Uttam Kumar Das vs State Of Tripura And Ors

[1] Heard learned counsel for the parties for final disposal of the petition. Petitioner has challenged an order dated 26.11.2019 by which the Sub-Divisional Magistrate, Sadar Sub-Division, West Tripura in purported exercise of powers under Rule-6 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (hereinafter to be referred to as the said Rules) cancelled Scheduled Caste (Mahishyadas) certificate of the petitioner issued on 27.05.1986.

[2] Brief facts are as under :

Petitioner claims that he belongs to Scheduled Caste (Mahishyadas) Community. In such capacity he was appointed as an Audit Officer in the year 1996 and later on promoted to the post of Finance Officer sometime in the year 2017. He retired on superannuation on 22.01.2020. The petitioner was granted caste certificate on 27.05.1986 by the Sub-Divisional Officer, Sadar, West Tripura.

[3] There were complaints about the genuineness of such certificate and of the petitioner belonging to the said reserved category. The issue was referred to the State Level Scrutiny Committee (the Scrutiny Committee, for short) which after carrying out necessary inquiries passed an order on 05.01.2013 holding that the petitioner belongs to Mahishyadas Community and the allegations made against him were false. Further proceedings were dropped. This order reads as under :

" 05.01.2013

A complaint has been received against Sri Uttam Kr. Das S/o. Sri Prabodh Ranjan Das of Vill- Durganagar, Ranirbazar, West Tripura for obtaining of SC certificate by false personification.

The matter has been referred to the Vigilance Cell Tripura Agartala as well as the Block Development Officer, Jirania R.D. Block for enquiry and report. The report of Vigilance indicate that Sri Uttam Kr. Das belongs to Mahisyadas Community which is recognized as Scheduled Caste in Tripura. Similarly report of SC Welfare Sub-Committee Jirania R.D. Block, indicate that Sri Uttam Kr. Das belongs to Mahisyadas community.

The issue of Sri Uttam Kr. Das enquired into and found Sri Das belongs to Sch. Caste (Mahisyadas) by the Director, SC & OBC Welfare earlier and drop further proceeding at Note No.7 & 11. The matter was also informed to the Registrar, Tripura University vide letter No.19571-75/F.2-134(A)(J-12)/ SCW /GL/98 dated 7-12-99.

The State Level Scrutiny Committee examined the reports and comes to the conclusion that Sri Uttam Kr. Das belongs to Mahisyadas community and the allegation made is false. Accordingly the committee decides to drop further proceeding."

[4] Once again it appears that there were murmurs about the petitioner's true caste status. The inquiry seemed to have been made by the District Magistrate & Collector, West Tripura to whom the Sub-Divisional Magistrate, Sadar, West Tripura conveyed on 01.06.2019 that the petitioner may be treated as belonging to Scheduled Caste (Mahishyadas) Community. This communication reads as under :

"Sir,

Kindly refer to your letter No.F.6(258)-DM/W/GL/2018-19/4335 dt.23-04-2019 on the subject cited, In this respect I would like to inform you that the filed enquiry has been caused regarding Schedule Caste Certificate of Sri Uttam Kumar Das, Finance Officer, Tripura University by this office and the following fact are disclosed.

The SC Certificates of 05(five) Nos. brothers of Sri Uttam Kumar Das S/o Prabodh Ranjan Das namely (i) Sri Amar Kr. Das, (ii) Sri Anil Kr. Das, (iii) Sri Ashoke Das, (iv) Sri Gautam Kr. Das and (v) Sri Suman Das S/o Prabodh Ranjan Das were issued and SC "Mahishyadas" Community. (Copy of SC certificate of Sl. nos. (i), (iv), (v) enclosed).

In ROR issued by the BDO, Mandwi Block dt.10/12/1996 it is mentioned that Lt. Prabodh Ranjan Das F/o Sri Uttam Kumar Das belongs to SC "Mahishyadas" Community (copy of ROR is enclosed) Fullblood relative uncles of Sri Uttam Kumar Das S/o Prabodh Ranjan Das namely (i) Sri Swadesh Ranjan Das, (ii) Sri Gurudhan Das both S/O Priyanath Das belongs to SC "Mahishyadas" Community as reflected in SC Certificate. (copy of SC certificate are enclosed).

The SC certificate of Sri Uttam Kumar Das bearing No.31/317/F.XII.2/SDO/SDR/TW/86 dated, 27-05-1986 was issued from this office (copy enclosed).

In view of the above facts, Sri Uttam Kumar Das S/o Prabodh Ranjan Das may be treated as belonging to SC "Mahishyadas" Community.

This is for favour of your kind information.

Yours faithfully

Sd/

Sub-Divisional Magistrate Sadar, West Tripura."

[5] The controversy about the petitioner's caste status refused to die down. The Sub-Divisional Magistrate, West Tripura issued a show-cause notice dated 04.11.2019 calling upon the petitioner to state why it may not be held that he does not belong to Scheduled Caste Community. Notice reads as under :

NOTICE

"Whereas a Scheduled Caste Certificate Vide No.317/F.XII-2/SDO/SDR/TW/86 dated 27/05/1986 had been issued in favour of Sri Uttam Kumar Das S/o. Late Prabodh Ranjan Das by the Sub-Divisional Magistrate, Sadar Sub-Division[Undivided], West Tripura.

AND

Whereas subsequently on receiving complaint, the Director Schedule Case Welfare Department, Govt. of Tripura has conducted a detail enquiry through the Sub-Divisional Magistrate, Jirania to ascertain as to whether Sri Uttam Kumar Das belongs to Schedule Case community or not.

AND

Whereas, the enquiry report of Sub-Divisional Magistrate, Jirania Vide No.F13(30)/Vol-II/SDM/JRN/TW/SC/OBC/18-19/184, dated 19-10-2019 as received through Director, Welfare for Schedule Caste vide letter No.F.2-134(A)UIR-12/SCW/GL/98/8408-410 dated 24/10/2019 revealed that Sri Uttam Kumar Das S/o. Late Prabodh Ranjan Das do not belongs to Schedule Caste community.

Therefore, as per Rules 6 of the Tripura SC, ST reservation Rules 1992 [As amended upto May 2007] Sri Uttam Kumar Das S/o. Late Prabodh Ranjan Das is hereby asked to furnish his written statement regarding his claim by adducing supporting documents in favour of his Schedule Caste status within 07(seven) days of receiving this notice.

Sd/

Sub-Divisional Magistrate Sadar, West Tripura."

[6] The petitioner filed a detailed reply to the said show-cause notice under communication dated 08.11.2019 in which he referred to the communication dated 01.06.2019 of the Sub-Divisional Magistrate, West Tripura certifying that the petitioner did belong to the SC Community. He relied on further material in support of his caste status.

[7] The Sub-Divisional Magistrate, West Tripura passed the impugned order dated 26.11.2019 in which referring into certain inquiries he concluded as under :

"In view of the foregoing paragraphs, I am of the considered view that Sri Uttam Kumar Das, S/o. Late Praboodh Ranjan Das, Finance Officer, Tripura University does not belong to the Scheduled Caste (Mahishyadas) Community and his Scheduled Caste Certificate is liable to the cancelled.

Now therefore, in exercise of the power conferred upon me under Rule 6 of the Tripura Scheduled Caste and Scheduled Tribe Reservation Rules-1992, I do hereby ordered that the Scheduled Caste (Mahishyadas) Certificate bearing No.8290 /317 F XII 2. SDO/SDR/*TW/86, Dated 27.05.1986 in favour of Sri Uttam Kumar Das, S/o. Late Prabodh Ranjan Das, Finance Officer, Tripura University is hereby cancelled."

[8] Mr. S.M. Chakraborty, learned senior counsel appearing for the petitioner submitted that once the Scrutiny Committee had examined the caste status of the petitioner it was not open for the Sub-Divisional Magistrate to form a different opinion. He himself had on 01.06.2019 conveyed to the District Collector that the petitioner's caste status was correct. Even otherwise, there was ample evidence to establish that the petitioner belonged to SC Community.

[9] On the other hand Mr. Mangal Debbarma, learned Additional Government Advocate opposed the petition contending that in terms of Rule-6 of the said Rules, the authority issuing the certificate of castes also had the power to cancel the same. The order gives detailed reasons. The High Court in exercise of writ jurisdiction would not enter into disputed questions of fact.

[10] In case of Kumari Madhuri Patil and another Versus Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241, the Supreme Court took note of large number of complaints and possible misuse of caste status on the basis of fraudulently obtained certificates in securing admissions in educational institutions and appointments in Government organizations. It was felt that a speedy mechanism is required to examine such disputes. The Supreme Court directed Constitution of Caste Scrutiny Committees by the Governments. Relevant portion of the judgment reads as under :

"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.

All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint /Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.

In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent / guardian /candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

No suit or other proceedings before any other authority should lie.

The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.

In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission /appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.

[11] Perusal of the said directions would show that in addition to constituting Caste Scrutiny Committees, they were vested with exclusive jurisdiction to decide such disputes in relation to the caste certificates. It was provided that the order passed by the Committee would be final and conclusive and only subject to the proceedings under Article 226 of the Constitution.

[12] The Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 (the Act, for short) was enacted to provide for reservation of vacancies in services and posts for the members of the Scheduled Castes and Scheduled Tribes. Section 17 of the said Act pertains to the rule making powers of the Government. In exercise of powers under Section 17 of the said Act the State Government had framed the said Rules. Rule-6 which existed prior to the decision of the Supreme Court in case of Madhuri Patil (supra) provided that an authority who issued a Scheduled Caste or Scheduled Tribe certificate may at a subsequent stage cancel it if after an inquiry and after giving an opportunity being heard to the concerned person, it finds that the person to whom the certificate was issued does not actually belong to Scheduled Caste or Scheduled Tribe as the case may be. After the decision of the Supreme Court, sub-rule 6 was amended and a further provision was added which reads as under :

"Provided further that the Scrutiny Committee shall also be competent to cancel a community certificate issued by a competent authority. For arriving at a decision whether the community certificate in question shall be cancelled or not, the Scrutiny Committee shall follow the procedure prescribed in Rule 7A hereinafter along with reports/records obtained from the competent authority."

[13] Rule 7A was inserted. Under sub-rule 1 of Rule 7A two scrutiny committees at the State level were constituted. This Rule also envisaged Constitution of a vigilance cell under the director of vigilance and laid down the procedure for examining the correctness of the caste certificates at the hands of the Scrutiny Committee.

[14] Reverting back to the facts of the case, one may recall that it was this State level Scheduled Castes Scrutiny Committee constituted under Rule 7A of the said Rules which had already once examined the caste status of the petitioner on a complaint being received. Way back in the year 2013 it was held that the petitioner did belong to the said community further proceedings were dropped. Thereafter, it was simply not open for the Sub-Divisional Magistrate to undertake a fresh inquiry under any circumstances. The Supreme Court in case of Madhuri Patil has provided that the decision of the scrutiny committee would be subject to challenge only before the High Court in writ petition under Section 226 of the Constitution. The Sub-Divisional Magistrate virtually overruled the decision of the Scrutiny Committee which has been given a special status and exclusive jurisdiction by the Supreme Court in the field of scrutiny of caste certificates.

[15] I have serious doubt if Rule-6 of the said Rules can be stated to be a valid in view of the decision of the Supreme Court in case of Madhuri Patil. While incorporating the directions of the Supreme Court, the rule making authority has inserted Rule 7A constituting and empowering the Caste Scrutiny Committees but also retained the power of the authority issuing caste certificate to cancel the same. First the question would be can there be two different authorities which can cancel the same order? Further question would be in view of the decision of the Supreme Court in case of Madhuri Patil can any authority other than the scrutiny committees exercise the power of scrutinizing the caste certificates and if needed cancel it?

[16] The reliance of the learned Additional Government on the decision of Supreme Court in case of Director of Tribal Welfare, Government of Andhra Pradesh versus Laveti Giri and another dated 10.03.1997 is of no assistance. It was the case in which the legislature of Andhra Pradesh contained provisions for scrutiny of caste certificates based on the act the State Government had also framed Rules. These legislations were prior to the decision in case of Madhuri Patil. In this background, the Supreme Court was of the opinion that minor leverage may be kept open with the State Governments. In the said case it was found that the Rules were substantially in confirmation with the directions of the Supreme Court in case of Madhuri Patil. In the present case, the parent act under which the said Rules are framed, does not contain specific provisions for scrutiny of caste certificates. Rule 7A has been inserted pursuant to the direction of the Supreme Court in case of Madhuri Patil. However, since Rule-6 of the said Rules is not in challenge in this petition, I refrain from making any final observations in this regard.

[17] An inescapable conclusion however would be that in a case like present one where the Scrutiny Committee has already examined the correctness of the caste certificate issued to a person, it would thereafter be, in any case, not open for the authority issuing the caste certificate to cancel the same under purported exercise of powers under Rule-6 of the said Rules. Only on this ground petition is allowed. Impugned order dated 26.11.2019 passed by the Sub-Divisional Magistrate, Sadar Sub-Division, West Tripura is set aside.

[18] The petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.