Orissa High Court
Jyotirmayee Pradhan vs State Of Orissa And Others ... Opp. ... on 6 July, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.526 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Jyotirmayee Pradhan ... Petitioner
-Versus-
State of Orissa and others ... Opp. Parties
For Petitioner : M/s. G. Mohanty & S.B. Jena
For Opp. Parties : Addl. Govt. Advocate
[For O.P. Nos.1 to 5]
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgement : 06.07.2012
B.N. Mahapatra, J.This writ petition is filed with a prayer to quash the final order dated 28.3.2009 passed by the State Level Scrutiny Committee under Annexure-6 by which it has been held that the allegation raised against opp. party no.6-Subarnamala Nayak with regard to her caste certificate is false. The further prayer of the petitioner is to direct the authorities to take necessary steps to dismiss opp. party no.6 from the post of CDPO in the Department of Women & Child Development, Govt. of Orissa.
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2. The petitioner in this case claims herself as a public spirited person and belongs to scheduled tribe community of Kandhamal district. The petitioner seeks to challenge the action of opp. parties in not taking any step on the complaint lodged against opp. party no.6, who, though belongs to Christian community "Pano Christian", is serving as a Government Servant in the Department of Women & Child Development as a scheduled caste candidate depriving the genuine scheduled caste persons of getting into the Government job.
3. Since no order is going to be passed affecting the interest and right of opp. party no.6, no notice is sent to opp. party no.6 and this writ petition is disposed of at the stage of admission.
4. The petitioner's case in a nutshell is that the district of Kandhamal is a tribal dominated district where the Kandha tribe forms major part of the population. The district has witnessed several ethnic violence between the tribals, scheduled caste and non- tribal, non-scheduled caste people for issuance of fake certificate in favour of the persons who neither belong to scheduled caste nor scheduled tribe. The scheduled tribe Kandha people are very much innocent and peace loving. There has been large scale conversion of scheduled caste-Pano people to Christian religion in the district of Kandhamal. A person once converted to Christianity, loses the status of Scheduled Caste and he becomes the member of Christian 3 community i.e. minor community. But the converted Pano Christians are enjoying dual benefits as Scheduled Caste and minor community for which large scale complaints were lodged before the District Administration naming the persons who though belong to Christian community but work in different Government organizations as Scheduled Caste candidates. The Government though has constituted a Scrutiny Committee to enquire about the allegations, but the Scrutiny Committee does not make proper investigation into the matter. In this view of the matter, there is always apprehension of ethnic violence in the district of Kandhamal.
5. According to the petitioner, opp. party no.6 belongs to village Rudangia under G. Udayagiri PS in the district of Kandhamal. Asulu Nayak was having three sons, namely, Judhistir Nayak, Mamud Nayak and Raghu Nayak (now dead). The three sons of Asulu Nayak were having following legal heirs:-
Late Judhistir Nayak (Sl. No.1)
1. Sri Sadananda
2. Sri Arsananda
3. Sri Balaraj
4. Sri Kabi
5. Smt. Golabama
6. Smt. Malati Late Mamud Nayak (Sl. No.2)
1. Sri Ladu Kishore
2. Sri Pramod Kumar
3. Sri Sasita
4. Sri Sarat
5. Smt. Sarasini
6. Smt. Laila 4 Late Raghu Nayak (Sl. No.3)
1. Smt. Maithili
2. Smt. N. Sundaramani Patel
3. Smt. Subarnamala
4. Sri Santibhusan Opp. party no.6 is the daughter of Late Raghu Nayak.
The said Raghu Nayak, one of the sons of Late Asulu Nayak, was converted to Christian religion and used to perform the religious rites as per the Christian religion. Since opp. party no.6 is daughter of Late Raghu Nayak, she is a Christian and her name has been entered into the voter list published in the years 2002 and 2007 against Sl. Nos.73 and 74 respectively, wherein her father's name has been written as Raghu. But in order to get a Government job, opp. party no.6 cunningly obtained a caste certificate from the Tahasildar, G. Udayagiri vide RMC Case No.376 of 1980 by submitting a false information that she is the daughter of Late Ladu Kishore Nayak, S/o-Mamud Nayak instead of Late Raghu Nayak, S/o-Late Asulu Nayak. Late Ladu Kishore Nayak was a Hindu and belonged to Pano community, which is a Scheduled Caste.
6. Nikhila Utkal Kui Samaj of G. Udayagiri, Kandhamal vide their letter No.119 dated 17.03.2008 alleged about issuance of fake certificate in favour of opp. party no.6. On the basis of said complaint, an enquiry was conducted and opp. party no.6 was asked to show cause. The State Level Scrutiny Committee on the basis of fake certificate case No.50 of 2008, without going into the records 5 and facts of the case, has given a finding that opp. party no.6 is the daughter of Ladu Kishore Nayak and she belongs to Hindu religion, sub-caste Pano; whereas opp. party no.6 has categorically stated that she is the daughter of Raghunath Nayak, who belongs to Christian community. Hence, the present writ petition.
7. Mr. G. Mohanty, learned counsel appearing for the petitioner submitted that late Raghunath Nayak, who was the father of opp. party no.6 was a Christian by religion. The ROR published in the name of late Raghunath Nayak clearly mentioned that he is the son of Asulu Nayak and belongs to Pano Christian caste. He further submitted that opp. party no.6 was not the daughter of late Ladu Kishore Nayak, which can be evident from the fact that after the death of Ladu Kishore, the legal heir certificate was obtained from the Tahasildar, G. Udayagiri for getting family pension. In the said legal heir certificate, the name of opp. party no.6 does not find place for which it can be easily said that opp. party no.6 in order to get into the Government service has falsely mentioned that she is the daughter of Ladu Kishore. The legal heir certificate of Late Ladu Kishore shows that, he left behind his wife, two sons and one daughter, namely, Sabita Prasad Nayak. Opp. party no.6 in her show cause categorically stated that she is the daughter of Late Raghunath Nayak, but cunningly mentioned her father's name as Raghunath Nayak @ Ladu Kishore, which has been done only for the 6 purpose of misleading the Enquiry Committee. The petitioner has made several representations to the various organs of the Government stating that opp. party no.6 has fraudulently obtained the Scheduled Caste Certificate and is working as a Govt. Servant. Another Writ Application No.5 of 2010 was also filed before this Court by one Surendra Kumar Dihudy challenging the inaction of the Govt. officials which was disposed of on 8.7.2010 directing the petitioner to move appropriate authority for necessary relief. Accordingly, said Surendra Kumar Dihudy has also moved the District Welfare Officer, but no action has been taken in this regard. The State Level Scrutiny Committee without enquiring into the matter and having hand in glove with opp. party no.6 has given a wrong finding that she belongs to scheduled caste community as Pano sub-caste and further she is the daughter of Late Ladu Kishore Nayak, whereas she herself mentioned in her show cause that she is the daughter of Late Raghu Nayak, who is a Christian by religion. The caste certificate issued in favour of opp. party no.6 and the legal heir certificate of Late Ladu Kishore Nayak issued by the Tahasildar- opp. party no.5 are self contradictory to each other. In the meantime, opp. party no.6 has been promoted to the post of CDPO vide Govt. Order No.23051 date 29.12.11 and posted at Chandrapur ICDS Project in the district of Rayagada under the quota of scheduled caste. Govt. always takes a pride that it is dealing stringently with 7 the cases relating to issuance of false certificates, but in the instant case though there is clear proof that opp. party no.6 is serving on the strength of a fake certificate, the State Level Scrutiny Committee without conducting any enquiry has given a wrong finding that she belongs to scheduled caste community which needs to be quashed by this Court.
Learned Additional Government Advocate submitted that the State Level Scrutiny Committee following due procedure and conducting enquiry passed the impugned order. There is no infirmity or illegality in the impugned order.
8. On the rival contentions raised by the parties, the only question that arises for consideration by this Court is as to whether the order dated 28.3.2009 passed by the State Level Scrutiny Committee under Annexure-6 holding that opp. party no.6 belongs to Pano by caste and Hindu by religion and she is not Christian is sustainable in law ?
9. On the basis of the allegation raised by the Nikhila Utkal Kui Samaj, G. Udayagiri, Kandhamal in their letter No.119 dated 17.3.2008 that a fake certificate in favour of opp. party no.6 has been issued certifying that she belongs to Pano by caste and Hindu by religion and she is not Pano Christian, an enquiry was conducted by Department Letter No.27580/SSD dated 19.7.2008 of Director (ST & SC). The matter was enquired into by the Investigating Officer and 8 the report was submitted through the Vigilance Cell which was received by the State Level Scrutiny Committee on 30.10.2008. The report of the Investigating Officer was sent to opp. party no.6 directing her to submit her show cause. Opp. party no.6 submitted her show cause reply requesting for personal hearing before the Scrutiny Committee. The matter was placed before the State Level Scrutiny Committee on 31.12.2008 and on the said date, opp. party no.6 was heard by the Committee. A copy of the show cause reply submitted by the opp. party no.6 was sent to DWO, Kandhamal vide letter No.4152/SSD dated 21.01.2009 of Director (ST&SC) for publicity in the concerned village or locality by issuing a public notice by beat of drum or any other convenient mode inviting objection from any person or association within fifteen days. The DWO, Kandhamal has published the notice in the locality through Tahasildar, G. Udayagiri on 29.01.2009 by beat of drum, inviting objections as reported vide his letter no.330 dated 07.02.2009. No objection has been received by the Chairman, State Level Scrutiny Committee within the stipulated period. The State Level Scrutiny Committee after considering the report of the Investigating Officer and show cause reply of opp. party no.6 and her statement made before the Committee during personal hearing on 31.12.2008 and other relevant records, unanimously held that the allegation of issuance of fake caste certificate in favour of opp. party no.6 is not a 9 fact due to the following reasons:-
"(a) That, the ROR, Khation No.65, mouza-Gahana stands in the name of Mamudu Nayak S/o-Asala Nayak whose caste is mentioned as Pano, Sri Mamudu Nayak is the grandfather of alleged candidate Smt. Subarnamala Naik.
(b) That, the Service Book of Smt. Subarnamala Naik, D/o-Ladukishore Naik shows that, she is SC (Hindu), sub-caste is Pano.
(c) That, the RMC NO. 376/80, dt. 4.08.1980 was issued by Smt. Subarnamala Naik D/o-Ladu Kishore Naik is Pano, Hindu Religion.
(d) That it is revealed from the report of the Investigating Officer, the alleged Subarnamala Naik D/O Ladu Kishore Naik, Vill-Rudangia, P.S.- G. Udayagiri is Pano (SC) by Caste and Hindu by religion. It is proved from the documents and statements of the public, that she belongs to Pano by caste and Hindu by religion. She is not "Pano" Christian.
So the allegation is false."
10. It may be relevant to mention here that all the six members of State Level Scrutiny Committee are the Commissioner- cum-Director, OBC, Director ST & SC, Addl. Secretary, R&DM Deptt., Director, SCSTRTI, R.O. SCSTRTI and R.O. ST & SC Dev. Dept. and have passed the order.
11. The State Level Scrutiny Committee was constituted pursuant to the judgment of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil and another V. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94.
12. From the order of the State Level Scrutiny Committee, it appears that the State Level Scrutiny Committee before passing the impugned order under Annexure-6 conducted an enquiry in to the 10 matter by the Investigating Officer and confronted the same to the alleged person. The Committee has also invited the show cause from the alleged person and afforded personal hearing to the said alleged person. A copy of the show cause reply submitted by the candidate to DWO, Kandhamal was sent for publicity in the concerned village or locality by issuing a public notice by beat of drum or any other convenient mode inviting objection from any person or association within fifteen days.
13. Perusal of the impugned order reveals that the Committee has considered all the relevant materials placed before it and applied its mind to the relevant facts and recorded its definite finding. Needless to say that the Committee is empowered to evaluate the evidence placed before it before recording a finding of fact and this Court in exercising its judicial review power should not reverse the finding of fact as the High Court is not a Court of appeal to re- appreciate the evidence.
14. Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) has dealt a similar matter and made some directions, the relevant portion of which is quoted hereunder:-
"The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a Court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of 11 fact. The Committee when considers all the material facts and record a finding, though another view, as a Court of appeal may be possible, it is not a ground to reverse the findings. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately recorded the finding. Each case must be considered in the backdrop of its own facts."
15. In view of the above, we do not find any illegality or infirmity in the order passed by the State Level Scrutiny Committee under Annexure-6 holding that opp. party no.6 is Pano by caste and Hindu by religion and she is not a Pano Christian.
16. Apart from the above, the matter can be looked at from a different angle. In the instant case, the ancestors of opp. party no.6 including her grandfather were Pano by caste and Hindu by religion. It is nobody's case that the grandfather of opp. party no.6 was Pano Christian. The case of the petitioner is that the father of opp. party no.6 is a converted Christian. It is also nobody's case that opp. party no.6 is a converted Christian. Now the question arises if opp. party no.6 has not been converted to Christian religion, why she should be treated as Pano Christian merely because her father was a Pano Christian and why she should not be treated as Scheduled Caste Pano as her ancestors including her grandfather were Scheduled Caste Pano ?
17. In the fact situation, we are of the considered view that if the grandfather of opp. party no.6 belonged to Scheduled Caste Pano 12 and opp. party no.6 has not been converted to Christian religion, she cannot be held to be Pano Christian merely because her father converted from Pano to Christian religion. In any event, in view of the categorical finding of the State Level Scrutiny Committee, which is a fact finding authority, we are of the view that opp. party no.6 is a Scheduled Caste Pano and Hindu by religion and she is not a Pano Christian.
18. In the result, the writ petition is dismissed.
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B.N. Mahapatra,J.
V. Gopala Gowda, C.J. I agree.
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Chief Justice.
Orissa High Court, Cuttack
The 6th July , 2012/bkb