Mrs. J. Anjani Dayanand, A.M.

1. This Petition had been originally filed in the High Court of Calcutta as a Writ Petition under C.R. No. 2905-w/81 and on transfer under Section 29 of the Administrative Tribunals Act, 1985, has been numbered as T.A. 902:/1986.

2. The petitioner prays to set aside the order, dated 15-9-1980 (Annexure E to the Petition) cancelling her selection to the post of Telephone Operator on the ground that the sub-group or sub-caste Saha of the "SUNRI" community is not to be treated as Scheduled Caste in West Bengal. She also prays for other consequential benefits.

3. The case of the Petitioner is that she was a scheduled caste candidate within the meaning of Articles 15(4) and 16(4) of the Constitution of India that she belonged to the Scheduled Caste SUNRI community as per the certificate given to her by the Directorate of Scheduled Caste and Tribes Welfare, Government of West Bengal, Calcutta, (Annexure A) and that she was selected against the quota for Scheduled Caste. She was also offered appointment vide Memo No. ERA 6048/Pt. I/Vol.II, dated 26-12-1979 to report to the Traffic Superintendent (B) at Telephone Bhavan, Calcutta with immediate effect to work as Short Duty Telephone Operate vide letter of recruitment, dated 26-12-1979. The petitioners names appears at Serial No.48. The sister of the petitioner is also an employee working under the State Government against the Scheduled Caste quota and the brother of the petitioner Shri Nirmal Chandra Saha is also holding a substantive appointment as Junior Engineer under the General Manager, Calcutta Telephones vide Order No. SC-3009/IV, dated 1-10-1979 issued by the Assistant General Manager (Staff), Calcutta Telephones. Whilst so, she was informed vide Memo No. AER/Conf./Saha Community, dated 15th September, 1980 issued by the Assistant General Manager (Staff) Calcutta Telephones, Calcutta, that her appointment had been cancelled on the ground that according to the Scheduled Caste and Scheduled Tribe orders (Amendment) Act, 1976 Sunri excluding Saha is to be regarded as Scheduled Caste in West Bengal. It has also been further clarified by the Ministry of Home Affairs in their Letter No. 12017/1/77-SCT-I, dated 15-7-1978. This was also subsequently confirmed by the Director General of Posts and Telegraphs, New Delhi vide his letter No. 100/22/80-STC-I, dated 11-7-1980. The petitioner has challenged the order cancelling her appointment on the ground that the order is bad in law, not sustainable either in law or fact. She was not given any opportunity to resist the statement. The order was in violation of all principles of natural justice.

4. The learned Counsel for the petitioner argued the case purely on the basis of AIR 1967 Supreme Court 115 (Vol. 54), Abhoy Pada Saha vs. Sudhir Kumar Mondal, in which the same question has been agitated. The Head Note reads as follows :

Constitution of India, Article 341-Constitution (Scheduled Castes) Order, 1950, Schedule Part 13, Item 40 "Sunri excluding Saha" Meaning "Saha" in the expression refers to a caste group within the Sunri caste. It is a smaller caste group within the larger caste group of Sunri-Surname is irrelevant as a test for apply Item 40 unless it is shown that it indicated a smaller caste group of Sunris-Appellant contesting and getting elected in the election to West Bengal Legislative Assembly by describing himself as member of the Sunri Caste which is a "Scheduled Caste" Election challenged on the ground that appellant was a member of "Saha" caste and not a member of Scheduled Caste-Held. That appellant must be held to belong to Sunri caste which was a Scheduled Caste specified in Item 40, : AIR 1966 Cal 141 [LQ/CalHC/1964/167] Reversed.

5. The respondents have filed their reply explaining the background of the decision terminating her services. During the arguments, however, the Senior Standing Counsel for Government respondents conceded that the issue had been settled finally by the Supreme Court in the case cited supra (: AIR 1967 SC 115 [LQ/SC/1966/133] ). He also conceded that the petitioners brother is even now in the service of the same Respondent Department since 1979 appointed against the SC quota.

6. In that view of the matter, the petitioner has to succeed. We are also satisfied that the order has been passed in utter disregard to the principles of natural justice. The impugned order, dated 15-9-1980 is accordingly set aside. The respondents are directed to reinstate her in service forthwith treating her as a candidate belonging to the SUNRI caste which is a Scheduled Caste specified in Item 40 and as certified by the Director of Scheduled Caste and Tribes Welfare, West Bengal and finally decided as such by the Supreme Court in Abhoy Pada Saha vs. Sudhir Kumar Mondal. : AIR 1967 SC 115 [LQ/SC/1966/133] . In the facts and circumstances of the case we also direct that she shall be given notional seniority as per the original appointment order and her pay be fixed giving her the benefit of the increments/ promotions she would have earned had her appointment not been cancelled by the impugned order. However, she will not be eligible for any other monetary benefits. The period shall, however, be counted for purposes of computing her pension and retirement benefits.

7. Ordered accordingly. There shall be no order as to costs.