Madhya Pradesh High Court
Shailesh Kumar Gatlewar vs The State Of Madhya Pradesh on 22 June, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. W.P. No.517/2017
Parties Name Shailesh Kumar Gatlewar
Vs.
State of Madhya Pradesh & others
Date of Judgment 22.06.2017
Bench Constituted Single Bench
Judgment delivered by Hon'ble Shri Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties Petitioners: Mr. Sanjayram Tamrakar,
Advocate.
Respondents No.1 to 3: Mrs. Shaheen
Fatima, Learned G.A., Respondents No.4 to 6: Mr. A.K. Pandey, Advocate, Respondent No.7: Mr. J.K. Jain, learned ASG.
Law laid down -
Significant paragraph -
numbers
(Order)
22.06.2017
In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following relief:
"(i) This Hon'ble Court may kindly be pleased to call for the entire record pertaining to instant subject matter for its kind perusal;
(ii) This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus or any other appropriate writ by directing the respondent, High Power Caste Scrutiny Committee not to
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proceed further with reference to the caste validation certificate of the petitioner;
(iii) This Hon'ble court may kindly be pleased to issue a writ in the nature of mandamus or any other appropriate writ by directing the respondent - through Chairman & Managing Director,Central Bank of India not to subject the petitioner for caste validity certificate form the Scrutiny Committee;
(iv) This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus or any other appropriate writ by directing the respondents to restrain from taking any actions against the Petitioner in the matter and allow and continue the petitioner as before;
(v) Any other relief which this Hon'ble Court may deem fit in the facts and circumstances of the case along with cost of the petition."
2. Draped in brevity, the relevant facts are that the petitioner has obtained a caste certificate showing him to be a candidate of "CHATTRI" community (Schedule Tribe). The caste certificate dated 19.09.1981 is Annexure-P/1. On the strength of said caste certificate, the petitioner secured employment by appointment order dated 08.12.1984 Annexure-P/5. The petitioner was initially appointed as Clerk and was subsequently promoted as Assistant Manager Scale-I on 01.11.1990, in Scale-II on 23.05.1999. On 15.05.2013 by Annexure-P/7 the petitioner was selected for the post of Advisor in CBI on deputation. The petitioner was promoted as Cheif Manager in Scale-IV w.e.f. 01.04.2016 by order dated 22.04.2016 (Annexure-P/6). Mr. Sanjayram Tamrakar, learned counsel for the petitioner submits that the petitioner was sent on deputation as Advisor in CBI and was relieved on 29.06.2016 to join the office of CBI. The petitioner is aggrieved by letter dated 01.09.2016 (Annexure-P/9) whereby the respondent-Bank has directed him to obtain caste validity certificate from the scrutiny committee on the basis of the complaint.
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W.P. No. 517 of 20173. Mr. Tamrakar, learned counsel for the petitioner advanced two fold contentions. He submits that petitioner was appointed on 08.12.1984. The respondents could have examined the caste status of the petitioner within a reasonable time. By taking this Court to the judgment of Division Bench of Bombay High Court in the case of Anil Vasantrao Shirpurkar vs. State of Maharashtra & others reported in 2003 (1) LLJ275 : 2003 (96) FLR 951, it is submitted that the "reasonable period" has been considered by the Bombay High Court in the said case. It was held that initially two years period during which an employee normally remains on deputation can be construed as "reasonable period". In the said case, the caste status of the petitioner therein was doubted after seven years from the date of his appointment, whereas in the present case the petitioner has worked for about three decades with the respondents. Thus, the first attack on the action of the respondents is on the ground of unreasonable delay.
4. The second contention of learned counsel for the petitioner is based on the documents filed alongwith I.A. No.5762/2017. An undertaking is also filed alongwith with these documents which reads as under:
"UNDERTAKING I, Shaliesh Kumar Gatlewar, S/o- Shri Krishna Shantaram Gatlewar, aged about 52 years, R/o- C-4/4, Ganga CHS, Plot No.13, Sector -16, Near Pillai College, New Panvel-410206, District Rajgad, Working as Chief Manager in Central Bank of India and on selection through U.P.S.C. now working as Advisor Banking, on deputation to Central Bureau of Investigation Mumbai, I belong to cast CHATTRI, therefore, I was issued Caste Certificate on 19.09.1981 as I am the CHATTRI by Cast which is Scheduled Tribe vide entry No.2 of the Constitution (Scheduled Trbie) Order, 1950.
I, Shaliesh Kumar Gatlewar do hereby undertake that, in future I will not claim any further benefit as a member of Scheduled Tribe.
I, am ready to surrender my original Cast Certificate.
Place- Jabalpur
Date-26.04.2017 SIGNATURE
(SHAILESH KUMAR GATLEWAR)"
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It is submitted that the petitioner is ready to forgo the benefit of caste status. He undertakes that he will not claim any benefit whatsoever based on his caste status. Hence, as per the catena of judgments of the Supreme Court, his appointment may be saved.
5. Learned counsel for the petitioner placed reliance on the judgments of Superme Court reported in 2003 (4) SCC 488 [Collector vs. P. Mangamma], 2012 (1) SCC 549 [Dattu vs. State of Maharashtra], 1994 (6) SCC 241 [Kumari Madhuri Patil vs. Addl. Commissioner], 2001 (1) SCC 4 [State of Maharashtra vs. Milind], 2008 (9) SCC 54 [Raju Ramsing vs. Mahesh Devroa], 2008 (14) SCC 545 [Punjab National Bank vs. Vilash], 2014 (4) SCC 434 [R. Unnikrishanan vs. V.K. Nahanudevan], 2012 (8) SCC 430 [Kavita Solunke vs. State of Maharashtra], 2008 (4) SCC 612 [Union of India vs. Dattatray] and 2013 (6) SCC 526 [Shalini vs. New English High School]. On the basis of the aforesaid judgments it is submitted that the respondents have initiated proceedings for verification of the caste status after an unreasonable long time of 30 years which is wholly impressible and arbitrary in nature. By taking this Court to the judgments of Milind, Raju Ramsing, Vilash, R. Unnikrishnan, Dattatray & Shalini (supra) it is argued that the petitioner's appointed may be saved on the ground of equity. It will not be in the interest of justice to disturb the appointment of the petitioner after 30 years.
Learned counsel for the petitioner also placed reliance on the presidential notification Annexure-P/15, wherein the caste 'CHATTRI' is mentioned in item No.20. It is submitted that in the caste certificate issued in favour of the petitioner, the said caste status is shown in Hindi. Reliance is placed on the notification issued in Hindi, wherein caste is shown as "p=h". The contention of Mr. Tamrakar, learned counsel for the petitioner is that there is bonafide confusion in the mind of the authorities whether petitioner belong to the community "CHATTRI" or "CHHATTRI". The attention of this Court is drawn on the communication dated 05.10.2016 (Annexure- R/4-6/4), wherein Bank desired information from the State Government as
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W.P. No. 517 of 2017to whether the caste certificate issued by the concerned office and as to which caste petitioner belongs to. Mr. Tamrakar, learned counsel for the petitioner by placing reliance on Annexure-P/10 submits that Assistant Commissioner has made it clear that the caste certificate in question was very much issued by concerned office. However, the other point aforesaid has not been answered for want of documents. Learned counsel for the petitioner submits that in the present case, it is clear that caste status of the petitioner cannot be doubted after an unreasonable long time (30 years) in the present case.
6. Per-contra, Mr. Arvind K. Pandey, learned counsel the Bank submits that Bank has received communication dated 20.06.2016 issued by National Commission for Schedule Tribe. The said commission is constituted under Article 338-A of the Constitution of India. In view of the said communication (Annexure-R/4-6/1), it was thought proper to request the committee to inquire into the matter so that the caste status of the petitioner can be clarified. In turn, the State Level Caste Verification Committee has already issued letter dated 13.12.2016 (Annexure-R/4-6/5) and directed the Vigilance Officer/Senior SP to inquire about the caste certificate/status of the petitioner. Mr. Pandey, further submits that in view of the said letter issued by the committee, the present petition is premature. Whether petitioner belongs to the Schedule Tribe community or not can be answered only by the Caste Verification Committee constituted pursuant to the judgment of the Supreme Court in the case of Ku. Madhuri Patil (Supra).
Mr. Pandey, learned counsel for the Bank further submits that if committee comes to the conclusion that petitioner does not belongs to Schedule Tribe community, it will be crystal clear that the petitioner has obtained caste certificate by way of fraud and such act on the part of the petitioner, by no stretch of imagination can be said to be a bonafide action. In other words, it is submitted that when a person who does not belongs to reserve category, obtains a caste certificate of reserve category and on the strength of that certificate secures employment, he necessarily deprives a genuine reserve
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W.P. No. 517 of 2017candidate from the fruits of selection and appointment. Such action on the part of an undeserving candidate cannot be said to be a bonafide action. Mr. Pandey, placed reliance on 2005 (7) SCC 690, 2007 (5) SCC 336, 2008 (13) SCC 170 & 2015 (14) SCC 497. On the basis of these judgments, it is submitted that merely because petitioner has worked for few decades, it cannot be said that his caste status cannot be looked/enquired into.
7. No other point is pressed by the parties.
8. I have bestowed by anxious consideration on the rival contentions of the parties and perused the record.
9. The first question is whether delay in making reference to the scrutiny committee for verification of caste certificate can be a reason to restrain the respondents from undertaking the exercise of verification of caste status. This point is no more res integra. In the case reported in 2008 (13) SCC 170 (Central Bank of India v. Madhulika Guruprasad Dahir), the Apex Court opined as under:
"12. In the above background, the questions for our consideration would be: (i) whether delay in making reference to the Scrutiny Committee for verification of the caste certificate as also the delay on the part of the Scrutiny Committee in such verification per se vitiates the order of termination of services of an employee, even when the certificate is ultimately found to be false, and (ii) whether because of the employee having rendered services to the employer for over twenty years, would it be equitable to cancel her appointment, when admittedly in the first instance the employee was not eligible for such appointment?
13. Both the issues are no longer res integra. The implications of misuse of the benefits conferred by the Constitution on a particular section or sections of the citizenry were highlighted by this Court in Madhuri Patil v. Commr., Tribal Development. It was said that the admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Caste or Scheduled Tribe or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or
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posts under a State for want of social status certificate. Therefore, with a view to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, the Court issued as many as fifteen directions. One of the directions so issued, was that as soon as the finding is recorded by the Scrutiny Committee, holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned, or the appointing authority with a request to cancel the admission or the appointment. Thereupon, the admission or the appointment shall be cancelled without any further notice to the candidate and the candidate shall be debarred from further study or continue in office in a post.
14. Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch an exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment to the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, and does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour.
15. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. (See R. Vishwanatha Pillai v. State of Kerala, Bank of India, BHEL, Derry v. Peek, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Bhaurao Dagdu Paralkar v. State of Maharashtra.)
16. In Ram Chandra Singh v. Savitri Devi this Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine.
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17. Recently, in State of Maharashtra v. Ravi Prakash Babulalsing Parmar dealing with a similar situation, this Court has observed thus: (SCC p. 89, para 23) "23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
18. Having considered the matter in the light of the aforestated le- gal position, in our judgment, the decision of the High Court is un- tenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate fur- nished by the employee was false, the very foundation of her ap- pointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must neces- sarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opin- ion, the fact that caste certificate was referred to the Scrutiny Com- mittee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appoint- ment."
10. In 2005 (7) SCC 690 (Bank of India v. Avinash D. Mandivikar), the Apex Court opined as under:
"8. Stand of Respondent 1 employee is to the effect that he has put in nearly three decades of service and has about three years to go before retirement, and in terms of the High Court's order he has been denied promotion. Therefore, the order of the High Court is an equitable order.
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9. A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai v. State of Kerala to be inconsequential. In para 19 it was observed: (SCC pp. 116-17) "19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment.
The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
10. The protection under Milind case cannot be extended to Respondent 1 employee as the protection was given under the peculiar factual background of that case. The employee concerned was a doctor and had rendered long years of service. This Court noted that on a doctor, public money has been spent and, therefore, it will not be desirable to deprive the society of a doctor's service.
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W.P. No. 517 of 2017Respondent 1 employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him."
11. Reference may be made to 2007 (5) SCC 336 (Addl. GM-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde). The relevant paragraphs read as under:
"13. The principle, which seems to have been followed by this Court is, that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be termi- nated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. Here again no hard-and-fast rule can be laid down. If the falsehood of the caste certificate submitted by the stu- dent is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted.
14. In the case in hand the respondent got appointment on 31-5- 1982 on a post, which was reserved for a member of Scheduled Tribe. On receiving complaints the employer referred the matter to the District Collector, Nagpur and also to the Scrutiny Committee in March 1991. The subsequent period has been spent in making en- quiry and in litigation as the respondent filed three writ petitions. In view of the principle laid down by this Court we are clearly of the opinion that his services were rightly terminated by the appellant and the High Court was in error in directing his reinstatement. The order passed by the High Court, therefore, has to be set aside."
12. A plain reading of aforesaid judgments make it clear that if a person has secured employment on the basis of an incorrect caste status or on the basis of a wrong/bogus/incorrect caste certificate, his caste status can be inquired into whenever such illegality is pointed out. Merely because the employee has
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W.P. No. 517 of 2017rendered few decades of service, the employer cannot be deprived to examine the caste status of the employee.
13. Shri Tamrakar although relied upon the judgment of Supreme Court in the case reported in Collector vs. P. Mangamma, 2003 (4) SCC 488, Dattu vs. State of Maharashtra, 2012 (1) SCC 549 and in the case of Ku. Madhuri Patil vs. Additional Commissioner, 1994 (6) SCC 241(Supra), in my considered view, no such principle of law was laid down in the said cases that after rendering few years of service, caste status of the employee cannot be examined. In view of reproduced portion of judgments mentioned hereinabove, I am unable to hold that the respondents are prevented to examine the caste status of the petitioner. In the light of aforesaid Supreme Court judgments, the Division Bench judgment of Bombay High Court in the case of Anil Vasantrao Shirpurkar vs. State of Maharashtra(Supra) cannot be pressed into service. Thus, the first issue raised by Shri Tamrakar is decided against him.
14. The second contention/issue raised is based on the undertaking given by the petitioner and reproduced hereinabove. No doubt, in cases of State of Maharashtra vs. Milind, 2001 (1) SCC 4, Raju Ramsingh vs. Mahesh Devrao, 2008 (9) SCC 54, Punjab National Bank vs. Vilash, 2008 (14) SCC 545, R. Unnikrishnan vs. V.K. Nahanudevan, 2014(4) SCC 434, Kavita Solunke vs. State of Maharashtra, 2012 (8) SCC 430, Union of India vs. Dattatray, 2008 (4) SCC 612 and Shalini vs. New English High School, 2013 (16) SCC 526, in the peculiar factual backdrop of the matter, the Apex Court saved the employee/candidate from cancellation of service/termination. However, it is noteworthy that ratio decidendi of the said judgments is not that in all the cases the caste status of an employee can be taken away by permitting him to work as a general category candidate. In the peculiar facts of a case ,where bonafides of the candidate/employee was not in doubt, the courts have exercised its equity jurisdiction. There is no such thumb rule or a straight jacket formula which may be applied in all the cases. The question whether petitioner belonged to ST community or not is under scrutiny before the High Power Committee. Whether petitioner belongs to that caste or not will depend on the findings of the said
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W.P. No. 517 of 2017Committee. As an authority of first instance, the Committee will decide whether petitioner belongs to that caste and if not whether mistake of the petitioner in obtaining the caste certificate is because of any bonafide mistake. As noticed, only in cases of confusion/bonafide etc., the equity jurisdiction can be invoked. At this stage, where there is no material on record to show whether caste certificate is correct and whether it is based on any confusion, no directions can be issued for treating the petitioner as a general category candidate.
15. In the light of aforesaid analysis, in my view, no fault can be found in the action of the respondents in getting the caste status of the petitioner verified through High Power Verification Committee. To this extent, interference is declined. However, as opined above, whether petitioner is entitled to continue in employment as a general category candidate cannot be decided in the present proceedings. This question will remain open and may be raised by the petitioner in case findings of Caste Verification Committee go against him.
With the aforesaid observations, the petition is disposed of.
(Sujoy Paul) Judge s@if