- (1.) SABHAJEET Yadav, J. By this petition the petitioner has challenged the order dated 28. 11. 2007 (Annexure-6 of the writ petition) passed by Senior Superintendent, Mandal Karagar, Moradabad-respondent No. 3, whereby the pe titioner has been dismissed from service while working as Bandi Rakshak in the said jail (Karagar ).
(2.) IT is stated that in the year 1992 the petitioner was initially appointed as 'bandi Rakshak' after due proces of selection. Before his appointment he had applied for selection in question as reserved category candidate of scheduled tribe and on the basis of his selection, appointment letter dated 8. 8. 1992 was issued by Superintendent, Mandal Karagar, Moradabad. A copy of appointment letter dated 8. 8. 1992 is on record as Annexure-3 of the writ petition. IT is stated that the petitioner is permanent resident of village Merapur Gujrati, Post Ratanpur Bara, P. S. Allou Tehsil Bhongaon, District Mainpuri which is evident from his domicile certificate contained in Annexure-1 of the writ petition. At the time of selection he has passed High School examination and he was fully eligible and qualified to be appointed on the post of 'bandi Rakshak' in the year 1992. IT is also stated that the petitioner belongs to 'lodh' caste and in the District Mainpuri and Fatehpur 'lodh' caste has been accorded the status of 'vimukta Jaati' (denotified caste) and is recognised as scheduled tribe in State of Uttar Pradesh. IT is further stated that caste 'lodh' is synonymous of the caste 'lodhi'. A photo stat copy of petitioner's Vimukta Jaati' certificate is on record as Annexure-2 of the writ petition. IT is stated that in pursuance of his appointment letter dated 8. 8. 1992 the petitioner has submitted his joining report to the Superintendent District Jail, Bijnor on 18. 8. 1992 which was duly accepted and he was permitted to join his service in the District Jail, Bijnor on 10. 8. 1992 itself. Since then the petitioner is continuously serving on the post of 'bandi Rakshak' while posted at different places and during his entire service career the work and conduct of the petitioner has all along been excellent and to the entire' satisfaction of his superi ors without there being any complaint against him from any corner and no disci plinary proceeding has ever been held against him in the past. All of a sudden, during his posting in Mandal Karagar, Moradabad, the petitioner was served with a show cause notice dated 1. 8. 2007 by the Senior Superintendent District Jail, Moradabad to the effect that as per directions of the Director General Prison respondent No. 2 dated 13. 6. 2007 the educational qualification and other docu ments of the service cadre of 'bandi Rakshak' cadre were again verified and petitioner's documents pertaining to his educational qualification were got verified from the Secretary, Board of High School and Intermediate Education, Allahabad and his caste certificate was also got verified from the District Magistrate, Lucknow who has informed that as per report of the Tehsildar, Sadar, Lucknow no such caste certificate of Scheduled Tribe has been issued to the petitioner. In that view of the matter the caste certificate of the petitioner is forged and his appointment is illegal and he should show cause as to why he should not be dismissed from service. It is further stated that in response to the show cause notice dated 1. 8. 2007 the petitioner sent his reply on 12. 8. 2007 through registered post inter alia stating therein that he is not in a position to give proper and effective reply of show cause notice for want of copy of alleged caste certificate. It is further stated in his reply dated 12. 8. 2007 that he was never given any opportunity to participate in the alleged ex parte inquiry held by Tehsildar, Sadar Lucknow before submitting his alleged inquiry report and copy of the alleged ex parte inquiry report submitted by him has also not been furnished to the petitioner alongwith show cause notice. The petitioner belongs to caste 'lodh' which is scheduled tribe in District Fatehpur and Mainpuri and he had mentioned his caste 'lodh' in his application form for his selection and 'lodh' caste is synonymous of 'lodhi' caste hence he is not guilty of any misrepresentation/misconduct. The petitioner is resident of Bhogaon Tahsil of District Mainpuri but no inquiry regarding his caste and caste certificate has been made from District Mainpuri. In his service book also his caste has been mentioned as 'lodh', hence the copies of caste certificate, alleged ex parte in quiry report of Tehsildar, Sadar, Lucknow and statement, if any, recorded during the alleged inquiry be supplied to him so that he may give proper, complete and effective reply to the show cause notice. It is further stated that the reply of the petitioner dated 12. 8. 2007 was received in the office of Senior Superintendent, District Jail, Moradabad on 17. 9. 2007, but without furnishing the copy of afore said documents to the petitioner the Senior Superintendent, Mandal Karagar, Moradabad has-passed the impugned order dated 28. 11. 2007 dismissing the petitioner from service. Being aggrieved against the impugned order of dismissal he filed a writ petition before Lucknow Bench of this Court being Writ Petition No. 5301 (SIS) of 2007, Ranvir Singh v. Stefe of U. P. and others, which was dismissed by Lucknow Bench of this Court vide order dated 31. 8,2007 on the ground that cause of action has not arisen within the territorial jurisdiction of Lucknow Bench of this Court and liberty was given to the petitioner to file petition before this Court. Contrary to it, the stand taken in the counter affidavit filed on behalf of respondent State in substance is that on direction of Director General Prison dated 13. 6. 2007 with regard to the verification of genuineness of educational cer tificates and caste certificates of Bandi Rakshak Cadre an inquiry was made, wherein, it was found that while making his application form the petitioner had enclosed his caste certificate issued by the Tehsildar, Sadar, Lucknow dated 12. 2. 1990, which indicates that he is 'lodh' by caste belonging to Scheduled Tribe. On verification from Tehsildar, Sadar Lucknow through D. M. , Lucknow, it was found that no such caste certificate was issued to the petitioner by them. Further inquiry from Tahsildar Bhogaon District Mainpuri was also made and it was found that the petitioner belongs to 'lodhi' caste of Bhogaon Tehsil District Mainpuri, which is a Backward caste and no person of 'lodh' caste is residing in the village of petitioner who may be Scheduled Tribe. Thereafter show cause notice was issued and served upon the petitioner and on having considered his reply thereon, the impugned order has been passed against him.
(3.) THE submissions of learned Counsel for the petitioner in nut shell are that the order of dismissal could not be passed by respondent on the ground stated in the impugned order dated 28. 11. 2007 for the simple reason that averments con tained in the impugned order do not constitute misconduct during the service period of petitioner. THE allegations levelled in the show cause notice are pertain ing the submission of false/forged caste certificate while making application form for the selection and appointment while entering into service, therefore, even if found proved against the petitioner, at the most his appointment could be cancelled at the earliest opportunity at the initial stage of his appointment but he could not be dismissed from service after long lapse of 15 or 16 years from the date of his appointment on the basis of alleged forged certificate submitted by him, which in fact was not submitted by him. In his application form the petitioner had clearly mentioned his caste as 'lodh', which is synonymous of 'lodhi' caste belonging to Viamukta Jati, which is recognised as Scheduled Tribe in Bhogaon Tahsil of District Mainpuri (U. P. ). He has never misrepresented about his caste. Secondly, no full-fledged disciplinary inquiry was held against the peti tioner before the order of dismissal was passed against him. As neither any inquiry officer was appointed nor any charge-sheet was served upon him nor any disciplinary inquiry has been held to prove the charges levelled against him. Merely a show cause notice was issued on 1. 8. 2007 to the petitioner which too was without enclosing any document in support of the accusation and charges lev elled against him, thus without holding any formal disciplinary inquiry he was asked to submit reply of the aforesaid show cause notice. The reply given to the show cause notice as stated hereinbefore has not been taken into consideration in correct perspective and impugned order was passed against the petitioner. Accordingly, the impugned order is wholly arbitrary, illegal and violative of prin ciples of natural justice and fair play, as such cannot be sustained.;