"This Court thus formulated a scheme for verification
of tribal status and held that any application for
verification of tribal status as a Scheduled Tribe
should be carried out by such Committees. The
verification of the validity of caste certificates and
determination of the caste status should therefore be
done by the Scrutiny Committees constituted as
per the directions in Madhuri Patil or in terms of any
statute made by the appropriate Government in that
behalf."
10. Now taking into consideration the aforesaid legal
position as it stands in the light of the judgments of the
Supreme Court if we peruse the impugned order under
challenge Annexure P-1 what clearly reflects is that the
impugned order Annexure P-1 has been issued on the basis
of a report submitted by the Deputy Superintendent of
Police, District Janjgir-Champa to the Superintendent of
Police Janjgir-Champa who in turn had forwarded
communication to respondent no.2 Committee. If we read
the said report of the Deputy Superintendent of Police dated
29.05.2004, it clearly reflects that all that the Deputy
Superintendent of Police has mentioned in his report is that
the forefathers of the petitioner do not seem to be the
resident of District Janjgir-Champa but were resident of
Bhatapara. Apart from the said observation, the Deputy
Superintendent of Police has not stated anything so far as
the caste status of the petitioner is concerned or whether the
father of the petitioner or forefather of the petitioner were not
belonging to "Uraon" community. It further reflects from the
said report that except for the fact that the petitioner and his
forefathers were not resident of District Janjgir-Champa,
there does not appear to be any further enquiry conducted
either by the Superintendent of Police, Janjgir-Champa or by
the concerned Superintendent of Police under whom
Bhatapara comes. Moreover, there also does not appear to
be any document in possession of the respondents which
would reflect that the petitioner does not in fact belong to
"Uraon" community or that he belongs to a different
community. In the absence of a finding by the Caste Scrutiny
Committee to the extent that the petitioner does not belong
to a different community in stead of "Uraon" community
which the petitioner claims, the impugned order Annexure P-
1 itself may not be sustainable.
11. Moreover, what further reflects is that the directives
which have been given by the Supreme Court in the case of
Kumari Madhuri Patil (supra) and which further stands
reiterated in the case of Laveti Giri (supra), there does not
appear to be any enquiry so far as the anthropological and
ethnological traits are concerned. If we read the directives
given in the case of Kumari Madhuri Patil (supra), it would
reflect that there was a specific direction given to the State
Authorities as to how the enquiry and investigation has to be
conducted. From a plain reading of the impugned order,
there does not appear to be any such enquiry instituted or
conducted by respondent no.2 except for the issuance of
repeated letters to the petitioner for appearing before the
Tribunal and for proving that he belongs to "Uraon"
community. The very fact that the State Authorities
particularly respondent no.2 has not been able to reach to a
conclusion as to which community or caste the petitioner
belongs which itself is a sufficient proof that the petitioner
has not played any fraud with the authority while obtaining
the caste certificate as early as on 22.01.1981. What also
cannot be brushed aside is the fact that the certificate was
issued in favour of the petitioner when the petitioner was too
young an age to have played mischief or fraud for the
purpose of obtaining employment."
22. What is also to be taken note of is the fact that the entire impugned order
seems to have been passed invoking the provisions of the Act, 2013. The
aforesaid Act, 2013 does not empower the High Powered Caste Scrutiny
Committee to directly entertain a complaint and take cognizance and
conduct an enquiry. For ready reference, the relevant provisions of the
said Act, 2013 i.e. Chapter-III which deals with verification of the social
status certificate is being reproduced hereinunder. Section 6 and Section 7
of Chapter-III of the Act, 2013 deals with the powers which have been
otherwise vested with the District Level Certificate Verification Committee
and the High Powered Certification Scrutiny Committee which again for
ready reference is reproduced hereinunder:
"6. District Level Certificates verification Committee and
its powers. - (1) There shall be a District Level Certificates
Verification Committee with such composition as may be
prescribed for verification of Social Status Certificate issued
by the Competent Authority under Section 4, as may be
notified by the State Government having jurisdiction over one
or more districts.
(2) A district Level Certificates Verification Committee shall on
its own motion or on receipt of any information or reference
made to it, in regard to Social Status Certificate(s) issued by
the competent Authority, verify such Certificate(s) in the
manner as may be prescribed
Provided that the reference made to the District Level
Certificates Verification Committee by an employer, an
Educational Institution, a Local Authority, the Central
Government or the State Government, as the case may be,
for verification of Social Status Certificate(s), shall be in such
form and in such manner as may be prescribed, and it shall
be the duty of the District Certificates Verification Committee
or report its findings to the employer, the Educational
Institution, the Local Authority, the Central Government or the
State Government, as the case may be, within a period of
one month from the date of receipt of the reference.
(3) Where there is prima-facie reason to believe that the
Social Status Certificate(s) have been wrongfully or
fraudulently obtained, the District Level Certificates
Verification Committee shall refer all information and relevant
documents along with record of its findings to the High Power
Certification Scrutiny Committee :
Provided that where the District Level Certificates
Verification Committee arrives at an adverse finding, it shall
not refer the case to High Power Certification Scrutiny
Committee unless a reasonable opportunity of being heard is
given to the person, whose Social Status Certificate is
disputed.
(4) The District Level Certificates Verification Committee shall
follow such procedure for verification of Social Status
Certificates and adhere to such time limit for reference to the
High Power Certification Scrutiny Committee under sub-
section (3) of this Section, as may be prescribed.
7. High Power Certification Scrutiny Committee. - (1) The
State Government shall constitute, by notification in the
Official Gazette, one or more High Power Certification
Scrutiny Committee or Committees, for conducting enquiry
into Social Status Certificate(s) referred to it by District Level
Certificates Verification Committee under Section 6 or by the
State Government, and it shall be the duty of the High Power
Certification Scrutiny Committee to examine the report of the
District Level Certificates Verification Committee and to
proceed in this matter as prescribed under Chapter IV of this
Act.
(2) The High Power Certification Scrutiny Committee shall
follow such procedure as may be prescribed
Provided that where the High Power Certification
Scrutiny Committee decides to arrive at an adverse finding, it
shall not do so unless a reasonable opportunity of being
heard is given to the person whose Social Status Certificate
is disputed."
23. The plain reading of the impugned order Annexure P/1 dated 07.09.2019
particularly paragraph 2 would clearly indicate that the entire dispute arose
on a complaint directly being made to the respondent No.2-The High
Powered Caste Scrutiny Committee. The Committee has taken
cognizance of that complaint, proceeded and registered a case, which in
the opinion of this court is not permissible under the aforesaid two
provisions of law i.e. Section 6 or Section 7 of the Act, 2013. The findings
given by the respondent No.2, particularly in its paragraph 7 it stands
undisputed that the Committee was fully aware of the fact that the
ancestors of the petitioner belonged to the Village Sendurjana Ghat,
District Amravati, Maharashtra. There does not seem to have been any
enquiry conducted by the Vigilance Cell visiting the said place. The
impugned order also does not reflect the Vigilance Cell having verified the
documents in respect of the ancestors of the petitioner, nor have they met
any of the persons from the village from where the petitioner and her
forefathers hailed so as to ascertain whether the petitioner and their family
did belong to the Halba community or they belonged to any other
community.
24. A fact that needs to be appreciated further is that the entire proceedings by
the Respondent No.2 began on an complaint being received by the
Respondent No.2. After making a frivolous complaint to the Respondent
No.2 without any supporting documents or any cogent proof, the
whereabouts of the complainant is not known. He does not render any
assistance to the committee. Neither does the complainant adduce any
proof to substantiate the complaint. The Respondent No.2 also does not
care to call upon the complainant to put forth their claim or to prove their
allegation. Under the circumstances, it was incumbent upon the
Respondent No.2 Committee to conduct an enquiry to ascertain whether
the allegations made in the complaint has any force or is only made to
harass the petitioner and similarly placed persons. In that event, the
people like the petitioner cannot be victimized for no fault of their, nor can
they be made prey of a malicious proceeding.
25. The impugned order also does not give slightest of an indication from the
nature of enquiry that was conducted that the petitioner belonged to any
other community, other than the Halba community for which the petitioner
had a caste certificate. In the absence of any such verification or enquiry
conducted by the Vigilance Cell and further in the absence of any such
finding by the Committee that upon verification it was found that the
petitioner belonged to any other community other than the Halba
community, the impugned order is difficult to be sustained and the same
seems to have been passed without meeting the requirement that was
otherwise envisaged in the land mark decision of the Supreme Court in
case of Kumari Madhuri Patil and Another Vs. Addl. Commissioner, Tribal
Development and Others, 1994(6)SCC 241, wherein specific guidelines
were issued by the Supreme Court as to the manner in which the
Vigilance Cell is required to conduct the enquiry.
26. The impugned order thus being unsustainable deserve to be and is
accordingly set aside/quashed with consequence to follow. No order asto
costs.
Sd/-
(P. Sam Koshy)
Judge
inder
