IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH
WP(C) No. 300 of 2007
(Agartala Bench)
Sri Abhishek Chandra @ Sachin Besarya,
S/o Late Pramod Chandra Bisaria,
Permanent resident of 11 Phayre Road,
Opposite Hutching’s School, Pune Cantonment,
Pune, Maharashtra,
[holding the post of Project Director, DRDA, Government of Tripura, Udaipur, South Tripura, and presently residing at Udaipur, South Tripura]
- Petitioner
- Versus –
1. The State of Tripura,
Represented by the Chief Secretary to the Government of Tripura,
Agartala, West Tripura.
2. The Principal Secretary to the Government of Tripura,
General Administration (Personnel & Training) Department,
Secretariat Complex, Agartala, Tripura.
3. The Central Bureau of Investigation,
Represented by its Director, having its office at
CGO Complex, Lodhi Road, New Delhi.
4. The Inspector of Police,
The Central Bureau of Investigation, having its office at
CGO Complex, Lodhi Road, New Delhi.
5. The Central Bureau of Investigation,
Represented by the Deputy Superintendent of Police,
Having his office at T.P. Road, Agartala,
West Tripura.
- Respondents
BEFORE
HON’BLE MR JUSTICE IA ANSARI
Advocates for Petitioner
Mr. D. C. Kabir, Advocate.
Mr. Somik Deb, Advocate.
Advocates for Respondents.
Mr. N. C. Pal, Senior Government Advocate.
Mr. A. Lodh, Government Advocate.
Date of hearing: 22.07. 2011.
Date of judgment: 05.09. 2011
JUDGEMENT AND ORDER
With the help of this writ petition, made under Article 226, the petitioner, who holds a caste certificate acknowledging him as a member of the Scheduled Caste, has sought to get set aside and quashed, inter alia, the Memorandum, dated 05.12.2005, issued by the Under Secretary to the Govt. of Tripura, General Administration (Personnel & Training) Department, whereby a departmental proceeding is sought to be initiated against the petitioner on the ground that he has submitted a false caste certificate for the purpose of obtaining appointment in the Indian Administrative Service (in short, "the IAS"). By this writ petition, the petitioner is also seeking setting aside and quashing of the Memorandum, dated 10.05.2006, issued by Under Secretary to the Govt. of Tripura, General Administration (Personnel & Training) Department, whereby the petitioner has been directed to respond to the show cause notice, issued to him under the earlier Memorandum, dated 05.12.2005, aforementioned, the First Information Report (in short, "FIR") as well as thecharge-sheet filed by the Central Bureau of Investigation (in short, "the CBI") against the petitioner and some others under various penal provisions of law.
2. The petitioner, Abhishek Chandra, earlier known as Sachin Pramod Besarya, was born on 27.11.1975. His father, late PC Bisarya, joined Indian Police Service, on 11.11.1973, as a candidate of General category, the petitioner's mother's name being Majula Bisarya. The petitioner's brother, Abhinav Chandra, earlier known as Nitin Pramod Besarya, born on 30.12.1976, is also a member of the IAS.
3. By an order, dated 04.07.89, (Annexure P/9), the Tehsildar (i.e., Sub-Deputy Collector), Pune, issued a certificate that the present petitioner belongs to Scheduled caste community. Similar certificate was issued, on 21.08.1990, by the Tehsildar (i.e., Sub-Deputy Collector), Pune, in favour of the petitioner's said younger brother. This was followed by a scrutiny and verification of the scheduled caste status of the petitioner and, upon such scrutiny and verification, a Certificate of Validity community was issued, on 15.06.91, jointly by the Joint Director, Social Welfare (CV) M.S., Pune, and Deputy Director, Social Welfare, (CV) M.S., Pune. In the year 2002, the petitioner, having been emerged successful, as a Scheduled caste candidate, in the IAS, was appointed to the IAS (Manipur and Tripura Cadre).
4. However, on 23.12.2002, one Clement Ramesh Kumar, a member of the Indian Revenue Service, lodged a complaint with the National Council for Scheduled caste and Scheduled Tribe, alleging, inter alia, that the petitioner's younger brother, Abhinab Chandra, does not belong to Scheduled caste community. On the complaint being so made, the National Council for Scheduled caste and Scheduled Tribe referred the matter to the Vimukta Jati, Nomadic Tribes, Other Backward Class and Special Backward Class Caste Certificate Verification Committee, Pune Division, Pune, whereupon the said Verification Committee caused enquiry and verification thereto and, thereafter, concluded that the said complaint was untenable. Upon reaching this finding, the said Committee, by its order, dated 25.12.2002, affirmed the status of the younger brother of the petitioner as a member of the Scheduled Caste.
5. On 22.07.2004, on the basis, however, of a complaint made by one S.K. Gupta, Deputy Superintendent of Police, CBI, SCR–I, a preliminary enquiry was launched against the petitioner and his younger brother alleging that even though the petitioner and his younger brother belong to Kayastha community (General Category), they had claimed themselves to be members of Scheduled caste and thereby managed to have fraudulent entries in the IAS. On completion of preliminary enquiry, an FIR was lodged, on 04.07.2005, by S.S. Kishore, Deputy Superintendent of Police, CBI, New Delhi, initiating a criminal proceeding. Based on this FIR, a criminal case was registered at PS CBI, SCR-I, New Delhi. This was followed by memorandum/show cause notice, dated 05.12.2005, aforementioned, issued by Under Secretary to the Govt. of Tripura, directing the petitioner to assign reasons as to why appropriate action should not be taken against him for submitting a false caste certificate in order to get appointment in the IAS. While issuing the said memorandum, the issuing authority made a reference to the written complaint lodged by the CBI against the petitioner regarding submission of false Caste certificate by him in order to get his employment. On 02.02.2007, pursuant to the FIR, which was registered against the petitioner and his brother, a charge-sheet was submitted by the CBI in the Court of the learned Additional Chief Metropolitan Magistrate, Kakardooma, New Delhi, arraigning the petitioner, his younger brother and his mother as accused persons. The said charge-sheet also named, as accused, the deceased father of the petitioner and also the deceased Principal of the school, once attended by the petitioner.
6. I have heard Mr. Somik Deb, learned counsel, and Mr. D.C Kabir, learned counsel, for the petitioner. I have also heard Mr. N.C.Pal, learned Senior Govt. Advocate, Tripura, and Mr. A. Lodh, learned counsel, for the CBI.
7. As already indicated above, the petitioner has put to challenge sustainability of the two memoranda, dated 05.12.2005 and 10.05.2006. The first memorandum directs the petitioner to show cause as to why departmental proceeding should not be initiated against him on the ground that he has submitted false caste certificate in order to get appointment in the IAS and the second memorandum directs the petitioner to respond to the show cause notice contained in the earlier Memorandum, dated 05.12.2005. These two memoranda are challenged, by way of this writ petition, on the ground that these two memoranda clearly indicate that the disciplinary authority has already concluded, as a matter of fact, that the petitioner had submitted a false caste certificate and managed to obtain thereby his entry into the IAS. The decision, thus, having already been taken, that the petitioner had submitted false caste certificate, the notice of show cause, contained in the two memoranda aforementioned, are, in substance, nothing but post-decisional hearing inasmuch as the disciplinary authority concerned has already concluded, without according opportunity of hearing to the petitioner, that he has obtained a false caste certificate and, with the help of this certificate, the petitioner has managed to become a member of the IAS. Without any finding from any statutory body or competent authority or the Court of law that the petitioner had submitted a false caste certificate as alleged, it is, according to the petitioner, wholly illegal to issue show cause notices to the petitioner in the manner as has been done in the present case.
8. By C.M. Application No.444/2007, which arose out of the present writ petition, the Court, as the record reveals, has stayed the operation of the impugned Memorandum, dated 05.12.2005, as well as the further proceedings thereof. The record also reveals that in CM Application No.444/2007, an order has also been made staying further proceedings of the case against the petitioner pending in the Court of the learned Additional Chief Metropolitan Magistrate, Kakardooma, New Delhi.
9. Referring to the case of Kumari Madhuri Patil Vs. Addl. Commr. Tribal Development, reported in (1994) 6 SCC 241, Mr. Deb has submitted that in terms of this decision, it is a Committee, which the decision, in Kumari Madhuri Patil (supra), describes as the Scrutiny Committee, which would be the only competent authority to give a finding as to whether a caste certificate, issued to a person, describing him as a member of the Scheduled caste community, is or is not true, correct and valid. The decision, in Kumari Madhuri Patil (supra), further lays down, submits Mr. Deb, that the Scrutiny Committee‟s decision, as regards the correctness, legality and validity of a Scheduled caste certificate, issued in favour of a person, shall be final and the same can be put to challenge before no authority or Court except by way of an application under Article 226 of the Constitution of India.
10. It has been pointed out by Mr. Deb that deriving strength from Kumari Madhuri Patil (supra) and Articles 341 and 342 of the Constitution of India, the Maharashtra Legislative Assembly has enacted the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act,2000, (in short, „the Maharashtra Act‟), which received the assent of the President on 23.05.2001.
11. Section 7 of the Maharashtra Act, further points out Mr. Deb, authorizes the Caste Scrutiny Committee, constituted by the Maharashtra Act, to examine, either suo motu or on the basis of the information gathered, cancel and/ or revoke a caste certificate issued in favour of an individual. Section 7(2) of the Maharashtra Act, in clear and express terms, ousts the authority of the Courts and Tribunals to adjudicate upon the social caste status of an individual save and except by way of judicial review under Article 226 of the Constitution of India.
12. Thus, according to Mr. Deb, the Scrutiny Committee, under the Maharashtra Act, is the only competent body or the authority to give a finding as to whether the caste certificate, which the petitioner holds or has used in order to become a member of the IAS, is or is not a false caste certificate and the decision, rendered by this body, would be final and cannot be challenged before any authority or court except by way of invoking Article 226 of the Constitution of India.
13. Continuing his argument, Mr. Deb points out, as already indicated above, that, on a complaint being made by one claimant, Ramesh Kumar, a member of the Indian Revenue Service, with the National Council for Scheduled caste and Scheduled Tribe, that the petitioner's younger brother does not belong to Scheduled caste community, a verification was conducted by the Verification Committee of the Council for Scheduled caste and Scheduled Tribe, and this Committee affirmed, on 25.12.2002, that the petitioner's younger brother belongs to the Scheduled caste as a member of the Bansor community. This finding, points out Mr. Deb, has never been reversed, or superseded, or revoked or cancelled by any competent authority or Court and, in such circumstances, the prosecution of the petitioner and/or the post-decisional hearing, which the impugned Memoranda seek to hold, are not sustainable in law.
To read the full judgement, please find the attached file.
