Gauhati High Court
Mrs. Kabita Nazir Saikia vs The State Of Assam And 4 Ors on 23 December, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
WP (C)No. 2098 of 2014
Mrs. Kabita Nazir Saikia,
W/o Dr. Dhrubajyoti Saikia,
R/o Cherigaon Kathaniabari,
P.O. Chengeligaon,Pin Code-785010,
District- Jorjhat, Assam.
.......... Petitioner
-Vs-
1. The State of Assam, through the
Commissioner and Secretary, to the
Government of Assam, Education
Department, Dispur,Guwahati-6.
2. The Director of Secondary Education,
Assam, Kahilipara, Guwahati-19.
3. The Inspector of Schools, Jorhat District
Circle, Jorhat,P.O. and P.S. Jorhat,
District: Jorhat, Assam.
4. Mrs. Arati Kumari Devi,
W/o Mr. Manik Sarma,
R/o. Village: KenDuguri (No.1 Bamungaon)
P.O. Chengeligaon,Pin Code-785010,
District: Jorhat, Assam.
5. Mrs. Mayuri Saikia Phukan,
W/o Mr. Dhiren Phukan, R/o Village: Jail
Road, Near Navagraha Mandir, P.O. Jail Road,
District: Jorhat, Assam.
...... Respondents.
WP(C) No. 2098/14 Page 1 of 10
BEFORE HON'BLE MR JUSTICE T. VAIPHEI, CHIEF JUSTIC(ACTING) For the petitioner : Mr. I.H. Saikia, Ms. S. Kanango, Mr. K. Kalita, Ms. R. Begum, Advocates For the respondents: Mr. P.Saikia, SC Sec.
Edu.Deptt.
Mr. PP Dutta,
Mr. K. Sarma,
Mr. P. Borah,
Mr. D. Das, Advocates
Date of Hearing : 22.9.2015
Date of Judgment : 23-12-2015
JUDGMENT AND ORDER (CAV)
In thus writ petition, the petitioner is challenging the seniority of the respondent No. 4 and 5, who were placed above her in the inter- seniority list dated 7-12-2012 and the order dated 20-1-2012 allowing the respondent No. 4 to hold the charge of Headmaster of Rebakanta Baruah Public High School, Jorhat.
2. The facts of the case, as pleaded by the petitioner, are that in response to the advertisement dated 2-11-2010 issued by the Director of Secondary Education, Assam (respondent 2) for filling up the posts of Headmaster/Assistant Headmaster of various schools, the petitioner, the private respondents and other Assistant Teachers applied for the posts. The outgoing Headmaster of the Raba Kanta Baruah Public High School, Kenduguri, Jorhat, ("the school" for short) after the publication of the said advertisement, prepared and submit the seniority list of the School before the Inspector of Schools (respondent 3) by placing the respondent No. 4 above the petitioner. According to the petitioner, though the WP(C) No. 2098/14 Page 2 of 10 petitioner and other private respondents appeared in the selection process for the said posts, no select list has been published by the respondent authorities till now without any reason. The Headmaster of the School re-submitted the said seniority list which was counter-signed by the respondent No. 3 on 7-12-2011 by illegally placing the respondent No. 4 and 5 above the petitioner. This led her to file the representation dated 22-12-2011 before the respondent No. 2 and prayed for publication of the select list for appointing regular Headmaster of the School. The outgoing Headmaster retired from service on superannuation on 31-12- 2011. On his retirement, the respondent No. 3 illegally allowed the respondent No. 4 to hold the charge of Headmaster of the School. The petitioner immediately lodged a complaint with the respondent No. 2 and requested him to take a decision for publishing the select list and prayed for her appointment as regular Headmaster on the basis of merit-cum- seniority.
3. It is the further case of the petitioner that though she claims to be the senior-most eligible teacher of the School, the respondent No. 2 issued the order dated 20-1-2012 appointing the respondent No. 4 as the Headmaster-in-Charge of the School. When her repeated representations did not evoke any positive response, she was constrained to file WP(C) No. 2576/12 before this Court, which by the order dated 6-9-2012 directed the authority to decide the inter-seniority of the teachers of the School. The order was not complied with immediately whereupon Contempt Case (C) No. 91/14 was filed by her against the respondent authorities for compliance with the order of this Court. During the pendency of the contempt petition, the respondent No. 1 hurriedly passed the order dated 18-3-2014 placing the petitioner at Serial No. 3 below the private respondents. Aggrieved by this, this writ petition is again filed by the petitioner to ventilate his grievances.
3. On perusing the affidavit-in-opposition filed by the State- respondents, it is, however, seen that the petitioner belongs to Koch community, which is recognized as Other Backward Caster (OBC). She was selected and eventually appointed as Assistant Teacher of the School WP(C) No. 2098/14 Page 3 of 10 on 9-10-1998 on the basis of the reservation policy of the Government after she produced Scheduled Tribes Certificate from All Assam Koch on 19-8-1996. The selection was made on Roster Policy which means Roster Selection as she stood 1st in the selection list on the basis of her status as Scheduled Tribes candidates. However, the mark secured by the petitioner is poor compared to the respondent No. 5 (Smt. Mayuri Saikia Phukan), who belongs to OBC community and stood at Serial No. 2 in the same roster policy list published on the same day. However, the notification dated 28-1-1996 declaring Koch community as Scheduled Tribe, ceased to have any effect on and after 3-4-1997. After verification, the respondent authorities discovered that the petitioner was selected and appointed against the reserved post of Scheduled Tribes community on the basis of the Scheduled Tribes Certificate issued on 19-8-1996 and that the select list, which was published on 9-10-1998 after the said Notification dated 28-1-1996 ceased to have effect w.e.f. 3-4-1997, would, ipso facto, be equally inoperative. The answering respondent authorities claim that as Koch community ceased to be Scheduled Tribes with effect from 3-4-1997, the petitioner, who was selected and appointed after 3-4-1997, cannot get any benefits/entitlements made available to the Scheduled Tribe candidates. As she is reverted to her status as OBC community, she cannot steal a march over the private respondents, whose performances were more meritorious than that of her in the selection process as evident from the select list.
4. The question as to whether the benefit of the status of Scheduled Tribe can still be claimed even after it has been discovered that the tribe to which an individual belong is no longer recognized as Scheduled Tribes came up for consideration before the Apex Court in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54. In that case, the respondent No. 1 was granted ST certificate on the ground that he belonged to Halba-Koshti community. On the basis of this certificate, he got appointment in the Maharshtra Pollution control Board. Subsequently, a dispute arose about the status of the respondent No. 1, and the High Court upheld the claim of the respondent No. 1 that he belonged to Scheduled Tribe, Halba. However, prior to this, WP(C) No. 2098/14 Page 4 of 10 Maharashtra Government had constituted an Expert Committee which submitted its report in 1985 concluding that persons belonging to Koshti caste did not belong to Halba Scheduled Tribe, rather Koshti was a separate backward caste. Besides, there were directions from the Supreme Court in Madhuri Patil v. Commr., Tribal Deveopment, (1994) 6 SCC 241, for constitution of Caste Scrutiny Committee in every State. The case of the respondent No. 1 was referred to such Committee which held that respondent No. 1 did not belong to ST and, therefore, cancelled ST certificate dated 18-8-1987. The subsequent attempt of the respondent No. 1 to get the certificate validated from caste Scrutiny Committee also failed. He filed an application in the High Court of Bombay, revising his earlier case which had been decided by earlier order. The High Court disposed of the application by holding that its earlier order had attained finality and therefore the status of the respondent No. 1 as belonging to Scheduled Tribe could not be questioned again. The Maharashtra Pollution control Board was therefore held bound by the ST certificate. The decision was ultimately challenged before the Apex Court by special leave petition. The legal issues which came up before the Court were:- (1) whether the High Court in its impugned order should have stuck to its earlier finding in its order dated 11-8-1998, that the respondent No. 1 was deemed to have belonged to ST even though there were several developments in the meantime shedding light that the respondent No. 1 did not belong to ST; (2) whether reopening of the matter relating to the status of the respondent No. 1 s ST was barred by res judicata; and (3) whether the Apex Court could entertain SLP filed by the appellant who was not directly concerned with the status of the respondent No. 1 as ST.
5. As we are presently concerned with the above first issue, the following paragraphs of the judgment in Madhuri Patil case (supra) will be instructive:
"25. One of the questions which has been raised before us is as to whether the offer of appointment made in favour of Respondent 1 by the Maharashtra Pollution Control Board WP(C) No. 2098/14 Page 5 of 10 dated 16-3-1998 is final so as to attract the direction contained in para 38 of Milind 2.
26. Where the factual foundation arrived at by a committee authorised in this behalf concludes that a person is not a member of the Scheduled Tribe would remain operative unless set aside by a superior court. The judgment of the High Court in favour of Respondent 1 was rendered on a wrong premise. The claim of the respondents may be that he belonged to the Halba tribe but, therefor, no factual foundation was placed before the High Court. The High Court relied solely on its earlier decision to hold that Koshti would come within the purview of the Scheduled Tribe of Halba or Halbi. The decision was rendered in 1988. The records maintained by the school where the respondent studied were not placed before the High Court. Only when the Caste Scrutiny Committee, a statutory committee, proceeded to enquire into the matter, the truth came out.
27. We do not mean to suggest that an opinion formed by the Committee as regards the caste of the near relative of the applicant would be wholly irrelevant, but, at the same time, it must be pointed out that only because, by mistake or otherwise, a member of his family had been declared to be belonging to a member of the Scheduled Tribe, the same by itself would not be conclusive in nature so as to bind another committee while examining the case of other members of the family in some detail. If it is found that in granting a certificate in favour of a member of a family, vital evidences had been ignored, it would be open to the Committee to arrive at a different finding.
28. We reiterate that to fulfil the constitutional norms, a person must belong to a tribe before he can stake his claim to 2 (2001) 1 SCC 4 WP(C) No. 2098/14 Page 6 of 10 be a member of a notified Scheduled Tribe. When an advantage is obtained by a person in violation of the constitutional scheme, a constitutional fraud is committed."
6. Even after this, the controversy did not die down. Finally, in Shalini v. New English High School Assn., (2013) 16 SCC 526, the Apex Court, after referring to a plethora of past decisions including Raju Ramsing Vasave (supra) and Shalini case (supra), attempted to cull out the principles which would be relevant for deciding such like conundrums. These are:
7.1. If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended.
7.2. Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be "Koshtis" or "Halba-Koshtis" under the broadband of "Halbas", protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be.
7.3. This benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar 14 which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation 14 (2008) 9 SCC 54: (2008) 2 SCC (L&S) 802 WP(C) No. 2098/14 Page 7 of 10 passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milind 4 that the Constitution Bench clarified that "Koshtis" or "Halba-Koshtis" were not entitled to claim benefits as Scheduled Tribes and it was the "Halbas" alone who were so entitled. A perusal of the judgment in Vilas 9 by Sirpurkar, J., as well as Solunke 13 makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature.
7.4. Where a Resolution or Legislation exists, its raison d'être is that protection is justified in praesenti (embargo on removal from service or from reversion) but not in futuro (embargo on promotions in the category of Scheduled Caste or Scheduled Tribe).
7. In the instant case, the affidavit-in-opposition filed by the State- respondents reveals that that the petitioner applied for and was selected for the post of Assistant Teacher on 9-10-1998 as a Scheduled Tribe candidate as per the certificate issued by the All Assam Koch on 19-8- 1996, and her name figured at Serial No. 1 in the select list on the basis of such Certificate though the marks obtained by her was poor in comparison with that of the respondent No. 5 (Smt. Mayuri Saikia, OBC candidate). However, the Department for the Welfare of Plains Tribes and Backward Classes, Govt. of Assam, issued the Notification dated 7-4- 1998 stating that upon the lapse of the Ordinance declaring Koch Rajbongshies as ST(P) on 1997 and no new Ordinance being re- promulgated or no new bill having been passed to that effect and in pursuance of the order dated 2-4-1998 passed by the Gauhati High Court in CR No. 847/98 and other similar cases, the OBC status of Koch Rajbongshi was restored with effect from 3-4-1997 till the re- promulgation of Ordinance or passing of the Bill declaring them as ST(P) 4 State of Maharashtra v. Milind, (2001) 1 SCC 4: 2001 SCC (L&S) 117 9 Punjab National Bank v. Vilas, (2008) 14 SCC 545: (2009) 2 SCC (L&S) 143 13 Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430: (2012) 2 SCC (L&S) 609 WP(C) No. 2098/14 Page 8 of 10 and that the Department's earlier notification dated 28-1-96 ceased to have force with effect from 3-4-1997. It was, however, declared in the same notification that that order would not affect any action already taken by any authority in respect of reservation for OBC/MOBC/ST(P) candidates during 3-4-1997 till the date of this order.
8. As already noticed, the petitioner had applied for the post of Assistant Teacher in response to the advertisement issued in the year 1996 when she had still enjoyed the status of Scheduled Tribe, and was appointed on 9-10-1998, but she ceased to be a Scheduled Tribe with effect from 3-4-1997 in terms of the notification dated 7-4-1998. It can, however, be said in favour of the petitioner that till 7-4-1998, there was no question of her knowing that she had ceased to be a Scheduled Tribe on 3-4-1997 as the said notification was yet to be published. However, by the time, she was appointed as the Assistant Teacher on 9-10-1998, she must have known or deemed to have known that she could not have enjoyed the status of a Scheduled Tribe by that time and, therefore, would not be entitled to receive the benefits of Scheduled Tribe at the time of her appointment: she would only be entitled to be appointed against the quota of OBC. The question which now falls for consideration in this writ petition is whether the case of the petitioner falls within category No. 7.1 or 7.2. of Shalini case (supra). In my considered view, there is no satisfactory evidence to hold that her case would be covered by category 7.1.; at any rate, she is entitled to the benefit of doubt and cannot be held to have played fraud in getting the appointment. Therefore, the case of the petitioner will within the four corners of category 7.2 of Shalini case (supra) and will, therefore, enjoy the protection of employment but will hereafter be adjusted against the quota for OBC thereby rendering her ineligible to further benefits in the category of Scheduled Tribe. Consequently, there is no ground for interference with the impugned seniority list dated 7-12-2011 (Annexure- 6 and 7) or of the order dated 18-3-2014 (Annexure-15) placing her at Serial No. 3 below the private respondents or of the order dated 20-1- 2012 (Annexure-9) allowing the respondent No. 4 to hold the charge of Headmaster of Rabakanta Baruah Public High School, Jorhat.
WP(C) No. 2098/14 Page 9 of 109. For what has been stated in the foregoing, this writ petition has no merit and is, accordingly, dismissed. The parties are, therefore, directed to bear their respective costs.
CHIEF JUSTICE (ACTING) Sinha/Upadhaya WP(C) No. 2098/14 Page 10 of 10