Jammu, March 26: In SWP No. 491/2009 titled Mohd Taj V/s J&K State Forest Corporation and others after hearing HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ordered as under:-
1. The petitioner, through the medium of present petition, has challenged SFC order No. 72 of 2000 dated 13.06.2000 whereby it has been provided that the petitioner is not entitled to draw pay in the grade of Supervisor-II, thereby denying him salary w.e.f. January 1994 to December 1996.
Challenge has also been thrown to SFC order No. 379 of 2008 dated 15.10.2008 whereby promotion granted to the petitioner as Assistant Supervisor (Supervisor-II) in terms of SFC order No. 204 of 1993 dated 30.04.1993, has been withdrawn.
2. As per case of the petitioner, he was appointed as Field Assistant in J&K State Forest Corporation in the year 1981 and was posted in Rajouri Division of the Corporation. On the basis of the recommendations of the Departmental Promotion Committee, the petitioner was promoted to the post of SWP No. 491/2009 Page 2 of 10 Assistant Supervisor in the pay scale of Rs. 1200-40-1440-EB-50-2140 in terms of order dated 30.04.1993(supra).
3. It appears that a complaint came to be filed against the petitioner alleging that he had produced a forged matriculation certificate with the Corporation for getting promotion to the post of Assistant Supervisor.
An FIR for offences under Sections 467, 468,471,420 RPC was registered against the petitioner and the challan came to be filed against him before the Court of learned Sessions Judge, Rajouri on 30.09.1994. However, vide judgment dated 14.11.1995, passed by the learned Sessions Judge, the challan was dismissed and the petitioner was acquitted of the charges.
4. It seems that during pendency of the criminal proceedings before the Court of learned Sessions Judge, Rajouri, on the basis of an order issued by respondent No. 2, pay of the petitioner was stopped w.e.f. January 1994 to December 1996. Upon his acquittal, the petitioner filed writ petition bearing SWP No. 294/2000 before this Court seeking release of his salary for the aforesaid period. On 06.03.2000, a direction was issued by this Court to the respondents to look into the grievance of the petitioner.
5. In compliance with the aforesaid order, respondent No. 2 issued order No. 72 of 2000 dated 13.06.2000 whereby the claim of the petitioner for salary w.e.f. January 1994 up to December 1996 was held to be not tenable.
Another Order bearing No. 76 of 2000 dated 19.06.2000 came to be issued by the respondents whereby the petitioner was placed under suspension and Regional Manager, West, was appointed as an Enquiry Officer to conduct the preliminary enquiry into the allegation that the petitioner had managed his promotion from the level of Field Assistant to the level of Assistant Supervisor SWP No. 491/2009 Page 3 of 10 (redesignated as Supervisor-II) on the basis of a forged matriculation certificate.
6. On 20.12.2004, order bearing No. 220 of 2004 came to be issued by respondent No. 4 whereby the petitioner was reinstated and it was further directed that the matter relating to promotion of the petitioner from the post of Field Assistant to the post of Supervisor-II shall be placed before the Departmental Promotion Committee for taking a decision whether the petitioner should continue on the promoted post or he should be reverted to his original post.
7. On 31.03.2004, a show cause notice was issued to the petitioner by respondent No. 2 whereby he was asked to show cause as to why his promotion to the post of Assistant Supervisor (Supervisor-II) granted vide SFC Order dated 30.04.1993 (supra) be not withdrawn and a fine of Rs. 500 for misrepresentation of facts be not imposed and also why a criminal case for cheating and fraud be not instituted.
The said show cause notice was responded to by the petitioner. The respondents, after considering the reply filed by the petitioner, issued impugned order dated 15.10.2008 (supra) whereby promotion granted to the petitioner vide order dated 30.04.1993 (supra) has been withdrawn.
8. The petitioner has challenged the impugned orders (supra) on the grounds that the respondents have not conducted any inquiry before imposing penalty of withdrawing his promotion and no opportunity of hearing has been granted to him.
It has been contended that at the time when the petitioner was promoted to the post of Supervisor-II, there were no Recruitment Rules in place and even an under-matric official could be promoted to the said post. It has been further contended that promotion of the petitioner to the post of SWP No. 491/2009 Assistant Supervisor (Supervisor-II) was cleared by the DPC and the same was in accordance with the practice in vogue at the relevant time.
It has also been contended that the petitioner did not produce any document to support his claim that he is a matriculate. It has been contended that once the petitioner was acquitted of the charges in a full-dressed criminal trial, the respondents could not have withheld his salary nor could they withdraw his promotion on the basis of the same allegation which was the subject matter of the criminal trial.
9. The respondents have contested the writ petition by filing their reply in which they have submitted that the petitioner secured promotion from the post of Field Assistant to the post of Supervisor-II on the basis of a fake matriculation certificate. It has been submitted that an FIR came to be lodged against the petitioner in this regard. It has further been submitted that during verification, it was found that the roll number against which the petitioner had claimed to have passed the matriculation examination pertains to somebody else and that the petitioner had never appeared in the examination.
10. According to the respondents, clearance of the petitioner’s case by the DPC was based on a fake matriculation certificate, and, therefore, his promotion was withdrawn by the DPC in terms of the decision taken on 1st/2nd August 2008. It has been contended that the petitioner is not entitled to draw any pay in the grade of Supervisor-II and, as such his claim for salary w.e.f. January 1994 to December 1996 is not tenable. It has been contended that findings of the criminal Court are not binding upon the respondents, who are well within their power to hold a departmental inquiry.
It has been submitted that the show cause notice dated 31.03.2004 was issued to the petitioner after holding an inquiry and after giving him an opportunity of hearing. It has further been submitted that after considering the petitioner's reply to the show cause notice, the competent authority decided to pass the impugned orders, which are well reasoned. It has been contended that the rules of natural justice have been followed by the respondents while passing the impugned orders.
11. Pursuant to order dated 18.04.2024 passed by this Court, a supplementary affidavit came to be filed by the respondents. In the supplementary affidavit, it has been submitted that the eligibility for promotion to the post of Assistant Supervisor is dependent upon holding matriculation as qualification, but the petitioner had produced a fake matriculation certificate, thereby misleading the respondent-Corporation.
It has been further submitted that an inquiry was held with regard to the validity of the matriculation certificate produced by the petitioner and upon inquiry from the Chairman, Bihar Vidyalaya Samiti, Patna, it was found that the certificates produced by the petitioner are fake and that he had never appeared in the matriculation examination. According to the respondents, a promotion earned on the basis of a fake document does not create any right in his favour and, as such, principles of natural justice are not attracted to his case. 12. I have heard learned counsel for the parties and perused record of the case including the record produced by the respondent-Corporation.
13. It is not in dispute that the petitioner was granted promotion to the post of Assistant Supervisor from the post of Field Assistant on the basis of recommendations of the DPC, whereafter order dated 30.04.1993 (supra) came to be issued.
According to the respondents, the petitioner has earned the said promotion on the basis of a fake matriculation certificate, as such, they are well within their powers to withdraw the said promotion granted to the petitioner.
It is also not in dispute that prior to coming into force of J&K State Forest Corporation Employees (Conditions of Service) Regulations, 1993 (hereinafter referred to as the Regulations of 1993), there were no Rules regulating the service conditions of the employees of the Corporation. It is pertinent to mention here that the Regulations of 1993 came to be issued vide SFC Order No. 475 of 1993 dated 14.12.1993 and the same came into force from the date of their publication in the official Gazette, which is 06.01.1994. It is an admitted fact that promotion of the petitioner as Assistant Supervisor has taken place prior to coming into effect of these Regulations.
14. As per the Regulations of 1993, the basic qualification for appointment as Field Assistant is Matric. For direct recruitment to the post of Supervisor Grade-II, a candidate must possess the qualification of Higher Secondary Part-II. The Regulations further provide that promotion to the post of Supervisor Grade-II can be made from Matriculate Field Assistants having 8 years of service. Since these Regulations were not in force at the time when the petitioner was granted promotion to the post of Assistant Supervisor, therefore, the eligibility qualifications provided in the Regulations may not be of any significance for deciding the present case.
15. The respondents have claimed that even before coming into force of Regulations of 1993, only Matriculate Field Assistants were eligible for being promoted as Assistant Supervisors.
However, in the impugned order dated 15.10.2008 (supra), it is noted that the enquiry officer in his report dated 04.01.2002 had mentioned that the management had not considered matriculation qualification as a criteria for promotion to the post of Assistant Supervisor, and the Corporation had also promoted another under-matric employee in Kashmir. The learned Sessions Judge, Rajouri, while acquitting the petitioner of the charges relating to production of a fake matriculation certificate, has also noted that the petitioner was not promoted as Assistant Supervisor on the basis of a matriculation certificate.
The Court has further noted that the service book of the petitioner does not contain any entry that he has been promoted on the basis of having passed the Matriculation examination. Since Regulations of 1993, which provide Matriculation as the eligibility criteria for appointment as a Field Assistant and for promotion as Assistant Supervisor, were not in vogue, therefore, in the absence of any executive instructions or any other circular of the respondent-Corporation that would go on to show that acquisition of qualification of Matriculation was necessary for promotion to the post of Assistant Supervisor, it cannot be stated that an under-matric Field Assistant could not have been promoted to the post of Assistant Supervisor prior to coming into force of the Regulations of 1993.
16. The record clearly shows that another employee of Kashmir Division, who was under-matric, has also been promoted as Assistant Supervisor prior to coming into force of the Regulations of 1993. In the impugned order dated 15.10.2008 (supra), respondent No. 2 has tried to meet this aspect of the matter by recording that the matriculation certificate of the employee from Kashmir Division, namely Sh. Mohd. Iqbal Najar, is under process of verification.
However, neither in the said order nor in the record produced by the respondents and not even in the pleadings filed by the respondents, there is anything to even remotely suggest as to what action has been taken in the case of Mohd. Iqbal Najar.
17. Another reason that has been assigned by the respondents while withdrawing the promotion of the petitioner is that there was a precedent of promoting only Matriculate Field Assistants even prior to coming into force of the Regulations of 1993, and that many under-matric Field Assistants who were senior to the petitioner were not promoted.
However, the respondents have not furnished the particulars of those senior under-matric Field Assistants who were denied promotion, nor have they furnished the particulars of the cases in which under-matric Field Assistants have been denied promotion prior to coming into force of Regulations of 1993, so as to substantiate their case relating to existence of such a precedent.
In the absence of any such particulars and material, it can safely be stated that prior to coming into force of the Regulations of 1993, it was not mandatory to acquire the qualification of Matriculation for being eligible for promotion to the post of Assistant Supervisor. It is for this reason that the Departmental Promotion Committee, even in the absence of a matriculation certificate, promoted the petitioner to the post of Assistant Supervisor in terms of order dated 30.04.1993 (supra). 18. That takes us to the question as to whether the petitioner had produced a fake matriculation certificate before the respondents.
If we have a look at the judgment of the criminal Court, the subject matter of the challan was a certificate under Roll No. 520805 of 1985 issued by the J&K State Board of School Education, whereas the inquiry which the respondents have conducted is in respect of certificate bearing No. 85-C/135750 of Bihar School Examination Board, Marks List No. 1M/93/6080 dated 30.06.1995 of Bihar School Examination Board, and Migration Certificate No. 509 dated 25.07.1995 of Bihar School Examination Board.
All these documents have been issued in the year 1995, whereas the petitioner was promoted in the year 1993. Therefore, it is impossible that the petitioner would have produced these certificates for securing promotion to the post of Assistant Supervisor in the year 1993 when these certificates were not even in existence.
This Court fails to comprehend as to how the Enquiry Officer proceeded to determine authenticity of the certificates issued by the Bihar School Examination Board when, as per the case of the respondents, the petitioner had obtained promotion on the basis of a Matriculation examination certificate issued by J&K State Board of School Education, which was the subject matter of challan decided by the criminal Court on 14.11.1995.
19. The matter in controversy is whether the petitioner had secured promotion in the year 1993 on the basis of a fake Matriculation certificate. He may have acquired a fake Matriculation certificate in the year 1995, but that does not have any bearing upon his promotion secured in the year 1993, as the said alleged fake document was not even in existence in the year 1993 and, therefore, could not have been a basis for his promotion. Thus, the very basis of the inquiry conducted by the respondents is misconceived.
If at all the respondents were having jurisdiction to conduct their own inquiry as regards the authenticity of the certificate purported to have been produced by the petitioner at the time of his promotion in the year 1993, even after his acquittal in the criminal case, the respondents had to verify the authenticity of the matriculation certificate that was the subject matter of challan before the criminal Court. They could not have proceeded to hold a departmental inquiry in respect of a certificate which was not in existence at the time when the petitioner was granted promotion.
The whole premise of the inquiry conducted by the respondents is misconceived. 20. From the foregoing discussion, it is clear that in the year 1993, when the Regulations of 1993 were not in force, the petitioner was promoted to the post of Assistant Supervisor despite being under-matric, as at the relevant time there was no requirement of qualification of Matriculation for promotion to the post of Assistant Supervisor. It is also clear that the respondents have failed to substantiate with any material their contention that there was a precedent that under-matric Field Assistants were not being considered for promotion to the post of Assistant Supervisors as they have failed to provide any details with regard to those under-matric Field Assistants senior to the petitioner, who were denied promotion. In fact, even the record produced by the respondents does not contain any such details.I
n these circumstances, the action of the respondents in withdrawing his promotion and withholding his salary as an Assistant Supervisor from January 1994 to December 1996 is not tenable in law.
21. Accordingly, the writ petition is allowed and the impugned orders dated 13.06.2000 (supra) and 15.10.2008 (supra) are quashed.
The respondents are directed to release salary of the petitioner as Assistant Supervisor (Supervisor-II) w.e.f. January 1994 to December 1996 and continue to pay salary to him in the pay scale of Assistant Supervisor (Supervisor-II) along with all other consequential benefits.
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