Sikkim High Court
Kusum Gurung vs State Of Sikkim And Ors on 3 June, 2013
Equivalent citations: AIR 2014 SIKKIM 31
Bench: Chief Justice, S.P. Wangdi
1
W.P.(C) No.40/2012
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil EXTRA ORDINARY Jurisdiction)
DATED : 03.06.2013
CORAM
HON'BLE THE CHIEF JUSTICE
MR. JUSTICE PIUS C. KURIAKOSE
HON'BLE MR. JUSTICE S.P. WANGDI, JUDGE
W.P. (C) No. 40 of 2012
Mrs. Kusum Gurung,
Wife of Shri Dipendra Gurung,
Divisional Forest Officer,
(Land use) (Gyalshing)
Forest Department,
Government of Sikkim,
P.O. Gyalshing, West Sikkim.
..... Petitioner.
- versus -
1. The State of Sikkim
represented by and through
the Secretary,
Forest Department,
Government of Sikkim, Gangtok,
P.O. Gangtok, East Sikkim.
2. The District Collector/
District Magistrate (West),
West Sikkim.
3. Ms. Sujata Subba,
D/o. Late Sisir Kumar Subba,
R/O: Gairi Gaon, Near Hotel Tempoling,
P.O. : Daragaon,
P.S. Gangtok, East Sikkim.
4. The Secretary,
Department of Personnel, Adm.
Reforms & Training,
Government of Sikkim,
P.O. Gangtok, East Sikkim. ..... Respondents.
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W.P.(C) No.40/2012
For Petitioner : M/s. A. Moulik, Sr. Advocate with B. K. Gupta,
K. D. Bhutia and Ranjit Prasad, Advocates.
For Respondents No. 1, 2 and 4 : M/s. J.B. Pradhan, Addl. Advocate General
with Karma Thinlay Namgyal, Sr. Govt.
Advocate and S.K. Chettri, Asstt. Govt.
Advocate.
For Respondent No. 3 : M/s A.K. Upadhyaya, Sr. Advocate with Binita
Chhetri and Dawa Jangmu Sherpa,
Advocates.
JUDGMENT
Pius, CJ This writ petition under Article 226 of the Constitution of India is filed by the petitioner challenging Annexure P-15, order passed by the District Collector/District Magistrate, West Sikkim cancelling the OBC Certificate No. 53/DCW dated 22.05.2002 issued to the petitioner Smt. Kusum Gurung, wife of Shri Dipendra Gurung (original of Annexure P-11 Certificate).
2. The respondents in this writ petition are State of Sikkim (R-1), District Collector/District Magistrate, West Sikkim (R-2), Mrs. Sujata Subba (R-3) and Secretary, Department of Personnel, Adm. Reforms & Training, Govt. of Sikkim (R-4). As pleaded by the petitioner in the writ petition, the petitioner's case is that she, the 3rd respondent and others had applied for the post of Assistant Conservator of Forest (ACF) in the year 2002 and appeared in the competitive examination held in the year 2003 and that she 3 W.P.(C) No.40/2012 stood 1st and 3rd respondent stood 3rd in the examination. According to the petitioner, she and another girl were appointed to the 2 vacancies earmarked for OBC (women) and OBC candidates. The 3rd respondent was not appointed as she stood only 3rd in the merit. Pursuant to the above selection the petitioner was appointed as ACF on 29.07.2004 and after six years she was promoted as Divisional Forest Officer (DFO). The petitioner submits that she was selected on the strength of Annexure P-11 Certificate issued to her on the basis of OBC status of her husband. The petitioner points out that the 3rd respondent kept silent for 8 long years from 2002 till 2010 and thereafter filed Annexure P-13 complaint dated 16.07.2011, inter alia, contending that as the petitioner's OBC Certificate was issued based on the status of her husband, who is an OBC and not on the basis of her own parentage, Annexure P-11 Certificate issued to the petitioner was issued illegally and was liable to be cancelled. To Annexure P-13, complaint, the petitioner filed Annexure P-14 reply contending that no law prohibited for issuance of OBC Certificate to a woman on the basis of the status of her husband. According to the petitioner the only rule/law on the subject of issuing OBC Certificate is Annexure P-16 Notification No. 3/WD/95 dated 06.06.1995 issued by the Government of Sikkim in its Department of Welfare and that clause 4 of Annexure P-16 only requires OBC Certificate to be issued by DC/ ADC or SDM of the area. Annexure P-16 does not say that OBC Certificate has to be issued based on parentage of the candidate and not on the basis of caste status of the husband of a woman candidate. 4 W.P.(C) No.40/2012
3. The petitioner asserts that Schedule I to Annexure P-16 at category II (b), category III (i), (ii) and (iii), category IV (ii), explanation (i) and (ii) will show that even the status of the husband could be counted in the matter of creamy layer certificate for OBC candidates. Annexure P-17, Notification dated 05.12.2003 issued by the Welfare Department, Govt. of Sikkim, was also relied on by the petitioner to content that OBC Certificate can be issued on the basis of husband's status. The petitioner also contends that even otherwise she belongs to OBC on the strength of her parentage. According to her, her father was born in Sikkim at Gangtok on 20.03.1949 and she relies on Annexure P-4 Certificate dated 12.02.1962 issued by the Assistant Head Master, T.N. Primary School, Gangtok to indicate this claim. Her father was educated in Sikkim and in this context she relied on Annexure P-4 Certificate issued by the very same person. Her father was employed in Sikkim prior to 31.12.1969 and in this context she relies on Annexure P-5 Certificate dated 01.03.1974 issued by Divisional Engineer, Elect., Sikkim P.W.D. According to her, her mother was a Sikkim Subject Holder of Sikkim and she relies on Annexure P-12 issued by the Secretary, Land Revenue Department, Govt. of Sikkim on 29.1.1970. She relies on Annexure P-9 Notification dated 21.04.1969 issued by the Secretary, Land Revenue Department, Govt. of Sikkim and contends that woman follows the nationality and community of her husband.
4. According to the petitioner, her husband Dipendra Gurung belongs to OBC category, and she automatically becomes a member of OBC. The petitioner also relies on Section 3 (1) (a) of the Sikkim Subjects 5 W.P.(C) No.40/2012 Regulation 1961 and contends that because the petitioner's father was born in Sikkim and is a resident of Gangtok, he is a Sikkim Subject by birth and as he was a Gurung, which is OBC of Sikkim, the petitioner, his daughter, is also a member of OBC of Sikkim. The petitioner also relies on Annexure P- 8, Notification No. 66/Home/95 dated 22.11.1995 issued by the Home Department, Government of Sikkim and contends that as her father Shri Bhim Bahadur Gurung was employed in Sikkim even prior to 31.12.1969, he held a Certificate of Identification under the above notification and thus petitioner also became a member of OBC in view of her father's employment in Sikkim prior to 31.12.1969.
5. According to the petitioner the matter was heard by the 2nd respondent, District Collector, West and he vide Annexure P-15 order dated 04.08.2012 cancelled Annexure P-11, OBC Certificate of the petitioner on the only ground that the above Certificate was issued on the basis of the status of her husband. According to the petitioner, Annexure P-15 order does not at all mention the law on the basis of which the 2nd respondent could cancel Annexure P-11 when it was oblivious that even going by her parentage the petitioner qualified as an OBC member.
6. The petitioner contends that Annexure P-11 Certificate was issued to her by the competent authority after due enquiry and verification on the status of her husband falling in Schedule III of Annexure P-17 which incorporates the status of husband and wife and therefore there was no fault at all on the part of the petitioner in the matter of issuance of OBC 6 W.P.(C) No.40/2012 Certificate, Annexure P-11, to her by District Collector, West. The petitioner urges that if the 2nd respondent had told her that OBC Certificate cannot be issued to her on the basis of the status of her husband but can be issued on the basis of her parentage, then the petitioner could have produced document pertaining to the caste status of her father and mother and could have thus obtained OBC Certificate based on her parentage also. The petitioner is not to blame for issuance of OBC Certificate on the status of her husband. According to the petitioner, Annexure P-11 was illegally cancelled and hence Annexure P-15, Cancellation Order is liable to be set aside.
7. In the writ petition, the petitioner has raised various grounds of challenge on the impugned order and briefly stated they are that: -
(i) The statement at paragraph 14 of the impugned order that OBC Certificate was to be issued only on the basis of parentage and not on the basis of marriage is incorrect.
(ii) The 2nd respondent in his order has not pointed out any law prevalent in Sikkim insisting that issuance of OBC certificate on basis of parentage only.
(iii) Even Annexure P-18 OBC Certificate issued to the 3rd respondent will indicate that OBC Certificate can be issued on the strength of parentage as well as based on the status of husband of the person concerned.7
W.P.(C) No.40/2012
(iv) The law relating to the subject (issuance of OBC Certificate) are incorporated in Schedule II of Notification No. 3/WD/95 dated 06.06.1995 and Notification No. 7/GOS-9(15)SWD dated 05.12.2003, if those notifications are read conjointly it will be seen that OBC Certificate can be issued not only on the basis of parentage but also on the basis of husband's caste.
(v) The Notifications dated 06.06.1995 and 05.12.2003 while dealing with the subject 'creamy layer' in Schedule I refer to about married woman at category IV (ii) explanation (i) and (ii) and category II proviso (b), category III proviso (i), (ii) and (iii). It is, therefore, evident that even for the purpose of deciding creamy layer, the status of husband and wife have been made applicable. This aspect of the matter was not noticed by the District Collector.
(vi) The District Collector/District Magistrate only casually referred to the contention of the petitioner that she is entitled to OBC Certificate on the basis of her parentage but never considered the sustainability of the Annexure P-11 caste certificate on the basis of the above claim. The impugned order was passed only on reason that the caste certificate is issued based on the status of her husband.
(vii) The petitioner is at the risk of being terminated from service and being deprived of her employment.
8W.P.(C) No.40/2012
(viii) The long delay caused by the 3rd respondent in the matter of lodging the complaint should have disentitled the 3rd respondent to relief on the complaint. It is specifically contended by the petitioner that the 3rd respondent has filed the complaint out of malice towards the petitioner. This aspect of the matter was not even considered by the 2nd respondent.
8. One of the contentions of the 3rd respondent was that the petitioner was appointed as ACF on the basis of an illegal caste certificate. The petitioner answered this contention stating that the caste certificate at any rate is not illegal. No finding was endorsed by the 2nd respondent regarding the legality of the caste certificate. This has resulted in prejudice to the petitioner. The 2nd respondent did not record any evidence from the petitioner as was required under law nor has the 2nd respondent considered the various documents produced by the petitioner. This has also resulted in prejudice to the petitioner.
9. Adequate hearing opportunity was not afforded to the petitioner by the 2nd respondent and the order passed by the 2nd respondent is a cryptic one deciding the issue on just one premise, totally ignoring various other premises on the basis of which the petitioner wanted to sustain the Annexure P-11. If at all there is any fault in the matter of P-11 OBC Certificate the same was on the part of the issuing authority and relying on a certificate so issued to her, the petitioner secured an employment and worked for more than eight years. The 1st respondent is 9 W.P.(C) No.40/2012 estopped from terminating or discontinuing the employment of the petitioner. That impugned order will lead to termination of petitioner's service was never considered by the DC/DM.
10. Annexure P-19 application form submitted by the petitioner for obtaining the OBC certificate will show that even as per the format prescribed by the Government the petitioner could have relied on the caste status of her husband. The petitioner is presently holding the post of DFO and if the impugned order is allowed to stand that the petitioner will be terminated from the above post.
11. On these and other grounds the petitioner seeks the following main reliefs: -
(a) Annexure P-15 impugned order be quashed and cancelled;
(b) Issue a declaration that 2nd respondent cancelled Annexure P-
11 OBC Certificate illegally and that the certificate still holds good;
(c) For a declaration that the petitioner shall not terminated from service even if Annexure P-11 is cancelled.
(d) For a declaration that notwithstanding the impugned order cancelling Annexure P-11, the petitioner continues to be a member of OBC in Sikkim.
12. To the above writ petition, counter affidavit is filed on 25.09.2012 by the 3rd respondent. To the above counter affidavit a 10 W.P.(C) No.40/2012 rejoinder affidavit has been filed by the petitioner on 07.11.2012. Counter affidavit is filed by respondents 1, 2 and 4 on 08.02.2013 and to the above counter affidavit also, rejoinder affidavit filed by the petitioner on 14.02.2013. Thereafter a supplementary affidavit is filed by the petitioner against the petition/CMA No. 23/2013 dated 01.03.2013 filed by respondents no. 1, 2 and 4 on 18.03.2013. The prayer in the petition was that Annexure A-1 (Colly.) notifications (Notification No. 51(6)/Home/83/465 dated 16.06.1983, Notification No. 2(3)Home/77/8 dated 21.05.1984 and Notification No. 6(61) Home/84/4 dated 08.03.1985 of the Home Department) be placed on record. To the above supplementary affidavit, respondent No. 3 filed an additional counter affidavit on 24.04.2013. To the supplementary affidavit filed by the petitioner, respondents 1, 2 and 4 also filed a reply affidavit on 24.04.2013.
13. Through the counter affidavit filed by the 3rd respondent, she raised preliminary submissions challenging the maintainability of the writ petition. The preliminary submissions, inter alia, were that the writ petition is not maintainable in law as no legal and fundamental right of the petitioner has been infringed and as the writ petition has been brought only for ventilating the personal grievances of the petitioner. Annexure P-11 Caste Certificate was issued to the petitioner on the basis of the status of her husband in violation of the Rule for issuance of caste certificate.
14. The eligibility criterion for the applicants applying for OBC Certificate is that caste certificate and Certificate of Identification/Sikkim 11 W.P.(C) No.40/2012 Subject Certificate issued by the competent authority has to be submitted, in the case of married woman, Certificate of Identification issued on the strength of father has to be submitted, the details of the applicants parents income and designation in Government services needs to be submitted to decide whether the applicant falls under the creamy layer as per the relevant notification. In the instant case, 2nd respondent issued Annexure P-11 caste certificate to the petitioner on the submission of Certificate of Identification of her husband, which was in gross violation of the rules for issuance of the caste certificate. The petitioner secured employment in the said post through direct recruitment against the OBC (Women) quota on the basis of a caste certificate illegally issued. The appointment of the petitioner is itself void ab-initio. The 3rd respondent was under the impression that the petitioner belongs to the category of OBC in Sikkim and that the caste certificate was correctly issued to her. She had no reason to doubt the genuineness and validity of the same. Suddenly the 3rd respondent came across an article "Creamy Layer tag on dozen officials" on 25.11.2011 Edition of Sikkim Express and it was through that article that the 3rd respondent came to have information regarding the cloud around the petitioner's OBC Certificate. Annexure R-1 a copy of the above news paper is also produced. After reading of Annexure R-1, the 3rd respondent applied under Right to Information Act to the competent authority seeking information regarding the documents relating to the OBC Certificate issued to the petitioner. The 3rd respondent received R-2 reply which was to the effect that the documents have been misplaced and could not be found out. 12 W.P.(C) No.40/2012 It was thereafter that the 3rd respondent probed further into the matter and came to understand that -
(1) The father of the petitioner does not have either a Sikkim Subject Certificate/Certificate of Identification issued by the competent authority.
(2) The OBC certificate is to be issued to the petitioner on the strength of the caste certificate of the father.
(3) The OBC certificate of the petitioner was issued on the basis of caste certificate of her husband and it was in gross violation of the Rule.
15. It is on being confirmed that the OBC certificate obtained by the petitioner from the office of the 2nd respondent being not according to law and being illegal and invalid, that the 3rd respondent filed the complaint before the District Collector, West (2nd respondent). The D.C., West after detail hearing passed the impugned order cancelling the caste certificate.
16. It is contended that the father of the petitioner is not a bonafide Sikkim Subject or holder of Certificate of Identification. Thus the petitioner cannot claim to be a local of the State of Sikkim. The mere fact that the petitioner, her father and the family are residing in the State of Sikkim since long will not entitle the petitioner to claim reservation. Through Annexure R-3 office memorandum vide No. 335/GEN/DOP dated 28.03.1998, the Government of Sikkim clarified that the caste certificate of a person in the category of Schedule Caste, Schedule Tribe and Other Backward Classes community will be determined by birth only and not through marriage.
13W.P.(C) No.40/2012
17. It is then contended that in Annexure P-3 the Residential Certificate of the father of the petitioner that Shri Bhim Bahadur Gurung, S/o late Kundal Gurung is a permanent resident of Singmari, North Point, Darjeeling, and hence he was not a Sikkim Subject holder on 16.5.1975. The petitioner's father does not originally belong to the State of Sikkim. Hence the petitioner cannot claim the benefit of reservation in the State of Sikkim on the basis of father's caste.
18. After raising the above preliminary points and submissions, the 3rd respondent has proceeded to deny the averments made in the writ petition parawise. The 3rd respondent also produced Annexure R-4 reply issued by the Addl. District Collector, East District, Gangtok in response to information sought for by one Tanka Ram Sharma regarding the policy/rule for issuance of caste certificate and relies on the same.
19. In the rejoinder affidavit the petitioner denies the various allegations and assertions contained in the counter affidavit of the 3rd respondent and reiterate all that she had pleaded in the writ petition. Inter alia, she contends through the rejoinder that she approached the competent authority for issuing the caste certificate with clean hands and mind and had applied for a caste certificate in the prescribed format meant for the same. She never concealed or misrepresented anything nor had she practised fraud upon anybody for obtaining the OBC Certificate. The petitioner claims that she applied in plain and simple language with bonafide belief that she was entitled to get caste certificate based on the 14 W.P.(C) No.40/2012 status of her husband. The competent authority never informed the petitioner that she cannot obtain the caste certificate based on the status of her husband. On the other hand the competent authority verified the application submitted by the petitioner showing the status of her husband and the authority was fully convinced about the petitioner's eligibility for getting caste certificate and accordingly issued Annexure P-11 certificate to the petitioner. The petitioner never concealed anything for procuring the certificate. The petitioner did not name her father-in-law as her father. The allegation against the petitioner made by the 3rd respondent based on R-1, paper cutting is utterly misconceived and false. The action of 3rd respondent in moving the District Collector for cancellation of the petitioner's caste certificate was most irresponsible and malicious particularly because of the long delay in the matter.
20. The petitioner further contends that 2nd respondent did not apply his judicial mind in coming to the conclusion that caste certificate should be obtained only on the basis of status of the parents. At the time of issuance of caste certificate there was no binding law suggesting that such certificate should be issued on the basis of the status of the parents. The petitioner also contends on the basis of the direction of the Hon'ble Supreme Court in Madhuri Patil's case that the 2nd respondent was not competent to cancel the caste certificate and that it is only the Scrutiny Committee, who is competent to cancel the caste certificate and that too upon proper enquiry.
15W.P.(C) No.40/2012
21. The petitioner then points out that she and the 3rd respondent participated in 2002 in the selection process to the post of ACF. The 3rd respondent who had to be vigilant about her claim and right at that time itself slumbered for 8 years after the petitioner secured promotion as DFO in the year 2010. The 3rd respondent is not entitled for any equity. On the contrary sustaining the cancellation order will amount to depriving the petitioner of all equity as the petitioner being over-aged now is not in position to secure any other employment. According to the petitioner the very statement of the 3rd respondent in her preliminary submission made in the counter affidavit will reveal that the petitioner was not guilty of any misconduct or fraud in procuring Annexure P-11, caste certificate. The petitioner highlights in this context the observations of the 2nd respondent in the impugned order at paragraph 11 that the petitioner had never tried to mislead the competent authority and there was no evidence to show that the petitioner tried to conceal any material facts to the issuing authority for issuance of said certificate.
22. The petitioner also contends that the Hon'ble Supreme Court has in various judgments declared that in a situation where the applicant for the caste certificate is not guilty of playing fraud but applied with clean mind and after obtaining the job based on such caste certificate had continued employment for a considerable long period then he would get the benefit of equity even if caste certificate is issued to him wrongly. 16 W.P.(C) No.40/2012
23. In the counter affidavit submitted by respondents 1, 2 and 4 through 2nd respondent, it is contended that the finding of the District Collector, West in the impugned order that Annexure P-11, caste certificate, issued on the basis of the status of the husband of the petitioner is not valid is in consonance with the Department of Personnel's Office Memorandum No. 335/GEN/DOP dated 28.03.1998 wherein it is clarified that for the purpose of employment the status of the person in the category of Scheduled Caste, Scheduled Tribe and Other Backward Classes Community shall be determined by birth only and not through marriage. It is pointed out that the Department of Personnel vide letter No. 1341/GEN/DOP dated 16.04.2005 reiterated the above stand that caste certificate issued on the basis of marriage shall not be entertained. Copies of the office memorandum as well as the letter are annexed to the counter affidavit as Annexure R-6 and R-7.
24. It is then contended that the issuance of Annexures R-6 and R-7 was in pursuance to a judgment of the Hon'ble Supreme Court in Indra Sawhney vs. Union of India (AIR 1993 SC 477) wherein directions were issued by the Hon'ble Supreme Court to all the State Government to constitute a permanent body for entertaining, examining and recommending for inclusion and/or exclusion of the class/caste of people in the list of backward classes to be notified by the State Governments within a period of 4 (four) months from the date of judgment dated 16.11.1992. Based on the above judgment, the Central Government issued guidelines vide O.M. No. 36012/22/93-Est (SCT) dated 08.09.1993 and the State of Sikkim, more 17 W.P.(C) No.40/2012 particularly, the Welfare Department to give effect to the above judgment and to give relief to the socially and educationally backward classes or other backward classes notified a creamy layer in the list of socially and educationally backward classes or other backward classes vide notification, Annexure P-16. Notification Annexure P-16 was subsequently superseded by Annexure P-17 which in fact modified Annexure P-16. It is contended that on the basis of Annexure P-16 candidates of OBC/NBC have to submit details (status/income) of the father and mother only and not on the basis of his/her own status or income or on the basis or status or income of his/her spouse and not of self or spouse in the application form prescribed to get OBC certificate as the same is always determined by parents' status and not on the basis of his/her own status or income or on the basis of status or income of his/her spouse. The counter affidavit also relies on Government of India Notification No. 36033/5/2004-Estt (Res) dated 14.10.2004 (copy produced as Annexure R-8) clarifying that the creamy layer status of the candidate shall be determined on the basis of status of the parents alone. It is then pointed out that the petitioner is the daughter of Shri Bhim Bahadur Gurung, who holds Annexure P-3, residential certificate, wherein it is shown that he is a resident of North Point, Darjeeling, West Bengal. The petitioner's husband Dipendra Gurung is a member of OBC category from Sikkim and the petitioner obtained Annexure P-11, OBC Certificate, on the basis of her marital relationship with Mr. Dipendra Gurung. It is then contended that the petitioner's husband is the son of Shri P.L. Gurung, who once held the post of Chairman, Sikkim Khadi 18 W.P.(C) No.40/2012 and Village Industries Board, the post of Minister for Power, Labour, Panchayat, Rural Development, Industries and Ecclesiastical Departments which falls under the category of constitutional posts. Therefore, the petitioner's husband falls within creamy layer and not entitled for a certificate of OBC. The counter affidavit then refers to Government of India Ministry of Home Affairs letter No. SC(160)14/1/82 dated 22.02.1985 wherein it has been clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. is deemed to be Scheduled Caste/Tribe in the State of his origin and will be entitled to get benefits from the State of origin and not from the State to which he has migrated. A copy of above letter is produced and annexed as Annexure R-9 and it is contended that the petitioner's State of origin is West Bengal and not Sikkim. It is pointed out that Gurung community does not belong to OBC community in the State of West Bengal and in this context Annexure R-10 copy of the list of OBC community recognized by State of West Bengal is produced and it is contended that even the petitioner's father cannot get OBC benefit in Sikkim.
25. The writ petitioner through the rejoinder affidavit submitted by her to the counter affidavit filed by respondents 1, 2 and 4 reiterate all the contentions raised by her though her earlier pleadings. Inter alia she contends that the respondents are estopped from challenging her candidature and appointment to the post of ACF at this distance of time. As regards R-6 and R-7 it is contended that they were not widely circulated 19 W.P.(C) No.40/2012 and were never acted upon. It is pointed out that they were not gazetted and therefore have no force of law. It is contended that R-6 is not applicable to the petitioner because it is dated 16.04.2005 some 3 years prior to the issuance of Annexure P-11, OBC Certificate to the petitioner. Annexure R-7 has no force of law. As regards R-8, it is pointed out that the same is a document issued two years after the issuance of OBC Certificate to the petitioner, it applies to the creamy layer persons and not to the petitioner. Annexure R-9 is explained by saying that the reasons for issuance of Annexure R-9 are explicit in Annexure R-9 itself and hence Annexure R-9 has no relevance in this particular case. It is then contended that the petitioner's father did not migrate to Sikkim but was born and brought up in Sikkim in the year 1949. Annexure R-9 has no application in the case of the petitioner because of the reason that her father did not migrate from West Bengal. Annexure R-9 at any rate applies to Scheduled Caste and Scheduled Tribe only and not to the OBCs. It is pointed out that the impugned order does not decide several issues highlighted during the course of hearing and all those issues require to be decided by this Court.
26. C.M. Application No. 23/2013 is filed by respondents 1, 2 and 4 for the purpose of placing on record 3 notifications marked as Annexures A-1 (Colly.). The first two amongst them will show that Shri P.L. Gurung, the petitioner's father-in-law once held the post of Chairman, Sikkim Khadi and Village Industries Board from 24.061983to 21.05.1984. The 3rd one will 20 W.P.(C) No.40/2012 show that Shri P.L. Gurung, petitioner's father-in-law was Power and Labour Minister in the Sikkim Government.
27. To the above C.M. Application the petitioner filed a supplementary affidavit. According to this supplementary affidavit, in the Report of the Expert Committee constituted by the Government of India, pursuant to the directions in the judgment of Hon'ble Supreme Court in Indra Sawhney case (supra), persons holding constitutional posts such as the posts of Governor, Minister and membership of Legislature, etc. were in the very nature of things temporary and often transitory. Therefore, such persons are not separately categorized in the above Report and therefore children of such persons cannot be directly declared in the creamy layer in the absence of proper material against them. The Expert Committee's report is produced as Annexure P-24. It is then contended that as for the post of Chairman, Sikkim Khadi and Village Industries Board held by Shri P.L. Gurung was transitory, such a post did not take him out of OBC category.
28. In the above affidavit it is further stated that the 3rd respondent did not continue as a member of OBC category in view of SC & ST Orders (Amendment) Act, 2001, under which 'Subba' Community was declared to be Tribal Community. It is pointed out that at the time of examination for ACF, selection, which took place in the year 2003, the 3rd respondent was a member of Tribal Community and has lost her right to get employment in the quota of OBC category. It is accordingly pointed out that the 3rd 21 W.P.(C) No.40/2012 respondent did not come to this Court with clean hands for challenging the appointment given to the petitioner and that too 8 to 10 years after the selection and appointment. It is then contended that even on merit basis the petitioner deserves appointment and that appointment cannot be set at sought on the basis of challenge from 3rd respondent, who has no locus- standi to raise the challenge.
29. In this supplementary affidavit it is also contended that the power to cancel the OBC Certificate is with the Scrutiny Committee and not with the 2nd respondent. The petitioner also contends that Annexure R-1 filed by 3rd respondent in her counter affidavit reflects the names of twelve persons who had procured employment based on OBC/MBC certificate, even though they are members of 'creamy layer'. It is pointed out that the State Government has not taken any step for terminating their services but the State is chasing after the petitioner who stood first in the selection and is in fact a member of OBC. The petitioner has given the names of 5 ineligible persons who continue in State Government service.
30. Then the petitioner gives details of hardships which she had to undergo in her life, particularly, childhood and school days and seeks equity from this Court so that she is not deprived of her employment, now at a time when she has become over-aged for any other employment.
31. In the additional counter affidavit filed by the 3rd respondent to the above supplementary affidavit she denies all that the petitioner has stated and reiterates contention already taken by her. 22 W.P.(C) No.40/2012
32. The respondents 1, 2 and 4 have also filed an additional counter affidavit to the above supplementary affidavit. They also reiterate what they had contended earlier and justifies the impugned order.
33. We have heard the submission of Mr. A. Moulik, learned Senior Counsel for the petitioner and also Mr. J.B. Pradhan, learned Additional Advocate General for the State and official respondents. We have also heard Mr. A.K. Upadhyaya, learned Senior Counsel for the 3rd respondent. Extensive submissions were addressed by Mr. Moulik on the basis of pleadings raised by the petitioner before this Court. He would assail Annexure P-15, impugned order passed by the 2nd respondent. According to him the 2nd respondent who was bound to consider the various issues which arose before him on the pleadings raised by the parties and also from the submissions made by the parties before him was ultimately chosen to take decision and pass the impugned order cancelling Annexure P-11 OBC Certificate on the sole basis that Annexure P-11 was issued to the petitioner on the basis of her marriage and not on the basis of her parentage. Being an authority clothed with quasi judicial function the 2nd respondent was bound to consider the reasons stated by the petitioner for sustaining Annexure P-11. The approach of the 2nd respondent in the matter was pedantic. The irreparable hardships to which the petitioner will be put to on account of cancellation of Annexure P-11 were not taken into account by the 2nd respondent at all.
23W.P.(C) No.40/2012
34. Learned senior counsel submitted that going by the judgment of the Hon'ble Supreme Court which holds the field it was the Scrutiny Committee which alone could have gone into issues regarding the caste status of a particular person and the 2nd respondent should have relegated the matter to the Scrutiny Committee. The impugned order if allowed to stand will result in the petitioner's services being terminated and at this point of time when the petitioner has crossed the age, it will be impossible for the petitioner to secure another alternative employment for her sustenance. The petitioner's contention that even going by parentage, she is a Gurung and member of OBC should have been taken into account by the 2nd respondent who could have sustained Annexure P-11 on that reason rather than expressing all sympathies with the petitioner and then the perpetrate injustice of cancelling Annexure P-11 thereby subjecting the petitioner to the risk of losing her means of livelihood.
35. The learned Additional Advocate General, Mr. Pradhan, submitted that the present writ petition is a premature one. The petitioner does not dispute the correctness of the premise on which the impugned order was passed by the 2nd respondent. The petitioner's apprehension is that the authority which appointed her (Government in the concerned Department) will initiate proceedings to terminate her service. The learned Additional Advocate General submitted that till this moment the authority has not sent even a notice to the petitioner asking her to show cause why her employment should not be terminated on the basis of Annexure P-15. According to the learned Additional Advocate General if and when 24 W.P.(C) No.40/2012 proceedings are initiated to terminate the services of the petitioner, it is open to her to raise all valid defences available to her including the defence that it would be equitable to throw the petitioner out of employment at this distance of time when admittedly there is no case for anybody that the petitioner played fraud on the appointing authority or for that matter on the 3rd respondent.
36. Mr. A. K. Upadhyaya, learned Senior Counsel for the contesting 3rd respondent would submit that Annexure P-15 order cannot be faulted as the same was issued on a very correct premise. Mr. Upadhyaya would resist the submissions of Mr. Moulik. According to Mr. Upadhyaya the argument only a Scrutiny Committee can decide on the validity of the caste certificate and cancel the same is not correct. The authority to issue caste certificate are the District Magistrate/Addl. District Magistrate/ Sub Divisional Magistrate of the area where the candidate or her family normally resides in the context of Annexures P-16 and P-17 Notifications. According to him, in the instant case, the District Collector had every authority to cancel Annexure A-11. The learned Senior Counsel in this context submitted that though the Hon'ble Supreme Court in Madhuri Patil vs. Commercial Tribal Development: (1994) 6 SCC 241 observed that the Scrutiny Committee should be appointed by the State for verifying the genuineness of the caste certificate, etc. the fact is that the State of Sikkim has not appointed any Scrutiny Committee so far. Therefore, it is the District Collector who is empowered to issue caste certificate is also empowered to cancel the caste certificate if wrongly issued. Relying on the 25 W.P.(C) No.40/2012 very same decision, Mr. Upadhyaya submitted that the petitioner is not entitled to any estoppel or equity she having obtained the caste certificate fraudulently. Mr. Upadhyaya relied on various decisions in support of his submissions such as Arshad Jamil vs. State of Uttarakhand : (2011) 9 SCC 313, wherein the Tahsildar who had issued a caste certificate cancelled the same vide a detailed order, which was approved by the Hon'ble Supreme Court on the reason that the caste certificate was originally issued wrongly.
37. Mr. Upadhyaya further submitted that once the caste certificate on the basis of which the petitioner secure employment is cancelled, there is no question of the petitioner being allowed to be continue in service and for this proposition Mr. Upadhyaya relied on the judgment of Hon'ble Supreme Court in Superintendent of Post Offices vs. R. Valasina Babu: (2007) 2 SCC 335.
38. The learned Senior Counsel submitted that longevity of petitioner's service so far cannot be a ground for perpetuation an illegality and in this context he relied on judgment of Hon'ble the Supreme Court in Central Bank of India vs. Madhulika Guruprasad Dahir : (2008) 13 SCC 170. He argued that the principles of promissory estoppel and equity cannot be extended to the benefit of the persons who get service illegally. Reiterating the same proposition, Mr. Upadhyaya relying on the judgment of the Hon'ble Supreme Court in State of Tamil Nadu vs. A. Gurusamy :
(1997) 3 SCC 542, and argued that when a fraud is played on the 26 W.P.(C) No.40/2012 constitution (securing employment on the basis of an illegally obtained caste certificate) principles of promissory estoppel and equity have no place.
39. In reply Mr. Moulik would place strong reliance on the judgment of the Division Bench of the Delhi High Court rendered in W.P.(C) 4743/2008 Kendriya Vidyalaya Sangathan vs. Shanti Acharya Sisingi wherein their Lordships would approve the appointment given to a candidate on the very basis of a wrongly issued caste certificate on the reason inter alia that the challenge to the appointment was raised years after the appointment was given. Mr. Moulik also placed reliance on a judgment of Hon'ble Supreme Court in Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar and others : (2008) 9 SCC 54, a case where the service of a person who had obtained appointment as a Scheduled Tribe candidate was saved by the Supreme Court notwithstanding the specific declaration that the Scheduled Tribe status of that person was invalid taking into account the subsequent events which has taken place in his service life. For more or less same proposition Mr. Moulik relied on the judgment of the Supreme Court in Punjab National Bank and another vs. Vilas and another : (2008) 14 SCC 545.
40. We have given our anxious consideration to the rival submissions made by the parties. We have gone through the rival pleadings and the various materials placed on record for the purpose and particularly Annexure P-15 impugned order. There is a clear finding in Annexure P-15 order passed by the 2nd respondent that in the matter of 27 W.P.(C) No.40/2012 applying for issuance of OBC Certificate the petitioner never tried to mislead the authorities by misrepresenting the facts. There is equally clear finding that there was no evidence before the 2nd respondent to show that the petitioner tried to conceal any material fact before the issuing authority. Though not in so many words it is found that the petitioner submitted the application in a printed format prescribed by the authorities which contained columns for incorporating the identity of the petitioner's spouse also. The 2nd respondent has further found in Annexure P-15, that too taking into account precedents in the matter of issuing OBC certificate in general in the past that neither the applicant nor the issuing authority has ever examined the eligibility criteria of the applicant seriously. In this context there is an observation in Annexure P-15 that even the 3rd respondent who was one of the candidates in the selection to the post of ACF in which the petitioner became successful was ignorant of the relevant criteria to be satisfied in issuing the OBC Certificate. It is after making all these observations that the 2nd respondent in a rather appologic tenor cancelled Annexure P-11 saying that "all said and done, it is an established fact of law that the OBC Certificate are issued only on the basis of parentage and not on the basis of marriage." In the penultimate paragraph of Annexure P-15 the 2nd respondent refused to examine the merits of the various other pleas including the petitioner's plea that even on the basis of parentage she belongs to OBC and that on considerations of equity her employment should be protected making an observation that such issues are beyond the 28 W.P.(C) No.40/2012 purview of the present proceedings and that it is open to the parties to raise such issues before the competent authorities.
41. We feel that the approach of the 2nd respondent was rather pedantic. We are of the view that the merits of the various claims and contentions raised by the parties, the petitioner and the 3rd respondent should have been gone into the 2nd respondent before taking a decision whether or not to cancel Annexure P-11, Caste Certificate. The 2nd respondent will hear both the parties again in the matter and give his verdict. It is open to the petitioner to convince the 2nd respondent that going into complicated questions regarding the actual caste status of the petitioner he is outside the 2nd respondent's domain and falls within the domain of Scrutiny Committee or any other competent authority. If so convinced, it is open to the 2nd respondent to pass orders relegating the parties to the Scrutiny Committee or such other competent authority. At any rate specific findings should be entered by the 2nd respondent on the eligibility or otherwise of the petitioner to OBC status based on her parentage. It is also open to the petitioner to inform the 2nd respondent that suffices, it will, if she is given the liberty to claim protection of service on equitable considerations if and when the competent authority initiates steps for terminating her service. If so informed the 2nd respondent can dispose of the matter afresh with appropriate direction to the parties in that regard. If it becomes necessary for the petitioner to claim equity for protection of her service before the concerned Department of State, the 29 W.P.(C) No.40/2012 petitioner will have the liberty of raising all the grounds she has raised before us in the matter of protection of her service.
42. The result of the above discussion is that the Annexure P-15 is quashed and the matter - complaint Annexure P-13 is remitted back to the 2nd respondent. The 2nd respondent is directed to take fresh decision in the light of what we have stated hereinbefore giving opportunity to all the parties not only to make submissions but also to produce documents in support of their submissions. The 2nd respondent will pass a revised order pursuant to this judgment early at any rate within 4 (four) months from receiving copy of this judgment and till then, as regards the service of the petitioner in Forest Department the status quo as obtaining today should be allowed to be maintained.
43. Writ Petition is allowed to the above extent.
44. No costs.
Sd/-
( Pius C. Kuriakose ) Chief Justice 03.06.2013 Sd/-
( S.P. Wangdi )
Judge
03.06.2013
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