UNION OF INDIA AND ANR.

A v.

KUNISETIY SA TY ANARA Y ANA

NOVEMBER 22, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Service Law:

Appointment of incumbent as clerk on merit-Caste of incumbent wrongly shown as scheduled tribe in school leaving certificate-Appeared C in a departmental test and selected against a post reserved for Scheduled Tribe community-Promoted further against a post reserved for Scheduled Tribe community-Issuance of Show cause Notice as to whether he obtained employment on forged caste certificate-Incumbent admitting that 'he does not belong to Scheduled Tribe community-Collector ordering cancellation D of the caste certificate and disciplinary action against him-Appeal to State Government-Dismissed by State Government-Issuance of charge Mem~ Incumbent filing petition before Central Administrative Tribunal-Tribunal directing him to file reply to charge Mem~Instead of complying with the directions of CAT, he preferred to file writ petition-Allowed by High Courton appeal, Held: Ordinarily no appeal lies against a charge-sheet-A writ E lies only when some right of party infi-inged-Writ jurisdiction should not ordinarily be exercised by Courts for quashing charge-sheet/show cause notice-Hence, the impugned judgment of the High Court not correct and set aside-Order of the Tribunal restored-Incumbent directed to submit reply to the charge mem~Authority may take decision in accordance with law- F Constitution of India-Writ Jurisdiction-Exercise of

Respondent was initially appointed as a Clerk in the Postal Department of the Union oflndia on the basis of the marks obtained by him in the SSC Examination. The School leaving certificate indicated that he belongs to the 'Konda Kapu' community, a Scheduled Tribe community in the State of Andhra G Pradesh. Thereafter the respondent appeared in a Departmental test for promotion to the post of Upper Division Clerk against a post reserved for the Scheduled Tribe community, and he was selected. He was further promotion to the next higher post which was also reserved for Scheduled Tribe category.

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A A show-cause notice was issued to the respondent to show cause as to whether he obtained employment on forged caste certificate. In reply to the said showcause notice, the respondent admitted that he does not belong to 'Konda Kapu' community, but he belongs to 'Kapu' community which is not a Scheduled Tribe community. Accordingly an alteration was made in the respondent's Service B Book stating that he belongs to 'OC' community. Later, the Collector ordered cancellation of the caste certificate of the respondent and directed the appointing authority to take action against the respondent. Aggrieved, the respondent filed an appeal before the State Government which was disposed of by directing the Postal Department to take appropriate disciplinary action against the respondent. Consequently, the Department issued a Charge Memo C to the respondent framing certain charges against him. Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, which was disposed of with the direction to the applicant to submit his reply to the Charge Memo and on submission of the reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition before the High Court which D was allowed by the High Court. Hence the present appeal.

Respondent submitted that the charge against him had already been enquired into and he was exonerated of the charge in an earlier proceeding; and that the impugned Charge Memo would amount to double jeopardy and E was therefore illegal.

Allowing the appeal, the Court

HELD:t.1. The High Court was not justified in allowing the Writ Petition.It is well settled that ordinarily no writ lies against a charge sheet F or show-cause notice. 1262-C-D)

Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors., JT (1995) 8 SC 331; Special Director and Anr. v. Mohd.

Ghulam Ghouse and Anr., AIR (2004) SC 1467; Ulagappa and Ors. v.

Divisional Commissioner, Mysore and Ors., 12001) 10 SCC 639 and State of G UP. v. Brahm Datt Sharma and Anr., AIR (1987) SC 943 etc., relied on.

1.2. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the

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U.0.1. v. KUNISETTY SATY ANARA Y ANA 259

reply to the show-cause notice or after holding an enquiry the authority A concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or othenvise adversely affecting a party is passed, that the said party can be said B to have any grievance. (262-F-GI

2.1. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. (262-H)

2.2. No doubt, in some very rare and exceptional cases the High Court C can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. (263-A)

2.3. If the charge which has been levelled under the Memo had earlier D been enquired into in a regular enquiry by a competent authority, and ifthe incumbent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case the charges levelled against the respondent under the Charge Memo, had not been enquired into by any authority and he had not been exonerated on those charges. Hence, it is not a case of double jeopardy. (263-C-DI E

3. In the present case, in the earlier proceedings no finding had been recorded that the respondent had not availed of the benefit of belonging to the Scheduled Tribe community for any of the promotions given to him. In fact, the authority was satisfied that he gained initial entry into service as an 'OC' candidate and not as a Scheduled Tribe candidate. However, it seems that his F subsequent promotions were against posts reserved for Scheduled Tribe Community, to which he did not belong. It appears that the respondent availed of the benefit of Scheduled Tribe community for getting two promotions - one as UDC and another as LSG Clerk, on the ground that he belongs to Scheduled Tribe community, and it is for these reasons that the authorities issued the G impugned Charge Memo. Hence, the impugned judgment of the High Court is not correct and the same is set aside. However, the view taken by the Central Administrative Tribunal is correct. The respondent is directed to submit his

reply to the Charge Memo and the authority concerned should decide the same expeditiously in accordance with law. (263-F-G-H; 264-B) H

A Lt. Governor Delhi and Ors. v. HC Narender Singh, (2004] 13 SCC 342, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5145 of2006.

From the Judgment and Order dated 22-3-2006 of the High Court of B Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 7409/2004.

G.E.Vahanvati, S.G., Harikesh Barua and V.K. Venna for the Appellants.

T.L. Viswanathan Iyer, B. Sridhar and K. Ramkumar (for Mis. K. Ramkumar & Associates) for the Respondent.

The Judgment of the Court was delivered by

MARKANDEY KAT JU, J. Leave granted.

This appeal has been filed against the impugned judgment and order D dated 22.3.2006 of the Andhra Pradesh High Court in Writ Petition No. 7409

of2004.

Heard learned counsel for the parties and perused the record.

The respondent was initially appointed as a Clerk in the Postal E Department of the Union of India on 30.11.1965 on the basis of the marks obtained by him in the SSLC Examination. The SSLC certificate of the respondent indicated that he belongs to the 'Konda Kapu' community which is admittedly a Scheduled Tribe community in the State of Andhra Pradesh ..

Thereafter the respondent appeared for a departmental test for promotion F to the post of Upper Division Clerk against a post reserved for the Scheduled

Tribe community, and the respondent was promoted as an Upper Division Clerk in Scheduled Tribe category. His promotion order specifically stated that he has been promoted as an Upper Division Clerk under Scheduled Tribe category vide promotion order dated 27.12.1976. Thereafter, in 1987, he was G further promoted to the next higher post, i.e. LSG cadre, again on a post reserved for Scheduled Tribe category.

On 28.11.1994, a show-cause notice was issued to the respondent to show cause as to whether he obtained employment on forged caste certificate.

In reply to the said show-cause notice, the respondent admitted that he does H n()t belong to 'Konda Kapu' community, but he belongs to 'Kapu' community

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U.0.1. v. KUNIS ETTY SATY ANARA Y ANA [MARKANDEY KA TJU. J.] 261

which is not a Scheduled Tribe community. The respondent in reply to the A show-cause notice also stated that it was wrongly mentioned in the SSC register that he belongs to 'Konda Kapu' community on the basis of a declaration given by his illiterate father who got the respondent admitted in school when he was 11 years old.

By order dated 3.1.1995, the Assistant Post Master General directed that B the respondent be treated as 'OC' community and accordingly an alteration was made in the respondent's Service Book stating that he belongs to 'OC' community.

On 11.7.1997, the competent authority i.e. Collector of Hyderabad District passed an order stating that the respondent obtained an ST caste certificate C from the Manda! Revenue Officer although he does not belong to 'Konda Kapu' community, but he belongs to 'Kapu' community, which is not a Scheduled Tribe community. Hence, the Collector ordered cancellation of the caste certificate of the respondent and requested the Chief Post Master General, A.P. Circle to take action against the respondent vide order dated D 11.7.1997.

Aggrieved against that order, the respondent filed an appeal before the State Government which was disposed of on 17.2.200 I holding that the respondent does got belong to Scheduled Tribe community and he cannot be considered as such, and the Postal Department may take appropriate E disciplinary action against the respondent.

Consequently a Charge Memo dated 23.12.2003 was issued to the respondent framing the following charges against him:

"That he, while working as T/S Clerk in the Secunderabad Postal F Division, appeared for the examination held on 19.9.76 for promotion to UDC against a post reserved for 'ST' community and subsequently he was also promoted to LSG Cadre based on the said reservation.

However, as per G.O. Ms No. 28 dated 17.02.2001 the Government of.

A.P. declared that Sri K. Satyanarayana does not belong to Konda Kapu as declared by him and as such not entitled for the reservation G under the ST category.

That Shri K. Satyanarayana availed reservation against ST in the

promotional post though he does not belong to the said category and as such failed to maintain absolute integrity and acted in a manner H

A unbecoming of a government servant contravening the provisions of Rule 3(1) (i) & (iii) of the CCS (Conduct) Rules, 1964. The statement of imputations gives the details of the reservation availed by the petitioner during his service."

Instead of replying to the aforesaid Charge Memo, the respondent filed B an OA before the Central Administrative Tribunal, Hyderabad which was disposed ofvide order 15.3.2004 with the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the. Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has C i:n allowed, and hence this appeal.

In our opinion, the High Court was not justified in allowing the Writ Petition.

It is well settled by a series of decisions of this Court that ordinarily D no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing BOardv. Ramdesh Kumar Singh and Ors, JT

(1995) 8 SC 331, Special Director and Anr. v. Mohd Ghulam Ghouse and Anr., AIR (2004) SC 1467, Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors., [200 I] I 0 SCC 639, State of U. P. v. Brahm Datt Sharma and Anr., AIR (1987) SC 943 etc.

E The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has F been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet G does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show- H cause notice or charge sheet.

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U.0.1. v. KUNISETTY SATYANARA Y ANA [MARKANDEY KATJU, J.] 263

No doubt, in some very rare and exceptional cases the High Court can A quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason ifit is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

Learned counsel for the respondent submitted that the charge against the respondent had already been enquired into earlier and he had been B exonerated of the charge in an earlier proceeding. Hence, he contended that the impugned Charge Memo would amount to double jeopardy and was therefore illegal. He relied upon the decision of this Court in Lt. Governor Delhi and Ors. v. HC Narender Singh, [2004] 13 SCC 342.

We agree with the learned counsel for the respondent that if the charge C which has been levelled under the Memo dated 23.12.2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case, we are of the opinion that the charges levelled against the respondent under the Charge Memo dated D 23.12.2003, had not been enquired into by any authority and he had not been exonerated on those charges. Hence we are of the opinion that it is not a case of double jeopardy.

In fact, the contention of the respondent was carefully examined by the Central Administrative Tribunal in paragraph 5 of its order dated 15.3.2004. E

In the present case, in the earlier proceedings no finding had been recordeci that the respondent had not availed of the benefit of belonging to the Scheduled Tribe community for any of the promotions given to him. In fact, the authority was satisfied that he gained initial entry into service as an 'OC' candidate and not as a Scheduled Tribe candidate. However, it seems F that his subsequent promotions were against posts reserved for Scheduled Tribe Community, to which he did not belong. While disposing of the appeal filed by the respondent against the order of the District Collector, Hyderabad, the State Government referred the matter to the employer to take disciplinary proceedings after verifying of the records for production of false Caste G certificate. ft appears that the respondent availed of the benefit of Scheduled Tribe community for getting two promotions - one as UDC and another as LSG Clerk, on the ground that he belongs to Scheduled Tribe community, and

it is for these reasons that the authorities issued the impugned Charge Memo dated 23.12.2003. Hence, we are of the opinion that ratio of the decision in H

A Lt. Governor Delhi and Ors. (supra) has no application in the present case.

For the foregoing reasons, we are of the opinion that the impugned judgment of the.High Court is not correct and the same is set aside. We fully agree with the view taken by the Central Administrative Tribunal vide its order dated 15.3.2004. The respondent is now directed to submit his reply to B the Charge Memo dated 23.12.2003 within three weeks from today and the authority concerned should decide the same expeditiously in accordance with law, and thereafter take appropriate legal action in pursuance of the said decision, after giving an opportunity of hearing to the respondent.

c The appeal is allowed. There shall be no order as to costs.

S.K.S.

Appeal allowed.

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