Central Administrative Tribunal - Delhi
Ms. Mithlesh Verma vs Govt. Of N.C.T. Of Delhi Through on 15 May, 2013
Central Administrative Tribunal Principal Bench New Delhi OA No. 309/2013 Reserved on: 21.02.2013 Pronounced on:15.05.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. Birendra Kumar Sinha, Member (A) Ms. Mithlesh Verma d/o Sh. Pritam Singh Verma R/o H.No. 1/102 (F.F.) Old Rajinder Nagar, New Delhi 110 060. Applicant (By Advocate: Sh. Ajesh Luthra) Versus 1. Govt. of N.C.T. of Delhi through The Chief Secretary 5th Floor, Delhi Sachivalaya, New Delhi. 2. The Director, Directorate of Education, Govt. of NCT of Delhi, Old Sectt., Delhi. 3. The Director of Vigilance, GNCT of Delhi 4th Level, C-Wing, Delhi Secretariat, New Delhi 2. Respondents (By Advocate: Sh. N.K. Singh for Mrs. Avnish Ahlawat) O R D E R
Justice Syed Rafat Alam:
The applicant, presently working as a District Education Officer/Principal, West-B, Directorate of Education, Government of NCT of Delhi, is aggrieved with the Memo of Charges dated 9.09.2010 along with the imputation of charges of misconduct or misbehavior . The aforesaid Memo of Charges was issued and served on her vide letter dated 7.10.2010 for initiating proceeding under Rule 14 of CCS (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 1965 Rules) for fraudulently securing appointment to the post of Post Graduate Teacher (PGT for short) in the Directorate of Education against a post reserved for Scheduled Tribe (ST for short) and her further promotion to the post of Vice Principal and Principal (Annexure A-1). The applicant has, therefore, approached this Tribunal by filing this OA under Section 19 of the Administrative Tribunals Act, 1985 for the following relief(s):-
(a) Quash and set aside the impugned charge- sheet with all consequential benefits.
Award costs of the proceedings and Pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. The case of the applicant, in brief, is that she belongs to ST category i.e. Sonkatkari Tribe. She had been adopted by her fathers friend Sh.Mahavir Prasad Verma, who was Sunar by caste. It is averred by the applicant that inadvertently her caste was recorded as Sunar in School and College. She applied for her Domicile Certificate and Caste Certificate from Jhunjhunu and was granted the same in the year 1979 by S.D.M., Jhunjhunu after verification by the Revenue Functionaries certifying that she belongs to Sonkatkari Tribe. In 1980, the applicant was appointed by the Postal & Telegraph Department against a vacancy reserved for ST following verification of caste certificate in due process. In 1982, her caste/ST Certificate was also verified by D.E.T., Ambala Cantt where she joined as Telephone Assistant after resigning from Postal Department, and also at the time of her confirmation and grant of EB increment in the year 1983. It was on the basis of this caste/ST certificate that in 1987, she was admitted to the Government B.Ed College, Chandigarh and thereafter was appointed as PGT in the year 1989 in Delhi Government. Her caste/ST Certificate underwent due verification at the time of her confirmation and grant of EB increment in 1991 and further when she was appointed as Principal through Union Public Service Commission in 1998 and also at the time of her confirmation in the same post in 2000 followed by yet another verification at the level of crossing of EB as Principal. It is the case of the applicant that in this due process of verification of her caste/ST certificate, which stood scrutiny there had not been even an iota of doubt regarding the genuineness of the same. The applicant further contended that she got married to one Sh. Tarsem Lal Verma, who also belongs to Sonkatkari Tribe in accordance with the Tribal Rites and he is in Government service. Her Caste/ST certificate continues to be valid till date and has not been rescined. The applicant alleges that this position was unsettled on account of the personal animus harboured by one N.K. Pathak, Dy. Superintendent of Police (DSP for short) in the Central Bureau of Investigation (CBI for short), who has got a false criminal case instituted against her on the allegation that she belongs to Sunar caste and has fraudulently obtained a false caste/ST certificate. The Department has also initiated departmental proceeding against her vide the impugned communication alleging that she has similarly fraudulently obtained a false Domicile Certificate from SDM, Jhunjhunu whereas she is a resident of Bullandshahr in Uttar Pradesh. The list of documents enclosed to the charge-sheet is only a sub-set of the papers relied upon in the criminal case. Shri N.K. Pathak, DSP in CBI, who figures as PW-149 in the criminal case, is also listed as the sole witness in the departmental proceeding.
3. Learned counsel for the applicant submits that despite her having secured a Government job, she continues to adhere to the tribal customs and also named her son as Ishaan Sonkatkari. Sonkatkari is notified in the list of Scheduled Tribes in the State of Rajasthan. Her husband also belongs to Rajasthan and has got his ancestral lands in Pilani. Learned counsel for the applicant has vehemently asserted that the departmental proceeding initiated against the applicant is outright illegal in view of the judgment of Honble Supreme Court in the matter of Kumari Madhuri Patil and Another versus Additional Commissioner Tribal Development and Others [AIR 1995 (SC) 94] and a catena of decisions which are being followed since then. Hence, the applicant has sought quashing of the departmental proceeding along with other relief(s) as detailed in paragraph no.1 above. Learned counsel for the applicant has relied upon the following decisions in support of his arguments:-
(i) Hizwana Bano versus State of U.P. through Collector and Others [WP(C) No. 69019/2010 decided on 07.01.2013 by Honble High Court of Allahabad]; and
(ii) Kamlesh Kumar versus State of U.P. and Others [WP(C) No. 68285/2012 decided on 07.01.2013 by Honble High Court of Allahabad].
(iii) Collector, Bilaspur versus Ajit P.K. Jogi & Others [(2011)-10-SCC-357];
(iv) R. Vishwanatha Pillai versus State of Kerala and Others and Vimal Ghosh versus State of Kerala and Others [(2004)-2-SCC-105]
(v) Kumari Madhuri Patil and Another versus Additional Commissioner Tribal Development and Others [AIR 1995 (SC) 94]
(vi) Anand versus Committee for Scrutiny and Verification of Tribe Claims and Others [2012(1) SCC 113].
Case of the Respondents:
4. On the other hand, learned counsel appearing for the respondents vehemently opposed the Application on the ground of principle of constructive res judicata. It is contended that the applicant had earlier approached the Tribunal vide OA No.4009/2012 for quashing of the charge sheet/stay of the departmental proceeding. The Tribunal, while dismissing the OA vide its order dated 03.12.2012, allowed the departmental proceeding to continue along with the criminal case by observing that not only the standard of proof was different but the procedure followed in both the departmental and criminal proceedings were entirely different and, therefore, no prejudice would be caused if both proceeds simultaneously. Learned counsel for the respondents has placed reliance on the decision of Honble Supreme Court rendered in Regional Manager, Central Bank of India versus Madhulika Guruprasad Dahir & Ors. [2008(13) SCC 170] wherein the Supreme Court relying on the judgment in Kumari Madhuri Patil and Another versus Additional Commissioner Tribal Development and Others (supra) held that once the Caste Certificate Scrutiny Committee holds that the caste certificate was obtained by deceitful mean, the appointing authority should cancel the appointment without any further notice. The respondents have further relied upon the case of Ram Chandra Singh Versus Savitri Devi [(2003)-8-SCC-319] wherein it has been held that any affair tainted with fraud could not be perpetuated or saved by application of any equitable doctrine. Learned counsel for the respondents has strongly emphasized that a criminal case was also pending in the Tis Hazari Court vide CBI/RC/DST/2007/S/0004 dated 29.06.2007 where the applicant had been seeking adjournments to delay the proceedings on one pretext or the other. So much so, she did not even cross-examine the sole witness, namely, N.K. Pathak thereby indicating that she has no defence. The applicant also moved the Honble High Court of Delhi in CRL.MC No.2956/2011 and CRL.MC No.2957/2011 for cancellation of charge-sheet in the criminal case wherein the Honble High Court, relying upon a series of judgments, declined to interfere with the criminal case. Learned counsel for the respondents strongly urged that the case of the applicant deserves no leniency in view of the enormity of the act and, therefore, the Original Application should be dismissed. In support of his submissions, learned counsel has cited the following decisions:-
(i) Kendriya Vidyalaya Sangathan versus Shanti Acharya Sisingi [WP(C) No. 4743/2008 decided on 16.11.2010 by Honble High Court of Delh];
(ii) Mithlesh Verma versus CBI and Taresem Lal Verma versus CBI [CRL. M.C. No. 2956/2011 and CRL.M.C. No. 2957/2011 commonly decided by the Honble High Court of Delhi on 03.07.2012]; and
(iii) Mr. Mithlesh Verma versus Govt. of NCT of Delhi & Another [OA No. 4009/2012 decided on 03.12.2012 by the Central Administrative Tribunal, Principal Bench, New Delhi].
5. We have considered the submissions made on both sides and also perused the pleadings and the documents on record filed by the parties and are of the view that in the facts of the case and keeping in view the contentions raised before us, the following questions arise for our consideration:-
Whether the principle of constructive res judicata applies to the facts of the present case?;
Whether the alleged charges in respect of genuineness of the caste certificate can be enquired in a proceeding initiated under Rule 14 of 1965 Rules?;
Whether the Caste Certificate Scrutiny Committee constituted under paragraph 12 of the judgment in Kumari Madhuri Patil and Another versus Additional Commissioner Tribal Develoment and Others (supra) is the only competent forum to enquire into the genuineness of the caste/ST certificate in the State?;
Whether after the report of the Caste Certificate Scrutiny Committee a proceeding under Rule 14 of 1965 Rules is required to be initiated for imposing punishment?; and What relief, if any, can be granted to the applicant?
Issue No.1
6. The doctrine of res judicata is based on the need of giving finality to judicial decision. It prevents the parties to agitate the same issue again and again, which has already been adjudicated before the same Court. The said doctrine in substance provides that the issue or a point decided and attending finality should not be allowed to be re-opened and re-agitated again and again. To appreciate the Issue No.1 as to whether the OA is hit by the principles of constructive res judicata and, therefore, the instant Application is not maintainable as barred because of the principle of constructive res judicata, it would be useful to have a look of Section 11 of the Code of Civil Procedure, 1908 which provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. One of the essential conditions to attract the principle of res judicata is that there must be a formal adjudication between the parties on the issue either directly or substantially involved in a former suit between the same parties and such issue has been heard and finally decided by such Court. However Explanation (IV) to Section 11 of the Code of Civil Procedure, 1908, provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V provides that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused. Explanation VIII provides that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Section 12 of the said Act disentitles the plaintiff to institute a suit in respect of a matter which directly and substantially has been finally decided by the Court of competent jurisdiction.
7. In the case in hand, the applicant has challenged the continuance of the departmental proceeding mainly on the ground that no departmental proceeding could be held without obtaining the view of the Caste Certificate Scrutiny Committee constituted in the light of the judgment rendered in the case of Kumari Madhuri Patils case (supra). In the earlier proceeding (OA No.4009/2012), the applicant challenged the action of the respondents in proceeding with the departmental proceeding during the pendency of criminal proceeding in respect of same charges and, therefore, sought the following reliefs:-
(a) Direct the Respondent that the departmental proceedings shall be retained in abeyance till the conclusion of the trial in the criminal case.
(b) pass any other order(s) as deemed fit & proper in the facts and circumstances of the case. It was argued in the earlier proceeding that the charges in the departmental proceeding being identical to that of criminal case, both cannot be allowed to proceed simultaneously and if the applicant is asked to disclose his defence at this stage it is bound to prejudice her defence in the Trial, whereas, in the instant Application, the applicant has sought quashing of the charge sheet with all consequential benefits on the ground inter alia that the validity of caste certificate issued by the competent authority can only be gone into by the Caste Certificate Scrutiny Committee of the Government and departmental proceedings can proceed only after a finding of the Caste Certificate Scrutiny Committee that the claim is false.
8. We find that the relief sought by the applicant in OA No.4009/2012 was for issuance of a direction commanding the respondents to keep the departmental proceeding against her in abeyance till the conclusion of the trial of the criminal case. However, in the present Application, the applicant has alleged that the validity of caste certificate issued by the competent authority can only be gone into by the Caste Certificate Scrutiny Committee of the Government and the Disciplinary Authority cannot assume the jurisdiction of Caste Certificate Scrutiny Committee and, therefore, it is contended that the Disciplinary Authority could not have initiated the proceedings under Rule 14 of 1965 Rules until the matter is examined and a finding is recorded by the Caste Certificate Scrutiny Committee. A perusal of the pleadings of both the Applications i.e. the present one and earlier OA (OA No.4009/2012), it is apparent that the issues involved and the pleadings are quite different. In the former case the principal contention of the applicant was that since the departmental proceeding and the criminal case are based upon identical charges and have the same witness, it would tantamount to continue with the departmental proceeding which would compel the applicant to disclose her defence. In the instant case, as appears from the pleadings, the issue principally debated is different -whether the Caste Certificate Scrutiny Committee constituted under paragraph 12 of the case of Kumari Madhuri Patil and Another (supra) bestows the sole authority to consider the issue of validity of caste/ST certificate issued or whether it could be adjudicated by different Fora. Here, we find that the two are different questions which have to be answered differently. Hence, despite the fact that there is a commonality in the relief sought, this issue was not directly and substantially decided by the Tribunal in OA No.4009/2012.
9. In Amalgamated Coalfields Ltd. And another vs. Janapada Sabha Chhindwara and others [AIR 1964 SC 1013], the Apex Court having taken note of the fact that validity of the notices based on grounds different and distinct from the grounds raised on the earlier occasion held that the appellants cannot be precluded from raising the new contentions on which their challenge against the validity of notices is based as the same cannot be rejected on the ground of principle of constructive res judicata. Their Lordships further opined that constructive res judicata which is a special and artificial form of res judicata enacted by Section 11 of the Civil Procedure Code should not generally be applied to writ petition filed under Article 32 or Article 226 of the Constitution. In Mathura Prasad Bajoo Jaiswal and Others vs. Dossibai N. B. Jeejeebhoy (AIR 1971 SC 2355) the Apex Court while considering the issue of res judicata observed in the bottom of para 13 of the judgment as under:-
13..Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
10. Therefore, we are of the view that the scope of both the proceedings being different as the basic issue as to whether the validity of caste certificate can be gone into in a proceeding initiated under Rule 14 of 1965 Rules or not was not the subject matter of dispute, nor the same was addressed or adjudicated upon in the earlier proceeding; but the same being not directly or substantially an issue in the previous Application between the parties, in our view, the present Application cannot be thrown on the ground of the same being barred by the doctrine of constructive res judicata. In the instant OA, we are of the view that new premises have been taken up and new arguments put forth and, therefore, it does not tantamount to a review of the Tribunals order dated 03.12.2012 passed in OA No.4009/2012. The instant OA, being a fresh OA, needs to be decided on its own merit. We do not find any legal impediment in deciding the issue and granting the relief sought in the instant Application. We answer the first question accordingly.
Issue Nos.2 & 3.
11. The Question Nos.2&3 are interlinked and are being dealt with together. This is the substantive issue. Before we may venture into the issue as proper, we have to state very clearly as to who are the Members of the Scheduled Tribe. The Preamble to our Constitution promises to secure to every citizen social and economic justice, equality of status and of opportunity assuring the dignity of the individual. According to D.W. Mazumdar, as stated in his work "Races and Cultures of India", which deals with tribal Organizations, "A tribe is a collection of families bearing a common name, speaking a common dialect occupying or professing to occupy a common territory and is not usually endogamous though originally it might have been so". In other words, they are inhabitants of intractable terrain regions of the country kept away from the main stream of national life, and with their traditional moorings and customary beliefs and practices, they are largely governed by their own set of customary laws regulated from time to time with their own rich cultural heritage, mode of worship and cultural ethos. They are as good as the citizens of India as any other. The Constitution guarantees them equality before law and the equal protection of law. Although Articles 14 and 15(1) prohibit discrimination among citizens on certain grounds, yet Article 15(4) empowers the State to make special provisions for advancement of Scheduled Castes and Scheduled Tribes. Article 16(1) requires equality of opportunity to all citizens in matters of appointments to an office or a post under the Union or a State Govt. or Pubic Undertakings etc. Article 16(4), contradictory to the general provisions of equality of opportunity, again empowers the State to make provisions for reservation in appointments or posts in favour of classes of citizens not adequately represented in the services under the State. Article 46 directs the State to promote the educational or economic interest of the Scheduled Tribes and Scheduled Castes with special care and to protect them from social injustice and all other forms of exploitation. Reservation in admission to educational institutions and employment are major State policies to accord to the Tribes, social and economic justice apart from economic measures. Hence, a number of seats/vacancies have been earmarked to be filled up only from amongst them. Articles 342 of the Constitution provides that the President may, after consultation with the Governor of a State, by public notification, specify the Tribes or Tribal Communities, which shall be deemed to be Scheduled Tribes in relation to that State and/or Union Territories, as the case may be. Under Article 342(2), this Presidential order has a quality of finality attached to it. It also flows out of this Article that some communities may be Tribes in one State while they may not be so in other depending upon the Presidential order. Since most of the tribes are patriarchal and matriarchal in character, though they may be endogamous or exogamous, the acquisition of membership of the tribe is difficult, if not impossible, for other males wife family, it could be through process of marriage accompanied by adoption by the Society [N.E. Horo versus Jahan Ara Jaipal Singhs case (supra].
12. However, it is this set of benefits that render the tribal identity prone to theft and misappropriation. There have been number of instances where unscrupulous persons have come forward to obtain benefits of such reservation by posing themselves as members of the ST to the deprivation of a genuine member of the ST who would have otherwise filled the place. Honble Apex Court has taken increasingly stringent steps against such theft of identity. It is also equally considered that the tribal societies have not remained in a frozen state and that extension of these facilities are also subject to same process of changes in their social and economic status. In fact, changes in the tribal societies are more apparent on account of operation of the process of Sanskritization, globalization and participation in the large labour market of the country.
13. However, it is to be noted here that despite all these changes occurring, the tribal societies still continue to retain their core characteristics in the shape of faith in their Gods, mode of worships, their birth and death rituals and their marriage rites. It is just possible that some of the customs related to burial in Hargadi or Masna may have to be discontinued on account of their physical distances involved. Honble Supreme Court in Kumari Madhuri Patils case (supra) has observed as under:-
Undoubtedly, Hindu social order is based on hierarchy and caste is one of the predominant factors during pre-constitution period. Unfortunately instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis. The father of the appellants admittedly described himself in 1943 and thereafter as a Hindu Koli. In other words his status was declared a Koli by caste and Hindu by religion. Kolis are admittedly OBCs. His feigned ignorance of the ancestry is too hard to believe. The averment in the affidavit that the entries were mistakenly made as Hindu Koli is an obvious afterthought. The anthropological moorings and ethnological kinship affirmity gets genetically ingrained in the blood and no one would shake off from past, in particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the Society. The ingrained Tribal traits peculiar to each Tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the concerned officer or authority would get an opportunity to test the claim for social status of particular cast or tribe or tribal community or group or part of such caste, tribe or tribal community. It or he would reach a satisfactory conclusion on the claimed social status. It was on account of these reasons that the Honble Supreme Court ordered for constitution of a Committee which could contain a subject-matter Specialist trained in anthropological and sociological characteristics to determine the genuineness of the claim. Honble Supreme in the case of Anand versus Committee for Scrutiny and Verification of Tribe Claims and Others [2012(1) SCC 113] has held that the burden of proving the genuineness of the claim relating to Caste lies upon the applicant. It is also not to be lost sight of that the entire exercise of setting up a Committee in Kumari Madhuri Patils case (supra) arose from a false and bogus claim of the applicant therein for ST certificate that she belonged to Mahadev Koli caste while she did not. This amounts to filching of identity and would defeat the very purpose of the reservation if more and more of such cases were to be permitted. The anguish of the Honble Supreme Court is very clear in opening line of paragraph 13 of the judgment, which reads The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes 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 posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Caste Certificate Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval. Thereafter, the Honble Supreme went ahead to give the constitution and powers of the Committee. Such Committee provides that the social status certificate would be issued by Sub-Divisional Officer, Deputy Collector or Deputy Commissioner on the basis of an affidavit filed by the parent/ guardian or the candidate giving the details of the tribe to which he/she may belong, six months in advance from the date of admission to the educational institution. The Committee shall also be supported by Vigilance Cell. It implies from the order that all certificates issued are provisional subject to the scrutiny of the Committee. By further implication, this Committee shall also have the responsibility of deciding the genuineness of the social status certificate where it has already been issued. The order passed by the Committee is to be final and conclusive subject to proceedings under Article 226 of the Constitution. Para 12 of the judgment is ample clear to say that no suit or other proceedings before any other authority should lie.
14. In case of Collector, Bilaspur versus Ajit P.K. Jogi and Others [(2011)-10-SCC-357], the matter under consideration was that whether the findings given in respect of ST status of the applicant Ajit P.K. Jogi was valid in the light of Kumari Madhuri Patils case (supra) or not. The applicant had claimed that he belonged to Kanwar community which is a notified ST and had obtained a social status/caste certificate from time to time to this effect from the Collector, Bilaspur and other officers. In the year 2011, a complaint was filed before the National Commission for SCs/STs alleging that he was Christian and that he did not belong to ST, and had obtained several false caste certificates showing him to be belonging to Kanwar ST and had contested election from a Constituency reserved for STs. The Commission initially entrusted the enquiry to the State Government. However, when the Commission reached the conclusion that the State Government was unnecessarily dragging its feet over the matter, it asked its Unit at Bhopal to ascertain the correct position. Accordingly, Bhopal Unit had collected some material to show that the applicant belongs to Satnami caste (backward class) and that he did not belong to Kanwar ST and that he has got himself elected as Member of Legislative Assembly from a Constituency reserved for STs on the basis of a false caste certificate. After having given opportunity to the respondents i.e. National Commission for SCs/STs, Honble Supreme Court held the allegations true and directed the State Government to conduct the verification of the genuineness of the ST certificate submitted by the applicant Ajit P.K. Jogi and to initiate urgent necessary action for cancellation of his ST certificate and also criminal action due under law. One of the issues remained was that whether the Commission had the jurisdiction to entertain the complaint about the genuineness of the caste certificate of an individual and pronounce upon the validity of the caste certificate and the caste status of such person. Honble Supreme Court drew a parallel view with the case of Bhabani Prasad Jena v. Orissa State Commission for Women [(2010)-8-SCC-633] wherein it was held that the State Commission is not a Tribunal discharging the functions of judicial character or a court. Relevant part of the judgment reads thus:-
This Court thus formulated a scheme for verification of tribal status and held that any application for verification of tribal status as a scheduled tribe should be carried out by such Committees. The verification of the validity of caste certificates and determination of the caste status should therefore be done by the Caste Certificate Scrutiny Committees constituted as per the directions in Madhuri Patil or in terms of any statute made by the appropriate government in that behalf. The Honble Supreme Court further found the contention that there was sufficient material to reach to such a conclusion. The scope of the duties of the Commission as noticed above, did not involve inquiry or adjudication in regard to the rights of parties or caste status of the parties. The same is the position even under Article 338A (which was subsequently inserted) providing for a separate Commission for Scheduled Tribes with identical duties. The order of the Commission cannot, therefore, be sustained. The High Court was justified in setting aside the said order dated 16.10.2001.
15. The above cited judgments clearly go to prove that the Caste Certificate Scrutiny Committee constituted under the order of the Honble Supreme Court is the highest and the sole Authority to verify the genuineness of the claims/counter claims relating to issue of social status certificate including the ST certificate. This issue thus is no more res integra and is concluded by the judgment of the Apex Court rendered in Kumari Madhuri Patils case (supra).
Issue No.4
16. This issue raises a query that whether in departmental proceedings, order of dismissal/removal from service of an employee appointed on the basis of false/bogus caste certificate is sustainable or not. The instant issue too has been partly answered in relation to the previous issues. Once we have already deemed that the Caste Certificate Scrutiny Committee constituted under Kumari Madhuri Patils case (supra) is the highest and the sole authority to decide the genuineness of the caste certificate, it would straightaway imply that none other authority has the competence to decide the genuineness of the caste certificate which even includes the departmental authority. Had it been the case otherwise that the departmental authorities would competent to hold proceeding under CCS (CCA) Rules, 1965, it would become authority parallel to the Caste Certificate Scrutiny Committee in its derogation. This is not permitted under the terms of paragraph 12 of the judgment in Kumari Madhuri Patils case. Hence, any finding given relating to the social status certificate would again be subject to verification. Honble Supreme Court has consistently held this position in its various judgments including the one in Collector, Bilaspur versus Ajit P.K. Jogi (supra). Therefore, in view of the enunciation of law by the Apex Court in the aforesaid judgments, we hold that the departmental proceeding initiated against the applicant cannot proceed.
Issue No.5
17. Under this issue, we examine the fact that whether the applicant, who got the false certificate issued in 1979, was appointed on the basis of said certificate and soon thereafter has continued to earn promotions on its basis shall be allowed to walk away with the fruits of her caste certificate in case it is turned out to be false. The fact as it is stands is that till today the caste certificate has not been rescinded. We are also quite conscious of the fact that the entire exercise in Kumari Madhuri Patils case has stemmed from a deep concern of the Honble Supreme Court regarding usurpation of the rights of the members of the STs for admission to educational institutions and for appointment against the quota reserved for them. In fact, the Honble Supreme Court in the said case has clearly held in para 15 as under:-
15. As soon as the finding is recorded by the Caste Certificate Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. In other words, once the Caste Certificate Scrutiny Committee finds the caste certificate of an employee false and bogus, he is liable to be terminated without availing the protection under Article 311. Rule 19 of the CCS (CCA) Rules, 1965 empowers the disciplinary authority to consider circumstances of the case and make such orders as it deems fit. This does not include the case of obtaining the appointment on the basis of false and bogus certificate. CCS(CCA) Rules, 1965 were created to give effect to the rights provided to a Government employee under Article 311. Here, the question is that what happens to such cases where the Article 311 does not apply. This has been partially answered by the Honble Supreme Court in the case of R. Vishwanatha Pillai versus State of Kerala and Others and Vimal Ghosh versus State of Kerala and Others [(2004)-2-SCC-105] wherein the applicant Vishwanatha Pillai was Police Officer who had gained entry into the service on the basis of a false caste certificate. The contention on behalf of the applicant was that his services could not be terminated without following the procedure laid down under Article 311. The Honble Supreme Court has clearly found his contention as unsustainable and has, therefore, rejected the same categorically. The Honble Supreme Court also relied upon the case of Ishwar Dayal Shah Versus State of Bihar [1987 Lab IC 390] decided by the Honble High Court of Patna wherein it has been held that where an appointment to a civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such circumstances, the question whether the delinquent employee is a civil servant of the Union of the State no longer remains valid. In the aforesaid case it was further held by the Patna High Court that if the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and the door is barred against him, the clock of protection under Article 311 is not attracted. This was further examined by the Full Bench of the Patna High Court in the case of Rita Mishra versus Director, Primary Education, Bihar [AIR 1988 Pat 26] where the issue posed was that whether a public servant was entitled to payment of salary for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. Honble Court held that once it is found that the very appointment is illegal and non- est in the eyes of law, no statutory entitlements of salary or consequential rights of pension and other monetary benefits can arise. If the appointment is raised on forgery and deceit, no statutory right can flow from the same. Honble Supreme Court has clearly agreed with this position and has applied in the case of R. Vishwanatha Pillais case (supra).
18. Therefore, in view of the enunciation of law by the Apex Court in Kumari Madhuri Patil and Another versus Additional Commissioner Tribal Development and Others (supra) and R. Vishwanatha Pillai versus State of Kerala and Others and Vimal Ghosh versus State of Kerala and Others (supra), we are of the view that in respect of the alleged charges the departmental proceeding cannot be allowed to continue and the Application deserves to be allowed.
19. In the result, the Application succeeds and is allowed with the following directions:-
(i) The impugned departmental proceeding is hereby quashed.
(ii) The respondents shall refer the caste certificate furnished by the applicant at the time of her appointment along-with other material or evidence to the Caste Certificate Scrutiny Committee constituted under the judgment of Kumari Madhuri Patils case (supra), forthwith. The Caste Certificate Scrutiny Committee shall hold the necessary enquiry and come out with its findings expeditiously, preferably within a period of three months and submit its report to the Respondent No.2 i.e. Director of Education.
Both the applicant and respondents shall extend all possible cooperation in the matter of enquiry before the Caste Certificate Scrutiny Committee.
It is further provided that after receipt of the report from the Caste Certificate Scrutiny Committee, the Respondent No.2, Director of Education shall proceed in accordance with law as enunciated in Kumari Madhuri Patils case (supra) and R. Vishvanatha Pillai (supra).
20. With the above directions/orders, the Original Application stands finally disposed of, but without costs.
(Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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