Central Administrative Tribunal - Mumbai
Date Of Decision : September 5 vs Union Of India on 5 September, 2013
1O.A.46/12 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI.
O.A.46/2012Date of decision : September 5, 2013.
Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A).
Mahendra Sheshanna Sattellu (Per.No.202129), Ex. Mill Wright, (Highly Skilled), T.No.A/04, Ammunition Factory, Khadki, Pune-411 003.
Residing at: 70/2, Ganesh Nagar, New Sangavi, Pune-411 027. .. Applicant.
( By Advocate Shri R.C. Ravlani ).
Versus
1. Union of India, through The Secretary, Department of Defence Production, South Block, New Delhi 110 011.
2. The Chairman, Ordnance Factory Board, 10-A, S.K. Bose Road, Kolkata-700 001.
3. The General Manager, Ammunition Factory, Khadki, Pune-411 003. ..Respondents. ( By Advocate Shri V.S. Masurkar ).
Order (Oral) Per : R.C. Joshi, Member (A).
In this Original, the Applicant has impugned Annexure A-1 order dated 17.01.2011 passed by Respondent No.3 and Annexure A-2 order dated 30.08.2011 passed by Respondent No.2.
2 O.A.46/122. Briefly, the Applicant was appointed as Mill Wright (Semi Skilled) with the Respondents on 14.07.1997 against the vacancy reserved for ST candidate. The Applicant's case was referred to the Schedule Tribe Certificate Scrutiny Committee, Pune for verification of his claim of belonging to Mannewar Tribe which is a ST. However, the claim of the Applicant belonging to Mannewar Tribe was rejected by the Caste Scrutiny Committee mainly on the ground that in School Register the caste of the father, maternal uncle, the Applicant's name, the sister's name and brothers name is written as Hindu Telugu. The Committee had also observed therein that the Applicant had manipulated the documents vide its order dated 26.09.2009. The Applicant was charge-sheeted and an inquiry under Rule 14 of CCS (CCA) Rules, 1965 was ordered. The Inquiry Officer submitted his report holding the charge as proved. The report of the Inquiry Officer was accepted by the Disciplinary Authority and vide Annexure A-1 order, the Applicant was removed from service order dated 17.01.2011. The Applicant preferred an appeal and vide order dated 30.08.2011, the Appellate Authority rejected the same. The Applicant thereafter preferred a Writ Petition No.5878/2009 before the Hon'ble Bombay High Court which was rejected vide 3 O.A.46/12 order dated 05.01.2010 (Annexure A-13).
3. The Applicant has relied upon the case of State of Maharashtra Vs. Milind and others [2001 SCC (L&S) 117] and has sought the following reliefs:
1. Quash and set aside the Removal orders at A-1 and A-2
2. protect the service of the applicant,
3. re-instate the applicant with continuity of service,
4. pay the back-wages from the date of Removal to date of re instatement,
5. The Hon'ble Tribunal may be pleased to pass any other orders, in the interest of justice.
4. We have gone through the pleadings, carefully perused the material available on record and have extensively heard learned counsel Shri R.C. Ravlani, on behalf of the Applicant and Shri V.S. Masurkar, learned counsel on behalf of the Respondents.
5. It is seen from the case papers that the Applicant was appointed to the post of Mill Wright (Semi Skilled) on 14.07.1997 against the vacancy reserved for ST category. At the time of his appointment, the Applicant had submitted Caste Certificate issued by the Tahsildar and Executive Magistrate, Pune dated 30.10.1991 that he belongs to Mannewar which is a Scheduled Tribe. On referal of 4 O.A.46/12 his case to the Scheduled Tribe Certificate Scrutiny Committee, Pune for verification of his claim, the Committee passed a reasoned order vide dated 26.03.2009 (Annexure A-7) after an enquiry was conducted by the Vigilance Cell. The Applicant was also given a personal hearing on 26.03.2009. However, the Applicant neither submitted his explanation nor appeared before the said Scrutiny Committee. After elaborately discussing the reasons, the said Committee came to the conclusion that the Applicant did not belong to Mannewar Tribe which is a Scheduled Tribe and, therefore, his claim was held invalid. The Respondents thereafter issued Memorandum of Charge vide dated 06.07.2009 containing the following Article of Charge:
Article I That the said Shri Mahendra S Sattellu, Tk.No. A/04, Mill Wright (HS), (Per.No.202129), A Section, of Ammunition Factory Khadki, is charged with gross misconduct viz.: Submission of false caste certificate in support of his claim that he belonged to Scheduled Tribe community and furnishing false information about his caste for gaining employment to the post reserved for Scheduled Tribes. This is also in violation of sub-rule 1(i) & (iii) of Rule 3 of CCS(Conduct) Rules, 1964. The decision of the Caste Scrutiny Committee was challenged by the Applicant before the Hon'ble Bombay High Court Mumbai in Writ Petition No.5878/2009.5 O.A.46/12
However, the Hon'ble High Court rejected the Writ Petition vide order dated 05.01.2010 holding that no fault can be found with Scrutiny committee regarding their findings that the Applicant had failed to prove that he had belonged to Mannewar Tribe.
6. The Inquiry Officer submitted his report vide dated 06.07.2009 holding that the Article of Charge framed against the Applicant vide dated 06.07.2009 stands proved. A copy of the inquiry report was given to the Applicant and the Disciplinary Authority vide Annexure A-1 order dated 17.01.2011 imposed the penalty of removal from service with immediate effect. The Applicant preferred an appeal against the order passed by the Disciplinary Authority. However, the Appellate Authority vide order dated 30.08.2011 rejected the same.
7. The Applicant in the present Original Application has relied upon the case of State of Maharashtra Vs. Milind and others [2001 SCC(L&S) 117]. We have perused the said order (supra). In the case of State of Maharashtra Vs. Milind and others, the Respondent No.1 (Milind Katware) had got admission as ST candidate to MBBS Degree course for the year 1985-86 on the strength of SC Certificate issued to him by the Competent Authority. The 6 O.A.46/12 Hon'ble Supreme Court held as under: The respondent joined the medical course for the year 1985-86. Almost 15 years have since passed. He is stated to have already completed the course and may be practising as a doctor. In this view and at this length of time it is for nobody's benefit to annul his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to the respondent. If any action is taken against the respondent, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practising as a doctor. But he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. Moreover, any appointments that have become final shall remain unaffected by the instant judgment.
(Para 38)
8. After the Hon'ble Supreme Court decided the case (supra), the Department of Personnel & Training vide OM dated 29.03.2007 issued the following instructions:
2. A question has been raised whether in view of the above referred judgement, the appointments made against the vacancies reserved for SCs/STs/OBCs on the basis of false SC/ST/OBC certificates shall not be disturbed if such appointments have been made final or are continuing for a long time.
3. The matter has been examined in consultation with the Department of Legal Affairs and it has been found that admissions and appointments of some candidates in the case of Milind andin some 7 O.A.46/12 other similar cases were not annulled by the Supreme Court as a special case keeping in view the special circumstances of those cases. The relief accorded by the Supreme Court was specific relief provided only to the candidates who were party in those cases. The cases other than those protected by the specific order of the Apex Court should be dealt with in accordance with the instructions contained in this Department's OM No.11012/7/91-Estt(A) dated 19.5.1993 which provides as follows:
Wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc, for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If, he is a probationer or a temporary Government servant, he should be discharged or his services should be terminated. If he has become a permanent Government servant, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed.
4. The above referred instructions are strengthened by the observations of the Supreme Court in Milind Kumar's case (SUPRA) to the effect that if the benefits of reservation are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their suffering will continue. Allowing the candidates not belonging to the reserved categories to have the benefit of reservation either in admissions or appointments would lead to making mockery of the very reservation against the mandate and scheme of Constitution.
5. Contents of this OM may be brought to the notice of all concerned. 8 O.A.46/12 Therefore, a careful reading of the Milind Katware's case (supra) it is clear that the Applicant's claim would not come within the ambit of relief granted by the Hon'ble Supreme Court in the Milind Katware's case.
9. The learned counsel on behalf of the Respondents relied upon Full Bench decision of the Hon'ble High Court in the case of Vandana Bharat Kauthalikar Vs. State of Maharashtra and others in Writ Petition No.8090/2007 decided on 18.07.2009.
The Hon'ble Full Bench held as under:
After considering all the relevant decisions of the Apex Court, in paragraphs 13 and 14, the Full Bench has held thus:
13. Having regard to the legal position that emerges from the above referred judgments we record the following conclusions and answer the question framed :
(1) The observations/directions issued by the Supreme Court in para 36 of the judgment in the case of State Vs. Milind, reported in 2001(1) Mh.L.J.(SC) 1 is not the 'law declared by the Supreme Court' under Article 141 of the Constitution of India.
(2) The said observations/directions are issued in exercise of powers under Article 142 of the Constitution.
(3) The said observations/directions have no application to the cases relating to appointments and are restricted to the cases relating to admissions.
(4) The protection, if any, to be granted in the facts and circumstances of the case would depend upon the exercise of discretion by the Supreme Court under Article 142 of 9 O.A.46/12 the Constitution. As the powers under Article 142 are not available to the High Court no protection can be granted by this Court even in cases relating to admissions.
14. In the result we hold that the judgment of the Division Bench in the case of Union of India vs. Deepak Y. Gotefode, 2008(1) Mh.L.J. 790 lays down correct position of law and we further hold, with due respect to the learned Judges, that the judgment in the case of Prashant Haribhau Khawas vs. State of Maharashtra and ors., 2008(2) Mh.L.J. 322 does not lay down the correct law. The reference is answered accordingly. The writ petitions be placed before the respective Division Benches for hearing and final disposal in the light of this reference Judgment.
10. In view of the above, therefore, it is clear that the Hon'ble Supreme Court had issued the directions in the case of State of Maharashtra vs. Milind & others (supra) in exercise of power under Article 142 of the Constitution. Therefore, no relief can be granted by this Tribunal in the present Original Application.
11. In the result, the Original Application is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.