A. Pasayat, J.:— Petitioner challenges legality of the action taken by the Tahasildar, G. Udayagiri (opposite party No. 2) in cancelling the caste certificate issued to the petitioner under the Orissa Caste Certificate (for Scheduled Caste and Scheduled Tribe) Rules, 1980 (in short ‘Rules’) in R.M.C No. 1234 of 1989 dated 19-10-1989. From the impugned order dated 26-9-94 we find that on the basis of certain allegations received, stating that the actual caste of the petitioner, was not Gond an inquiry was conducted by the Tahasildar and relying on certain social relationships as revealed from the statements of certain persons, caste of the petitioner was taken to be ‘Guna’ which is a general caste and not ‘Gond’ which is relatable to Scheduled Tribe. According to Mr. P. Palit, learned counsel for the petitioner, the petitioner was not afforded adequate opportunity to present his case before cancellation of the certificate.

2. Pursuant to the direction given by this Court, the records of R.M.C No. 1234 of 1989 were produced. We find from the record that certain statements have been recorded and in fact, statement of Sridhar Nayak, father of the petitioner was one of them. The records do not reveal that the statements recorded were brought to the notice of the petitioner so that he could have got an opportunity to have his say in the matter. Though he participated in the proceeding, he was not given opportunity to substantiate that he is ‘Gond’ by caste.

3. ‘Gond’ undisputedly is one of the castes belonging to Scheduled Tribes as specified in the Constitution (Scheduled Tribes) Order, 1950 (for short ‘the order’). Before the Rules came into operation, the Members of the Legislative Assembly were competent to issue caste certificate relating to the caste of a particular person.

4. The preamble to the Constitution promises to secure to every citizen social and economic justice, equality of status and of opportunity assuring the dignity of the individual. The Scheduled Tribes are inhabitants of intractable terrain regions of the Country, kept away from the main stream of national life and with their traditional moorings and customary beliefs and practices, they are largely governed by their own customary Code of Conduct regulated from time to time with their own rich cultural heritage and ethos. Scheduled Tribes are a nomadic class of citizens whose habitals are generally hilly regions or forests, and this results in their staying away from the main stream of the national life. The Constitution, therefore, enjoins to provide facilities and opportunities for development of their economic and educational standards. Though the social status certificates or caste certificates as they are generally called provide the basis for admission into educational institutions, and for getting benefits on reservations like entry into service earmarked for the persons belonging to Scheduled Castes and Scheduled Tribes, admission wrongly gained or appointments wrongly obtained on the basis of such certificates have the effect of depriving the genuine Scheduled Castes, Tribes or other backward candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are denied of the benefits for want of caste certificate. The Supreme Court took note of these aspects and in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, AIR 1995 SC 94, has stressed upon the desirability of a Screening Committee and for streamlining the procedure for issuance of a social status certificate. In the said case fifteen requirements have been indicated.

5. As was observed by the Supreme Court in N.K Hero v. Smt. Jahan Ara Jaipal Singh, AIR 1972 SC 1840, the moot question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation. With reference to the illustrious book ‘Races and Cultures of India’ by D.N Mazumdar, it was observed that the definition is found in the current literature on the subject as given in the Imperial Gazetteer. A tribe is a collection of families bearing a common name, speaking common dialect, occupying or professing to occupy a common territory and is not usually endogamous though originally it might have been so. Endogamy is an essential feature of the tribe though inter-tribal marriages are breaking the limits of the endogamy. It was further stated in the Book that the importance of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance, it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions. Tribal customs and practices which established social life lose their value and the choice of leader and of mate is guided by different considerations. It was further observed that the Munda tribe cannot be said to be immune from the above process of change in their social organisation. Changes in their belief, customs, traditions and practices have taken place under the influence of Hinduism, and Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of communication. The sense of individualism and lack of love for the traditional Code of Conduct and social taboos are stated to be apparent among the emerging urban-industrial oriented adivasi communities. It was indicated that the endogamy of the tribe is not sacred today, with the result that many marriages have taken place between the Hos and other tribes. Liaison between Dikumen and no girls is increasing.

6. It has to be borne in mind that the broad and recognised features of the heirarchial social structure prevalent amongst the Hindus is that what might have been the origin of the Hindu castes and tribes in ancient times gradually status came to be based on birth alone. A person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status.

7. Article 342(1) of the Constitution empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union Territory, as the case may be. In Parts 1 to 12 of the Schedule to the order are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities, who are to be deemed to be Scheduled Tribes. The term ‘tribal community’ has a wider connotation than the expression ‘tribes’. A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. These aspects were highlighted by this Court in Ismile Guru… v. State Of Orissa…Opposite Parties. represented by the Secretary, Revenue Department, 1995 (II) Orissa LR 126.

8. The relevant aspects have not been considered by the Tahasildar. The records of the Tahasildar do not show that the statements recorded relying on which the Tahasildar passed the impugned order were brought to the notice of the petitioner. It is a salutary requirement of the principles of natural justice that materials to be relied upon should be disclosed to him. It is a vital requirement of natural justice to disclose by way of confrontation. The material collected and proposed to be used against a person. The person affected must have a reasonable opportunity of being heard, and the hearing must be a genuine one and not an empty formality. Essential characteristic of natural justice is put by Romans in two maxims: (1) Nemo judex in causa sua and (2) audi alterm partem, which respectively mean (i) no man can be a Judge in his own cause and (ii) hear both sides. As Lord Denning observed, justice must be rooted in confidence, and confidence is destroyed when right minded people go away thinking “the Judge was biased”, must be felt to be just by the community if democratic legality is to animate the rule of law. If the invisible audience sees a man's case disposed of unheard, a chorus of “no confidence” will be heard to say “the man had no chance to defend his stance”, justice should not only be done but should manifestly seen to be done.

9. It was strenuously urged by the learned counsel for the State that the provision for appeal in term of Rule 9 is provided. But the basic facts were not taken into consideration by the Tahasildar, we feel fresh adjudication is to be done by him. The Tahasildar shall readjudicate the matter keeping in view of the guidelines indicated by the apex Court in Kumari Madhuri Patil's case, AIR 1995 SC 94 (supra). The State is directed to take such steps forthwith as directed by the apex Court in the said case. The petitioner shall be granted due opportunity to place materials on record in support of his stand and if he so desires the persons whose statements, have been recorded shall be tendered for cross-examination. The impugned order dated 26-9-1994 vide Annexure 1 is quashed, and the matter is remitted back to the Tahasildar for fresh consideration as directed above.

The writ application is allowed to the extent indicated above. No costs.

P.C Naik, J.:— 10. I agree with brother Pasayat, J. that the impugned order (Annexure-1) should be quashed and the matter remitted to the Tahasildar for a fresh adjudication keeping in view the guidelines indicated by the Apex Court in Kumari Madhuri Patil's case.

11. In view of the reservations for persons belonging to the scheduled castes and scheduled tribes in educational institution, whether general or professional and in the field of employment, the issuance of a caste certificate or the social status certificate as it is now termed, assumes importance. In view of the privileges which flow on the grant of this certificate, it becomes necessary for the issuing authority to view the matter of grant of certificate not lightly as is usually such, but with care and caution. A wrong certificate may enable the possessor thereof to enjoy privileges to which he may not be otherwise entitled. Likewise, a casual refusal of the certificate to one who is really entitled to it, will deprive him of the advantages and benefits to which he is otherwise entitled. It is for this reason that a proper inquiry is to be conducted by the authority vested with the power to grant such certificate.

12. Instances are not rare where persons have been granted such certificates though they are really not members of the scheduled caste or scheduled tribe and yet, on the basis of the certificates have obtained benefits which really were not available to them. If such instances come to light and the authority considers it proper to take steps for cancelling the certificate which was wrongly granted, it can certainly do so for cogent reasons provided it serves notice calling upon that person to show cause and hears him in defence. It follows that the inquiry should be fair and should not be behind the back of the person who is likely to be affected by the order. This becomes necessary in view of the basic principles of natural justice which require that a person who is to be affected should be heard. As we are in a society which is governed by the rule of law, principles of natural justice, these basic rules, have to be observed and an action contrary to these basic principles has to be annulled. In the case at hand, the learned Tahasildar failed to observe these basic principles with the result his order has to be annulled giving him leave to reconsider the question after giving a proper and fair opportunity of hearing to the petitioner. It may be clarified that an opportunity of hearing must be full, fair and effective and not an empty formality. To be fair implies that if any material is collected behind the back of the person proceeded against, he must be informed about it. If evidence is to be recorded, it should be in presence of the person affected, and above all, the person must have full opportunity to put forward his case, if these principles are not observed, action will not be sustained and will have to be annulled as is done in the instant case.

13. The Tahasildar will do well to redetermine the question in the light of our observations.

Order accordingly.