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2020 DIGILAW 185 (JK)

Sarbjeet Singh v. Satish Katyal

2020-03-19

SANJEEV KUMAR

body2020
JUDGMENT 1. The petitioner feeling aggrieved of termination order issued by the Regional Manager, Oriental Insurance Company Limited dated 22.09.2019 whereby services of the petitioner as Assistant in the Company have been terminated on the ground that the OBC certificate submitted by the petitioner at the time of his recruitment was invalid. The petitioner also seeks a direction to the respondents to allow him to continue to perform his duties as Assistant in the Oriental Insurance Company Ltd. (for short the Company). 2. The facts relevant to the disposal of this petition may be noticed first. The Company is a Government of India Undertaking fully controlled and funded by the Government of India and, therefore, State within the meaning of Article 12 of the Constitution of India . Advertisement Notification was issued by the Company on 03.06.2015, inviting applications for supplying of 606 vacancies of Assistant available in different State of the Country. 07 vacancies of the Assistant were notified in the State of Jammu and Kashmir with the following break up:- Unreserved : 04 OBC : 02 SC : 01 Total : 07 3. Apart from other terms and conditions of the Advertisement, it was specifically provided that there was no bar for reserved category candidates to compete against the unreserved posts provided they were eligible as unreserved category candidate as per the eligibility provided in the Advertisement Notification. Clause 9 of the Notification further provided that the caste certificate should be issued by the competent authority in the prescribed format as stipulated by the Govt. of India in the case of SC, ST and OBC category candidates and the same would be submitted by the candidate at the time of interview. The petitioner claimably eligible to apply under the OSC/OBC category responded to the Advertisement Notification. The petitioner applied for issuance of OBC category certificate to the competent authority, i.e., Tehsildar R.S.Pura both under the format prescribed under State Rule as also as per the format prescribed by the Central Government. Last date for submission of application form was 28.07.2015. The candidature of the petitioner was considered under OBC category and he was permitted to participate in all the stages of the selection, which ultimately culminated in issuance of the order of appointment of the petitioner as Assistant under OBC category. Last date for submission of application form was 28.07.2015. The candidature of the petitioner was considered under OBC category and he was permitted to participate in all the stages of the selection, which ultimately culminated in issuance of the order of appointment of the petitioner as Assistant under OBC category. The petitioner was conveyed that he has been selected for appointment to the post of Assistant in the Company by the Regional Manager of the Company vide letter of appointment dated 30.11.2016. With regard to the petitioner, a candidate claimably belonging to OBC category, it was in the order of appointment itself stipulated that the appointment offer was provisional and subject to verification of his category certificate through proper channel. The petitioner was further intimated that, if the verification revealed that the claim of the petitioner as a member of the OBC was false, his services would be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of Indian Penal Code for production of false certificate (refer clause 21(b) of the order of appointment) 4. Be that as it is, the petitioner on his appointment was put on probation for a period of six months, which was further extendable at the discretion of the management of the Company. Probation of the petitioner, thus, expired on 18.10.2017. While the petitioner was on probation, the respondent No.2 took up the matter with the Tehsildar R.S.Pura and sought verification of the category certificate issued by his office and produced by the petitioner during the selection process. The respondents, during verification of OBC certificate of the petitioner found that the OBC certificate issued by the Tehsildar concerned was not valid at the time of recruitment. The community Labana it was intimated, did fall in the list of castes classified as backward by the State under the J&K Reservation Act, 2004 and the rules framed thereunder, however, the Ministry of Social Justice and Employment, Govt. of India, included the Labana community in the Central List of OBC category only by way of Notification issued on 06.12.2016 and by that time recruitment process in which the petitioner was selected and appointed was already over. On these grounds, the respondent No.2 found the certificate of OBC submitted by the petitioner to claim the benefit of reservation invalid. of India, included the Labana community in the Central List of OBC category only by way of Notification issued on 06.12.2016 and by that time recruitment process in which the petitioner was selected and appointed was already over. On these grounds, the respondent No.2 found the certificate of OBC submitted by the petitioner to claim the benefit of reservation invalid. The petitioner was put to Show Cause Notice on 10.01.2017. The petitioner responded to the Show Cause Notice, but, the contention raised by the petitioner was not accepted. It was concluded by the respondents that though the petitioner was entitled for benefit of reservation on account of his belonging to the Labana community under the J&K Reservation Rules, 2005 for employment in the State services, but, was not so entitled for Central services. On the aforesaid score, the services of the petitioner found to have been obtained on the basis of invalid certificate, were terminated by the Company by the impugned order. 5. The impugned order has been assailed by the petitioner inter alia on the grounds that even the category certificate of the petitioner was found to be invalid, the petitioner was entitled to be considered, selected and appointed under the General Category for which the Company had notified four posts, and that the services of the petitioner, who was substantively appointed to the post of Assistant could not have been terminated without conducting an inquiry as contemplated under Rules 23, 24 and 25 of the Oriental Insurance (Conduct Discipline Appeal) Rules, 2014. The impugned order has also been assailed on the ground that the respondent No.2 has wrongly concluded that the certificate of the category submitted by the petitioner is false and, therefore, amounts to furnishing false information to secure the employment. He submits that the certificate submitted by the petitioner was issued by the competent authority in the prescribed format and the issuance of the said certificate in ignorance of the Central Notification was the lapse of the competent authority not attributed to the petitioner. 6. The respondent company has contested the writ petition and has filed the counter-affidavit as also supplementary affidavit to defend the order of termination of the petitioner passed by the respondent No.2. 6. The respondent company has contested the writ petition and has filed the counter-affidavit as also supplementary affidavit to defend the order of termination of the petitioner passed by the respondent No.2. The stand of the respondents as reflected in their pleadings is that the petitioner is undoubtedly a member of the Socially and Educationally Backward Class falling under the category of Weak and Under Privileged Class (Social Caste) - Labana and the said community was included in the Central Lists of Other Backward Classes by the Ministry of Social Justice and Employment vide Notification No. 12011/6/2014-BC-II dated 06.12.2016, which is much after the cut-off date fixed in the Advertisement Notification, i.e., 28.07.2015. It is, thus, submitted that since the petitioner did not qualify to be OBC on the cut-off date and, as such, the certificate issued by the Tehsildar concerned declaring him a member of the OBC category was invalid. The selection secured/obtained on the basis of invalid certificate was, thus, void ab inito. The claim of the petitioner that he was entitled to be selected under the unreserved category is also refuted by the respondents contending that the petitioner has secured 121.20 points whereas the candidate last selected in the unreserved category has obtained 181.25 points. It is also denied by the respondent that no candidate under the unreserved category qualified the Computer Proficiency Test. 7. Having heard learned counsel for the parties and perused the record, I find no illegality in the impugned order. Admittedly, the candidature of the petitioner was considered on the basis of the OBC category certificate issued by the Tehsildar R.S. Pura at the time when community Labana to which petitioner belongs, was not included in the Central Lists of castes falling in the OBC category. The Notification in this behalf was issued by the Ministry of Social Justice and Employment only on 06.12.2016. The instant selection process in which the petitioner came to be selected as Assistant under the OBC category had concluded on 25.10.2016, and the cut-off date, i.e., last date mentioned in the Advertisement Notification for submission of application was 28.07.2015. The Central Government, by then, had not declared the community Labana as Other Social Caste/OBC. The instant selection process in which the petitioner came to be selected as Assistant under the OBC category had concluded on 25.10.2016, and the cut-off date, i.e., last date mentioned in the Advertisement Notification for submission of application was 28.07.2015. The Central Government, by then, had not declared the community Labana as Other Social Caste/OBC. The Tehsildar R.S. Pura, therefore, could not have issued the certificate in the format prescribed by the Central Government declaring the petitioner a member of the reserved category of OBC for employment in the Central services. It is true that Labana was recognized as other Backward Class by the then State Government under the J&K Reservation Rules 2005 issued vide SRO 294 of 2005, but, a certificate issued in the format prescribed under the State Rules was valid only for the purposes of employment in the State services. This position is fairly accepted by learned counsel appearing for the petitioner. He, however, contends that once the petitioners community Labana had been declared as Other Backward Class and the same was also declared to be so by the Central Government though after conclusion of the selection process, it would be highly inequitable to throw the petitioner out of job, moreso, when it is not the allegation of the respondents that the petitioner had secured employment by misrepresentation or fraud. His further contention is that even if he was not found eligible under the OBC category, yet, he could have been considered as unreserved category candidate and would have made it to the select list even under the General Category. Both these contentions of the learned counsel are vehemently refuted by the respondents. With regard to the claim of the petitioner that he could have been considered under General Category, the respondents state that even if the petitioner was to be considered under General Category, it would make no difference as he was failed to secure the requisite merit to come up in the selection zone. The petitioner, it is stated, secured 121.20 points whereas the candidate last selected under unreserved category obtained 181.25 points. I am in agreement with the learned counsel for the respondents. 8. The petitioner, it is stated, secured 121.20 points whereas the candidate last selected under unreserved category obtained 181.25 points. I am in agreement with the learned counsel for the respondents. 8. In the given facts and circumstances when it is not disputed that the category certificate of the OBC submitted by the petitioner was invalid at the time it was issued by the Tehsildar R.S.Pura and was so even up to the conclusion of selection process, it is difficult to accede to the submission of the learned counsel for the petitioner that the impugned order, which has visited the petitioner with serious civil consequences could not have been passed without holding proper inquiry under Oriental Insurance Company (Conduct, Discipline and Appeal) Rules, 2014. It is so, as offer of appointment issued to the petitioner itself provides for termination of the service during probation and thereafter if upon verification it is found that the claim of the petitioner that he belongs to OBC is found to be false. In such, the services are liable to be terminated without assigning any reason and without prejudice to further action as may be taken under the provisions of Indian Penal Code for production of false certificate. Though I am in agreement with the learned counsel for the petitioner that the category certificate submitted by the petitioner was not a false certificate, which would entail the criminal action, but, nevertheless, the certificate was invalid and no nest in the eyes of law. There could be no dispute with regard to the fact that had the petitioner not produced invalid OBC certificate issued by the Tehsildar R.S.Pura, he would not have been selected and appointed as Assistant. Going by the various stipulations and the terms and conditions contained in the appointment order of the petitioner, particularly, that contained in paragraph 21(b), it is abundantly clear that the appointment of the petitioner as Assistant in the respondents company was only provisional and subject to fulfilment of many conditions, which included the condition contained in the paragraph 21(b) of the appointment letter. Having failed to demonstrate that OBC category certificate relied upon by the petitioner was valid on the date it was issued or was valid even at the time of interview, the petitioner cannot claim that he had been substantively appointed as Assistant and was holding a civil post from which he could have been removed only after inquiry provided under Rules of 2014. The petitioner has not been terminated for any misconduct as would invite conducting of inquiry and returning findings of misconduct by the Inquiry Officer. For the foregoing reasons, I find no merit in the contention of the learned counsel for the petitioner. 9. Last submission of the learned counsel for the petitioner that due to non-availability of the eligible candidate under OBC category, the posts notified under the category of OBC have remained unfilled and therefore, it is totally unjustified and unfair on the part of the respondents to throw him out of job on technical grounds. If the submission is factually correct, then the petitioner may deserve consideration on equitable grounds. 10. From the pleadings, it is not very clear; whether two posts of OBC, which were notified were both filled up or only one was filled up by the appointment of the petitioner. It is also not clear whether there are other candidates belonging to OBC category, who hold the genuine category certificate and have merit higher than the petitioner. In these circumstances I leave it to the respondent No.2 to consider all these aspects and take decision with regard to the continuation or otherwise of the petitioner as Assistant in the respondents Company. The respondents No.2 while considering the case of the petitioner shall focus on the following aspects:- (i) If both the posts notified under the OBC category have been filled up; (ii) If there is/are any candidate/candidates under the OBC category holding genuine category certificate and having merit higher than the petitioner; (iii) The community Labana to which the petitioner belongs, which was admittedly not in the Central Lists of OBC during selection process was so included in the OBC on 06.12.2016, i.e., immediately on the conclusion of the selection process and after the appointment of the petitioner; and (iv) That the category certificate was issued by the competent authority and had not been obtained by the petitioner by fraud. 11. 11. Accordingly, while holding that challenge of the petitioner to the impugned order is without any substance and untenable in law, yet, I implore the respondents to consider the case of the petitioner in the light of observations made above purely on equitable consideration and pass appropriate orders as the respondents deem appropriate and warranted in the facts and circumstances of this case. Should the respondents decide to retain the petitioner in service, it is clarified that the same shall not be treated as precedent for future. 12. Disposed of as above along with connected CM(s). CPSW No. 628/2017. 13. From the perusal of the pleadings of the parties and after hearing rival contention, I am of the view that prima-facie the respondents have violated the interim directions passed by this Court on 13.10.2017 in SWP No.2527/2017 whereby this Court had stayed the impugned order of termination. The allegation of the petitioner in this petition is that despite the respondents having been served with the interim order, the petitioner was not permitted to resume the duties. The respondents have filed their reply to the Contempt Petition and have contested the interim order on merits. This Court would have taken serious note of the contemptuous conduct exhibited by the respondents, but, keeping in view the disposal of the writ petition (SWP No. 2527/2017) and the nature of the direction issued therein to consider the case of the petitioner on equitable considerations, I deem it appropriate to close these proceedings. Ordered accordingly.