Orissa High Court
Damayanti Bhoi vs State Of Odisha & Others .... Opposite ... on 2 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAS) No.19 of 2013
An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
..................
Damayanti Bhoi .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. S.K. Purohit, A.K. Nayak
& A.K. Das.
For Opp. Parties : M/s. B. Panigrahi,
Addl. Standing Counsel.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.09.2023 and Date of Order:22.09.2023
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. S.K. Purohit, learned counsel for the
Petitioner and Mr. B. Panigrahi, learned Addl. Standing
Counsel for the State-Opposite Parties.
3. The Petitioner has filed the present Writ Petition inter
alia with the following prayer:-
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"(i) Direct the Respondent no.5 to reinstate the applicant in
service with all the seniority and pecuniary benefit;
(ii) Quash the termination order dt.31.12.12.
(iii) Pass any further order/direction as deemed fit and
proper by your Lordships".
4. It is contended that the Petitioner entered into
Government service and was appointed as a Primary School
Teacher, where she joined on 05.09.1988. The Petitioner
while so continuing was promoted to the post of
Headmistress and posted as such to Bohidar Nuapali
Primary School vide order dtd.17.05.1994 under
Annexure-2. However, it is contended that while so
continuing an enquiry was initiated at the behest of the
Scheduled Tribe Community regarding the caste certificate
produced by the Petitioner at the time of her appointment,
so obtained on 10.08.1981 under Annexure-3.
4.1. Basing on the allegation made against the Petitioner,
Petitioner was show caused vide notice dtd 21.09.2011 so
issued by the Deputy Director, SSD--cum-Member
Convenor, State Level Scrutiny Committee, Office of
Revenue Divisional Commissioner (RDC), Northern Division
(ND), Sambalpur along with the report submitted by the
Superintendent of Police, Sambalpur.
4.2. It is contented that Petitioner on receipt of the show
cause dtd.21.09.2011 under Annexure-6, though gave a
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detailed reply by including various documents in support of
the stand that she belongs to Scheduled Tribe Community
under Annexure-7, but without proper appreciation of the
stand taken by the Petitioner in her reply to the show cause
under Annexure-7, final order was passed by the State
Level Scrutiny Committee on 18.10.2012, with a finding
that the Petitioner has obtained fake caste certificate in her
favour by showing herself belonging to Scheduled Tribe
Community. After passing of such order passed by the
State Level Scrutiny Committee on 18.10.2012, Opposite
Party No.3 vide his letter dtd.24.12.2012 requested the
Collector, Sambalpur as well as the Superintendent of
Police, Samablpur to take follow of action against the
present Petitioner.
4.3. It is contended that on receipt of the letter issued by
Opposite Party No.3 on 24.12.2012 under Annexure-8
along with the final order passed by the State Level
Scrutiny Committee on 18.10.2012, Petitioner was straight
away terminated from her services vide order
dtd.31.12.2012 under Annexure-10 without any show-
cause and prior notice.
4.4. It is contended that the Petitioner after due
verification of her status as a Scheduled Tribe Candidate
was selected and appointed as a Primary School Teacher,
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where she joined on 05.09.1988. Petitioner while so
continuing was promoted to the post of Headmistress vide
order dtd.17.05.1994. But basing on some allegation
made by the Scheduled Tribe Community in the year 2011,
the Petitioner was show caused on 21.09.2011 under
Annexure-6, which is almost after 22 years of her
appointment.
4.5. It is contended that basing on the final order passed
by the State Level Scrutiny Committee on 18.10.2012,
Opposite Party No.3 when communicated said order with a
request on the Collector and Superintendent of Police,
Sambalpur to take follow of action against the Petitioner
vide his letter dtd.24.12.2012 under Annexure-8, Opposite
Party No.5 without any show cause and without following
the principle of natural justice straight away terminated the
Petitioner from her services vide order dtd.31.12.2012
under Annexure-10.
4.6. It is accordingly contended that since the principle of
natural justice was not followed and no notice whatsoever
was issued prior to terminating the services of the
Petitioner, who was holding a civil post, the impugned order
under Annexure-10 is not sustainable in the eye of law and
liable for interference with a further direction on the
Opposite Parties to reinstate the Petitioner.
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5. Mr. B. Panigrahi, learned Addl. Standing Counsel on
the other hand made his submission basing on the stand
taken in the counter affidavit so filed by Opposite Party
No.3. It is contended that the Petitioner by producing the
caste certificate issued under Annexuyre-3 and by showing
herself belonging to Scheduled Tribe Community, made her
application for her selection to the post of Primary School
Teacher. Relying on the said certificate and by treating the
Petitioner having belong to Scheduled Tribe Community,
she was appointed as a Primary School Teacher, where she
joined on 05.09.1988.
5.1. Though, it is not disputed that the Petitioner after her
joining as a Primary School Teacher on 05.09.1988 was
allowed to continue and she also got the benefit of
promotion to the post of Headmistress vide office order
dtd.17.05.1994 under Annexure-2, but when allegation was
made that the Petitioner has produced a fake certificate and
in fact she does not belong to Scheduled Tribe Community,
on receipt of such complaint, Petitioner was show caused
by the State Level Scrutiny Committee on 21.09.2011
under Annexure-6.
5.2. The State Level Scrutiny Committee after due
consideration of the reply to the show cause so submitted
by the Petitioner under Annexure-7 vis-à-vis the other
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material produced by the Petitioner and by the
Superintendent of Police in his report dtd.24.08.2011,
passed the final order on 18.10.2012 by holding that the
Petitioner has produced a fake caste certificate and she
does not belong to Scheduled Tribe Community. The order
passed by the State Level Scrutiny Committee on
18.10.2012 was forwarded to the Collector and
Superintendent of Police, Sambalpur vide letter
dtd.24.12.2012 under Annexure-8. Since the State Level
Scrutiny Committee in its order dtd.18.10.2012 clearly held
that the Petitioner does not belong to Scheduled Tribe
community and she got the benefit of appointment by
producing a fake caste certificate, she was terminated from
her services vide order dtd.31.12.2012, so issued by
Opposite Party No.5 under Annexure-10.
5.3. It is also contended by learned Addl. Standing
Counsel that challenging the final order passed by the State
Level Scrutiny Committee on 18.10.2012 and consequential
initiation of the criminal case against the Petitioner,
Petitioner approached this Court in W.P.(C)
No.10045/2013. This Court vide order dtd.30.09.2021
while dismissing the writ petition granted liberty to the
Petitioner to seek further appropriate remedy.
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5.4. It is accordingly contended that, since the final order
passed by the State Level Scrutiny Committee on
18.10.2012 basing on which the Petitioner was terminated
form her service vide order dtd.31.12.2012 has been upheld
by this Court in its order dtd.30.09.2021, no illegality can
be found with the order of termination so issued by
Opposite Party No.5 on 31.12.2012 under Annxure-10.
It is contended that the Petitioner has been rightly
terminated from her services because of the final order
passed by the State Level Scrutiny Committee on
18.10.2012, so upheld by this Court in its order
dtd.30.09.2021 in W.P.(C) No.10045/2013.
6. Mr. Purohit, learned counsel for the Petitioner taking
into account the submission of the learned State Counsel,
though does not dispute the dismissal of the writ petition
so filed by the Petitioner in W.P.(C) No.10045/2013, but
contended that even if the final order passed by the State
Level Scrutiny Committee has been upheld by this Court in
its order dtd.30.09.2021, but the Petitioner could not have
been terminated from her services without following the
principle of natural justice.
6.1. It is also contended that since the Petitioner was
issued with the caste certificate under Annexure-3 in terms
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of the provisions contained under Orissa Caste Certificate
(for SC & ST) Rules, 1980, the State Level Scrutiny
Committee does not have any jurisdiction to entertain the
compliant with regard to genuineness of the Petitioner's
caste certificate.
6.2. In support of the aforesaid submission, learned
counsel for the Petitioner relied on the decision of this
Court reported in 2023(I) OLR-617 (Sridhar Kumar Dali
vs. State of Odisha & Others). This Court in Para-6, 7 &
8 of the said judgment has held as follows:-
"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, 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".
7. Having heard learned counsel for the Parties and after
going through the materials available on record, this Court
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finds that the Petitioner was appointed as a Primary School
Teacher having belong to Scheduled Tribe Community
basing on the certificate produced by the Petitioner under
Annexure-3. When allegation was made that the Petitioner
does not belong to Scheduled Tribe Community, the matter
was taken up by the State Level Scrutiny Committee in
terms of the order passed by the Hon'ble Apex Court in the
case of Kumari Madhuri Patil and Other vs. Additional
Commissioner, Tribal Development, Maharashtra and
Others reported in AIR 1995 SC-94. Petitioner accordingly
was show caused by the Committee vide letter
dtd.21.09.2011 under Annexure-6. Petitioner on receipt of
the show cause under Annexure-6, submitted her reply
under Annexure-7 and also participated in the hearing so
taken up by the Committee. The Committee after hearing
both the sides passed the final order on 18.10.2012, by
holding that the Petitioner has obtained a fake caste
certificate and she does not belong to Scheduled Tribe
Community.
7.1. It is also found that the final order passed by the
State Level Scrutiny Committee on 18.10.2012 in Fake
Certificate No.01/11 (SBT) was challenged by the Petitioner
before this Court in W.P.(C) No.10045/2013. This Court
vide order dtd.30.09.2021 was not inclined to interfere with
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the order so passed by the State Level Scrutiny Committee
and dismissed the writ petition but by giving liberty to the
Petitioner to seek appropriate remedy. It is not the case of
the Petitioner that against the order passed by this Court
on 30.09.2021 in W.P.(C) No.10045/2013, the Petitioner
has taken any further step by challenging the order before
the higher forum.
7.2. The decision relied on by the learned counsel for the
Petitioner in the case of Sridhar Kumar Dalai as cited
(supra) is not applicable to the present case as in the said
case, this Court relying on the provisions contained under
Orissa Caste Certificate (for SC & ST) Rules, 1980 set aside
the order passed by the State Level Scrutiny Committee by
holding that the 1980 Rules will prevail and State Level
Scrutiny Committee does not have jurisdiction to enter into
the genuineness of the caste certificate issued under the
provisions of 1980 Rules. But the order passed by the
State Level Scrutiny Committee in the case in hand on
18.10.2012 has been upheld by this Court in its order
dtd.30.09.2021 in W.P.(C) No.10045/2013 and accordingly
order dtd.18.10.2012 attained finality in the eye of law.
Therefore, the ratio decided in the case of Sridhar Kumar
Dalai is distinguishable from the facts of the present case.
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7.3. Since the final order passed by the State Level
Scrutiny Committee on 18.10.2012 has been upheld by this
Court in its order dtd.30.09.2021 in W.P.(C)
No.10045/2013, this Court does not find any illegality or
irregularity with the order of termination so passed against
the Petitioner on 31.12.2012 under Annexure-10.
Accordingly, this Court is not inclined to interfere with the
impugned order and dismiss the writ petition.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 22nd of September, 2023/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
