* HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR + WRIT PETITION No. 2026 OF 2007 %17-12-2009 #R.Venkateswarlu. ….Petitioner Vs. $ The Divisional Railway Manager, South Central Railway, Hyderabad Division, Secunderabad, and, two others …. Respondents !Counsel for the Appellants: J.M. Naidu Counsel for the Respondents: Smt. Puspender Kaur <Gist : >Head Note: ? Cases referred: 1.AIR 2004 SC 1496 2.1977 (2) SLR 546 3. 1995-II-LLJ-182 HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 2026 OF 2007 Dated 17th DECEMBER, 2009. BETWEEN R. Venkateswarlu ….Petitioner and The Divisional Railway Manager, South Central Railway, Hyderabad Division, Secunderabad, and, two others. … Respondents. HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 2026 OF 2007 ORDER: ( Per Honourable Sri Justice Vilas V. Afzul Purkar) The applicant in OA.No.694 of 2006 before the Central Administrative Tribunal questions the ﬁnal order dated 20.11.2006 passed in the said OA, whereby the Tribunal refused to interfere with the impugned order of termination of the petitioner from service, passed by the third respondent. The writ petitioner/applicant was appointed as Kalasi in Signal & Telecommunications Department of Souty Central Railway on 3.2.1985. At the time of his appointment, he had produced caste certiﬁcate showing that he belongs to Schedule Tribe, Sub-caste as Gond (Koya) issued by the then Tahsildar, Narsampet vide No. K1/782/82, dated 16.3.1982. Based on the aforesaid caste certiﬁcate, the petitioner was appointed in the reserved post meant for ST community. It is stated that while he was working in the said post, the District Collector, Warangal District on veriﬁcation found that the said caste certiﬁcate produced by the petitioner was bogus and the same was referred to the District Level Committee for enquiry. The competent authority i.e. the District Collector based on the enquiry report cancelled the said caste certiﬁcate and a notiﬁcation was issued by the Collector to that eﬀect on 21.12.2004. Thereafter, in terms of the Railway Boards letter No. 78.E(SCT) 15/29, dated 28.6.1996, proceedings were initiated by the third respondent for termination of the services of the petitioner by issuing a notice dated 31.7.2006. In the said notice, cancellation of caste certiﬁcate by the District Collector was speciﬁcally referred to and apart from referring the circular mentioned above the decision of the Supreme Court in R.Vishwanathan Pillai Vs. State of Kerala (AIR 2004 SC 1496) was cited. The petitioner was called upon to submit his explanation, if any, against the notice dated 31.7.2006. The petitioner ﬁled his explanation on 19.8.2006 wherein he did not dispute the cancellation of his caste certificate by the Collector, but raised a question as to the competency of the third respondent in issuing notice of termination on the ground that he is not the appointing authority. After considering the explanation of the petitioner, the impugned order of termination dated 6.9.2006 was passed by the third respondent. The said order reads that after the caste certiﬁcate produced by the petitioner was cancelled by the competent authority, the petitioner’s brother had applied for a post on compassionate ground by producing another caste certiﬁcate showing that he belongs to B.C.(Gouda) Community. The third respondent, therefore, came to the conclusion that the protection under Article 311 of the Constitution of India being not available to the case of the petitioner on account of securing the post by producing bogus caste certiﬁcate, passed the order of termination. As stated above, the termination order was questioned by the petitioner before the Central Administrative Tribunal in OA.No. 694 of 2006. By the impugned order dated 6.9.2006, the said OA was dismissed. The Tribunal also referred the decision of the Supreme Court in R.Vishwanatha Pillai’s case, stated supra, in its order. We have heard the learned Counsel on either side. The learned Counsel for the petitioner submits that the third respondent is not the appointing authority and in support of his contention, he placed reliance on the Paragraph 4 of the counter aﬃdavit, which reads as under: “It is also submitted that the contention of the petitioner that he has been terminated by the third respondent has no power to terminate him from service is not correct. The third respondent is the Administrative Oﬃcer having full powers to appoint the employee in the same grade as of the petitioner and a such the action of the third respondent terminating the petitioner vide proceedings No.VP/676/S&T/Tee/))/Vol.II, dated 06.09.2006 which is legal and strictly as per the rules circulated by the Railway Board Letter No.78.E(SCT)15/29, dated 28.06.1996 (Serial Circular No.69/1997). OA.No.604/06 and the action are legal and there is no violation of Articles 14 and 16 of the Constitution of India. The third respondent is not a Senior Scale Oﬃcer as stated by the petitioner, but a Junior Administrative Grade Oﬃcer having full powers for appointment and his action in terminating the service of the petitioner is not covered under D&AR Rules as such the Board’s circular does not apply to the petitioner” Based on the above, the learned Counsel submits that the third respondent is not the competent authority and as such neither he can issue notice of termination nor can pass an order of termination, which is impugned herein. He further placed reliance on the un-reported decision of the Division Bench of this Court in Writ Petition No. 19835 of 2006, dated 23.11.2006, in the case of the Divisional Commercial Manager, Secunderabad Division, SC Railway, Secunderabad Vs. G.Das, to support his contention that the order of termination passed by an authority which is not competent to do so, cannot be sustained. He further placed reliance on the decision of the Allahabad High Court in V.N. Chaubey Vs. Divisional Commercial Superintendent N.E. Railway {1977 (2) SLR 546} which is also on the same aspect as to the competency envisaged under Article 311 of the Constitution of India. He also placed reliance on the decision of the learned single Judge of the Delhi High Court in Ajay Kumar Vs. Indian Railway Construction Co.Ltd (1994-II-LLJ-182) to show that under Rule 30 of the Indian Railway Construction Company Limited Conduct, Discipline & Appeal Rules, 1981, dismissal order passed by the Deputy General Manager was held to be invalid on the ground that the delinquent employee was appointed by the General Manager. Per contra, the learned Counsel for the respondent, relying on the decision of the Supreme Court in R.Vishwanatha Pillai Vs. State of Kerala (supra) submits that this decision squarely applies to the facts and circumstances of the present case and that the third respondent as well as the Tribunal have rightly relied on the said decision in the show cause notice and impugned order respectively We have considered the submissions advanced by the learned Counsel on either side. The decisions cited by the learned Counsel for the petitioner relate to the cases of delinquent employees who were otherwise properly appointed and their appointments do not suﬀer from misrepresentation or, deceit as in the present case. The appointment got by misrepresentation or deceit would be non-est in law and in such a situation, the protection under Article 311 (1) of the Constitution of India would not be available to such employees. Therefore, when the very protection under Article 311 of the Constitution of India being not available to the petitioner, the aforesaid contention of the learned Counsel for the petitioner has no substance. The decision of the Supreme Court in R.Vishwanath Pillai’s case referred to above squarely covers the four corners of the issue involved in this Writ Petition. In that view of the matter, We do not ﬁnd any illegality, perversity or error whatsoever in the order of termination. The Tribunal rightly conﬁrmed the said order of termination in its order dated 6.9.2006 passed in OA.No. 694 of 2006. The Writ Petition is therefore meritless and the same is liable to the dismissed. The Writ petition is accordingly dismissed. No order as to costs. -------------------- -------------------- JUSTICE V. ESWARAIAH ---------------------------------------------- JUSTICE VILAS V. AFZULPURKAR Dated 17th December, 2009. Msnr.