Orissa High Court
Sapneswar @ Sapteswar Behera vs State Of Odisha And Others on 20 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28473 of 2022
(Through Hybrid mode)
Sapneswar @ Sapteswar Behera .... Petitioners
and another
Mr. S. S. Das, Senior Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. A. K. Parija, AG
Ms. Suman Pattanaik, AGA
CORAM: JUSTICE ARINDAM SINHA
ORDER
20.03.2023
Order No.
06. 1. Mr. Parija, learned senior advocate, Advocate General
resumes his argument. He refers to Dayaram V. Sudhir Batham,
reported in (2012) 1 SCC 333, paragraph 9, for the questions
considered therein. The first question was answered by the
paragraphs, of which he refers to paragraphs 10, 17, 18 and 22. The
second question was answered by, inter alia, paragraph 27. On query
from Court he submits, he refers to the second question and its
answer given in the judgment for purpose of continuity.
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2. He then refers to paragraphs 33, 35 and 37 to submit, by
Dayaram (supra) the Supreme Court did not touch its earlier
judgment in Kumari Madhuri Patil vs. Additional Commissioner,
(1994) 6 SCC 241.
3. On Kumari Madhuri Patil (supra) Mr. Parija submits, in
paragraph 14 the Supreme Court issued a mandamus on every State
concerned to endeavour to give effect to the procedure given by the
judgment and see that the constitutional objectives intended for the
benefit and advancement of genuine Scheduled Castes/Scheduled
Tribes or backward classes, as the case may be, are not defeated by
unscrupulous persons. The several notifications, disclosed in the
counter, were issued in exercise of power under article 162 in the
Constitution. He submits, the rules of 1980 were also made in
exercise of said power.
4. He then relies on judgment dated 26th February, 1998 of the
First Division Bench of this Court in OJC no.4251 of 1992
(Prasanna Kumar Naik vs. State Bank of India and others). He
refers to paragraphs 5 to 8 (Manupatra print). He submits, clear view
taken was that the rules were framed in 1980 and have become
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outdated in view of Kumari Madhuri Patil (supra). Hence, there
was direction in paragraph 8, reproduced below.
"8. In view of the above law laid down by the apex
Court, the State Government was to take immediate
steps to amend the Rules and issue suitable executive
instructions in the light of the above law to all
concerned to strictly abide by the decision of the apex
Court while issuing caste certificates."
(emphasis supplied)
5. The rules were not framed pursuant to power conferred by an
Act of the Legislature. He reiterates that the 1980 rules and the
notifications issued pursuant to Kumari Madhuri Patil (supra),
were both in exercise of power under article 162. Both the rules and
notifications come within meaning of law in article 13. State had
issued the notifications pursuant to by view taken in Prasanna
Kumar Naik (supra) on Kumari Madhuri Patil (supra), carrying
mandate upon States to give effect to the streamlined procedure laid
down by the latter. There may appear to be repugnancy between
provisions in the 1980 rules and subsequent notifications. In such
situations, it is to be interpreted, implied repeal of the earlier
provisions. He relies on judgment of the Supreme Court in
Kishorebhai Khamanchand Goyal vs. State of Gujarat, reported
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in (2003) 12 SCC, 274, paragraphs 6 to 8. In context of petitioner's
case, where the rules defined competent authority to be those
mentioned therein and by the notifications the authority became the
State Level Scrutiny Committee and ultimately the committees in
different regions in the State, the competent authorities under the
rules and the State Level Scrutiny Committees by the notifications,
cannot exist together. Hence, there is repugnancy. As such,
provisions for State Level Scrutiny Committees must be held to have
impliedly repealed the 1980 rules provision for competent
authorities. So interpreting would be following law declared in
Kishorebhai Khamanchand Goyal (supra). He concludes his
submissions.
6. Mr. Das, learned senior advocate appears on behalf of
petitioners and relies on judgment of the Supreme Court in J. Chitra
vs. District Collector and Chairman, State Level Vigilance
Committee, reported in (2021) 9 SCC 811, paragraphs 8, 9 along
with the sub-paragraphs, 10 and 11. He submits, Kumari Madhuri
Patil (supra) was thereby interpreted to apply, only where there had
been no verification in issuance of social status certificates, brought
about by absence of existing law. In Odisha there existed the 1980
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rules, with comprehensive provisions for issuance and cancellation
of social status certificates, including appeal provision. Kumari
Madhuri Patil (supra) cannot be said to have had any application in
the State.
8. Paucity of time intervenes. Mr. Das will be heard next on 24th
March, 2023, marked at 2:00 P.M.
(Arindam Sinha)
Judge
Prasant
