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2019 DIGILAW 163 (CAL)

Purobi Koch @ Purabi Koch v. State of West Bengal

2019-02-01

DEBANGSU BASAK

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JUDGMENT : Debangsu Basak, J. The petitioner seeks a mandatory injunction against the appointing authority from dismissing or removing the petitioner from an employment with Mekliganj Municipality. 2. Learned advocate appearing for the petitioner submits that, the petitioner belongs to a Scheduled Tribe, namely Koch tribe. 3. The State of West Bengal issued a tribe certificate in favour of the petitioner on September 15, 1998. On the strength of such certificate, the petitioner applied for obtaining her employment. 4. Such tribe certificate was, subsequently, cancelled by a writing dated October 17, 2016 by the Government of West Bengal. The petitioner now apprehends that, the appointing authority will terminate the services of the petitioner. 5. Learned advocate appearing for the petitioner relies upon (Kavita Solunke Vs. State of Maharashtra & Ors., (2012) 8 SCC 430 ) and (State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4 ) and submits that, since, the petitioner is not guilty of obtaining the tribe certificate by any fraudulent means, she should not be penalized at this stage. The benefits afforded to Milind & Ors. (Supra) and Kavita Solunke (Supra) should be extended to the petitioner. 6. Learned senior advocate appearing for the State submits that, the petitioner is guilty of obtaining the tribe certificate fraudulently. He submits that, the petitioner cannot obtain any benefit on the basis of such tribe certificate. The tribe certificate was not issued in conformity with the West Bengal Scheduled Castes and Scheduled Tribe (Identification) Act, 1994 read with the West Bengal Scheduled Castes and Scheduled Tribe (Identification) Rules, 1995. 7. In the facts of the present case, petitioner belongs to Koch tribe. Koch tribe is recognized as a schedule tribe in the State of Meghalaya. Such tribe is not a schedule tribe in the State of West Bengal. The petitioner migrated to the State of West Bengal. On her application, a tribe certificate was issued in favour of the petitioner on September 15, 1998. Apparently, the State of West Bengal treats Koch tribe as a caste. Therefore, the initial issuance of the tribe certificate in favour of the petitioner was incorrect. Nothing is placed on record to suggest that, the petitioner was instrumental in having the authorities issue the tribe certificate in favour of the petitioner. The petitioner is otherwise entitled a caste certificate. 8. Therefore, the initial issuance of the tribe certificate in favour of the petitioner was incorrect. Nothing is placed on record to suggest that, the petitioner was instrumental in having the authorities issue the tribe certificate in favour of the petitioner. The petitioner is otherwise entitled a caste certificate. 8. In Kavita Solunke (Supra), the Supreme Court noticing Milind & Ors.(Supra) extended the benefits of Milind & Ors. (Supra). In both the matters, the Supreme Court found that, the persons having obtained the tribe and the caste certificate, as the case may be, had nothing to do with obtaining of the same, and that, it would be improper, given the passage of time, to set at naught the benefits accruing to such persons on the basis of such certificate. 9. In the facts of the present case, the tribe certificate was issued on September 15, 1998 and has been sought to be recalled on October 17, 2016. A considerable period of time has elapsed from the date of issuance of the tribe certificate till the date of its recalling. In the interregnum, the petitioner obtained employment on the basis of the tribe certificate. It would be improper, on the strength of the ratio laid down in Kavita Solunke (Supra) and Milind & Ors. (Supra) to permit the authorities to treat the petitioner as if she did not posses the tribe certificate on the date of her appointment, if she does claim any further benefit on the basis of the tribe certificate subsequent to October 17, 2016. It is clarified that, her employment will not be questioned on the basis of her tribe certificate as she obtained the employment before the cancellation thereof. She will however, not claim any new benefit on the strength of the tribe certificate. The cancellation of the tribe certificate is upheld. 10. W.P. No.12129 (W) of 2018 is disposed of. 11. No order as to costs. 12. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.