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2013 DIGILAW 160 (CAL)

Kalpana Mondal v. Shyamali Mondal

2013-03-19

MURARI PRASAD SHRIVASTAVA, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT Re: C.A.N. 2609 of 2013 1. This application has been filed in connection with the appeal preferred from the judgment and order dated 4th September, 2012 passed by a learned Judge of this Court whereby and whereunder the said learned Judge allowed the writ petition filed by the respondent No. 1/writ petitioner herein upon setting aside the order issued by the District Magistrate, Malda. From the records we find that both the appellant-petitioner as well as the respondent No. 1/writ petitioner applied for the 2nd post of Auxiliary Nurse-cum-Midwife (ANM) for Kaliachak-III Health Sub-centre in the district of Malda, which was reserved for the Scheduled Caste candidate. 2. The appellant-petitioner herein secured second position in the panel. The respondent No. 1/writ petitioner, however, secured the first position in the panel being adjudged as the best available candidate. 3. It is not in dispute that the respondent No. 1/writ petitioner did not submit the authenticated copy of the Scheduled Caste certificate along with the application form although on the basis of other documents submitted by the said respondent No. 1/writ petitioner, competent authority accepted the respondent No. 1/writ petitioner as a member of the Scheduled Caste community and considered her candidature along with other eligible candidates. 4. The third empanelled candidate Smt. Sima Mandal filed a writ petition before this Court being W.P. No. 7709 (W) of 2007 and pursuant to the direction passed by a learned Judge of this Court, District Magistrate, Malda considered the grievances of the third empanelled candidate, Smt. Sima Mandal upon notice to all other interested parties including the appellant-petitioner and the respondent No. 1/writ petitioner herein. 5. The District Magistrate, Malda by the reasoned order dated 13th August, 2007 rejected the candidature of the respondent No. 1/writ petitioner on account of submission of defective application form due to non-submission of the authenticated copy of the Scheduled Caste certificate or late submission of the said Scheduled Caste certificate. 6. It is, therefore, to be decided whether the District Magistrate, Malda was justified in cancelling the candidature of the respondent No. 1/writ petitioner for non-submission of the authenticated copy of the Scheduled Caste certificate-along with the application form and/or delayed submission of the said Scheduled Caste certificate. 7. 6. It is, therefore, to be decided whether the District Magistrate, Malda was justified in cancelling the candidature of the respondent No. 1/writ petitioner for non-submission of the authenticated copy of the Scheduled Caste certificate-along with the application form and/or delayed submission of the said Scheduled Caste certificate. 7. There is no dispute that the claim of the respondent No. 1/writ petitioner as a member of the Scheduled Caste community was accepted by the concerned authority and the performance of the said respondent No. 1/writ petitioner was assessed along with other eligible candidates by the concerned authority. The District Magistrate, Malda, however, cancelled the candidature of the respondent No. 1/writ petitioner only on the ground of non-submission of the authenticated copy of the Scheduled Caste certificate and/or delayed submission of the said Scheduled Caste certificate. 8. The aforesaid issue has been considered by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. vs. Addl. Commissioner, Tribal Development & Ors. reported in AIR 1995 SC 94 . In the aforesaid decision, Hon'ble Supreme Court specifically observed: 12 *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following: 1).................................................................................................................. 2)................................................................................................................ 3)................................................................................................................ 4)................................................................................................................ 5)................................................................................................................ 6)................................................................................................................ 7)................................................................................................................ 8)................................................................................................................ 9)................................................................................................................ 10) In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer 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. 9. A Division Bench of this Court (to which one of us is a party) also considered the issue in the case of. The Registrar General, High Court, Calcutta vs. Shrinivas Prasad Shah & Ors. reported in (2011) 4 CAL LT 75 (HC) wherein this Court held: 35................................. 9. A Division Bench of this Court (to which one of us is a party) also considered the issue in the case of. The Registrar General, High Court, Calcutta vs. Shrinivas Prasad Shah & Ors. reported in (2011) 4 CAL LT 75 (HC) wherein this Court held: 35................................. 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. 10. The Government 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 verification of the claims of the Scheduled Castes and Scheduled Tribes candidates has been mentioned in chapter 13 of the Brochure. The relevant extracts from said Chapter 13 of the said Brochure have been quoted in the aforesaid judgment of this Court in the case of The Registrar General, High Court, Calcutta (Supra). The relevant paragraph from the aforesaid judgment is set out hereunder: 18. 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 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. Procedure for 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 any 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. 11. Admittedly, the respondent No. 1/writ petitioner was born in a Scheduled Caste family and thus became a member of the Scheduled Caste community since birth. The respondent No. 1/writ petitioner did not acquire the status of a member of the Scheduled Caste community only after the issuance of the certificate by the Sub Divisional Officer concerned. 12. Nobody has also disputed that the respondent No. 1/writ petitioner is a member of the Scheduled Caste community and as a matter of fact, the competent authority assessed the performance of the said respondent No. 1/writ petitioner along with others wherein the competent authority found the respondent No. 1/writ petitioner as the best available candidate. 13. The District Magistrate, Malda rejected the candidature of the respondent No. 1/writ petitioner only on the ground of non-submission of the authenticated copy of the Scheduled Caste certificate along with the prescribed application form submitted by the said respondent No. 1/writ petitioner although the authenticated copy of the Scheduled Caste certificate was submitted before the competent authority after the cut-off date. 14. The Ministry of Personnel, Government of India, has made it clear in Chapter 13 of the Brochure that when a candidate belonging to Scheduled Caste or Scheduled Tribe is unable to produce a certificate from the prescribed authority then he may be appointed provisionally on the basis of the prima facie proof in support of his claim subject to furnishing the prescribed certificate within a reasonable time. 15. In compliance with the aforesaid decision of the Ministry of Personnel, Government of India, the respondent No. 1/writ petitioner herein also could be appointed provisionally by the competent authority subject to furnishing the prescribed Caste certificate issued by the competent authority. 16. 15. In compliance with the aforesaid decision of the Ministry of Personnel, Government of India, the respondent No. 1/writ petitioner herein also could be appointed provisionally by the competent authority subject to furnishing the prescribed Caste certificate issued by the competent authority. 16. In the present case, however, the respondent No. 1/writ petitioner submitted the Scheduled Caste certificate on 14th December, 2006 whereas the last date of submission of the application form was 30th November, 2006. Delay in submission of the Caste certificate, therefore, cannot be fatal in view of the aforesaid guidelines framed by the Ministry of Personnel, Government of India as well as the law laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. (Supra). 17. The learned Advocate representing the appellant-petitioner, however, relied on a Division Bench judgment of this Court in the case of Chandana Mondal (Pramanik) vs. Bandana Das & Ors. reported in 2012 (3) CLJ (Cal) 570 which, in our opinion, has no manner of application in the facts of the present case. 18. As a matter of fact, the decision of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. (Supra) is very much relevant in the facts of the present case since the Hon'ble Supreme Court has specifically observed that non-submission of the Scheduled Caste certificate within the prescribed time limit by a candidate cannot be absolutely fatal. 19. In the case of Chandana Mondal (Pramanik) (Supra), the Division Bench made it clear that the principles laid down by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil & Anr. (Supra) would not apply in the facts of the said case. The relevant extracts from the aforesaid decision of Chandana Mondal (Pramanik) (Supra) are set out hereunder: 24. The appellant is very much vocal by placing a strong reliance on a judgment of the Apex Court rendered in Kumari Mahduri Patil (supra) in contending that non-submission of the certificate along with an application cannot be proved to be fatal. 25. In the given case, a post was reserved for a scheduled caste candidate. There was no dispute as to the caste of the applicant therein as she acquired such status by birth. The point was raised that the caste certificate, which she produced at the time of admission, is not issued by the competent authority. 25. In the given case, a post was reserved for a scheduled caste candidate. There was no dispute as to the caste of the applicant therein as she acquired such status by birth. The point was raised that the caste certificate, which she produced at the time of admission, is not issued by the competent authority. While the matter was pending for consideration, by this time she was admitted in the college and was pursuing her studies. It was held that the said candidate rightly made an application before the competent officer within whose jurisdiction her father lived and upon refusal to submit the certificate an appeal having filed was pending. Therefore, the facts, which emanate from the aforesaid decision could not apply in the facts and circumstances of the present case. 20. Mr. Ashok Kumar Chakraborty, learned Senior Advocate representing the State-respondents, however, supported the stand taken by the District Magistrate, Malda and submits that the said District Magistrate has rightly rejected the candidature of the respondent No. 1/writ petitioner for non-submission of the authenticated copy of the requisite Caste certificate in terms of the advertisement. 21. We, however, do not approve the aforesaid stand taken by the learned Advocate of the State-respondents since the Government of India has made it clear that non-submission of the Scheduled Caste certificate within the prescribed time limit cannot be fatal and the competent authority at best could appoint the concerned candidate provisionally to the post in question subject to submission of the requisite Caste certificate issued by the competent authority within a reasonable time. 22. In the present case, admittedly, the Caste certificate was produced by the candidate concerned even before her selection to the post in question. Therefore, we do not find any merit in the aforesaid objection raised on behalf of the State-respondents. 23. The learned Single Judge, in our opinion, has rightly set aside the order passed by the District Magistrate, Malda cancelling the candidature of the respondent No. 1/writ petitioner herein. We do not find any error and/or infirmity in the aforesaid decision of the learned Single Judge. 24. Therefore, we affirm the decision of the learned Single Judge and dismiss both the application as well as the appeal upon treating the said appeal as on day's list. 25. In the facts of the present case, there will be no order as to costs. 24. Therefore, we affirm the decision of the learned Single Judge and dismiss both the application as well as the appeal upon treating the said appeal as on day's list. 25. In the facts of the present case, there will be no order as to costs. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates of the parties on usual undertaking. Application dismissed