WA/107/2020
2021 Latest Caselaw 2672 Gua

GAHC010295422019




                  THE GAUHATI HIGH COURT
 (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
                         PRADESH)

                          Case No. : WA/107/2020


DR. RASHESWAR CHANDRA PAUL

SON OF LATE JITENDRA CHANDRA PAUL, ARYAPATTI, STEAMERGHAT
ROAD, P.O. - SILCHAR-788002, DISTRICT - CACHAR, ASSAM.

      -VERSUS -

STATE OF ASSAM AND 2 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, HEALTH AND FAMILY WELFARE (B) DEPTT. DISPUR,
GUWAHATI-781006.

2:THE PRINCIPAL CUM CHIEF SUPERINTENDENT
SILCHAR MEDICAL COLLEGE AND HOSPITAL
P.O. GHOONGUR
SILCHAR 788014
DIST. CACHAR
ASSAM.

3:THE ASSAM PUBLIC SERVICE COMMISSION
KHANAPARA
GUWAHATI 781022
DIST. KAMRUP (M)ASSAM

Advocate for the Petitioner : MR. N DHAR

Advocate for the Respondent : SC, HEALTH

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE KAKHETO SEMA

02-11-2021

Heard Mr. N. Dhar, learned counsel for the appellant. Also heard Mr. D. Upamanyu, learned standing counsel, Health Department, appearing for the respondent Nos.1 & 2 and Mr. P.P. Dutta, learned standing counsel, APSC, appearing for the respondent No.3.

This writ appeal has been filed by the appellant/ writ petitioner being aggrieved by the order dated 27.08.2019 passed by the learned Single Judge in WP(C) No.6523/2014.

Brief facts of the case are that the appellant/writ petitioner, who is a doctor by profession, claimed to be a member of the Other Backward Classes (OBC) community of Assam, which is "Rudra Paul". There is no dispute regarding the fact that "Rudra Paul" is an OBC community for the State of Assam. The only question was whether the appellant/writ petitioner was a member of this community.

Later after getting his MBBS Degree on a reserved seat, the appellant/ writ petitioner was appointed as Registrar of Surgery, Silchar Medical College on the strength of his being a member of OBC community on a post reserved for an OBC candidate. Later on, on a detail enquiry, it was found that the appellant/writ petitioner was not a member of OBC community but is a "Kayastha" and belongs to "Kayastha" community and, therefore, his Caste Certificate, appointment, etc., were cancelled. This order was put to challenge by the appellant/writ petitioner before the learned Single Judge of this Court.

The learned Single Judge dismissed the writ petition holding that the appellant/writ petitioner is not a member of OBC community but while dismissing the petition, the following remarks were made:-

" ....... cancellation of the appointment shall not be a bar for the appellant to get an appointment in the Govt. department in future as a General candidate."

The order was again put to challenge by the appellant/writ petitioner before a Division Bench in writ appeal. His writ appeal was also dismissed and the following remarks were made:-

"7. The learned Single Judge has also taken appropriate care to ensure that the future of the appellant is not being marged on account the above conduct and accordingly, the learned Single Judge has observed that cancellation of the appointment shall not be a bar for the appellant to get an appointment in the Govt. department in future as a General candidate. We endorsed the view above and also would like to add that the appellant's case may be considered for appointment as a General Category candidate in the light of his position in the Merit List provided vacancies exist for appointment against General Category candidate."

Subsequent to these observations, the appellant/ writ petitioner was again given a fresh appointment as Registrar of Surgery, Silchar Medical College on a general category post on 07.06.2021. The appellant/writ petitioner continued to work on the said post. Meanwhile, since a criminal case was also lodged against the appellant/writ petitioner under Sections 420/471 IPC, in which charge-sheet was filed but ultimately the appellant/writ petitioner was acquitted. He thereafter moved an application before the Secretary to the Government, Health & Family Welfare (B) Department stating that he should be given pay protection and continuation of service from 29.09.1997 to 07.06.2001 onwards. This application has been rejected and the same has been put to challenge by way of a writ petition before the learned Single Judge of this Court.

The learned Single Judge was of the view and in our view rightly so that the appellant/writ petitioner was never entitled for such a benefit for the simple reason that continuation of service cannot be given to the appellant/ writ petitioner as the initial service in fact was obtained wrongly by the petitioner. Under normal circumstances, the appellant/writ petitioner should have been debarred from Government service. All the same, a lenient approach was taken by the learned Single Judge as well as the by the Division Bench of this Court giving liberty to the State to consider the case of the appellant/writ petitioner afresh on a General Category post. It was on the strength of that observations, which have already been referred that the appellant/writ petitioner was given appointment. The appellant/writ petitioner now claims protection of salary under F.R. 22(2)1 and F.R. 54-A(2)2 of the Fundamental Rules and Subsidiary Rules. These provisions are not applicable in the case of the appellant/writ petitioner as there is no past service for the appellant/writ petitioner which can be counted in any manner for the benefit of the appellant/writ petitioner.

In view of the above, the writ appeal is dismissed.

JUDGE CHIEF JUSTICE

1 F.R. 22(2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously officiated; 2 F.R. 54-A(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such proportion of the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period, as may be specified in the notice, which in no case shall exceed sixty days from the date on which the notice has been served :

Provided that any payment under this sub-rule to a Government servant other than a Government servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of three years immediately preceding the date on which the judgment of the Court was passed, or the date of retirement on superannuation of such Government Servant, as the case may be.

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.