Madhya Pradesh High Court
Santosh Kumar Sahu vs The State Of Madhya Pradesh Judgement ... on 2 May, 2013
Author: Vimla Jain
Bench: Vimla Jain
HIGH COURT OF MADHYA PRADESH: JABALPUR
W.A. No.1307/2011
Santosh Kumar Sahu,
S/o Shri Harcharan Sahu,
Aged about 31 years,
Computer Operator in
Office of Govt. English Foreign
Liquor House, Sagar (M.P.),
R/o 26, Sneh Nagar,
Behind Central Jail,
Shivaji Nagar, Sagar (M.P.)
.............Appellant
VERSUS
1. State of Madhya Pradesh,
Through its Principal Secretary,
Department of Commercial Tax,
Mantralaya, Vallabh Bhawan,
Bhopal (M.P.)
2. Commissioner,
Commercial Tax Department,
M.G. Road, Indore (M.P.)
3. Madhya Pradesh Professional
Examination Board, Through its
Controller, Chayan Bhawan,
Main Road No.1, Chinar Park (East),
Bhopal (M.P.)
...... Respondents
Present: Hon. Shri Justice Krishn Kumar Lahoti, Acting C.J.
Hon'ble Smt. Justice Vimla Jain
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Smt. Shobha Menon, learned Senior Counsel with Shri
Rahul Choubey, for the appellant.
Shri Kumaresh Pathak, learned Deputy Advocate
General, for respondents No.1 and 2.
Shri Amit Seth, Advocate for respondent No.3.
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JUDGMENT
02.05.2013 This appeal is directed against an order dated 18.11.2011 in W.P. No.11783/2009, by which a writ petition preferred by the appellant, challenging cancellation of his candidature, for appointment on the post of Data Entry Operator, in the Commercial Tax Department, was dismissed.
2. The facts of the case are that the appellant was employed as a Computer Operator in the Government Foreign Liquor House, Sagar. While he was working in the said office for last three years, he had moved an application for appointment on the post of Data Entry Operator and IT Operator in the very department, on the process initiated by the respondents No.1 and 2, in this regard. As per the advertisement Annexure P-1, appellant had submitted his application form. Appellant being eligible, had claimed the appointment on the post, in a reserved category of O.B.C.
3. In all 26 posts were reserved for O.B.C. category, out of which eight were reserved for women, one for handicapped person, three for Army Personnel and fourteen for General OBC candidates. Petitioner belongs to general OBC category.
4. Appellant had submitted a certificate dated 04.07.1996 issued by the Tahsildar, Sagar Annexure P-4. At the relevant time, the Tahsildar was vested with the powers of Executive Magistrate and was competent to issue caste certificate.
5. The appellant, who was successful in the written examination, called for interview and after the interview, when his result was not declared, the appellant had inquired into and found that his candidature itself was rejected after the interview. Thereafter the appellant had filed a writ petition before this Court bearing W.P. No.11783/2009, seeking directions against the respondents to declare the result of the appellant of the aforesaid examination and also to disclose the reasons for his non-selection as I.T. Operator. The appellant had also prayed that a mandamus be issued against the respondents directing them to appoint him on the post of I.T. Operator. A return was filed before the Writ Court stating that the certificate Annexure P-4 was issued by the Tahsildar who was not competent to issue such certificate as per circular dated 16.07.2008 issued by the State Government, empowering the various authorities in this regard and the authority in the bottom is Sub Divisional Officer, competent to issue a permanent caste certificate though a provision was also made in the circular to issue a provisional certificate by the Tahsildar. It was submitted that the certificate Annexure P-4 itself was issued by the incompetent person and as per the circular dated 16.07.2008 it ought to have been issued by the Sub Divisional Officer, so the candidature of the appellant was rightly cancelled.
6. The learned Single Judge found substance in the contention of the State and dismissed the writ petition. Reliance was also placed on two judgments of this Court.
7. Against the dismissal of the writ petition, appellant is before this Court.
8. Smt. Shobha Menon, learned counsel appearing for the appellant has raised following contentions:-
(i) That the caste certificate which was issued on 04.07.1996 was issued much before the issuance of the directions by the State Government, on 16.07.2008, empowering various authorities to issue caste certificate, including to the persons belonging to OBC category. In the subsequent circular, there is no provision for cancellation of any certificate issued earlier to the aforesaid date or deemed cancellation of certificates issued by the Tahsildar or for issuing fresh certificates by the Authorities.
(ii) That when the caste certificate Annexure P-4 dated 04.07.1996 was issued, instructions of the State Government dated 08.03.1994 were in force providing that such certificate could have been issued by the Revenue Officer not below the rank of Tahsildar as find place in para 3(2) of the circular dated 08.03.1994. In the said circular, a format was also provided for issuance of caste certificate and in the same format, the certificate Annexure P-4 was issued.
Thereafter on 18.07.1996 another circular Annexure P-15 was issued by the Chief Secretary of the State of Madhya Pradesh directing that once a certificate is issued by the competent authority and until and unless such certificate is doubtful, no fresh certificate can be asked from the candidate. Another circular dated 17.04.2000 was also issued though in respect of the students of reserved category.
It is further submitted that for the examination of Data Entry Operator and I.T. Operator for selection by examination 2008, certain instructions were issued but in the said instructions, nowhere it was provided that an applicant is required to file a fresh caste certificate as per the circular dated 16.07.2008 issued by the Sub Divisional Officer.
Stating aforesaid, it was submitted that in absence of any specific provision cancelling, superseding the caste certificate issued by the competent authority, the respondents have erred in rejecting the candidature of the appellant or in not considering the appellant for the post.
9. In reply of this, it is submitted by Shri Kumaresh Pathak, learned counsel appearing for the State that thereafter on 12.03.1997 another circular was issued by the State Government directing that caste certificate shall be issued by the competent authority and the Tahsildar was not competent to issue certificate by the circular of the State Government dated 12.03.1997 and only the Sub Divisional Officer or the Revenue Officer above the rank of the Sub Divisional Officer was competent to issue such certificate.
10. Shri Kumaresh Pathak and Shri Seth, learned counsel appearing for the respondents supported the order and submitted that in view of the subsequent circular dated 16.07.2008, the appellant ought to have filed the caste certificate issued by the competent authority and the certificate issued by the Tahsildar, was rightly not considered by the respondents.
11. On being asked from the parties whether any circular issued prior to 12.03.1997 and 16.07.2008 was deemed to be cancelled or was invalidated by any order of the State or competent authority, learned counsel appearing for the respondents fairly stated that in both the circulars there is no provision in respect of any certificate issued prior to the aforesaid date by the competent authority. So the fact remains that even by circular dated 12.03.1997 any certificate issued prior to that date, was not superseded, cancelled or was directed to be renewed or reissued by any competent authority, as provided in the said circular.
12. We have perused the record and find that the certificate Annexure P-4 was issued by the Tahsildar on the basis of circular dated 08.03.1994 by which the Tahsildar- cum-Executive Magistrate was empowered to issue caste certificate. In the return filed by the respondents, nothing has been stated that the certificate which was issued by the competent authority at the relevant time, such certificate would not be valid. In absence of which, certificate Annexure P-4 which was issued by the competent authority, who at the relevant time was competent to issue permanent caste certificate in favour of the appellant, for all the purposes, the aforesaid certificate was valid and ought to have been given effect to by the authorities. Being it was issued by the Executive Magistrate, who was subsequently not vested with such powers, could not be a ground for rejecting the caste certificate of the appellant. Apart from the instructions issued for selection on the post of Data Entry Operator and I.T. Operator, no provision was made that a candidate should file a fresh caste certificate issued by the Sub Divisional Officer and in absence of which rejection of candidature of appellant was totally unjustified.
13. In Hitesh Prajapati vs. The State of M.P. and another (W.P. No.6897/2008(S) decided on 7.7.2010, which has been referred in the impugned order, the controversy was entirely different. It was a case in which temporary certificate was issued, but no permanent caste certificate was produced before the court. But, in the present case, the caste certificate was issued by the Tahsildar, who was the competent authority, at the relevant time to issue the caste certificate and nobody had disputed the correctness of the certificate. It will be pertinent to mention here that the caste of the appellant is not in dispute and on being asked specifically from the parties, it has been admitted before this Court that the appellant belongs to OBC category.
14. In view of the aforesaid, we find that the candidature of the appellant was wrongly rejected by the respondents. He participated in the process but after personal interview, his candidature was rejected. The aforesaid action is not sustainable in law and is hereby quashed.
15. In view of the aforesaid, we direct respondents to initiate the process from the stage from where the candidature of appellant was rejected and in case it is found that the appellant was otherwise fit for appointment on the post of Data Entry Operator/I.T. Operator, the respondents shall consider his candidature in accordance with law, and if there is no impediment in the matter, to issue consequential order forthwith.
16. All the aforesaid exercise shall be completed by the respondents within a period of 60 days from the date of communication of this order.
17. Considering the facts of the case, appellant shall be entitled for the cost of this litigation. We quantify the cost of this petition Rs.10,000/- (Rupees Ten Thousand) payable by the respondents to the appellant.
(Krishn Kumar Lahoti) (Smt. Vimla Jain)
Acting Chief Justice Judge
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