Candidate Cannot Get Benefit Of Length Of Service When His Appointment Based On SC Certificate Is Void Ab Initio: P&H HC
|While observing that the Petitioner, being a Muslim is not entitled to get a Scheduled Caste Certificate, the Punjab and Haryana High Court dismissed a petition seeking quashing of order vide which the Petitioner, who was working as Assistant Professor under the Self-Financing Scheme was removed from service of the University.
A Single Judge Bench of Justice Jaishree Thakur observed that “In the absence of any material available before this Court that petitioner herein is professing Hinduism or any other religion as specified in para 3 of the Presidential Order, this Court is of the opinion that petitioner was not entitled to be issued an SC certificate, being a person belonged to Muslim Community”.
Senior Advocate R.S. Bains appeared for the Petitioner, whereas DAG Haryana, Anant Kataria appeared for the Respondent.
Going by the background of the case, during the year 2006, the Petitioner namely Abid Ali started working as contractual Teaching Associate in the Respondent-University. In the same year, the University issued an advertisement for filling up 5 posts of Lecturers in the Department of Journalism & Mass Communication under SFS. Out of said 5 posts under SFS, one post was reserved for SC category and remaining four were unreserved. The Petitioner applied for appointment under both categories of posts and was selected and appointed as Lecturer under both the schemes. In the appointment letter issued for budgeted post of Lecturer, the subject was mentioned as appointment to the post of Lecturer (SC) on temporary basis, whereas in the appointment letter issued under SFS, it was mentioned as appointment to the post of Lecturer (under SFS). The petitioner joined as Lecturer under SFS under Department of Journalism and Mass Communication.
Thereafter, a complaint was made against the Petitioner alleging therein that he obtained a job while claiming himself to be an SC candidate, as belonged to Julaha community, whereas he could not be selected under SC category, being a Muslim. Accordingly, action was taken against Petitioner, and thereafter, a decision was taken in the meeting of the Executive Council for removal of Petitioner from service, which shall not be disqualification for future employment. Hence, present petition.
After considering the submission, the High Court reiterated that a person to have the status of Scheduled Caste must profess Hinduism or any other religion as specified in para 3 of the Constitution (Scheduled Castes) Order, 1950, as issued by the President in exercise of the power conferred upon him under Article 341 of the Constitution.
The High Court further made it clear that the Petitioner had a case if he could prove that he had obtained more marks than the last selected candidate of General Category and therefore, applying the principle of horizontal reservation, he was to be given appointment against the post of General Category to grant benefit of reservation to next Scheduled Caste candidate.
The Bench stated that Petitioner was given appointment against 4th post of General category as according to the recommendation of the interview committee, the Petitioner was recommended for appointment under SC category.
Noticing that the Petitioner was appointed in the year 2007 and till today, he had rendered 16 years of service, the Bench observed that since the appointment of the Petitioner based on the Scheduled Caste certificate to which he was not entitled to, is void ab initio, he cannot get the benefit of length of service for which he was not eligible at the first instance.
The Bench elucidated that even though the Petitioner might not have misrepresented at the time of obtaining an SC certificate or obtained the same fraudulently, but since he claimed and was given benefit under the said certificate to which he was definitely not entitled to, he couldn’t be allowed to continue in service.
However, the Bench dismissed the petition while holding that salary and other emoluments paid to him shall not be recovered.
Cause Title: Abid Ali v. State of Haryana and Ors. [Neutral Citation: 2023: PHHC: 074230]
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