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Gauhati High Court · body

2013 DIGILAW 814 (GAU)

Y. Kunjalal Singha v. State of Assam

2013-11-19

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. The matter pertains to selection and appointment to the post of Lecturer in Manipur in the college called Janata College, Kabuganj, Cachar for which an advertisement was issued and published in the newspaper on 7.06.2009. The post was reserved for OBC/MOBC candidates. Responding to the employment notice, candidates including the petitioner and the respondent No. 6 offered candidatures. Thereafter, the Selection Committee constituted by the Governing Body of the College conducted the selection in which the respondent No. 6 was recommended as the first nominee and the petitioner as the second nominee. The recommendation made by the Selection Committed was accepted by the Governing Body of the College and as per the requirement of the Rules, approval of the Director Higher Education towards formal appointment of the respondent No. 6 was sought for. However, no approval has been granted in view of the pendency of this proceeding. The grounds on which the writ petition has been filed challenging the selection of the respondent No. 6 are as follows: (i) The respondent No. 6 having failed to submit his OBC Certificate on or before the specified date, his Certificate submitted later on, ought not to have been accepted and consequently, he was not entitled to get invitation for the selection. Even if the OBC Certificate that was produced by the respondent No. 6, is accepted then also the said Certificate could not have been accepted as an OBC Certificate, as the same was issued by the Authority in the State of Manipur and not the State of Assam. (ii) Even in the Certificate, the respondent No. 6 having been certified to be a 'Meitei' and not 'Manipuri' and the requirement being the Manipuri OBC, the same could not have been accepted as real OBC Certificate of the respondent No. 6. (iii) Although in the writ petition and during the course of hearing, some additional grounds were urged such as lack of teaching experience, providing lower marks to the petitioner under the head of 'experience' etc., but Mr. R.P. Sarmah, learned senior counsel, assisted by Mr. K.R. Tahabilder, learned counsel for the petitioner in his usual fairness submitted that the basic grounds of challenge is confined to the issue relating to the OBC status of the respondent No. 6. R.P. Sarmah, learned senior counsel, assisted by Mr. K.R. Tahabilder, learned counsel for the petitioner in his usual fairness submitted that the basic grounds of challenge is confined to the issue relating to the OBC status of the respondent No. 6. According to him, the respondent No. 6 being not a candidate belonging to OBC/MOBC category of the State of Assam, his candidature could not have been accepted by the College Authority. 2. In the counter-affidavit filed by the respondents, both official and the private, the aforesaid pleas of the petitioner have been denied. It has been stated that the respondent No. 6 had duly submitted his OBC Certificate before the last date of receipt of applications and even otherwise also there being no dispute that he belongs to OBC being Manipuri, there was no impediment towards acceptance of the said status, which he is holding since his birth. As regards recognition of Manipuri OBC candidate in the State of Assam, referring to the list of OBC and MOBC classes in the state of Assam, it has been contended that since the said list includes Manipuri along with Manipuri Brahmins and Manipuri Muslims, merely because the respondent No. 6 hails from the State of Manipur, he cannot be deprived of participation in the selection process. As regards the experience etc. as a Lecturer, it has been contended that the experience gathered by both the candidates were duly taken note of and that is why the petitioner was awarded 5 out of 5 marks and the respondent No. 6 was awarded 4 out of 5 marks. This aspect of the matter need not detain us, as the petitioner has primarily confined his case in respect of the issue raised regarding the OBC status of the respondent No. 6. 3. Mr. This aspect of the matter need not detain us, as the petitioner has primarily confined his case in respect of the issue raised regarding the OBC status of the respondent No. 6. 3. Mr. R.P. Sarmah, learned counsel for the petitioner, in his elaborate argument while vehemently submitting that the candidature of the respondent No. 6 ought not to have been accepted as he is not an OBC category candidate belonging to the State of Assam, has also referred to certain decisions which are: (1) AIR 2010 Gau 87 , Naorem Deepak Singh v. State of Manipur & Ors.; (2) 2007 4 SCC 54 , Ashok Kumar Sonthor v. Union of India and others; (3) (2012) 12 SCC 133 , V. Chandrasekaran and another v. Administrative Officer and Others; (4) (2003) 7 SCC 657 , UP. Public Services Commission, Allahabad v. Sanjay Kumar Singh; (5) AIR 2001 SC 2749 , M.C.D. v. Ceena and others. 4. Countering the arguments advanced by Mr. R.P. Sarmah, learned counsel for the petitioner, Mr. S. Borthakur, learned counsel representing the respondent College has submitted that in the educational institutions the requirement being that of lecturer in Manipuri language and both the petitioner and the respondent No. 6 being qualified in Manipuri language and also belonging to Manipuri community, were considered in the selection and the Selection Committee having recommended the respondent No. 6 in preference to the petitioner, the issue relating to OBC status of the respondent No. 6 as prayed by the petitioner is uncalled for and totally misplaced. He also submits that the list of OBC in the State of Assam having included Manipuri along with Manipuri Brahmin and Manipuri Muslims, no distinction can be made between the Manipuris, who are ordinary resident of the State of Assam and those hailing from the State of Manipur also in the category of OBC. Referring to some other entries in the list such as Rajbongshi or Koch referable to Koch of Goalpara and Garo Hills only, he has submitted that had their been any intention to exclude the Manipuris of the State of Manipur, there would have been clear mention of the same in the aforesaid list. 5. Mr. Referring to some other entries in the list such as Rajbongshi or Koch referable to Koch of Goalpara and Garo Hills only, he has submitted that had their been any intention to exclude the Manipuris of the State of Manipur, there would have been clear mention of the same in the aforesaid list. 5. Mr. M. Choudhury, learned counsel representing the selected candidate i.e. the respondent No. 6, defending his selection submits that when an expert body like Selection Committee has found the respondent No. 6 to be the most suitable candidate, this Court exercising writ jurisdiction will not seat on appeal over the opinion of such Expert Body. As regards the OBC status of the respondent No. 6, relating to the Annexure-A (OBC Certificate) dated 23.11.2004. He also submits that the said Certificate being prior in point of time than the last date of submission of application, it cannot be argued that the respondent No. 6 had submitted the Certificate after the last date of submission of applications. He further submits that when the Certificate was misplaced by the College staff the respondent No. 6 had provided another copy of the Certificate. He also argued that the status of the respondent No. 6 as a Manipuri (OBC) which he had earned by virtue of his birth in the particular community cannot be taken away on the technicalities. As regards the submission of the learned counsel for the petitioner that even the Certificate does not refer the respondent No. 6 as Manipuri, but refers as 'Meitei'. Mr. Choudhury, learned counsel for the respondent No. 6 has submitted that it is the common knowledge of all that all 'Meiteis' are Manipuri and that merely because the respondent No. 6 has been referred to as belonging to 'Meitei' community in the State of Manipur, it cannot be said that the respondent No. 6 is not a Manipuri. 6. The first two cases referred to above have been relied upon to put emphasize on the requirement of producing the relevant documents at the time of filing of application. As noted above, it is the case of the petitioner that the respondent No. 6 did not submit his OBC Certificate on or before the last date of submission of application, but had submitted at a later point of time. As noted above, it is the case of the petitioner that the respondent No. 6 did not submit his OBC Certificate on or before the last date of submission of application, but had submitted at a later point of time. This has been disputed by the respondent, specifically stating that the Certificate was produced by the respondent No. 6 within the stipulated period of time and when the same was misplaced, he had submitted another copy of the same. 7. The respondent No. 6 belongs to OBC category, more particularly when the Certificate certifying him of belonging to 'Meitei' community (OBC) in the State of Manipur, is not in dispute. The fact that the respondent No. 4 belongs to 'Meitei' community in the State of Manipur, which is recognized as OBC being not in dispute and the Certificate dated 23.11.2004 (Annexure-A to the affidavit-in-opposition filed by the respondent No. 6), which is prior in point of time than the last date of submission of application. It is specifically stated by the College Authority that the cast Certificate was produced by the respondent No. 6 is not in dispute, merely on raising an issue. I am not inclined to accept the said plea. On perusal of the records, there is nothing discernable so as to indicate that the Certificate was produced at the later point of time. 8. Above now leads us to the main issue as to whether the particular status of the respondent No. 6 will get reorganization in the State of Assam or not. While it is the case of the petitioner that the respondent No. 6 even if belongs to OBC category, the said status being within the State of Manipur, he cannot carry the said status to another State (in this case, State of Assam) so as to claim selection and appointment to the post in question. On the other hand, the stand of the respondents as noted above is that since the same is recognized as Manipuri including the Manipuri Brahmin and Manipuri Muslim, it will certainly include candidates like that of the respondent No. 6. Another point argued by them is that since the post in question is that of Lecturer in Manipuri, it is in the interest of the college, which is to be born in mind, instead of giving any narrow interpretation to the particular status of the respondent No. 6. 9. Another point argued by them is that since the post in question is that of Lecturer in Manipuri, it is in the interest of the college, which is to be born in mind, instead of giving any narrow interpretation to the particular status of the respondent No. 6. 9. In the counter-affidavit filed by the respondent No. 6, although, he has stated about relevant fact but has not dealt with the aforesaid plea of the petitioner. As noted above, the approval of the Director of Higher Education is yet to be accorded in view of the pendency of the final proceeding. 10. The third decision on which the learned counsel for the petitioner has placed reliance pertains to reservation upon migration of the person to another State. It was held that if the person migrated to other State, does not fall in the reserved category of the later State, he may not be entitled to reservation. Similar views have been expressed in the fourth and fifth decisions. However, in the instant case the moot question for determination is as to whether in the inclusive definition of Manipuri in the list of Other Backward Classes pertaining to the State of Assam, the Manipuris of the State of Manipur are also included or not. While according to the petitioner it will not but according to the respondents it will include the respondent No. 6 as well, more particularly, when the post in question is that of lecturer in Manipuri. Since the matter is now pending with the Director of Higher Education, Assam the issue is left open to be decided by him taking note of all the facts and circumstances and also in accordance with law. Subject to the outcome of resolution of the issue in the above manner, the approval or otherwise of the selection of the respondent No. 6 as lecturer in Manipuri would depend. The require exercise be carried out by the Director of Higher Education as expeditiously as possible, but at any rate not later than 15th January 2013. Whatever may be the outcome of the consideration of the case in terms of this judgment and order, the results thereof shall be communicated to the parties concerned.