ISMILE GURU Vs. STATE

JUDGEMENT

(1.) Petitioner challenges correctness of order dated 19-12-1994 (Annexure 8 to the writ application) passed by the Tahasildar, Parlakhemundi, wherein he has concluded that the petitioner does not belong to Sabara sub-tribe, and as such does not belong to Scheduled Tribe. A caste certificate issued to him earlier in Misc. Case No. 134 of 1983 under the Orissa Caste Certificate (for Scheduled Caste and Scheduled Tribe) Rules, 1980 (in short, the 'Rules') was held to be inoperative. According to the petitioner, the Tahasildar acted illegally and/or beyond his jurisdiction in conducting an enquiry behind his back, and coming to the aforesaid conclusion about his caste.

(2.) A brief reference to the factual position, as presented by the petitioner, is necessary for testing correctness of the action taken by the Tahasildar. In the year 1962 the petitioner joined as a Block Level Worker and received promotions from time to time and at the relevant point of time was working as Block Development Officer, Mohhana Block in the district of Gajapati. Petitioner as well as his father belong to the caste 'Sabara'. He applied for caste certificate which was issued to him by accepting that he is a Sabara by caste and belongs to Scheduled Tribe, as specified under the Constitution (Scheduled Tribes) Order, 1950 (in short, the 'Order'). Before the Rules came into operation, Members of the Legislative Assembly were competent to issue caste certificates relating to caste of a particular person and accordingly, the then Member of Legislative Assembly representing Ramgiri Assembly Constituency, i.e., Garasango Savara had issued a caste certificate on 17-6-1980 indicating that the petitioner belonged to Sabara sub-caste. It is not in dispute that Sabara sub-caste is recongnised as Scheduled Tribe as per the Order, so far as Orissa is concerned. Earlier also similar certificate was issued by the former M.L.A. Chakradhar Paik in favour of the petitioner's brother, describing him as Saura which is synonymous for Sabara. One Haladhar Karji, ex MLA representing Ramgiri Assembly Constituency had also issued certificate in favour of petitioner's daughter that she belongs to Sabara Tribe. On 15-3-1994, the then Tahasildar, Parlakhamundi issued a certificate to the petitioner certifying that he is a Sabara Christian and belongs to Scheduled Tribe. The petitioner received a notice from the Tahasildar requiring him to show cause as to why the certificate issued to him should not be cancelled. The same action was taken purportedly on the basis of tour note of the Sub-Collector, Parlakhemundi dated 24-11-1994 communicated to the Tahasildar asking him to submit a report about genuineness of the certificate issued to the petitioner. Petitioner was directed to appear on 8-12-1994. He asked for time as he was required to be present elsewhere on official work. Several persons were directed to appear as witnesses, some of whom appeared and their statements were recorded. However, on the said date the statement of the petitioner was recorded, and making use of the statements recorded on 8-12-1994, 15-12-1994 and 16-12-1994 the certificate issued in favour of the petitioner was cancelled by the impugned order dated 19-12-1994.

(3.) The conclusions of the Tahasildar were to the effect that the petitioner's father had married a non-tribal woman. According to him, under the Rules, the requirement is that where a person claims to belong to Scheduled Caste or Scheduled Tribe, it should be verified that the person and his parents actually belong to the community claimed. Since the mother of the petitioner was a Pana Christian, and she was born, brought up and maintained in Pana Christian Community, she did not belong to Sabara community. Since the petitioner was born from the womb of a Pana Christian and lived in a Pana Christian community, and making relations in Pana Christian community, he cannot claim to belong to Scheduled Tribe. Reliance was placed on statements of persons which showed that the petitioner's mother was a Pana Christian. In the counter-affidavit it is stated that when she died her body was taken to the burial ground in a coffin while the custom of tribals is to carry deadbody in a 'Kokei'. Petitioner also admitted that he first married a Pana Christian and after her death he again married a Pana Christian woman. This, according to the Tahasildar, was sufficient to show that he was not accepted by the tribal society. Mention in the record-of-rights that the petitioner belongs to Scheduled Tribe was held to be of no consequence. Similarly it was held that the certificates issued from time to time either to the petitioner or his relatives do not throw any light on the controversy. In the counter-affidavit filed, the abovementioned aspects were highlighted. It is accepted that certain witnesses were examined on 15l 2-1994 and 16-12-1994, on which dates there was no appearance on behalf of the petitioner. The petitioner's case is that he had no notice of the adjournment. It is asserted that though the petitioner could have cross-examined the witnesses, he could not do so, and therefore, the Tahasildar was justified in relying on the evidence of the witnesses examined in coming to the conclusions we assailed. So far as cross-examination aspect is concerned, it is stated that the enquiry is not strictly in the sense of a judicial proceeding, but it is more in administrative nature and, therefore, absence of an opportunity being given does not affect validity of the order.