Sanjib Chaudhury vs State Of Tripura And Ors

[1] Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

[2] By means of this writ petition, the petitioner has challenged the Order No.F.1(PF)-19-AC/PEU/DP/2012/741 dated 26.06.2012 issued by the Secretary & Director, School Education, Government of Tripura (Annexure-P/9 to the writ petition).

[3] It has been further urged by the petitioner that, he shall be reinstated in service by setting aside the said order dated 26.06.2012 and be paid the full pay and allowances for the period, when he was out of service for operation of the said order dated 26.06.2012.

[4] There is no dispute that the petitioner was appointed as the teacher under the Education Department by the memorandum under No.F.1(1-10)/DSE/90(Vol-I) dated 20.11.1990, (Annexure-P/2 to the writ petition).

[5] There is also no dispute that in the said Memorandum dated 20.11.1990 the petitioner has been shown as Schedule Caste(SC) candidate. There is no dispute that prior to issuance of the said letter of appointment dated 20.11.1990 (Annexure-P/2 to the writ petition), by the memorandum of the even number dated 28.04.1990 (Annexure-P/1 to the writ petition) the petitioner was offered the appointment in the post of teacher in the consolidated fixed pay of Rs.600/-. In the offer of appointment, the petitioner was not shown as the candidate from SC community.

[6] After about two decades when the petitioner was brought in the regular establishment, a verification proceeding was initiated against the petitioner. The said proceeding had culminated into the final order dated 04.05.2010 as passed by the State Level Scrutiny Committee, constituted under Rule 7A of the Tripura Schedule Castes and Schedule Tribes Reservation Rules, 1992 as amended. In the said order dated 04.05.2010, it has been observed by the State Level Scrutiny Committee as follows:

"4. After careful examination of the complaint and vigilance report the State Level Scrutiny Committee has come to the conclusion that Sri Sanjib Choudhury, had obtained SC certificate by misrepresentating of facts though he does not belong to SC rather he belongs to Kapali Community which is not recognized as SC in Tripura." [Emphasis added]

[7] Thus, the petitioner's SC certificate under No.101/F.V.17(2)/SDO/DMN/GL/84 dated 30.03.1985 stood cancelled. The petitioner did not challenge that final order dated 04.05.2010 and as consequence thereof, the respondents particularly the Director of School Education issued a show cause notice under Memorandum dated 22.02.2012 (Annexure-P/6 to the writ petition) asking the petitioner to explain as to why he will not be terminated from the service as per rules inasmuch as his SC certificate stands cancelled and there is no challenge against such cancellation.

[8] In the said memorandum of offer, there is no reference that the petitioner was appointed as the SC candidate. The petitioner in response to the said show cause notice, has asserted that he was not appointed as the SC candidate. When he came to learn that he did not belong to the SC Community and the community, the Kapali Community which belongs to, is not recognized as the SC Community, he had surrendered his SC certificate. Thereafter, a formal inquiry was taken up and the said order was passed by the State Level Scrutiny Committee. It is therefore undisputed that the petitioner did not challenge the finding that the petitioner does not belong to the SC Community. However, the petitioner has stiffly resisted the inference that the petitioner had secured the appointment as teacher on the basis of that SC certificate. According to the petitioner, when he got the appointment as teacher, he did submit that certificate to the competent authority for bringing the same on record. In the reply dated 16.03.2012, it has been quite assertively prayed that the said order of termination be recalled and the petitioner be reinstated forthwith.

[9] The respondents by filing the reply have stated, inter alia, that the petitioner has managed to secure the government job, from which he been terminated, for getting such job by means of a false SC certificate. The petitioner never belonged to SC community. Suppressing his real caste status, the petitioner obtained the said caste certificate by misrepresentation and hence, the benefit taken out of the said certificate was supposed to be withdrawn with immediate effect and that has been done by the respondents in accordance with the relevant rule.

[10] After the vigilance inquiry, the matter was referred to the State Level Scrutiny Committee. The Scrutiny Committee has inquired all relevant aspects and came to the finding as reflected in the order dated 04.05.2010. As such, the said process cannot be questioned. In Para-4 of the reply, filed by the respondents No.1 and 2, it has been also observed and stated that during acceptance of the offer of service, the petitioner had submitted his status certificate to claim to belong to SC community. His caste certificate which the petitioner obtained by false demonstration has been cancelled. The petitioner's appointment and posting was given as a SC candidate.

[11] It has been further asserted in the reply by the respondents No.1 and 2 that the petitioner knowing fully well that he did not belong to the SC Community, he utilized the said certificate to garner the benefit out of it and as such the petitioner cannot get any relief as sought in the writ petition.

[12] Mr. Samarjit Bhattacharjee, learned counsel has reiterated that there is no proof that the petitioner did submit the status certificate before the appointing authority for securing the selection. However, this contention has been stiffly resisted by Mr. M. Debbarma, learned Addl. G.A. The solitary question that falls for consideration before this court is that whether the petitioner had secured the appointment by dint of the SC certificate which has been cancelled by the State Level Scrutiny Committee vide their order dated 04.05.2010. To make the question, the question be further re-phrased. Whether the petitioner has been selected as the SC candidate?

[13] For this purpose, Mr. M. Debbarma, learned Addl. G.A. had on the previous occasion produced the service book of the petitioner. In the service book also the petitioner's status has been written as SC. No other record has been produced to verify the claim of the petitioner that at the time of selection the petitioner never asserted his caste status. The petitioner has claimed that since he did not submit his SC certificate at the time of selection, in the offer of appointment his name was not shown as SC candidate. Such plea has unleashed a new area of inquiry.

[14] This court had taken pain to call for all the relevant records to find out whether there is an entry anywhere to show that the petitioner had submitted his status certificate for securing the selection in the said post. In other words, whether there is any record to show that he was entertained against a vacancy reserved for SC candidate. On 26.09.2019 this court had occasion to pass the following order:

"Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner substantively. In the course of his submission and on scrutiny of the records, the following averments of the reply filed by the respondents have come to the notice of this court:

"I most respectfully submit that the petitioner have managed to get the Government job on the strength of the Scheduled Caste [SC] certificate, which obtained by him misrepresentation of the fact regarding his original caste status. During acceptance of the offer of service he categorically submitted this caste status as Schedule Caste [SC], and also annexed his caste certificate, which he obtained by false demonstration."

After reading of these averments made by the respondents, this court is in quandary whether after selection in the post of Under Graduate Teacher [UGT] the petitioner has annexed the status certificate or not. If the petitioner has not been selected against SC reserved post, in all probability, his appointment cannot be cancelled.

Mr. D. Bhattacharjee, learned G.A. who is available in the court to represent the State has assured this court that on 01.10.2019 he will produce the records of selection to enable this court ascertain whether the selection was made against the SC reserved post or not."

The assurance as reflected in the order dated 26.09.2019 have never come true as no record relating to the selection could be produced before this court.

[15] Hence, this court after scrutiny of all the records is of the view that no status certificate was submitted by the petitioner in the selection process and that is the reason when on the basis of the selection the offer of appointment was issued against the name of the petitioner, no status has been mentioned. The petitioner has from the very beginning and consistently contended that he did not deposit the status certificate at the time of selection. Thus, his selection cannot be affected for cancellation of the status certificate. For purpose of selection, as it appears, the petitioner did not submit the caste status certificate. Hence, the Selection Committee did not have any occasion to consider the petitioner as SC candidate. However, as stated by the petitioner, when he received the offer of appointment, he had along with the other testimonial/document submitted a copy of the SC certificate as referred above and accordingly, in the letter of appointment his status as a member of SC category has been shown. Thus, when the SC certificate has been cancelled by the State Level Scrutiny Committee (SLSC), as consequence, the initial appointment of the petitioner as teacher cannot be terminated inasmuch as he was not selected as SC candidate. This court has endeavored and laboured enough to get the records of the selection. But those records were made available to obviate the plea raised by the petitioner.

[16] Mr. M. Debbarma, learned Addl. G.A. has in his fairness submitted that despite the search made in the record rooms of the Education Department, no records relating to the selection of the petitioner could be found out. But the search is still going on. There cannot be any amount of doubt that even if in future if it is found that the petitioner's selection was based on the status certificate which has been cancelled, the respondents may very well take the appropriate action for termination of the petitioner. In that event, this order shall not impede their action. But as of now there is no material in the hand of the respondents, nor such material has been produced before the court to come to a definite conclusion that the petitioner had been selected on the basis of his status certificate which has been cancelled. As such, when his status certificate is cancelled, as consequence of such cancellation, his selection and appointment as the teacher cannot be interfered with or cancelled inasmuch as this court is of the view that the petitioner's selection was made without considering his status, subject to the rider as stated above.

[17] The petitioner has been terminated w.e.f. 26.06.2012 and since thereon he is not getting his pay and allowances. The petitioner shall be paid the back wage @50% within 06 (six) months from the date when the copy of this order shall be placed before the competent authority i.e. the respondent No.2. The petitioner shall also be reinstated within that period.

[18] It is reiterated that if the respondents can get records to show that the petitioner's selection was made on the basis of his status certificate then the respondents shall only after taking the leave of this court might take the appropriate action on the basis of the finding as returned by the State Level Scrutiny Committee (SLSC) or on the basis of cancellation of the status certificate as such order of cancellation has not been challenged by the petitioner.

[19] In terms of the above, this writ petition stands allowed.

There shall be no order as to costs.