1. I have heard Mr. D.K. Biswas, the learned counsel for the writ petitioner. Also heard Mr. B. Das, learned senior counsel for the State-respondent and Mr. K.N. Bhattacharjee, the learned senior counsel for the private respondents.
2. The dispute at hand relates to a question whether the writ petitioner Smti Sushama Chettri belongs to 'Lepcha' Community or not. Her admission to the Medical College against seats reserved for Scheduled Tribes Community was challenged in Writ Petition No.WP(C) 365 of 2000 filed by Smti Pallavi Debbarama. The aforesaid writ petition was disposed of by the judgment and order dated 11th August, 2000 taking note of the decision of the Supreme Court in para 10 of the judgment in Director of Tribal Welfare, Govt. of Andhra Pradesh, v. Laveti Giri and another reported in AIR 1995 SC 1506. The said Civil Rule was disposed of with the following direction:-
'8. Accordingly, I dispose of the interim matter with a direction to the authority concerned to allow the nomination of the respondent No. 5, Smti Sushma Chetri for admission to the aforesaid college and her admission shall be subject to the final result of the enquiry by the competent scrutiny Committee.'
3. In pursuance of the aforesaid direction an order was made by the Sub-Divisional Officer, Sadar, wherein it was held that the writ petitioner Smti Sushama Chettri belongs to Lepcha Community which is Scheduled Tribe Community as per Presidential notification. Thereafter, the Secretary to the Government of Tripura in the Tribal Welfare Department by order dated September 8, 2000 reviewed the decision of the Sub-Divisional Officer suo motu and reversed the finding of the Sub-Divisional Officer declaring the writ petitioner as a member of Nepali Community and further that she does not belong to Lepcha Community.
4. In this writ petition, the order passed by the Secretary reviewing the order of the Sub-Divisional Officer is in Challenge.
5. Mr. Biswas, the learned counsel for the writ petitioner has submitted that the Secretary, Tribal Welfare Department has no jurisdiction either to issue certificate at the first instance or to re-call it by way of review. The decision of the Sub-Divisional Officer who is the competent authority to issue Caste Certificate is final. Mr. Biswas pointed out that the Secretary had exercised the powers of review delegated to him by the Governor of Tripura in exercise of powers under Section 11 (5) of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1991, which has no relevance to dispute at hand.
6. The Act of 1991 as amended in the year 1997 nowhere provides for delegation of any powers under the Act to any officer of the State, not to speak Of the powers of review a certificate issued by the competent authority. Moreover, the Act in question was enacted by the State Legislature with a view to provide for reservation of vacancies in services and posts for the members of the Scheduled Castes and Scheduled Tribes Communities. Therefore, ex facie the order of review under challenge in this writ petition passed by the Secretary in the Tribal Welfare Department appears to be without authority of law.
7. It may be reiterated here that the earlier Writ Petition was disposed of with a direction to the respondents to get the matter enquired into by the competent Scrutiny Committee. The expression 'Scrutiny Committee' was drafted from the judgment of the Supreme Court in Director of Tribal Welfare (supra) referred to above. It is considered pertinent to refer to an earlier judgment of the Supreme Court in
Kumari Madhuri Patil and Anr., Appellants v. Addl. Commissioner, Tribal Development and Ors.. Respondents reported in (1994) 6 SCC 241. In a similarly situated case, for resolution of the dispute, the Supreme Court in para 13 prescribed the procedure to be adopted. Relevant excerpt from para 13 is as below:-
'13 * * * * * * * * * * ************* For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the
following: -
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidates, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castesl and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally haiis from the other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director. Social Welfare/Tribal Welfare/Backward Glass 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 Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.'
8. The decision quoted above provides the composition of the Scrutiny Committee and the procedure which obviously have not been followed in the instant case. I have, therefore, no hesitation to hold that the impugned order dated September 8, 2000 being contrary to law laid down by the Supreme Court cannot but be set aside.
9. At this stage, Mr. B. Das, learned senior counsel pointed out a judgment of the Supreme Court in the case of State of Maharashtra v. Milind arid Ors. reported in 2000 AIR SCW 4303. The ratio available in the said judgment is that neither the State Government nor the Court or any Tribunal has any power to add to, or delete anything from the Presidential notification.
In the instant case, we are not dealing with any question for addition or deletion of any Community from the Presidential notification.
10. However, the fact remains that in view of the judgments referred to above, the order under challenge has to be quashed by a writ of Certiorari.
11. In the result, the writ petition is allowed and the order dated September 8, 2000 passed by the Secretary to the Government of Tripura, Tribal Welfare Department is hereby quashed. In consequence, the finding given by the Sub-Divisional Officer about the status of the writ petitioner stands revived.
12. Subject to the above observations and directions, this writ petition stands disposed of.