Jaisleena James v. State Of Chhattisgarh And Three ORS.

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 6307 of 2007 Smt. Jaisleena James, W/o. Sri Praphull James (Daughter of late Sri Udal Masih), Aged about 46 years, Assistant Teacher, Govt. Primary School, Newsa-Navapara, Tahsil Pendra Road, District Bilaspur, R/o. Village Jyotipur, Tahsil Pendra Road, District Bilaspur, Chhattisgarh ---- Petitioner

Versus

1. State Of Chhattisgarh, acting Through The Secretary, Department of Tribal Welfare, D.K.S. Bhawan, Mantralaya, Raipur, District Raipur, Chhattisgarh

2. State Level Committee for Scrutiny of Caste Certificate, through: its Secretary, Pt. Ravishanker Shukla Vishwavidyalaya Compound, Raipur, Chhattisgarh

3. Collector, Bilaspur, Chhattisgarh

4. District Education Officer, Bilaspur, Chhattisgarh ----Respondents For Petitioner :

None For State :

Mr. Jitendra Pali, Dy. A.G.

Hon'ble Shri Justice P. Sam Koshy Order on Board 23/01/2019 1.

The challenge in the present writ petition is to the order Annexure P/14 dated 10.09.2007 passed by the respondent No.2. Vide the said order, the respondent No.2 has held that the caste certificate, which the petitioner has produced was a false certificate and that there is no proof available to establish that the petitioner belongs to the Gond tribe, which is a schedule tribe notified in the State of Chhattisgarh.

2.

The brief facts of the case relevant for the adjudication of the present dispute is that the petitioner was working as an Assistant Teacher in the State of Chhattisgarh and that she has obtained

employment declaring herself to be a member of scheduled tribe declaring that she belonged to the Gond community. 3.

According to the petitioner, the parents of the petitioner were resident of Village Teekersani, Tahsil Pendra Road, District Bilaspur. The petitioner had obtained a caste certificate from the office of Tahsildar Pendraroad on 05.02.1982 from a revenue case registered as case No. 375/D-121/81-82. Since the petitioner belongs to the Below Poverty Line category that was issued and was issued with a Ration Card by the Chief Municipal Officer, Nagar Panchayat, Gourela and in the said Rashan Card also, status of the petitioner was shown as that of Gond community. 4.

It is said that the petitioner got an appointment with the respondents as an Assistant Teacher on 31.03.1989. Later on it is said that there was some complaint lodged against the caste status of the petitioner and the matter was put to enquiry before the respondent No.2- the High Power Caste Scrutiny Committee constituted by the State of Chhattisgarh. The High Power Caste Scrutiny Committee subsequently had instructed the Senior Superintendent of Police, Bilaspur to inquire into the caste certificate of the petitioner and based on the report of the said Senior Superintendent of Police, the respondent No.2 is said to have issued the order Annexure P/14 dated 10.09.2007 holding that the petitioner does not belong to the Gond community. The Committee further held that the petitioner has not produced sufficient cogent proof before the committee to establish that she in fact belonged to the Gond community. The respondent No.2 while passing the said order also instructed for

cancellation of the appointment which was given to the petitioner on the basis of the caste certificate that she had from the office of the Tahsildar, Gourela. It is this order which is under challenge in the present writ petition.

5.

The petitioner had an interim protection in her favour. From the pleadings, which the petitioner had made, prima facie it appears that the contention of petitioner appears to be that the committee has not properly conducted an investigation to ascertain the actual caste status of the petitioner. It is the further contention of the petitioner that the authorities also have totally ignored the directives/guidelines laid down by the Hon'ble Supreme Court in the case of "Kumari Madhuri Patil & Another v. Additional Commissioner, Tribal Development & Others" reported in (1994) 6 SCC 241 which was the primary judgment in this field and where the Hon'ble Supreme Court had in very categorical term laid down the guidelines as to how the High Power Caste Scrutiny Committee should conduct itself and the manner in which the committee should conduct an investigation.

6.

It is the further contention of the petitioner that no such exercise has been done by the committee while issuance of the impugned order disbelieving the caste certificate which the petitioner has. The petitioner further submits that in fact the certificate which the petitioner had in her possession was issued by the Tahsildar, was after a due inquiry, which they had conducted, as was required under the then prevailing procedure.

7.

Lastly, it was contended by the petitioner that the committee has failed to reach to the conclusion that the petitioner in fact belonged to a different community and not to the Gond community and in the absence of such findings by the committee, the impugned order is not sustainable and the same deserves to be set-aside/quashed. 8.

The State Government on the contrary opposing the petition submits that the pain reading of the impugned order Annexure P/14 is by itself self explanatory, in as much as the petitioner's case was duly inquired upon by the Senior Superintendent of Police, Bilaspur and who had conducted an investigation by visiting the Primary School, where the petitioner under took her initial education and in the record, the caste of the petitioner has been reflected as "Isaai" and the Senior Superintendent of Police submitted the findings to the committee, based upon which the impugned order has been passed.

9.

It was the further contention of the State counsel that the committee before passing the order had also called upon the petitioner on repeated occasion for producing cogent material which she had to establish the fact that she in fact belonged to the Gond community and the petitioner miserably failed in producing sufficient materials in this regard, which has led to the issuance of the impugned order which therefore is not in any manner bad in law, nor does it warrant any interference and prayed for the dismissal of the writ petition. 10.

Having heard the contentions put forth on either side and on perusal of record, particularly the impugned order, what is revealed from the findings arrived at by the respondent No.2-committee is that the

committee instructed the Senior Superintendent of Police Bilaspur to submit a report and the Senior Superintendent of Police only visited the primary school, where the petitioner had undertaken her initial education and has submitted his report. In the report, the Senior Superintendent of Police, Bilaspur has given a finding that in the school record, the tribe of the petitioner has been mentioned as "Issai". There is no doubt that the term "Issai" is otherwise a religion and is not a caste.

11.

At this juncture, it would be relevant to refer to the judgment of the Supreme Court in the case of "Kumari Madhuri Patil" (supra) which is the leading case on the issue involved in the present case. After considering the entire factual matrix of the case while streamlining the procedure for verification of the social status certificate, the Supreme Court in very categorical term has laid down certain procedure which should be adopted by the State Govt. after consideration of the High Power Caste Scrutiny Committee. Relevant portion of Para 13 the said judgment is reproduced hereinunder:

"5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector 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 from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate 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 candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, 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.

6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate 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 the receipt of the notice.

In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim.

or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either 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 candidate or opponent and pass an appropriate order with brief reasons in support thereof."

12.

The same analogy has further been reiterated by the Supreme Court in the case of "Director of Tribal Welfare, Government of A.P. Vs. Laveti Giri and another" reported in (1995) 4 SCC 32 wherein the Supreme Court has reproduced the entire paragraph13 of the said judgment holding it to be taken as guidelines for the purpose of an enquiry to be conducted by the High Power Committee in each of the States.

13.

In furtherance to the aforesaid principle of law laid down by the Supreme Court so far as the procedural aspect is concerned, it would be relevant to refer to the judgment of the Supreme Court in the case of "Collector, Bilaspur Vs. Ajit P.K. Jogi and others" reported in (2011) 10 SCC 357 wherein paragraph-18 it has been held as under:

"This Court thus formulated a scheme for verification of tribal status and held that any application for verification of tribal status as a Scheduled Tribe should be carried out by such Committees. The verification of the validity of caste certificates and determination of the caste status should therefore be done by the Scrutiny Committees constituted as per the directions in Madhuri Patil or in terms of any

statute made by the appropriate Government in that behalf."

14.

In the light of the aforesaid legal position as is stands, the only consideration which is left to be considered by this Court is as to whether the finding arrived at by the respondent no.2 Committee is in accordance with the principles of law and ratio laid down by the Supreme Court in a series of judgments starting from the judgment of "Kumari Madhuri Patil" (supra).

15.

Taking into consideration the entire factual matrix, as it stands and also on due perusal of the impugned order, if we peruse the findings of the respondent No.2 in the impugned order, it clearly reflects that the entire findings of the committee is based on the report of the Senior Superintendent of Police, Bilaspur.The report of the SSP, Bilaspur who has given a finding only based on the entries made in the primary school register of the petitioner. The impugned order of the committee does not show any form of an investigation by the committee going into the 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. In the absence of any such clear investigation and finding by the committee, the impugned order is hard to sustain and the same deserves to be and is accordingly setaside. 16.

At this juncture, the counsel for the State submits that in the year 2013, the State Government has in compliance to the directives given in the judgment of the Hon'ble Supreme Court in the case of

"Kumari Madhu Patil" (supra) has enacted a special law, which is known as "Chhattisgarh Schedule Castes, Schedule Tribe and Other Backward Classes (Regulation of Social Status Certification) Act, 2013", and where the State Government itself has framed the rules and guidelines, as to how the caste status of a particular person has to be verified or investigated upon. 17.

Given the said facts and the new law that has come into force, the impugned order being set-aside. The right of the respondents stands reserved, if they feel so to hold a fresh inquiry in accordance with the new Act that has been enacted in the year 2013 and pass a fresh order.

18.

The writ petition accordingly stands allowed. The impugned order (Annexure P/14) dated 10.09.2007 as a consequence stands quashed with consequences to follow.

Sd/- (P. Sam Koshy) Judge Ved