Madhya Pradesh High Court
Ram Kishore Keer vs The State Of Madhya Pradesh on 4 October, 2018
[1]
W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. & WP-643-2018
Parties Name Hemprakash Keer
vs.
The State of M.P. & others
WP-2754-2018
Teekaram Nayar
vs.
The State of M.P. & others
WP-2882-2018
Brindawan Dayma
vs.
The State of M.P. & others
WP-2940-2018
N. Kumar Keer
vs.
The State of M.P. & others
WP-5894-2018
Hemprakash Keer
vs.
The State of M.P. & others
WP-6043-2018
Ram Kishore Keer
vs.
The State of M.P. & others
Date of Judgment 04/10/2018
Bench Constituted Single Bench.
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties For petitioners: Mr. A.S. Raizada,
& Mr. A.S. Thakur, Advocates.
For Respondents/State: Mr. B.D.
Singh, Government Advocate.
[2]
W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018
Law laid down
Significant paragraph
numbers
ORDER
04/10/2018 This common order will govern the disposal of this batch of petitions wherein similar questions are involved.
(2) Facts are taken from WP-643-2018. The petitioner was appointed as Constable in reserve category i.e., Keer (Schedule Tribe) by order dated 15.07.2002. The petitioner was promoted as Head Constable (Radio) in reserve category by order dated 18.10.2006. The petitioner was further promoted by order dated 16.11.2010 in schedule tribe category on the post of Assistant Sub- Inspector. The petitioner secured yet another promotion by order dated 08.12.2015 (Annexure-P/4) on the post of Sub-Inspector (Radio) in general category. Thereafter, by order dated 08.08.2016 (Annexure-P/5) the respondents on the strength of notification dated 08.01.2003 withdrew the caste status of the petitioner and, consequently, cancelled the aforesaid promotions of the petitioner. The petitioner assailed this order in WP-14321-2016 and this Court by order dated 09.10.2017 set aside the aforesaid order and gave liberty to the department to proceed against the petitioner in accordance with law by affording opportunity of hearing.
(3) The department by notice dated 24.11.2017 (Annexure-P/7) directed the petitioner to show cause and provide him personal hearing. The petitioner filed his reply dated 27.11.2017 and contended that there was no misrepresentation of fact in getting the [3] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 aforesaid promotions. Accordingly, no adverse order be passed against the petitioner. The department passed the order dated 22.12.2017 and opined that once the very basis of petitioner's promotions i.e., reserve category status is withdrawn, the question of misrepresentation on the part of petitioner does not arise. Resultantly, the aforesaid promotions of petitioner were cancalled and his seniority position was redrawn.
(4) The petitioner of WP-643-2018 also filed WP-5894-2018. In this case the grievance of the petitioner is that his schedule tribe caste status is erroneously taken away which resulted into his reversion from various posts. On the basis of such reversion, petitioner was treated as a general category candidate and on that basis, he was promoted by order dated 23.01.2018 (Annexure- P/16). Thus, admittedly both the matters are interrelated and fate of first case will decide on the fate of second case.
(5) In remaining connected writ petitions also, petitioners were admittedly belonged to Keer (Schedule Tribe) community. In these cases, the petitioners are employees of Forest Department. They were admittedly appointed before issuance of gazette notification dated 08.01.2003. They admittedly secured promotion from the post of Forest Guard to Forester as reserve category (schedule tribe community) candidates. In these petitions, admittedly, petitioners' visit to this Court is of second time. They have challenged the earlier unilateral reversion orders which were set aside by this Court by reserving liberty to the respondents to take appropriate action.
(6) Mr. A.S. Raizada & Mr. A.S. Thakur, learned counsel for the petitioners contended that the department was fully aware about the [4] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 issuance of notification dated 08.01.2003, whereby the caste status of the petitioners. i.e., Keer community was deleted from the list of schedule tribe community. However, neither the said notification nor the subsequent circular dated 05.8.2005 was brought to the notice of the petitioners. The petitioners never misrepresented in any manner in order to secure the promotion. Thus, in absence of any misrepresentation, the reversion is bad in law. Reliance is placed on AIR 2012 SC 3016, [Kavita Solunke vs. State of Maharashtra & ors.]. Mr. Anand Singh Thakur placed reliance on certain other orders of Supreme Court mentioned in this judgment including the judgment in Milind's case and yet another judgment reproduced in para 13 of the judgment of Kavita Solunke (supra).
(7) The second contention of Mr. A.S. Raizada is that one promotion of the petitioner i.e., 08.12.2015 (Annexure-P/4) was in general category. Thus, petitioner became general category employee for all purposes w.e.f. 08.12.2015. There was no justification in cancelling this order also. Mr. Raizada further contends that on the one hand, petitioner's promotion orders were cancelled, he was reverted and his seniority was redrawn and, on the other hand, for similarly situated persons, while taking away their schedule tribe caste status, their seniority position in the same cadre was redrawn without their being any reversion for them. On this aspect, Mr. Raizada relied on 2008 (14) SCC 403, [Purnendu Mukhopadhyay vs. V.K. Kapoor & another]. Mr. Raizada also placed reliance on 1987 MPLJ 146, [Baboolal vs. Kankar Mujare & others].
(8) It is a common ground on behalf of the petitioners that JDA circular dated 02.09.2016 (Annexure-P/13) clearly shows that the [5] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 intention of the Government to protect the services of such reserve category employees who had already entered into government service before 08.01.2003. It is urged that the language employed in this circular makes it clear that from the date of issuance of circular i.e., 02.09.2016, petitioners can be deprived from their reserve category status, but other service benefits earned by them prior to this date (02.09.2016) cannot be taken away.
(9) Sounding a contra note, Mr. B.D. Singh, learned Government Advocate submits that once gazette notification dated 08.01.2003 is issued, the schedule tribe caste status of Keer community is taken away/withdrawn from the said date. Thereafter, by no stretch of imagination, petitioners can enjoy the said caste status. He submits that circular dated 02.09.2016 is very clear which shows that the employees who have entered into service as schedule tribe category before issuance of notification aforesaid (08.01.2003), they can remain in employment but circular does not protect the promotion earned by them as reserved category candidate.
(10) Mr. B.D. Singh, learned GA placed heavy reliance on judgment of Supreme Court reported in 2017 (8) SCC 670, [Chairman & Managing Director, Food Corporation of India and others vs. Jagdish Balaram Bahira & others] to contend that the question of mens rea or misrepresentation on the part of petitioners is of no relevance. Once it is found that they did not have any right to enjoy the caste status, they cannot reap the benefit of promotion on the basis of that caste status. Mr. Singh for this purpose, relied on a Division Bench judgment of this Court reported in ILR 2012 (MP) 317, [Union of India & ors vs. Shri Devraj Bais & ors]. He submits that if a mistake has been committed by the department, [6] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 such administrative mistake can very well be corrected.
(11) On the point of discrimination, Mr. B.D. Singh, learned GA submits that the person with whom parity is claimed by the petitioners, his caste status was withdrawn and on assessment it was found that even if he is being treated as a general category candidate, his promotion will remain intact although his seniority position will be down graded. Resultantly, only seniority position was down graded. This explanation given in the return is not rebutted in the rejoinder.
(12) No other point has been pressed by the learned counsel for the parties.
(13) I have heard the parties at length and perused the record.
(14) So far the first and third contentions of petitioner are concerned, it is based on the ground that the petitioners have not derived the benefits of promotions on the basis of any misrepresentation of fact or by practicing fraud and they were protected by GAD Circular dated 02-09-2016. Thus, while taking away their caste status, their services be protected. Reliance was placed on the judgment of Supreme Court in the case of Kavita Solunke (supra). In the considered opinion of this Court, judgment of Kavita Solunke (supra) is based on the judgment of Supreme Court in AIR 2001 SC 393 (Milind vs. State of Maharashtra). No doubt, the Court in those case protected the benefits in favour of the persons while permitting the respondents to withdraw the caste status. However, it is noteworthy that the judgments of Milind and Kavita Solunke (supra) were again considered by Three Judges Bench of Supreme Court in the case of Jagdish Balaram Bahira [7] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 (supra). The relevant portion of this judgment reads as under:-
"Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is in tended, the invalidation of the claim to be long to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class."
(viii) The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini insofar as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law."
(15) A cursory reading of the said paragraphs makes it clear that the Supreme Court after considering the judgment of Milind and Kavita Solunke (supra) opined that the protection of the benefits already earned on the strength of reserve category/status is not permissible. The argument regarding protection was based on the GAD Circular dated 02-09-2016. This circular reads as under:-
^^Ek/;izns'k 'kklu lkekU; iz'kklu foHkkx ea=ky;
dzekad ,Q 7&19@2016@vkiz@,d- Hkksiky] fnukad 02 flr- 2016 izfr] 'kklu ds leLr foHkkx] v/;{k jktLo e.My] e/;izns'k Xokfy;j] leLr laHkkxk;qDr] leLr dysDVj] leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r] e/;izns'k-
fo"k;%&dhj] ehuk ,oa ikjph tkfr ds deZpkfj;ksa dks laj{k.k iznku djus ds laca/k esaA [8] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 Hkkjr dk jkti= ¼vlk/kkj.k½ Hkkx&2 [kaM&1] fnukad 08-01- 2003 izdkf'kr Hkkjr ljdkj fof/k ,oa U;k; ea=ky; dh vf/klwpuk fnukad 08-01-2003 ds }kjk e/;izns'k ds fy, vf/klwfpr vuqlwfpr tutkfr;ksa dh lwph esa vuqdzekad 21] 32 ,oa 39 ij vafdr tkfr;ksa dze'k% dhj] ehuk ,oa ikj/kh dks foyksfir fd;k x;k gSA blds iwoZ ;g tkfr;ksa vuqlwfpr tutkfr dh lwph esa lfEefyr FkhA 2@ jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd Hkkjr ljdkj dh vf/klwpuk fnukad 08-01-2003 ds iwoZ rd dhj ¼Hkksiky] jk;lsu vkSj lhgksj ftyksa esa½] ehuk ¼fofn'kk ftys dh fljksat mi[kaM esa½ ,oa ikj/kh ¼Hkksiky] jk;lsu vkSj lhgksj ftyksa esa½ tkfr ds tks O;fDr vkj{k.k dk ykHk izkIr dj 'kkldh; lsok esa izos'k ik pqds gSa mudh lsok izHkkfor ugha gksxh fdUrq Hkfo"; esa mUgsa vuqlwfpr tutkfr dk ugha ekuk tk,xk vkSj bl frfFk ds ckn mUgsa vkj{k.k dk YkkHk Hkh ugha fn;k tk,xkA ¼,e-ds- ok".ksZ;½ izeq[k lfpo e/;izns'k 'kklu lkekU; iz'kklu foHkkx [Emphasis Supplied]'' (16) Parties have taken a diametrically opposite stand regarding interpretation of this circular. Shri Raizada and Shri Thakur urged that protection is wide enough to include all service benefits including the promotions earned by petitioners on the basis of a caste status, which stood withdrawn on 08-01-2003. The second interpretation advanced by petitioners is that this circular dated 02-
09-2016 can be made applicable only w.e.f. 02-09-2016. Meaning thereby any promotion or benefits taken by the petitioners on the basis of their caste status after 02-09-2016 alone can be withdrawn. Shri B.D. Singh advanced an opposite different interpretation. In my view, a careful reading of this circular shows that Keer, Meena and Pardhy communities were deleted from the relevant schedule of ST community w.e.f. 08-01-2003. The persons who have secured employment on the basis of reserved status of Keer, Meena or Pardhy shall remain in employment but circular does not protect their promotions which had taken place after deletion of notification [9] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 dated 08-01-2003. In the last line of Para 2 of Circular dated 02-09- 2016, the department has used the expression- "after this date, they shall not be given the benefit of reservation." The crucial date employed in Para 2 of this circular shows that it is 08-01-2003, the date when aforesaid notification deleting the caste status was issued and not the date of issuance of circular dated 02-09-2016. Thus, I am unable to persuade myself with the line of argument advanced in this regard by learned counsel for the petitioners. Resultantly, Point No.1 and 3 are decided against the petitioners. They are not entitled to save their promotions earned by them as reserved category candidate after withdraw of said caste status. Although they are entitled to be protected in relation to their employment because when they entered the service, their caste status was intact and notification dated 08-01-2003 was even not issued.
(17) The second point raised by the learned counsel for the petitioner is based on the question of discrimination. The respondents have clarified that certain persons with whom parity is claimed by the petitioners on the ground that they were not reverted and their seniority in the same cadre is altered, are not similarly situated persons. The said persons were although promoted on the basis of their reserved category status. Despite taking away that reserved status, their promotion on the promotional post in general category was permissible. In other words, in spite of taking away caste status, the said employees earned promotion as a general category candidate. This resulted into alteration of their seniority position on the promotional post and hence employer was required to undertake a limited exercise of alteration of seniority. This stand taken by the respondents in their return is not rebutted by filing rejoinder. Even otherwise, once caste status is withdrawn by [10] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 issuance of notification, petitioners have no right whatsoever to enjoy the promotion based on caste status. The petitioners even otherwise cannot claim negative equality. [See (1997) 1 SCC 35 (Jaipur Development Authority vs. Daulat Mal Jain & Ors.), (2000) 4 SCC 186 (C.S.I.R. & Ors. vs. Dr. Ajay Kumar Jain), (2007) 8 SCC 249 (State of Jharkhand & Ors. Manshu Kumbhkar) and (2011) 3 SCC 436 (State of Orissa & Anr. vs. Mamata Mohanty)] (18) Shri Raizada urged that one promotion of petitioner was in general category and, therefore, his status from that promotion needs to be saved. The argument on the first blush appears to be attractive but looses its strength on a deeper scrutiny. Admittedly, before issuance of this promotion order dated 08-12-2015 (Annexure P/4), the petitioner earned other promotion as reserved category candidate. Such promotions must be earned in an accelerated way. He earned certain promotions and reached to a step in the ladder of promotion as a reserved category candidate. If the petitioner would have been treated as general category candidate w.e.f. 08-01-2003, he would not have reached that the step in the ladder of promotion so quickly as he had reached on 08-12-2015 (Annexure P/4). Thus, while taking away the benefits of caste status and resultant promotions, the respondents are required to re-draw the seniority positions, promotions etc. by treating the petitioners as general category candidates. No fault can be found in such an action of the department. The other judgments cited by Shri Raizada have no application in the facts and circumstances of these cases.
(19) To sum-up, in the considered opinion of this Court, the petitioners are required to be treated as a general category candidate [11] W.P. Nos.643/2018, 2754/2018, 2882/2018, 2940/2018, 5894/2018 & 6043/2018 w.e.f. 08-01-2003. They have no legal right to enjoy the promotions which were earned by them on the basis of reserved category status. Since petitioners were admittedly appointed before issuance of notification dated 08-01-2003, it will not result into termination of their services.
(20) With aforesaid observations, the petitions are dismissed. No cost.
(Sujoy Paul) Judge s@if & mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2018.10.04 04:34:01 -07'00' IN THE HIGH COURT OF MADHYA PRADESH JABALPUR, PRINCIPAL SEAT AT JABALPUR WP-643-2018 Hemprakash Keer vs. The State of M.P. & others WP-2754-2018 Teekaram Nayar vs. The State of M.P. & others WP-2882-2018 Brindawan Dayma vs. The State of M.P. & others WP-2940-2018 N. Kumar Keer vs. The State of M.P. & others WP-5894-2018 Hemprakash Keer vs. The State of M.P. & others WP-6043-2018 Ram Kishore Keer vs. The State of M.P. & others Order posted for: .10.2018.
(SUJOY PAUL) JUDGE