Calcutta High Court (Appellete Side)
Dd Smt. Rinku Shah vs State Of West Bengal & Ors on 18 May, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
1
WP 7589 (W) of 2009
01 18.05.2016
dd Smt. Rinku Shah
Vs.
State of West Bengal & Ors.
Mr. Samim-Ul-Bari
... ... For the petitioner
Mr. Pantu Deb Roy
Mr. Subrata Guha Biswas
Mr. Anit Kr. Das
... ... For the State
Mr. Biswajit Hazra
... ...For the College Authority
Mr. Anil Kr. Gupta
... ...For the respondent nos. 6 & 7
Mr. Pulak Ranjan Mondal Mr. B. Das ... ...For the respondent no. 2 This writ petition has been listed as 'To be Mentioned' at the instance of Mr. Bari, learned advocate appearing on behalf of the petitioner on submission made that it could be disposed of. The parties are represented and by consent the hearing of the writ petition is taken up.
By appointment letter dated 22nd August, 2008 the petitioner was appointed by the Principal, Bidhan Chandra College as lecturer on the recommendation of the West Bengal College Service Commission. It is her case that she was appointed as a reserved candidate belonging to Caste 'Gond'. Annexure- "P/1" to the writ petition is her Scheduled Tribe Certificate issued by the competent Authority of the State of Uttar Pradesh. 2 The Government of West Bengal, Education Directorate by memo dated 8th December, 2008 informed the Principal of the College that the petitioner had to submit specific certificate obtained from the BCW Department of Government of West Bengal for acceptability of her Caste Certificate. The petitioner has averred in paragraph 17 of the writ petition that salary of the petitioner had been stopped in the absence of acceptability of her Caste Certificate and pay fixation could not be done. Hence she has prayed for the reliefs in the writ petition. Mr. Bari submits, his client's case is covered by an earlier unreported judgment dated 21st January, 2014 of this Court made in W.P. 14016 (W) of 2005 Md. Hussain vs. State of West Bengal. He submits the said judgment was rendered in similar facts. He submits there was no suppression by his client in applying for the job of lecturer. Her candidature was duly recommended and she was appointed. She was paid her salary. Furthermore, he submits with reference to copy of the affidavit-in-opposition of the State served upon his client and handed upto Court, the Caste 'Gond' is recognized as Scheduled Caste by the Government of West Bengal. In that context he relies on the following portion of Md. Hussain (supra) as is set out below :-
"I find from entry 63 in that list that 'Shershabadia' is notified as Backward Class under notification No. 5001-BCW dated 7th October, 2002. The copy of the said list be kept on record. Mr. Bari also relies upon an unreported judgment dated 21st June, 2000 passed by this Court (Ramjit Ram-vs- State of West Bengal and others) where a similar question was raised and decided in favour of the person claiming reservation in West Bengal on the basis of a certificate obtained from another State, therein the State of Uttar Pradesh.
What is clear from the facts of the present case is that the writ petitioner did not suppress any information at the time when he 3 had applied. It appears from the contention raised by the State in canceling the recommendation that the writ petitioner was deemed to be informed about the position that candidates belonging to O.B.C. categories from other states may appear as general candidates for consideration for recommendation of appointment under the School Service Commission, West Bengal. However, the fact remains that the School Service Commission itself made a mistake in not noticing a breach of the said term, in the application filed by the writ petitioner before it. The consequence was that the writ petitioner was allowed to join and still continues to serve a an assistant teacher in Geography in the said school though without payment of salary to him. When this matter went up in appeal and the direction was made that the petitioner be allowed to continue to serve as assistant teacher, the State accepted such direction. In those circumstances, when this court finds that the community to which the writ petitioner belongs is otherwise accepted by the State of West Bengal as a reserved community, the action of the State is seeking to substantiate their cancellation of recommendation cannot be sustained."
Mr. Mondal, learned advocate appears on behalf of the College Service Commission and submits, the matter be referred to the Secretary, Backward Class Welfare Department, Government of West Bengal. Mr. Deb Roy, learned advocate appears on behalf of the State and submits with reference to the copy of affidavit-in-opposition filed on behalf of the respondent no. 5, by reason of change in the panel of the State Government, he had been subsequently briefed and does not have the original of the affidavit-in-opposition, copy of which was served upon the petitioner and handed up by Mr. Bari. He refers to Annexure-
"R/2" in the said copy affidavit and submits that a Scheduled Caste person on migration from the State of her origin to another State would not lose her status 4 as Scheduled Caste but she would be entitled to the concession/benefit admissible to the Scheduled Caste from the State of her origin and not from the State where she has migrated.
Mr. Hazra, learned advocate appears on behalf of the College Authority and submits, prayer for approval of appointment of the petitioner has already been forwarded to the Directorate of Public Instruction by his client. Mr. Gupta, learned advocate appears on behalf of the University Grants Commission and adopts the submission made by Mr. Deb Roy.
This Court finds from the copy affidavit-opposition, which is kept on record, in paragraph 12 therein on behalf of the State it has been averred, inter alia, as follows :-
"12. With reference to the statements contained in paragraph 16 of the writ application I deny the statements which are contrary to records and say that the case of the petitioner is that she belongs to one "GOND" caste of the Scheduled Tribe community and acquired her caste certificate from Balia district of Uttar Pradesh. The same 'GOND' tribe also appears in the list SC and ST for the State of West Bengal. But this State strictly has to follow the directives of the Central Government, vide its D.O. No. 12017/4/89-SCD (R. Cell) dated the 8th January, 1990 and their instructions of Government of India concerning issue of caste certificates to Scheduled Castes and the Scheduled Tribes vide their No. 35/1/72-RU(SCT.V0 dated 02.05.1975 and No. BC- 16014/1/82-SC & BCD-I dated 18.11.1982. In these orders, the cases of the SC and ST migrating from other States to this State have been categorically clarified. As per these orders, an SC/ST person migrated from one State to another, can claim to belong to a SC/ST only in relation to the State to which he originally belonged to and not in respect of the State to which he has 5 migrated. A person migrated to West Bengal from other States after 1950, is not entitled to the benefits provided by the State Government to the persons belonging SC or ST, though the caste/tribe he or she belongs to is listed as SC/ST in this State. However, a person migrated from other State/Union Territory to the State of West Bengal after publication of the Presidential Orders on Scheduled Castes and Scheduled Tribes can also apply for Caste Certificate, though he is not entitled to benefits given to Scheduled Castes and Schedules Tribes by the State of West Bengal. In such case, the prescribed authority may issue the Scheduled Caste/Tribe Certificate to such person on production of the genuine certificate issued to his father/mother by the prescribed authority of the State of the father's mother's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in West Bengal. The xerox copies of the Government of India's Instruction dated the 8th January, 1990, the 2nd May, 1975 and the 18th November, 1982 is annexed herewith and marked with letter R-1 collectively."
Then, in paragraph 13 while dealing with the allegation of the petitioner regarding stoppage of her salary the following was stated :-
"13. With reference to paragraph 17 of the writ application I deny the statements which are contrary to records and dispute the submissions and reiterate those made above."
On scrutiny of candidature the West Bengal College Service Commission recommended the appointment of the petitioner. There is nothing on record for this Court to find there was any suppression on the part of the 6 petitioner. The recommendation was acted upon. The petitioner, it appears, after being appointed was paid salary which was subsequently stopped. There is also no dispute that the Caste 'Gond' is also recognized by the Government of West Bengal as a Scheduled Caste. These facts are similar to those in which the decision in Md. Hussain (supra) was delivered. Hence, this writ petition is found to be covered thereby. The petitioner is thus entitled to the same direction.
The concerned respondent no. 4 is directed to take steps regarding grant of approval to the petitioner's appointment in view of the reasons given above, within a period of two months from the date of communication of this order by the petitioner. Consequently, there will be a direction for disbursement of all arrears salaries to the petitioner within that time.
The writ petition is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Arindam Sinha, J.) 7 8