Calcutta High Court (Appellete Side)
Sri Biswajit Das vs The State Of West Bengal & Ors on 22 September, 2017
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
F.M.A. 607 of 2010
with
F.M.A. 608 of 2010
Sri Biswajit Das
v.
The State of West Bengal & ors.
For the appellant : Mr. M. C. Bhattacharya,
Mr. Smarajit Sen.
For the respondents : Mr. Rabindra Nath Dutta,
1 to 4 Mr. Hare Krishna Halder.
Heard on : July 3 & 31, and August 1 & 16, 2017
Judgment on : September 22, 2017
DIPANKAR DATTA, J:-
1. A learned Judge of this Court had the occasion to hear three writ petitions
analogously. Two of such writ petitions were at the instance of the appellant
(hereafter Biswajit) while the other was at the instance of the sixth respondent
(hereafter Basudeb). By a common judgment and order dated December 21, 2009,
the learned Judge dismissed the writ petitions of Biswajit and allowed Basudeb's
writ petition. Feeling aggrieved by such dismissal, Biswajit has carried these
intra-Court appeals before us.
2. Mr. Dutta, learned advocate for the first to the fourth respondents (hereafter the
official respondents) raised a preliminary objection. According to him, in the
absence of any appeal having been presented by Biswajit against the judgment
and order of the learned Judge allowing Basudeb's writ petition, it has attained
finality and no effective relief could be granted to Biswajit if we are minded to
reverse the orders of dismissal. We took note of such preliminary objection;
however, having regard to the fact that the appeals had been pending before this
Court for the last nine years, we proceeded further to ascertain the points in
issue. The parties were, accordingly, heard and we have no hesitation that
without answering the preliminary objection of Mr. Dutta, the appeals can be
decided on merits. These appeals shall, therefore, be governed by this common
judgment and order.
3. The question that arose for decision before the learned Judge was whether the
Sub-Divisional Officer, Jangipur, Murshidabad, (hereafter the SDO) having issued
a scheduled caste certificate in favour of Biswajit in 1986 was justified in
cancelling the same invoking the provisions of the West Bengal Scheduled Castes
and Scheduled Tribes (Identification) Act, 1994 (hereafter the 1994 Act).
4. The facts reveal that upon a post of Group-D staff (reserved for scheduled caste)
in the relevant school having fallen vacant, a process for recruitment had been
initiated. Biswajit and Basudeb along with others were aspirants for such post. A
panel was prepared wherein Biswajit figured at the top whereas Basudeb was
placed at the second position. Basudeb lodged a complaint that Biswajit was not
a member of a scheduled caste and, therefore, could not have been considered for
the post in question. The SDO issued a letter dated May 27, 1999 and called upon
Biswajit to appear before him within June 10, 1999 for verification of his
scheduled caste certificate bearing no. 5442. A letter dated August 3, 1999 of the
SDO revealed that the verification of the certificate was positive. Alleging that the
school was attempting to appoint Biswajit, Basudeb presented a writ petition
before this Court [W.P. 20308(W) of 1999 dated November 2, 1999], seeking an
order restraining the respondents from appointing Biswajit on the post of Group
D staff and also a direction on the respondents to consider the representations
that had been made challenging Biswajit's status as a scheduled caste candidate.
An order dated November 5, 1999, passed on W.P. 20308(W) of 1999 made it clear
that if any appointment is made on the disputed post, the same shall abide by the
result of the writ petition.
5. In due course, Biswajit was appointed as a Group D staff of the school. On the
complaint of Basudeb, the SDO initiated a proceeding being Misc. Case No. 1 of
2001 (Basudeb Saha v. Biswajit Das). Several notices were issued calling upon
Biswajit to attend the proceedings. Biswajit presented a writ petition [W.P.
3897(W) of 2002 dated March 20, 2002] questioning initiation of Misc. Case No. 1
of 2001 on the ground that a previous complaint of Basudeb was found to be
without merit and the SDO by his memo dated August 3, 1999 had observed that
the verification report in respect of the certificate bearing no. 5442 was positive.
A learned Judge of this Court heard such writ petition on July 8, 2002. His
Lordship did not interfere with the proceedings [Misc. Case 1 of 2001] noting that
hearing in connection therewith had been completed but Biswajit had not been
notified of the order. While disposing of the writ petition, a direction was made to
supply the certified copy of the order in favour of Biswajit within a period of 4
weeks.
6. Biswajit once again presented a writ petition [W.P. 15693(W) of 2003 dated
September 29, 2003], questioning Memo dated September 17, 2003 issued by the
SDO whereby Biswajit was required to remain present on September 22, 2003
with all original documents in connection with Misc Case No. 1 of 2001. There, he
sought for quashing of the said notice. On November 13, 2003 an order was
passed directing the learned advocate for the State to obtain instructions.
However, the writ petition does not appear to have been heard any time
thereafter.
7. The writ court not having restrained the SDO from proceeding further, the
proceedings were taken to its logical conclusion. After receiving oral and
documentary evidence and upon hearing the parties, the SDO passed a final
order dated December 3, 2008 cancelling the scheduled caste certificate of
Biswajit on the ground that he actually belonged to the caste "baishya banik" and
was/is not a member of any scheduled caste.
8. The final order of the SDO dated December 3, 2008 was made the subject matter
of another writ petition [W.P. 1734 (W) of 2009 dated January 14, 2009] by
Biswajit, wherein he claimed quashing of the aforesaid order. Basudeb was not a
party to the writ petition. He prayed for impleadment and such prayer was
allowed by an order dated June 19, 2009. An interim order was passed by the
Court restraining the respondents from terminating Biswajit's appointment.
Affidavits were called for and upon exchange thereof, all the three writ petitions
(two filed by Biswajit and the other filed by Basudeb) were posted for final hearing
before the learned Judge on December 21, 2009.
9. The scheduled caste certificate that was issued in favour of Biswajit is not part of
W.P. 1734 (W) of 2009, but is part of W.P. 15693(W) of 2003, probably because
the same had to be handed over for verification to the SDO. It appears therefrom
that Biswajit belongs to the scheduled caste "sunri" excluding "saha". The
certificate was issued on February 3, 1986 by the SDO and bears no. 5442.
10. Before the learned Judge, it was argued on behalf of Biswajit that the scheduled
caste certificate having been issued on February 3, 1986, the same could not
have been cancelled taking recourse to the 1994 Act. The learned Judge assigned
detailed reasons as to why the SDO could have invoked the power conferred by
the 1994 Act to proceed for cancellation of a certificate that might have been
issued prior to the enactment being enforced.
11. Mr. Bhattacharya, learned senior advocate appearing for Biswajit has not
questioned the correctness of the judgment under appeal by saying that the
reasons assigned by the learned Judge are not proper; on the contrary, he argued
a point before us which was not argued before the learned Judge. Since the point
sought to be argued by Mr. Bhattacharya appeared to us to be a pure question of
law, we allowed him to do so.
12. Referring to the provisions of sections 4, 5, 8A and 9 of the 1994 Act, Mr.
Bhattacharya contended that the SDO had no power to cancel Biswajit's
certificate without any exercise having been undertaken by the State Scrutiny
Committee (hereafter the Committee) under section 8A of the 1994 Act to
ascertain his social status. In other words, according to him, an exercise made by
a certificate issuing authority to cancel a certificate under section 9(1) of the 1994
Act must be preceded by a report of the Committee under section 8A and in the
present case section 8A having been followed in the breach, the impugned order
of the SDO ought to be set aside by us in exercise of our appellate jurisdiction.
13. In support of such a contention, Mr. Bhattacharya has placed reliance on the
decisions in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development
[(1994) 6 SCC 241], Kumari Madhuri Patil v. Addl. Commr., Tribal Development,
Thane [(1997) 5 SCC 437], Darvell Investment & Leasing (I) Pvt. Ltd. V. State of
West Bengal [2015 (2) CHN (CAL) 674] and Bikash Chandra Mahata v. State of
West Bengal [(2017) 1 CAL LT 162 (HC)].
14. Mr Bhattacharya also relied on the decisions in Dayaram v. Sudhir Batham
[(2012) 1 SCC 333], Sultana Begum v. Prem Chand Jain [(1997) 1 SCC 373],
Rajasthan State Industrial Development & Investment Corpn. v. Subhash Sindhi
Coop. Housing Society [(2013) 5 SCC 427], Shailesh Dhairyawan v. Mohan
Balkrishna Lulla [(2016) 3 SCC 619], and Debdas Banerjee v. State of West
Bengal [2014 (2) CHN (CAL) 186], and a passage from Craies on Statute Law, 7th
Edition (1971), in support of his submission that the provisions of an enactment
have to be harmoniously construed; and if sections 8A and 9 are harmoniously
construed, the net result is that the certificate issuing authority without a report
of the Committee on the social status of a candidate, is not empowered to initiate
proceedings for cancellation of a scheduled caste certificate, suo motu.
15. Mr. Bhattacharya has, accordingly, prayed for setting aside of the impugned
judgment and order together with the impugned order of the SDO and for
restoring Biswajit's position in the school as a Group D staff.
16. Opposing the appeal on behalf of the official respondents, Mr. Dutta first
contended that the appeal is devoid of any merit as the reasons assigned by the
learned Judge in the impugned judgment and order have not been assailed.
Secondly, he contended that the provisions of the 1994 Act do not make it
obligatory for the certificate issuing authority to obtain a report of the Committee
prior to initiating proceedings, suo motu, for cancellation of a certificate and,
therefore, no error was committed by the SDO in registering Misc. Case No. 1 of
2001. Finally, it was contended that there are sufficient reasons in the impugned
order dated December 3, 2008 passed by the SDO leading to cancellation of the
scheduled caste certificate of Biswajit and that on perusal thereof, we ought to
dismiss the appeal.
17. We have heard the learned advocates for the parties and are of the considered
opinion that the appeals are, indeed, devoid of any substance.
18. Since Mr. Bhattacharya has not assailed the reasons assigned by the learned
Judge in the impugned judgment and order, we are not called upon to examine its
correctness. Even then, we have looked into the impugned judgment and order
and record our concurrence with the view expressed by the learned Judge that in
view of section 11 of the 1994 Act, it is permissible for the certificate issuing
authority to cancel a scheduled caste certificate, issued prior to the 1994 Act
being enforced, in accordance with the provisions of the 1994 Act and the rules
framed thereunder.
19. Although Mr. Bhattacharya has not argued that initiation of Misc. Case No.1 of
2001 was bad on the ground of the decision conveyed by letter dated August 3,
1999 by the SDO, we have examined such point which was available to be raised
being a point of law. However, we are inclined to the view that the decision was
confined only to the question whether the certificate issued in favour of Biswajit
was a genuine document or not, and it was not a decision on the status of
Biswajit as a scheduled caste. We are, therefore, of the view that the letter dated
August 3, 1999 of the SDO did not stand in the way of verification of the caste
status of Biswajit.
20. We now move on to the point urged by Mr. Bhattacharya. Having perused the
decisions by him, we are of the considered opinion that the view expressed by the
coordinate Bench of this Court in Darvell Investment & Leasing (I) Pvt. Ltd.
(supra) sounds the death-knell for the appellant. Having considered the
provisions of the 1994 Act, more particularly sections 8A and 9, the Bench
observed that an illegal cancellation of a caste certificate issued under section 5 of
the 1994 Act to a member of the scheduled caste/scheduled tribe community
without following the procedure laid down in section 9(1) read with Rule 3 of the
1995 Rules would undoubtedly be a contravention of the provisions of the 1994
Act, which would be amenable to the supervisory jurisdiction of the Committee
under section 8A(3)(c),(e) and (i) of the 1994 Act. It was also held in paragraph 49
as follows:
"49. State Scrutiny Committee is a high powered expert body comprising of
the most experienced personnel who have the requisite expertise,
experience and machinery at their disposal to make proper enquiry into the
social status of an individual whose caste certificate has been illegally
cancelled by the Certificate Issuing Authority in contravention of the
procedure provided under the Act and the rules framed thereunder. To
denude the Committee of such jurisdiction by merely referring to the
definition clause in section 2(a) or its powers under section 8A(1) of the Act
would render the powers engrafted in clauses (c), (e) and (i) of section 8A(3)
otiose and redundant. Such an interpretation would also militate against
the real intention of the legislature and deprive a deserving member of the
SC/ST community from ventilating his grievances under the statutory
scheme against illegal cancellation of his caste certificate in contravention
of the provisions of the Act before the high powered expert body which is
best suited to enquire into such contraventions. To hold otherwise would
defeat both the letter and spirit of the law which seeks to create a plenary
expert body to verify social status of individuals and ensure that the
deserving members of SC/ST community are not deprived of their just
constitutional privileges."
21. Having read the provisions of the 1994 Act, we find the absence of an appellate
forum to which an appeal could be carried against an order cancelling a
certificate under section 9(1) of the 1994 Act. We are inclined to the view that the
coordinate Bench was mindful of such absence in the statute and had by judicial
interpretation recognized the Committee to be a forum who would have
supervisory jurisdiction in respect of orders passed by a certificate issuing
authority cancelling certificates earlier issued, without observing the procedure
prescribed by the 1994 Act and rules framed thereunder. We have also not found
any observation in the said decision that a certificate issuing authority may not
suo motu initiate proceedings for cancellation/impounding/revocation of a
certificate if the circumstances so warrant or that a report of the Committee is a
condition precedent for initiation of such proceeding.
22. Be that as it may, it is now time to note a decision of the Supreme Court cited by
Mr. Bhattacharya on harmonious construction.
23. In Sultana Begum (supra), the Supreme Court in paragraph 15 captured the
essence of all the decisions considered by it on harmonious construction by
observing as follows:
"15. On a conspectus of the case-law indicated above, the following
principles are clearly discernible:
(1) It is the duty of the courts to avoid a head-on clash between two
sections of the Act and to construe the provisions which appear to be in
conflict with each other in such a manner as to harmonise them.
(2) The provisions of one section of a statute cannot be used to defeat the
other provisions unless the court, in spite of its efforts, finds it impossible
to effect reconciliation between them.
(3) It has to be borne in mind by all the courts all the time that when there
are two conflicting provisions in an Act, which cannot be reconciled with
each other, they should be so interpreted that, if possible, effect should be
given to both. This is the essence of the rule of 'harmonious construction'.
(4) The courts have also to keep in mind that an interpretation which
reduces one of the provisions as a 'dead letter' or 'useless lumber' is not
harmonious construction.
(5) To harmonise is not to destroy any statutory provision or to render it
otiose."
(italics in original)
24. We are also of the view, having read section 9 of the 1994 Act again and again,
that a harmonious construction of sub-sections (1) and (2) would result in ironing
out the creases. Our reading of section 9 read with Rule 3 of the West Bengal
Scheduled Castes and Scheduled Tribes (Identification) Rules, 1995 (hereafter the
1995 Rules) is this. In terms of sub-section (1) of section 9 read with sub-rule (1)
of rule 3, either on a complaint by any person or suo motu, the certificate issuing
authority upon recording a prima facie satisfaction that a certificate under the
1994 Act has been obtained by any person by furnishing any false information or
by misrepresenting any fact or by suppression of any material information or by
producing any document which is an act of forgery, may start proceedings for
cancellation, impounding or revocation of the certificate, as the case may be.
Once the proceedings are commenced, the procedure prescribed in sub-rules (2)
to (4) of rule 3 of the 1995 Rules shall be followed and the proceeding shall be
taken to its logical conclusion by an order in writing and, thereafter, further steps
as is provided for in sub-rules (5) and (6) are to be taken. The certificate issuing
authority also has the power under sub-rule (7) to launch criminal prosecution.
Reading of section 9(1) with rule 3 does not impose any obligation on the
certificate issuing authority to obtain any report of the Committee. If at all the
certificate issuing authority in its exercise of power to cancel, impound and/or
revoke a certificate contravenes the provisions of section 9(1) read with rule 3(1),
it would be open to the aggrieved party to invoke the supervisory jurisdiction of
the Committee constituted under section 8A for redress.
25. What section 9(2) provides is this. Since it starts with a non-obstante clause,
nothing contained in section 9(1) would fetter the power of the Committee to
cancel, impound or revoke a certificate which might have been issued to a person
based on false information/misrepresentation of fact/suppression of material
information/production of a forged document. The intent of the legislation is that
even if the certificate issuing authority does not initiate any proceeding under
section 9(1), the Committee may, acting as the original authority, initiate
proceedings for cancellation, impounding or revocation of a certificate that has
been issued to a person based on such false information, misrepresentation,
suppression, production of forged document.
26. Our reading of the decision of the coordinate Bench in Darvell Investment &
Leasing (I) Pvt. Ltd. (supra) is that, a person whose caste certificate is cancelled
could make the order of cancellation amenable to the supervisory jurisdiction of
the Committee or challenge such action by approaching the writ court in an
appropriate case.
27. Although the decision in Bikash Chandra Mahata (supra) lays down that the
certificate issuing authority has no authority to cancel a scheduled caste
certificate issued in favour of a person and such act is without jurisdiction, we
find that such a finding has been returned based on the first Madhuri Patil
decision (supra) without considering the effect of section 9(1) of the Act read with
rule 3 of the 1995 Rules, as well as the interpretation of section 9(2) of the Act by
the coordinate Bench in Darvell Investment & Leasing (I) Pvt. Ltd. (supra). We are
not inclined to the view that the decision in Bikash Chandra Mahata (supra) lays
down the law correctly and accordingly, we record our respectful disagreement
therewith.
28. The first and the second Madhuri Patil decisions (supra) have been perused. It
appears that even before the first Madhuri Patil decision (supra), the 1994 Act
was enacted in the State of West Bengal. Considering that the issue emanating for
decision is covered by legislation, we hold that any observation made in the
decisions in Madhuri Patil (supra) would only be of persuasive value.
29. Law is well-settled that when a person who is not a member of a scheduled
caste/tribe obtains a false certificate with a view to gain undue advantage to
which he is/was not otherwise entitled, that would amount to commission of
fraud calling for immediate corrective action so as to prevent subversion of the
constitutional purpose and no leniency can be shown.
30. Having heard our tentative views expressed in course of hearing and having
realized that the decision in Darvell Investment & Leasing (I) Pvt. Ltd. (supra) by
judicial interpretation of sections 8A and 9 of the 1994 Act has recognized a
power of supervisory jurisdiction being vested in the Committee, Mr.
Bhattacharya prayed that Biswajit may be permitted to raise his grievance before
the Committee against the order of the SDO cancelling his certificate.
31. We are afraid, the prayer need not be allowed in view of the third point raised by
Mr. Dutta to the effect that the certificate issuing authority had assigned
appropriate reason for cancellation of the certificate issued in favour of Biswajit.
32. The SDO received in evidence two deeds bearing nos. 1303 of 1930 and 4029 of
1941, which were executed by the forefathers of Biswajit. Biswajit did not dispute
that the sub-caste of his forefathers was noted in the deeds as 'baishya banik'
and their surname was 'Saha'. No document could be produced by Biswajit
regarding conversion of surname from 'Saha' to 'Das'. Biswajit sought to rely on a
deed which, however, was executed not by his forefathers. We were shown a
genealogical chart that Biswajit himself had annexed to W.P. 3897(W) of 2002,
wherefrom it appears that one Karalbadani Saha (one of the parties to the deed)
was the grandmother of Biswajit's father, Sisir Kumar Das, and the said
Karalbadani Saha had been married to one Maheswar Saha (since deceased)
whose sub-caste was 'sou', which is a sub-caste of 'sunri'. Based on consideration
of the deeds of 1930 and 1941 the SDO arrived at a finding that the sub-caste of
Biswajit's forefathers being 'baishya banik' , he could not claim to belong to 'sunri'
caste and also that the deed produced by Biswajit was irrelevant. Before us, the
findings reached by the SDO could not be shown to suffer from any error and,
therefore, we find no reason to grant liberty to the appellant to approach the
Committee at this distance of time.
33. For the reasons as stated above, the appeals stand dismissed. There shall be no
order as to costs.
34. Photocopy of this judgment and order, duly countersigned by the Assistant Court
Officer, shall be retained with the records of F.M.A. 608 of 2010.
Urgent photostat certified copy of this judgment and order, if applied, may be
furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)
DEBI PROSAD DEY, J. :
I agree.
(DEBI PROSAD DEY, J.)