Jharkhand High Court
Smt. Priyanka Kumari vs Deputy General Manager (Human ... on 21 April, 2020
Equivalent citations: AIRONLINE 2020 JHA 130
Author: H.C. Mishra
Bench: H. C. Mishra, Deepak Roshan
L.P.A. No. 97 of 2016
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 97 of 2016
With
I.A. No.1422 of 2017
Smt. Priyanka Kumari ..... ... Appellant
Versus
1. Deputy General Manager (Human Resources),
I.D.B.I. Bank Limited, Mumbai.
2. Branch Head, IBDI Bank Ltd. Ranchi.
3. Secretary,
Personnel Administrative Reforms & Rajbhasha Department,
Government of Jharkhand, Ranchi.
4. Sub-Divisional Magistrate, Sadar, Ranchi.
5. Circle Officer, Namkum, Ranchi.
6. Ministry of Social Justice & Empowerment,
Government of India, New Delhi.
7. Chairman,
National Commission for Backward Classes,
Ministry of Social Justice & Empowerment, New Delhi.
8. Member Secretary,
National Commission for Backward Classes,
Ministry of Social Justice & Empowerment, New Delhi.
9. Member Secretary,
State Commission for Backward Classes, Ranchi. ... Respondents
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For the Appellant : Mr. Manoj Tandon, Advocate.
For the IDBI Bank : Mr. J.K. Pasari, Advocate.
For the Respondent-State : Mr. Rahul Kumar Gupta, Sr. S.C.-I.
For the UOI : Mr. Madan Prasad, C.G.C.
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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C.A.V. on 17.03.2020. Pronounced on 21.04.2020.
H.C. Mishra, J.:- Heard learned counsel for the appellant, learned counsel for the respondent-IDBI Bank, learned counsel for the State of Jharkhand as also learned counsel for the Union of India.
2. The appellant is aggrieved by the impugned Judgment dated 20.11.2015, passed by the Hon'ble Single Judge, in W.P.(S) No. 1369 of 2011, whereby the writ application, filed by the appellant writ petitioner, challenging the order dated 22.2.2011, terminating her service from the respondent Bank, has been dismissed by the Writ Court.
3. The facts of this case are that the appellant, who belongs to Roniyar (Baniya) caste falling in OBC category, was appointed on contractual basis on the post of Executive, in IDBI Bank Limited, in the L.P.A. No. 97 of 2016 -2- month of November 2007, on the basis of her caste certificate, issued by the S.D.O., Sadar, Ranchi. Her contract was renewed on annual basis by the Bank and she served as an Executive in the respondent Bank up to November, 2010, while she was posted at Ranchi. Pursuant to an advertisement published by the respondent Bank, allowing the Executives working on contractual basis to appear in the selection process for appointment on substantive basis, she appeared in the selection process and was selected for the post of Assistant Manager Grade-A in the respondent Bank. The appointment letter was issued to her, appointing her to the said post by the respondent-Bank on 01.11.2010, which has been brought on record as Annexure-2/1 to the memo of appeal. In the appointment letter, it was stated that for joining the post, she had to give resignation from the post of Executive, on which she was working on contractual basis. It was also stated in the appointment letter that in case her caste certificate did not contain the caste name as per the list of the Government of India, her joining in the Bank would not be considered.
4. Pursuant to her appointment, the appellant resigned from her contractual post of Executive on 18.11.2010 and she joined her post of Assistant Manager Grade-'A' on 1.12.2010. It may be stated that the appellant had been appointed, on the basis of her caste certificate issued in the year 2007 itself, on the basis of which she was appointed on contractual post of Executive. Similar caste certificate was again issued to the appellant on 18.12.2010, again showing her to be belonging to Roniyar (Baniya) caste.
5. Suddenly the service of the appellant was terminated by order dated 22.02.2011, as contained in Annexure-4 to the memo of appeal, stating that her caste 'Roniyar (Baniya)' was not appearing in the Central List of OBCs for the State of Jharkhand, as per the Notification dated 18.08.2010, issued for the State of Jharkhand by the Ministry of Social Justice and Empowerment, Government of India, and accordingly, the candidates belonging to Roniyar (Baniya) caste from Jharkhand would not be entitled to any relaxation under the OBC category.
6. It may be stated that on the same very ground, the service of one other employee namely, Jitu Prasad, who was also a resident of the State of Jharkhand and also belonged to the same caste Roniyar (Baniya), was also terminated by the respondent Bank by order dated 22.02.2011 L.P.A. No. 97 of 2016 -3- itself. At the time of termination, while the appellant was posted in the Ranchi Branch of the respondent Bank, Jitu Prasad was posted at Jabalpur Branch in the State of Madhya Pradesh.
7. Aggrieved by the termination order, the appellant preferred a writ application in this Court, being W.P.(S) No. 1369 of 2011, whereas the aforesaid Jitu Prasad preferred his writ application in the High Court of Madhya Pradesh, in W.P. No. 6440 of 2011. The writ application preferred by Jitu Prasad was allowed by the Madhya Pradesh High Court, vide Judgment dated 06.02.2012, quashing his order of termination dated 22.11.2011, and directing the respondent Bank to reinstate him in service with all consequential benefits. It is not in dispute that the aforesaid Judgment of Madhya Pradesh High Court was not challenged by the respondent Bank and Jitu Prasad was reinstated in service of the Bank with all consequential benefits vide Office Order No. 1432 dated 22.06.2013.
8. The appellant's writ application however, upon adjudication by the Writ Court, was dismissed by the impugned Judgment dated 20.11.2015. While dismissing the writ application, the Hon'ble Single Judge has also taken note of the Judgment passed by Madhya Pradesh High Court in Jitu Prasad's case. The Hon'ble Single Judge has concluded that the caste 'Roniyar (Baniya)' was not included in the Central List of OBCs for the State of Jharkhand at any point of time, and accordingly, there was no illegality in the termination of the service of the appellant writ petitioner. The relevant portion of the Judgment passed by the Writ Court, giving the reasons for dismissing the writ application is reproduced herein below:-
"11. After hearing the counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has not been able to make out a case for interference due to the following facts, reasons and judicial pronouncements:
(I) That the services of the petitioner has been terminated vide order dated 22.02.2011 (Annexure-4 to the writ application) on the ground of non-possession of OBC Certificate in the Central list and the impugned order of termination is in consonance with Clause IV of the offer of appointment dated 01.11.2010, wherein it has been clearly L.P.A. No. 97 of 2016 -4- stated that the joining would not be considered if the caste certificate does not contain the caste name as per the list of Government of India. Admittedly, on the date of termination of order, the petitioner did not have the caste certificate of the Government of India, therefore, as per the terms and conditions of the offer of appointment, the services of the petitioner has been dispensed with which cannot be construed to be illegal or arbitrary.
(II) The contention advanced by the counsel for the petitioner is that the case of the petitioner stands on the same footing like that of Jitu Prasad, whose termination order has been passed by the Hon'ble High Court of Madhya Pradesh at Jabbalpur in W.P.(S) No.6440 of 2011 vide order dated 06.12.2012. Since, the said Jitu Prasad also belongs to Roniyar (Bania) caste as that of petitioner, and as per doctrine of parity, the petitioner is covered by the decisions of the said Jitu Prasad. As per reply affidavit dated 03.03.2015 filed on behalf of respondent nos.7 and 8 i.e. NCBC to the third supplementary affidavit of the petitioner, wherein it has been submitted that the caste notified for the State of Jharkhand is Roniyar and not Roniyar (Bania) and the same does not appear in the State of Madhya Pradesh and the caste Roniyar is not included in the State of Jharkhand or Madhya Pradesh at any point of time. Therefore, as per the terms and conditions of the offer of appointment, the respondents have terminated the services of the petitioner for not possessing the caste certificate of Backward Classes under Central list, the case of the petitioner is not covered by the aforesaid decisions. Therefore, the question of granting benefit to the petitioner on the ground of parity is not legally sustainable.
(III) Admittedly, while issuing the offer of appointment dated 01.11.2010, wherein it was mentioned in Clause 9 (III) that the appointment of the petitioner is provisional and is subject to the community certificate being verified through the proper channels, and if the verification reveals that your claim belonging to other backward classes is false, then her services L.P.A. No. 97 of 2016 -5- will be terminated without assigning any further reason. (IV) Moreover, as per Annexure-1 to the writ petition, the certificate issued by the State Government in which the petitioner belongs to Roniyar (Baniya) whereas in the affidavit dated 03.03.2015, the Ministry of Social Justice and Empowerment, vide resolution dated 08.12.2011 (Annexure-
R-A/1) the name of Roniyar has been mentioned and not Roniyar (Baniya) even otherwise also the petitioner cannot take the benefit of resolution dated 08.12.2011, since she belongs to Roniyar (Baniya) and not Roniyar as per Annexure-1 to the writ application."
9. The stand of the respondent-Bank is that since the caste 'Roniyar (Baniya)' is not there in the Government of India's Notification dated 18.10.2010, the caste certificate submitted by the appellant was of no value, and accordingly, the appellant could not be continued in the service of the respondent Bank, even though she was earlier appointed and continued in service on contractual basis, on the basis of the same caste certificate.
10. It may be stated at this place that the caste 'Roniyar' was there in the Central Government's list of OBCs for the unified State of Bihar, on the basis of which, the earlier caste certificate was issued to the petitioner in the year 2007, showing her to be belonging to 'Roniyar (Baniya)' caste, and she was also appointed on that basis. After the bifurcation of the State of Bihar, in the year 2000, the Central Government notified the list of OBCs for the State of Jharkhand on 18.8.2010, in which the caste 'Roniyar' was not there, but subsequently, the Central Government again notified the list of OBCs for the State of Jharkhand in the Gazette of India on 08.12.2011, in which the caste 'Roniyar' was included again. This was done pursuant a letter dated 24.09.2010 issued by the State Commission for Backward Classes (for short 'SCBC'), to the National Commission for Backward Classes(for short 'NCBC'), and the recommendations made by the NCBC to the Union of India, in the Ministry of Social Justice & Empowerment.
11. Learned counsel for the appellant writ petitioner submitted that the impugned Judgment, passed by the Hon'ble Single Judge, cannot be L.P.A. No. 97 of 2016 -6- sustained in the eyes of law, inasmuch as, the Hon'ble Single Judge has taken into consideration the contention that in the notification dated 08.12.2011, issued by Ministry of Social Justice and Empowerment, Government of India, though caste 'Roniyar' was included in the list of Backward Classes by the Central Government, but the caste 'Roniyar (Baniya)' was never notified by the Central Government. The Hon'ble Single Judge accordingly, concluded that the writ petitioner was not having the valid caste certificate, on the date of her appointment. Learned counsel has pointed out that even in the earlier list of OBCs, issued by the Central Government, it was only caste 'Roniyar', which was shown in the Central List at serial No. 119 along with other castes belonging to 'Baniya' community. It is also submitted that after the bifurcation of the unified State of Bihar, the same list continued till 18.10.2010, when the list for OBCs was published by the Central Government, in which, the caste 'Roniyar' was not shown inadvertently. The petitioner also made representations and even the matter was taken up by the SCBC with NCBC, and on the recommendations of the NCBC, the caste 'Roniyar' was included in the Central List of OBCs on 08.12.2011. Learned counsel for the appellant, accordingly, submitted that for all practical purposes, it has to be treated that the caste 'Roniyar' was throughout there in the Central List of OBCs, and the caste certificate of the appellant could not be doubted and her services could not be terminated on that ground.
12. It is also submitted by learned counsel for the appellant that the other officer, who also belonged to the same caste, and whose service was also terminated by order dated 22.11.2011 by the respondent Bank, had approached the Hon'ble Madhya Pradesh High Court in W.P. No. 6440 of 2011, which was allowed by the Hon'ble Madhya Pradesh High Court on 6.12.2012, holding that if there was any doubt upon the caste certificate, the validity thereof had to be examined by the High Power Screening Committee, as held by the Hon'ble Apex Court in Madhuri Patil Vs. Additional Commissioner, Tribal Development and Others, reported in AIR 1994 SC 94. The Madhya Pradesh High Court held that this having not been done and the caste certificate issued in favour of that petitioner by the competent authority having not been cancelled at any point of time, merely because the description was not there in the list for the time being, the L.P.A. No. 97 of 2016 -7- termination of service of the employee was not justified. It is submitted by the learned counsel for the appellant that pursuant to the aforesaid order, said Jitu Prasad has been reinstated in service of the respondent Bank with all consequential benefits, and in that view of the matter, the appellant is also entitled to the same benefits.
13. Per contra, learned counsel for the respondent Bank has submitted that there is no illegality in the impugned Judgment passed by the Hon'ble Single Judge, inasmuch as, the caste of the appellant 'Roniyar (Baniya)' was never mentioned in the Central List of OBCs in the unified State of Bihar, and even when the Central List was published for the State of Jharkhand on 18.8.2010, the caste 'Roniyar' was not there in the list of OBCs. Even in the Central List of OBCs, published for the State of Jharkhand on 08.12.2011, the caste 'Roniyar (Baniya)' is not there in the list, and accordingly, the caste certificates issued to the appellant were not the valid caste certificates. Learned counsel, accordingly, submitted that there is no illegality in terminating the service of the appellant, as the caste of the appellant 'Roniyar (Baniya)' was never mentioned in the Central List of OBCs.
14. Learned counsel for the State has also opposed the prayer and has submitted that in the unified State of Bihar, the Central List of OBCs was published, in which, the caste 'Roniyar' was there between the castes 'Halwai' and 'Pansari', along with other castes / communities. It is submitted by learned counsel for the State that after the bifurcation of the State of Bihar, in the Central List of OBCs, published by the Central Government on 18.8.2010, the caste 'Roniyar' was left out, and the matter was taken up by the SCBC with the NCBC, pursuant whereto, the caste 'Roniyar' was again included in the Central List of OBCs, by notification issued on 08.12.2011. Though, learned counsel for the State has submitted that in both these lists, the caste 'Roniyar (Baniya)' was not there, but it is admitted that it is nobody's case that 'Roniyar' and 'Baniya' are two different castes and there was no such statement in the counter affidavit, filed on behalf of the State of Jharkhand before the Writ Court.
15. Learned counsel for the Union of India has also submitted that the caste 'Roniyar (Baniya)' was not there in either of the Central Lists, published for the unified State of Bihar, or even for the State of Jharkhand. It is admitted by learned counsel that in the subsequent list, published L.P.A. No. 97 of 2016 -8- on 08.12.2011 by the Central Government, the caste 'Roniyar' was included pursuant to the recommendations, made by the SCBC, followed by the recommendations of the NCBC. It is, also admitted by learned counsel that in the counter affidavit of the Union of India also, it is not specifically stated that caste 'Roniyar' and 'Baniya' are two different castes.
16. Having heard learned counsels for the parties and upon going through the record, we find that for proper appreciation of the case, the statements made in the counter affidavit filed on behalf of the NCBC before the Writ Court, needs to be taken into consideration. The following statements were specifically made in Paragraph-1 of the said counter affidavit, which are as follows:-
"F. The caste "Roniyar" appears as item No. 119 in the Central List of OBCs for the State of Bihar.
G. The Commission headed by Hon'ble Mr. Justice S. Ratnavel Pandian in their Advice dated 27.07.2008 had decided the basis for preparation of the Central List of OBCs for the State of Jharkhand which is as follows:-
"Since the Central List of OBCs for the Bihar was framed on the principle of Commonality and the newly formed Jharkhand State was a part of erstwhile Bihar and the Bihar List of OBCs was also in force earlier in Jharkhand, it implies that all the castes/communities, who are residing in Jharkhand and the castes/communities which appeared in the Central List of Bihar enjoyed the benefit of OBCs".
H. As per the above decision, automatically all castes which were shown in the Central List of OBCs for the State of Bihar ought to have been included in the Central List of OBCs for the State of Jharkhand. It appears that due to wrong understanding of the principle certain castes have not been included and the note was put up for approval before the Commission and signature of the Hon'ble Chairman and Hon'ble Members were obtained on the advice.
I. Thereafter it was brought to the notice of the Commission that some castes were left out, the Commission had taken the decision vide Advice No. 4/Jharkhand/2010 dated 12th October, L.P.A. No. 97 of 2016 -9- 2010 that- "In view of the fact that the Central List of OBCs for Bihar was framed on the basis of Principle of Commonality and the newly formed Jharkhand State was a part of erstwhile State of Bihar and the Central List of OBCs for Bihar was also in force in Jharkhand, it implies that all the castes / communities which appeared in the Central List of OBCs and were resident of Jharkhand were earlier enjoyed the benefits of OBCs. It will be injustice if the castes / communities, which were earlier listed in the Central List of OBCs of the undivided State of Bihar and had availed the benefit of reservation now do not find place in the Central List of OBCs".
The NCBC accordingly in respect of State of Jharkhand has sent its advice to the Central Government under Section 9(1) of the Act Advice No. 4/Jharkhand/2010 dated 12th October, 2010. A copy of the Advice No.4/Jharkhand/2010 dated 12th October, 2010 is annexed herewith as Annexure R-1. J. Subsequently, the petitioner requested respondent NCBC vide representation dated 3.3.2011 for inclusion of her caste "Roniyar (Baniya)" in the Central list of OBCs for the State of Jharkhand.
K. The caste claimed by the petitioner is 'Roniyar (Baniya)' which was not in the original Central list of Bihar. What the Central OBC list of Bihar contained at Sl. No. 119 is "Roniyar" without the addition of (Baniya). The NCBC in its advice tendered to the Central Government on 12.10.2010 requested for inclusion of "Roniyar" besides certain other castes.
L. The respondent / NCBC already has taken a decision that all the castes which figured in the Central List of the parent State (undivided State of Bihar) must automatically be included in the Central List of the newly formed State of Jharkhand which was earlier part of the parent State. This is the correct legal position according to Respondent / NCBC."
17. Thus the statements made in the counter affidavit filed before the Writ Court by the NCBC, clearly show that all the castes / communities L.P.A. No. 97 of 2016
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which appeared in the Central List of OBCs for the unified State of Bihar, were to be necessarily shown in the Central List of OBCs for the newly created State of Jharkhand as well, and it would be an injustice, if the castes / communities, which were earlier listed in the Central List of OBCs of the unified State of Bihar, were denied the same benefits in the State of Jharkhand after bifurcation. It was not done due to some wrong understanding, and upon being pointed out, it was decided that all the castes / communities, which figured in the Central List of the parent State, i.e., the undivided State of Bihar, were included in the Central List of the newly formed State of Jharkhand.
18. In that view of the matter, we subscribe to the view of the Hon'ble Madhya Pradesh High Court in its Judgment dated 6.12.2012, passed in W.P. No. 6440 of 2011, wherein it is stated that merely because the description of the caste for the time being was not in the list, termination of services of the petitioner was not justified, in view of the fact that the caste certificate, issued by the competent authority had not been withdrawn / cancelled, and no doubt could be casted on such caste certificate, and if there was any doubt upon the caste certificate, the validity thereof had to be examined by the High Power Screening Committee, as held in Madhuri Patil's case (supra).
19. Indeed, even in the counter affidavit, filed on behalf of the NCBC, it is not the specific case of the Union of India that castes 'Roniyar' and 'Baniya' are two different castes. The Gazette of India, published on 8th of December, 2011, has been brought as Annexure-18 to the supplementary affidavit, filed on behalf of the appellant, in which, at serial No. 122, the following castes have been mentioned as OBCs in Central List for the State of Jharkhand:-
"122. Sudi, Halwai, Roniyar, Pansari, Modi, Kasera, Kesarwani, Thathera, Patwa, Sinduria-Baniya, Mahuri-Vaishya, Awadh-Baniya / Adrakhi, Agrahari-Vaishya."
20. This clearly shows that caste 'Roniyar' as well as the other castes belonging to 'Baniya' community, i.e., 'Sinduria-Baniya' and 'Awadh-Baniya' have been included in the list of Central list. As it is no where stated in the counter affidavit filed on behalf of the NCBC that that castes 'Roniyar' and 'Baniya' are two different castes, or that castes L.P.A. No. 97 of 2016
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'Roniyar (Baniya)' and 'Roniyar' are two different castes, it cannot be presumed that the caste 'Roniyar (Baniya)' was / is not included in the Central List of the OBCs at any point of time, for the State of Bihar / Jharkhand, and it shall make no difference whether in the Central List of the OBCs, the name of the caste is shown only as 'Roniyar' or as 'Baniya'.
21. In that view of the matter even if in the caste certificate, the name of the caste of the appellant has been shown as 'Roniyar (Baniya)' and not only 'Roniyar', on that ground the claim of the appellant of being belonging to OBC category and entitled to be appointed on the post reserved for that category, if otherwise qualified for the same, cannot be denied, without there being any scrutiny by the High Power Screening Committee, as held in Madhuri Patil's case (supra), giving a specific finding that the caste Roniyar (Baniya) does not belong to OBC category. Even in the impugned Judgment it is noted by the Hon'ble Single Judge, that in Clause 9 (III) of the appointment letter it was stated that the appointment shall be subject to the community certificate being verified through the proper channel, before the service of any candidate was liable be terminated. This verification was required to be done by the High Power Screening Committee, as held in Madhuri Patil's case (supra), and that having not been done, we are of the considered view that the service of the appellant writ petitioner could not have been terminated by the respondent Bank, merely because for some period, the name of the caste of the appellant was not there in the Central List of OBCs, as it is apparent from the counter affidavit, filed on behalf of the NCBC that this was only an inadvertence and all the castes, which were there in the OBCs of the Central Government in the unified State of Bihar had to be necessarily reflected in the Central List for OBCs for the State of Jharkhand also.
22. For the foregoing reasons, we find that the impugned Judgment dated 20.11.2015, passed by the Hon'ble Single Judge, in W.P.(S) No. 1369 of 2011, suffers from patent illegality and cannot be sustained in the eyes of law, which accordingly, is hereby, set aside.
23. As a necessary corollary, the impugned order dated 22.2.2011, as contained in Annexure-4 to the memo of appeal, issued by the respondent Bank, terminating the services of the petitioner on the sole ground that her caste 'Roniyar (Baniya)' was not appearing in the Central List for OBCs, for the State of Jharkhand, as per the notification dated L.P.A. No. 97 of 2016
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August 18, 2010, issued by the Government of India, Ministry of Social Justice and Empowerment, is hereby, quashed. Consequently, the appellant is directed to be reinstated in service of the respondent Bank forthwith.
24. Though, in the case of Jitu Prasad, there was a direction to reinstate him in service with all consequential benefits, but the fact remains that the termination order was issued on 22.2.2011 and the Judgment was passed by the Hon'ble Madhya Pradesh High Court on 6.12.2012. The Judgment was also implemented by the respondent Bank on 22.6.2013. Though ordinarily, the appellant was also entitled to the same benefits, but we find that more than nine years have expired after the order of termination of the appellant and in the meantime, there was a Judgment in favour of the respondent Bank also, dismissing the writ application of the appellant. As such, in this extra-ordinary circumstance, it would be unfair and unjust for the respondent Bank, if we direct that the appellant be reinstated in service with all consequential benefits. We, accordingly, direct that the appellant shall be entitled to 50% of her salary and allowances for the period she was out of service, subject to an affidavit filed by her that during this period, she was not gainfully employed elsewhere. If she was gainfully employed elsewhere during that period, she would not be entitled to any salary and allowances for that period. However, upon her reinstatement in service, the period during which, she was out of service, shall be treated to be 'in service without any break' for all other service benefits including seniority, promotion and the retiral benefits, if any.
25. This L.P.A. is accordingly, allowed with the direction as above. The pending I.A. also stands disposed of.
(H.C. Mishra, J.) Deepak Roshan, J.:-I agree.
(Deepak Roshan, J.) Jharkhand High Court, Ranchi.
Dated the 21st of April, 2020.
NAFR/ Amitesh/-