Central Administrative Tribunal - Delhi
Punitha S vs Ayush on 8 October, 2024
(OA No.565/2022)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.565/2022
Reserved on :27.09.2024
Pronounced on :08.10.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Smt. Punitha S.
W/o Mr. Thangaraj M,
R/o 173, Ground Floor,
Gate No.3, MIG DDA Flats,
Near Lal Quarter,
Madipur, Delhi-110063. ...Applicant
(By Advocate: Shri Ranjan Parmar for Shri S.K.Pandey)
Vs
1. Union of India, Secretary Ayush,
Through Ministry of Ayurveda, Yoga
and Naturopathy, Unani, Siddha and
Homoeopathy, AYUSH Bhawan,
B Block, GPO Complex,
INA, New Delhi-110023.
2. Central Council for Research in Ayurveda Sciences
Through its Director General,
Jawahar Lal Nehru Bhartiya Chikitsa Evam
Homoeopathy Ansusandhan Bhawan,
61-65, Institutional Area, Opp. D Block,
Janakpuri, New Delhi-110058.
3. The Director (Institute)
Then Ayurveda Central Research Institute
(Presently, Central Ayurveda Research Institute)
Road No.66, Punjabi Bagh (W),
New Delhi-110026. ...Respondents
(By Advocate:Shri L.C.Singhi)
(OA No.565/2022)
(2)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) Quash the Order dated nil November 2019 of the respondents rejecting the appeal of the applicant against the order dated 11.03.2019 of the respondents removing the applicant from the service.
(b) Quash the order dated 11.03.2019 wherein the Respondent No. 3 imposed a major penalty on the applicant.
(c) Direct the Respondents to reinstate the Applicant, with immediate effect, in the post of Staff Nurse with effect from the date of her removal from service, with full consequential benefits;
(d) Any other relief which this Hon'ble Tribunal deems fit and proper may also be awarded to the applicant."
2. The facts of the case, in brief, as indicated in the OA are that vide Advertisement No. 4/2012, the respondents invited applications for various posts mentioned therein which included the post of Staff Nurses. The application of the applicant was to be submitted within 30 days from the date of the Advertisement. The clause 8 of the General Conditions reads as follows:
"8. Late applications/incomplete applications/ applications without attested copies of academic qualification, age, and community will summarily be rejected."
(OA No.565/2022) (3)
3. It is submitted that since last date for submission of the application i.e. 06.05.2012 was Sunday, and as per the standard practice 7th May 2012 being the immediate next working day, the applicant submitted her application for the post of Staff Nurse under the OBC Category on 07.05.2012. Even as per the office note of the respondents dated 07.05.2012 reads as follows:
"ACRI, PUNJABI BAGH, NEW DELHI The Institute has invited applications for the post of Staff Nurse and Laboratory Technician through advertisement in Employment newspaper (07- 13/04/2012). The last date for submission of applications is within 30 days from the date of advertisement i.e. 06/05/2012 (Sunday). Since the last date for receiving the applications is Sunday (Holiday) so we can consider the next working day i.e. 07.05.2012 as the last date for receiving the applications up to 4.00 P.M. submitted for approval please."
4. It is further submitted that there was no stipulation in the Advertisement that the candidates should submit the OBC Certificate in the proper format of the Government of India along with their application. The applicant had furnished an undertaking to the effect that since she was an OBC candidate originally belonging to Munnar, Kerala due to paucity of time she could not submit the OBC Certificate issued by the State Government of Kerala and she would submit the same before or on interview date and the same (OA No.565/2022) (4) was accordingly submitted in the Central Government format.
5. The Respondent No.3 informed the applicant vide Memorandum dated 09.07.2012 that she was provisionally allowed to appear for the written test and interview for the post of Staff Nurse on 14.07.2012 at 10.00 AM, subject to the condition, among others, that she was to bring her certificates in original in support of her date of birth, educational qualifications, technical qualifications, experience, caste certificate from the competent authority etc., as claimed in her application and that in absence of said documents she will not be allowed to sit in written test. The Respondent No.3verified the date of birth, caste certificate, educational qualification, experience and eligibility of the applicant for the post of Staff Nurse and accordingly she appeared in the test.
6. Vide letter dated 26.07.2012, the Respondent No. 3 intimated the applicant that she was selected for the post of Staff Nurse and was asked to report for the medical examination. As per memorandum dated 31.07.2012, the applicant was appointed as Staff Nurse with Respondent No. 2 subject to the conditions mentioned in the said letter.
(OA No.565/2022) (5)
7. It is further submitted that vide office order dated 13.08.2012, the Respondent No. 3 took the applicant on its rolls and placed her on probation for two years. But vide memorandum dated 28.12.2016, the Respondent No. 2 informed the respondents that they proposed to initiate a departmental enquiry against the applicant. In the said memorandum, the charge against the applicant is reproduced herein below:
"That Smt. Punitha S. in response to advertisement in "Employment News" dated 7th 13th April, 2012 issued by ACRI Punjabi Bagh regarding appointment of two Staff Nurses and four Lab. Technicians submitted application for the post of Staff Nurse on 07.05.2012, though the last date for submission of application was 06.05.2012 and application was liable to be rejected. She submitted application to Dr. M.M. Rao, Director (Institute), ACRI, New Delhi by hand and without OBC certificate and requested to entertain the same. Though as per Point 8 of advertisement in Employment News it was clear that late applications/incomplete applications/application without attested copies of academic qualification, age, and community will summarily be rejected. The OBC certificate submitted by her at later stage was not in proper format of Govt. of India. Due to her personal approach her application was considered and she was selected as a Staff Nurse under OBC Category. Later the application of Smt. Punitha S was considered, she was selected and appointed as Staff Nurse. In this way Smt. Punitha S. has acted in a manner unbecoming of a public servant by doing above, which also exhibits her doubtful integrity. She has therefore, contravened the rule 3(1)(i) and (iii) of CCS (Conduct) Rule 1964."
(OA No.565/2022) (6)
8. It is stated that vide letter dated 06.01.2017 the applicant replied to the memorandum dated 28.12.2016 of the Respondent No. 2. In the said reply, the applicant also enclosed the OBC Certificate issued to her by the Tehsildar, Devikulam in the prescribed format of the Govt. of India. Vide order dated 02.03.2017, Respondent No. 2 appointed an Inquiry Officer and a Presenting Officer to inquire into the charges framed against the applicant along with others and to present the case on behalf of the Disciplinary Authority. The applicant submits that appointment order of the Inquiry Officer/ Presenting Officer dated 02.03.2017 was not in compliance with the procedure prescribed in Rule 14 (2)/14 (5)(c) of the CCS (CCA) Rules, 1965, with the result that the Inquiry Officer/Presenting Officer was not delegated the powers for conducting the inquiry proceedings/presenting the case on behalf of the Disciplinary Authority, which vitiated the inquiry proceedings. It is also claimed that the Inquiry Officer did not conduct the inquiry proceedings as prescribed in Rule 14 (16) of the CCS (CCA) Rules, 1965, thereby vitiating the inquiry proceedings. Further on 27.10.2017, the applicant presented her written defence brief to the Inquiry Officer. The Disciplinary Authority did not give any consideration to the pleadings in written defence brief on the merit of arguments and also to the above non-
(OA No.565/2022) (7) compliance/violations of the mandatory Rules while accepting the report of the Inquiry Officer and imposed a major penalty on the applicant. The operative para of the order is reproduced herein below:
"9. NOW THEREFORE, considering the records, facts and circumstances of the case, it would be appropriate at the end of justice if above penalty i.e. "removal from service which shall not be a disqualification for future employment under the Government" is imposed on her. Accordingly, the above said penalty is hereby imposed on Smt. Punitha S., Staff Nurse. CARICD, New Delhi, with immediate effect i.e. with effect from the date of issue of this memorandum."
9. The applicant further submits that she filed an appeal on 02.04.2019 against the order dated 11.03.2019 before the Appellate Authority as per the service rules. In her appeal, the applicant mentioned various grounds/evidences relied upon by the Disciplinary Authority for imposing the above major penalty were either extraneous matters or were personal knowledge imported by the Disciplinary Authority about which she was not given an opportunity to refute, examine, rebut and defend herself. The Appellate Authority has not, however, considered, examined and analyzed these submissions. The various non-compliance/violations of the relevant Rules of the CCS (CCA) Rules were also submitted before the Appellate Authority. But the Appellate Authority did not comply with the provisions of (2) of Rule 27 of the (OA No.565/2022) (8) CCS (CCA) Rules, 1965 and rejected the appeal of the applicant vide the order dated NIL November 2020, despite the fact that there was clear failure of justice, as submitted in pleadings contained in the written defence brief, representation dated 20.12.2017 against the findings in the inquiry report and appeal against the penalty order.
10. The respondents in their counter reply have made submission denying all the contentions raised by the applicant in their pleadings statement, contention, submission, allegation, and/or averment(s) made in the They have also contended that the applicant has relied on some documents, which are not supposed to be in applicant's possession. The production of such unauthorized communications and reliance on the same is not tenable.
11. It is further submitted that on receipt of a complaint from Central Vigilance Commission (CVC) vide letter dated 02.08.2013 forwarded through the then Department of AYUSH vide letters dated 17.02.2014 and 23.04.2014, against Dr. M.M. Rao, Director (Institute), ACRI, New Delhi and pursuant to the directions of CVC, a detailed vigilance enquiry was conducted in respect of the allegations leveled in the complaint wherein one of the allegations was of irregularities in the recruitment held during the year 2012 (OA No.565/2022) (9) for the posts of 02 Staff Nurses and 04 Laboratory Technicians while Dr. M.M. Rao was functioning as Director (Institute). It is stated that in the same recruitment drive, the applicant was appointed as Staff Nurse. It was the First Stage Advice of the CVC, wherein major penalty proceedings were advised against Dr. M.M. Rao, Director (Institute) for irregularities in recruitment. The CVC also advised to initiate major penalty proceedings against the applicant and others involved. It is submitted that the applicant was in connivance with the then Director (Institute) from the initial stage of recruitment till her joining the post of Staff Nurse in reserved category of OBC. Even though, as per Clause-8 of the advertisement, late applications/incomplete applications/ application without attested copies of academic qualification, age, and community will summarily be rejected but the same was considered by the Director (Institute). The rules and procedures were flouted at every stage to appoint the applicant for the post of Staff Nurse.
12. It is further submitted that in response to the advertisement seeking applications for the post of Staff Nurses (02) and Laboratory Technicians (04) published in Employment News dated 06.04.2012 13.04.2012, the applicant submitted incomplete application, i.e. without OBC Certificate and submitted an undertaking dated 05.05.2012 (OA No.565/2022) (10) wherein she asked for the consideration of her application based on the undertaking that due to paucity of time she could not submit OBC Certificate issued by State authority Kerala. The applicant submitted the OBC Certificate issued by some village officer, Kannan Devan Hills on 18.05.2012 wherein it was clearly mentioned that the certificate was only for appointment to the post under Government of Kerala and its organizations and institutions. The applicant again produced OBC Certificate issued by Tehsildar of a later date 25.05.2012 whereas last date for receiving of application for the recruitment was 06.05.2012. This shows the applicant was not fulfilling the eligibility criteria for selection under the reserved category of OBC at the relevant time.
13. The respondents submit that Dr. M. M. Rao, the then Director received her incomplete application by hand admitted OBC certificate of Kerala State and considered her candidature and appointed her for the post of Staff Nurse in OBC category, in violation of Clause-8 of the advertisement, where it was clearly mentioned that late applications /incomplete applications/application without attested copies of academic qualification, age, and community will be summarily be rejected. It is further submitted that there was connivance of the applicant with the then Director Dr. M.M (OA No.565/2022) (11) Rao at that relevant time and the applicant was appointed in violation of recruitment process.
14. The respondents further submit that the applicant was issued the offer of appointment vide letter dated 26.07.2012 whereby she was required to report to the Medical Superintendent/ Government Hospital in her city/ district for medical examination by a Civil Surgeon for determining her medical fitness. The letter dated 26.07.2012 was received by the applicant on 28.07.2012 'by hand' from the Institute. Interestingly, the applicant got her medical examination done at Safdarjung Hospital, New Delhi on 31.07.2012, submitted her attestation form along with medical fitness certificate on 31.07.2012, appointment letter was also issued on 31.07.2012 which was received by the applicant 'by hand' on 04.08.2012 (date is strike off/tempered) and the applicant submitted joining report also on 31.07.2012 (FORENOON) itself.
15. This sequence of events clearly indicates that the applicant was having connivance with Dr. M.M. Rao, Director (Institute) from the initial stage of recruitment till her joining the post of Staff Nurse. Dr. M.M. Rao has also been issued with a charge sheet for major penalty proceeding and on conclusion of disciplinary proceedings, has been awarded (OA No.565/2022) (12) with a major penalty. The applicant was issued with a charge sheet vide Memorandum dated 28.12.2016, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for major penalty proceedings after due approval of the Competent Authority.
16. The respondents also state that upon denial of charge leveled, Inquiry Officer and Presenting Officer were appointed to hold a regular departmental enquiry in case of applicant. The Inquiry Officer, on conclusion of the regular departmental enquiry, vide his report dated 17.11.2017 held the charge as 'proved'. The Disciplinary Authority accepted the report of Inquiry Officer and ordered imposition of major penalty of "removal from service which shall not be a disqualification for future employment under the Government" and the same was imposed on the applicant vide order dated 11.03.2019. It is reiterated that Dr. M.M. Rao the then Director (Institute) had favored the applicant by accepting the incomplete application i.e. without OBC Certificate, for the post of Staff Nurse, in violation of Clause- 8 of the advertisement, where it was clearly mentioned that late applications/incomplete applications/application without attested copies of academic qualification, age, and community will summarily be rejected. Even though the application was liable to be rejected, subsequently, the then (OA No.565/2022) (13) Director admitted OBC Certificate at a later stage and considered her candidature and the applicant was appointed in violation of recruitment process. It is submitted that Dr. M.M Rao was also issued with a charge sheet for major penalty proceedings and on conclusion of disciplinary proceedings, he has been awarded with a major penalty.
17. We have heard both the parties at length and also gone through the pleadings on record. We have also perused the Statement of Article of Charge came against the applicant, which reads as under:-
"Statement of article of charges framed against Smt. Punitha S., Staff Nurse, ACRI, Punjabi Bagh, New Delhi.
Article -I That Smt. Punitha S. in response to advertisement in "Employment News" dated 7th 13th April 2012 issued by ACRI Punjabi Bagh regarding appointment of two Staff Nurses and four Lab. Technicians submitted application for the post of Staff Nurse on 07.05.2012, though the last date for submission of application was 06.05.2012 and application was liable to be rejected. She submitted application to Dr. M. M. Rao, Director (Institute), ACRI, New Delhi by hand and without OBC certificate and requested to entertain the same. Though as per Point 8 of advertisement in Employment News it was clear that late applications /incomplete applications/application without attested copies of academic qualification, age, and community will summarily be rejected. The OBC certificate submitted by her at later stage was not in proper format of Govt. of India. Due to her personal approach her application was considered and she was selected as a Staff Nurse (OA No.565/2022) (14) under OBC Category. Later the application of Smt. Punitha S. was considered, she was selected and appointed as Staff Nurse. In this way Smt. Punitha S. has acted in a manner unbecoming of a public servant by doing above, which also exhibits her doubtful integrity. She has therefore, contravened the rule 3 (1)
(i) and (iii) of CCS (Conduct) Rule 1964."
18. Coming to the issue of acceptance of application beyond the last date, it is not in dispute that the said application was received on 07.05.2012 but it is evident that the 30th day i.e. the last date for receipt of application as per the advertisement was 06.05.2012, which was a Sunday. There was no mention in the advertisement whether the office will be opened on 06.05.2012 for receiving applications from the candidates, who wished to submit the same on the last date for receipt of applications. It is also seen that the respondent no.3 in its own note-sheet had stated that since the last date of submission was Sunday, therefore, the applications may be accepted on immediate next working day which was 07.05.2012. We have perused the relevant noting which reads as follows:-
"ACRI, PUNJABI BAGH, NEW DELHI.
The Institute has invited applications for the post of Staff Nurse and Laboratory Technician through advertisement in Employment hewspaper (06/04/2012- 13/04/2012). The last date for submission of applications is within 30 days from the date of advertisement i.e. 06/05/2012 (Sunday), Since the last (OA No.565/2022) (15) date for receiving the applications is Sunday (Holiday) so we can consider the next working day i.e. 07/05/2012 as the last date for receiving the applications. 4.00 PM.
Submitted for approval please."
19. It is evident from the above that a conscious decision was taken to accept applications on the next working day i.e. 07.05.2012 upto 4.00 PM, as the date mentioned in the advertisement happened to be a Sunday.
20. Our attention has also been drawn by the learned counsel for the applicant to the relevant provisions of Section 10 of the General Clauses Act, 1897, which reads as follows :-
"10. Computation of time, (1) Where, by any Central Act or regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open:
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies.
(2) This section applies also to all Central Acts and regulations made on or after the fourteenth day of January, 1877."
21. He further places reliance on the Judgment of the Hon'ble Supreme Court in Mohd. Ayub Vs. State of Uttar (OA No.565/2022) (16) Pradesh though Principal Secretary and Others (Civil Appeal No.8200 of 2009) decided on November, 20, 2009, wherein the Hon'ble Supreme Court held as follows :-
"8. Section 10 of the General Clauses Act has come up for consideration in various cases before this Court and also different High Courts. In Harinder Singh v. S. Karnail Singh¹ a four-Judge Bench of this Court explained the object of Section 10 very lucidly. The learned Judges have held as under. (AIR p. 273, para
5) "5.... Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the court of office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire ona holiday."
The decision in Harinder Singh was rendered in the context of an election dispute but the general principles explained therein apply to all cases.
9. Even while construing the provisions of Section 167 of the Criminal Procedure Code, 1973, this Court accepted the same interpretation in respect of Section 10 of the General Clauses Act. [See Chaganti Satyanarayana v. State of A.P.2 (SCC p. 154, para 30 of the Report).]
10. The learned Judges in Chaganti accepted the interpretation of Section 10 in N. Sureya Reddy v. State of Orissa³ and held that the principle enunciated in Section 10 of the General Clauses Act should be invoked on consideration of justice and expediency. Rather recently in HUDA v. Dr. Babeswar Kanhar this Court held that there is a general principle that a party, prevented from doing an act for some reasons beyond his control, can do so at the first subsequent opportunity. It was further clarified that the underlying object of Section 10 is to enable a person to do what he should have done in a holiday, on the next working day. The learned Judges held that the said principle is (OA No.565/2022) (17) based on the doctrine that a law does not compel the performance of an impossibility. In saying so, the learned Judges relied on an old decision of the Calcutta High Court in Hossein Ally v. Donzelles. This Court is in respectful agreement with the aforesaid principles".
22. In view of the aforesaid, the principle laid down by the Hon'ble Supreme Court there cannot be any dispute that the application submitted on the following day of a holiday should have been accepted. Therefore, we do not find force in the Article of Charge to the extent that the application received on 07.05.2012 was not proper.
23. The 2nd limb of the Article of Charge is that the applicant had submitted her application without enclosing OBC Certificate, though as per Para 8 of the advertisement in Employment News it was clear that late application, incomplete application/application without attested copies of academic qualification, age and community will summarily be rejected.
24. It is stated by the learned counsel for respondents that OBC certificate submitted by her at the later stage was not in proper format of Government of India but due to her personal approach her application was considered and ultimately she was selected. In this regard, we find that while submitting her application, the applicant had given an undertaking to the effect that since she could not submit (OA No.565/2022) (18) OBC certificate issued by the State Authority, Kerala, her application may be considered based on this undertaking that she will submit her OBC certificate issued by the State Authority subsequently. This undertaking is dated 05.05.2012 and was submitted along with the application.
25. Therefore it cannot be said that the applicant submitted any false certificate or she gave misleading information. It is also not in dispute that the undertaking given by the applicant was accepted, as based on her such undertaking the respondents invited the applicant for interview and the applicant also in adherence with the stipulation of the undertaking submitted OBC certificate, also accepted by the respondents. It is not clear to us as to how the applicant can be blamed for the same. Also as in the entire process, a number of officials were involved, the charge of personal approach is a mere surmise and not based on evidence.
26. Moreover, if her application was not complete in all respects, the competent authority amongst the respondents was well within his rights to summarily reject the application or not to consider the undertaking furnished by the applicant. But, the office considered her application and also verified her original certificates including her OBC certificate before she was allowed to sit in the written (OA No.565/2022) (19) examination/interview. After following the due procedure the respondents found her suitable for the post of Staff Nurse and, accordingly offered her an employment. If the OBC certificate was not in proper format, the respondents could have rejected it, but it was not done. This only shows that the respondents had no prescribed format in mind.
27. We also find that advertisement did not contain any format of caste certificate and there was no stipulation in the advertisement that the caste certificate should be submitted only in the prescribed format. Accordingly, the OBC certificate dated 25.05.2012 issued by the Tehsildar, Devikulam was dully verified and found in order and, thereafter she was allowed to appear in written examination/interview and finally selected.
28. We have perused the memorandum dated 09.07.2012 issued by the respondent no.3. It states that the applicant was allowed to appear for the written examination and interview for the post of Staff Nurse in the premises of the Institution on 14.07.2012 at 10 am. The applicant was also asked to bring his/her certificates in original in support including the caste certificate from competent authority. The needful was done by the applicant as per aforesaid instructions issued by the respondents. Therefore it is not (OA No.565/2022) (20) the case that the applicant made a back door entry, scuttling the due process of selection.
29. It has been submitted by the respondents that acceptance of the charged officer's application by hand is an instance of connivance between applicant and the said Director. This has led us to travel to the relevant advertisement against which the applicant had applied and was appointed. The advertisement states that the candidates who intend to apply for the post should send their application to the prescribed address. i.e "Director (Institute), Ayurveda Central Research Institute, Road No.66, Punjabi Bagh, New Delhi-110026."
30. It is evident from the advertisement that there was no bar on submitting the application by hand personally. On being queried, the learned counsel for the respondents does not deny this. Thus we do not find any illegality or connivance in accepting the application deposited by hand by the applicant.
31. It is also evident that the candidature of the applicant was considered by different committees like Screening Committee/Certificate Verification Committee and the officials who conducted Written Test, Evaluation and Selection, which was finally approved by the Director (OA No.565/2022) (21) General, CCRAS. In the circumstances, we fail to understand as to how single handedly the applicant through personal contact or through manipulation could have made her way through the selection process to get appointed finally. Moreover, the inquiry officer has not named, but for the said Director, particular persons from amongst organization with whom the applicant established personal approach or those who connived at different stages of selection process to favour the applicant. Also there is no indication about the method or means adopted by the applicant leading to her illegal selection. Also if the Director took certain decisions viz the applicant, the same was taken in his wisdom and it cannot be said that the applicant was a party to it.
32. Moreover, though in absence of relevant documents, the respondent had option of not allowing her to participate in written/interview test, after due verification of the documents, the applicant was allowed to appeared in written and interview tests. It appears that subsequently, the Selection Committee met to recommended candidates for the posts in question and finally on 26.07.2012, the applicant was informed that she has been selected for the post of Staff Nurse based on the written test and interview held on 14.07.2012. Accordingly, she joined her duty on 31.07.2012 wherein she was on probation for a period of (OA No.565/2022) (22) two years w.e.f.31.07.2012. In this entire process there is nothing to suggest that the applicant is any way influenced the decision taken by the respondents with regard to her participation in selection process or final selection or she submitted any forged documents to mislead the authority in any way.
33. The learned counsel for the respondents draws our attention to the CVC advice dated 13.12.2016 (Annexure R/4) wherein based on a reference from the Disciplinary Authority, the CVC recommended initiation of major penalty proceedings against nine officials including the applicant and the said Director Dr. M. M. Rao, who is said to have favoured the applicant.
34. The learned counsel for the respondents states that following complaints of large scale irregularity, departmental proceedings against Dr. M.M.Rao, Director was drawn and his questionable conduct with regard to the case related to the applicant was also one of the Articles of Charge, out of ten.
35. The Article of charge against the said Director mentions that he received the application of the applicant for the post of Staff Nurse on 07.05.2012. It is submitted that the departmental proceedings conducted against the said (OA No.565/2022) (23) Director established the charge related to the applicant's case and a major penalty of reduction by five stages in the time scale of pay for a period of five years w.e.f. 01.01.2019 has been imposed on him. He further submits that penalty has attained finality as his appeal has been rejected by the governing body of CCRAS, being the appellate authority in its 24th meeting held on 03.06.2020. The penalty imposed on him also stipulates that he would not earn increments during the period and reduction will not have the effect of postponing the future increment of pay. Citing the aforesaid, the learned counsel for the respondents submits that the dismissal of the applicant is perfectly justified.
36. The learned counsel also draws our attention to the DOP&T OM dated 10.01.2013 No.36011/1/2012-Estt. (Res.), particularly to the following:-
"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 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 penalty be imposed".
2. The position was reiterated vide this Department's OM No.42011/22/2006-Estt. (Res.) dated the 29th (OA No.565/2022) (24) March, 2007 that the cases other than those protected by the specific order of the Apex Court should be dealt with in order the instructions contained in the aforesaid OM However, it has been observed that disciplinary proceedings in the cases involving appointments on the basis of false/fake the certificates take considerable time and the persons who have secured employment on the basis of false coste certificates enjoy the benefits of Government service whereas such Government servants should be removed/ dismissed from the service at the earliest."
37. However, we find that this OM applies to the government servants who furnished false information/certificate in order to secure appointment or, who were not qualified or eligible in terms of the rules etc. But we find that the applicant had neither submitted any false information nor she was ineligible in terms of recruitment rules etc. Therefore, the said OM, to our mind, is not applicable in the case of the applicant. Also even if the charge against the Director of the Institute, which related to showing favour to the applicant was proved, it was a reflection on misconduct committed by the Director and it does not establish applicant's involvement.
38. Learned counsel for the respondents further places reliance on a catena of judgments as follows:
i) Hon'ble Supreme Court in PD Aggarwal vs. State Bank of India & Others MANU/SC/8122/2006 held as follows:
(OA No.565/2022) (25) A Constitution Bench of this Court in State of Orissa & Ors. vs. Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779] opined:
"The High Court has held that there was evidence to support the findings on heads (c) & (d) of Charge (1) and on Charge (2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed". .....It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal."
The Constitution Bench therein has clearly laid down that even if the charges which have been proved, justify imposition of punishment of dismissal from service, this Court may not exercise its power of judicial review.
ii) Hon'ble Supreme Court in State of Bihar vs. Upendra Narayan Singh & Others MANU/SC/04672009/2006 held as follows:
"It is not possible to finally decide from the evidences produced in this departmental inquiry that out of above three or fourth possibilities, which one is correct. One thing is though clear that charged officer had not left any of the papers related to appointment in his office (OA No.565/2022) (26) and the manner in which he adopted the working system of appointments, this strong possibility arises that even if documents were maintained, these were not maintained at office level. In such a case, the charged officer shall himself be responsible for non- availability of documents, irrespective of following the method of removing those documents or not maintaining any documents. As such, this charge is held to be proved to this extent.
[emphasis added]
32. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of averments contained in paragraph 4 of the counter affidavit filed before this Court by Shri Prasannjeet Kumar Singh (respondent no.3 herein) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them, the respondents have not produced copy of the order by which their services were regularised. Perhaps none exists. The statement furnished by counsel for the appellant, which is accompanied by documents marked `A' and `B', shows that in less than 7 months of the respondents appointment (except respondent no.1 who is said to have been appointed with effect from 9.10.1991), Dr. Darogi Razak is said to have written confidential memorandum bearing no.20 dated 11.5.1992 (Annexure `A') to District Animal Husbandry Officer, Aurongabad, Gaya that ad hoc appointments made vide Memorandum No.1467 dated 9.10.1991 are being regularized temporarily by the local appointments committee constituted on 11.5.1992. What is most amazing to notice is that the local appointments committee was constituted on 11.5.1992, the committee met on the same day and regularised the ad hoc appointments and on that very day the Regional Director sent confidentialletter to his subordinate, i.e., the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore, we have no hesitation to hold that the exercise undertaken by Dr. Darogi Razak for showing that appointments of the respondents were regularized (OA No.565/2022) (27) by the local appointments committee on 11.5.1992 was a farce.
33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits."
iii) Hon'ble Supreme Court in Panchmahal Vadodara Gramin Bank & Others vs. D.M.Parmar2012 (109) AIC 111 held as follows:
"10. On an examination of the enquiry report, we find that there were as many as ten charges against D.M. Parmar and the charges were of serious nature and out of these charges, only one charge was not fully proved, one charge was partly proved and one charge was deleted and rest of the charges were proved. In the conclusion, the enquiry officer has recorded the following findings:
FINDINGS (1) He did not take all possible steps to ensure and protect the interest of the Bank. In fact he took such steps and did such acts of omission and commission, which were derogatory, detrimental, prejudicial and injurious to the interest of the Bank. ..... Proved.
(2) He showed gross negligence and indifference in discharge of his duties. ..... Proved.
(3) He did not discharge his duties with utmost integrity and honesty but in fact did such acts of lack of probity on his part. .... Proved.
(4) He did not maintain discipline in all transactions and in discharging his duties s a Manager. In fct, he misused and abused his position as a Manager of the branch. ......Proved (5) He did not perform his duties with devotion and diligence and violated and flouted the rules of the Bank.
..... Proved.
(OA No.565/2022) (28) (6) He committed acts of breach of trust. .....Proved. (7) By his acts of misdeeds, he tarnished the image of the bank. ..... Proved.
(8)He did acts of unbecoming of a Bank Officer ..Proved These findings are all based on adequate material referred to in the inquiry report and these materials are mainly bank records. As has been held by this Court in the recent decision in General Manager(P), Punjab & Sind Bank & Ors. Vs. Daya Singh, (2010) 11 SCC 233, in which one of us (H.L. Gokhale, J.) was a party, as long as there are materials and evidence in support of the findings, the High Court cannot interfere with such findings in exercise of powers of judicial review under Article 226 of the Constitution of India. The learned single Judge of the High Court and the Division Bench of the High Court have, therefore, rightly not interfered with the findings. Once the findings of the Enquiry Officer, which have been quoted above, are not interfered with, we fail to see how the delinquent officer can avoid the punishment of dismissal from service. The findings include not only serious acts of negligence but also acts of dishonesty and lack of probity. The Court cannot probably take a view that punishment of dismissal was shockingly or strikingly disproportionate to the gravity of charges proved against D.M. Parmar.
(Emphasis added)
11. In the result, the impugned judgment of the Division Bench and the learned single Judge are set aside and the writ petition filed by D.M. Parmar is dismissed. Accordingly, C.A. No.2093/2007 is allowed and C.A. NO.2094/2007 is dismissed. There shall be no order as to costs."
iv) Hon'ble Supreme Court in Divya vs. Union of India & Others MANU/SC/1132/2023 held as follows:
"78. The rules clearly mandate and as has been held in the case of Gaurav Singh (supra), any mistake/omission/ negligence cannot be condoned so as to extend the deadline for production of the (OA No.565/2022) (29) documents. Neither the Office Memorandum nor the rules in question can be construed as directory. They prescribe clearly the eligibility criterion and the date before which the certificate should be possessed and the date before which the certificate should be submitted. They also prescribe the consequence for the omission. As the old ditty goes for a want of a horseshoe nail, kingdoms have been lost. Here we are dealing with crucial documents determining eligibility. The petitioners, who did not possess the valid documentation determining their eligibility, before the prescribed cut-off date, cannot complain, if their claim for categorization as EWS was rejected.
*** *** *** ***
85. We refuse to grant the petitioners refuge under Article142. In this case, by the rightful application of the OM and the CSE-Rules 2022, complete justice has been done to all. Article 142 is, no doubt, a useful weapon in the armoury of the Court. However, its exercise should be done with great caution and circumspection. We do not find the present case as one, warranting the invocation of that power.
Conclusion:
86. Based on the above discussion, our conclusions are as under :-
i) The candidates claiming benefit of EWS Category for the purpose of CSE-2022, acquire eligibility only if they meet the criterion prescribed by the Central Government in the O.M. dated 19.01.2019 and 31.01.2019 and are in possession of the required Income and Asset Certificate (I&AC), based on the income for the year 2020-
21.Further, as required under Rule 28 of the CSE Rules, 2022 read with the O.M. of 19.01.2019 and 31.01.2019 the candidate should have been in possession of the Income and Asset Certificate (I&AC) as on 22.02.2022. Any candidate not in possession of the I&AC in the prescribed format as mentioned herein above cannot claim the benefit of EWS Category. Equally, as required under Rule 13 of the CSE Rules, 2022 at the stage of DAF-I, (OA No.565/2022) (30) the document in possession as on 22.02.2022 in the prescribed format, had to be submitted online before the prescribed date. The UPSC was justified in rejecting the candidature of those candidates claiming benefit under the EWS Category if they had submitted their I&AC beyond the stipulated deadline. This conclusion has to be read with the reasoning in the judgment, particularly in paragraphs 39, 40 and 41 under the heading "Eligibility for EWS category candidates for CSE- 2022".
ii) As a sequel to conclusion (i) above, we record that the UPSC was justified in prescribing the cut- off date for possession and for uploading of the I&AC in the prescribed format for claimants claiming benefits under the EWS Category. This flows from the O.M. dated 19.01.2019 & 31.01.2019 read with Rules 13, 27(3) and 28 of the CSE-Rules, 2022 and the long line of judgments in which principles for prescription of cut-off for eligibility are laid down.
iii) For the reasons set out in paragraphs 47 to 50 herein above under the sub-heading "Legal Status of CSE-2022 Rules", we hold that the CSE-2022 Rules have the force of an enforceable law. They are traceable to the All India Services Act, 1951 read with the Indian Administrative Service (Recruitment) Rules, 1954 read with the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 and all this read with Article 73 of the Constitution of India.
iv) Rules 13, 27(3) and 28 of the CSE-Rules, 2022 are constitutionally valid for the reasons set out in para 61 herein above under the sub-heading "Validity of CSE- Rules, 2022 - Validity of the cut- off date".
v) The UPSC was justified in rejecting the claim of the petitioners, for consideration under the EWS Category in CSE-2022."
(OA No.565/2022) (31)
39. The learned counsel also draws our attention to the judgment of the Hon'ble Supreme Court in Civil Appeal No.23631/2008 in Union of India and others Vs. P. Gunasekaran. Our attention is drawn to para 13, which reads as follows :-
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. The enquiry is held by a competent authority. b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(OA No.565/2022) (32) i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence:
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
40. Stress is laid by the learned counsel on Para 19 of the said order of the Hon'ble Supreme Court wherein it was held as under :-
"19. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, (OA No.565/2022) (33) purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
41. We have considered the above cited judgments. The import of these judgments points out toward the restricted power of judicial review with the courts, more so if the penalty of removal/dismissal is in the face of illegal appointment. By relying on the above judgment, the learned counsel for the respondents drives home that the Tribunal has a very limited jurisdiction in such cases, unless the case does not attract the principle laid down by the Hon'ble Supreme Court. Further by placing reliance on Divya vs UoI (supra), it has been contended that since the applicant was not in possession of OBC certificate on the last date of submission of application, the candidature of the applicant was liable to be rejected and hence her selection was wrong. Thus, it is argued that the applicant has rightly been removed from service.
42. However, we are of the view that looking at the entire case into totality it was the respondents who extended the date of application, accepted the undertaking, allowed the applicant to submit OBC certificate subsequently and also permitted her to appear in written test and interview, leading to her final selection and appointment. We have to (OA No.565/2022) (34) accept that if there was any lapse on the part of the applicant such as not submitting the OBC certificate within the stipulated time, she was upfront about it and it was brought to the notice of respondents by the applicant herself transparently. At no point she misleads the respondents, tried to hide any information or influenced any one to accept her caste certificate. Thus by taking note of the inquiry report which has been accepted by the disciplinary and the appellate authorities, we find that this is a case of no evidence as the documents on record show that the applicant was not guilty of any misconduct which can be termed as motivated or done in connivance with someone or with ulterior motive. Thus, we are of the view that the ratios of judgments cited do not help the cause of respondents. In fact, the judgment in the case of UoI vs Gunasekaran (supra) supports the cause of applicant as this appears to be a case of no evidence. Accordingly, we have no doubt in inferring that the penalty of removal from service imposed upon the applicant is unfair.
43. We are conscious that it is the sole discretion and prerogative of the disciplinary authority to impose any of the penalties listed in the disciplinary rules and dismissal is one of such penalties. We have no reason to question the wisdom and authority of the disciplinary authority while (OA No.565/2022) (35) passing an order with respect to such a penalty. We are also conscious of the fact that our authority is limited only to adjudicate the legality of an action and not to dwell upon the wisdom of the said authority in exercise of its legitimate powers. We are also aware that the Courts in a catena of judgments have held that Courts and Tribunals should refrain from substituting the authority and wisdom of the disciplinary authority by their own assessment. However, at the same time, responsibility is cast upon us that while upholding the law, Principles of Justice also must be protected. We have no hesitation in holding that the facts and circumstances of the present case warrant us to interfere in the orders of the disciplinary and appellate authorities, as the findings of fact are based on no evidence. Accordingly, holding that the penalty of removal imposed upon the applicant and affirmed by the appellate authority is unjust and vide order dated 15.01.2018, to be excessive and we set aside the said orders, more so because the documents on record do not show that the applicant was guilty of misconduct .In the instant case, we find no role of the applicant so far decisions relating to acceptance of her application, verification of her OBC certificate, and the subsequent selection process of written test and interview and, her final selection and appointment are concerned.
(OA No.565/2022) (36)
44. In view of the above discussions, the OA is allowed and the following is ordered:
1) The impugned orders dated nil November 2019 and dated 11.03.2019 removing the applicant from service are set aside.
2) Respondents are directed to reinstate the applicant from the date of her removal from the service.
3) The applicant shall be entitled for consequential benefits in accordance with the relevant rules and instructions on the subject.
4) Needful in this regard will be done by the respondents as expeditiously as possible and preferably within eight weeks from the date of receipt of certified copy of this order. There shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/