Full Judgment Text
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Date of Order : 03 February, 2020.
+ W.P.(C) 884/2020, C.M.2802/2020
GOVT. OF NCT OF DELHI & ORS. ..... Petitioners
Through: Mr.Naushad Ahmed Khan, ASC,
Civil, GNCTD.
versus
HARSH CHALIHA (TGT) ..... Respondent
Through: Mr.Piyush Sharma and Mr.Suresh
Garg, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
G.S. SISTANI, J. (ORAL)
1. This writ petition is directed against order dated 19.12.2018 passed by
the Central Administrative Tribunal (the ‘Tribunal’) by which O.A.
No.100/4152/2014 filed by the respondent has been allowed; as also
order dated 03.05.2019 by which the review petition filed by the
petitioner has been dismissed.
2. Some necessary facts which are required to be noticed for disposal of
this writ petition are that the respondent, a Brahmin by birth, got
married on 18.04.1975 to one Mr. T.C. Chaliha, who belongs to the SC
category. After the respondent’s marriage, she applied for a certificate
to record that she belongs to the SC category. A provisional certificate
to this effect was issued to the respondent on 30.06.1975 by the Deputy
W.P.(C) 884/2020 Page 1 of 7
Commissioner, CCS-II Section, Delhi. Thereafter, a regular certificate
was issued to her on 12.09.1975.
3. In the year 1978, the respondent joined a Municipal Corporation of
Delhi school as an Assistant Teacher. Thereafter on 12.02.1980, the
respondent was appointed as TGT (Hindi) in the Government Girls,
Senior Secondary School, Narela against a vacancy reserved for
Scheduled Caste. On 15.05.1985, after she joined as Assistant Teacher,
an explanation was sought from the respondent regarding her caste
status; and on 22.11.1985, another letter was issued by the Vigilance
Officer of the Directorate of Education seeking certain
information/documents from the respondent regarding her allegedly
fraudulent/bogus caste certificate.
4. On 23.06.1989, the respondent was issued a memorandum enlisting the
articles of charge under Rule 14 of CCS (CCA) Rules 1965, on the
allegation that she had relied upon a fraudulent Scheduled Caste
certificate; and had concealed the fact that she belonged to a Brahmin
family and had therefore procured the government job by concealment.
Enquiry was conducted and the enquiry report was submitted by the
Inquiry Officer on 25.05.1990. Thereafter on 14.11.1991, the
Disciplinary Authority passed an order, awarding the punishment of
reduction in rank to the post of Assistant Teacher in the minimum of
pay scale and reverting her to the MCD. The respondent then filed an
appeal before the Appellate Authority.
5. The respondent superannuated on 30.06.2014. In the meantime, the
respondent also approached the Tribunal by filing O.A.2812/1991,
W.P.(C) 884/2020 Page 2 of 7
which was disposed of by an order dated 14.11.1996. The following
observations were made by the Tribunal in the said order:
“the disciplinary authority has made a positive finding that
“She had made a false statement”, but the point in issue,
whether she got it (job) by making a false declaration and that
the matter requires further and deeper examination at the
hand of the Appellate Authority”
The OA was accordingly disposed of directing the Appellate
Authority to examine the matter with specific reference to whether the
finding of the Disciplinary Authority is based on evidence.
6. By an order dated 27.06.2014 the Appellate Authority passed an order
imposing the punishment of ‘removal from service’ which led to the
filing of OA No.4152/2014, in which the Tribunal set-aside the order of
the Appellate Authority. Review petition was filed by the petitioner,
which was dismissed by the Tribunal; which has led to filing of the
present writ petition.
7. It transpires that thereafter by communication dated 24.08.1987 issued
by the office of the Deputy Commissioner the caste certificate dated
12.9.1975 issued to the respondent was cancelled and the facilities
availed by her were directed to be withdrawn.
8. Mr.Naushad Ahmed Khan, learned counsel for the petitioner submits
that the employment granted to the respondent was based on a false
certificate, since admittedly, the respondent does not belong to
Scheduled Caste category. It is submitted that since the basis of her
employment was a false certificate, which could not entitle her to the
post, there is no infirmity in the order passed by the Appellate
Authority. Even otherwise, Mr.Khan submits that de-hors any question
of enquiry, if the certificate in question has since been withdrawn, the
W.P.(C) 884/2020 Page 3 of 7
respondent would not be entitled to any benefit whatsoever. Mr.Khan
places reliance upon the following judgments of the Supreme Court:
(i) Valsamma Paul vs. Chochin University and Ors. , reported as
(1996) 3 SCC 545
(ii) Anjan Kumar vs. Union of India & Ors., reported as (2006) 3
SCC 257
(iii) A Swarajyalakshmi vs. Registrar General of India (Census) ,
reported as (2001) SCC online AP 105.
9. Per contra Mr.Piyush Sharma, learned counsel for the respondent
submits that there was no concealment on the part of the respondent.
He relies upon the stand taken by the respondent in the statement given
before the Inquiry Officer, the relevant portion of which reads as under:
“It may also be mentioned that the only authority which can
take a decision on such matters on behalf of the Government is
the DC, Delhi who has issued the certificate to me. The DC
has not withdrawn or cancelled the certificate because I am
fully entitled to it. This fact has also been born out by the
evidence of PW11 who represents office of the IC vide his
evidence dated 16.2.90 and 8.3.90. Thus validly hold the SC
certificate issued by the competent authority and so long as I
hold the certificate, no other authority (including Directorate
of Education) can challenge my status SC. Directorate of
Education is obliged to be guided by the SC certificate issued
by have no jurisdiction or power to challenge my status so
long as I hold the certificate. Thus the Directorate of
Education has neither (i) the jurisdiction to take a decision
whether the certificate was issued to me was correct (ii) nor
has any power to question my status as SC so long I hold a SC
certificate.”
10. Counsel for the respondent further contends that the respondent had
taken a bold step as far back as in the year 1975 of marrying outside
her caste; and instead of lauding the stand taken by her, she has been
W.P.(C) 884/2020 Page 4 of 7
penalized and has been subjected to harassment year-after-year and
continues to be harassed even after her superannuation. He submits that
it is not the case of the petitioner that the respondent made a false
declaration before the certificate issuing authority; or that the certificate
relied upon by her is forged or fabricated. Learned counsel contends
that the respondent has had an unblemished service record. She served
the school with utmost sincerity and dedication. Therefore, at this stage,
the petitioner cannot deprive her of retiral benefits and other dues on the
basis of the plea taken. He places reliance on a judgment rendered by
this Court in the matter of Kendriya Vidyalya Sangathan vs. Shanti
Acharya Sisingi : W.P. (C) 4743/2008; and submits that even otherwise,
the certificate could not have been cancelled without issuing a show
cause notice, holding a proper enquiry and giving an opportunity of
hearing.
11. We have heard learned counsel for the parties and have considered their
rival contentions.
12. It is not in dispute that the respondent is a Brahmin by caste. It is also
not in dispute that way back in the year 1975 she married a gentleman
who belonged to a Scheduled Caste. Under a bona fide belief, the
respondent sought a Scheduled Caste certificate from the concerned
authorities, which was granted to her. Based on the said certificate, she
applied for the post of Assistant Teacher with MCD, to which post she
was appointed.
13. We find force in the submissions made by counsel for the respondent
that her caste certificate could not have been cancelled without the
concerned authority issuing a show cause notice to her respondent,
W.P.(C) 884/2020 Page 5 of 7
holding a proper enquiry and giving to the respondent an opportunity of
hearing. In our view, the judgments relied upon by the Mr.Khan do not
apply to the peculiar facts of this case.
14. Considering the above, in our view, there is no infirmity in the order
passed by the Tribunal. The Tribunal has correctly allowed the OA on
the ground that there is no concealment on the part of the respondent.
She had rendered the explanation that she was under an impression that
having married a person who belongs to a reserved category, the
benefits of reservation would automatically accrue to her. There is no
allegation against the respondent that the certificate was procured by
her through illegal means; or by concealment; or that the certificate is
per se forged or fabricated. Furthermore, after the matter was remanded
back by the Tribunal to the Appellate Authority as far back as on
14.11.1996 and the final order passed only on 27.06.2014, no action
was taken against the respondent; and the only explanation rendered by
the counsel for the petitioner is that the file had gone missing. This
explanation of the learned counsel for the petitioner does not inspire
confidence. The respondent was allowed to work throughout and she
has since superannuated on 30.06.2014. She is a senior citizen and at
this stage, she ought not to be put to harassment by depriving her of all
retiral benefits.
15. Resultantly, we do not find any merit in the present writ petition and the
same is dismissed. All pending dues of the respondent shall be released
within six weeks from today, failing which they would be paid along
with interest @ 8% p.a. for the period of delay.
C.M.2802/2020
W.P.(C) 884/2020 Page 6 of 7
16. In view of the order passed in the writ petition, the application stands
disposed of.
G.S.SISTANI, J
ANUP JAIRAM BHAMBHANI, J
FEBRUARY 03, 2020/ rb
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