Jammu, Nov 09: In Transferred Application No. 5992 of 2020 titled Abdul Kabir Keen Versus State of Jammu & Kashmir & others after hearing strong & legal submissions of F.A.Natnoo, Advocate ordered as under:-
1. The applicant being aggrieved of the orders dated 21.05.2012 and 13.06.2012 passed by the respondents, whereby the services of the applicant as ‘General Line Teacher’ has been terminated on the ground of forging of marks card of Class 12th, approached the Hon’ble High Court of Jammu & Kashmir at Jammu by filing SWP No. 1993 of 2012.
2. The brief facts of the case, as stated in the Transferred Application (T.A.) are that the applicant having passed the Higher Secondary Examination (Class 12th), applied for the post of ReT Teacher in Zone Drabshalla, District Kisthwar under the ReT Scheme in the year 2000. The applicant was selected and appointed as ReT Teacher in Middle School, Patnazi by the Zonal Education Officer, Drabshalla vide order dated 29.07.2000 and after completing five years of requisite service, the applicant came to be regularized as General Line Teacher vide order dated 20.05.2005.
3. It is averred in the T.A. that the order regularizing the services of the applicant contained a rider/stipulation that the salary of the regularized employee shall be released only on the production and verification of relevant documents viz academic qualification certificates, marks card, date of birth certificate and other eligibility documents in original. However, vide impugned order dated 13.06.2012 in furtherance of impugned order dated 21.05.2012, the services of the applicant came to be terminated by respondent No. 3 without affording an opportunity of being heard, on the ground that marks card of Class 12th submitted by the applicant bearing Roll No. 212 shows 212 marks which is not in accordance with the Board record. It is further averred in the T.A. that the respondent authorities sent the name of the applicant for verification to Board of School Education, Jammu as Abdul Kabir Keen, S/o Mohd Abdullah Keen under roll No. 212 Bi-Annual 1987, whereas, the fact is that the applicant had passed his Higher Secondary Part II Examination under Roll No. 212 Annual Session 1987 and this was the reason that the Board of School Education, Jammu communicated wrong verification. However, after realizing its mistake, the State Board of School Education vide letter No. F (Veri-B) JD/2012 dated 06.02.2012 T.A. No. 5992 of 2020 informed the Zonal Education Officer, Drabshalla, Kishtwar that the earlier verification report of the applicant had been erroneously sent. It is also averred in the T.A. that the letter dated 06.02.2012 was not considered by the Director School Education and the applicant was illegally terminated by the respondents.
For redressal of his grievance, the applicant filed representation dated 29.05.2012 to respondent No. 3 requesting therein to revoke the termination order dated 21.05.2012, on which no action has been taken by the respondents. It is the contention of the applicant that applicant obtained 212 marks out of 400 in Higher Secondary Examination (Class 12th) and his date of birth has been reflected as 01.04.1963 in the panel on the basis of which he was selected as ReT Teacher. Aggrieved the applicant approached the Hon’ble High Court of Jammu & Kashmir by filing SWP No. 1993 of 2012.
4. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of Service Writ Petition No. 1993 of 2012 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 27.10.2020 and renumbered as Transferred Application No. 5992 of 2020.
5. Notices were issued to the respondents who have filed counter affidavit in which while supporting the impugned orders, the respondents have stated that applicant was appointed as ReT in Middle School Patnazi in 2000 by the then ZEO Drabshalla vide order dated 29.07.2000.
The applicant’s date of birth as per Diploma of Class 10th is 01-11-1968 and academic qualification 12th pass which were in accordance with merit panel submitted to DDC Doda for accord of approval of the candidates. That after rendering five years of service as ReT Teacher, the applicant was regularized as General Line Teacher in 2005 after verification of his service details.
6. It is further stated that Chief Education Officer, Doda vide letter dated 20.06.2007 asked the Zonal Education Officer, Drabshalla to verify the documents of eight persons in pursuance to Chief Minister’s Secretariat order dated 11.06.2007 addressed to the Chief Education Officer, Doda wherein it was mentioned that a complaint has lodged by MLA Inderwal in the office of Hon’ble Chief Minister, wherein it was pointed out that eight persons, including the applicant herein, appointed in Education Department had obtained appointment through fake date of birth and marks card of 12th Class.
That the Joint Secretary, J&K State Board of School Education, Jammu in pursuance of letter dated 09.08.2007 of Zonal Education Officer, Drabshalla vide communication dated 07.09.2007 conveyed that marks certificate of Higher Secondary Part II Bi-annual session 1987 of applicant under Roll No. 212 sent for verification is not in accordance to Board record and regarding the verification of Diploma Class-10th, wherein the date of birth of applicant was mentioned as 01.11.1968, the J&K Board furnished the verification report on 12.11.2007, wherein date of birth of the applicant has been shown as 01.04.1963.
7. It is further stand of the respondents that after receiving the verification report from Board Authorities, it was found that there is variation in date of birth and 12th Class Marks card submitted by the applicant and the same was not in accordance with record available with the Board. The report was submitted to Chief Education Officer, Doda vide communication dated 24.12.2007, which was forwarded to District Development Commissioner, Doda on 21.04.2008 with a copy to Director, School Education, Jammu. That the order terminating the services of the applicant has been passed by the competent authority after a long process of verification and is fair and just in all respect.
8. The applicant has filed rejoinder to the counter affidavit filed by the respondents in which it has been stated that impugned orders dated 21.05.2012 and 13.06.2012 whereby the services of the applicant as General Line Teacher has been terminated, were issued without affording an opportunity of being heard to the applicant. It has been stated that the impugned orders are based on verification report submitted by the J&K Board of School Education in which they have erroneously mentioned that “verification is not in accordance with Board record” but later on the Board clarified that the earlier verification had erroneously been sent.
However, the corrigendum issued by the J&K State Board in which it has rectified the mistake and submitted a fresh verification report, declaring applicant’s educational qualification genuine, has not been considered by the respondents. That after filing of the Writ Petition No. 1993 of 2012 before the Hon’ble High Court, the Zonal Education Officer, Drabshalla submitted a report dated 23.05.2015 to the Chief Education Officer, Kishtwar in which he has categorically stated that there were two contradictory panels in the office and verification should have been conducted before issuing regularization order in favour of the applicant, only then service book could have been maintained by the then Zonal Education Officer, Drabshalla. The Chief Education Officer submitted a report before the Director School Education, Jammu for re-examination of the case of applicant on humanitarian grounds.
9. The respondents have filed status report in terms of directions dated 27.02.2024 of this Tribunal along with the verification report of qualification certificates of the applicant.
10. Mr. F A Natnoo, learned counsel for the applicant contended that the impugned orders are illegal and bad in the eyes of law as the respondents have terminated the services of the applicant without holding any disciplinary inquiry in gross violation of principles of natural justice.
Elaborating further the learned counsel submitted that the applicant who has already rendered 12 years of service i.e. first five years as ReT Teacher and remaining as General Line Teacher was substantive member of the service of Education Department, who was holding a civil post, therefore, in terms of Rule 33 of J&K Civil Service (Classification, Control and Appeal) Rules, 1956, the applicant could not have been terminated by the impugned orders unless informed in writing of the grounds on which such action was proposed and without affording him adequate opportunity of defending himself. The act of the respondents, as such, is dehors the requirement of law.
18. CAT said that it is not disputed that applicant was holding a civil post under the State at the relevant time being a General Line Teacher in the Education Department and was entitled to certain protections in terms of provisions of the Jammu & Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 (JK CCA Rules, 1956).
19. The applicant challenged the termination on the ground that before taking the action of terminating his services, neither any inquiry was conducted nor any opportunity to show cause was given to him and merely on the ipse dixit of respondent No. 3 & 5, the services of the applicant was terminated. The applicant’s termination from the post of General Line Teacher was supported by the respondents on the ground that he had secured job of ReT on the basis of fake marks card.
It is the contention of the respondents that there was no requirement of holding a regular enquiry before terminating the services of the applicant as applicant succeeded in getting employment as ReT teacher on the basis of a forged marks certificate and date of birth certificate. 20. The applicant without any opportunity of being heard and to explain his stand in the context of his academic qualification after having put in five years of his life in service as ReT and seven years thereafter as General Line Teacher was terminated from service.
CAT said that there is no dispute on the aspect that the applicant had satisfactorily worked on the post of ReT and regular General Line Teacher for a long period, therefore, we are of firm view that the termination of the service of the applicant without holding disciplinary inquiry was totally unjustified and dehors the requirements of law in gross violation of principals of natural justice.
21. As already stated above the fake date of birth certificate of applicant was not the basis for the impugned termination order of the applicant but since the case put forward by the respondents in their reply is that date of birth certificate of applicant showing his date of birth as 01.11.1963 is forged, therefore, we deem it proper to deal with this issue in the light of material on record.
22. The certified copy of the status report of DSP Headquarter Kishtwar in case FIR No. 98 of 2012 for offence under Section 420, 468, 471, 120-B RPC registered by Police Station Kishtwar against applicant and some others placed on record shows that in the Police investigation the involvement of applicant was not found rather it came to fore in the investigation that some employees of the Education Department in order to defame and humiliate the applicant and others, by misplacing their original documents have placed fake documents on record.
As per the status report, the date of birth of the applicant after verification from the J&K BOSE was found to be 01.04.1963, who had passed 12th Class Examination under Roll No. 212 in the year 1987.
It is also mentioned in the status report that the date of birth of the applicant as per ZEO record is shown as 01.11.1968 and at other place, 01.04.1963.
The panel in which date of birth was shown as 01.11.1968 was tampered which was admitted by ZEO, Drabshala (Respondent No. 6) when both the panels were shown to him, who recorded in his statement that 01.04.1963 is the correct date of birth of the applicant on the basis of which he got appointed as ReT. The involvement of the applicant in the case was ruled out by the investigating officer.
23. Curiously, the verification report of Joint Secretary (certificates), JK BOSE placed on record by the respondents also shows the date of birth of applicant as 01.04.1963, which too is mentioned in the Annexure-II dated 30.08.2024 of Joint Secretary (Verification), JK BOSE annexed with the latest status report filed on 05.09.2024 by the respondents.
It is true that copy of service book of the applicant reflected his date of birth as 01.11.1968, but the original service book is stated to have been misplaced and not traced till date, as fairly admitted by learned A.A.G, therefore, no inference can be drawn that actual date of birth of applicant is 01.11.1968, particularly in the light of statement of respondent No. 6 before the police that panel in which date of birth of applicant has been shown as 01.11.1968 was tampered and the actual date of birth of applicant is 01.04.1963. Thus, for no fault of the applicant, the services of the applicant have been terminated.
24. There is one more significant aspect, which cannot be lost sight of. The Chief Education Officer, Kishtwar (Respondent No. 5) vide his communication dated 27.06.2015 requested the Director, School Education, Jammu (Respondent No. 3) for re-examination of the case of the applicant of his termination order on humanitarian grounds that Zonal Education Officer (Respondent No. 6) had prepared two different panels for engagement of ReTs in zone Drabshalla in the year 2000 which was duly approved by Chairman, District Committee, the then Deputy Commissioner, Doda. It is further mentioned in the letter that in one of the panel copy, the date of birth of the applicant was shown as 01.04.1963 which is as per record of the JK BOSE, Jammu and qualification as 12th, whereas in another copy of ReT panel, date of birth of the applicant has been reflected as 01.11.1968 and qualification as 12th and both the copies were duly signed by ZEO.
However, due to non availability of original application forms of the applicant and others, which could not be traced, the actual entries made therein were not ascertained. So, the abovementioned letter of respondent No. 5 also shows that some mischief had occurred while preparing the second panel in which the date of birth of applicant is reflected as 01.11.1968.
25. In the backdrop of discussion made herein above, it is apparent that the impugned orders of termination of applicant from services are not sustainable under law, both, on merits as well as for violation of principles of natural justice. The matter has been pending adjudication for the last more than 12 years and in all fairness, learned counsel for the applicant submitted that during the pendency of this petition/T.A. the applicant remained unemployed, who has attained the age of superannuation from the active Government service, as such, on account of unlawful termination of the applicant, he is entitled for full back wages besides all retiral pensionary benefits.
26. The question which falls for consideration is as to whether the applicant would be entitled for back wages for the period, he has remained out of service. The applicant has not placed on record any material that he was not gainfully employed or was employed on lesser wages after his termination from services. The Hon’ble High Court of Jammu & Kashmir and Ladakh in a recent judgement in the case of Prem Pal Singh Vs. UOI and others 2024 (2) JKLLJ 422, while dealing with the case of a CRPF personnel whose termination order was set aside has held that if an employee has succeeded in establishing that his dismissal from service is illegal, he may be entitled to reinstatement but it is not necessary that he should be given full back wages. For entitling an employee for full back wages, he has to show that he was not gainfully employed after termination of his services.
27. The applicant has already attained the age of superannuation during the pendency of this petition. He has not placed anything on record to show that he was not gainfully employed after termination of his services, therefore, the applicant is not entitled to full back wages, but in the facts and circumstances of the case, the relief of back wages in favour of the applicant is restricted to 50%.
28. Accordingly, we allow the O.A. filed by the applicant and the impugned orders dated 21.05.2012 and 13.06.2012 passed by respondents, whereby the services of the applicant have been terminated are quashed and set aside.
The applicant shall be entitled to only 50% of the back wages besides, he is also entitled for retiral pensionary benefits in accordance with rules and entitlements.
The respondents shall implement this order within a period of two (02) months from today.
29. This Transferred Application is, accordingly, disposed of in the abovesaid terms. No order as to costs.
(B. Anand) (Sanjeev Gupta) Administrative Member Judicial Member
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