Gauhati High Court
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Page No.# 1/6
GAHC010047922020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/39/2021
UNION OF INDIA AND 4 ORS
REP. BY THE SECRETARY.
2: THE DIRECTOR GENERAL
CENTRAL INDUSTRIAL SECURITY FORCE
CENTRAL GOVERNMENT OFFICE COMPLEX
LODHI ROAD
NEW DELHI- 110003.
3: THE INSPECTOR GENERAL
CENTRAL INDUSTRIAL SECURITY FORCE
HEADQUARTERS NORTH EASTERN SECTOR
GUWAHATI
ASSAM
PIN- 781029. (DUE TO BIFURCATION OF SECTORS
NES HQS KOLKATA RENAMED AS NES HQRS GUWAHATI).
4: THE DEPUTY INSPECTOR GENERAL
CENTRAL INDUSTRIAL SECURITY FORCE
NORTH EASTERN ZONE
GUWAHATI
ASSAM
PIN- 781029. (DUE TO BIFURCATION OF SECTORS
NEZ HQRS
KOLKATA RENAMED AS NEZ HQRS GUWAHATI.
5: THE COMMANDANT
CENTRAL INDUSTRIAL SECURITY FORCE UNIT
IOCL
BONGAIGAON
DIST.- DARRANG
ASSAM
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PIN- 783385
VERSUS
EX. CT/GD PHUKAN DEORI
S/O- GULAP CH. DEORI, VILL.- SOMPO-I, P.O. AND P.S. DIYUN, DIST.-
CHANGLANG, ARUNACHAL PRADESH, PIN- 792103.
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : MR H BEZBARUA
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE KAKHETO SEMA
28-10-2021
(Sudhanshu Dhulia, CJ)
Heard Mr. B. Chakravarty, learned counsel for the appellants. Also heard
Mr. R. Mazumdar, learned counsel appearing for the sole respondent.
This is a writ appeal filed by the Union of India challenging the
judgment & order dated 14.11.2019 passed in WP(C) No.3783/2013, by which
the learned Single Judge had allowed the writ petition of the respondent/writ
petitioner, which was filed against initiation of disciplinary proceedings against
him.
Brief facts of the case are that the respondent/writ petitioner was
inducted as a Constable (GD) in Central Industrial Security Force (CISF) in
Arunachal Pradesh. The admitted position is that the aforesaid job was secured
by the respondent/writ petitioner on the basis of a tribal certificate as under the
reservation category it was meant only for the tribals of Arunachal Pradesh. The
tribe to which the respondent/writ petitioner claimed to belong to is known as
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"Deori". It is also an admitted position that the respondent/writ petitioner was
given a valid certificate to that effect by the concerned authority, i.e. the Deputy
Commissioner of the concerned district in Arunachal Pradesh, in the year 1989
and another in 2012.
For certain reasons, the CISF started verification of the caste and tribal
certificates afresh and during this verification, in the year 2012, they realised
that the respondent/writ petitioner has claimed himself to be a member of
"Deori" community, which is in fact not a tribe under the Presidential Order
passed under Article 342 of the Constitution of India for the State of Arunachal
Pradesh as this is a tribe only for the State of Assam. Consequently, disciplinary
proceedings were initiated against the respondent/writ petitioner, which
ultimately resulted in his dismissal from service, an order which was challenged
by the respondent/writ petitioner before the learned Single Judge in WP(C) No.
3783/2013, which was ultimately allowed by the learned Single Judge. The writ
petition was allowed on a technicality, inasmuch as, the learned Single Judge
was of the view that the caste certificate which has been given to the
respondent/writ petitioner is a valid caste certificate and in case there is a
dispute as to his caste or tribe then such a certificate can only be cancelled by a
Screening Committee in view of the decision of the Hon'ble Apex Court in
Kumari Madhuri Patil -Vs- Additional Commissioner, Tribal
Development, reported in (1994) 6 SCC 241. The relevant portion of the
order of the learned Single Jude is quoted hereinbelow:-
"12) Thus, in view of the discussion above, this Court is inclined to follow
the ratio laid down in the case of (i) Kumari Madhuri Patil (supra), (2)
Sushma Chetri (supra), and (iii) Ex Ct/GD Bikash Chandra Nath (supra)
and it is held that only the High Power Committee constituted in terms of
direction contained in the case of Kumari Madhuri Patil (supra) could
have verified the ST Certificate No. 41/89 dated 1.08.1989, as such, it
was not open to the CISF authorities to discard the said ST Certificate in
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the departmental proceeding conducted against the petitioner. Moreover,
in support of his defence, the petitioner had produced ST Certificate
issued on 12.10.2012 by the E.A.C., Diyun, Changlang, certifying that the
petitioner belonged to Deori community, a ST of Arunachal Pradesh. The
said certificate, though not used to obtain appointment, but it re-affirms
the ST Status of the petitioner in respect of the State of Arunachal
Pradesh. Hence, the discarding of such certificate by the CISF authorities
in the Departmental Proceeding is not found sustainable. It is seen that in
this case in hand, there is nothing on record to show that the competent
High Power Committee had conducted any verification and arrived at a
finding that the petitioner did not belong to ST community, and moreover,
the competent authority had not rescinded, recalled, revoked, annulled,
canceled or set aside the ST Certificate No. 41/89 dated 16.08.1989
issued by the Deputy Commissioner, Changlang, declaring that the
petitioner belonged to Deori community, which is recognized Schedule
Tribe in the State of Assam under Scheduled Tribe Order, 1950 as
amended by the Scheduled Caste & Scheduled Tribes Lists (Modification)
Order, 1956, but normally resides in Arunachal Pradesh. Therefore, as
the Certificate No.41/89 dated 16.08.1989 remains valid till date, the
petitioner cannot be deprived of the
benefit arising out of use of such certificate. Reference to the Gazette
notification has already been made herein before. In this regard, it is
clarified herein that this Court has not given any opinion as to whether
the petitioner belongs to ST community of Arunachal Pradesh, as it is for
the High Power Committee constituted in terms of direction contained in
the case of Kumari Madhuri Patil (supra) to do so, as such, this order
would not stand in the way for the said High Power Committee to verify
the SC certificate and/or ST status of the petitioner.".
Having heard the learned counsel for the Union of India as well as the
counsel for the respondent/writ petitioner and having gone through the
materials available on record, we find no reason to have an opinion which is
different from the one taken by learned Single Judge. The question whether the
respondent/writ petitioner is a tribal belonging to Arunachal Pradesh or not is
yet to be decided. Definitely if the respondent/writ petitioner is not a tribal
belonging to Arunachal Pradesh, he could not have secured a job in the CISF on
the strength of being a member of tribal community of Arunachal Pradesh.
There is absolutely no doubt on that aspect. All the same, there is another
aspect to it as well, which is the respondent/writ petitioner has received a caste
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certificate and, therefore, in case it is to be cancelled, it has to be cancelled
after a due process where a hearing has to be given to the respondent/writ
petitioner and particularly now it can only be cancelled by a Screening
Committee as stated by the Hon'ble Apex Court in the case of Kumari
Madhuri Patil, inasmuch as, now there is a dispute as to whether the
respondent/writ petitioner belongs to a tribal community of Arunachal Pradesh
or not. Therefore, we say nothing on the merits of the case. If the
respondent/writ petitioner is not a tribal belonging to the tribal community of
Arunachal Pradesh then he will definitely face the consequences but till it is
done, this certificate cannot be cancelled without giving an opportunity of
hearing to the respondent/writ petitioner as this has civil consequences.
Moreover, the validity of the certificate has to be examined now by the
Screening Committee.
We, therefore, dismiss the writ appeal and direct the State Government
to constitute a Screening Committee, in case there is none in the State of
Arunachal Pradesh, in terms of the decision of the Hon'ble Apex Court in
Kumari Madhuri Patil, which shall then take a decision on the validity of the
certificate granted to the respondent/writ petitioner.
The Screening Committee shall give a notice to the respondent/writ
petitioner who shall produce all the relevant documents before the Screening
Committee and thereafter, a decision shall be taken by the said Committee.
JUDGE CHIEF JUSTICE
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Comparing Assistant
