KUSUM GURUNG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India is filed by the petitioner challenging Annexure P-15, order passed by the District Collector/District Magistrate, West Sikkim cancelling the OBC Certificate No. 53/DCW dated 22.05.2002 issued to the petitioner Smt. Kusum Gurung, wife of Shri Dipendra Gurung (original of Annexure P-11 Certificate).

(2.) THE respondents in this writ petition are State of Sikkim (R-1), District Collector/District Magistrate, West Sikkim (R-2), Mrs. Sujata Subba (R-3) and Secretary, Department of Personnel, Adm. Reforms & Training, Govt. of Sikkim (R-4). As pleaded by the petitioner in the writ petition, the petitioner's case is that she, the 3rd respondent and others had applied for the post of Assistant Conservator of Forest (ACF) in the year 2002 and appeared in the competitive examination held in the year 2003 and that she stood 1st and 3rd respondent stood 3rd in the examination. According to the petitioner, she and another girl were appointed to the 2 vacancies earmarked for OBC (women) and OBC candidates. The 3rd respondent was not appointed as she stood only 3rd in the merit. Pursuant to the above selection the petitioner was appointed as ACF on 29.07.2004 and after six years she was promoted as Divisional Forest Officer (DFO). The petitioner submits that she was selected on the strength of Annexure P-11 Certificate issued to her on the basis of OBC status of her husband. The petitioner points out that the 3rd respondent kept silent for 8 long years from 2002 till 2010 and thereafter filed Annexure P-13 complaint dated 16.07.2011, inter alia, contending that as the petitioner's OBC Certificate was issued based on the status of her husband, who is an OBC and not on the basis of her own parentage, Annexure P-11 Certificate issued to the petitioner was issued illegally and was liable to be cancelled. To Annexure P-13, complaint, the petitioner filed Annexure P-14 reply contending that no law prohibited for issuance of OBC Certificate to a woman on the basis of the status of her husband. According to the petitioner the only rule/law on the subject of issuing OBC Certificate is Annexure P-16 Notification No. 3/WD/95 dated 06.06.1995 issued by the Government of Sikkim in its Department of Welfare and that clause 4 of Annexure P-16 only requires OBC Certificate to be issued by DC/ ADC or SDM of the area. Annexure P-16 does not say that OBC Certificate has to be issued based on parentage of the candidate and not on the basis of caste status of the husband of a woman candidate.

(3.) ACCORDING to the petitioner, her husband Dipendra Gurung belongs to OBC category, and she automatically becomes a member of OBC. The petitioner also relies on Section 3 (1) (a) of the Sikkim Subjects Regulation 1961 and contends that because the petitioner's father was born in Sikkim and is a resident of Gangtok, he is a Sikkim Subject by birth and as he was a Gurung, which is OBC of Sikkim, the petitioner, his daughter, is also a member of OBC of Sikkim. The petitioner also relies on Annexure P- 8, Notification No. 66/Home/95 dated 22.11.1995 issued by the Home Department, Government of Sikkim and contends that as her father Shri Bhim Bahadur Gurung was employed in Sikkim even prior to 31.12.1969, he held a Certificate of Identification under the above notification and thus petitioner also became a member of OBC in view of her father's employment in Sikkim prior to 31.12.1969.