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IN THE HIGH COURT OF JUDICATURE AT PATNA
Mohit Kumar Shah, J.
Rajive Nandan Mourya - Appellant
Versus
The State Of Bihar & Ors. - Respondent
Civil Writ Jurisdiction Case No. 24171 of 2018
Decided On : 08-10-2021
Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 – Rule 17 – Bihar Government Servants Conduct Rules, 1976 – Section 3 – Dismissal from service – Cancellation of caste certificate obtained by misrepresentation and fraud – Petitioner has, by misrepresentation and fraudulently, as also on the basis of a false affidavit, procured a permanent residential certificate as well as a caste certificate although petitioner is not a permanent resident within State of Bihar – Without cancellation of earlier caste certificate or for that matter earlier residential certificate, petitioner could not have got caste/ residential certificate issued from State of Bihar inasmuch as petitioner cannot claim to be resident/ domicile of both U.P. as well as State of Bihar – Petitioner has failed either to disprove documentary evidence produced by prosecution during course of departmental enquiry or to produce any documentary or oral evidence to substantiate his innocence – Complicity of petitioner is writ large from records and he is guilty of allegations levelled against him – Petitioner has been alleged to have misutilized his post and entered into a conspiracy to submit a false affidavit for the purpose of procuring caste/ residential certificate by misrepresentation and in a fraudulent manner as also had engaged in undignified behaviour which is contrary to provision contained in Section 3 of Bihar Government Servants Conduct Rules, 1976, apart from causing inconvenience to department on account of his fraudulent behaviour, resulting in loss of Government money and time and further duping government officials and procuring false certificates – No infirmity can be found in procedure followed either by disciplinary authority or in conduct of departmental enquiry and moreover, conclusion reached at by enquiry officer cannot also be faulted with – Punishment of dismissal from service is far from disproportionate to charges of misrepresentation and fraudulent act of obtaining a caste certificate and a residential certificate which have unanimously been proven against petitioner, hence taking any other view would be an anathema to service jurisprudence – Petition dismissed. (Paras 10, 12, 13, 15, 16 and 17)
Constitution of India – Article 226/227 – It is not open to High Court, in exercise of its jurisdiction under Articles 226/227 of Constitution of India, to go into proportionality of punishment so long as punishment does not shock conscience of Court – Quantum of punishment is within domain and discretion of employer to impose penalty looking to gravity of charge and it should not be vindictive or unduly harsh – It should not be so disproportionate to charge which shocks conscience and should not be indicative of proof of biasness. (Para 16)
JUDGMENT
1. The present writ petition has been filed for quashing the order dated 30.07.2018 passed by the Under Secretary, Water Resources Department, Government of Bihar, Patna (Annexure-5), whereby and where-under the petitioner has been inflicted with the penalty of dismissal from service, as also the notification dated 7.8.2019, issued by the Under Secretary to the Govt., Water Resources Department, Govt. of Bihar, Patna whereby and whereunder the review petition filed by the petitioner has been rejected. The petitioner has also prayed for quashing of the enquiry report dated 22.10.2017. Consequently, it has been prayed for directing the respondents to pay all the consequential benefits for the period of suspension & dismissal.
2. The brief facts of the case are that the petitioner was appointed on the post of Assistant Engineer on 23.6.1987 pursuant to an advertisement bearing Advertisement no. 93/85 issued by the Bihar Public Service Commission (hereinafter referred to as "the Commission", wherein it was provided that those candidates, who fall under the reserved category of Scheduled castes and Scheduled Tribes of other States will be entitled for reservation, if their caste of SC/ST has been notified in the State of Bihar by a presidential order. The petitioner belongs to the caste "Chamar" and falls under the Scheduled Caste category, both in the State of Uttar Pradesh as also in the State of Bihar. The father of the petitioner was inhabitant of Uttar Pradesh but he was posted in the State of Bihar for a very long time, being in the service of Indian Railways and had also solemnised marriage with his wife belonging to the district Saran, now Siwan. The petitioner is stated to have studied in the State of Bihar till Class-8, whereafter he had studied and completed his intermediate course from Kushinagar, U.P. and had then obtained Engineering degree from Gujarat.
3. It is the case of the petitioner that he had validly and legally joined service in the year 1987 on the post of Assistant Engineer, Water Resources Department, Government of Bihar, Patna and then he was promoted to the post of Superintending Engineer. It is stated that a complaint was made by the President of All India Equality Forum that the petitioner is by caste "Chamar" of Uttar Pradesh but he has been given promotion on the post of Superintending Engineer in the State of Bihar, where-after the Principal Secretary, Water Resources Department, Government of Bihar, Patna had cancelled the promotion of the petitioner vide notification dated 22.11.2007, which was challenged by the petitioner before this Court by filing a writ petition bearing CWJC No. 16097 of 2007, but the same was dismissed vide order dated 4.3.2009. The petitioner had then challenged the said order dated 4.3.2009 along with other similarly situated persons by filing Special Leave Petition bearing S.L.P. (Civil) No. 7854 of 2009. As far as the case of the petitioner is concerned, the Hon'ble Apex Court vide order dated 25.8.2014 had remanded the matter of the petitioner back to the High Court for fresh consideration in view of the new plea taken by the petitioner before the Hon'ble Apex Court that his case was that of involuntary migration due to employment of his father in the State of Bihar and on account of him being born and brought up in the State of Bihar, resulting in him suffering the same disability particular to his caste. In such view of the matter, the Hon'ble Apex Court had also directed the High Court to verify the resident and caste claim of the petitioner, by an appropriate authority, before hearing the matter.
4. It appears that the case of the petitioner was then taken up by the learned Division Bench of this Court and vide order dated 23.6.2015, the Secretary, Social Welfare Department was directed to arrange for verification and certification of the residence and caste of the petitioner and submit a report with regard to the same within three months. Thereafter, the resid
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