Karnataka High Court
Smt Shoba Lakshmi vs Divisional Commissioner on 31 July, 2012
Equivalent citations: 2012 (4) AIR KAR R 78
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JULY 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
W.A. No.530/2007 (GM-CC)
BETWEEN :
SMT SHOBA LAKSHMI
37 YEARS, W/O SHANKARA RAO
PRESENT OCC: ADMINISTRATIVE &
ACCOUNTS ASSISTANT,
REGIONAL OFFICE OF
SAHITYA AKADEMI, BANGALORE
R/A NO.1017, 18TH CROSS,
CHANDRA LAYOUT, 1ST STAGE,
BANGALORE 560 072. ...APPELLANT
( By Sri. P A KULKARNI, ADV.)
AND :
1 DIVISIONAL COMMISSIONER
BANGALORE DIVISIONAL
DIVISIONAL COMMISSIONER'S OFFICE
BANGALORE
2 DEPUTY COMMISSIONER AND
CHAIRMAN, DISTRICT CASTE
AND INCOME VERIFICATION
COMMITTEE, OFFICE OF THE
DEPUTY COMMISSIONER,
2
BANGALORE DISTRICT
BANGALORE
3 TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE
4 SAHITYA AKADEMI
RABINDRA BHAVAN
35 FEROZESHAH ROAD
NEW DELHI 110 001
TO BE REPRESENTED BY ITS
SECRETARY. ...RESPONDENTS
( By Sri. C JAGADISH, ADV. FOR R-1 TO R-3,
SRI. D.S. RAMACHANDRA REDDY, ADV. FOR R-4)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, 1961, prays that this Hon'ble Court be pleased to set
aside the order dated 02.03.2007 passed in W.P. No.47454/2002 and
to allow the said writ petition by granting the relief as prayed for in
the writ petition.
This Writ Appeal coming on for Final Hearing this day,
K.L.MANJUNATH. J., delivered the following :
JUDGMENT
The legality and correctness of the order passed by the learned Single Judge in W.P. No. 47454/2002 dated 2 nd March 2007 is called in question in this appeal.
2. The appellant was petitioner before the learned Single Judge. The writ petition was filed by the appellant to quash the order passed by the Deputy Commissioner, Bangalore Division dated 10 th 3 December 2002 in VC Appeal No.19/2001-2002 and also the order passed by the 2nd respondent dated 30th January 2002 wherein the Deputy Commissioner and District Magistrate, Bangalore has directed the Tahsildar, Bangalore North Taluk on 30 th January 2002 to cancel the Caste Certificate issued to the appellant on 16.08.1991.
3. The facts leading to this appeal are as hereunder :
The appellant obtained a Caste Certificate from the Tahsildar, Hosanagara Taluk, Shimoga District on 20 th September 1982 stating that the appellant belongs to 'Maaleru' Caste. Later, pursuant to the order of the State Government, she obtained a fresh Caste Certificate on 16.08.1991 from the Tahsildar, Bangalore North Taluk, Bangalore. Based on the same, she secured a job as Administrative and Accounts Assistant in the Office of the Sahitya Academi at New Delhi. Thereafter, in the year 1992, the 4 th respondent referred the matter to the Caste Verification Committee in order to enquire the genuine of the caste certificate produced by the appellant. On 16.08.2000, the CRE Cell submitted a report holding that she belongs to 'Maaleru caste'. On the basis of the report of the CRE Cell, the Caste and Income Verification 4 Committee issued a notice calling upon the appellant to appear before the Committee to tender her evidence to produce relevant records to show that she belongs to Scheduled Tribe. Thereafter, as per Annexure 'B' dated 30th January 2002 the Committee directed the Tahsildar, Bangalore North Taluk to cancel the certificate issued to the appellant holding that she does not belonged to Scheduled Tribe. Thereafter, on 28.02.2002, the Tahsildar, Bangalore North Taluk cancelled the caste certificate issued to her without holding an enquiry. In the circumstances, the appellant filed a writ petition before this Court in W.P. No. 9145/2002 and this Court by its order dated 13.03.2002 directed the appellant herein to file an appeal before the Divisional Commissioner, Bangalore.
4. Pursuant to the direction issued by this Court in the aforesaid writ petition, an appeal was preferred before the Divisional Commissioner, which appeal came to be dismissed as not maintainable. Thereafter, the appellant filed another writ petition in W.P. No. 26961/2002 and this Court allowed the writ petition, set aside the order of the Divisional Commissioner and directed the Divisional Commissioner to decide the matter on merits and in 5 accordance with law. Thereafter, the 4 th respondent initiated departmental enquiry against the appellant and suspended the appellant from the services with effect from 12.08.2002.
5. Subsequently, an appeal filed by the appellant before the Divisional Commissioner was dismissed holding that the appellant belongs to 'Maaleru Community' which is not a Scheduled Tribe. Therefore, the writ petition was filed by the appellant before the learned Single Judge. The learned Single Judge after hearing the parties, referring to various judgment of Hon'ble Supreme Court dismissed the writ petition. Challenging the same, the present writ appeal is filed.
6. We have heard Sri. P.A. Kulkarni, learned Counsel for the appellant and Mr. C. Jagadish, learned Counsel for respondent Nos.1 to 3 and Mr. Ramachandra Reddy, learned Counsel for respondent No.4.
7. The learned Counsel appearing for the appellant taking us through the Government Order dated 11 th March 2002 contends that the Government has decided not to initiate penal action and however, held that any appointment pursuant to the Caste Certificate produced 6 would be saved and such applicant shall not be eligible for further promotion and that such appointment would be treated as a candidate selected under GM category. He further submits that the order of the Government dated 11th March 2002 is also questioned by the appellant and others before the Hon'ble Supreme Court in W.P. (Civil) No.76/2003 and the said writ petition is pending. He further submits that about saving of appointment of the appellant pursuant to the aforesaid Government order, the appellant cannot be dismissed from the services by the 4th respondent as the order of the State Government is also made applicable to the Central Government Employees and the appellant being an employee of the Central Government is entitled to take benefit under Government Order dated 11th March 2002. He also alternatively contends that when the matter is pending before the Hon'ble Supreme Court in W.P. (Civil) No.76/2003 till the said matter is adjudicated by the Hon'ble Supreme Court and in view of the interim order granted by the Hon'ble Supreme Court, the appellant is entitled to get subsistence allowances from the 4th respondent. To support his argument, he has relied upon the judgment of the Hon'ble Supreme Court in the case of UNION 7 OF INDIA Vs. H. RAMAKRISHNA [(1998) 8 SCC 322].
8. Per contra, the learned Counsel for the respondents submit that none of the grounds urged by the appellant's Counsel are tenable because the appellant was appointed pursuant to a Caste Certificate issued by the Tahsildar, Bangalore North Taluk by the 4 th respondent, which is Central Government concern and Government Order of the State Government dated 11th March 2002 cannot be made applicable to the Central Government Employees. They have further contend that the appellant does not belonged to Scheduled Tribe. By producing a false caste certificate she was appointed as against the vacancy reserved for Scheduled Tribe. According to them, she belongs to Brahmin community and not belongs to Scheduled Tribe. Taking us through the documents produced by them, the appellant as well as of her brother Ganesh, contends that in the Transfer Certificate issued by the School Authority, her brother's Caste is declared as Brahmin and even in the transfer certificate of the appellant her religion is shown as Hindu (Maaleru). The word Brahmin is purposely missed there and she never claimed as a Scheduled Caste or Scheduled Tribe as could be seen from Column 8 No.9 of the Transfer Certificate. Therefore, they contend that she could not have been appointed as a Scheduled Tribe candidate because she never belonged to Scheduled Tribe.
9. In addition to that they relied upon a judgment of a Co- Ordinate Bench of this Court rendered on 24 th October 2011 in W.A. No.4023/2004 and other connected appeals between Smt. Shantala G. Rao Vs. The Divisional Commissioner, Mysore Division and others wherein the Co-ordinate Bench had an occasion to consider the very same question where 'Maaleru' belongs to Scheduled Tribe or General Merit candidate, wherein the Bench has taken a decision that 'Maaleru' cannot be considered as Scheduled Tribe and that the certificate obtained by such candidate is not entitled for appointment as Scheduled Tribe candidate. In addition to that, they have also relied upon the judgment of the Hon'ble Supreme Court in State of Maharashtra and others Vs. Sanjay K. Nimje [2007(1) Supreme 504]. Taking us through paragraph 16 of the judgment, they contend that a legislative Act would prevail over any Government Resolution and Government Resolution cannot be extended to a person who does not satisfy the eligibility conditions thereof and they further contend 9 that in view of paragraph 17 of the aforesaid judgment a right guaranteed under Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a Government Resolution or otherwise.
10. Relying upon these judgments, they submit that the appellant is not entitled to get an order of appointment which post was reserved for Scheduled Tribe and order of dismissal by the 4 th respondent is justified and even the alternative plea of the learned Counsel for the appellant that till the matter is adjudicated by the Hon'ble Supreme Court in W.P. (Civil) No.76/2003, the appellant is entitled for subsistence allowances, because the appellant's services has been terminated by the 4 th respondent on account of her non- fulfilling the eligibility criteria. In the circumstances, they request the Court to dismiss the appeal.
11. Having heard the learned Counsel for the parties, the only point for consideration by us in this appeal is :
'Whether the learned Single Judge has committed any error in order to interfere with the same' ?
12. The Transfer Certificate issued by the School Authorities 10 in favour of the appellant and her brother are not disputed by the appellant's Counsel. Relying upon the transfer certificate of the appellant, he contends that the appellant belongs to 'Maaleru'. But in the transfer certificate, the appellant's caste is not mentioned as Brahmin or Scheduled Tribe. In regard to Column No.9 the appellant has not claimed the benefit of Scheduled Tribe. But in the transfer certificate of her brother, it is clearly mentioned as "Hindu Brahmin"
and even her brother has not claimed the benefit of Scheduled Tribe.
13. Be that as it may, there was certain confusion in regard to treating 'Maleru' and 'Maaleru' as Scheduled Tribe. The said fact has been settled stating that 'Maleru' alone belongs to Scheduled Tribe and not 'Maaleru'. A Co-ordinate Bench of this Court in W.A. No.4023/2004 and other connected writ appeals has decided that 'Maaleru' does not belong to Scheduled Tribe and that such candidates cannot claim the benefit of Scheduled Tribe and therefore, the said question is no more a res-integra. The Judgment relied upon by the learned Counsel for the appellant in Union of India Vs. H. Ramakrishna is also not helpful to the appellant in view of the subsequent judgment of the Hon'ble Supreme Court which are relied 11 upon by the learned Counsel for the appellant. When the order of the State Government cannot be extended to the central Government Employees as ruled by the Hon'ble Supreme Court in Addl. General Manager - Human Resource, Bharat Heavy Electricals Ltd., Vs. Suresh Ramkrishna Burde [(2007) 5 SCC 336]. It is clear that the appellant cannot contend that in view of the order of the Government dated 11th March 2002, the appellant's appointment has been saved because the Parliament has not declared 'Maaleru' as Scheduled Tribe to save the appointment of the appellant based on the order of the State of Karnataka. In addition to that, by the order of the State a right vested under Articles 341 and 342 of the Constitution of India cannot be diluted and cannot be taken away.
14. In the circumstances, we do not see any merits in this appeal. Accordingly, we have to dismiss the appeal.
15. In so far as the alternative prayer of the appellant is concerned, in view of the interim order granted by the Hon'ble Supreme Court directing the 4 th respondent to pay subsistence allowances during the pendency of this appeal till the matter is decided by the Hon'ble Supreme Court, which is filed by the 12 appellant in W.P. (Civil) No.76/2003 is concerned, cannot be considered, because the Hon'ble Supreme Court has granted subsistence allowances till the disposal of this appeal. When we are holding that the appellant has no case on merits, when we are deciding the appeal against the appellant, question of directing the 4 th respondent to pay the subsistence allowances to a dismissed employee does not arise for consideration.
16. Accordingly, the alternative prayer also cannot be considered in this appeal.
17. In the result, this writ appeal is dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
Rbv