Sapneswar @ Sapteswar Behera And Another vs State Of Odisha And Others

Arindam Sinha, J

Mr. Parija, learned senior advocate, Advocate General resumes his argument. He refers to Dayaram V. Sudhir Batham, reported in (2012) 1 SCC 333, paragraph 9, for the questions considered therein. The first question was answered by the paragraphs, of which he refers to paragraphs 10, 17, 18 and 22. The second question was answered by, inter alia, paragraph 27. On query from Court he submits, he refers to the second question and its answer given in the judgment for purpose of continuity.

He then refers to paragraphs 33, 35 and 37 to submit, by Dayaram (supra) the Supreme Court did not touch its earlier judgment in Kumari Madhuri Patil vs. Additional Commissioner, (1994) 6 SCC 241.

On Kumari Madhuri Patil (supra) Mr. Parija submits, in paragraph 14 the Supreme Court issued a mandamus on every State concerned to endeavour to give effect to the procedure given by the judgment and see that the constitutional objectives intended for the benefit and advancement of genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be, are not defeated by unscrupulous persons. The several notifications, disclosed in the counter, were issued in exercise of power under article 162 in the Constitution. He submits, the rules of 1980 were also made in exercise of said power.

He then relies on judgment dated 26th February, 1998 of the First Division Bench of this Court in OJC no.4251 of 1992 (Prasanna Kumar Naik vs. State Bank of India and others). He refers to paragraphs 5 to 8 (Manupatra print). He submits, clear view taken was that the rules were framed in 1980 and have become outdated in view of Kumari Madhuri Patil (supra). Hence, there was direction in paragraph 8, reproduced below.

“8. In view of the above law laid down by the apex Court, the State Government was to take immediate steps to amend the Rules and issue suitable executive instructions in the light of the above law to all concerned to strictly abide by the decision of the apex Court while issuing caste certificates.”

(emphasis supplied)

The rules were not framed pursuant to power conferred by an Act of the Legislature. He reiterates that the 1980 rules and the notifications issued pursuant to Kumari Madhuri Patil (supra), were both in exercise of power under article 162. Both the rules and notifications come within meaning of law in article 13. State had issued the notifications pursuant to by view taken in Prasanna Kumar Naik (supra) on Kumari Madhuri Patil (supra), carrying mandate upon States to give effect to the streamlined procedure laid down by the latter. There may appear to be repugnancy between provisions in the 1980 rules and subsequent notifications. In such situations, it is to be interpreted, implied repeal of the earlier provisions. He relies on judgment of the Supreme Court in Kishorebhai Khamanchand Goyal vs. State of Gujarat, reported in (2003) 12 SCC, 274, paragraphs 6 to 8. In context of petitioner’s case, where the rules defined competent authority to be those mentioned therein and by the notifications the authority became the State Level Scrutiny Committee and ultimately the committees in different regions in the State, the competent authorities under the rules and the State Level Scrutiny Committees by the notifications, cannot exist together. Hence, there is repugnancy. As such, provisions for State Level Scrutiny Committees must be held to have impliedly repealed the 1980 rules provision for competent authorities. So interpreting would be following law declared in Kishorebhai Khamanchand Goyal (supra). He concludes his submissions.

Mr. Das, learned senior advocate appears on behalf of petitioners and relies on judgment of the Supreme Court in J. Chitra vs. District Collector and Chairman, State Level Vigilance Committee, reported in (2021) 9 SCC 811, paragraphs 8, 9 along with the sub-paragraphs, 10 and 11. He submits, Kumari Madhuri Patil (supra) was thereby interpreted to apply, only where there had been no verification in issuance of social status certificates, brought about by absence of existing law. In Odisha there existed the 1980 rules, with comprehensive provisions for issuance and cancellation of social status certificates, including appeal provision. Kumari Madhuri Patil (supra) cannot be said to have had any application in the State.

Paucity of time intervenes. Mr. Das will be heard next on 24th March, 2023, marked at 2:00 P.M.

………………………………..