1 S.B.CIVIL WRIT PETITION NO.8120/2007 Kishanlal v. State of Rajasthan & Ors. Date of Order :: 5th May, 2009 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Rajendra Kothari, for the petitioner. Mr. Sudhir Tak, for the respondents. .... Being appointed as Constable, the petitioner entered in services of the respondents on 11.5.1973. The appointment aforesaid was given against the vacancies reserved for Scheduled Caste by relying upon a caste certificate dated 4.10.1969 submitted by the petitioner. While considering candidature of the petitioner for the purpose of promotion to the post of Head Constable, the respondents demanded the original caste certificate, however, that was not submitted with the pretext of lossing the same. A charge sheet then was served upon the petitioner, under a memorandum dated 18.11.2006, with an allegation that he obtained appointment as Constable on 11.5.1973 by submitting a false caste certificate. The petitioner, at first instance, denied the allegation, however on 16.12.2006 he accepted his guilt, accordingly, a notice for proposed penalty i.e. of dismissal was served upon him and the disciplinary authority 2 ultimately by an order dated 29.12.2006 inflicted a penalty of withholding of pension w.e.f. 31.12.2006. Pertinent to note here that on 29.12.2006 the petitioner was in employment and was going to retire from service on attaining the age of superannuation w.e.f. 31.12.2006. By way of filing an appeal as per provisions of Rule 23 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”) a challenge was given to the order dated 29.12.2006 but the same stood rejected by the appellate authority vide order dated 8.6.2007. By this petition for writ a challenge is given to the order passed by the disciplinary authority as well as by the appellate authority with a contention that the orders impugned are without jurisdiction as no penalty of withholding pension could have been imposed before retirement of the petitioner from service. It is asserted that on 29.12.2006, the day on which the disciplinary authority passed the order imposing penalty, the delinquent employee was in service and as such no penalty except the penalties prescribed under Rule 14 of the Rules of 1958 could have been imposed. In reply to the writ petition, it it stated by the respondents that the petitioner admitted his guilt and, therefore, the disciplinary authority after 3 considering all relevant facts decided to withheld pension from the date the petitioner was going to retire from service. It is also asserted that the petitioner is Dishantari (Dakot) by caste and the caste aforesaid was never enlisted as Scheduled Caste. On 21.4.2009, this Court after hearing counsel for the parties reached at the conclusion that the penalty inflicted requires substitution by some other appropriate punishment, thus, an order was passed in following terms:- “Pertinent to note that the order impugned was passed by the disciplinary authority on 29.12.2006 and the petitioner stood retired from service on 31.12.2006. Apparently the penalty of withholding of pension was not available to the disciplinary authority before retirement of the petitioner and as such the penalty inflicted is without jurisdiction. However, the petitioner in quite unambiguous terms by the letter dated 16.12.2006 (Annexure R/3) accepted his guilt. It is also a position admitted that at the time of initial appointment, the petitioner was over-age and he submitted an attested copy of a certificate, certifying him as a member of Scheduled Caste. The competent authority in the year 1975 instructed the petitioner to produce the original certificate regarding his caste, but that was never submitted for one or other reason. On asking by the Court, learned counsel for the petitioner utterly failed to satisfy the 4 Court that the caste of the petitioner i.e. Dishantari (Dakot) was ever enlisted in the list of Scheduled Caste in the State of Rajasthan. What it appears is that the petitioner just to get employment represented himself as a member of Scheduled Caste and obtained employment. In view of the factual background aforesaid, as a matter of fact, the appointment of the petitioner from inception was void. I am of the considered opinion that the petitioner was rightly found guilty of misconduct, however, the penalty imposed was not correct. I could have remanded this matter to the disciplinary authority for reconsideration of the penalty imposed, however, in view of the fact that the petitioner himself has accepted the guilty, it shall be appropriate to substitute the penalty of withholding of pension by some other adequate major penalty i.e. of removal or dismissal from service. Before doing so, an opportunity is given to the petitioner to satisfy the Court as to why the penalty of removal / dismissal be not imposed upon him instead of penalty of withholding of pension.” Today, it is stated by Shri Rajendra Kothari, counsel for the petitioner that the petitioner bonafidely submitted a caste certificate though he was not a member of Scheduled Caste and such bonafide error deserves condonation and as such there is no need to subject the petitioner by any penalty. 5 I do not find any merit in the reason given for condonation of wrong committed by the petitioner. The petitioner obtained appointment as Constable on basis of a false certificate and as such his appointment was void ab-initio. The respondents in the year 1992 while considering petitioner's candidature for the purpose of promotion as Head Constable demanded original caste certificate from him but he refused to supply the same for one or other pretext. The petitioner ultimately accepted his guilt in writing. The narration of facts makes it apparent that the petitioner obtained appointment by playing fraud and that cannot be condoned. The appointment of the petitioner itself was void being arising out of fraud. It is the position admitted that the caste of the petitioner was never in the list of Scheduled Castes and despite that he represented himself as a member of Scheduled Caste. As a matter of fact the respondents should have cancelled appointment given to the petitioner in the year 1992 itself when the petitioner refused to produce caste certificate. The facts establish it well that the petitioner obtained appointment fraudulently and also against a vacancy meant for a category to which he was not belonging. In totality of facts, no penalty less than dismissal from service is proportionate to the guilt established, but looking to the fact that the petitioner is now in his 6 old age and served the State for a term of 33 years, the equity requires that the petitioner should not be left for starvation at this stage. Accordingly, this petition for writ is disposed of. The penalty of stoppage of withholding of pension inflicted by the disciplinary authority under the order dated 31.12.2006 is substituted by penalty of withholding of pension of the petitioner beyond the minimum pension prescribed under the Rajasthan Civil Services (Pension) Rules, 1996. The minimum pension as ordered above is required to be paid to the petitioner from the date of decision of this writ petition only. ( GOVIND MATHUR ),J. kkm/ps.