Calcutta High Court (Appellete Side)
(Susanta Karmakar vs State Of West Bengal & Ors.) on 24 March, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
24.3.2017 MAT 1450 of 2016
+
CAN 7866 of 2016
(Susanta Karmakar vs. State of West Bengal & Ors.)
Mr. Kushal Paul
.......for the appellant
Ms. Chaitali Bhattacharya
Ms. Shukla Chanda
....for the State
Mr. Biswaroop Bhattacharya
.......for the respondent No. 6
(Shivakant Prasad, J.) The petitioner has filed an appeal being MAT No. 1450 of 2016 against the judgment and order dated 23rd March, 2015 passed in W.P. No. 2703 (W) of 2005 and has prayed for condonation of delay of 498 days in filing the instant appeal.
The contention of the petitioner is that he was not aware of passing of the said judgment and order till the second week of July, 2015 since the petitioner was facing a criminal trial for committing fraud and for using fake Scheduled Tribe Certificate before the learned Judicial Magistrate, 1st Court, Raiganj, Uttar Dinajpur and that he was found not guilty and an acquittal vide Order dated 24.03.2015 thereafter, he caused any enquiry in the Website of the Calcutta High Court in respect of impugned judgment then he proceeded to file writ petition afresh for a new cause of action which arose after the judgment of the Judicial Magistrate passed in GR Case No. 161/2--4 (TR No. 498/2004) in the Court of Judicial Magistrate, Raiganj, Uttar Dinajpur. After being found not guilty of the charge by the learned Judicial Magistrate the appellant/petitioner elder brother Sri Kanai Karmakar also filed a written application challenging the cancellation of the Schedule Tribe Certificate being WP No. 10605(W)/ 2004 which was dismissed on 17.2.2011. The writ petition being No. 2959(W)/15 was not pressed and was dismissed with liberty to pursue in accordance with law. There is admittedly 498 days of delay in preferring the instant appeal. According to petitioner, he consulted learned Advocate on 30.7.2016 to file appeal and filed the instant appeal on 02.8.2016.
The grounds taken by the appellant/petitioner do not convince judicial mind of this Court. The petitioner/appellant has submitted that he has good ground in the appeal for the consideration that the order cancelling the Scheduled Tribe Certificate was passed without giving him any opportunity of hearing.
Learned counsel for the respondent/State has submitted that the appellant's brother Sri Kanailal Karmakar obtained Scheduled Caste Certificate No. 854/1998 dated 21st October, 1998 vide caste identity by changing the sub-caste from "Lohar" (Schedule Caste) to "Lohara" (Schedule Tribe) by beautifully putting / writing "a" as a suffix to "Lohar" and had tampered with the original Scheduled Caste Certificate and cunningly forged his caste identity to obtain an employment in the quota of Schedule Tribe.
It is also submitted that West Bengal Board of Regional School Service Commission on coming to know about the manipulation and practicing of fraud by the brothers had requested the SDO, Malda to verify the authenticity of Scheduled Tribe Certificate No. 1905/1998 dated 21st October, 1998 issued to the appellant/petitioner Sushanta Karmakar who had joined in Daulatpur High School in Bangshihari Block as Assistant Teacher in Pure Science on 09.02.2004 under reserved category of Scheduled Tribe after passing School Service Commission Examination.
On enquiry by the SDO, the appellant/petitioner was found to belong to "Lohar" community which is recognized as "Scheduled Caste". After examining the Scheduled Caste Certificates of the petitioner's relatives namely, Narayan Karmakar, son of Late Naresh Karmakar and Gobinda Karmakar son of Narayan Karmakar of village Subhashganj, it was found by the SDO that the people of "Karmakar" title living in the said village are "Lohar" (Scheduled Caste) not "Lohara" (Scheduled Tribe). The appellant could not speak tribal language nor does he follow any traditional activities and there is no mark of tribal culture in his house.
The learned Trial Judge rightly held that there was definite finding arrived at by the SDO based on the certificate issued by Pradhan, Maraikura Gram Panchayat, Pradip Kumar Ghosh, Member, Raiganj Panchayat Samity, Rita Rakshit, Member, Marikura G.P. and Dilip Das, MLA certified Kanai Karmakar to be "Lohar" (Scheduled Caste) and Scheduled Caste Certificate No. 854/1998 dated 21st October, 1998 issued in his favour.
By laying down the detailed enquiry report in the judgment impugned learned Judge found no illegality in the order passed by the SDO, Raiganj, Uttar Dinajpur who is the certificate issuing authority as per the Rule framed under West Bengal Scheduled Caste and Scheduled Tribe (Identification) Rule, 1995, in which certificate issuing authority is empowered to cancel the certificate on holding enquiry.
It would appear from the impugned judgment that the writ petitioner had moved writ petition being W.P. No. 10614(W) of 2004 which was disposed of on 12.07.2004 directing the Secretary, West Bengal Regional School Service Commission to take a decision upon giving an opportunity of hearing to the petitioner as well as other necessary parties within eight weeks.
The point taken by the petitioner in the second round of the writ petition in which the impugned order has been passed, was taken on the ground that petitioner was not served with the copy of the communication made by the SDO, Raiganj and that he was not given any opportunity to prove that the petitioner belonged to a Scheduled Tribe community. The learned Judge having considered the order passed by the authority and the observation made in the first round of the application to the effect that the commission itself has the authority to consider and resolve the dispute as to whether the petitioner belongs to Scheduled Caste community or Scheduled Tribe community and wherein the petitioner was held to belong to Scheduled Caste community so he could not be considered for selection to the post as Scheduled Tribe candidate.
The learned Trial Judge in fine held thus--
"Therefore, the plea of investigation by the Caste Scrutiny Committee if at all formed by the State Government, taken on behalf of the petitioner is of no consonance at this state. Moreover, report of the SDO was already on record at the time of moving the earlier writ petition and the report was not questioned by the petitioner at that point of time. In my considered opinion the recommending authority have power to consider and resolve the issue as decided by this Hon'ble Court on earlier occasion and in fact that was done in the instant case, as such there is no illegality whatsoever in the decision.
Accordingly, the writ petition is of no merit and as such dismissed. The Concerned authorities are directed to terminate service of the petitioner with immediate effect and to stop salary of the petitioner and also recover entire amount paid to him till date.
There would be no order as to costs."
Having considered the rival submission of the learned counsel for the parties on the merit of the appeal, apart from lacking sufficient cause of delay of 498 days in filing the appeal, we have duly considered the case of the appellant/petitioner on the merit of the appeal and find no substantial ground to interfere into the well reasoned judgment and order impugned.
We therefore, dismiss the MAT 1450 of 2016 + CAN 7866 of 2016 being meritless, however, there shall be no order as to costs.
(Rakesh Tiwari, J.) (Shivakant Prasad, J.)