Mohan Kumar Bangade vs State of MP and others

Hon''ble Shri Justice Rajendra Menon

Challenging the order-dated 4.11.2009 - Annexure P/21 passed by respondent No. 4, dismissing the petitioner from service in accordance to the provisions of Rule 10 of the MP Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as ''CCA Rules''), petitioner has filed this writ petition. Records indicate that petitioner was appointed on the post of Deputy Director-cum-Deputy Registrar, in the Handloom Division, Jabalpur and at the time of appointment he was appointed in a quota fixed for a Scheduled Caste candidate, treating him to be a person belonging to the ''Halba'' community. Petitioner also produced requisite caste certificate showing that he belongs to the ''Halba'' community. Petitioner was selected in a Gazetted Category II post after due process of selection by the Public Service Commission. Appointment of the petitioner was made on 5.9.1986 vide Annexure P/1. Thereafter, the petitioner was promoted and while so working on the promoted post it seems that petitioner was suspended on the ground that he has obtained appointment by producing a false caste certificate. Petitioner was suspended on 13.12.1996 and he challenged his suspension by filing an application before the State Administrative Tribunal being O.A. No. 21/1997. The said application was decided by the Tribunal on 7.5.1997 quashing the suspension. Writ Petition filed by the State Government was allowed by a Division Bench of this Court in W.P. No. 1049/1997 on 6.8.2004, vide Annexure P/4, and the State Government was granted liberty to proceed in accordance with law. It seems that thereafter petitioner''s services were proposed to be terminated and, therefore, the matter again came to this Court in the form of another writ petition filed by the petitioner and a Bench of this Court in W.P. No. 1670/2007, vide order-dated 10.2.2009, held that the matter be referred to the High Power Screening Committee and a decision be taken on the basis of the report of the Screening Committee. Writ Appeal filed by the State Government being W.A. No. 93/2009 having been dismissed by a Division Bench of this Court vide Annexure P/17, the matter was taken up before the High Power Screening Committee, which conducted its deliberation and passed a detailed speaking order - Annexure P/20 holding that the petitioner does not belong to the ''Halba'' community, he belongs to the ''Koshti'' community, which is not a Scheduled Caste community, but which falls in the OBC Category and as the caste certificate produced by the petitioner showing him to be a candidate or a person belonging to the ''Halba'' community was found to be not correct, the impugned action is taken by the State Government dismissing the petitioner from service under Rule 10(8) of the CCA Rules.

Challenging the aforesaid action Shri D.K. Dixit, learned counsel for the petitioner, made a three fold submission:

(i) His first submission was that as the termination is nothing but a measure of punishment imposed under Rule 10 of the Discipline and Appeal Rules, the same which is undertaken without following the mandatory provisions of Rule 14, is unsustainable.

(ii) His second contention was that the finding recorded by the High Power Screening Committee to hold that the petitioner does not belong to ''Halba'' community, which is based on the statement of a Kotwar is a perverse finding and is unsustainable.

(iii) His last submission was even if the petitioner is a person belonging to the ''Halba'' community then in view of the protection granted to persons like the petitioner by virtue of the law laid down by the Supreme Court in the case of State of Maharashtra Vs. Milind and others, AIR 2001 SC 393, and the Circulars issued by the Central Government and the State Government, which contemplate that all appointments finalized prior to 28.11.2000 should not be disturbed, action to dismiss the petitioner from service is said to be unsustainable.

Shri Sanjeev Kumar Singh, learned Panel Lawyer, refutes the aforesaid and points out that as the decision to remove the petitioner from service is based on the findings recorded by the High Power Screening Committee in its report - Annexure P/20, which is based on a properly conducted inquiry, there is no infirmity in the matter and, therefore, the same does not warrant any consideration. Accordingly, he prays for dismissal of the writ petition.

Having heard learned counsel for the parties and on a perusal of the records, it is clear that in the impugned order passed by the disciplinary authority vide Annexure P/21 on 4.11.2009, it is clearly stated that the services of the petitioner are being terminated in accordance to Rule 9 of the CCA Rules. It is clearly stated in the order that the petitioner is being dismissed from service in view of the aforesaid Rules. Admittedly, the entire action for dismissing the petitioner as a measure of punishment is contemplated under Rule 10 is undertaken without following the procedure contemplated under Rule 14 of the CCA Rules and, therefore, on this count alone the entire action undertaken stands vitiated and is liable to be quashed.

As far as the other grounds with regard to the finding of the Screening Committee and the question of benefit to be granted to the petitioner in view of the law laid down by the Supreme Court in the case of Milind (supra) and the circulars issued by the State Government and the Central Government, protecting appointments made prior to 28.11.2000, are concerned, these are matters which are to be considered by the competent authority of the State Government and as this Court finds the dismissal from service to be illegal for non-compliance with the mandatory provisions of Article 14 of the Discipline and Appeal Rules, petitioner can raise all these grounds if action is proposed to be taken by the State Government under these Rules.

In view of the above, as the petitioner is punished by dismissal from service under Rule 10 and as the mandatory provisions contemplated under Rule 14 has not been followed, this petition has to be and is accordingly allowed. Impugned order-dated 4.11.2009 - Annexure P/21 is quashed and the matter is remanded back to the disciplinary authority/appointing authority to proceed afresh in accordance with law and while doing so, the question of granting protection to the petitioner on the ground that his appointment is prior to 28.11.2000 and, therefore, has to be protected, may be taken note of and action taken.

In view of the fact that the impugned order is found to be unsustainable and is quashed, respondents are directed to reinstate the petitioner in service with all consequential benefits accruing to him, however, with liberty to proceed afresh in accordance with law. With the aforesaid liberty to the respondents, this petition stands allowed and disposed of.