WRIT PETITION 19 of 2013 on 10 August 1981

1. This matter is taken up through Hybrid Mode.

2. Heard Mr. S.K. Purohit, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State-Opposite Parties.

3. The Petitioner has filed the present Writ Petition inter alia with the following prayer:- “(i) Direct the Respondent no.5 to reinstate the applicant in service with all the seniority and pecuniary benefit;

(ii) Quash the termination order dt.31.12.12.

(iii) Pass any further order/direction as deemed fit and proper by your Lordships”.

4. It is contended that the Petitioner entered into Government service and was appointed as a Primary School Teacher, where she joined on 05.09.1988. The Petitioner while so continuing was promoted to the post of Headmistress and posted as such to Bohidar Nuapali Primary School vide order dtd.17.05.1994 under Annexure-2. However, it is contended that while so continuing an enquiry was initiated at the behest of the Scheduled Tribe Community regarding the caste certificate produced by the Petitioner at the time of her appointment, so obtained on 10.08.1981 under Annexure-3.

4.1. Basing on the allegation made against the Petitioner, Petitioner was show caused vide notice dtd 21.09.2011 so issued by the Deputy Director, SSD—cum-Member Convenor, State Level Scrutiny Committee, Office of Revenue Divisional Commissioner (RDC), Northern Division (ND), Sambalpur along with the report submitted by the Superintendent of Police, Sambalpur.

4.2. It is contented that Petitioner on receipt of the show cause dtd.21.09.2011 under Annexure-6, though gave a detailed reply by including various documents in support of the stand that she belongs to Scheduled Tribe Community under Annexure-7, but without proper appreciation of the stand taken by the Petitioner in her reply to the show cause under Annexure-7, final order was passed by the State Level Scrutiny Committee on 18.10.2012, with a finding that the Petitioner has obtained fake caste certificate in her favour by showing herself belonging to Scheduled Tribe Community. After passing of such order passed by the State Level Scrutiny Committee on 18.10.2012, Opposite Party No.3 vide his letter dtd.24.12.2012 requested the Collector, Sambalpur as well as the Superintendent of Police, Samablpur to take follow of action against the present Petitioner.

4.3. It is contended that on receipt of the letter issued by Opposite Party No.3 on 24.12.2012 under Annexure-8 along with the final order passed by the State Level Scrutiny Committee on 18.10.2012, Petitioner was straight away terminated from her services vide order dtd.31.12.2012 under Annexure-10 without any show-cause and prior notice.

4.4. It is contended that the Petitioner after due verification of her status as a Scheduled Tribe Candidate was selected and appointed as a Primary School Teacher, where she joined on 05.09.1988. Petitioner while so continuing was promoted to the post of Headmistress vide order dtd.17.05.1994. But basing on some allegation made by the Scheduled Tribe Community in the year 2011, the Petitioner was show caused on 21.09.2011 under Annexure-6, which is almost after 22 years of her appointment.

4.5. It is contended that basing on the final order passed by the State Level Scrutiny Committee on 18.10.2012, Opposite Party No.3 when communicated said order with a request on the Collector and Superintendent of Police, Sambalpur to take follow of action against the Petitioner vide his letter dtd.24.12.2012 under Annexure-8, Opposite Party No.5 without any show cause and without following the principle of natural justice straight away terminated the Petitioner from her services vide order dtd.31.12.2012 under Annexure-10.

4.6. It is accordingly contended that since the principle of natural justice was not followed and no notice whatsoever was issued prior to terminating the services of the Petitioner, who was holding a civil post, the impugned order under Annexure-10 is not sustainable in the eye of law and liable for interference with a further direction on the Opposite Parties to reinstate the Petitioner.

5. Mr. B. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. It is contended that the Petitioner by producing the caste certificate issued under Annexuyre-3 and by showing herself belonging to Scheduled Tribe Community, made her application for her selection to the post of Primary School Teacher. Relying on the said certificate and by treating the Petitioner having belong to Scheduled Tribe Community, she was appointed as a Primary School Teacher, where she joined on 05.09.1988.

5.1. Though, it is not disputed that the Petitioner after her joining as a Primary School Teacher on 05.09.1988 was allowed to continue and she also got the benefit of promotion to the post of Headmistress vide office order dtd.17.05.1994 under Annexure-2, but when allegation was made that the Petitioner has produced a fake certificate and in fact she does not belong to Scheduled Tribe Community, on receipt of such complaint, Petitioner was show caused by the State Level Scrutiny Committee on 21.09.2011 under Annexure-6.

5.2. The State Level Scrutiny Committee after due consideration of the reply to the show cause so submitted by the Petitioner under Annexure-7 vis-à-vis the other material produced by the Petitioner and by the Superintendent of Police in his report dtd.24.08.2011, passed the final order on 18.10.2012 by holding that the Petitioner has produced a fake caste certificate and she does not belong to Scheduled Tribe Community. The order passed by the State Level Scrutiny Committee on 18.10.2012 was forwarded to the Collector and Superintendent of Police, Sambalpur vide letter dtd.24.12.2012 under Annexure-8. Since the State Level Scrutiny Committee in its order dtd.18.10.2012 clearly held that the Petitioner does not belong to Scheduled Tribe community and she got the benefit of appointment by producing a fake caste certificate, she was terminated from her services vide order dtd.31.12.2012, so issued by Opposite Party No.5 under Annexure-10.

5.3. It is also contended by learned Addl. Standing Counsel that challenging the final order passed by the State Level Scrutiny Committee on 18.10.2012 and consequential initiation of the criminal case against the Petitioner, Petitioner approached this Court in W.P.(C) No.10045/2013. This Court vide order dtd.30.09.2021 while dismissing the writ petition granted liberty to the Petitioner to seek further appropriate remedy.

5.4. It is accordingly contended that, since the final order

Conclusion

passed by the State Level Scrutiny Committee on 18.10.2012 basing on which the Petitioner was terminated form her service vide order dtd.31.12.2012 has been upheld by this Court in its order dtd.30.09.2021, no illegality can be found with the order of termination so issued by Opposite Party No.5 on 31.12.2012 under Annxure-10.

It is contended that the Petitioner has been rightly terminated from her services because of the final order passed by the State Level Scrutiny Committee on 18.10.2012, so upheld by this Court in its order dtd.30.09.2021 in W.P.(C) No.10045/2013.

6. Mr. Purohit, learned counsel for the Petitioner taking into account the submission of the learned State Counsel, though does not dispute the dismissal of the writ petition so filed by the Petitioner in W.P.(C) No.10045/2013, but contended that even if the final order passed by the State Level Scrutiny Committee has been upheld by this Court in its order dtd.30.09.2021, but the Petitioner could not have been terminated from her services without following the principle of natural justice.

6.1. It is also contended that since the Petitioner was issued with the caste certificate under Annexure-3 in terms of the provisions contained under Orissa Caste Certificate (for SC & ST) Rules, 1980, the State Level Scrutiny Committee does not have any jurisdiction to entertain the compliant with regard to genuineness of the Petitioner’s caste certificate.

6.2. In support of the aforesaid submission, learned counsel for the Petitioner relied on the decision of this Court reported in 2023(I) OLR-617 (Sridhar Kumar Dali vs. State of Odisha & Others). This Court in Para-6, 7 &

8 of the said judgment has held as follows:- “6. Mr. Babu, learned advocate, Additional Government Advocate appears on behalf of State and submits the Committee acted in accordance with directions in Kumari Madhuri Patil (supra). There was information had, requiring enquiry to be made and thereupon the finding that petitioner’s caste certificate is fake, should be cancelled and was so directed.

7. Recently this Bench had dealt with this question by judgment dated 4[th] January, 2023 in WP(C) no.15048 of 2022 (Kunalata Nayak v. State of Odisha and others). There is no room for doubt, pursuant to clarification by the Supreme Court in Dayaram (supra) that Kumari Madhuri Patil (supra) was judgment delivered in exercise of power under article 142 in the Constitution. It was for purpose of filling the vacuum in absence of legislation in those States, where the directions were made to operate. Here, in Odisha, the rules prevail, as was found by this Bench in Kunalata Nayak (supra).

8. In facts and circumstances, aforesaid, the State Level Scrutiny Committee did not have jurisdiction to enter into the question of genuineness of petitioner’s caste certificate. As such, impugned order is set aside and quashed. The amendment application is allowed and the dismissal order dated 1[st] September, 2017 is also set aside and quashed”.

7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner was appointed as a Primary School Teacher having belong to Scheduled Tribe Community basing on the certificate produced by the Petitioner under Annexure-3. When allegation was made that the Petitioner does not belong to Scheduled Tribe Community, the matter was taken up by the State Level Scrutiny Committee in terms of the order passed by the Hon’ble Apex Court in the case of Kumari Madhuri Patil and Other vs. Additional

Commissioner, Tribal Development, Maharashtra and Others reported in AIR 1995 SC-94. Petitioner accordingly was show caused by the Committee vide letter dtd.21.09.2011 under Annexure-6. Petitioner on receipt of the show cause under Annexure-6, submitted her reply under Annexure-7 and also participated in the hearing so taken up by the Committee. The Committee after hearing both the sides passed the final order on 18.10.2012, by holding that the Petitioner has obtaineda fake caste certificate and she does not belong to Scheduled Tribe Community.

7.1. It is alsofound that the final order passed by the State Level Scrutiny Committee on 18.10.2012 in Fake Certificate No.01/11 (SBT) was challenged by the Petitioner before this Court in W.P.(C) No.10045/2013. This Court vide order dtd.30.09.2021 was not inclined to interfere with the order so passed by the State Level Scrutiny Committee and dismissed the writ petition but by giving liberty to the Petitioner to seek appropriate remedy. It is not the case of the Petitioner that against the order passed by this Court on 30.09.2021 in W.P.(C) No.10045/2013, the Petitioner has taken any further step by challenging the order before the higher forum.

7.2. The decision relied on by the learned counsel for the Petitioner in the case of Sridhar Kumar Dalai as cited (supra) is not applicable to the present case as in the said case, this Court relying on the provisions contained under Orissa Caste Certificate (for SC & ST) Rules, 1980 set aside the order passed by the State Level Scrutiny Committee by holding that the 1980 Rules will prevail and State Level Scrutiny Committee does not have jurisdiction to enter into the genuineness of the caste certificate issued under the provisions of 1980 Rules. But the order passed by the State Level Scrutiny Committee in the case in hand on 18.10.2012 has been upheld by this Court in its order dtd.30.09.2021 in W.P.(C) No.10045/2013 and accordingly order dtd.18.10.2012 attained finality in the eye of law. Therefore, the ratio decided in the case of Sridhar Kumar Dalai is distinguishable from the facts of the present case.

7.3. Since the final order passed by the State Level Scrutiny Committee on 18.10.2012 has been upheld by this Court in its order dtd.30.09.2021 in W.P.(C) No.10045/2013, this Court does not find any illegality or irregularity with the order of termination so passed against the Petitioner on 31.12.2012 under Annexure-10. Accordingly, this Court is not inclined to interfere with the impugned order and dismiss the writ petition.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 22[nd] of September, 2023/Subrat Signature Not Verified Digitally SignedSigned by: SUBRAT KUMAR BARIKReason: AuthenticationLocation: HIGH COURT OF ORISSA, CUTTACKDate: 02-Jan-2024 15:50:29