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Judgment
Sashikanta Mishra, J.
Both the writ petitions involve similar facts and a common question of law and were therefore, heard together. The present common judgment shall dispose of both. For convenience and brevity, the facts of W.P.(C) No.37572 of 2023 are being considered.
The petitioner claims to be member of the Kaibarta community, otherwise known as “Dewar”, which is a Schedule Caste. On his application, the Tahasildar, Banki issued caste certificate in his favour on 08.09.1981 in terms of the Odisha Caste Certificate (for Scheduled Caste and Scheduled Tribe) Rules 1980 (for short, 1980 Rules) mentioning his caste as “Dewar (Kaibarta)”. Basing on such caste certificate, the petitioner applied and being selected, was appointed as a Constable by the S.P., Rourkela vide order dated 17.06.1993. Upon completion of training, he served at different places and ultimately was posted in Cuttack district. Because of a family feud, his sister-in-law, being the wife of his younger brother (Sadhu Charan Behera), namely, Golap Kumari Behera submitted a complaint before the Revenue Divisional Commissioner (CD) on 08.11.2013, alleging that the petitioner belongs to Girgiria caste but suppressing such fact, had obtained the caste certificate as Dewar. As such, the petitioner being fraudulently appointed as Constable, the complaint was sent to the District Vigilance Cell for inquiry. Accordingly, the State Level Scrutiny Committee (SLSC) called upon the petitioner to show cause by letter dated 27.01.2016. The petitioner submitted his reply on 11.02.2016, stating that he belongs to the Dewar, Kaibarta (Girgiria Caste) and the traditional business of his family is to catch fish from river Mahanadi and also boating. The petitioner was also asked to personally appear before the SLSC on 11.08.2016, during which he produced certain RORs relating to some of his relatives showing that he belongs to Kaibarta/Keuta caste. However, on 08.12.2016, the SLSC directed the Tahasildar, Banki to cancel the certificate and to initiate criminal case against the petitioner. The SLSC also directed the S.P. to dismiss the petitioner from service and to initiate disciplinary action against him. Basing on such order, further action was taken and ultimately, the service of the petitioner was terminated vide order dated 11.01.2017.
The petitioner approached this Court in W.P.(C) No.1834 of 2017 against the order of the SLSC. By order dated 20.12.2022, this Court set aside the order of the SLSC and remitted the matter for fresh consideration by taking note of the further evidence supporting his stand. The matter was thus heard afresh but by order dated 09.06.2023, the earlier order was reiterated, which is impugned in the present writ petition.
Be it noted that the facts in the connected case [W.P.(C) No. 37576 of 2023] are more or less identical, save for the following: the caste certificate in favor of the petitioner herein was issued on 08.09.1986. Further, the petitioner in this case, having been terminated from service also by order dated 11.01.2017, approached this Court in W.P.(C) No.1832 of 2017, which was disposed of by order dated 21.12.2022, remitting the matter to the SLSC for fresh consideration. An identical order was passed by the SLSC on 09.06.2023 in respect of this petitioner as well. Accordingly, this petitioner has claimed relief identical to that claimed by the petitioner in W.P.(C) No. 37576 of 2023.
Under such circumstances, the petitioner has approached this Court seeking the following relief: -
“It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased.
i)To admit the Writ application.
ii) To call for the record.
iii) To issue Rule Nisi upon the Opp. Parties to show cause as to why the order dated 09.06.2023 passed in SSD Case No. 3 of 2023 shall not be quashed.
iv) To it the opp. Parties do not show cause or show insufficient cause issue a writ in the nature of certiorari or any other appropriate Writ/Writs, order/orders quashing the order dated 09.06.2023 passed by the SLSC under Annexure-16 and declare all the consequential action as illegal and arbitrary and contrary to 1980 Rules.
v)To issue a Writ in the nature of mandamus or any other appropriate Writ/Writs order orders, direction/directions directing the opp. Parties particularly opposite parties Nos. 3 & 4 to restore back the earlier caste certificate under (Annexure-1) issued by the Tahasildar, Banki on 08.09.81 vide Misc. Case No. 1066 of 81 that was prevailing prior to the passing of the impugned order dated 09.06.2023 by the SLSC.
vi) To declare all consequential action pursuant to the impugned order as invalid and inoperative in the eye of law.
vii) To and/or pass any other order/orders, direction/directions as this Hon’ble Court fit and proper for the ends of justice.
And for the act of kindness, the petitioner as in duty bound shall every pray.”
Counter affidavit has been filed by the State-Opposite Parties justifying the decision of the SLSC. It is stated that the order of the SLSC was in consonance with the guidelines laid down by the Supreme Court in the case of Kumari Madhuri Patil and Another vs. Additional Commissioner Tribal Development, Maharashtra1. It was reiterated that the petitioner belongs to Girgiria caste, which does not find place in the list of Schedule Castes in the Presidential Order, 1950 for the State of Odisha. The SLSC meticulously examined the materials placed on record and the show-cause reply submitted by the petitioner and found that he, being a member of the Girgiria caste cannot be treated as a Schedule Caste person. Though conflicting RORs published in the name of the petitioners’ father were produced, it was clearly revealed from inquiry at the field level that he is Girgiria and not Kaibarta.
The petitioner filed a rejoinder stating that his caste certificate was issued under the 1980 Rules, which is saved by all subsequent Rules. The certificate was issued after proper verification by the Tahasildar and therefore cannot be cancelled as a matter of course, that too on the basis of unacceptable documents.
Heard Mr. S.B. Mohanty, learned counsel for the petitioners and Mr. G. Mohanty, learned Standing Counsel for the State.
Mr. Mohanty contends that the SLSC, constituted purportedly as per the guidelines of the Supreme Court in the case of Kumari Madhuri Patil (supra), has no jurisdiction in respect of the caste certificate issued in favour of the petitioner under the 1980 Rules. As per the subsequent interpretation by the Apex Court in the case of Dayaram vs. Sudhir Batham and others2, the scheme in Kumari Madhuri Patil (supra) applies only in the absence of legislation. Since the State of Odisha has its own Rules, i.e., 1980 Rules, prior to the judgment passed in Kumari Madhuri Patil (supra), the SLSC has no authority or jurisdiction to cancel the certificate issued under the said Rules.
Mr. Mohanty refers to judgments passed by this Court in the case of Sridhar Kumar Dalai vs. State of Odisha and others [WP.(C) No. 19763 of 2017] and Kunalata Nayak vs. State of Odisha and others [W.P.(C) No. 15048 of 2022] in this respect. Mr. Mohanty further argues that, even otherwise, the State of Odisha framed the Odisha Schedule Caste, Schedule Tribes and Backward Classes (Regulation of Issuance and Verification of Caste Certificate) Act, 2011, (for short, 2011 Act) which was notified on 15.10.2014. The Rules under the said Act being Odisha Schedule Caste & Schedule Tribes and Backward Classes (Regulation of Issuance and Verification of Caste Certificate) Rules, 2023 (for short, 2023 Act) was issued on 06.01.2026 but it is clearly provided in the said Rules that, though the same superseded the earlier Rules of 1980, but the same had no application in respect of things done or omitted to be done before such supersession. Therefore, the certificate issued under the 1980 Rules is automatically saved. Any alteration with regard to the certificate can only be made as per the 1980 Rules and not the subsequent Rules.
11 On merits, Mr. Mohanty would submit that the principal caste Dewar has 10 sub-groups, such as Radhi, Niali, Girgiria etc. which are well recognized in all quarters. All the ethnic members of the petitioner’s family are Kaibarta/Dewar. Only because a complaint was submitted by a disgruntled relative, the petitioner’s certificate could not have been cancelled.
Per contra, Mr. G. Mohanty, learned Standing Counsel submits that the State Government constituted the State Level Scrutiny Committee as per the guidelines of the Supreme Court in the case of Kumari Madhuri Patil (supra). The complaint against the petitioner was that he had fraudulently obtained the caste certificate projecting himself as Dewar (Kaibarta), even though he belongs to the Girgiria caste. These factual aspects were duly proved in the inquiry conducted by the Investigating Officer, who recorded the statements of several villagers. The reply submitted by the petitioner was also duly considered. The complainant was aggrieved because her husband, who is none other than the younger brother of the petitioner, was refused to be issued with Schedule Caste certificate on the ground that their caste was Girgiria. In course of inquiry, the anthropological and ethnological characteristics such as rituals and customs etc. were duly inquired into by the SLSC. It was found that the petitioner despite not being a member of the Schedule Caste, falsely obtained the caste certificate and on such basis got himself appointed as Constable. He was therefore rightly terminated from service.
Having heard learned counsel for the parties at length and on perusal of the pleadings and materials on record, this Court is of the view that the principal issue that falls for determination in the present case is, whether the SLSC had jurisdiction to inquire into the correctness of caste certificate issued in favour of the petitioners under the provisions of the 1980 Rules.
Admittedly, the petitioner’s certificate was issued on 08.09.1981 (and on 08.09.1986 in case of the petitioner in W.P.(C) No.37576 of 2023) by the Tahasildar, Banki mentioning his caste as Dewar (Kaibarta). Under the 1980 Rules, Rule-6 mentions the competent authority for issuance of caste certificates, which includes Tahasildar. Rule-7, which is reproduced below, provides for certain persons to recommend issuance of the caste certificate. Rule-8 being also relevant is reproduced: -
“7. Recommendatory Authority.
- The following authorities for the purpose of these Rules may recommend to the competent authority for issue of caste certificates to the persons belonging to Scheduled Castes and Scheduled Tribes in the State of Orissa :
(1)The Sarpanch of the Grama Panchayat in respect of persons residing within the jurisdiction of the Grama Panchayat concerned.
(2)Members of the Orissa Legislative Assembly in respect of persons belonging to their constituencies.
(3)Members of Parliament from Orissa in respect of their constituencies:
Provided that the competent authority may issue caste certificates on the basis of the recommendation of the recommendatory authority. He may, however, cause such verification or enquiries as may be necessary for the purpose of his own satisfaction.
8. Miscellaneous.
(1)The competent authority shall issue caste certificate in the form prescribed in Appendix I of these Rules.
(2)If after issue of caste certificate in any particular case, subsequent verification reveals that the candidate's claim was false, the competent authority who issued the certificate shall have the right to cancel the same and pass orders for revocation of the benefits that might have acquired by-the person concerned.
(3)Any person securing an appointment in any office or in an establishment on the basis of a false claim regarding his caste, shall be liable for termination from service.
(4)The competent authority before whom an application is made for issue of caste certificate for the purpose of securing an employment under the State, shall ensure disposal of such application within a period of one month. In case of failure to issue a caste certificate or to dispose of the application otherwise by passing appropriate orders within the stipulated time, the competent authority shall record in the order sheet of the case record the reasons for such violation of the time limit.
(5)If any competent authority is found to have issued a wrong caste certificate carelessly or deliberately without proper verification, he shall make himself liable for his acts of commission and omission under relevant provision of the I.P.C. and also under the appropriate disciplinary rules applicable to him.” [Emphasis Added]
Thus, as per sub-rule (2) of Rule-8, only the competent authority, who issued the certificate has the right to cancel the certificate and pass order for revocation of the benefits acquired by the persons, in case subsequent verification reveals that the candidate’s claim was false. So, under the scheme of 1980 Rules, if the claim of the petitioner of being a member of the Schedule Caste community was questioned, the Tahasildar who had issued the certificate was competent to inquire into the same and pass appropriate order.
In the case of Kumari Madhuri Patil (supra), the Supreme Court issued a set of guidelines for scrutiny of caste certificates by a committee constituted for the purpose and also laid down the procedure to be followed. However, in Dayaram (supra), the Supreme Court clarified that the scheme in Kumari Madhuri Patil (Supra) was to continue till the legislature makes an appropriate legislation in regard to verification of claims for caste certificates, including those already obtained by candidates. It was categorically held that if there was legislation governing or regulating grant of caste certificates, and if caste certificates were issued after due and proper inquiry, such caste certificates would not call for verification by the Scrutiny Committee. In other words, having regard to the principle of occupied field, Kumari Madhuri Patil (supra) can have no application in the State of Odisha.
The applicability of the ratio of Kumari Madhuri Patil (supra) to caste certificates issued earlier also came up for consideration before this Court in the case Kunalata Nayak (supra) and Sridhar Kumar Dalai (supra). After analyzing the facts of the case and the subsequent judgment of the Supreme Court in the case of Dayaram (supra), this Court in Sridhar Kumar Dalai (supra) held as follows:-
“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. xxxxx”
In view of the above clear pronouncement, it becomes abundantly clear that the caste certificate of the petitioners, having been issued under the 1980 Rules, the scheme laid down in Kumari Madhuri Patil (supra). As such, the SLSC constituted pursuant to Kumari Madhuri Patil (supra) cannot exercise jurisdiction in respect of the certificates issued under the 1980 Rules. Such being the finding, the impugned order cannot be sustained in the eye of law. As a necessary corollary, all actions taken pursuant to the impugned order are also rendered unsustainable in law.
An argument was made by the State Counsel that the earlier order, having been challenged by the petitioners before this Court and the matter being remitted and decided by the SLSC implies that the authority of the SLSC was recognized. This Court is not impressed with the argument, as the matter was remitted to consider certain additional documents referred to by the petitioners. The question of applicability of the scheme of Kumari Madhuri Patil (supra) and the provisions of the 2023 Rules, per se was never specifically raised or considered.
It may be mentioned in passing that Mr. S. B. Mohanty, learned counsel for the petitioner also referred to the 2011 Act as well as the 2023 Rules to submit that even under the new Rules, the earlier certificate issued under 1980 Rules is saved. However, having regard to the finding of this Court as narrated hereinbefore, this Court need not separately examine the applicability of the 2011 Act or the 2023 Rules, since the outcome is independently determined by the 1980 Rules.
For the foregoing reasons therefore, the writ petitions are allowed. The impugned order in both the writ petitions is hereby quashed. Further, all consequential actions taken against the petitioners are declared invalid and the petitioners are held entitled to all consequential benefits. Necessary order in this regard shall be passed by the concerned authority as early as possible, preferably within three months from the date of production of certified copy of this order by the petitioners.