Central Administrative Tribunal - Mumbai
Ku. Poonam Rameshrao Limbanna vs Union Of India on 24 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI
CAMP AT NAGPUR.
ORIGINAL APPLICATION No: 2096 of 2006.
Dated this Thursday the 24th day of February, 2011.
CORAM : HON'BLE SHRI JOG SINGH, MEMBER (J).
HON'BLE SHRI SUDHAKAR MISHRA, MEMBER (A).
Ku. Poonam Rameshrao Limbanna,
R/at : C/o- Shri. Sudhir P.
Dongarwar, Shriram Apartment,
Flat No. S-4, Opp. New L.T.V.
School, Mitra Nagar Road,
Chandrapur 442401 (M.S.) ... Applicant
(By Advocate Shri M.W. Harsulkar)
VERSUS
1. Union of India
Ministry of Communication,
Through Secretary/Director
General (Post), Dak Bhawan,
New Delhi 110001.
2. The Superintendent,
Railway Mail Services,
'F' Division,
Nagpur 440001.
3. The Director Postal
Services, Nagpur region,
O/o Post Master General,
Nagpur region,
Nagpur - 440010. ... Respondents
(By Advocate Shri R.S. Sunderam)
O R D E R
Per Shri Jog Singh, Member (J).
By way of present O.A., the applicant has approached this Tribunal for the following reliefs :
"(i) Call for the Record of the case from the Respondents.
(ii) Quash and set aside the order dt.27/4/2005 (Ann.-A-1), passed by Disciplinary Authority, imposing the punishment of reducing by seven stages from Rs. 4700/- to Rs. 4000/- in the time scale of pay of Rs. 4000-100-6000/- for the period of 12 years with immediate effect. It is further directed that the applicant will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing her future increments of pay.
And The order of so called Revising Authority dt. 2/5/2006 (Ann.-A-2), imposing the punishment of Removal from Govt. service.
(iii) Direct the respondents to maintain the order dt. 23/6/2005 (Ann.-A-13).
(iv) Any other relief deemed fit and proper in the circumstances of the case may kindly be granted.
(v) Allow the Application with cost."
2. The applicant in this O.A. is challenging the impugned order dated 27.04.2005 passed by the Disciplinary Authority, reducing her pay by seven stages from Rs. 4700-4000 in the pay scale of Rs. 4000-6000 for a period of 12 years. The applicant was not to earn any increment during the said period and it was to have the effect of postponing future increment of pay also. The applicant also impugns the order dated 02.05.2006 passed by the Revisionary Authority under Rule 29(1)(v) of the CCS (CCA) Rules, 1965, removing the applicant from service altogether.
3. Briefly stated the facts of the case are that the applicant claims to belong to Schedule Tribe community and was, therefore, appointed as Sorting Assistant by order dated 07.10.1997 in the Railway Mail Services, Chandrapur. The charge sheet was, however, served on her on 03.07.2002 on the ground that she submitted false caste certificate to secure job. The applicant submits that the Inquiry Officer by his report dated 08.09.2003 held that the charges were not proved against the applicant. The disciplinary Authority, however, sent a disagreement note along with enquiry report to the applicant by order dated 05.02.2005 and after considering the applicant's representation thereto, decided to impose the punishment of reduction in the pay scale by seven stages for 12 years by order dated 27.04.2005. The applicant was directed to be treated as belonging to 'General' category for all future purposes. The Appellate Authority, however, reviewed the whole matter and issued a show cause notice on 05.07.2005 as to why the applicant should not be removed from the service. The applicant submitted representation and also additional grounds and information. However, the same were not found favourable and finally the order of removal from service was passed by the competent authority on 02.05.2006. The applicant has now approached this Tribunal contending that it is a case of 'no evidence' and the order of removal from service is against the law laid down by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Milind & Others [2001 SCC (L&S) 117]. The applicant, therefore, seeks a direction to the respondents to continue him in service as a general candidate employee.
4. The respondents have filed their reply dated 11/12.03.2008 and have stated that the applicant was appointed against the vacancy reserved for Scheduled Tribe community on production of caste certificate dated 11.07.1986. Later on, the Scrutiny Committee by its order dated 18.05.2002 held that the applicant did not belong to S/T community. In this connection, the respondents submit that the S.T. Caste Certificate Scrutiny Committee, Nagpur, vide order dated 06.05.2002 held that the applicant did not belong to the 'Chhatri' S.T. Community, and as such, her claim towards the same is invalid.
5. The caste certificate granted by the Executive Magistrate, Nagpur vide Memo No. RC 1107/MRC-81/85-86 dated 11.07.1986 was also cancelled and confiscated by the Caste Scrutiny Committee. Similarly, as regards the order passed by the Appellate Authority, the respondents submit that the Director Postal Services, Nagpur decided the appeal and communicated to the applicant that the appeal is preferred by the applicant late without any justified reason and that too after commencement of revision proceeding by the Appellate Authority under Rule 29(1)(v) of CCS (CCA) Rules, 1965. It is further submitted that as per Rule 25 of CCS (CCA) Rules, 1965, no appeal preferred shall be entertained unless it is preferred within a period of 45 days from the date of receipt of a copy of punishment order, against which appeal is made, provided that the Appellate Authority may entertain the appeal after the expiry of the said period after it is satisfied that the appellant has sufficient cause for not preferring the appeal in time. The respondents submit that the order dated 27.04.2005 was received by the applicant on 30.04.2005. The period of 45 days for preferring an appeal had elapsed. It is also submitted by the respondents that applicant had also not furnished any reason for delay in submission of her appeal and, as such, the authority has correctly acted as per rules and decided the appeal accordingly. The respondents, thus, submit that Rule 29(1)(v) of CCS (CCA) Rules, 1965, empowers the Appellate Authority to modify/enhance the punishment order issued by the Disciplinary Authority.
6. The applicant has filed rejoinder in the matter and has contended that she was appointed against a permanent vacancy reserved for ST candidate after going through selection process. It is further submitted that the caste of the applicant as 'Chhatri' has been entered into the record of Primary School by her father, but the Caste Scrutiny Committee declared that the applicant does not belong to the 'Chhatri' community, therefore, the applicant is innocent and in no way responsible for the entry made by her father in the record of the Primary School. The applicant, therefore, submits that the charge of production of false caste certificate cannot be proved against her.
7. We have heard the learned counsel for the parties at length and have perused the pleadings and documents annexed therewith.
8. Undoubtedly, the applicant was appointed against the vacancy reserved for Scheduled Tribe. It is also the admitted position that the applicant submitted a caste certificate to prove her claim as a Schedule Tribe candidate. The defence now raised by the applicant that her father had wrongly entered the said caste in the School record is totally unacceptable. In this connection, we have minutely perused the report submitted by the Caste Scrutiny Committee, Nagpur. We note that the applicant was given fair opportunity to present her case by the said Scrutiny Committee. In order to verify the Tribal claim of the applicant, the said Scrutiny Committee conducted proper enquiry through Police Vigilance Cell and other associated research officers. In all the documents collected by the Scrutiny Committee, it was noted that the caste of the applicant's close relative was 'Telanga' and not 'Chhatri'. In this background, the Scrutiny Committee held that - after consideration of all the documents, facts and in exercise of the powers vested vide Government resolution & Corrigendum quoted in the preamble at Sl. No. 1 to 3 above, the Caste Scrutiny Committee has come to the conclusion that Ku. Punam Ramesh Limbanna does not belong to the Chhatri, scheduled tribe and as such her claim towards the same is held invalid. And her Caste Certificate granted by the Executive Magistrate, Nagpur vide R.C. No. 1107/MRC-81/85-86 dated 11.07.1986 is hereby cancelled and confiscated.
9. The above said Scrutiny Committee consisted of four members, including Additional Commissioner Tribal Development (Presiding Officer), Deputy Director (Member-Secretary), Sr. Research Officer (Member) and Research Officer (Member). The above said findings of the Committee, by which the Caste Certificate dated 11.07.1986 has been cancelled, have been arrived at according to the law laid down by the Hon'ble Supreme Court in the case of Madhuri Patil and Vandana Sonkusare's judgment reported in AIR 1995 SC 94.
10. At this stage, we may turn to the Judgments relied upon by the parties.
11. In Milind's case (supra), he had obtained admission in a Medical Course in the year 1985-86 by producing a false caste certificate that he belonged to Halba Caste. The same was invalidated by the Scrutiny Committee, later on. On being challenged before the Hon'ble High Court, the same was allowed. The appeal preferred by the State of Maharashtra was, however, allowed by the Constitutional Bench of the Hon'ble Supreme Court on 28.11.2000 i.e. almost after 1 = decades from the date Milind got admission in MBBS. In the meanwhile, he had started practicing as a Doctor also.
12. In this background, the Hon'ble Supreme Court stated that huge amount of public money was spent on every student studying in Medical Course and a qualified Doctor on whom such money had been spent does service to the Society. It means the Society has an interest in the services of such person despite having obtained a professional degree by procuring a false caste certificate. These appear to be motivating factors for protecting the Degree of Milind by the Hon'ble Supreme Court with a clear finding that he would not take any advantage as being a member of Scheduled Tribe for any other purpose. This Judgment, therefore, does not help the case of the applicant in any manner.
13. The rationale underlying in Milind's Judgment has further been exhaustively highlighted in the case of Additional General Manager Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde {(2007) 2 SCC (L&S) 152. Para 13 of the Judgment is relevant for the present purpose and is reproduced hereinbelow :
The principle, which seems to have been followed by this Court is, that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. Here again no hard-and-fast rule can be laid down. If the falsehood of the caste certificate submitted by the student is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted.
14. In the above said case, the said Shri Suresh Ramkrishna Burde had obtained appointment in Bharat Heavy Electricals Limited, Hyderabad as a Clerk in 1982 by claiming that he belonged to `Halba' ST community. The Caste Certificate was cancelled by the Scrutiny Committee as it was found to be false. It was challenged before the Hon'ble Bombay High Court Bench at Nagpur and the said Writ Petition was, however, withdrawn with liberty to file a representation before the Competent Authority in view of the observations of the Hon'ble Apex Court in Milind's case. The said representation was turned down and the request for protecting his services was also rejected by the Department. Yet another Writ Petition was preferred before the Hon'ble Bombay High Court Bench at Nagpur and the same was disposed of with a direction to the respondents to reinstate Shri Borde with an undertaking that he will not claim any other benefits on the strength of belonging to `Halba' ST community. He was to be treated, in fact, as open category candidate as per Hon'ble High Court's direction. The said Judgment of Hon'ble Bombay High Court Bench at Nagpur dt. 4th August, 2004 was set aside by the Hon'ble Supreme Court with the above said observations reproduced hereinabove. The Judgment of Hon'ble Supreme Court in Suresh Ramkrishna Burde is dt. 10th May, 2007, whereas, another Judgment relied upon by the applicant in Punjab National Bank v. Vilas s/o Govindrao Bokade {2007 (3) Mh.L.J. 805} dt. 22.3.2007.
15. Both Judgments being decided by the Hon'ble Supreme Court of India, we are however, inclined to follow the Judgment later in point of time i.e. Suresh Ramkrishna Burde. This inclination of ours, is based on the analysis of jurisprudence as warranted by the Hon'ble Supreme Court itself in earlier certain epoch making Judgments on the point involved in the present OA. First such case is decided by the Hon'ble Supreme Court on 9.9.1994 in the case of Kumari Madhuri Patil & Anr. (supra). In Kumari Madhuri Patil's case, the Hon'ble Supreme Court also considered following earlier Judgments pertaining to the validity etc. of caste certificates :-
(i) Marri Chandra Shekhar Rao v. Dean Seth G.S.Medical College{(1990) 3 SCC 130}
(ii) Action Committee on issue of Caste Certificate to Scs and Sts in the State of Maharashtra v. Union of India {(1994) SCC 244}.
16. In the case of Kumar Madhuri Patil, the two girls viz. Ms.Suchitra and Madhuri, daughters of one Lakshman Pandurang Patil applied to the Tahsildar, Andheri, Bombay in November, 1989 for issuance of a caste certificate as `Mahadeo Koli', a Scheduled Tribe. The Sub-Divisional Officer, Bombay Suburban District, however, refused to issue such certificate holding that Ms.Suchitra was not a Scheduled Tribe, as she did not belong to `Mahadeo Koli Tribe'. She filed an appeal before the Additional Commissioner, Konkan Division Bombay. In the meanwhile, she also preferred a Writ Petition No.3515/90 before the Hon'ble High Court of Bombay which was disposed of with a direction to the Additional Commissioner to dispose of her appeal. As Ms.Suchitra had sought admission in Medical College, the Dean of the said College was also directed to allow Ms.Suchitra to appear in interview and admit her in the college if she was otherwise found fit. Relying upon the Judgment of Subhash Ganpatrao Kabade v. State of Maharashtra in which `Koli' was held to be `Mahadeo Koli', the Additional Commissioner directed the Tahsildar to issue the caste certificate which was done by the latter.
17. Based on the above said certificate granted to Ms.Suchitra, Ms.Madhuri, the younger sister also applied for the same before the Divisional Executive Magistrate, Greater Bombay and the certificate was issued to her and she also got admission to BDS Course in the year 1992 showing her caste status as Tribal i.e. `Mahadeo Koli'. Somehow she sought confirmation from the verification committee as to her caste status. A Joint Proceedings were conducted by the Verification Committee into the certificates issued to the two sisters and after calling upon the father of the two girls to furnish detailed informations in the prescribed proforma regarding his family background, ancestory, etc., came to the conclusion that the two certificates issued were wrong and based on a mis-conception as to the equivalence of `Mahadeo Koli' with `Koli'. The two caste certificates were cancelled and confiscated by the said committee by its order dt. 26th June, 1992. It was held that `Koli' as a caste was recognized as OBC in the State of Maharashtra and not `Mahadeo Koli' which is a Scheduled Tribe. It was held on fact that Koli's in Maharashtra are mainly fishermen by caste and by profession and reside mostly in Maharashtra Coastal area and Kolis have even different sub-castes. On the contrary, Mahadeo Kolis reside in hill regions, they indulge in agriculture and also gather minor forest produce and sell them in the market as an avocation. Based on the above said factual findings by the Scrutiny Committee which were arrived at after affording sufficient opportunity to the parties concerned, the Hon'ble Supreme Court held that the cancellation of a caste certificate issued by the Executive Magistrate concerned were illegal. The Hon'ble Supreme Court also over-ruled the Division Bench Judgment of the Hon'ble High Court of Bombay in the case of Subhash Ganpatrao Kabade holding that The assumption of the Division Bench of the High Court in Subhash Ganpatrao Kabade case that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible.
18. The Hon'ble Supreme Court after analysing the whole constitutional scheme regarding grant and cancellation etc. of caste status certificates, felt the need for streamlining the whole system. In para 13 of the Judgment, the Hon'ble Supreme Court has categorically noted that :-
13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or doubtful or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/ parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.
19. Lastly, placing reliance on O.M. dated 10.08.2010 issued by D.O.P.T., the applicant has submitted that her appointment being prior to 28.11.2000, she is entitled to continue in service. We have minutely analyzed the said O.M. dated 10.08.2010. It is not applicable to the case of the applicant. A perusal of the said O.M. clearly reveals that it applies to the caste of Halba Koshti/Koshti. Undoubtedly, the applicant belongs to 'Telanga' and the certificate produced by her at the time of her initial appointment shows that she belongs to 'Chhatri'. The said Caste Certificate has been invalidated by the Caste Scrutiny Committee and, as such, the reliance placed by the applicant on the O.M. dated 10.08.2010 is totally misplaced. The applicant has been charge-sheeted for producing bogus caste certificate to claim benefit of reservation and also for giving false declaration for securing appointment. Both the charges having been proved in the departmental proceedings, the punishment in question has been imposed on the applicant.
20. In view of the above discussion of law and fact, the decision of the disciplinary authority or that of the Appellate Authority to remove the applicant from service cannot be held to be unjustified. The O.A., therefore, fails and is hereby dismissed. No order as to costs.
(SUDHAKAR MISHRA) (JOG SINGH) MEMBER (A) MEMBER (J) os*