Central Administrative Tribunal - Chandigarh
Anita Jat W/O Rajesh Kumar vs Union Of India Through The Secretary on 3 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH .................
O.A.120/CH/2010 Decided on:03rd December 2010
CORAM: Hon'ble Mr. Justice S.D. Anand, Member (J). Hon'ble Mr. Khushiram, Member (A).
Anita Jat W/o Rajesh Kumar, age 30 years working as JBT Teacher in Government Primary School, Sector-26, Chandigarh, Resident of House No.119, Tribune Model Gram, Baltana.
Applicant
By: Sh. Rohit Seth-Advocate.
Versus
1. Union of India through the Secretary, Government of India, Ministry of Home Affairs, New Delhi.
2. Secretary Education, Education Department, Union Territory, Chandigarh.
3. Director Public Instructions (Schools), Chandigarh Administration, Chandigarh.
4. Block Education Officer, Chandigarh Administration, Chandigarh.
5. Principal, Government Primary School, Sector-26, Chandigarh.
................Respondents
By: Sh. Arvind Moudgil-Advocate.
O R D E R(Oral)
By Hon'ble Mr. Khushiram, Member (A):-
1. The applicant was appointed as JBT Teacher on 03.10.2006 in Government High School, Mouli Colony, Chandigarh under Serv Shiksha Abhiyan Society, U.T. Chandigarh in OBC Category on contract basis which was renewed from time to time. The applicant applied for the post of JBT teacher on advertisement issued by the respondents. Out of which 118 posts of JBT teachers, 63 were meant to be filled up from OBC category. Applicant being within the prescribed age limit of 21-30 years was called for interview, participated in the selection process and was selected on merit at Sr. No.27 of the selected candidates from the OBC category on the basis of result declared on 30.10.2009. She was issued an appointment letter on 03.12.2009 and as such she resigned from her earlier post having been regularly appointed by the respondents. She joined on 03.12.2009 at Government Primary School, Sector-26, Chandigarh. On 22.02.2010, applicant received a letter from Director Public Instruction (Schools) ordering termination of her services from the post of JBT Teacher with immediate effect without any notice or opportunity of being heard or enquiry on the basis that the caste certificate of the applicant is not valid in the Chandigarh Administration.
2. The applicant contends that respondents have been making such appointments under the Chandigarh Administration regularly from amongst the candidates belonging to OBC caste of other States. The applicant was relieved on 20.2.2010. Aggrieved by this decision of the respondents applicant has filed this O.A. to seek following reliefs.
1. Quash against order dated 20.2.2010 (Annexure A-1) passed by Respondent No.3 without any jurisdiction terminating the service of applicant who is a regular appointee and who had been issued appointment letter by the Secretary Education after going through the selection process on her merit and order dated 20.02.2010 by B.E.O. based upon order of D.P.I. relieving the applicant has the entire action and process of passing order has been undertaken by the respondents without following the principles of natural justice, without giving any opportunity of hearing and in sheer violation of service rules governing the applicant and the provisions of Article 311 and the Constitution of India and as such impugned orders are liable to be quashed and set aside.
2. Issue directions to the respondents to reinstate the applicant in service with all consequential benefits of Pay and allowance, Arrears thereof along-with interest @18% per annum.
3. The applicant has also contended that her appointment letter was issued by the Secretary Education, Education Department, Union Territory, Chandigarh on the basis of her merit but she was relieved vide order dated 20.10.2010 which was issued by Director Public Instructions (Schools), Chandigarh Administration, Chandigarh, who is subordinate to the appointing authority. Therefore, the removal of the applicant is illegal and the impugned order been issued without having been given an opportunity of being heard in violation of Article 311 of the Constitution of India. The applicant has contended that she belongs to the OBC category i.e. JAT of other State and similarly situated persons have been recruited under Chandigarh Administration in Police Department from 1998 to 2008 (Annexure A-11) and thus, declining such benefit to her is violative of Article 311 of the Constitution of India.
4. Respondents have contested the claim of the applicant by filing a reply stating that OBCs in Chandigarh Administration have been notified vide notification date 27-6-1995 (Annexure R-1) for the purpose of reservation of vacancies in civil post and services in Chandigarh Administration which does not include the JAT caste to which applicant belongs to and thus, she is not entitled to the benefit of reservation. The respondents have contended that to enable the applicant to avail benefit of reservation against OBC category, her caste must be included in the Central List and the union Territory, Chandigarh list of OBCs (Annexure R-1, R-2 & R-3). Respondents have stated that the appointment of the applicant was provisional against the Reserve category till the certificates are verified and on verification it was found that the caste to which the applicant belongs does not come under the purview of reservation for OBC under the Chandigarh Administration. Hence her services were immediately terminated by giving her one months salary in lieu of notice. Respondents have submitted that in the termination letter issued to the applicant, it is specifically stated that JAT caste to which the applicant belongs has not been recognized/notified as OBC for Chandigarh Administration and therefore, she is not entitled to the benefit of reservation. It is also stated that the Government is well within its right to rectify any mistake/irregularity when it comes to notice and any departure from this principle would have disastrous consequences in the matter of government functioning. In regard to the objection of the applicant regarding her appointing authority, the respondents have stated that the Director Public Instructions is the Appointing Authority for all the Group C and D Posts under its control being Head of the Department and the impugned order has been rightly issued by him. It has also been stated by the respondents that caste JAT of Rajasthan has not been notified in the list of OBC in Chandigarh Administration and as such the judgments cited by the applicant are not applicable and are distinguishable.
5. We have heard the learned counsel for the applicant who argued that the dismissal of the applicant by the DPI is illegal as applicant has been appointed by the Secretary Education. He has also argued that the applicant resigned from her earlier assignment after having been selected by the respondent Department; therefore, her removal from service on the basis of not belonging to the OBC has deprived her of her employment where she was earlier working.
The learned counsel for the respondents argued that the appointment of the applicant was provisional subject to verification of her Caste certificate. On verification of her documents it was found that she belongs to JAT Community which was not notified in the list of OBC issued by the U.T, Chandigarh or in Central List and thus her appointment was cancelled.
We have considered the arguments made on behalf of both the parties and have perused the record placed before us.
Admittedly, the applicant was appointed vide annexure A-7 which contains condition No. 6 as under:
That the candidates who have been selected against the reserve categories, their appointment is provisional till their certificates are verified by the issuing authorities. Even though the appointment letter dated 27.11.2009 was signed by Education Secretary, Chandigarh Administration (Annexure A-1), the impugned order dated 19.2.2010 has been issued by Director Public Instructions (who is the appointing/disciplinary authority in case of Group C and D posts) explaining that the condition No.6 of the said appointment letter provides that her appointment is provisional till the certificate relating to reserved categories is verified by the issuing authority and after verification it has been found that the caste mentioned in the OBC certificate is not valid in Chandigarh Administration and as such the claim of the applicant on the said post cannot be considered under the reserved category. Therefore, appointment of the applicant was terminated from the post of JBT Teacher with immediate effect.
6. The learned counsel for the applicant has cited SCT 1991(1) 424 wherein Honble Apex Court in the case of H.C. Singhal Vs. Union of India and Ors. had held that Termination Order/Competent/Appointing authority-Promotion order passed by an authority subordinate to the appointing authority may be valid but termination order passed by such authority and its confirmation by the appointing authority as well cannot be treated passed by a competent authority.
7. The learned counsel further referred to the decision of Punjab & Haryana High Court in the matter of Jagdish Chander Vs. H.S.E.B. reported in 1993(3) SCT Page 439 holding as under:
Termination order passed by an authority subordinate to appointing authority-Is violative of provisions of Article 311(i) of the Constitution-Subsequent authorization made in favour of authority passing the order of removal-Cannot confer upon him the power to remove-Reasoning recorded by lower Appellate Court that since Chief Engineer has ordered for necessary action to be taken, such an order should be construed as having been passed by chief Engineer himself-Not proper-Termination set aside.
8. Learned counsel for the applicant has also cited decision of the Himachal Pradesh High Court in CWP No.315 of 1993 in the case of Sudarshan Lal Vs. State of G.P. wherein it was held by the Honble apex court:
Termination/Notice/Notice pay/Natural justice-Termination of Volunteer teacher appointer under the Voluntary Teachers Scheme of 1991 of Himachal State-Termination without notice, without notice pay envisaged by the scheme is liable to be set aside being contrary to the scheme.
9. This decision is distinguishable as the applicant was paid amount equal to one months salary in lieu of notice. Learned counsel for the respondents have cited decision rendered by this Tribunal in O.A. No.728/CH/09 and in number of other similar cases rendered on 14.06.2010 wherein para 12 is extracted as under:
Thus, the position that emerges is that there exist two lists of OBC category, one issued by the Government of India vide letter dated 04.10.2005 and the other issued by the Chandigarh Administration vide various notifications issued w.e.f. 1995 onwards and though Saini caste is mentioned in the Central List, it does not find mention in the list issued by the Chandigarh Administration. According to the respondents, an ambiguity arose due to the language used in letter dated 23.12.2003 (Annexure R-1) that if a particular caste is found mentioned in either of the two lists i.e. the Government of India List and/or the Chandigarh Administration List, then the benefit of reservation could be allowed to a candidate belonging to that caste. However, on further consideration of the matter in due course, it was realized that the above interpretation of letter dated 23.12.2003 may not be correct and this led to the decision dated 4.9.2009 (Annexure A-1) impugned in the present O.A.
10. It was also held that as per direction issued by Chandigarh Administration on 23.12.2003; in order to secure employment under OBC category in Chandigarh Administration; a particular caste should be included in both the lists i.e. Central List as well as Chandigarh Administration List of OBCs and only those castes should be considered for the purpose of reservation in Chandigarh Administration which stands included in both the lists. The caste of applicant i.e. JAT is neither included in Central List nor in U.T. List, therefore, applicant cannot claim the benefits of reservation under OBC category in Chandigarh Administration. Hence, her termination is justified.
11. In decision rendered by this Tribunal in O.A. No.728/CH/09 (supra) it was also held that:
with respect to the reserved categories of SC and ST the Chandigarh Administration has felt bound by the decision of the Honble Supreme Court in the case of Chandigarh Administration Vs. Surinder Kumar (supra), but in the case of OBCs the Administration took a policy decision that the benefit of reservation to this category would be extended on the pattern of the Central Government, wherein the OBC would have to be as is included both in the Central List as well as in the Union Territory, Chandigarh List.
12. It was also held that in case of OBCs a separate list has been issued by the respective States according to which the benefit of reservation is to be given as per the policy decisions taken in this regard. Article 16(4) of the Constitution of India envisages as under:
Nothing in the article shall prevent the State from making any provision for the reservation of appointment or post in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the service under the State.
It was observed that the Community of applicant JAT has not been mentioned in the Chandigarh list of OBC, not tenable.
13. Learned counsel for the respondents has contended that the case of the applicant is covered by the decision of a Coordinate Bench of this Tribunal and therefore in order passed by the respondents need not be interfered with.
14. We have considered the arguments made on behalf of the applicant as well as the respondents and have perused the record placed before us. The applicant was admittedly, issued provisional appointment letter as an OBC candidate and on verification of her caste certificate it was, found that the caste to which applicant belongs to is not valid to secure employment under reserve category in Chandigarh Administration. Therefore, her termination from service has be held as legally valid. Further, since the applicant has been paid one months salary in lieu of notice, there is no infirmity in the impugned order and no inference with the same is called for.
11. Accordingly finding no merit in the O.A., the same is dismissed. No costs.
(KHUSHIRAM) (JUSTICE S.D. ANAND) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: 03.12.2010. KR* 8 11 O.A. 120/CH/2010