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2010 DIGILAW 1160 (ALL)

RAJENDRA PRASAD GUPTA v. STATE OF U. P.

2010-04-08

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard Shri T.P. Singh, Senior Advocate assisted by Shri A.P. Srivastava on behalf of the petitioner and learned Standing Counsel for the State-respondents. 2. Petitioner Rajendra Prasad Gupta was appointed as Additional Money Lending Clerk on 6.10.1977 in Collectorate District Varanasi. The services of the petitioner were terminated under order of the District Magistrate dated 30.9.1983 on the ground that the petitioner had obtained the appointment on the basis of his being a member of Scheduled Caste and which he was not. Not being satisfied by order so passed by the District Magistrate, the petitioner filed Claim Petition No. 302(I) of 1983 before the U.P. Public Service Tribunal, Lucknow. It was contended that his services had been terminated without holding any departmental enquiry and the order was punitive in nature. Counter-affidavit was filed by the authorities and it was submitted that the petitioner was appointed as Clerk on temporarily basis in the background that he was a member of the Scheduled Caste, his name was also recommended as Scheduled Caste candidate by the Employment Exchange. The Selection Committee selected the petitioner treating him to be a member of Scheduled Caste. It was stated that the petitioner had applied for this post claiming to be member of Scheduled Caste. The fact qua petitioner being a member of Scheduled Caste was found to be false and since the petitioner was only temporary employee, his services were terminated as per rules without notice. 3. The Tribunal decided the claim petition vide order dated 12.7.1984 and it was held as follows : “It is also undisputed fact that the petitioner applied for the post as a member of the Scheduled Caste. His name was recommended by the District Selection Committee treating him to be a member of the Scheduled Caste. He was thus appointed on the reserved quote.” 4. The Tribunal in its last paragraph also specifically noticed that the petitioner claims himself to be a member of the Scheduled Caste which was a serious matter and it is to be proved thoroughly, so that he may not be victimised in a slipshod manner or charged of obtaining a false caste certificate. It will be worthwhile to reproduce the last paragraph of the order of the Tribunal. “We feel that the petitioner writes his name as Gupta, which is done by the members of the Vaishya Community. It will be worthwhile to reproduce the last paragraph of the order of the Tribunal. “We feel that the petitioner writes his name as Gupta, which is done by the members of the Vaishya Community. The petitioner, however, claims himself to be a member of the Scheduled Caste. This is a serious matter and needs to be probed thoroughly, so that a person may not be a victimised in such a slip shod manner or a person may not change his community by obtaining false certificate from the authorities who are not competent to do so; in such a light manner. There is nothing on record indicate what action was taken by the authorities concerned against the Tehsildar, who had issued the certificate. We feel that such matters cannot be lightly brushed aside and it will be within the competence of the authorities concerned to take such departmental action in the matter as may be considered.” 5. The Tribunal accordingly set aside the order and permitted that, regular proceedings against the petitioner be taken in accordance with law. 6. Accordingly, a show-cause notice was issued to the petitioner to which the petitioner submitted his reply. Pargana Adhikhari, Varanasi was appointed as the Enquiry Officer. Inquiry proceedings were concluded and report was submitted on 29.11.1990. On receipt of the inquiry report, a show-cause notice dated 31.7.1991 was issued to the petitioner calling upon him to submit his reply to the inquiry report. Rajendra Prasad Gupta submitted his reply on 12.8.1991. In reply, it was stated that earlier Shri R.B. Singh Pargana Adhikari, Gyanpur was appointed enquiry officer, who submitted his report on 13.2.1985 exonerating the petitioner of the two charges. It is admitted that a second show-cause notice dated 31.7.1991 was received to which petitioner submitted his reply. The District Magistrate not being satisfied with the explanation, vide order dated 30.12.1991 held that the petitioner had obtained employment on incorrect facts. He was not a member of the Scheduled Caste category and, therefore, he has been dismissed. 7. Challenging the order of the District Magistrate, counsel for the petitioner took a stand before the Courts that after the enquiry was concluded by Shri R.B. Singh, final order was passed by District Magistrate on 13.2.1985 holding therein the charges were not proved. The order dated 13.2.1985 had become final and, therefore, no proceedings could have been taken thereafter. 7. Challenging the order of the District Magistrate, counsel for the petitioner took a stand before the Courts that after the enquiry was concluded by Shri R.B. Singh, final order was passed by District Magistrate on 13.2.1985 holding therein the charges were not proved. The order dated 13.2.1985 had become final and, therefore, no proceedings could have been taken thereafter. In support of the plea, reference was made to the various orders issued granting promotion to the petitioner. It was vehemently contended by Shri T.P. Singh, Senior Advocate that once the petitioner has been exonerated of the charges under the earlier enquiry, no subsequent inquiry is permissible. 8. Counter-affidavit has been filed on behalf of the State-respondents and it has been stated that the order relied upon by the petitioner dated 9.9.1985 and brought on record before this Court is a forged document. It was clarified that the enquiry report dated 13.2.1985 was considered by the District Magistrate vide his order dated 17.5.1985 wherein it was recorded that the matter be referred to the Enquiry Officer for obtaining his comments. It is the specific case of respondents that the District Magistrate never exonerated the petitioner of the charges and the order dated 9.9.1985 enclosed alongwith the writ petition, is a forged document. In the rejoinder affidavit and supplementary affidavit filed by petitioner he has brought on record a photostat copy of the alleged order of the District Magistrate dated 9.9.1985 as RA-I. 9. A bare perusal of the document RA-1 would establish that it is only a draft prepared, it has neither been signed by the District Magistrate nor it was ever dispatched to the petitioner. In these set of circumstances, this Court has no hesitation to hold that the stand taken by the State authorities that the petitioner was not exonerated of the charges as claimed by him under order of the District Magistrate dated 9.9.1985 is correct and the petitioner has wrongly stated in the writ petition that he was exonerated of all the charges under the order dated 9.9.1985. 10. 10. It may be recorded that the Constitution Benches of the Hon’ble Apex Court in Bachhittar Singh v. State of Punjab and another, AIR 1963 SC 395 ; State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 , have held that an order does not become effective unless it is published and communicated to the person concerned and before the communication, the order cannot be regarded as anything more than provisional in character. 11. Similar view has been reiterated in Union of India and others v. Dinanath Shantaram Karekar and others, AIR 1998 SC 2722 ; State of West Bengal v. M.R. Mondal and another, (2002) 8 SCC 443. 12. In Laxminarayan R. Bhattad and others v. State of Maharastra and another, (2003) 5 SCC 413 , the Hon’ble Supreme Court has held that the order of the authority must be communicated for conferring an enforceable right and in case the order has been passed and not communicated, it does not create any legal right in favour of the party. 13. In the facts of the case, the only order signed by the Competent Authority and communicated to the petitioner after departmental enquiry is the order of punishment. Original records from the office of District Magistrate were called for by this Court and were examined in the presence of the counsel for the petitioner. No such order dated 9.9.1985 signed by District Magistrate exists on record. 14. The petitioner is liable to be non-suited on this ground inasmuch as he is guilty of wrongful statement of facts (Para 11 W.P.) as well as for filing false documents. Ref : The Ramjas Foundation and others v. Union of India and others, AIR 1993 SC 852 and K.R. Srinivas v. R.M. Premchand and others, (1994) 6 SCC 620 . 15. There is another aspect of the matter which disentitles the petitioner from any equitable relief under Article 226 of the Constitution of India. 16. Before the Public Service Tribunal, it was an admitted case of the petitioner that he had applied for the post as member of Scheduled Caste. His name was recommended by the District Selection Committee treating him to be a member of the Scheduled Caste and he was appointed against the reserved quota. The petitioner in order to obtain as favourable order from the Tribunal specifically claimed that he was a member of the Scheduled Caste. His name was recommended by the District Selection Committee treating him to be a member of the Scheduled Caste and he was appointed against the reserved quota. The petitioner in order to obtain as favourable order from the Tribunal specifically claimed that he was a member of the Scheduled Caste. The relevant portion of this order of the Tribunal has already been quoted above. 17. Before this Court a converse stand has been taken, namely that the petitioner is not a member of the Scheduled Caste and he did not make any application claiming benefit of reservation for the purposes of appointment. It has therefore been urged that mistake, if any, in the letter of the Employment Exchange forwarding his name as a reserved category candidate, cannot be the basis for penalising the petitioner as he did not claim any such benefit of such reservation. 18. I am of the considered opinion that such plea does not lie in the mouth of the petitioner. Before the Tribunal, he had taken a categorical stand that he was member of Scheduled Caste and that his appointment was against reserved quota post and legal. 19. The order of Tribunal is not under question or challenge in any manner. The findings recorded are binding upon the petitioner. He cannot be permitted to take a somersault before this Court and to contend that although he is not a member of Scheduled Caste yet since he was granted benefit of reservation no misconduct can be attributed to him. The counsel for the petitioner has admitted that petitioner is not a member of Scheduled Caste before this Court. It is admitted on record that the petitioner was appointed as only because he was treated to be a member of Scheduled Caste on the recommendation of the Selection Committee against a reserved quota post as was the stand before Tribunal at the first instance of the petitioner himself. 20. Counsel for the petitioner has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of R.S. Garg v. State of U.P. and others, 2006 (6) SCC 430 , for contending that no reservation could have been applied in respect of a single post against which he has been appointed. 21. 20. Counsel for the petitioner has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of R.S. Garg v. State of U.P. and others, 2006 (6) SCC 430 , for contending that no reservation could have been applied in respect of a single post against which he has been appointed. 21. The contention so raised is wholly irrelevant inasmuch as before the Tribunal it was the case of the petitioner himself that he was appointed against the reserved quota post and that was a member of the reserved category. 22. In view of the aforesaid, this Court finds no good ground to interfere in the order of the District Magistrate. Writ petition is dismissed. ————