IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.5998/2008 Decided on:29.11.2010 _____________________________________________ Ashish Kumar. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Ashwani K. Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. A.G. with Mr. R.P. Singh, Asstt. Advocate General. ____________________________________________________ Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that written test was conducted by the respondent- Department for selection of the candidates to the post of Veterinary Pharmacist Training Course. Petitioner qualified the written test held on 26.5.1996. He was directed to report for training to Incharge, Training Centre, Chamba on 2.12.1996. He completed the course during the session 1996-98. He was appointed as Veterinary Pharmacist on regular basis in the pay 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 scale of Rs. 4400-7000 vide office order dated 31.12.1998. Services of the petitioner were terminated on 15.7.1999 (Annexure A-1). 2. Mr. Ashwani K. Sharma has strenuously argued that his client has not been given opportunity of hearing before the issuance of Annexure A-1 dated 15.7.1999. According to him, certificate of O.B.C. issued by the competent authority was valid. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that inquiry was got conducted by the Department and since the case has already been registered against the petitioner and two other persons, namely, Sh. B.D. Sharma, Naib Tehsildar and Sh. Jai Ram, Patwari by the Department of Vigilance, the termination of the petitioner is valid. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner has been issued O.B.C. certificate by the Naib Tehsildar, Chamba on 27.3.1996. According to Mr. Ashwani K. Sharma, his client belongs to ‘Brahman Bhatt’ community. He has further argued that ‘Brahman Bhatt’ community has been recognized as O.B.C. category. He also argued that in the old revenue record, i.e. jamabandi for the 3 year 1973, caste of ancestors of his client has been mentioned as ‘Brahman Bhatt’. Petitioner on the basis of the O.B.C. certificate issued by the competent authority had appeared in the written test and had undergone two years training, which led to his appointment. It is borne out from the record that the Deputy Director (Poly Clinic) Bathri, District Chamba has submitted the interim report on 21.8.1999. Accordingly to him, the factual position could emerge only after the Vigilance Department completed investigation and gave the findings. The Vigilance Department has also registered F.I.R., as noticed above, against the petitioner and Sh. B.D. Sharma, Naib Tehsildar and Sh. Jai Ram, Patwari for offences punishable under sections 420, 468 and 471 of the Indian Penal Code read with section 13 of the Prevention of Corruption Act. The Special Secretary-cum-Director (Vigilance) on 21.5.1999 has sent the information to the FC-cum-Secretary (Animal Husbandry) about the registration of a case against three persons and also that the petitioner has obtained employment on the basis of O.B.C. certificate, which after investigation was found to be false. Thereafter the Additional Secretary (Animal Husbandry) on 30.6.1999 informed the Director that on the basis of communication received from the Special Secretary- cum-Director (Vigilance), petitioner be removed from service 4 since his selection has been made on the basis of false O.B.C. certificate. Thereafter Annexure A-1 was issued terminating his services on 15.7.1999. Office order 15.7.1999 reads thus: “In compliance to the Director, Animal Husbandry Himachal Pradesh Shimla-5 Office Order No. AGY-H (1)B(4)266/98 dated 6th July, 1999, the service of Shri Ashish Kumar Vety. Pharmacist Vety. Hospital Chobia under transfer to Vety. Dispensary Samra (Bharmour) appointment made vide Director Animal Husbandry H.P. Shimla order No. 4-88/72- Vety-II dated 31.12.1999, hereby terminated with immediate effect and he is hereby relieved from his duties on 15.7.1999 (A.N.).” 6. What emerges from the material placed on record by the parties is that only interim report was furnished by the Deputy Director (Poly Clinic), Bathri, District Chamba dated 21.8.1999. He had not conclusively held that the petitioner has obtained the false certificate. He has discussed the entries made with regard to caste of petitioner’s ancestors as per jamabandi recorded in Takri for the years 1973 and 1988. According to his interim report, in the jamabandi for the year 1973, caste of petitioner’s ancestors has been recorded as Brahman Bhatt, which admittedly is O.B.C. but in Takri Jamabandi, caste of petitioner’s ancestors has been recorded as ‘Brahman’ only. Word “Bhatt’” is missing. Thus, there are two entries made in local dialect Takri showing the caste of 5 petitioner’s ancestors as ‘Brahman Bhatt” and second as “Brahman” only. 7. The Division Bench of this Court in CWP No. 905 of 2000, titled Bhat Brahman Kalyan Samiti versus State of Himachal Pradesh and others decided on 29.6.2001 has held that the persons belonging to Brahman Bhatt are to be treated as O.B.C. The Division Bench has held as under: “Once the State Government had approved and accepted the second report dated 5.9.1994 of the H.P. State Commissioner for Backward Classes, and issued notification dated 24.10.1994 (Annexure P-4/3) in the name of the Governor of H.P. in which ‘Bhat’ or ‘Bhata’, (whether with or without the appendage of Brahman), Darpi, has been included in the category of OBC, the impugned letter dated 6.2.1999 of the Additional Secretary (Welfare) was apparently contrary to the decision of the Cabinet the highest policy decision making authority who had approved and accepted the report of the Commission and the Addl. Secretary (Welfare) was not competent nor he had the authority to interpret or to suggest clarification about the category of caste ‘Bhat’ or ‘Bhata’ by inserting some words by executive fiat in his impugned letter addressed to Deputy Commissioner, Sirmaur. The petitioners have filed copies of revenue record for the years 1949-50 (Annexure P-11/T), 1953-54 (Annexure P-15/T), and 1998-99 in the said revenue records caste of the persons concerned has been incorporated as ‘Brahman”, ‘Bhardwaj’ or ‘Keshav’. It appears that on the basis of the revenue records maintained by the Revenue Department in District Sirmaur, a clarification was sought by the respondent-Deputy Commissioner from the State Government about the 6 category of ‘Bhat’, ‘Brahman’, ‘Bhardwaj’ and ‘Keshav’. The Additional Secretary to the Government of H.P. vide impugned letter dated 6.2.1999 (Annexure P-7) appears to have added Gotras-Bhardwaj, Sehal and Kesav to caste ‘Bhat’ or ‘Bhatta’ (whether with or without the appendage of ‘Brahman’). In notification dated 24.10.1994, (Annexure P-4/d) the State Government has clarified in Part (A) at Sr. No. 10 that caste ‘Bhat’ or ‘Bhata’, (whether with or without the appendage of ‘Brahman’) is included in the OBC category and the clarification was given in supersession of notification dated 20.9.1994 (Annexure P-4/Z) where in Part (A) at Sr. No. 10 caste of ‘Bhat’ or ‘Bhata’, ‘Darpi’ was included in the OBCs category. Similar was the position reflected in notification dated 30th June/2nd July, 1982 (Annexure P-4/1 which was later on reasserted in the notification dated 20.9.1994 (Annexure P-4/2). Both these notifications appear to have been issued in the name of the Governor in exercise of purported power enshrined under Article 166 of the Constitution. Thus, the action taken by the Additional Secretary (Welfare) to the Government of H.P., is contrary to the earlier notifications of the State Government and it is arbitrary, invalid unreasonable and unsustainable. On consideration of the entire material on record, the logical conclusion which can be drawn is that the subsequent appendage to the main caste cannot alter the main characteristics of caste ‘Bhat’ and even if further appendage in the form of ‘Gotra’ is added in the impugned letter dated 6.2.1999 by the Additional Secretary (Welfare), the situation will remain the same so far original caste of the person is concerned. In the facts and circumstances enumerated above, we are of the opinion that the main grievance raised by all the petitioners in these petitioners has a substance as the Addl. Secretary (Welfare) has acted without authority in violation of earlier notifications dated 7 20.9.1994 (Annexure P-4/2) and 24.10.1994 (Annexure P- 4/3), respectively, issued by the State Government. For the foregoing reasons, all the writ petitions deserve to be allowed and they are accordingly allowed to the extent that the letter dated 6th February, 1999 (Annexure P-7) addressed by the Additional Secretary (Welfare) to the Govt. of H.P. to the respondent-Deputy Commissioner, Nahan is hereby quashed and set aside. No costs.” 8. Respondent-Department has not conducted any regular inquiry against the petitioner to confirm the validity of the O.B.C. certificate issued in his favour in the year 1996. The Court is of the considered view that regular inquiry ought to have been conducted by the respondent-Department before issue Annexure A-1 dated 15.7.1999. He was regular employee and his services could not be terminated only by issuing him one month’s salary, as averred in the reply. 9. Their Lordships of the Hon’ble Supreme Court in Rampal versus State of Haryana and others, (2009) 9 SCC 187 have held that in such like cases principles of natural justice should be followed. In this case also, there was allegation that the petitioner has obtained the certificate of Scheduled Caste wrongly. Their Lordships have held as under: “5. We have heard the learned counsel for the parties and examined the impugned order and other materials on record. In our view, the appeal is liable to be allowed and the impugned order should also be set aside on a 8 very short point. It is an admitted position that before cancellation of the caste certificate of the appellant, the authorities ought to have given an opportunity of hearing to the appellant and also to contend that the Certificate issued to him was a "Scheduled Caste Certificate" and, therefore, it cannot be quashed. 6. In view of the fact that the principles of natural justice was admittedly violated in this case, the impugned order must be set aside and the concerned Tehsildar must be directed to decide the dispute regarding the caste certificate of the appellant after giving hearing to the parties and after passing a reasoned order, preferably within three months from the date of supply of a copy of this order to him.” 10. In the instant case, the certificate issued in favour the petitioner, till date, has not been cancelled. There is a procedure the manner in which the certificate is to be cancelled. 11. Their Lordships of the Hon’ble Supreme Court in Kumari Madhuri Patil and another versus Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241 have laid down the following procedure for the issuance of social status certificates, their scrutiny and their approval: “13. The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine 9 candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the 10 Director of the concerned department, (II) the Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial and dead bodies etc. by the concerned castes or tribes or tribal communities etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine'' or "doubtful'' or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of 11 the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation / reply shall convene the Committee and the Joint / Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate / parent / guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him / it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents / guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 12 9. The inquiry should be completed as expeditiously as possible preferably by day-today proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent / guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent / guardian / candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition / Miscellaneous petition / matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent / guardian / the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and 13 sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission / appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. 12. Mr. P.M. Negi has strenuously argued that the Vigilance Department has also looked into the matter and according to investigation, petitioner has obtained false certificate. The Vigilance Department after collecting the evidence during the course of investigation was required to put up challan against the petitioner. The Court has been informed by Mr. Negi that the challan has been put up against the petitioner, Sh. B.D. Sharma and Sh. Jai Ram in the court of Judicial Magistrate, Chamba. Case, till date, has not been decided though we are in 2010. 13. Their Lordships of the Hon’ble Supreme Court in Vakil Prasad Singh versus State of Bihar, (2009) 3 SCC 14 355 have held that the right to speedy trial in all the criminal prosecutions is an inalienable right under Article 21 of the Constitution of India. Their Lordships have further held that this right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. Their Lordships have further held that where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time- frame for conclusion of trial. 14. Mr. Ashwani K. Sharma has informed the Court at Bar that the case was listed for evidence of prosecution in the last week of November, 2010. 15. Accordingly, in view of the observations made hereinabove, and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Annexure A-1 dated 15.7.1999 is quashed and set aside. It shall be open to the respondents to hold regular inquiry against the petitioner in accordance with law and the observations 15 made hereinabove. The Judicial Magistrate, Chamba is directed to conclude the trial commenced on the basis of FIR No. 1/1999 dated 6.5.1999 registered against B.D. Sharma, Jai Ram and the petitioner within a period of three months from today. The copy of this judgment be sent to the Judicial Magistrate, Chamba for compliance by the Registry immediately. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 29.11.2010 *awasthi*