San Kumar Sidar vs State of Chhattisgarh and Others

Pritinker Diwaker, J.—On 26.7.2003 an advertisement (Annexure P-2) was issued by the Chief Medical and Health Officer, Raigarh (Respondent No. 2 herein) for filling up various backlog vacancies including that of Multipurpose Health Workers (Male (10 in number)) under the special recruitment drive from amongst the candidates belonging to Scheduled Tribe category. As per the terms and conditions of the advertisement, among other things, a candidate was required to submit his caste certificate. The petitioner being a candidate of scheduled tribe category had applied for the post of Multipurpose Health Worker (Male) submitting caste certificate (Annexure P-11) issued by Naib Tehsildar, Lailunga, Tehsil Gharghoda, District Raigarh. Subsequently, as per the averment made in the writ petition, the petitioner also submitted caste certificate dated 5.11.2009 issued by SDO, Gharghoda, District Raigarh. He also submitted the caste certificate issued by the High Power Caste Scrutiny Committee dated 29.12.2009. Having been appointed by order dated 22.8.2003 (Annexure P-3) the petitioner gave his joining in the office of Block Medical Officer, Lailunga on 25.8.2003 vide Annexure P-4. According to the petitioner, certain complaints were made in relation to the entire selection process and the matter was enquired into by the Collector who submitted his report on 5.1.2004 (Annexure P-12 filed along with the rejoinder) before the Secretary, Health Services, pointing out certain illegalities in the appointment of few of the candidates and recommending cancellation of their appointment. However, no illegality has been noticed in respect of the petitioner. Vide order dated 31.10.2009 (Annexure P-5) appointment of the petitioner was cancelled on the ground that the caste certificate submitted by him was temporary one; it was not in proper format as required under the law; it was illegal and therefore his appointment was liable to be cancelled.

This order was challenged by the petitioner in WPS No. 7475/2009 and vide order dated 4.5.2010 the petition was allowed and the order dated 31.10.2009 was quashed mainly on the ground that it was issued without affording an opportunity of hearing to the petitioner. Pursuant to the order passed by this Court, on 10.5.2010 the petitioner was reinstated and posted at his previous place of posting. On 11.5.2010 vide Annexure P-8 the petitioner again joined at Lailunga. On 2.8.2010 a show-cause notice was issued to the petitioner asking him to submit his reply as to why his appointment be not cancelled for not furnishing the caste certificate as required under the law. The said notice also mentions that validity of his temporary caste certificate submitted by him had already expired and that it was not in the proper format prescribed by the State Government. On 17.8.2010 vide Annexure P-9 the petitioner gave his reply to the show-cause notice dated 2.8.2010 and informed the authorities that along with the application form he had submitted the caste certificate. Yet another reply was submitted by the petitioner on 16.9.2010 in the form of affidavit mentioning therein the details of caste certificate and informing the authorities that he belongs to the scheduled tribe category. On 26.10.2010 another show-cause notice was issued to the petitioner which was also replied to by him on 15.11.2010 (vide part of Annexure P-10). In this reply also the petitioner gave the details of the caste certificate submitted by him earlier. Further, in the said reply he also gave reference of the earlier writ petition filed by him before this Court. It appears that despite several show-cause notices and the replies submitted by the petitioner, the respondents were not sure as to what was to be done against the petitioner and on 24.1.2011 yet another show-cause notice was issued to him in the same terms as stated in the earlier show-cause notices. This time he also gave his reply on 7.2.2011 (vide part of Annexure P-10) specifically mentioning his defence. On 8.6.2011 the order impugned (Annexure P-1) has been passed by respondent No. 2 cancelling the appointment of the petitioner. In the order impugned it has been mentioned that the caste certificate submitted by the petitioner in the year 2003 was not valid and therefore after following the principles of natural justice his appointment was cancelled. The order impugned also mentions that the petitioner has failed to submit the valid caste certificate showing his caste as in the year 2003 and therefore he is not eligible to continue in the employment and as such his services were put to an end. It is this order which is under challenge in this petition.

Counsel for the petitioner submits that:

"(i) in the advertisement the only requirement was to submit the caste certificate and considering this condition the petitioner had annexed the caste certificate dated 25.7.1996 (Annexure P-11) duly issued by the Naib Tehsildar, Lailunga, Tehsil Gharghoda, District Raigarh;

(ii) in the said caste certificate it has been categorically mentioned that the caste of the petitioner is Gond which comes within the scheduled tribe category.;

(iii) it is nowhere mentioned in the said caste certificate that it was a temporary one or its life was for a limited period and therefore under the bona fide belief the petitioner has submitted the said caste certificate.;

(iv) at the relevant point of time Naib Tehsildar was competent to issue the caste certificate and this fact is evident from the notification dated 20.2.1991 issued by the State Government;

(v) the advertisement also mentioned that the candidate was required to submit the caste certificate and after the respondents raised the dispute regarding the caste of the petitioner, then only the petitioner obtained the caste certificate as per the rules prevailing on 5.11.2009 and submitted the same before the authority concerned;

(vi) in both the certificates dated 25.7.2006 and 5.11.2009 it has been mentioned that the caste of the petitioner is Gond which comes within the scheduled tribe category;

(v) the two caste certificates submitted by the petitioner showing him to be Gond (Tribe) have also been verified by the High Power Caste Scrutiny Committee and the said Committee had also issued a certificate on 29.12.2009 mentioning therein that the petitioner is Gond (Tribe) by caste;

(vi) once in all the certificates caste of the petitioner has been shown as Gond (Tribe), cancellation of his appointment on some technical ground does not seem to be fair;

(vii) had it been the case of the petitioner that he submitted a false certificate or misled the respondents, the things would have been different but here is a case where from the beginning the petitioner has been saying that he belongs to caste Gond (Tribe) and his stand has been duly accepted by all the competent authorities;

(viii) at the relevant time when the caste certificate (Annexure P-11) was issued by the Naib Tehsildar, there was no specific format prescribed under the Rules and the certificate was issued by the Naib Tehsildar in accordance with the prevailing rules;

(ix) the advertisement was for filling up the backlog vacancies of scheduled tribe category under the special recruitment drive and the object of issuing the said advertisement was to give benefit to the genuine meritorious candidates belonging to the scheduled tribe category and therefore after serving for a long period, the appointment of the petitioner cannot be cancelled on the whims of the respondents because if such a practice is allowed to exist, very purpose of launching special recruitment drive would be frustrated, especially when the petitioner has not played any forgery or fraud;

(x) in the impugned order it has been mentioned that the petitioner has failed to produce the legal caste certificate whereas the same was a legal one having been issued by the competent authority and its authenticity cannot be doubted by the respondents;

(xi) in respect of document of Annexure R-7 filed by the State i.e. the order passed by this Court in WPS No. 6810/2009 it has been submitted by the counsel for the petitioner, that in the case of Ku. Panchkumari Painkra, life of the caste certificate is mentioned as six months whereas in the case of the petitioner the caste certificate does not mention anything like this. Placing reliance on the decision of the Apex Court in the matter of Union of India (UOI) and Another Vs. Ranchi Municipal Corporation, Ranchi and Others, it has been argued that the order dated 20.11.2009 in WPS No. 6810/2009 was passed on the first day of hearing itself at the motion stage without issuing any notice to the respondents and no ratio has been laid down in the said order which was passed in the given facts of the said case and therefore the same does not operate as a res judicata."

Replying to the arguments of the counsel for the petitioner, it has been submitted by the counsel for the respondents/State as under:

(i) that the Naib Tehsildar was not authorized to issue permanent caste certificate and the caste certificate (Annexure -P11) issued on 25.7.1996 was not valid in the year 2003;

(ii) that despite giving several opportunities to the petitioner he has failed to file permanent caste certificate;

(iii) that in view of the order dated 20.11.2009 passed in WPS No. 6810/2009 (Ku. Panchkumari Painkra v. State of Chhattisgarh and others) the petition is liable to be dismissed."

Heard counsel for the parties and perused the documents on record.

In the advertisement (Annexure P-2) it was nowhere mentioned that the candidate was required to submit permanent caste certificate rather the only requirement was that the candidate was supposed to submit only me caste certificate. If the caste certificate submitted by the petitioner (Annexure P-11) is seen, it nowhere says that the same is temporary one. Language of the caste certificate submitted by the petitioner goes to show that by caste he is Gond which comes within the category of scheduled tribe. The said certificate does not even say that it is a temporary one or its life was for a limited period. In the notification dated 20.2.1991 issued by the erstwhile State of Madhya Pradesh, Naib Tehsildar is competent to issue caste certificate and thus it cannot be said that the caste certificate (Annexure P-11) issued by the Naib Tehsildar is invalid. Furthermore, after the dispute was raised by the respondents, another caste certificate was issued in favour of the petitioner as per the then prevailing rules and in the said certificate also caste of the petitioner has been shown as Gond which comes within the category of scheduled tribe. On verification of the caste certificate by the Caste Scrutiny Committee, it was held by the said Committee that the petitioner is Gond by caste and a certificate to this effect dated 29.12.2009 (part of Annexure P-11) was also issued by the said Committee. It is not the case of the respondents that the petitioner has submitted any forged caste certificate. Even the respondents do not dispute that caste of the petitioner is Gond (Tribe) but only a technical dispute has been raised that the petitioner has failed to submit the valid caste certificate in the year 2003 showing him to be Gond (Tribe). Once the certificate (Annexure P-11) was issued by the competent authority showing him to be Gond (Tribe), the same cannot be doubted unless it is proved to be a forged one. If the caste certificate (Annexure P-11) is discredited by raising a doubt, it would be too harsh for the petitioner making him lose his employment itself which as informed, is the only source of his livelihood. Main object of the advertisement was to fill up the backlog vacancies from amongst the scheduled tribe candidates under the special recruitment drive and after a candidate is appointed on the post after completing all the formalities and continues for a long period on the post, he cannot be abruptly deprived of employment all of a sudden that too raising a purely technical dispute as to the nature of caste certificate. So far as the order of this Court dated 20.11.2009 passed in the matter of Ku. Panchkumari Painkra (WPS No. 6810/2009) relied upon by the State is concerned, the life of the caste certificate of the said case was mentioned to be six months whereas in the case in hand no such period has been mentioned. Furthermore, the said petition was disposed of at the motion stage itself that too in the first hearing without issuing any notice to the respondents and that the facts of me said case and the present one being altogether different are quite distinguishable.

Thus in view of the aforesaid factual analysis, this Court is of the considered opinion that me employment secured by the petitioner on the basis of caste certificate dated 25.7.1996 (Annexure P-l 1) issued by the Naib Tehsildar, Lailunga, Tehsil Gharghoda, District Raigarh, who at the relevant time was duly competent to issue the same, cannot be cancelled merely on some technical grounds particularly when the petitioner has put in about 8 long years of service in pursuance thereof. Being so, the impugned order dated 8.6.2011 cancelling me appointment of the petitioner being bad in me eyes of law is liable to be set aside and it is done accordingly. Petition thus succeeds. All consequential benefits including seniority but excluding the back wages would be within the entitlement of the petitioner.