PAWAN SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIRTY years after respondent No. 4 was appointed as a Grade-II, obstetric and Gynecology Specialist in the Central Government Health services, the petitioner, who on his own showing is a political activist has sought quashing of the said appointment in public interest. According to the petitioner, the appointment which was made as early as in the year 1979 was illegal inasmuch as respondent No. 4 who was hot born as a scheduled caste claimed to have acquired that status by her marriage to respondent no. 5 - admittedly a scheduled caste. The petitioner further alleges that since the appointment of respondent No. 4 was illegal and at any rate irregular, once she assumed office as a specialist expert in what is described as contract award committee constituted to purchase Single and Double Puncture laparoscopes, she paid back the debt of gratitude by approving certain supplies which the earlier expert from the Committee had held to be unacceptable. The petitioner in that backdrop not only prays for a writ of mandamus declaring the appointment of respondent No. 4 to the post of grade-II Specialist in Obstetric and Gynecology as illegal and fraudulent but also for a mandamus directing respondents No. 1 to 3 not to consider her for appointment as Additional Director General of Health services. Transfer of respondent No. 5 husband of respondent No. 4 from the post of Medical superintendent, Safdarjung Hospital to any other equivalent post is also the relief prayed for in the petition.

(2.) WHEN the petition came up for admission before a Division Bench of this Court on 24. 01. 2007, this Court issued a notice of show cause to the respondents only in relation to prayer 'a' made in the petition. That prayer was limited to a challenge to the appointment of respondent No. 4 as grade-II, specialist in Obstetric and Gynecology in the Central Health services. The rest of the prayers, therefore, stood deleted as indeed learned counsel for the petitioner did not even press before us the other prayers in the light of the limited scope of the enquiry which the order of this Court dated 24. 01. 2007 envisaged. Appearing for the petitioner Mr. Chawla, strenuously argued that the appointment of respondent No. 4 was ex facie illegal. Relying upon the decision of a Single Bench of this Court in Mrs. Urmila Ginda v. Union of India and Others, AIR 1975 Delhi 115 and that of the Supreme Court in Valsamma Paul (Mrs) v. Cochin University and Others, (1993) 3 SCC 545 he contended that a person who did not belong to a scheduled caste could not acquire that status by marrying one belonging to that caste. He urged that since respondent No. 4 did not admittedly belong to scheduled caste, no matter her husband respondent no. 5 was member of that caste, she could not by marriage acquire that status. Mr. Chawla submitted that the appointment of respondent No. 4 was not only irregular but even illegal as the same was made against a vacancy which was reserved for those belonging to scheduled caste.

(3.) ON behalf of the respondents, it was on the other hand argued that the issue regarding the appointment of respondent No. 4 had been examined in a departmental enquiry instituted by the competent authority in which a charge was framed against respondent No. 4 for providing false information to the effect that she is a member of the scheduled caste community. The said charge was held proved and the matter submitted before the CVC who took the view that respondent No. 4 may have been under a genuine impression that marriage with a scheduled caste candidate could confer upon her the same status. The CVC, therefore, advised the competent authority to impose a panelty other than dismissal/removal/compulsory retirement upon respondent No. 4. The matter was then submitted to UPSC, who disagreeing with the advice of the cvc suggested that a penalty of removal should be imposed upon respondent No. 4. The matter was then submitted to Minister of Health and family Welfare, who directed that respondent No. 3 may be asked to reconsider its advice. Upon reconsideration also, the UPSC struck to the opinion that respondent No. 4 ought to be removed from services. The matter was thereafter referred to the department of Personnel and Training for their consideration who opined as under:-