Allahabad High Court
Dinesh Kumar Shukla vs State Of U.P. And Anr. on 31 March, 2004
Equivalent citations: 2004(4)AWC3487
Bench: Pradeep Kant, K.S. Rakhra
JUDGMENT
Pradeep Kant and K.S. Rakhra, JJ.
1. Heard Sri S. K. Kalia and Sri. S.C. Yadav, learned counsel for the State.
2. By means of this petition, the petitioner Dinesh Kumar Shukla challenges the order dated 26.7.2003, by means of which he has been dismissed from service.
3. The petitioner, while posted as Joint Director, Headquarters, Local Fund Audit Department, Allahabad and working as incharge Director being the Chairman of the Selection Committee, made a selection for Group-C post in the Local Fund Audit Department.
4. The charge against the petitioner is that while making the appointments, the provisions of Section 3 Sub-clause (6) of the U. P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the Reservation Act, 1994) were violated and, therefore, the petitioner was guilty of misconduct, which resulted into dismissal from service.
5. An advertisement for making appointments on Group-C posts in the Local Funds and Audit Department was issued some time in August, 1998. The combined written examination was held on 18.12.1998. The result of the said written examination was declared on 31.3.1999. This result was declared categorywise, namely, separately for general category candidates and the reserved category candidates. The candidates who were declared successful were called for interview. The reserved category candidates were called for interview separately on 22.3.1999 whereas general category candidates/other backward classes candidates were interviewed on 23.3.1999. The final result was declared on 31.3.1999, which again was categorywise.
6. A charge-sheet dated 5.2.2001, was served upon the petitioner levelling one charge saying that on complaints being received in respect of selection in question, a preliminary enquiry was conducted which revealed that in all 12 scheduled caste candidates, 13 other backward classes candidates and 24 general category caste candidates were selected but the provisions of Section 3 (6) of the Reservation Act, 1994, were not followed, which resulted in illegal selection of six candidates belonging to general category, namely, shown at serial Nos. 25, 26, 32, 34, 40 and 41 and in case provisions of Section 3 (6) have been followed then the reserved category candidates shown at serial Nos. 10. 12, 14 , 15, 20 and 24 ought to have been adjusted against the aforesaid candidates of general category and in place of six reserved category candidates, six more reserved category candidates, who were lower in merit, were to be given appointment.
7. The petitioner submitted reply to the charge-sheet on 16.2.2001, in which he admitted that the aforesaid provision has not been followed. However, proving himself not guilty, he stated that one Sri Ram Krishna Pandey had moved a complaint to the District Magistrate on which certain information was given and thereafter Sri. D. B. Singh, the then Director has submitted his report whereas the District Magistrate has not enquired anything from the petitioner.
8. Refuting the allegations made in the charge-sheet, the petitioner submitted that he was not aware that Section 3 (6) would be applicable and that he was never disclosed or made known that the procedure as mentioned in the charge-sheet was to be followed.
9. Thereafter, an enquiry report dated 26.2.2001 was submitted by the enquiry officer, copy of which was served upon the petitioner on 30.8.2001 to which the petitioner submitted reply on 10.9.2001. After considering his reply, the impugned order of punishment dated 26.7.2003, dismissing the petitioner from service has been passed.
10. Besides challenging the order of dismissal from service on merits, the learned counsel for the petitioner has also urged that it was the handiwork of one Sri D. B. Singh, the then Director, against whose appointment the petitioner had filed a Writ Petition bearing No. 7429 of 2000 at Allahabad, which is still pending,
11. Sri D. B. Singh did not respond in the aforesaid matter but filed a criminal complaint against the petitioner Under Section 5 (2) of the Reservation Act. The order, thus, is said to be challenged on the ground of mala fide also.
12. On merits, the learned counsel for the petitioner has submitted that, firstly, in the instant selection, Section 3 (6) of the Reservation Act, 1994, was not applicable as it was not an open combined competition between the general category and reserved category candidates, and secondly, even if the petitioner committed any default in not following the said provision, his action was bona fide and, therefore, protection Under Section 11 of the Act was available to him.
13. As a corollary to the aforesaid argument, it is also being urged that though in the charge-sheet, no charge regarding mala fide on the part of the petitioner or any deliberate illegality having been committed by him that too for giving benefit to any of the candidates or a group of candidates, was levelled against him and that though the enquiry officer in the enquiry report observed that non-compliance of the provisions of Section 3 (6) was bona fide and was not mala fide action nor was deliberate action on the part of the petitioner and that no mala fide could be attributed to his action, but despite the aforesaid facts, the disciplinary authority, while inflicting the punishment of dismissal from service after finding that the provisions of Reservation Act were not followed, termed the action of the petitioner as mala fide and, therefore, the order of dismissal from service is vitiated on this ground alone.
14. It is also being brought to our notice that the enquiry officer in his report has also observed that the petitioner was only presiding in the meeting, he being the Chairman of the Selection Committee, which Selection Committee also consisted, a member belonging to the Scheduled Caste but this procedure or provision was not even indicated by the aforesaid member, who was also equally guilty of not following the said provision. However, no action has been taken against any other member of the Selection Committee.
15. Before proceeding further we would like to observe that the petitioner has not raised any grievance against the procedure adopted in holding the disciplinary proceedings nor any grievance regarding of the violation of principles of natural justice or not following the due procedure of law, except that he challenges the very act of initiation of disciplinary proceedings on the ground that no misconduct could have been attributed to the petitioner even if provisions of Section 3 (6) of the Reservation Act were not followed and that the disciplinary authority was not at liberty to himself impose a charge of mala fide in his action and then pass an order of dismissal from service, particularly when no such charge was levelled against the petitioner nor he was afforded any opportunity at any point of time during enquiry or otherwise to meet the said charge.
16. Learned counsel for the State Sri S. C. Yadav refuting the arguments raised by the learned counsel for the petitioner has submitted that the petitioner was Joint Director and was working as incharge Director and as such was the Chairman of the Selection Committee, therefore, he cannot shirk his responsibility by saying that he did not know the provisions of law and that since he was not directed to follow the aforesaid procedure as given in Section 3 (6) of the Act, the said action would not constitute any misconduct. He has further submitted that the provisions of the Reservation Act ought to be well within the knowledge of the Director, namely, the petitioner and, therefore, even if the petitioner did not know the same or was not aware about the meaning and import of the provisions of Section 3 (6) of the Reservation Act, if would not dilute the misconduct nor would be sufficient to absolve the petitioner of his responsibility and the outcome of not following the due procedure prescribed under the Act, particularly when the Act itself provides for launching prosecution against the erring officer. In response to the attack on the ground that the charge of mala fide was not specifically levied against the petitioner but even then the disciplinary authority has observed as such in the impugned order, the learned counsel for the State submits that it is only a discussion or a factual statement made by the disciplinary authority, considering the conduct of the petitioner and the admitted fact that provisions of Section 3 (6) were not followed and rather were violated, which resulted in deprivation of appointment to six candidates belonging to reserve category, who otherwise could have been very well accommodated but for the misconduct of the petitioner.
17. A charge-sheet is required to be concise and precise and must contain specific charges, which are required to be answered by the delinquent officer. If the charge-sheet is absolutely vague, or it does not contain the charge on which the order of punishment can be passed or is proposed to be passed, that will vitiate the entire proceedings. In the case in hand, the charge as mentioned therein has already been reproduced by us, in substance, in the upper portion of the order. It does not contain any charge of mala fide on the part of the petitioner in not following the provisions of the Reservation Act. The reply given by the petitioner, therefore, confines only to the reasons which according to the petitioner led the initiation of enquiry, namely, alleged undue interest being taken by Sri D. B. Singh, whose appointment has been challenged by the petitioner and his ignorance about the fact that the arrangement of the select list has to be done in the manner given therein.
18. During the course of enquiry also, the petitioner was not disclosed that any such charge of mala fide, on his part, in preparing the select list, is also to be answered by him. The report of the enquiry officer dated 26.2.2001, rather mentions that action of the petitioner cannot be termed as mala fide nor he has committed this mistake deliberately. The enquiry officer has also observed that besides the petitioner there were other member also, including Sri Ram Sagar Ram belonging to scheduled caste and Sri A. T. Ansari, belonging to Other Backward Class who did not challenge the action nor suggested that the selection has to be done by pushing the candidates of reserved category in the general category, if they have secured merit amongst the candidates of general category and that the candidates having lower marks according to the merits were to be adjusted and, therefore, fault lies on the shoulders of all the members and not only on the petitioner, who was the Chairman of the Selection Committee.
19. The disciplinary authority, while issuing notice to the petitioner for filing his reply to the proposed punishment and for his comments against the enquiry report, made the petitioner to answer the charge of mala fide, that too without giving any basis for the same, which was specifically denied by him.
20. In the impugned order of dismissal, the disciplinary authority held the said charge proved on the ground that since the petitioner was not only the Chairman of the Selection Committee but was also the appointing authority, therefore, he has guilty of mala fide in action.
21. In our opinion, there being no charge of mala fide levelled against the petitioner in the holding of the selection or in preparation of the final select list or issuing the appointment orders, the disciplinary authority could not have carved out a new charge in the show cause notice of proposed punishment based on the enquiry report and then in the absence of any such opportunity being given to the petitioner to prove otherwise, could not have passed an order on the basis of such a finding.
22. Non-framing of such a charge of mala fide in holding selection in the manner for which the petitioner has been charged gets more relevance in view of the following provisions of the Reservation Act, 1994.
23. Section 5 of the Reservation Act, 1994, makes a provision for penalty against an appointing authority, officer or employee, who fails to comply the provisions of the Act and wilfully acts against his responsibility as entrusted upon him Under Section 4 (1), for which he can be punished by imposing the penalty of imprisonment which may extend upto a period of there months or with fine which may extend upto Rs. 1,000 or with both. Section 5 of the Reservation Act reads as under :
Penalty.-(1) Any appointing authority or officer or employee entrusted with the responsibility under sub-section (1) of Section 4 who wilfully acts in a manner intended to contravene or defeat the purposes of this Act shall, on conviction, be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both.
(2) No Court shall take cognizance of an offence under this section except with the previous sanction of the State Government or an officer authorised in this behalf by the State Government by an order.
(3) An offence punishable under sub-section (1) shall be tried summarily by a Metropolitan Magistrate or a Judicial Magistrate of the first class and the provisions of sub-section (1) of Section 262, Section 263, Section 264 and Section 265 of the Code of Criminal Procedure, 1973, shall mutatis mutandis apply.
24. Section 4 has the heading Responsibility and powers for compliance of the Act'. The aforesaid provision provide that the State Government may, by notified order, entrust the appointing authority or any officer or employee with the responsibility of ensuring the compliance of the provisions of this Act. It further says that the State Government may, in the like manner, invest the appointing authority, officer or employee referred to in sub-section (1) with such powers or authority as may be necessary for effectively discharging the responsibility entrusted to him under sub-section (1). Failure on the part of such appointing authority, officer or employee who has been entrusted with the responsibility Under Section 4 (1) in complying with the provisions of this Act, makes him liable for prosecution and for being punished with an imprisonment and fine as prescribed Under Section 5 (1), if it is found that such failure was a result of wilful act of such an appointing authority, officer or employee, and was intended to contravene or defeat the purpose of the Act.
25. The very language of Section 5 of the Act, clearly says that there should be a wilful act by any appointing authority, officer or employee that too in a manner which intends to contravene or defeat the purposes of the Act. Therefore, the first and the foremost consideration for making the appointing authority, officer or employee entrusted with the responsibility Under Section 4 (1) liable for prosecution Under Section 5 of the Act, is that there must be a wilful default on the part of such appointing authority, officer or employee and in the manner which apparently intended to contravene or defeat the purpose of the Act.
26. The provisions of Section 5 when read with Section 11 of the Act, which reads as under, clear the doubt and protects the action taken in good faith :
"11. Protection of action taken in good faith.-No suit, prosecution or other legal proceedings shall lie against the State Government or any person for anything which is in good faith done or intended to be done, in pursuance of this Act or the Rules made thereunder."
27. On a combined reading of Section 5 and Section 11 of the Act, we have no hesitation to hold that for making an appointing authority, officer or employee liable for prosecution Under Section 5 of the Act, there must be a wilful act or violation of the provisions of the Act and failure in discharge of responsibility Under Section 4 (1) with an intention to contravene or defeat the purpose of the Act. The action may be in violation of the provisions of the Act but as defined in Section 11 of the Act, if taken in good faith, cannot be termed as mala fide, unless the same falls within the mischief of Section 5.
28. It cannot be disputed that in given cases though failure on the part of the appointing authority, officer or employee, in complying with the provisions of the Act, may not constitute any offence so as to launch prosecution Under Section 5, but such failure may constitute misconduct under service jurisprudence, for which disciplinary proceedings can be Initiated, but whether disciplinary proceedings can be initiated or the failure can be treated as misconduct for the purpose of such proceedings, would have to be determined on the facts of each and every case.
29. With the aforesaid scheme of the Act, the argument of the learned counsel for the petitioner Sri S. K. Kalia gains significance as the petitioner at no point of time was afforded any opportunity in disciplinary proceedings to establish that his action was bona fide and that even if there was violation of provisions of Section 3 (6), the same would not constitute a misconduct so as to inflict major punishment of dismissal from service. The argument also gets support from the report of the enquiry officer which has in unequivocal terms, held the action of the petitioner as not mala fide and also observed that besides the petitioner there were other persons in the selection committee including the members of scheduled caste and other backward class but all of them failed to point out this defect in procedure and the petitioner cannot be alone held guilty for the said mistake. The disciplinary authority, however, passed the order on being convinced that the petitioner's action was mala fide.
30. Learned counsel for the State at this juncture has submitted that even if the observation of the disciplinary authority that the action of the petitioner was mala fide is taken out of the text of the order, even then the order of dismissal can be sustained and would not be liable to be quashed as violation of law and deprivation of deserving candidates in seeking appointment still exist and there can be no plausible explanation by the petitioner for not following the aforesaid mandate.
31. An order of punishment, if contains several parts or different grounds, on which it is based, which may be severed, the argument of the counsel for the State could have been appreciated but when a single order has been passed without severing the reasons for passing the order and the Court is not in a position to find out that if a particular observation had not been made then what order could have been passed, it would be a matter of mere speculation for the Court to substitute its own finding or modify such order despite the fact that such finding or observation cannot be excluded for upholding the order.
32. On the question as to whether the petitioner actually violated the provision of Section 3 (6) of the Reservation Act, 1994, we would have to look into the scheme of the Act and the manner in which the selection was held.
33. It may be taken note of at this stage, that there , is no charge, regarding any such illegality having been committed with respect to the candidates belonging to Other Backward Classes.
34. Section 3 of the Reservation Act, 1994, prescribes for reservation In favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes and gives its percentage in sub-section (1). The relevant provision of Section 3 (6) says that if a person belonging to any of the categories mentioned in sub- section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1). Section 3 (6) is quoted below :
"(6) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1)."
35. For the applicability of the aforesaid provision, there should be a person/persons belonging to any of the categories mentioned in sub- section (1), namely. Schedule Caste, Scheduled Tribe or Other Backward Class and they should have been selected on the basis of merit in an open competition with general candidates. The open competition with general candidates and reserved category candidates would mean a common competition. The selection in the instant case was held in the following stages.
36. A combined written examination was held on 18.12.1998. The result of the written examination was declared, categorywise, on 31.3.1999. Categorywise, call letters were issued to the candidates and interviews were held on 22.3.1999 and 23.3.1999, that too categorywise and likewise, the final result was also declared categorywise, therefore, it cannot be said that it was an open competition of the reserved category candidates with general candidates and they were got selected on such merit having been determined in such selection.
37. This very question came up for consideration before one of us sitting singly (Pradeep Kant, J.) in Writ Petition No. 5844 (SS) of 1999, Arvind Kumar Singh and Ors. v. State of U. P. and Ors.. In the aforesaid case also, in pursuance to the advertisement, the petitioners (reserved category candidates in that writ petition) and the general category candidates applied for appointment. The combined written test was held on 13.12.1998, the result of which was declared on 26.2.1999. The result was declared categorywise namely, separate list for Scheduled Castes, Scheduled Tribes, Other Backward Classes and all other reserved categories and a separate list was declared for the General Category candidates. The dates for interview of reserved category candidates as well as general category candidates who were declared successful in the written examination were announced and interviews were held categorywise on the same day and thereafter the final result was declared on 19.3.1999. This was again categorywise. Apart from this U. P. Backward Class Commission, on a complaint being made, also opined against the selection and said that the provisions of Section 3 (6) of the Reservation Act, 1994, ought to have been followed.
38. Considering the term 'open competition', it was observed as under ;
"The term 'competition' muchless 'open competition' has not been defined under the Act nor any authority has been cited where such phrase has been interpreted. This Court, is therefore, left with no option but to proceed with the matter, taking into consideration the meaning of the word 'open competition' in common parlance and as given in the dictionary.
In Black's Law Dictionary, Sixth Edition, 'competition' has been given the meaning ; contest been two rivals. The effort of two or more parties, acting independently, to secure the business of a third party by the officer on the most favourable terms ; also the relations between different buyers or different seller which result from this effort. It is the struggle between rivals for the same trade at the same time ; the act of seeking or endeavouring to gain what another is endeavouring to gain at the same time. The term implies the idea of endeavouring by two or more to obtain the same object or result.
Thus, it is evident that the intention of the Act in excluding the reserved category candidates from the vacancies reserved for such category of candidates on their being selected in the general category is that a reserved category candidate, who has the competence of competing with the general category candidates, does not require any reservation and. therefore, he should be placed amongst the category of general candidates and at the same time the interest of such reserved category candidates should not be lost sight of who could not compete with the general category candidates but are otherwise entitled for being inducted in public service by placing them in the reserved quota. This serves two purposes ; the reserved category candidate, on the one hand, who is competent enough of meeting the challenge of competence of the general category candidates deserves and is placed amongst the general category candidates whereas reserved category candidate otherwise is placed in reserved quota which also fulfils the aims and object of reservation and fulfilment of quota of reserved candidates without making any compromise with respect to the merit and talent of a candidate, who otherwise belongs to reserved category but is more meritorious and successfully makes his place along with the general category candidates.
The basic question, therefore, would be as to whether a candidate belonging to reserved category who has been awarded separate marks in his category of candidates in the written examination as well as in the interview would be entitled to the benefit of the provisions of Section 3 (6) wherein the basic ingredient of competition with the general category candidates is missing. The argument of the learned counsel for the respondents that because it was the same selection committee, therefore, it should be deemed to be an open competition with the general category candidates requires consideration in the light of the provisions of sub-section (6) of Section 3 of the Act.
The phrase open competition with general candidates' bears significance, as unless there is competition amongst the general candidates and reserved category candidates at the same level, the benefit of the said phrase may not be available to the reserved category candidate. In case a separate list is prepared according to the merit of the reserved category candidates in written examination and likewise separate interviews are held of the reserved category candidates excluding the general category candidates. The State Government has also not disclosed the criteria or the minimum marks which have been kept as qualifying marks for the reserved category candidates in the written examination and for general category candidates respectively. Likewise, the criteria for interview and the minimum marks prescribed in the interview for reserved category candidates and minimum marks fixed for the general category candidates has also not been disclosed.
In a selection which can be termed as open competition with general category candidates the candidature of the reserved category candidates as well as the general category candidates is to be tested on the same merit and if in that case a reserved category candidate succeeds in the open competition with general category candidates, he would be placed amongst the general category candidates. In the instant case, the result so declared in the written examination does indicate that a separate criteria appears to have been adopted for examining the copies with respect to reserved category candidates and general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared category wise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates.
It may be true that in view of the advertisement the selection process ought to have been adopted in a manner also that it could have been an open competition with general candidates, i.e., by comparing the merit of the reserved category candidates along with the merit of the general category candidates and thereafter final select list could have been prepared by placing the reserved category candidates in the list of finally selected candidates as per their merit but this procedure was not adopted. In the absence of given procedures being adopted, the benefit of Section 3 (6) of the Act perhaps would not be available to the reserved category candidates."
39. The Court, therefore, after finding that the selection in question was not a selection on merit in an open competition amongst the general category candidates and reserved category candidates, upheld the contention of the petitioners that their selection was rightly made and there was no violation of the provisions of the Reservation Act, 1994. We endorse the view expressed in the aforesaid case.
40. In the case in hand, which is based on similar facts as in the case, referred to above, the selection so held cannot be said to be a selection based on merit in an open competition amongst the general category candidates and reserved category candidates, except that a combined written examination was held and the entire process of selection has been taken separately and categorywise. The result of the written examination was declared categorywise, meaning thereby that different criteria was adopted for declaring the candidates successful in the written examination, namely, one for the general category and the other for the reserved category. The merit list was, thus, a separate merit list, prepared for the purpose. The interviews were also held separately and the result was also declared categorywise. Thus, it cannot be said that it was an open competition amongst the general category candidates and reserved category candidates and, therefore, Section 3 (6) would not be attracted. Consequently, action of the petitioner could not have been termed as a misconduct.
41. It has also been suggested by the learned counsel for the State that in view of the advertisement issued the combined selection ought to have been held and, therefore, the petitioner cannot be absolved of the charge of violation of Section 3 (6) of the Act. In case the said plea is accepted, the entire selection stands vitiated and would become liable to be cancelled. Also, there was no charge against the petitioner that is why combined selection was not held. The charge was that in making the appointments in the selection held, the provisions of Section 3 (6) we not followed.
42. We do find that the cancellation of the entire selection would have been very harsh and prejudicial to the interest of the candidates, who were selected. Since this was not the charge, we, therefore, do not enter into this question any further.
43. For the reasons stated above, the petitioner's action could \not be termed as misconduct, there being no violation of the provisions of Section 3 (6), coupled with the fact that it was not" mala fide and thus, the petitioner, in any case, was entitled for the protection of the action taken in good faith.
44. Consequent to the findings recorded above, the petitioner could not have been subjected to any disciplinary proceedings for the aforesaid non-compliance of the provisions of the Reservation Act, 1994. Besides, the order of dismissal from service also stands vitiated as it is also based on the charge of mala fide against the petitioner, though no such charge did find mention in the charge-sheet, which deprived him of putting any defence against such a charge, during the course of enquiry.
45. For the reasons stated above, we find that the order dismissing the petitioner from service deserves to be quashed and is hereby quashed. 46. We are informed that the petitioner has retired on 31.1.2004. We, therefore, further direct that all the post retiral dues of the petitioner Including the pension etc. shall be settled expeditiously and the petitioner shall be paid salary from the date of passing of the order of dismissal from service till he reached the age of superannuation and all consequential benefits within a period of three months from the date of receipt of certified copy of this order.
47. The writ petition is allowed. No order as to costs.