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2012 DIGILAW 90 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2012-03-12

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

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JUDGMENT : Dharam Chand Chaudhary,J. (Oral): This writ petition has been filed with the following prayers: “(i) that appropriate writ and directions may kindly be issued in favour of the petitioner and against the respondents and order Annexure P-4 and P-6 may kindly be quashed and set aside. (ii) That in sequel to the quashing of Annexure P-6 directions may kindly be issued to the respondents No.1 and 2 to carry out the necessary correction in the revenue record with respect to the caste of the petitioner and the respondents No.3 and 4 may kindly be directed to drop any further proceedings contemplated against the petitioner vide Annexure P-4 and his suspension may also be ordered to be revoked.” 2. The petitioner allegedly belonging to “Gaddi Arya” caste, claims himself to be a member of scheduled tribe community. He further claims that he was recruited in Central Industrial Security Force on 19.12.2003 as Constable being a candidate belonging to scheduled tribe category. Alongwith his application for this post, he had submitted scheduled tribe certificate, Annexure P-2, duly issued by the Executive Magistrate, Bharmaur, District Chamba, to his employer, the fourth respondent. The said respondent got the authenticity and genuineness of the certificate, in question, verified from the office of second respondent, who in turn, vide letter, Annexure P-3, had informed the fourth respondent that initially the petitioner was recorded as scheduled tribe in the revenue record and later on his father got his caste corrected from “Gaddi Arya” to “Hali”, which has been notified as one of the scheduled castes by the State of H.P, the first respondent. 3. Consequently, the petitioner was placed under suspension by the fourth respondent on the charge of production of a false caste certificate, vide order Annexure P-4, on the charges as per charge-sheet enclosed to Annexure P-4. Petitioner has assailed the order of his suspension as also the disciplinary proceedings initiated against him by filing the present petition, on the grounds interalia that he belongs to “Gaddi Arya” caste, which has been notified as scheduled tribe by the first respondent. In order to substantiate his claim a copy of Wazib-ul-Arz (Annexure P-12) and copy of Shajra Nasab (Annexure P-9) have been pressed in service. 4. In order to substantiate his claim a copy of Wazib-ul-Arz (Annexure P-12) and copy of Shajra Nasab (Annexure P-9) have been pressed in service. 4. It has further been claimed that the order, Annexure P-6, in revision No.93/1998, passed by the Financial Commissioner (Appeals) Himachal Pradesh, in a petition filed by his father, is illegal and contrary to the factual position besides bad In Law being passed behind his back deserves to be set aside and quashed. 5. The first and the second respondents in reply to the writ petition have made preliminary submissions to the effect that this Court has no jurisdiction to entertain the present petition and that no legal or vested right of the petitioner has been infringed by them. On merits, it is submitted that the caste of the petitioner from “Gaddi Arya” to “Hali” has been ordered to be changed at the instance of the father of the petitioner, vide order Annexure P-6, by the Financial Commissioner (Appeals), H.P., passed in a revision petition. The petitioner being his off spring is stated to have stepped into the shoes of his father. 6. The third and the fourth respondents, in reply to the writ petition filed on their behalf, have averred, by way of preliminary objections, that since the departmental inquiry initiated against the petitioner has already been completed and the penalty of dismissal from service already imposed upon him, hence this writ petition has turned infructuous against them and as such deserves to be dismissed. It has further been submitted that since the remedy of appeal is available to the petitioner, therefore, he should have not filed the present petition in this Court. 7. On merits, the case of respondents No. 3 and 4, in nutshell, is that the petitioner has produced scheduled tribe certificate showing his caste as “Gaddi Arya” but the same on verification, was found to be false, as he belongs to “Hali” caste, hence a member of scheduled caste community. Further, it has been submitted that since the petitioner had produced a false caste certificate at the time of his recruitment as constable, he was rightly placed under suspension and after holding departmental inquiry and affording him due opportunity of being heard, he has rightly been dismissed from service, by imposing the penalty of dismissal upon him. 8. Further, it has been submitted that since the petitioner had produced a false caste certificate at the time of his recruitment as constable, he was rightly placed under suspension and after holding departmental inquiry and affording him due opportunity of being heard, he has rightly been dismissed from service, by imposing the penalty of dismissal upon him. 8. In rejoinder to the reply filed by respondents No.1 and 2, the petitioner has denied the contents of preliminary submissions, being wrong and has submitted that pursuant to the order Annexure P-6 of the Financial Commissioner (Appeals), H.P, the revenue agencies have wrongly entered his caste as Hali instead of “Gaddi Hali”, as according to him, the Financial Commissioner (Appeals), vide order, Annexure P-6, has only ordered the substitution of “Arya” with “Hali”, whereas the word “Gaddi” was never ordered to be deleted. Therefore, according to the petitioner, his caste should have been recorded as “Gaddi Hali” in the revenue record, which has been declared as scheduled tribe by the first respondent. While quoting such instances, it has been submitted that the Financial Commissioner (Appeals) in some other cases also, had ordered the correction of casts from “Gaddi Arya” to “Gaddi Hali”, vide Annexure P-16. He has also filed certificate, Annexure P-15, to show that a person belonging to “Gaddi Hali” caste belongs to scheduled tribe cpmmunity. 9. In rejoinder to the reply filed on behalf of respondents No.3 and 4, the petitioner has denied the contents of preliminary submissions, being wrong. On merits, it has been submitted that he has not been afforded due opportunity of being heard and has been dismissed from service illegally and arbitrarily. 10. Learned Advocate representing the petitioner has placed on record the order dated 6.4.2011 passed by the Financial Commissioner (Appeals) H.P., in Revenue Revision No.65/2011, filed by Shri Dumnu Ram, the father of the petitioner, in which it has been held that vide order dated 5.8.1998 (Annexure P-6), the only correction was ordered from “Arya” to “Hali” and the word “Gaddi” was not ordered to be removed. However, while implementing the said order, the word “Gaddi” was wrongly removed and as a result thereof, the caste of the father of the petitioner as “Hali” instead of “Gaddi Hali” came to be wrongly recorded. 11. In view of above said development, we proceed to dispose of this writ petition at the stage of admission itself. However, while implementing the said order, the word “Gaddi” was wrongly removed and as a result thereof, the caste of the father of the petitioner as “Hali” instead of “Gaddi Hali” came to be wrongly recorded. 11. In view of above said development, we proceed to dispose of this writ petition at the stage of admission itself. 12. As noted at the very outset it is Annexure P6, the order of Financial Commissioner (Appeals), H.P., vide which in the revenue record the caste of the petitioner has been recorded as Hali and Annexure P-4, whereby the petitioner has been placed under suspension, which have been sought to be set aside and quashed. In view of the subsequent developments, i.e. the Financial Commissioner (Appeals) H.P. having modified the order Annexure P-6, vide order dated 6.4.2011 passed in Revenue Revision No. 65/11, a copy whereof has been placed on record by the learned counsel for the petitioner during the course of day today and the departmental proceedings initiated against the petitioner by the third and fourth respondents having been culminated in his dismissal from service, this Court is of the considered view that the relief so sought in the writ petition is now not available to the petitioner. Learned counsel, representing the petitioner has also not pressed the first prayer qua quashing and setting aside of Annexure P-6 and rather contended that pursuant to the recent order dated 6.4.2011, passed by the Financial Commissioner (Appeals) HP in Revenue Revision No.65/2011, the petitioner being a member of “Gaddi Hali” community, will have to be termed as a member of scheduled tribe community for all intents and purposes. 13. Be that as it may, at this stage the petitioner has neither produced anything suggesting that the order dated 6.4.2011 of F.C. (Appeals) HP stands implemented in the revenue record and the caste of the petitioner stands recorded as “Gaddi Hali” pursuant to that nor any certificate showing that the petitioner being member of “Gaddi Hali” community belongs to scheduled tribe category is placed on record. However, the order ibid, now passed by the Financial Commissioner (Appeals) in Revenue Revision filed by Shri Dumnu Ram, the father of the petitioner and page 2 of Annexure P-14 reveal that members of Gaddi community falls in the category of Schedule Tribe. However, the order ibid, now passed by the Financial Commissioner (Appeals) in Revenue Revision filed by Shri Dumnu Ram, the father of the petitioner and page 2 of Annexure P-14 reveal that members of Gaddi community falls in the category of Schedule Tribe. This Court can also take judicial notice of Annexure P15, a scheduled tribe certificate, which has been issued to one Hoshiar Singh, who belongs to “Gaddi Hali” caste. On the basis of this certificate, a person belonging to “Gaddi Hali” caste can be said to be a member of scheduled tribe community. Since it is the father of the petitioner himself who approached the Financial Commissioner (Appeals) HP, for correction of his caste from “Gaddi Arya” to “Gaddi Hali”, the petitioner being his offspring, has stepped into the shoe of his father and as such, the order Annexure P-6, though now modified, is binding on him. 14. Accordingly, we hold that the petitioner is a member of “Gaddi Hali” community and entitled to the issuance of scheduled tribe certificate for the reason that as per Annexures P-14 and P-15 all “Gaddis” in Himachal Pradesh fall in the category of scheduled tribe. 15. Further, it is seen from the order dated 6.4.2011 supra, that mutation No.725 dated 30.3.1999 qua entering the caste of the petitioner as Hali has been ordered to be set aside and quashed by the Financial Commissioner (Appeals) and a direction has been issued to the Revenue Authorities to change the caste of Shri Dumanu Ram, the father of the petitioner, from Gaddi Arya to Gaddi Hali. Meaning thereby that the moment such entries are made in the revenue record, the verification report Annexure P-2, submitted by the second respondent to the fourth respondent regarding authenticity and genuineness of the caste certificate produced by the petitioner at the time of his recruitment as constable in Central Industrial Security Force, will lose its significance and will cease to exist. The implications of the order dated 6.4.2011 supra, will, therefore, be retrospective and will relate back to that point of time, when the caste of the petitioner came to be entered in the revenue record worngly as “Hali” which fact would certainly mean that Annexure P-3 qua verification of the scheduled tribe certificate (submitted by the petitioner at the time of his recruitment as constable), was erroneously issued. 16. 16. However, at this stage there is nothing on record suggesting that the order dated 6.4.2011 stands implemented. Therefore, no writ in the nature of prayer 13(i) can be issued nor any direction for quashing the penalty of dismissal imposed upon the petitioner pursuant to departmental inquiry conducted against him can be issued in this writ petition. 17. No doubt, the petitioner has a legal right to approach the third and fourth respondents by way of departmental appeal for reconsideration of departmental action taken against him, on the basis of verification report Annexure P-3, which as per conclusion already drawn by this Court, was erroneously issued. We can expect legitimately from the said respondents that they will consider the appeal/representation, if so made by the petitioner in accordance with law. We also expect from the said respondents that the appeal/representation, if so made by the petitioner, shall be entertained and no objection regarding limitation etc. shall be raised, because the petitioner was pursuing his remedy before this Court. 18. With the above observations, the writ petition stands finally disposed of, with a direction to the third and fourth respondents that they will consider the appeal/representation, if any made by the petitioner, in accordance with law and in the light of the observations made hereinabove, within three months from the date of the receipt thereof. Pending application(s), if any, will also stand disposed of.