Hitesh Jagjivanbhai Parmar vs State Of Gujarat & 2 on 10 April, 2017

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Gujarat High Court

Hitesh Jagjivanbhai Parmar vs State Of Gujarat & 2 on 10 April, 2017

HC-NIC Page 1 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT [1] These two matters were ordered to be heard together. They are, therefore, placed together as per the order of the Hon'ble the Chief Justice.

[2] The petitioner in both the matters is one and the same person.

[3] In Special Civil Application (to be referred to as "the first matter") filed under Article 226 of the Constitution, the petitioner has challenged the order dated 12.05.2008 at Annexure - A passed by respondent no.2 - Director, Developing Caste, Welfare Department, Gujarat State, whereby the Director has ordered to cancel the caste certificate dated 16.04.1998 issued to the petitioner and held the benefit of reservation taken by the petitioner as illegal ab initio.

[4] The Criminal Misc. Application (to be referred to as "the second matter") is filed under Section 482 of the Criminal Procedure Code, 1973 ("the Code") seeking to quash First Information Report (FIR) being C.R.No.I-199 of 2009 registered with Kagdapith Police Station, Ahmedabad on 21.08.2009 for the offences under Sections 177, 181, 417, 419, 465, 467, 468, 471 and 120(B) of the Indian Penal Code ("the Penal Code") FIRST MATTER :

[5] It appears from the facts stated in the petition as well as from the documents annexed with the petition that the Gujarat State Road Transport Corporation (GSRTC) had issued advertisement on

02.07.1999 inviting applications to fill vacant posts in reserved categories including two posts of Deputy Engineer (Civil) - Class II reserved for Socially and Educationally Backward Classes (SEBC) to complete backlog of such reserved category posts.

[6] When the advertisement was issued, the petitioner was already serving as Junior Engineer (Civil) with GSRTC. The petitioner has averred in the petition that he was working as Junior Engineer (Civil) Page 2 of 20 HC-NIC Page 2 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT with GSRTC since 1994.

[7] Prior to the advertisement to fill up vacant posts in reserved categories, the petitioner was issued caste certificate by the District Social Welfare Officer (Developing Caste), Vadodara certifying that the petitioner belongs to "Hindu Sai Suthar" caste. With such caste certificate, the petitioner applied for the post of Deputy Engineer (Civil). The petitioner was appointed as Deputy Engineer (Civil) with GSRTC.

[8] As recorded in the impugned order, pursuant to the application dated 11.04.2007 of one Shri H. J. Rathod, the petitioner was asked to remain present on 14.05.2007 before the respondent no.2 with the documents in support of the caste certificate issued to him. The petitioner remained present on the said date and produced six documents. The respondent no.2 then proceeded to decide on the validity of the caste certificate issued to the petitioner and ultimately, passed the impugned order.

[9] Learned senior advocate Mr.K. G. Vakharia appearing with learned advocate Mr.Hardik Muchhala and Mr.M. K. Vakharia for the petitioner submitted that the petitioner has not obtained the caste certificate fraudulently but the concerned authority on scrutiny of the documents produced by the petitioner and, having regard to the resolutions of the Government, issued caste certificate to the petitioner. Mr.Vakharia submitted that the resolutions dated 26.08.1994 and 21.03.1997 of the State Government provided that, the caste certificate of "Sai Suthar" could be issued if the supporting documents were produced for such purpose. Mr.Vakhara submitted that as per the resolutions dated 09.06.1997 and 18.06.1997, the certificates from Vishva Gujarati Sai Suthar Samaj and from local Sai Suthar Samaj were considered to be valid documents for issuing caste certificate. Mr.Vakharia submitted that the Government issued clarificatory resolution dated 04.07.2000 to clarify that "Sai Darji"

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HC-NIC Page 3 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT and "Sai Suthar" both form part of Suthar community. Mr.Vakharia submitted that to give way to all confusions, the Government vide its communication dated 12.02.2002 clarified that the caste certificates issued as per the earlier instructions were not be cancelled but the new certificate should be issued as per the prevailing instructions. Mr.Vakharia submitted that ignoring all the resolutions for issuing caste certificate and the clarification issued by the Government not to cancel the caste certificates, the impugned order is passed. Mr.Vakharia submitted that the impugned order is passed after long period of nine years and contrary to the guidelines issued by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil vs Addl. Commissioner reported in (1994) 6 SCC 241. Mr.Vakharia took the Court to the findings of the National Commission for Backward Classes to point out that the caste "Darji" and "Sai Suthar"

is common for backward class and as per the National Commission for Backward Classes Act, 1993, the castes declared as backward by commission are considered to be valid for the authority like GSRTC. Mr.Vakharia alternatively submitted that as per the impugned order, the petitioner is considered to be of Darji caste and Darji caste has come to be recognized as SEBC in the State of Gujarat from 2007 onwards and, therefore, the petitioner would otherwise continue to be belonging to SEBC. Mr.Vakharia, thus, urged to allow the petition and to quash the impugned order.

[10] Learned advocates appearing for the respondents are heard. Learned Assistant Government Pleader Mr.Swapneshwar Goutam submitted that though the petitioner very well knew that he did not belong to Suthar caste, still made application to get the caste certificate for "Sai Suthar" caste. Mr.Goutam submitted that the petitioner, in fact, is Darji by caste, however, since the Darji are commonly called as "Sai", the petitioner unduly referred himself as "Sai Suthar" to get him issued the caste certificate of "Sai Suthar" for seeking benefit of reservation. Mr.Goutam submitted that when the Page 4 of 20 HC-NIC Page 4 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT school leaving certificate of the petitioner does not mention the caste of the petitioner as of "Sai Suthar", it was wrong on the part of the petitioner to apply for caste certificate for "Sai Suthar" caste. Mr.Goutam submitted that with the help of irrelevant documents procured from Sai Suthar Samaj and by filing misleading affidavit, the petitioner got the caste certificate issued to him for caste "Sai Suthar", though, he was, in fact, Darji by caste. Mr.Goutam submitted that when the impugned order was made, the Director was competent as per the Rules to make scrutiny of the caste certificate and, therefore, the impugned order cannot be said to be passed contrary to the decision of the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (supra). Mr.Goutam submitted that if the caste certificate was invalidly issued, it is void ab initio and the delay would not come in the way in making declaration that the caste certificate is illegal ab initio. Mr.Goutam submitted that the Director has found as a matter of fact, during inquiry that by six documents produced by the petitioner, it is established that the caste of the petitioner is "Hindu Darji" but relying on wrong interpretation made in the affidavit filed by the petitioner that the Hindu Darji and Hindu Sai Suthar are one and same and without detailed independent inquiry, the caste certificate was issued to the petitioner. Mr.Goutam submitted that the impugned order made on such fact finding inquiry may not be interfered with by this Court in exercise of power under Article 226 of the Constitution.

[11] The Court having heard learned advocates for both the sides and having perused the impugned order, with the documents on record especially the resolutions of the State Government finds that when the petitioner applied for caste certificate, he produced school leaving certificate, his own affidavit, certificate issued by the Vishva Gujarati Sai Suthar Samaj dated 14.03.1998, certificate of Local Sai Suthar Samaj and ration card. All these documents are found referred in the caste certificate dated 16.04.1998 issued to the petitioner by Page 5 of 20 HC-NIC Page 5 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT the District Social Welfare Officer (Developing Caste) at Annexure - D to the petition. In the school leaving certificate of the petitioner at Annexure - R/5, against column no.2 of Race and Religion, "Hindu Darji" is mentioned. As on the date, when the petitioner applied for caste certificate, "Hindu Darji" was not recognized as SEBC but the caste / community of "Hindu Sai Suthar" was recognized as SEBC in the State of Gujarat.

[12] In the affidavit submitted by the petitioner with his application, the petitioner has stated that as per the vocation of the father or forefather, "Darji", "Sai" or "Suthar" used to be mentioned in the school leaving certificate but "Sai Darji" and "Sai Suthar" are from "Suthar" and there is no difference between "Sai Darji" or "Sai Suthar". The word "Sai" is referable to a person who sews, a tailor and from Suthar community, the persons in such vocation would be referred as "Sai Suthar". With a view to make clarification in this regard, the Government came out with a clarificatory resolution dated 21.03.1997 for the purpose of issuing caste certificate. In this resolution at Annexure - R/5, it is stated that on receipt of the representations from the Sai Suthar community and having given due consideration, the clarification is issued to the effect that those persons who are originally from Suthar community, produce the evidence that they are known as "Sai Darji" or "Sai Suthar", they could be issued with the caste certificate of "Sai Suthar". It is additionally provided that over-and-above, the other evidence considered for issuing caste certificate, if Vishva Gujarati Sai Suthar Samaj issues certificate of caste, the same shall be considered as reliable evidence for the purpose of issuing caste certificate. The petitioner has placed on record the copy of certificate issued by Vishva Gujarati Sai Suthar Samaj at Annexure - R/7 which is one of the documents considered by the concerned authority for issuing the caste certificate to the petitioner.

[13] However, after about nine years, respondent no.2 called upon Page 6 of 20 HC-NIC Page 6 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT the petitioner to remain present before him on 14.05.2007 with evidence in support of the claim of the petitioner that he belongs to Hindu Sai Suthar. As stated above, the petitioner remained present with six documents which included the certificate given by the Vishva Gujarati Sai Suthar Samaj and certificate of Local Sai Suthar Samaj. The respondent no.2 recorded in his impugned order that as per the documents produced, the petitioner has failed to establish that his caste is Suthar, but it appears from the documents that the petitioner is Hindu Darji by caste. It is further recorded in the impugned order by respondent no.2 that when the petitioner got caste certificate of Sai Suthar, the caste of Hindu Darji was not included in SEBC, but the petitioner by misinterpreting that Hindu Darji and Hindu Suthar is one and the same caste and by filing false affidavit for such interpretation and producing false evidence, got the caste certificate of Hindu Sai Suthar and got benefit of appointment in reserved categories of the SEBC.

[14] Thus, as per the conclusion of respondent no.2, the petitioner does not belong to Suthar community but he is Darji by caste and was not entitled to the caste certificate of Sai Suthar.

[15] The petitioner has produced copy of the certificate dated 18.08.1955 at Annexure - G with the petition which appears to have been issued by the Principal of the Umrala Taluka School to certify the birth date of the father of the petitioner. It is mentioned in such certificate that the certificate is issued on the basis of the register of the school. In such certificate, the caste of the father of the petitioner is stated as Hindu Suthar. However, such certificate was not produced by the petitioner either at the time when he applied for the caste certificate or when the petitioner was called upon to produce documents before respondent no.2. As provided in the resolution dated 26.08.1994, the certificate of caste of father or mother is considered to be reliable evidence for issuing the caste certificate to their children. It may be a matter of debate whether the certificate Page 7 of 20 HC-NIC Page 7 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT issued for birth date wherein the caste of the person to whom such certificate is issued is mentioned could be considered as reliable evidence for caste of such person. And if such certificate could be relied, the caste mentioned therein of the father of the petitioner is of Hindu Suthar. However, since, respondent no.2 had no occasion to consider such certificate, the Court would have considered remanding the matter to respondent no.2 to consider such certificate and to take fresh look at the matter. But in the facts of the case, the matter needs to be considered from different angle. The Government vide its circular dated 09.06.1997 issued instructions to consider the certificates issued by Vishva Gujarati Sai Suthar Samaj as reliable evidence for the purpose of issuing the caste certificate. Such instructions were issued in furtherance of the resolution dated 21.03.1997. While referring to the Government resolutions dated 21.03.1997 and 09.06.1997 and other resolutions, and also the certificates issued by Vishva Gujarati Sai Suthar Samaj relied for issuing caste certificates of Sai Suthar, respondent no.2 vide his communication dated 31.07.2001 at Annexure - R/1 sought clarification from the Deputy Secretary of the Social Welfare Department, State of Gujarat as to whether the caste certificates of Sai Suthar issued on the basis of earlier resolutions and the instructions should be accepted or not and whether the benefit of resolutions given on the basis of such caste certificates should be continued or not. The respondent no.1 - State through its authorized officer informed respondent No.2 vide communication dated 12.02.2002 at Annexure - R/2 that the caste certificates of the Sai Suthar issued as per the earlier instructions and the clarifications could not be cancelled but while issuing new certificates the prevailing instructions should be followed. Thus, as per such clarification made by the State Government, when the certificates of the caste for Sai Suthar issued as per the earlier resolutions / instructions were not to be cancelled, it would not require to further dwell into the matter whether the petitioner could be considered of Page 8 of 20 HC-NIC Page 8 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT Suthar caste on the basis of certificate of his father. However, the other two aspects need to be considered. One is, after long period of nine years, the scrutiny of the caste certificate issued to the petitioner was undertaken and second is, as recorded in the impugned order, even the Hindu Darji came to be included in the list of SEBC as per the Government resolution dated 09.05.2007. In such view of the matter and having considered overall facts and circumstances of the case, the Court finds that if the impugned order is allowed to be implemented and acted upon against the petitioner, it will work harsh upon the petitioner.

[16] However, the petitioner should not be permitted to claim any benefit anywhere for any purpose relying on the caste certificate of the Sai Suthar. Learned senior advocate Mr.Vakharia fairly stated under the instructions of the petitioner that the petitioner does not intend or desire to make use of or claim of any benefit anywhere for any purpose on the basis of the caste certificate of the Sai Suthar.

[17] Learned AGP Mr.Goutam has, however, relied on the decision of the Hon'ble Supreme Court in the case of Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and others, reported in (2008) 13 SCC 170 to submit that despite long delay the appointment secured on forged caste certificate shall remain invalid and sympathy or delay has no role to play. The Court finds that in the said case, the Scrutiny Committee had recorded finding that the caste certificate was obtained fraudulently. In the facts of the case, the Hon'ble Supreme Court has observed that the selection of the employee was conceived in deceit and, therefore, could not be saved by equitable considerations. Such are not the facts situation in the present case and, therefore, the judgment in the said case could not be applied in the facts of the present case. But in the subsequent decision in the case of Dattu S/o. Namdev Thakur Vs. State of Maharashtra and others, reported in (2012) 1 SCC 549, the Hon'ble Supreme Court has held and observed in paragraph Page 9 of 20 HC-NIC Page 9 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT nos.3 to 9 as under:-

3. The Caste Certificates issued to the petitioners were invalidated mainly on the ground that they were unable to satisfy the Caste Scrutiny Committee that they belong to the 'Thakur' tribe, which is recorded as a Scheduled Tribe at Serial No.44 of the Maharashtra Scheduled Tribes List. The Caste Scrutiny Committee also came to the finding that the School Leaving Certificate of the father of the petitioner in SLP(C)No.3314 of 2010, did not really support the case of the petitioners who, in any event, had also failed in the affinity test. It was submitted that the documents tendered by them did not conform to their claim. Furthermore, the petitioners were also unable to prove by way of affinity test that they belong to the Thakur Scheduled Tribe.

4. Cancellation of the 'Caste Certificates' issued to the petitioners on the basis of the report of the Caste Scrutiny Committee, was challenged by the petitioners in the aforesaid writ petitions, in which the High Court upheld the findings of the Caste Scrutiny Committee. As indicated hereinabove, the Special Leave Petitions have been filed against the said order of the High Court.

5. Having heard learned counsel for the petitioner(s), as well as the State of Maharashtra, we are of the view that even if we are to accept the findings of the Caste Scrutiny Committee, as also that of the High Court, we cannot ignore the various circumstances that have intervened between the issuance of the 'Caste Certificates' and the cancellation thereof. In fact, reference was made to the Caste Scrutiny Committee in 2009, i.e. nine years after the certificates had been issued, and there is no proper explanation for such delay. On the other hand, the petitioner in the first writ petition has been allowed by the respondents to continue in service and also by virtue of orders passed by the High Court.

Similarly, the petitioners in the other two writ petitions have continued their studies after having obtained certain benefits from their 'Caste Certificates'.

6. We are now informed by Mr. Kanade, learned senior advocate, appearing for the petitioner(s), that the petitioner in the second Special Leave Petition, Amol, who is the son of Dattu Thakur, who is the petitioner in the main Special Leave Petition, has in the meantime, appeared for the B.Pharmacy examination but his results have not been declared. Similarly, Pratibha, daughter of Dattu Thakur, who is the petitioner in the other Special Leave Petition, has appeared for the B.Ed.examination and her result is also to be declared.



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HC-NIC                                Page 10 of 20     Created On Tue Aug 15 20:24:41 IST 2017
                  C/SCA/8478/2008                                            JUDGMENT

7. In support of the case of the petitioner(s), an order passed by another Bench of this Court in Swati Vs. State of Maharashtra& Ors. on 6-9-2010, was brought to our notice, wherein in similar circumstances, the Court while dismissing the civil appeal, directed that the benefits that had already been enjoyed by the candidate, and the degree obtained by her in the BDS course, which she had completed, would continue. The Court further directed that she would not be entitled to any further benefits under the 'Caste Certificates' issued to her and that whatever advantage she may have obtained by way of payment of fees at a reduced rate, were to be made up by her by paying the difference.

8. We are of the view that this being a case of a similar nature, the decision of the said Bench may also be applied to the facts of this case.

9. Accordingly, while dismissing all the three Special Leave Petitions, we direct that whatever advantage the three petitioners in the three Special Leave Petitions, may have derived on the basis of their 'Caste Certificates', shall not be disturbed and the cancellation of their respective 'Caste Certificates' will not deprive them of the benefits which they have already enjoyed. However, we also make it clear that none of the three petitioners in the three respective Special Leave Petitions, will be entitled to take any further advantage of reservation in future, either for studies or for employment."

[18] In another decision, in the case of Shalin Vs. New English High School Association and others, reported in (2013) 16 SCC 526 the Hon'ble Supreme Court has held and observed in paragraph nos.6 to 9, 12, 15 and 16 as under:-

6. It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke v.

State of Maharashtra, in which one of us, Thakur J, had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but Page 11 of 20 HC-NIC Page 11 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT no other benefit.

7. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would be relevant for deciding such like conundrums. These are :

7.1 If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended;

7.2 Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be 'Koshtis' or 'Halba Koshtis' under the broadband of 'Halbas', protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be;

7.3 This benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milind that the Constitution Bench clarified that 'Koshtis' or 'Halba-Koshtis' were not entitled to claim benefits as Scheduled Tribes and it was the 'Halbas' alone who were so entitled. A perusal of the judgment in Vilas by Sirpurkar J, as well as Solunke makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature;

7.4 Where a Resolution or Legislation exists, its raison d'etre is that protection is justified in presenti (embargo on removal from service or from reversion) but not in futuro (embargo on promotions in the category of Scheduled Caste or Scheduled Tribe).

8. A reading of the impugned Judgment requires us to clarify an important aspect of the doctrine of precedence.

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HC-NIC Page 12 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT Dattatray is the only Three-Judge Bench decision, and therefore indisputably holds pre-eminence. However, by that time several decisions had already been rendered by Two- Judge Benches some of which have already been discussed above. It was within the competence of Dattatray Bench to overrule the other Two-Judge Benches. Despite the fact that it has not done so the per incuriam principle would not apply to the decision because it was a larger Bench. However, no presumption can be drawn that the Dattatray Three-Judge Bench decision was of the opinion that the earlier Two-Judge Bench decisions had articulated an incorrect interpretation of the law. That being so, the Two-Judge Bench views may still be relied upon so long as the ratio of Dattatray is not directly in conflict with their ratios. It is therefore imperative to distill the ratio of Dattatray, which we have already discussed in some detail. We need only reiterate therefore that the Three-Judge Bench was perceptibly incensed with the falsity of the claim of the employee to Scheduled Caste/Scheduled Tribe status. That was not a case where a legitimate claim of consanguinity to a 'Halba Koshti', 'Koshti' or 'Gadwal Koshti' etc. had been made, which was at the inception point considered to be eligible to beneficial treatment admissible to Scheduled Tribes, later to be reversed by the Constitution Bench decision in Milind and declared to be the entitlement of Halbas only.

9. It is not the intent of law to punish an innocent person and subject him to extremely harsh treatment. That is why this Court has devised and consistently followed that taxation statutes, which almost always work to the pecuniary detriment of the assessee, must be interpreted in favour of the assessee. Therefore, as we see it, on one bank of the Rubicon are the cases of dishonest and mendacious persons who have deliberately claimed consanguinity with Scheduled Castes or Scheduled Tribes etc. whereas on the other bank are those marooned persons who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant Authority not to fall within the particular group envisaged for protected treatment. In the former group, persons would justifiably deserve the immediate cessation of all benefits, including termination of services. In the latter, after the removal of the nebulousness and uncertainty, while the services or benefits already enjoyed would not be negated, they would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Caste/Scheduled Tribe.

10. xxx xxx xxx

11. xxx xxx xxx Page 13 of 20 HC-NIC Page 13 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT

12. The Appellant before us has been in service since 6.11.1981 on the strength of her claim of consanguinity to 'Halba Scheduled Tribe' duly predicated on a Certificate dated 8.7.1974 issued by the Competent Authority. Avowedly she was appointed in a vacancy earmarked against the Scheduled Tribe category. She was confirmed as Assistant Teacher with effect from 1.1.1984. Respondent nos.1 and 2, by order dated 17.9.1989 appointed the Appellant as Assistant Head Mistress. Thereafter on 28.4.1994 she was promoted as Head Mistress by an order of even date, subject to production of Caste Validity Certificate. It is not clear when the certificate produced by the Appellant was referred to the Caste Scrutiny Committee, Nagpur for verification, but the said Committee by Order dated 20.8.2003 held it to be invalid. The learned Single Judge of the High Court of Judicature at Bombay, Nagpur Bench granted protection in service on the basis of Government Resolution dated 15.6.1995 by his order dated 2.9.2003 in Writ Petition No.3500 of 2003.

13. xxx xxx xxx

14. xxx xxx xxx

15. It requires specialised bodies such as Caste Scrutiny Committees, specialised lawyers, seasoned bureaucrats etc. to decipher which category a relatively backward, or ostracized or tribal person falls in. Can it therefore seriously be contended that a person who has honestly, in contradistinction with falsely, claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special backward class be visited with termination of her employment? We think that that is not the intent of the law, and certainly was not what the Three-Judge Bench was confronted with in Dattatray. In our opinion, therefore, the Appellant should have been debarred from any further advantage that would enure to persons belonging to the 'Halba' Tribe.

16. Accordingly, we direct reinstatement of the Appellant in service but without any back wages. With the passage of time it is possible that there may be another incumbent as Head Mistress of the Respondent No.1-School and we think that it would not be equitable to remove such person. However, if this post falls vacant before the Appellant reaches the age of retirement or superannuation she shall be reappointed to that post but with no further promotion as a Scheduled Tribe candidate unless she is otherwise entitled as a special backward class candidate. The Appeal stands disposed of accordingly. The parties shall bear their respective costs.




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HC-NIC                         Page 14 of 20     Created On Tue Aug 15 20:24:41 IST 2017
                    C/SCA/8478/2008                                                JUDGMENT

[19] In light of the above and in the facts of the case, the Court finds that while not permitting the petitioner to further claim any benefits on the basis of the caste certificate of the Sai Suthar, the petitioner should not be permitted to be visited with serious consequences concerning his employment by relying on the impugned order.

[20] In the result, the following directions are issued in the first matter i.e. Special Civil Application No.8478 of 2008.

1. The impugned order dated 12.05.2008 at Annexure - A made by respondent no.2 shall not be implemented or acted upon to the prejudice of the petitioner.

2. The benefit of reservation and employment taken by the petitioner on the basis of the caste certificate of Sai Suthar shall not be taken away from the petitioner.

3. The petitioner, however, shall not be entitled to claim any further benefit anywhere for any purpose on the basis of the caste certificate of Sai Suthar issued to him and shall not make use of such certificate for himself or for his family members for any purpose.

This petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent.

SECOND MATTER:

[21] In this matter the FIR which is sought to be quashed, was lodged by respondent no.2, who passed away pending the petition and his heirs are to be joined as respondent nos.2.1 to 2.4 as per the order dated 30.03.2016 passed in Criminal Misc. Application No.13193 of 2015.

[22] As stated in the FIR, the incident for the alleged offences took Page 15 of 20 HC-NIC Page 15 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT place before 16.04.1998. However, the FIR came to be lodged on 21.08.2009.

[23] The gist of the FIR is that the petitioner procured the caste certificate of Sai Suthar by hatching conspiracy with the co-accused to get the benefit of reservation in appointment of the Deputy Engineer (Civil), Class II with Gujarat State Road Transport Corporation (GSRTC). It is stated in the FIR that the caste of the petitioner is Darji and he cannot be said to be belonging to the caste of Hindu Sai Suthar and, therefore, the certificate issued by the Vishva Gujarati Sai Suthar Samaj and the Local Sai Suthar Samaj and based on such certificate, the caste certificates issued by the District Social Welfare Officer, who are all arraigned as accused, are forged and since, all these accused have facilitated in issuing the caste certificate to the petitioner for Sai Suthar, they have committed the offence of forgery.

[24] Learned senior advocate Mr.K. G. Vakharia appearing with learned advocate Mr.Hardik Muchhala and Mr.M. K. Vakharia for the petitioner submitted that the allegations made in the FIR do not constitute any of the offences alleged against the petitioner. Mr.Vakharia submitted that the informant was also serving in GSRTC against whom the petitioner had held inquiry for taking disciplinary action and, therefore, the present FIR was lodged to wreck vengeance against the petitioner. Mr.Vakharia submitted that the petitioner bona fide applied to get the caste certificate by relying on the resolutions and the instructions issued by the State Government and with the application, the petitioner produced different documents and the District Social Welfare Officer, on scrutiny of the documents and in consonance with the Government resolutions and the instructions, issued the caste certificate to the petitioner. Mr.Vakharia submitted that whether the District Social Welfare Officer was justified in relying on the documents for issuing the caste certificate to the petitioner or whether the petitioner was entitled for the caste certificate for Sai Page 16 of 20 HC-NIC Page 16 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT Suthar based on the documents submitted by the petitioner, cannot be considered to be an act of either conspiracy or the act of forgery of the documents. Mr.Vakharia submitted that the FIR is lodged after a long period of about more than eleven years and if the petitioner is allowed to be prosecuted in connection with the FIR, it will be an abuse of process of the Court. Mr.Vakharia submitted that in the nature of the allegations made in the FIR and considering the delay in lodging the FIR, as also since the FIR is lodged to wreck vengeance against the petitioner, this Court may exercise its inherent power under Section 482 of the Code to prevent the abuse of process of the Court so as to secure the ends of justice.

[25] Learned Additional Public Prosecutor Mr.Rakesh Patel for the respondent - State submitted that for the offences charged in the FIR, the delay could not be considered to be a ground to quash the FIR. Mr.Patel submitted that the allegations in FIR do satisfy the ingredients of the offences alleged and considering the nature of the allegations made in the FIR, since fact finding inquiry / investigation is required, the Court may not exercise its inherent power under Section 482 of the Code in favour of the petitioner.

[26] Learned advocate Mr.N. K. Majmudar for the informant submitted that the FIR is not lodged just to wreck vengeance against the petitioner but since the informant could find that the petitioner conspired with other accused to make false documents to get the caste certificate of Sai Suthar fraudulently to take undue benefit of reservation for appointment on the public post, the FIR came to be lodged. Mr.Majmudar submitted that when the serious offences are alleged and lodging of the FIR was possible only after acquiring knowledge about the conspiracy hatched by the petitioner and other accused to make forged certificates with sole purpose to get the caste certificate to take benefit of reservation, this Court may not exercise its inherent powers under Section 482 of the Code on the ground of delay, as also on the ground that the FIR is lodged with Page 17 of 20 HC-NIC Page 17 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT vengeance. Mr.Majmudar submitted that the allegations made in the FIR disclose and make out the offences alleged against the petitioner, for which investigation is required in the facts stated in the FIR and, therefore, the Court may not exercise its inherent powers under Section 482 of the Code to quash the FIR.

[27] The Court having heard learned advocates for both the sides finds that as alleged in the FIR, the petitioner who is stated to be belonging to the Darji caste applied for the caste certificate for Sai Suthar caste. For getting such caste certificate, the petitioner produced different documents including the certificates issued by the Vishva Gujarati Sai Suthar Samaj and Local Sai Suthar Samaj. It is not the complaint of either Vishva Gujarati Sai Suthar Samaj or the Local Sai Suthar Samaj or of any other authority that the certificate and the documents placed by the petitioner with his application were never issued by them. In fact, while dealing with the first matter where the challenge was made to the order of the Director of Social Welfare Department to cancel the caste certificate of Sai Suthar issued to the petitioner, the Court has referred different resolutions and the instructions issued by the State Government for considering the certificate issued by the Vishva Gujarati Sai Suthar Samaj as relevant evidence for the purpose of issuing the caste certificate. It is also not the case of the Social Welfare Officer, who issued the caste certificate to the petitioner, that the petitioner presented before him false certificate or that caste certificate of Sai Suthar of the petitioner was forged. What is alleged in the FIR is that though the petitioner belongs to Darji caste but he in conspiracy with other accused procured false certificate of Hindu Sai Suthar and got issued the caste certificate of Sai Suthar from Social Welfare Department to get the benefit of reservation for appointment with the GSRTC. Such would certainly not make out offence of forgery against the petitioner. The other offences alleged are of furnishing the false information and/or making false statement on oath to the public servant and of cheating Page 18 of 20 HC-NIC Page 18 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT by personation and with knowledge to cause wrongful loss to other persons. The Court finds from the allegations in the FIR that no such case is made out against the petitioner. As stated in the FIR, the petitioner, while applying for caste certificate of Sai Suthar, had produced the school leaving certificate wherein he was shown to be Hindu Darji. But if the petitioner bona fidely believed that he could be considered as Sai Suthar and was entitled to get certificate of Sai Suthar and by relying on the certificate issued by the Vishva Gujarati Sai Suthar Samaj and the resolutions and the instructions of the State Government, if the caste certificate was issued to him, it could not be said that the petitioner has committed the offence of giving false information or cheating to cause loss to somebody by getting caste certificate based.

[28] The petitioner has averred in the petition that on account of internal rivalry and with mala fide intention the informant who was at the relevant time in service with the GSRTC as Deputy Civil Engineer, lodged the FIR. It is further averred in the petition that the petitioner as head of the department conducted inquiry pursuant to the order passed by this Court and found that the informant committed in gross negligence and since, recover of Rs.25,000/- from him, was ordered the informant developed grudge against him and on certain occasions, the informant addressed applications to the Managing Director of the Corporation for holding inquiry against him. The petitioner has relied and referred to the order passed by this Court at Annexure - A dated 23.01.2004 whereby the Managing Director of the Corporation was directed to hold inquiry against the concerned officer of the Corporation (informant) who remained negligent in not properly defending the proceedings in Reference (L.C.K) No.626 of 1998 in the Labour Court and also to inquire into the conduct in not challenging the award for a period of more than one and half years. Such facts would go to show that the inquiry conducted by the petitioner and resultant consequences suffered by respondent no.2 Page 19 of 20 HC-NIC Page 19 of 20 Created On Tue Aug 15 20:24:41 IST 2017 C/SCA/8478/2008 JUDGMENT can not be ignored while considering the allegations made in the FIR. As stated above, the FIR was lodged after a long period of eleven years for which, no satisfactory explanation is given in the FIR. Such FIR could, therefore, said to be lodged with an aim to put the petitioner to harassment by facing criminal prosecution. The Court finds, in facts of the case and in the nature of the allegations made in the FIR that the petitioner should not be permitted to be prosecuted for the offences alleged in the FIR, as allowing prosecution of the petitioner based on the FIR would result into sheer harassment to the petitioner and would amount to abuse of process of Court. Therefore, to prevent the abuse of process of the Court thereby to secure the ends of justice, the Court finds that the FIR is required to be quashed in exercise of powers under Section 482 of the Code.

[29] In view of the above, the second matter i.e. Criminal Misc. Application No.11600 of 2009 is allowed. The impugned FIR being C.R.No.I-199 of 2009 registered with Kagdapith Police Station, Ahmedabad on 21.08.2009 for the offences under Sections 177, 181, 417, 419, 465, 467, 468, 471 and 120(B) of the Indian Penal Code is hereby quashed. Rule is made absolute.

(C.L.SONI, J.) vijay Page 20 of 20 HC-NIC Page 20 of 20 Created On Tue Aug 15 20:24:41 IST 2017

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