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2015 DIGILAW 772 (JHR)

Nirbhay Prakash v. State of Jharkhand

2015-07-06

RONGON MUKHOPADHYAY

body2015
JUDGMENT : In this writ application the petitioner has prayed for a direction upon the respondent to process the candidature of the petitioner who has duly qualified for the post of Civil Judge and to issue appointment letter. A further direction has been sought for restraining the respondent not to insist the petitioner to supply the residential certificate for employment; as also for a declaration that the residential certificate for employment as orally demanded has no bearing on the caste certificate issued by the competent authority of the State of Jharkhand. 2. The Jharkhand Public Service Commission came up with a notification for filling up the post of Civil Judge (Junior Division) vide advertisement no. 4 of 2013. The petitioner who is a scheduled caste category candidate applied for the post and submitted the documents including the caste certificate issued by the Deputy Commissioner, Ranchi. The petitioner after being successful in the preliminary examination appeared in the main examination and upon qualifying the same was called for an interview. The final result declared for Civil Judge (Junior Division) included the name of the petitioner in the scheduled caste category. Since the petitioner in spite of having successfully qualified to be appointed as a Civil Judge (Junior Division), but since the appointment letter has not been issued to the petitioner, the present writ application has been preferred. 3. Heard Mr. Anil Kumar Sinha, learned senior counsel for the petitioner and Mr. Prashant Kumar Singh, learned G.P. VI for the State. 4. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner submitted that the petitioner was born in Ranchi on 03.06.1985 to which a birth certificate was also issued by the Municipal Corporation, Ranchi. The petitioner has also completed his higher secondary education from Ranchi itself and subsequently obtained LL.B. degree after completing 5 years integrated course in the West Bengal National University of Juridical Sciences. It has been submitted by the learned senior counsel for the petitioner that the petitioner has a brilliant academic career and also is an author of various articles which have been published in various newspapers in South Asia. It has been submitted by the learned senior counsel for the petitioner that the petitioner has a brilliant academic career and also is an author of various articles which have been published in various newspapers in South Asia. Failure to secure appointment letter even on being successful to be appointed to the post of Civil Judge (Junior Division) was only on account of the insistence by the authorities that reservation can be claimed only on the basis of residential certificate for employment which is to be issued by the State Government. Learned senior counsel has further submitted that the issue of defining a local person has already been set at rest in view of the Full Bench judgment of this Court in the case of Prashant Vidyarthy and another Vs. State of Jharkhand and others. It has also been submitted that the authorities cannot insist for production of local residential certificate in order to consider the candidature of the petitioner as a scheduled caste candidate as in spite of the circular issued by the State of Jharkhand, one cannot take away the right vested to the petitioner by virtue of Article 341 read with Article 14 and 16 of the Constitution of India. Learned senior counsel further adds that the caste certificate has been granted to the petitioner by the Deputy Commissioner, Ranchi on the basis of the recommendation of the Sub-Divisional Officer, Ranchi and since the caste certificate granted to the petitioner is still in vogue as it has neither been cancelled or rescinded, the authorities cannot now insist to submit a local residential certificate to supplement the caste certificate. 5. Mr. Prashant Kumar, learned G.P. VI, on the other hand, while controverting the arguments advanced by the learned senior counsel for the petitioner has submitted that the benefit of reservation is to be provided only to a permanent resident of the State of Jharkhand on production of caste certificate and claim of caste certificate holder of other States will not be acceptable. It has been submitted that submission of caste certificate issued by the Sub-Divisional Officer is one of the conditions and not the only condition and the benefit of reservation is available only to the permanent resident of the State of Jharkhand, and certificate in respect of permanent resident is essential in order to be given the benefit of reservation. It has been submitted that submission of caste certificate issued by the Sub-Divisional Officer is one of the conditions and not the only condition and the benefit of reservation is available only to the permanent resident of the State of Jharkhand, and certificate in respect of permanent resident is essential in order to be given the benefit of reservation. It has been submitted that since the petitioner had failed to submit the domicile certificate substantiating the fact that the petitioner is a permanent local resident and in absence of the same, the benefit of reservation cannot be granted. Mr. Singh has further relied on the letter dated 22.02.1985 issued by the Joint Secretary to the Government of India, Ministry of Home Affairs addressed to the Chief Secretaries of all the State Governments and Union Territories/Administration wherein specific guidelines were given that a scheduled caste/ scheduled tribe person who has migrated from the State of origin to some other State for the purposes of seeking education, employment etc. will be deemed to be scheduled caste/ scheduled tribe of the State of his origin and will not be entitled to derive benefit from the State to which he has migrated. Reference has also been made by the learned G.P. VI to the “Brochure on Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in Services” to drive home the point that absence of local residential certificate would prevent a candidate from getting the benefit of reservation as reservation for local resident are co-related. It has further been submitted that the Constitution (Scheduled Caste) Order, 1950 published vide notification dated 10.08.1950 has to be taken into consideration as it has to be proved by the petitioner that on the date of issuance of the said Order i.e., 10.08.1950, the candidate or his forefathers were the permanent resident of the present State of Jharkhand. Learned counsel further adds that the petitioner is merely a temporary resident of State of Jharkhand and in such circumstances, it is for the petitioner to establish that he or his forefather is the domicile of the locality included in the State of Jharkhand on the date of Presidential Order i.e., 10.08.1950 in order to derive the benefit of reservation in the State of Jharkhand. The temporary residential certificate as has been submitted by the learned counsel for the State had merely indicated that the petitioner is a resident for 10 years and such facts would not entitle the petitioner to claim reservation on the basis of he being a scheduled caste category candidate. 6. It has been admitted by the respondent in his counter affidavit that caste certificate showing the petitioner to be a scheduled caste was one of the conditions, but not the only condition. The caste certificate was issued by the Deputy Commissioner, Ranchi on the recommendation of the Sub-Divisional Officer, Ranchi wherein it has clearly been depicted that the caste of the petitioner is “Dhobi” which comes within the scheduled caste category. The veracity, genuineness or truthfulness of the caste certificate submitted by the petitioner has not been disputed by the authorities. In the counter affidavit, a new story has sought to be adopted by the respondent – State that it is the petitioner who has to establish that on the date of issuance of the Presidential Order i.e., 10.08.1950, the petitioner or his forefathers were the permanent resident of the locality which falls within the present State of Jharkhand. On the one hand, the respondent has not disputed the caste certificate issued by the Deputy Commissioner, Ranchi whereas, on the other hand, impliedly it is being sought to be projected that since the petitioner is in possession of a temporary residential certificate as such, it cannot be deduced that the petitioner or his forefathers have not migrated from another State. On the showing of the petitioner, it is not in dispute that the petitioner was born in Ranchi in the State of Jharkhand and had completed his education till the level of higher secondary in Ranchi itself and thereafter has obtained further qualifications. In W.P.(S) No. 1068 of 2012 (Dr. Rakesh Kumar Vs. The State of Jharkhand & Others), this court has held as follows: “12.(xiii)....................This Communique never curtails the right to get public employment, of the present petitioner, which is arising out of Article 14 to be read with Article 16 to be read with Article 341 of the Constitution of India. There is no statutory rule with the State of Jharkhand which prescribes such type of certificate which is to be given by a candidate for getting benefits of Scheduled Castes quota. There is no statutory rule with the State of Jharkhand which prescribes such type of certificate which is to be given by a candidate for getting benefits of Scheduled Castes quota. Whatever insisted is dehors the law and cannot create any legal obligation on the part of the candidate. There ought to be a duty vested in the candidates for supplying such type of certificate and legal obligation arises under the law and not from whims and capricious of the respondents. There are already certificates on record with the respondents, which are at Annexure-2 and 3. These certificates are in consonance with what are required under clause 9(ii)(Chh) of the public advertisement, which is Annexure-1 to the memo of the petition. Thus, the insistence on the part of the Jharkhand Public Service Commission that unless and until the present petitioner brings or produce Local Residential Certificate (for employment) and that too in a particular proforma, he cannot claim reservation quota prescribed for the post of Medical Officer. This is a misconception of law, on the part of the Jharkhand Public Service Commission. Under the law the petitioner is entitled to get the benefits of Reserved Category Quota for the post of Medical Officer. The petitioner is admittedly Scheduled Caste candidate and is a resident of District Dhanbad, State of Jharkhand as per Annexures-2 and 3. The petitioner stays at District-Dhanbad, State of Jharkhand. It is also admitted fact that the petitioner has secured more marks than lastly selected candidate of Scheduled Castes category.” 7. The petitioner had participated in the preliminary examination as well as in the interview and no impediment were caused by the respondent – authority in the transition of the petitioner from one phase of the examination to the other. If at all, the authorities were not satisfied with the local residential certificate or the caste certificate, appropriate steps could have been taken at the initial stage. Now, when the petitioner has successfully competed and is awaiting the issuance of appointment letter, it is highly arbitrary on the part of the authorities to come out with a new stand. 8. The learned senior counsel for the petitioner has referred to the case of “Madan Prakash & others Vs. The State of Jharkhand & others” reported in 2006 (4) JLJR 685 , and for the purpose of this case, the relevant paragraphs are extracted hereinbelow :- “5. 8. The learned senior counsel for the petitioner has referred to the case of “Madan Prakash & others Vs. The State of Jharkhand & others” reported in 2006 (4) JLJR 685 , and for the purpose of this case, the relevant paragraphs are extracted hereinbelow :- “5. I have heard learned counsel for the parties. The residential certificates and caste certificates, issued by the competent authorities, are placed on record by the petitioners. All these certificates have been issued after the creation of the State of Jharkhand by the competent authorities in the State of Jharkhand. As far Domicile Certificates are concerned, petitioners have been shown to be the residents of the places in the territory of Jharkhand and even in caste certificates issued, it is mentioned that they are the residents of Bokaro, Jharkhand. In all the certificates, they have been shown as “Janamvasi” of Jharkhand. It is not in dispute that petitioners' applications were entertained and they were permitted to participate in the Preliminary as well as Main Examinations and were declared successful. It is only at the time of counseling that the petitioners have been prevented from seeking admissions on account of their mentioning “Permanent residence in the State of Bihar.” 9. I am in respectful agreement with the judgment under reference. Even otherwise, no justifiable reasons have been assigned by the authorities in the counter affidavit for depriving the petitioner from being issued the appointment letter. 10. In the result, this writ application is allowed with a direction to the respondent to issue appointment letter to the petitioner without insistence of any proof of the forefathers of the petitioner being a resident of the locality situated in the State of Bihar from the date of issuance of the Presidential Order i.e., 10.08.1950, if the petitioner is otherwise eligible for being issued such appointment letter. Application allowed.