Madhya Pradesh High Court
The State Of Madhya Pradesh vs Babulal Verma on 19 July, 2024
Author: S.A. Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 19th OF JULY, 2024
WRIT APPEAL No. 1545 of 2024
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
BABULAL VERMA
WRIT APPEAL No. 1544 of 2024
STATE OF M.P. THROUGH PRINCIPAL SECRETARY HOME
POLICE DEPARTMENT AND OTHERS
Versus
BABULAL VERMA
Appearance:
Shri Bhuwan Gautam, learned Govt. Advocate for the appellants / State.
Shri Anand Singh Bahrawat, learned counsel for the respondents.
ORDER
Per : S.A. Dharmadhikari, J Regard being had to the similitude of the controversy involved in the aforesaid petitions, they have been heard analogously and decided by this singular order. Facts of W.A. No.1545 of 2024 are being taken for consideration.
This intra-court appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 takes exception to the order dated 22.12.2023 passed in Writ Petition Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -2- No.13853 of 2013, whereby the learned Single Judge has allowed the writ petition filed by the respondent herein.
02. Draped in brevity, the relevant facts are that the respondent belongs to caste 'Dhobi' which is Scheduled Caste (SC) in the State of U.P. The respondent is the resident of Datia (M.P.), in which cast 'Dhobi' comes in the list of 'OBC'. He was initially appointed on the post of Constable Radio vide order dated 01.10.1985. Thereafter, he was appointed on the post of Assistant Sub Inspector, Radio in Police Department vide order dated 30.12.1989 in SC Category. An issue was raised in respect of his caste and the same was enquired. The respondent was called upon to give explanation that on what basis he submitted the caste certificate issued the by the Tehsildar, Jhansi, Uttar Pradesh and why he did not submit the caste certificate of Datia (M.P.) which is his native place.
03. The respondent did submit an explanation on 11.04.1990 explaining that in the advertisement there was no requirement of submission of caste certificate of the State of Madhya Pradesh. In the advertisement, registration in District Employment Exchange was required which he was fulfilling. He further explained that his father and mother belong to Village - Chirula and he was born at Village - Chirula, District - Datia. His did his primary education in Datia, thereafter, for higher studies he went to Jhansi and passed the Middle School, High School, B.Com. & I.T.I. from Jhanshi. He did not suppress any fact or conceal the correct fact at the time of appointment. He submitted his caste certificate and the same was accepted by the appellants. According to the respondent, after the aforesaid specific explanation, the matter was closed and he was permitted to continue in the services.
04. The respondent was promoted to the post of Sub Inspector Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -3- Radio in the pay-scale of Rs.4500 - 700/- vide order dated 30.03.2000 and thereafter, he was further promoted to the post of Inspector Radio vide order dated 21.04.2006. The respondent was under the zone of consideration on the post of Deputy Superintendent of Police, therefore, information was gathered whether any Departmental Enquiry or criminal case is pending against him or not ? Admittedly, the petitioner was promoted in the SC Category only.
05. The Superintendent of Police Radio (Indore Zone) vide letter dated 24.07.2013 has informed the Headquarter, Bhopal that no Departmental Eqnuiry is pending against the respondent.
06. Thereafter, to the utter surprise of the respondent, a charge- sheet dated 01.10.2013 was served upon him alleging that he secured the appointment by way of fraud. As per the charge-sheet, the charge against the respondent is that he procured the appointment to the post of Assistant Sub Inspector reserved for SC Category by producing the caste certificate issued by the Office of Tehsildar, Jhansi (U.P.). In the State of Madhya Prdesh 'Dhobi' caste comes under the category of OBC except in Bhopal, Raisen and Sehore, it is declared as Scheduled Castes, therefore, why the appointment be not cancelled.
07. The respondent submitted a reply dated 26.11.2013 stating that on the same set of charges, earlier an enquiry was conducted and the matter was closed and copy of the said proceeding be provided to him. Vide letter dated 06.12.2013, the petitioner was directed to participate in the enquiry. Thereafter, vide order dated 06.12.2013, appellant No.4 appointed the Enquiry Officer as well as the Presenting Officer.
08. Being aggrieved by the aforesaid, the respondent filed the writ petition before the learned Single Judge, which came to be allowed vide order dated 22.12.2023. Hence, the present writ appeal is before this Court by the State.
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -4-09. Learned Government Advocate for the appellant / State contended that the respondent belongs to 'Dhobi' caste and the said caste falls under the category of OBC in the State of Madhya Pradesh except Bhopal, Raisen and Sehore. Since the respondent is permanent resident of Datia, hence, he belongs to OBC category and the caste certificate issued from Jhansi (U.P.) is invalid. It is further contended that benefit of reservation in Government Service is available only to the domicile of the State of Madhya Pradesh, therefore, the respondent secured the appointment in an illegal manner. The respondent was promoted to the post of Sub Inspector and thereafter, to the post of Inspector under SC category. When this fact came to the knowledge to the authority, vide order dated 27.08.2007 he was reverted back to the post of Sub Inspector which is justified. Hence, present writ appeal be allowed.
10. Per contra, learned counsel for the respondent vehemently opposed the aforesaid prayer by submitting that the appellants have erred in reverting the respondent back to the post of Sub Inspector inasmuch as they have travelled beyond the conditions of the advertisement. There was no such condition stipulated in the advertisement that the candidate must possess the caste certificate issued by the competent authority of the State of Madhya Pradesh. After following all the procedure and verification of caste certificate, the respondent was appointed. Hence, there is no justification for reopening the matter after a lapse of 28 years. Hence, the present writ appeal deserves to be dismissed.
11. Parties confined their arguments to the aforesaid extent.
12. Heard learned counsel for the parties.
13. While allowing the writ petition, learned Single Judge has relied upon a judgment delivered by the Division Bench in the case of Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -5- Arun Prakash Yadav v/s The State of Madhya Pradesh & Others reported in 2013 (3) M.P.L.J. 508, wherein it has been held that the disciplinary proceedings against an Inspector of Police, the Superintendent of Police alone is the competent authority to initiate the disciplinary enquiry and impose the major penalty and quash the charge-sheet issued by the D.I.G. On this ground alone, the charge- sheet is liable to be quashed. Learned Single Judge has further held that the explanation was called from the respondent in the year 1990 and after submission of explanation, no action was taken against the respondent, therefore, on the same charges, issuance of charge-sheet is not permissible. Operative paragraph of the order passed by the learned Single Judge reads thus:-
"12.In the entire advertisement there was no requirement that the candidate should be a domicile of the State of Madhya Pradesh and this appointment only confined to domicile of Madhya Pradesh. The advertisement was issued for recruitment on 400 posts, out which 113 posts was reserved for Schedules Castes and 144 for Schedule Tribes and remaining posts for Unreserved candidates. The educational qualification was Higher Secondary and High School in Science & Math subject and the candidates must be registered in any Employment Exchange. The caste certificate was demanded as per serial No.9, therefore, in the entire advertisement, there was no requirement that caste certificate should be issued from the State of Madhya Pradesh or the candidates should be resident of Madhya Pradesh. The petitioner submitted the caste certificate of SC Category issued by the Tehsildar, Jhansi (U.P.) and after verification of caste certificate he was appointed, thereafter, he was further promoted. Hence, there was no justification for reopening the matter after lapse of 28 years in respect of his caste. Therefore, the petitioner never gave wrong declaration or submitted false caste certificate to get the appointment. Hence, charge No.1 is not made out that he procured the appointment by way of fraud.
13. As held above, since he produced the caste certificate of 'Dhobi' (SC) and there was no requirement in the advertisement that he should be the domicile of the State of Madhya Pradesh, therefore, such caste certificate is the valid Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -6- one as there was no such terms and conditions for selection, the charge of fraud is unfounded.
14. In view of the above, charge No.3 is also not made out as he was rightly promoted under the reserved category. Hence, the charge-sheet dated 01.10.2013 (Annexure-P/1) and proceedings of Departmental Enquiry are hereby quashed.
15. The petitioner has also challenged the charge-sheet on the ground of authority that the D.I.G. is not the competent authority to initiate the Departmental Eqnuiry. The Division Bench in the case of Arun Prakash Yadav v/s The State of Madhya Pradesh & Others reported in 2013 (3) M.P.L.J. 508 has held that disciplinary proceedings against an Inspector of Police, the Superintendent of Police along is the competent authority to initiate the disciplinary enquiry and impose the major penalty and quashed the charge-sheet issued by the D.I.G. On this ground alone, the charge-sheet are liable to be quashed. Even otherwise in the year 1990, the explanation was called from the petitioner and after submission of the explanation, no action was taken against the petitioner, therefore, on same charges, the issuance of charge-sheet is not permissible.
16. The petitioner has also filed W.P. No.6614 of 2015 claiming promotion to the post of D.S.P. The respondents considered his case and kept in sealed cover because of the pendency of the Departmental Eqnuiry. Now charge-sheet as well as Departmental Enquiry both have been quashed, therefore, the name of the petitioner be considered for promotion in the DPC and his name be kept in the sealed cover and then sealed cover be opened and consequential order be passed."
[Emphasis Supplied]
14. A similar issue came up for consideration before this Court in the case of Madhya Pradesh Pashchim Kshetra Vidyut Vitran Company Limited & Others v/s Smt. Apeksha Jain & Others (Writ Appeal No.1088 of 2024) on 02.07.2024, wherein it is held thus:-
"17.In similar situation, the High Court of Uttaranchal, at Nainital in Civil Writ Petition No.354 (S/B) of 2003 (Dr. Sandeep Kumar Singh v/s State of Uttranchal & Others) has held that it is settled law that the selection and appointment shall be made strictly in accordance with the terms and conditions of the advertisement as held by the Apex Court in the case of N.T. Bevit Katti etc. v/s Karnataka Public Service Commission & Others reported in AIR 1990 SC 1233, the relevant portion reads thus:-Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -7-
"Where advertisement in issued inviting applications for direct recruitment to category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or Government Orders, and if it further indicates the extent of reservation in favour of various categories, the selection of candidates in such a case must in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention."
[Emphasis Supplied]
18. The High Court of Uttaranchal went to hold that the impugned order suffers from illegality as the appointing authority of the petitioner therein is the University and the University has acted at the dictate of the State Government which has no power to ask for cancellation of an appointment made in accordance with the advertisement. The aforesaid judgment has been affirmed by the Apex Court Civil Appeal No.4494 of 2006 (State of Uttaranchal v/s Sandeep Kumar Singh & Others) by holding that the impugned order of the High Court does not appear to us to be legally flawed.
19. In the case of Anil Kishore Pandit v/s The State of Bihar Others (Civil Appeal No.1566 of 2024), the Apex Court in paragraph - 8 has held thus:-
"8. It is settled law that it is not open for an employer to change the qualifications prescribed in the advertisement midstream, during the course of the ongoing selection process. Any such action would be hit by the vice of arbitrariness as it would tantamount to denial of an opportunity to those candidates who are eligible in terms of the advertisement but would stand disqualified on the basis of a change in the eligibility criteria after the same is announced by the employer. Having applied for appointment in accordance with the terms prescribed in the advertisement, a candidate acquires a vested right to be considered in accordance with the said advertisement. This consideration may not necessarily fructify into an appointment but certainly entitles the candidate to be considered for selection in accordance with the rules as they existed on the date of the advertisement. To put it differently, the right of a candidate for being considered in terms of the advertisement stands crystalized on the date of the publication of the advertisement. Any subsequent amendment to the advertisement during the course of the selection process unless retrospective, cannot be a ground to disqualify a candidate from the zone of consideration."
[Emphasis Supplied] Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-07-2024 11:20:36 -8-
20. In the present case, it is seen that a show-cause notice was issued to respondent No.1 after a lapse of about eight years. Had the show- ause notice issued at the time of appointment itself, respondent No.1 would not have been deprived to avail other employments which were readily available to her in the year 2008 itself. Now after becoming overage, respondent No.1 would find very difficult to opt for any other job. The learned Single Judge has rightly applied the doctrine of promissory estoppel in the present case restraining the appellants from raising such objections after so many years particularly when respondent No.1 fulfills all the conditions mentioned in the advertisement and never suppressed any information and being appointed after following the rigorsof the selection process. Therefore, the learned Single Judge was right in coming to the conclusion that respondent No.1 cannot be left to suffer for life for no fault of her and is entitled for protection under Articles 14 & 21 of the Constitution of India.
21. Accordingly, this Court finds no error apparent on the face of record to interfere with the findings of the learned Single Judge. The present Writ Appeal, being bereft of merit and substance is hereby dismissed. No order as to costs."
16. In view of the aforesaid, we are in concordant with the view taken by the learned Single Judge and the same does not warrant any interference by this Court.
17. The present Writ Appeal, being bereft of merit and substance is hereby dismissed. The order passed by the learned Single Judge is hereby upheld.
18. So far as W.A. No.1544 of 2024 is concerned, the same also stands dismissed and direction given by the learned Single Judge in paragraph - 16 of the impugned order is also upheld.
Let a copy of this order be kept in the connected appeal also.
(S. A. DHARMADHIKARI) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 20-07-2024
11:20:36