IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.6739 of 2003 *** In the matter of an application under Article 226 of the Constitution of India. *** Dr. Paras Nath Sahay, Son of Sri Sheo Govind Shah, resident of Village Gangti, P.S. Dawath, District Rohtas………………………Petitioner Versus 1. The State of Bihar through the Secretary, Health, Medical Education and Family Welfare Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna 2. The Additional Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Vikash Bhawan, Patna 3. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Vikash Bhawan, Patna 4. The Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Vikash Bhawan, Patna 5. The Deputy Secretary-cum-Chief Vigilance Officer, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Vikash Bhawan, Patna………………………………………………………………...Respondents *** For the Petitioner: Mr.Abhimanyu Sharma No.1, Advocate For the State: Mr. S.K. Ghose, A.A.G. No.II *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R *** Jayanandan Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. - 2 - 2. Petitioner has filed this writ application for quashing of the order of the Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna as contained in Memo No.803 (2) dated 15.04.2003 (a copy whereof is annexed as Annexure-11), whereby, on conclusion of a departmental proceeding, he has been dismissed from service by accepting the enquiry report holding the petitioner guilty of the charges. He has also prayed this Court to hold the enquiry report submitted by the conducting officer as totally perverse and the entire proceeding vitiated in law. He has further prayed for his reinstatement in service with full back wages from the date of his dismissal with other consequential reliefs. 3. As per the pleadings, petitioner was initially appointed as Medical Officer-cum-Civil Assistant Surgeon in the Health Services of the State of Bihar as general category candidate, vide notification Annexure-1 dated 22.09.1977. He did not submit any caste certificate as he belonged to Teli caste and at that point of time there was no reservation in the services of the State Government for backward castes. Upon his joining in the State - 3 - cadre of Medical Officers, he was put at serial no.2870 in general category. In the gradation list prepared for promotion of Medical Officers of reserved category to the selection grade scale, as notified by Annexure-2 dated 25.05.1987, petitioner’s name was not included in the said category. However, in the next year, a gradation list was prepared for promotion of medical officers of the State cadre to junior selection grade against 20% promotional quota and the same was notified, vide notification dated 19.05.1988 as contained in Annexure-3. In this notification, the name of the petitioner was included for promotion by showing him as scheduled caste candidate. As soon as petitioner came to know of being considered for promotion as a scheduled caste candidate, he submitted an objection petition to the Department through Civil Surgeon-cum-Chief Medical Officer, Patna on 30.05.1988, a copy whereof is annexed as Anenxure-4 to the writ application. In this objection petition, petitioner specifically claimed that for the said promotion, he had not submitted any caste certificate. He also stated that, if at all, he should have been given promotion in time bound scheme as a backward candidate, but under - 4 - some conspiracy, he has been labelled as scheduled caste candidate and has been removed from Naubatpur. Therefore, he prayed that his name may be removed from scheduled caste category and his transfer may be cancelled. No action was taken on the objection of the petitioner for quite a some time. On the other hand, through letter dated 25.11.1991, petitioner received a proforma for furnishing his details for consideration of his case for grant of time bound promotion to selection grade scale, which petitioner supplied through letter dated 3.12.1991 in which he again clarified that he did not have any caste certificate in his favour for consideration of his case as a reserved category candidate by the respondents. 4. It appears that after filled-up proforma of the petitioner was sent in the Department, the District Magistrate, Rohtas was directed to get caste of the petitioner verified. Accordingly, on the orders of the District Magistrate, Sub-Divisional Officer, Bikramganj, vide his letter no.614 dated 04.06.1992, submitted a report certifying that petitioner belonged to Teli caste. On receipt of the said certificate, respondents decided to initiate a proceeding - 5 - against the petitioner under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules vide Resolution dated 21.2.94. The Regional Deputy Director, Health Services, Koshi Division, Saharsa was appointed as conducting Officer and the Civil Surgeon, Katihar was appointed as Presenting Officer and charges were framed against him of having obtained his appointment/promotion on the basis of a wrong caste certificate, giving him three weeks time to submit his defence. (Said Resolution of the Government dated 21.02.1994 and charge memo are annexed as Anenxure-5 to the writ application.) 5. It appears that petitioner was suspended also, against which he moved this Court and the Court passed some orders on his writ application, pursuant to which, ultimately, his suspension ended and he submitted his joining. After his joining he sent a letter to the conducting officer on 04.04.1994, vide Annexure-6, stating therein that prior to his suspension, he was not asked to submit any explanation nor the charge memo was served on him. He also stated that he had not submitted any wrong caste certificate in the Department and he should be informed as to who - 6 - had made complaint against him and on what basis Department had levelled this allegation against him. He also stated that a copy of the charge memo should be served on him and that he was desirous of appearing in the proceeding and presenting his witnesses. He received a reply to that letter from the conducting officer, vide letter dated 15.04.1994 as contained in Annexure-7. In the letter it was stated that the resolution of the Government dated 21.02.1994 had already been handed over to him, still copies of all the documents were being sent to him by registered post. He was also asked to submit a clear cut defence in the matter. On receipt of this letter of the conducting officer, petitioner sent a reply through his letter dated 10.05.1994 (Annexure-8 to the writ application). In the letter he stated that in his earlier writ application, this Court had asked the respondents to produce the alleged false caste certificate, submitted by the petitioner, in the Court, which they failed to do, due to which respondents were directed to revoke the suspension of the petitioner. He again asserted that he had not submitted any caste certificate in the Department on the basis of which it could be said - 7 - that promotion was obtained by him fraudulently. He requested that an enquiry should be made from the Education Department or the Medical College or the school in the matter. The conducting officer thereafter considered the matter and after taking into account facts and materials appearing from records, submitted his report on 4.08.1997 in which he exonerated the petitioner of the charges. 6. However, the Department was not satisfied with the said report and, vide resolution no. 423 dated 27.05.1995, another conducting officer was appointed to hold a de-novo enquiry. The second Conducting Officer, by his letter dated 14.03.1996, asked the petitioner to submit his show cause, which petitioner did on 8.8.1996. Unfortunately, the second conducting officer superannuated without completing the enquiry and without submitting his report. Therefore, one M.M. Choudhary was appointed as third conducting officer, who, after holding the enquiry, submitted his report dated 4.08.1997, vide Annexure-9. He found the petitioner guilty of having obtained his promotion on the basis of an application of the petitioner submitted in 1992 in which, allegedly, petitioner had described himself as scheduled - 8 - caste. He recorded that the petitioner had accepted in the enquiry that he was wrongly promoted but he objected to cancellation of the same which shows that petitioner had deliberately obtained illegal promotion and was now objecting to its cancellation. 7. The report of the Enquiry Officer was thereafter sent to the petitioner along with second show cause notice, vide letter of the Department dated 30.07.1998, as contained in Annexure-10 with the writ application, and was asked to show cause as to why, on the basis of proved charges, he should not be dismissed from service. Petitioner submitted his second show cause reply in 1998, in which he specifically claimed that he had never filed any caste certificate either for his appointment or for promotion and no such caste certificate was produced at any point of time in the enquiry nor a copy of the same was furnished to him. 8. It appears that on the basis of the same charge, a criminal case was also instituted against the petitioner in 1996 itself, vide Katihar Town P.S. Case No.303/96 under sections 467, 468, 419 and 420 of the I.P.C. which, - 9 - it is said, is still pending at the stage of investigation. Ultimately, the impugned order was issued when the petitioner was on the verge of retirement and his services were terminated by resolution of the Government dated 15.04.2003, as contained in Annexure-11 to the writ application. 9. Learned counsel for the petitioner submitted that the entire proceeding of enquiry stood vitiated on account of non-consideration of relevant materials and on account of holding the petitioner guilty of charges on the basis of conjectures and surmises. He submitted that specific charge against the petitioner was of having obtained appointment/promotion on the basis of false caste certificate. But no material was made available to the petitioner along with show cause notice on the basis of which this allegation was levelled against him. He submitted that the moment petitioner came to know that he had been promoted in the junior selection grade scale showing him as a scheduled caste, he promptly submitted his objection to the Department through Civil Surgeon. This objection was not taken into account by the respondents and the mistake was not corrected immediately, for which petitioner cannot - 10 - be held at fault. He submitted that, on the other hand, after many years and when further details in his reply were furnished by the petitioner, the respondents realized their mistake, and to cover up the same, they initiated a proceeding against him levelling allegation that he had obtained his appointment/promotion on the basis of forged caste certificate. The document which was relied upon by the respondents during enquiry was an application of the petitioner of the year 1992 in which, it was alleged that, he had inserted by hand claiming himself as schedule caste. Apparently, that document could not be the basis for appointment of the petitioner or his promotion in the capacity of a candidate of schedule caste as he was appointed in service of the Government in 1977 and he was promoted in 1988 wrongly showing him as scheduled caste candidate. Even if the document did mention that the petitioner was a scheduled caste, it came into existence four years after his said wrong promotion. He further submitted that in the circumstances, there was no basis at all for the respondents to hold petitioner guilty of having obtained his appointment/promotion on the basis of wrong caste certificate. - 11 - 10. In view of this specific stand of the petitioner taken by his learned counsel, this Court, by order dated 06.10.2009, directed the respondents to file counter affidavit in the case specifically taking into account the pleading made by the petitioner that in spite of his protests, he had been included in the list of scheduled caste candidate and on that basis proceeding was initiated against him and he was terminated from his service. 11. Accordingly, a counter affidavit was filed on behalf of the respondents sworn by one Gopi Kant Jha, Under Secretary, Department of Health. Along with the counter affidavit, a photo copy of the alleged application of the petitioner submitted in 1992 was annexed as Annexure-B. The said application shows that the petitioner had been suspended on account of some criminal case instituted against him on the charge of demand of dowry and murder of his daughter-in-law. It was disclosed in the said application that he had been allowed anticipatory by learned District & Sessions Judge, Patna in the light of which he had prayed in this application for revocation of his suspension. The entire application is a typed copy with - 12 - petitioner’s signature at the bottom. However, in last paragraph of the application in the first line, by hand, it is inserted “,d gfjtu ink.gwWa”. On the basis of this application of the petitioner and with this handwritten insertion made in the typed applications, respondents asserted that the petitioner was instrumental in getting his appointment/promotion granted in the capacity of a scheduled caste candidate. 12. Learned counsel for the petitioner submitted that this document was relied upon by the enquiry officer, without supplying a copy of the same to the petitioner. He submitted that, the petitioner has seen the document for the first time only when a copy of the same has been produced with the counter affidavit now. He submitted that obviously there is no other document, whatsoever, available with the respondents, till now, to show that petitioner ever misrepresented himself, at any point of time, as of scheduled caste. He submitted that, in fact, to save their face, the respondents have made insertion by hand in this application of 1992, which was a typed one, and used it as proof of the charge of having obtained his appointment (in 1977) and/or promotion (in 1988) fraudulently, - 13 - which is ridiculous. 13. In view of this assertion, learned counsel for the State on 29.10.2009 again prayed for time to find out as to on the basis of which document produced by the petitioner prior to his promotion, he was treated as scheduled caste candidate and promoted as such. Thereafter the case was taken up on 11.11.2009 on which date no further affidavit was filed by the respondents. In the circumstances, this Court directed for personal appearance of the deponent of the counter affidavit who appeared on 18.11.2009 being represented by Additional Advocate General No. II, who filed a supplementary counter affidavit in the case. Along with the said supplementary counter affidavit which was filed on that date, a list of officers allegedly of the scheduled caste category, notified through a letter of the Department dated 05.01.1981, was annexed as Annexure-D in which name of the petitioners was also included. Another notification dated 15.07.1993 was also annexed as Annexure-E which also contained the name of the petitioner. This Annexure-E did not show that the list was exclusively of scheduled caste candidates and it only appears a revised list issued by the - 14 - Department on the basis of some judgment of the Apex Court. Two letters (Annexures- F & G) were also annexed to show that, in reference to the present case, original panel, recommended by the Bihar Public Service Commission for appointment of the petitioner and others at the initial stage in 1977, was asked for from the Commission. However, learned A.A.G. II submitted that he needed some time to examine the records of the Department thoroughly in context with the finding of the enquiry officer which was the basis for terminating the services of the petitioner and to obtain a copy of the original panel recommended by the Commission. In view of his submission, the matter was adjourned further and personal appearance of the deponent of the counter affidavit was dispensed with. 14. When this case was taken up on the next date, i.e. on 04.02.2010, a second supplementary counter affidavit was filed by the respondents. Along with this counter affidavit, notification dated 22.09.1977 issued by the Health Department along with a list of the candidates who were appointed from the panel recommended by the Commission, was annexed as Annexure-H. Learned - 15 - counsel fro the respondents claimed that in this list, candidates from serial nos. 183 to 201 were of reserved category in which name of the petitioner figured at serial no.193. This was a statement made by the respondents in the affidavit. But it did not find support from the said Annexure- H. The list as enclosed with the said notification (Annexure-H) showed that names of the candidates were mentioned in seriatim and there was no categorization or any reference or endorsement against the names to show as to which candidate was of which category. This Court observed that whether petitioner was appointed initially as scheduled caste candidate or not could conclusively be ascertained only on the basis of categorized panel, prepared by the respondents after scrutiny of the applications, from which appointments were made. In the circumstances, learned counsel for the respondents prayed for and was granted further two weeks time to enable him to produce further materials including the said panel, to substantiate the claim that petitioner’s initial appointment also was made as schedule caste candidate. 15. On the next date i.e. on 23.02.2010, respondents did not produce the said original panel - 16 - and only filed another affidavit by way of third supplementary counter affidavit reiterating their stand and annexing the said documents which were annexed with the earlier counter affidavit. However, learned counsel for the State prayed for another indulgence to make a last attempt to get the original panel prepared by the Commission, traced out and placed before this Court. For this, he prayed for and was granted three weeks time. 16. The case was finally taken up on 03.03.2010 on which date no further affidavit was filed by the respondents and learned counsel for the respondents advanced his submissions on the basis of pleadings made in the affidavits and documents annexed therewith. 17. Besides the above materials annexed with the counter affidavit of the respondents, learned counsel for the respondents, at the time of final hearing, placed reliance upon a document annexed as Annexure-J with the second supplementary counter affidavit and referred to the pleadings made by the respondents in paragraph 6 thereof. Referring to the said pleadings, learned counsel for the respondents submitted that the objection petition, which petitioner had submitted through - 17 - his Civil Surgeon, was received in the office of the Civil Surgeon and was forwarded to the Department. However, petitioner himself received the objection petition from the Civil Surgeon office and never produced the same in the Department for consideration. Due to this mala fide act of the petitioner, the Department never came to know that the petitioner had filed any objection to his being shown as scheduled caste candidate and of having been granted promotion on that basis. Learned counsel for the respondents referred to the said Annexure-J and submitted that it is a photo copy of the Issue Register of the office of the Civil Surgeon, Patna of the relevant period on which endorsement of the petitioner is available against entry of his representation addressed to the Secretary, Department of health as item no.4601. 18. This document does mention about the representation of the petitioner addressed to the Secretary, Department of Health at serial no.4601 and date of register as mentioned at the top of the page is ‘4/6/88’. The initial against this entry of the representation of the petitioner at serial 4601, is claimed to be of the petitioner. - 18 - However, this Court is surprised to find that under the alleged initial of the petitioner against the said entry, date is mentioned as ‘7.6.09’. The representation of the petitioner, objecting to his description as scheduled caste candidate in the list of promotion is dated 30.06.1988, and this page of issue register also bears the date as 4.06.88. Petitioner was proceeded against and was finally dismissed from service by order dated 15.04.2003. It is beyond the comprehension of this Court as to why after six years of his termination, he will go and receive the letter from the office of the Civil Surgeon in 2009. It is also beyond the comprehension of this Court as to how a letter dated 30.6.1988 was entered in the register on 4.06.1988 and will be allowed to be received by the petitioner after almost 11 years and after three years of filing of this writ application, and for what purpose. There appears to be something fishy in the matter. 19. In spite of repeated opportunities, respondents have not produced the relevant records connected with this case or any material to show that, prior to his appointment, or even prior to his promotion by Annexure-4 dated 30.05.1988, - 19 - petitioner had ever represented himself of belonging to a scheduled caste. The only document on which respondents rely is the said representation of the petitioner dated 19.06.1992, annexed as Annexure-B, and the said endorsement of the petitioner on the relevant page of the issue register issued by the office of the Civil Surgeon, annexed as Annexure-J. The handwritten insertion in the said application as contained in Annexure-B does not inspire confidence of this Court. Besides, apparently, it cannot be a basis for appointment of the petitioner in 1977 as scheduled caste candidate or his promotion in 1988 as such. Similarly, the alleged endorsement of the petitioner on the issue register of the office of the Civil Surgeon as contained in Annexure-J also does not inspire confidence as the date mentioned below the alleged endorsement is apparently ‘7.6.09’. On the photo copy of the page of the issue register there does not appear any other endorsement against any other entry. Hence, the initial alleged to be of the petitioner against entry No. 4601 cannot be conclusively held to be that of the petitioner and is of no help to the respondents. It is true that Annexure-D shows petitioner’s name included in the - 20 - scheduled caste category officers in 1981 itself, but the same may be a mistake on the part of respondents themselves which may have been the root cause for inclusion of his name in the promotion list Annexure-3, prepared in 1988. To hold petitioner guilty, preponderance of probabilities must be strong enough to lead to the conclusion that petitioner was instrumental for all this, which could be established from the panel recommended by the Commission in 1977 for appointment of the petitioner and other medical offices in the service of the Governments. In spite of more than enough opportunity granted to them, the respondents have failed to do so. 20. In the circumstances, this Court is of the opinion that the respondents have completely failed to produce any material in this court to establish that petitioner, in fact, had wrongly represented himself as scheduled caste candidate for grant of illegal benefits to him in service. The same being the position, this Court also comes to the conclusion that no material whatsoever was available before the enquiry officer to come to a finding in respect of guilt of the petitioner. The enquiry report does not show that any other - 21 - material was produced before the conducting officer. The said representation of the petitioner of the year 1992 was the only document before the enquiry officer which made the basis to hold that the petitioner had obtained his promotion in 1988 on false caste certificate. Neither any caste certificate was produced in the enquiry by the respondents nor any caste certificate submitted by the petitioner before the respondents at any point of time has been produced on the records of this case. 21. From the enquiry