Hon’ble Mr. Tarun Shridhar, Member (A):

1. The applicant who was employed as a Tractor Driver in the organisation of the respondents challenges an order dated 08.02.2019 (Annexure A-4) vide which, pursuant to the disciplinary proceedings initiated against him under Rule 14 of the CCS (CCA) Rules, 1965, he has been removed from service. He further challenges the order dated 29.04.2019 (Annexure A-5) vide which his appeal against the aforesaid order of removal has been dismissed. Vide the present O.A., he has sought the following relief(s):-

(i) To quash and set aside impugned punishment order dated 13.6.2018, Dt. 29.6.2018, Dt. 29.11.2018, Dt. 8.2.2019, Dt. 29.04.2019 with direction to the respondents to reinstate the applicant and give all consequential benefits to the applicant including arrears of pay alongwith interest, seniority etc.

(ii) To declare the action of the respondents in taking departmental action against the applicant on the basis of false allegations as illegal and unjustified and treat the intervening period as spent on duty for all purposes.

(iii) To allow the OA with exemplary costs in favour of the applicant.

(iv) To pass such other and further orders which their lordship of this Hon’ble Tribunal deem fit and proper in the existing facts and circumstances of the case.

2. Brief facts leading to the case are that the applicant submitted an application for selection to the post of Tractor Driver for which he was duly selected and subsequent to the verification of the required documents he was given a formal appointment vide letter dated 10.10.2011 (Annexure A-13). While he was working in the said capacity, having been duly appointed, he was issued a memorandum containing the Article of Charges under Rule 14 of the CCS (CCA) Rules, 1965, on 29.06.2018 (Annexure A-2) wherein it was alleged that he had obtained appointment under the OBC quota on the basis of a caste certificate issued by the Tehsildar, Hapur, U.P. to avail the benefit of reservation under the said category. It was alleged that the applicant belonged to the Jat community which is not recognised as OBC for the purpose of reservation against a post under the Central Government. Since the said OBC certificate was not considered to be a valid certificate for the purpose of appointment under the Central Government, inquiry proceedings were initiated against the applicant which held that the charges against the applicant as contained in the Article of Charges stood proved beyond reasonable doubt. Pursuant to the submissions of the inquiry, the disciplinary authority and the appellate authority vide the impugned orders imposed and affirmed the penalty of removal from service.

3. Learned counsel for the applicant draws attention to the application form which the applicant had submitted at the time of applying for the post of Tractor Driver. The said application form is placed at page 65 of the O.A. (Annexure A-8 Colly). Column No. 7 of the said application form is titled „Categories/Caste‟. Against this column the applicant has written “General (OBC) U.P.”. Learned counsel submits that this itself reflects that the applicant had honestly disclosed both his category as also the fact that he was applying as a general candidate for this Central Government post. He further draws attention to a letter dated 09.08.2011 (Annexure A - 12) wherein verification of the educational certificate of the applicant has been made, arguing that this indicates that the respondents were satisfied as far as the caste certificate of the applicant was concerned. He further mentions that since in his application form the applicant had clearly mentioned general category, hence, the applicant had been selected against the said category probably that is the reason that the respondents did not deem it necessary to verify the caste certificate of the applicant. Learned counsel submits that along with his rejoinder application he has annexed a copy of the Standard Operating Procedures (SOP) to be adopted for direct recruitment in the Group „C‟ and „D‟ categories. He submits that paragraph 22 of the said SOP clearly mentions that once the candidate has reported for duty, the authority concerned must verify the identity, certificate of educational qualifications, proof of age, caste certificates etc. The said paragraph also mentions that the caste certificate should refer a copy of the certificates to the issuing authorities for verification within a period of one year. Learned counsel for the applicant would argue that the applicant was appointed in the year 2011 and was removed from service in the year 2018, in case there was any doubt with respect to the caste certificate of the applicant the verification, in accordance with these SOPs, should have been conducted within a period of one year.

4. Learned counsel submits that on the basis of a complaint this issue was also subjected to an internal inquiry and an entire inquiry has categorically mentioned that in the instant case the certificates were genuine, although he agrees that the certificates were not valid for the purpose of Central Government posts but the said inquiry report goes on to say that this was probably on account of lack of awareness/application at various periods of time because of dynamic nature of the OBC list. However, drawing attention to the said inquiry once again, the learned counsel mentions that the lack of awareness in the said inquiry has been attributed to the officers concerned and not to the applicant. He reiterates, that in any case the applicant had clearly mentioned that he was a general candidate for this purpose and also brought to the notice of the authorities that otherwise his caste was OBC in Uttar Pradesh (U.P.). Hence, if the respondents chose to give appointment to the applicant against a post reserved for OBC, the responsibility for the same vests singularly upon the concerned officers of the respondents‟ organisation and the applicant cannot be subjected to such harsh penalty, that too at such a belated stage when he has crossed the prescribed age limit for seeking employment in the Government. Learned counsel for the applicant closes his argument by drawing attention to the judgment passed by the Hon‟ble High Court of Delhi in W.P. (C) No. 11184/2015 titled “The Director General Employees State Insurance Corporation Versus Dr. Vivek Rana” dated 07.12.2015 in which in almost identical circumstances the Court had held as under :-

“ 15. In the present case, we find that the respondents had produced caste certificates which are not forged and fabricated but genuine certificates obtained from the Delhi Government. After the filing of the certificates, the respondents have worked for more than 5 years and we are of the view that at this stage if their services are terminated, serious prejudice would be caused to their rights as they have become over age and they would not be eligible for any government job. There would be no advantage to the petitioners either as the post at this stage cannot be carried forward.”

5. Learned counsel for the respondents, on the other hand, submits that the documents on record conclusively establish that the applicant was appointed against a post reserved for the OBC. It is not disputed, he argues, that the applicant was not eligible to hold a post for the OBC as it was a Central Government post and the caste of the applicant didn‟t fall in the list of OBCs eligible for Central Government posts. He draws attention to a list circulated by the respondents of such candidates whose applications were accepted. The said list contains the name of the applicant at serial number 157 (Annexure A-7 of the Counter) and a note is given under that list advising all the candidates to report with their original documents on a particular day. This establishes that the applicant was aware that he is obliged to submit the necessary documents in support of his status. Learned counsel also draws attention to an extract from the service book of the applicant wherein the category under which the applicant has been appointed is mentioned as OBC. Learned counsel submits that this page has been signed by the applicant which is again a conclusive proof that he has accepted the fact that he has been appointed against a vacancy reserved for OBC and he was well aware that he was not entitled to avail the benefit of such a reservation. To a specific query whether the applicant was guilty of misleading the respondents, thus could be accused of any misconduct, learned counsel argues that the rules in the instant matter are very clear and DoP&T vide its circular dated 10.01.2013 (Annexure A-8 of the Counter) has issued unambiguous instructions that if after an inquiry against a permanent government servant it is proved that such a government servant was not entitled to avail the benefit of reservation as his caste certificate was not valid, no other penalty except removal or dismissal from service is to be imposed. Learned counsel further draws support from the judgment rendered by the Hon‟ble High Court of Delhi in LPA No. 111/2017 titled “Yogita Godara Versus Food Corporation of India and Anr.” dated 06.09.2018 in which the Court had held that it is settled law that there cannot be an estoppel against law.

6. We have heard the learned counsel for the parties and meticulously examined the documents on record. The first document we examine is the application form that the applicant had submitted. There is no doubt that the applicant had clearly mentioned his category as general. He does mention OBC in brackets but there he also writes U.P. Now, the method of revealing this information may not be very sophisticated but we cannot ignore the fact that he has disclosed the entire information with respect to his status. Moreover, we have to give allowance to the fact that he was applying for the post of a Tractor Driver and not an officer. So, to the best of his understanding he revealed the entire information to the respondents or the appropriate authority who had invited the applications. It was incumbent upon the said authority which was scrutinising the applications to go through this particular column and arrive at a decision. Subsequently, the applicant had submitted his caste certificate. It is nobody‟s case that he had submitted a certificate which was either false or forged. The certificate which he submitted is undisputedly genuine. It was for the concerned authorities to determine whether the caste as mentioned in his certificate was entitled to the benefit of reservation as OBC in the Central Government or not. If it was not verified and he was given the benefit of reservation, the responsibility for the same lies only upon the concerned officers of the respondents‟ organisation and certainly not the applicant as he had furnished a correct certificate and also disclosed the correct information with respect to his caste. Moreover, if the authorities, despite the verification, decided to appoint the candidate, a logical inference is that he was appointed against a general vacancy. The letter seeking verification of educational certificates seeks verification only of the educational certificates and there is no document on record which indicates that at the time of giving appointment any other verification including the verification of caste certificate was undertaken. Moreover, the appointment letter dated 10.10.2011 also does not mention that the applicant has been appointed against a reserved category post.

7. When we carefully look at the documents towards which the learned counsel for the respondents has drawn our attention to, we find that all the candidates whose applications were accepted were asked to report on 28.04.2011 with all their original documents with character certificates and domicile certificate. It is presumed that all original documents would include caste certificate and a further logical presumption would be that the applicant whose name figures at serial number 157 of the said list also produced his certificates for verification and subsequent to this verification he was given appointment. The extract from the service book does mention the category of appointment as OBC and we notice that the service book has been authenticated by an officer of the rank of Lieutenant Colonel which means that the concerned authorities and the senior officers were well aware of to the status of the candidate. The DoP&T memorandum dated 10.01.2013 towards which the respondents‟ counsel draws our attention reads as under:-

“Sub:- Action against Government servants who get appointment on the basis of false SC/ST/OBC certificates.

The undersigned is directed to invite reference to this Department's. OM No.11012/7/91-Estt.(A) dated 19.5.1993 which provides as under:

"Wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If, he is probationer or a temporary Government servant, he should be discharged or his services should be terminated. If he has become a permanent Government servant, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any penalty be imposed".

2. The position was reiterated 'vide this Department's OM No.42011/22/2006-Estt.(Res) dated the 29th March, 2007 that the cases other than those protected by the specific order of the Apex Court should be dealt with in accordance with the instructions contained in the aforesaid O.M. However, it has been observed that disciplinary proceedings in the cases involving appointments on the basis of false/fake caste certificates take considerable time and the persons who have secured employment on the basis of false caste certificates enjoy the benefits of Government service whereas such Government servants should be removed/ dismissed from the service at the earliest.”

The said extract is of the year 2013. We are not inclined to give any credence to the DoP&T memorandum relied upon by the learned counsel for the respondents because we are of the firm and well considered view that the disciplinary proceedings being quasi-judicial in nature should not be subjected to any influence such as the nodal Ministry giving directions as to what penalty to impose for what misconduct. The disciplinary authority is expected to exercise an independent judicious mind while deciding to impose a penalty including which penalty to impose and under what circumstances and conditions. Moreover, no guilt is attributed to the applicant. If the respondents have relied upon the said memorandum to impose the penalty of removal, we cannot sustain the same.

8. In the light of the position detailed above, we are convinced that the applicant is not guilty of any misconduct which should warrant disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965, more so culminating in the harshest of penalties. Further, even if we presume that some irregularity has taken place in this matter by according the benefit of reservation to the applicant for which he was not entitled, by no stretch of imagination can we hold that the applicant obtained this benefit of reservation by any misrepresentation or concealment. If these benefits were accorded to him it was given by the respondents with their eyes and minds open. In any case, as mentioned earlier, there is nothing on record to establish whether the candidate was appointed against a reserved vacancy or otherwise. In either of the case, the present disciplinary proceedings do not find any justification.

9. Accordingly, the O.A. is allowed and the impugned orders dated 13.06.2018, 29.06.2018, 29.11.2018, 08.02.2019 and 29.04.2019 are quashed. The respondents are directed to reinstate the applicant in service with effect from the date he was removed from there. He shall be entitled to all the consequential benefits, except the arrears of such benefits, as a result of this order. These directions shall be complied with within a period of eight weeks from the date of this order.

10. The O.A. is disposed of in the aforesaid terms. There shall be no order as to costs.