Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 310 (JHR)

Asha Kumari Sinha v. State of Jharkhand

2014-02-26

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the parties. 2. The petitioner was appointed vide notification dated 16.07.2004 on the post of Assistant Professor-cum-Junior Scientist (Soil Science) and posted under the Dean Faculty of Agriculture, Birsa Agriculture University with approval of the Vice-Chancellor. This appointment was pursuant to the advertisement issued by the Jharkhand Public Service Commission upon indent placed by Birsa Agriculture University for making appointment to the different posts including that of Assistant Professor-cum-Junior Scientist (Soil Science) in the year 2004. 3. The petitioner admittedly submitted certificate stated to be issued by the Sub-Divisional Officer, Ranchi dated 01.09.1998, Annexure-15 declaring that she belongs to Kurmi caste, which also is a backward class and her family ordinarily is a resident of Ranchi. The petitioner's appointment has been terminated by the impugned order contained in Memo No. 3390/Kanke dated 25.06.2008 issued by the Vice Chancellor, Birsa Agriculture University, respondent no. 6 inter-alia on the ground that she had submitted caste certificate at the time of appointment meant for educational purpose; she is not a permanent resident of an area which now falls under the territory of Jharkhand; she had illegally taken benefit of reservation which is in violation of the reservation policy of State. Prior to that, a show cause notice was served upon her, which is at Annexure-4 dated 14.12.2005 whereafter she approached this Court with another person being W.P.(S) No. 6200 of 2005, which was disposed of on 13.07.2006 with the observation that Vice-Chancellor would decide the claim on merit. The petitioner again came before this Court in W. P. (S) No. 2371 of 2008, Annexure-11 with a grievance that again notices were issued upon her on 15.04.2008 by the Director(Administration) calling upon the petitioner to file her show cause. The said writ petition was disposed of on 20.05.2008 in terms of the earlier judgment dated 13.07.2006 passed in the earlier writ petition being W. P. (S) No. 6200 of 2005 wherein the Vice-chancellor was directed to decide the claim on merit. Thereafter, the petitioner was served with another show cause notice issued by the Vice-Chancellor of the University on 23.05.2008, Annexure-12 asking her to submit her reply as to why her services be not terminated on the ground that she had obtained employment on the basis of a certificate, which was issued only for educational purpose. Thereafter, the petitioner was served with another show cause notice issued by the Vice-Chancellor of the University on 23.05.2008, Annexure-12 asking her to submit her reply as to why her services be not terminated on the ground that she had obtained employment on the basis of a certificate, which was issued only for educational purpose. The impugned order was a consequence of last show cause notice before which the petitioner had also furnished her reply, which is at Annexure-13 to the writ petition. 4. According to the Senior counsel for the petitioner, the certificate which is of the year 1998, Annexure-15 does not distinguish between the purpose of employment or education rather it is a certificate of caste of the petitioner. It is further submitted that Annexure-17, Memo No. 7072 dated 30.12.2003 is a direction issued by the Department of Personnel, Administrative, Reforms and Rajbhasa, Government of Jharkhand as per which such certificate issued by the competent authority of the State of Jharkhand prior to the creation of the State shall be duly recognized. According to the petitioner, as per the circular dated 29.04.2002, Annexure-19, she fulfills all qualification as are laid down in Clause-4 thereof, since she was not only born in the State of Jharkhand, her parent have also resided in the State of Jharkhand and her father was an employee of TISCO and she has completed her entire education in the State of Jharkhand. Statements to that effect have been made on behalf of the petitioner in supplementary affidavit filed on 19.04.2012. It states that after having born on 01.01.1966 at Jamshedpur, she did her Matriculation from D. M. Madan High School, Bistupur, Jamshedpur. She did her Intermediate from Ranchi University in the year 1984. She did her Graduation in B.Sc. (Agriculture) from the same Birsa Agriculture University, Kanke in the year 1992. She also did her Master in Science, Agriculture (Soil Science and Agriculture Chemistry) from the same University in the year 1997. Thereafter, in fact she has completed P.hd. (Soil Science and Agriculture Chemistry) from the same University in the year 2006. Her father was originally a resident of Rohtas district, who came to Jamshedpur in the year 1960 and was employee of TISCO and has remained thereafter in Jamshedpur till he superannuated in the year 1994. Thereafter, in fact she has completed P.hd. (Soil Science and Agriculture Chemistry) from the same University in the year 2006. Her father was originally a resident of Rohtas district, who came to Jamshedpur in the year 1960 and was employee of TISCO and has remained thereafter in Jamshedpur till he superannuated in the year 1994. She has also enclosed Ration Card in the name of her father, Annexure-31 and other certificates of education have been annexed to the supplementary affidavit. 5. According to the petitioner, the instant action has been taken simply on the basis of a show cause without any full dress enquiry and moreover she had not suppressed any information at the time of seeking appointment as the said certificate was filed at the time of making application for such appointment. It is further submitted that the respondents apparently have acted upon a complaint made by a Sarna Samiti. The certificate itself has not been questioned relating to its authenticity and genuineness and enquiry from the office of Sub-Divisional Office (Annexure9/1) also reveals that the said certificate was issued by the competent authority i.e. the same officer and has been entered in the register at serial no. 11342 dated 01.09.1998. In these facts and circumstances, it is submitted that the ground under which the petitioner's services are terminated are wholly non-est and she has suffered on account of such illegal and arbitrary act. 6. Mr. A. Allam, learned Senior counsel for the respondent-Birsa Agriculture University submits that the policy of reservation under the successor State of Jharkhand stipulates that a person, who is resident of the State and has been declared to be belonging to a backward community or other backward community by a certificate issued by the competent authority of the State is only entitled to seek employment in the State and its instrumentality like the University in question. It is submitted that it is not in dispute that the certificate was not issued by any competent authority of the State of Jharkhand rather by an authority of parent State of Bihar. It is submitted that it is not in dispute that the certificate was not issued by any competent authority of the State of Jharkhand rather by an authority of parent State of Bihar. Therefore, even assuming that the petitioner may have enough reasons to seek declaration as a resident of Jharkhand, but no such certificate was furnished by her at the time of appointment and therefore, she has illegally taken the benefit of reservation by getting appointment to the post of Assistant Professor-cum-Junior Scientist (Soil Science) in the year 2004. These facts when brought to the notice of the respondent authority, she was asked to furnish her show cause and after consideration of the same, her services have been terminated on the said ground. He has relied upon the Division Bench Judgment rendered in the case of Kavita Kumar Kandhaw & Ors. Vs. State of Jharkhand & Ors. and analogous cases reported in 2006(2) JCR 512 (jhr.) to further support his submission that members, who are not so declared as reserved category in the successor State of Jharkhand can not claim the benefit of reservation in public employment under the State of Jharkhand. Learned counsel for the respondent also submits that the petitioner was also required to submit a certificate that she did not belong to creamy layer. He has also submitted that the judgment relied upon by the petitioner rendered in LPA No. 271 of 2011 in the case of the State of Jharkhand and Shyamdip Singh & Anr. vide judgment dated 28.11.2011 has been passed much after the impugned order passed by the respondent. 7. I have heard learned counsel for the parties at some length and having gone through the relevant materials on records. The necessary attendant facts, which are borne on record and have been referred to in some detail in the earlier part of the judgment do disclose that the petitioner had submitted the same certificate issued on 01.09.1998 by the competent authority i.e. Sub-Divisional Officer, Ranchi declaring her caste as OBC for consideration for her case for employment under the respondent-University in the exercise conducted under the advertisement issued by the Jharkhand Public Service Commission. It is not a case that the petitioner has suppressed any information relating to her caste at the time of seeking employment. It is not a case that the petitioner has suppressed any information relating to her caste at the time of seeking employment. The relevant credentials of the petitioner must have been duly scrutinized at the appropriate level of the Commission and also at the level of the University before notification of the appointment on 16.07.2004 was issued. Therefore, the instant case is not of any suppression of caste by the petitioner. What is being alleged on the part of the respondents is that certificate was issued by an authority under the parent State of Bihar and not by an authority under the successor State of Jharkhand. Apart from that it was issued for educational purpose and not for the purpose of employment. The benefits of reservation could only have been availed, if the competent authority under the State of Jharkhand had issued a certificate of caste in favour of the petitioner. 8. The circular/direction issued by the DOPT, Jharkhand at Annexure-8 dated 30.12.2003 clearly indicates that such certificates issued prior to the creation of the State of Jharkhand by the Competent Authority under the State of Jharkhand would be treated for the purpose of caste certificate. The certificate of the petitioner's caste has also been enquired from the Sub-Divisional Officer, Ranchi subsequently and a report has been submitted vide Annexure-9/1 dated 31.03.2008 that it was issued at the relevant point of time by the same authority. Therefore, from perusal of the said certificate, it also appears that the said certificate did not make any distinction in relation to educational purpose or for the purpose of employment. The entire exercise subsequently has been initiated may be on the complaint of certain persons, but these facts have not been considered by the respondent authority while terminating the petitioner's service itself after almost four years of her employment. 9. It is also not in dispute that the said caste to which the petitioner belongs is a caste which is entitled to reservation as an OBC category under the respondent-State of Jharkhand as well. Apart from that the averment made by the petitioner relating to her fulfillment of her continued residence in the State since her date of birth in the year 1966 and her continued education within the area now falling within the State of Jharkhand is also not in dispute. Apart from that the averment made by the petitioner relating to her fulfillment of her continued residence in the State since her date of birth in the year 1966 and her continued education within the area now falling within the State of Jharkhand is also not in dispute. The question whether the certificate issued for educational purpose by the competent authority could not be treated for the purpose of employment was also considered, of course subsequently after the passing of the impugned order in another case by learned Division Bench of this Court in LPA No. 271 of 2011 in the case of the State of Jharkhand and Anr. Vs. Shyamdip Singh & Anr. vide judgment dated 28.11.2011. The relevant portion of the said judgment on the issue in question are quoted herein:- “Learned counsel for the appellant-State could not satisfy us how there can be two types of certificates for one person; one for the education and another for the employment. That will only create anomalies and chaotic situation which cannot be redressed. Once a caste certificate is issued by a competent authority then it is required to be for all purposes and cannot be for limited purpose. If a student undertakes study after obtaining a caste certificate and completes his studies in technical education and he becomes engineer or doctor, thereafter how he can be denied employment on the ground that caste certificate is not acceptable evidence for the appointment. In view of the above, we do not find any merit in this L.P.A.; hence dismissed.” 10. The learned Division Bench has considered that once the caste certificate is issued by the competent authority then it is required for all purposes and not for limited purpose. In the aforesaid totality of the facts and circumstances, which are noticed in the instant case, the impugned action of the respondent terminating the services of the petitioner on the ground that she had obtained appointment illegally by claiming herself to be of a particular caste and resident of State of Jharkhand does not seem to be sustainable in the eyes of law as well as facts. It further appears that despite the fact that the petitioner was appointed through a regular advertisement on the post of Assistant Professor-cum-Junior Scientist (Soil Science), the order of termination has been passed as alleged without holding full dress enquiry simply by issuing a show cause notice. The judgment relied upon by the learned Senior counsel appearing on behalf of the respondent-University para-14 thereof clearly indicates that the certificates, which are issued by the district authority now falling within the State of Bihar or issued by the district authority of Uttar Pradesh or any other State cannot be claimed and relied for the purpose of claiming reservation for appointment in the services in the State of Jharkhand. In the present case, admittedly the certificate was issued by the competent authority of the district of Ranchi which also falls within the successor State of Jharkhand and taking into account the direction passed by the DOPT, State of Jharkhand in its circular dated 30.12.2003, Annexure-17 it cannot be said that the petitioner was in any way in fault in enclosing and relying upon the said certificate. In fact the respondents had also relied upon the said same certificate by offering appointment to the petitioner in the year 2004. Thereafter the impugned action has been taken in a manner which is impermissible in law. Therefore, the impugned order dated 25.06.2008 is quashed. Consequently, the petitioner shall be reinstated in service with continuity in service for the purposes of seniority and post retirement benefits however without any back wages as she has admittedly not worked for the period in question. 11. Accordingly, the writ petition is allowed in the aforesaid terms.