Calcutta High Court (Appellete Side)
Sukanta Das vs The State Of West Bengal & Ors on 23 July, 2014
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
23rd July,
2014
(Sm)
W.P.12832 (W) of 2014
Sukanta Das
-VS-
The State of West Bengal & Ors.
Mr. Samarendra Nath Biswas,
Mr. P. K. Drolia,
Mr. S. N. Biswas.
.....For the petitioner.
Mr. Amitesh Banerjee,
Ms. Munmun Tewary.
.....For the State.
Mr. Hiranmay Bhattacharyya,
Mr. Tanmoy Mukherjee.
.....For the respondent No.4.
Mr. Sarbananda Sanyal.
.....For the respondent No.7.
This is a fight between two empanelled candidates, the writ petitioner who stood second in the selection list and the first empanelled candidate who was given appointment in the reserved category. It was alleged by petitioner that private respondent did not have proper scheduled caste certificate and as such his appointment is bad and illegal. Therefore, his appointment should be cancelled. He moved first writ petition before this Hon'ble Court being W.P. 15760 (W) 2013 and this Hon'ble Court directed for consideration of petitioner's representation. The order passed is quoted hereunder: -
"The dispute in this matter is in relation to selection of the respondent No.7 as a scheduled caste candidate in the post of 2 Laboratory Attendant in Dr. B. R. Ambedkar College in the district of Nadia.
Let the Director of Public Instruction take a final decision in the matter upon considering the representation of the petitioner as well as the scheduled caste certificate, a copy of the respondent No.7, copy of which was produced in court today. This certificate appears to have been issue3d by the Sub Divisional Officer, Tehatta, Nadia, West Bengal on 19th July, 2012. All connected communication on this issue Director of Public Instruction while taking his decision. The parties shall be given opportunity of hearing before such decision is taken. Such decision shall be taken by 12th November, 2013.
The writ petition stands disposed of in the above terms. Since this writ petition is being disposed of without calling for any affidavit, allegations made in the writ petition shall be deemed to have not been admitted.
There shall, however be, no order as to costs. Urgent photostat certified copy of this order, if applied for, shall be supplied to the learned counsel for the parties as expeditiously as possible, in compliance of usual formalities."
Pursuant to the order passed by this court D.P.I. heard the submissions made by the parties and decided that the cast certificate for first empanelled candidate who was selected and given appointment was a genuine certificate. However, the cast category which the first empanelled candidate belong was not mentioned by the certificate issuing authority that is merely an irregularity on the part of the authority concerned who have 3 issued the certificate, later on issued fresh certificate referring the previous one which was issued by them. Accordingly the concerned Director of Public Instruction rejected the representation of the petitioner.
Learned counsel appearing for the petitioner in support of the writ petition filed by the second empanelled candidate submits that the appointment was an illegal appointment and the second empanelled candidate being the petitioner herein having all requisite qualifications and the certificate with him is entitled to get appointment. Moreover, the certificate produced by the private respondent being first empanelled candidate was not correct and since the certificate was not correct, the writ petitioner ought to have been placed as first empanelled candidate and he should have been given employment. Learned counsel further submits that the impugned order of giving appointment to the private respondent violates Article 14 of the Constitution. He referred one judgment of the Hon'ble Division Bench. According to him, the impugned appointment should be terminated and the writ petitioner should be appointed. Learned counsel for the petitioner submits that the order of D.P.I. is contrary to order passed by this Hon'ble Court on 17th September, 2013 and supporting legislation has not been followed and that is not the procedure.
Mr. Banerjee, learned counsel for the State submits that there was nothing illegal in cast certificate, rather the certificate is genuine one. However, there was some mistake on the part of the issuing authority who already corrected the certificate. 4 Therefore, the private respondent being empanelled as first candidate is appointed lawfully and in a regular maner and this Hon'ble Court should not interfere in the matter.
Heard the submissions made by the learned counsel appearing for the parties. It is not in dispute that the selection committee prepared the panel wherein private respondent was placed as first and the petitioner as second in order of merit. It appears from the facts and circumstances as well as from the order that the certificate issuing authority made some mistake, which was later on corrected. Therefore, that may be an irregularity but there is no illegality as such. The concerned D.P.I. after careful consideration rejected the representation of the petitioner with the following findings: -
"Heard the petitioner and his Ld. Counsel at length and considered as well as examined the scheduled caste certificate of the petitioner as well as the respondent 7 and is of following observations: -
1. This is admitted fact that the respondent No.7 stood 1st in the panel whereas the petitioner stood 2nd in the panel. Both the candidates are scheduled caste.
2. The allegation of the petitioner that his application dated 14.3.2013 was never considered and acted upon by this Directorate is not correct. The UGC Branch of this Directorate vide memo no.688-UGC dated 18.4.2013 requested the S.D.O., Tehatta, Nadia to aware this Directorate regarding the authenticity of the caste certificate issued to the 5 respondent No.7 but it is a matter of great regret that till today the S.D.O. concerned do not furnish any information in response to this Directorate's correspondence regarding authenticity of the certificate of the respondent No.7. In this regard the respondent No.7 himself has submitted his new caste certificate to this Directorate for necessary action.
This Directorate examined both the old one as well as new one and after due examination, it transpires that in the previous and old certificate of the respondent No.7 being No.3021/TS dated 5.12.2000 no caste /tribe to which the respondent belongs is mentioned. Though it is issued by the competent authority, the S.D.O., Tehatta, Nadia under his seal and signature whereas in the new certificate issued by the S.D.O., Tehatta, Nadia, under his seal and signature the Caste/Tribe to which the respondent belongs is mentioned i.e., he belongs to Namsudra caste. The S.D.O. concerned has also mentioned the previous and old reference number of its office on the face of new caste certificate under his signature. In this connection, it is to say that the undersigned has no authority to dispute the existence of the fact that the respondent belongs to scheduled caste and he does possess the said certificate also.
3. Now, with regard to regularity or irregularity of the said certificate is concerned, as far as the acumen of 6 the undersigned permits, it is to say that the previous certificate possessed by the r4espondent is not a illegal one but a mere irregular one for the want of mention of caste in the purported certificate and as such it cannot be denied and disputed that the claim of the respondent become too remote or even illegal mere on the ground that at the time of initiation of selection process, the respondent possessed a irregular caste certificate.
The law also says illegal thing cannot be legalize as it is barred by law but a thing which is irregular for want of technical formalities can be regularized by complying with those desired formalities.
4. This Directorate vides its No.1822 (A) -UGC dated 11.11.2013 has issued necessary order regarding fixation of pay in favour of the respondent NO.7. Under the above circumstances, the prayer of the petitioner is hereby refused.
The said reasoned order is passed by the undersigned in compliance with the solemn order 18.09.2013 passed by the Hon'ble Court in the case. After careful consideration of th entire mater and the order of D.P.I. I do not find any material irregularity or illegality in the order. I also do not find any arbitrariness either. It is apparent that the Cast Certification is genuine but some mistake was made by the issuing authority, which was duly 7 corrected. There is no violation of procedural aspect also which was found by the D.P.I. concerned. In my view this writ petition do not have any merit for consideration and as such dismissed.
Prayer of the learned counsel for stay is refused. There is no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)