BINA DEVI SHARMA Vs. STATE OF SIKKIM
LAWS(SIK)-2010-9-13
HIGH COURT OF SIKKIM
Decided on September 17,2010

Bina Devi Sharma Appellant
VERSUS
STATE OF SIKKIM Respondents

JUDGEMENT

DINAKARAN,J - (1.) I . The Pivotal Questions The pivotal questions that arise for consideration in these Writ Petitions are ­ (i) Whether a daughter of a Class -I officer of the rank of Joint Secretary and above in the State Government is excluded from the reservation made for Other Backward Classes, herein after referred to as OBC, as per the Notification dated 05.12.2003 of the Government of Sikkim, despite her marriage, on the ground that she belongs to Creamy Layer? and (ii) Whether a daughter of a Class -I Officer of the rank of Joint Secretary and above in the State Government is excluded from the reservation made for Most Backward Classes, herein after referred to as MBC, as per the Notification dated 05.12.2003 of the Government of Sikkim, in spite of retirement of her father, on the ground that she belongs to Creamy Layer?
(2.) THE Writ Petitions No. 28 of 2009 filed by Ms. Bina Devi Sharma and No. 16 of 2009 filed by Khemraj Bhattarai are inter -connected and they are related to: "question No. (i), Whether a daughter of a Class -I officer of the rank of Joint Secretary and above in the State Government is excluded from the reservation made for Other Backward Classes, herein after referred to as OBC, as per the Notification dated 05.12.2003 of the Government of Sikkim, despite her marriage, on the ground that she belongs to Creamy Layer - 2.2 The Writ Petitions No. 2 of 2010 filed by Onissa Dechhen Gurung and No. 25 of 2009 filed by Kumari Baby Mukhia are inter -connected and they are related to: "question No. (ii), Whether a daughter of a Class -I Officer of the rank of Joint Secretary and above in the State Government is excluded from the reservation made for Most Backward Classes, herein after referred to as MBC, as per the Notification dated 05.12.2003 of the Government of Sikkim, in spite of retirement of her father, on the ground that she belongs to Creamy Layer - II. Brief Facts relating to Question No. 1 Ms. Bina Devi Sharma is the writ petitioner in W.P.(C) No. 28 of 2009. She obtained an OBC Certificate on 16.08.2004 from the office of the Sub -Divisional Magistrate, Pakyong, the 4th respondent therein. On the strength of the OBC Certificate, she applied for the post of Junior Grade in Sikkim State Civil Service, got selected and appointed to the said post reserved for the OBC category by the Department of Personnel, Adm. Reforms and Training, Government of Sikkim, by a proceeding dated 21.10.2008. Mr. Khemraj Bhattarai, the 5th respondent therein, by a complaint dated 12.06.2009 questioned the OBC Certificate dated 16.08.2004 issued to Ms. Bina Devi Sharma, on the ground that she belongs to 'Creamy Layer'. The Sub -Divisional Magistrate, Pakyong, East Sikkim, the 4th respondent therein, after due enquiry, by proceedings dated 07.09.2009 cancelled the OBC Certificate dated 16.08.2004 issued to Ms. Bina Devi Sharma, holding that Ms. Bina Devi Sharma belongs to creamy layer of the OBC as per the Notification dated 05.12.2003 of the Government of Sikkim read with the clarification dated 14.10.2004 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, as her father Mr. Tanka Ram Sharma was working as Class I Officer in the Government of Sikkim, and the fact that she was married and later got divorced, are not relevant. Hence, she filed the Writ Petition (C) No. 28 of 2009. 3.2 Placing reliance on the proceedings dated 07.09.2009 issued by the Sub -Divisional Magistrate, Pakyong, East Sikkim cancelling the Community Certificate dated 16.08.2004, issued to Ms. Bina Devi Sharma, Mr. Khemraj Bhattarai filed Writ Petition No. 16 of 2009 for issue of Writ of Quo -Warranto questioning the authority of Ms. Bina Devi Sharma to hold and continue to hold the present post of Junior Grade in Sikkim State Civil Service, and also for consequential relief, viz., a direction for appointing him as Junior Grade in Sikkim State Civil Service in place of Ms. Bina Devi Sharma, as he stands next to Ms. Bina Devi Sharma in the OBC Merit Order. III. Brief facts relating to the Question No. (ii)
(3.) MS . Onissa Dechhen Gurung, the petitioner in W.P.(C) No. 2 of 2010 obtained a MBC Certificate from the office of the Block Development Officer, Soreng, West Sikkim on 23.11.2007. On the strength of the Certificate, she applied for the post of Junior Grade in Sikkim State Civil Service, got selected and appointed to the said post reserved for MBC (W) category by the Department of Personnel, Adm. Reforms and Training, Government of Sikkim by proceedings dated 03.11.2008. But one Kumari Baby Mukhia made a complaint before the District Collector, West, questioning the MBC Certificate issued to Ms. Onissa Dechhen Gurung by the Block Development Officer, Soreng, contending that the latter belongs to creamy layer as her father was a Class I Officer in the Government of Sikkim. The District Magistrate, after due enquiry, by proceedings dated 13.01.2010, cancelled the MBC Certificate dated 23.11.2007 issued to Ms. Onissa Dechhen Gurung by the Block Development Officer holding that she belongs to creamy layer as her father was working as the Principal Chief Engineer -cum -Secretary to Government of Sikkim. She is thus excluded from the Most Backward Class, as per the Notification dated 05.12.2003 of the Government of Sikkim read with the clarification dated 14.10.2004 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India. 4.2 Placing reliance on the proceedings dated 13.01.2010 of the District Collector, West, Kumari Baby Mukhia filed Writ Petition (C) No. 25 of 2009 challenging the appointment dated 03.11.2008 of Ms. Onissa Dechhen Gurung in the Junior Grade of the Sikkim State Civil Service as MBC (W) candidate and for consequential reliefs. While so, Ms. Onissa Dechhen Gurung filed the Writ Petition (C) No. 02 of 2010 challenging the proceedings of the District Magistrate, West Sikkim dated 13.01.2010, whereby the MBC Certificate dated 23.11.2007 issued to her by the Block Development Officer, Soreng was cancelled. Hence the Writ Petitions No. 02 of 2010 and No. 25 of 2009. IV. Previous challenge to the appointments of Ms. Bina Devi Sharma and Ms. Onissa Dechhen Gurung in W.P.(C) No. 31 of 2008 dismissed on 05.06.2009. ;


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