Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 1013 (CAL)

Ashok Ram v. STATE OF WEST BENGAL

2012-12-05

HARISH TANDAN

body2012
Judgment :- Harish Tandon, J. A successful candidate has filed the instant writ petition seeking for a mandamus for appointment to the post of Assistant Teacher in any school within the control and supervision of the District Primary School Council, Howrah. Shorn of unnecessary details, the facts which emanates from the respective pleadings are that the petitioner enrolled himself with the Regional Employment Exchange, Howrah under the Schedule Caste Category. Pursuant to notifying the vacancyy the District Primary School Council, Howrah the name of the petitioner was sponsored by the said Employment Exchange under the Schedule Caste Category by letter dated September 13, 2006. The Council concerned forwarded the bio-data form for its submission after providing the details required therein within October 16, 2006. By another letter dated November 1, 2009 issued by the Council, the petitioner was intimated to collect the admit card to appear in the written test. Admittedly, the petitioner was allowed to sit in the written test and was subsequently found successful therein. The petitioners’ name were included in the panel of the successful candidate under the Schedule Caste Category. Since the panel is statutorily required to be approved by the Director of School Education, the panel was sent by the council for such approval. From the affidavit-in-opposition filed by the Council, it appears that Director of the School Education declined to grant the approval to the name of the petitioner for want of caste certificate issued by the competent authority of the State of West Bengal. It is further stated therein that the Caste Certificate issued by the other state is not acceptable to the State of West Bengal in terms of the notification No. 2740-BCW/MR-187/08 dated October 16, 2008. In reply to the said opposition, the petitioner also annexed the caste certificate issued by the office of the Sub-Divisional Officer, Sadar, Howrah dated July 16, 2008 evidencing that the petitioner belongs to the Schedule Caste Category in the State of West Bengal as well. The learned Advocate appearing for the petitioner submits that the Director of the School Education has no authority to question the candidature of the petitioner after his name is sponsored by the Employment Exchange. The learned Advocate appearing for the petitioner submits that the Director of the School Education has no authority to question the candidature of the petitioner after his name is sponsored by the Employment Exchange. He further submits that the Council concerned allowed the petitioner to participate in the written test and included the name of the petitioner in the panel of the successful candidates after having verified the eligibility of the petitioner to offer his candidature under the Schedule Caste Category and, therefore, the decision of the Director of the School Education in rejecting the candidature of the petitioner in such category is arbitrary and without any basis. Lastly, he contends that the notification relied upon by the Director of the School Education has no manner of applicability in view of the fact that the sponsorship was made prior to its issuance. The learned Advocate appearing for the District Primary School Council, Howrah counters the submission of the petitioner in contending that the Caste Certificate issued by one State is not acceptable to the other state and placed reliance upon a judgment of the Supreme Court in case of Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & ors. reported in (1990) 3 SCC 130 and in case of M.C.D. vs. Veena & ors. reported in AIR 2001 SC 2749 . He further submits that by government order dated October 16, 2008, the caste certificate issued by one state is not acceptable to the other state on migration and, therefore, the candidature of the petitioner was rejected by the Director by invocation ofthe said government order. He strenuously argues that even if the said notification is found in applicable, the petitioner cannot get the advantage because of the ratio laid down by the Apex Court in case of Marrit Chandra Shekhar Rao (supra) and M.C.D.(supra). Lastly, he submits that the Council have found the petitioner successful in the selection process and included his name in the panel which has been rejected by the Director of the School Education and, therefore, there is no cause of action against the Council. Lastly, he submits that the Council have found the petitioner successful in the selection process and included his name in the panel which has been rejected by the Director of the School Education and, therefore, there is no cause of action against the Council. The learned Advocate appearing for the State adopts the submissions of the Council so far as it relates to the cancellation of the candidature of the petitioner and further adds that the Director of the School Education is competent to reject the panel if there is an infirmity, illegality and irregularity in the selection process. Having considered the respective submissions, the facts are more or less admitted. The petitioner was never intimated about the cancellation of his candidature by the Director of the School Education and, therefore, there was no necessity of praying for the cancellation of the said decision in the instant writ petition. The writ petition proceeds on the basis that in spite of having included in the panel of the successful candidate, the appointment letter has not been issued by the competent authority. It is only for the first time disclosed in the affidavit-in-opposition filed by the Council that the panel containing the name of the petitioner was rejected by the Director of the School Education. Therefore, on exchange of affidavits disclosing the relevant and respective facts, the Court can mould the relief if the original relief claimed in the writ petition becomes in-appropriate. Proceeding on the above, let me consider whether the decision of the Director of the School Education can withstand on the legal parameter. Admittedly, the Employment Exchange registered the name of the petitioner in Schedule Caste Category on the basis of the caste certificate issued by the District Magistrate, Naoda within the State of Bihar. The name of the petitioner was also sponsored in such category by the Employment Exchange to the Council who, later on, allowed the petitioner to participate in the selection process. Upon scrutiny of all the documents and having satisfied subjectively, the name of the petitioner was included in the panel of the successful candidate which was sent for approval to the Director of the School Education. It is pertinent to record in this context that the selection process ensued in the year 2006 much before the government order by which the caste certificate issued by one state is not recognized to other state. It is pertinent to record in this context that the selection process ensued in the year 2006 much before the government order by which the caste certificate issued by one state is not recognized to other state. The perusal of the said government order does not reflect that it will operate retrospectively. It is a settled proposition of law that a notification/government order/circular shall presumably operate prospectively unless expressly intended to operate retrospectively. Having conscious that the aforesaid point would fail on the legal anvil, the Council took shelter under the decisions of the Apex Court rendered in case of Marrit Chandra Shekhar Rao (supra) & M.C. D vs. Veena & ors. (supra). The five judges bench in case of Marrit Chandra Shekhar Rao (supra) while interpreting Article 341 of the constitution of India held that the person does not carry with him the privileges afforded to the Schedule Caste by the State of his origin to the another State on migration. However, a doubt has been raised in the said judgment relating to the status on migration to another state in voluntarily. In case of M.C.D vs. Veena & ors.(supra) the Apex Court held: “6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.” If the above ratio is applied, there is no difficulty in arriving at the conclusion that the Schedule Caste Certificate issued by one State is not applicable to the other State as the caste to which the said person belongs may not be subjected to the similar disadvantages and difficulties which they faced in the State of their origin. There is a special fact in the present case. Before the written test which was scheduled on November 29, 2009, the competent authority of the State of West Bengal issued a Caste Certificate in favour of the petitioner. Therefore, the petitioner also enjoins the status of the Schedule Caste in the State of West Bengal as well. The Council concerned has found the petitioner successful in the selection process and included his name in the panel of the successful candidates. The competent authority also issued the Caste Certificate prior to the written test. It leads to an inescapable conclusion that the petitioner belongs to a Schedule Caste not only in the State of his origin but in the State of West Bengal as well where he migrated. The Director of the School Education, therefore, is not justified in rejecting the candidature of the petitioner by treating him as Non-Schedule Caste candidate. The decision of the Director of the School Education is, therefore, quashed and set aside. The Director of the School Education is hereby directed to approve the name of the petitioner within six weeks from the date of the communications of this order. The decision of the Director of the School Education is, therefore, quashed and set aside. The Director of the School Education is hereby directed to approve the name of the petitioner within six weeks from the date of the communications of this order. The said authority shall communicate its decision to the Chairman, District Primary School Council, Howrah immediately upon taking its decision within the period stipulated hereinabove. The Chairman, District Primary School Council is further directed to issue the letter of appointment to the petitioner forthwith upon receipt of the order of approval. The writ petition is thus disposed of. However, there shall be no order as to costs.