Pujan Prasad(Dead) by LRS Vs. State of U.P. & ANR.  INSC 1763 (30
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3179
OF 2007 Shiv Pujan Prasad (Dead) by Lrs. ... Appellants Versus State of U.P.
& Anr. ... Respondents
This appeal is being prosecuted by the widow and children of one
Shiv Pujan Prasad who died pending this appeal. On the eve of his retirement,
as an Executive Engineer, he was served with an order of dismissal vide Office
Memo dated 29.7.2005 dismissing him from service following a disciplinary
enquiry initiated under Rule 7 of the U.P. Government Servant (Discipline and
Appeal) Rules, 1999.
Shiv Pujan Prasad challenged the above mentioned order before the
High Court of Allahabad, in Writ Petition No.5709/2005 and also sought a
direction to disburse the entire post-retiral benefits including the provident
fund, leave encashment, gratuity, group insurance, etc. and also the pension due
Shiv Pujan Prasad was initially appointed as an Overseer in the
Public Works Department of the State of Uttar Pradesh on 25.06.1971.
entering service he produced a certificate dated 22.02.1971 issued by the
Sub-Divisional Magistrate, Chakia, showing that he belonged to `Manjhi'
(Majhwar) Community, a scheduled caste. The post of Overseer was subsequently
designated as Junior Engineer and he was confirmed in that post on 14.01.1974.
On 01.04.1978, Shiv Pujan Prasad was awarded selection grade. Later, on
27.1.1982, he was promoted as an Assistant Engineer, a post reserved for
scheduled castes. The Chief Engineer, however, subsequently passed an order
reverting him to the post of Junior Engineer on the ground that he did not
belong to the scheduled caste community. Aggrieved by the order of reversion,
Shiv Prasad preferred Writ Petition No.4080 of 1984 before the Lucknow Bench of
the Allahabad High Court which was dismissed on 24.08.1984. Shiv Pujan Prasad
brought up the matter before this Court, by way of appeal by special leave, in
Civil Appeal No.2964/1985. It was contended before this Court that the caste
status of Shiv Pujan Prasad was determined without giving him any effective
opportunity to submit his defence. Counsel appearing for the State of Uttar
Pradesh fairly conceded to that fact. This Court, therefore, set aside the
impugned order and directed the District Collector, Varanasi, 3 to hold a fresh
enquiry after giving reasonable opportunity to Shiv Pujan Prasad to defend his
case. Shiv Pujan Prasad was also permitted to hold the post of Assistant
Engineer, and it was ordered that his further posting would be governed by the
outcome of the enquiry which was directed to be completed within two months.
Pursuant to the directions of this Court, a fresh inquiry was held
by Collector, Varanasi, through Sub-Divisional Officer, Chakiya, Varanasi.
found that Shiv Pujan Prasad belonged to "Manjhi" (Majhwar) by caste,
which is a scheduled caste. A copy of the report dated 25.8.1985 was submitted
by the Sub-Divisional Magistrate to the District Magistrate, Varanasi. The
District Magistrate, Varanasi, referring to the judgment of this Court in Civil
Appeal No.2964 of 1985 forwarded a communication to the Registrar of Supreme
Court of India, enclosing a copy of the order passed in pursuance of the
directions of this Court. A copy of the letter was also forwarded to the
Special Secretary, Government of Uttar Pradesh, Public Works Department,
Section 8, Lucknow.
Shiv Pujan Prasad had to file a contempt petition before this
Court since authorities did not permit him to function as Assistant Engineer in
spite of the determination of his caste as ordered by this Court. The 4
Respondents had to express their unconditional apology for not complying with
the order of this Court. Accepting the apology, the contempt proceedings were
dropped by this Court vide order dated 27.11.1987, Shiv Pujan Prasad was
permitted to resume work as an Assistant Engineer and continued in service. He
was promoted as Executive Engineer vide order dated 02.02.1985.
The State Government later received a complaint dated 03.02.1998
from the General Secretary of an Association called Kisan Sangharsh Samiti,
Mirzapur, Sonebhadra, questioning the caste status of the appellant. Another
complaint was registered before the Uttar Pradesh Schedule Caste and Schedule
Tribe, Commission, by the All India SC, ST, Backward Classes and Minority
Employees Welfare Association, Pipri, on 20.04.1999. The Commission ordered yet
another enquiry on the caste status of Shiv Pujan Prasad under Section 11 of
U.P. Schedule Caste and Schedule Tribe Commission Act, 1995. Enquiry revealed
that Shiv Pujan Prasad belonged to "Mallah" community which is a
backward community and that he did not belong to "Manjhi" community
which is a Scheduled Caste. Pointing out that Shiv Pujan Prasad had obtained
appointment on the basis of forged caste certificate, an FIR was lodged against
him by the Department for an offence punishable under Section 420 IPC. Shiv
Pujan 5 Prasad was then placed under suspension pending disciplinary
proceedings. The Enquiry Report held that Shiv Pujan Prasad got appointment on
the basis of forged caste certificate in which the caste "Manjhi" was
written in place of "Mallah" and got several promotions in the
service. The Government accepted the report and dismissed Shiv Pujan Prasad
from service on 29.7.2005, two days prior to the date of his superannuation.
The correctness of that order is in issue before us.
Shri Dinesh Dwivedi, learned senior counsel appearing for the
appellants submitted that the respondents have committed a grave error in
dismissing Shiv Pujan Prasad from service few days before his retirement.
counsel submitted that the correctness or otherwise of the certificate issued
on 22.02.1971 by the District Magistrate holding that Shiv Pujan Prasad
belonged to "Manjhi" community, which was a Scheduled Caste, was the
specific issue before this Court in Civil Appeal No.2964/1985. This Court ordered
a fresh enquiry by the Collector, Varanasi, which was endorsed by the learned
counsel appearing for the State Government as well. Consequently, the Collector
was directed to conduct a fresh enquiry with regard to the genuineness of the
caste certificate issued on 22.02.1971. Enquiry revealed that the certificate
issued on 22.02.1971 was in order. Later Shiv Pujan Prasad was also 6 promoted
as Assistant Engineer and thereafter as Executive Engineer. The matter,
therefore, attained finality. In such a situation learned counsel submitted
that there was no justification in re-opening an issue at the instance of the
third party, that too after a decade.
Shri Pramod Swarup, learned senior counsel for the respondents
submitted that Shiv Pujan Prasad was guilty of forging the caste certificate,
thereby entered service in the PWD Department and, accordingly, got further
promotions in service. Learned senior counsel submitted that the respondents
were therefore justified in conducting a detailed enquiry in spite of the earlier
enquiry conducted on the basis of the direction of this Court.
We fail to see how the State Government can conduct a fresh
enquiry when this Court had specifically directed the District Collector to
conduct an enquiry to determine the caste status of Shiv Pujan Prasad, who
found that he belonged to "Manjhi" caste which was accepted by the
Department as a consequence of which he was taken back and continued in service
and was even given further promotions. Further, the Division Bench of the
Allahabad High Court has also recorded a clear finding that Shiv Pujan Prasad
had not forged his caste certificate dated 25.08.1985 7 showing his caste as
"Majhwar" or "Manjhi" belonging to the scheduled caste and
that he had not forged his earlier caste certificate issued on 22.02.1971. The
Division Bench also recorded a clear finding rejecting the contention of the
respondents that Shiv Pujan Prasad had earlier obtained caste certificate
fraudulently by playing fraud or misrepresenting the authorities and held that
such a contention was wholly misconceived and misplaced. The High Court also
expressed the opinion that the criminal prosecution initiated against Shiv
Pujan Prasad on the basis of the report of the Sub-Divisional Magistrate dated
30.03.2000 was not justified under law.
findings recorded by the Division Bench have not been challenged by the
respondents before this court and hence those findings have become final. In
such a situation, we fail to see how the respondents can re-open the entire
issue which was given a quietus in the year 1985 that too at the instance of a
third party. On the strength of the order passed by the authorities, Shiv Pujan
Prasad was promoted as Assistant Engineer and later as Executive Engineer and
few days before his retirement he was dismissed from his service, which in the
facts and circumstances of this case was totally unjustified.
We have already indicated that while this matter was pending
before this Court, Shiv Pujan Prasad died and, therefore, wife and children 8
are claiming entire post retiral benefits including the provident fund, leave
encashment, gratuity, group insurance, etc. and also the pension due to him
which have been denied to them, which they are entitled to get. For the reasons
stated above we are inclined to allow this appeal and set aside the judgment of
the High Court passed in Writ Petition No.5709/2005 and also the order of
dismissal dated 29.07.2005. There will be a further direction to the
respondents to disburse entire post-retiral benefits including the provident
fund, leave encashment, gratuity, group insurance, etc. and also the pension
due to Shiv Pujan Prasad to the appellants forthwith.
We record these findings in view of the peculiar facts and
circumstances of the case and that this judgment shall not be treated as a
final determination of the caste status with reference to the legal heirs of
Shiv Pujan Prasad. Appeal is allowed, as above.
.................................J. (R.V. Raveendran)
.................................J. (K.S. Radhakrishnan)
November 30, 2009.