Ranjit More, J. (Chairman)
1. By filing this Original Application, the applicant is seeking quashment of the order dated 24.06.2022 (Annexure A-1), issued under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, whereby his services were terminated. The applicant is also seeking a direction to the respondents to confirm his appointment along with other officials so confirmed vide order dated 15.06.2022.
2. The facts giving rise to the present Application are as follows:
The applicant claims to be belonging to 'Namasudra' caste, which is declared a Scheduled Caste (SC) in the State of West Bengal in terms of the Constitution (Scheduled Castes) Order, 1950. The applicant completed his education in Class 10th and 12th from Siliguri District in the years 2005 and 2007 respectively. However, he did not avail the benefit of reservation. The applicant thereafter completed his Graduation, i.e., B.Sc. (Statistics) in 2010, and in the year 2013 he completed his Post Graduation from IIT Kanpur. However, either at the stage of Graduation or Post Graduation, he did not avail any reservation. It is the case of the applicant that during his study in Ashutosh College, Kolkata, University of Kolkata, on 29.09.2008, at the request of his mother, a caste certificate was issued by the office of the Sub-Divisional Officer, Sadar-Jalpaiguri in the name of the applicant, declaring him to be belonging to the 'Namasudra' caste, which is a Scheduled Caste. It is also his case that the applicant as well as his mother had bona fide belief that the caste certificate issued to them by SDO, Sadar-Jalpaiguri was original and legal.
3. In the year 2018, pursuant to notification/advertisement dated 21.03.2018, the applicant applied in the Indian Statistical Service (ISS) Examination, and appeared for the same. There were 32 posts advertised for the Statistical Service. The applicant applied under the SC category. On 27.11.2018, results of this Examination were published and the applicant was declared successful, and accordingly selected at serial number 30 in the ISS as an SC candidate. The applicant was issued provisional offer of appointment in the Junior Time Scale (JTS) of the ISS on the basis of the results of the 2018 Examination. The applicant submitted his joining letter on 05.02.2019 and joined the ISS Training Academy, NSST, Greater Noida on probation. It is further the case of the applicant that his probation period of two years was completed on 04.02.2021.
4. On 07.04.2021, the respondent issued a show cause notice to the applicant bringing it to his knowledge that the SDO, Sadar Sub-Division, Jalpaiguri vide letter dated 24.03.2021 had informed the respondent that during the process of verification, it was found that no record was available with the District authorities in respect of the caste certificate dated 29.09.2008 submitted by the applicant. The applicant replied to the said show cause notice on 08.04.2021, and requested for re-verification of the caste certificate, and submitted the original caste certificate dated 29.09.2008, as directed by the respondent. The respondent thereafter on 30.06.2021 issued another show cause notice to the applicant informing him that the caste certificate dated 29.09.2008 had no record with the District authorities, and thereby asked him to show cause as to why action against him should not be taken. In the second show cause notice reference to the letter dated 24.03.2021 received from the office of SDO, Sadar Sub-Division, Jalpaiguri, was also made.
5. The applicant thereafter applied for fresh caste certificate with the office of SDO, Jalpaiguri, and accordingly a caste certificate dated 04.10.2021 was issued to him by the District authorities, and the same was submitted by him with the respondent for consideration and verification. Meanwhile, vide order dated 15.06.2022, the respondent confirmed the appointment of 31 out of 32 officers appointed in pursuance of the 2018 Examination. The respondent issued the impugned order dated 24.06.2022 referred to above, terminating the services of the applicant under sub-rule (1) of Rule 5 of the CCS (Temporary Service) Rules, 1965. The applicant thereafter filed representation against his termination on 04.07.2022. However, his representation was not considered. Since no reasons were provided in the termination order, he filed an RTI application on 26.06.2022. The applicant received reply to his RTI application on 06.07.2022, and thereafter approached this Tribunal by way of the present OA seeking the relief mentioned hereinabove.
6. Shri P.S. Tripathi, learned counsel for the applicant submitted that the applicant belongs to the 'Namasudra' caste, as confirmed by the later caste certificate issued on 04.10.2021 by the SDO, Sadar Sub-Division, Jalpaiguri. He submitted that till the applicant's Post Graduation, he did not avail any of the benefits of reservation, and for the first time he availed such benefit in the ISS Examination which was notified on 21.03.2018. In this Examination, the applicant claimed the benefit of reservation on the basis of the caste certificate dated 29.09.2008, which was obtained by his mother from SDO, Jalpaiguri. He submitted that the applicant and his mother were under a bona fide belief that the certificate was original and legal, and after it was revealed that the said certificate was bogus, they also filed a criminal complaint with the police in that regard. The learned counsel relied upon the offer of appointment issued to the applicant, and submitted that the applicant's appointment offer was subject to the caste/tribe certificate being verified through proper channels, and if the verification revealed that the claim of belonging to SC, ST or OBC was false, his services will be terminated forthwith without assigning any further reason. The learned counsel submitted that though the caste certificate dated 29.09.2008 is a fake one, the applicant's claim that he belongs to SC is genuine, which is supported by the second caste certificate issued by the SDO, Jalpaiguri on 04.10.2021, and that in these circumstances his services could not have been terminated on the ground that he submitted a fake caste certificate dated 29.09.2008. In this regard, the learned counsel relied upon the decision of a Division Bench of the Hon'ble High Court of Delhi in WP(C) No. 11265/2021 in Ex-Ct. Bajrang Lal v. Union of India, decided on 24.02.2022; and the decision of the Hon'ble Supreme Court in J. Chitra v. District Collector and Chairman, State Level Vigilance Committee, Tamil Nadu & others (2021) 9 SCC 811] [LQ/SC/2021/2969 ;] .
7. Learned counsel for the applicant, relying upon Rule 8 of the Indian Statistical Service Rules, 2016, submitted that the applicant's probation for a period of two years is already completed, and as the respondent did not extend this probation within a period of eight weeks after the expiry of the probationary period, he automatically stands confirmed in service, and, therefore, his service could not have been terminated relying upon Rule 5 of the CCS (Temporary Service) Rules, 1965.
8. The respondent by filing counter affidavit, vehemently opposed the OA. It is stated that the applicant was issued provisional offer of appointment on 21.01.2019, and it was made clear to the applicant that his claim for permanent appointment in JTS of the Service would be considered in accordance with the ISS Rules, 2016. Shri Gyanendra Singh, learned counsel for the respondent relied upon Rule 21 of the ISS Examination Rules, 2018, and submitted that candidates seeking reservation must ensure that they are entitled to such reservation as per eligibility prescribed in the Rules/Notice; and further that such candidates should also be in possession of all the requisite certificates in prescribed format in support of their claim as stipulated in the Rules/Notice for such benefits; and that these certificates should be dated earlier than the due date, i.e., closing date of submission of the applications. The learned counsel further relied upon the Examination Notice dated 21.03.2018, and submitted that the last date of submission of applications was 16.04.2018, and, therefore, the caste certificate dated earlier than the said date would only be admissible for availing the benefit of reservation with regard to the candidates appointed through the ISS Examination, 2018. The learned counsel submitted that the applicant sought the benefit of reservation relying upon the caste certificate dated 29.09.2008, and as this certificate was found to be fake upon verification, the applicant's services were rightly terminated during probation period in terms of the offer of appointment; and that in this regard the applicant cannot rely upon the caste certificate which was issued much later on 04.10.2021. In this regard, the learned counsel relied upon the decisions of the Hon'ble Supreme Court in Yogesh Kumar v. Government of NCT of Delhi (2003) 3 SCC 548] [LQ/SC/2003/323] ; and The Chief Regional Officer, Oriental Insurance Co. Ltd. v. Pradip and another [Civil Appeal No. 742 of 2020], decided on 27.01.2020.
9. Contesting the claim of the applicant that he successfully completed the probation period, and, therefore, his services could not have been terminated taking recourse to the CCS (Temporary Service) Rules, 1965, learned counsel for the respondent relied upon the DoP & T office memorandum dated 11.03.2019, whereby the guidelines in relation to probation/confirmation in Central Services issued vide office memorandum dated 21.07.2014 have been further consolidated/modified, and contended that in the absence of confirmation, the period of probation would be double the normal period of the prescribed probation. He submitted that the applicant was never confirmed, and in the absence of any confirmation the probation period would be four years, and his services were terminated under the CCS (Temporary Service) Rules, 1965 on the ground that he secured employment on the basis of fake caste certificate. The learned counsel submitted that since the applicant's services were terminated during probation period, no disciplinary inquiry was necessary to be held.
10. We have gone through the pleadings, i.e., the OA along with the annexures annexed thereto, as well the counter affidavit filed by the respondent. We have also given our anxious thoughts to the submissions advanced by the learned counsel for the respective parties. The applicant has assailed his termination order on two grounds, viz., (1) that his claim that he belongs to the 'Namasudra' caste, which is a Scheduled Caste, is real; and (2) that his services could not have been terminated without holding a disciplinary inquiry.
11. Rule 21 of the ISS Examination Rules, 2018 reads as follows:
"21. Candidates seeking reservation/relaxation benefits available for SC/ST/OBC/PwBD/Ex-servicemen must ensure that they are entitled to such reservation/relaxation as per eligibility prescribed in the Rules/Notice. They should also be in possession of all the requisite certificates 3 in the prescribed format in support of their claim as stipulated in the Rules/Notice for such benefits, and these certificates should be dated earlier than the due date (closing date) of the application."
A bare reading of this rule makes it clear that candidates seeking reservation must be in possession of the requisite certificates in prescribed format in support of their claims, and these certificates should be dated earlier than the due date, i.e., the closing date of receipt of applications. Para 2(b) of the Examination Notice dated 21.03.2018 reads as follows:
"(b) A candidate may compete for any one of the Services only viz. the Indian Economic Service or the Indian Statistical Service, for which he/she is eligible in terms of the rules.
A candidate will be eligible to get the benefit of community reservation only in case the particular caste to which the candidate belongs is included in the list of reserved communities issued by the Central Government. If a candidate indicates in his/her Application Form for Indian Economic Service Examination/Indian Statistical Service Examination that he/she belongs to General Category but subsequently write to the Commission to change his/her category, to a reserved one, such request shall not be entertained by the Commission.
While the above principle will be followed in general, there may be a few cases where there was a gap not more than 3 months between the issuance of a Government Notification enlisting a particular community in the list of any of the reserved communities and the date of submission of the application by the candidate. In such cases the request of change of community from general to reserved may be considered by the Commission on merit. In case of a candidate unfortunately becoming person with benchmark disability during the course of the examination process, the candidate should produce valid documents showing him/her acquiring a disability to the extent of 40% or more as defined under the Rights of Persons with Disabilities Act, 2016 to enable him/her to get the benefits of reservation earmarked for persons with benchmark disability provided he/she otherwise remains eligible for the Indian Economic Service/Indian Statistical Service as per Rule 19 of the Rules of the Indian Economic Service/Indian Statistical Service Examination, 2018.
Candidates seeking reservation/relaxation benefits available for SC/ST/OBC/PwBD/Ex-servicemen must ensure that they are entitled to such reservation/relaxation as per eligibility prescribed in the Rules/Notice. They should also be in possession of all the requisite certificates in the prescribed format in support of their claim as stipulated in the Rules/Notice for such benefits, and these certificates should be dated earlier than the due date (closing date) of the application."
Under clause 3 of the said notification/advertisement dated 21.03.2018, the last date of submission of applications was 16.04.2018 till 1800 hrs.
12. Thus, under the ISS Examination Rules, 2018, and the Examination Notice, the candidates desirous of availing the benefits of reservation were required to be in possession of certificates in support of their claim, and the certificates in that regard should be dated earlier than the due date (closing date of receipt of applications). As stated above, the closing date of receipt of applications under the advertisement dated 21.03.2018 was prescribed as 16.04.2018. The applicant sought the benefit of reservation on the basis of the caste certificate dated 29.09.2008, and this caste certificate was subsequently found to be a fake one. The applicant in order to claim the benefit of reservation for the post advertised under Examination Notice dated 21.03.2018 cannot rely upon the second caste certificate dated 04.10.2021. Under the Examination Rules and the Examination Notice referred to above, what was required is that the candidates ought to be in possession of the caste certificates issued prior to the closing date of receipt of applications, i.e., 16.04.2018. In our considered view, the applicant's services have been rightly terminated when it was found that the caste certificate dated 29.09.2018 was a fake one. The applicant in this regard cannot claim the benefit of the subsequent caste certificate dated 04.10.2021 in the light of the provisions of the Examination Rules and the Examination Notice.
13. The Hon'ble Supreme Court in Yogesh Kumar's case (supra), observed and held that the recruitment to public services should be held strictly in accordance with the advertisement and the recruitment rules, if any, as the deviation from the rules allows entry of ineligible persons and deprives many others who could have competed for the posts.
14. In Chief Regional Officer, Oriental Insurance Co. Ltd. (supra), the Hon'ble Apex Court referred to and approved the following observations of a three-Judge Bench in Chairman and Managing Director, Food Corporation of India v. Jagdish Balaram Bahira : (2017) 8 SCC 670] [LQ/SC/2017/913] :
"48. .....Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained .......
A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter, a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservation is intended...."
15. In Karan Singh Yadav v. Government of NCT of Delhi [SLP (C) No. 19489/2016], the Apex Court held as follows:
"6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inspection itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment."
16. In Bedanga Talukdar v. Saifudaullah Khan & others (2011) 12 SCC 85] [LQ/SC/2011/1311] , the Hon'ble Supreme Court made following observations:
"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."
"32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.
33. In view of the above, the appeals are allowed and the impugned judgment and order dated 4-3-2010 passed in WP(C) No. 950 of 2010 and the impugned judgment and order dated 2-7-2010 passed in WP(C) No. 3382 of 2010 of the High Court are set aside."
17. In the light of the observations of the Hon'ble Apex Court referred to hereinabove, it is unequivocally clear that the eligibility of the candidates will have to be judged with reference to the closing date in the advertisement. It is not even the applicant's case that on the closing date of receipt of applications, he was in possession of the valid caste certificate.
18. At this stage, reference must be made to the decision of the Division Bench of the Hon'ble Delhi High Court in Ex-Ct. Bajrang Lal (supra) on which the learned counsel for the applicant relied upon. We have gone through the said judgment, in our opinion, this judgment is not applicable to the facts and circumstances of the present case. The petitioner before the Hon'ble High Court was allowed to join service on the basis of OBC certificate dated 30.03.2017. The correctness of the said certificate was not in dispute, inasmuch as the same was found to be issued by the proper authority. Insofar as the decision of the Hon'ble Supreme Court in J. Chitra (supra) relied upon by the learned counsel for the applicant is concerned, the Apex Court held that the verification regarding genuineness of the caste certificate is intended to avoid false and bogus claims, and repeated inquiries for verification of caste certificates would be detrimental to the members of the SC and ST. The ratio of this decision, in our considered view, is not applicable to the facts and circumstances of this case.
19. This takes us to consider the second limb of the argument of the applicant, namely, his services could not have been terminated without holding a disciplinary inquiry. The applicant in this regard relied upon Rule 8 of the ISS Rules, 2016, which reads as follows:
"8. Probation.-(1) Every officer appointed to the Service, either by direct recruitment or by promotion in Junior Time Scale shall be on probation for a period of two years:
Provided that the Controlling Authority may extend the period of probation in accordance with the instructions issued by the Government from time to time:
Provided further that any decision for extension of a probation period shall be taken ordinarily within eight weeks after the expiry of the previous probationary period and shall also be communicated in writing to the concerned officer together with reasons for so doing, within the said period.
(2) On completion of the period of probation or any extension thereof, officers shall, if considered fit for permanent appointment, be retained in their appointments on regular basis and be confirmed in due course against the available substantive vacancies, as the case may be.
xx xxx xxx"
The respondents in this regard relied upon the consolidated/modified guidelines in relation to probation and confirmation in Central Services issued vide DoP & T office memorandum dated 11.03.2019 referred to hereinabove, which inter alia states, "A specific order of confirmation should be issued when the case is cleared from all angles". Para 27 of the said OM inter alia states, "The officer will be deemed to have successfully completed the probation period if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation (emphasis added)".
20. Reading of Rule 8 of the ISS Rules, 2016 makes it clear that every officer appointed to the Service in JTS shall be on probation for a period of two years, and this probation may be extended in accordance with the instructions issued by the Government from time to time. The office memorandum dated 11.03.2019, in our opinion, is relevant inasmuch as it contains consolidated instructions regarding confirmation of the probation period. Thus, in our considered view, Rule 8 of the Rules of 2016 is required to be read along with DoP & T office memorandum dated 11.03.2019. A conjoint reading of the above Rule and the office memorandum would make it clear that in the absence of confirmation, expiry of the probation period would be double the prescribed probation. The applicant joined the ISS Training Academy on 05.02.2019 and his services were terminated resorting to the CCS (Temporary Service) Rules, 1965, vide order dated 24.06.2022, i.e., much before expiry of the probationary period, which he had to undergo in the absence of confirmation, in terms of Rule 8 of the ISS Rules 2016 read with office memorandum dated 11.03.2019. There is no order confirming the applicant in service, and in the absence of confirmation, the probation would be four years, i.e., double the normal period of prescribed probation. During this period, since the respondents found that the applicant secured the job on the basis of fake caste certificate, they were within their jurisdiction to terminate the applicant's services resorting to the CCS (Temporary Service) Rules, 1965, in the light of the provisional appointment order of the applicant which clearly stipulated that the appointment would be subject to caste/tribe certificate being verified through proper channels, and if the verification reveals that his claim of belonging to SC/ST/OBC, as the case may be, is false, his services would be terminated without assigning any reason and without prejudice to such action as may be taken under the provisions of the IPC for production of false certificate.
21. Taking the totality of the facts and circumstances into consideration, we do not find any merit in the present Original Application. Same is found to be devoid of any substance and, therefore, is dismissed. There shall be no order as to costs.
Pending MAs also stand disposed of.
