1. By this OA applicant has challenged order dated 23.8.2007 (page 10) whereby his appeal has been rejected, order dated 20.11.2006 whereby he has been compulsorily retired from service (page 44) and the entire disciplinary proceedings seeking consequential benefits.
2. It is submitted by the applicant that he belongs to Khatik community in State of Uttar Pradesh. He was issued a caste certificate by the Tehsildar on 22.10.1987 (page 15) to the effect that he belongs to Scheduled Tribe (ST) community. On 16.6.1990 respondents had issued advertisement for filling up two posts of ECG Technician meant for Scheduled Caste (SC) but subsequently a corrigendum was issued showing them to be reserved for ST. Since applicant fulfilled all the conditions, he applied for same against ST post and was appointed as ECG Technician vide order dated 13.10.1990. In the offer of appointment, it was mentioned that he would be on probation for a period of 2 years. He was confirmed on completing 2 years of satisfactory service. Vide order dated 2.7.1999 he was given further promotion as Senior Technician on 7.7.1999 as he has been performing his work to the entire satisfaction of his superiors but to his utter surprise, after a period of over 13 years, he was served with a charge-sheet under Regulation 14 and Para 3 of Third Schedule of Employees State Insurance Corporation (ESIC) (Staff and Conditions of Service) Regulation 1959. The charge against applicant was as follows: The said Shri Pool Singh, presently working as Sr. ECG Technician in ESI Hospital, Noida, in order to secure employment in the ESIC knowingly submitted his caste certificate showing as ST (Khatik) candidate although he actually belongs to SC category.
3. Applicant immediately gave his reply (page 34) denying the allegation and by submitting that the said certificate was issued by the Tehsildar. At the time of appointment, all his certificates were checked. He had not misrepresented the facts, therefore, it cannot be said that he had produced a false certificate. In the enquiry, the said certificate was not got verified but Inquiry Officer gave his report on 17.5.2006 holding the charge proved against applicant (page 26 at 33).
Copy of the same was served on the applicant. Applicant gave a detailed representation, yet vide order dated 20.11.2006, applicant was given the penalty of compulsory retirement by taking a lenient view with effect from 20.11.2006. It was further mentioned in the said order he would get full pension and gratuity as admissible to him but pension shall not be less than Rs. 1913/- per month.
4. Being aggrieved, applicant filed his appeal but since the same was not being disposed of, applicant filed OA No. 957/2007 which was disposed of on 29.5.2007 (page 52) with a direction to the respondents to pass final order within a period of 2 months from the date of receipt of a copy of the order. Till such time, show cause notice dated 16.4.2007 was not to be implemented as applicant was willing to pay market rent for the period of occupation. Thereafter, respondents passed order dated 23.6.2007 (page 10) rejecting his appeal.
5. It is in these circumstances that applicant has filed the present OA challenging the above orders on the ground that till date genuineness of the certificate has not been got verified by the respondents.
Certificate was issued by Tehsildar, it has neither been cancelled nor revoked till date, therefore, it cannot be said that applicant has committed any misconduct nor can he be given any punishment. In any case, he submitted that his certificate ought to have been verified at the time of his appointment and they could not have raked up this issue after a period of 13 years. To buttress his arguments, he has placed reliance on 2003 (3) SLR 228 in the case of Anil Vasnatrao Shirpukar v.State of Maharashtra and Ors.
6. He also relied on instructions issued by the Government in the Swamy's Compilation on Reservation and Concessions and referred to pages 49 and 208/209 to state that onus is on the authorities to establish that the certificate is erroneous and for that purpose they should have approached the Tehsildar. Not having done so, these orders are to be quashed and set aside. In the alternative, counsel for the applicant submitted that if the respondents feel Khatik caste belongs to SC community, then he may be adjusted against a SC vacancy, for which he would have no objection.
7. Respondents on the other hand have opposed this OA. They have submitted that applicant had applied for the job by posing as belonging to Scheduled Tribe and derived the benefit of same by joining the post of ECG Technician, based on the said ST certificate, as the post was reserved for ST quota but he actually belongs to SC. In the Appendix 20 of Brochure on Reservation of SC (7th Edition) the caste Khatik appears at Sl. No. 47 in the Schedule Caste List of Uttar Pradesh State.
Moreover, from the office records it is revealed that his real brother, who had also been appointed as EC Technician, belongs to SC community.
Ample opportunity was given to the applicant to prove his innocence but he could not place anything on record. There has been no violation of principles of natural justice. His case has been decided on the basis of evidence with has come on record. In his attestation form against Col.9 (b), he had stated that he belongs to ST category and had certified that the particulars furnished are correct to the best of his knowledge and belief. In the attestation form there is a clause if the fact that the false information has been furnished or there has been suppression of any factual information in the attestation form comes to the notice at any time during the service of a person, his services should be liable to be terminated, therefore, applicant owns responsibility for correctness and genuineness of the particulars provided by him. He has, therefore, rightly been compulsorily retired.
8. They have also submitted that on the directions of the Tribunal personal hearing was given to the applicant, but he could not give any satisfactory reply, therefore, his appeal has been rejected by speaking and reasoned order. They have thus prayed that the OA may be dismissed.
9. We have heard both the counsel and perused the pleadings as well. It is not disputed by the applicant that he had applied against the post of ECG Technician reserved for ST by claiming to be an ST candidate. In the attestation form he had clearly certified that he has furnished the correct facts and against Col.9 (b), he had stated he belongs to ST caste. It is also not disputed by the applicant that his own real brother viz. Sh. Bikaram Singh has been appointed in the same hospital as ECG Technician as SC candidate. When these facts came to notice, applicant was called upon to explain by issuing charge-sheet dated 05/14.11.2003 with the following allegations: In order to secure employment in the ESI Corporation Shri Phool Singh, Sr. ECG Technician knowingly submitted his caste certificate showing as ST (Khatik) candidate although he actually belongs to SC category.
10. Perusal of above would show that the charge against applicant was he had knowingly submitted certificate showing himself as ST while actually he belongs to SC category, therefore, onus was on him to show that he did not belong to SC category or he had not submitted his caste certificate showing himself to be ST category for securing employment when admittedly his own real brother was appointed as SC candidate in the same hospital.
11. In this background it is most important to note that even as per Appendix 20 of Brochure on Reservation for SCs / STs (7th Edition), the caste Khatik appears at serial No. 47 in the category of SC of U.P.State. Applicant could not produce any other notification to show that in 1983 Khatik caste was shown as ST or there was any other notification wherein Khatik was shown as ST. It is thus clear that Khatik caste is in fact shown as Scheduled Caste in State of U.P.Moreover, the same Tehsildar had issued certificate in favour of applicant's own elder brother in the year 1978 showing him as Khatik, as Scheduled Caste. At this juncture it would be relevant to quote definition of SC / ST as per Swamy's Compilation on Reservation and Concession. It for ready reference reads under: A person shall be held to be a member of a Scheduled Caste or Scheduled Tribe, as the case may be, if he belongs to a Caste or a Tribe which has been declared, under any of the following orders, to be a Scheduled Caste or a Schedule Tribe for the area of which he/she is a resident: (i) Constitution (Scheduled Castes) Orders, 1950; the Constitution (Scheduled Tribes) Order, 1950; ...the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976; the Constitution (Scheduled Tribes) Order (Amendment) Act, 1987; the Constitution (Scheduled Tribes) Order Amendment Act, 1991 and the Constitution (Scheduled Tribes) Order Second Amendment Act, 1991.
(xiv) The Constitution (Scheduled Casts) Orders (Amendment) Act, 1990.
From above, it is clear that a person can be said to be a Scheduled Caste / Scheduled Tribe, if he is declared so under any of the orders as mentioned above. There is no mention of Khatik in any of the orders showing it as S.T. From above facts, only one conclusion can be drawn that applicant had wrongly projected himself as ST knowing fully well that he was in fact SC. It is not as if he would have known his status from the certificate. It is a matter of fact.
If his family is SC, one is bound to know, what caste he belongs to.
It is not as if applicant is an illiterate, he is a technically qualified person as he was appointed as ECG Technician. In such circumstances, when facts were so clear, there was no need to verify the facts from Tehsildar. In fact, applicant has himself stated, if respondents feel he is SC candidate, he may be adjusted against SC post meaning thereby he is not even disputing it whole heartedly that he is not an ST candidate.
12. The request to adjust him against SC is not so simple. The question is not of adjustment but the larger question that arises for consideration is, whether such a person, can be allowed to occupy a post reserved for ST, when it is proved he is not in fact an ST candidate. It amounts to committing fraud on the Constitution and against those ST candidates who could have been appointed, had applicant not been there. It need not detain us for long as it has already been held by Hon'ble Supreme Court in the case of R. Vishwanath Pillay v. State of Kerela and Ors. , as Moreover, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved category candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 and cannot be considered to be a person who holds a post within the meaning of Article 311. Where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
The applicant therein had prayed the order of dismissal may be converted to compulsory retirement so as to protect his pensionary benefits but even that request was rejected by Hon'ble Supreme Court by holding as under: The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate.
A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving the genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of the Supreme Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour.
13. In view of above, applicant's request that he be adjusted against SC cannot be acceded to. Since constitutional mandate is to protect reservation to SC/ST candidates. Any appointment given in breach of such reservation policy cannot be sustained. Counsel for the applicant relied on some judgment to show that no such action could have been taken after such a long delay but those judgments also would not advance the case of applicant because length of period is also not relevant in view of above said case, the petitioner therein was dismissed after 27 years of service whereas applicant had put in only 13 years of service when he was served with the charge-sheet, therefore, the judgments of High Court relied upon by counsel for the applicant cannot advance his case. We are also bound by the law declared by Hon'ble Supreme Court under Article 141 of the Constitution. According to us respondents have rightly passed the order of compulsory retirement. In fact, applicant should thank his stars that respondents have taken a lenient view and have not dismissed him from service. He has only been given punishment of compulsory retirement and his pension has been protected.
14. Counsel for the applicant vehemently argued that respondents ought to have verified the correctness of certificate from the issuing authority. However, when facts cannot even be disputed and only one conclusion is possible that applicant had knowingly given his status as ST wrongly when he was actually SC, it was not required to verify the facts. The facts are too glaring. Since he could not put any plausible defence in the enquiry, we do not find any merit in these contentions.
The OA is accordingly dismissed. No order as to costs.