Nepal Majumder VsThe State of Tripura

S.C. Das, J.—Both the writ petitions are taken up together for hearing and disposal since facts and points of law are identical and so this single judgment shall govern both the cases.

Heard learned counsel Mr. A. Bhowmik for the petitioners and learned G.A., Mr. T. Datta Majumder, for the State-respondents.

Both the petitioners are full blood brothers. The petitioner Nepal Majumder in WP(C)309 of 2006 and the petitioner Santosh Majumder (now dead) in WP(C) No. 312 of 2006 claimed that they belonged to ''Mahishya Das'' community, a community recognized as Scheduled Castes in Tripura. The petitioner Nepal Das in WP(C) No. 309 of 2006 submitted a copy of his Caste Certificate dated 23.03.1984 issued by SDO, Belonia, South Tripura which is marked as Annexure-1 to the writ petition. The petitioner Santosh Majumder (now dead) substituted by his legal heirs, i.e. the present petitioners submitted a certificate issued by Headmaster, B.K. Institution dated 10.01.1994 claiming to have belonged to Scheduled Castes community and that copy of the Certificate is marked as Annexure-1 to the writ petition. It is the case of petitioner Nepal Majumder that on 04.12.1993 a show cause notice was issued to him by the issuing authority of the Castes Certificate based on a field inquiry report submitted by Deputy Collector (Revenue), Belonia that the petitioner do not belong to Scheduled Castes community and that thereafter his Scheduled Castes Certificate was cancelled. He challenged the decision of the SDO, Belonia by filing WP(C) No. 106 of 1994 before the Gauhati High Court, Agartala Bench and the learned single judge of the High Court by Order dated 26.08.2002 dismissed the writ petition with the following order:-

"The learned senior Govt. Advocate submits that in the meantime, a Scrutiny Committee has been constituted under the Scheduled Castes Welfare Department to examine such matters.

In view of above, the Sub-Divisional Officer, Belonia, is hereby directed to furnish copies of the reports of the Deputy Collector, Belonia to the petitioners and thereafter, refer the matters to the said Scrutiny Committee who shall pass necessary orders after hearing the petitioners. The petitioners shall appear before the Sub-Divisional Officer, Belonia on 16th September, 2002 and furnish a copy of this order, and thereafter, the S.D.O. shall proceed with the matters as directed.

The writ petition stands disposed."

Similarly in respect of Caste Certificate of Santosh Majumder also a show cause notice was issued on 04.12.1993 by the issuing authority based on field inquiry report by the Deputy Collector(Revenue) Belonia and thereafter the Caste Certificate was cancelled and the petitioner challenged that order of cancellation by filing Civil Rule No. 55 of 1994 before Agartala Bench of the Gauhati High Court and the learned single judge by order dated 20.08.2002 disposed the writ petition with the following order:-

"The learned Govt. Advocate submits that in the meantime, a scrutiny committee has been constituted under the Schedule Caste Welfare Deptt. to examine such matter.

In view of above, the Sub-Divisional Officer, Belonia is hereby directed to furnish a copy of the report of the Deputy Collector Belonia to the petitioner and thereafter, refer the matter to the said scrutiny committee who shall pass necessary orders after hearing the petitioner. The petitioner shall appear before the Sub-Divisional Officer on 16th September, 2002, and furnish a copy of this order, thereafter, the S.D.O. shall proceed with the matter as directed.

The writ petition stands disposed of."

Thereafter the matter of caste status certificate of the petitioners was referred to the State Level Scrutiny Committee and the State Level Scrutiny Committee in the process, issued show cause notices to the petitioners. The notice issued to petitioner Nepal Majumder has been annexed as Annexure-6 to the writ petition and notice issued to petitioner Santosh Majumder has been annexed as Annexure-4 to the writ petition. Both the notices are identical and so the notice issued to the petitioner Nepal Majumder is reproduced here which reads as follows:-

"CONFIDENTIAL

GOVERNMENT OF TRIPURA DIRECTORATE FOR WELFARE OF SC, OBC & RMs TRIPURA : : AGARTALA

No. 2-138(BLN-27)/SCW/GL/05/7052 Dated 21-7-2005

SHOW CAUSE NOTICE

WHEREAS a S.C. Certificate bearing No. 95 dated 20-3-84 was issued to Sri Nepal Majumder S/O Lt. Mohanbashi Majumder .................... by the Sub-Divisional Officer, Belonia, South Tripura District.

And

WHEREAS a complaint received against Sri Nepal Majumder S/O. Lt. Mohanbashi Majumder Of Champaknagar, P.O. Motai, Belonia................................. South Tripura......District indicates that he does not belong to Scheduled caste.

And

WHEREAS an enquiry was conducted through the officials of the Vigilance for ascertaining the Caste status of the certificate holder and the report of the Vigilance Officer reveals that Sri Nepal Majumder ..........does not belong to Sch. Caste (Copy of the report enclosed).

NOW, THEREFORE, the undersigned, after taking into consideration the above mentioned enquiry report is prima facie satisfied that the certificate was obtained by misrepresentation of facts and proposes to cancel the aforesaid S.C. Certificate of the said Sri Nepal Majumder as per direction given by the Hon''ble Supreme Court of India. However, before a final decision is taken, Sri Nepal Majumder................is hereby given an opportunity of representing his case in writing, with all relevant records/evidences within 2 weeks from the date of receipt of this notice for consideration. In case of failure of Sri Nepal Majumder to respond to this show cause notice by the stipulated period, decision will be taken ex parte."

Sd/- Director for Welfare of Sch. Cates & OBCs, Tripura, Agartala.

Enlco:- As stated.

To Sri Nepal Majumder, S/O Lt. Mohanbashi Majumder of Champaknagar, P.S.-Belonia now Shaltilla South Tripura."

The petitioner Nepal Majumder thereafter submitted a show cause reply. A Copy of which is marked as Annexure-7 to the writ petition which reads as follows:-

"To The Director, Government of Tripura, Welfare of Sch. Castes & OBCs, Tripura, Agartala.

Sub:- Reply of show cause notice.

Ref:- No. 2-138(BLN-27)/SCW/GL/05/7052 Dt. 21-7-05

Sir,

In reference to the above, I would like to inform that, my original S.C. Certificate already been submit to the Deptt. of Fisheries, Govt. of Tripura vide order No. F.2-844(P)/Fish/87-88 Dt. 04-1-1995. After that, the Director of Fisheries, Govt. of Tripura has been published final seniority list for the year 1999 and treated General category instated S. C. category.

In this contest, I inform that the Sub-Divisional Officer Belonia also cancelled my S.C. Certificate and no any documents available in my hand.

So, I therefore pray and hope that you would be kindly enough to consider my case and thus oblige thereby.

Dated, Belonia, the 01-08-2005

Yours faithfully,

(Nepal Majumder) S/o. Lt. Mohanbashi Majumder, Vill. Champaknagar Now Shaltilla, Belonia, P.O.:- Belonia, P.S.:- Belonia."

The petitioner Sri Santosh Majumder also submitted his show cause reply. A copy of which is marked as Annexure-5 to the writ petition which reads as follows:-

"To The Director for Welfare of Sch. Castes & OBC''s, Tripura, Agartala.

Sub:- Submission relevant record/evidence in connection with S/C status.

Ref:- No. F.2-138(BLN-29)/SCW/GL/05/6918-19 Dt. 18/7/2005.

Sir,

With reference to the subject captioned above, I beg to enclose herewith the relevant records/evidences in support of my Schedule Caste status as asked for.

Further, it is worth to note that the requisite documents were also submitted in original to your honour through the Inspector of Schools, Belonia vide his letter No. F.1(12-SM)/IS-BLN/99/8047 dated 3rd Feb. 99 and hence I could not produce the said evidences in original to your end at this stage. Now, I am also enclosing herewith a photo copy of Order passed by the Hon''ble Judge, Mr. S. Barman Roy in the Court of Gauhati High Court, Agartala Bench dated 1.2.94 in the matter of my Caste Status for favour of your kind ready reference please.

In view of the facts as stated. I have no other alternative but to request your honour kindly to go through the matter and consider my Caste Status as recorded in the evidences enclosed and thus oblige.

Dated, Belonia, The 18th August, 05. Enclo:- As stated.

Yours faithfully,

Sd/Santosh Majumder, H/M Dashmani Para S.B. School, Belonia, Tripura (S)."

Considering the show cause replies and other materials, the State Level Scrutiny Committee by order dated 31.05.2006 cancelled the Caste status certificate of the petitioners. Copy of order dated 31.05.2006 in the case of Nepal Majumder is annexed as Annexure-8 to the writ petition which reads as follows:-

"STATE LEVEL SCRUTINY COMMITTEE (CONSTITUTED BY THE GOVERNMENT VIDE GA(AR) DEPARTMENT NOTIFICATION No. F.11(66)-GA(AR)/2001 DATED 12.12.2003 & F.11(66)-GA(AR)/2001 dated 02/01/05)

In the matter of Shri Nepal Majumder S/O.Lt. Mohanbashi Majumder of Vill-Champaknagar, now Shaltilla, P.O.-Belonia, PS-Belonia, South Tripura now working under Fishery Department as L.D. Clerk.

ORDER

Date 31/5/2006

The State Level Scrutiny Committee have gone through the direction of the Hon''ble Gauhati High Court, dated 26/08/02 in case No. CR.106 of 1994 about the caste status of Sri Nepal Majumder S/O. Lt. Mohanbashi Majumder Vill-Champaknagar now Shaltilla, P.O.-Belonia, P.S. Belonia, South Tripura now working under fishery Department as L.D. Clerk. The committee have seen the report of SDO, Belonia which confirms the supply of a copy of Deputy Collector''s report to Sri Majumder through Sri Prabhat Ch. Datta, Advocate, Belonia on behalf of Sri Majumder as per direction of the Hon''ble Court. The Committee examined the Vigilance report which confirms that Sri Majumder does not belong to Sch. Caste. The Committee also examined the reply of show cause notice submitted by Sri Majumder wherein he has failed to produce any documentary evidence about his SC status. He did not even claim for any personal hearing.

Now on careful consideration of all records the committee have come to the conclusion that Shri Nepal Majumder does not belong to Scheduled Caste and he had obtained the Scheduled Caste certificate bearing No. 95 dated 20/3/1984 issued by the SDO-Belonia by mis-representation of fact. Accordingly the said Scheduled Caste certificate is hereby cancelled.

A copy of this order to be supplied to Shri Nepal Majumder.

Copy of order in respect of Santosh Majumder dated 31.05.2006 annexed as Annexure-8 to the writ petition as follows:-

"STATE LEVEL SCRUTINY COMMITTEE (CONSTITUTED BY THE GOVERNMENT VIDE GA(AR) DEPARTMENT NOTIFICATION No. F.11(66)-GA(AR)/2001 DATED 12.12.2003 & F.11(66)-GA(AR)/2001 dated 02/01/05)

In the matter of Shri Santosh Majumder S/O.Lt. Mohanbashi Majumder of Vill-Champaknagar, now Shaltilla, P.O.-Belonia, PS-Belonia, South Tripura now working under Fishery Department as L.D. Clerk.

ORDER

Date 31/5/2006

The State Level Scrutiny Committee have gone through the direction of the Hon''ble Gauhati High Court, dated 20/08/02 in case No. C.R. 55 of 1994 about the caste status of Sri Santosh Majumder S/O. Lt. Mohanbashi Majumder Vill-Champaknagar, P.S. Belonia, P.O.-Belonia, P.S. Belonia, South Tripura now working under Education Department as Asstt. Teacher. The committee have seen the report of SDO, Belonia which confirms the supply of a copy of Deputy Collector''s report to Sri Majumder through Sri Prabhat Ch. Datta, Advocate, Belonia on behalf of Sri Majumder as per direction of the Hon''ble High Court. The Committee examined the Vigilance report which confirms that Sri Majumder does not belong to Sch. Caste. The Committee also examined the reply of show cause notice submitted by Sri Majumder wherein he has failed to produce any documentary evidence about his SC status. He did not even claim for any personal hearing.

Now on careful consideration of all records the committee have come to the conclusion that Shri Santosh Majumder does not belong to Scheduled Caste and he had obtained the Scheduled Caste certificate bearing No. 140 dated 30/8/1978 issued by the SDO-Belonia by mis-representation of fact. Accordingly the said Scheduled Caste certificate is hereby cancelled.

A copy of this order to be supplied to Shri Santosh Majumder.

Learned counsel Mr. Bhowmik has submitted that as per the order passed by the High Court, the State Level Scrutiny Committee was supposed to give a scope of hearing to the petitioners but that was not given and hence, the cancellation order suffers from infirmity. The High Court in both the cases directed that copy of the report of the Deputy Collector should be furnished to the petitioners and thereafter the matter should be referred to the State Level Scrutiny Committee. It is reflected in the impugned order that copy of the report of the Deputy Collector was supplied to the petitioners and thereafter it was referred to the Scrutiny Committee. Notice issued by the Scrutiny Committee shows that Vigilance inquiry was also done and a copy of the vigilance report was enclosed with the show cause notice. While show cause notice was specifically issued by the Scrutiny Committee and the petitioners submitted their replies in writing, there is nothing to hold that scope of hearing was not given to the petitioners. This argument advanced by learned counsel Mr. Bhowmik therefore does not impress at all.

The next point raised by learned counsel Mr. Bhowmik that inquiry was not conducted by the Scrutiny Committee as per the direction of the Apex Court in the Case of Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, and hence, this Court in exercise of its jurisdiction under Article 226 of the Constitution can interfere in the order of cancellation issued by the Scrutiny Committee and remand the matter for fresh hearing.

Learned Govt. Advocate has submitted that the impugned orders of the Caste Certificate though has been passed in short but it consists that all the relevant matters including show cause reply furnished by the petitioners were considered. The petitioners neither in their show cause reply nor in any other manner demanded before the Scrutiny Committee to adduce any evidence or to have personal hearing.

The Supreme Court in the case of Madhuri Patil (supra) has unambiguously held that incase the candidates seek 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/Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim.

In these cases, the show cause replies submitted by the petitioners makes it abundantly clear that they did not claim for any inquiry or to adduce any evidence. The petitioner Santosh Majumder has stated that he enclosed his evidence which the Scrutiny Committee in their order stated that they have considered and found that the petitioner do not belong to the Scheduled Caste community.

While the petitioners did not claim for any inquiry or for adducing any evidence in support of their claim they cannot say that reasonable opportunity was not given to them.

In the case of Director of Tribunal Welfare, Government of Andhra Pradesh Vs. Laveti Giri and another, the Supreme Court has categorically held that burden lies on the petitioner who claims a caste status and that burden cannot be shifted on the State or other authority. A caste status certificate can be scrutinized at any time. The caste status certificates obtained by the petitioners were scrutinized by the competent authority and both inquiry by the Deputy Collector as well as by the Vigilance Cell was conducted and the report of the Vigilance Cell was scrutinized by the Scrutiny Committee. The petitioners adduced no evidence to discard the material before the Scrutiny Committee and hence, I find no infirmity in the order passed by the Scrutiny Committee in respect of Caste status of the petitioners.

The writ petitions, therefore, stand dismissed since those are found to be devoid of any merit.

No order as to costs.