Central Administrative Tribunal - Delhi
Mithlesh Verma vs Govt. Of Nctd on 30 January, 2024
1
Court No. 5(Item No.24) (OA No.1127/2019)
Central Administrative Tribunal
Principal Bench
OA No. 1127/2019
Reserved on:11.012024
Pronounced on : 30.01.2024
Hon'ble Dr.Chhabilendra Roul, Member (A)
Mithlesh Verma
Aged about 50 years
W/o Sh. T.L. Verma
R/o 13/16, IIIrd Floor, West Patel Nagar
New Delhi-110008
Aged about 61 years
.. Applicant
(Through Advocate:Mr.Ajesh Luthra)
Versus
1. GNCT of Delhi
Through its Chief Secretary
5th Level, „A‟ Wing
Delhi Secretariat
IP Estate, New Delhi
2. The Secretary
Directorate of Education
(GNCT of Delhi)
Old Secretariat, Delhi-110054
3. The Director
Directorate of Education
(GNCT of Delhi)
Old Secretariat, Delhi-110054
-Respondents.
(Through Advocate: Mrs.Deepika )
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):- 2
Court No. 5(Item No.24) (OA No.1127/2019) The present Original Application has been filed by the applicant, seeking the following:-
"(a) Direct the respondents to forthwith release the retiral benefits of the applicant alongwith arrears thereof.
(b) Direct the respondents to pay interest @12% p.a. on the delayed payments. © Award costs of the proceedings; and
(d) Pass any order/relief/direction(s) as the Hon'ble Tribunal may deem fit and proper in the interest of justice in favour of the applicant."
2. The factual matrix of the present case is as follows:
2.1 The applicant was initially appointed as Post Graduate Teacher (Hindi) by way of direct recruitment on 29.09.1989 in the Directorate of Education, GNCT of Delhi. In the year 1989, she was selected by the Union Public Service Commission (UPSC) as Principal in the Directorate of Education, Delhi and she accordingly joined as Principal with the respondents.
During the course of her service, the applicant was promoted as Deputy Director & Education Officer in May 12th 2012 and March 13th in the year 2013 respectively.
3Court No. 5(Item No.24) (OA No.1127/2019) 2.2. A memo of charge sheet dated 09.09.2010 was issued against the applicant for initiating proceeding under Rule 14 of CCS(CCA) Rules 1965 for allegedly securing appointment to the post of PGT(Teacher) against a post reserved for Scheduled ribe (ST) allegedly on basis of forged caste certificate. The applicant filed OA No. 309/2013 before this Tribunal seeking quashing and setting aside the impugned charge sheet.
2.3 Similarly, a criminal case under section 120(B), 177, 420, 468, 471 of IPC and Section 13 (1) (d) of the Prevention of Corruption Act., 1988 (RC No. 04(S)/2007) was also instituted against the applicant and a charge sheet filed by the Central Bureau of Investigation (CBI) where the applicant alongwith others were sent for trial before the Competent Court of Law. The CBI Court, vide its order dated 13.11.2017 passed the following orders:
(38). It is not disputed by the CBI in the present case that the alleged fake caste certificates have not been scrutinized by any Committee nor there is any finding of the Caste Scrutiny Committee to district registration of FIR and Investigate. Hence, in view of the dictum of the Hon‟ble Apex Court in the case of Kumari Madhuri Patil (Supra) upheld in the cases of the cases of GM Indian Bank (supra) and Dayaram (supra)and also in view of the observations made by the Hon‟ble 4 Court No. 5(Item No.24) (OA No.1127/2019) Apex court in the case of and State of Karnataka through CBI vs. C. Nagarjaswamy (supra), I hold that the cognizance taken by the Ld. Predecessor Court on 09.09.2009 is a nullity. Merely because the cognizance has been erroneously taken and the charge has been framed, though erronecously, does not incumbent this Court to pass an order or acquittal or conviction since under the given circumstances no such power to acquit or convict the person of the offence would lie with the Court and any order made in this regard would be a nullity.
(39). Therefore, the further proceedings in the case are stopped. The bail bounds of all the accused stand cancelled and their sureties be discharged, as per rules.
(40) File be consigned to Record Room."
2.4. This Tribunal, vide its order dated 15.5.2013 in OA No. 309/2013 passed the following order:-
"19. In the result, the Application succeeds and is allowed with the following directions:-
(i) The impugned departmental proceeding is hereby quashed.
(ii) The respondents shall refer the caste certificate furnished by the applicant at the time of her appointment along-with other material or evidence to the Caste Certificate Scrutiny Committee constituted under the judgment of Kumari Madhuri Patil s case (supra), forthwith. The Caste Certificate Scrutiny Committee shall hold the necessary enquiry and come out with its findings expeditiously, preferably within a period of three months and submit its report to the Respondent No.2 i.e. Director of Education.
Both the applicant and respondents shall extend all possible cooperation in the matter of enquiry before the Caste Certificate Scrutiny Committee.
5Court No. 5(Item No.24) (OA No.1127/2019) It is further provided that after receipt of the report from the Caste Certificate Scrutiny Committee, the Respondent No.2, Director of Education shall proceed in accordance with law as enunciated in Kumari Madhuri Patils case (supra) and R. Vishvanatha Pillai (supra).
20. With the above directions/orders, the Original Application stands finally disposed of, but without costs."
2.5 The applicant was also relegated from the post of Deputy Education Officer and Deputy Education Officer to the rank of Principal. Against the said reversion order, the applicant filed OA No. 1423/2023. Vide order dated 08.08.2018, this Tribunal directed the respondents to take note of various developments that has taken place during the pendency of the OA and pass fresh orders. In compliance of the order of this Tribunal dated 15.05.2013, the respondents made the efforts to get the ST certificate verified from the Caste Certificate Scrutiny Committee, Government of Rajasthan. In their counter affidavit dated 11.12.2019 and again on 07.11.2023, the respondents have given detailed efforts made by them to get the caste certificate verified from the various authorities of Government of Rajasthan.
2.6. The applicant was further charge sheeted by Hon‟ble Lt. Governor, Delhi under Rule 16 of CCS(CCA) 6 Court No. 5(Item No.24) (OA No.1127/2019) Rules, 1965 vide charge memo No. F.5/32/2017/DOV /12949-50 dated 03.08.2018. The Hon‟ble Lt. Governor, Delhi vide dated 27.08.2018 passed the following order: -
"1). Reduction in pay by one stage ( one cell within her present level, as per CCS(Revised) pay rules 2016) till her retirement on attaining the age of superannuation, without cumulative effect and not adversely affecting her pension.
2). The Applicant (Charged Officer) will not be eligible for reemployment after superannuation."
2.7 The applicant superannuated on 31.08.2018. At the time of his superannuation, the applicant was granted provisional pension and other retirement benefits were not released to the applicant. Being aggrieved, the present applicant filed the present OA, seeking the aforementioned relief(s).
3. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed rejoinder to the same.
4. The respondents in their counter affidavit have stated that the applicant has been paid UTGEIS amounting to Rs.60,022/-, leave encashment amounting to Rs. 1,26,222/- and GPF amounting to Rs. 4,54,715/-. This matter has not been disputed by 7 Court No. 5(Item No.24) (OA No.1127/2019) the applicant in her rejoinder. The applicant has already been granted provisional pension under Rules 69 of CCS(Pension) Rules, 1972 vide order dated 24.06.2019. However, the applicant has not been granted final pension and gratuity amount has not been released to the applicant. In view of this, the relief sought by the applicant is narrowed to granting of final and proper pension and releasing of gratuity amount which has been withheld by the respondents.
5. The leaned counsel for the applicant refers to Rule 9 of CCS (Pension) Rules 1972, which empowers the President to withhold or withdraw pension under specific situations. The learned counsel for the applicant avers that in the case of the applicant, on the date of his superannuation, there was neither departmental proceedings nor any judicial or criminal pending against her. In case of pending departmental or judicial proceedings Sub-Rule 4 of Rule 9 of CCS (pension) Rules,1972 is applicable. This Rules states:-
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2) , a provisional pension as provided in (Rules 69) shall be sanctioned."8
Court No. 5(Item No.24) (OA No.1127/2019) 5.1. The learned counsel for the applicant fairly argues that the act of the respondents in granting provisional pension under Rules 69 of the said CCS (Pension) Rules, 1972 is illegal and arbitrary because it violates the condition in sub-rule 4 of the Rule 9 of the said Rules. The crucial factor for attracting sub-rule 4 under Rule 9 is pendency of any departmental or judicial proceedings which have been instituted against the applicant. In the instant case, at the time of retirement no judicial proceedings were pending against the applicant. The CBI Court was seen its closure vide its order dated 13.11.2017. Similarly, the charge sheet which was earlier issued vide charge memo dated 09.09.2010 was quashed by this Tribunal in OA No. 309/2013 vide its order dated 15.05.2013. The minor penalty case which was issued under Rule 16 under CCS (CCA) Rules, 1965 was decided on 27.8.2018 by imposing minor penalty of reduction in pay by one stage ( one cell within her present level, as per CCS (revised) pay rules 2016) till her retirement on attaining the age of superannuation; without cumulative effect and not adversely affecting her 9 Court No. 5(Item No.24) (OA No.1127/2019) pension". As no charge sheet or any departmental proceedings was pending against the applicant at the time of her superannuation the action of the respondents withholding gratuity and also granting provisional pension instead of final and proper pension under rule 69 of CCS (Pension) Rule is illegal .
6. Per contra, the learned counsel for the respondents refers to the counter affidavit filed by the respondents. He refers to the order dated 15.5.2013 passed by this Tribunal in OA No. 309/2013 vide which the respondents were directed to get the caste certificate verified by the Caste Certificate Scrutiny Committee constituted under the judgment of Kumari Madhuri Patil vs. Addl. Commissioner Tribal Development &Ors reported in 1994 (6) SCC 241. The respondents have referred the matter to the Caste Certificate Scrutiny Committee, Government of Rajasthan and the counter affidavit refers to the efforts made since 2013 to till date. However, the respondents have not been able to get conclusive report from the Authorities of Caste Certificate Scrutiny Committee, Government of Rajasthan. In view of this, as the caste certificate is under doubt and the initial entry into the 10 Court No. 5(Item No.24) (OA No.1127/2019) service of the present applicant is still under scrutiny, the respondents have not issued the final pension and withheld the gratuity amount due to the applicant. Under such circumstances, the counsel for the respondents avers, the action taken by the respondents is perfectly legitimate.
7. I have heard arguments advanced by the both counsels carefully and perused the records of the case thoroughly.
7.1 In the instant case, the short point is that whether any criminal or disciplinary cases which were instituted at the time or before superannuation of the present applicant are still pending against her or not. Sub-rule 6 under Rule 9 of the CCS (CCA) Pension Rules, 1976 has defined the institution of departmental or judicial proceedings in the following manner:-
(a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioners, or if the Government servant has been placed under suspension from an earlier date, on such date ;
and 11 Court No. 5(Item No.24) (OA No.1127/2019)
(b) Judicial proceedings shall be deemed to the instituted-
(i) In the case of criminal proceedings, on the date on wich the complaint or report of a police officer, of which the Magistrate takes cognizane is made;
and
(ii) In the case of civil proceedings, on the date the plaint is presented in the court.
7.2 It has been admitted by both the parties, there was no departmental proceedings instituted on the date of superannuation by the applicant. Similarly, the earlier efforts made by the respondents to issue charge sheet ( in the year 2010) has already been quashed by this Tribunal. The CBI case also attained its finality in view of the order dated 13.11.2017. Similarly, the departmental proceedings for minor penalty had culminated vide order dated 27.08.2018 by the competent authority by imposing minor penalty. The applicant superannuated on 31.08.2018 and hence, at the time of superannuation there was no departmental proceedings instituted or pending against the applicant.
12Court No. 5(Item No.24) (OA No.1127/2019) 7.3. In view of above, neither any departmental proceedings were pending at the time of superannuation of the applicant nor judicial proceedings were also pending at the time of her superannuation. It is admitted fact that there is pending scrutiny of her Caste Certificate given at the time of her initial appointment. However, such scrutiny which could have been done by Caste Certificate Scrutiny Committee of GNCT, Delhi. The respondents preferred to refer the matter to the Caste Certificate Scrutiny Committee, Government of Rajasthan. It is not understood as to why such scrutiny committee was not constituted in the Government of GNCT of Delhi. The judgment of in the case Kumari Madhuri Patil vs. Addl. Commissioner Tribal Development &Ors (supra) case does not say that the caste certificate will be scrutinized by the Caste Scrutiny Committee of the issuing State. Moreover, there are various authorities under the Rajathan Government who have not conclusively given any finding regarding authenticity of the caste certificate to the applicant. Under such circumstances, the Administrative action of Scrutiny Caste Certificate which is pending for the last 10 years, 13 Court No. 5(Item No.24) (OA No.1127/2019) should not be held against the applicant for getting her pension.
7.4. The Supreme Court in the case of Kumari Madhuri Patil vs. Addl. Commissioner Tribal Development &Ors dated 02.09.2013 reported in 1994 (6) SCC 241, has held that :
"12. We have seen that Scrutiny Committee proceedings although started on 8-12-1989 were prolonged till 26-6-1992. We do not have record to scan the reasons for the delay. It would appear that the constitution of a Committee with large number of members and Secretary as Chairman must have greatly contributed for the delay in deciding the claims for the social status. A right of appeal provided thereafter compounded further delay though the Additional Commissioner on the facts of this case has disposed of the appeal very expeditiously. However, all of them are the contributory factors for the delay.
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 14 Court No. 5(Item No.24) (OA No.1127/2019) 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, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) 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.
15Court No. 5(Item No.24) (OA No.1127/2019)
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 acknowledgement 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 16 Court No. 5(Item No.24) (OA No.1127/2019) 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.
......xxxxx......
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."
7.5 From the above judgment of Hon‟ble Supreme Court in Kumari Madhuri Patel (supra) case, it is clear that Government of GNCT of Delhi could have 17 Court No. 5(Item No.24) (OA No.1127/2019) constituted a Committee in the Education Department as mentioned paragraph no. 4 of the said judgment. Moreover it could have sent the matter to its own Caste Scrutiny Committee rather than sending it to the said committee of the Rajasthan Government. The Supreme Court has given time limit in paragraph 9 that such scrutiny committee should complete the scrutiny by adopting day to day proceedings and it should not be exceeded not more than two months. In view of this, the respondents have not acted in the true spirit of the Apex Court judgment in the said matter. Promptly, it has referred the matter to the Caste Certificate Scrutiny Committee of the Rajasthan Government. The Collector of the concerned district have stated that the papers related to issuance of caste certificate has already been weeded out. However, it is not necessarily that only on the basis of papers submitted by the applicant while applying for the caste certificate, a caste will be verified. It can be verified otherwise also. No efforts have been made by the respondents to do so on their own nor taking the matter on urgency basis with the Rajasthan Authorities to complete the scrutiny within the stipulated time period. The applicant should not suffer on account of 18 Court No. 5(Item No.24) (OA No.1127/2019) this inter-state problems and the lack of promptness on the part of the respondents as well as the Rajasthan Government in finalizing the scrutiny of the caste certificate. Legally, there is no bar for issuing final pension and releasing gratuity to the applicant as none of the conditions mentioned in rule 9 sub-rule 4 readwith sub- rule 6 have been violated in case of the applicant.
7.6. In view of this, the following orders are passed:
(i) The respondents are directed to issue final pension papers in respect of the applicant.
They are also directed to release the gratuity amount to her with applicable interest payable under the payment of Gratuity Act., 1972. The applicant shall furnish an affidavit to the effect that in case the caste scrutiny committee is found her caste certificate as forged or invalid, she shall be subject to legally permissible decision to be taken by the respondents and in the eventuality, if it will be required legally, she shall return all the amount received from the respondents with the 19 Court No. 5(Item No.24) (OA No.1127/2019) applicable GPF interest rates. The respondents shall complete this exercise of issuing final pension order and release of gratuity within a period of eight weeks from the date of receipt of a certified copy of this order.
7.6. The present OA is disposed of in above terms with no order as to the costs. Accordingly, MA No.4231 / 2023 in OA 2517/ 2023 is also disposed of.
(Dr. Chhabilendra Roul) Member (A) /mk/