Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Arun Kumar, learned counsel for the respondent-appellants and Shri R.K. Ojha, learned Senior Counsel assisted by Shri Sanjay Kumar Dubey, learned counsel for the petitioner-respondent. Learned Standing Counsel appears for State respondent.
The exemption application stands allowed. Let the appeal be given regular number.
Present special appeal has been preferred assailing the order dated 16.12.2020 passed by learned Single Judge in Writ Petition No.12174 of 2020 (Krishna Nand Rai v. State of U.P. & Ors.), which for ready reference is quoted as under:-
"Heard Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri Sanjay Kumar Dubey, learned counsel for the petitioner and learned Standing Counsel for the State.
By means of this writ petition, the petitioner has prayed for quashing the order dated 30.06.2020 passed by District Basic Education Officer, Gorakhpur by which the petitioner has been suspended.
Learned counsel for the petitioner has submitted that the petitioner has been appointed on the post of Assistant Teacher in Primary School vide order dated 03.1.2006 passed by District Basic Education Officer, Gorakhpur. The appointment of the petitioner was made under the quota of "Dependent of Freedom Fighter" on the basis of dependents of Freedom Fighter Certificate issued by Village Development Officer dated 06.09.2001. Subsequently, the petitioner was promoted on the post of Assistant Teacher in Purva Madhyamik Vidyalaya Poudhariya, Block Badhalganj, District Gorakhpur vide order dated 29.06.2020 and since then the petitioner is working on the said post. On compliant being made by the villagers, the certificate of dependent of freedom fighter of petitioner was cancelled by District Magistrate, Gorakhpur vide order dated 24.04.2020. Consequently, the District Basic Education Officer Gorakhpur suspended the petitioner vide order dated 30.06.2020, hence, this writ petition.
Learned counsel for the petitioner has further submitted that the aforesaid certificate of dependent of freedom fighter issued by Additional District Magistrate (Administration) Gorakhpur after calling for a report from the authority concerned and in the said certificate it is also mentioned that great grand son of petitioner late Ram Chandra Rai was freedom fighter. Further submission is that according to Law at present, the benefit of being dependent of freedom fighter is available only to descendants up to the stage of grand son but the District Basic Education Officer suspended the petitioner vide order dated 30.06.2020 by contending that the petitioner obtained appointment by way of playing fraud on the basis of forged certificate.
Learned counsel for the petitioner has further submitted that the certificate of dependent of freedom fighter issued by A.D.M. Gorakhpur has wrongly been cancelled by the authority concerned and placing reliance on the same, petitioner has been wrongly suspended against the law laid down by Apex Court in the case of Dattu S/O Namdev Thakur vs. State of Maharashtra and others, 2020 AIR SCW 203. It is further contended that the impugned suspension order has been passed without any notice or opportunity of hearing to the petitioner.
It is further submitted that it was incumbent upon the respondents where the employee was alleged to have obtained appointment on forged dependent certificate, to refer the matter to the District Level Scrutiny/Verification Committee constituted in each State to verify the genuineness of the said certificate.
In that view of the matter, without prejudice to the merits of the case, the writ petition is disposed of with the direction to the respondents to refer the matter to the District Level Scrutiny Committee which would examine all aspects, and return a finding on the genuineness of petitioner's certificate. Based upon outcome of such report, it would be open for the authority concerned to pass a fresh order. Since sufficient time has already been lapsed, the District Level Scrutiny Committee shall take up the matter on priority and conclude the enquiry, preferably within a period of three months from the date such reference is made by the employer. Till the matter is got investigated the impugned suspension order date 30.06.2020 passed by District Basic Education Officer, Gorakhpur shall be kept in abeyance."
Learned counsel for the appellants has challenged the order impugned on the ground that the same is in teeth of Division Bench judgment of this Court dated 29.9.2020 passed in Writ-C No.13427 of 2020 (Krishna Nand Rai v. State of U.P. & Ors.). In the said case the petitioner had challenged the order dated 24.6.2020 passed by District Magistrate, Gorakhpur whereby the petitioner's certificate of being a dependent of freedom fighter dated 6.9.2001 has been cancelled on the ground that the benefit of being dependent of freedom fighter is available only to descendants upto the stage of grandson and not beyond it and as the petitioner was great grand son of late Ram Chandra Rai, who was a freedom fighter, his certificate has been cancelled. The said writ petition was dismissed on 29.9.2020 giving liberty to the petitioner to press for extending the benefit of judgment of Hon'ble Supreme Court in Dattu Namdev Thakur, 2012 AIR SCW 203. In Dattu Namdev Thakur (Supra) the Supreme Court did not interfere with the findings of the High Court upholding order of the Caste Scrutiny Committee cancelling the case certificate of the petitioners. However, while dismissing the special leave petition, the Supreme Court issued certain directions to safeguard the interest of the petitioners before it by observing as under:-
"9. Accordingly, while dismissing all the three Special Leave Petitions, we direct that whatever advantage the three petitioners in the three Special Leave Petitions, may have derived on the basis of their 'Caste Certificates', shall not be disturbed and the cancellation of their respective 'Caste Certificates' will not deprive them of the benefits which they have already enjoyed. However, we also make it clear that none of the three petitioners in the three respective Special Leave Petitions, will be entitled to take any further advantage of reservation in future, either for studies or for employment. Following the judgment in Swati's case, we also direct that if the petitioners in the 2nd and 3rd Special Leave Petitions, have obtained any concession by way of reduction in fees, as a reserved candidate, they will have to make good the same by paying the difference in fees that is being paid by general candidates. Such payment has to be made within a period of six months and in default of such payment, this order will cease to have any effect."
In this backdrop, the order dated 29.9.2020 has been passed by the Division Bench in Krishna Nand Rai (Supra), the operative portion of which is quoted as under:-
"............The petitioner, it seems, is working as Assistant Teacher in a Primary School run by Basic Shiksha Parishad. If any action is taken by the employer on the ground of cancellation of the certificate of 'dependent of freedom fighter', it would always be open to the petitioner to press for extending the benefit of the judgement of the Supreme Court in Dattu Namdev Thakur being given to him. Since at this stage, the only order challenged before us is that of cancellation of the certificate, therefore, with the above liberty reserved in favour of the petitioner, the instant petition stands dismissed."
Learned counsel for the appellants submits that certificate has been cancelled vide order dated 24.6.2020 passed by the District Magistrate and the petitioner has been placed under suspension vide order dated 30.6.2020. The said suspension order has been challenged in the writ petition in question, wherein by the order impugned the matter has been relegated to the District Level Scrutiny Committee. He submits that so far as District Level Scrutiny Committee, such discretion was not available to learned Single Judge, once the Division Bench has already closed the issue of certificate vide order dated 29.9.2020 and only leave was given to the petitioner to press the relief before the competent authority as per Dattu Namdev Thakur (Supra), in case any disciplinary action has been initiated. Therefore, there was no question to stay the suspension order till the disposal of matter, which has been referred to the District Level Scrutiny Committee.
Per contra, Shri R.K. Ojha, learned Senior Counsel appearing for the petitioner-respondent has also accepted to this extent that so far as direction to the District Level Scrutiny Committee, the same cannot sustain. At present the only relief has to be pressed before the competent authority to extend the benefit of Dattu Namdev Thakur (Supra). He submits that in case the matter is relegated to the District Basic Education Officer, Gorakhpur, as per the leave accorded by the Division Bench the petitioner would definitely press the relief in terms of the decision of Hon'ble Apex Court in Dattu Namdev Thakur (Supra). He submits that inspite of the order dated 16.12.2020 passed by learned Single Judge till now the salary of the petitioner has not been released. He further submits that the petitioner would extend all cooperation in the ongoing enquiry in case suspension is kept in abeyance.
In the aforesaid facts and circumstances, we are of the considering opinion that the relief accorded by learned Single Judge in the operative portion of the impugned judgment qua referring the matter to District Level Scrutiny Committee and stay of suspension order till the decision of District Level Scrutiny Committee is in direct conflict with the judgment dated 29.9.2020 passed by the Division Bench and as such the same cannot sustain and is accordingly set aside. Without expressing any opinion on the merits of the case, the special appeal stands disposed of asking the District Basic Education Officer, Gorakhpur to finalise the proceeding in question in response to the order dated 30.6.2020 and in case the petitioner presses relief as per the leave accorded by the Division Bench of this Court dated 29.09.2020, the same may be considered accordingly. The petitioner shall extend all cooperation in the ongoing enquiry. The suspension in question would also be subject to final outcome of the said proceeding.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the appellants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.1.2021 SP/