Orissa High Court
Sri Sibananda Dora vs State Of Odisha & Others .... Opposite ... on 30 July, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.18044 of 2024
Sri Sibananda Dora .... Petitioner
Mr. D. Mishra, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr. B. Panigrahi,ASC
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
30.07.2024 Order No.
01. This matter is taken up through hybrid mode.
2. Though this matter was not on board, on being mentioned showing urgency, the matter is taken up on special notice.
3. This is the second round litigation at the instance of the Petitioner, who had earlier approached this Court in W.P.(C) No.16239 of 2024 for inaction of the Authority concerned to issue Cast Certificate in his favour, enabling him to take admission as a ST Candidate, as he scored a good rank in JEE. The said Writ Petition was disposed of on 12.07.2024 by passing the following order:
"This matter is taken up through hybrid mode.
2. Heard learned Counsel for the parties.
3. Pursuant to order dated 09.07.2024, Mr. Rout, learned AGA files photocopy of the instruction/parawise comments received from the Tahasildar, Tusura vide letter dated 11.07.2024 addressed to the office of the learned Advocate General, Odisha, Cuttack after handing over a copy of the same to the learned Counsel for the Petitioner. The same is taken on record.
4. Mr. Rout referring to the said instruction submits, pursuant to the application submitted by the Petitioner dated 28.04.2024 for issuance of Caste Certificate, it was assigned to the concerned Revenue Inspector for enquiry, who submit her report on 10.07.2024 and based on the said report, since the Petitioner belongs to "Telenga" by caste, which is coming under SEBC/OBC category and not under ST category, his application was rejected on dtd.11.07.2024.
5. Mr. Rout further submits, if the petitioner feels aggrieved by the rejection order dated 11.07.2024, he should prefer an appeal before the Appellate Authority.
6. Pursuant to such submission made by Mr. Rout, Mr. Mishra, learned Counsel for the Petitioner submits, order dated 11.07.2024 is yet to be communicated to his client.
7. In view of the prayer made in the writ petition, since as per the instruction received by the learned State Counsel, the application of the Petitioner stood rejected; this Court is of the view that the prayer made in the Writ Petition has become infructuous.
8. Accordingly, the Writ Petition stands disposed of as infructuous.
9. Needless to mention that if the petitioner feels aggrieved by the said rejection order dated 11.07.2024, on being so communicated, the Petitioner may approach appropriate forum for redressal of his grievance.
10. Learned State Counsel undertakes to instruct the concerned Officer to communicate the rejection order to the Petitioner at the earliest, preferably by Monday (15.07.2024)."
4. As the application of the Petitioner stood rejected, the present Writ Petition has been preferred for quashing of the rejection order passed by the Tahasildar, Tusura (Annexure 3), with a further prayer to direct the Tahasildar, Tusura (Opposite Party No.3) to issue Caste Certificate as "Konda Dora" vide Sl. No.37 of the Presidential Order in favour of the Petitioner as had been granted to his father under Annexure-5 and pass such order order/orders and/or writ/writs as this Hon'ble Court may deem fit and proper.
Page 2 of 85. Mr. Mishra, learned Counsel for the Petitioner submits, though a Cast Certificate has been issued in favour of father of the Petitioner as "Konda Dora", which is coming under ST category, the application submitted by the Petitioner for issuance of Caste Certificate as "Konda Dora" in terms of Serial No.37 of the Presidential Order stood rejected based on an Enquiry Report submitted by the R.I, Gudvella to the effect that the Petitioner's great- grandfather was "Telenga" by caste, which is coming under SEBC/OBC category.
6. Mr. Mishra, learned Counsel for the Petitioner, drawing attention of this Court to the provision under Rule-4(4)(i) of the Odisha Scheduled Castes, Scheduled Tribes and Backward Classes (Regulation of Issuance and Verification of Caste Certificates) Rules, 2023, shortly, 'the Caste Certificate Rules, 2023' submits, the Authority concerned has illegally acted in terms of a wrong Enquiry Report submitted by the Revenue Inspector, Gudvella. The said Report is contrary to the provisions under the said Rules, 2023 which mandates that the Field Inquiry Report shall be prepared in shape of a memorandum by the Officers, who visited the field, and the field visit has to be in the presence of at least two witnesses so also the Applicant or his or her family members or representative and such Report shall be clear, specific and speak about the findings pertaining to the claim of the Applicant belonging to any reserved category.
7. Mr. Mishra further submits, in terms of the said provisions, the witness may be a permanent Page 3 of 8 resident/native in the particular locality/village of the locality, preferably an aged person having sound/long societal knowledge about the locality and its culture and tradition.
8. Mr. Mishra submits, since the concerned Revenue Inspector has not acted in terms of the Caste Certificate Rules, 2023, the rejection Order, as at Annexure-3, being based on the said illegal and erroneous Report, which is void ab initio, because of not acting in terms of provisions under the said Rules, 2023, deserves interference by this Court.
9. Mr. Mishra submits that the Petitioner has already been offered a seat by issuing provisional seat allotment letter under the category Scheduled Tribe (ST) in Odisha University of Technology and Research (Formerly College of Engineering and Technology), Bhubaneswar, in the stream of Computer Science and Engineering (SSC). Unless he is protected and appropriate interim order is passed in terms of the observation made by the Supreme Court in Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal Development, reported in AIR 1995 SC 94, the Petitioner will be irreparable prejudice.
10. Mr. Mishra, relying on the judgment dated 3rd August, 2023 passed by the coordinate Bench in W.P.(C). No.16069 of 2023 (Subham Kumar Dora Vs. State of Odisha and others) reported in 2023 SCC Online Ori 5349 submits, the Petitioner in the said Writ Petition namely, Subham Kumar Dora, is the cousin of the present Petitioner. The Coordinate Bench held that the Petitioner in Page 4 of 8 the said case belongs to Scheduled Tribe (Konda Dora). Paragraph Nos.7, 8 & 9 of the said judgment, being relevant, are extracted below:-
"7. The rectification of record resulted to be good presumption of petitioner's caste as belonging to Scheduled Tribe 'Kondadora' Petitioner relies on this presumption to assert that he is entitled to issuance of the caste certificate. The rectification in the record is pursuant to a study made by the institute (SCSTRITI) and view taken thereupon that those people in then Bargarh and Bolangir districts in Western Orissa and in Koraput district in Southern Orissa called 'Dora', were found to be 'Konddora'. Contention of State on 'Dora' being a honorific title appears to be based on this view. The study revealed that because of origin of migration the tribal people were known as, inter alia, 'Telenga'. This was a misdescription on convenience of attaching to the Scheduled Tribe 'Kondadora'. Entry in the land record is a rebuttable presumption. There is no rebuttal. Presumptions are possible in law as can be relied on to be evidence.
8. Petitioner's case is not based on an interpretation of belonging to a caste synonymous with one that finds mention in the Presidential Order. Nor is his case that the caste he belongs to, should be one which entitles him to issuance of caste certificate even though the caste is not mentioned in the Presidential Order. His case is that he belongs to the Scheduled Tribe 'Kondadora'. It is a mentioned Scheduled Tribe. The misdescription has been rectified. The rectification stands and is good evidence of his identify.
9. Impugned order dated 6th May, 2023 is set aside and quashed on being perverse, it not based on relevant evidence. As such the writ petition is maintainable. The Tahsildar is directed to forthwith issue the caste certificate unless the application is to be rejected on some cogent reason, other than those mentioned in impugned order and pendency of verification of Page 5 of 8 caste certificate of petitioner's grandfather or any other relative. Either the rejection or issuance of the caste certificate must be done, within six weeks of communication."
(Emphasis supplied)
11. Mr. Mishra further submits, the Appellate Authority has no power to pass any interim order, as observed by the Supreme Court in Madhuri Patil (supra) and in the peculiar facts and circumstances, being remediless, the Petitioner has preferred the present Writ Petition.
12. Relying on the judgment in PHR Invent Educational Society Vs. UCO Bank and others, reported in (2024) 6 SCC 579, Mr. Mishra submits that alternative remedy is not a bar to approach the writ court and in view of the peculiar facts and circumstances, the Petitioner has preferred the present Writ Petition.
13. Mr. Mishra, learned Counsel further submits that since the Petitioner's case is similar to the said case, the Order passed by the Tahsildar, Tusura (Opposite Party No.3) deserves interference and that apart, as an interim, direction be given to the Principal of the Opposite Party No.5 Institute to permit the Petitioner to take admission in the College on provisional basis, which will be subject to the final outcome of the Writ Petition.
14. In response to the said submission made by the learned Counsel for the Petitioner, Mr. Panigrahi learned ASC for the State, drawing attention of this Court to rule 5 of the Caste Certificate Rules, 2023, submits that the impugned order is appealable under rule 5 of the said Rules, 2023 and the Writ Petition is not maintainable. Mr. Page 6 of 8 Panigrahi further submits, against the judgment passed in Subham Kumar Dora (supra) the State has preferred Writ Appeal No.2054 of 2023, which is still sub-judice, though the operation of the impugned judgment passed in W.P.(C). No.16069 of 2023 has not been stayed by the Division Bench.
15. In response of said submission made by the learned Counsel for the State, learned counsel for the Petitioner submits, instead of staying the operation of the impugned judgment in W.P.(C). No.16069 of 2023, rather an interim order was passed on 27.09.2023 with certain observation, but the writ petitioner could not avail the benefit in terms of the said order passed by the Division Bench in Writ Appeal No.2054 of 2023, as by the said time the admission process was over.
16. In view of the submissions made by the learned Counsel for the parties, as detailed above, the Writ Petition stands disposed of at the stage of admission with an observation that the Petitioner may prefer an Appeal in terms of rule 5 of the Caste Certificate Rules, 2023 before the competent authority at the earliest, preferably within 10 days hence. On preferring an Appeal, the Appellate Authority shall do well to deal with and dispose of the said Appeal at the earliest, preferably within a period of two months from the date of presentation of the Appeal and communicate the outcome of such Appeal to the Petitioner- Appellant within the said period.
17. In view of the submission made by the learned Counsel for the Petitioner that the Appellate Authority may Page 7 of 8 not proceed to dispose of the Appeal of the Petitioner in time on the ground of pendency of the Writ Appeal, it is made clear that since the Division Bench has not stayed the operation of the impugned judgment passed in Subham Kumar Dora (supra), the pendency of the Writ Appeal shall not be a bar for the Appellate Authority to deal with and dispose of the Appeal, if any, preferred by the Petitioner on its own merit and in accordance with law, within the stipulated period .
18. In view of the direction/observation of the Supreme Court in Kumari Madhuri Patil (supra), the Principal, College of Engineering and Technology (Opposite Party No.5) is directed to permit the Petitioner to take admission in the stream of Computer Science and Engineering (SSC) on provisional basis, which will be subject to final outcome of the Appeal, to be preferred by the Petitioner.
19. With the said observation and direction the Writ Petition stands disposed of.
20. Urgent certified copy of this Order be granted on proper application as per rules.
21. In addition to the same, in view of the urgency demonstrated before this Court, the parties are directed to utilize and act upon the digitally signed copy of this order available in the website of this Court.
Signature Not Verified Digitally Signed (S. K. Mishra) Signed by: MONALISA SWAIN Mona Judge Reason: Authentication Location: High Court of Odisha Date: 31-Jul-2024 11:09:48 Page 8 of 8