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2006 DIGILAW 544 (CAL)

ANIL KUMAR BAGDI v. STATE OF WEST BENGAL

2006-08-29

PATHERYA, V.S.SIRPURKAR

body2006
VIKAS SHRIDHAR SIRPURKAR, C. J. ( 1 ) THIS appeal is against the judgment of the learned single Judge whereby the learned Judge has dismissed the writ petition. In that writ petition, the petitioner Anil Kumar Bagdi challenged the order passed by the director of School Education, West Bengal dated 9th/11th September, 2003 in memo No. 222/1 (6)-L. S. By that order the Director of School Education held that the private-respondent in that writ petition viz. , Bikash Chandra Saha was a scheduled caste candidate belonging to sunri caste and since he had scored higher marks in the interview for the post of Clerk compared to the petitioner, he should be given the appointment. Short facts are as under: - ( 2 ) THERE was a post of Clerk at Barashija Fulur Anchal Vidyalaya in birbhum District. Both Bikash Chandra Saha as well as Anil Kumar Bagdi applied for the post. This post was meant for. the scheduled caste candidate. Both the contenders belonged to scheduled caste in the sense that Anil Kumar Bagdi belonged to the caste of 'bagdi' whereas Bikash Chandra Saha belonged to the caste of sunri (excluding Saha ). It only so happened that. Bikash Chandra has the surname "saha". When the panel was sent to the District Inspector of schools, the District Inspector of Schools directed that all the persons in the panel bearing the surname 'saha' should be ousted from the panel as because of tha [surname they did not belong to the scheduled caste. This direction was perhaps on the basis of a Memo of the State of West Bengal whereby it was held that all persons belonging to sunri caste but using the surname Saha were not to be treated as scheduled caste. It is an admitted position that eventually this Memo dated 2nd February, 1999 bearing No. 182 (11)/b. C. N.-B. H. R. S. was ultimately cancelled by another Memo No. 4060-B. C. W. /m. R.-185/95 Calcutta dated 15th September, 2000. ( 3 ) BASING on this, the panel was not approved and hence Bikash Chandra saha filed a writ petition bearing W. P. No. 8566 (W) of 2000 wherein he claimed that though his surname was Saha, he was armed with a proper certificate in a proper form issued by the appropriate authority whereby his caste was clearly declared as sunri (excluding Saha ). He, therefore, pointed out that though his surname was Saha, he could not be excluded merely on the basis of that surname. This argument was based obviously under the reported decision of the Supreme Court in AIR 1967 SC 115 , Abhoy Pada Saha v. Sudhir Kumar mondal. In that case the Supreme Court had clearly held that merely because a person belonging to sunri caste bears the surname Saha he does not loose his status as a scheduled caste candidate. The learned Judge, who entertained the writ petitioner, Ansari, J. (as His Lordship then was) allowed the writ petition with a direction to the Director of School Education to go into the question as to whether there was material available to hold that the petitioner Bikash Chandra saha belonged to the scheduled caste and was rightly awarded the certificate. In our opinion, such direction was wholly unnecessary because once there was a genuine certificate issued by the proper authority certifying that Bikash Chandra saha was a scheduled caste as was available-on-record and unless that certificate was cancelled by any proper authority, the certificate held good and that should have been held to be the be all and end all of the matter in so far as it pertained to the status of Bikash Chandra Saha as a scheduled caste candidate. ( 4 ) BE that as it may, the Director of School Education had made reference fortunately to the proper authority, i. e. the Sub-Divisional Officer. It seems that the Sub-Divisional Officer went into the matter all over again and reported to the Director of School Education that, Bikash Chandra Saha did not belong to the scheduled caste and that though he bore the surname of Saha, he in fact belonged to sunri (excluding Saha) caste which was a scheduled caste for the state of West Bengal as per the Presidential order. On that basis the Director of school Education issued the order approving Bikash Chandra Saha as a candidate to be approved because obviously he scored better than his counterpart anil Kumar Bagdi. This was challenged by Anil Kumar Bagdi before the learned Single Judge who relying on the aforementioned judgment and also referring to the later judgment of Pankaj Kumar Saha v. The Sub-Divisional officer, Islampur and Ors. This was challenged by Anil Kumar Bagdi before the learned Single Judge who relying on the aforementioned judgment and also referring to the later judgment of Pankaj Kumar Saha v. The Sub-Divisional officer, Islampur and Ors. , reported in AIR 1996 SC 1728 , came to the conclusion that he action on the part of the Director of School Education was proper and that Bikash Chandra Saha was to be a proper candidate and was to be accorded approval as a clerk in the school. It is this judgment which is challenged in this appeal. ( 5 ) MR. Gupta, learned Senior Advocate vociferously argued that the learned judge had erred in accepting the order of the Director of School Education which by itself depended upon the enquiry report made by the Sub-Divisional officer. His contention is that enquiry was not proper nor was any opportunity given to the concerned parties, i. e. the appellant herein to prove that Bikash chandra Saha did not belong to sunri caste. Learned Counsel as a second leg of his argument tried to rely on the later judgment of the Supreme Court reported in AIR 1996 SC 1728 , Pankaj Kumar Saha v. The Sub-Divisional Officer, lslampur and Ors. and suggested that in that case the Supreme Court has gone to the extent of saying that those persons belonging to sunri caste but using the surname of Saha would loose their status as a scheduled caste. Lastly the learned Counsel urged that in whatever manner but the concerned authority had relied on the earlier referred memorandum in 1999 appearing in page 34 of the present paper book which was in vogue at that time and, therefore, any decision taken on that basis should not be upset merely because the said memorandum was later on cancelled. ( 6 ) AS against this, Mr. Deb Burman pointed out that there was a valid certificate with which the respondent herein was armed. That certificate was not cancelled by any authority on the basis of any complaint or otherwise. Mr. Deb Burman argues that once that certificate stood, there was no question of denying the status of scheduled caste to Bikash Chandra Saha. Mr. Deb burman also relied on the earlier Constitution Bench decision of Abhoy Pada saha v. Sudhir Kumar Mondal, reported in AIR 1967 SC 115 . Mr. Deb Burman argues that once that certificate stood, there was no question of denying the status of scheduled caste to Bikash Chandra Saha. Mr. Deb burman also relied on the earlier Constitution Bench decision of Abhoy Pada saha v. Sudhir Kumar Mondal, reported in AIR 1967 SC 115 . We were taken through the judgment of Pankaj Kumar Saha cited (supra) and the learned counse suggests that even that judgment cannot be read the way, the learned counse for the appellant wants it to be read. ( 7 ) ON these rival contentions it has to be considered whether the learned single Judge was right in upholding the order of the Director of School Education. ( 8 ) THE mode of deciding the status of the scheduled caste is more or less settled in this country. Almost all the States have created machinery to decide the genuineness of the certificate awarding the status of scheduled caste. So also the rules have been formulated for examining the claims for the status of scheduled caste. Fortunately, it was not contradicted before us by the learned senior Counsel for the appellant that there is such machinery in this State and powers in that behalf lie with the Sub-Divisional Officer. ( 9 ) WE must note one thing that there is a valid certificate in favour of bikash Chandra Saha certifying that he belonged to sunri (excluding Saha)caste and this certificate still stands valid. It is also an admitted position that the certificate was never challenged by anybody suggesting that either it was a fake certificate or that it was forged one. Again when we look into the records it becomes apparent that a reference was made by the Director of School education, to the Sub-Divisional Officer who was the Officer having authority in law to go into the correctness of the certificate. It is found that the said Sub-Divisional Officer has gone into the matter, enquired afresh, probably because the earlier record was not available and then has reached to the conclusion that the claim of Bikash Chandra Saha that he belonged to the scheduled caste was a correct claim. It is found that the said Sub-Divisional Officer has gone into the matter, enquired afresh, probably because the earlier record was not available and then has reached to the conclusion that the claim of Bikash Chandra Saha that he belonged to the scheduled caste was a correct claim. Once that position is clear there would be in reality no question of going into further issue because everything would depend upon the finding as to whether Bikash Chandra Saha who had topped in the panel was a genuine scheduled caste candidate or not. In our opinion that question has now been concluded firstly because of the fact that the certificate issued by the authorities still staands good and has not been cancelled or challenged by anybody and, secondly, because of the subsequent enquiry made by the Sub-Divisional Officer and this certifying that Shri Bikash Chandra Saha belonged to the scheduled caste. ( 10 ) ONCE that question is over, there would be in reality no question of going into any other aspects. However, we must test the argument of Mr. Gupta that in the year 1996 the Supreme Court has taken a different view. We really see no conflict in the two decisions, viz. , Abhoy Pada Saha (supra) and Pankaj kumar Saha (supra ). It is true that at once place the Supreme Court has observed that Pankaj Saha was using the surname as Saha, however, when we see the contents of Paragraph-5 of that judgment it becomes clear that in a fact finding enquiry it was found that apart from the fact that Pankaj Kumar Saha bore the surname of Saha, his family was in fact the Saha by caste and that was found by the authorities as a fact. Not only this, but family of Pankaj Kumar Saha belonged to the caste of 'saha' for over a century. The Supreme Court has also recorded that the caste Saha belongs to those who were in the liquor business and was a separate community or as the case may be, caste. The Supreme court has also made a distinction that though some persons of sunri caste had also adopted toddy (liquor) tapping as profession, they suffered untouchability which 'saha' caste persons belonging to liquor business community (like Sethi balija, Edigal or Gowda in Andhra Pradesh) were not scheduled caste. The Supreme court has also made a distinction that though some persons of sunri caste had also adopted toddy (liquor) tapping as profession, they suffered untouchability which 'saha' caste persons belonging to liquor business community (like Sethi balija, Edigal or Gowda in Andhra Pradesh) were not scheduled caste. Therefore, we do not really see any conflict in the two decisions and it is clear that in the decision of Pankaj Kumar Saha, the Supreme Court has recorded a finding of fact that there is a separate sub-caste called Saha who are traditionally engaged in the liquor business and that caste Saha is separate and disintict from the cas e sunri. Once this position is clear there is no question of any conflict in the two decisions. In the Abhoy Pada's case the Supreme Court has very clearly held that merely because a person who belonged to sunri caste bears the surname of Saha he did not loose his status as a scheduled caste person. ( 11 ) THE learned Single Judge in our opinion has correctly held relying on the acts as also the law laid down in the above two cases that Bikash Chandra saha did belong to scheduled caste and as such his exclusion from the panel merely on the basis of his surname Saha was not proper. We are in entire agreement with the judgment and would choose to dismiss the appeal but in this case without any order as to costs.