WP(C) 2258/2008 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY 1. Heard Mr. N. Dutta, learned senior counsel appearing for the petitioner. Also heard Mr. R.K. Bora, learned Government Advocate who appears for responde nts 1,2 & 10. Mr. P.J. Saikia, learned advocate appears for the respondents 4,5 & 6. The contesting respondent No.7 is represented by Mr. M.K. Choudhury, learne d senior counsel. Mr. P. Bayan, learned advocate appears for respondents 8 & 9. Respondent No.11 have intervened in the matter and filed counter affidavit. 2. This matter pertains to selection for allotment of an L.P.G dealership t o be commissioned at Chaygaon under the Bharat Petroleum Corporation Ltd. (herei nafter referred to as BHPL) and only schedule tribe category persons were eligib le to be considered for the said L.P.G. Distributorship. The petitioner Anjali M edhi claiming herself to be a Rabha , who are recognized as Scheduled Tribe (P) in the State, offered her candidature along with a certificate dated 11.11.90 c ertifying her status. There were other 21 applicants including respondent No.7 and following t he selection by the Dealer selection board, the list of successful candidates we re notified on 30.8.01, where the petitioner was enlisted at merit position 1 an d the respondent No.7 in position 2 in the said result notification. 3. At the instance of respondent No.7, the Guwahati District Committee of t he All Assam Tribal Sangha (hereinafter referred to Tribal Sangha) filed an obj ection on 30.8.01 against the selection of the petitioner by contending that the petitioner does not belong to the Rabha community and was therefore not entit led to claim Scheduled Tribe status. The petitioner responded to the objector and eventually by communication dated 2 0.2.02 the General Secretary of the Tribal Sangha informed the Deputy Commissio ner, Kamrup about a resolution taken by the Central Executive Committee of the T ribal Sangha in its meeting dated 10.2.02, wherein a resolution was adopted tha t the petitioner belongs to Schedule Tribe (P) Rabha community. 4. In the mean time on the basis of objections received on the social statu s of the petitioner, the Circle Officer of Palasbari Revenue Circle (respondent No.3) decided to enquire into the matter and accordingly a notice was issued on 21.9.01 by the Circle Officer, requiring the petitioner to contact the Circle Of ficer on 26.9.01 in connection with the objection raised against the petitioner. 5. It is averred by the petitioner that 26.9.01 being a holiday she could n ot meet the Circle Officer on the appointed date but could meet him on 28.9.01. It is averred that during her meeting with the officer, the Circle Officer Dines h Chandra Nath demanded a huge amount or a partnership in the dealership as ille gal gratification, for deciding the social status of the petitioner in her favou r. 6. At around the same time the petitioner also received a notice dated 18.1 0.01 from the Addl. Deputy Commissioner, Kamrup wherein the objection of the Gu wahati District Committee of the Tribal Sangha against the petitioner’s status a nd the supporting stand of the All Assam Tribal Sangha was referred to and the petitioner and the representatives of the 3 Tribal Sangha were asked to appear i n the office of the Addl. Deputy Commissioner on 22.10.01, so that appropriate i nquiry into the matter could be made. 7. It is averred that when the petitioner met the concerned Addl. Deputy Co mmissioner in his office on 20.10.01, she was informed by that Addl. Deputy Com missioner (one Shri Lahon) that another Addl. Deputy Commissioner namely one Jog esh Ch. Pathak had passed an order on the previous date i.e., 19.10.01 whereby i t was declared that the petitioner does not belong to the Scheduled Tribe ( Rabh a ) community. The petitioner avers that Mr. Pathak the Addl. Deputy Commissioner was not deali ng with her matter and had no authority to take up a case pending before another Addl. Deputy Commissioner, to render a decision against the petitioner particul arly without hearing her, and that too on a off date. 8. The petitioner filed a writ petition W.P.(C) No. 7751/01 to challenge th e order of the Addl. Deputy Commissioner dated 19.10.01. Simultaneously the respondent No.7 also filed a writ petition W.P.(C) 7736/01 wi th the claim that he should be granted the dealership, in view of the declaratio n that the petitioner is not a member of the Scheduled Tribe community. 9. In a parallel development purportedly on the basis of the objections rec eived on the social status of the petitioner from various organizations the Depu ty Commissioner, Kamrup on the report of the Circle Officer of Palasbari Revenue Circle (Respondent No.3) concluded that the petitioner has no right to claim tr ibal status and should be treated as an ’O.B.C’ with sub-caste ’Koch’ and accord ingly a communication was made by the Deputy Commissioner on 25.1.02 to the B.H. P.L authorities informing them that the Scheduled Tribe certificate granted in f avour of the petitioner be treated as cancelled. The petitioner filed a writ petition W.P.(C) No. 1496/02 to challenge th e aforesaid communication dated 25.1.02 of the Deputy Commissioner. 10. All the 3 writ petitions were taken up together and eventually this Cour t by order dated 4.1.05 concluded that the petitioner was not given any opportun ity to show cause or make submissions, before the adverse declaration on her Tri bal status was made and accordingly the writ petitions were disposed of with a d irection to the Deputy Commissioner (Rural), Kamrup to take a fresh decision and the contesting parties were also directed to be heard, before such a fresh deci sion was taken by the Deputy Commissioner. 11. After the Court’s order dated 4.1.05, the petitioner as well as the res pondent No.7 were asked to appear before the District Magistrate by a notice dat ed 4.3.05 issued by the A.D.M. and by an order dated 31.5.05 passed by the Deput y Commissioner, Kamrup, it was declared that the petitioner does not belong to a Scheduled Tribe community but to the Sarania Kacharies community and on the basis of such conclusion, the Schedule d Tribe certificate granted to the petitioner on 11.11.90, was declared to be in valid and the same was cancelled. 12. The petitioner filed W.P.(C) No. 4459/05 to challenge the Deputy Commis sioner’s order dated 31.5.05 where it was contended by the petitioner that the D eputy Commissioner in passing the order dated 31.5.05, did not take into account all the relevant documents. On the other hand it was contended on behalf of the respondent No.7 that the finding of fact arrived at by the authority on the bas is of the related materials should not be interfered with in exercise of writ ju risdiction. The learned Judge took note of the inquiry report dated 28.11.02 given by the Circle Officer, Palasbari Revenue Circle (Respondent No.3) wherein a conc lusion was drawn by the Circle Officer that the petitioner did not belong to the Rabha community. The court also took note of the communication dated 20.2.02 of the Tribal Sangha which supported the tribal status claimed by the petitioner . The Court further held that finding of fact arrived at by authority cannot be interfered with lightly, in exercise of writ jurisdiction in absence of any erro r apparent on the face of record. The learned Judge also recorded that the Court cannot be oblivious of th e stand of the Deputy Commissioner who took the decision on 31.5.05 to declare t hat the petitioner is not a member of the Scheduled Tribe community as she is a Sarania Kacharies and the fact that the Deputy Commissioner while taking the said decision against the petitioner had not taken note of the supporting commun ication dated 20.2.02 of the Tribal Sangha. Accordingly the leaned Judge by his order dated 14.3.08 directed the Dep uty Commissioner, Kamrup to consider the effect of Tribal Sangha’s supporting l etter on the adverse decision on the petitioner’s tribal status and it was furth er ordered that if in such circumstances it is found that there is justification for review of the Deputy Commissioner’s order dated 31.5.05, the same would be considered and ordered. The Court also directed that apart from the petitioner a nd the contesting respondent No.7 the representatives of the Tribal Sangha who issued the supporting letter dated 20.2.02 should also be heard by the Deputy Co mmissioner. 13. Following this Court’s order dated 14.3.08 in the 2nd round, notice to t he petitioner was accordingly issued on 10.4.08 by the Addl. Deputy Commissioner directing the presence of the parties on 18.4.08 before the District Magistrate . On the date fixed for hearing i.e. on 18.4.08 a letter was addressed to the Deputy Commissioner by the Tribal Sangha whereby the Deputy Commissioner was informed that the Tribal Sangha had in the mean time enquired into the social status of the petitioner at various levels and after such inquiry, it was intima ted that the Tribal Sangha had come to a conclusion that the petitioner has lost all the characteristics of a tribal and does not belong to the Rabha communi ty. 14. The petitioner filed a representation before the Deputy Commissioner sta ting that the change of stand of the Tribal Sangha vis-à-vis the petitioner, a s communicated through the letter dated 18.4.08 was not preceded by any inquiry for the adverse conclusion referred to in the said letter and accordingly it was claimed that the said letter dated 18.4.08 was issued by the Secretary of the S angha (respondent No.9) in his individual capacity and it could not be the organ izational stand of the sangha. 15. The Addl. Deputy Commissioner, Kamrup after receiving the petitioner’s c omplaint wrote on 24.4.08 to the General Secretary of the Tribal Sangha asking for a detailed report of the inquiries that the Sangha has claimed to have made, for reversing its earlier decision and stand on the tribal status of the petiti oner and the Sangha was also asked to furnish the evidence to show that the peti tioner was involved when such so called inquiries were made by the Tribal Sangha . 16. Most conspicuously, by the letter dated 7.5.08, 20 days after the cancel lation letter dated 18.4.08 written by the General Secretary (respondent No.9) o f the Tribal Sangha, the petitioner was informed that the Sangha is proposing t o conduct an inquiry into the caste status of the petitioner and accordingly she was asked to appear before in the office of the Sangha on 9.5.08 with all docum ents in support of her tribal status claim. 17. The petitioner responded to the notice issued by the respondent No.9 and it is averred that she appeared in the Tribal Sangha’s office on the first day i.e. on 9.5.08 when the hearing was adjourned to 13.5.08, when she again appear ed in the office of the Sangha on 13.5.08. It is averred in the writ petition that on 13.5.08, because of the differences a mongst the members of the Tribal Sangha, the hearing on the status of the petiti oner had to be abandoned and the petitioner was formally informed by the Secreta ry of the Sangha by letter dated 13.5.08 that the inquiry against the petitione r could not be done. 18 Subsequently a formal intimation was given on 13.5.08 by the General Sec retary of the Tribal Sangha that the resolution on 5.4.08 was adopted in the C entral Executive Committee Meeting in connection with the caste issue of the pet itioner. The said resolution dated 4.5.08 indicates that the decision that the petitioner is not a tribal was taken, on the basis of the understanding of the m embers of the Sangha that a person belonging to a Scheduled Tribe community loo ses her tribal status by change of her caste or religion and since the petitione r has converted and has become a Sarania Kacharies , she is not entitled to cl aim the status as a Scheduled Tribe person. 19. The resolution passed by Tribal Sangha on 4.5.08, the communication date d 13.5.08 made by the respondent No.9 with the Addl. Deputy Commissioner; the l etter dated 13.5.08 addressed by the respondent No.9 to the petitioner; and also the letter dated 7.5.08 addressed to the petitioner informing her about the pro posed inquiry by the Tribal Sangha on 9.5.08, were all subsequent developments after the adverse decision in the letter dated 18.4.08, withdrawing the earlier supporting letter dated 20.2.2002 was issued. Thus the conclusion recorded in the communication dated 18.4.08 by the Tribal Sa ngha, was not based on any other materials, beyond what was available before wh en Tribal Sangha issued the supporting letter dated 20.2.02 in favour of the pet itioner. It further appears from the communication dated 18.4.08 that the Sangha had also based its decision on the inquiry report dated 28.11.01 prepared by D. Nath (respondent No.3), who was the Circle Officer of Palasbari Revenue Circle on 28.11.01. 20. Mr. N. Dutta, learned senior counsel appearing for the petitioner submit s that the respondent No.3 despite being arrayed as respondent in the present pr oceeding has failed to answer to the averments made against him to the effect th at on 28.11.01, the Circle Officer demanded a bribe from the petitioner and on p etitioner’s refusal to meet his demand, he vindictively prepared an adverse repo rt on 28.11.01 by deliberately recording an incorrect and contrary version of th e local witnesses. It is pointed out by the learned senior counsel that the respondent No.3 to suit the adverse conclusion in his report dated 28.11.01 mischievously showe d that, Rameshwar Nath (old resident of the village of the petitioner) and Rames hwar Rabha (local Gaon Bura), had denied petitioner’s tribal status claim. The l earned counsel refers to the respective affidavits sworn on 5.4.08 and 31.5.08 o f Rameshwar Rabha (Annexure 29) and Rameshwar Nath to show that these 2 old res idents categorically stated that they supported the tribal status claimed by the petitioner, by making appropriate statements before the Circle Officer. But the inquiry officer out of sheer vindictiveness, made just the contrary recording o f their statements and prepared a perverse report to suit his mischievous agenda . Thus the basis on which the adverse report prepared by the Circle Office r, Palasbari Revenue Circle (respondent No.3) are demolished by the statement o n oath given by Rameshwar Rabha the Gaonbura and also by Rameshwar Nath the old resident of petitioner’s village, who knew several generations of the petitioner ’s family. The affidavits of these two persons contradicts the version as recorded by the Circle Officer, and accordingly Mr. Dutta contends that the Circle Office r prepared a biased report, as the petitioner did not entertain his claim for il legal gratification demanded on 28.9.01. I find Mr. Dutta’s submissions to be acceptable and declare that the sai d report dated 28.9.01 of the respondent No.3 is a perverse report and cannot be used for any purpose accept to perhaps draw up an appropriate proceeding agains t the author of the report. 21. The biased and wrong inquiry finding by itself would not have been cause so much concern for this Court but for the fact that, all the other State autho rities such as the Addl. Deputy Commissioner Jogesh Chandra Pathak while passing the order dated 19.10.01; the Deputy Commissioner for his communication dated 21.5.02 to the B.H.P.L. authorities and also the Tribal Sangha for issuing the communication dated 18.4.02, had relied upon this false and vindictive report da ted 28.11.01 of the Circle Officer, for reaching an adverse conclusion, on the t ribal status of the petitioner. 22. I find that the Government of Assam on 30.10.89 had issued a Circular wh erein it is indicated that if there is any doubt on the social status claimed by a reserved category person, the matter is to be enquired into independently by the Deputy Commissioner or S.D.O where special care has to be taken in case of c hange of surname and adoption of general caste title. The Circular requires reco rding of oral and documentary evidences, before a decision is taken on a complai n of doubtful caste status of a person. 23. From the materials on record, I find that all the authorities including the Tribal Sangha have based their conclusion against the tribal status claim of the petitioner, on the report of the Circle Officer, which does not inspire con fidence of this Court because of the previous interaction between the petitioner and the respondent No.3 on 28.9.01 and the allegations which have gone unrebutt ed. Under this circumstances, I am of the considered opinion that inquiry into t he status of the petitioner after complaints were filed, have not been made in c onsonance with the Government Circular dated 30.10.89. 24. Instead of clearing the cobwebs, the various orders of the State authori ties and the conclusions of the Tribal Sangha have added significantly to the co nfusion on the status of the petitioner. The Deputy Commissioner, in his letter dated 25.1.02 (Annexure 13) stated that the petitioner should be treated as an O BC with Subcaste Koch . In the order of the Deputy Commissioner dated 31.5.05 ( Annexure-17) the petitioner is declared to be a Sarania Kachari . By the impug ned order dated 26.5.08 (Annexure 28) the Deputy Commissioner reiterates the ear lier order dated 31.5.05. But the Tribal Sangha by letter dated 22.9.01 (Annexure-7) and 20.2.02 ( Annexure-14) says that the petitioner is a Rabha which stand is changed in th e later communication dated 18.4.08 (Annexure 21) where the petitioner is descri bed to have become a Koch from Rabha after taking Saran and therefor ot a Scheduled Tribe (P). Then the further stand of the Tribal Sangha as per res olution dated 4.5.08 (Annexure-27) that a tribal loses her status by change of C aste ( jyatantar ) and religion ( dharmantar ). These confusions are required to be resolved because even after 3 rounds of litigations and several enquiry proceedings, it is not possible to give a de finite conclusion on the social status of the petitioner. 25. From the family tree given by the petitioner at page 7 which can be extr acted herein for ready reference : Gadho Rabha Madha Ram Rabha (G.B.) Sadha Ram Rabha Dharmeswar Medhi / Bilati (wife) Anjali (Petitioner). it is apparent, that the petitioner and her forefather were Rabhas a r ecognized Scheduled Tribe (P) of the State. But her father took the surname Med hi which is not a tribal specific but a generic surname. Whether in such proces s the petitioner loses her tribal status or gets converted from Rabha to Koch community or Sarania Kacharis are matters which requires investigation on fa cts i.e. whether tribal practices have been abandoned to altogether loose the tr ibal identity. Issue of law is also involved as conversion is alleged. There has be a determination on these issues by a competent authority before a declaratio n on the claim of the petitioner can be made. 26. That takes us now to a vital question raised by Mr. M.K. Choudhury, lear ned senior counsel, as to whether in view of the order passed by this Court on 1 4.3.08 giving direction to the Deputy Commissioner to reexamine the matter, this Court can take note of all the above circumstances to declare that the impugned decision dated 26.5.08 of the Deputy Commissioner is unsustainable. 27. On careful reading of the said judgment dated 14.3.08, I find that there was no affirmative conclusion by the learned Judge on the social or caste statu s of the petitioner. What the Court recorded was that writ jurisdiction should n ot be lightly exercised to disturb a finding of fact given by the primary author ity. The Court also recorded that the error in the decision on facts must be app arent on the face of the record to justify interference by a Writ Court with suc h conclusion on fact. I also find that liberty was given to the Deputy Commissio ner to take an appropriate decision to review the earlier order passed on 31.5.0 5 against the petitioner, in the context of the stand taken by the Tribal Sangha . 28. Bearing in mind the aforesaid direction of the Court given on 14.3.08, w hen this Court finds that the decision has been taken by primary authorities lik e the Deputy Commissioner, the Addl. Deputy Commissioner and an interested party like Tribal Sangha on the basis of a perverse report dated 28.11.01 given by t he Circle Officer (Annexure A in Deputy Commissioner’s counter), it is apparent that the said factual decisions of the primary authorities have been vitiated an d the error of the decisions is apparent on the face of the record, since both R ameshwar Nath and Rameshwar Rabha, whose statements were made the basis for the Circle Officer’s conclusion for his report on 28.11.01, have categorically state d that during the enquiry by the Circle Officer, they supported the tribal statu s claim of the petitioner, notwithstanding the change of surname by the father a nd some other relatives of the petitioner. 29. Having concluded as above, I find that the exercise ordered to be carrie d out by this Court by the judgment and order dated 14.3.08, was not carried out properly in terms of the Court’s direction as I find that the 2nd letter dated 18.4.08 of Tribal Sangha to withdraw the petitioner supportive 1st letter dated 20.2.02 was issued, without there being any inquiry or fresh material and only o n the basis of the afore-noted perverse enquiry report of the Circle Officer (re spondent No.3). 30. It is also seen that although this Court gave direction on 14.3.08 to th e Deputy Commissioner to hear the petitioner as well as the contesting party, th e Deputy Commissioner, as can be seen from the communication dated 24.4.08 and a lso from the various communications of the respondent No.9, decided to delegate the said responsibility of hearing to the Tribal Sangha and no hearing was affor ded to the petitioner by the Deputy Commissioner himself, before the impugned de cision was rendered on 26.5.08 (Annexure 28). 31. In the above view of the matter, I find enough justification to interfer e with the said order of the Kamrup Deputy Commissioner, which I hereby do. 32. After pronouncement of the above order in open court, Mr. R.K. Bora, lea rned Government Advocate has produced a Notification dated 18.5.09 issued by the Commissioner Secretary to the Government of Assam, W.P.T & D.C. Department to s how that the Assam Government has now constituted a State Levels Scrutiny Commit tee, for verification of the social status of reserved category persons, as per the order passed by the Supreme Court in Kumari Madhuri Patil vs. Addl. Commissi oner, Tribal Development reported in (1994) 6 SCC 241 and he submits that in view of the quashing of the findings recorded by the Deputy Commissioner, the st atus of the petitioner should be referred to for inquiry and verification before the State Level Scrutiny Committee constituted by the Notification dated 18.5.0 9. 33. Normally when the exercise earlier ordered by the Court on 14.3.08 is he ld to have been inappropriately exercised the fresh scrutiny should be by the ve ry same authority. But at the time of Court’s earlier order, no State Level Scr utiny Committee was notified as per order of the Supreme Court, and such matters were being examined by the DCs and SDOs. But now that a State Level Scrutiny Committee has been constituted to specifical ly to deal with such matters, the views