Tripura High Court
Sri Partha Das @ Partha Kumar Das vs The State Of Tripura (To Be Represented ... on 9 October, 2018
Equivalent citations: AIRONLINE 2018 TRI 278
Bench: Ajay Rastogi, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
WA 110 OF 2012
Sri Partha Das @ Partha Kumar Das
Son of Late Paresh Chandra Das
Resident of Badharghat, P.O. AD Nagar,
P.S. West Agartala, West Tripura
----Appellant(s)
Versus
1. The State of Tripura (to be represented by the
Commissioner-cum-secretary, Department for
Welfare of SC‟s and OBC‟s, Government of
Tripura, Agartala, New Secretariat Complex,
Agartala, PIN-799005).
2. The Member Secretary, State Level Scrutiny
Committee, Director of SC and OBC Welfare,
Government of Tripura, Directorate for
Welfare of SC‟s and OBC‟s, Pandit Jawaharlal
Nehru Complex, Gurkhabasti, Agartala.
3. The Chairman, State Level Scrutiny
Committee, Secretary of the SC and OBC
Welfare, Government of Tripura, Secretariat
Building, New Capital Complex, Agartala, PIN-
799005.
4. The Member, State Level Scrutiny Committee,
Deputy Director of the SC and OBC Welfare,
Pandit Jawaharlal Nehru Complex,
Gurkhabasti, Agartala.
5. The Member, State Level Scrutiny Committee,
Deputy Secretary, Law Department,
Secretariat Building, New Capital Complex,
Agartala, PIN-799005.
6. The Sub-Divisional Magistrate, Sadar, P.O.
Agartala, West Tripura, PIN 799001.
7. The Hon‟ble Speaker, Tripura Legislative
Assembly, Tripura legislative Assembly House,
New Capital Complex, Agartala, (To be
represented by the Secretary to the Tripura
Legislative Assembly).
8. The Secretary, Tripura Legislative Assembly,
New Capital Complex, Agartala, PIN 799005.
Page 2 of 43
9. The Director, Department of Printing and
Stationeries, Government of Tripura, PO
Agartala, PIN 799001.
10. The Chief Executive Officer, Agartala
Municipal Council, (Member Secretary, SC
Welfare Sub-Committee, Agartala Municipal
Council), Agartala City Centre, Agartala, West
Tripura.
11. Tripura State Namasudra Social Welfare
Association, a society registered under the
Societies Registration Act, 1860 having
bearing registration 3154 of 1998 and having
its office at "Banshiniloy" Joynagar Road No.2,
(Extyention North) P.O. Agartla, West Tripura,
PIN-199001, represented by its General
Secretary Shri Anil Chandra Das, son of Late
Girish Chandra Das, resident of Siddhi
Ashram, Santanagar, P.O. Siddhi Ashram,
P.S. Amtali, District West Tripura.
----Respondent(s)
For Appellant(s) : Mr. P Roy Barman, Adv.
Mr. S Bhattacharjee, Adv.
Mr. K Nath, Adv.
For Respondent(s) : Mr. AK Bhowmik, Adv. General
Mr. M. Debbarma, Addl. GA
Mr. Raju Dutta, Adv
Mr. T Debbarma, Adv.
Date of hearing : 01.08.2018.
Date of delivery of
judgment & Order : 09.10.2018
Whether fit for reporting : YES.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
Lodh, J.
By means of this intra court appeal, the appellant has challenged the legality and propriety of the judgment and order dated 20.11.2012 passed by the learned Single Judge declined to interfere with the impugned orders dated 30.07.2012 and 31.07.2012 cancelling and confiscating SC Page 3 of 43 certificate issued in favour of the writ petitioner, appellant herein [orders of the State Level Scrutiny Committee constituted as per the provisions contained in Rule7A of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (as amended up to May, 2007)].
Facts in brief:
2. The writ petitioner-appellant (hereinafter referred to as the petitioner) has filed the writ petition stating, inter alia, that he belongs to "Jalia Kaibarta", a recognised community as Scheduled Caste in the State of Tripura. The father and the forefather of the petitioner hailed from the village Hiradabad, sub-division, Brahmanbaria of the then East Pakistan. The village Hiradabad was mostly populated by "Jalia Kaibarta"
community and it was one of the "choudda Mouja" i.e. 14 (fourteen) villages of then East Pakistan which were dominated by "Jalia Kaibarta" community. Lt. Sitanath Das was the grand-
father of the petitioner and the petitioner claims that he was a fisherman by profession who also born and brought up at village Hiradabad under Brahmanbaria district of the Republic of Bangladesh and that after partition of the country, Lt.
Sitanath Das migrated to Calcutta, presently, Kolkata and then to Tripura and ultimately settled in Tripura.
3. It is the claim of the petitioner that his father immediately after partition went to Kolkata and was worker in Royal Press but in the first part of 1960 he shifted to Agartala Page 4 of 43 and procured a job at the then Kohinoor Press, Motor Stand, Agartala.
4. It is the case of the petitioner that his father, Lt.
Paresh Ch. Das entered in the postal service in the year 1959 and retired from service in the year 1988. The learned single judge while elucidating the facts of the case has observed that indisputably in the service book of the petitioner‟s father, duly signed by him, and verified by the superior officers, caste of his father is recorded as „Hindu‟ (Kayastha). His father retired from service in the year 1988. From the pleadings of the petitioner, it is clear that during the long service career of the petitioner‟s father he has never claimed his caste status as SC "Jalia Kaibarta" community of Tripura, nor he produced any SC certificate before the authority while he was in service.
5. As per pleadings in the writ petition, the Sub-
Divisional Officer (SDO) Sadar, Agartala after due and proper inquiry had issued SC certificate in favour of the petitioner vide No. 790.F/XII-2/SDO.SDR/TW/84-85 dated 21.06.1980 mentioning, the petitioner as a member of the "Jalia Kaibarta"
community. It is further observed that the SDO, Sadar, West Tripura had issued SC status certificate declaring the father of the petitioner as a member of the "Jalia Kaibarta" community vide No.17213/XII.2/SDO/SDR/TW/81 dated 16.07.1981 (Annexure-P2 to the writ petition). The learned single judgment has observed that even before the petitioner‟s father obtained the SC certificate dated 16.07.1981 the SDM, Sadar Page 5 of 43 issued the SC certificate in favour of the petitioner vide certificate dated 21.06.1980, as stated above, (Annexure-P4 to the writ petition). The learned single judge has observed that Annexure P4 to the writ petition which is said to a copy of the SC certificate dated 21.06.1980 issued in favour of the petitioner bears the date 21.06.1984. The typed copy of the Annexure-P4 bears the dated 21.06.1980 at the top and also again it is dated 21.06.1989 at the bottom.
6. It is further alleged that on the prayer of the petitioner for issue of sc certificate to enable him to consider for employment against the reserved vacancy for SC category candidates, the SDO, Sadar on 16.03.1994 after making inquiry had issued a fresh SC certificate in favour of the petitioner being a member of the "Jalia Kaibarta" community (Anexure-P8 to the writ petition). The said Annexure-P8 bears the date 16.03.1999. The learned single judge had perused the records for issuing SC certificates maintained by the SDO/SDM, Sadar, Agartala and on such perusal the learned single judge was of the clear opinion that no SC certificate alleged to have been obtained by the petitioner either on 16.03.1994 or 16.03.1999 was issued by the SDO, Sadar, Tripura.
7. The petitioner was a regular student of B.Com 2 years pass course in the Bir Bikram Memorial College, Agartala and he took admission as SC candidate and also used to receive stipend and scholarship as SC candidate. The petitioner has annexed a copy of the certificate dated 09.11.2011 issued Page 6 of 43 by the Principal of Bir Bikram Memorial College (Anenxure-P5 to the writ petition) in support of this fact.
8. Subsequently, his name was registered with the employment exchange, West Tripura, Department of Labour and Employment, Government of Tripura as a Scheduled Caste. Necessary entries were also made in the register of Agartala Municipal council.
9. The petitioner, in his writ petition, has further stated that he secured a job under the State government against the vacancies reserved for SC category candidates. By the passage of time, the petitioner was later elected as a Member of the Tripura Legislative Assembly in February, 2008 from a Constituency reserved for the Scheduled Castes.
10. From the facts stated in the writ petition, it is revealed that after his election to the Tripura Legislative Assembly as Schedule Caste candidate, one Anil Ch. Das lodged a complaint to the Deputy Director, National Commission for Scheduled Castes, Government of Tripura, stating inter alia, that the petitioner, his father and brother had obtained the caste status certificate hiding their actual caste status to the competent authority and the said complaint was forwarded to the Member Secretary, (Director of Schedule Caste Welfare), State Level Scrutiny Committee (SLSC) for taking necessary action. By that letter dated 03.04.2008 the Deputy Director, asked the Member Secretary, SLSC to cause Page 7 of 43 inquiry in to the matter regarding the caste status of the petitioner (Annexure-P9, P10 and P11 to the writ petition).
11. Thereafter, the SLSC referred the matter to the SDM, Sadar, West Tripura on 22.05.2008 for verification of the caste status of the petitioner and after taking appropriate action purportedly under the provisions of Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and rules framed thereunder. During inquiry, show cause notice was issued to the petitioner but the petitioner has stated that the purported inquiry was conducted behind his back and keeping him in total dark. Ultimately, he challenged the inquiry proceeding by way of filing a writ petition being WP(C)93/2011 challenging the memo dated 12.02.2011 issued by the SDM, Sadar.
12. The Hon‟ble High Court by its judgment and order dated 26.04.2011 disposed of WP(C)93/2011 directing the SDM, Sadar to transmit the case record to SLSC which will thereafter carry out the necessary investigation and pass appropriate orders as expeditiously as possible, within the time as stipulated by the High Court in the said judgment and order, preferably within three months from the date of the judgment.
13. In pursuance of the said judgment and order dated 26.04.2011 the SLSC issued a show case notice No.10116/F.2- 485/SCW/OBC/GL/03(P) dated 21.01.2011 detailing all chronological sequence of events what happened after receipt Page 8 of 43 of the complaint against the petitioner in respect of his schedule caste status. It was observed that the SDM, Sadar remanded the case record the SLSC in terms of the direction given by the High Court and thereafter, the SLSC referred the issue to the vigilance cell for verification of the caste status of the petitioner on 25.01.2011. The vigilance cell submitted its report on 20.08.2011 wherein it had been opined that Partha Kr. Das, the petitioner herein, belongs to the Jalia Kaibarta community but the SLSC after perusal and taking note of the report expressed that caste status of the petitioner was doubtful and a show cause notice was issued asking the petitioner to submit reply in writing to prove his caste status.
14. It is stated in the writ petition that along with the case report in 31 sheets, inquiry report of the administrative agency of the SDM, Sadar, report of the Agartala Municipal Council in 3 sheets and copy of the orders in 2 sheets were also enclosed. It has been further stated that the vigilance cell of the SLSC through Addl. Superintendent of Police, found the petition as a member of the Jalia Kaibarta community and the vigilance report is annexed as Annexure-P15 to the writ petition.
15. It has been mentioned in the writ petition that in the show case notice dated 21.10.2011 the inquiry caused by the SDM and views of the Schedule Caste Welfare Sub- Committee were also referred and relied upon. According to the petitioner, the so called inquiry made by the SDM, Sadar Page 9 of 43 was a farce and so called views of the SC Welfare Sub- Committee was absolutely based on presumption but not on any inquiry at all. It is further been stated that the petitioner was not consulted and no opportunity was provided to him to defend his schedule caste status by way of furnishing oral and documentary evidence. The inquiry report of the SDM, Sadar and minutes of the SLSC sub-committee are annexed to the writ petition as Anenxure-P10 and P17 respectively. Contentions of the petitioner:
16. Mr. P Roy Barman, learned counsel appearing for the petitioner has laid much emphasis on the vigilance report of the SLSC as the said report, according to Mr. Roy Barman, was made after entering into the roots of the petitioner obtaining statements of the people of the locality of the petitioner and after perusal of the documents of the scheduled caste certificate issued in favour of his father, brother and grandfather. His further submission is that the vigilance report is the final report being most genuine and the report of the Schedule Caste Welfare Sub-Committee, Agartala Municipal Council and not a report at all and it is a mere resolution which cannot attain the status of a report.
17. In the vigilance report, it is clearly stated that the petitioner belongs to Jalia Kaibarta community. The learned counsel has placed reliance on the decision in Kumari Madhuri Patil & Anr. vs. Addl. Commissioner, Tribal Page 10 of 43 Development & Ors., (1994) 6 SCC 241 followed by the judgment and order in the matter of Director of Tribal Welfare, Govt. of A.P. vs. Laveti Giri & Anr., (1995) 4 SCC 32 wherein the Apex Court has laid down specific guidelines for the verification of the doubtful and spurious caste status.
18. According to Mr. Roy Barman, after the vigilance Cell submitted positive report, the SLSC had no jurisdiction to make any further prove and was under obligation to follow the said report. Learned counsel for the petitioner has further submitted that there is no finding of the SLSC that the vigilance report was not genuine or the same was procured falsely and the findings of the SLSC has badly suffered from non-application of mind.
19. In reply to a query by this Court, Mr. Roy Barman, however, has agreed that the burden is entirely upon the certificate holder to prove that he is a member of the schedule caste community. The learned counsel has tried to persuade this Court that the finding of the SLSC that there is no documentary evidence to support the caste status of the petitioner is wholly perverse.
20. On the basis of his submissions, Mr. Roy Barman has contended that the impugned order of the SLSC wherein it cancelled and confiscated the SC certificate of the petitioner is wholly illegal, arbitrary and is liable to be set aside. Page 11 of 43
21. Mr. Roy Barman, learned counsel for the petitioner inviting out attention to Rule 7A(4) of the Tripura Schedule Castes and Schedule Tribes Reservation Rules, 1992 (as amended up to May, 2007) has contended that the question of further inquiry by way of issuing show cause notice would only raise if the Member Secretary of the SLSC finds the report of the Director, vigilance is not genuine or doubtful or spurious or falsely or wrongly claimed.
22. Interpreting the said provision, learned counsel for the petitioner submits that when the vigilance report does not reflect any irregularities, the Member Secretary of the SLSC has no right to proceed with a fresh inquiry and it is final and the scrutiny committee would have no other alternative but to accept the vigilance report and proceed accordingly without any kind of interference with the caste certificate of a person of a particular community.
23. Mr. Roy Barman has strenuously argued that the SLSC has committed a serious error when it has also considered the report of the SC Welfare Sub-Committee of the Agartala Municipal Council which led the SLSC to proceed with a fresh inquiry. According to him, the SC Welfare Sub- Committee has no role or business to determine the issuances of community certificate in favour of any person.
24. Learned counsel for the petitioner further submits that the SLSC while analyzing the evidence has given Page 12 of 43 disproportionate weightage to the report of the SC Welfare Sub Committee, which, according to him, is a mere resolution by way of minutes. It has also been contended that the petitioner was denied of affording reasonable opportunity to place his case and the SLSC ought to have discussed and considered the evidence of the petitioner in a more meticulous manner.
25. In the light of the aforesaid submissions, Mr. Roy Barman, learned counsel appearing for the petitioner has argued that the findings and interpretation of different provisions of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and the rule made thereunder held by the learned Single Judge is illegal and arbitrary and urged this Court to set aside the judgment and order dated 20.11.2012.
Contentions of the State respondents:
26. Mr. AK Bhowmik, learned Advocate General appearing for the State respondents would contend that Partha Das, who is also known as Partha Kr. Das had contested the Tripura Assembly Elections from a constituency which is reserved for the Schedule Castes. He has two brothers, namely, Chandan Das and Pranab Das. Both the brothers are employed under the State Bank of India in different capacities and their certificates have also been cancelled. Chandan Kr.
Das has challenged the cancellation of his SC certificate by way Page 13 of 43 of filing a writ petition which is registered as WP(C)267/2008 now pending before this Court.
27. Learned Advocate General submits that Lt. Paresh Ch. Das, i.e. the father of the petitioner was an employee of the Postal Department, Govt. of India but the petitioner has motivatedly suppressed this fact. Lt. Paresh Ch. Das came from Calcutta to Agartala in the year 1960. From the inquiry of the service record of Lt. Paresh Ch. Das it is revealed that in the service roll the community was recorded as hindu kayastha but this important fact has been suppressed by the petitioner. During his service career, Lt. Paresh Ch. Das never divulged to anyone that he belonged to SC community and only after retirement he obtained a SC certificate vide certificate dated 16.07.1998.
28. Learned Advocate General has also drawn our attention to the fact that from the admission register of the petitioner it is found that his caste was not declared as SC. He further contended that there is no proof that Lt. Sitanath Das, father of Lt. Paresh Ch. Das had ever stayed in Tripura at any point of time. Learned Advocate General has drawn our attention to the fact that the petitioner had obtained another SC certificate which was issued in favour of him on 17.03.1999 (Annexure-P8 to the writ petition).
29. The next submission of learned Advocate General is that one Anil Ch. Das being the Secretary of State Namasudra Page 14 of 43 Social Welfare Association made a complaint to the National Commission for Schedule Castes which necessitated the inquiry. Initially the matter was inquired by the Sub-Divisional Magistrate and the SLSC came into picture for the first time in pursuance of the direction of the Hon‟ble Court. The SLSC has found contradictory reports - one from the Vigilance Cell and another from the SC Welfare Sub Committee of the Agartala Municipal Council and due to the said contradictory reports the SLSC itself had started inquiry and issued show cause notice.
30. Learned Advocate General submits that the vigilance report was not based on any documentary evidence and the report only consists of the statements made by some persons who reside in Agartala. Moreover, the authorized vigilance officer motivatedly had thwarted and flouted the requirements prescribed under the Tripura SC & ST Reservations Rules, 1992 and did not go to the root of the matter.
31. The SC Welfare Sub Committee, Agartala Municipal Council has considered the documentary evidence as well as some letters of the same community and on the basis of their statements and documentary evidence the SC Welfare Sub Committee very rightly held that the petitioner does not belong to the Jalia Kaibarta Community and reported the matter to the SLSC. The learned Advocate General has pointed out the discrepancies and anomalies in the various certificates relating to caste status of the father as well as the writ petitioner. Page 15 of 43
32. He further submits that the Vigilance report is not the ultimate and the SC Welfare Sub Committee of Agartala Municipal Council is also a regular and valid committee to ascertain the caste status of a person who is competent to inquire into the matter.
DISCUSSIONS
33. Since two reports from two authorities differ from each other it raises suspicious circumstances and casts a doubt on the genuineness of the caste certificate of the petitioner.
34. As the submission of the learned counsel for the petitioner is centered around the report of the vigilance officer, we have taken note of the role of the vigilance officer as prescribed under sub-rule (2) and (3) of Rule 7A of the Tripura Schedule Castes and Schedule Tribes Reservation Rules, 1992 as amended up to May, 2007. Sub-rule (2) and (3) of Rule 7A stipulates:
"7A. Constitution, Powers and Functions of the Scrutiny Committee.
(1) xxxxxxxxxxxx (2) Director of Vigilance shall constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors and Sub-Inspectors to investigate into the community status and claims as may be required.
(3) The Investigating Officer 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.
He should personally verify and collect all the facts of the social status claimed by the certificate holder 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 certificate holder in relation to their caste etc. or such other persons who have knowledge of the community status of the certificate holder and submit a report to the Director of Vigilance who will verify the correctness of the report and transmit it to the Member-Secretary of the Scrutiny Committee concerned together with all particulars as envisaged in the proforma, 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."
Page 16 of 43
35. From a plain reading of sub-rule (2), it is clear that Director of Vigilance shall constitute a vigilance cell comprising of Police Inspector of Sub-Inspector of Police to investigate into the community status of a person.
36. Under this sub-rule, the Director of vigilance has appointed one Addl. Superintendent of Police (vigilance), to inquire into the caste status of the petitioner.
37. Sub-rule (3) clearly postulates that the Investigating Officer would go to the local place of residence and ordinary place from which a candidate hails and usually resides or in case of migration to the town or city, the place from which he ordinarily hailed.
38. Thus, the essential elements to be followed by an investigating officer is that he has to go to the ordinary place from which a candidate hails and usually resides or in case of migration to the town or city, the place from which the said candidate ordinarily hailed.
39. In the case in hand, the father of the petitioner Lt. Paresh Ch. Das, as claimed in the writ petition, hailed from Hiradabad village of Brahmanbaria of the then East Pakistan, now Bangladesh because he and his father Lt. Sitanath Das had migrated to Calcutta just after partition. It also casts an obligation upon the Director of vigilance to verify the correctness of the report after submission of the same by the concerned officer. It is necessary to recapitulate that the Page 17 of 43 grand-father and father of the petitioner had migrated to calculate just after partition from Hiradabad village, as stated above.
40. Now, it is necessary to reproduce the vigilance report as well as the SC Welfare Sub-Committee report.
VIGILANCE REPORT:
"No. F.2(77)/VIG/2004/VR/SC-W/245/276 Government of Tripura General Administration (AR) Department, Office of the Superintendent of Police (Vigilance), Tripura :: Agartala th Dated, Agartala, the 20 August, 2011.
To The Member Secretary State Level Scrutiny Committee, (Director of Welfare of SC/OBCs), Government of Tripura.
Subject:- Forwarding of Caste Status Enquiry Report against Sri Partha Das S/O Late Paresh Chandra Das.
Reference :- No. 2353/F.2-485/SCW/OBC/GL/03(P) dt. 21-05-11.
Sir, Kindly refer to the above.
I am herewith sending the enquiry report on the Caste Status Certificate of SC conducted against Sri Partha Das S/o Late Paresh Chandra Das of North Badharghat, PS West Agartala. The Enquiry report was duly verified by the Director, Vigilance at the end of the enquiry which is given below:-
Name and Sl. No. Name & Rank of Result of
address of of Enquiry Officer verification
alleged person your
list
Sri Partha Das - Sri Subrata The SC Certificate
S/O Late Paresh Chakraborty, Addl. issued in favour
Chandra Das of Supdt. Of Police of Sri Partha Das
North (Vigilance) Tripura. is found genuine
Badharghat, and his caste
P.S. West status is genuine.
Agartala.
This is for favour of perusal & necessary action.
Yours faithfully, Enclo : As stated above.
Sd/- Illegible Addl. Superintendent of Police (Vig), Tripura, Agartala"Page 18 of 43
SC WELFARE SUB-COMMITTEE REPORT -
"OFFICE OF THE CHIEF EXECUTIVE OFFICER AGARTALA MUNICIPAL COUNCIL AGARTALA th No.-32/SCW/AMC/2009/3850-53 Dated, Agartala, the 18 June, 2011.
To Shri Himangshu Roy, E.O. The Inspector of Police, Vigilance, Tripura, Agartala.
Sub :- Caste Status enquiry of Sri Partha Das S/o Sri Paresh Chandra Das of North Badharghat, Agartala, West Tripura.
Ref. No.: Your letter No. 144-45/SP/Vig/2011, dated Agartala the th 30 May, 2011 & No. 210-11/SP/Vig/2011 dated Agartala th the 16 June, 2011.
Sir, Please find enclosed herewith a copy of Minutes of the meeting of the SC Welfare Sub-Committee, AMC Area held on rd 31.01.2011 vide No. F.11-32/SCW/AMC/2009/18678-96, dated 3 February, 2011. As per resolution No.3, the Caste status of Sri Partha Das, S/o Sri Paresh Chandra Das of North Badharghat, A.D.Nagar, Agartala has been verified & found that Sri Das does not belong to SC Community.
The matter was also discussed in its meeting held on 18.06.2011 and expressed the same opinion.
This is for your information please.
Yours faithfully, Enclo :- As stated Sd/- Illegible (P.K.Chakravarty) Chief Executive Officer Agartala Municipal Council."
41. After perusal of the records it is evident that the IO has recorded the statements of 9 witnesses including the petitioner and relied on the certificate dated 21.06.1984. However, the said 9 witnesses are the residents of AD Nagar, North Badharghat, Agartala and are adjacent to the residence of the petitioner. They only have stated that they know Partha Das, who belongs to the "Jalia Kaibarta" community. The learned Single Judge has led that the documents relied on by the Vigilance Officer in his report for proving that the petitioner belongs to "Jalia Kaibarta" community are not the documents prescribed by the Tripura SC & ST Reservation Rules, 1992 for Page 19 of 43 proving the claim of the petitioner to be a member of the SC community. However, it is observed that one of the documents considered by the Vigilance Officer in his report is the certificate dated 21.06.1984 which was under scrutiny/which was in dispute; and other documents are not the documents issued by the competent authority for proving that the writ petitioner is a member of the "Jalia Kaibarta" community. The learned single judge has further observed that the other documents are issued by the authorities who are not competent authorities to issue SC certificate, are based on the said SC certificate dated 21.06.1984 and that the MLA and the Principal of College are not the competent authorities for deciding if a person is a member of the SC community.
42. We have carefully gone through the records and the observations of the learned single judge that minus the said SC certificate, the remaining documents considered by the Vigilance Officer will have no force in claiming to be a member of SC "Jalia Kaibarta" community of Tripura by the petitioner. After perusal of the records before us, we are in full agreement with the observations of the learned Single Judge. The learned single judge has relied on the decision of the Apex Court in Director of Tribal Welfare, Govt. of A.P. Vs. Laveti Giri and Anr., (1995) 4 SCC 32 wherein it is held that burden of proof is on the person who claims himself to be a members of the SC. The service record of the petitioner‟s father mentioning Page 20 of 43 his caste status is also relevant document for deciding if he is a member of the SC.
43. However, it is revealed that the Director, Vigilance did not make any effort to examine or find out the near relatives of the writ petitioner, either from his paternal side or from his maternal side. He even did not visit or go to Calcutta where the grandfather of the petitioner had allegedly migrated just after partition from Hiradabad village, now in Bangladesh. The Director, Vigilance also did not consider that the Investigating officer even did not go to the ordinary place of residence of the father or grandfather of the petitioner from where they hailed ordinarily.
44. Learned single judge also observed that as per the procedure streamlined for issue of social status certificate and their scrutiny, the Vigilance officer would go to the local place of residence and ordinary place from which the candidate/applicant hails and resides or in case of migration to the town or state, the place from which he ordinarily hails from, and he should also examine the school record, birth registration, if any. Learned single judge has further observed that in the present case, the vigilance officer never went to the place from where the petitioner‟s father ordinarily hailed, i.e. the originally place of the petitioners father as the petitioner‟s father has migrated to Tripura in the early part of 1960 from Bangladesh via Calcutta.
Page 21 of 43
45. Having observed, the learned Single has opined that it is clear that the vigilance cell did not submit the vigilance report after fully complying the procedures and requirements for holding inquiry, if the petitioner was a member of the SC. We are in full agreement with the observation of the learned single judge that none of the witnesses hailed from the ordinary place of the petitioner‟s father, i.e. Hiradabad village in Bangladesh from where the petitioner‟s father had migrated to Tripura. From the record, it reveals that all the witnesses examined by the Vigilance cell are only hear-say or only they have passed their opinion to the vigilance officer.
46. The learned Single judge in his judgment ha reproduced and discussed the statements of the all the witnesses whom the vigilance officer examined during the course of his inquiry. We have meticulously scrutinized the statements and discussions made by the learned Single Judge and we find no infirmity in the observations made by the learned Single judge.
47. Placing reliance on the decision of Anand Vs. committee for Scrutiny & Verification of Tribe Claims & Ors: (2012) 1 SCC 113 wherein the Apex Court has held that the burden of burden of proof lies on the claimant who claims to a member of SC. The learned Single Judge has observed that in the present case, the oldest document so far as the case of the petitioner is concerned is the service record of his father wherein the caste of the petitioner‟s father is Page 22 of 43 "kayastha". Para 22, 23, 24 and 25 of the said decision in Anand's case (supra) read as follows:
"22. It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim:
(i) While dealing with documentary evidence, greater reliance may be placed on pre- Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;
(ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor.
However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribe's peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
23. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case, the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim.
24. Having examined the present case on the touchstone of the aforesaid broad parameters, we are of the opinion that the claim of the appellant has not been examined properly. We feel that the documentary evidence produced by the appellant in support of his claim had been lightly brushed aside by the Vigilance Officer as also by the Caste Scrutiny Committee. Insofar as the High Court is concerned, it has rejected the claim solely on the basis of the affinity test. It is pertinent to note that some of these documents date back to the pre-Independence era, issued to appellant's grandfather and thus, hold great probative value as there can be no reason for suppression of facts to claim a non-existent benefit to the `Halbi' Scheduled Tribe at that point of time.
25. From the documents produced by the appellant, it appears that his near paternal relatives had been regarded as belonging to the Page 23 of 43 `Halbi' Scheduled Tribe. The Vigilance Officer's report does not indicate that the documents produced by the appellant in support of his claim are false. It merely refers to the comments made by the headmaster with reference to the school records of appellant's father's maternal brother and his aunt, which had been alleged to be tampered with, to change the entry from Koshti Halba to Halba and nothing more. Neither the headmaster was examined, nor any further enquiry was conducted to verify the veracity of headmaster's statement. It is of some importance to note at this juncture that in similar cases, involving appellant's first cousin and his paternal uncle, the High Court, while observing non-application of mind by the Caste Scrutiny Committee, had decided a similar claim in their favour."
48. Relying on the decision of Anand (supra) the learned single judge has observed that the documents prescribed for proving the caste or tribe under Rule 3 of the Tripura SC and ST Reservation Rules, 1992 are not the appropriate documents prescribed under the said rule except the one, i.e. the caste certificate dated 21.06.1984 which also was issued without following the procedure and requirements prescribed under the Tripura SC & ST Reservation Rules, 1992, neglecting the touchstone of the ratio laid down by the Apex Court in the cases discussed above.
49. After a thread bare discussion, the learned Single Judge has held that the petitioner did not approach the court with clean hands and the claim of the petitioner is based on falsehood and suppression of material facts.
50. The truth being an integral part of the justice delivery system if flouted by any of the parties to the lis, he or they have no right to claim any relief from the courts.
51. After receipt of both the reports, as stated above, the SLSC issued a show cause notice dated 21.10.2011 Page 24 of 43 affording the petitioner with an opportunity to make representation or reply, if any, in writing with relevant records/references within two weeks from the date of receipt of the said notice dated 21.10.2011 failing which the SLSC would take ex parte decision as per provisions of law. The petitioner was also given opportunity to seek personal hearing and also to engage a lawyer. The show cause notice dated 21.10.2011 is reproduced hereinbelow in verbatim:
"GOVERNMENT OF TRIPURA MEMBER SECRETARY STATE LEVEL SCRUTINY COMMITTEE (DIRECTORATE FOR WELFARE OF SC'S & OBC'S) TRIPURA :: AGARTALA No. 10116/F.2-485/SCW/OBC/GL/03(P) Dated. 21.10.2011.
SHOW CAUSE NOTICE WHEREAS a SC certificate bearing No.790/F.XII- 2/SDO/SDR/TW/84-85 dated 21.6.84 was issued to Sri Partha Das, S/O Paresh Ch. Das of Vill-North Badharghat, Agartala, West Tripura.
AND WHEREAS a complaint was received against said Sri Partha Das, S/o PAresh Ch. Das of Vill-North Badharghat, Agartala, West Tripura for obtaining Scheduled Caste Certificate by misrepresentation of facts.
AND WHEREAS the matter was referred to the Sub-Divisional Magistrate, Sadar, West Tripura on 22.5.08 for verification of caste status of Sri Partha Das and also for taking appropriate action as per provision contained in the SC & ST reservation Act./Rules. The Sub-Divisional Magistrate, Sadar enquired the matter through his administrative agency and also obtained views of the SC Welfare Sub-Committee, Agartala Municipal Council wherein it reveals that Sri Partha Das does not belong to Sch. Caste.
AND WHEREAS the Sub-Divisional Magistrate, Sadar before taking decision on the caste status of Sri Das has given him an opportunity by issuing a memo No.F.9(260)/SDM/SDR/TW/08/252- 54 dated, 17.2.2011 to Sri Das and asked him to clarify as to why the Sch. Caste certificate issued in his favour vide No.790/FXII- 2/SDO/SDR/TW/84-85 dated 21.6.84 should not be cancelled and also asked him to appear personally before him for submission/reply. But Sri Das did not reply rather he challenged the memo and jurisdiction of SDM and filed a writ petition vide WP(C) No. 93 of 2011 before the Hon'ble Gauhati High Court, Agartala Bench.
AND WHEREAS the Sub-Divisional Magistrate, Sadar referred the case records to the State Level Scrutiny Committee. The State Level Scrutiny Committee decided to refer the issue to the vigilance cell for verification of caste status of Sri Partha Das on 21/5/2011 wherein the vigilance stated that Sri Partha Das belongs to Jalia Kaibarta Community which is recognized as Scheduled Caste in Tripura.
AND Page 25 of 43 WHREAS the State Level Scrutiny Committee on perusal of the records and after taking consideration the above mentioned facts is prima facie satisfied that the caste status of said Sri Partha Das appears to be doubtful.
AND NOW, THEREFORE, the said Sri Partha Das is hereby given an opportunity to make representation or reply, if any, in writing with relevant records/evidences to prove his caste status within 2 (two) weeks from the date of receipt of this notice, failing which the State Level Scrutiny Committee shall take ex-parte decision as per provision of law. He is also at liberty to seek personal hearing and may mention this in his representation. He may also engage lawyer if he desires at the time of hearing with prior intimation to the State Level Scrutiny Committee, Enclo:- As stated
i) Vigilance Report 31 (thirty one sheets) Sd/- Illegible
ii) Enquiry report of administrative agency Member-Secretary of SDM, Sadar and report of SC Welfare (Director for Welfare of Sub-Committee, AMC, 3 (three) sheets) Sch. Castes & OBCs)
iii) Copy of Complaint Tripura :: Agartala 2(two) sheets
52. From the vigilance report it is found that the investigating officer has obtained statements of nine witnesses including the petitioner and all the persons are the residents of AD Nagar, North Badharghat area, i.e. adjacent to the residence of the petitioner. They have all stated that they know Partha Das who belongs to Jalia Kaibarta community.
53. According to us, the petitioner being an influential political leader can pursuade some persons of the locality to give statements in his favour. None of the witnesses, except Partha Das have stated about one important aspect that when Lt. Paresh Ch. Das, the father of the petitioner came to Agartala and from where he came to Agartala. It is only the petitioner who has stated that is father came to Calcutta, India in the year 1948 and to Agartala in the year 1960.
54. The Vigilance Cell has relied on some documents, e.g. the SC Certificate of the petitioner issued by the then Page 26 of 43 SDO, Sadar dated 21.06.1984 and one certificate issued by one Sri. P Chakraborty, Municipal Commissioner of Agartala Municipal Council stating the petitioner to be Schedule Caste, one SC certificate issued in favour of Lt. Sitanath Das issued by the same Municipal Commissioner dated 11.12.1980, the SC Certificate issued in favor of Lt. Paresh Ch. Das by the same Municipal Commissioner and SC Certificate issued in favour of Lt. Paresh Ch. Das issued by one MLA of the Tripura Legislative Assembly, employment exchange card, ROR of Ward 25, Certificate issued by the Principal, ITI, Indrangar to the effect that Partha Das was a trainee of the ITI, Indrangar who was admitted as SC candidate during the session August, 1988 to July, 1989 and SC certificate issued in favour of Partha Das by SDO, Sadar dated 16.07.1981.
55. From the said report of the vigilance cell, it is clear that the vigilance officer who inquired into the matter could not obtain any statements from any of the near or distant relatives of the petitioner. Moreover, he relied on some documents issued by the Municipal Commissioner who is not at all competent to issue SC certificate under the established law in Tripura.
56. It is very difficult to give any credibility to the vigilance report when the vigilance officer has relied upon the SC certificate issued in favour of Lt. Sitanath Das who as the grandfather of Partha Das by one P Chakraborty, the then Commissioner of Agartala Municipality dated 11.12.1980 which Page 27 of 43 was countersigned by Jadab Majumder, MLA on 12.12.1980. From this certificate a very important fact has come to the fore that when there is no evidence that Lt. Sitanath Das at any point of time came to Agartala, then how the certificate was issued in favour of Lt. Sitanath Das in the year 1980. It makes the report of the vigilance cell doubtful.
57. All other documents relate to the petitioner himself and his father, but none else. The vigilance cell has totally discarded the report of the SC Welfare Sub-Committee and opined that the report of the Sub-Committee does not bear a well thought opinion.
58. Both Mr. Roy Barman, learned counsel appearing for the petitioner as well as the learned Advocate General appearing for the State respondents had invited my attention to the various provisions of Tripura Schedule Castes and Schedule Tribes Reservation Act, 1991, as amended up to February, 2006 (hereinafter referred to as "the Act") and the Tripura Schedule Castes and Schedule Tribes Reservation Rules, 1992, as amended up to May, 2007 (hereinafter referred to as "the Rules").
59. Section 2(h) of the Act defines false community certificate which means a SC/ST certificate obtained by a person who does not actually belong to SC/ST community.
60. Section 11 of the Act deals with the burden of proof, which is reproduced herein below:
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"11. Onus of proof:
When in any proceeding under this Act or the Rules made thereunder, the question is whether a person belongs to the Schedule Caste or Schedule Tribe the onus of proof shall be on the person who claims to be a member of the Scheduled Caste or Schedule Tribe, as the case may be."
61. From the aforesaid provisions, it is clear that if a person who holds or obtains a SC certificate but he does not actually belong to the schedule caste community then the said certificate is to be treated as false. However, the entire burden lies upon the person who claims that he belongs to the schedule caste community.
62. In the case in hand, the entire burden lies upon the petitioner Partha Das to prove that he belongs to the Jalia Kaibarta community by producing cogent evidence, in support of the genuinity of the SC certificate issued in favour of him.
63. Rule 2(g), 2(h), 2(i) and 2(j) defines "Scrutiny Committee, "Sub-Committee, "Vigilance Cell" and "Member Secretary" respectively. From the definition, it is crystal clear that the Scrutiny Committee is empowered for verification of community status and cancellation of community certificates. From the definitions as contained in Sections 2(h) and 2(i), it is also clear that various Sub-Committees are constituted by notification in the official gazette and the Vigilance Cell is statutorily empowered to inquire and verify whether the person belongs to scheduled caste or scheduled tribe community. As such, the submission of the learned counsel for the petitioner Page 29 of 43 that the SC Welfare Sub Committee has no statutory force to inquire or verify the caste certificate is bereft of merit. Accordingly, we are of the opinion that the report of the SC Welfare Sub Committee, in whichever form it is, is a valid report having statutory force under the relevant Rules.
64. Rule 5 of the Rules deal with the procedure for issuance of SC or ST certificate. Rule 6 deals with the cancellation of the SC or ST certificate. For convenience, Rule 6 is reproduced hereinbelow:
"[6. Cancellation of Scheduled Caste or Scheduled Tribe certificate.
An authority who issued a Scheduled Caste Certificate or Scheduled Tribe certificate to any one may, at a subsequent stage cancel it, if after an enquiry and after giving the party concerned an opportunity of being hearing, it finds that the person to whom the Community Certificate was issued does not actually belong to the Scheduled Caste or the Scheduled Tribe, as the case may be.
Provided that in cancelling a Scheduled Caste Certificate, the issuing authority shall obtain the views of the concerned Block Level or Nagar Panchayat Level or Municipal Level Scheduled Castes Welfare Sub- Committee and in cancelling a Scheduled Tribe certificate, the issuing Tribes Welfare Sub-committee, if any, constituted by the Government, as to whether the certificate holder belongs to Scheduled Caste or Scheduled Tribe and the views so given by the Scheduled Castes Welfare or Scheduled Tribes Welfare Sub-Committee shall form a part of the order cancelling the certificate in question.
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.]"
65. From a bare reading of the proviso to Rule 6 it is clear that in cancelling the SC certificate the issuing authority shall obtain the views from the Municipal Level SC Welfare Page 30 of 43 Sub-Committee and the view so given by the SC Welfare Sub- committee shall form a part of the order cancelling the certificate in question.
66. The 2nd proviso to Rule 6 also empowers the Scrutiny Committee to cancel the community certificate issued by a competent authority and 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 Rule7A of the Rules. For convenience, Rule 7A of the Rules is reproduced hereinunder:
7A Constitution, Powers and Functions of the Scrutiny Committee.
(1) At the State Level there shall be two Scrutiny Committees as follows -
(a) For verification of community status of Scheduled Caste Certificate holders, the Scrutiny Committee shall consist of :- (i) The Secretary-in-charge of Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities - Chairman. (ii) The Director for Welfare of Scheduled Castes and Other Backward Classes - Member-Secretary (iii) Joint Secretary or Deputy Secretary of the Law Department - Member
(iv) Additional Director or Joint Director or Deputy Director for Welfare of Scheduled Castes & Other Backward Classes - - Member
(b) For verification of community status of Scheduled Tribe certificate holders, the Scrutiny Committee shall consist of :- (i) The Secretary-in-charge of the Tribal Welfare Department - Chairman (ii) The Director for Welfare of Scheduled Tribes - Member-Secretary (iii) The Director, Tribal Research Institute - Member (iv) Joint Secretary or Deputy Secretary of the Law Department - Member (2) Director of Vigilance shall constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors and Sub-Inspectors to investigate into the community status and claims as may be required.
(3) The Investigating Officer 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. He should personally verify and collect all the facts of the social status claimed by the certificate holder or the parent or guardian, as the case may be. He should also examine the school Page 31 of 43 records, birth registration, if any. He should also examine the parent, guardian or the certificate holder in relation to their caste etc. or such other persons who have knowledge of the community status of the certificate holder and submit a report to the Director of vigilance who will verify the correctness of the report and transmit it to the Member Secretary of the Scrutiny Committee concerned together with all particulars as envisaged in the proforma, 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. (4) The Member Secretary of the Scrutiny Committee concerned, on receipt of the report from the Director of Vigilance if finds the claim for community status is not genuine or doubtful or spurious or falsely or wrongly claimed, the Member Secretary concerned shall issue show-cause notice supplying a copy of the report of the vigilance officer to the community certificate holder by a registered post with acknowledgement due or through the head of the institution or office concerned in which the certificate holder 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 receipt of the notice. In case, the certificate holder seeks an opportunity of hearing and claims an inquiry to be made in that behalf, the Member-Secretary on receipt of such representation or reply shall convene the meeting of the committee and the Chairperson of the Committee shall give a reasonable opportunity to the certificate holder and in case the certificate holder is a minor to the parent or guardian to adduce all evidences in support of his claim. A public notice by beat of drum or any other convenient mode may also be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may also be given to him or it. After giving such opportunity 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 certificate holder or opponent and pass an appropriate order with brief reasons in support thereof.
Provided that in case a certificate holder engages a legal practitioner to represent his case before the Scrutiny Committee, the Director for Welfare of Scheduled Castes and Other Backward Classes or the Director for Welfare of Scheduled Tribes as the case may be, may engage a lawyer.
Provided further that before passing a final order, the Committee shall also take into consideration the local enquiry report of the Sub-Divisional Magistrate and opinion of the Sub-Committee concerned.
(5) In case the report is in favour of the certificate holder 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 sub-rule (4) shall be followed.
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(6) 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, the Committee shall pass an order cancelling the certificate issued and confiscate the same. The Committee shall communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the certificate holder and in case the certificate holder is a minor to his parent or guardian.
(7) 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 office or post is getting expired, the certificate holder be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the community status certificate already issued, on an affidavit duly sworn by the parent or guardian or certificate holder 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.
(8) In case, the certificate obtained or community status claimed is found to be false, the parent or guardian or certificate holder as the case may be, shall be prosecuted for making the false claim. If the prosecution ends in a conviction and sentence of the accused, it shall be regarded as an offence involving moral turpitude, a disqualification for elective posts. (9) As soon as the findings is recorded by the Scrutiny Committee holding that the certificate obtained was false and the certificate is cancelled and confiscated, it shall be communicated to the head of 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 head of the educational institution responsible for making the admission or the appointing authority, shall cancel the admission or appointment as the case may be without any further notice to the certificate holder and debar him from further study or continue in office in a post.
67. Rule 7A (1)(a) contemplates the formation of SLSC for verification of community status of SC certificate holders comprising of four members. The Scrutiny Committee may ask the Vigilance Cell to inquire into the community status of the certificate holders in terms of Rule 7A(2) and (3) of the Rules. Sub Rule 4 of Rule 7A contemplates that the Member Secretary of the Scrutiny Committee concerned on receipt of the report from the Director of Vigilance, if finds the claim for community Page 33 of 43 status is not genuine or doubtful or spurious or falsely or wrongly claimed, he shall issue show cause notice and supply a copy of the report of the Vigilance Officer to the community certificate holder by Registered post with acknowledgement due or through the head of the institution or the office concerned in which the certificate holder is staying or employed. It also prescribes that the scrutiny committee would give reasonable opportunity to the certificate holder to prove his case.
68. The 2nd proviso to sub-rule 4 of Rule 7A clearly contemplates that the committee shall also take into consideration the opinion of the sub-committee concerned and in the present case it is the office of the Schedule Caste Welfare Sub Committee of the Agartala Municipal Council.
69. We have given our anxious though to the aforesaid rules and sub-rules and according to us both the vigilance report and the opinion of the sub-committee are to be considered by the Scrutiny Committee at the time of hearing of the dispute relating to the genuinity of the case certificate. The Member Secretary having found two contradictory reports came to the conclusion that the community status of the petitioner was doubtful and issued the show cause notice.
70. We have meticulously perused the proceedings of the SLSC. At para 7 of the order of the SLSC, it has observed that "after careful examination of the complaint, report of the Page 34 of 43 vigilance, the report of SDM, Sadar, the State Level Scrutiny Committee decides to issue a notice to Sri Partha Das alongwith copy of complaint, enquiry report of vigilance, minutes of SC Welfare Sub-Committee of Agartala Municipal Council and enquiry report of Sub Divisional Magistrate to prove his caste status in writing with relevant documents/evidences. Shri Das was asked to submit his reply within 2 weeks from the date of receipt of the letter ot be issued to him by the Member Secretary, State Level Scrutiny committee and to prove his caste status with documentary evidences, if any. Shri Das was also given an opportunity to seek personal hearing. He was also given liberty to engage lawyer at the time of hearing."
71. We find no irregularity committed by the SLSC in issuing the show cause notice dated 21.10.2011 and the procedure prescribed under the Rules have been followed. The SLSC examined the reply of the show cause notice in its meeting held on 23.11.2012 and decided to hear the petitioner personally providing him an opportunity to produce documents/evidences in support of his caste status and the petitioner was directed to appear personally before the SLSC. But on the next date fixed for personal hearing the petitioner did not appear before the SLSC. However, he submitted a representation on 15.01.2012 addressed to the Member Secretary, SLSC wherein he sought two months time to collect Page 35 of 43 evidence. Ultimately, after two months the petitioner appeared before the Committee when the SLSC recorded his deposition.
72. The petitioner prayed for producing three witnesses which was accepted by the SLSC and after a few days on receipt of notice the petitioner appeared before the SLSC along with the witnesses, namely, Malin Kanta Paul, Adhir Ch. Das and Narayan Deb when their statements were recorded by the SLSC. These witnesses have stated before the SLSC that the petitioner is well-known to them and he belongs to SC Jalia Kaibarta community but they did not produce any document/evidence in support of their deposition.
73. During the course of proceedings, the SLSC received 17 applications from the OP and the petitioner and after careful examination they allowed 5 witnesses including, Sri Anil Ch. Das, Joint Secretary, Department of State Namasudra Social Welfare Association, Agartala, West Tripura as witness. The SLSC has also given opportunity to the petitioner for appearing before the Committee for cross examination of the witnesses. All the 5 witnesses have deposed that the petitioner does not belong to the SC community. They also have stated that they have collected some documents under RTI relating to the service record of the father of the petitioner wherefrom it has become evident that the father of the petitioner, Lt. Paresh Ch. Das has recorded in his service roll as a member of the Kayastha community. They also have taken note of the opinion Page 36 of 43 of the SC Welfare Sub Committee of the Agartala Municipal Council.
74. This Court has taken note of the deposition of one Nakul Ch. Das who has stated that none of the male members of the family of Partha Das, the petitioner herein, married in SC community and in support of his claim Nakul Das submitted the electoral roll for identification of the family members. The said witness, Nakul Das was an MLA for 15 years and belonged to the Jalia Kaibarta Community which the petitioner also claims. He has categorically stated that he knows all prominent persons belonging to the Jaila Kaibarta community but he never heard that the petitioner belongs to his community, i.e. Jalia Karbarta community. The committee also found from the documentary evidence that at the time of filling up the admission form in Class-VI, Partha Das, the petitioner herein was not declared as a SC by his elder brother, Chandan Das. The SLSC also considered the vigilance report dated 20.08.2011 which indicates that the petitioner belongs to Jalia Kaibarta community which is recognized as SC in Tripura but the Committee did not accept the Vigilance report on the ground that the inquiry officer did not furnish any supporting documents which could have proved that the petitioner belongs to Jalia Kaibarta community.
75. As it has been stated earlier, in our opinion also the vigilance report does not carry much credence due to the fact that the investigating officer has believed the certificate issued Page 37 of 43 in favour of Lt. Sitanath Das while it is very much doubtful whether Lt. Sitanath Das came to India at any point of time during his life time. Even none of the witnesses including the petitioner Partha Das did not state in his evidence that Lt. Sitanath Das, i.e. the petitioner‟s grandfather, came to Agartala. It casts serious doubt about the credibility and genuinity of the investigation conducted by the said investigation officer on behalf of the vigilance cell.
76. In the light of the aforesaid factual and legal position as discussed, indisputably the statute provides that it is the petitioner who has to prove his caste status beyond any reasonable doubt. The petitioner has to prove that he belongs to a particular community recognized in the State of Tripura as specified in the presidential order.
77. If we analyze the evidences which were produced before the SLSC by the petitioner, it is found that nine persons have stated as witnesses that the petitioner Partha Das belongs to "Jalia Kaibarta" Community. From their statement, it is not clear when his father came to Tripura and from which period they started to live at the residence where they live presently. SLSC also considered the documentary evidence collected by the vigilance cell at the time of investigation. SLSC found that the documents are not sufficient to prove that the petitioner belongs to Jalia Kaibarta community. Page 38 of 43
78. We have given our anxious thought to those documents. It is found that Lt. Paresh Ch. Das, father of the petitioner obtained the SC certificate in the year 1981 but in his service roll under the Postal Department, Govt. of India, he has declared himself as a person of Kayastha community. There is no reasonable explanation on behalf of the petitioner as to why his father declared himself as a person of Kayastha community other then Schedule Caste. According to us, Lt. Paresh Ch. Das was a matured person and the declaration was voluntary and there were no compelling circumstances to record his caste as Kayastha community which falls within the general category.
79. In the admission form, the elder brother of the petitioner has declared the petitioner as „general‟ against the column of „caste (Gen/SC/ST)‟. The said admission form was filled up on 18.02.1981. It is hard to believe that the said declaration was given by the elder brother of the petitioner without the knowledge of Lt. Paresh Ch. Das, the father of the petitioner.
80. The petitioner has also not produced any of his relatives either from his paternal side or from maternal side. In the prevailing system, during those days when the society was very conservative there were hardly any inter-caste marriage and a male belonging to the general category used to marry a female who belonged to the same category, vis a vis a male of SC community would have to marry a female of the same Page 39 of 43 community. The also could not produce any SC certificate issued at any point of time in favour of his mother. The petitioner also failed to produce any caste certificate of his wife as well as the wives of his brothers. It is very unnatural that all the brothers have married women belonging to the general category. The petitioner could have easily produced his wife and the sister-in-laws (wives of his brothers) before the SLSC. Under what circumstances they married the petitioner as well as his brothers who belong to the SC community, particularly, when there is evidence that the wives of all the brothers belong to the general category.
81. On further meticulous scrutiny of the evidence adduced by the petitioner and the evidence adduced by the OP-Complainant, we find that the SLSC had started fresh inquiry correctly in terms of R.7A of the Rules, as according to us, there were "doubtful" circumstances and as we discussed in the preceding paragraphs, we find no irregularities in the procedure adopted by the SLSC, and the prescribed statutory procedures in the Act and Rules have been followed. The evidence and documents produced by the complainant-OP against the petitioner remains unrebutted.
82. Though, it is a settled law that in a case of this nature, the High Court exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India cannot sit as an appellate authority and re-appreciate the evidence, this Court will only examine and verify whether the prescribed procedures Page 40 of 43 relating to the dispute are followed and whether there is any perversity in arriving at the decision and whether all the relevant materials and evidences are considered by the Committee.
83. We may gainfully refer paragraph 15 of the Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal Development & Ors., reported in (1994) 6 SCC 241 wherein the Apex court has observed as follows:-
"15. The question then is whether the approach adopted by the High Court in not liberally considering the case is vitiated by an error of law. The High Court is not the 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 fact. The Committee when considers all the material facts and records 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 materials placed before it or has not applied its mind to relevant facts which have led the Committee to ultimately record the finding. Each case must be considered in the backdrop of its own facts."
84. In the case in hand, the petitioner has produced the documents that after obtaining the SC certificate he took admission to college and during the period of his study he used to enjoy stipend and got employment as SC candidate and even contested the election as a SC candidate. According to us, these are the consequences the petitioner enjoyed due to the advantage of obtaining SC certificate but those documents cannot be taken as proof of the caste status of the petitioner. The petitioner has to visit to his root and he is to prove the caste status of his relatives. It should not be circumscribed Page 41 of 43 only within his father and brothers. In the present case, even the petitioner‟s father‟s conduct is doubtful.
85. Mr. Roy Barman, learned counsel for the petitioner has submitted that in the vigilance report there was no whisper about the service roll and service record of the father of the petitioner, admission form of the petitioner and at the later stage of the proceeding said documents had been allowed to be incorporated causing serious prejudice to the petitioner.
86. According to us, the submission of the learned counsel has no merit because he himself has admitted that during the course of proceeding itself those documents were obtained and submitted before the SLSC with the full knowledge of the petitioner and the petitioner got reasonable opportunity to controvert or rebut or dispute the credibility of those documents, but he failed to discharge his duty and the entries of those documents has remained unrebutted. More so, those documents were collected through RTI.
87. Another important aspect of the matter that has come to the fore of this Court is about the conduct of the vigilance officer who has made the inquiry. It was his duty to collect those documents like service roll and service record of the father of writ petitioner and his failure to do so raises serious doubt about his credibility and genuineness to conduct fair inquiry. The aforesaid submission of the learned counsel for the appellant-writ petitioner amply proves the faulty and Page 42 of 43 perfunctory investigation of the Director, Vigilance and his authorized team had proceed in total disregard of procedure laid down in the Tripura SC & St Reservation Rules, as stated above and authorized officer appeared to be very casual in his approach, the influence of the writ petitioner who, at the relevant point of time, was an MLA of the Tripura Legislative Assembly. The way the vigilance officer proceeded and submitted report does not inspire confidence of the Court.
88. In furtherance thereof, it is the duty of the Court to discern truth on the basis of available pleadings, documents and evidence a litigant puts forth before a court of law. Needless to say, truth constitutes an integral part of the justice delivery system. In the present case, keeping in mind the above principle we have anxiously and critically examined the factual and legal aspects as well, and we concur the view expressed by the learned single judge that the writ petitioner has not approached this court with clean hands. In our considered opinion, dishonest and unscrupulous litigant has no place in the courts of law.
89. In M.P. Mittal Vs. State of Haryana: (1984) 4 SCC 371, the Apex Court has held (SCC. P374, para 5):
"5. .......it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interest of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetrate an unjust gain."Page 43 of 43
90. Applying the principle afore-stated, we are of the view that when the genesis of the claim of the writ petitioner about his caste status is founded on falsehood and dishonest means, he is justifiably precluded of raising the plea of prejudice. As such, we are unable to accept the submission of learned counsel for the writ petitioner that any prejudice was caused to him in course of inquiry by the SLSC, the highest statutory authority in this regard.
91. On the facts of this case, we are of the view that the SLSC after application of its prudent mind has cancelled and confiscated the SC certificate issued in favour of the petitioner which according to us, does not suffer from any infirmity. We have also perused the findings and reasonings in dismissing the writ petition by the learned single judge and we find no ground warranting our interference in the judgment and order passed by the learned single judge.
92. Consequently, this intra court appeal, being devoid of merit, is dismissed. However, there shall be no order as to costs.
(ARINDAM LODH), J (AJAY RASTOGI), CJ. lodh