Shipra Debbarma And Anr. vs State Of Tripura And Ors.

[1] These appeals arise out of a common judgment of the learned Single Judge dated 01.06.2017 in WP(C) No.566 of 2016 and connected petitions. Facts involved in both petitions overlap. These appeals have therefore been heard together and would be disposed of by this common judgment.

[2] Brief facts are as under :

Writ Appeal No.03 of 2018 is filed by one Shipra Debbarma original petitioner of WP(C) No.566 of 2016. She had obtained a caste certificate dated 31.01.1981 of belonging to Scheduled Tribe (Tripuri) Community. On such basis she got appointment as Lower Division Clerk (LDC) in the Government in the year 1992. On 12.05.1995 ADM & Collector, West Tripura had initiated an inquiry about the correctness of her caste certificate by issuing a show-cause notice. Petitioner appeared before the said authority and filed the reply. This inquiry did not proceed any further thereafter. Yet another notice dated 11.06.2004 was issued by SDM, Udaipur to appear before him with all original documents pertaining to her caste. Petitioner appeared in response to such notice. This inquiry also did not proceed further thereafter.

On 02.11.2004 Inquiry Officer of Vigilance Cell issued a notice to the petitioner to appear on 06.11.2004 with original certificates. The petitioner appeared. A show-cause notice was issued on 22.02.2005 by State Level Scrutiny Committee (SLSC, for short) why her caste certificate should not be cancelled. On 23.08.2006 SLSC passed an order cancelling the petitioner's caste certificate. This was challenged by the petitioner in WP(C) No.426 of 2006. By a common judgment dated 16.09.2015 passed by the learned Single Judge, the petitioner was allowed with no further liberty to the SLSC to examine the question further. This judgment was challenged in Writ Appeal No.24 of 2014. Again by a common judgment dated 16.07.2015 the Division Bench though agreed with the view of the learned Single Judge that the order of cancellation of caste certificate of the petitioner was unsustainable, did not agree that the proceedings should be permanently be terminated and therefore remanded the proceedings for fresh consideration.

[3] In this judgment, the Division Bench made following directions :

"[19] Therefore, though, we are in agreement with the learned Single Judge that the order of the SLSC was bound to be set aside, we are in respectful disagreement with regard to his finding that the matter should not be remanded to the SLSC. We, therefore allow the appeals of the State to this limited extent and remand all the cases to the SLSC who shall now proceed with the matter from the stage of the reply filed to the show cause notices. The SLSC shall permit the petitioners to cross-examine the witnesses examined by the Inquiry Officer. It shall also permit the petitioners to examine any witnesses, if they so desire or to produce any other documents. In case, the petitioners lead evidence then the State shall also be given an opportunity to produce evidence to the contrary. This exercise must be completed on or before 28th February, 2016. All the petitioners are directed to appear before the SLSC on 12th August, 2015.

The Registrar General is directed to send a copy of this judgment to the SLSC and the members of the SLSC are directed to ensure that in all cases in the future they follow the law laid down by this Court."

[4] On 11.08.2015 SLSC issued a notice to the petitioner to appear on 12.08.2015. On 12.08.2015 SLSC issued notice on the complainant to appear on 24.08.2015 for cross-examination by the petitioner. On 24.08.2015 since the complainant was not present the proceedings were adjourned to 14.09.2015 for "examination/cross- examination of complainant & Inquiring Officer Sri Nandalal Debbarma." On 14.09.2015 SLSC recorded that the counsel of the complainant could not appear and had asked for time. On 30th October, 2015 SLSC recorded that the complainant was present. The date was fixed for his cross-examination but the petitioner had submitted an application for time on the ground that she had received the notice only recently. She was therefore unable to contact her advocate. Time was allowed on the condition that she would be present on the next date with her counsel without fail. Next date was fixed as 18.11.2015 for cross- examination and re-examination of complainant Sri Dhirendra Ch. Debbarma and Sri Narendra Ch. Debbarma and on 20.11.2015 for examination and cross-examination of other two witnesses. On such dates cross-examination of the witnesses was conducted by the petitioner. On 01.02.2016 an application for time was filed by the petitioner on the ground that her lawyer was busy with the treatment of his mother. On 08.02.2016 SLSC recorded that the petitioner should submit her evidence on the next date of hearing which was fixed as 15.02.2016. On 15.02.2016 the SLSC recorded that the petitioner was present but no steps were taken by her counsel. Though the date was fixed for submission of evidence on her behalf no evidence was adduced. The case was thereafter fixed on 25.02.2016 "for final hearing/order". On 25.02.2016 the petitioner gave an application before the SLSC and requested as under :

"That the O.P. humbly prays for acceptance of examination-in- chief alongwith their prayer today of the O.P. humbly prays for allowing the D.W to cross examine as the defence witness and to allow for final hearing today for fair ends of justice. Under the above fact and circumstances the O.P. humbly prays for acceptance of the examination-in-chief of DW No.182, to allow the cross examine the defence witnesses and to allow for final leaving today for ends of justice."

[5] On 16.03.2016 SLSC wrote to the petitioner that she may appear before the Committee on 21.03.2016 to produce such document or thing or to testify whatever she knows concerning the matter. On 21.03.2016 the petitioner again filed an application and prayed as under:

"3) That, the O.P. has submitted the Examination-in-Chief by Affidavit on 25/02/2016 of D.W.1 & D.W.2 on her behalf substantiates her claim that she Belong to Tripuri Community. The O.P. humbly prays that date may be fixed to cross examine the defence Witness for fair ends of Justice.

4) That the rest would be submitted at the time of hearing. Under the above facts and circumstances the O.P. humbly for fixing the date for Cross-Examination of D.W.1 & D.W.2 of the O.P. submitted 25.02.2016 Examination-in-Chief by Affidavit for fair ends of justice on the Principal of natural justice."

[6] On 15.04.2016 SLSC wrote a letter to the petitioner along with which an order dated 25.02.2016 was annexed. By this order, the SLSC had decided the issue of the petitioner's caste certificate and declared that she did not belong to Tripuri community but she was a member of Laskar (Deshi Tripuri) community and that her caste certificate of belonging to ST community was cancelled.

[7] This order dated 25.02.2016 the petitioner challenged before the learned Single Judge. The learned Single Judge dismissed the petition upon which this appeal is filed.

[8] Appellant of Writ Appeal No.04 of 2018 Rajive Debarma is the brother of Shipra Debbarma. He also obtained a ST certificate on 16.01.1981. A show-cause notice was issued to him on 16.02.2006 by SLSC why his caste certificate should not be cancelled. In reply to his show-cause notice the petitioner under a letter dated 04.03.2006 wrote as under :

"Sir,

With due respect, I beg to inform you on the above subject & reference No. that my S.T certificate issued from SDM, Udaipur as per my father's documents but it is also fact that my social status is linked with Laskar Community which documents enclosed by you.

This is my remark of show-cause notice for favour of your kind information & doing the needful please."

[9] SLSC passed an order on 21.09.2006 cancelling his caste certificate which the petitioner challenged before the High Court. In his case also after the Single Judge allowed the petition in entirety the State appealed before the Division Bench and by a common judgment dated 16.07.2015 the appeal was allowed in part. SLSC was required to conduct a fresh proceeding and decide the issue again. This portion of the judgment we have already reproduced earlier. Thereupon, SLSC issued notices, allowed cross-examination of witnesses by the petitioner. On 08.02.2016 after all the stages were crossed of examination and cross-examination of witnesses, the petitioner filed an application before SLSC requesting for recall of the complainant for his further examination. This application was rejected by SLSC on 08.02.2016 fixing the next date as 15.02.2016. On 15.02.2016, SLSC fixed 25.02.2016 as the date for final order. On 25.02.2016 SLSC passed order cancelling the petitioner's caste certificate. This order was communicated to the petitioner Rajive Debbarma by SLSC on 15.04.2016 upon which he filed WP(C) No.576 of 2016 which was dismissed by the learned Single Judge. Hence this appeal.

[10] Appearing for the appellants, learned senior counsel Shri Roy Barman submitted that SLSC has not followed proper procedure in following respects :

(i) In case of Shipra Debbarma after fixing 25.02.2016 as the date for passing order, on her request this stage was reopened and the matter was thereafter fixed on 21.03.2016. Thereafter, without any further communication SLSC under letter dated 15.04.2016 supplied a copy of order dated 25.02.2016 to the petitioner. Thus when the next date of further hearing was fixed on 21.03.2016 as can be seen from the communication dated 16.03.2016 from the SLSC, the order dated 25.02.2016 must already have been passed. This was thus grossly irregular procedure adopted by the Committee.

(ii) The procedure laid down in Rule 7A of Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (hereinafter to be referred as „the said Rules') which was inserted pursuant to the decision of the Supreme Court in case of Kumari Madhuri Patil and another versus Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241 was not followed.

(iii) The observations made by the Division Bench in earlier round of the judgment remanding the proceedings before the SLSC were also not followed. The entire burden of proving the caste certificate genuine was thrown on the petitioner.

Counsel submitted that the inquiry was conducted in gross violation of principles of natural justice. The petitioners were not given adequate opportunity to defend themselves. Material relied upon by the committee was not provided to the petitioners.

Even on merits the orders were defective. There was no material on record to suggest that the petitioners did not belong to Tripuri community and therefore the caste certificates were not genuine. Learned Single Judge committed a serious error in treating the reply of Rajive Debarma to the show-cause notice as his admission that he belongs to Laskar community and not Tripuri community.

[11] On the other hand, learned counsel Shri Raju Datta and Shri Rajib Saha opposed the appeals contending that the petitioners were given ample opportunities to participate in the proceedings before the SLSC. On one ground or the other they were merely delaying the process. They were allowed cross-examination of all witnesses on which the committee relied upon. They were granted sufficient opportunities to produce their own evidence. Neither of the writ petitioners produced any witnesses or documents. They relied on the decision of Supreme Court in case of Director of Tribal Welfare, Government of A.P. versus Laveti Giri and another reported in (1995) 4 SCC 32 to contend that the burden is always on a person who claims to belong to a certain community which proved the fact. It was contended that the committee has come to factual findings based on evidence on record which are not open to challenge in a writ petition. The learned Single Judge has correctly dismissed the petitions. Writ Appeals may therefore be dismissed. Our attention was also drawn to the decision of the Supreme Court in case of Madhuri Patil (supra) regarding the scope of a petition challenging the decision of SLSC.

[12] At the outset, we may clear the ambiguity about the manner in which the decision was rendered by SLSC in case of Shipra Debbarma. We have recorded the different stages of the proceedings at some length in order to demonstrate that she was given long rope by SLSC and on various occasions her requests for adjournment were accommodated. Sometime she asked for time on the ground that her advocate was busy with his mother's treatment. On another occasion she asked for time on the ground that her husband was unwell and so on. All these requests were granted. Eventually SLSC on 15.02.2016 recorded that the petitioner has taken no steps for producing her evidence and the case was therefore fixed on 25.02.2016 for final hearing/order. We may recall as per the judgment of the Division Bench 25.02.2016 was the last date by which SLSC had to pass final order. On 25.02.2016 the petitioner again prayed for time on the ground that her husband was unwell. We have reproduced the final prayer of the petitioner in this petition in which she asked for adjournment for acceptance of examination-in-chief of her witnesses and to cross-examine them and thereafter to permit final arguments. For several reasons this prayer of the petitioner was strange and untenable. Firstly, the SLSC was staring at a deadline laid down by the High Court. Secondly, as the background would suggest she had been asking for time on multiple occasions on various reasons. Thirdly, on all previous occasions she had failed to produce any evidence of her own and lastly she wanted to cross- examine her own witness whom she was yet to examine. In this application she stated that she could not produce evidence on the previous date i.e. 15.02.2016 and therefore she may be given another opportunity to lead her evidence. On 16.03.2016 SLSC therefore conveyed to her that she may appear before the committee on 21.03.2016 for producing her evidence and documents. Even this opportunity granted by SLSC virtually recalling its previous order dated 15.02.2016 did not activate the petitioner into producing any evidence. Instead on 21.03.2016 she repeated her request for an adjournment so that she may produce her witnesses and also cross-examined them. It was in this background SLSC communicated the petitioner under letter dated 15.04.2016 the final order of cancellation of her caste certificate passed on 25.02.2016.

[13] There may be procedural lacuna in allowing the petitioner to appear before SLSC after 25.02.2016 and to produce evidence when the final order was already passed on 25.02.2016. If the petitioner had appeared and produced evidence the question of recalling the order dated 25.02.2016 would certainly have been a ticklish one since as an administrative authority SLSC could not have reviewed its own order. However, the petitioner mercifully made the task of SLSC simpler. Even on 21.03.2016 she did not change her recalcitrant ways and produce any meaningful evidence. She repeated her request as she had done on many occasions in the past to adjourn the proceedings to enable her to examine her witnesses whom she may also cross-examine. If out of respect or a certain degree of trepidation on account of the High Court deadline coming to an end, SLC had also passed order on 25.02.2016, we do not find that this mere procedural irregularity would vitiate such an order, more so, since for no good reason the petitioner did not avail of the opportunity to adduce her evidence on 21.03.2016 also.

[14] Coming to the question of procedural and substantive defects in the order, our inquiry is bound to be rather narrow. The Supreme Court in case of Madhuri Patil (supra) in view of large number of disputes about the genuineness of caste certificates and its impact on false claims of reservation in education, public employment and elected posts, constituted a Special Committee which would be exclusively empowered to decide all such disputes. While doing so, it was also provided that the decision of such a committee would not be open to change in any court other than the High Court by way of a writ petition and no civil court would entertain any challenge to any such order. The Supreme Court also reminded the High Courts about the limited scope of a writ jurisdiction in examining factual findings of the committee.

[15] It is true that Rule 7A lays down the detailed procedure for entertaining complaints or disputes of caste certificates. However, unless it is pointed out that any mandatory procedure which resulted into prejudice to the petitioner was not followed, it would not be open for us to set aside the order of the SLSC. Merely upon being demonstrated that a detailed procedure which in many cases is for the benefit of the person holding the caste certificate was not followed, the order of the committee would not be liable to be set aside.

[16] We have perused a detailed order passed by the committee in each case. It would be sufficient to refer to the committee's deliberations in case of Shipra Debbarma. The committee not only referred to the inquiry report submitted by the Vigilance Officer but also referred to other facts and circumstances. It was noted that in the register of K.K. Nagar Panchayat the names of mother of the petitioner and Rajive Debbarma the brother of the petitioner have been recorded as persons belongeing to general category. This fact was not challenged by the petitioner in the cross-examination of the witnesses. Her prime claim was on the basis that her father belonged to Tripuri community. It was noticed that in reply to the show-cause notice her brother Rajive Debbarma had taken a stand that he had claimed the caste certificate on the basis of his father's certificate that he has linked with the Laskar community. It was also noted that in reply to the show-cause notice issued by the SLSC the petitioner had made mere denials without giving any cogent material. It was on the basis of such materials on record and the discussion SLSC came to the conclusion that the caste certificates obtained by the petitioners were not genuine and therefore liable to be cancelled.

[17] In addition to the decision of Supreme Court in case of Madhuri Patil (supra) we may also refer to the decision in case of Director of Tribal Welfare, Government of A.P. versus Laveti Giri and another reported in (1995) 4 SCC 32 in which in the context of the burden to prove the genuineness of the caste certificate, the Supreme Court has made some important observations. It was observed that the traditional approach adopted by High Court of placing burden of proof of social status on the Government was incorrect. It was observed that the burden is always on the person who professes it to seek constitutional socio-economic advantages and it is not the duty of the State to disprove or otherwise. The criteria to obtain caste certificate from local officers is relevant for the reason that Scheduled Tribes generally live in forest areas, mountainous regions and specified pockets and will be known to local officers or easily accessible for verification.

[18] We may not view the reply of Rajive Debbarma to the show-cause notice as an admission on his part that he belonged to Laskar community and not Tripuri community since an admission to be binding on the maker of the statement has to be not only voluntary but also clear and unambiguous and unconditional. What he stated was that he had claimed the caste certificate on the basis of his father's certificate but he has a link with Laskar community. This may not amount to a clear admission, nevertheless indicates his stand with respect to his caste status. In this reply there was no elaboration, nor did he explain this any time later. He did not therefore at any stage take a frontal position that he belongs to Tripuri community and does not belong to Laskar community. In view of these factors, we do not find that the SLSC has committed error of facts which can be corrected in a writ petition much less in a writ appeal.

[19] Before closing, we may take note of the fact that the Supreme Court in case of Srish Kumar Choudhury versus State of Tripura and others reported in AIR 1990 SC 991 while confirming the decision of the High Court declaring that Laskar community of Tripura is not a notified Scheduled Tribe, had protected the benefits granted to the persons belonged to the said community on the basis of Scheduled Tribe certificate issued by the competent authority till a particular date. Pursuant to this judgment the State of Tripura had also issued a memorandum dated 31.03.1990 providing that the members of Laskar community henceforth will not constitute Scheduled Tribes and will not be able to draw any benefits as members of Scheduled Tribe in the State of Tripura. However, the members of the said community shall not be deprived of the benefits they have already enjoyed by virtue of having been treated as Scheduled Tribe in accordance with the orders issued by the Government of Tripura. Both or either of the petitioners if are therefore entitled to these concessions, he or she should be granted the same despite dismissal of these appeals.

[20] In the result, subject to above observations, both the appeals are dismissed. Pending application(s), if any, also stands disposed of. Interim order(s), if any, stands vacated.