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2019 DIGILAW 946 (GAU)

Rasheswar Chandra Paul v. State of Assam

2019-08-27

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. Heard Ms. P. Chakraborty, the learned counsel for the petitioner. Also heard Mr. B. Gogoi, the learned Standing Counsel for the Health Department and Mr. R. K. Talukdar, the Standing Counsel for APSC. 2. The petitioner was working as the Registrar of Surgery in the Silchar Medical College whose service was cancelled by the Government vide Order dated 29.09.1997 on the ground of submission of false Caste Certificate. The petitioner was also selected and admitted in the M.S. General Surgery Course against the teachers quota during the year 1992-93 and as per the order dated 24.10.1997, it was declared by the APSC that the said admission was also void. In fact, the petitioner faced the interview conducted by the Assam Public Service Commission (APSC) wherein he stood 8th as one of the OBC candidates for the post of Registrar/Resident Surgeon in the Medical Colleges of the State held in the year 1993. 3. The petitioner, being aggrieved by the said two orders of cancellation of his appointment and the subsequent admission in the M.S. General Surgery Course against the teachers quota, preferred respectively Civil Rule No. 4990/97 and Civil Rule No. 357/98. Both the writ petitions were dismissed following which Writ Appeal No. 238/1999 was filed, which was also dismissed vide Judgment & Order dated 27.04.2000. On the basis of the observation of the Hon ble Division Bench in the said Writ Appeal No. 238/1999, the Government vide Notification dated 7.06.2001 appointed the petitioner as Registrar of Surgery as a General Category candidate with an observation that his inter-se-seniority would be fixed later on as per rule. A representation was made by the petitioner before the authority with a prayer to maintain his seniority as per the initial entry into the service in 1993 prior to cancellation of appointment which was also rejected vide Notification dated 04.09.2007 thereby holding that the seniority of the petitioner will remain on the bottom of the select list of APSC for recruitment to the post of Registrar in Surgery Department of the Medical Colleges of Assam as published in the year 1993. On the other hand, the gap period of service from 29.09.1997 to 07.06.2001 i.e. the period after cancellation of the appointment of the petitioner till the date of appointment as per the direction of the Division Bench of this Court would be treated as No work no pay as per the F.R. 17 of the FRSR. The said Notification dated 04.09.2007 is under challenge in this writ petition by the petitioner. 4. Before the notification cancelling the service of the petitioner was issued, an enquiry was conducted by the SDO(Sadar), Silchar and the said Enquiry Officer opined that the OBC certificate No. 3429 dated 28.12.1984 issued to the petitioner by the Chairman of the Sub-Divisional OBC Development Board, Silchar was declared as invalid. On the basis of the information CID PS case No. 7/98 under Section 420/471 IPC was also registered and the C.R. No. 2446/98 was initiated and vide Judgment dated 28.07.2010, the charges against the petitioner under Section 420/471 IPC was held to be not proved beyond any reasonable doubt and he was acquitted. 5. It is submitted by Ms. Chakraborty that on the face of the Judgment dated 28.07.2010 passed by the Criminal Court the petitioner was found to be not guilty and was acquitted from the charges and the Government cannot blink its eyes simply by holding that gap period of service from 29.09.1997 to 07.06.2001 will be treated on the principle No work no pay . On the basis of the charge of forgery, the respondent-State cancelled the appointment of the petitioner and once the petitioner is absolved from the said charge of forgery, he is entitled for his due salary for the said gap period. Referring to the findings of the Criminal Court Ms. Chakraborty submits that the Enquiry Officer, i.e. the SDO(Sadar), Silchar was examined in the criminal Court wherein he stated that he did not examine the person who issued the OBC certificate No. 3429 dated 28.12.1984 nor it is on record that any person associated with the process of issuing the same was examined and the Criminal Court rightly discarded the evidence including the report on the basis of which the Government acted upon and issued the Notification cancelling the appointment of the petitioner. The respondent failed even to conduct a departmental enquiry in order to examine the allegations brought against him and as such the petitioner cannot be allowed to be deprived of the financial benefits during the gap service period due to the fault of the respondent-State. The petitioner is bound to get the reliefs sought for in this writ petition. 6. During the course of argument, Ms. Chakraborty submits that the petitioner had retired during the pendency of this writ petition on 31.01.2015. In support of the submission that the application of the principle No work no pay by the respondent-State in the case of the present petitioner is bad, Ms. Chakraborty relies upon a decision in the case of Ramesh Kumar Vs. Union of India and Ors., (2015) 14 SCC 335 and submits that the principle No work no pay cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis. There is no such enquiry conducted by the respondent as hereinabove stated and as such the application of the principle by the respondent-State is wrong. Ms. Chakraborty further relies upon a decision in the case of Prem Nath Bali Vs. High Court of Delhi, (2015) 16 SCC 415 and submits that there is a substantial delay in conducting the departmental proceedings by the respondent and only for the said default on the part of the respondent State, the allegations against the petitioner cannot be justified. In fact, it is the respondent State who raised the issue of forgery of the said certificate submitted by the petitioner and it is the burden on the respondent State to prove that the said certificate was forged on the face of the findings given by the Criminal Court and because of the considerable delay in not holding the departmental proceeding, the petitioner is entitled to the benefit of the gap service period. Finally, it is concluded by Ms. Chakrabroty that the accusation of forgery is nullity in the eye of law inasmuch as clean chit was given by the Criminal Court and on the other hand, the departmental proceeding was not initiated in order to justify the accusation of forgery by the petitioner and as such, the petitioner is entitled to the reliefs sought for. 7. Mr. Chakrabroty that the accusation of forgery is nullity in the eye of law inasmuch as clean chit was given by the Criminal Court and on the other hand, the departmental proceeding was not initiated in order to justify the accusation of forgery by the petitioner and as such, the petitioner is entitled to the reliefs sought for. 7. Mr. Gogoi, on the other hand, submits that the Division Bench of this Hon ble Court affirmed the finding that the petitioner indulged in forgery while claiming himself to be an OBC category candidate and the said finding upheld the cancellation of the appointment of the present petitioner. Unless and until the said finding is set aside by the Superior Court, the department is bound by the said finding. The question of claiming the benefit during the gap service period does not arise at all inasmuch as the service of the petitioner was cancelled thereby stripping out the status of the petitioner which he held as an employee prior to the cancellation order from the service. For the said reason, he is not entitled even to seek for holding the departmental enquiry considering the status that he is not an employee under the State Government. In so far as the inter-se-seniority of the petitioner is concerned, it is the contention of Mr. Gogoi that after the said cancellation order the petitioner was appointed in the year 2001 and as such his seniority will start from the subsequent date of joining which is mentioned in the appointment order. It is further submitted by Mr. Gogoi that he has not yet gone for setting aside the order of fresh appointment in the year 2001 and unless and until the said order is set aside, the petitioner is not entitled to any relief sought for in this writ petition. 8. I have given due consideration to the submissions of the learned counsel. The dispute involved in this writ petition is in regard to the status of the petitioner. He claimed himself to be a person covered by the OBC category and on the basis of the said status he applied and was interviewed whereafter the APSC selected him as one of the candidates belonging to the OBC category. The dispute involved in this writ petition is in regard to the status of the petitioner. He claimed himself to be a person covered by the OBC category and on the basis of the said status he applied and was interviewed whereafter the APSC selected him as one of the candidates belonging to the OBC category. Pursuant to such selection by the APSC, the petitioner was appointed as the Demonstrator of Pharmacology of Silchar Medical College and on the recommendation of the APSC, he was appointed as the Registrar of Surgery in the same college. The petitioner was admitted in the M.S. General Surgery course against teachers quota for the session 1992-93, but on subsequent discovery that the petitioner does not belong to the OBC category, an enquiry was conducted. On the basis of the said enquiry report, the service of the petitioner was cancelled. He was subsequently appointed as the Registrar of Surgery as a General category candidate vide Notification dated 7.06.2001. The petitioner is aggrieved as no departmental enquiry was initiated in order to disprove the contents in the OBC certificate on the basis of which he was appointed and alleged to be forged by him. He also sought for fixing his seniority as per the initial date of entry into the service in the year 1993. That was also rejected and from the date of the cancellation of his appointment i.e. 29.09.1997 to the date of appointment i.e. 07.06.2001 he was not paid salary on the principle No work no pay basis. From the aforesaid series of events, it is found that once the appointment of the petitioner was cancelled, he cannot be treated as an employee under the State. The gap period in service from the date of cancellation of the appointment till the date of appointment cannot be accepted as submitted by Ms. Chakraborty that the petitioner was in service during the said period. The petitioner was subsequently appointed in the General Category thereby changing the status of the petitioner from the OBC category to the General category and the said order will hold the field. Chakraborty that the petitioner was in service during the said period. The petitioner was subsequently appointed in the General Category thereby changing the status of the petitioner from the OBC category to the General category and the said order will hold the field. The said acceptance of the subsequent order itself shows that the petitioner has accepted the change in category from the OBC to the General one and as such if at all the petitioner is entitled for the gap service benefits, he ought to have been in service and for that purpose also, he ought to have challenged the cancellation order which remains still outstanding as on date. Once his service was cancelled, the said gap period cannot be considered as in-service period by the petitioner. 9. Ms. Chakraborty relies on the findings of the Criminal Court and submits that as there was no departmental proceeding, the State respondents are bound to accept the findings given by the Criminal Court thereby absolving the petitioner from the charges brought therein of forgery. This contention also cannot be accepted inasmuch as the service law jurisprudence and the criminal law jurisprudence are separate and the same cannot be treated as identical one. In the Criminal Court, it is the act of forgery that has been examined so far the caste certificate is concerned. On the other hand, in the service jurisprudence, it is the act of misrepresentation of the petitioner by representing himself to be a person from the OBC category which can be termed as misconduct. The State respondent had drawn the justification of the action on the basis of the enquiry conducted on its own and on the basis of the said enquiry cancelled the service of the present petitioner. Though there is no departmental enquiry which cannot be held inasmuch as once the petitioner was cancelled from the service, he cannot be termed to be an employee of the said department and as such the only remedy on the part of the petitioner was to get a declaration from the competent Court of law and establish his status as a person falling under the OBC category which has also not been done. The decisions relied by the learned counsel for the petitioner are not applicable in the present factual matrix of this case inasmuch as the service of the petitioner was cancelled. The decisions relied by the learned counsel for the petitioner are not applicable in the present factual matrix of this case inasmuch as the service of the petitioner was cancelled. On the other hand, the decisions relied by Ms. Chakraborty relates to the employees deprived of the promotional benefits etc. Finally, from the aforesaid findings I am of the considered opinion that this writ petition has no merit which is liable to be dismissed which I accordingly do. No Cost.