Allahabad High Court
Vinay Kumar Jaiswal vs Director Local Fund Audit Deptt. ... on 5 January, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- WRIT - A No. - 49525 of 2000 Petitioner :- Vinay Kumar Jaiswal Respondent :- Director Local Fund Audit Deptt. U.P.Alld. Counsel for Petitioner :- Prakash Padia Counsel for Respondent :- C.S.C. Hon'ble Siddharth,J.
Heard Sri Prakash Padia, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for quashing of the impugned order dated 30.10.2000, whereby the services of the petitioner has been terminated and a direction has been sought commanding the respondents not to interfere in the working of the petitioner as Clerk/Typist. By way of amendment further prayers for quashing of the order dated 26.06.2000 passed by U.P. Scheduled Caste & Scheduled Tribe Commission and order dated 31.08.2000, passed by the Special Secretary and State Internal Auditor, U.P. Government have been added in the writ petition impleading the aforesaid authorities as respondents in the writ petition.
The brief facts of the petition are that the petitioner was duly selected and appointed on the post of Clerk/Typist by the order dated 31.03.1999. On 08.10.2000, a show cause notice was issued to him by the respondent no.1, stating that some candidates have made complaint before the Scheduled Caste and Schedule Tribe and Backward Class Commission and the Commission has considered the same and found that the appointment of the petitioner was against the provision of Section- 3(6) of U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 ("Reservation Act, 1994" in short), therefore, the appointment of the petitioner is irregular. In case, the petitioner considers his appointment as per the Rules and wants to produce some evidence or make arguments, he should do the same within 15 days of the receipt of the show cause notice.
The petitioner submitted his reply dated 23.10.2000 to the show cause notice dated 08.10.2000, issued by the respondent no.1 stating that his appointment is being alleged to be irregular on the complaint before the Scheduled Caste & Scheduled Tribe & Backward Class Commission; he has duly applied for selection in response to the advertisement dated 07.08.1998 made by the respondent no.1; he appeared in written examination on 13.12.1998, typing test on 16.03.1999, interview on 23.03.1999 and thereafter, appointment letter dated 31.03.1999 was issued to him and he joined his services on 15.04.1999 at Moradabad Division, thereafter, he has been granted regular pay and increment. There is no violation of Rule 3(6) of the Reservation Act, 1994 in his appointment.
By the impugned order dated 30.10.2000, the respondent no.1 terminated the services of the petitioner on the ground that he has not replied to the Show Cause Notice and since his services are no more required, the same is beinig terminated as per U.P. Temporary Government Servants (Termination of Services) Rules, 1975.
The respondent no.1 has filed his Counter Affidavit stating that the impugned order was passed on the basis of the order dated 26.06.2000, passed by U. P. Scheduled Caste and Schedule Tribe Commission and the order dated 31.08.2000 passed by the Special Secretary and State Internal Auditor, U.P. Government. It is further stated that the petitioner submitted his reply before the respondent no.1 when he should have submitted the same at Gorakhpur before the Divisional Office at Gorakhpur, where he is working.
By way of amendment, the petitioner has challenged the order dated 26.06.2000, passed by U.P. Scheduled Caste and Schedule Tribe Commission and the order dated 31.08.2000 passed by the Special Secretary and State Internal Auditor, U.P. Government also in the writ petition alongwith the initial impugned order dated 30.10.2000, passed by the Director, Local Fund, Audit Department, U.P., Allahabad.
The Counsel for the petitioner has argued that the Commission for Scheduled Caste and Scheduled Tribe has no power to issue orders in the nature of interim injunctions, directing any authority to cancel any appointment. The Commission can at the best investigate the complaint and submit its report to the Government, who shall lay it before the legislature and then its acceptance and non acceptance shall be decided by the legislature. The learned Counsel for the petitioner relied upon the Judgment in the case of All India Overseas Bank S.C. & S.T. Employees Welfare Association & others Vs. Union of India, JT 1996 (10) SC 287, in support of his arguments.
The learned Counsel for the petitioner has further relied upon the Division Bench Judgment of his Court in the case of U.P. State Handloom Corporation & another vs. Sate of U.P. and another, 2012 (6) ADJ 42, wherein, the scope and powers of the S.C. & S.T. Commission was considered.
"11. ...... The powers to summoning or enforcing attendance of any person and examining him on oath; requiring the discovery and production of any document" receiving evidence on affidavits' requisitioning any public record or copy thereof from any Court or office; issuing commissions for the examination of witnesses and documents' and any other matter that may be prescribed by Section 12 of the State Act are for the purposes of facilitating investigation and enquiries. These powers are not for issuing any orders or decrees to be implemented by the public authorities, if, after making investigation and enquiry, the National Commission of State Commission for the Scheduled Castes and Scheduled Tribes comes to any conclusion with regard to atrocities committed, or for ensuring socio- economic upliftment of the members of the Scheduled Castes and Scheduled Tribes, the Commission can make a recommendation to the President/ Governor, as the case may be, to give due consideration for the benefit of the members of the community."
The learned Counsel for the petitioner has also relied upon the Division Bench Judgment of this Court in Writ-C No.49450 of 2015, Indian Oil Corporation & another Vs. U.P. S.C.& S.T. Commission, which has also defined the scope of power of the aforesaid Commission as stated above.
The Second argument made on behalf of the petitioner is that Sri Dinesh Kumar Shukla, who was Joint Director, Head Quarters, Local Fund, Audit Department, Allahabad, was in-Charge Director and also Chairman of the Selection Committee, which selected the petitioner and other similarly situated employees in the year 1998- 1999 and he was dismissed from service on the recommendation of the Scheduled Caste & Scheduled Tribe and Backward Class Commission on the same allegation of Violation of Section-3 (6) of the U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes).Act, 1994. He approached the Lucknow Bench of this Court and by the Judgment and Order dated 31.03.2004, reported in 2004 (4) AWC 3487, Dinesh Kumar Shukla Vs. State of U.P. and others, his writ petition was allowed and since he has retired from service, his pre and post retiral dues were directed to be paid by the respondents. The relevant findings of the Division Bench Judgment aforesaid are as follows:
"(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 23.3.1999 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. Vs. 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 19.03.1999. 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' much less ''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; 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 fulfillment 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 genera 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 been also 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 the 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 can not be said that it was an open competition amongst the general category candidates and reserved category candidates and, therefore, Selection 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" malafide 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 only based on the charge of malafide 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."
In view of the aforesaid discussions, it is clear that the impugned order dated 30.10.2000 passed by the Director, Local Fund Audit Department, U.P. Allahabad was not and independent exercise based on his discretion, rather it was an order passed on the direction/ order dated 31.08.2000 of the Special Secretary and State Internal Auditor, U.P. Government. Even the above noted order dated 31.08.2000, passed by the Special Secretary and State Internal Auditor, U.P. Government was not based on independent application of mind and after consideration of the entire issue involved in the case. It was an order passed on the direction and pressure of the order dated 26.06.2000, passed by the U.P. Schedule Caste & Schedule Tribe Commission, Lucknow, directing action against Sri D.K.Shukla, who was the Chairman of the Selection Committee, which selected the petitioner and whose writ petition was allowed on 31.04.2004 by the Division Bench of this Court as discussed above. Under the threat of action against Sri D.K.Shukla, Chairman, Selection Committee, the action was also taken against the petitioner and other employees on the allegation of violation of Section- 3(6) of the U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. In view of the fact that there was no violation of Section-3(6) of the aforesaid Act in the appointment of the petitioner as decided by the Division Bench of this Court in the case of Dinesh Kumar Shukla (supra), the impugned orders passed against the petitioner deserve to be quashed.
Therefore, the impugned order dated 30.10.2000, passed by Director, Local Fund Audit Department, U.P. Lucknow, whereby the services of the petitioner has been terminated on the post of Clerk/ Typist, the order dated 26.06.2000 passed by U.P. Scheduled Caste & Scheduled Tribe Commission and order dated 31.08.2000, passed by the Special Secretary and State Internal Auditor, U.P. Government are hereby quashed. Since the petitioner is working on the basis of the Stay Order dated 14.11.2000, passed by this Court, he shall continue to work with all consequential benefits and paid his salary.
The writ petition is allowed. No order as to costs.
Order Date :- 05.01.2018 Ruchi Agrahari