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2021 DIGILAW 2243 (RAJ)

Mool Chand Bagaria v. State of Rajasthan

2021-11-29

MAHENDAR KUMAR GOYAL

body2021
ORDER 1. This writ petition has been filed for quashing the charge-sheet dated 06.09.2021 issued to the petitioner under Rule 16 of the Rajasthan Civil Service (Classification Control & Appeal) Rules, 1958 (for brevity, "the Rules of 1958"). 2. The facts in brief are that the petitioner, an ex-service man, was initially selected and appointed as Teacher Grade III in the year 2019. Thereafter, he was selected and appointed as Senior Teacher Grade II in the year 2020. While working as Senior Teacher (Grade II), vide momo dated 06.09.2021, the petitioner has been served upon with the charge-sheet under Rule 16 of the Rules of 1958 which is under challenge in the writ petition. 3. Learned counsel for the petitioner contended that the allegation against him in the charge-sheet that while working as Teacher, he submitted a fake degree when called for document verification for obtaining appointment as School Lecturer, is factually incorrect and as a matter of fact, he has applied for appointment on the post of School Lecturer prior to his appointment as Teacher Grade III. He submitted that since the misconduct, if any, was committed prior to coming into service, the charge-sheet is not sustainable. Learned counsel submitted that neither he has taken any advantage of the degree nor, he has challenged the rejection of his candidature for appointment as School Lecturer and hence, he could not have been charge-sheeted. He, therefore, prayed that the writ petition be allowed and the charge-sheet be quashed. 4. Heard learned counsel for the petitioner and perused the record. 5. After taking voluntary retirement from the Army, the petitioner applied for appointment on various posts including School Lecturer. As per the charge-sheet, the post graduation degree allegedly obtained by the petitioner from Global Open University, Nagaland, sought to be used by him for obtaining appointment as School Lecturer, has been found to be fake on verification. True that the petitioner has applied for appointment as School Lecturer even prior to his appointment as Teacher Grade III; but, indisputably, he appeared in the written examination for appointment on the post of School Lecturer in January 2020 and submitted the post graduation degree obtained from Global Open University, Nagaland at the time of document verification in pursuance of provisional select list dated 27.08.2020, which was found to be fake on verification. Thus, the petitioner has used the fake degree seeking appointment on the post of School Lecturer while already employed as Teacher. This fact stands fortified from a perusal of the online application form dated 20.06.2018 submitted by the petitioner seeking appointment as School Lecturer wherein, it has been shown that he was yet to appear/result was awaited for post graduation degree. In these circumstances, contention of the learned counsel that no charge-sheet could have been issued to him for the misconduct, if any, committed prior to coming into service, cannot be countenanced and is rejected. 6. Submission of the learned counsel that since he has not taken advantage of the degree or he has not assailed the rejection of his candidature for appointment on the post of School Lecturer on account that his post graduation degree was found to be fake, no charge-sheet could have been issued, does not merit acceptance in view of the allegation against him that he tried to obtain appointment using a fake degree. He might not have remained successful in getting appointment; but, admittedly, he made an attempt to secure the same using a forged degree. 7. Although, at this stage when the petitioner is yet to submit his reply to the charge-sheet, this Court is not concerned with justifiability of the allegation in the charge-sheet but, there is not a whisper of averment in the entire writ petition that his post graduation degree was genuine and the allegation of it being fake, is false. 8. Even otherwise also, it is settled legal proposition that a charge-sheet cannot normally be quashed at the threshold. The Hon'ble Supreme Court has, in the case of Union of India & Anr. Vs. Kunisetty Satyanarayan: (2006) 12 SCC 28 , held as under: "11. Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed of vide order 15.3.2004 with the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal. 12. In our opinion, the High Court was not justified in allowing the Writ Petition. 13. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal. 12. In our opinion, the High Court was not justified in allowing the Writ Petition. 13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467 , Ulagappa vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639 , State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." 9. The Hon'ble Supreme Court has, in the case of State of Orissa & Anr. Vs. Sangram Keshari Misara & Anr.: (2010) 3 SCC 311, held as under: "10. However, ordinarily the High Court should not interfere in such a matter." 9. The Hon'ble Supreme Court has, in the case of State of Orissa & Anr. Vs. Sangram Keshari Misara & Anr.: (2010) 3 SCC 311, held as under: "10. Though there appears to be some merit in the said contentions of the first respondent, it is unnecessary to examine the correctness of these contentions as normally a charge sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous. It is well settled that the correctness or truth of the charge is the function of the disciplinary authority, (vide Union of India vs. Upendra Singh -1994 (3) SCC page 357). Therefore we reject the contention that the charge to have been quashed without reserving to the State to proceed in accordance with law." 10. The Lordships of the Supreme Court has, in the case of Union of India & Ors. Vs. Ashok Kacker: 1995 Suppl (1) SC 180, held as under: "4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondents rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Triubnal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him." 11. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him." 11. In the backdrop of the aforesaid judgments also, the charge-sheet cannot be quashed at the initial stage when it is yet to be replied by the petitioner. 12. In view of the aforesaid factual and legal position, the writ petition is dismissed devoid of merit. However, it is observed that the findings recorded by this Court while deciding the writ petition shall not prejudice merit of the case which is yet to be examined by the disciplinary authority.