Tauseef Ahmad Najar vs Union Of India And Ors
2024 Latest Caselaw 1593 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Tauseef Ahmad Najar vs Union Of India And Ors on 21 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                             S. No. 29
 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                            SWP 857/2019[WP(C) 1367/2019]

TAUSEEF AHMAD NAJAR                                          ...Petitioner/Appellant(s)

Through: Mr. R. A. Jan, Sr. Advocate with
         Mr. Syed M. Yahaya, Advocate
         Mr. Wahid Lone, Advocate.
                                 Vs.
UNION OF INDIA AND ORS.                                                  ...Respondent(s)

Through: Ms. Rekha Wagnoo, GA.
CORAM:
     HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                      ORDER

21.10.2024

1. The petitioner in the instant petition filed under Article 226 of the Constitution has prayed for the following reliefs: -

(i) Writ in the nature of Mandamus or any other appropriate Writ declaring the impugned Show Cause Notice bearing No.10432/TAN/19/ΕΙ (ΝΒ) dated 24th September 2018 served on 8th of October, 2018 through AGEB/R-II proposing the penalty of Removal from Service, as well as the consequential action of carrying into execution the proposed penalty of Removal from Service, non-est in law being violative of the Constitutional Safeguards enshrined in Article 311(2) of the Constitution of India corresponding to Section 126(2) of the Constitution of Jammu and Kashmir as well as dehors may ultra-vires the procedure prescribed under and in terms of Rule 14 and 15 of the Central Civil Services Classification Control and Appeal Rules, 1965 for imposing major penalties and above all in gross contempt of the Judgment and Order of this Hon'ble Court dated 27.12.2016 passed in SWP No.2089 of 2016 titled Tauseef Ahmad Najar Vs. Union of India and Ors., law liable to be interdicted, be issued in favour of the Petitioner and against the Respondents.

(ii) Writ in the nature of Certiorari any other appropriate Writ quashing the impugned Show Cause Notice bearing No.10432/ΤΑΝ/19/ΕΙ (NB) dated 24th September 2018 served on 8th of October, 2018 through AGEB/R-II proposing the penalty of Removal from Service, be also issued in favour of the Petitioner and against the Respondents.

(iii) Writ in the nature of Mandamus or any other appropriate Writ directing/commanding the Respondents in particular Respondents 2 to 5 to treat non-est in law the impugned Show Cause Notice bearing No.10432/TAN/19/EI (NB) dated 24th September 2018 served on 8th of October, 2018 through AGEB/R-II proposing the penalty of Removal from Service, be also issued in favour of the Petitioner and against the Respondents.

(iv) Writ in the nature of Mandamus or any other appropriate Writ directing/commanding the Respondents in particular Respondents 2 to 5 to desist, refrain and forbear from acting in pursuance and/or in furtherance of impugned Show Cause Notice bearing No.10432/TAN/ 19/EI (NB) dated 24th September 2018 served on 8th of October, 2018 through AGEB/R-II proposing the penalty of Removal from Service, in any manner prejudicial to the Constitutionally Guaranteed Service Rights and Interests of the Petitioner under Article 311(2) of the Constitution of India corresponding to Section 126(2) of the Constitution of Jammu and Kashmir, be also issued in favour of the Petitioner and against the Respondents.

(v) Writ in the nature of prohibition or any other appropriate Writ Prohibiting/restraining the Respondents in particular Respondents 2 to 5 from proceeding against the Petitioner in the matter of proposed Departmental Action otherwise than in accord with the Constitutional Mandate enshrined in Article 311(2) of the Constitution of India corresponding to Section 126(2) of the Constitution of Jammu and Kashmir as well as Statutory Mandate contained in Rules 14 and 15 of the CCA Rules of 1965, be also issued in favour of the Petitioner and against the Respondents.

(vi) Writ in the nature of Mandamus or any other appropriate Writ directing/commanding the Respondents in particular Respondents 2 to 5 to admit the Petitioner to all the Service Benefits accruing due in law including the Confirmation of service with effect from the date the Petitioner successfully completed the period of Probation on Appointment as Mate (SSK) on the rolls of Military Engineering Service (MES) Northern Command, be also issued in favour of the Petitioner and against the Respondents

2. Facts under the shade and cover of which the aforesaid reliefs have been prayed and as are stated in the petition are that an Advertisement/employment notice bearing no. 41622/LRS/EIC(1) came to be published by the respondents herein in leading newspaper of the Country including the then State of Jammu and Kashmir wherein applications came to be invited from the eligible candidates for recruitment to various posts including the post of Mate SSK GE 969 EWS under Social Caste (SC) Category and the petitioner herein belonging to the Social Caste Category and also being possessed of eligibility as prescribed in the advertisement notice, applied for selection/appointment against the post in question and consequently came to be appointed, after facing the process of selection being the interview test conducted by the respondents herein in terms of order No. 10457/Rect/165/EI(NB) dated 10.03.2016 in the pay scale of Rs 5200-20200/- in PB-1 with Grade Pay of Rs.1800/- per month whereupon the petitioner joined his services on 21.03.2016 and consequently came to be posted internally in AGE-B-/RII-GE-969 on 30.03.2016 and that though the petitioner herein being a civil servant

holding a civil post in the respondent organization, became entitled to all legal and constitutional protection and guarantees as also to the regularization of his services upon completion of two years period of probation stipulated in order of appointment, yet the respondents any cause instead of regularizing the services of the petitioner threatened the termination of his services, compelling the petitioner to approach this Court through SWP No. 2089/2016 which came to be disposed of on 27.12.2016, after hearing the counsel for the petitioner as also the counsel for respondents, with a direction to the respondents that action, if any, proposed to be taken for termination of services of the petitioner, shall be taken in accordance with law and that though the respondents were bound down by this court to follow the mandate of law if they contemplated to terminate the services of the petitioner, yet the respondents in violation of said mandate of law and the rules occupying the field issued notice dated 24.09.2018 proposing therein penalty of removal of the petitioner from service on the premise that the Social Caste certificate furnished by the petitioner claiming to be a member of Social Caste was instead reveal that the petitioner is a member of OBC category and not of the category provided for making selection/appointment pursuant to the advertisement notice supra and since the said information and declaration furnished by the petitioner was found to be false, having willfully suppressed the material information, rendered the petitioner liable for removal from service.

3. The petitioner has called in question the show cause notice of proposed punishment dated 24.09.20218 in the instant petition on multiple grounds.

4. Objections to the petition have been filed by respondents wherein the petition is being opposed essentially on the same and similar grounds on which the impugned show cause notice has been issued.

Heard counsel for the parties and perused the record.

5. It is an admitted fact that the respondents issued the Advertisement notice No. 41622/LRS/EIC(1) for filling up of the post of Mate SSK GE 969 EWS.

Record pertaining to the selection and appointment case of the petitioner produced by counsel for the respondents tends to show that the petitioner had filled up the application form is response to the Advertisement notice for the post in question reflecting therein besides his particulars also to be a candidate belonging to Social Caste Category having annexed with the said application form 10th class marks card, 12th class marks card, State subject and the Social Caste Certificate issued by the Tehsildar Srinagar on 11.07.2011 which certificate provide that the petitioner belongs to weaker and under privilege class of [(Social Caste) Najar] being a member of Socially and Educationally backward class. The said record also reveals that the said category certificate also stands got verified and authenticated by the official respondents from the office of Tehsildar Srinagar having been so authenticated on 28.02.2017.

6. A closer examination of the said record produced by counsel for respondents would reveal that the said same also contains a notification issued by the Government of India, Ministry of Social Justice and Empowerment dated 11.08.2015 pertaining to the Castes under OBC category reflecting therein the First Central List of OBCs notified in 1993 as also the percentage of reservation provided thereof for appointment in jobs in various states. The said notification also reveals that besides various states/UTs in the country, for the then State of Jammu and Kashmir following reservation quota for OBCs has been provided as under: -

Providing reservation to Socially and Educationally Backward Classes in direct recruitment as under:

(i) Weak & Under Privileged Classes (social castes) 2%

(ii) Residents of Areas adjoining Line Actual Line of Control (ALC) 3%

(iii) Residents of Backward Areas (RBA) 20%

7. A bare perusal of the notification supra as also the aforesaid detailed out quota would manifestly demonstrate that 2% reservation quota has been provided for OBC category for Weaker and Under Privilege Class (Social Caste) besides 3% for the residents of the Areas Adjoining Line of Actual Control (ALC) and 20% for Residents of Backward Class (RBA) insofar as the direct recruitment is concerned

thus, clearly suggesting that the weaker and under privilege class (Social Caste) in essence is a class provided under OBC category.

8. As has been noticed in the preceding paras, since the post in question had to be filled up from a candidate belonging from Social Caste, the petitioner indisputably being a member of Social Caste (Weaker and Under Privilege Class), is covered under OBC category /Member of Socially and Educationally Backward Class. The respondents seemingly have misdirected themselves in the matter qua the Class/Category the petitioner belongs to while treating the petitioner to be a member of OBC category, which admittedly the petitioner is a member of the said category, however, belongs to Social Caste a Class under that category as is provided in the Government of India Notification dated 11.08.2015 (supra).

Under these circumstances the petitioner cannot be said to have misrepresented or secured his selection/appointment fraudulently against the post in question and the impugned show cause notice in this view of the matter, cannot, but said to be misconceived both on facts as well as law rendering the same legally unsustainable.

9. Viewed thus, what has been observed, considered and analyzed hereinabove the petition succeeds, as a consequence whereof by issuance of writ of Certiorari impugned show cause notice No.10432/TAN/19/EI (NB) dated 24.09.2018 is quashed and by issuance of writ of Mandamus the respondents are commanded to allow the petitioner to continue in service and to extend the petitioner all service benefits to which the petitioner would be entitled thereto.

10.Record produced by counsel for the respondents is returned back in the open court.

(JAVED IQBAL WANI) JUDGE SRINAGAR 21.10.2024 Ishaq

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No