Allahabad High Court
Subhash Chandra Maurya vs State Of U.P. And 2 Others on 20 September, 2021
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 2
Case :- WRIT - A No. - 8117 of 2021
Petitioner :- Subhash Chandra Maurya
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Suresh Chandra Shukla,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 9895 of 2020
Petitioner :- Maya Shukla
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate(Ashok Khare)
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 7810 of 2021
Petitioner :- Rajesh Kumar Yadav
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Suresh Chandra Shukla,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 7615 of 2021
Petitioner :- Smt. Ruchi Rai
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Pradeepta Kumar Shahi,Hritudhwaj Pratap Sahi,Sr. Advocate Sri. V.K. Singh
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 7962 of 2021
Petitioner :- Ram Prasad
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Anurag Shukla,Kamal Pati Shukla
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 8954 of 2021
Petitioner :- Pradip Kumar Deo Pandey
Respondent :- State Of U P And 6 Others
Counsel for Petitioner :- Prabhakar Awasthi,Ajitabh Choubey
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 8957 of 2021
Petitioner :- Santosh Yadav
Respondent :- State Of U P And 6 Others
Counsel for Petitioner :- Prabhakar Awasthi,Ajitabh Choubey
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 8996 of 2021
Petitioner :- Swarn Lata
Respondent :- State Of U P And 6 Others
Counsel for Petitioner :- Prabhakar Awasthi,Ajitabh Choubey
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 9269 of 2021
Petitioner :- Dhruv Kumar Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Prabhakar Awasthi,Ajitabh Choubey
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
With
Case :- WRIT - A No. - 14183 of 2020
Petitioner :- Jai Prakash
Respondent :- State Of U.P. And 10 Others
Counsel for Petitioner :- Narendra Srivastava
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
Hon'ble Suneet Kumar,J.
1. Heard learned counsels appearing for the petitioners in the batch of connected writ petitions, learned counsels appearing for the respondents and learned standing counsel for the State-respondents and perused the material placed on record.
2. Learned counsels appearing for the petitioners in the instant writ petition and the other batch of writ petitions submit that the facts, inter se, parties are similar and can be decided by a common judgment.
3. For the sake of convenience, the facts stated in the Writ Petition No. 8117 of 2021 is being referred to for deciding the writ petitions.
4. Petitioner was admitted to Basic Training Course under Physically Handicapped Quota (in short 'P.H.') on the strength of P.H. certificate dated 12.09.2006, issued by the office of the Chief Medical Officer, Sonbhadra, wherein, it is noted that petitioner is having 60% hearing problem (deafness). The petitioner came to be appointed as Assistant Teacher in Primary School, run and managed by second respondent-Basic Shiksha Parishad, Uttar Pradesh on 30.06.2011, under the other backward class category (OBC). Thereafter, on assessing the work, performance and conduct of the petitioner, he came to be promoted on the post of Headmaster on 15.05.2015. In the meantime, the State Government vide Government Order dated 20.07.2018, on having received complaints with regard to forged documents, pertaining to handicapped certificate, social status certificates upon which direct appointments came to be made, accordingly, directed verification of all such certificates with regard to their authenticity/genuineness. As per the Government Order, a three member committee, under the Chairmanship of the Additional District Magistrate, was required to inquire and examine the certificates, other than the seven districts, noted therein, namely, Agra, Aligarh, Firozabad, Hathras, Moradabad, Fatehpur and Hardoi.
5. Para- 6 of the Government Order relevant to the facts of the instant case reads as under:-
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6. Pursuant thereof, all such candidates who had obtained appointment under the P.H. category were directed to appear before a Medical Board at Banaras Hindu University, Varansai (in short 'B.H.U.').
7. Petitioners herein were appointed under P.H. category, they appeared before the Medical Board on 29.10.2020.
8. The Medical Board, on examination, declared that petitioner is having 06% hearing disability. On the strength of the report, a show cause notice dated 23.03.2021, was issued by the third respondent-District Basic Education Officer, Sonbhadra, to the petitioner. Petitioner appeared and submitted his reply/objections stating, inter alia, that the P.H. certificate was issued to the petitioner in 2006 by the Government Medical Officer. During fourteen years, thereafter, the impairment of the petitioner improved for the better as petitioner was regularly taking treatment under the supervision of specialized doctors. It was further stated that it is not the case of the respondent that he had obtained appointment on the strength of forged and manufactured document, hence, services of the petitioner could not have been terminated without following the procedure mandated under the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, read with Uttar Pradesh Basic Education Staff Rules, 1973 (hereinafter referred to as "Rules, 1973").
9. In rebuttal, learned counsels appearing for the respondents submit that the impugned order has been passed by the appointing authority on the strength of the report of the Medical Board communicated by the Chief Medical Officer, vide communication dated 08.03.2021. The name of the petitioner finds place at serial no. 3. It is further submitted that there was no occasion for conducting disciplinary proceedings since the impairment of the petitioner was much lower (06%) and in some cases (0%) than that mandated to declare the petitioners handicapped i.e. 40%. It is urged that petitioners have obtained appointment by misrepresentation. The impugned order is lawful and liable to be upheld.
10. Rival submissions fall for consideration.
11. The short question that arises for consideration is as to whether the petitioners could have been terminated on a show cause notice, the impugned order resting upon a medical report, without taking recourse under the Rules, 1973.
12. The facts, inter se, parties are not in dispute. The petitioner came to be appointed in 2006 as Assistant Teacher under the handicapped quota on the strength of a P.H. certificate dated 12.09.2006. Petitioner was assessed hearing impairment at 60%. Thereafter, petitioner earned promotion on 15.05.2015. On complaints being received by the State Government alleging that several candidates obtained appointments on forged and manufactured documents. Accordingly, vide Government Order dated 20.06.2018, State Government directed the District Magistrate to verify the authenticity of the documents insofar as it relates to the handicapped/social status certificate, in respect of candidates of all districts of the State, barring, seven districts noted in the Government Order. On receiving the report dated 18.03.2021, communicated by the Chief Medical Officer, the third respondent- District Basic Education Officer, Sonbhadra, upon a show cause notice, the services of the petitioner came to be terminated by the impugned order dated 23.06.2021. The order is under challenge.
13. I have perused the Government Order and other material brought on record with the assistance of learned counsel for the petitioners.
14. The Government Order specified that the committee would inquire and examine the genuineness of the certificates issued by the competent authority of all candidates having obtained appointment as Assistant Teachers on the strength of physical handicapped/social status certificates. The committee instead of inquiring into the genuineness/authenticity of the certificates, directed all such candidates, who claim to be handicapped, to appear before the Medical Board for medical examination to ascertain their handicap status.
15. On the medical report, services of the petitioner came to be terminated after issuing a show cause notice dated 22 March 2021. It is no where noted in the impugned order that the P.H. certificate, issued by the respective Chief Medical Officers, which, inter alia, was the basis for appointment, is a forged or manufactured document. In other words the appointment of the petitioner cannot be said to be void ab initio or non est having obtained on a forged and non-existent document. The genuineness of the document on which the appointment of the petitioner rests is not under doubt nor have the Chief Medical Officer of any district under scrutiny, certified that the P.H. certificate was not issued from their office. The impugned order is founded on an acquired evidence i.e. a fresh medical report without returning a finding of fact that the earlier P.H. certificate issued by the Medical Officer is a forged and/or manufactured document. It is also not the case of the respondents that the impairment of the petitioners at the time of appointment is permanent or irreversible in the backdrop of the Medial Report. The finding cannot have been inferred but would rest upon evidence.
16. The question of fact could have been established in a regular departmental enquiry contemplated under the Rules, 1973. Sub-rule (3) of Rule 5 provides that the procedure prescribed under the U.P. Government Servant (Discipline and Appeal) Rules, 19992, would have to be followed. Rules, 1999, mandates a prescribed procedure for imposing major penalty of termination from service.
17. The Rules, 1999 mandates: (i) framing of charge; (ii) opportunity to the delinquent employee to deny his guilt and establish his innocence; (iii) an opportunity to defend himself by cross examination of witnesses produced against him; (iv) an opportunity to make representation to the proposed punishment.
18. Admittedly, the procedure prescribed thereunder was not followed. The respondents proceeded to terminate the services of the petitioner on an assumption that the P.H. certificate, which is the basis of the employment of the petitioners, is a forged and manufactured document, merely for the reason that the subsequent Medical Board has assessed their disability less than that mandated to declare a person physically handicapped.
19. Having due regard to the facts and circumstances of the case, services of the petitioner could not have been terminated outright on mere show cause notice. Admittedly, the P.H. certificate, which is the basis of appointment, has not been declared to be a forged or manufactured document by the competent authority issuing the certificate. Had the P.H. certificate been a forged and/or manufactured document i.e. non existent document, the procedure adopted by the respondents could have been justified.
20. Three Judge Bench of the Supreme Court in Chairman and Managing Director, FCI and others Versus Jagdish Balaram Bahira and others3, upon revisiting the law where the incumbent obtained benefit of admissions/appointment based on false social status certificate held that "where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est."
21. In that event, the employer would not be required to initiate regular departmental proceedings under the Rules for the reason that the verification of the certificate by the competent authority would bind the disciplinary authority. In such a case, the delinquent employee can be removed from service upon a show cause notice. The disciplinary authority would have no occasion to return a finding in a proceedings to a charge. The very foundation on which the service of the delinquent employee rests upon being demolished, the consequence would be automatic removal from service.
22. In the instant case, the principle is not applicable. The impugned order rests upon a sole evidence i.e. medical report, the report, per se, would not be sufficient to terminate the service of the petitioners outright, without returning a further finding that the disability of the petitioners was irreversible and not liable of improvement/cured. Such a finding could have been returned in a regular disciplinary proceedings conducted under the rules, on a specific charge and either side leading evidence. Admittedly, the procedure mandated under the 1973 Rules, read with, Rules, 1999, was not followed before imposing major penalty that would in the given facts vitiate the impugned order terminating the services of the petitioner.
23. In view thereof, the writ petition is allowed. The impugned order dated 23 June 2021, passed by third respondent-District Basic Education Officer, Sonbhadra, is set aside and quashed. Petitioner of the leading petition and connected petitions shall be reinstated on their respective posts. Petitioners shall be entitled to arrears of salary and salary on month to month thereafter.
24. It is clarified that the disposal of the writ petitions would not preclude the respondents from verifying the genuineness/authenticity of the P.H. certificates as to whether it is a forged or manufactured document.
25. No cost.
Order Date :- 20.9.2021
Rameez
