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2012 DIGILAW 161 (JHR)

Sanju Kumari v. State of Jharkhand

2012-02-01

PRASHANT KUMAR

body2012
Judgment Prashant Kumar, J. In this writ application petitioner has prayed for following reliefs : (a) To issue appropriate direction to the Respondents for issuance of appointment letter in terms of examination held for the post of Primary Trained Teachers 2002-2003 and result published on 18th August, 2005, whereby and where under petitioner has been declared successful in the district of Bokaro under categoey of Scheduled Caste. (b) To issue appropriate direction to Respondent no. 5 to 7 for issuance of caste and residential certificate as required in terms of letter no. 1219 dated 29/4/2005, issued by the department of Personnel and Administrative Reforms and Raj Bhasha and also in the light of certificate issued by the competent authority in respect of husband of the petitioner on 27.3.90, being the permanent resident of Bermo since long i.e. before 1980. (c) To issue appropriate direction to the Respondents not to give effect of letter no. 1219 dated 29.4.2005 in respect of petitioner in view of fact that no such condition was mentioned in the advertisement by the Respondents for appointment on the post of Primary Trained Teachers that cast certificate issued by the other State will not given effect in respect of appointment. (d) Any other relief or reliefs for which petitioner is very much entitled in the facts and circumstances of the case. 2. It is stated that an advertisement issued by Jharkhand Public Service Commission for appointment of trained teachers in the district cadre vide Annexure-1. It is stated that petitioner applied in pursuance of said advertisement. Thereafter, she appeared in written examination and, became successful. It is stated that her name found place at serial no. 6 of the merit list of the District of Bokaro in Schedule Caste category. Thereafter, she went to the office of District Superintendent of Education, Bokaro for verification of testimonials. During that period, subordinate staff of District Superintendent of Education asked her to submit caste and residential certificate issued by competent authority. It is stated that thereafter, she applied for issuance of caste certificate before the competent authority but the same has not been issued on the ground that her permanent address is of the State of Bihar. It is stated that Personnel, Administrative reforms and Raj Bhasha Department , Govt. of Jharkhand issued a letter bearing no. It is stated that thereafter, she applied for issuance of caste certificate before the competent authority but the same has not been issued on the ground that her permanent address is of the State of Bihar. It is stated that Personnel, Administrative reforms and Raj Bhasha Department , Govt. of Jharkhand issued a letter bearing no. 1219 dated 29.4.2005, wherein it is stated that even though a candidate produced caste certificate issued by any officer of State of Jharkhand, he or she will not be appointed, if his or her permanent address is of another state. It is stated that petitioner was married with one Rejendra Rajak in the year 1988, who is resident of Kargali ,Bermo in the district of Bokaro and since then she is living with her husband. It is stated that prior to re-organization of the State of Bihar, she is living in the area which later on constitute State of Jharkhand, thus, she is entitled to get caste certificate from Jharkhand State even though her permanent home address falls within the State of Bihar after reorganization of State. It is submitted that since petitioner has been declared successful by Jharkhand Public Service Commission, therefore, she is entitled for appointment. 3. A counter affidavit filed on behalf of Jharkhand Public Service Commission, wherein it is stated that Jharkhand Public Service Commission has published result with condition that appointment letters will be issued to selected candidates only after verification of their testimonials i.e. academic, training, district option and caste certificated furnished by the candidates. It is further stated that Department of Education, Govt. of Jharkhand had issued guidelines for verification of documents/ testimonials of selected candidates before issuance of appointment letters. Respondent no.4 ( District Superintendent of Education, Bokaro) has filed a separate counter affidavit, wherein he stated that petitioner was selected in the category of Schedule Caste for the district of Bokaro. He further stated that inspite of notice, petitioner did not produce her caste and residential certificate for verification. To substantiate this fact, respondent no.4 relied on Annexure-4, annexed with writ application. It is further stated that petitioner on later stage filed a caste certificate issued in favour of one Rajendra Rajak saying that said Rajendra Rajak is her husband and he is resident of Kargali, Bermo, district Bokaro. However, she did not produce her own caste certificate issued by any competent authority. It is further stated that petitioner on later stage filed a caste certificate issued in favour of one Rajendra Rajak saying that said Rajendra Rajak is her husband and he is resident of Kargali, Bermo, district Bokaro. However, she did not produce her own caste certificate issued by any competent authority. Accordingly, it is stated that petitioner is not entitled for appointment. 4. It is submitted by Sri Dhananjay Dubey, learned counsel for the petitioner that since petitioner has been married with Sri Rajendra Rajak in the year 1988, who is resident of Kargali, Bermo in the district of Bokaro, therefore, she is entitled to get caste certificate even though her permanent address falls within the State of Bihar after re-organization of the State. It is further submitted that Annexure-5 i.e. instruction of Personnel Department was issued in the year 2005, therefore, the same had no application in the case of advertisement issued in the year 2002-03. It is submitted that since petitioner had produced caste certificate of her husband which was issued in the year 1990,therefore, respondents are bound to issue appointment letter in favour of petitioner, because she has been declared successful by Jharkhand Public Service Commission. 5. On the other hand, Mr. Abhay Kumar Mishra, learned Standing Counsel No.III and Sri Sajnay Piprawall, learned counsel for the Jharkhand Public Service Commission, submitted that result of the petitioner published subject to the condition that she will produce all the documents including caste certificate and residential certificate for verification before issuance of appointment letter. They further submitted that from Annexure-4, it is clear that petitioner did not produce residential and caste certificates. Accordingly, they submitted that petitioner is not entitled for appointment. 6. Having heard the submissions, I have gone through the record of the case. As noticed above, in this writ application, petitioner mainly prayed for grant of two reliefs : firstly for issuance of a direction commanding the respondents to appoint her on the post of trained teacher as she has been declared successful in the examination held by Jharkhand Public Service Commission and secondly for issuance of a direction commanding respondents nos.5 to 7 for issuance of a caste certificate and residential certificate as her husband resides within the territory of State of Jharkhand prior to re-organization of the State of Bihar. At the first instance, I am proceeding to consider her first prayer. 7. At the first instance, I am proceeding to consider her first prayer. 7. Admittedly, petitioner declared successful in the examination held by Jharkhand Public Service Commission and her name found place at serial no. 6 of the merit list prepared for the district of Bokaro in the category of schedule caste. It is also an admitted position that petitioner after publication of result had appeared in the office of respondent no.4 for verification of testimonials and produced different documents for verification. It is clear from Annexure-4 that she had not produced residential certificate and caste certificate. It is worth mentioning that petitioner has been selected against a post reserved for schedule caste candidate. Under the said circumstance, it is incumbent for her to produce her own caste certificate for verification . It has been stated by respondent no.4 in the counter affidavit that inspite of notice, petitioner did not produce her caste and residential certificate for verification. Under the said circumstance, if caste certificate had not been produced by the petitioner then, in my view she is not entitled for appointment against a post reserved for a candidate belonging to schedule caste community . In that view of the matter, petitioner is not entitled to get first relief claimed in this writ application. 8. Now coming to the second relief, it is stated by the petitioner that she was married with one Rajendra Rajak in the year 1988, who is resident of Kargali, Bermo in the district of Bokaro. She further stated that being wife of Rajendra Rajak of Bermo, she is permanent resident of State of Jharkhand, therefore, entitled to get residential certificate as well as caste certificate and the competent authority cannot debar her from getting aforesaid certificates on the ground that her permanent address falls within the State of Bihar. 9. It is submitted by Sri Mishra, learned Standing Counsel no. III that a migratee from one State cannot claim benefit of reservation in the migrated State. 10. It is true that a schedule caste or schedule tribe notified in one State can not be given benefit of reservation in another State in view of plain expression " in relation to that State" under Article 342 of the Constitution of India. III that a migratee from one State cannot claim benefit of reservation in the migrated State. 10. It is true that a schedule caste or schedule tribe notified in one State can not be given benefit of reservation in another State in view of plain expression " in relation to that State" under Article 342 of the Constitution of India. For example, if a candidate belonging to schedule caste in the State of Mizoram had migrated to the State of Jharkhand, then he is not entitle to be appointed against a post reserved for schedule caste, on the basis of caste certificate issued by State of Mizoram, because as per Article 342 of the Constitution of India caste of said candidate has been notified as schedule caste in relation to the State of Mizoram and not for the State of Jharkhand. 11. But in the instant case, fact is different. In this case, as stated by the petitioner, she married in the year 1988 with a person, who is resident of Kargali Bermo in the district of Bokaro. Thus, her marriage took place much before the date of re-organization of the State of Bihar. She further stated that after marriage she is permanently residing in the district of Bokaro . It is also clear that caste Dhobi is schedule caste in the unified State of Bihar and after re-organization of State, it remains schedule caste in both the newly created States. Under the said circumstance, this is not a case of migration, rather this is a case where State stood bifurcated due to administrative reason. As stated by the petitioner that at the time of bifurcation she was residing in the State of Jharkhand, because she married with a person who is permanent resident of Bokaro. Thus, after creation of Jharkhand, in my view, it is not open for the respondents to deny issuance of caste certificate in favour of petitioner. My aforesaid view finds full support from a judgment of Hon'ble Supreme Court delivered in Sudhakar Vidhal Kumbhare. Vs. State of Maharashtra and others", reported in (2004)9 SCC-481 and also judgment of a Division Bench of this Court dated 04.10.2010 passed in W.P.(S) No. 3846 of 2010s ( Madhu versus State of Jharkhand and others ). 12. In view of the discussions made above, I partly allow this writ application and direct respondent nos. Vs. State of Maharashtra and others", reported in (2004)9 SCC-481 and also judgment of a Division Bench of this Court dated 04.10.2010 passed in W.P.(S) No. 3846 of 2010s ( Madhu versus State of Jharkhand and others ). 12. In view of the discussions made above, I partly allow this writ application and direct respondent nos. 5 to 7 that if petitioner apply for issuance of caste and residential certificate, then respondents shall make thorough inquiry regarding her claim that she married with Rajendra Rakak in the year 1988 and if respondents find that her claim is correct then they forthwith issue caste and residential certificates in her favour. However, as held herein before, petitioner is not entitled for appointment on the post of teacher as she had not attached relevant documents for being appointed against a post reserved for schedule caste candidate.