Orissa High Court
Janak Kumar Pradhan @ Nayak vs Chairman on 27 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13075 of 2016
In the matter of an application under Articles 226 and
227 of the Constitution of India.
..................
Janak Kumar Pradhan @ Nayak
.... Petitioner
-versus-
Chairman, State Level Scrutiny .... Opposite
Committee, Ganjam and Parties
Others
For Petitioners : Mr. P.C. Chhinchani, Adv.
For Opp. Parties : Mr. A. Tripathy,
Addl. Govt. Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------
Date of Hearing: 06.11.2024 and Date of Judgment: 27.01.2025
---------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. The Present Writ Petition has been filed inter alia
challenging the final order passed by the State Level
Scrutiny Committee on 29.03.2016 in F.C.C.No.57 of
2012 under Annexure-7. Vide the said order, State Level
Scrutiny Committee (Southern Divn.) Opp. Party No.1
while directing for cancellation of the Caste Certificate
// 2 //
issued in favour of the Petitioner by holding the
Petitioner having not belong to S.T, directed for
cancellation of the Caste Certificate so issued in favour
of the Petitioner along with other directions to initiate
criminal proceeding and to remove the Petitioner from
his services.
2. Learned counsel appearing for the Petitioner
contended that Petitioner was issued with the Certificate
in question by the Tahasildar, G. Udayagiri vide RMC
No.27/86. In the said certificate, Petitioner was
declared having belong to Scheduled Tribe category i.e.
Kandha (Christian). Learned counsel appearing for the
Petitioner contended that such a certificate was issued
in favour of the Petitioner in RMC No.27/86, basing on
the inquiry report submitted by the Revenue Supervisor
under Annexure-1 series. It is contended that the
concerned Revenue Supervisor basing on the direction
issued by the Tahasildar, G. Udayagii not only caused a
detailed inquiry but also submitted the report on
18.08.1979 under Annexure-1 series. In the said report,
it was clearly indicated that the Petitioner belongs to
Page 2 of 13
// 3 //
Scheduled Tribe Community having belong to Kandha
(Christian). A clear finding was also given that the
Petitioner does not belong to Pano (Christian). It is also
contended that such a finding was arrived at by the
Revenue Inspector basing on the statement of various
witnesses recorded by him.
2.1. It is contended that basing on the report available
under Annexur-1, not only Petitioner was issued with
the Caste Certificate showing him having belong to S.T
in RMC No.27/86, but also by utilizing the same,
Petitioner was appointed as a Constable in C.R.P.F. A
further submission was made that such an inquiry was
conducted basing on the allegation made before the
Tahasildar, G. Udayagiri under Annexure-1 series.
2.2. It is contended that not only Petitioner was
declared as having belong to S.T, his caste being
Kandha (Christian), but also in the R.O.R issued in the
name of his father under Khata No.33 under Annexure-
4, Petitioner’s caste was shown as Kandha (Christian) i.e
S.T.
Page 3 of 13
// 4 //
2.3. It is contended that while the matter stood thus,
basing on the report submitted by the I.O that Petitioner
does not belong S.T Community, the proceeding in FCC
No.57/2012 was initiated in the file of Opp. Party No.1.
After initiation of the said Proceeding in FCC
No.57/2012, Petitioner was issued with the show-cause
by Opp. Party No.1 vide letter No.1217 dt.22.05.2014.
2.4. It is contended that on receipt of the show-cause
vide letter dt.22.05.2014, Petitioner submitted his reply
on 25.09.2014 under Annexure-6. It is contended that
a stand was taken in the reply to the show-cause that
Petitioner has been rightly issued with the Caste
Certificate, having belong to ST, his sub-caste being
Kandha (Christian) and the said certificate was issued
basing on the inquiry report submitted by the Revenue
Supervisor under Annexure-1. But Opp. Party No.1
without proper appreciation of the reply to the show
cause so submitted under Annexure-6, passed the
impugned order on 29.03.2016 under Annexure-7.
While directing for cancellation of the certificate so
issued in favour of the Petitioner in RMC No.27 of 1986,
Page 4 of 13
// 5 //
other directions were also issued for initiation of
criminal proceeding and for recovery of the benefit
received by the Petitioner from his service.
2.5. Learned counsel for the Petitioner contended that
since without proper appreciation of the stand taken by
the Petitioner in his reply under Annexure-6, the
impugned order was passed directing for cancellation of
the Certificate, the same is not sustainable in the eye of
law.
2.6. It is also contended that because of the impugned
order, Petitioner was removed from his services and
Criminal Proceeding has also been initiated against him.
However, because of the interim order passed by this
Court, no further progress has been made in the
criminal proceeding.
2.7. Learned counsel for the Petitioner also contended
that even though the proceeding in question in FCC
No.57 of 2012 was initiated against the Petitioner basing
on the decision rendered by the Apex Court in the case
of Kumari Madhuri Patil & Others Vs. Additional
Page 5 of 13
// 6 //
Commissioner, Tribunal Development, AIR 1995 SC
94, but in view of the subsequent decision rendered in
the case of Dayaram Vs. Sudhir Batham and Others
(2012) 1 SCC 333, the proceeding in terms of the
decision in the case of Kumari Madhuri Patil was not
maintainable.
2.8. It is contended that since the certificate in question
in RMC No.27/86 was issued in terms of the provisions
committed under the Orissa Caste Certificate (for
Scheduled Castes & Scheduled Tribes) Rules, 1980,
the direction contained in the case of Kumari Madhuri
Patil is not applicable in the State of Orissa. View of the
Apex Court in Para 22 of the decision rendered in the
case of Dayaram reads as follows:
22. 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 the legislature chose to make
an appropriate law.
2.9. It is also contended that following the decision in
the case of Dayaram, this Court in the case of Sridhar
Ku. Dalai Vs. State of Odisha and Others 2023 (I)
Page 6 of 13
// 7 //OLR 614, clearly held that no proceeding in terms of the
decision in the case of Kumar Madhuri Patil can be
initiated in the State of Orissa as with regard to grant
of such certificate, the Orissa Caste Certificate (for SC &
ST )Rules, 1980 (in short Rules) prevails. View
expressed by this Court in para 7 of the judgment in
the case of Sridhar Ku. Dalai reads as follows:
“7. Recently this Bench had dealt with this question
by judgment dated 4th January, 2023 in W.P.(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).
2.10. Placing reliance on the decision in the case of
Dayarm so followed by this Court in the case of Sridhar
Ku.Dalai, learned counsel appearing for the Petitioner
contended that since the Certificate in question was
issued in favour of the Petitioner in RMC No.27/86 in
terms of the 1980 Rules, the proceeding in terms of the
decision in the case of Madhuri Patil is not at all
entertainable and accordingly the direction issued vide
the impugned order under Annexure-7 is not
Page 7 of 13
// 8 //sustainable in the eye of law. It is also contended that
because of the interim order passed by this Court, no
coercive action has been taken against the Petitioner
save and except termination of the petitioner from his
services. It is accordingly contended that the impugned
order dtd. 29.03.2016 so passed by Opp. Party No.1
under Annexure-7 is not sustainable in the eye of law.
3. Mr. Arabinda Tripathy, learned Additional
Government Advocate though on the other hand made
his submission basing on the stand taken in the counter
affidavit and contended that after receipt of the show-
cause in FCC No.57 of 2012, since the Petitioner
without raising any objection participated in the
proceeding by filing his reply under Annexure-6, the
stand taken that initiation of the proceeding in terms of
the decision in the case of Kumari Madhuri Patil is not
maintainable, is not acceptable.
3.1. It is contended that since without any objection,
Petitioner participated in the proceeding with filing of
the reply, the stand taken by the Petitioner that such a
Page 8 of 13
// 9 //
proceeding is not maintainable cannot be raised after
passing of the impugned order under Annexure-7.
3.2. It is also contended that even though basing on the
report of the I.O, Petitioner was issued with the show-
cause vide letter dt.22.05.2014 and he submitted the
reply under Annexure-6, but no documents were filed by
the Petitioner in support of his claim that he belongs to
Scheduled Tribe Community and the certificate has
been issued in his favour rightly in RMC No. 27/86.
3.3. However, while countering the submission of the
learned counsel for the Petitioner regarding the decision
rendered in the case of Dayaram so followed by this
Court in the case of Sridhar Ku. Dalai, learned counsel
for the State contended that in the meantime while
superseding the Orissa Caste Certificate (for Scheduled
Castes and Scheduled Tribes) Rules, 1980 , a new rule
has come into force vide notification dt.06.01.2024 i.e.
Orissa Scheduled Castes, Scheduled Tribes and
backward Classes (Regulation of Issuance of Verification
of Caste Certificate) Rules, 2023. It is contended that a
detailed procedure has been provided in the aforesaid
Page 9 of 13
// 10 //
2023 Rules to deal with the issue, with regard to grant
and cancellation of the Certificates issued in favour of
Scheduled Castes, Scheduled Tribes and Backward
classes.
3.4. It is contended that in view of the provisions
contained under the aforesaid 2023 Rules, the State
Level Scrutiny Committee is also competent to deal with
the allegation made against the present Petitioner. It is
accordingly contended that since after giving due
opportunity of hearing, the Caste Certificate issued in
favour of the Petitioner in RMC No.27/1986 has been
cancelled vide the impugned order, the same has been
rightly passed and it requires no interference of this
Court.
4. Having heard learned counsel for the parties,
considering the submission made and the materials
placed, this Court finds that Petitioner was issued with
the Caste Certificate in RMC No.27 of 1986. Vide the
said certificate; Petitioner was declared as having belong
to S.T community and his sub caste being Kandha
(Christian). As found basing on the report submitted by
Page 10 of 13
// 11 //
the Inquiry Officer, the proceeding in question was
initiated in FCC No.57 of 2012. After initiation of the
proceeding in FCC No.57 of 2012, Opp. Party No.1
issued the show-cause to the Petitioner vide letter
dt.22.05.2014.
4.1. As found the proceeding in question was initiated
in terms of the decision rendered by the Apex Court in
the case of Kumari Madhuri Patil as cited (supra). It is
found that even though Petitioner was submitted a reply
to the show cause under Annexure-6 and the proceeding
was disposed of vide the impugned order dt.29.03.2016
under Annexure-7, but this Court in view of the
subsequent decision of the Apex Court in the case of
Dayaram so followed by this Court in the case of Sridhar
Kumar Dalai, as cited (supra) is of the view that the
proceeding in FCC No.57 of 2012 could not have been
initiated as the Certificate in question was issued under
the 1980 Rules.
4.2. Therefore, in view of the decision rendered in the
case of Dayaram so followed in the case of Sridhar
Kumar Dalai, this Court is of the view that the
Page 11 of 13
// 12 //
proceeding in terms of the decision in the case of
Kumari Madhuri Patil could not have been initiated in
FCC No.57 of 2012.
4.3. However, taking into account the notification
issued by the Government on 06.01.2024 and with
coming into force of the Orissa Scheduled Castes,
Scheduled Tribes and Backward Classes (Regulation of
Issuance and Verification of Caste Certificates) Rules,
2023, the power is now vested on the State Level
Scrutiny Committee to deal with the issue involved in
the present Writ Petition. Therefore, this Court is
inclined to quash order dt.29.03.2016 so passed by
Opp. Party No.1 in FCC No.57 of 2012 under Annexure-
7. While quashing the same, this Court remits the
matter to Opp. Party No.1 to take up the issue in terms
of the provisions contained under the aforesaid 2023
Rules.
4.4. Since this Court is remanding the matter for its
disposal in accordance with the amended 2023 Rules,
this Court directs the Petitioner to appear before Opp.
Party No.1 along with a copy of this order on 7 th
Page 12 of 13
// 13 //
February, 2025. On his appearance, Opp. Party No.1
shall take up the issue and decide the matter in
accordance with the 2023 Rules within the period of 4
(four months) from the date of appearance, as directed,
in which this Court expresses no opinion.
The Writ Petition accordingly stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 27th January, 2025/sangita
Page 13 of 13
[ad_1]
Source link