Dr. Rasheswar Chandra Paul vs State of Assam and Others

Both the writ applications have been filed by same person, but the cause of action is different. As they raise common question of law and facts, as such, they are taken up for hearing together.

I have heard Mr. A.K. Bhatacharyya, learned Senior Advocate for the petitioner in both the Civil Rules and Mr. H.N. Sarma, learned Addl. Sr. Govt. Advocate, Assam for the respondents in both the Civil Rules. Mr. Sarma has also produced before me some records.

Let us first take up Civil Rule No.357 of 1998. ''This Civil Rule has been filed challenging the legality and validity of the Order dated 24.10.1997 passed by the Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, declaring the selection and admission of the petitioner to Master of Surgery (General Surgery Course) against teacher quota during the session 1992-93 since his appointment as Registrar of General Surgery was cancelled by the Government vide order dated 29.9.1997 (which is subject matter of other Civil Rule).

The brief facts are as follows:

The petitioner is a Doctor and he has MBBS degree. The petitioner claims that he belongs to other backward class community of the sub-caste "Rudra Paul" in the District of Cachar. The petitioner was initially appointed as Demonstrator of Pharmacology in Silchar Medical College, Silchar in the year 1982 vide Govt. order dated 15.5.1982 under Regulation 3(f) of Assam Public Service Commission (Limitation & Function) and regularised by the APSC in the said post vide order dated 19.11.1993. Thereafter the petitioner was attached to the Surgery Department to work as Registrar of surgery subsequently vide Govt. order. The petitioner along with others applied to the APSC for the post of Registrar of Surgery, ''Silchar Medical College and Hospital and the APSC held the selection on 23.3.1993 and his position in the Select list according to merit was at No. 8 and he was shown as the OBC candidate and there was a direction to the Commissioner & Secretary to the Govt. of Assam, Health & Family Welfare Deptt. that the Caste certificate of the reserved category candidates should be further verified. Thereafter the petitioner on the basis of the caste certificate got the appointment as the Registrar of Surgery and against the teachers quota he got admission into the Post Graduate Classes i.e. M.S. in General Surgery in Silchar Medical College for the sessions 1992-95 (three years course). It is the admission of the petitioner in paragraph 6 of the writ petition that when he applied to the APSC for being appointed he submitted a caste certificate and he claimed that he belongs to Rudra Paul sub caste of Cachar Dist. Be that as it may, later on the authority found that the Caste certificate which was submitted by him to APSC was not a valid caste certificate and he actually did not belong to OBC (details of which will be given in the other Civil Rule) and his admission in the M.S. Course was cancelled vide Annexure-19 which is quoted, below:

"GOVERNMENT OF ASSAM

HEALTHS FAMILY WELFARE (B) DEPARTMENT.

NO.HLB 128/90/139 Dated Dispur, the 24th Oct''/97

ORDER

Whereas Dr. Rasheswar Chandra Paul, Registrar of General Surgery, Silchar Medical College. Silchar was admitted into the P.G. Course in M.S. General Surgery at Silchar Medical College, Silchar for the session 1992-93 under teachers'' quota by the Principal, Silchar Medical College vide his Memo.No.SMC/21/ 93/2391-2405 dated 24.2.1994 on the basis of his selection by the Director of Medical Education, Assam vide his order No.DME/ 9/92/Pt/10, 299-301 dated 8,11.1993.

And whereas the order of the appointment of Dr. R.C. Paul as Registrar of General Surgery was cancelled by the Govt. vide order No.HLB 158/93/144 dated 29.9.1997 on the ground of submission of false caste certificate, as such, Dr. Paul''s selection and admission in the M.S. General Surgery course against teachers'' quota during the session 1992-93 becomes automatically void.

Therefore, the Governor of Assam is pleased to order that Principal of Silchar Medical College, Silchar shall take necessary follow up action in respect of the admission of Dr. R.C. Paul in M.S. General Surgery for the session 1992-93."

Thereafter this Civil Rule was filed and a stay order was obtained and on the strength of the stay order, the petitioner has completed the course. Ultimately as against the order of stay there was a Writ appeal before the Division Bench and the Division Bench in Writ Appeal No. 7 of 1999 by order dated 9.2.1999 passed inter alia the following order:

"After hearing the counsel for the party as we are of the view that there is nothing wrong with the-view taken by the learned Single Judge in so far as appearance of the Writ petitioner in-final examination of M.S. is ''concerned. However, the result of the examination should not be declared during the pendency of the writ petition before the learned Single Judge, in view of the peculiar facts and circumstances of the case we are further of the view that the writ petition should be decided at the earliest. We have been told that affidavit-in-opposition has already been filed. If the writ petitioner is interested in filing any reply to the affidavit-in-opposition, he may do so within one week.

We have refrained ourselves from making any observation on the merit of the case as the same may prejudice the case on merits.

The Registry is directed to list the writ petition before the learned Single Bench on 23rd February, 1999.

This disposes of this writ appeal."

It is submitted that Mr. Bhattracharyya that as on today the petitioner has completed the course. It is further seen from Annexure-18 that the petitioner has already completed the course and submitted the thesis. That certificate further shows that the petitioner has fulfilled the registration and other requirements by the Assam University, Silchar for preparation and submission of the P.G. degree thesis and that finds place at page 46. Thereafter the petitioner has completed the course, but examination has not held as yet.

For the ends of justice and not to cause any injury and prejudice to the petitioner, I hereby allow this writ application and direct the Assam University to hold examination of M.S. for the petitioner and also to do the needful to declare his result. If the authority finds that a special examination can be held for the petitioner, it shall be done and if the authority finds that he may be allowed to appear with other regular students, that may be done. It is needless to say that the petitioner may be allowed to appear in the immediate examination to be held for the M.S. Surgery and also declare his result.

This disposes of the writ petition No. 357/98.

Next let us take up the Civil Rule No. 4990/97. The order impugned in this writ petition is at Annexure-10 to this writ petition which is quoted below:

"GOVERNMENT OF ASSAM

HEALTH & FAMILY WELFARE (B) DEPARTMENT.

NO.HLB.15/93/144 Dated Dispur, the 29th Sept.97.

ORDER

Whereas Dr. Rasheswar Ch. Paul was appointed as Registrar of Surgery in Silchar Medical College. Silchar against teachers quota as per recommendation of Assam Public Service Commission vide Govt. notification No. HLB. 158/93/27, dated 15.5.1993.

And whereas it was mentioned in the Assam Public Service Commission''s recommendation letter No.44 PSC/DR-3/11/92-93 dtd. 23.3.1993 that the caste certificate of the reserved category candidate should be further verified and accordingly Deputy Commissioner Cachar, Silchar was requested to verify the original caste certificate used by Dr. R.C. Paul to secure the appointment on reserved vacancy.

And whereas the matter regarding caste of Dr. R.C. Paul was duly enquired by the D.C. Cachar, Silchar and it was reported that Dr. Paul does not belong to the other backward classes.

And whereas Dr. R.C. Paul was selected and appointed as OBC candidate and whereas on verification it is found that Dr. Paul does not belong to OBC category and as such it is proved that Dr. R.C. Paul has submitted false caste certificate for getting the benefit of OBC category to which he does not belong and his appointment is ab-initio void.

Therefore, the Governor of Assam is pleaded to cancel the order of appointment of Dr. Rasheswar Ch. Paul, Registrar of Surgery, Silchar Medical College, Silchar with immediate effect.

Sd/- P.P. Verma, Commissioner & Secretary to the Govt. of Assam, Health & Family Welfare Deptt."

As I have indicated above in the earlier Civil Rule itself that the position of the petitioner in the select list was at Sl.No.8 and if he would not have been considered as a candidate for OBC he would not have been appointed as the number of posts which were available was not sufficient to consider the case of a person at Sl.No.8 and that also is the admission of the petitioner and that also is reflected by record. But he got the benefit of reservation. Now the question is that whether the petitioner is entitled to the benefit of the reservation in the facts and circumstances of the case. When a complaint was lodged regarding his claim for reservation the authority issued notice. That notice is available at Annexure-10 to Civil Rule No. 357/98. That notice reads as follows:

"To

Shri RC Paul Registrar of Surgery, Silchar Medical College & Hospital, Ghungoor, Silchar-788014.

Sub : Appearance before the Court. Sir.

You are hereby directed to appear before the Court of the undersigned on 29-05-3997 at 11 A.M. in connection with the enquity in respect of an OBC certificate issued in your favour by the OBC Board, Silchar. You are also directed to produce relevant documents etc. if there be any in support of your certificate.

Yours faithfully, Sd/- Dewan Alimiah, Sub Divisional Magistrate, Sadar, Silchar. "

Thereafter the petitioner appeared before the authority and he gave the statement before the enquiry authority and that was recorded. In addition to it, the following witnesses were examined. Sri Madhab Ch, Paul, Sri Bikramjit Paul. Sri Rabidnra Ch. Paul and Sri Haridhan Paul. After examination of these persons the enquiry authority submitted the-following report. The report is at Annexure-II to the affidavit-in-opposition field in Civil Rule No. 357/98 and that report is quoted below in its entirety.

"GOVT. OF ASSAM

OFFICE OF THE DEPUTY COMMISSIONER: CACHAR: SILCHAR

NO.PER/ADMN/1/96/116 Dtd. Silchar, the 9th June, 1999

To,

The deputy Commissioner, Cachar, Silchar.

Sub : Submission of enquiry report in respect of OBC certificate issued to Dr. R.C. Paul, Registrar of Surgery, Silchar Medical College, Silchar.

Sir,

With reference to the subject indicated above, I have the honour to state that self in pursuance of the directives issued vide your endorsement dtd.12.5.1997 on the body of the letter No, HLB 158/93/121 dtd. 7.5.1997 received from the Addl. Secretary to the Govt, of Assam. Health & Family Welfare (B) Deptt. Dispur, conducted a detailed enquiry in order to ascertain the validity of the OBC Certificate No. 3429 dtd. 28.12.1984 issued to Dr. R.C. Paul by the Chairman Sub-Division OBC Development Board, Silchar and my findings are enumerated as under for favour of your perusal.

During my enquiry statements of the family members of Dr. R.C. Paul namely (1) Sri Madhab Ch. Paul (2) Sri Bikramjit Paul & (3) Sri Rabindra Ch. Paul were recorded by me. All the family members in their deposition stated that they are businessmen by profession and belong to Kayastha Caste of Paul community. They claimed that they are the descendents of late Rahendra Paul, renowned businessman of Silchar Town and carrying out business since 100 years back. They further stated that they are neither Ex-Tea Garden Labourers nor they belongs to O.B.C. community.

The statements of Sri Harindhan Paul of Silchar Town and a neighbourer of Dr. R.C. Paul was also recorded during the enquiry. Sri Haridhan Paul, in his deposition stated that Dr. RC Paul is a member of the Kayastha Paul Community which is not O.B.C. Kayastha Paul belongs to General Caste. He also said that Late Jatindra Ch. Paul, the farther of Dr. R.C. Paul was a member of a famous business-community and not an Ex-Tea Garden Labourer.

The statement of Dr. Rasheswar Ch. Paul (Dr. R.C. Paul) was also recorded. In his deposition Dr. Paul admitted that he does not belong to Ex-Tea Garden Labour community. He also admitted that his father late Jatindra Ch. Paul was a businessman by profession and never worked in any Tea Garden either in the District of Cachar or elsewhere. Dr. Paul also admitted that he obtained MBBS Degree from the Silchar Medical College in the year 1979, but he did not produce any OBC certificate during his admission in the Silchar Medical College.

Dr. Paul in his deposition stated that in the year 1984, he applied for an OBC Certificate as Rudra Paul for submission of the same before the APSC for service selection, but due to official mistake the OBC Certificate was issued to him as Ex-Tea Garden Labourer. He further pointed out that his address was also wrongly written in Ambika Patty instead of Aryya Patty. Dr. R.C. Paul claimed himself as a member of Rudrapaul community by producing a photo copy of a certificate dated 10.5.1989 issued in favour by the President, Cachar Zila Rudra Paul Samity Silchar-5 (attached herewith).

Self also visited the Sub-Divisional OBC Development Board, Silchar to verify the relevant papers /records etc. in connection with the issue of the OBC Certificate to Dr. R.C. Paul but on search no records/papers were found available in the office. The OBC Certificate as Ex-Tea Garden Labourer was issued under the hand & seal of the then Chairman, Shri Dinesh Prasad Goala, Sub-Divisional OBC Dev. Board, Silchar and was countersigned by some officer of the office of the Deputy Commissioner, Cachar on behalf of the Deputy Commissioner, Cachar on 28.12.1984.

In view of what have been stated above, the OBC certificate No.3429 dtd. 28.12.1984 issued to Dr. R.C. Paul by the Chairman of the Sub-Divisional OBC Development Board, Silchar may be declared as invalid.

Submitted for favour of your information and necessary action.

Yours faithfully, Sd/- Illegible, (Dewan Alimiah) Sub-Divisional Officer, Sadar Silchar."

A bare perusal of this report as well as from the statement of the petitioner made available to the court will show that the petitioner is a member of the Kayastha Paul community and the Kasytha Paul community is not OBC. Kayastha Paul Community belongs to general caste. That being the position, there is no iota of doubt that the petitioner wanted to make a wrongful gain by submitting a false caste certificate. That being the position the authority acted absolutely within its jurisdiction to cancel the appointment of the petitioner as he got it by depriving the other better candidates who were above him in the merit list. A fraudulent appointment can always be cancelled on fraud being brought home. There is no question of violation of principle of natural justice, violation of Rule 9 of Discipline and Service Appeal Rules, 1964 or Article 311 of the Constitution.

Mr. Bhattacharyya, learned Sr. Advocate for the petitioner submits that the impugned order suffers from violation of principle of natural justice as well as it is violative of Rules 5 and 9 of the Assam Services (Discipline and Appeal) Rules, 1964. An enquiry is to be held to find out the truth or establish the truth. In this case, the question of violation of principle of natural justice does not arise as the petitioner was associated with the enquiry. He was given due notice and he was heard and as such, non-compliance of Rule 9 also does not arise inasmuch as the authority conducted in enquiry and in that enquiry the authority found out the truth and passed the appropriate order.

Accordingly, this writ application shall stand dismissed. Stay order if any, passed earlier shall stand vacated. However, I make it clear that the petitioner shall be entitled to all the benefits on the strength of his qualification as a candidate to general caste and I hope and trust that the authority shall not adopt a vindictive attitude and adopt a magnamious attitude in the matter. It is needless to say that cancellation of this particular appointment shall not be a bar for the petitioner to get an appointment in the Govt. Department in future as a general candidate. But his present appointment shall stand cancelled.

Both the Civil Rules stand disposed of accordingly. I make no order as to costs.