Shameema Akhter vs Skims Medical College & Ors

Ali Mohammad Magrey, J

SWP No. 2892/2018:

By medium of the instant Petition, the Petitioner has sought the indulgence of this Court in granting her the following relief(s):

I) By issuance of a Writ of Certiorari or any other appropriate Writ, Order or Direction, the impugned order bearing no. 622 SKIMS-MC of 2018 dated 11.12.2018, issued by respondent no.2, be quashed.

And;

II) By issuance of a Writ of Mandamus or any other Writ, Order or Direction, the respondents be directed:

a. To allow the petitioner to continue as Nursing Aid without any hindrance or obstruction of any kind, if any manner whatsoever; and

b. To pay withheld salary to the petitioner from the Month of February, 2017 and continue to pay the same to her in future, without any break.

III) The Hon'ble Court may also pass any other order or direction as it may deem fit and proper under the facts and circumstances of the case."

Shorn of details, the case of the Petitioner is that she, on culmination of the process of selection initiated by the Respondents vide Advertisement Notice dated 29th of December, 2014, among others, came to be appointed as a Nursing Aid by Respondent No.2 in terms of Order No. 5-SKIMS-MC of 2017 dated 14th of January, 2017. It is stated that in pursuance of the aforesaid order of appointment, the Petitioner joined his duties in the Respondent Department. While discharging her duties, a show cause notice dated 10th of October, 2017 is stated to have been served upon the Petitioner by the Respondent No.2, thereby informing the Petitioner that in view of the clarifications received from the J&K State Board of School Education, Srinagar, her academic certificates are proved fictitious/ fake rendering her appointment as Nursing Aid liable for cancellation. The Petitioner, accordingly, was directed to defend her case as to why her temporary appointment shall not be cancelled within seven days. On 17th of October, 2017, the Petitioner claims to have replied the aforesaid show cause notice and, at the same time, while apprehending that her appointment may be cancelled by the Respondents, the Petitioner filed SWP No. 2611/2017 before this Court for quashing the show cause notice and directing the Respondents to confirm the services of the Petitioner as well as for release of her salary from February, 2017. The said Writ Petition, on 21st of December, 2017, was disposed of by the Court directing the Respondents to provide an opportunity of being heard to the Petitioner, including reasonable opportunity to lead evidence in support of her defence. Besides, the Court also directed for maintenance of status quo in regard to the service of the Petitioner. Thereafter, it is pleaded that the Respondent No.2, on 11th of August, 2018, issued final show cause notice to the Petitioner directing her to bring evidence to defend her case. The Petitioner claims to have replied the final show cause notice as well on 20th of August, 2018. Subsequently, on 5th of September, 2018, vide Order No. 388-SKIMS-MC of 2018, a Departmental Enquiry was constituted by the Respondent No.2 with regard to the subject and, on the basis of the report of the said Committee, the Respondent No.2 proceeded to issue the Order No. 622 SKIMS-MC of 2018 dated 11th of December, 2018, whereby the appointment of the Petitioner stands cancelled ab-initio. It is this Order that has been assailed by the Petitioner herein this Petition.

Ms Asma Rashid, the learned Counsel for the Petitioner, submitted that the impugned order has been issued by the Respondent No.2 without taking into consideration the relevant documents submitted by the Petitioner, including the communications dated 29th of June, 2009 and 30th of October, 2018 of the Department of School Education and Literacy, Ministry of Human Resources Development, New Delhi qua recognition of the Board concerned viz. Board of Higher Secondary Education, Delhi. It is further submitted that the impugned Order has caused great prejudice to the rights and interests of the Petitioner, including the 'Right to Livelihood' enshrined to the Petitioner under the Constitution of India.

Objections stand filed on behalf of the Respondents, wherein it is stated that the J&K State Board of School Education have, in terms of communication dated 8th of August, 2017, categorically conveyed that the Board of Higher Education, Delhi, from where the Petitioner has obtained 10+2 certificate and on the basis of which she had competed in the selection process and, ultimately, got selected/ appointed as Nursing Aid, neither exists in the list of Member Boards of COBSE (Council of Board of School Education) nor in the list of recognized boards of the country, as such, the Writ Petition deserves to be dismissed. It is submitted that the impugned order does not suffer from any legal infirmity inasmuch as the Petitioner failed to lead any documentary evidence in support of her defence, besides the Departmental Enquiry Committee could not find any legitimate documents that supports the genuineness of the certificates submitted by the Petitioner despite providing her sufficient and ample opportunity.

Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.

When this Petition came up for consideration before the Court on the very motion hearing, i.e., 21st of December, 2018, the Court, while issuing notice to the other side, stayed the operation of the impugned Order dated 11th of December, 2018.

The moot question raised in this Petition relates to the genuineness or otherwise of the qualification certificate submitted by the Petitioner before the Respondents at the time of applying for the post of Nursing Aid pursuant to advertisement notice dated 29th of December, 2014 issued by the Respondents. The question aforesaid, in view of the pleadings of the parties, has turned into a disputed question, which, as per settled position of law, in a Writ Petition, cannot be gone into and decided by this Court. At the same time, it, needs, must be said here that in the earlier Writ Petition filed by the Petitioner, being SWP No. 2611/2017, the Respondents were directed to provide reasonable opportunity to the Petitioner to lead evidence in support of her defense pursuant to show cause notice dated 10th of October, 2017. Thereafter, a Departmental Enquiry Committee appears to have been constituted by the Respondents to enquire into the matter of genuineness or otherwise of the certificates of the Petitioner vide Order dated 5th of September, 2018, comprising of: (i) Medical Superintendent, SKIMS MCH; (ii) Prof. Syed Khursheed, HOD Microbiology, SKIMS MC; and (iii) Mr Mohammad Yousuf Dar, Accounts Officer, SKIMS MCH. The Committee, in terms of its minutes of meeting held on 13th of November, 2018, observed as under:

"The committee members in its first meeting held on 11th Sept. 2018 discussed the case thoroughly and perused the documents. The members could not find any documentary evidence available with the plaintiff Ms. Shameema Akhter. The committee wished to dispose of the case in its first meeting, however, the plaintiff Ms. Shameema Akhter requested the committee to give her more time to produce the documents that lead to an evidence in support of her defense regarding genuinity of the certificates submitted by her. The members considered her request and gave her 40 days more for the submission of documents in support of her plea.

On 23rd Oct. 2018, the 2nd meeting was held. Ms. Shameema Akhter was summoned for the documents in support of her defense. Again this time she failed to produce any documents in support of her plea. In the 2nd meeting again, Ms. Shameema Akhter sought more time and the committee again considered her request and gave her more time to support her plea.

The 3rd meeting was held on 13th Nov. 2018 and Ms. Shameema Akhter was brought before the committee. This time also she could not submit any documentary evidence in her defense.

The committee constituted for hearing the complainant and giving opportunity to support her plea gave Ms. Shameema Akhter almost two months' time for submitting the documents in support of her statements/ plea. The committee fully satisfied the requirement direction, however, could not find any legitimate document that supports the genuinity of the certificates submitted by the complainant Ms. Shameema Akhter. The members unanimously decided that her case file be returned in original along with the minutes to the Principal, SKIMS Medical College for favour of further necessary action.

On the basis of the aforesaid report/ findings so submitted by the Departmental Enquiry Committee, the Respondent No.2 has issued the Order impugned thereby cancelling the appointment of the Petitioner ab-initio.

Perusal of the minutes of meeting/ report of the Departmental Enquiry Committee brings it to the fore that the Committee has observed that it provided almost two months' time to the Petitioner for submitting the documents in support of her statements/ plea, but despite that, the Petitioner did not submit any documentary evidence in her defense leading the Committee to reach to the conclusion that they could not find any legitimate document that supports the genuineness of the certificates submitted by her.

The Committee has not categorically rendered its opinion that the certificates submitted by the Petitioner are fake, but has, instead, recorded that the Petitioner did not submit any legitimate document to lend support to the genuineness of her certificates. The Petitioner, on the other hand, during the pendency of the instant Petition, has, in addition to the documents alongside the Petition, placed on record certain documents through CM Nos.3471/2019 and 5893/2019 to authenticate her claim vis-à-vis genuineness of the certificates submitted by her and contended that she had submitted the same before the Respondents prior to the issuance of the Order impugned in tune with the directions passed by the Court in the earlier Writ Petition, but they were not considered by the Departmental Enquiry Committee in its report/ minutes of meeting. The pleadings on record make it clear beyond any shadow of doubt that neither the minutes of meeting nor the contents of the Order impugned make any mention with regard to the aforesaid documents placed on record by the Petitioner before this Court either with the Writ Petition or with the subsequent CMs, which documents, as per their plain reading, have a direct and vital bearing on the issue involved. The Respondents were required to take into consideration all the documents submitted by the Petitioner in support of her claim regarding genuineness of her certificates before inflicting the heavy punishment of cancellation of her appointment as Nursing Aid in the Respondent Department, which they have not done.

The consideration Order dated 17th of February, 2020 issued by the Respondent No.2 in compliance of the interim Order dated 28th of December, 2019 qua release of salary also reveals that the material placed on record by the Petitioner has not been considered in tune with the directions passed by the Court in the earlier Writ Petition filed by the Petitioner. The Court thus, is of the opinion that the Respondents have, while dealing with the instant case, not only failed to comply with the directions passed by the Court earlier in point of time, but have also not considered the supportive material submitted by the Petitioner.

Given the above position and without making any further observations/ returning findings qua the rival contentions made by the parties, which may otherwise prejudice the case of the parties, the Court is of the considered opinion that the right and proper course in this case would be to dispose of this Petition by directing the Respondent No.2 to re-consider the entire matter in tune with the earlier directions passed by the Court in SWP No. 2611/2017, after having due regard to all the documents placed on record by the Petitioner, either alongside the Petition or with the subsequent CMs. Accordingly, the instant Petition shall stand disposed of in the following manner:

i. The impugned Order bearing No. 622 SKIMS-MC of 2018 dated 11th of December, 2018 issued by the Respondent No.2 shall stand quashed;

ii. The Respondent No.2-Principal SKIMS Medical College, Bemina, Srinagar, is directed to constitute a fresh Departmental Enquiry Committee to enquire into the issue of genuineness or otherwise of the certificates of the Petitioner;

iii. The Departmental Enquiry Committee so constituted shall complete the enquiry, as aforesaid, after taking into consideration all the documents relied upon by the Petitioner in accordance with rules expeditiously, in any case not later than three months from the date of its constitution;

iv. In the aforesaid enquiry proceedings, the afforded reasonable opportunity to furnish before the concerned authorities on which placed by the Petitioner before this Court; Petitioner shall be all the documents reliance has been

v. Upon receipt of the recommendations/ report of the Departmental Enquiry Committee, the Respondent No.2 shall pass final order in the matter accordingly in accordance with rules and convey the same to the Petitioner; and

vi. Till such time, the final decision is taken by the Respondent No.2, as directed hereinabove, status quo with regard to the service of the Petitioner in the Respondent Department shall be maintained.

Writ Petition disposed of as above. Pending applications, if any, shall also stand disposed of accordingly.

CCP(S) No. 50/2020:

This Contempt Petition is filed alleging violation of ad-interim Order dated 28th of December, 2019 passed in SWP No. 2892/2018, whereby the Respondents were directed to consider the release of salary of the Petitioner for the period she has worked strictly in accordance with rules governing the field.

With the disposal of the main Petition hereinabove, the Order dated 28th of December, 2019 has merged with the directions passed in the main Petition, thereby rendering the Contempt Petition infructuous. Accordingly, this Contempt Petition shall stand disposed of.

Registry to place a copy of this Judgment on each file.