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2006 DIGILAW 986 (PAT)

Raja Ram v. State Of Bihar

2006-11-02

AFTAB ALAM

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Judgment Aftab Alam, J. 1. The petitioner who was a constable in the Bihar Military Police IX, Jamalpur was dismissed from service on charges of gross indiscipline, cheating, getting appointment on a vacancy reserved for Scheduled Castes by concealing and misrepresenting his caste and for conduct-unbecoming of a good constable. 2. The substance of the charge against the petitioner was that though he was the natural son of parents belonging to Barber (Nai) caste, at the time of appointment he fraudulently represented himself to belong to Dusadh caste (one of the Scheduled Castes) and was thus able to secure employment by cheating. As a result of his name being included in the list of Scheduled Castes constables, he also got a chance to participate in the Senior Promotion Course. Later, on enquiry being made at his home address, the fraud came to light. On the aforesaid charges, the petitioner was subjected to departmental enquiry No. 33 of 2000. The petitioner admitted that he was indeed the natural son of parents who were Barber (Nai) by caste and the name of his father was Gyani Ram. However, he pleaded in defence that at the age of 9 years, he was adopted by one of the friends of his father, namely, Ramdeni Ram who was Dusadh by caste. He was brought up by Ramdeni Ram. He was the adopted son of Ramdeni Ram and as a result, his caste was converted from Nai to Dusadh. He further stated that he did not commit any concealment or fraud at the time of employment. In the departmental enquiry, he produced some materials and evidences that included certain affidavits and a VASIYATNAMA, dated 24.05.2002 executed by Ramdeni Ram, according to which the ritual of his adoption took place on 14.01.1966. He also filed a certificate issued from the Office of the B.D.O. on 30.11.2002 describing him as belonging to PASWAN caste. 3. At the conclusion of the enquiry, the Enquiry Officer submitted his report on 5.7.2001 finding that the charges were fully established against the delinquent. On the basis of the enquiry report, the petitioner was given a second show cause notice and finally he was dismissed from service by order dated 11.06.2001 passed by the Commandant, Bihar Military Police IX, Jamalpur. Against the order of the Commandant, the petitioner preferred an appeal before the D.I.G., Military Police, North Division, Muzaffarpur. On the basis of the enquiry report, the petitioner was given a second show cause notice and finally he was dismissed from service by order dated 11.06.2001 passed by the Commandant, Bihar Military Police IX, Jamalpur. Against the order of the Commandant, the petitioner preferred an appeal before the D.I.G., Military Police, North Division, Muzaffarpur. The D.I.G. dismissed the appeal by order, dated 28.09.2001. The petitioner then filed a memorial before the Director General and Inspector General of Police, Bihar, Patna. His memorial too was dismissed by order, dated 16.10.2003. The order takes into account all the relevant facts and circumstances and confirms the orders passed by the Commandant and the D.I.G. after due consideration of the materials on record. The D.G.P. noticed that the Commandant and the D.I.G. both found that all the materials relied upon by the petitioner in support of his case were issued/made after the charges were served upon him and those appeared to be brought into existence with the object of creating a defence for the delinquent constable. The Departmental Authority, therefore, took the view that those were not worthy of reliance. 4. On hearing Counsel for the parties and on going through the materials on record, it appears to the Court that the petitioner was charged with securing employment on a post reserved for the Scheduled Castes by deliberate misrepresentation of his own caste. He was subjected to a departmental enquiry in which he was given full opportunity to place his case. In the enquiry, the charge was established and on that basis he was dismissed from service. The entire procedure appears to be faultless. There was no irregularity in the departmental enquiry and the finding recorded in the enquiry report appears to be quite correct, valid and reasonable. On the basis of the finding, the punishment of dismissal appears to be quite appropriate. On these facts, this Court should have been completely disinclined to interfere in the matter in any way. 5. Learned Counsel, however, submitted that in the order of the D.G.P., it was noticed that the petitioner was appointed on 28.01.1976 and he was dismissed from service on 11.06.2002. He thus served for a period of 25 years during which he was given 21 awards and ten minor and five major punishments. 5. Learned Counsel, however, submitted that in the order of the D.G.P., it was noticed that the petitioner was appointed on 28.01.1976 and he was dismissed from service on 11.06.2002. He thus served for a period of 25 years during which he was given 21 awards and ten minor and five major punishments. Learned Counsel submitted that on identical facts, this Court had set aside the dismissal order passed against a person appointed as Deputy Superintendent of Police and had directed for his reinstatement in service subject to the condition that he should not be allowed the benefits admissible to the Scheduled Castes. Learned Counsel referred to the decision in Madhusudan V/s. The State of Bihar and Ors. 2002 (1) PLJR 767 . The decision was indeed rendered on a set of facts very similar to those in the present case. In that, decision, a learned Single Judge of the Court, relying upon a Supreme Court decision in Kumari Madhuri Pati and Anr. V/s. Additional Commissioner, Tribal Development and Ors. - made the following observations and directions. I do not wish to go into questions of fact. Though I am inclined to think that the so called adoption was for ulterior motive, such as benefits in public employment etc. this had happened much prior to the recruitment. There cannot be doubt, in the facts and circumstances, that the petitioner was not eligible for appointment to the Bihar Police Service. As seen above, two out of four vacancies falling in the reserved category, as per roster point, were meant for Extremely Backward and Scheduled Caste categories candidates. There being no other vacancy in the Backward Class category, if he were treated as OBC candidate, the petitioner could not have been re-commended. In fact, the marks secured by him was less than the marks secured by the General category and, therefore, he could not have been recommended for the Police Service in the General category either. However, the appointments are fait accompli having taken place about a decade ago in 1993. Even if the petitioner, is removed from service, the resultant vacancy is not likely to be filled up from the merit list prepared on the basis of said Competitive Examination by appointing a Scheduled caste candidate in his place. However, the appointments are fait accompli having taken place about a decade ago in 1993. Even if the petitioner, is removed from service, the resultant vacancy is not likely to be filled up from the merit list prepared on the basis of said Competitive Examination by appointing a Scheduled caste candidate in his place. Though he had qualified for appointment to the Bihar Administrative Service on merit as the last candidate recommended for appointment to the said service in the general category had secured less marks than him, no direction can be issued to appoint him to the said service at this stage. That may also unsettle the seniority of the recruits of the 37th Combined Competitive Examination and subsequent Examinations. The Commission and, indeed, the State Government having accepted the candidature of the petitioner in the S.C. category (it was open to them to make an inquiry in respect of his social status at the stage of recruitment), and appointed him in the said category, the appointment having continued for 9 years, it would not be proper to allow the State to terminate his appointment at this stage, with a direction, however, that the petitioner would not be treated as an officer of the Scheduled Caste category and accordingly be entitled to any advantage as such in the service, as was done by the Supreme Court in Kumari Madhuri Pati and Anr. V/s. Additional Commissioner, Tribal Development and Ors. -. That was a case in which the admission of the concerned candidate in the S.C. category was held to be illegal but as she had already completed the course, she was allowed to appear at the final examination with a direction that in future she cannot be treated as S.C. candidate. 6. In light of the decision in Madhusudan, this writ petition too has to be allowed. The orders of dismissal coming under challenge are accordingly set aside and the petitioner is directed to be taken back in service (without back wages) subject to the direction that he would not be treated, as a constable of the Scheduled Castes category and accordingly he shall not be entitled to any benefits as such in the service.