Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 33 (JHR)

Sukhdeo Mahtha v. State of Jharkhand

2023-01-05

S.N.PATHAK

body2023
JUDGMENT : 1. Heard the parties. 2. The petitioner has approached this Court with a prayer for quashing the order dated 8.3.2020 (Annexure-7) passed by the District Superintendent of Education, Giridih, whereby the service of the petitioner, who was working as Teacher in Middle School, Kurhobindo, was terminated on the ground that he got appointment on forged caste certificate. Further prayer has been made for quashing the letter dated 29.10.2009 (Annexure-8), whereby the caste certificate of the petitioner has been cancelled. 3. As per factual matrix, the petitioner was appointed on 28.05.1988 as Teacher and after verifying all documents, he was given regular salary. It was the specific case of the petitioner that since his mother belongs to schedule caste and his father belongs to Gwala caste, which is a non-tribal, he comes under the scheduled caste category, in the light of the decision contained in letter no. 11/4-1040/77- 106 dated 3.3.1979 issued by Personnel, Administrative, Reforms Department, Govt. of Bihar. 4. However, one fine morning, the petitioner was put under suspension on 2.6.2009, alleging inter alia that he obtained appointment on the basis of forged caste certificate. A criminal case was also lodged against the petitioner, being Jamua P.S. Case No. 243 of 2008. Thereafter, the petitioner submitted his reply on 15.7.2009. Having found the reply of the petitioner unsatisfactory, departmental proceeding was initiated and thereafter, enquiry report was also submitted on 29.8.2009 finding the charges proved. Thereafter, accepting the enquiry report, the caste certificate of the petitioner was cancelled vide order dated 29.10.2009 and consequently, the disciplinary authority terminated the petitioner from service vide letter dated 8.3.2010. Aggrieved thereby, the petitioner has knocked the door of this Court. 5. Mr. Saurav Arun, learned counsel appearing for the petitioner argues that the impugned orders are not tenable in the eyes of law, inasmuch as, the order of termination has been issued in complete violation of the principles of natural justice. Learned counsel further argues that even a second show cause was not issued and the petitioner was terminated on ex-parte order and as such, the same is fit to be quashed and set aside. Learned counsel further submitted that the caste certificate dated 15.9.1982 has rightly been issued to the petitioner, as his mother belongs to scheduled caste category. Relying upon a judgment of the Hon’ble Supreme Court in the case of V.V. Giri Vs. Learned counsel further submitted that the caste certificate dated 15.9.1982 has rightly been issued to the petitioner, as his mother belongs to scheduled caste category. Relying upon a judgment of the Hon’ble Supreme Court in the case of V.V. Giri Vs. D.S. Dora, reported in AIR 1959 SC 1318 , learned counsel submits that the caste certificate of the petitioner cannot be questioned, as he was recognised as a member of the caste upon marriage between a general caste and scheduled caste member and the children born out of said wedlock, is entitled to a scheduled caste certificate. The petitioner is a member of scheduled caste and rightly he has been given the benefit of scheduled caste and appointed as a Teacher against reserved category. 6. Per contra, counter affidavit has been filed. Mr. Rakesh Kumar Roy, learned AC to GA-III, representing the respondents submits that the contention of learned counsel for the petitioner is not sustainable in view of the specific averments mentioned in the counter affidavit filed by the respondents. Learned counsel further submits that ample opportunity was given to the petitioner and even a second show cause notice was also issued. Referring to paragraph-10 of the counter affidavit, it has been submitted that ample opportunity was given to the petitioner to submit his reply, but even after that petitioner did not take any step. Neither the petitioner produced any documents in support of his claim, nor he produced any document to prove his father’s legal marriage with Gauri Devi. Petitioner also failed to produce the record to prove that Smt. Gauri Devi belongs to scheduled caste and she is his legal mother. However, the fact is otherwise that Smt. Bachni Devi is the only legally wedded wife of his father and hence, his legal mother is Bachani Devi, who is still alive. The matter was placed before the Establishment Committee with the entire facts and thereafter, the Establishment Committee decided to terminate the service of the petitioner and as such, the petitioner was terminated from service vide order dated 8.3.2010. Learned counsel further submits that father of the petitioner belongs to Gawala caste and petitioner’s legal mother is also belongs to same caste, as is evident from the report of the Block Development Officer. Learned counsel further submits that father of the petitioner belongs to Gawala caste and petitioner’s legal mother is also belongs to same caste, as is evident from the report of the Block Development Officer. Learned counsel submits that there is no illegality or irregularity in the order of termination and hence, no interference is required in the present writ petition. 7. Having heard learned counsel for the parties across the Bar and having gone through the record, I find that though the contention of learned counsel for the petitioner is that the impugned order of termination is not sustainable in the eyes of law, as the same was passed without issuing even a second show cause notice, which violates the cardinal principle of natural justice, but the core issue involved in the present case is as to whether the petitioner belongs to scheduled caste category or not. Termination of the petitioner is solely based on producing the scheduled caste certificate, as the petitioner got appointment in reserved category. It is well settled that if anyone gained admission or appointment wrongly on the basis of the false social status certificate, it has necessarily effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. From the averments made in the entire writ petition or in the entire counter affidavit, it cannot be said very confidently as to whether the petitioner belongs to scheduled caste or not. The entire averments made in the writ petition as well as counter affidavit are contradictory and disputably to each other. The petitioner’s contention is that the father of the petitioner was having two wives, namely, Gauri Devi and Bachni Devi and one of them belonged to scheduled caste and another wife was from Gwala caste. The petitioner was born out of the mother, who belonged to scheduled caste. On the other hand, the contention of the respondents is that the petitioner was born out of mother, who belonged to Gwala caste. Therefore, he comes under the general category. 8. The aforesaid uncertain issue cannot be resolved by this Court sitting under Article 226 of the Constitution of India. This issue fell for consideration before the Hon’ble Supreme Court of India in the case of Kumari Madhuri Patil & Anr. Vs. Addl. Therefore, he comes under the general category. 8. The aforesaid uncertain issue cannot be resolved by this Court sitting under Article 226 of the Constitution of India. This issue fell for consideration before the Hon’ble Supreme Court of India in the case of Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner, Tribal Development & Ors., reported in (1994) 6 SCC 241 , wherein, Their Lordships held that with a view to streamline the procedure for issuance of social status certificates and their scrutiny, the exercise of re verification of caste status be undertaken by the Caste Scrutiny Committee duly constituted by the Government. The Hon’ble Supreme Court, therefore, found that it has become necessary that the caste certificate issued by the authorities has to be scrutinised at the earliest and with utmost expedition and promptitude. The Supreme Court in that judgment laid down the procedure for issuance of social status certificate, their scrutiny and their approval, in the following manner. "For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and Sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a committee of three officers, namely (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim of the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to be parent/guardian and the applicant. 10. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to be parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.” 9. Now at this juncture the issue of termination, which was argued by learned counsel for the petitioner that the termination order vitiates, as it was issued without issuance of second show cause notice, is not required to be dealt with. Even this Court accepts the argument advanced by learned counsel for the petitioner that no second show cause notice was issued, the purpose would be solved only by remitting the matter back to the respondents to initiate the departmental proceeding afresh by providing ample opportunity to the appellant including issuance of second show cause notice. But in the instant case, since the termination is outcome of caste certificate, this Court thinks it proper and for the ends of justice, first to get the caste of the petitioner to be re-verified. 10. Therefore, this Court directs the respondent authorities to get the caste certificate of the petitioner verified by a duly constituted Caste Scrutiny Committee by the Government within a period of twelve weeks from the date of receipt of this order to see that agony of the petitioner is not prolonged any further, as the petitioner is out of service since the year 2010. If it is found by the Caste Scrutiny Committee that the petitioner comes under the scheduled caste category, the termination would automatically go and the respondents shall allow the petitioner to continue in service. If it is found that the petitioner obtained the Caste Certificate fraudulently, then the Scrutiny Committee is empowered to cancel and confiscate the said Certificate by following such procedure as prescribed by the Act and the termination order survives. However, the petitioner is at liberty to challenge the same before appropriate forum. 11. With the aforesaid observations and directions, this writ petition stands disposed of.