Narottam Mallick @ Naik vs State Of Odisha And Others
2023 Latest Caselaw 10269 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.325 of 2014


 Narottam Mallick @ Naik                            ....                 Petitioner

                                     -versus-


  State of Odisha and others                        ....        Opposite Parties



 Advocates appeared in this case:

 For petitioner:              Mr. Susanta Ku. Mishra, Advocate

 For State:                   Ms. Suman Pattanayak, AGA



              CORAM: JUSTICE ARINDAM SINHA
                                  JUDGMENT

------------------------------------------------------------------------------------ Dates of hearing: 10th May, 2023, 5th July, 2023, 18th July, 2023, 10th, 21st and 29th August, 2023 Date of Judgment: 29th August, 2023

------------------------------------------------------------------------------------

1. The writ petition was heard on several occasions. Today it has

been called on for final hearing, upon State having filed additional

affidavit dated 28th August, 2023. Mr. Mishra, learned advocate appears

on behalf of petitioner while Ms. Pattanayak, learned advocate,

Additional Government Advocate, for State.

2. Petitioner's challenge is against final order dated 27th July,

2013 of the State Level Scrutiny Committee (SLSC). On behalf of

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petitioner it was pointed out that by impugned order there was no

cancellation of caste certificate but instead, finding that petitioner had

faked his caste identity. There is no dispute that petitioner obtained a

caste certificate on 26th December, 1980 from the then Member of

Legislative Assembly (MLA), certifying him to belong to a Scheduled

Tribe (ST). On query from Court Mr. Mishra demonstrated that Orissa

Caste Certificate (for Scheduled Castes and Scheduled Tribes) Rules,

1980 came into force as directed by circular dated 2nd December, 1980,

'at once'. As aforesaid, the caste certificate stood issued by the MLA

later, on 26th December, 1980.

3. Facts are that petitioner was appointed as 'Orderly Peon' in

General Administrative (GA) Department on 17th September, 1986. He

entered government service on 20th September, 1986. For purpose of the

writ petition, petitioner obtained documents upon making query under

Right to Information Act, 2005 and they have been disclosed. There is

nothing on record to show that petitioner entered government service on

basis of his caste certificate dated 26th December, 1980, issued by the

MLA. On behalf of petitioner it was demonstrated, office order dated

28th March, 2011 issued by Government of Orissa Parliamentary Affairs

Department, was purportedly on basis of allegation of mention in his

service roll that he belongs to ST 'Kandha'. On thereby having been

directed by letter dated 8th January, 2008 to produce his caste certificate,

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petitioner produced said caste certificate dated 26th December, 1980.

4. Counter and rejoinder stood filed and the writ petition was

heard on 18th July, 2023. In that hearing, office order dated 28th March,

2011 was perused. It appears, report was made to Revenue and Disaster

Management Department on letter dated 4th January, 2008 that petitioner

belongs to ST category (Kandha) as indicated in his service roll and his

caste certificate is not available in the department. Also perused were

documents disclosed by petitioner and those annexed to the counter and

rejoinder. Nothing on the record was found to show petitioner was given

appointment on 17th September, 1986 based on him belonging to a

Scheduled Tribe. It was, therefore, not clear how there came to be

indication in the service roll that petitioner belongs to ST category

(Kandha).

5. The circular handed up directed all administrative officers that

Orissa Caste Certificate (for Scheduled Castes and Scheduled Tribes)

Rules, 1980 had come into force immediately with issuance of it on 2nd

December, 1980. There is nothing disclosed in the counter to show there

was a notification to inform the public that the rules had come into force

and were in operation. Unless State is able to demonstrate that elected

members of the State Legislature were notified as no longer competent

to issue caste certificates, it cannot place reliance on the circular for at

once effectiveness of the 1980 Rules as on 2nd December, 1980 to

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merely contend that the MLA had issued the caste certificate without

authority. More so, the Rules of 1980 is law under article 13 of the

Constitution but not one that was made by legislation, involving the

MLAs. In any event, the Rules empowering cancellation is only in

respect of a caste certificate issued thereunder. So it is not surprising

that the SLSC said petitioner had faked his caste identity.

6. State, after having filed counter had prayed for leave to file

additional affidavit, to disclose the service roll indicating petitioner

belongs to ST category (Kandha). On subsequent date of hearing (21st

August, 2023), on behalf of State it was submitted that two additional

affidavits, both dated 16th August, 2023, had been filed. One was on

behalf of opposite party nos. 1 to 3 and the other, on behalf of opposite

party no.4. This was because originally petitioner was appointed by GA

Department. Service roll disclosed by the additional affidavits were

those produced by the subsequent departments. State thereafter again

sought further adjournment for the GA Department to produce the

service book/record of petitioner's appointment but could not produce

the same. Here it is necessary to reproduce below paragraph-3 from

order dated 21st August, 2023 made after hearing that day.

"3. Paragraph 6 from order dated 18th July, 2023 is reproduced below.

"6. Adjournment granted is peremptory for State to produce by the records or file additional affidavit,

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disclosing the service roll on indication that petitioner belongs to ST category (Kandha). It is made clear that the indication cannot merely be an endorsement but has to be backed up by some basis."

(emphasis supplied) There is apparent discrepancy appearing from handwriting of the endorsement made on the service roll. State has been obtaining adjournment after adjournment on pretext of producing the record. It has not been produced. Petitioner cannot be faulted for opposing the prayer for adjournment."

State, then filed yet another affidavit dated 28th August, 2023.

7. Today Ms. Pattanayak relies on continuation paga-2 of

communication no.8455 dated 4th December, 1997 disclosed by said

affidavit dated 28th August, 2023 saying, inter alia, petitioner had been

promoted temporarily in post of 'Jamadar' to office of Minister,

Revenue from earlier post of Peon in the same office. She points out,

petitioner is stated to belong to ST as indicated in the communication,

against his name. Mr. Mishra in response draws attention to additional

affidavit dated 16th August, 2023 filed by opposite party nos. 1 to 3 to

submit, referred letter no.8453 dated 4th December, 1997 in said letter

no.8455 also dated 4th December, 1997 has been disclosed therein.

There is no reference to his client belonging to ST category in the letter.

Text of letter no.8453 dated 4th December, 1997, as appearing from the

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affidavit is reproduced below.

"As per recommendation of D.P.C. held on 24.11.97 Shri Narottam Mallick, Peon is here by promoted temporarily to the post of Jamadar in the scale of pay of Rs.775-12-87-14-1025/- with usual DA and other allowances sanctioned from time to time by Govt."

8. There is no material on record to show that petitioner entered

into government service claiming to be or having used his caste

certificate issued by the MLA. Thus, Court is confronted with

petitioner's grievance and claim for relief on contention he has been

dismissed from service pursuant to impugned final order made by the

SLSC, on purported finding that he had a fake caste identity as opposed

to a fake caste certificate.

9. There was submission made on behalf of State that the SLSC

had verified petitioner's caste to find he did not belong to ST category

(Kandha). The writ Court should not interfere with such finding. It is

one on verification of facts. A consequence would be that petitioner and

after him his heirs would then claim to belong to ST category (Kandha)

and obtain advantage of reservation in future. The SLSC had found from

the land records, petitioner's father and his brothers had been mentioned

therein to belong to caste 'Pano'.

10. Court is convinced the Rules of 1980 do not provide for

verification of caste certificates issued by an MLA, the issuance

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permissible prior to coming effect of the Rules. Competent authorities to

issue caste certificates and those to verify them have been clearly

provided for in the Rules. Hence, impugned final order proceeds on

basis of petitioner having faked his caste identity. This finding,

however, is not supported by corresponding finding that petitioner faked

his identity in obtaining government service as would appear from the

record. Petitioner as aforesaid, was given appointment as 'Orderly Peon'

on 17th September, 1986 and had entered into government service on

20th September, 1986. The appointment letter and petitioner entering

government service are borne out by documents on record. Said

documents do not indicate petitioner obtained the service on reservation,

claiming to belong to ST category (Kandha). In the circumstances,

impugned final order bearing penal consequences against petitioner does

not appear to be based on relevant evidence/material. Omission to

mention in the appointment documents that petitioner belongs to a

reserved category makes it clear, petitioner did not get his appointment

as such. That would relegate petitioner to belong to a caste in the general

category. As such, his heirs cannot get reservation by claiming to belong

to ST category (Kandha). This Court on not being presented with cogent

material to demonstrate petitioner had obtained government service on

reservation for members of, inter alia, ST category (Kandha), impugned

final order cannot be sustained on judicial review, inspite of petitioner,

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obviously wrongfully, having obtained his said caste certificate.

11. Impugned final order and all consequent orders are set aside

and quashed. The writ petition is allowed and disposed of.

(Arindam Sinha) Judge Sks

Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 30-Aug-2023 17:53:24