Allahabad High Court
Bhagat Singh vs State Of U.P. And 4 Ors on 2 September, 2014
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ? A.F.R. Court No. - 31 Case :- WRIT - A No. - 44437 of 2014 Petitioner :- Bhagat Singh Respondent :- State Of U.P. And 4 Ors Counsel for Petitioner :- Mukhtar Alam,Arvind Srivastava Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Mr. Pankaj Rai, learned Additional Chief Standing Counsel for the respondents.
The grievance of the petitioner that impugned order dated 27.07.2014 passed by the respondent no.4 is an ex-parte order and same is liable to be set-aside.
With the consent of learned counsel for the parties, I proceed to decide this matter finally at this stage under the Rules of this Court since learned Additional Chief Standing Counsel submitted that the argument advanced by learned counsel for the petitioner is based on the facts borne out from bare perusal of impugned order as also the legal position well settled in this regard.
Learned counsel for the petitioner submits that he was appointed as Class-IV employee on the post of 'Washer Man' and appointment letter dated 10.07.1996 was issued by the Chief Medical Officer, Bijnor. It is also submitted that after completion of his probation period, the petitioner was confirmed on the post of 'Washer Man' and subsequently he was posted at Samudayik Swasthya Kendra, Naziabad.
Learned counsel for the petitioner submits that petitioner belongs to 'Scheduled Tribes category (Jaunsari)' and the caste certificate issued by the competent authority(the Additional District Magistrate, Bijnor) has also been annexed as annexure no.1 to the writ petition.
Learned counsel for the petitioner submits that the case of the petitioner that initially vide order dated 27.12.2013 passed by the Chief Medical Officer, Bijnor his services had been terminated without affording any opportunity of hearing or notice on the ground that the caste certificate which has been submitted by the petitioner at the time of his appointment was forged and fabricated document.
Aggrieved with the order dated 27.12.2013, the petitioner had preferred civil misc. writ petition No. 3318 of 2014 (Bhagat Singh Vs. State of U.P. and 4 others), and this Court vide order dated 12.02.2014 had passed detailed order. The operative portion of the said order is reproduced herein below:-
"Having carefully considered the submissions of learned counsel for the parties, I find that it is apparent from the perusal of the impugned order dated 27.12.2013 that no notice or opportunity was afforded to the petitioner before terminating his service by the impugned order.
In these circumstances, the impugned order dated 27.12.2013 cannot be sustained and is hereby set aside and the matter is remitted back to respondent no. 4 to pass an order afresh in accordance with law after affording sufficient opportunity to the petitioner, within a period of three months from the date of production of certified copy of this order before him.
With the above observations, the writ petition is allowed."
Learned counsel for the petitioner submits that in response to the order passed by this Court dated 12.02.2014, the opposite party again proceeded in the mater and a notice had been issued to the petitioner to submit his reply.
Learned counsel for the petitioner submits that in response to the notice he had submitted his reply dated 31.03.2014 (Annexure No.14 to the writ petition). The same has been received in the office of the Additional Chief Medical Officer (Administration), Bijnor on 31.03.2014. Again the petitioner had submitted detailed reply which has been received in the officer of Chief Medical Officer, Bijnor on 10.06.2014 (Annexure No.17 to the writ petition).
Learned counsel for the petitioner submits that inspite of these fact that he had represented twice, the authority concerned had proceeded in the matter ex-parte and the same is unsustainable and liable to be set-aside on this very sole ground alone.
Learned counsel for the petitioner further indicates a relevant fact that earlier the order dated 27.12.2013 was quashed by this Court in civil misc. writ petition No. 3318 of 2014 (Bhagat Singh Vs. State of U.P. and 4 others), and when the petitioner represented in the office alongwith certified copy of the order for his joining, they refused the petitioner to join the department.
Aggrieved with the non joining, the petitioner had again approached to this Court by filing the civil misc. writ petition No. 37325 of 2014 (Bhagat Singh Vs. State of U.P. and others), and this Court vide order dated 22.07.2014 had passed detailed order. The operative portion of the said order is reproduced herein below:-
"Accordingly, an interim mandamus is issued to the respondents to permit the petitioner to join as Washerman (Class IV post), which he was holding before passing of the termination order dated 27/12/2013, within a period of one month from the date of production of certified copy of this order or to show cause by filing counter affidavit within the same period."
Learned counsel for the petitioner submits that in response to the order dated 22.07.2014 passed in civil misc. writ petition No. 37325 of 2014 (Bhagat Singh Vs. State of U.P. and others), the opposite party had not permitted to the petitioner to join his service, but in most arbitrary manner again passed the impugned order dated 27.07.2014.
Learned counsel for the petitioner also relied the Hon'ble Apex Court decision dated 02.09.1994, passed in Kumari Madhuri Patil Vs. Additional Commissioner Tribal, reported in AIR 1995 SC 94. The relevant paras' are reproduced herein below:-
"2. The appellants are Suchita and Madhuri, daughters of Laxman Pandurang Patil. Their grandfather was Panduranga Patil. Laxman Patil was admitted in the school in the year 1943. In his school admission register and his school and college certificates his caste was shown as 'Hindu Koli'. Suchita had applied through her father, Laxman Patil to the Tahsildar, Andheri on 30-11-1989 for issuance of caste certificate as 'Mahadeo Koli' a Scheduled Tribe. The Sub- Divisional Officer, Bombay Suburban District by his proceeding dated 22-6-1989 refused to issue caste certificate sought for by Ms Suchita and informed her that she was not a Scheduled Tribe 'Mahadeo Koli'. She filed an appeal before the Additional copy of the judgment in Subhash Ganpatrao Kabade v. State Of Maharashtra1, wherein 'Koli' was held to be 'Mahadeo Koli', before the Additional Commissioner and also in the High Court. Because of the directions of the High Court she was admitted in the MBBS course and she is continuing her studies. The Additional Commissioner directed the Tahsildar to issue the certificate and accordingly issued to Miss Suchita the certificate as Scheduled Tribe. Miss Suchita applied to the Verification Committee for confirmation of her status as Scheduled Tribe. Madhuri applied for the issuance of Scheduled Tribe certificate before the Divisional Executive Magistrate, Greater Bombay, enclosing the order passed by the High Court in Writ Petition No. 3516 of 1990, dated 4-12-1990, in favour of her sister Suchita, which was issued on 23-8-1990 declaring her status to be 'Mahadeo Koli' and then she got the admission into BDS in the year 1992. Thereafter, she applied to the Verification Committee for confirmation. The proceeding by the Verification Committee was jointly conducted into the claims of the appellants, initiated on 8-12-1989, the father of the appellants.
3. 'Mahadeo Koli' was declared to be a Scheduled Tribe by Bombay Province as early as 1933 and the President of India declared in 1950 under Article 342, in consultation with the Government of Bombay (Maharashtra) and as amended from time to time. Laxman submitted the particulars along with his school and college certificates, junior college certificate and school certificates of the appellants, the certificates of his sister and appellants' maternal aunt, Jyotsana Pandurang Patil dated 3-3-1978 and maternal uncle Balakrishna Pandurang Naik dated 22-10-1954 and a statement by the Caste Association. The Committee in their order dated 26-6-1992 considered the entire evidence placed before them, the particulars furnished by their father in the pro forma on their ancestry and other anthropological particulars and after hearing their counsel, found that the appellants are 'Koli' by caste which is recognised as Other Backward Class, i.e., OBC in the State and that they are not 'Mahadeo Koli', the Scheduled Tribe and their claim for that social status was accordingly declared as Mahadeo Koli in the year 1954 and entries in his service record and to maternal aunt, Jyotsana in the year 1979 probabilise the omission to describe Laxman Patil as Mahadeo Koli, though they, as a fact, belong to Scheduled Tribe. In the school registers the appellants had enjoyed the status as Scheduled Tribe which provides probative value. The Committee, the Additional Commissioner and the High Court had not appreciated the evidence in proper perspective before declining to confirm the social status of the appellants as Scheduled Tribes and the High Court ought to have gone into these aspects as was done in Subhash Ganpatrao Kabade casel. it is further contended that Suchita has completed her final year course of study. Madhuri is in midway and that, therefore, justice demands that their education should not be dislocated with the denial of the social status as Scheduled Tribes. The sheet-anchor for the counsel's argument is the judgment of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case'. We find no force"
Learned counsel for the petitioner further relied the Government Order dated 05.01.1996, by which exhaustive mythology has been provided to scrutinize the complaints regarding caste certificate and how to proceed in the matter. In the present matter admittedly the matter had never been referred to any committee, which could scrutinize the caste certificate issued in favour of the petitioner. In the present matter, caste certificate had been issued in favour of the petitioner on 13.08.1991, which is still in force and same had never been cancelled by any competent authority and if the authority concerned have any objection against the said issuance certificate, the matter could have been referred to the scrutiny committee, which is the only authority to ascertain genuineness of the caste certificate. For ready reference the relevant portion of Government Order dated 05.01.1996 is reproduced herein below:-
"(7) If as per the decision of the scrutiny committee, the caste certificate is found to be incorrect.
(A) On order shall be passed by the committee canceling the caste certificate or the said certificate shall be seized.
(B) A request shall be made, as the case may be to be concerned educational institution etc. or to appointing authority to immediately cancel the admission / appointment of the concerned candidate within given him any notice and accordingly he will be divested of the right to continue his studies any further or to remain on his post / in service, as the case may be.
(c) Proceeding shall be initiate for brining prosecution as the case may be against the concerned candidate or his parents or guardians for laying false claim."
However, learned Additional Chief Standing Counsel submits that bare perusal of the impugned order it is clearly reflected that in the present matter the caste certificate, which has been filed by the petitioner is forged and fabricated documents and once it is proved that the initial appointment is procured by means of forged and fabricated documents the appointment can be quashed at any stage and there was no requirement of providing any opportunity to the petitioner and there was no violation of natural justice.
Heard the rival submissions of learned counsel for the parties and perused the record.
In the present matter, the petitioner was appointed as Class-IV employee on the post of 'Washer Man' and in this regard appointment letter had also been issued in his favour on 10.07.1996. The said appointment was made on the basis that the petitioner had submitted a caste certificate of 'Scheduled Tribes category (Jaunsari)'. The said caste certificate has been brought on record to the writ petition.
In the present matter probably some complaint has been made and by means of that an ex-parte order dated 27.12.2013, passed by the Chief Medical Officer, Bijnor, by which the services of the petitioner had been terminated, on the ground that caste certificate which had been submitted by the petitioner was fictitious and forged document.
As indicated above, the petitioner had preferred various writ petitions and they were all allowed by this Court, by speaking order to decide the controversy by the competent authority after affording an opportunity of hearing to the petitioner. This is also an admitted position in the matter that petitioner had submitted his response within time to the competent authority, but in the matter, the competent authority had again passed ex-parte order on 27.07.2014.
In the present matter the learned counsel for the petitioner has relied the case of Kumari Madhuri Patil (supra), by which Hon'ble Apex Court had passed very detailed order and in pursuance of the said decision the State Government has also issued the Government Order dated 05.01.1996, which also provides forum where the cases of caste related matter can be dealt.
Admittedly in the present matter, the caste certificate which has been issued by the competent authority, had never been cancelled and the matter had never been referred to the competent forum for deciding the issue, specially whether the said caste certificate, which was issued in favour of the petitioner as 'Scheduled Tribes category (Jaunsari)', is genuine or forged.
An ex-parte proceeding had taken place in the matter and without affording any opportunity of hearing to the petitioner, the present impugned order has been passed. The same is in violation of principle of natural justice, even in spite of fact that there was categorical direction passed by this Court in writ petition No. 3318 of 2014, to decide the controversy by the competent authority after affording an opportunity of hearing.
Admittedly in response to the direction issued by this Court twice the petitioner had submitted categorical representation, by which he has categorically informed to the authority concerned that what ever certificate has been submitted at the time of his initial engagement in the department was in fact issued by the competent authority and since 1996 he working in the department and no complaint had ever been made by any superior officer.
It is also apparent from the record that in the present matter an ex-parte was order passed by the Chief Medical Officer, Bijnor, and terminated the services of the petitioner without affording any opportunity of hearing in the matter.
Accordingly, the impugned order dated 27.07.2014 is unsustainable and same is set-aside. The competent authority may proceed in accordance with law as indicated above, after affording the fullest opportunity to the petitioner.
The writ petition is allowed.
Order Date :- 2.9.2014 VKG