Calcutta High Court (Appellete Side)
Shefali Sarkar (Biswas) vs State Of West Bengal & Ors on 1 August, 2023
67
01.08.2023
Ct. No. 15
adeb
W.P.A. 976 of 2018
Shefali Sarkar (Biswas)
Vs.
State of West Bengal & Ors.
Mr. Arup Kundu
...for the petitioner
Mr. Gaurab Kr. Basu
Mr. Ashis kr. Dutta
...for the respondent no. 6
Mr. Rudranil De
...for the State
Petitioner questions candidature of respondent no.
6 for being engaged as Accredited Social Health Activist
(for short 'ASHA') in Baraibari Sub-Centre under
Mathabhanga-II Block, District-Coochbehar on the score
that the respondent no. 6 submitted caste certificate in
support of her caste status as Scheduled Caste after the
last date fixed by the concerned authority on 18th
December, 2013; therefore according to the petitioner
while appraising the candidatures of the petitioner
along with other candidates including the respondent no.
6, the respondent no. 6 ought not to be treated as
reserved category candidate (Scheduled Caste).
An advertisement was published by the concerned
respondent authorities seeking application from desirous
candidates to be engaged as ASHA in Mathabhanga-II
Block, District-Coochbehar on 3rd December, 2013. In
the said advertisement requisite educational qualification
was stipulated and it was also indicated therein that
testimonials including caste certificate need to be
submitted on or before 18th December, 2013. According
to the petitioner caste certificate was issued by the
authority in favour of respondent no. 6 on 30th July,
2014 therefore the respondent no. 6 by no stretch of
imagination was able to submit such caste certificate
within the aforementioned last date as stipulated in
advertisement. Interview was conducted on 9th
December, 2014 when petitioner participated in the said
interview and panel was prepared on 13th November,
2017. In the panel as it has been admitted by the State-
respondents in the affidavit affirmed on 19th April, 2023
that respondent no. 6 stood first and the petitioner stood
second and has been described as waitlisted candidate.
Therefore, it has been contended that if candidature of
the respondent no. 6 stands cancelled petitioner being
the second empanelled candidate would come within the
zone of consideration for being engaged as ASHA in
Baraibari Sub-Centre under Mathabhanga-II Block.
In support of contention of the petitioner reliance
has been placed on the judgment reported in (1997) 4
SCC 18 (Ashok Kumar Sharma and Others Vs.
Chander Shekhar and Another) in order to justify the
case presented on behalf of the petitioner that
testimonials submitted in support of qualification of the
candidate after the cut off date should not be given
credence.
The state-respondents and respondent no. 6 being
the selected candidate are represented by learned
advocates who have jointly opposed the prayer made in
the writ petition.
It has been submitted on behalf of the respondents
that as per advertisement dated 3rd December, 2013 last
date of submission of testimonials was 18th December,
2013 which needs to be considered as requirement so far
educational qualification of the candidate is concerned. It
has also been submitted that in spite of stipulation in the
advertisement dated 3rd December, 2013 that all
testimonials in connection with education qualification
as well as caste status are required to be submitted on or
before 18th December, 2013 but the last date fixed for
submission of caste certificate needs to be relaxed in
view of the judgment delivered by the Apex Court
reported in (2016) 4 SCC 754 (Ram Kumar Gijroya Vs.
Delhi Subordinate Services Selection Board and
Another).
Learned advocate representing the respondent no.
6 has also drawn attention of this Court to page 10 of the
affidavit-in-opposition used on behalf of said respondent
no. 6 wherefrom it appears that the letter dated 4th
December, 2017 was issued by the Secretary, Block
Health and Family Welfare Samity, Mathabhanga Block-
II, District-Coochbehar whereby respondent no. 6 was
permitted to join as ASHA in between 5th December,
2017 and 12th December, 2017. It has been submitted
that pursuant to this letter dated 4th December, 2017 the
respondent no. 6 joined as ASHA in Baraibari Sub Centre
on 5th December, 2017. According to the respondent no.
6 in view of discharging duty as ASHA on and from 5th
December, 2017 at this stage she should not be
dislodged on the ground that she could not submit caste
certificate on or before last date fixed by the authority as
indicated in the advertisement.
Having heard the learned advocates representing
the parties and on perusal of the relevant documents
available on record it appears that selection process was
initiated for engagement of ASHA pursuant an
advertisement dated 3rd December, 2013 under
Mathabhanga Block-II, District-Coochbehar where
petitioner as well as respondent no. 6 offered their
candidature and both were considered by the selection
authority by holding an interview on 9th December, 2014.
Panel was prepared for engagement of ASHA as it has
been disclosed in pargraph 4 (h) of the affidavit-in-
opposition used on behalf of the State-respondents. From
the said panel as incorporated in the affidavit-in-
opposition it appears that respondent no. 6 stood first
whereas the petitioner was placed at the second position
being waitlisted candidate.
This Court is tasked to examine whether non
submission of caste certificate by the respondent no. 6
on or before the last date i.e. 18th December, 2013 is so
fatal which would dislodge the respondent no. 6 after
rendering service from 5th December, 2017; by this time
respondent no. 6 has rendered nearly 6 years of service
as ASHA. In order to find answer this Court has
considered the judgments relied upon by the petitioner
as well as respondents. In Ashok Kumar Sharma (supra)
it has been held by the Apex Court that the candidate
needs to be considered for being selected in consideration
of the eligibility of the candidate which was existing on
the last date of submission of application if the same is
fixed by the authority. While going through the decision
of Ashok Kumar Sharma (supra) it appears that the
Apex Court held that eligibility needs to be considered
based on last date if fixed by the authority in the context
of educational qualification of the candidates.
In the present case at my hand it is not an issue of
consideration of eligibility in the context of acquisition of
educational qualification by the candidate on or before
last date fixed by the authority rather it is a case where
petitioner was unable to submit caste certificate on or
before the last date fixed by the authority. Therefore, it
appears that the situation so far the present case is
concerned is different from the facts of the case as it was
considered by the Apex Court in Ashok Kumar Sharma
(supra).
In Ram Kumar Gijroya (supra) the Apex Court
was considering eligibility of OBC candidates who
submitted caste certificate after the last date mentioned
in the advertisement and took note of the judgment
delivered by a learned Single Judge of Delhi High Court
in Pushpa Vs. Govt. (NCT of Delhi) reported in 2009
SCC OnLine Del 281 and held that candidates were
entitled to submit OBC certificate before the provisional
selection list was published to claim the benefit of
reservation of OBC category.
In the present case petitioner has not questioned
the genuineness of the caste certificate submitted by the
respondent no. 6 but the candidature of the respondent
no. 6 was questioned since respondent no. 6 was not
able to submit caste certificate on or before last date.
Caste certificate of the respondent no. 6 was issued on
30th July, 2014 thereby declaring the petitioner as a
candidate who belongs to Scheduled Caste community
which has been annexed to the affidavit in opposition
affirmed by the respondent no. 6.
Upon placing reliance on Ram Kumar Gijroya
(supra) it can safely be concluded that a certificate issued
by a competent authority declaring a candidate being a
member of a particular community is only an affirmation
of the fact which is already in existence. The purpose of
such certificate is to enable the authority to believe in the
assertion of the candidate that the candidate belongs to a
particular caste.
In above conspectus of facts upon applying the
ratio of Ram Kumar Gijroya (supra) this Court
concludes that the respondent no. 6 ought not to be
dislodged from her engagement as ASHA since she could
not submit caste certificate on or before last date as
stipulated in the advertisement. Furthermore, it will be
inequitable in consideration of the facts involved in the
present case to direct the respondent authority to cancel
the engagement of the respondent no. 6 after rendering
service nearly for a period of six years.
Accordingly, the writ petition stands dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of the order, if
applied for, be given to the parties, upon usual
undertakings.
(Saugata Bhattacharyya, J.)
