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Madhya Pradesh High Court · body

2002 DIGILAW 1066 (MP)

Ashok Jayant v. State of M. P.

2002-12-04

RAJENDRA MENON

body2002
ORDER 1. By this petition, petitioner has called in question the order (Annexure P-1), dated 14-9-2000 passed by the State Government by which the claim of respondent No. 4 for reconsideration of the orders of punishment issued against him and the consequential orders rejecting his appeal have been reviewed by the State Government and the respondent No. 4 has been taken back in service. 2. The petitioner claiming himself to be a Member of the District Level Vigilance and Monitoring Committee, Gwalior has filed the present petition challenging the aforesaid order inter alia on the ground that the respondent No. 4 while seeking appointment in the service of the State had produced fake and false certificate dated 19-12-1991 by which it was indicated that he is a person belonging to the reserved community and because of the atrocity suffered by him, he is entitled to be granted benefit of appointment in Government service. It is the case of the petitioner that on compassionate grounds appointment was granted to the respondent No. 4 to the post of Assistant Teacher/Superintendent in the Adim Jati Harijan Kalyan Vibhag. 3. The petitioner contends that the said respondent No. 4 had not suffered atrocities and he has obtained the appointment by producing the false and fake certificate, therefore, complaints were made against him. It is contended that the respondent No. 4 was not entitled to compassionate appointment on the basis of the certificates allegedly submitted by him in view of the circular of the State Government as contained in Annexure P-4, dated 24-7-1980. 4. As the initial appointment of the respondent No. 4 was illegal and contrary to the provisions of the policies and circulars of the State Government, a show-cause notice dated 11-8-1997 was issued to him and after conducting proper enquiry, vide order (Annexure P-6), dated 6-5-1999, he was removed from service as per the provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, after conducting departmental enquiry. Appeal preferred by the petitioner against the aforesaid order was dismissed by the Commissioner, Gwalior vide order (Annexure P-7), dated 30-12-1999. It is the case of petitioner that respondent No. 4 was proceeded against departmentally for having obtained the appointment by giving false certificate and finally after giving him opportunity of hearing, his services were terminated by the disciplinary authority. Appeal preferred by the petitioner against the aforesaid order was dismissed by the Commissioner, Gwalior vide order (Annexure P-7), dated 30-12-1999. It is the case of petitioner that respondent No. 4 was proceeded against departmentally for having obtained the appointment by giving false certificate and finally after giving him opportunity of hearing, his services were terminated by the disciplinary authority. Appeal preferred by the respondent No. 4 was also rejected and the validity or otherwise of the aforesaid order of punishment is pending adjudication before the Madhya Pradesh State Administrative Tribunal in O. A. No. 1750/2000 which was filed by the respondent No. 4. 5. Even though, action has been taken against the respondent No. 4 in accordance with rules and the matter is sub-judice before the competent Tribunal, the impugned order (Annexure P-1), dated 14-9-2000 has been passed, by which the respondent No. 4 has been reinstated in service. 6. The petitioner has challenged the aforesaid order in this petition on the ground that respondent No. 4 has committed fraud, and therefore he is disqualified from holding the post. The same having been established in the departmental proceedings conducted against him, the respondents have exercised their administrative power incorrectly in an arbitrary manner with a view to extend undue benefit to the respondent No. 4 and to reinstate the respondent No. 4 in service. In the facts and circumstances of the case, it is detrimental to the interest of the public at large and is adversely affecting the rights of the employees of the reserved community by reinstating the respondent No. 4 as he has been posted as Hostel Superintendent in the Jila Sanyojak Adimjati and Janjati Kalyan Vibhag, Khedapati Colony, Gwalior, he is unfit to discharge his duties, and therefore, prayer made is to issue quo warranto or prohibition restraining the respondent No. 4 from discharging the duties. During the course of hearing, it has been emphasised by the learned Counsel for the petitioner that the respondents have exercised the power of taking action against the respondent No. 4 by removing him from the service and his appeal having been rejected by the competent authority, there was no occasion to reconsider the matter. 7. During the course of hearing, it has been emphasised by the learned Counsel for the petitioner that the respondents have exercised the power of taking action against the respondent No. 4 by removing him from the service and his appeal having been rejected by the competent authority, there was no occasion to reconsider the matter. 7. Referring to a judgment of the Supreme Court in the case of State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669 , and in particular inviting attention to the observations made in Paragraph 32 it is contended that once the procedural provision, which is mandatory in nature has been substantially complied with then the order passed in accordance with such mandatory provision cannot be set aside. It is, therefore, argue that in the present case as action has been taken against the respondent No. 4 on the basis of the statutory and mandatory provisions, the respondent Nos. 1 to 3 have no right to reinstate the respondent No. 4. It is further submitted that looking to the nature of allegations which have come on record, the conduct of respondent No. 4, disentitle him from holding any office. 8. Respondents have filed returns. As far as the respondent Nos. 1 to 3 are concerned, it is put forth by them that after the order was passed vide Annexure P-6 removing the respondent No. 4, an appeal was preferred by him before the competent authority and the competent authority had rejected the appeal. As far as Annexure P-7, dated 30-12-1999 passed by the Commissioner is concerned, it is argued that the Commissioner has held that the appeal filed before him was not maintainable as the State Government has already rejected the appeal on 12-11-1999. It is the contention of the State Government that the respondent No. 4 has submitted a detailed application for review of the decision pointing out various discrepancies and infirmities in the impugned order passed against him. These were considered by the competent authority of the State Government and on scrutiny of the material, it was found that the evidence and material on the basis of which punishment was imposed against respondent No. 4 was not sufficient to hold that the respondent No. 4 was guilty of the charges levelled against him. That being so, his review application was considered and he was reinstated in service. That being so, his review application was considered and he was reinstated in service. It is the case of respondent Nos. 1 to 3 that the appellate authority is empowered to reconsider the matter in accordance with the provisions of Rule 29 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The competent authority is therefore, empowered to act under the aforesaid provision to review its own decision and on reasonable consideration of the material has recorded a finding that the action of removal from service of respondent No. 4 is not justified, and therefore, impugned order (Annexure P-1) was passed. 9. As far as the respondent No. 4 is concerned, Shri N.C. Jain, learned Counsel appearing for the said respondent taking me through various documents filed by him, the findings recorded by the authorities and other material submitted that the respondent No. 4 is not guilty of charges levelled against him. Referring to the order of removal from service (Annexure P-6), dated 6-5-1999, he has submitted that a finding has been recorded in Paragraph 3 of the said order, in Paragraph 3/(1), it has been indicated that as far as the certificate issued to respondent No. 4 with regard to his having been a person affected by atrocities is concerned, a finding has been recorded that after enquiry it was found that there is no doubt that this certificate is genuine. Inviting attention to the order (Annexure P-6), Shri Jain submitted that after having narrated the defence of the applicant in Paragraphs 2 and 3, and after considering the same with regard to production of false certificate, a finding has been recorded in Paragraph 3.1 in favour of respondent No. 4. However, on the grounds mentioned in Paragraph 3/(2) to the effect that compassionate appointment could be granted only to legal heirs of the deceased person who dies in harness, punishment has been imposed on the ground that appointment of the respondent No. 4 is not justified. Referring to various documents and averments made, it has been emphasised by Shri Jain that in fact, the respondent No. 4 has not produced any false certificate but on an incorrect assumption that he is not entitled to compassionate appointment, order of removal was passed. Referring to various documents and averments made, it has been emphasised by Shri Jain that in fact, the respondent No. 4 has not produced any false certificate but on an incorrect assumption that he is not entitled to compassionate appointment, order of removal was passed. Further referring to a circular, Annexure R-4, dated 11-8-1998, issued by the State Government, he has pointed out that it is a policy of the State Government that in cases where members of the Scheduled Castes and Scheduled Tribes have suffered because of atrocities, they are entitled to appointment in the State services on compassionate consideration. It is submitted by him that in the case of respondent No. 4, this procedure was also followed and when these matters were not considered in proper perspective at the time of passing the impugned orders by the authorities concerned, on review application filed by the respondent No. 4, the State Government on due consideration of the same has issued the order of reinstatement. That being so, it is submitted by him that it is not a case where this Court in exercise of its extra-ordinary jurisdiction should interfere and exercise the discretion in favour of the petitioner who has filed the present petition only to ventilate his personal grievances and is not at all justified in impugning the action of the State Government. 10. I have heard the learned Counsel for the parties. 11. Even though, during the course of hearing, petitioner's Counsel tried to emphasise that the respondent No. 4 is not competent to hold the post as he has obtained the appointment by producing fake and false certificate but from the findings recorded in Annexure P-6 in this regard, and on due consideration of the other material available on record as elaborately referred to by Shri Jain during the course of hearing, prima facie, the aforesaid submission that respondent No. 4 obtained employment by obtaining fake and false certificate seems to be without any basis. However, at this stage, it is felt by me that it would not be proper to dwelve into the merits of this aspect of the matter because the original application filed by the respondent No. 4 before the State Administrative Tribunal is still pending and it would be for the said Tribunal to take a decision in the matter. However, at this stage, it is felt by me that it would not be proper to dwelve into the merits of this aspect of the matter because the original application filed by the respondent No. 4 before the State Administrative Tribunal is still pending and it would be for the said Tribunal to take a decision in the matter. For the present, however, prima facie the allegations seems to be incorrect and a perusal of Annexure A-6 and the findings recorded therein in Paragraph 3.1 of the said order goes to indicate that this aspect of the matter is not correct. That apart, the question in the present case is as to whether interference into the action taken by the respondent/State is warranted in the facts and circumstances of the present case. The respondent No. 4 is an employee of the State. He was proceeded against departmentally in accordance with the provisions of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The departmental authority had passed the order of punishment. The appellate authority initially rejected the same but on a further prayer for review being made by respondent No. 4, reconsidered the matter and came to the conclusion that the allegations against the said respondent are not established from the evidence which has come on record, there is no specific evidence to prove that he is guilty of the charges levelled against him and in the facts and circumstances, the competent authority felt that removal of the respondent No. 4 from service is not warranted. Accordingly, the order (Annexure P-1) was passed. This Court can only interfere in the matter in case it is found that in passing the order (Annexure P-l), the respondent/State Government has acted in an unreasonable and arbitrary manner or the authority which had passed the order is not empowered or vested with the jurisdiction to pass such order according to law. It is only if the aforesaid aspect of the matter is found to be correct, interference can be made by this Court. 12. As far as the power to review its decision is concerned, the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 gives power to the appellate authority to review its own decision under Rule 29. It is only if the aforesaid aspect of the matter is found to be correct, interference can be made by this Court. 12. As far as the power to review its decision is concerned, the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 gives power to the appellate authority to review its own decision under Rule 29. That being so, it has to be held that the appellate authority which passed the order (Annexure P-l), dated 14-9-2000 is empowered under the rules to review its own decision. Referring to Sub-clause (iii) of Rule 29, during the course of hearing, Shri Naik, learned Senior Counsel tried to emphasise that the appellate authority can exercise this power of review only within six months and not thereafter. I am afraid, the aforesaid submission is misconceived if read with the provisions of Rule 31 which empowers the competent authorities exercising powers under the rules to relax time limit and condone the delay. Accordingly, it is to be held that Rule 29 read with Rule 31, empowers the appellate authority to review its earlier decision. That being so, the respondent had the power to reconsider the matter. The reference made by the learned Senior Counsel to the observations made by the Supreme Court in Paragraph 32 of the judgment in the case of State Bank of Patiala and others (supra), will not apply in the facts and circumstances of the present case because the observations made and the criteria laid down in Paragraph 32 with regard to compliance of mandatory provision is to be considered with regard to challenge made to a departmental enquiry by an employee while challenging the enquiry held against him. 13. As already indicated hereinabove, once it is held that the appellate authority has got power to review its own decision. The aforesaid, judgment will not apply in the peculiar facts and circumstances of the present case. Accordingly, the aforesaid submission of the learned Senior Counsel for the petitioner is devoid of substance and is rejected. 14. The only question which now survives is as to whether the order passed is just and reasonable or is it liable to be interfered with being arbitrary or unjust. 15. Accordingly, the aforesaid submission of the learned Senior Counsel for the petitioner is devoid of substance and is rejected. 14. The only question which now survives is as to whether the order passed is just and reasonable or is it liable to be interfered with being arbitrary or unjust. 15. The only submission of the petitioner in the present case is that the respondent No. 4 having got appointed in the department by producing fake and false certificate is unfit to continue in the post. As already indicated above, prima facie, the allegation of seeking appointment by producing false certificate cannot be said to be correct. However, this aspect of the matter has been considered by the appellate authority and it has come to the conclusion that on the basis of evidence that has come on record, the allegation seems to be incorrect. The competent authority having arrived at a conclusion on the basis of material and evidence on record, which prima facie seems to be correct cannot be said to have acted in an unreasonable or arbitrary manner. 16. The object of issuing a writ of quo warranto is to prevent a person who has wrongfully usurped an office from continuing in the service. Such writs are issued to call upon the holder of the post to show as to how and on what basis he is entitled to continue in office and he is required to establish before the Court as to under what authority he is holding the office. One of the criteria which is essential before claiming the aforesaid writ is to satisfy that the office in question is a public office and the appointment of the alleged usurper is not made in accordance with law. In cases of appointment to ministerial staff and other lower posts which are made in accordance with law, a writ of quo warranto cannot be issued to such an occupant merely on the ground that he is holding the office in a wrongful manner. In this regard, law laid down by the Supreme Court in the case of Chandra Mohan v. State of U.P. AIR 1966 SC 1987 , is very relevant. 17. In the present case, it cannot be said from the material which has come on record, the appointment of respondent No. 4 is contrary to any procedure. In this regard, law laid down by the Supreme Court in the case of Chandra Mohan v. State of U.P. AIR 1966 SC 1987 , is very relevant. 17. In the present case, it cannot be said from the material which has come on record, the appointment of respondent No. 4 is contrary to any procedure. That apart, writ of quo warranto is a discretionary right and the petitioner in such cases is not entitled to issue the writ until and unless it is established that the person holding the office is totally incompetent to hold the office, his appointment being contrary to procedure established under law or mandatory provision, or his holding the office is detrimental to the interest of the public at large. 18. Viewed in the light of the aforesaid principle, present is not such a case of that nature. Present is a simple case where departmental action initiated against respondent No. 4 was reconsidered by exercising the power of review conferred on the appellate authority and on consideration of the evidence and material which has come on record, the said authority has on the grounds and reasons available on record reconsidered its earlier decision. In that view of the matter, it cannot be said that the action of the respondents is arbitrary or unreasonable. 19. When power is conferred on an authority by a statute for the purpose of doing a particular thing, the said power must be exercised reasonably and the Court will only exercise its jurisdiction of interference and judicial review if it is established from the material on record that the authority empowered under the rules to take a decision has travelled beyond the bounds of legal reasonableness into the area and by exercising the discretion has acted contrary to the settled norms and in fact, a conclusion can be drawn that the discretion has been exercised by transgressing the bounds in a manner which can be said to be ultra vires. The basic principle as laid down in the administrative law for the purpose of interference in cases of misuse of discretion is that the Courts should be satisfied that power has been exercised contrary to statutory provisions or in an arbitrary manner. The basic principle as laid down in the administrative law for the purpose of interference in cases of misuse of discretion is that the Courts should be satisfied that power has been exercised contrary to statutory provisions or in an arbitrary manner. The Courts have to take a pragmatic view and if it is found that the decision is within the compliance of reasonableness, it is not the function of the Court to look further into its merit. 20. The exercise of discretion by the authorities in the present case if viewed in the light of the aforesaid principle of law applicable in administrative matters cannot be said to be unreasonable or arbitrary, nor can it be said that in passing the order (Annexure P-1) the authorities of the State Government or the competent authority has travelled beyond their discretionary limit and have exercised the discretion in an unreasonable or arbitrary manner in the matter of reconsideration of their earlier decision. 21. Having considered the totality of the facts and circumstances of the case in the light of the discussion hereinabove, it cannot be held that the respondents in passing the impugned order have violated any statutory provision or acted in a manner warranting interference by this Court in exercise of its limited jurisdiction under Articles 226 and 227 of the Constitution. 22. Accordingly, there is no merit in the petition and the same is dismissed. 23. In view of the above, parties to bear their own cost.