Karnataka High Court
The Oriental Insurance Co. Ltd., vs Sri. Anappa, on 3 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 862, 2019 (3) AKR 694
Bench: L.Narayana Swamy, R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JULY, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT APPEAL NO.2253 OF 2018 (S-R)
BETWEEN
1. THE ORIENTAL INSURANCE CO. LTD.,
ORIENTAL HOUSE, NO.A25/27,
ASAF ALI ROAD,
NEW DELHI-110 002.
REPRESENTED BY ITS
CHAIRMAN-CUM-MANAGING DIRECTOR.
2. THE DEPUTY GENERAL MANAGER,
ORIENTAL INSURANCE COMPANY LTD.,
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD CROSS,
BANGALORE-560 025.
REPRESENTING APPELLANT NO.1 & 3.
3. THE REGIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LTD.,
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD CROSS,
BANGALORE-560 025.
... APPELLANTS
(BY SRI C.M.NAGABHUSHAN, ADV.
FOR SMT MAMATHA M.R, ADV.)
2
AND
1. SRI. ANAPPA,
S/O LATE SRI. DEVAIAH,
AGED ABOUT 67 YEARS,
NO.49, SK III STAGE,
7TH MAIN, 7TH BLOCK, 'E' CROSS,
4TH PHASE,
BANGALORE-560 085.
2. DISTRICT CASTE VERIFICATION COMMITTEE,
BENGALURU URBAN DISTRICT,
REPRESENTED BY ITS
DISTRICT SOCIAL WELFARE OFFICER
AND MEMBER SECRETARY,
BENGALURU URBAN DISTRICT,
16TH CROSS, 4TH MAIN ROAD,
SAMPANGI RAMANAGARA,
BENGALURU - 560 027.
... RESPONDENTS
(BY SRI KESHAVA BHAT.A, ADV. FOR C/R1,
SRI C.JAGADISH, SPECIAL GOVERNMENT ADVOCATE
FOR R2)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961 R/W RULE 27
OF W.P RULES PRAYING TO ALLOW THE WRIT APPEAL,
SET ASIDE THE ORDER DATED 13/06/2018 IN WP
NO.49692/2016 PASSED BY THE LEARNED SINGLE
JUDGE, AND DISMISS THE WRIT PETITION
NO.49692/2016 FILED BY THE RESPONDENT NO.1; AND
ETC.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED ON 21.06.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY DEVDAS J,
DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant-Insurance Company is before this Court assailing the order dated 13.06.2018 passed by the learned Single Judge in W.P.No.49692/2016.
2. The appellants herein invited applications for appointment to the post of 'Assistant', which was reserved for Scheduled Tribe category. The first respondent herein produced a caste certificate dated 31.08.1978 which stated that the first respondent belonged to "Jenu Kuruba" community which is a Scheduled Tribe category. Based on the said claim, the first respondent was appointed as Assistant. It is contended that the first respondent was suspended from service on 20.01.2012, on an allegation that he had produced a false caste certificate at the time of seeking employment. It is further contended by the first respondent that he was due to retire on 31.01.2012.
3. The first respondent approached this Court in W.P.Nos.2888-2890/2012. However, since the first respondent attained the age of superannuation, the 4 learned Single Judge held that the order of suspension merged with the order of superannuation and therefore, the petitions do not survive for consideration. Keeping all contentions open, the writ petitions were disposed of.
4. Thereafter, the first respondent filed W.P.No.37905/2012, seeking a direction to the appellant herein to release the terminal benefits. The said writ petition was disposed of with a direction to the appellant to consider the case of the first respondent and grant benefits if there are no other legal impediments. Consequently, vide communication dated 12.12.2012, the appellant herein informed the first respondent that the veracity of his caste certificate was pending consideration before the authorities and therefore till the proceedings were concluded, the question of paying the retirement benefits will not arise. The communication dated 12.12.2012 was challenged before this Court in W.P.No.46918/2013. By order dated 02.12.2014, the learned Single Judge declined to grant the relief and held that the first respondent must 5 await the decision of the Social Welfare Department over the adjudication of false caste certificate.
5. The District Caste Verification Committee, which is arrayed as the second respondent herein, inquired into the matter and by order dated 16.05.2015, held that the first respondent herein belongs to 'Kuruba community' and not 'Jenu Kuruba community' and he did not belong to a Scheduled Tribe category. However, it was observed that the State Government had issued a Circular No.SWD 713 SAD 93 dated 11.03.2002 and in terms of the said Circular, the first respondent had surrendered the caste certificate, therefore, the caste certificate was cancelled and the first respondent was entitled for retiral benefits and no criminal proceedings could be taken against the first respondent. In view of the orders passed by the District Caste Verification Committee, the first respondent requested the appellant herein to release the retirement benefits. A legal notice dated 23.08.2016 was also caused to the appellant herein. Since there was no 6 response from the appellant to the legal notice, the first respondent preferred the instant writ petition in W.P.No.49692/2016 with a prayer to direct the appellant herein to release all the pensionary benefits forthwith along with 6% interest p.a. from the date of retirement till the date of payment. By order dated 13.06.2018 the learned Single Judge allowed the petition and directed the appellant herein to pay the retirement benefits to the first respondent herein, along with interest at 6% p.a. from 16.03.2015 (the date on which the District Caste Verification Committee passed the order) till payment, within six weeks from the date of receipt of a copy of the order, failing which, it shall carry interest at 12% p.a. thereafter till payment.
6. By order dated 29.10.2018, this Court stayed the operation of the order dated 13.06.2018, passed by the learned Single Judge. Thereafter from time to time the interim order was extended.
7. Learned Counsel for the appellant submits that a larger Bench of three Judges of the Hon'ble Apex 7 Court, in the case of Chairman and Managing Director, FCI and Ors. Vs. Jagdish Balaram Bahira and others reported in AIR 2017 SC 3271 has considered all the earlier judgments of the Apex Court in matters of securing appointments on the basis of false caste certificate and the consequences thereto. The learned Counsel for the appellant would further submit that the decisions of the Apex Court in the case of State of Maharashtra Vs. Milind and Others reported in AIR 2001 SC 393, Geeta Vs. State of Madhya Pradesh & Ors. reported in AIR 2007 SCW 3892, Ritesh Tewari and Another Vs. State of Uttar Pradesh and Others reported in (2010) 10 SCC 677, Punjab National Bank and Another Vs. Vilas S/o Govindrao Bokade and Another reported in (2008) 14 SCC 545, Shalini Gajananrao Dalal Vs. New English High School Association and Others reported in (2013) 16 SCC 526, Bank of India Vs. Avinash D. Mandivikar reported in (2005) 7 SCC 690, and all other decisions have been considered in Chairman and Managing Director, FCI (supra). The learned 8 Counsel would further submit that the basis of the contention put forth by the first respondent having regard to the Circular dated 11.03.2002, issued by the State Government has been considered by the Hon'ble Apex Court, although with respect to Government Orders/Circulars issued by other State Governments and Government of India and the Hon'ble Apex Court has categorically held that no Government resolution or Circular can override constitutional or statutory norms. In the light of the latest decision of the Hon'ble Apex Court, it is contended by the learned Counsel for the appellant that the writ petition filed by the first respondent deserves to be dismissed, while setting aside the order passed by the learned Single Judge.
8. Per contra, the learned Counsel for the first respondent would submit that the first respondent having surrendered the caste certificate and having been permitted to avail the benefit flowing from the Circular dated 11.03.2002, the appellant could not have initiated any further action, that too at the fag end of 9 the career of the first respondent. It is vehemently contended that the appellant is guilty of colourable exercise of power since the order of suspension was passed ten days prior to the date of retirement of the first respondent. The learned Counsel would further submit that the learned Single Judge was justified in allowing the petition since the decision was based on several judgments of the Hon'ble Supreme Court, where under similar circumstances the Hon'ble Supreme Court held that when there was likely confusion in the minds of even honest persons the resolutions/legislation passed by the State Governments should spare some succour to persons like the first respondent who were genuinely confused by the executive orders passed by the State Government in matters pertaining to 'Kadu Kuruba', 'Jenu Kuruba', etc. It was further submitted that the first respondent bonafidely believed that he and his forefathers belonged to 'Jenu Kuruba' community and obtained the caste certificate without any malafide intention. There was no 10 malafide intention to secure a false caste certificate and to deny the benefit which was reserved to a person genuinely belonging to the Scheduled Tribe category. The learned Single Judge, noticed that the Hon'ble Apex Court, under similar circumstances had held that it is not a case of misrepresentation or playing fraud to obtain the caste certificate and therefore, protection of saving the appointment was given in such cases by the Hon'ble Supreme Court in the earliest case relating to Milind (supra), which was reiterated in Punjab National Bank (supra).
9. On the other hand, Sri C.Jagadish, learned Special Government Advocate appearing for the second respondent-District Caste Verification Committee submits that the State Government issued a Circular dated 14.06.2011 clarifying that the benefit of the Circular dated 11.03.2002 cannot be extended to Central Government employees. It was therefore submitted that the first respondent could not have 11 sought for the benefit under the Circular dated 11.03.2002.
10. We have heard the learned Counsels for the appellant, respondent No.1 and the Special Government Advocate. We have perused the writ papers and the decisions cited by the learned Counsels.
11. One of us, sitting single, in a batch of matters in the case of Smt.H.R.Sumangala and Others Vs. the Addl. Director General of Police, Directorate of Civil Rights Enforcement and Others, reported in ILR 2019 KAR 1708 had the occasion to consider similar issues. The decision has been upheld by a co-ordinate Division Bench in W.A.No.316/2019 c/w W.A.Nos.189- 193/2019.
12. The contention such as benefits flowing from the Circulars issued by the State Government as a one- time measure cannot be revisited; the subsequent Circular dated 14.06.2011 issued by the State Government clarifying the position regarding Central Government employees; it is not a case of 12 misrepresentation or playing fraud to obtain the caste certificate and therefore, protection of saving the appointment etc., have been considered in the said decision.
13. It is pertinent to reiterate that two Division Benches of this Court in the case of Paduthota Ramachandra Vs. Union of India reported in ILR 1995 KAR 2712 and The General Manager, The New India Assurance Company Ltd. and Others Vs. Sri Prakash Keshav Ganguli and Others, in W.A.No.2828/2011 which was decided on 13.05.2014 had categorically held that the Government orders/Circulars passed by the State Government could be simply ignored as the State Government had neither the authority nor the competence to amend or alter the Presidential orders.
14. Similar contention as is raised in this Writ Appeal was raised before Their Lordships in the case of Chairman and Managing Director FCI (supra). It would be beneficial to extract paragraph-4 of the judgment, 13 which would succinctly capture the crux of the dispute. Paragraph-4 reads as follows:
4. The batch of cases with which the court is confronted involves individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been found to be invalid.
Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe of backward community, the intervention of the Court is invoked in the exercise of the power of judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of being protected either by the High Court (in the exercise of its jurisdiction under Article
226) or by this Court (when it discharges the constitutional function of doing complete justice under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation in spite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended.
15. The Hon'ble Apex Court has painstakingly dissected all the previous judgments on the issue, starting from Kumari Madhuri Patil's case (supra) to 14 Nidhi Kaim's case (supra). It was contended before the Apex Court that mere invalidation of the caste claim by the scrutiny committee would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments which have become final prior to the decision of the Apex Court in State of Maharashtra Vs. Milind and Others reported in AIR 2001 SC 393. Protection was sought on similar grounds that Government circulars, orders and resolutions had granted one time amnesty, while punitive action could be taken only in cases where false caste certificates were obtained subsequent to the respective State enactments.
16. So far as the protection sought under Government orders is concerned, the same has been authoritatively negated by the Apex Court. In the case of Chairman and Managing Director, FCI (supra), at paragraph No.53, it is held as under:
53. Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary 15 either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions.
Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No Government resolution or circular can override constitutional or statutory norms. The principle that Government is bound by its own circulars is well-settled but it cannot apply in a situation such as present.
Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved 16 groups or communities are liable to be affected detrimentally, Government circulars or resolutions cannot operate to their detriment.
17. Finally, when the intervention of the Apex Court was invoked in exercise of the power of judicial review, under Article 142 of the Constitution, it was held at paragraph-54 as under:
"54. ......When a candidate is found to have put forth a false claim of belonging to a designated case, tribe or class for whom a benefit is reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to 17 them. The credibility not merely of the legal system but also of the judicial process will be eroded if such claims are protected in exercise of the constitutional power conferred by Article 142 despite the state law."
18. However, in the case of Jagdish Balaram Bahira, at paragraph-58 (individual case No.1) in Chairman and Managing Director, FCI (supra), the Hon'ble Supreme Court having noticed that the respondent had retired from service and had even been paid terminal dues, and in the peculiar facts, declined to order recovery from the respondent. In conclusion the Hon'ble Supreme Court held that the directions which were issued by the constitution Bench of the Supreme Court in para-38 of the decision in Milind (AIR 2001 SC 393) were in pursuance of the powers vested in the Supreme Court under Article 142 of the Constitution. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual who belong to a reserved caste or 18 tribe or class is yet to be verified by the Scrutiny Committee. Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise. Mens rea is an ingredient of the penal provisions contained in the respective legislations of the State. Such penal provisions would apply in those situations where the act constituting the offence has taken place after the date of its enforcement.
19. In the present case, as was the fact in Smt.H.R.Sumangala and Others (supra) the first respondent herein has surrendered the caste certificate voluntarily, therefore, admitting that he does not belong to Scheduled Tribe category. That being the admitted position, the order of dismissal cannot be faulted and as a consequence, the first respondent is not entitled for the terminal or retirement benefits.
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20. For the reasons stated above, the writ appeal is allowed and the impugned order dated 13.06.2018 passed by the learned Single Judge in W.P.No.49692/2016 is set aside.
SD/-
JUDGE SD/-
JUDGE JT/-