Central Administrative Tribunal - Allahabad
Chandra Pal Singh vs M/O Communications on 31 October, 2017
(Reserved on 11.10.2017)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABADBENCH, ALLAHABAD
This the 31st Day of October, 2017
Hon'ble Dr. Murtaza Ali, Member J.
Hon'ble Mr. Gokul Chandra Pati, Member A.
Original Application No. 330/796/2014
(U/S 19, Administrative Tribunal Act, 1985)
Chandra Pal Singh, s/o Late Puran Singh, aged about 43 years
and resident of Village & Post - Kamala via Haupura, District -
Bijnor.
...............Applicant
VERSUS
1. Union of India through the Secretary, Ministry of
Communication and Information Technology,
Government of India, Department of Post, Sansad Marg,
New Delhi.
2. Sub Divisional Inspector of Post Offices, South Sub
Division, Bijnor.
3. Superintendent of Post Offices, Bijnor Division, Bijnor.
4. Chief Post Master General, U.P. Circle, Lucknow.
.................Respondents
WITH
Original Application No. 330/1451 / 2014
(U/S 19, Administrative Tribunal Act, 1985)
Chandra Pal Singh, s/o Late Puran Singh, aged about 43 years
and resident of Village & Post - Kamala via Haupura, District -
Bijnor.
...............Applicant
VERSUS
1. Union of India through the Secretary, Ministry of
Communication and Information Technology,
Government of India, Department of Post, Sansad Marg,
New Delhi.
2 O.A No. 796/2014
with
O.A No. 1451/2014
2. Sub Divisional Inspector of Post Offices, South Sub
Division, Bijnor.
3. Superintendent of Post Offices, Bijnor Division, Bijnor.
.................Respondents
Advocates for the applicant :- Shri O.P. Gupta
Advocate for the Respondents:- Shri Praveen Shukla
ORDER
DELIVERED BY:-
HON'BLE MR. GOKUL CHANDRA PATI, (MEMBER-A) Both the O.As were heard together, as requested by the counsels for the applicant and respondents and are disposed of by this common order.
2. The applicant has filed O.A No. 796/2014 for quashing the order dated 23.11.2012 (Annexure A-1 to the O.A) passed by the Superintendent of Post Offices, Bijnor Division (Respondent No. 3) reverting the applicant from the post of Postman to Gramin Dak Sevak (in short GDS). Reliefs in this O.A also include direction to the respondents to re-promote him to the cadre of Postman and to regularize the intervening period from 23.11.2012 till the date of re-promotion in Postman cadre with consequential benefits.
3 O.A No. 796/2014
with O.A No. 1451/2014
3. The brief facts, as stated in the O.A, are that the applicant was appointed as GDS BPM on 14.07.1992. Pursuant to the Notification dated 18.08.2009 (Annexure A-2), he appeared in selection process for promotion to the post of Postman cadre. The applicant was declared successful in the selection and was promoted as Postman in Hassupura S.O vide order dated 15.01.2010 (Annexure A-5). Thereafter, the applicant received a notice dated 31.08.2012 (Annexure A-6) for cancellation of the appointment as Postman on the ground that at the time of submission of application he did not submit his OBC certificate in the prescribed format, as a result of which his selection in the post of Postman under OBC quota is stated to be incorrect and invalid. The applicant submitted his reply / representation dated 10.09.2012 (Annexure A-7) to the Superintendent of Post Offices, Bijnor (Respondent no. 3). Thereafter, the respondent no. 3 passed the impugned order dated 23.11.2012 by which the selection and appointment of the applicant on the post of Postman was stated to be against the rules and hence, it was cancelled. Against this order, the applicant has filed the O.A No. 796/2014.
4. The respondents in their Counter Affidavit (in short CA) have stated that the OBC certificate submitted by the applicant alongwith his application for the post of Postman was in State 4 O.A No. 796/2014 with O.A No. 1451/2014 Govt. format and he subsequently submitted the certificate in Central Govt. format which was issued on 05.02.2009 by the Tehsiladar, Dhampur. This certificate dated 5.02.2009 was found to be bogus/forged as informed by the Tehsildar, Dhampur vide his letter dated 24.08.2011 (Annexure CA-6 to the CA). This fact was brought to the notice of the respondents when they inquired into the matter on receipt of a complaint from one Ramu Singh. Accordingly the selection of the applicant as Postman was found to be irregular on ground that the applicant enclosed the OBC caste certificate in State Govt. format with the application and subsequently submitted the certificate dated 5.02.2009 issued by Tehsildar, Dhampur in Central Govt. format which was found to be a bogus/forged document on inquiry. Due to this, the appointment of the applicant was found to be irregular for which the office of the Post Master General, Bareilly directed the Superintendent of Post Offices, Bijnor to cancel the appointment of the applicant as Postman. Accordingly a show cause notice was issued vide letter dated 31.08.2012 and on consideration of the representation / reply dated 10.09.2012 (Annexure CA-10) of the applicant, the appointment of the applicant to the post of Postman was cancelled by the respondents vide the impugned order dated 23.11.2012.
5 O.A No. 796/2014
with O.A No. 1451/2014
5. In the Rejoinder Affidavit, the applicant denied the facts in the CA and stated that since there was no instruction to submit caste certificate in the Central Government format, the applicant had submitted his certificate in the proforma as issued by the State Government on 15.06.1992 alongwith the application for the post of Postman. The applicant also stated that neither the caste certificate dated 05.02.2009 was obtained by him from the office of Tehsildar, Dhampur nor it was submitted by him to the respondents. Later on he submitted the OBC certificate dated 5.02.2010 to the respondents in Central Government format. He was not aware of the circumstances as to how the forged certificate dated 05.02.2009 issued by Tehsildar, Dhampur was found in his record. Therefore, the applicant cannot be faulted for the act which he has not committed. Accordingly, the impugned cancellation order dated 23.11.2012 is illegal, arbitrary and is liable to be quashed.
6. Heard Shri O.P. Gupta, learned counsel for the applicant and Shri Praveen Shukla, learned counsel for respondents at length.
7. Learned counsel for the applicant reiterated the facts mentioned in the O.A and submitted that the applicant was orally asked by the respondent authorities to submit OBC 6 O.A No. 796/2014 with O.A No. 1451/2014 certificate in Central Government format. Accordingly he has submitted his OBC certificate dated 05.02.2010 in Central Government format (Annexure A-9) to the respondents, but the said certificate has not been taken into cognizance by the respondents. It has been further submitted that the notification dated 18.08.2009 in response to which the applicant applied for the post of Postman did not mention that the of OBC certificate in Central Government format has to be enclosed. Therefore, the applicant had enclosed OBC certificate dated 15.06.1992 (Annexure A-8) received by him in the State Government format. However, subsequently on oral instruction from the respondents, the applicant had submitted the OBC certificate dated 05.02.2010 in Central Government format (Annexure A-
9) received from the office of Tehsildar, Dhampur.
8. It was submitted that subsequently, M.A No. 2265/2016 was filed by the applicant enclosing therewith a copy of letter dated 19.02.2016 of Tehsildar, Dhampur. Learned counsel has submitted that the Tehsildar, Dhampur has confirmed the genuineness of the OBC caste certificate dated 05.02.2010 issued to the applicant.
7 O.A No. 796/2014
with O.A No. 1451/2014
9. Learned counsel for the applicant also submitted that for submission of forged OBC certificate, the applicant has been served with a charge sheet dated 29.08.2014 against which he has filed the O.A No. 1451/2014. The applicant submitted his reply to the charge sheet on 09.10.2014 denying the charges. It is the contention of the applicant that the SPOs, Bijnor without considering the submissions made in reply dated 09.10.2014 decided to hold inquiry and appointed Inquiry Officer and Prosecution Officer vide letter dated 13.10.2014. This letter is also the subject matter of challenge in the O.A No. 1451/2014.
10. Learned counsel for respondents reiterated the facts in the CA and emphasized that the certificate dated 05.02.2009 with the signature of Tehsildar has been submitted by the applicant and this was found to be forged during the inquiry by the respondents. It was submitted that in view of the irregularities in the caste certificate furnished by the applicant, his appointment as Postman has been cancelled and the applicant has been chargesheeted for submitting a forged certificate dated 5.02.2009. Hence the O.As are devoid of any merit.
11. We have carefully considered the materials on record and the submissions made by the learned counsels. Case of the respondents is that an inquiry was conducted after receipt of 8 O.A No. 796/2014 with O.A No. 1451/2014 the complaint from one Ramu Singh about selection of the applicant as Postman and the said selection was found to be irregular due to which a show cause notice dated 31.08.2012 was issued to the applicant. On perusal of the show cause notice dated 31.08.2012 issued by respondent No. 3, it is seen that the allegations against the applicant mentioned in the said notice was non-submission of the OBC caste certificate in the prescribed format with the application submitted by the applicant, which was overlooked by the respondents by mistake, while selecting him as Postman in OBC quota, hence his selection as Postman is irregular and against the rules. It is noted that there is no mention in the show cause notice dated 31.08.2012 (Annexure CA-9) about submission of forged OBC caste certificate dated 5.02.2009 by the applicant, particularly when Tehsildar in his letter dated 24.08.2011 (Annexure CA-6) had informed the respondents that his office has not issued the certificate dated 5.02.2009. In reply to the show cause notice, the applicant in his representation dated 10.09.2012 (Annexure CA-10 to the CA and Annexure A-7 to the OA) has mentioned that at the time of submission of his application, he has submitted the OBC caste certificate dated 15.06.1992 in the State Government format and has submitted the OBC caste certificate dated 5.02.2010 in the Central Government format after being instructed by the respondents. It was also 9 O.A No. 796/2014 with O.A No. 1451/2014 mentioned that the applicant was selected and appointed as Postman since 2010 and as per Government instructions the OBC certificate was required to be cross-checked by the respondents for its genuineness before issue of appointment order, hence cancellation of his selection after more than two years would be against rules.
12. However, these points mentioned in applicant's representation dated 10.09.2012 have not been discussed or considered by the respondent No. 3 while passing the impugned order dated 23.11.2012, although in the said order it was stated that the respondent No. 3 had examined the representation dated 10.09.2012 of the applicant. Applicant's contention that he submitted caste certificate in State Govt. format alongwith the application has been confirmed by the respondents in the counter affidavit, which in paragraph 3 states:
".....The applicant also submitted his application to appear in the said examination alongwith caste certificate in State Government proforma, but he failed to submit his caste certificate of OBC in Central Govt. proforma........."
The paragraph 11 of the CA also reiterated same stand, apart from stating that the applicant submitted the certificate dated 10 O.A No. 796/2014 with O.A No. 1451/2014 5.02.2009 in Central Govt. format after the result was declared and this certificate was found to be forged. Paragraph 11 of the CA also stated that the OBC caste certificate dated 5.02.2010 in Govt. of India format can not be accepted for the examination for the Postman, conducted on 8.11.2009.
13. In view of the above, the reason for which the selection of the applicant to the post of Postman under OBC quota and his appointment has been cancelled in the impugned order is non- submission of OBC caste certificate in Central Govt. format. Applicant had submitted caste certificate in State Govt. format as stated in the CA and this certificate was accepted by the respondents and the applicant was allowed to sit in the examination as OBC candidate and issued appointment letter as Postman after being selected on the basis of the examination. The settled position of law in such cases has been the judgment of Hon'ble Supreme Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board And Another reported in 2016 SCALE 2 547, which has observed:
"4. The necessary relevant facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder: the respondent Delhi Subordinate Services Selection Board (hereinafter referred to as "the Dsssb") invited applications for selection to the post of Staff 11 O.A No. 796/2014 with O.A No. 1451/2014 Nurse in the Department of Health and Family Welfare, Government of NCT of Delhi by way of publishing Advertisement No. 09/2007 in the newspaper. The last date of submission of the application form in the advertisement for the said post was 21-1-2008. The appellant submitted his application form before the due date and was subsequently issued the admit card to appear in the examination. Having appeared in the examination, he was shortlisted for selection. However, his name did not appear in the final list of selected candidates. On enquiry, he was informed by the official concerned that he was not selected to the post for the reason that he had failed to submit the OBC certificate issued by the appropriate authority along with application form before the last date of submission of application form.
5. Aggrieved with the action of respondent Dsssb, the appellant, along with the other aggrieved candidates, filed Writ Petition (C) No. 382 of 2009 before the learned Single Judge of the High Court of Delhi, seeking the issuance of a writ of mandamus commanding the respondent Dsssb to accept the OBC certificates submitted by them after the cut- off date for selection to the post of Staff Nurse in the Department of Health and Family Welfare, Government of NCT of Delhi as provided in the advertisement. The appellant relied on the judgment dated 11-2-2009 passed in Pushpa v. Govt. NCT of Delhi, 2009 SCC OnLine Del 281, whereby the High Court had granted OBC benefit to the petitioners therein.
6. The learned Single Judge disposed of the writ petition vide judgment and order dated 24-11-2010, placing reliance on the judgment in Pushpa, wherein the controversy centred around the same advertisement/notification issued by the same respondent. The learned Single Judge observed that the only ground for declining the applications filed by the appellants was that the OBC certificates had been issued and submitted after the cut-off date and therefore they were not eligible for appointment to the post. The learned Single Judge further held that the respondent did not cite any other 12 O.A No. 796/2014 with O.A No. 1451/2014 authority to distinguish the decision in Pushpa case from the facts of the present case. Consequently, the learned Single Judge disposed of the writ petition and directed the respondent to reconsider the application of the appellant and the other aggrieved candidates against the OBC category within a period of one month. .....................
18. In our considered view, the decision rendered in Pushpa is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Paul wherein this Court after interpretation of articles 14, 15, 16 and 39-a of the directive principles of State policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as articles 14, 15, 16 and 39-a of the directive principles of State policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned Single Judge. Hence, the impugned judgment and order passed by the Division Bench in Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra Sawhney and Valsamma Paul. Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24-11-2010 passed by 13 O.A No. 796/2014 with O.A No. 1451/2014 the learned Single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) is hereby restored."
14. In this case, the applicant's selection and appointment as Postman under OBC quota was cancelled vide the impugned order on the ground that the applicant failed to submit OBC caste certificate in the prescribed format alongwith the application for the post of Postman, hence his selection and appointment as Postman was against the rules. In the CA, the respondents have stated that the applicant failed to submit the OBC caste certificate in Central Government format in time before the examination for the Postman which was held on 8.11.2009 and that he had submitted a forged certificate. Applicant's OBC status is not in dispute as the respondents have stated in the CA that the applicant furnished OBC caste certificate dated 5.02.2010 at a belated stage and validity of this certificate dated 5.02.2010 has not been disputed. The allegation that the applicant has furnished caste certificate dated 5.02.2009 has not been accepted by the applicant and there is no evidence in the pleadings by the respondents to show that this forged certificate dated 5.02.2009 was actually submitted by the applicant. This allegation of submission of forged document is not also cited as one of the reason for cancelling the appointment of the applicant as Postman as would be revealed by the show cause notice dated 31.08.2012 14 O.A No. 796/2014 with O.A No. 1451/2014 and the impugned order dated 23.11.2012, where the reason for cancellation of appointment is stated to be non-submission of the OBC caste certificate in prescribed format alongwith the application. The impugned order passed on this ground as well as the for the reason of non-submission of the certificate in the prescribed format in time to be considered for the examination held on 8.11.2009 as stated in the CA, will not be sustainable in view of the settled law as in the case of Ram Kumar Gijroya (supra) which is discussed in paragraph 13 of this order. Moreover, the respondents had accepted the applicant's OBC caste certificate in State Govt. format submitted alongwith the application based on which he was qualified in the examination and was appointed as Postman vide the order dated 15.01.2010 (Annexure A-5). It is also seen that the respondent No. 3 has also failed to consider the submissions made by the applicant in reply dated 10.09.2010 (Annexure A-7) to the show cause notice while passing the impugned order. Hence, the impugned order dated 23.11.2012 violates the principle of natural justice. Therefore, the impugned order being not sustainable under law is liable to be set aside and quashed.
15. In view of above, the impugned order dated 23.11.2012 is set aside and quashed. The respondents are directed to 15 O.A No. 796/2014 with O.A No. 1451/2014 reinstate the applicant as Postman with consequential service benefits as per the rules within two months of receipt of a certified copy of this order. However, it is made clear that the applicant will not be entitled for the salary for the period he has not worked as Postman as a result of the impugned order, but the period will count towards his service as Postman. It is further clarified that in case during the inquiry the respondents have detected any other reason apart from the reasons discussed in paragraph 14 which is likely to vitiate the selection of the applicant as Postman, then the respondents will have the liberty to take necessary action against the applicant as per law.
O.A. No. 1451/2014
16. This O.A. is directed against the chargesheet dated 29.08.2014 issued by the respondents against the applicant under the Rule 10 of the GDS (Conduct and Employment) Rules, 2011 for submission of the OBC caste certificate dated 5.02.2009 which was found to be forged. In the order dated 27.11.2014, this Tribunal had stayed the inquiry in pursuance to this chargesheet. In view of the order of reinstatement of the applicant as Postman as per the paragraph 15 of this order, this chargesheet against the applicant under the GDS (Conduct and Employment) Rules, 2011 will not be valid against the applicant and hence, is liable to be set aside. As discussed in 16 O.A No. 796/2014 with O.A No. 1451/2014 paragraph 14 of this order, there is no evidence in the pleadings by the respondents to show that this forged certificate dated 5.02.2009 was actually submitted by the applicant and the allegation of submission of forged document is not cited as one of the reason for cancelling the appointment of the applicant as Postman. But in case there is any prima facie evidence with the respondents to show that the applicant had indeed submitted this forged caste certificate dated 5.02.2009, then the respondents will be free to initiate disciplinary action against the applicant under the appropriate rules.
17. Both the O.As are allowed and disposed of as above. No order as to the cost.
(Gokul Chandra Pati) (Dr. Murtaza Ali)
Member-A Member-J
Anand...
17 O.A No. 796/2014
with
O.A No. 1451/2014
APPENDIX
Applicant's Annexures
Sl. Date of order Annexure No. Particular
No.
1. 23.11.2012 A-1 Impugned order
reverting the applicant
from the post of
Postman to GDS
2. 18.08.2009 A-2 Notification for
promotion to the post of
Postman
3. 15.01.2010 A-5 Promotion order to the
post of Postman
4. 31.08.2012 A-6 Notice of cancellation of
appointment as Postman
5. 10.09.2012 A-7 Reply / Representation
of the applicant
6. 15.06.1992 A-8 O.B.C Certificate in the
State Government
format
7. 05.02.2010 A-9 O.B.C Certificate of
Central Government
format
Respondents' Annexures
Sl. Date of order Annexure No. Particular
No.
1. 24.08.2011 CA-6 Letter of Tehsildar,
Dhampur
2. 31.08.2012 CA-9 Show Cause notice
3. 10.09.2012 CA-10 Reply / Representation
of the applicant