'Candidate Cannot Be Dismissed From Service If Certificates In Dispute Are Not Cancelled', Patna High Court Sets Aside Order Of Dismissal
A Division Bench of the Patna High Court comprising Justices P. B. Bajanthri and S. B. Pd. Singh set aside an order of dismissal observing that as long as the certificates in dispute were not cancelled, the Authorities could not initiate Disciplinary Proceedings or impose penalty in the form of a dismissal order.BackgroundThe Appellant was appointed as an Assistant Engineer on 23.06.1987 in...
A Division Bench of the Patna High Court comprising Justices P. B. Bajanthri and S. B. Pd. Singh set aside an order of dismissal observing that as long as the certificates in dispute were not cancelled, the Authorities could not initiate Disciplinary Proceedings or impose penalty in the form of a dismissal order.
Background
The Appellant was appointed as an Assistant Engineer on 23.06.1987 in Bihar under Bihar Public Service Commission. His father belonged to Uttar Pradesh but he was posted in the State of Bihar. The Appellant had claimed that he belonged to 'Chamar' caste and his candidature thus came under Scheduled Caste category. He had procured a residential certificate on 3rd September 2014 and a Scheduled Caste Certificate on 04th September 2014 in Bihar so that he could avail service benefits including monetary benefits.
Later in 2017, the Authorities noticed that the Appellant was not a permanent resident of Bihar and thus the certificates obtained by him were not in accordance with law. A Departmental Inquiry was initiated against the Appellant and it was found that the certificates were false.
However, as per the law named law called The Bihar Reservation of Vacancies in Posts & Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1991, enacted by the State Government of Bihar, there was no provision by which the Caste Certificate obtained by the Government Servant could be cancelled. Thus, the Domicile certificate as well as the Scheduled Caste Certificate of the Appellant could not be cancelled.
The Respondents thus initiated Disciplinary Proceedings against the Appellant dismissing him from service. The Appellant approached the Single Bench of the High Court wherein by virtue of an order dated 08.10.2021, his Petition was dismissed.
Aggrieved by the same, the Appellant filed an appeal.
Findings of the Court:
The Court observed that the certificates were not cancelled before dismissing the Appellant from service as per the decision passed in Kumari Madhuri Patil and Another vs. Addl. Commissioner, Tribal Development and Others reported in (1994) 6 SCC 241. Apart from this, even the caste certificate verification was pending before the authorities, the reported was awaited and no further action was taken, the Court added.
The Court expressed dissatisfaction with the decision of the Single Judge stating that if the Caste Certificate dated 03.09.2014 hadn't been cancelled, imposing penalty of dismissal from service would be premature.
Quoting Rules under Section 15 of The Bihar Reservation of Vacancies in Posts & Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1991, the Court held that after the rules were frames, it became mandatory for the State Government to identify the competent authority for cancellation of the certificate in dispute.
It was observed that as per several Supreme Court decisions, if a certificate needed cancellation, the State Government was supposed to form a committee for verification and cancellation of Caste Certificate and the Committee would be headed by a District Magistrate.
The Court further held that before initiating Departmental Proceedings against the Appellant, the authorities should have established, that in obtaining the certificates, the Appellant had misrepresented himself which amounted to misconduct resulting in furnishing as a ground to be dismissed from service as per Bihar C.C.A. Rules, 2005.
Furthermore, the Court perused the order of the Co-ordinate Bench dated 06.02.2023 and concluded that initiating disciplinary proceedings and imposing the penalty of dismissal from service while the Certificates were still not cancelled was clearly immature.
With these observations, the order of dismissal as well as the order of the Single Judge was set aside.
The Court relied on several decisions concerning cancellation of caste certificates followed by dismissal from service. A few of the judgements include Kumari Madhuri Patil and Another vs. Addl. Commissioner, Tribal Development and Others (1994) 6 SCC 241, Superintendent of Post Offices and Ors. vs R. Valasina Babu 2006 SCC Online SC 1412 and Bhubaneswar Development Authority vs. Madhumita Das and Others 2023 SCC Online SC 977.
Referring to the decisions, the Court culled out a few key points:
- Intent is immaterial.
- Protecting is harmful to good governance.
- Scrutiny Committee's order is final.
- Communicate to educational institution or appointing authority.
- Verification of Certificate.
Relying on these points, the Court held that in the absence of cancellation of the certificates, neither departmental proceedings could be initiated, nor could the authorities impose a penalty. Making these observations, the Court concluded that the order of dismissal was premature.
Consequently, the Court directed the Respondents to take action to cancel both the certificates within six months of receiving the order. It observed that in case the Authorities were unable to cancel the certificates, any actions against the Appellant would be terminated.
Additionally, the respondents were instructed to settle all due monetary and service benefits for the Appellant including pay fixation, within three months after the six-month period.
Case Title: Rajive Nandan Mourya vs. State of Bihar & ors
LL Citation: 2024 LiveLaw (Pat) 113
Counsel for the Appellant: Mr. Indu Bhushan, Advocate
Counsel for the Respondent: Mr. Anjani Kumar (Aag4)