WP(C) 1051/2008 BEFORE HON’BLE MR JUSTICE ARUP KUMAR GOSWAMI JUDGMENT AND ORDER (ORAL) Heard Mr. K. N. Choudhury, learned Senior counsel, appearing for the pet itioner. Also heard Ms. M. Goswami, learned State counsel, appearing for respond ent Nos. 1 to 6, and Mr. S. Borgohain, learned counsel, appearing for respondent Nos. 8 and 9. Also heard Mr. R. Phukan, learned counsel for respondent No. 7. 2. The petitioner claims to be a member of Bania community, which falls u nder Scheduled Caste. The Sub-Divisional Officer (S), Golaghat, had issued a Cas te Certificate dated 23.07.1987 certifying that the petitioner belongs to Bonia caste, which is recognized as a Scheduled Caste under the Constitution (Schedu led Caste) Order, 1950. Ten years down the line there was an advertisement dated 27.03.1997 issued by the Principal i/c and Secretary, Golaghat Commerce College , inviting applications for filling up the posts of, amongst others, Lecturers i n Commerce, indicating therein that preference would be given to SC/ST candidate s. The petitioner responded to the said advertisement and, on being successful, was appointed by an order dated 03.04.1998 and the petitioner is still continuin g to serve the said institution. While the petitioner was so discharging his dut ies as a Lecturer, the President, Golaghat Block Congress Committee and another lodged a complaint on 21.03.2007 (Annexure-10) before the Deputy Commissioner, G olaghat, contending that the petitioner may belong to any other caste but not B ania Caste. On the said complaint, an enquiry was conducted through Extra Assis tant Commissioner, Golaghat, and he submitted a report dated 03.05.2007 holding that it would not be justifiable to come to a conclusion that the petitioner doe s not belong to Scheduled Caste or that he produced fake Schedule Caste Certific ate to get the job of Lecturer. However, it was opined that a clarification may be sought from the Government as to whether Jaiswal community is considered as Bania Caste. Thereafter, on 05.08.2007, respondent No. 8, who was a former Me mber of Sub-Divisional Scheduled Caste Development Board, Golaghat, lodged a com plaint (Annexure-14) before the Commissioner to the Government of Assam, WPT & B C Department, praying for cancellation of the Scheduled Caste certificate issued in favour of the petitioner. In the said complaint, it is stated that the petit ioner belongs to Kalwar community and, further-more, his father having come fr om Uttar Pradesh, he cannot be recognized as an indigenous and native Bania co mmunity of Assam. 3. By a letter dated 06.09.2007, the Deputy Secretary to the Government of Assam, WPT & PC Department, wrote a letter to the Deputy Commissioner, Golaghat, to make a proper verification and submit a report to WPT & BC Department. On 02 .11.2007, respondent No. 9 lodged a complaint (Annexure-16) before the Deputy Co mmissioner, Golaghat, against the petitioner in respect of his Caste Certificate . Vide letter dated 08.11.2007 (Annexure-17), the Deputy Secretary to the Govern ment of Assam, WPT & PC Department, informed the Deputy Commissioner, Golaghat, that Joyshowal community or outside the State of Assam cannot be considered Bon ia community of Assam and accordingly requested him to take urgent necessary a ction. On 28.11.2007 a notice was issued by the Deputy Commissioner, Golaghat, t o the petitioner to show cause as to why the Caste Certificate dated 23.07.1987, issued to the petitioner, should not be cancelled and asked the petitioner to f urnish his explanation within 15 days from the date of receipt of the notice fai ling which, it was indicated that an enquiry would be conducted without waiting for his explanation. It appears that one Sub-Divisional Officer (S) was appointe d as Enquiry Officer and the Enquiry Officer, thereafter, submitted an enquiry r eport dated 25.02.2008 (Annexure-22) to the Additional Deputy Commissioner, Gola ghat, opining that the petitioner is not a member of Bania community which is recognized as Schedule Caste in Assam. Thereafter, based on the aforesaid report dated 25.02.2008 as well as the Government letter dated 08.11.2007, the Deputy Commissioner, Golaghat, by his order dated 13.03.2008 (Annexure-23), cancelled t he Caste Certificate issued to the petitioner holding that the petitioner is not a member of Bania community of Assam which is recognized as Scheduled Caste. The petitioner has put to challenge in this writ petition the letter dated 08.11 .2007 (Annexure-17), the Enquiry Report dated 25.02.2008 (Annexure-22) and the o rder dated 13.03.2008 (Annexure-23). 4. Mr. Choudhury, learned Senior counsel for the petitioner has not invited the attention of the Court to the merits of the case and has submitted that any dispute relating to the Caste Certificate issued to the petitioner has to be ad judicated, in view of the decision of the Apex Court in the case of Kumari Madhu ri Patil and Another vs. Additional Commissioner, Tribal Development and Others, reported in (1994) 6 SCC 241, by a Caste Scrutiny Committee and, therefore, the decision taken to cancel the Caste Certificate of the petitioner is wholly with out jurisdiction as it was the Deputy Commissioner who had cancelled the Caste C ertificate earlier granted to the petitioner without the same being subjected to scrutiny by the Caste Scrutiny Committee as envisaged in Kumari Madhuri Patil ( supra). Mr. Choudhury has also placed reliance on a judgement of this Court in t he case of Pritam Rongpi vs. State of Assam and Ors., reported in 2008 (1) GLT 2 48, wherein, in a similar circumstance, this Court had observed that the dispute relating to Caste Certificate had to be considered by the Scrutiny Committee. 5. Mr. S. Borgohain, learned counsel for respondent Nos. 8 and 9 has submit ted that there was no compliance by the State of Assam of the Direction of the A pex Court, as given in the judgement rendered in Kumari Madhuri Patil (supra), t owards constitution of a Caste Scrutiny Committee as well as of the order of thi s Court in Pritam Rongpi (supra) and that the decision rendered by the Deputy Co mmissioner cannot be held to be arbitrary and illegal. He has submitted that the Caste Certificate of the petitioner was cancelled after affording due opportuni ty of hearing to the petitioner and by observing principles of natural justice a nd, therefore, no interference is called for with the order of the Deputy Commis sioner cancelling the Caste Certificate issued to the petitioner. He has further submitted that in the event this Court does not accept the contention that the cancellation of the petitioner’s Caste Certificate was not rightly done by the D eputy Commissioner, direction should be issued to the Government to constitute a Caste Scrutiny committee within a specified time-frame so as to ensure that the issue raised by the respondent Nos. 8 and 9 is dealt with and resolved within a definite time-bound period. 6. Mr. Borgohain has further submitted that in such eventuality, pending ad judication by the Caste Scrutiny Committee, the finding recorded by the Deputy C ommissioner, Golaghat should be allowed to prevail without, however, affecting t he service condition of the petitioner at the moment, subject to the finding of the Scrutiny Committee. 7. Mr. Phukan has submitted that in view of the report, it appears to the r espondent No. 7 does not belong to Bania Community and that the Caste Certificat e of the petitioner was rightly cancelled. He has also adopted the arguments of Mr. Borgohain. 8. Though the case was taken up on 14.7.2016 and five days had elapsed in t he meantime, it appears that Ms M. Goswami, learned State counsel has not receiv ed any instruction as to whether Caste Scrutiny Committee is in existence despit e arguments advanced by Mr. Borgohain on 14.7.2016 contending that there is no C aste Scrutiny Committee. In the affidavit filed by the respondent No. 1 also thi s aspect was not adverted to and in the said affidavit reliance is placed on the report of the Deputy Commissioner, Golaghat. 9. I have considered the submissions for the learned counsel for the partie s and also perused the materials on record. 10. However, it is to be noted that in Pritam Rongpi (supra) as it was submi tted before the Court that no Scrutiny Committee had been constituted, this Cour t had directed constitution of the Scrutiny Committee and Vigilance Cell within a period of 30 days from the date of receipt of the order. 11. This Court will have no reason to presume that the order of this Court, in Pritam Rongpi (supra), was not duly complied with. Yet, at the same time, thi s Court is not in a position to comment decisively as to whether as of today the re is a Scrutiny Committee. But mandate of law is that the State must have a Scr utiny Committee for scrutiny in respect of issuance and cancellation of social s tatus certificate. If there is no scrutiny committee, the State respondents will constitute a Scrutiny Committee within a period of one month from today. 12. The Apex Court in Paragraph 13(4) and 13(15) of Madhuri Patil (supra) ha d given the following directions: 4. All the State Governments shall constitute a Committee of three officers , namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Trib al Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tri bes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. *** *** *** 15. As soon as the finding is recorded by the Scrutiny Committee holding tha t the certificate obtained was false, on its cancellation and confiscation simul taneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a req uest to cancel the admission or the appointment. The Principal etc. of the educa tional institution responsible for making the admission or the appointing author ity, should cancel the admission/appointment without any further notice to the c andidate and debar the candidate from further study or continue in office in a p ost. 13. No doubt notice was issued by the Deputy Commissioner to the petitioner to show cause as to why his caste certificate should not be cancelled and the pe titioner was also afforded opportunity of hearing. However, in view of the decis ion rendered in Madhuri Patil (supra), I am of the considered opinion that disp ute relating to the caste of the petitioner has to be considered by the Caste Sc rutiny Committee. The Caste Scrutiny Committee shall decide the issue within a p eriod of three months from the date of constitution, if not already constituted. 14. I am not inclined to accept the submission of Mr. Borgohain that till th e decision is rendered by the Caste Scrutiny Committee, the decision rendered by the Deputy Commissioner, Golaghat should be allowed to prevail as it is the Cas te Scrutiny Committee which is the authority to decide the question as to whethe r the petitioner belongs to a particular caste or not. 15. In that view of the matter, the order dated 13.3.2008 passed by the Depu ty Commissioner Golaghat as well as the reports leading to the passing of the sa id order are quashed. 16. The respondent Nos. 8 and 9 are permitted to produce a certified copy of this order along with the copy of the complaints, i.e. Annexure-14 and Annexure -16 before the Caste Scrutiny Committee for necessary action in terms of this or der. 17. The petition is allowed as indicated above. No cost.