Chattisgarh High Court
Sanjay Kumar vs State Of Chhattisgarh And Ors on 15 September, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (S) No. 1305 of 2008
Order reserved on 15/07/2021
Order delivered on 15/09/2021
Sanjay Kumar S/o Krishan Prasad, Aged about 35
years, R/o Quarter No. B/127, Dalwadhih, Post
Dalwadhih, Distt. Korba, Chhattisgarh. Permanent
R/o Loriyama Distt. Giridh, Jharkhand.
Petitioner
Versus
1. State of Chhattisgarh through Secretary, General
Administrative Department, D.K.S. Bhawan,
Raipur, Chhattisgarh.
2. South Eastern Coalfields Ltd. Through its
Chairman Cum Managing Director, Seepat Road,
Bilaspur, Chhattisgarh.
3. The Chief General Manager (Works &
Administration), South Eastern Coalfields Ltd.
Korba Area, Distt. Korba, Chhattisgarh.
4. The District Collector, Giridih, Distt. Giridih,
Jharkhand.
5. The Block Development Officer, Jamuva, Distt.
Giridih, Jharkhand.
Respondents
For Petitioner : Mr. T.K. Tiwari, Advocate
For Respondents No. 1/State :
Mr. Ravi Bhagat, Dy. G.A.
For Respondents No. 2 & 3 :
Mr. Vinod Deshmukh, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
1. By way of this writ petition, the petitioner
herein calls in question the impugned order
dated 07/07/2006 (Annexure P6) passed by
respondent No. 2 whereby his service from the
post of 'Mining Sirdar' has been terminated and
further relief has been sought that he may be
allowed to continue on the post which he was
earlier holding.
2. It is the case of the petitioner that he was
issued caste certificate by respondent No. 5 on
16/12/2000 (Annexure P1) as he belonged to
Scheduled Tribe category and thereafter, he was
appointed by respondent No. 2 on the post of
'Mining Sirdar' on 28/08/2002. He joined his
service and also completed the period of
probation, but abruptly by order dated
07/07/2006 (Annexure P6), he was terminated by
respondent No. 2 on the basis of some report
holding his caste certificate to be false
without affording him an opportunity of hearing
and without holding departmental enquiry in
terms of the applicable Standing Orders, which
is absolutely unsustainable and bad in law and
the order of termination deserves to be set
aside.
3. Return has been filed on behalf of respondents
No. 2 and 3 opposing the writ petition stating
inter alia that during the period of probation,
petitioner's caste certificate was verified and
it was informed by the Block Development Officer
vide his letters dated 09/06/2006 and 23/05/2007
(Annexure R/5) that the caste certificate
produced by the petitioner is false and forged
and on that basis, petitioner's service has been
terminated which is strictly in accordance with
law.
4. Mr. T.K. Tiwari, learned counsel for the
petitioner, would submit that petitioner belongs
to Scheduled Tribe category which has also been
stated by him in the documents which he has
filed along with the caste certificate which
goes to show that petitioner really is a member
of Scheduled Tribe and his service has been
terminated from the post of 'Mining Sirdar'
without even affording him an opportunity of
hearing and without holding an enquiry in terms
of the applicable Standing Orders, which runs
contrary to the Standing order of S.E.C.L. as
well as the judgment passed by the Orissa High
Court in the matter of Ritlal Prasad Mandal v.
Chief General Manager, Mahanadi Coalfield
Limited1, as such, the impugned order deserves
to be set aside.
5. Mr. Vinod Deshmukh, learned counsel for
respondents No. 2 and 3, would submit that
petitioner's caste certificate was verified and
since he did not belong to Scheduled Tribe
category and the caste certificate was found to
be false and forged upon verification,
therefore, in terms of the appointment letter,
order of his termination has been passed which
is in accordance with law. He would rely upon
the decision rendered by this Court in the
matter of ChairmanCumManaging Director, SECL &
Ors. v. Naval Kishore Mishra & Anr.2.
6. I have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
7. True it is that petitioner was appointed on the
post of 'Mining Sardar' on 28/08/2002 on the
payscale of Rs. 399813550781456529/ under
2 2009 (2) CGLJ 408 (DB)
the Scheduled Tribe category. Paragraphs 2 and 3
of his appointment letter (Annexure P/2) state
as under :
"02) पपररभ मम आपकक ननययनक कक पररववकप अवनध 01 वरर कक
हहगव | इस अवनध मम आपकक ससवपएर नबनप कहई ससचनप ददए यप
छनतपसरतर कप भयगतपन दकए यप कहई कपरण बतपए समपप कक जप सकतव
हह यप आपकक पररववकप अवनध बढ़पई जप सकतव हह |
Your appointment will be on probation for
a period of one year in the first instance
during which period, your services will be
liable to be terminated/extended without
any notice or compensation or without
assigning any reasons therefor.
03) आपकक पररववकप अवनध सफलतपपसवरक समपप हहनस और आपकक
पसवरववत कस नवरय मम सरतहरजनक पनतवसदन पपप करनस कस बपद सकम
पपनधकपरव दपरप नलनखत रप सस आपकक ससवप कक पयनष कक जपएगव |
After successful completion of your
probation period and on receipt of a
satisfactory report about your antecedents
and performance, your services may be
confirmed in writing by the competent
authority."
8. A careful perusal of the aforesaid conditions
prescribed in petitioner's appointment order
would show that petitioner was appointed on the
post of 'Mining Sardar' on probation for a
period of one year in the first instance and
after successful completion of his probation
period only on receipt of a satisfactory report
about his performance, his services may be
confirmed in writing by the competent authority.
It appears from the record that no order of
confirmation was ever passed after completion of
one year and thus, the petitioner continued to
be on probation. In the meanwhile, his caste
certificate was verified from respondent No. 4
as to whether such certificate has been issued
or not and it was found in the report of
respondent No. 4 that the caste certificate
issued to the petitioner on 16/12/2000 (Annexure
P1) by the Block Development Officer, Jamua,
was not found to have been issued by the Block
Development Officer and accordingly, in terms of
paragraphs 2 and 3 of his appointment letter,
his service has been terminated by order dated
07/07/2006 (Annexure P6).
9. Petitioner was terminated from service on
07/07/2006. Though he was initially appointed on
probation for a period of one year, an order of
confirmation was required to be issued in
writing by the competent officer finding
petitioner's work performance to be
satisfactory. In the matter of Sukhbans Singh v.
State of Punjab3, the Supreme Court has clearly
held that a probationer cannot automatically
acquire the status of a permanent member of the
service unless the rules under which he is
appointed expressly provide for such a result.
In the matter of Registrar, High Court of
3 AIR 1962 SC 1711
Gujarat and Another v. C.G. Sharma4, it has
been held by the Supreme Court that even if the
period of probation expires and the probationer
is allowed to continue after that period,
automatic confirmation cannot be claimed as a
matter of right because the confirmation order
can be passed only if there is vacancy and the
work if found to be satisfactory, which are the
prerequisites or preconditions for confirmation.
The probationer remains a probationer unless he
has been confirmed on the basis of the work
evaluation. The same has further been held by
the Supreme Court in the matter of Kazia
Mohammed Muzzammil v. State of Karnataka and
Another5. In the matter of Mohd. Salman v.
Committee of Management and Others 6 Their
Lordships of the Supreme Court have held that
where a person is appointed as a probationer and
a period of probation is specified, it does not
follow that at the end of the said period of
probation he obtains confirmation automatically
unless specifically provided for in the terms of
appointment/specified service Rule.
4 (2005) 1 SCC 132
5 (2010) 8 SCC 155
6 (2011) 12 SCC 308
10. Reverting to the facts of the instant case, the
appointment order of the petitioner (Annexure
P2) clearly provides that his initial
appointment was for one year during which his
service can be terminated/extended without any
notice/compensation or without assigning any
reason and on completion of probation period
only on receipt of satisfactory report of his
conduct and work performance, his service is
liable to be confirmed in writing by the
competent authority, but no order of
confirmation has been placed on record by the
petitioner except stating that he is deemed to
have been confirmed after completion of one year
and he has acquired the status of permanent
employee of respondent SECL, as such, the
procedure prescribed in Clause 28 of the
Standing Order would apply. The fact remains
that petitioner was a pure and simple
probationer and though his period of probation
was not extended by any order, but no order of
his confirmation was either passed in writing,
as such, even after the expiration of his
probation period of one year, he continued to be
a probationer and would still be a probationer
on the date on which his service was terminated,
in absence of any specific order of
confirmation.
11. At this stage, it would be appropriate to notice
conditions 12 and 13 of petitioner's appointment
order, which state as under :
"12) यह ननययनक आदसश असथपयव हह और इस शतर पर हह दक अनयससनचत
जपतव / जनजपनत पमपण पत उनचत मपधयम दपरप जपजच दकयप जपयसगप
तथप यदद जपरच मम यह पतप चलतप हह दक अनयससनचत जपतव/जनजपनत,
जहसप भव मपमलप हह, हहनस कप दपवप गलत हह तह ससवपयम नबनप कहई
कपरण बतपयस और नबनप पसवपरगह कस समपप कर दव जपयसगव यप गलत
पमपण पसतयत करनस हसतय भपरतवय दणड सरनहतप कस पपवधपन कस अनयसपर
इसव तरह कक अनय कपयरवपहव कक जपयसगव |
The appointment is provisional and is
subject to the caste/tribe certificate
being verified through the proper channels
and if the verification reveals that the
claim to belong to Scheduled
Caste/Scheduled Tribe, as the case may be,
if false your services will be terminated
forthwith without assigning any further
reason and without prejudice to such
further action as may be taken under the
provision of the Indian Penal Code for
production of false certificate.
13) यदद आपकस दपरप कहई भव पमपण पत गलत यप असतय पपयप गयप
तह आपकक ससवपयम नबनप कहई ससचनप ददयस समपप कर दव जपयसगव |
Any of the certificates, if found
incorrect, your services will be
terminated without giving any notice."
12. The aforesaid conditions 12 and 13 of
petitioner's appointment letter would show that
it has clearly been held that petitioner's
appointment is provisional and is subject to
verification of caste certificate and upon
verification, if the caste certificate is found
false or it is found that petitioner does not
belong to Scheduled Tribe category, then in such
a case, his services will be terminated without
assigning any reason and without giving any
notice and without prejudice to such further
action as may be taken under the provision of
the Indian Penal Code for production of false
certificate.
13. In the instant case, respondent No. 3/SECL
sought information regarding verification of
petitioner's caste certificate and upon inquiry,
it has been found by the competent authority
that the caste certificate dated 16/12/2000
(Annexure P1) by which petitioner claimed that
he belongs to Scheduled Tribe category is false
and it has not really been issued from the
Office of the Block Development Officer, Jamua
and in that view, respondent No. 3 has clearly
recorded in petitioner's termination order dated
07/07/2006 (Annexure P6) that since his caste
certificate has been found to be false,
therefore, petitioner's services are terminated
in accordance with conditions 05, 12 and 13 laid
down in the appointment letter (Annexure P2).
14. Now, considering the contention raised by
learned counsel for the petitioner that the
petitioner ought to have been afforded an
opportunity of hearing before passing of the
order of termination so that he could have
explained his case and in absence of any
opportunity of hearing provided to the
petitioner and for verification of his caste
status (if any) the matter could have been
referred to the Caste Scrutiny Committee and in
absence thereof, the impugned order terminating
petitioner from service is absolutely bad.
15. In order to adjudicate this issue, it would be
appropriate to notice the pertinent judgments in
this regard. The Supreme Court in the matter of
Madhuri Patil v. Commissioner, Tribal
Developmet7 formulated the scheme for
verification of tribal status and held that any
application for verification of tribal status as
a Scheduled Tribe should be carried out by such
committee and issued direction for issuance of
social caste certificate. The directions issued
are as under :
"13. The admission wrongly gained or
appointment wrongly obtained on the basis
7 (1994) 6 SCC 241
of false social status certificate
necessarily has the effect of depriving the
genuine Scheduled Castes or Scheduled
Tribes or OBC candidates as enjoined I the
Constitution of the benefits conferred on
them by the Constitution. The genuine
candidates are also denied admission to
educational institutions or appointments to
office or posts under a State for want of
social status certificate. The ineligible
or spurious persons who falsely gained
entry resort to dilatory tactics and create
hurdles in completion of the inquiries by
the Scrutiny Committee. It is true that the
applications for admission to educational
institutions are generally made by a
parent, since on that date many a time the
student may be a minor. It is the parent or
the guardian who may play fraud claiming
false status certificate. It is, therefore,
necessary that the certificates issued are
scrutinised at the earliest and with utmost
expedition and promptitude. 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 SubDivisional 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.
* * *
(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 overall
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, deities, 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 a showcause 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. ...
* * *
(9) The inquiry should be completed as
expeditiously as possible preferably by
daytoday 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 the parent/guardian
and the applicant."
16. Quite recently following the principles laid
down in Madhuri Patil (supra), in the matter of
Collector, Bilaspur v. Ajit P.K. Jogi and
others8, the Supreme Court has held that the
verification of validity of the caste
certificates and the determination of the caste
status should be done only by scrutiny committee
constituted as per direction in Madhuri Patil
(supra) or in terms of any statute made by
appropriate Government in that behalf.
17. In the matter of Sudhakar Vithal Kumbhare v.
State of Maharashtra and Others9, Their
Lordships of the Supreme Court have held that
issue of caste status cannot be gone into in a
departmental enquiry and this matter can be
examined only by the Caste Scrutiny Committee
constituted under the direction of the Supreme
Court in the case of Kumari Madhuri Patil
(supra) and held as under :
8 (2011) 10 SCC 357
9 (2004) 9 SCC 481
"6. Here we find that the Maharashtra State
Electricity Board acting upon the direction
of State Government has reverted the
appellant without referring the matter to
the Scrutiny Committee which was not the
correct way to deal with the appellant's
case. In fact, in such a situation the
employer was required to refer the question
before the Scrutiny Committee, which
admittedly had been constituted and
established for coming to the matter."
18. The Supreme Court in the matter of Chairman and
Managing Director, Food Corporation of India v.
Jagdish Balaram Bahira and Others10 affirmed the
principle of law laid down in Madhuri Patil
(supra) and held as under :
"69.2. Since the decision of this Court in
Madhuri Patil which was rendered on 29
1994, the regime which held the field in
pursuance of those directions envisaged a
detailed procedure for :
(a) the issuance of caste certificates;
(b) scrutiny and verification of caste and
tribe claims by Scrutiny Committees to be
constituted by the State Government;
(c) the procedure for the conduct of
investigation into the authenticity of the
claim;
(d) Cancellation and confiscation of the
caste certificate where the claim is found
to be fales or not genuine;
(e) Withdrawal of benefits in terms of the
termination of an appointment, cancellation
of an admission to an educational
institution or disqualification from an
electoral office obtained on the basis that
the candidate belongs to a reserved
category; and
(f) Prosecution for a criminal offence."
10 (2017) 8 SCC 670
19. Coming to the facts of the instant case in light
of the decision rendered by the Supreme Court in
the matter of Madhuri Patil (supra) followed in
the matter of Ajit Jogi (supra) and in Chairman
and M.D. F.C.I. (supra), it is quite vivid that
in the instant case, the petitioner was earlier
granted caste certificate on 16/12/2000 by
respondent No. 5 showing that he belongs to
Scheduled Tribe category and on the basis of
that, he was appointed by respondent No. 2 on
the post of 'Mining Sirdar' on 28/08/2002 and he
continued on the said post till the date of
termination. The petitioner's appointment was
cancelled holding that his caste certificate was
verified by the Deputy Commissioner, Jharkhand
and upon receiving the first verification report
dated 09/06/2006 it was found that petitioner's
caste certificate has not been issued from his
office and as such, petitioner has been removed
from service as per Clauses 5, 12 and 13 of the
conditions of appointment order dated
28/08/2002. It is the case of the respondents
that petitioner's caste certificate was not
genuine and as per the report which was
submitted, he does not belong to ST category
rather he belongs to OBC category. The report
dated 23/05/2007 (Annexure R/10) states as under
:
जजजाँच प्रततिववेदन
क. नजम तपितिज कज नजम कमजमांक/तदनजजाँक अतभिययक
1. X X X कजयजर्यालय मम जजतति
2. X X X प्रमजण पित्र पिमांजज
उपिलब्ध नहहीं रहनवे
3. X X X
कवे कजरण जजमांच नहहीं
4. X X X तकयज जज सकज ।
5. X X X पिरन्तिय स्थजनजय
जजमांच एवमां प्रस्तियति
6. X X X
प्रमजण पित्र कवे
7. X X X
अवललोकन सवे यह
8. समांजय कयमजर ककष्ण प्रसजद 1035/14.12.2000 स्पिष्ट हलोतिज हहै तक
9. X X X कमजजाँक 01 सवे 16
तिक कज प्रमजण पित्र
10. X X X
फजर्जी हहै । यह सभिज
11. X X X
तपिछडज जजतति कवे
12. X X X अमांतिरर्या ति आतिवे हह ।
13. X X X इनकवे दजरज प्रस्तियति
जजतति प्रमजण पित्र मम
14. X X X
अमांतकति अनय. जजतति
15. X X X
एवमां अनय. जनजजतति
16. X X X कज जजतति प्रमजण पित्र
रलति हहै ।
सहज/-
23/05/07
प्रखमांड तवकजस पिदजधधकजरज
जमयआ (तरररडजह)
20. As such, in the report dated 23/05/2007
(Annexure R/10), respondent No. 5 not only held
petitioner's caste certificate to be forged, but
also held that he belongs to OBC and he does not
belong to Scheduled Tribe category. Since
petitioner was appointed on the reserved post
for ST category and his caste certificate was
verified by SECL wherein his certificate is not
only found to have been forged, but also he has
been held to be a member of OBC category, but it
could have been done only by the Caste Scrutiny
Committee or the Competent Authority in terms of
the judgment rendered by the Supreme Court in
the matter of Madhuri Patil (supra) followed in
Ajit Jogi (supra) and Chairman and M.D. F.C.I.
(supra). The Supreme Court has categorically
held that verification of validity of caste
certificate and determination of caste status
should be done by the Caste Scrutiny Committee
in terms of Madhuri Patil (supra), therefore,
validity of the caste certificate issued to the
petitioner could have been verified only by the
Caste Scrutiny Committee and not by the
Authority issuing the said certificate, as the
only authority having such jurisdiction as per
the decision of the Supreme Court is the Caste
Scrutiny Committee and therefore, the procedure
adopted by the respondent SECL to send
petitioner's caste certificate to the
Authority/respondent No. 5 who has issued the
said certificate and after getting information
that the said certificate has not been issued by
the said Authority. The report (Annexure R/10)
holding the caste certificate to be false and
petitioner belongs to OBC category is dated
23/05/2007 after the petitioner was terminated
on 07/07/2006.
21. The Supreme Court in the matter of Ex. Sig. Man
Kanhaiya Kumar v. Union of India and Others 11
held that where the appellant himself has
admitted that relationship certificate produced
by him is fake; the procedure laid down in
Section 20(3) of the Army Act, 1950, would be a
formality and termination was held to be
justified.
22. Thus, in absence of admission and specific
finding that the caste certificate submitted by
the petitioner is forged mainly on the basis of
certificate issued by respondents No. 4 and 5 on
09/06/2006 without holding any sort of enquiry
and without referring the matter to the Caste
11 (2018) 14 SCC 279
Scrutiny Committee for verification, it could
not have been held by the respondent SECL that
petitioner's caste certificate is a forged
document. As such, in the considered opinion of
this Court, once the petitioner has submitted
the caste certificate which has been acted upon
by the respondent SECL and on the basis of
which, petitioner has been appointed on the post
of 'Mining Sirdar' for which he also worked for
very long time and thereafter, it is brought to
the notice of official respondents that
petitioner does not belong to the ST category
and belongs to the OBC category and his caste
certificate is disputed, the only course open to
the respondent SECL was to get the document
verified by the appropriate Caste Scrutiny
Committee in terms of decision rendered by the
Supreme Court in the matter of Madhuri Patil
(supra) followed in the matter of Ajit Jogi
(supra) and Chairman and M.D. F.C.I. (supra),
wherein it has clearly been held that
verification of the validity of the caste
certificate and determination of the caste
status both should be done by the Scrutiny
Committee constituted as per the direction in
Madhuri Patil (supra) or in terms of the statute
made by the appropriate Government in this
behalf and more particularly, the issue of caste
certificate and determination of castestatus
cannot be gone into in a departmental enquiry by
respondent SECL as held by the Supreme Court in
the matter of Sudhakar Vithal Kumbhare (supra)
followed by this Court in the matter of Virodhan
Ram v. State of Chhattisgarh and Others 12,
therefore, the order of dismissal from service
passed by respondent No. 1 is absolutely without
jurisdiction and without authority of law as the
only course open was to refer the matter to the
appropriate Caste Scrutiny Committee. In view of
this finding, the judgment relied upon by
learned counsel for the respondents in the
matter of Naval Kishore (supra) is clearly
inapplicable.
23. Accordingly, the impugned order dated 07/07/2006
terminating the services of petitioner is hereby
quashed. The petitioner is directed to be
reinstated forthwith with all consequential
benefits except backwages. The question of
backwages shall be considered by competent
authority within a period of 45 days from the
date of receipt of a copy of this order in
accordance with applicable Rules/
Regulations/Standing orders and petitioner will
also be allowed to make representation for the
same. The official respondents are directed to
refer the matter to the appropriate Caste
Scrutiny Committee constituted by the
appropriate State Government to verify the
validity of the caste certificate and also for
determination of the caste status of the
petitioner as per direction of the Supreme Court
in the matter of Madhuri Patil (supra) followed
in the matter of Ajit Jogi (supra) and Chairman
and M.D. F.C.I. (supra) within four weeks and
upon receipt of the report from the Caste
Scrutiny Committee, the respondents are at
liberty to proceed in accordance with law.
24. The writ petition is allowed to the extent
indicated hereinabove. No cost(s).
Sd/
(Sanjay K. Agrawal)
Judge
Harneet
