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2023 DIGILAW 765 (ALL)

Hari Ram Meena v. General Manager N. Railway

2023-03-21

SAURABH SRIVASTAVA

body2023
JUDGMENT : SAURABH SRIVASTAVA, J. 1. Heard Kuldeep Kumar, learned counsel for the petitioner and Shri P.N. Rai, learned counsel for the respondents. 2. This writ petition has been preferred mainly with the following prayers: (1) to issue a writ order or direction in the nature of certiorari quashing the order dated 20.2.2009 passed by the Appellate Authority i.e. respondent no. 2 and the order dated 31.10.2007 passed by respondent no. 3 dismissing the petitioner from service. (2) to issue a writ, order or direction in the nature of mandamus directing the respondent not to give effect the orders dated 20.2.2009 and 31.10.2007. 3. The case of the petitioner is that during recruitment year 1993, he applied for the post of constable in the Railway Protection Force against the reserved category of scheduled tripe candidate, after due process as defined under the statutory provisions and recruitment rules, the petitioner was appointed as constable vide order dated 20.8.1994, considering the satisfactory services he has been promoted for the post of head constable. 4. The petitioner is scheduled tribe candidate belonging to village Sikar, State of Rajasthan having valid scheduled tribe certificate issued way back on 12.3.1991 since the ancestors of the petitioner had been living in the said village for a long time, for livelihood the father of the petitioner settled at District Bulandshahar but remained permanent resident of village Gangvas, Neem Ka Khana, District Siker State of Rajasthan, the caste of the petitioner has been mentioned in Part-13 of the schedule of the Constitution (S.T.) Order 1950 and Meena community has been shown in S.T. in Item No. 9 of Part-13 of the said schedule. 5. In support of seeking reservation in pursuance to the caste certificate as issued to the petitioner the reliance has been placed to the judgment passed by Hon’ble Apex Court in the case of Union of India vs. Doodh Nath Prasad, AIR 2000 SC 525 and Sanjay Kumar Singh vs. State of U.P. (2000) 1 UPLBEC 729 wherein it has been held that if a person belongs to Scheduled Tribe of different State, can still claim reservation under the SC/ST quota if there is no prohibition in that respect. 6. 6. As per Article 342 of the Constitution of India the President notified the tribes of the State as S.T. it is quite possible that in that State such trial on account of disadvantage and social hardship suffered by that caste or group in that State, is entitled for declaration that they belonged to SC/ST but in another State such hardship or social disadvantage may not exist and as such State may not treat such Caste or Tribe as SC/ST, it may also be that such caste/tribe is not residing in another State, if a person belonging to S.T. of another State cease appointment on the basis of the advertisement issued in another State and as such advertisement does not at all prevent a person of SC/ST of another State, there is no bar that such person may be permitted to appear in the examination for selection to the post advertised, meaning thereby that the advertisement and the conditions thereof are important. 7. In the present case when the Railway Protection Force is an all India organization, therefore, wherever the post is advertised it has to have all India notification and would apply to all the citizens of India and in such circumstances the bar of being a S.T of one State would not be entitled to employment in another state would not be an absolute bar. 8. Apart from the legal embargo of taking any such action against the petitioner of belonging to a particular ST of a particular State being not entitled to obtain employment in another State under that ST certificate, nevertheless the position would not be same in case of all India service, otherwise no quota can be applied towards ST candidates as all ST are in particular State where they are facing exceptional hardships, therefore, the benevolence face of the Constitution is towards the side that once a particular set is held to be a ST mainly in that particular State, but he would remain the same for the reserved category in all India service, particularly when there is no such embargo specifically given in the advertisement. 9. 9. The action initiated against the petitioner with regard to cross verification of his status being the ST at the behest of some general directions issued in a litigation adjudicated by the Delhi High Court, whereupon on the basis of the report that the petitioner is not residing in his original village at Rajasthan does not confer the caste certificate pertaining to the petitioner as doubtful. 10. Inspite of the same the department issued a charge sheet dated 30.3.2007 duly served on the petitioner in which the only charge is a report of C.B.I. which has not negated the certificate issued by Tehsildar, Neem Ka Thana for major punishment under Section 153(2) (a) of the Railway Protection Force Regulations 1987. Petitioner replied to the said charge sheet on 22.10.2007 categorically stating that the certificate dated 12.3.1991 was issued by the Tehsildar after verifying due process of law and which was even certified by the incumbent Tehsildar vide his report dated 10.9.2007, at the same time it was also stated that Tehsildar himself had also given a report earlier on 26.10.2006 clearly specifying that the certificate issued on 12.3.1991 is recorded in the register as such the same cannot be faulted with from any angle, moreover Tehsildar has subsequently issued a duplicate copy of the certificate dated 12.3.1991 on 21.12.2006 which also proves that the certificate was issued and it was not against any false document. 11. The entire episode has taken a peculiar turn as inspite of the certificate dated 12.3.1991 being found to be correct is having entry in the register, still the S.T. category is being sought to be denied only on the basis of that he is not resident of that place whereas it is an absolutely misnomer and as such the S.T. certificate can be issued to wards whose ancestors also if living in a particular village from where a person of particular tribe was declared to be ST, therefore, going by any stretch of imagination the certificate issued in favour of the petitioner having even found to be valid and legitimately issued the benefit cannot be deprived only on the basis that he is not at present resident of that village and this is absolutely fallacious proposition which has given rise to the impugned order taking away very source of livelihood of the petitioner without there being any fault on his part. 12. 12. Without considering the grounds taken up by the petitioner, the District Authority held the charges to be proved against the petitioner on absolutely incorrect facts and illegal appreciation of facts brought on record, however, the disciplinary authority gave show cause notice on 28.9.2007 as received by the petitioner on 29.9.2007 alongwith the Inquiry Report and the same has been replied by the petitioner on 22.10.2007. 13. Without considering the matter in its right perspective, riding on its wings the disciplinary authority passed an order of dismissal from service against the petitioner on 31.10.2007. 14. Being aggrieved by the order of dismissal the petitioner preferred appeal through proper channel before respondent no. 2 which was a composite appeal giving out point wise details even assailing in the enquiry made with a prayer to get order of dismissal from service, the appellate authority without any application of mind has reiterated finding of the disciplinary authority without considering the appeal on valid grounds taken therein by way of rejecting the same vide order dated 20.2.2009. 15. Per contra, learned counsel for the respondents vehemently opposed the prayer alongwith the grounds taken for quashing the impugned orders and relied upon the stand taken up in the detailed counter affidavit which has been preferred in rebuttal of the contentions as raised in the present petition. 16. The maintainability of the writ petition was also challenged by the learned counsel for the respondents on the ground of alternative remedy, learned counsel for the respondents raised his arguments by way of narrating the provisions under Rule 219 of Railway Protection Force Rules 1987 wherein the remedy by the statutory provision is available against the appellate order. 17. The attention of the court has been sought over the verification report issued by the certificate issuing authority dated 26.10.2006 which has been appended as Annexure-2, available at Page-22 of the counter affidavit which reveals that neither the name of the petitioner has been mentioned in any register nor he is the permanent resident of the village as mentioned in the caste certificate which gives the impression that the caste certificate submitted by the petitioner dated 21.12.2006 is not a genuine certificate. 18. 18. After hearing the rival contentions as raised by the learned counsel for the parties the controversy as raised in the present petition has to be testified on the basis of the proposition of law as enunciated by the Hon'ble Apex Court in the case of Kumari Madhuri Patil vs. Additional Commissioner, AIR 1995 SC 94 wherein it is specifically held that in case of verification of caste certificate with regard to its genuineness the District Level and State level screening committee as already been constituted by the Government of India, in case if any establishment is having doubt with regard to the caste certificate pertaining to SC/ST the same may be referred to District level screening committee which is the only competent authority to comment upon the caste certificate of SC/ST. 19. On the precise quarry as made before Shri P.N. Rai appearing for respondents regarding the regarding the genesis of the disciplinary proceedings whatsoever has been initiated against the petitioner, in reply the learned counsel for the respondent relied upon the narration in the counter affidavit wherein it has also apprised the court that the genuineness of the said caste certificate shall only be determined by the District Level Screening Committee, but the counter affidavit as preferred by the responding authorities lacking any report determined by the District Level Screening Committee over the issue of caste certificate as submitted by the petitioner at the time of seeking appointment over the post concerned and as such the appreciation of the law as well as fact could not be stated properly by Shri P.N. Rai, learned standing counsel. 20. There is hardly any reference of any Inquiry Report or the determination made by the District Level Screening Committee over the issue of Caste certificate of the petitioner as such the entire proceedings as initiated in the shape of disciplinary proceedings which culminated into the order dated 31.10.2007 through which the services of the petitioner has been dismissed and the same has been upheld at the level of appeal vide order dated 20.2.2009. 21. In view of the above, writ petition is allowed. Both the orders i.e. order dated 20.2.2009 passed by the appellate authority i.e. respondent no. 2 and the order dated 31.10.2007 passed by respondent no. 3 are hereby quashed and set aside.