IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 15060 of 2008 Date of decision: 20.04.2010 _________________________________________________________________ Prakash Chand. ....Petitioner. Versus The State of Himachal Pradesh & others. .....Respondents. ________________________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes. _________________________________________________________________ For the petitioner: Mr. M.C. Verma, Advocate. For the respondents: Mr. R.K. Sharma, Senior Additional Advocate General. _________________________________________________________________ V.K. Sharma, J (Oral). Heard the learned counsel for the petitioner and the learned Senior Additional Advocate General for the respondents. In nut-shell the controversy surrounding this case is that the petitioner is a native of District Una and belongs to Gujjar caste. There is no dispute that in the year 1987 the Gujjars belonging to District Una did not fall within the category of scheduled tribe. However, even despite that a certificate dated 24th August, 1987, (Annexure A-3), was issued in favour of the petitioner to the effect that he being a member of Gujjar caste was belonging to a scheduled tribe, namely Gujjar scheduled tribe. In the meantime, on the basis of the aforesaid scheduled tribe certificate the petitioner got admission in JBT course and on completion of such course he was recruited as JBT teacher on the establishment of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. :-2-: respondents, particularly respondent No. 2. However, just after lapse of a period of about one month from issuance of Annexure A-3 dated 24th August, 1987, the said certificate was withdrawn on the premises that the petitioner who belongs to Gujjar caste did not fall within the ambit of a scheduled tribe as at the relevant time Gujjars of District Una were not notified as a scheduled tribe. The factum of the withdrawal of the scheduled tribe certificate is stated to have been communicated to the petitioner through his brother, Shri Dharam Singh. Against the above backdrop, it came to the notice of the department that the petitioner had obtained admission in JBT course on the basis of a scheduled tribe certificate which was later on withdrawn soon after issuance thereof and later on joined service in the department as a JBT teacher. Consequently, departmental proceedings were initiated against him which culminated into his indictment. As a result, removal from service was proposed as a penalty to be imposed upon him. He represented against the proposed penalty to respondent No. 3, who vide office order dated 23rd January, 2007, Annexure A-17, partially granted his prayer vide penultimate para of the office order which is to the following effect: “Therefore exercising the powers under Rule 15 of CCS(CCA) Rule 1965 after taking the review on the representation made by the above said teacher (Sh. Parkash Chand, JBT) is hereby reduced to the initial of the JBT scale w.e.f. 13.02.2003 in the pay scale of Rs. 4550-7220 on acquiring his valid S.T. Certificate”. Had the petitioner rested at this stage and not appealed further, to my mind, it would have been in his best interest. But it was not to be so and he preferred an appeal dated 11.03.2007, Annexure A-18 to respondent No. 2, who rather than giving any further relief to him instead withdrew the aforesaid limited relief granted to him by respondent No. 3, vide the impugned Office Order dated 7th May, 2007 (Annexure A-1), operative part whereof contained in the last paragraph reads as follows: :-3-: “Now, therefore, the initial selection / appointment as Schedule Tribe candidate of the said Shri Parakeet Chand was illegal and he can not be said to be eligible against Schedule Tribe category for the post of JBT teacher. The services of the said Shri Prakash Chand are therefore, removed forthwith under Rule-11 of the CCS(CCA) Rule-1965”. What emerges against the above factual matrix is that the scope of the appeal preferred by the petitioner to respondent No. 2 was limited to the extent that either the appeal could have been allowed in toto or in part or at worst it could have been rejected. It being so, I am more than satisfied that it was not open to respondent No. 2 to undo what has been done by respondent No. 3 by granting the aforesaid limited relief to the petitioner without issuance of a show cause notice, calling upon him to show cause why the same could not be withdrawn. However, admittedly that was not done and thereby the impugned office order dated 7th may, 2007 (Annexure A-1) can not be sustained and is accordingly quashed and is instead substituted by office order dated 23rd January, 2007 (Annexure A-17), whereby the aforesaid limited relief which though at the cost of repetition is extracted below, was granted by respondent No. 3 in favour of the petitioner. “Therefore exercising the powers under Rule 15 of CCS(CCA) Rule 1965 after taking the review on the representation made by the above said teacher (Sh. Parkash Chand, JBT) is hereby reduced to the initial of the JBT scale w.e.f. 13.02.2003 in the pay scale of Rs. 4550-7220 on acquiring his valid S.T. Certificate”. Admittedly, in the meantime the Gujjars belonging to District Una have been granted the status of a scheduled tribe. In the result, Office Order dated 7th May, 2007, (Annexure A-1), is quashed and Office Order dated 23rd January, 2007, (Annexure A-17), is restored. The petition stands disposed of in the above terms. (V.K. Sharma) Judge 20th April, 2010 (virender)