Orissa High Court
Renuka Majhi And Others vs State Of Orissa And Others on 22 December, 2014
Author: A.K.Rath
Bench: Amitava Roy, A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.10712 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Renuka Majhi and others .... Petitioners
Versus
State of Orissa and others .... Opposite parties
For Petitioners -- Mr.Gautam Mukherji,
Advocate
For Opp. Parties -- Mr.R.K.Mohapatra,
Government Advocate
PRESENT:
HONOURABLE THE CHIEF JUSTICE MR. AMITAVA ROY
AND
THE HONOURABLE DR. JUSTICE A.K.RATH
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Date of Hearing :10.12.2014 : Date of Judgment:22.12.2014
Dr.A.K.Rath, J.In this writ petition under Article 226 and 227 of the Constitution of India, the petitioners have prayed, inter alia, to quash the order dated 14.7.2009 passed by the Director (ST/SC)- cum-Additional Secretary to Government, opposite party no.3, directing the Collector, Bolangir to take action on the order dated 30.6.2009 passed by the State Level Scrutiny Committee. By order dated 30.6.2009, the State Level Scrutiny Committee (hereinafter 2 referred to as "the Committee") came to a conclusion that the petitioners do not belong to Gond Community (Scheduled Tribe).
2. The factual matrix of the case is as follows:-
Lochan Majhi is the father of the petitioners. By tampering the school admission register, he obtained a fake Scheduled Tribe Certificate and took unfair advantage of the same in securing employment in the Office of the Executive Engineer, Lower Suktel Dam Division, Bolangir. While the matter stood thus, show cause notice was issued by the opposite party no.3 enclosing therein a copy of the report of the Inspector of Police, Vigilance Cell, Bolangir to him and the petitioners. Thereafter, Lochan Mahi and the petitioners filed their show cause. In a detailed order dated 30.9.2006, the Committee came to hold that Lochan Majhi had tampered the school register by changing the surname, name of the village, name of the father and caste. The Committee further held that the persons do not belong to Gond (Scheduled Tribe) and directed the Tahasildar, Kantabanjhi, opposite party no.9 to cancel the caste certificate issued to Lochan Majhi and the petitioners. A further direction was issued by the Committee to lodge the F.I.R. and to take appropriate action for removal of services of Lochan Majhi and petitioner no.1. Lochan Majhi challenged the order dated 30.6.2009 of the Committee before this Court in W.P.(C) No.10649 of 3 2009. A Division Bench of this Court in a well discussed judgment dated 30.4.2010 dismissed the writ petition. Thereafter, he filed Special Leave Petition No.17515 of 2010 before the apex Court. The same was also dismissed.
3. The petitioners have assailed the self-same order of the Committee, vide Annexure-7, on the ground that the order is an infraction of principle of natural justice inasmuch as no opportunity of hearing was provided to them. Alternatively it is pleaded that service of petitioner no.1 may be protected since she was no way responsible in obtaining the certificate. During pendency of the writ petition, an affidavit was filed on 19.8.2014 by the petitioners wherein it is stated that after dismissal of the writ petition, they have stopped using the caste certificate. At present petitioner nos.3 and 4 are not enjoying any reservation facilities provided by the Government and they will not enjoy the same in future. Thus, the petitioner no.1 may be protected.
4. A counter affidavit has been filed by opposite party no.9. It is stated that the petitioners, by suppressing the material facts, had obtained fake caste certificate in their favour. The same was ascertained in the inquiry conducted by the appropriate authorities. There is no infirmity in the order passed by the Committee. It is 4 further stated that petitioners 1, 2 and 3 are the daughters and petitioner no.4 is the son of Lochan Majhi. By suppressing the original caste, Lochan Majhi obtained the caste certificate claiming to be the Scheduled Tribe. He was appointed as peon in the erstwhile Irrigation Department. By utilizing the said fake certificate, petitioner no.1 was appointed as Junior Clerk in the Office of the Civil Court, Bolangir. Similarly, petitioner no.2 has been appointed as Sikhya Sahayak in the Rengali U.P. School in the district of Bolangir. When the allegation of fake caste certificate and utilization of the same was received, an inquiry was conducted by the State Vigilance Department, which produced a comprehensive report showing fake caste certificate obtained by a number of persons including the petitioners. The matter was reported to the Committee for further verification and necessary action. The Committee examined the matter and passed a final order for cancellation of the certificates of the petitioners and directed the authorities to take necessary action.
5. Heard Mr.G.Mukherji, learned counsel for the petitioners and Mr.R.K.Mohapatra, learned Government Advocate for the opposite parties.
6. Really two points arise for our consideration :- 5
1. Whether the order dated 30.6.2009 of the State Level Scrutiny Committee, vide Annexure-7, is an infraction of the principle of natural justice ?
2. Whether the service of the petitioner nos.1 and 2 can be protected ?
POINT NO.1.
7. The submission of Mr.Mukherji that the order dated 30.6.2009 is infraction of principle of natural justice is difficult to fathom. Admittedly, the order passed by the Committee was the subject matter of challenge in W.P.(C) No.10649 of 2009, which was dismissed on 30.4.2010. Thereafter, the Special Leave Petition No.17515 of 2010 filed by the father of the petitioners before the apex Court had met the same fate. Thus, the order attained finality.
8. Be it noted that the Committee had issued show cause notices to the father of the petitioners as well as the petitioners. Thus, it cannot be said that no opportunity of hearing was provided to the petitioners to defend their case. After considering the show cause, report of the Investigating Officer, school admission register of the father of the petitioners and the caste certificates issued by the two different authorities, the Committee came to hold that the persons do not belong to Gond (S.T.) and, accordingly, direction was issued to the concerned authorities, where father of the petitioners 6 and petitioner no.1 are serving, to take steps for removal of their services.
POINT NO.2.
9. In the State of Maharashtra Vrs. Milind, AIR 2001 SC 393, the Constitution Bench of the Supreme Court was examining whether Koshti was a sub-tribe within the meaning of Halba/Halbi as appearing in the Constitution (Scheduled Tribes) Order, 1950. The respondent in that case had obtained a Caste Certificate from the Executive Magistrate to the effect that he belonged to 'Halba' Scheduled Tribe. He was on that basis selected for appointment to the MBBS degree Course in the Government Medical College for the session 1985-86 against a seat reserved for Scheduled Tribe candidates. The certificate relied upon by the respondent-Milind was sent to the Scrutiny Committee, the Committee recorded a finding after inquiry to the effect that the respondent did not belong to Scheduled Tribe. In an appeal against the said Order, the Appellate Authority concurred with the view taken by the Committee and declared that the respondent Milind belonged to 'Koshti Caste' and not to 'Halba Caste' Schedule Tribe.
10. In a writ petition filed against the said order by Milind, the High Court held that it was permissible to examine whether any 7 sub-division of a tribe was a part and parcel of the tribe mentioned therein and whether 'Halba-Koshti' was a sub-division of the main tribe 'Halba' within the meaning of Entry 19 in the Constitution (Scheduled Tribes) Order, 1950. The High Court further held that Halba-Koshti was indeed a sub-tribe of Halba appearing in the Presidential Order.
11. In an appeal filed against the above order of the High Court, the apex Court held that the Courts cannot and should not expand their jurisdiction while dealing with the question as to whether a particular caste or sub-caste, tribe or sub-tribe is included in any one of the Entries mentioned in the Presidential Orders issued under Articles 341 and 342. Allowing the State Government or the Courts or other authorities or tribunals to hold an inquiry as to whether a particular caste or tribe should be considered as one included in the Schedule to the Presidential Order, when it is not so specifically included would lead to problems. The apex Court declared that the holding of an inquiry or production of any evidence to decide or declare whether any tribe or tribal community or part thereof or a group or part of a group is included in the general name, even though it is not specifically found in the entry concerned would not be permissible and that the Presidential Order must be read as it is. 8
12. Having said so, the apex Court noticed the stand taken by the Government on the issue of 'Halba-Koshti' from time to time and the circulars, resolutions, instructions but held that even though the said circulars, instruction had shown varying stands taken by the Government from time to time relating to 'Halba-Koshti' yet the power of judicial review exercised by the High Court did not extend to interfering with the conclusions of the competent authorities drawn on the basis of proper and admissible evidence before it. The apex Court observed:-
"................The jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution. These being the parameters and in the case in hand, the Committee conducting the inquiry as well as the Appellate Authority, having examined all relevant materials and having recorded a finding that Respondent 1 belonged to "Koshti" caste and has no identity with "Halba/Halbi" which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the State of Maharashatra, the High Court exceeded its supervisory jurisdiction by making a roving and indepth examination of the materials afresh and in coming to the conclusion that "Koshtis" could be treated as "Halbas". In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction."
13. The Constitution Bench had in Milind's case noticed the background in which the confusion had prevailed for many years and 9 the fact that appointments and admissions were made for a long time treating 'Koshti' as a Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality will not be affected by the decision taken by the apex Court.
14. In Shalini Vrs. New English High Sch. Assn. and others, 2013 (15) SCALE 273, the apex Court culled out the principles which would be relevant for deciding such like conundrums. The same are quoted hereunder:-
"(a) 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 instance 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; (b) Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificate 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."
15. So far as petitioners 1 and 2 are concerned, they have completed their studies. Thereafter, they have been appointed in service. Let us see if their services can be protected by invoking the principle enunciated by the apex Court. Admittedly, the father of the petitioners by tampering school admission register 10 obtained a fake scheduled caste certificate and took unfair advantage of the same in securing an employment in a Government office. The direction of the Committee to cancel the caste certificate has been upheld by the apex Court. The petitioner nos.1 and 2 have also entered into the Government service on the basis of the said certificate. Thus, they are disentitled from continuing in service. Since 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 had been given to the petitioners therein with the rider that those persons will be adjusted in the general category and thereby rendering them ineligible to the further benefits. Thus, the case of the petitioners is not covered under the principles enunciated by the apex Court in Shalini (supra). A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration. Thus, the said decision is of no assistance to the petitioners.
16. In Regional Manager, Central Bank of India Vrs. Madhulika Guruprasad Dahir and Others, (2008) 13 SCC 170, the apex Court had again considered the identical issues involved in the present writ petition. The apex Court held that equity, sympathy and 11 generosity have 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 the Court. Paragraphs-14 and 18 of the said report are quoted hereunder:-
"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 and generosity have 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 the 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.
18. Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily 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 opinion, the fact 12 that caste certificate was referred to the Scrutiny Committee 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 appointment."
17. The extraordinary and equitable jurisdiction of this Court under Article 226 cannot be exercised in favour of the persons who have approached this Court with a pair of unclean hands. Those persons, who have entered services through backdoor, must vacate the same through back door.
18. The ratio of the judgment, in Regional Manager, Central Bank of India (supra), applies with full force to the facts and circumstances of the present case and, accordingly, we dismiss the writ petition.
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Dr.A.K.Rath, J.
Amitava Roy, C.J. I agree.
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Amitava Roy, C.J.
Orissa High Court, Cuttack.
The 22th December,2014/CRB.