SM. KAJARI SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this application for appropriate Writs under Article 226 of the Constitution of India, the petitioner is challenging an order contained in letter No, CSB/1I6 dated 14th February, 1975, being Annexure -C to the petition. By the said order the admission of the petitioner to the Pre -Medical Course leading to the M. B. B. S Course was treated as cancelled and steps were taken to strike out the name of the petitioner from the list of students of the Calcutta National Medical College, Calcutta with effect from the date of issue of the said letter.

(2.) THE petitioner's case, as made out in the petition, is as follows: The petitioner alleges that she is a member of the family of "Sunns" whose surname is Saha and who originally resided in Bogra, now in Bangladesh. Her fore -fathers were all sellers of wine and belonged to the caste known as "Sunris" and not to the caste known as "Sahas" who carried on large scale business in groceries and who did not belong to the Scheduled Caste but to the Community known as Vaishyas. After partition the petitioner's family migrated to the West Dinajpur District in West Bengal. The petitioner's family used Saha only as surname and never belonged to the Saha caste. The father of the petitioner, Arun Kumar Saha, was appointed in the year 1953 in the post of Mechanic in the Overseas Communications Service, Government of India, as a member of the Scheduled Caste. It is alleged that at the time of his appointment, the father of the petitioner submitted to the Government of India a certificate dated 11th November, 1953, issued by the Commercial Tax Officer, Central Section, West Bengal, countersigned by the District Magistrate, West Dinajpur on 30th November, 1953, after proper enquiry. It was stated therein that the petitioner's father belonged to Sunri caste. On the basis of such certificate the petitioner's father was appointed in the Overseas Communications Service and the service book of the petitioner's father recorded that he belonged to Sunri caste. A copy of the relevant entry from the service book was also produced before this Court. The petitioner is also relying on several other documents and papers in support of her contention that she belongs to Sunri caste. The admitted position is that if she belongs to Sunri caste then she is a member of the Scheduled Caste. It is alleged that the petitioner passed the Higher Secondary Examination (Science) of West Bengal Board of Secondary Education held in 1973 and appeared in the Joint Entrance Examination for admission to Engineering -cum -Medical Colleges in West Bengal. It is alleged that in the said examination the petitioner obtained qualifying marks to apply for admission to Medical Colleges and obtained application form from the Medical College, Calcutta to apply for admission to pre -medical course leading to M. B. B. S./B. D. S. degree for the session 1973 -74 in any of the Government Medical Colleges in West Bengal. On the 2nd November, 1973, the petitioner applied on the said form and submitted the said form for admission as a member of Scheduled Caste to the pre -Medical Course leading to the M. B. B. S -/ B. D. S. Course for the session 1973 -74 with all documents and testimonials and the petitioner's application was registered with the Registration No. 1145. Along with the said application the petitioner submitted an attested copy of the certificate dated 19th Feb., 1973, from the Chief Presidency Magistrate. Calcutta certifying that the petitioner belonged and still belongs to Sunri caste which is recognised as a Scheduled Caste under the Constitution (Scheduled Castes) Order 1950. The petitioner further alleges that such certificate was given by the Chief Presidency Magistrate, Calcutta, who is the prescribed authority to grant such certificate in this case, after Police verification. By intimation Card No. C. N. M. C/134 received by the petitioner on 21st December, 1973, the petitioner was informed that she had been "provisionally" selected for admission to the Pre -Medical Course against a reserved seat for Scheduled Castes and Tribes for the session 1973 -74 in the Calcutta National Medical College. Pursuant to that order the petitioner got himself admitted into the Calcutta National Medical College on payment of requisite fees. It is stated that in view of an order of injunction passed by this Hon'ble Court on the application of other candidates, the admission of the petitioner to the Calcutta National Medical College was not given effect to and the petitioner continued her studies, in Bethune College in 3 years Degree Course with Honours in Botany until the said injunction order was vacated. Her admission to the Calcutta National Medical College was given effect to and she was allowed to join the Calcutta National Medical College as a medical student after the order of injunction by the High Court was vacated and the petitioner was transferred to the Pre -Medical Course in the said Bethune College as deputed by the authorities of the Calcutta National Medical College. It is alleged that the petitioner passed the Pre -Medical Examinations held in August 1974 securing an aggregate of 371 marks just 4 marks short of 375 aggregate marks for 1st Division. After completion of Pre -Medical Course the petitioner was admitted to the M. B. B. S. Course in the Calcutta National Medical College and at the time of institution of this case she was reading in the 1st year of M. B. B. S. Course. By a show cause notice dated 23rd March, 1974, issued by the Principal. Calcutta National Medical College who is the Chairman of the Central Selection Board, the petitioner was directed to show cause within 4th April, 1974, why disciplinary action, as suggested therein, including cancellation of examination, should not be taken against her. In the said notice it was stated that the petitioner was provisionally selected for admission to the Pre -Medical Course in the Calcutta National Medical College against a reserved seat for Scheduled Castes/Tribes for the session 1973 -74 on the strength of a Scheduled Caste/Tribe certificate issued in her favour by the Chief Presidency Magistrate, Calcutta which was submitted by the petitioner to the Board along with the application form. It was alleged that, the Scheduled Castes and Tribes Welfare Department of the Government of West Bengal (hereinafter referred to as the Welfare Department), on enquiry found that the petitioner did not belong to any community of the Scheduled Castes/Tribes of this State. It was further alleged that the certificate produced by the petitioner was not regular and it was therefore, decided that the actions should be taken against the petitioner immediately. Actions proposed consisted of disciplinary action in the shape of cancellation of the petitioner's provisional selection to the Pre -Medical Course for the Session 1973 -74; withdrawal of the Scheduled Caste certificate already issued to the petitioner and recovery of financial benefit payable to Scheduled Castes and Tribes candidates granted to the petitioner, if any. By a petition dated 2nd April, 1974, the petitioner showed cause and reiterated that she belongs to "Sunri" caste which was a Scheduled Caste under the Constitution (Scheduled Castes) Order 1950. The petitioner also relied on various documents in support of her case. By further letters dated 3rd and 19th April and 18th September 1974, the petitioner made representations to the respondent No. 4 who is the Director of the said Welfare Department. Thereafter on the 14th Feb., 1974, the Chairman, Central Selection -Board, passed the impugned order which is set out herein below:

(3.) THIS is the order which has been challenged in this proceeding. This Writ Petition was moved, on the 10th March, 1975, before A. N. Sen, J., who directed issue of a Rule Nisi as prayed for. A. N. Sen, J., also passed an ad interim order whereby the respondents were restrained from giving any effect to the said order dated 14th February, 1975, and from interfering with the petitioner's studies for the M. B. B. S. Course in Calcutta National Medical College till the disposal of the Rule.