Calcutta High Court (Appellete Side)
The Registrar General vs Shrinivas Prasad Shah & Ors on 16 September, 2011
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Shukla Kabir (Sinha)
F.M.A. 1217 of 2010
The Registrar General, High Court, Calcutta.
Versus
Shrinivas Prasad Shah & Ors.
For the Appellant: Mr. Aloke Kumar Ghosh.
For the Respondent : Mr. Arunava Ghosh,
Mr. Anindya Lahiri.
For the P.S.C.: Mr. Amalendu Mitra.
For the State : Ms. Bidisha Banerjee.
Heard On: 04.08.2011 and 10.08.2011.
Judgment On: 16.09.2011.
PRANAB KUMAR CHATTOPADHYAY, J.
Registrar General of this High Court preferred the instant appeal assailing the judgment and order dated July 30, 2010 passed by a learned Judge of this Court whereby and whereunder the said learned Judge allowed the writ-petition 2 filed by a candidate who participated in the West Bengal Judicial Service Examination, 2007.
The facts leading to this appeal are briefly stated hereinafter. The respondent-writ petitioner is a Scheduled Tribe and belongs to "Gond" community, which has been recognised as a Scheduled Tribe by way of amendment of the Scheduled Castes and Scheduled Tribes Act, 1976. The father of the petitioner is a Scheduled Tribe, and his status as such has been recognised by the S.D.O., Barrackpore who issued a certificate in this regard on 10th September, 1985. The respondent-writ petitioner also applied for issuance of the Caste Certificate before the S.D.O., Barrackpore on 11th April, 2002. The Director, Backward Class Welfare, Govt. of West Bengal also issued a certificate recognising the respondent-writ petitioner as a Scheduled Tribe being a member of "Gond" community. The Director, Backward Class Welfare, Govt. of West Bengal issued the aforesaid certificate being a competent authority under the Notification No. 837/TW/EC/6M-58/89 dated 12th September, 1990. The writ petitioner was also enrolled as an advocate with effect from 23rd September, 2006.
An advertisement was published in the newspaper by the Public Service Commission, West Bengal inviting applications from the eligible candidates for recruitment to the West Bengal Judicial Service. Eleven vacancies were kept reserved for Scheduled Tribe Candidates. The respondent-writ petitioner 3 submitted his application form for the aforesaid West Bengal Judicial Service Examination. The said respondent-writ petitioner, however claimed himself as a Scheduled Tribe Candidate while submitting the prescribed application form for the West Bengal Judicial Service Examination by putting a 'Tick' mark within the box specified for mentioning the community in the said application form. The respondent-writ petitioner also mentioned his Sub-Caste as 'Gond' in the specified box of the said application form. The respondent-writ petitioner specifically mentioned in the application form that he has applied before the S.D.O., Barrackpore for issuance of the Scheduled Tribe Certificate. The respondent-writ petitioner enclosed the Caste Certificate issued by the Director, Backward Class Welfare, Govt. of West Bengal along with the application form.
The result of the aforesaid West Bengal Judicial Service Examination was published on 29th September, 2007 wherein the name of the petitioner was shown as a General Category candidate. The said respondent-writ petitioner thereafter appeared in the personality test on 4th December, 2007 and the list of selected candidates was published on 23rd March, 2008 wherein the name of the petitioner was also shown as a General Category candidate and not in the category of Scheduled Tribe.
The learned counsel representing the appellant submitted that the respondent-writ petitioner having understood his caste status purchased the application form upon payment of the prescribed fees of Rs. 200/- which is charged from the General Category candidates.
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Mr. Aloke Kr. Ghosh, learned counsel of the appellant submitted that the respondent-writ petitioner after publication of the result of the written test in relation to the West Bengal Judicial Service Examination, 2007 found himself as a General Category candidate and without raising any objection thereafter appeared in the personality test of the said examination.
According to the learned counsel of the appellant, the respondent-writ petitioner took a chance for being selected as a General Category candidate and only after being unsuccessful in the said attempt filed the writ petition claiming his status as a reserved category candidate.
The learned counsel of the appellant submitted that there is no scope under the law to treat the respondent-writ petitioner as a Scheduled Tribe Candidate since the said respondent-writ petitioner got the Scheduled Tribe Certificate long after the cut off date fixed for submission of the application form for the aforesaid West Bengal Judicial Service Examination 2007.
The learned counsel of the appellant further submitted that the Director, Backward Classes Welfare, Govt. of West Bengal is not the competent authority for the purpose of issuing the Scheduled Tribe Certificate (hereinafter referred to as S.T. certificate).
Mr. Ghosh, learned counsel of the appellant submitted that the respondent-writ petitioner intended to be recruited as a General Category candidate and therefore, purchased the prescribed application form upon payment of Rs. 200/- which is payable by the General Category candidates. Mr. Ghosh further submitted that the respondent-writ petitioner could not furnish 5 the S. T. Certificate at the time of submission of the prescribed application form and even before the completion of the selection process.
The learned counsel of the respondent-writ petitioner however, submitted that the Public Service Commission, West Bengal committed a serious error by not treating the said writ petitioner as a Scheduled Tribe Candidate specially when the said writ petitioner claimed himself as a Scheduled Tribe Candidate and submitted a certificate issued by the Director, Backward Classes Welfare, Govt. of West Bengal in support of the said claim.
Mr. Arunava Ghosh, learned counsel of the respondent-writ petitioner submitted that the said respondent-writ petitioner applied before the S.D.O., Barrackpore for issuance of the S.T. Certificate in the year 2002 which was ultimately issued by the S.D.O. in the year 2009.
Referring to 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 Paragraph 12 (10) at page 104 Mr. Arunava Ghosh submitted that the Public Service Commission should not have altogether rejected the claim of the petitioner as a Scheduled Tribe Candidate under any circumstances.
Mr. Arunava Ghosh submitted that the concerned authorities particularly the Public Service Commission, West Bengal failed to take appropriate steps for the benefit and advancement of the genuine Scheduled Tribe Candidate like the respondent-writ petitioner following the decision of the Supreme Court in the aforesaid case of Kumari Madhuri Patil (Supra).
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Mr. Arunava Ghosh also submitted that the aforesaid decision of the Supreme Court in the case of Kumari Madhuri Patil (supra) was subsequently followed by the Supreme Court in the case of Director of Tribal Welfare Vs. Laveti Giri, reported in AIR 1997 SC 2046. Learned Counsel of the respondent- writ petitioner submitted that the concerned authorities following the principles already settled by the Supreme Court in the aforesaid decisions should have provisionally appointed the respondent-writ petitioner to the post of Civil Judge (Junior Division) till the issuance of the Caste Certificate by the S.D.O., Barrackpore before whom the said writ petitioner submitted an application for issuance of the Caste Certificate.
Mr. Arunava Ghosh further submitted that the principles enumerated in Kumari Madhuri Patil's Case (supra) were not mere guidelines but binding in law. Mr. Arunava Ghosh cited the decision of the Supreme Court in the case of G. M. Indian Bank vs. R. Rani & Anr., reported in (2007) 12 SCC 796 in support of his aforesaid contention. Mr. Arunava Ghosh also submitted that the Govt. of India has issued circulars from time to time to the effect that if any Scheduled Caste or Scheduled Tribe Candidate is unable to produce caste certificate from the prescribed authority within the prescribed time limit, he may be provisionally appointed on the basis of any prima facie proof which the said candidate is able to produce in support of his claim.
The Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi published a Brochure on reservation of Scheduled Castes and Scheduled Tribes in Services. Procedure for 7 verification of the claims of Scheduled Castes and Scheduled Tribes Candidates has been mentioned in chapter 13 of said Brochure. Relevant extracts from said chapter 13 are set out hereunder:-
"13.2 Where a candidate belonging to a Scheduled Caste or Scheduled Tribe is unable to produce a certificate from may of the prescribed authorities, he may be appointed provisionally on the basis of whatever, prima facie proof he is able to produce in support of his claim subject to his furnishing the prescribed certificate within a reasonable time or if there is genuine difficulty in his obtaining a certificate, the appointing authority should itself verify his claim through the District Magistrate concerned."
Mr. Arunava Ghosh specifically referred to the aforesaid clause 13.2 and submitted that the concerned authorities have acted illegally by not appointing the respondent-writ petitioner even on provisional basis to the post of Civil Judge (Junior Division) specially when the said writ petitioner submitted the caste certificate issued by the Director, Backward Classes Welfare, Govt. of West Bengal, in support of his claim as a Scheduled Tribe Candidate.
Undisputedly, the respondent-writ petitioner specifically mentioned in the application form for the West Bengal Judicial Service Examination, 2007 that he belongs to Scheduled Tribe community and had enclosed a certificate in this regard issued by the Director, Backward Classes Welfare. Therefore, the said respondent-writ petitioner should have been considered by the concerned authorities including the Public Service Commission as a Scheduled Tribe Candidate as he had prima facie substantiated his claim as a Scheduled Tribe Candidate. The said writ petitioner should have also been appointed provisionally 8 to the post of Civil Judge (Junior Division) subject to production of the caste certificate issued by the appropriate authority instead of keeping the posts reserved for the Scheduled Tribe Candidates vacant The father of the respondent- writ petitioner is admittedly, holding S.T. Certificate issued by the prescribed authority which was not only produced before the concerned authorities but also before us.
The respondent-writ petitioner undisputedly, was born in Scheduled Tribe family and therefore, he is a member of the Scheduled Tribe Community since birth. The competent authority by issuing the certificate at a subsequent stage only affirmed the existing fact that the said writ petitioner is a member of the Scheduled Tribe Community. In the case of Kumari Madhuri Patil (supra), the Hon'ble Supreme Court specifically observed: -
" "10. In case of any delay in finalising the proceeding, and in the meanwhile the last date for admission into an educational institution or appointment to an office or post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee."
Mr. Arunava Ghosh, learned counsel of the respondent-writ petitioner also placed reliance on an unreported judgment of Delhi High Court in Tejpal Singh & Ors. Vs. N.C.T. of Delhi & Ors., which were subsequently affirmed by the Division Bench of the said Delhi High Court. This Bench had also occasion to deal with the identical issue in the case of Smt. Srabanti Naskar (Mondal) vs. State & Ors. (F.M.A.970 of 2011) wherein the aforesaid unreported decision of 9 the Delhi High Court was considered. The relevant extracts from the aforesaid unreported decision of this Bench in the case of Srabanti Naskar (Mondal) (supra) are set out hereunder: -
"The learned counsel of the appellant also submits that a learned Judge of the Delhi High Court considered the aforesaid issue in an unreported decision in the case of Tej Pal Singh and Others vs. Government of N.C.T. of Delhi and Others which was decided on 24th December, 1999. A copy of the aforesaid unreported judgment has been produced before this Court. The relevant extracts from the aforesaid unreported judgment are set out hereunder :
"........The matter can be looked into from another angle also. As per the advertisement dated 11th June, 1999 issued by the Board, vacancies are reserved for various ctegories including 'SC' category. Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category. It is not that petitioners did not belong to 'SC' category prior to 30th June, 1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate..."
The aforesaid decision was thereafter considered and approved by the Division Bench of the Delhi High Court in the case of MCD Vs. Sangeeta Saini and Another on 18th August, 2006. A copy of the aforesaid unreported judgment has been produced before this Court. The relevant extract from the aforesaid unreported judgment is set out hereunder :
".......The order of the learned Single Judge in Tej Pal Singh (supra) was affirmed by 10 a Division Bench of this Court by Judgment dated 15.12.1990 in Delhi Subordinate Selection Board vs. Tej Pal Singh. There the Division Bench, in similar circumstances negatived the plea that the candidature of certain applications who had not submitted the OBC certificate by a certain cut-off date ought to be rejected. The Division Bench observed as under :
In this background, we cannot appreciate the argument raised by the learned Counsel that the certificate raised by Government of NCTD was also required to be submitted before 30th June, 1998 when their own officers were delaying the process of issuing these certificates. To exclude respondents merely on this ground will clearly be arbitrary and in direct conflict with the fundamental rights and directive principles as incorporated in various provisions of the Constitution of India ....."
The learned Counsel for the appellant also cited another unreported Division Bench judgment of the Delhi High Court in the case of Hari Singh vs Staff Selection Commission & Anr. (W.P. (C) No. 11928/2009). In the aforesaid unreported judgment delivered by the Division Bench of the Delhi High Court on 6th April, 2010 it has been mentioned that the decision of the learned Single Judge in Tej Pal Singh (supra) was not only affirmed by the Division Bench of the Delhi High Court, but a special leave petition preferred by the Government was also dismissed in limine by the Supreme Court. Paragraph '30' of the aforesaid unreported judgment is set out hereunder :
"30. The decision of the learned Single Judge in Tej Pal Singh (supra) having been affirmed by the Division Bench in LPA No. 304/2000 decided on 15.12.2000, and the Special Leave Petition preferred by the Government also having been dismissed in limine by the Supreme Court on 16.04.2001, so far as this court is concerned, the said decision has attained finality." "11
Mr. Aloke Ghosh, learned counsel of the appellant submitted that in the instant case, the respondent-writ petitioner was required to submit the S.T. Certificate before the last date for submission of the prescribed application form for the West Bengal Judicial Service Examination, 2007. Mr. Ghosh further submitted that the respondent-writ petitioner admittedly, received the S.T. Certificate from the competent authority on 12th September, 2009 and therefore, the said respondent-writ petitioner can be recognized as a Scheduled Tribe candidate only after issuance of the aforesaid certificate by the competent authority in the year 2009 and the same cannot have any retrospective effect. Mr. Ghosh also submitted that the respondent-writ petitioner did not attach the attested copy of the S.T. certificate along with the prescribed application form although the same was mandatory requirement and therefore, the respondent- writ petitioner was not recognized as a Scheduled Tribe candidate for non- submission of the attested copy of the S.T. certificate issued by the competent authority.
Scrutinizing the application format of the West Bengal Judicial Service Examination, 2007 we find that S.C./S.T./B.C. candidate was required to attach attested copy of the certificate. It was however, not mentioned that such certificate should be issued by the local S.D.O. Relevant extracts from the "Application Format" issued by the Public Service Commission, West Bengal and submitted by the respondent-writ petitioner being annexure P-6 of the Stay Application are set out hereunder :
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"4 (a). Indicate your community Genl. SC ST BC (Put a ' √ ' mark in appropriate box/boxes).
SC/ST/BC candidates not belonging to the √ State of West Bengal should indicate their Community as 'General' [SC/ST/BC candi- date shall attach attested copy of certificate(s).]"
The respondent-writ petitioner herein admittedly, submitted the S.T. Certificate issued by the Director, Backward Classes Welfare, and Govt. of West Bengal.
Mr. Ghosh, learned counsel of the appellant relied on the following decisions of the Supreme Court, in support of his arguments: -
1. Ashok Kumar Sonkar vs. Union of India & Ors., reported in (2007) 4 SCC 54.
2. Upen Chandra Gogoi Vs. State of Assam & Ors., reported in AIR 1998 SC 1289 Para 6.
3. Ashok Kumar Sharma & Anr. Vs. Chander Shekhar & Anr., reported in (1997) 4 SCC 18 Para 6,
4. Bhupinderpal Singh & Ors. Vs. State of Punjab & Ors., reported in (2000) 5 SCC 262.
Relying on the aforesaid decisions, Mr. Ghosh submitted that the respondent- writ petitioner herein could not be recognized as a Scheduled Tribe candidate for 13 the West Bengal Judicial Service Examination, 2007 since the said respondent- writ petitioner could not satisfy the required eligibility criteria. We are however, unable to accept the aforesaid contentions made on behalf of the appellant. The aforementioned judgments cited by Mr. Aloke Ghosh, learned counsel of the appellant, in support of his arguments are also not at all relevant for the purpose of deciding the issues raised in this appeal. The respondent-writ petitioner was born in a Scheduled Tribe Family and therefore, became a member of the said Scheduled Tribe community since birth. Undisputedly, the father of the respondent-writ petitioner is a member of the West Bengal Higher Judicial Service in the category of Scheduled Tribe. Since the respondent-writ petitioner was born in a Scheduled Tribe family, he has to be recognised as a member of the Scheduled Tribe community. 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.
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 14 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.
The respondent-writ petitioner submitted the application form for the West Bengal Judicial Service Examination, 2007 within the prescribed time limit claiming himself as a Scheduled Tribe candidate and also attached the attested copy of the Caste/Tribe certificate issued by the Director, Backward Classes Welfare, Govt. of West Bengal along with the said application form. The respondent authority should not have altogether ignored the aforesaid claim of the respondent-writ petitioner for treating him as a member of the Scheduled Tribe community. The competent authority, upon considering the performance of the respondent-writ petitioner in the West Bengal Judicial Service Examination, 2007 should have appointed him provisionally to the post of Civil Judge (Junior Division) as Scheduled Tribe candidate, subject to result of any enquiry by appointing a Scrutiny Committee as held by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra) or sufficient time should have been granted to the respondent-writ petitioner for submission of the Caste certificate after issuance of the same by the S.D.O., Barrackpore before whom necessary application was submitted by the respondent-writ petitioner in the year 2002 for issuance of the said Caste certificate.
For the reasons discussed hereinbefore and following the principles already settled by the Division Bench of this Court and the Hon'ble Supreme Court, we 15 find no infirmity and/or illegality and/or irregularity in the impugned judgment and order under appeal passed by the learned single Judge. The learned single Judge, in our opinion, has rightly decided the issues raised in the writ petition on merits.
Therefore, we find no scope to interfere with the impugned judgment and order under appeal passed by the learned single Judge. Accordingly, we affirm the judgment and order under appeal passed by the learned Single Judge and dismiss this appeal without awarding any cost.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] Shukla Kabir (Sinha), J.
I agree.
[SHUKLA KABIR (SINHA), J.]