Patna High Court
Rajive Nandan Mourya vs The State Of Bihar on 28 October, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.643 of 2021
In
Civil Writ Jurisdiction Case No.24171 of 2018
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Rajive Nandan Mourya Son of Late Thakur Prasad, H/o Sri Ashok Kumar
Ranjan, Near Ram Kutir, (Opposite Telephone Exchange, Anishabad) New
Bye Pass Road, Anishabad, P.S.-Gardanibagh, Anchal-Sadar, District-Patna.
... ... Appellant/s
Versus
1. The State of Bihar.
2. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
3. The Principal Secretary, Water Resources Department, Government of Bihar,
Patna.
4. The Joint Secretary, Water Resources Department, Government of Bihar,
Patna.
5. The Under Secretary, Water Resources Department, Government of Bihar,
Patna.
6. The Additional Secretary, Water Resources Department, Government of
Bihar, Patna cum Enquiry Officer.
7. The Executive Engineer, Planning and Monitoring Division No. 5, Water
Resources Department, Government of Bihar, Patna-cum Presenting Officer.
8. The Secretary, The Bihar Public Service Commission, Bailey Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Anjani Kumar (Aag4)
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 28-10-2024
In pursuance to our earlier order, Mr. Santosh Kumar
Mall, Principal Secretary, Water Resources Department,
Government of Bihar and Mr. Sanjiv Kumar Sinha, Additional
Secretary, Water Resources Department, Government of Bihar,
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Patna have appeared in person.
2. In the instant appeal, the appellant has assailed the
order of the learned Single Judge dated 08.10.2021, passed in
C.W.J.C. No. 24171 of 2018.
3. The appellant had joined the services of State of
Bihar as an Assistant Engineer on 23.06.1987 pursuant to
Advertisement No. 93/85 through the Bihar Public Service
Commission. He had claimed his candidature under Scheduled
Caste category with reference to the fact that he belongs to
'Chamar' Caste. His father was a resident of Uttar Pradesh and
he was in the Indian Railways and had been posted in the State
of Bihar. He has married a resident of Saran District (now
Siwan). In this background, the petitioner had obtained
residential certificate dated 03.09.2014 and Scheduled Caste
Certificate dated 04.09.2014 in the State of Bihar to claim
certain service benefits including monetary benefits and the
same was granted. In the year 2017, the official respondents
noticed that Domicile Certificate dated 03.09.2014 and
Scheduled Caste Certificate dated 04.09.2014 are not in
accordance with law with reference to the fact that he was not a
permanent resident of State of Bihar. It is to be noted that
domicile certificate is in order, for the reasons that he is a
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resident of State of Bihar at least from the year 1987, the date on
which he was selected and appointed on the Post of Assistant
Engineer, Water Resources Department, Government of Bihar.
Insofar as Scheduled Caste Certificate dated 04.09.2014 is
concerned, the disciplinary proceedings have been initiated on
both the counts, that he had obtained false certificate of
Domicile as well as Scheduled Caste Certificate. In the
departmental inquiry, the Inquiring Authority stated to have
found that he had obtained false certificates. For the purpose of
Caste Certificate, the State Government has enacted a law called
The Bihar Reservation of Vacancies in Posts & Services (for
Scheduled Castes, Scheduled Tribes and other Backward
Classes) Act 1991. Perusal of the Act, there is no provision for
cancellation of Caste Certificate obtained by the Government
Servant while misrepresenting. Be that as it may, Section 15
empowers for framing of Rules and it reads as under:-
"15. Power to make rules (1) The State Government
may make rules for carrying out the purposes of this
ordinance.
(2) In particular and without prejudice to the
generality of the foregoing powers such rules may
provide for all or any of the following matters, namely -
(a) Maximum age-limit for first recruitment to any
service or post.
(b) The minimum qualifying marks for direct
recruitment to any service or post.
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(c) Form in which every establishment shall submit
annual report to the department of Personnel and
Administrative Reforms regarding number of persons
recruited in such establishment.
(d) Any other matter which has to be made or any
other matter connected with or for the purpose of
carrying out the provisions of this ordinance.
Provided that every rule made under this
Section shall be laid, as soon as may be after it is
made, before each House of the State Legislature
while it is in session for a total period of fourteen
days which may be comprised in one session or
in two successive sessions and if, before expiry of
the session in which it is so laid or the session
immediately following, both the house agree in
making any modification in the rule or both the
Houses agree that the rule should be of no effect
as the case may be, so, however, that any such
modification or annulment shall be without
prejudice to the validity of any thing previously
done under that rule."
Underline supplied
4. The respondents have not framed any Rules insofar
as constitution of a committee to verify the certificate issued by
the competent authority insofar as SC/ST/OBC. In other words,
there is no cancellation of Domicile Certificate dated
03.09.2014 and Scheduled Caste Certificate dated 04.09.2014
under the relevant provisions of law. In the absence of
cancellation of Caste Certificate and Domicile Certificate, the
respondents have resorted to disciplinary proceedings and
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proceeded to impose a penalty of dismissal from service. Even
to this day, both the certificates have not been cancelled in the
manner known to the law and in terms of decision passed in
Kumari Madhuri Patil and Another vs. Addl. Commissioner,
Tribal Development and Others reported in (1994) 6 SCC 241.
Admittedly, the respondents have stated that insofar as the Caste
Certificate verification of the petitioner dated 04.09.2014 is still
pending consideration before the concerned authority and it is
stated that State Government is in receipt of report and further
action to be taken.
5. It is to be noted that, the State Government has
issued a Resolution dated 08th November 2007 and it was
notified in the Gazettee on the 19th October 2015. For issuance
of aforementioned Resolution and Gazettee notification, prima
facie, there is no source of power for the reasons that State
Government has failed to frame the Rules under Section 15 of
the Act, 1991. Learned counsel for the respondents submitted
that the aforementioned Resolution and Gazette notification is in
terms of the Hon'ble Supreme Court decision in the case of
Kumari Madhuri Patel & Ors. (cited supra). The
aforementioned decision for issuance of resolution and notifying
in the Gazzette is contrary to the Act, 1991. When the Act 1991,
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in particularly, Section 15 authorising the State Government to
issue Rules, the same has not been undertaken as on this day.
This issue stands left open to the petitioner as well as to the
respondents to take note of in pending cancellation of caste
certificate. Analysing the facts of the case that in the absence of
cancellation of Caste Certificate dated 03.09.2014, imposing
penalty of dismissal from service would be premature, the same
has not been examined by the learned Single Judge. In fact,
learned Single Judge has failed to take note of the Act, 1991
read with the Section 15. After framing Rules under Section 15,
the State Government was required to identify the competent
authority to cancel the alleged Caste Certificate. Reading of
number of Supreme Court decisions insofar as cancellation of
Caste Certificate is concerned the Hon'ble Supreme Court has
observed that in respect of any alleged Caste Certificate is
required to be cancelled, in that event respective State
Government is required to constitute verification and
cancellation of Caste Certificate Committee, normally, it is
headed by District Magistrate of the concerned District. These
are the lapses which have not been taken note of before the
initiation of departmental proceedings against the appellant on
07.07.2017. In other words, initially they should have resorted
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to cancel the Caste Certificate as well as Domicile Certificate to
the extent that appellant has mislead/misrepresented in
obtaining the aforementioned certificate. On cancellation of
such Caste Certificate it is only a question of misconduct
alleged to have been committed by the Government Servant
could be examined and proceed to impose any one of the
penalties which are mentioned in the Bihar C.C.A. Rules, 2005.
These issues have not been taken note of by the learned Single
Judge.
6. In the light of Co-ordinate Bench order dated
06.02.2023, second supplementary counter affidavit has been
filed on behalf of the respondent No. 3. In paragraph Nos. 7 to
10, it is contended as under:
"7. That it is stated that the answering
respondents sought instructions from the General
Administration Department, Bihar with regard to
queries made by the Hon'ble Court vide the aforesaid
order since the said department is concerned with
verification/determination of caste certificate of a
Govt. employee.
8. That it is stated further that the General
Administration Department sent its instruction vide
letter no. 3057 dated 13.02.2023 With regard to first
query made by the Hon'ble Court, it has been informed
that the Inspector General of Police, Weaker Sections,
CID, Bihar, Patna has been requested vide letter no.
4648 dated 07.04.2021 for verification/determination
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of caste certificate of the appellant. Reminders have
also been sent to the said authority vide letter no.
19297 dated 28.10.2022 and letter no. 21115 dated
28.11.2022. But verification report is still awaited.
9. That with regard to second query of the Hon'ble Court, it was informed vide the aforesaid letter that in compliance of order passed by the Hon'ble Supreme Court in Civil Appeal No. 5854/1994 (Kumari Madhuri Patil and others vs. Additional Commissioner, Tribes Development and others), State Level Scrutiny Committee has been constituted in General Administration Department of the State Govt, for verification and determination of castes. The said Committee has been authorized to make enquiry into complaints of forged caste certificates and submit enquiry report.
10. That with regard to third query of the Hon'ble Court, it was informed that no rules have been framed yet under Section 15 of the Bihar Act-3, 1992 but instructions issued by the General Administration Department vide resolution no. 3887 dated 08.11.2007 and resolution no. 1567 dated 05.02.2014 may be treated as provisions made under Section 15 of the Bihar Act-3, 1992."
Underline Supplied In terms of the aforementioned averments made, it is crystal clear that as on this day issue relating to cancellation of caste certificate is still pending consideration before stated to be identified authority in the light of Resolution dated 8 th November, 2007. It was notified in the Gazette on 19.10.2015 vide Annexure C series, therefore, resorting to disciplinary Patna High Court L.P.A No.643 of 2021 dt.28-10-2024 9/13 proceedings and concluding the same while imposing the penalty of dismissal from service is clearly premature. On this score also, order of the dismissal as well as order of the learned Single Judge are set aside.
7. It is necessary to take note of few judicial pronouncements insofar as cancellation of caste certificate followed by consequential actions like termination/dismissal from service and other actions, if any. Earliest judgement is in the case of Kumari Madhuri Patil and Another vs. Addl. Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241, paragraph No. 13 is relevant for the purpose of examination to proceed with cancellation of false caste certificate produced by the government servant in order to have certain service benefits. This judgement has been subsequently referred in number of judgements like in the case of Superintendent Of Post Offices and Ors. vs R. Valasina Babu reported in 2006 SCC Online SC 1412. In this case caste certificate was issued on 27.12.1980 and it was cancelled on 28.11.1990 followed by dismissal on 30.09.1992, therefore, one has to draw inference that before dismissal of a government servant for production of alleged false caste certificate, it is mandatory for cancellation of caste certificate in the light of Patna High Court L.P.A No.643 of 2021 dt.28-10-2024 10/13 principles laid down in Kumari Madhuri Patil's case (cited supra). In yet another decision of the Hon'ble Supreme Court in the case of Bhubaneswar Development Authority vs. Madhumita Das and Others reported in 2023 SCC Online SC 977, first respondent therein was appointed on 17.10.1998 to the post of Junior Assistant under Scheduled Castes category. Her Scheduled Castes certificate was cancelled on 16.08.2011, thereafter, she was subjected to disciplinary proceedings under CCA Rules and proceeded to dismiss her from service on 13.03.2012. Even on perusal of this decision, it is evident that before imposing of penalty of dismissal from service on the alleged allegations relating to production of false caste certificate one of the requirement is to cancel the caste certificate at the first instance. In the present case, as is evident from second supplementary counter affidavit filed on behalf of the third respondent, it is crystal clear that for cancellation of caste certificate matter is still pending consideration before the committee. The committee is stated to have submitted report. Pursuant to such report, further action is required to be taken by the disciplinary authority or competent authority.
8. Overall analysis of the aforementioned decisions in respect of production of false caste certificate and Patna High Court L.P.A No.643 of 2021 dt.28-10-2024 11/13 consequentially canceling the caste certificate and further taking action of imposing penalty of dismissal/termination, following are the key points namely :
(a) Intent is immaterial.
The Court has ruled that it does not matter, if the certificate was submitted fraudulently or due to a mistake.
(b) Protecting is harmful to good
governance.
The Court said that protecting ineligible people can harm good governance by allowing them to scarce resources and violate rights of eligible people.
(c) Scrutiny Committee's order is final.
The Scrutiny Committee's order to cancel and confiscate a false caste certificate is final and can only be challenged in the High Court
(d) Communicate to educational institution or appointing authority.
The Scrutiny Committee should immediately communicate the cancellation of false certificate to the educational institutions or appointing authority. The institution or authority should then cancel the admission or appointment without further notice to the candidate.
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(e) Verification of Certificate.
The government has instructed the appointing authorities to verify the authenticity of Scheduled Castes and Scheduled Tribes Certificates / OBC certificates through the competent authority and the certificate holder's permanent residence. If the verification reveals that the claim is false the candidate's service should be terminated.
Underline Supplied In the light of the aforementioned culled out points, in the present case, as long as caste certificate is not cancelled or confiscated a false caste certificate by the Caste Scrutiny Committee, the appointing authority cannot resort to disciplinary proceedings and to impose penalty, therefore, the impugned decision of the respondent insofar as imposing the penalty of dismissal from service on the appellant is technically premature in the light of principles laid down by the judicial pronouncements cited supra.
9. In the light of the above analysis, the appellant has made out a case so as to interfere with the impugned order of the State Government dated 30.07.2018 and order of the learned Single Judge dated 08.10.2021 passed in C.W.J.C. No. 24171 of 2018.
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10. Accordingly, they are set aside. The L.P.A. is allowed.
11. At this stage, it is to be noted that if the appellant was in service, he would have attained the age of superannuation and retired from his service on 31st July, 2021.
12. Be that as it may, the concerned authorities are hereby directed to take a fresh action for cancellation of both the certificates in accordance with law within a period of 6 months from the date of receipt of this order, failing which any action to be taken against the petitioner insofar as alleged false Caste Certificate and Domicile Certificate stands terminated. The concerned respondents are hereby directed to settle all his monetary and service benefits which are due to him on account of his retirement including pay fixation and other service benefits. The above exercise shall be completed within a period of three months from the lapse of six months from today.
(P. B. Bajanthri, J)
(S. B. Pd. Singh, J)
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