Orissa High Court
(Through Hybrid Mode) vs State Of Odisha And Others on 1 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.19763 of 2017
(Through Hybrid mode)
Sridhar Ku. Dalai .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case :
For Petitioner : Mr. Budhadev Routray, Sr. Advocate
For Opposite Parties : Mr. Y.S.P. Babu, AGA
Mr. S. K. Dalai, Advocate
(for opposite party no.11)
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
01.02.2023
W.P.(C) No.19763 of 2017
and
I.A. no.569 of 2023
1. Mr. Routray, learned senior advocate appears on behalf of
petitioner. He begins with drawing attention to order dated 12th
January, 2023 to point out record therein, inter alia, of his submission
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that his client was given appointment in Un-Reserved (UR) category.
There is no dispute in regard thereto is his further submission. He also
points out from said order that there has been dismissal of his client
from service, in spite of interim order obtained in the writ petition.
His client has filed application for amendment of the writ petition, to
include in the challenge, the dismissal order.
2. He draws attention to Orissa Caste Certificate (for Scheduled
Caste and Scheduled Tribes) Rules, 1980. He relies on rules 6, 8 and
9. He points out from sub-rule (5) in rule 6 that the Tahsildar is a
competent authority for purpose of issuance of caste certificate. His
client's caste certificate was issued by the Tahsildar. Next he draws
attention to sub rules (3) and (5) in rule 8, regarding provision for
termination of service on basis of false claim regarding caste
certificate and liability of the authority to have issued such a
certificate.
3. Regarding rule 9 he submits, any person aggrieved by an
order passed by competent authority sub-ordinate to that of District
Magistrate/Collector may appeal to the latter and to concerned
Revenue Divisional Commissioner. Cancellation of his client's caste
certificate by the State Level Scrutiny Committee on declaration that
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his client's caste certificate is fake was in proceeding initiated on
complaint made by opposite party no.11. Against issuance of the caste
certificate, said opposite party had preferred appeal, registered and
numbered as Caste Appeal no.1 of 2013. Annexure-9 in the petition is
copy of petition filed by said opposite party/complainant, for
withdrawing the appeal. He lays emphasis on paragraph 4 of the
petition, extracted and reproduced below.
"4. That now the present appellant has confessed his
guilty and intends to keep peace and tranquility in the
vicinity for which wants not to proceed/continue the
aforesaid case which has been designed at an evil
intention and want to withdraw his power from Caste
Appeal Case No.3 of 2013."
He submits, procedure provided by the rules, therefore, was resorted
to and stands exhausted on the appeal having had not been
prosecuted.
4. Mr. Routray then relies on judgment of the Supreme Court in
Dayaram v. Sudhir Batham, reported in (2012) 1 SCC 333. He
draws attention to paragraph 5 and 14 (Manupatra print). He submits,
in paragraph 5 three question were framed for adjudication. Question
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no.1 is relevant for adjudication of the writ petition. Question no.1 is
reproduced below.
"5.(i) Whether directions 1 to 15 in Madhuri Patil are
impermissible, being legislative in nature?
xxx xxx xxx "
Paragraph 14 (Manupatra print) is also reproduced below:
"14. Therefore we are of the view that directions 1 to
15 issued in exercise of power under Articles 142 and
32 of the Constitution, are valid and laudable, as they
were made to fill the vacuum in the absence of any
legislation, to ensure that only genuine scheduled caste
and scheduled tribe candidates secured the benefits of
reservation and the bogus candidates were kept out. By
issuing such directions, this Court was not taking over
the functions of the legislature but merely filling up the
vacuum till legislature chose to make an appropriate
law."
(emphasis supplied)
He submits, above referred earlier judgment of the Supreme Court in
Kumari Madhuri Patil v. Addl. Commissioner, Tribal
Development, reported in AIR 1995 SC 94 was delivered in exercise
of power under article 142 in the Constitution of India as clarified by
Dayaram (supra). Hence, it is applicable to those States, wherein
there has not been legislation on the issue. In Odisha, the 1980 rules
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prevail. Sub-ordinate legislation of rules also is legislation. In the
circumstances, the State Level Scrutiny Committee did not have
jurisdiction to make enquiry nor to adjudicate on genuineness of his
client's caste certificate.
5. Mr. Dalai, learned advocate appears on behalf of opposite
party no.11. On query from Court he confirms his client has not
prosecuted the caste appeal filed by him.
6. Mr. Babu, learned advocate, Additional Government
Advocate appears on behalf of State and submits, the Committee
acted in accordance with directions in Kumari Madhuri Patil
(supra). There was information had, requiring enquiry to be made and
thereupon the finding that petitioner's caste certificate is fake, should
be cancelled and was so directed.
7. Recently this Bench had dealt with this question by judgment
dated 4th January, 2023 in WP(C) no.15048 of 2022 (Kunalata
Nayak v. State of Odisha and others). There is no room for doubt,
pursuant to clarification by the Supreme Court in Dayaram (supra)
that Kumari Madhuri Patil (supra) was judgment delivered in
exercise of power under article 142 in the Constitution. It was for
purpose of filling the vacuum in absence of legislation in those States,
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where the directions were made to operate. Here, in Odisha, the rules
prevail, as was found by this Bench in Kunalata Nayak (supra).
8. In facts and circumstances aforesaid, the State Level Scrutiny
Committee did not have jurisdiction to enter into the question of
genuineness of petitioner's caste certificate. As such, impugned order
is set aside and quashed. The amendment application is allowed and
the dismissal order dated 1st September, 2017 is also set aside and
quashed.
9. The writ petition and the application are allowed and disposed
of.
(Arindam Sinha)
Judge
Prasant
