Jakub Barik vs State Of Odisha And Others
2023 Latest Caselaw 3021 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.26631 of 2013
                           (Through hybrid mode)


 Jakub Barik                                        ....                 Petitioner

                                     -versus-


  State of Odisha and others                        ....        Opposite Parties



 Advocates appeared in this case:

 For petitioner:              Mr. Dillip Kumar Mohapatra, Advocate

 For State:                   Ms. Suman Pattanayak, AGA

 For Opp. Party No.4: Mr. P.K. Parhi, Deputy Solicitor General
                      Mr. Jateswar Nayak, CGC



              CORAM: JUSTICE ARINDAM SINHA
                                      JUDGMENT

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Date of hearing: 20th February, 2023, 4th and 6th April, 2023 Date of Judgment: 10th April, 2023

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1. Petitioner having suffered final order dated 26th November,

2013 cancelling his caste certificate, has challenged it.

2. Mr. Mohapatra, learned advocate had moved the writ petition

before this Bench on 20th February, 2023. He submitted, his client while

practising Hindu religion obtained caste certificate in year, 1987. He,

// 2 //

thereafter, converted to Christianity in year, 1994. By impugned final

order dated 26th November, 2013, there was finding that his client was

Christian and not 'Ganda' under Scheduled Caste category, as claimed

by him because, as established by law, caste status or more particularly

the status of Scheduled Tribe/Scheduled Caste is acquired by birth only.

3. Mr. Mohapatra had demonstrated from the witness statements

relied upon in impugned final order, all witness statements purporting to

allege that his client was Christian, at the time he applied for and

obtained the caste certificate or that he was born Christian, are un-signed

statements. His client's wife, father-in-law and mother-in-law also gave

statements and those were signed. In their statements they did not say

his client was born Christian. He also referred to certified copy of

extract from the RoR bearing dates 27th July, 1976 and 1st April, 1977,

in respect of holding no.62 in mouza-Jhinkermal to submit that there is

record of his client's father, against the holding, as belonging to caste

'Ganda'. Drawing attention to his client's high school certificate he

demonstrated that his client was born on 15th September, 1966 and,

therefore, cannot be said to be born Christian.

4. Ms. Pattanayak, learned advocate, Additional Government

Advocate appeared on behalf of State. Mr. Parhi, learned advocate,

Deputy Solicitor General along with Mr. Nayak, learned advocate,

Central Government Counsel appeared on behalf of Union of India.

// 3 //

Pleadings were completed, including additional affidavit filed by the

Tahsildar and rejoinder thereto.

5. At further hearing Mr. Mohapatra submited, cause of his client

is regarding his caste certificate being declared fake, allegedly on him

having fraudulently applied for and obtained it. He reiterated, his client

converted to Christianity in year, 1994 and pursuant thereto he may have

ceased to belong to scheduled caste 'Ganda' in the Hindu community

but, cancellation of his client's caste certificate on finding of fraud is

attended with consequences terrible for him.

6. He drew attention to impugned final order saying, inter alia, it

is revealed from report of the I.O. and submission of his client before

the Committee, his client is natural born son of late Rajendra Barik, who

was born Christian. This is not a fact. His father had his name recorded

in the RoR having caste 'Ganda'. The record does not show religion of

his client's father to be Christian. There was conversion later and he

reiterated, his client converted to Christianity in year 1994, after the

caste certificate had been obtained by him in year 1987.

7. Ms. Pattanayak, relied on impugned final order. She submitted,

there is no doubt that petitioner is Christian. Alleged later conversion is

a story concocted, to avoid consequences of having wrongfully obtained

the caste certificate and thereupon reservation in getting employment.

There should be no interference.

// 4 //

8. Mr. Nayak relied on judgment of the Supreme Court in S.

Swvigaradoss v. Zonal Manager, FCI reported in (1996) 3 SCC 100

for declaration of law that Christian is not scheduled caste under the

notification issued by the President.

9. Perused Constitution (Scheduled Castes) Order, 1950. It was

notified on 10th August, 1950 and thereafter had modifications made.

Clause-3 is reproduced below.

"3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hinduism shall be deemed to be a member of a Scheduled Caste.

Provided that every members of the Ranklasi, Kabirpanthi, Mazhabi or Sikliger Caste resident in Punjab or Patiala and East Punjab States Union shall in relation to that State, be deemed to be a member of the Scheduled Castes whether he professes the Hindu or the Sikh religion."

(emphasis supplied)

10. There is no dispute regarding petitioner being Christian. As

such, he cannot be deemed to be a member of a scheduled caste.

Petitioner, however, says he was a practicing Hindu, when he had

applied for and obtained the caste certificate. His conversion was later.

Going by petitioner's submission there is no difficulty in petitioner not

belonging to scheduled caste 'Ganda' as on date. That is exactly the

position rendered by impugned final order, declaring his caste certificate

// 5 //

to be fake. Petitioner's grievance is regarding the attendant

consequences on initiation of proceedings, penal in nature, against him.

11. Impugned final order was made on the basis of, inter alia,

witness statements. Those witnesses, who had given statements alleging

petitioner was Christian at the time he applied for his caste certificate,

did not sign their statements. Petitioner's wife, father-in-law and

mother-in-law also gave witness statements, on having had signed them.

In those statements they did not say petitioner was born Christian. There

cannot be negative implication or inference from the signed witness

statements. In other words, from those statements it cannot be inferred

or concluded that petitioner was not born Christian or was born Hindu.

It is simply because petitioner's wife, father-in-law and mother-in-law

only got to know him, when the marriage took place or immediately

prior thereto at the courtship/negotiation stage. They could not and did

not know whether petitioner was born Christian or Hindu. They knew

petitioner to be Christian, at the time they met him.

12. Unsigned witness statements, relied upon in impugned final

order, were submitted to the Committee by the IO, in his report. The

statements were made before the officer. Though petitioner disputed the

statements in his reply dated 21st June, 2012, at the hearing he was

unable impress the Committee that he had practiced the

rituals/Hinduism upto 28 years of age.

// 6 //

13. In context of last preceding paragraph it is to be remembered

that exercise of extraordinary power in writ jurisdiction is also

discretionary. Discretion must be judicious. Petitioner seeks interference

with impugned final order on ground that the Committee relied on

unsigned witness statements. According to him he converted in year

1994. He is free to practice any religion. It is his Constitutional right.

That being so, petitioner obtained benefit of reservation in getting

employment on strength of the caste certificate, certifying he belonged

to the scheduled caste in Hindu society. Having obtained the benefit,

when he chose to renounce Hindu religion and embrace Christianity, he

should have reported to his employer and the competent authority. Had

he done so, there may not have been occasion for reference to the

Committee by his employer on letter dated 7th September, 2011 citing

order dated 29th April, 2011 of the Central Administrative Tribunal and

order dated 13th April, 2009 of this Court in W.P.(C) no.13783 of 2008

pursuant to the Tahsildar having cancelled his certificate by order dated

21st June, 2003 on it being found out that he was Christian. Petitioner

had got employment in year 1990 and says, he was converted in year

1994.

14. The other piece of evidence petitioner has relied on for his

assertion that he belonged to caste 'Ganda' at birth is extract from RoR

dated 27th July, 1976 and 1st April, 1977 bearing his father's name and

// 7 //

caste 'Ganda'. Entries in the record are rebuttable presumptions. It is not

hard evidence, for reliance in judicial review, to pronounce impugned

final order as perverse. Petitioner had relied on his high school

certificate to demonstrate his date of birth as 15th September, 1966.

15. There was no contention that soon after being converted

petitioner had brought his conversion to notice of his employer or the

competent authority. There is no such mention in impugned final order.

Court ascertained from the parties that there is nothing to show

otherwise in the record. In the circumstances, where petitioner could not

produce cogent evidence or proof he was Hindu at birth, this Court is

not inclined to exercise discretion to interfere with impugned final order

for, inter alia, reliance therein on unsigned witness statements. Other

circumstances relied upon in impugned order make it out to be a

possible view.

16. The writ petition is disposed of as above.

(Arindam Sinha) Judge Sks