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2014 DIGILAW 364 (GAU)

MICHAEL SHAHA v. STATE OF ASSAM

2014-03-25

B.K.SHARMA

body2014
ORDER B.K. SHARMA, J. 1. The matter pertains to filling up of SC/ST (Back Log) vacancies in the provincialised High Schools/H.S. Schools in special recruitment drive. The present proceeding is concerned with the selection and appointment of the respondent No.11 as Assistant Teacher (Arts) in the particular school. In the merit list, the name of the respondent No.11 appeared above the petitioner. It is the case of the petitioner that the respondent No.11 fraudulently projected himself as SC category candidate, although he is not, but for which it is the petitioner who would have been appointed he being within the zone of consideration for appointment against two posts. As will be evident from the merit list enclosed to the writ petition (Annexure-9A) while the respondent No.11 occupied first position, the petitioner occupied 3rd position, if the respondent No.11 is held to be ineligible for appointment, then in that case the petitioner gets the chance of appointment against one of the two vacancies. 2. The petitioner while making the challenge to the SC certificate obtained by the respondent No.11 has also challenged his appointment on that basis with the prayer to appoint him in place of the respondent No.11. It will be pertinent to mention here that the respondent No.11 had earlier obtained an OBC certificate (Annexure-1) dated 22.07.1998 and when the same was in existence, he again obtained a SC certificate dated 19.03.2004 (Annexure-2). Thus, by the time the SC certificate dated 19.03.2004 was issued, the respondent No.11 was in possession of the OBC certificate. He continued to possess both the certificates and eventually surrendered the OBC certificate only in the year 2006 and to be precise on 29.07.2006. It will be further pertinent to mention here that making use of the OBC certificate dated 22.07.1998, the respondent No.11 also obtained certain benefits including Scholarships etc. 3. In spite of the issue raised in the writ petition with the allegation of obtaining SC certificate fraudulently, when there was no response from the official respondents, this Court upon hearing the learned counsels for the parties passed the following order on 21.11.2013:- “Although, the writ petition raises serious issue of obtaining caste certificate fraudulently, but the official respondents have not shown any response to this proceeding. It is only the petitioner and the private respondent No.11 who have exchanged affidavits. It is only the petitioner and the private respondent No.11 who have exchanged affidavits. In the writ petition, the petitioner has contended that the respondent No.11 also obtained OBC certificate and also having derived benefits on that basis could not have obtained another certificate declaring him to be belonging to SC community. The OBC Certificate earlier issued to the respondent No.11 was countersigned by the authorized officer of the Deputy Commissioner’s establishment and so also the SC certificate. On the other hand, in the counter affidavit, filed by the respondent No.11, a copy of the letter dated 08.04.2008 has been enclosed by which the SDO(C), South Salmara, Manchachar, Hatsingimari submitted a report to the Deputy Commissioner, Dhubri. In the said report it has been stated that an inquiry is required to be conducted to verify as to whether the respondent No.11 belongs to OBC or SC. Such a move on the part of the authority is really surprising. It was only after issuance of two successive certificates, one as OBC and another as SC to the respondent No.11, the District Administration has now proposed for an inquiry. In view of the above, the official respondents represented by Mr. U.K. Goswami, learned Standing Counsel, Education Department and Mr. G. Sarma, learned State Counsel are directed to file their affidavits dealing with the pleas and contentions raised in the writ petition. While the Education Department shall file its affidavit through the respondent No.2, the other respondents i.e. the respondent Nos. 3, 7, 9 and 10 shall also file their affidavits taking the matter with all its seriousness. Heard in part. Further hearing on 10th December, 2013. The Chief Secretary of the State i.e. the respondent No.1 shall ensure filing of the affidavits as ordered above. Let a copy of this order be furnished to MR. U.K. Goswami, learned Standing Counsel, Education Department and Mr. G. Sarma, learned State Counsel. Upon failure to file response to this proceeding by the next date fixed, the consequence thereof will follow.” 4. Pursuant to the aforesaid development, the respondents have filed their counter affidavits including the respondent No.11. Let me first deal with the stand of the respondent No.11 in the proceeding. 5. G. Sarma, learned State Counsel. Upon failure to file response to this proceeding by the next date fixed, the consequence thereof will follow.” 4. Pursuant to the aforesaid development, the respondents have filed their counter affidavits including the respondent No.11. Let me first deal with the stand of the respondent No.11 in the proceeding. 5. In the counter affidavit filed in May, 2012, the respondent No.11 has contended that although he had submitted application to the concerned authority for issuance of SC certificate as he belongs to SC community, but the authority did not issue the same and thus having no other alternative, he applied for the OBC certificate and the same was issued to him on 22.07.1998. Thereafter, he again applied for SC certificate and the same was issued to him on 19.03.2004. 6. In the additional affidavit filed by the respondent No.11 on 05.02.2014, he has stated about the enquiry report dated 18.12.2013 of the SDO(C), Bilasipara, by which it has been held that the SC certificate was obtained by the respondent No.11 fraudulently. In support of the plea of the respondent No.11 that he belongs to SC community, he has placed reliance on certain documents including voter lists; certificate of registration; migration certificate etc. 7. Pursuant to the aforesaid direction of this Court, the official respondents have also filed counter affidavits. In the counter affidavit filed by the respondent No.7, it has been stated that number of complaints have been received alleging that the respondent No.11 have fraudulently obtained SC certificate from the SC Development Board, Bilasipara, countersigned by SDO(C), although he had earlier obtained OBC certificate from the concerned authority in Kokrajhar district. It has also been stated that a Magisterial Enquiry relating to the allegations made against the respondent No.11 was required and accordingly, the Officer named in the affidavit was ordered to conduct an enquiry and submit report. 8. In the counter affidavit filed by the respondent No.3, it has been stated that the Chairman of Sub-Divisional SC Development Board and Sub-Divisional Officer (Civil) were not authorised to grant SC certificate and accordingly, the SC certificate issued in favour of the respondent No.11 is not valid. Referring to the proceeding held on 08.01.2014, in which the petitioners and the respondent No.11 were present, it has been stated that on conclusion of the enquiry, the report would be furnished to the Court. 9. Referring to the proceeding held on 08.01.2014, in which the petitioners and the respondent No.11 were present, it has been stated that on conclusion of the enquiry, the report would be furnished to the Court. 9. The respondent No.10 has also filed a counter affidavit stating that the respondent No.11 has obtained the SC certificate fraudulently during the subsistence of the OBC certificate. Along with the said affidavit, the respondent No.10 has also enclosed the copies of the order dated 07.12.2013 and the enquiry report dated 18.12.2013. The respondent No.12 has also filed an affidavit stating the above fact of obtaining two certificates by the respondent No.11. 10. In the counter affidavit filed by the respondent No.2 i.e. the Secretary to the Government of Assam in the Education (Secondary) Department, it has been stated that the respondent No.11 obtained SC certificate fraudulently and got the selection for appointment as SC candidate. Referring to the merit list, it has been stated that the respondent No.11 got selected as SC candidate against two reserved category (SC) vacancies. In paragraph-9 of the said affidavit referring to the enquiry proceeding and the Deputy Commissioner’s letter dated 06.01.2014, it has been stated that the respondent No.11 fraudulently obtained the SC certificate. As per this affidavit, the respondent No.11 belongs to “Kahar” Sub Caste, which is recognized as OBC in the State of Assam, but he claimed himself to be of “Bania” Sub Caste. Significantly in this affidavit the fact of manipulation of the name of the respondent No.11’s father in the SC certificate has also been stated. In the certificate, the name of the maternal uncle of the respondent No.11 Ananda Mohan Karmakar, son of Balai Karmakar of Ward No.5, Bilasipara has been incorporated as his father, although his father’s name is Ananda Karmakar, son of Hemendra Karmakar, who is a resident of Kokrajhar district. For a ready reference, the enquiry report submitted by the SDO(C), Bilasipara to the Deputy Commissioner, Dhubri dated 18.12.2013 is reproduced below:- “To The Deputy Commissioner, Dhubri Sub: Enquiry Report Ref: Your order No. DA 15/2010/324 Dated: Dhubri the 7th Dec, 2013. For a ready reference, the enquiry report submitted by the SDO(C), Bilasipara to the Deputy Commissioner, Dhubri dated 18.12.2013 is reproduced below:- “To The Deputy Commissioner, Dhubri Sub: Enquiry Report Ref: Your order No. DA 15/2010/324 Dated: Dhubri the 7th Dec, 2013. Sir, With reference to the above mentioned letter and subject mentioned, I have the honour to submit my enquiry report as follows:- Petitioner Sri Michael Shaha has challenged that the scheduled Caste certificate issued to Sri Raju Karmakar is false and he has filed a petition in Gauhati High Court. The certificate ( No.305 dtd.19-C3-2004) was issued by Smt. Gita Bairagi, then Chairman, S.C. Development Board and countersigned by then SDO (C), Bilasipara (No. 32,dtd.06-04-2004). Smt. Gita Bairagi, Sri MAchael Shaha and Sri Raju Kamakar were called for a hearing and their statements were recorded. The findings are as follows:- 1. Smt. Gita Bairagi has confirmed that she had issued the S.C. certificate to Raju Karmakar (No 305 dtd. 19-03-2004) on verifying all documents. She however could not recall those documents on which basis she had issued the certificate. She also said that a fire accident in 2005 at her home destroyed all the documents and papers. 2. Petitioner Sri Machael Shaha has alleged that Raju Karmakar is an OBC person of ‘Kahar’ sub-caste. His father Ananda Karmakar still resides in Kokrajhar. He has enclosed the voter list of Kokrajhar and Bilasipara where the names of Raju Karmakar grandfather are found to be different in both voter lists. He claims that Ananda Mohan Karmakar as seen as father of Raju Karmakar in the SC certificate is a different person altogether. Sri Shaha claims that the SC certificate of Raju Karmakar is a false as he had taken scholarship benefits as OBC student in HS and degree courses. Moreover Raju Karmakar is Bengali and Bania sub Caste of SC should be indigenous Assamese Community as per Govt. Rule. 3. In reply to the allegations Sri Raju Karmakar gave diverse comments in the statements. He says that he is an SC person but got the OBC certificate from some friend of his father from Kokrajhar. He says that he used his OBC status in Degree Scholarship only but documents proved that the attired scholarship as HS student also. Rule. 3. In reply to the allegations Sri Raju Karmakar gave diverse comments in the statements. He says that he is an SC person but got the OBC certificate from some friend of his father from Kokrajhar. He says that he used his OBC status in Degree Scholarship only but documents proved that the attired scholarship as HS student also. He says initially he was refused an SC certificate from Dhubri so he took out an OBC certificate from Kokrajhar which he claims he later surrendered after obtaining the SC certificate from Gita Bairagi in 2004. He got his present job as Asst. Teacher in RBP HS school South Salmaria on the basis of his SC certificate. In the cross examination Raju Karnmakar affirms that his grandfather Hemandra Karmakar and his father Ananda Karmakar as seen in the OBC certificate. He affirms that his name is enrolled as a voter in both Kokrajhar and Bilaspara. He also affirmed that Ananda Mohan Karmakar the name given in the SC certificate as father of Raju Karmakar ( proved from Bilasipara voter list) He could not produce any link certificate of SC caste of his father or grandfather He also affirmed that he belongs to the Bengali Community. On perusal of the documentary and oral evidence it becomes evident that Raju Karmakar has fraudulently taken out an SC certificate from Dhubri and used it for his job purpose. The OBC certificate he claims he has surrendered to Kokrajhar. The SC certificate he holds at present is liable for cancellation on the basis of the findings above. The above report is forwarded with all attached documents for favour of your kind perusal information and necessary action. Yours faithfully (Anuradha Adhikari Sarma, ACS) Sub Divisional Officer (Civil) Bilasipara” 11. In the additional affidavit filed by the petitioner on 19.05.2011, it has been stated that the respondent No.11 all along derived the benefits as an OBC candidate on the basis of the OBC certificate that was obtained by him in 1998, which include the post metric scholarship etc. Referring to the information obtained under RTI Act, it has been stated that in the application form submitted by the respondent No.11, the petitioner had stated that the respondent No.11 declared himself as belonging to Sub Caste “Kahar” (Sl No.6). Referring to the information obtained under RTI Act, it has been stated that in the application form submitted by the respondent No.11, the petitioner had stated that the respondent No.11 declared himself as belonging to Sub Caste “Kahar” (Sl No.6). Referring to the Caste and Citizenship Certificate enclosed to the application form, the petitioner has further stated that in the said documents also the respondent No.11 indicated himself as OBC and “Kahar” respectively, which were duly countersigned by the SDO(C), Bilasipara. As stated in the said affidavit, in the form of declaration of income etc, the respondent No.11’s father also made the declaration to the effect that they belong to “Kahar” Sub Caste. The petitioner has enclosed the copy of the post metric scholarship form of the respondent No.11 incorporating all the above details through which the respondent No.11 along with his father claimed that they belong to OBC. 12. During the course of this proceeding, it was noticed that the particular enquiry as indicated in the counter affidavit filed by the respondent No.3 was going on requiring the participation of the petitioner and the respondent No.11. Accordingly by order dated 06.02.2014, their participation was ordered on the next date fixed (12.02.2014). When the matter was again taken up on 12.02.2014, the submission made by the learned State Counsel that the authority would now pass a speaking order pursuant to the said enquiry was recorded. Mr. U.K. Goswami, learned Standing Counsel, Education Department, has produced the copy of the speaking order passed by the Commissioner and Secretary, WPT&BC Department, who is also the Chairman of State Level Scrutiny Committee (SLSC). The SLSC is constituted of four members, namely, (i) Commissioner and Secretary, WPT&BC Department; (ii) Director, WPT&BC Department; (iii) Director, WSC and (iv) Joint Director, AIRT&SC. Upon a detail discussion of the matter along with the evidence on record, the said committee has held thus:- “Further it has been noted by the SLSC that pursuant to Assam Sc/St (RVSP) Rules, 1950 as amended in 1991, a notification was issued by the Government in WPT & BC Department vide No.TAD/BC/4232/88/47 dated 15.05.1991 authorizing only the Deputy Commissioner on the concerned district of which the candidate is a resident of grant Scheduled Caste certificate. The Deputy Commissioner may hold enquiry through their Sub-Divisional Officers and other functionaries and also obtain such assistance as they deem proper from the members of the Advisory Council for welfare of Scheduled Caste, Chairman of the Advisory Council for welfare of Scheduled Caste, Chairman of the Sub-Divisional Scheduled Caste Development Board. President and Vice-President of the ASom Anusuchit Jati Parisad and the President of the different district of Sub-Divisional Level Asom Anusuchit Jati Parisad. The Chairman of Sub-Divisional SC Development Board and SDO(C) are not authorized to grant SC certificate. So the SC certificate issued to Shri Raju Karmakar by Chairman, Sub-Divisional SC Development Board, Bilasipara vide Sl 305 dated 19.03.2004 which was countersigned by SDO(C), Bilasipara on 06.04.2004 is not valid. The SLSC, after careful examination of all papers and reports, comes to conclusion that the SC certificate vide Sl 305 dated 19.03.2004 issued by the Chairman of Sub-Divisional SC Development Board, Bilasipara and countersigned by SDO(C) to the respondent Shri Raju Karmakar, S/O- Sri Ananda Mohan Karmakar, Babupara, W/No. 5, P.O- Bilasipara, Dist- Dhubri is not valid and therefore it stands cancelled.” 13. Mr. J.U. Laskar, learned State Counsel has also produced the copy of the consequential order dated 14.03.2014 passed by the Deputy Commissioner, Dhubri requiring consequential action to be taken in the matter. At this stage, Mr. M.K. Choudhury, learned counsel representing the respondent No.11 submits that the Deputy Commissioner, Dhubri has also passed an order cancelling the SC certificate asking the respondent No.11 to return the original. It is also submitted that against the said order, the respondent No.11 has made a representation. Mr. U.K. Goswami, learned Standing Counsel, Education Department, submits that pursuant to the said developments, the department will now take consequential action towards cancellation of the appointment of the respondent No.11. 14. If the respondent No.11 does not belong to SC community, he could not have been selected and appointed as Assistant Teacher (Arts) as SC candidate. Consequently, it is the petitioner No.1, who would have come in the zone of consideration for appointment against the two vacancies. In the enquiry proceeding, full participation was provided to the petitioner No.1 and the respondent No.11 and on conclusion of the same, the SLSC has passed the speaking order dated 15.02.2014 with the above quoted findings. Consequently, it is the petitioner No.1, who would have come in the zone of consideration for appointment against the two vacancies. In the enquiry proceeding, full participation was provided to the petitioner No.1 and the respondent No.11 and on conclusion of the same, the SLSC has passed the speaking order dated 15.02.2014 with the above quoted findings. The very fact that the respondent No.11 had obtained an OBC certificate way back in 1998 would go to show that he belongs to OBC. The plea of the respondent No.11 that he had to obtain the same as SC certificate was not issued to him, is not at all tenable. The respondent No.11 obtained benefits including the post metric scholarship on the basis of the said OBC certificate. Thereafter, in the year 2004, he obtained the SC certificate. Not only that, he continued to possess both the certificates till 2006 and thereafter, possibly realizing that it will be detrimental to his interest to keep both the certificates, he surrendered the OBC certificate in 2006 knowing it well that the SC certificate will fetch more benefits. As the enquiry has revealed that the SC certificate obtained by the petitioner is the product of forgery and/or the same was obtained by the respondent No.11 fraudulently. In the aforementioned application form, both the respondent No.11 and his father made categorical declaration that they belong to “Kahar” Sub Caste recognized as OBC. Subsequently, the petitioner projected that he belongs to “Bania” Sub Caste recognized as SC category. 15. Above being the position, this writ petition is allowed granting the prayers made including setting aside and quashing of the appointment of respondent No.11 as Assistant Teacher (B.A), requiring the respondents to take all consequential action on the basis of the merit list and the position occupied by the petitioner. If he is found to be within the zone of consideration against the aforesaid two vacancies, the authority shall do the needful. 16. Let the required exercise be carried out, which is otherwise also going to be undertaken as submitted by Mr. U.K. Goswami, learned Standing Counsel, Education Department, without any further delay.