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2020 DIGILAW 78 (CAL)

Manoj Kumar Chowdhury v. State Of West Bengal

2020-01-20

RAJASEKHAR MANTHA

body2020
JUDGMENT Rajasekhar Mantha, J. - The writ petitioner is a Bench Clerk, Gr.- I under the District Judgeship Malda. 2. The instant writ application has been filed challenging memorandum No. 6942-A (26/G) dated 30.06.2016 and Order No. 253/G which is a gradation list of Grade-II employees in the District Judgeship Malda except employees who are Bench Clerk, Grade-I. Order No. 253/G dated 28th September, 2016 and Order No. 153/G dated 04.07.2016 promoting employees to the post of Bench Clerk, Grade-I from Bench Clerk, Grade-II have also been challenged. The writ petitioner cannot be concerned with any of the other orders except the Order dated 28th September, 2016 fixing the date of viva-voce examination for selection to the post of Sheristadar to be conducted on seniority-cum-merit basis. The other prayers with regard to promotion to other posts cannot be entertained inasmuch as the petitioner is not a candidate to such post. The necessary-parties i.e., persons likely to be affected have also not been made party-respondent to writapplication. 3. The petitioner has submitted that he is a Scheduled Caste candidate and has been recognised as such in a gradation list that was prepared by the District Judgeship Malda being Order 106/G dated 29th April, 2014. He was the senior most in such list. He submits that the promotion to the post of Sheristadar ought to be conducted on the basis of seniority alone as per Part I, Schedule B of the West Bengal District Court (Constitution of Service, Recruitment, Appointment, Probation and Discipline of Employees) Rules, 2015. 4. Ignoring such rules, the petitioner submits that, the District Judgeship at Malda, after inviting opinions from employees under Bench Clerk, Grade-I decided to hold the selection process on the basis of seniority-cum-merit. 5. The Court has received affidavits both from the State and also the High Court Administration. 6. The matter has been argued at length by the petitioner and the State. The moot question raised by the High Court Administration as well as the State Government on which the counsel for the petitioner has argued at length is whether the petitioner in fact belong to the Scheduled Caste category to lay any claim for seniority even in the gradation list published in the year 2014 or be entitled to participate in the promotional process as per the gradation list of 2016. It is only if the petitioner crosses this hurdle, that this Court can enter into the second question as to whether the process and method of promotion to be followed from promotion of Bench Clerk, Grade-I to Sheristadar, Grade-I ought to be seniority alone or merit-cum-seniority or seniority-cum-merit. 7. The parties are, therefore, ad idem and this Court agree that an appropriate decision must first be rendered as regards the petitioner's Scheduled Caste status. 8. The petitioner was appointed on 26th February, 1992 on compassionate ground after the premature retirement of his father one Ramchandra Chowdhury, on medical grounds. The petitioner's father was a Process Server under the Malda Judgeship holding Group D post. Admittedly the petitioner's father belonged to the Baisya Banik Caste and was a General category employee. The order of appointment and joining of the service was subject to police verification and medical examination report. In the verification form submitted by the petitioner and duly signed by him on 13th May, 1992, the petitioner declared as follows : "Are you a member of Scheduled Case/Scheduled Tribe? Ans: X No" No particulars of his caste are mentioned thereat. The petitioner's service was confirmed on 26th February, 1995. 9. The petitioner thereafter obtained a certificate on 16th November, 1997 from the Sub-Divisional Officer, Malda, that he was a Scheduled Caste person belonging to the 'Sunri' (excluding Saha) caste. Based on such certificate the petitioner applied before the District Judge on the 19th of June, 1998 and asked for it to be recorded in his Service Book. 10. By a letter dated 19th February, 2002, the petitioner challenged the gradation list published by the then District Judge on 13th February, 2002 on the ground that the reservation roster system was improperly applied. The said request was declined by the District Judge, Malda vide communication dated 15th March, 2002. 11. By a notification dated 13th November, 2009 the petitioner was promoted as Upper Division Clerk (UDC) as a Scheduled Caste candidate. He was second in seniority and promoted with effect from 1st February, 2008 after applying the 50 point roster. 12. The petitioner after having managed to get a promotion, applied on 25th November, 2009 before the District Judge seeking such seniority to be reckoned from the date of first appointment on the basis of his Scheduled Caste certificate. 13. He was second in seniority and promoted with effect from 1st February, 2008 after applying the 50 point roster. 12. The petitioner after having managed to get a promotion, applied on 25th November, 2009 before the District Judge seeking such seniority to be reckoned from the date of first appointment on the basis of his Scheduled Caste certificate. 13. Suspecting the Caste Certificate obtained by the petitioner the District Judge, Malda (B. P. Mukhopadhyay) through the Chief Judicial Magistrate vide communication dated 7th December, 2009, posed three queries to the petitioner. (i) Whether the petitioner's father was an employee in the General category. (ii) Whether he was appointed in the same category. (iii) Whether he claimed to be a Scheduled Caste candidate while submitting papers in the year 1992 for preparation of his Service Book. 14. The petitioner replied vide letter dated 11th December, 2009 that he did not have papers or documents as regards his father's caste and asked the District Judge to verify his father's service records. The second answer of the petitioner was that it was not mentioned by the District Judge on 22nd February, 1992 that the petitioner was General category candidate or a Scheduled Caste candidate. He further said that he did not have papers or documents in the year 1992 to declare Scheduled Caste status. He reiterated the certificate dated 6th November, 1997 issued by the District Magistrate, Malda that he was Scheduled Caste and also asked for his father's service records. 15. It is interesting to note that the petitioner had never claimed to be a Scheduled Caste candidate nor had asserted the same before the purported certificate of the SDO issued on 6th November, 1997 and claimed knowledge of being in the Scheduled Caste community only based on such certificate. 16. By a communication dated 17th December, 2009 the then District Judge, Malda issued a notice to the petitioner calling for an explanation as to how the petitioner who was in the General category at the time of his initial appointment procured a SC certificate after lapse of five years of engagement and at the age of 26. The District Judge then directed the entire matter to be investigated by the Superintendent of Police, IB. The District Judge then directed the entire matter to be investigated by the Superintendent of Police, IB. It was also recorded that the petitioner claimed to be in the General category when he was recruited and the same was also confirmed in the police verification report. 17. On December 19, 2009, the petitioner replied that he belonged to the other category since he did not have any documents to prove that he was in Scheduled Caste community. The petitioner also denied that he procured promotion by any sharp practice. 18. By an order dated 19th February, 2009 issued by the then District Judge, the seniority in UDC Post in the Malda District Judgeship was recast treating the petitioner as a General candidate. The petitioner came to be placed in the 3rd position in the recast seniority list and the date of effective promotion in the UDC post was altered to 01.05.2008 instead of 01.02.2008. The effective date of promotion of other persons in the promotional process also came to be changed. 19. By an order dated 29th March, 2010, the then District Judge (B. P. Mukhopadhaya), found, after an internal enquiry and verification of the service records of both the petitioner and his cousin brother, Dipak Chowdhury, did not belong to the Scheduled Caste community for the following reasons. i. The petitioner was appointed compassionately in the General category. The petitioner declared 'No' in the column of the application, as to whether he belongs to the SC or ST category. ii. Only a Xerox copy of a SC certificate dated 6th November, 1997 is pasted in his Service Book, without attestation or counter signature of the District Judge. iii. The petitioner's father's Service Book clearly indicates that he was a General category candidate and not of the Scheduled Caste. iv. The geneaolocial table of the petitioner and his cousin was set out where the petitioner's father and father's three blood brothers were of the Baisya Banik Caste in the General category. Hence petitioner must also deemed to be Baisya Banik category and could not belong to the Sunri caste. v. Entry into the petitioner's Service Book as Scheduled Caste in the year 1997 was made by the Nazarat Department. vi. The petitioner caused entry in his Service Book as Scheduled Caste candidate by practising fraud. vii. Hence petitioner must also deemed to be Baisya Banik category and could not belong to the Sunri caste. v. Entry into the petitioner's Service Book as Scheduled Caste in the year 1997 was made by the Nazarat Department. vi. The petitioner caused entry in his Service Book as Scheduled Caste candidate by practising fraud. vii. The original certificate issued by the SDO, Malda as regards the petitioner's Scheduled Caste status is not available and such certificate was also found to be false, fake and fictitious as noted by the then Civil Judge (Sr. Div.) G. P. Mondal who had marked in red ink in the column No. 1 and Column No. 2 of the Service Book of the petitioner. 20. The detailed findings with reasons are recorded in the order dated 29th March, 2010 passed by the said District Judge, Malda. The matter was directed to be sent to the District Magistrate, Malda, for an enquiry as to how and on what basis the then SDO, Malda issued the purported certificate dated 6th November, 1997 that the petitioner belonged to the 'Sunri' (other than Saha) category. The Service Books of the petitioner were directed to be removed to safe custody of the Sheristadar. 21. In reply to the reference by the District Judge above, the District Magistrate, Malda vide letter dated 15th June, 2010 without causing any enquiry and without referring to any document or giving reasons, gave a three line reply that the Scheduled Caste certificate of the petitioner was issued by his office. 22. The petitioner made a further application before the District Judge, Malda for acceptance of his Scheduled Caste certificate and prayed for consequential benefits which were recorded by the District Judgeship, Malda which was declined. 23. The petitioner filed WP 690 (W) of 2010, inter alia, praying for acceptance of his Scheduled Caste status that was disposed of on 27th July 2011. The High Court Administration or the State did not file any affidavit in opposition. This Court set aside the order dated 29th March, 2010 passed by the District Judge at Malda only on the ground that he was not heard prior thereto. While doing so the Coordinate Bench had duly recorded that the writ petitioner was duly issued a show-cause on 7th December, 2009 and had answered the same. This Court set aside the order dated 29th March, 2010 passed by the District Judge at Malda only on the ground that he was not heard prior thereto. While doing so the Coordinate Bench had duly recorded that the writ petitioner was duly issued a show-cause on 7th December, 2009 and had answered the same. The Court also went on the record that if the conclusion of the District Judge is based on Service Book entries and records and after considering the reply of the petitioner, the same was justified. Despite whereof the Co-ordinate Bench has held that the said order dated 29th March, 2010 is illegal and has directed it to be set aside. 24. By a letter dated 13th January, 2011, the then District Judge, Malda (R. K. Bag, J.), wrote a letter addressed to District Magistrate, Malda, for enquiry into the Scheduled Caste Status of the petitioner. It was indicated in the said letter that the genealogical history of the petitioner indicated that he was from the Baisya Banik community and the same was not recognised as Scheduled Caste in West Bengal. It was further indicated that the petitioner had suppressed facts represented himself to be of the Sunri (excluding Saha) community and fraudulently obtained the SC certificate. 25. The petitioner thereafter filed a writ petition being WP No. 19318 (W) of 2011 seeking direction on the SDO, Malda, that he should not initiate any proceedings till such time the District Judge, Malda, decides the matter as ordered by a Co-ordinate Bench on 27th July, 2011 (supra). The writ petition was, however, disposed of by order dated 14.12.2011 by this Court directing the SDO to continue enquiry since the petitioner has the liberty to challenge the same before higher authority. 26. Not having received any reply from the SDO, Malda, the District Judge commences enquiry against the petitioner upon due notice to him. The enquiry concluded on 2nd March, 2012 which held that the petitioner did not belong to the SC category. Departmental Proceedings were ordered against the petitioner by the District Judge, Malda. 27. 26. Not having received any reply from the SDO, Malda, the District Judge commences enquiry against the petitioner upon due notice to him. The enquiry concluded on 2nd March, 2012 which held that the petitioner did not belong to the SC category. Departmental Proceedings were ordered against the petitioner by the District Judge, Malda. 27. In the mean time the said enquiry file has mysteriously disappeared from the records of the District Judgeship and pursuant to the order dated 14.12.2011 passed in WP 19318 (W) of 2011, the SDO, Malda, Sadar, once again reiterated the petitioner who belonged to the Sunri (excluding Saha) community and held that he was a Scheduled Caste person. The new District Judge thereupon allowed all benefits of the petitioner including promotions and necessary entries made in his Service Book. 28. Wp 15843 (W) of 2014 was filed against the District Judge and the petitioner by two other UDCs seeking cancellation of the petitioner's Scheduled Caste Certificate and withdrawal of benefits granted to him based on such status. It was also prayed that a proper enquiry be held against the petitioner. The said proceedings are pending and no order has been passed. The petitioner filed affidavit in opposition to such proceedings suppressing the enquiry held against him pursuant to the order of this Court dated 27th July 2011 (supra). The then District Judge filed affidavit in opposition to the writ petition stating that he had enquired into the Scheduled Caste status of the petitioner and found the petitioner guilty of misdemeanour. 29. By an Administrative Order dated 6th June, 2013 the succeeding District Judge without cancelling the order dated 29th March, 2010 passed by the earlier District Judge restored the special status of the petitioner and got the same noted in the Service Book. The said District Judge followed the order dated 14.12.2011 (supra) passed by this Court. 30. By an Administrative Order dated 17th April, 2014, the then District Judge at Malda granted promotion to the petitioner to the post of UDC with effect from 01.08.1996 instead of 01.08.2008 completely ignoring the order dated 19th December, 2009 passed by the earlier District Judge. The petitioner was granted to Grade-II by the same order and was promoted to Grade-I with effect from 1st March, 2005, considering him as Scheduled Caste on and from his date of appointment. The petitioner was granted to Grade-II by the same order and was promoted to Grade-I with effect from 1st March, 2005, considering him as Scheduled Caste on and from his date of appointment. Such order according to this Court is illegal and it is violative of the SC & ST Act, 1975 which requires production of SC certificate at the time of entry into the post. The names of other senior SC and ST candidates in the lower feeder post were not considered in the order dated 17th April, 2014. 31. By a further Order dated 28th September, 2016, the District Judge, Malda, called for an interview of 15 Grade-I Bench Clerks to the post of Sheristadar. 32. The writ petitioner filed W.P. No. 15843 (W) of 2014 challenging the said order and a Co-ordinate Bench has stayed the order of the District Judge, Malda dated 28th September, 2016. On the 14th March, 2017, WP 15843 (W) of 2014 was disposed of by this Court upholding the order dated 29th March, 2010 passed by the District Judge at Malda, revoking the petitioner's status as Scheduled Caste person. There is typographical error in the order dated 14th March, 2017 in the 3rd last paragraph at page 2. The date should be read as 29th March, 2010 instead of 13th March, 2010. There is no order dated 13th March, 2010 in such writ petition records whereof have been verified by this Court. An appeal being No. FMA 1402 of 2017 is pending therefrom. The order of the Single Judge is not interfered with. 33. By an order dated 22nd December, 2017 one Chinmoy Sarkar was appointed to the post of Sheristadar-in-Charge by reference to the final gradation list published in the year 2010. The said order came to be altered by the District Judge at Malda on the instruction of Zonal Judge, Malda on 3rd January, 2018 communicated to the District Judge vide order dated 3rd January, 2018 issued by the Registrar General of the High Court. 34. This Court has carefully considered the records. The said order came to be altered by the District Judge at Malda on the instruction of Zonal Judge, Malda on 3rd January, 2018 communicated to the District Judge vide order dated 3rd January, 2018 issued by the Registrar General of the High Court. 34. This Court has carefully considered the records. In terms of Section 8A of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act of 1994 as amended on 19th May, 2007, it is only a Committee comprising of the Secretary, Backward Classes Welfare Department, Government of West Bengal; The Commissioner, Directorate of Backward Classes Welfare, West Bengal and the Director, Cultural Research Institution Backward Classes Welfare Department, West Bengal that can cause an enquiry into a certificate issued by the SDO. Hence the fresh and purported enquiry and clearance certificate issued by the SDO, Malda, in the year 2014 pursuant to directions of a Co-ordinate Bench on 14.12.2011 (supra) is ex facie illegal. Any benefits, therefore, conferred on the petitioner by the orders dated 6th June, 2013 and 17th April, 2014 by the then District Judges at Malda are non-est, void and illegal. 35. It is now well-settled that only documents submitted by the petitioner and the police verification report at the time of petitioner's entry in to service that can be considered insofar as the caste status of the petitioner. Any document obtained subsequently must be suspect and was correctly disregarded by the then District Judge at Malda in his order dated 29th March, 2010. The orders passed by the subsequent District Judges on 6th June, 2013 and 17th April, 2014 have completely ignored the enquiry report of the then District Judge at Malda dated 2nd March, 2012. 36. The petitioner's purported Scheduled Caste certificate of 1997 and subsequent reiteration thereof by the SDO, Malda in the year 2014 are illegal and no credence could be given to the same. At the risk of repetition it is stated that petitioner did not disclose that he belonged to any reserved category at the time of entry into the service. The right based on a reserved category is required to be specially urged and asserted at the time of entry into service. The petitioner not having asserted any such right at the time of entry the subsequent production of a Scheduled Caste certificate cannot be countenanced. 37. The Hon'ble Supreme Court in Rameshbhai Dabhai Naika Vs. The right based on a reserved category is required to be specially urged and asserted at the time of entry into service. The petitioner not having asserted any such right at the time of entry the subsequent production of a Scheduled Caste certificate cannot be countenanced. 37. The Hon'ble Supreme Court in Rameshbhai Dabhai Naika Vs. State of Gujarat & Ors., (2012) 3 SCC 400 at Paragraph 7 held :- 7. Having said that in an inter-caste marriage the woman takes on the caste of her husband, the Court proceeded to consider the next question which was: ( Valsamma case, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713 ] , SCC p. 565, para 33) "33. ... Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be?" This question the Court firmly answered in the negative and in para 34 of the judgment observed and held as follows: ( Valsamma case, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713 ] , SCC p. 566 ) "34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, (1995) Supp2 SCC 549 and R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309 : JT (1995) 7 SC 93 this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of the status of Scheduled Caste, etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution." (emphasis added) 38. Further in the "Updated Guidelines for issuance of SC/ST Certificates" as published by the Government of West Bengal, Backward Classes Welfare Department vide Memorandum No. 1203- BCW/MR-88/2014 Date: 27-07-2015, under the head of "Entitlement" enumerated in Clause 4, sub clause (d) it is categorically stated that: "A person who was not a SC/ST by birth will not be deemed to be a member of a SC/ST merely because he or she has married a person belonging to SC/ST. Similarly, a person who is a member of a SC/ST would continue to be a member of that SC/ST even after his or her marriage with a person who does not belong to SC/ST. In fine, a SC/ST person by birth continues to be so till his/her death." 39. This Court specifically notes that the petitioner's father and paternal uncles were admittedly in the General category. The petitioner's father belonged to Baisya Banik community as found by the District Judge in the year 2009. As to when and how the petitioner suddenly became a member of the Sunri (other than Saha community) is baffling. The said Baisya Banik community is admittedly in the General category and not any reserved category. 40. The above finding flows unequivocally from the facts emerging from Administrative Orders referred to hereinabove, applying the dicta and ratio apparent from various decisions of the Supreme Court and the law relating to Reservation and Caste Status followed in the country. 41. The said Baisya Banik community is admittedly in the General category and not any reserved category. 40. The above finding flows unequivocally from the facts emerging from Administrative Orders referred to hereinabove, applying the dicta and ratio apparent from various decisions of the Supreme Court and the law relating to Reservation and Caste Status followed in the country. 41. This Court is, therefore, of the clear view that the petitioner cannot be in the Scheduled Caste community and the certificate obtained by him in the year 1997 and the subsequent reiteration the same by the SDO is fake, fraudulent, forged and fictitious. The reiteration by the SDO in any event is contrary to the provisions of Section 8A of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act of 1994. The Scheduled Caste Certificate of the petitioner is quashed and set aside. The petitioner shall be treated as a General candidate and not a Scheduled Caste candidate in any reserved category. 42. In view of the answer given to the first question as indicated hereinabove, the second question is rather academic and not required to be dealt with by this Court. 43. The petitioner's seniority position must be recast by treating him as having been promoted to the post of UDC with effect from 01.05.2008. 44. Wp 24953 (W) of 2016 is disposed of. 45. There shall be no order as to costs. 46. Urgent Photostat Certified server copy of this judgment, if applied for, be supplied to the parties on urgent basis. Later The date of the last Order should be corrected to read as January 10, 2020. In the first line of the 2nd paragraph of the Order dated January 10, 2020, the expression "Senior-most Bench Clerk, Grade - II" shall stand corrected to read as "Senior-most Bench Clerk, Grade - I" The above correction be incorporated in the Order dated January, 10, 2020. The Office is directed to take steps accordingly.