Madras High Court
V.J.Indumathi vs State Level Scrutiny Committee Rep. By ... on 28 October, 2014
Author: M.Jaichandren
Bench: M.Jaichandren, Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date of Reserving : 28-10-2014 Date of Judgment : 15-12-2014 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN W.P.Nos.26797 and 27104 of 2014 and M.P.Nos.1 and 2 of 2014 V.J.Indumathi .. Petitioner in both the writ petitions. Versus 1. State Level Scrutiny Committee rep. By its Chairman and Secretary to Government, Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai-600 009. .. Respondent in both the writ petitions 2. The General Manager, Indian Oil Corporation Ltd., 139, Nungambakkam High Road, Chennai-600 034. .. Respondents in both the writ petitions Prayer in W.P.No.26797 of 2014: Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari calling for the records relating to the proceedings in Proceedings No.3820/ADW5(1)/2013-7, dated 5.9.2014, on the file of the 1st respondent and quash the same. Prayer in W.P.No.27104 of 2014: Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari calling for the records relating to the order of termination passed in proceedings in Indian Oil (MD)-SR HR/ER/1201 dated 6.10.2014 on the file of the 2nd respondent and quash the same. For Petitioner : Mr.S.Doraisamy For Respondents : Mr.R.Rajeswaran Special Government Pleader (R1) Mr.B.Karthik for M/s.T.S.Gopalan and Co. (R2) O R D E R
(Order of the Court was made by M.JAICHANDREN,J.) The Writ Petition, in W.P.No.26797 of 2014, has been filed praying that this court may be pleased to issue a Writ of Certiorari to call for the records relating to the proceedings issued by the first respondent, dated 5.9.2014, and to quash the same.
2. The Writ Petition, in W.P.No.27104 of 2014, has been filed praying that this court may be pleased to issue a Writ of Certiorari to call for the records relating to the proceedings issued by the second respondent, dated 6.10.2014, terminating the services of the petitioner.
3. The petitioner has stated that she belongs to Mannervarlu community, which is notified as a Scheduled Tribe community in the State of Andhra Pradesh, under the Scheduled Caste and Schedule Tribes Orders (Amendment) Act, 1976. It has been further stated that the father of the petitioner, namely, D.V.Jayaramulu, hails from Begumpet Village, Hyderabad, Andhra Pradesh. He had been appointed as a cleaner in the Begumpet Airport, under the Scheduled Tribe category. Later, he had been transferred and posted at the Airport in Chennai, during the year, 1966. The petitioner was born on 6.10.1970, at Chennai. She had also had her education, at Chennai, where her family had settled down.
4. It has also been stated that, in all the school and college certificates of the petitioner, her community has been entered as `Scheduled Tribe'. The father of the petitioner had preferred the application to the Tahsildar, Saidapet, to issue a community certificate to the petitioner stating that she belongs to Mannervarlu community. The Tahsildar had issued the community certificate, on 27.4.1976, stating that the petitioner belongs to Mannervarlu community. Based on her educational qualifications she had been appointed by the Indian Oil Corporation, as a steno typist, on 11.12.1995, having been sponsored through the employment exchange concerned. As the employer of the petitioner required a community certificate, in a specific format, she had obtained the same from her native place at Balanagar, Mandal Rangareddy District, Andhra Pradesh, on 14.8.1997. As the petitioner had completed M.C.A. degree, she had become eligible to the post of an officer. After she had appeared in the interview she has been selected as Information Systems Officer and she has been posted at Gujarat State Office (Western Region). After her completion of the probation period, she had been confirmed in the services and she has been working as an Assistant Manager (Information System), at the Southern Regional Office, Chennai-34. While so, her employer had referred her community certificate issued by the Tahsildar, Saidapet, dated 27.4.1976, for verification, by the Collector, Kanchipuram District. The District Vigilance Committee, Kanchipuram, had called the petitioner for an enquiry, on 18.11.2010. Even though the petitioner had participated in the enquiry proceedings no orders had been passed. However, the first respondent had issued a notice to the petitioner, on 19.11.2013, calling the petitioner for an enquiry. On 16.12.2013, the first respondent had issued a show cause notice stating that the committee had examined the records relating to the claim of the petitioner, with regard to her community certificate and had wanted the petitioner to show cause as to why the community certificate issued in her favour should not be cancelled. The petitioner had submitted her explanation for the said show cause notice. Thereafter, a notice had been issued to the petitioner, dated 6.2.2014, asking her to appear for an enquiry, on 13.2.2014. In such circumstances, the petitioner had filed a writ petition before this court, in W.P.No.4095 of 2014. While issuing notice to the first respondent, on 12.2.2014, this court had granted the order of interim stay of the impugned proceedings, in M.P.No.1 of 2014. Thereafter, this court had passed an order, on 25.2.2014, disposing of the writ petition, permitting the State Level Scrutiny Committee, constituted by the Government of Tamil Nadu, to decide the issue relating to the genuineness of the community certificate issued by the Tahsildar, dated 27.4.1976, on merits and in accordance with law. The petitioner had been permitted to give her reply to the impugned notice, dated 16.12.2013, to the State Level Scrutiny Committee, within a period of fifteen days from the date of receipt of a copy of the order. Thereafter, the State Level Scrutiny Committee had been directed to grant personal hearing to the petitioner and to pass orders on merits and in accordance with law, within a period of three months from the date of receipt of the reply to be submitted by the petitioner. Pursuant to the said order, the petitioner had submitted a detailed reply to the first respondent on 21.3.2014. The first respondent committee had issued the notice to the petitioner to appear for an enquiry, scheduled to be held on 2.5.2014. The petitioner had appeared during the enquiry and had submitted her further representation. However, the enquiry had been proceeded without providing sufficient opportunity to the petitioner to put forth her case. Even though the petitioner had submitted all the relevant documents, the first respondent had passed the impugned order, dated 5.9.2014, cancelling the community certificate issued by the Tahsildar, without considering the documents submitted in favour of the petitioner. Therefore, the petitioner has preferred the present writ petition before this court, under Article 226 of the Constitution of India.
5. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by the first respondent, dated 5.9.2014, cancelling the community certificate issued in favour of the petitioner, by the Tahsildar, Saidapet, on 27.4.1976, is arbitrary, illegal and contrary to the principles of natural justice. It had been further stated that the certificate issued by the Tahsildar, Saidapet, cannot be termed as a false certificate. Even though the Mannervarlu community has not been shown as a Scheduled Tribe community in the list of Scheduled Tribes in the State of Tamil Nadu, it cannot be said that the community certificate issued by the Tahsildar, Saidapet, is false in nature. Further, the petitioner had obtained the community certificate from the Mandal Revenue Officer, Balanagar, Andhra Pradesh, certifying that she belongs to Mannervarlu community. The said certificate had been issued on 14.8.1997 and it is valid till date.
6. The learned counsel had further submitted that, following the guidelines issued by the Supreme Court, in Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94(1), the State government had issued an order, in G.O.Ms.No.106, Adi Dravidar and Tribal Welfare (CV I) Department, dated 15.10.2012, constituting vigilance cells for the purpose of conducting local enquiries about the communal status of the claimants. However, the first respondent had issued the impugned proceedings, dated 5.9.2014, without following the procedures prescribed for conducting an enquiry, with regard to the communal status of the petitioner. The community certificate issued by the Mandal Revenue Officer, Balanagar, Andhra Pradesh, on 14.8.1997, had not been cancelled, by an authority concerned, till date.
7. It has been further stated that the Indian Oil Corporation, which is a public sector undertaking of the Government of Tamil Nadu, cannot take the view that the community status of the petitioner would keep changing from State to State. In such circumstances, the impugned order passed by the first respondent, dated 6.10.2014, is unsustainable in the eye of law. Even though the petitioner had submitted a detailed explanation, the first respondent had passed the impugned order, based on certain representations said to have been obtained from the District Adi Dravidar and Tribal Welfare Officer, Kancheepuram, dated 29.4.2013, without giving an opportunity of hearing to the petitioner. As such, the impugned proceedings issued by the first respondent, dated 5.9.2014, is liable to be set aside.
8. Per contra, the learned counsel appearing on behalf of the first respondent had submitted that the order passed by the first respondent Scrutiny Committee cannot be said to be unsustainable in the eye of law. The first respondent Scrutiny Committee had considered all the relevant documents relating to the claim of the petitioner and had decided to cancel the community certificate issued in favour of the petitioner, by the Tahsildar, Saidapet. The Mannervarlu community is not listed in the Presidential Order Scheduled Tribe List of the State of Tamil Nadu. Thus, it is clear that the community certificate issued by the Tahsildar, Saidapet, cannot be held to be valid. Further, the Anthropologist, who is a member of the first respondent committee had conducted an enquiry and had analysed the Anthropological features of the petitioner and had submitted a report stating that the petitioner does not belong to Mannervarlu communty. The Anthropologist, who is a member of the first respondent committee, had also submitted that Mannervarlu community, which is a Scheduled Tribe community, is not a community listed in the list of Scheduled Tribes in the State of Tamil Nadu and that it is a community listed in the list of Scheduled Tribes in the State of Andhra Pradesh. Therefore, the claims made by the petitioner that the impugned order passed by the first respondent, dated 5.9.2014, is to be set aside, cannot be countenanced.
9. The learned counsel appearing on behalf of the second respondent had submitted that the second respondent Corporation has been strictly following the norms relating to the reservation of posts for the Scheduled caste and Scheduled Tribes. It also follows the mandate prescribed in Articles 341 and 342 of the Constitution of India and the norms issued by the President of India pertaining to the category of persons who could be described as Scheduled Castes and Scheduled Tribes. It has been further stated that the petitioner had been sponsored by the Employment Exchange concerned and had been appointed as a steno typist in the second respondent corporation, under the Scheduled Tribe category, on 1.12.1995, based on the certificate issued by the Tahsildar, Saidapet, dated 27.4.1976. However, the community certificate produced by the petitioner stating that she belongs to Mannervarlu community, which is said to be a Scheduled Tribe community in the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, had been sent for verification to the revenue authorities concerned, by the second respondent. It is to be noted that the petitioner had also obtained a community certificate from the State of Andhra Pradesh in which the petitioner has been described as a person belonging to Mannervarlu community, which is a recognised as Scheduled Tribes in the said State.
10. It is also to be noted that during the year 2013, the first respondent had issued a notice to the petitioner requiring her to attend an enquiry and to substantiate her claim relating to the genuineness of the certificate issued by the Tahsildar, Saidapet, dated 27.4.1976. Further, on 16.12.2013, a show cause notice had also been issued to the petitioner regarding the community certificate issued by the Tahsildar, Saidapet. The petitioner had challenged the show cause notice issued by the first respondent, by filing a writ petition, in W.P.No.4095 of 2014. A Division Bench of this court had passed an oder, dated 25.2.2014, permitting the petitioner to submit a reply to the said show cause notice and directing the first respondent to pass orders within three months from the date of receipt of the reply from the petitioner. The petitioner had also participated in the enquiry conducted by the first respondent.
11. It has been further stated that the first respondent had passed an order, on 5.9.2014, after the completion of the enquiry holding that the petitioner had joined the services of the second respondent corporation on the basis of the community certificate, dated 27.4.1976, issued by the Tahsildar, Saidapet, describing her as a person belonging to Mannervarlu community, which is not listed as a Scheduled Tribe community in the State of Tamil Nadu. Therefore, the first respondent had cancelled the certificate issued by the Tahsildar, Saidapet, on 27.4.1976, by an order, dated 5.9.2014. The second respondent had passed the order, dated 6.10.2014, terminating the services of the petitioner, as the petitioner had joined the services of the second respondent corporation, based on the certificate issued by the Tahsildar, Saidapet, dated 27.4.1976, in which it had been shown that the petitioner belongs to Mannervarlu community. Hence, it cannot be said that the order passed by the second respondent, dated 6.10.2014, is erroneous and invalid in the eye of law.
12. The learned counsel appearing on behalf of the second respondent had relied on the decision of the Supreme Court, in Marri Chandra Vs. Dean, S.G.S.Medical College, (1990) 3 SCC 130), wherein it had been held that a person who is recognised as a member of the Scheduled Caste or Scheduled Tribe community in his original State will be entitled to all the benefits of the Constitution in that State alone and not in all parts of the country wherever he migrates.
13. In State of Maharashtra Vs. Milind, 2001 (1) SCC 4, it had been held that orders once issued under Article 341(1) and 341(2) cannot be varied by a subsequent order or a subsequent notification, except by a law made by the parliament.
14. The learned counsel had also relied on the decision made, in Dattu Vs. State of Maharashtra and others, CDJ 2011 SC 1247. The Supreme court had held, relying on the decision, in Swati Vs. State of Mahaarashtra and others, (C.A.No.7411 of 2010, dated 6.9.2010), that the advantage enjoyed by the person concerned, based on the caste certificate issued by the authority concerned, cannot be taken away. However, the candidate concerned cannot derive any advantages in the future, based on the said certificate.
15. In Kavita Solunke Vs.State of Maharashtra and others, CDJ 2012 SC 540, the Supreme Court had held that the benefit of protection against ouster from service should be extended to a candidate if the community certificate had been found to be false or fabricated, subject to the condition that the said candidate shall not be entitled to any future benefit on the basis of the certificate, especially, if the cancellation of the certificate is after a lapse of a number of years.
16. The learned counsel had relied on the decision of the Supreme Court in Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94(1), to state that the first respondent scrutiny committee had not followed the procedures and guidelines issued in view of the decision of the Supreme court.
17. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available and on considering the decisions cited supra, it is noted that a community certificate had been issued in favour of the petitioner, by the Tahsildar, Saidapet, on 27.4.1996, stating that she belongs to Mannervarlu community, which is a Scheduled Tribe community. Based on the said certificate she had joined in the services of the second respondent Corporation, as a steno typist, on 11.12.1995. Later, the community certificate issued in favour of the petitioner had been sent for verification, by the second respondent Corporation. The first respondent committee had conducted an enquiry and it had found that the certificate issued by the Tahsildar, on 27.4.1996, is invalid. Therefore, the first respondent Scrutiny Committee had cancelled the said certificate by its order, dated 5.9.2014. Pursuant to the said order issued by the first respondent, dated 5.9.2014, the second respondent Corporation had terminated the services of the petitioner, vide an order, dated 6.10.2014.
18. It is also noted that there is no specific allegation that the petitioner had obtained the community certificate from the Tahisldar, Saidapet, on 27.4.1996, falsely, by fraud or by misrepresentation. Therefore, even if the community certificate issued by the Tahsidlar, Saidapet, is held to be invalid, in view of the fact that Mannervarlu community does not find a place in the list of Scheduled Castes in the provisional order issued in relation to the State of Tamil Nadu, it cannot be held that the petitioner had obtained the community certificate, fraudulently, or by falsification of documents or by misrepresentation. Even if it could be held that Mannervarlu community, which is said to be a Scheduled Tribe community in the State of Andhra Pradesh and that the said status cannot be recognised in respect of the petitioner in the State of Tamil Nadu, it may not be proper for the second respondent Corporation to dismiss the petitioner from service as it had done by its order, dated 6.10.2014. Even though the said order is only consequential in nature, following the order passed by the first respondent, dated 5.9.2014, cancelling the community certificate of the petitioner, we find it appropriate to direct the second respondent Corporation to continue the petitioner in service, as per the decision of the Supreme Court, in Swati Vs. State of Maharashtra and others, (C.A.No.7411 of 2010, dated 6.9.2010). Therefore, the impugned order of the second respondent, dated 6.10.2014, is set aside and the second respondent is directed to take the petitioner in service, without continuity of service and without payment of backwages for the period when she was out of service. However, it is made clear that the petitioner would not be entitled for any future benefits, as held by the Supreme court in the said decisions.
19. In so far as the Writ Petition in W.P.No.26797 of 2014, we do not find any reason to set aside the order passed by the first respondent committee in its order, 5.9.2014, as the stand taken by the first respondent scrutiny committee cannot be held to be invalid in the eye of law. The Presidential Order in which Mannervarlu community had been categorized, as a scheduled tribe community may be valid in the State of Andhra Pradesh. However, the said notification may not have the same relevance in the State of Tamil Nadu. In such circumstances, we find it appropriate to make it clear that it would be open to the petitioner to approach the authorities concerned in the State of Andhra Pradesh to obtain the necessary community certificate, to be produced before the second respondent Corporation, within a period of six months from the date of receipt of a copy of this order, failing which it would be open to the second respondent Corporation to terminate the services of the petitioner, if it finds it fit to do so, for the non-furnishing of the relevant community certificate, issued by the authority concerned, having the power or jurisdiction to issue the same. Accordingly, the Writ Petition in W.P.No.27104 of 2014, stands allowed and the Writ Petition in W.P.No.26797 of 2014, challenging the order of the first respondent committee stands dismissed, with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.
Index:Yes/No Internet:Yes/No (M.J.J.) (A.J.J.) csh 15-12-2014 To 1. The Chairman Secretary to Government, State Level Scrutiny Committee Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai-600 009. 2. The General Manager, I/C (RS) Indian Oil Corporation Ltd., 139, Nungambakkam High Road, Chennai-600 034. M.JAICHANDREN,J. AND ARUNA JAGADEESAN csh W.P.Nos.26797 and 27104 of 2014 15-12-2014