Sabhajeet Yadav, J.@mdashBy this petition the petitioner has challenged the order dated 28.11.2007 (Annexure-6 of the writ petition) passed by Senior Superintendent, Mandal Karagar, Moradabad-respondent No. 3, whereby the petitioner has been dismissed from service while working as Bandi Rakshak in the said jail (Karagar).
2. It is stated that in the year 1992 the petitioner was initially appointed as ''Bandi Rakshak'' after due proces of selection. Before his appointment he had applied for selection in question as reserved category candidate of scheduled tribe and on the basis of his selection, appointment letter dated 8.8.1992 was issued by Superintendent, Mandal Karagar, Moradabad. A copy of appointment letter dated 8.8.1992 is on record as Annexure-3 of the writ petition. It is stated that the petitioner is permanent resident of village Merapur Gujrati, Post Ratanpur Bara, P.S. Allou Tehsil Bhongaon, District Mainpuri which is evident from his domicile certificate contianed in Annexure-1 of the writ petition. At the time of selection he has passed High School examination and he was fully eligible and qualified to be appointed on the post of ''Bandi Rakshak'' in the year 1992. It is also stated that the petitioner belongs to ''Lodh'' caste and in the District Mainpuri and Fatehpur ''Lodh'' caste has been accorded the status of ''Vimukta Jaati'' (denotified caste) and is recognised as scheduled tribe in State of Uttar Pradesh. It is further stated that caste ''Lodh'' is synonymous of the caste ''Lodhi''.
3. A photostat copy of petitioner''s ''Vimukta Jaati'' certificate is on record as Annexure-2 of the writ petition. It is stated that in pursuance of his appointment letter dated 8.8.1992 the petitioner has submitted his joining report to the Superintendent District Jail, Bijnor on 18.8.1992 which was duly accepted and he was permitted to join his service in the District Jail, Bijnor on 10.8.1992 itself. Since then the petitioner is continuously serving on the post of ''Bandi Rakshak'' while posted at different places and during his entire service career the work and conduct of the petitioner has all along been excellent and to the entire satisfaction of his superiors without there being any complaint against him from any corner and no disciplinary proceeding has ever been held against him in the past.
4. All of a sudden, during his posting in Mandal Karagar, Moradabad, the petitioner was served with a show cause notice dated 1.8.2007 by the Senior Superintendent District Jail, Moradabad to the effect that as per directions of the Director General Prison respondent No. 2 dated 13.6.2007 the educational qualification and other documents of the service cadre of ''Bandi Rakshak'' cadre were again verified and petitioner''s documents pertaining to his educational qualification were got verified from the Secretary, Board of High School and Intermediate Education, Allahabad and his caste certificate was also got verified from the District Magistrate, Lucknow who has informed that as per report of the Tehsildar, Sadar, Lucknow no such caste certificate of Scheduled Tribe has been issued to the petitioner.
In that view of the matter the caste certificate of the petitioner is forged and his appointment is illegal and he should show cause as to why he should not be dismissed from service.
It is further stated that in response to the show cause notice dated 1.8.2007 the petitioner sent his reply on 12.8.2007 through registered post inter alia stating therein that he is not in a position to give proper and effective reply of show cause notice for want of copy of alleged caste certificate. It is further stated in his reply dated 12.8.2007 that he was never given any opportunity to participate in the alleged ex-parte inquiry held by Tehsildar, Sadar Lucknow before submitting his alleged inquiry report and copy of the alleged ex parte inquiry report submitted by him has also not been furnished to the petitioner alongwith show cause notice.
6. The petitioner belongs to caste ''Lodh'' which is scheduled tribe in District Fatehpur and Mainpuri and he had mentioned his caste ''Lodh'' in his application form for his selection and ''Lodh'' caste is synonymous of ''Lodhi'' caste hence he is not guilty of any misrepresentation/misconduct. The petitioner is resident of Bhogaon Tahsil of District Mainpuri but no inquiry regarding his caste and caste certificate has been made from District Mainpuri.
7. In his service book also his caste has been mentioned as ''Lodh'', hence the copies of caste certificate, alleged ex parte inquiry report of Tehsildar, Sadar, Lucknow and statement, if any, recorded during the alleged inquiry be supplied to him so that he may give proper, complete and effective reply to the show cause notice. It is further stated that the reply of the petitioner dated 12.8.2007 was received in the office of Senior Superintendent, District Jail, Moradabad on 17.9.2007, but without furnishing the copy of aforesaid documents to the petitioner the Senior Superintendent, Mandal Karagar, Moradabad has passed the impugned order dated 28.11.2007 dismissing the petitioner from service.
8. Being aggrieved against the impugned order of dismissal he filed a writ petition before Lucknow Bench of this Court being Writ Petition No. 5301 (s/s) of 2007 Ranvir Sing v. State of U.P. and Ors., which was dismissed by Lucknow bench of this Court vide order dated 31.8.2007 on the ground that cause of action has not arisen within the territorial jurisdiction of Lucknow bench of this Court and liberty was given to the petitioner to file petition before this Court.
9. Contrary to it, the stand taken in the counter affidavit filed on behalf of respondent State in substance is that on direction of Director General Prison dated 13.6.2007 with regard to the verification of genuineness of educational certificates and caste certificates of Bandi Rakshak Cadre an inquiry was made, wherein it was found that while making his application form the petitioner had enclosed his caste certificate issued by the Tehsildar, Sadar, Lucknow dated 12.2.1990, which indicates that he is ''Lodh'' by caste belonging to Scheduled Tribe. On verification from Tehsildar, Sadar Lucknow through D.M., Lucknow, it was found that no such caste certificate was issued to the petitioner by them. Further inquiry from Tahsildar Bhogaon District Mainpuri was also made and it was found that the petitioner belongs to ''Lodhi'' caste of Bhogaon Tehsil District Mainpuri, which is a Backward caste and no person of ''Lodh'' caste is residing in the village of petitioner who may be Scheduled Tribe.
10. Thereafter show cause notice was issued and served upon the petitioner and on having considered his reply thereon, the impugned order has been passed against him.
The submissions of learned Counsel for the petitioner in nut shell are that the order of dismissal could not be passed by respondent on the ground stated in the impugned order dated 28.11.2007 for the simple reason that averments contained in the impugned order do not constitute misconduct during the service period of petitioner. The allegations levelled in the show cause notice are pertaining the submission of false/forged caste certificate while making application form for the selection and appointment while entering into service, therefore, even if found proved against the petitioner, at the most his appointment could be cancelled at the earliest opportunity at the initial stage of his appointment but he could not be dismissed from service after long lapse of 15 or 16 years from the date of his appointment on the basis of alleged forged certificate submitted by him, which in fact was not submitted by him.
11. In his application form the petitioner had clearly mentioned his caste as ''Lodh'', which is synonymous of ''Lodhi'' caste belonging to Vimmukta Jatti, which is recognised as Scheduled Tribe in Bhogaon Tahsil of District Mainpuri (U.P.). He has never misrepresented about his caste.
Secondly, no full-fledged disciplinary inquiry was held against the petitioner before the order of dismissal was passed against him. As neither any inquiry officer was appointed nor any charge sheet was served upon him nor any disciplinary inquiry has been held to prove the charges levelled against him.
12. Merely a show cause notice was issued on 1.8.2007 to the petitioner which too was without enclosing any document in support of the accusation and charges levelled against him, thus without holding any formal disciplinary inquiry he was asked to submit reply of the aforesaid show cause notice.
13. The reply given to the show cause notice as stated hereinbefore has not been taken into consideration in correct perspective and impugned order was passed against the petitioner. Accordingly, the impugned order is wholly arbitrary, illegal and violative of principles of natural justice and fair play, as such cannot be sustained.
14. I have heard Sri R.A. Verma, learned Counsel for the petitioner and learned standing Counsel for the respondents- State and also perused the record.
Having gone through it, I find that so far as the submission of the learned Counsel for the petitioner that impugned order of dismissal of the petitioner could not be passed on the grounds stated therein is concerned, there appears sufficient force in the submission. In my opinion, on the basis of allegation in the show cause notice and recital contained in the impugned order, the petitioner could not be dismissed from service. From perusal of the record, it transpires that the petitioner was dismissed from the service on the ground that while making application form for selection and appointment on the post in question he had submitted caste certificate of Scheduled Tribe issued by the Tehsildar, Sadar Lucknow, which was found forged on verification.
15. In this connection the submission of learned Counsel for the petitioner is that as a matter of fact, while making application the petitioner did not submit such caste certificate issued by the Tehsildar, Sadar, Lucknow and while making inquiry, he was neither given opportunity to participate in the inquiry before Tehsildar, nor the copy of ex-parte report was supplied to him. The petitioner belongs to the ''Lodh'' caste, which is synonymous of ''Lodhi'' caste and Lodh/Lodhi caste is Vimukta Jaati recognised as Scheduled Tribe in Bhogaon Tehsil of District Mainpuri and District Fatehpur in State of U.P. and no inquiry was held from Tehsil Bhogaon by permitting the petitioner to participate in it.
16. At any view of the matter, the alleged act or conduct of the petitioner was of at the time of his appointment while entering into service, therefore, the same could not constitute misconduct during the service, as such order of dismissal for alleged misconduct could not be passed against him. In my opinion, the submissions of learned Counsel for the petitioner have substance and deserve to be accepted. I am of the considered opinion that the alleged conduct of the petitioner while entering into service cannot be regarded as misconduct during the service. In service law jurisprudence, both the stages are quite distinct and distinguishable, therefore, they should not be intermixed otherwise it would cause serious repercussion in service law jurisprudence. For example, if the appointment is cancelled, the appointee would not be debarred for future employment in Government service, but on dismissal and removal from service such employee would be debarred for future employment in Government service and would lose the post retiral benefits, if otherwise admissible after completion of qualifying service. Besides, dismissal from Government service entails other serious civil consequences also.
17. Therefore, I am of the firm opinion that the order of dismissal could not be passed against the petitioner basing on aforesaid charge, as such the same cannot be sustained on this ground alone.
However, at the most, if the order of appointment was found to be based on submission of false or forged caste certificate, in that event of the matter, it could be cancelled at earliest opportunity immediately after his appointment by making inquiry and verifying the documents and certificate submitted by him after providing reasonable opportunity of hearing to him but same could neither be postponed for indefinite period nor could be verified again and again.
18. I am in doubt as to whether such alleged illegal appointment could be cancelled after long lapse of 15-16 years from the date of appointment of the petitioner as contended by his counsel.
Another leg of submission of learned Counsel for the petitioner that no full-fledged disciplinary inquiry was held against the petitioner before order of dismissal was passed against him, also appears to have substance. From the record I find that neither any Inquiry Officer was appointed nor any charge sheet was issued and served upon the petitioner nor any disciplinary inquiry has been held to prove the charges levelled against him. Merely a show cause notice was issued on 1.8.2007 to the petitioner which too was without enclosing any document in support of accusation and charges levelled against him.
19. Further there is nothing to indicate from the record that inquiry officer or disciplinary authority has fixed any date or place for holding departmental inquiry against the petitioner asking him to participate in it. There is nothing to indicate from the record that the charges levelled against the petitioner have been proved on behalf of department before such inquiry officer or disciplinary authority by any person and thereafter the petitioner was asked to cross-examine any witness and adduce any evidence in his defence, as such the submission of learned Counsel for the petitioner, that no full-fledged disciplinary inquiry was held against the petitioner before the impugned order of dismissal was passed against him, appears to be correct.
20. Besides this, the fact that the petitioner was not permitted to participate in the inquiry before the Tehsildar, Sadar and District Magistrate, Lucknow and before Tehsildar Bhogaon District Mainpuri, who have held alleged inquiry with regard to the caste and caste certificate of the petitioner has also not been denied by the respondents in the counter affidavit filed in the writ petition. In such facts and circumstances of the case, I am of the considered opinion that the order of dismissal passed against the petitioner was without following the procedure prescribed for holding disciplinary inquiry and was without affording him reasonable opportunity of hearing to have his say in the matter, as such entire action was taken in gross violation of principles of natural justice and fair play inasmuch in utter disregard of the provisions of Article 311(2) of the Constitution of India, therefore, cannot be sustained.
21. Now, in given facts and circumstances of the case further question arises for consideration as to whether fresh disciplinary inquiry de-novo from the stage of charge-sheet can be directed in this case or not? In this connection it is pertinent to point out that where disciplinary proceeding is vitiated on account of non-observance of principles of natural justice or procedure for holding such disciplinary inquiry or such inquiry is held in utter disregard or violation of provisions of Article 311(2) of the Constitution, and circumstances warrant for holding fresh disciplinary inquiry from the stage from which it was found faulty, normally, this Court or Tribunal in the judicial review remits the matter to the disciplinary authority for holding fresh inquiry as directed by the Court or Tribunal but before directing such inquiry de-novo from the stage from which it was found faulty, I would like to refer some cases on the line in which the selections and appointments were found illegal nevertheless, the Hon''ble Apex Court did not disturb the selections and pursuant illegal appointments on account of lapse of time after such appointment on equitable and humanitarian grounds.
22. In
23. Both the appellants in the aforesaid case applied for the post of their choices. The appellant No. 1 secured 29.50 marks out 50 marks in interview and 69.96 marks in qualifying examination, thus in all 99.46 marks out 150. The second appellant obtained 24.83 marks in interview and 66.40 marks in qualifying examination, thus in all 91.23 marks out 150. Both the appellants were not selected in merit as the last selected candidate for above posts secured higher marks than the appellants.
24. The Hon''ble Apex Court has found that 50 marks for interview out of 150 are clearly in violation of judgement of Hon''ble Apex Court in
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground. Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections. However, the Rules are clearly in violation of the dictum laid down by this court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
We, therefore, allow the appeal and direct the respondents to give appointment to the appellant Ashok alias Somanna Gowda on the post of Asstt. Engineer (Civil) and appellant Rajendra on the post of Asstt. Engineer (Mech.) in Pubnlic Works Department within a period of two months of the communication of this order in case the annellants are found suitable in all other respects according to the Rules.
25. In
26. Some of them had earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They have now become over-aged for entering into any service. Most of them could not get the benefit of age relaxation under Rule 6 of Karnataka Civil Services General Recruitment Rules 1977, in such facts and circumstances the Hon''ble Apex Court has held that they could not be asked at that stage to appear for written test and viva voce to be conducted by the Public Service Commission for such selection. Therefore, on humanitarian ground the Hon''ble Apex has directed the authorities to treat the aforesaid persons as regularly appointed with all benefit of past services.
27. Pertinent observations made by the Hon''ble Apex Court in Paras 10, 13, 14, 16 and 17 of the aforesaid decision are extracted as under:
10. While the administration of the Courts has perhaps never been without its critics, the method of recruitment followed by the Chief Justice appears to be without parallel. The learned Judges of the High Courts have in a considered judgment allowed the writ petitions and quashed all those appointments. They have expressed the view that the appointments made by the Chief Justice were very serious violation of statutory law and constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1). From the foregoing narration of events and by the rules of recruitment, it seems to us that there cannot be two opinions on the conclusion reached by learned Judges. The methodology adopted by the Chief Justice was manifestly wrong and it was doubtless deviation from the course of law which the High Court has to protect and preserve.
13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions, it may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry in to any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection Sec
14. We may briefly touch some of the decisions referred to us by Counsel for the appellants.
16. The precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy. We also take note of the fact that the writ petitioners also would be appointed in the High Court as stated by learned Advocate General of the State.
17. In the result, we allow these appeals and direct that these appellants should be treated to be regularly appointed with all the benefits of the past service. The judgment of the High Court is accordingly modified. This order would govern all those whose appointments have been quashed by the High Court.
28. Although the aforesaid cases are distinguishable on facts. In the aforesaid cases, the selections and appointments were found bad and illegal on account of violation of rules of recruitments and disregard of dictum of Apex Court while making selections and appointments and not on account of submission of false or forged caste certificate but what considerations seem to have weighed in the mind of Hon''ble Apex Court were their continuous working on the post for considerably long times and after long lapse of time, on cancellation of such illegal selections and appointments, appointees would not get employment suiting to their qualifications as they had become over-aged and also have liability of their families, as such Hon''ble Apex Court has observed that if they are left at midstream and if they are asked to appear in the examination at this stage, it would be an act of cruelty, thus did not disturb their illegal selections and appointments, rather directed that their services should be treated to be regularised.
29. There is yet another line of cases, where pending disciplinary inquiry or initiation of such disciplinary inquires have been quashed either on account of unexplained in-ordinate delay in concluding such pending inquiries or on account of non-satisfactory explanation of inordinate delay in initiation of such disciplinary inquiry after detection of misconduct.
30. In
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal''s orders and accordingly we dismiss this appeal.
31. In
19. It is not possible to lay down any predetermined principles applicable to all cases, and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
32. The view taken in aforesaid cases has been reiterated again in
16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at his distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings the appellant should not be made to suffer.
33. At this juncture before applying the aforestated law laid down by Hon''ble Apex Court in given facts and circumstances of the case, it is also necessary to examine as to whether Lodhi and Lodh are same caste and one caste is synonym of another caste? In this connection it is necessary to point out that in the counter affidavit it is stated that in the village of the petitioner no person belonging to ''Lodh'' caste is residing instead thereof the persons of ''Lodhi'' caste are residing and they belong to the backward class. It is not shown from any material on record that Lodhi caste is not synonymous of Lodh caste and they are different castes altogether.
34. In this connection a reference can be made to a decision of Hon''ble Apex Court in
12-A. We are unable to accept this contention advanced on behalf of the respondents Nos. 1, 3 and 4 on the ground that the caste of the respondents Nos. 2 and 5 was mentioned in the caste certificates granted by the Tehsildar, Betanoti as ''Dhoba''. Moreover, in the finally published record of rights the caste of the father of respondent No. 2 had been recorded also as ''Dhoba'' which undoubtedly is a Scheduled Caste under the Scheduled Castes Order, 1950 issued under the provisions of Article 341 of the Constitution of India. It is also pertinent to mention that ''Rajaka'' is the literal synonym for the work ''Dhoba'' and according to the Puma Chandra Oriya Bhasakosh which is a recognised authority, the defintion of ''Dhoba'' is Rajakawasherman. As such, the submission that the caste ''Rajaka'' is different from caste ''Dhoba'' is not at all sustainable. It is pertinent to refer in this connection to the observations of the Supreme Court in
Ordinarily therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order.
But that in our opinion does not conclude the matter in peculiar circumstances of the present case. The difficulty in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the reorganisation of 1956 there was no caste known as Bhovi at all. The Order refers to a scheduled caste known as Bhovi as the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf.
35. Since the ''Lodhi'' is the synonymous caste of ''Lodh'', therefore, it cannot be held that the petitioner does not belong to ''Lodh'' caste of Bhogaon Tehsil of District Mainpuri, which is synonymous of ''Lodhi'' caste and recognised as ''Vimukta Jaati'' under the Government orders dated 17th September, 1958 and 17th January, 1978. It is also necessary to point out that in the counter affidavit filed in writ petition, although the respondents have not denied that ''Lodh'' caste of Bhogaon Tehsil District Mainpuri belongs to the scheduled tribes recognised in State of U.P. but for want of positive material on record to the effect that as to whether ''Lodh'' caste of Bhogaon Tehsil District Mainpuri which is recognised as ''Vimukta Jaati'', is scheduled tribe in State of U.P. or not, in my opinion mere non-denial by the respondents would not be sufficient to hold that ''Lodh'' caste of Bhogaon Tehsil of District Mainpuri would come within scheduled tribe of State of U.P. However, for the reasons to be stated hereinafter it is not necessary to inquire into the matter further more.
36. At this juncture it is pointed out that it is not the case of the respondents that they were not aware of the fact that alleged false or forged caste certificate was submitted by the petitioner at the time of his selection and appointment and same was detected first time in the year 2007, then, thereafter they have held the inquiry in question. Contrary to it, in the application form for recruitment the petitioner has specifically stated that he belongs to ''Lodh'' caste, which is scheduled tribe. In case, ''Lodh''/''Lodhi'' caste was not found to be scheduled tribe, his candidature as scheduled tribe ought to have been cancelled and instead thereof he would have been treated as candidate belonging to the backward class or general category by the authorities concerned prior to the selection or at the time of selection but instead thereof he was permitted to participate in the process of selection as a candidate of scheduled tribe and in pursuance of said selection, he has been given appointment and permitted to continue in service for considerably long time for about 15 - 16 years.
37. Therefore, in my opinion after such long lapse of time there can be no justification for respondent-State to verify his caste certificate again and again and on finding it forged and fake, his services could be terminated or he could be dismissed from service. In my view, such approach of the State-respondents is highly arbitrary and irrational.
38. Further it is not the case of the respondents that selection in question was held as special drive recruitment for scheduled caste and scheduled tribes alone and the petitioner being a candidate not belonging to the scheduled caste and scheduled tribes was not otherwise eligible and qualified for the said selection and appointment. In such view of the matter if the petitioner could be selected otherwise as a candidate of backward class or a candidate of general category on the post in question at the time of his selection, in my opinion, same could not be cancelled after such long lapse of time merely on the ground that he has obtained his selection against the vacancy reserved for scheduled tribes but while considering the case of the petitioner the authorities did not consider this aspect of the matter as to whether the petitioner could be selected and appointed on the post in question otherwise than a candidate belonging to scheduled caste and scheduled tribes or not.
39. In this connection, it is further pointed out that there is nothing to indicate that on verification of High School certificate of the petitioner, it was found forged and fake. Therefore, the same shall be treated to be genuine. There is nothing to indicate from the record that the petitioner was otherwise not eligible and qualified for the selection on the post in question as a candidate of general or backward category, otherwise than candidate of scheduled tribe. Since the petitioner has been permitted to work for a period of 15-16 years in pursuance of said selection and appointment, therefore, in wake of aforesaid facts and circumstances of the case, in my considered opinion, his selection and appointment could not be cancelled at a such long lapse of time.
40. I am motivated to take aforesaid view in the matter for another reason also as no disciplinary inquiry could be held against the petitioner after long lapse of 15-16 years without any satisfactory explanation for causing inordinate delay in holding such inquiry in view of law laid down by Hon''ble Apex Court in cases referred hereinbefore and there is no explanation on behalf of State respondents as to why the caste certificate and educational certificates submitted by the petitioner were not verified at the time of his selection or immediately after the appointment of the petitioner and if any such verification was done as to why inquiry was not held against the petitioner if his caste certificate was found fake on such verification at earliest opportunity.
41. Mow, after such long lapse of time the petitioner has responsibility of his family on his shoulder. In case, his appointment is cancelled, he cannot get another employment in the Government service suiting to his ability and qualification, as he has become over-aged to enter into a Government service, as such in view of law laid down by Hon''ble Apex Court in H.C. Puttaswamy''s case, there can be no justification to put the petitioner in mid stream of his life to suffer from starvation alongwith his dependants and family members. At this stage ousting the petitioner from service would not be only punishment to him but it would be punishment to his family members also. In the words of Hon''ble Apex Court, it would be an act of cruelty not only against him but against his dependants and family members also.
42. In such situation, pedantic approach, divorced from ground realities stated herein before would lead to grave injustice, therefore, I am of the considered opinion that humanitarian approach would rule the case of the petitioner. In such a facts and circumstances of the case, there can be no justification to direct or permit the respondents to hold any fresh disciplinary inquiry de-novo against the petitioner from the stage of issuing of charge sheet after long lapse of 16 years from the date of his appointment.
43. In view of foregoing discussion, I am of the considered opinion that the impugned order dated 28.11.2007 cannot be sustained and same is hereby quashed. In the result, the petition succeeds and is allowed. The petitioner is reinstated in service with continuity of service and all other consequential benefits of service including regular increments, seniority and back wages as arrears of salary from the date of impugned order till the date of his actual reinstatement. He shall be paid his full salary for the period he was out of employment in pursuance of the impugned order from the date of his dismissal till the date of his actual reinstatement. The arrears of salary shall be paid within a period of two months from the date of production of certified copy of the order passed by this Court before the concerned authority.
44. With the aforesaid observation and direction, writ petition succeeds and is allowed.
