Karnataka High Court
Sri J Madegowda S/O Late Javaregowda vs The Additional Director on 29 November, 2012
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
W.A.NO.16698/2011 (S-DIS)
BETWEEN:
Sri.J.Madegowda S/o late Javaregowda,
Aged about 55 years,
Working as Typist (K.P.T.C.L)
on deputation, working at
Karnataka Power Corporation,
Jog Falls, Shimoga District,
C/o B.Sathyanarayana,
Door No.138, 5th Main, 7th Cross,
Devanathachar Street,
Chamarajapete, Bangalore-560018.
...Appellant
(By Sri.Kasturi, Senior Counsel for
Sri.M.Raghavendrachar, Adv.,)
AND:
1. The Additional Director,
C.R.E.Cell, Palace Road,
Bangalore.
2. The Superintending Engineer (Ele)
O & M Circle, Mescom,
Shimoga.
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3. The Tahasildar,
Sagar Taluk, Sagar,
Shimoga District.
4. The Deputy Commissioner,
District Caste & Income
Verification Committee,
Shimoga District,
Shimoga.
... Respondents
(By Sri.C.Jagadeesh, Adv., for R1, R3 & R4
Sri. P.S.Dinesh Kumar, Adv., for R2)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act praying to set aside the
order passed in the Writ Petition No.2200/2009
(S-DIS) dated 17/08/2011.
This Writ Appeal coming on for Orders this day,
N.Kumar J., delivered the following:
JUDGMENT
The petitioner - appellant has preferred this appeal against the order passed by the learned Single Judge who has declined to interfere with the order of dismissal of the appellant on the ground that he has obtained the employment by suppressing the true caste.
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2. The appellant is a native of Sargur, Kollegal Taluk, Mysore District. He claims that he has studied at M.S.E.B., Higher Secondary School, Jog, Shimoga District. He has obtained the caste certificate from the Tahsildar, Sagar Taluk in the year 1978. He applied for the post of Laboratory Attender at K.E.B. Pre-university College, Jogfalls, in the year 1975 and he worked in the said place till 1984. Then, he applied for typist post in the 2nd respondent in September 1984. He claimed that he belongs to Kadukuruba community and therefore, he sought appointment against the post earmarked for Scheduled Tribe. He was appointed in the said post. In pursuance of the directions issued by the Apex Court in Madhuri Patil's case, the Karnataka Government framed the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules 1992 providing procedure for applying for the caste certificates, its verifications and also for validation -4- certificate to be issued by the Committee. After the constitution of the Committee in terms of the Act and Rules, a complaint was lodged before them complaining that the petitioner - appellant had obtained an employment meant for the Scheduled Tribe though he belongs to Kuruba community. The petitioner - appellant was served with the notice. An enquiry was conducted. The petitioner produced several certificates ranging from Head Masters, doctors, Surgeons and contended that he belongs to Kadukuruba community. The Committee after enquiry found that the appellant does not belong to the Kadukuruba community but he belongs to Kuruba community and therefore, they proceeded to cancel the certificate issued by the Tahsildar. It is on that basis, disciplinary proceedings were initiated against the petitioner. After enquiry, his services came to the terminated. The learned Single Judge declined to interfere with the said order. Hence, the present appeal is filed.
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3. The learned Senior Counsel appearing for the appellant assailing the impugned order contends that the committee constituted under the aforesaid Act has no jurisdiction to cancel the certificate issued by the Tahsildar prior to the said Act and Rules coming into force. In support of his contentions, he relied on several judgments of this Court. Secondly, he contended that even if there was discrepancy in the caste certificate produced by the petitioner in terms of the Government Order, the petitioner ought to have been treated as belonging to the general category and therefore, the appointment of the petitioner could not have been terminated on that basis. Therefore, he submits that the approach of the learned Single Judge is erroneous and requires to be interfered with.
4. Per contra, the learned Counsel for the respondents supported the impugned order.
5. It is true that this Court in several Writ Petitions where similar questions arose for -6- consideration held that the certificate issued by the Tahsildar cannot be annulled or cancelled by a Committee constituted under the aforesaid Act and Rules which came into force subsequently. Similarly, the benefit of the order was also extended to them. But the Apex Court in the case of R.VISHWANATHA PILLAI VS. STATE OF KERALA reported in 2004 (2) SCC 105 in an identical situation has held at Paras 13 and 15 as under:-
"13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for a Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the -7- Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by KIRTADS and the Scrutiny Committee constituted under the orders of this Court. The appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts, we find that the safeguard provided in Article 311 of the Constitution that the government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself, stands complied with. Instead of departmental inquiry, the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely: (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the Department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be and (III) in the case of Scheduled Castes, another officer having -8- intimate knowledge in the verification and issuance of the social status certificates, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld up to this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the -9- Scrutiny Committee that he did not belong to the Schedule Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to
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hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
6. From the aforesaid judgment, it is clear that when a person obtains an appointment in the service on the basis that he belongs to a Scheduled Caste/Scheduled Tribe community and when he was found by a Committee constituted to verify such certificates that he did not belong to such community,
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then, the very basis of his appointment is taken away. His appointment is no appointment in the eye of law and he cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. When a person obtains an appointment on the basis of such false caste certificate, he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. This is not a case where an enquiry is conducted relating to misconduct after his appointment, in the course of his employment. It is only then the protection under Article 311 of the Constitution is extended to such public servant. The complaint relates to his conduct prior to the appointment and Article 311 of the Constitution has no application prior to the appointment. When an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law. In such a situation, Article 311 of the Constitution is not attracted at all.
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7. Following the aforesaid judgment, the Division Bench of this Court recently in the case of SMT.GEETHANJALI VS. THE CANARA BANK AND OTHERS in W.P.NO.46548/2004 disposed of on 16/07/2012 has held that after the promulgation of Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1993, it will only be the DCVC which is the Competent Authority to look into the genuineness or otherwise of any caste certificate even if it be had been issued by the Tahsildar in the previous legal regime as it was then prevailing.
8. In the light of the aforesaid judgments of the Apex Court and the Division Bench of this court, the earlier judgments rendered by this Court is of no avail to the petitioner - appellant. In that view of the matter, the learned Single Judge was justified in dismissing the Writ Petition. We do not see any
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justification to interfere in the said order. No merits. The Writ Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Prs*