- (1.) IN the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction particularly a writ in the nature of certiorari for quashing of letter dated 22.11.2007 as contained in Memo No. 4468 (ii), by which the caste certificate issued on 8.4.1992 by the District Welfare Officer and 13.4.1998 by the Sub -Divisional Officer, Ranchi Sadar, Ranchi has been cancelled in a most arbitrary manner and that too retrospectively in terms of Circular dated 3.1.2007, which also says that this circular will come into existence prospectively without considering the fact that the caste certificate issued to the petitioner was issued in terms of the Circular dated 3.3.1979, which came into existence after the Constitution Bench judgment of the Hon ble Supreme Court as reported in A.I.R. 1959 SC page 1318. The petitioner further prays for issuance of an appropriate writ, order or direction particularly in the nature of certiorari for quashing of show cause dated 27.11.2007 issued under signature of the respondent No. 7, by which the petitioner was asked to reply why she should not be removed from the service of the University on cancellation of her caste certificate by the District Welfare Officer, Ranchi and only three days time has been given to the petitioner to file reply to the said show cause shows the mala fide intention on the part of the respondents towards the petitioner, to whom the caste certificate has been issued genuinely, legally and within the four corners of law and the said show cause is merely a formality because it is apparent from the said letter that the said decision has been taken for removal from service on the ground of caste certificate when in an earlier opinion sought by them from the learned Advocate General, Jharkhand,her appointment and the caste certificate was said to be legal by the learned Advocat General, Jharkhand and in spite of that they are issuing the show cause for the reasons best known to them. The petitioner has further prayed that during pendency of the instant writ application, the operation of letters dated 22.11.2007 & 27.11.2007 may kindly be stayed.
(2.) THE facts, in brief, are set out as under: '' The petitioner was appointed as Training Associate, Plant Protection and she joined on 2004 before the Directorate of Extension Education and was posted at Krishi Vigyan Kendra, Bokaro. Vide letter dated 11.10.2007 the appointment of the petitioner was kept in abeyance on the ground of objection of her caste certificate Scheduled Tribe pending enquiry. On 12.10.2007 a show cause was issued as to why the services of petitioner be not terminated. The case of petitioner is that a Government circular was issued on 3.3.1979 which speaks that if a general category person marries with a reserved category, as in the instant case, who happens to be a scheduled tribe, then the children born out of said wedlock would be considered as scheduled tribe and this circular was issued based on a judgment passed by a Constitution Bench of Hon ble Supreme Court reported in AIR 1959 Supreme Court page 131 On the basis of application preferred by the petitioner the District Welfare Officer upon due enquiry and in view of the prevailing circular dated 3.3.1979 and the Constitution Bench judgment passed by the Hon ble Supreme Court issued caste certificate on 4.1992. The Sub - Divisional Officer based on the aforesaid certificate also issued the caste certificate. In the instant case the mother of the petitioner is scheduled tribe Oraon and the father is non -tribal and they got married in the year 1967 and the petitioner was born out of the said wedlock. 3 A show cause notice was issued by the Director, Administration, Birsa Agricultural University to which a reply was filed on 16.10.2007 clarifying that no mischief was done and also clarified the legal position. It appears that the matter was referred to the learned Advocate General to give his opinion on the issue and the learned Advocate General gave his opinion in favour of the petitioner and accordingly the office order dated 19.11.2007 issued under the signature of Director, Administration by which the suspension/appointment was kept in abeyance was revoked and directions were issued to pay the salary for the period of suspension as per rule. A Memo No. 4468 (ii) dated 22.11.2007 was issued under the signature of the District Welfare Officer, Ranchi vide which the caste certificate issued to the petitioner on 4.1992 and the certificate issued on 13.4.1998 were cancelled relying upon a subsequent judgment of the Hon ble Supreme Court reported in 2006(2) JLJR (SC)186. The aforesaid order was issued based on the interpretation of the Hon ble Supreme Court judgment and the new Circular dated 3.1.2007 by applying the same retrospectively. Thereafter a show cause was called for vide letter dated 27.11.2007 issued under the signature of the Director, Administration as to why the petitioner should not be removed from service on cancellation of the caste certificate issued on 4.1992 and 13.4.199 The present writ petition has been preferred by the petitioner to quash Annexure -9 by which the caste certificate granted in favour of the petitioner has been cancelled retrospectively by the State Government as well as for quashing of Annexure -10 by which a show cause has been issued by Birsa Agriculture University and also for quashing Annexure -12 of the amendment petition vide which the services of the petitioner was terminated with effect from 30.11.2007.
(3.) SRI Anil Kumar Sinha, learned Senior Counsel appearing for the petitioner has contended that the petitioner was not given any show cause notice before cancellation of the caste certificate and the impugned order was against the well settled cardinal principles of natural justice and thus violative of Article 14 of the Constitution of India. The second contention raised by the learned Senior Counsel is as to whether the second Circular dated 3.1.2007 which was made effective from the date it was introduced could have been applied retrospectively. The third contention raised by the learned Senior Counsel for the petitioner is that the entire enquiry was done behind the back of the petitioner and she was not even afforded any opportunity to justify her case. The learned Senior Counsel also submits that a legal, accrued and or vested right cannot be taken away retrospectively more so, when the same was upheld based on the earlier Circular of 1979. It is further submitted that the Division Bench order of Hon ble Supreme Court reported in 2006(2) JLJR (SC) 186 (Anjan Kumar vs. Union of India) unfortunately did not even refer to AIR 1959 SC 1318 which is a Constitution Bench judgment and was binding and enforceable and in this regard he also submits that the judgment referred to and relied upon by the respondents (supra) for bringing out the new circular and cancelling the caste certificate followed by termination was per incuriam since it was a judgment by two Hon ble Judges and the law in this regard is well settled. To support his contention he refers to para 74 of (2006)6 SCC page 395. It has further been contended that the petitioner has made out a specific case as to how even under the customs prevailing and the difficulties faced in the light of the ratio of the judgment she was rightly needed to be dedared as scheduled tribe in the reserved category based on the circular of 1979.;