Calcutta High Court (Appellete Side)
For The vs Shrinivas Prasad Shah & on 12 March, 2013
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
12.03.13
5/akd
M.A.T. 276 of 2013
with
C.A.N. 2124 of 2013
Mr. Narayan Ch. Mondal,
Mr. Sankar Sarkar,
Ms. Anita Khetri,
Ms. Sipra Maity
... ... for the appellant
Mrs. Papiya Chatterjee
... ... for the respondent
No. 10
Mr. Ashok Kumar Chakraborty, Mr. Manas Kumar Sadhu ... ... for the State Re : C.A.N. 2124 of 2013 The appellant-petitioner herein applied for the post of Anganwadi Helper under Chandipur Gram Panchayat as a Scheduled Caste candidate since the said appellant-petitioner belongs to the Scheduled Caste community.
Scrutinising the application form of the appellant-petitioner, respondent No. 5 herein namely, the Child Development Project Officer, Baduria Block permitted the said appellant- petitioner to participate in the selection process. The appellant-petitioner duly participated in the selection process.
The respondent authorities, however, selected the respondent No. 10 to the said post of Anganwadi Helper.
2The appellant-petitioner herein challenged the aforesaid appointment of the respondent No. 10. The respondent authorities in course of hearing before the learned Single Judge disclosed that the appellant-petitioner herein did not furnish the Scheduled Caste certificate along with the application form and therefore, the respondent authorities did not consider the appellant- petitioner herein as a Scheduled Caste candidate. As a matter of fact, the appellant-petitioner was treated as 'Unreserved' category candidate by the respondent authorities.
It is not in dispute that the appellant- petitioner herein claiming herself as a Scheduled Caste candidate submitted application form for the post of Anganwadi Helper and the respondent authorities upon scrutinising the said application form, permitted the said appellant-petitioner to participate in the selection process. Furthermore, at the time of interview, the appellant-petitioner submitted the Scheduled Caste certificate issued by the prescribed authority namely, the Sub-Divisional Officer, Basirhat. The respondent authorities, however, refused to treat the appellant-petitioner herein as a Scheduled Caste candidate since the said Scheduled Caste certificate was not submitted at the time of submission of the application form. 3
This court in the case of The Registrar General, High Court, Calcutta vs. Shrinivas Prasad Shah & Ors. reported in (2011) 4 WBLR (Cal) 415 specifically decided the aforesaid issue upon following the decision of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. vs. Additional Commissioner, Tribal Development & Ors. reported in AIR 1995 SC 94. The relevant extracts from the aforesaid decision of this court in the case of The Registrar General, High Court, Calcutta (Supra) are set out hereunder:
" 31. The S.C./S.T. certificates are issued by the competent authority in order to identify the S.C./S.T. candidates and to support the claim that they belong to S.C./S.T. category. It cannot be said under any circumstances that the respondent-writ petitioner herein was not a member of Scheduled Tribe community prior to issuance of the S.T. certificate by the S.D.O., Barrackpore. The respondent-writ petitioner did not acquire the status of a member of the Scheduled Tribe community only after the issuance of the certificate by the S.D.O., Barrackpore.
32. The respondent-writ petitioner undisputedly, applied before the S.D.O., Barrackpore for issuance of the Scheduled Tribe certificate on 11th April, 2002 and unfortunately, the said certificate was issued by the S.D.O., Barrackpore on 22nd September, 2009 i.e. after lapse of more than seven years. The respondent-writ petitioner by virtue of his birth in a Scheduled Tribe family was not required to fulfil any other condition for the purpose of issuance of the aforesaid Caste/Tribe certificate."
In the present case, also the appellant- petitioner herein did not acquire the status of a member of the Scheduled Caste community only after the issuance of the certificate by the Sub- Divisional Officer, Basirhat. The appellant- petitioner herein undisputedly, applied before the 4 said Sub-Divisional Officer, Basirhat for issuance of a Scheduled Caste certificate which was unfortunately, issued to the said appellant- petitioner after the last date of submission of the application form but before the date of interview. The appellant-petitioner produced the said Scheduled Caste certificate at the time of interview before the concerned respondent.
The respondent authorities herein even after production of the Scheduled Caste certificate by the appellant-petitioner herein at the time of interview should not have treated the said appellant- petitioner as an 'Unreserved' category candidate. The respondent authorities had specific knowledge even at the time of interview that the appellant- petitioner herein is a member of the Scheduled Caste community.
In the aforesaid circumstances, the respondent authorities had no other alternative but to treat the appellant-petitioner herein as a member of the Scheduled Caste community.
From the records it appears that the appellant- petitioner herein secured higher marks than the respondent No. 10 herein. Therefore, the appellant- petitioner herein was entitled to be selected and appointed to the said post of Anganwadi Helper although the respondent authorities denied the rightful and legitimate claim of the appellant- 5 petitioner herein on the ground that the said appellant-petitioner did not furnish the Scheduled Caste certificate along with the application form ignoring the fact that the Scheduled Caste certificate was produced at the time of interview by the appellant-petitioner herein.
Following the decision of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. (Supra) and also the earlier Division Bench judgment of this court in the case of The Registrar General, High Court, Calcutta (Supra), we are of the opinion that the respondent authorities, in the present case, should not have altogether rejected the claim of the appellant-petitioner as a member of the Scheduled Caste community inspite of submission of the Scheduled Caste certificate issued by the competent authority namely, the Sub-Divisional Officer, Basirhat at the time of interview.
The failure of the appellant-petitioner herein to submit the Scheduled Caste certificate along with the application form cannot be fatal in view of the aforesaid decision of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. (Supra) as sufficient time should have been granted to the concerned candidate to submit the caste certificate after issuance of the same by the competent authority.
6In any event, it is not in dispute that the appellant-petitioner produced the Scheduled Caste certificate issued by the competent authority at the time of interview.
For the aforementioned reasons, we are of the opinion that the appellant-petitioner herein should be appointed to the post of Anganwadi Helper in view of her better performance than the respondent No. 10 at the interview.
The learned Senior Advocate representing the State-respondents also admits that the appellant- petitioner herein has performed better than the respondent No. 10 as a Scheduled Caste candidate for the said post of Anganwadi Helper.
In the aforesaid circumstances, the appointment of the respondent No. 10 cannot be sustained and the same is accordingly, quashed.
For the reasons discussed hereinbefore, the impugned judgment and order under appeal passed by the learned Single Judge on 4th December, 2012 also cannot be sustained and the same is, therefore, set aside.
The respondent authorities are directed to appoint the appellant-petitioner herein to the post of Anganwadi Helper in place of the respondent No. 10 immediately.
With the aforesaid observations and directions, both the application as well as the appeal stand 7 allowed upon treating the said appeal as on day's list.
However, we make it clear that this order will not prevent the respondent authorities from accommodating the respondent No. 10 in any other vacant post of Anganwadi Helper under the same Gram Panchayat in accordance with law.
In the facts of the present case, there will be no order as to costs.
Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
(Pranab Kumar Chattopadhyay, J.) (Murari Prasad Shrivastava, J.)