Orissa High Court
Alika Kanhar vs State Of Odisha And Others on 21 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10017 of 2016
(Through hybrid mode)
Alika Kanhar .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case:
For petitioner: Mr. S.K. Mishra, Advocate
Mr. S.K. Joshi, Advocate
For Opposite Parties: Ms. Suman Patnayak, AGA
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
21.12.2022
1. Mr. Mishra, learned advocate appears on behalf of petitioner
and submits, impugned is final order dated 29th March, 2016 passed by
State Level Scrutiny Committee, wherein it was erroneously held that
his client is 'Pano' by birth, inherited from his forefathers, living in
Pano basti, separate from Kandha basti of the village and consequential
directions. He submits, inquiry report submitted by IIC, Tikabali PS
relied on statements of persons named as witnesses. Those persons
subsequently affirmed affidavits stating contrary to what the report says
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they said. Those affidavits were not considered by the Committee. He
draws attention to second reason in impugned order, reproduced below.
"2. It is found from the statement of the witnesses
attached to the IO's report where they have signed and
given LTI that the alleged belongs to Pano Hindu
community. But the committee could not take into
consideration of the photo copies of the affidavits
submitted by the alleged in his show cause reply where
the witnesses retreated from their statements which
shows that they might have been influenced by the
alleged to change their versions."
2. He submits further, his client did not have his name recorded in
the RoR. It is no matter that someone else had his name is recorded.
That could not be relevant evidence since the recorded person's
subsequent affidavit evidence was among those not considered by the
Committee. He submits, his client's caste certificate is dated 21st June,
1976. It was duly issued by the then Member of Legislative Assembly
(MLA). He relies on the resolution by notification no.8481-
Estt.(R),1968 T.R.W. The resolution is reproduced below.
"SUB: Issue of Caste Certificate to candidates belonging
to Scheduled Castes and Scheduled Tribes, for the
purpose of appointment under Government.
The question of determining the competency of
authorities to issue Caste Certificates to candidates
WP(C) no.10017 of 2016
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belonging to Scheduled Castes and Scheduled Tribes for
the purpose of public appointment was under the
consideration of Government for sometime past. At
present there are general instructions regarding the
authority who should issue Caste and Tribe Certificates
for the purpose of public appointment. After careful
consideration of the question, Government have been
pleased to decide that District Magistrates/Sub-
divisional Officers/MLAs/Members of Parliament and
District Welfare Officers shall be competent to issue
Caste and Tribe certificate to candidates seeking
employment under the State Governments and public
undertakings. The Sub-caste and Sub-tribe to which the
Candidates belongs shall also be mentioned in the
certificates. Certificates produced from any other
authority shall not be treated as valid."
(emphasis supplied)
3. Ms. Patnayak, learned advocate, Additional Government
Advocate appears on behalf of State and submits, petitioner is third son
of Tambara Digal. Petitioner held out his father's name as Tambara
Konhar and thereby appropriated name 'Konhar'. All his relatives are
Pano. Two of his brothers converted to Christianity. Verification of
caste certificate obtained is possible on law declared by the Supreme
Court in Madhuri Patil v. Addl. Commissioner, Tribal Development
reported in AIR 1995 SC 94.
WP(C) no.10017 of 2016
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4. Challenge mounted against impugned final order bears
substance inasmuch as, where the Committee relied on inquiry report
referring to witnesses statements, even though thereafter the witnesses
swore affidavits to the contrary, they ought to have been examined.
Purpose of the Committee is to verify and ascertain the truth. Manner
of obtaining evidence by examination of witnesses is for purpose of
ascertaining the truth. The Committee appears to have presumed, the
witnesses in the inquiry had been subsequently influenced by
petitioner. Even if that is so, there was no embargo on the Committee
to put questions to those witnesses, as can be put in cross-examination,
to elicit the truth.
5. What emerges from the inquiry report, subsequent affidavits of
the witnesses and impugned order is that where initially the witnesses
had said that Tambara Digal had four sons, third son being petitioner,
inter alia, one of the brothers (an inquiry witness) later referred to
petitioner as belonging to caste 'Kandha' under his forefather. Such
statement gives rise to obvious question as to who was referred as
forefather of petitioner. It is for petitioner to establish the positive that
his father is a person different from Tambara Digal.
6. Impugned final order is set aside and quashed. The verification
by Fake Caste Certificate Case no.483 of 2010 is restored to the
WP(C) no.10017 of 2016
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Committee. The Committee will take cognizance of the subsequent
affidavits of inquiry witnesses furnished by petitioner, call those
witnesses and examine them. The Committee will also examine
petitioner. It is expected the Committee will arrive at the truth. The
case should be dealt with and disposed of within three months from
date of communication.
7. The writ petition is disposed of.
(Arindam Sinha)
Judge
Sks
WP(C) no.10017 of 2016
