Central Administrative Tribunal - Mumbai
Vinod Damodhar Kumbhare vs Central Excise & Customs on 6 March, 2024
1 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021. CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION Nos. 258,259,260,261 of 2019, 418, 420 7 . of 2022 and 740, 577 of 2021. Dated this Marck, the _6+h day of March, 2024 CORAM : JUSTICE SHRI M.G. SEWLIKAR, MEMBER (J) SHRI RAJINDER KASHYAP, MEMBER (A) OA No. 258/2019. Vinod .S/o Damodhar Kumbhare, Aged 49 years, Oceu: Service Superintendent, CGST & CX, Thane Rural, Resident of A- 16/605, - Sahyadri Co- "Op. HSG Society, Lokdhara, Kalyan (East) 421306, Dist- Thane. . -Applicant. (By Advocate Mr. V.A. Nagrani) Versus I. Union of India, Through its Secretary, Ministry of Personnel, Public Grievances and Training, Department of Personnel, . Public Grievances and Training (DOPT) North Block, New Delhi- 110001. 2. Principal Chief Commissioner, CGSTF & CX, Mumbai Zone, 4 Floor, CGST Bhawan, Maharashi Karve . Marg, Opp. Churchgate. Railway Station, Mumbai- 400 020. 3. Central Board of Excise and Customs, North Block, New Delhi- - 100001, Through its Secretary. 4.. Principal Commissioner, CGST & CX, Thane Rural, 4* Floor, GST Bhawan, Plot No. C-24, Sector-E, Bandra Kurla Complex, Bandra (East) Mumbai- 400051. 5. Inquiry Officer, COST & CS, Division No. 4, Thane Rural, 3" Floor, Varadaan Trade Centre, MIDC, Wagle Industrial Estate, Thane (West). -Respondents. (By Advocate Mr. R R Shetty and Mr. A.A, Garge) OA No. 259/2019 Ae 2 OANos. 258,259,260,261 of 2019; - 418,420 of 2022 and 740,577 of 2021. Ashok S/o. Pandurang Kohad, Aged 52 Years, Occ. Service Assistant . Chief Account Officer, CGST & CX, Bhiwandi Commissionerate, Resident of B-402, Usha Kiran Co-Op HSG. Society, Ayodhya Nagri, Tisgaon, Kalyan (East), Dist- Thane 421 306. -Applicant. (By Advocate Mr. V.A. Nagrani) Versus 1. Union of India, Ministry of Personnel, Public Grievances and Training, Department of Personnel and Training (DOPT), North Block, New Delhi- 100001 Through Its Secretary. 2.° Principal Chief Commissioner, CGST & CX, Mumbai Zone, 4% Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, » Mumbai- 400 020. 3. Central Board of Excise and Custom, North Block, New Delhi- 100001, Through its Secretary. 4. The Commissioner, CGST & CX, Bhiwandi Commissionerate, 12* Floor, Lotus Info.Centre, Station Road, Parel, Mumbai 400012. 5. Inquiry Officer, Shridhar Tanaji Dhumal CGST & CX, Division No. 5, Niharika Building, Behind Sadhana Hotel, Kalyan (West), Thane 421301. - -Respondents. (By Advocate Mr. R R Shetty and Mr. A.A. Garge) OA No. 260/2019 Sanjay S/o Krushnarao Mandlik, Aged 53 years, Occu: Service Superintendent, CGST & CX, Thane Rural, Resident of C-2/704, Charms Heritage, Behind Water Filter Plant, Khadakpada, Kalyan (W), Thane- 421301. -Applicant. (By Advocate Mr. V.A. Nagrani) Versus 1. Union of India, Through its Secretary, Ministry of Personnel, Public Grievances and Training, Department of Personnel, Public Grievances and Training (DOPT) North Block. New Delhi- 11000]. 3 OA Nos. 258.259.260,261 of 2019, 418,420 of 2022 and 740,5 7 of 2021, 2. Principal Chief Commissioner, CGST & CX, Mumbai Zone, 4% Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, Mumbai- 400 020. 3. Central Board of Excise and Customs, North Block, New Delhi- 100001, Through its Secretary. 4,. Principal Commissioner, CGST & CX, Thane Rural, 4" Floor, GST Bhawan, Plot No, C-24, Sector-E, Bandra Kurla a Complex, Bandra (East) Mumbai- 400051. 5. Inquiry Officer, CGST & CS, Division No.4, Thane Rural, 3% Floor, Varadaan Trade Centre, MIDC, Wagle Industrial Estate, Thane (West). -Respondents. (By Advocate Mr. R R Shetty and Mr. A.A. Garge) OA No. 261/2019 Anand S/o Shankarrao Kolhatkar, Aged 56 years, Occu : Service Superintendent, CGST & CX, Thane Rural, Resident of H-3/702, Mahavir Heights, Opp. Gokul Nagri, Khadakpada, Kalayan (W), Dist: Thane- 421 301. - Applicant. (By Advocate Mr. V.A. Nagrani) - Versus 1, Union of India, Through its Secretary, Ministry of Personnel, Public Grievances and Training, Department of Personnel, Public. Grievances and Training (DOPT) North Block, New Delhi- 110001. 2. "Principal Chief Commissioner, CGST & CX, Mumbai Zone, 4" Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, Mumbai- 400 020. 3. Central Board of Excise and Customs, North Block, New Delhi- 100001, Through its Secretary. 4. Principal Commissioner, CGST & CX, Thane Rural, 4" Floor, GST Bhawan, Plot No. C-24, Sector-E, Bandra Kurla Complex, Bandra (East) Mumbai- 400051. 5. Inquiry Officer, CGST & CS, Division No.4, Thane Rural, 3" Floor, Varadaan Trade Centre, MIDC, Wagle Industrial Estate, Thane 4 OANos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021. (West). -Respondents. (By Advocate Mr. R R Shetty and Mr. A.A. Garge) OA No. 418/2022 Shri Chandrakant Ganapatrao Bhajani, Age 60 years, Ex- Superintendent, CGST & C Ex, Thane Commissionerate R/at: Pooja Complex, F Wing, Room No. 201, Vijay Nagar, Amrai, Kalyan (E) 421 306. Mobile No. 9773055442, Email : cbbnh201 @gmail.com ~ Applicant (By Advocate Mr. V.A. Nagrani) Versus 1, . Union of India, Through the Secretary, Ministry of Finance, North Block, North Block, New Delhi- 110001. 2. 'The Principal Chief Commissioner, CGST & Central Excise, Mumbai Zone, 4" Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, Mumbai- 400 020. 3. The Commissioner, CGST & Central Excise, Thane Commissionerate, 3 & 5" floors, Accel House, Road No. 22, Wagle Industrial Estate, Thane (W) -- 400 604. 4. Kumar Gaurav Deputy Commissioner, CGST & CE, Division IV, _ Thane. - Respondents. (By Advocate Mr. R R Shetty) OA No. 420/2022 Shri Rajendra Mahadeo Sonkusare, Age 60 years, Ex- Assistant Commissioner CGST & C Ex, Audit- II Commissionerate, 30° Floor, World Trade Centre, Fuffee Parade, Mumbai 400 005 R/at: 602, Kala Building CHS, Opp. Ghatla Municipal School, Ghatla Village, Chembur, Mumbai 400 071. Mobile No. 9892355037 Email: [email protected] - Applicant (By Advocate Mr. V.A. Nagrani) Versus Department of Revenue, Central Baard +f Indirect Taxes & customs, DG fim mm Tieden Wiekalen Devtidies DBlbeti Cause Dien. BTL. Tyelht aia 2™ Door Hudes Yaoi a & Building, Dikaji er eeet | aac, New Delhi fav 3 OA Nos. 258,259,260.261 of 2019, 418,420 of 2022 and 740,577 of 2021. 066. 2. The Principal Chief Commissioner, CGST & Central Excise, Mumbai Zone, 4" Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, Mumbai- 400 020. 3. Ashok kumar P. Kothari, Addl. Commissioner & Inquiring Authority, In the office of Commissioner of CGST (Appeals ID, 9* floor, Piramal Chambers, Jijibhoy Lane, Lalbaug, Parel, Mumbai 400 O12. - Respondents. (By Advocate Mr. RR Shetty ) OA No. 740/2021 Shri Sharad Wakodikar, Age 57 years, Working as Superintendent CGST & Central Excise Bhiwandi Commissionerate R/at Flat No. 1006, Swati Building, Tarangan Complex, Wayle Nagar, Khadakpada Kalyan (W) 421301, Mobile No. 9869622609, Email [email protected] ~Applicant, (By Advocate Mr. V.A. Nagrani) Versus I, Union of India, Through the Secretary, Ministry of Finance, North Block, New Delhi- 110001. 2, The Principal Chief Commissioner, CGST & Central Excise, | Mumbai Zone, 4" Floor, CGST Bhawan, Maharashi Karve Marg, Opp. Churchgate Railway Station, Mumbai- 400 020. 3. The Secretary, Central Board of Excise & Customs, North Block, New Delhi- 110001. 4. The Commissioner, CGST & Central Excise, Bhiwandi Commissionerate, 12° Floor Lotus Info Centre Station Road, Parel (®), Mumbai. 400012. -Respondents. (By Advocate Mr. R R Shetty } OA No. 3577/2621 Shri Fiarihar G Wamane, Age 5i years, working as LDC, Residing 6 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, B-301, Govin Enclave CHS, Rai Residency, Near Gaondevi Mandir, Tees Gaon, Kalyan (E) 421306, Email [email protected] Mobile No. 9870107074. -Applicant (By Advocate Mr. V.A. Nagrani) Versus 1, Union of India, Through the Secretary, Ministry of Health and Family Welfare North East Division, Nirman Bhawan, New Delhi. 2. The Director (CDTL) Ie of Government Medical Store Depot, Mumbai Central, Mumbai -- 400 008. -~Respondents. (By Advocate Mr. B K Ashok) ' Order Reserved on: 08" January, 2024 _- Order Pronounced on: ORDER Per : Justice M.G.Sewlikar, Member (J)
All these applications are being disposed of by common -- order as issues involved in all these applications are the same. OA No. 420/2022 is taken as a lead case and arguments have been advanced by the parties in this case.
2. Facts in this case are as below:-
2.1 The applicant was appointed as inspector on 19° April, 1990. The applicant was from time to time promoted. The applicant superannuated on 31 January, 2022 with effect from afternoon on the post of Assistant Commissioner.
2.2 The applicant belongs to Haiba community which is 7 OA Nos, 258.259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
notified as Scheduled Tribe which is listed at serial number 19 in the list of scheduled tribe of Maharashtra State Scheduled Caste/ Scheduled Tribe Orders (Amendment) Act, 1976 dated 18" September, 1976. It is further contended that Halba caste was declared as scheduled tribe by the Supreme Court in the "case of State of Maharashtra versus Milind and Others. In the case of Gajanan Nijme vs RBI & Others, referring to ; | circular dated 01° July, 2013 issued by RBI, Supreme Court included Halba/Halba Koshti/ Koshti as one and the same. Pursuant to this respondent started demanding caste validity certificate from all the candidates who belong to Halba community, The respondents issued many letters to the applicant calling upon him to produce caste validity certificate. The applicant replied to these letters that in Central Government there is no provision of producing caste validity certificate and all that is required to get the certificate verified as per DoPT OM. On the basis of judgement in the case of Gajanan Nijme vs RBI and in the case of 8.G. Barapartre & Ors. Versus Shri Ananta Gajanan Gaiki & Ors, the DoPT 8 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, issued a memorandum.on 8" April, 2019 directing all the Ministries to furnish the action taken in the light of these judgements. This OM was subsequently withdrawn by the OM | dated 24" July, 2020.
2.3 Itis further alleged that the applicant retired on attaining superannuation on 31° January, 2022. Accordingly, relieving order was passed on 31° January, 2022. After the applicant was relieved, charge sheet dated 28" J anuary, 2022 came to be served on the applicant on 31* January, 2022 after 1:15 pm. It is alleged in the charge sheet that the applicant failed to maintain absolute integrity violated the law and failed to maintain high ethical standards and honesty by falsely availing reservation benefits meant for scheduled tribes. The | applicant replied to the charge sheet. On 21st March, 2022, Disciplinary Authority appointed -- Inquiry Officer and Presenting Officer. The inquiry is being conducted under CCS(CCA) Pension Rules. After retirement, inquiry should be conducted under Rule 9 of CCS(CCA) Pension rules. The ~-rmt * aby o™u 2 néet in thus OA.
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17) ch C4 AALS elit 9 OANos. 258,259.260,261 of 2919, 418,420 of 2022 and 740,577 of 2021.
2.4 Respondents filed their reply contending that as per the requirements of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukt Jatis), Nomadic Tribes, Other Backward Classes And Special Backward Category '(Regulation of Issuance And Verification of Caste certificate Act 2000). The applicant was called upon to get his certificate duly validated from the caste scrutiny committee as per the requirement of the Act. Vide letters dated 3rd April 2014, 17th | April 2014, 8th May 2014, 11th July 2018, 26th September 2018, 22nd April 2019, Qnd July 2019, 14th December 2020, ' 20th August 2021, 23rd September 2021, 2nd December 2021 and finally on 22nd December 2021, the applicant was called upon by the respondents to get his cast certificate validated or provide information in Form E&F to enable the employer to make the application to the caste scrutiny committee, but the applicant failed to do so. The Act requires that a person who seeks benefit of a caste certificate has to get it duly verified by making application to the scrutiny committee.
2.5 They further contend that a government servant remains 10 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
in government service till the last day of his superannuation. The applicant was served the charge sheet on the last day of his service Le. on 3ist January 2022 at 1.15 pm A government servant is not released until the completion of formalities like the handing over the charge, important notes, papers, e-office passwords, etc. After completion of these formalities, release order is given to the applicant in the afternoon of 21* January, 2022. The 'day' of retirement is material for all the calculations of retiral benefits. In the case at hand, the applicant got appointment on the basis of reservation and subsequently got promotion also in the grade of superintendent and Assistant Commissioner. Therefore, respondents are verifying the caste credentials of the applicant. Respondents don't dispute that Halba is a scheduled tribe. But the applicant must get the caste certificate validated as per the provisions of the Act. Since the applicant failed to provide the verification, the respondents have served charge sheet on the applicant.
li OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
3. Applicant filed rejoinder. No new point is raised in the rejoinder. The respondents filed reply to rejoinder. No new point is raised in reply to rejoinder either.
4. -Learned counsel for the applicant has filed written submissions also apart from oral arguments. We have read the written arguments.
5. Learned counsel for 'the applicant argued that the applicant joined the service in the year 1990. Till the year 2014, the applicant was not asked to get the certificate validated. In terms of 1994 6 SCC 241 Madhuri Patil Versus Commissioner Tribal Development Case, the employees were required to get their certificate validated within a reasonable time. The judgement of Madhuri Patil (supra) was delievered in the year 1994. For twenty long years, the respondents did nothing and all of a sudden on one fine morning, the applicant was asked to get the certificate validated. He submitted that the OM of the Central Government never indicated that caste certificate should be validated. The OMs on the contrary 12 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, require that the caste certificate should be got verified. He submitted that the Act is applicable only to the employees of :
the State Government and not to the employees of the Central Government. The constitutional validity of the Act has been challenged before Bombay High Court and Bombay High Court has 'stayed the proceedings in which constitutional validity has been challenged. Bombay High Court has stayed proceedings of enquiry in the Writ Petition filed subsequent to the Writ Petition in which constitutional validity has been challenged. He submitted that these orders are binding on the Tribunal and , therefore, this Tribunal cannot proceed with the OA. For this purpose, he placed reliance on the judgement of:
Bombay High Court in the case of Kishor son of | Bhikansingh Rajput versus Preeti wife of Kishor Rajput in Writ Petition No. 7502 of 2006. Therefore, no coercive action is required to be taken in the case of applicant till the said petition is decided.
rm 6, He submitted that charge sheet is fake and this hes to be rm £ quashed and set aside. The allegations made in the charce 13 OA Nos. 258.259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
sheet cannot be construed as misconduct. Unless and until Writ Petition Nos. 4759 of 2021 is decided, non-validation of caste certificate cannot be treated as misconduct and respondents ought not to have served charge memo on the applicant. He contended that in reply to an RTI application by the applicant, an information regarding 'the competent authority to verify the caste certificate of Central Government employees contained in the Brochure on Reservation for SC/ST employees dated 20" March, 2007 was supplied to the applicant. The said edition was published in the year 2007 when Act was already existing and despite that the matter was not referred to the Caste Scrutiny Committee. He argued that the Department of Atomic Energy (DAE) had issued a letter dated 8" December, 2022, The Department of Atomic Energy _ (DAE) has informed that the Department of Legal Affairs, a Ministry of Law has informed that till the receipt of comments of Department of Legal Affairs, all the departmental proceedings shall be kept in abeyance. He submitted that from this correspondence, it is clear that the DoPT, the Nodal 4 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Ministry, itself is not clear on the subject of caste verification and, therefore, the legal opinion is sought on the subject of verification of caste. Therefore, till the receipt of opinion from the Department of Legal Affairs, Ministry of Law, it cannot be. construed that the applicant has committed any misconduct. The Railways have also kept the process of validity of caste certificate in abeyance. He further contended that respondent no. 3 vide order dated 26" October, 2022 on the subject of verification of caste certificate informed that on verification of caste certificate of an officer / official belonging to reserved community has to be mandatorily done at the time of joining of the service. The respondents initiated the process of caste verification on account of the letter of respondent no. 3 (CBEC) dated 26" October, 2022. In this letter, information was sought as to whether caste verification was carried out in respect of officers / officials at the time of joining of service, If this exercise was carried out, the departments were called upch tO communicate the outcome of such exercise. He submitted that in reply to an application under R' commas 7 iy .
i Tos me hon a en aie! L, The WDE 15 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
informed that no instructions were received from DoPT regarding verification of caste certificate of SC/ST employees through caste scrutiny committee. Thus, there are no 'instructions from DoPT. to get the certificate validated from caste scrutiny committee, Even then, the respondents are insisting on the applicant to get the caste certificate validated from caste scrutiny committee.
7. Learned counsel for the applicant further submitted that the respondents for the first time asked the applicant to get the certificate validated in the year 2014. Respondents thereafter , remained silent till the year 2019. Thus, there is inordinate delay on the part of the respondents in initiating the process of verification of caste certificate, Respondents were expected to ask the applicant to get the caste certificate verified within a reasonable time of joining his service. Moreover, the Central Government OMs indicate that caste verification has to be done and not validation of caste certificate. He further urged » that in the memorandum of charge, the respondents have alleged that the applicant had falsely availed reservation 16 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
benefits meant for Scheduled Tribes, meaning thereby the respondents themselves have decided that the caste certificate produced by the applicant is false. No authority including caste scrutiny committee has invalidated the caste certificate of the applicant, F or this purpose, he has placed reliance on the case of Hucharaya Swami and another. Versus Canara Bank, Head Office, Bangalore and others in 1995 SCC Online Kar 444 decided on 14" November, 1995,
8. He further submitted that the applicant belongs to Halba | Community and certificate to that effect was issued way back in the year 1980-90 by the Executive Magistrate, Nagpur / the competent authority. This certificate was issued on the basis of GR dated 31° July, 1981 issued by Government of Maharashtra in which it was stated that until farther orders so far as the Halbas are concerned, the school leaving certificate should be accepted as valid for the purpose of their caste. The respondents issued several letters to the applicant to produce the caste validity certificate and the applicant replied each and a fettes te, detsil Dayyewee <xithessdt anneid ets eyty ee fat every citer in detail, mowever, without consider img any or the 17 OA Nos. 258.259.260.261 of 2019, 418,420 of 2022 and 740,577 of 2021.
replies submitted by the applicant, the respondents have _ straight away served the impugned charge sheet on the applicant. The action of the respondents is, therefore, arbitrary and unsustainable.
9, Leamed counsel for the applicant further submitted that while issuing the order of appointment, the respondents had
- categorically stated that the appointment is provisional subject to caste being verified through proper channel and services would be terminated if certificate was found to be false on | verification. Thereafter, the applicant was granted confirmation of service meaning thereby the caste was verified and found to be genuine. Therefore, there Is no occasion of re-verification of the caste certificate that too after twenty 25-30 years long service. The action of the respondents " is barred by the principles of acquiescence and estoppel.
10. He further submitted that in pursuance to the order passed by the Apex Court in Civil Appeal No. 8928/2015, the Government of Maharashtra by GR dated 14" December, 2022 considered the cases im respect of those employees 18 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, whose caste is already declared invalid / who had not submitted their caste validity and those who have given up their claim of Scheduled Tribes, in that the Government of Maharashtra decided that the employees should be given service related and retirement benefits. The very issue is pending before the DoPT for its consideration j in view of the letter dated 21" November, 2022 and Parliamentary Committee Report. Therefore, till the clarification is issued by the Nodal ministry, no coercive action is required to be taken by the respondents against the applicant. The action of the respondents is in grave violation of Article 14 & 16 of Constitution of India as the process of caste validity by the scrutiny committee is Stayed in other departments and the same is continued illegally and arbitrarily only in the present department that too only in the Mumbai Zone.
11. Learned counsel for the applicant further submitted that the applicant was relieved in afternoon and the charge sheet was served on him at 1:15 PM. Once a goverment servant is
- 19 OANOs. 258.259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
charge sheet under Rule 14 of the CCS CCA Rules is incompetent. On these allegations, he prayed for allowing the OA.
12. Learned counsel for the respondents submitted that all the contentions of the applicant have been answered by the judgement of Apex Court in the matter of Chairman and Managing Director FCI and others Vs. Jagdish Balaram Bahira and others, 2017(8) SCC 670. He contended that delay in such cases is not material. For this purpose, he placed reliance on the case of G Sundrasan versus Union of India and Another, 1995 4 SCC 644. He contended that since 2014, the respondents have been insisting on the applicant to provide the information in form E & F of the Act. The respondents can apply to the caste scrutiny committee under the Act only if the information as required under Form E & F is furnished by the applicant. The information sought under Form E & F is so personal that the employer cannot have such personal information about the employee. The applicant did not provide this information despite issuing several letters. He 20 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
contended that in the case of Bharat Sanchar Nigam Limited, it was held that the Act is applicable to the public sector undertakings. On the same analogy, it has to be said that the Act is applicable to the Central Government employees too, So also in the case of Jagdish Balaram Bahira (supra), the employer was Food Corporation of India which is a public sector undertakings and Supreme Court has entertained the similar appeal and issued various directions. He submitted that simply because the Bombay High Court has stayed the proceedings does not mean that all other Courts shall also stay the proceedings. The Bombay High Court has not stayed the operation of the Act but has protected the services of such employees. He submits that there is no law which says that simply because constitutional validity is challenged, the actions initiated under that Act should be stayed indefinitely. He submitted that caste validity is required to be done in terms of the directions issued by the Supreme Court in the matter of Madhuri Patil (supra). he submitted that the OMs which Fone : ah tte . zs rs nin? . , ian maicale that tne proceedings of employee shall be kent in 21 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
abeyance till certain instructions received are contrary to the direction of Supreme Court and Bombay High Court. Therefore, these OMs carry no value if they are pitted against the Indgement of the Supreme Court. The Judgements of Supreme Court and High Court will prevail over the directions issued by the Central Government if such OMs are contrary to the direction of the Supreme Court. He submitted that in the case of Jagdish Balaram Bahira (supra), it has been held that an appointment in government / public service whether made after 2000 or prior there too cannot become final but continues to be provisional until a caste certificate if it is the basis of the appointment is duly scrutinized and validated. He contended that the onus of getting the caste certificate validated lies on the applicant. He does not dispute that Halba community is a Scheduled Tribe as per serial no. 19 in the list of Scheduled Tribes in the State of Maharashtra.
13. Learmed counsel for the applicant submitted that the case of Jagdish Balaram Bahira (supra) is not applicable to the facts of the case in hand as in that judgement of Supreme 22 «OANos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Court dealt with only those cases in which caste certificates were invalidated. He contended that the very same issue has been dealt with by Bombay High Court in Writ Petition no. 920/2020 in the matter of Rajendra S/o Ramrao Likhar versus State of Maharashtra and another. He submitted that in the matter of Narendra K. Kumbhare versus Union of India & Others, 2023 SCC Online Bombay 1633, it has been held that Balaram Bakira case (supra) deals with invalidation of caste claim. In the case at hand, caste claim is not invalidated.
14. We have given thoughtful consideration to the submissions made by the learned counsels for the respective parties.
15. From the pleadings of the parties and submissions made, . following points arise for determination:-
(I) Whether the respondents have to do caste verification or have to ask for validation of caste certificate from the caste scrutiny commiitee.
23 OA Nos, 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Servants.
(ii) If it applies to State Government Servants who has to make application to the caste scrutiny committee for validation of caste certificate.
(iv) Is it necessary for this Tribunal to stay the proceedings | of this OA til the decision of Bombay High Court in the Writ Petition in which constitutional validity is challenged.
(v) Whether there is delay on the part of the respondents in initiating the process for validation of caste certificate. |
(vi) Whether the respondents were justified in initiating the process of caste verification certificate In view of various circulars issued by the DoPT and in view of directions of Supreme Court in the case of State of Maharashtra Versus Milind and Others, (2001) I SCC 4 and in the case of Madhuri Patil (supra).
16. In 1994, it was brought to the notice of Supreme Court that there was systemic usurpation of benefits by persons who did not belong to the beneficiary groups came to the fore before the Supreme Court. Therefore, an urgent need was 24 OA Nos, 258,259,260,261 of 2019, 413,420 of 2022 and 740,577 of 202].
_ expressed before the Supreme Court to set down a framework to regulate the grant of caste certificates and to scrutinize _ claims. The need for scrutiny and verification of caste claims was addressed by Supreme Court in the case of Madhuri Patil versus Commissioner Tribal Development I 994 6 SCC 241. Supreme Court issued detailed guidelines in this respect for providing statutory framework to regulate the issuance of caste certificates scrutiny and verification of claims and the consequences to ensue upon the invalidation of a claim. These guidelines in Madhuri Patil case (Supra) are as under:-
" 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level
2. the parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Serutiny Committee shall be filed at least six months in advance before seeking admission into educational institution cr an appointment io @ Posi.
4. All the State Governments shel) constitute G Committee of ihree officers, namely, (1) an Additional or 25 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, 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 (Il) in the case of Scheduled Castes another officer who Intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place Jrom which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned ete.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the 26 OANos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no casé on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to. adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. Afier giving such Opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and Pass an appropriate with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are Procured or found to be false or jraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued lo the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as ' possible preferably by day-to-day proceedings within such beriod not exceeding two months. Lf after inquiry, the Caste Scrutiny Committee finds the claim to be Jalse or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in Jinalising the Proceedings, and in the imeammwhile the last date jer aGrnission inta an ecucational institution or appointment to an officer post, is 27 OA Nos. 258.259.260.261 of 2019, 418,420 of 2022 and 740,577 of 2021.
getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee, ll. The order passed by the Committee shail be final and conclusive only subject to the proceedings under Article 226 of the Constitution, "72. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned 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/appoiniment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."28 OA Nos. 258,259,260,261 of 2019,
418,420 of 2022 and 740,577 of 2021.
17. Thereafter, in the case of Jagdish Balaram Bahira (supra), Supreme Court in para 13 held thus:-
"13. The legislature in the State of Maharashtra . enacted the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis). Nomadic Tribes, Other Backward Classes 'and Special Backward Category Regulation of Issuance and Verification of) Caste Certificate Act, 2000. The legislation essentially takes care, for that State of the concerns that were expressed in the decision of this Court in Madhuri Patil by providing @ statutory framework to regulate the issuance of caste certificates, scrutiny and verification of claims and the consequences to ensue upon the invalidation of a claim. The legislation received the assent of the President and was published in the Gazette on 23-5-
2001. By a Notification dated 17-] 0-2001, the Act came into force from 18-10-2001, in terms of section 1(2). Section 3 requires every person claiming to belong to a Scheduled Caste or Tribe, Other Backward Class or any other designated tribe or community seeking to obtain public employment or an admission to an educational institution or contesting an electoral seat in a local authority or a cooperative society to apply for the issuance of a caste certificate to a competent authority named by the State Government. Section 4 empowers the competent authority to issue a caste certificate upon being satisfied of the genuineness of the claim. Section 6 requires the State Government 'to constitute Scrutiny Committees for the verification of caste certificates issued by the competent authorities constituted under Section 4(1). Sub- section (2) of Section 6 requires the beneficiary of a caste certificate to submit an application to a Scrutiny Committee for the verification oj the caste certificate and for issuance of a validity certificate.
TT he appointing authority is similarly required by bee cyl papain Sioa. week ae eee SUO-SECTION (S} fC Make oh avotication to the by sag ptiany fUNsnantlee an t ee ae ae ary at «. PULUTY |LOMIMUTES To Verify ihe caslé cert o 29 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
18. These observations of the Supreme Court make it amply clear that the beneficiary of a caste certificate has to make an application to scrutiny committee for the verification of the caste certificate and for issuance of a validity certificate, Therefore, the application has to be made to the scrutiny committee appointed under the Act for verification of caste certificate and for issuance of caste validity certificate. Thus, the submissions of the learned counsel that there is only verification of caste certificate cannot be accepted. It is his contention that the respondents are authorized only to verify from the authority who issued the certificate of caste as to whether it was issued by the authority or not, This submission:
has no basis. DoPT has issued OM dated 17" April, 1953 which states that the employees claiming to be belonging to Scheduled Castes are unable to produce certificates to support their claim, such candidates should be appointed provisionally on the basis of whatever prima facie evidence they have and such claims should be verified through the District 30 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Magistrates, Similar OM has been issued by the Ministry of Home Affairs on 28" May, 1960, On 28% March, 2007, DoPT issued an OM that the certificates of SC/ST/OBC persons are verified by the respective authorities and report in that connection to be made in one month of receipt of request from the appointing authority.
19. From these circulars, it can be said that the directions were issued to verify the authenticity of the certificates issued by the authorities, However, as indicated above, there were instances wherein Supreme Court noticed that persons who' did not belong to SCs/STs had usurped benefits admissible to SCs/STs by producing false caste certificates. Therefore, Supreme Court issued guidelines in the case of Madhuri Patil (supra). On the basis of the guidelines issued by Supreme Court in the year 2000, the legislation was framed by the Maharashtra Government. Therefore, the contention of the applicant that only the verification of the certificates is to be done does not hold any water, The guidelines of the Supreme Court in the case of Madhuri Pasif and in the case of Jagdish 31 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Balaram Bahira (supra) in para 13 clearly indicate that application has to be made to the scrutiny committee for issuance of caste validity certificate.
20. This takes us to the question as to whether Act applies to the C Central Government employees. For this Purpose, we will like: to reproduce relevant portion of section 6(2) and 6(3) of. the Act:-
"6(L)....
6(2) After obtaining the caste certificate from the competent authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in Section 3 may make an application, well in time, in such form and | in such manner as may be prescribed, to the Scrutiny Committee concerned for the verification of such caste certificate and issue of a validity certificate.
6(3) The appointing authority of the Central or State -- Government, local authority, public sector undertakings, educational institutions, cooperative societies or any other government-aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the caste certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, cooperative societies or any other government- aided institutions who has not obtained such certificate."
21. Section 6(2) requires the applicant to make an application in the prescribed manner for verification of caste 32 OA Nos. 238,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, certificate and issue of caste validity certificate. Sub section 3 also requires the appointing authority of the central or state -- government, local authority, public sector undertakings, etc to make an application for the verification of the caste certificate and issue ofa validity certificate These two provisions clearly indicate that appointing authority has to make an application for verification of caste certificate and issue of a validity -- certificate. However, appointing authority can make an application only when the employee furnishes the information in form E & F to the appointing authority Unless the appointing authority gets the information in form E & F, the appointing authority cannot make an application to the caste scrutiny committee. There are two judgements of Bombay High Court on this issue. In the case of Adivas} Samaj Kruti Samiti & Others Versus Union of India, through the Secretary & Ors, WP. No. 7036/2012 dated 23" October, 4013 Bombay High Court held thus:-
"7. Thereafter a legislation in the form of the Makarashira Scheduled Castes and Scheduled Tribes, 7 Dewmatfhead Titi ay carerae? Fredot Ab is fee Dy LE-MOUNed Trises Vimuicta Yaris}, Nomadic Tribes, 33 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate Act, 2000 (hereinafter referred to as "the said Act") was brought into force in the State with effect from 18" October, 2001. Even the said Act provides that the caste certificates issued by the competent authority in accordance with Section 4(1) thereof are not conclusive and the same are subject to verification by the Scrutiny Committee, It will be necessary to make a reference to Section 6 of the said Act. Sub-section (3) ts relevant for all purposes which reads thus :-
"6. (1) veces | (2) verecee 7 (3) The appointing authority of the Central or State Government, local authority, public undertakings, educational insfitutions, Co-
operative Societies or any other Government aided institutions shall, make an application in . such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with, the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions who has not obtain such certificate."
Sub-section (3) is applicable even to the Union of India. In view of Sub-section (3) of Section 6, the appointing authority of the Central Government is under an obligation to make an application in appropriate form to the Scrutiny Committees for verification of the caste certificates of the persons selected for appointment. Thus, the appointing authority of Union of India will have to Jollow the mandace under Sub-section (3) of Section 6. In case, the caste claim of the concerned employee is found to be false by the Caste Scrutiny Committee, Section 10 of the said Act provides for mandatory consequences. The consequences are such as termination of employment, return of benefits received etc. é. It is true that the appointing authority is entitled to 34 OA Nos, 258,259,260,261 of 20] 9, 418,420 of 2022 and 740,577 of 2021. ° verify whether the caste certificate produced by an employee is genuine. However notwithstanding the process of verification of genuineness of the Caste Certificates initiated by the appointing authority compliance with Sub-section (3) of Section 6 will have to be made by the appointing authorities."
22. These observations: clearly lay down that the caste certificates issued by the competent authority in accordance with the section 4(1) thereof are not conclusive and the same are subject to verification by the scrutiny committee. It is further held in this Judgement of Bombay High Court that sub-section 3 is applicable even to Union of India.
23. Another judgement is of the Bombay High Court in the case of Arun Shankar Limje vs The Union of India And Others dated 13" March, 2020 in Writ Petition No. 9885 of 2019 in which the Bombay High Court relying on the observations made by the Supreme Court in the case of Jagdish Balaram Bahira (supra) held that the Act is applicable to the public sector undertakings. The relevant observations are contained in para 14:-
"The petitioners have garnered the benefits of reservation vate the trang Y apes at Then natn nose be EFL PIPE Cc} oe CS leiirecibe, fae we Lod £ ote) _ aot oe hb oe 7 DOE BICAIES COIQIMER 35 OA Nos. 258.259.260.261 of 2019, 418,420 of 2022 and 740,577 of 2021, by them is required to be verified and examined by the Scrutiny committee. The veracity of the claim of the petitioners belonging to the reserved category is required to be tested. The petitioners are bound by the State enactment in view of the fact that public sector undertakings are also within the ambit and purview of the Maharashtra Act No. AXIL of 2001. The Hon'ble Apex Court in case of Chairman and managing Director, Food Corporation of India and others Vs. Jagdish Balaram and others (supra) has observed that service under the Union and State or Jor that matter under the instrumentalities of the State subserves the public purpose. The Apex Court observed thus- "46. Service under the Union and the States, or for that matter under the instrumentalities of the State Su 2rves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demand and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good 'governance. Firstly, selection of a person who is not eligible allows someone who is ineligible 6° gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong io a reserved category is selected. The fraud on the OA NOs. 258,259,260,261 of 2019, OZpng-740,577 of 2021, _- Constitution precisely | igs in thisSuch @ conséquence "> must: be' avoided 'and stéijigent steps be taken by the
- | Court to ensure that.unjust claims of imposters are not | protected 'in the exercise of the jurisdiction under '» Article. 142. The nation cannot live on a lie. Courts _ play a vital 'institutional role 'in preserving the rule of law. The judicial process should not be allowed to be utilised to protect thé unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001 Judicial directions must be consistent with law, Several decisions of two Judge benches noticed earlier, failed to take note of Maharashtra Act XXII of 2001 The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated I by statute. Shalini noted the statute but misconstrued it."
24. These observations make it amply clear that the Act is | applicable even to the employees of the central government.
25. Learned counsel for the applicant submitted that in the case of Rajendra Sonkusare versus Union of India and Others, Writ Petition No. 10618/2019 (Bombay High Court) dated 21° November, 2019 to contend that onus of the respondents / employer to comply .o the caste scrutiny committee. He contended that directions were given to the pe fot Rl ee Aa wer te coolest abn 4p ae mete en te Ot nee re employ CEUC SUSHUL Ihe Casts certificate of the CLIPHOVeS TO the 37 OA Nos. 258.259.260.261 of 2019, 418,420 of 2022 and 740,577 of 2021.
caste scrutiny committee for verification.
26. It has not disputed that employer has to send the certificate of caste to the caste scrutiny committee. However, for.that purpose, information in form E & F is required to be furnished by the applicant. As indicated earlier; that information is personal of which only applicant / employee can have knowledge for example, in form E & F, information required is present occupation of applicant's father, Family's traditional occupation, applicant's mother tongue, dialect, God/Goddess, five surnames of the applicant's relatives. There are Imany more points relating to the personal information of the applicant which can be provided by the applicant only. We have mentioned the above points by way of illustration to underscore the point that such type of information can be provided only by the applicant. Therefore, this authority is of no help to the applicant.
27. The next question that arises for determination is when the constitutional validity is challenged of any legislation and the proceedings are stayed by the High Court, is it 38 OA Nos. 258,259,260 261 of 2019, 438,420 of 2022 and 740,577 of 2021.
necessary for the Tribunals to keep the proceedings in abeyance, It is not disputed that the constitutional validity of the Act is challenged in Bombay High Court. Learned counsel for the petitioner has annexed the orders of Bombay High Court passed in Writ Petition No. 8214 of 2018 and Writ Petition No. 4759 of 2021. He submitted that interim relief has been granted by Bombay High Court in these two petitions on the ground that the constitutional validity of the Act has been challenged. Learned counsel further submitted that till the decision on constitutional validity of the Act i is rendered by the Bombay High Court in which interim relief i is granted, this Tribunal shal] keep the proceedings of this OA in abeyance. |
28. We find no merit in the submissions made by learned counsel. Nothing has been brought on record to show that in the Writ Petition in which constitutional validity of the Act has been challenged, operation of the Act has been stayed.
Secondly, the interim relief which was granted in both these 39 OA Nos. 258.259.260.261 of 2019, $18,+20 of 2022 and 740,577 of 2021.
shall be protected till the decision is rendered in the Writ Petition in which constitutional validity is challenged. In both these Writ Petitions, inquiry proceedings were not stayed. In the case at hand, there is no question of protecting the service of the applicant as he has retired on 31° January, 2022. "
Another reason is that there are two judgements of Bombay High Court which say that this Act is applicable to the Central Government and there is judgement of Supreme Court which also says that this Act is applicable to the central government employees. Moreover, the applicant has not produced any decision of Supreme Court or Bombay High Court or any other High Court or any judgement of this Tribunal to show that when the constitutional validity of a legislation challenged the Tribunals and the Subordinate Courts shall stay their hands off and shall not proceed with the matters, Therefore, submissions of learned counsel in this respect cannot be accepted.
29. Learned counsel for the applicant submitted that charge sheet was served on the applicant after he was relieved, He 40 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
was relieved in afternoon. It means at 12 pm and charge sheet was served on him at 1:50 pm. By the time he was served with the charge memorandum, he had already been relieved and no longer a government servant. The same argument was advanced by learned counsel for the applicant in the case of Shri. Harihar Anandrao Lambodari Versus Union of India & Others in OA No. 789/2021 decided by this Tribunal to which one of us (Justice M.G. Sewlikar) was a party. While deciding the OA, following observations were made by this Tribunal:-
"19. Thus, FR. 56 (a) states that a Government servant shall stand retired on the afternoon on the day of the month in which he attains the age of 60 years. The word afternoon' has not been defined anywhere, Therefore, aid from law dictionary will have to be taken to understand the meaning of word 'afternoon'. When this word is used in @ Statute its meaning must be determined by the context and the circumstances of the subject matter. In the case at - hand "afternoon" is used in a statute ie. Fundamental Rules. In Mitra's Legal and Commercial Dictionary afternoon is defined . thus:
'It may mean the whole time from noon to midnight or it may mean the earlier part of that time, as distinguished Jrom the evening. The meaning must be determined by the context" |
20. in Law Lexicon, 1985 edition 'afiernoon' has been defined as that part of the Gay which follows noon, . between noon and evening. In view of the above, Sarge es ore tho patie Past tne, 77-57 GQLErnOOR Covers the entire period Jrom 12:00 noan to 4] OA Nos. 258,259,260.261 of 2019, 418,420 of 2022 and 740,577 of 2021.
6:00 PM. The working hours of the Central Government are from 09:30 A.M. to 6:00 P.M. So the afternoon covers the period from noon to the end of the working hours i.e. from 12:00 to 6:00 PM. If the interpretation as is contended by the learned counsel for the applicant is placed, it will lead to absurd results. If it is accepted that an employee stands retired on the afternoon i.e. when the clock strikes 12: 00 P.M, it would mean that the employee was working for a part of the day and for the remaining . part of the day he did not work as he had retired. 'Therefore, the word afternoon has to be interpreted as 12:00 noon till the end of the working hours. it cannot be countenanced that an employee will work for a part of the day and for the remaining part of the day, he has retired. Therefore, interpretation as contended by the applicant cannot be accepted.
21, Mr VA. Nagrani, learned counsel for the applicant placed reliance on the case of Union of India & Ors. Vs, Sri, Babu Joseph s/o Sree Late VO. Joseph, Writ Petition No. 31898/2015(S-CAT), Karnataka High Court Dated 4th January, 2016 for the proposition that after retirement a government servant does not remain a government servant and service of chargesheet on him is not a service on government servant. This decision of the Karnataka High Court has no application to the facts of the case in hand. In that case the Government servant retired on 31st March, 2013 and chargesheet was served on him at 23:25 hours i.e. after 6:00 PM. This is not the factual position in the case at hand. Chargesheet was served on the applicant before 6:00 PM. at 4:30 PM. ie. when he was still a Government servant."
30. Nothing has been brought on record before us to take a different view. We, therefore, reject this argument of the learned counsel.
51. Learned counsel for the applicant further submitted that 42 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
the respondents committed huge delay in directing the applicant to apply for verification and issuance of caste validity certificate. He contended that the applicant was appointed in the year 1990. At the flag end of his career, he was asked to get the caste certificate validated. He contended that the respondents for the first time issued notice to the applicant for getting the caste certificate validated. Thereafter, the respondents waited for four years. In these four years, the respondents did nothing. The respondents remained silent for four years and thereafter again issued notices to the applicant for getting the caste certificate validated by making _ application to the caste scrutiny committee. He contended that this inaction on the part of the respondents is appalling. For this purpose, he placed reliance on the case of R. Sundaram Versus The Lamil Nadu State Level & Others in Civil Appeal No. -/2023 in which Supreme Court held thus:-
"22. A community certificate in cases of scheduled tribe communities, unlike any other piece of paper is an acknowledgment of a person belonging to a COMIMUNIty which has jaced years of oppression. The Constitution of ANGIG guceantess certain righis to peopie from Scheduled Fed p phat 4 / ; ay Freqere tin mae AF1De communities an grounds of historior] PPUSECE, Ga 43 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
for the translation of such rights from paper to real life, the community certificate in most cases becomes an essential document. This 'certificate, whilst being an acknowledgment of history, is also a document that tries to rectify document such historical injustice by becoming a tool that fabricates constitutional rights into reality. In such a scenario where the validity of a community certificate is put to question, keeping in mind the importance of the document and the effect it has on people's rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte. . .
23. Any person, whose entire identity, and their past, present and future rights are challenged, must at the least be given an opportunity to be fairly heard. In the case at hand however, such a right has been denied to the Appellant, and hence the burden of proof on the respondents to disprove the nature of the certificate, has not. been discharged. In the absence of the discharge of such burden of proof, this Court must presume the community certificate of the Appellant to be genuine."
32. He further submitted that there are several OMs of the DoPT for timely verification of caste/ community certificates. He contended that on 19" March, 2021 and 20" March, 2007, DoPT issued OMs for timely verification of caste / . community certificate. He contended that instructions are issued requiring all the concerned officers to carry out the process of caste verification within a reasonable time. Caste certificates should have been examined at the time of joining 44 OA Nos. 258,259.260,26] of 2019, 418,420 of 2022 and 740,577 of 2021.
of service. He contended that the Department of Atomic Energy has sought the reply fom Department of Legal Affairs. DoPT has directed the DAE since the issue is under consideration and comments from Department of Legal. Affairs are being obtained. Department of Atomic Energy had issued the letter dated 8 December, 2022 directing all the proceedings to be kept in abeyance. When DoPT, the Nodal Ministry itself is not clear on the subject of caste verification, it cannot be said that the applicant has committed any misconduct.
33. We do not find any substance in the submissions made by the learned counsel for the applicant. It is true that the instructions have been issued by the DoPT by the above referred OMs to get the caste certificate validated within a reasonable time. It is pertinent to note that in the year 2014 itself ie. about six years before the retirement of the applicant, the respondents had communicated to the applicant to get the verification of his caste done. He was requested to 4 So Cae worm, Ake my > cay ran . = suttoit the BAIN igetiol I TOrm mr d& # 45 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
respondents to make application to the caste scrutiny committee for verification of caste. The employer cannot make application under this Act to the caste scrutiny committee as the said application contains certain information which only the applicant can provide. Without | this information, the respondents being the employer cannot make any application to the caste scrutiny committee, Thus, the applicant did not make any application to the caste scrutiny committee nor did he provide the information to the respondents as required in form E & F of the Act. The applicant is conveniently shifting the blame on the respondents contending that there is huge delay on the part of the respondents in asking the applicant to make application to caste scrutiny committee. He forgets that in the year 2014 only he was required to make application. He did not do so. The submission that the respondents did not take any action for complete one year is stated to be rejected. Once the applicant was asked to make an application to the caste scrutmy committee, it was incumbent on him to make the 46 OA Nos. 258,259.260,26] of 2019, 418,420 of 2022 and 740,577 of 2021.
application. Since he did not do it, he cannot be heard to say that the respondent waited for four years and then issued letters to the applicant for making application to caste scrutiny committee for verification of caste. | 34, Case of R Sundaram (supra) is not applicable to the facts of the case at hand. In the case of R Sundaram (supra) facts were totally different. In the case of R Sundaram (supra) the appellant R Sundaram had put in service of 38 years and two days before retirement, he was served with a termination order on the ground of his caste certificate being false and all the retirement benefits except PF were withheld The District Collector, without conducting any inquiry cancelled the communinty certificate granted to the appellant (R Sundaram), Appellant R Sundaram filed Writ Petition in which the matter was remanded to the Tamil Nadu State Level Scrutiny Committee to conduct a fresh enquiry. In the inquiry, it was revealed that the appellant, R Sundaram did not belong to the reserved community. On this report, a show cause notices wes issued to the exniiecer¢s The show cen TICE Wa BLiOeS WaS ISSUCd to the GPPUaiil, L110 SHOW Cause notice was 47 OANos, 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
challenged in High Court by filing Writ Petition. High Court allowed the Writ Petition and remanded the matter to the caste scrutiny committee and quashed the show cause notice and the enquiry report. The: caste scrutiny committee again held that the caste certificate of the appellant, R Sundaram was not correct. Aggrieved by this Teport of the caste scrutiny committee, applicant filed Writ Petition for restoration of community certificate. Both were dismissed by the High
- Court. On these facts, Supreme Court made above observations. In the case at hand, this is not the fact situation. _ Applicant was asked well before his retirement to apply for verification of caste certificate. The case of Narendra K. Kumbhare is also not applicable to the facts of the case at hand. In this case in para 21, it has been held thus:-
"After going through all these judgements, we find that in all these judgements, the caste claim was invalidated and in some of the cases the disciplinary enquiry was initiated which is not the situation in the case in hand. The caste claim was not invalidated and till the date of his superannuation, the enquiry was not initiated."
35. In that case only show cause notice was issued. No 48 OA Nos. 258,259,260,26] of 2019, 418,420 of 2022 and 740,577 of 2021, enquiry was initiated against petitioner in Narendra Kumbhare case. For this reason, this decision of Bombay High Court is not applicable to the facts of the case at hand.
36. It is pertinent to note that the applicant instead of making application to the caste scrutiny committee is shifting the blame on the respondents for the delay in asking him to make application for validation of the caste to the caste scrutiny committee. He was asked in the year 2014 to make an application to the caste scrutiny committee for validation of caste. He did not make the application. It is his contention that in the year 2018 ie. after a period of four years, he was again asked to make an application for the same purpose. He contends that the respondents did not take any action for four years. He had made correspondence with the respondents. We | do not agree with the submission made by the learned counsel for the applicant. It is true that in the year 2014, the applicant was asked by the respondents to make an application to the caste scrutiny committee for validation of caste certificate.
. bem een ot FP nm pan Fy eee .
MoOweves, the applicant did not make the application, He made 49 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, some correspondence with the respondents. The applicant retired in the year 2022. This clearly shows that eight years before his retirement, he was asked to make an application to the caste scrutiny committee but he did not make the application for the reasons best known to him. It was argued by the learned counsel that it is the responsibility of the respondents to make the application. We agree with him that respondents, as per section 6, of the Act, respondents have to make an application to the caste scrutiny committee but the said application can be made only when the information as contained in form E & F is made available to the respondents. As long as this information is not forwarded to the respondents, it is not possible for the respondents to make any such application. Therefore, the submission deserves rejection.
37. It is pertinent to note that in the charge memo in para 9(a), it is stated that on 15" May, 2014, the applicant replied that the information required in form E & F are very old records for the period prior to year 1950 which is very cumbersome and time consuming. It is further stated in this 50 OA Nos. 258,259.260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
para that the applicant mentioned that the efforts are being made to collect the required details and documents from the departments and requested for reasonable time for submission of said forms. Para 8(b) of the charge memo states that on 28"
September, 2018, the applicant replied that in view of constitutional provisions and provisions of law, government policy decisions vide several Office Memorandums issued by the Government of India regarding verification of caste certificates through District Magistrate concemed, requested not to insist for submissions of form E & F. Again on 14% October, 2021, the applicant informed that the information required in form E & F are very old records pertaining to the period prior to the year 1950 which is very cumbersome and time consuming to locate the same and all efforts are being made by him to gather the required information and documents. These allegations made in the 'charge memorandum are on the basis of his applications, it is seen that the applicant was given sufficient time to collect the weaned fe fo Bont thea Ant TT. Loe Peyuirce il FOR & © oF the Aci He nad 51 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
sought time by the application dated 15" May, 2014, and the respondents granted him time till the year 2018, it cannot be said that the respondents remained inactive for four years. It was contended that the submissions 'of the applicant that the respondents have themselves declared | in the charge memorandum that the applicant has filed a false certificate has no basis. Respondents never declared the certificate to be false. What they have alleged in the Article of charge is that the applicant has not been able to prove that he is entitled to the benefits of reservation due to the Scheduled Tribes as he has not produced the mandatory caste validity certificate from _ the scrutiny committee, but has wrongly claimed benefits right from the beginning in the government service. It is true that Karnataka High Court in the case of Hucharaya Swamy and another Versus Canara Bank, Head Office, Bangalore and others, 1995 SCC Online Kar 444 has held thus:-
"6. Coming to the basic issue namely the question as to whether the Bank was justified in holding a domestic -- enquiry with regard to the aspect of the petitioners' castes, I need to record that where the Bank has gone wrong is that it ought to have referred the matter to the Competent Authority and once this was done and the authority confirmed that 52 GA Nos. 238,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, there was something wrong with regard to the petitioners castes, the matter should have been referred to the Designated Authority for revocation of the caste certificates. That procedure has invariably been followed in the subsequent cases but it is possible at the point of time when the present cause of action arose, that this aspect of the matter was overlooked. That is far more crucial because the Power to issue certificates and the power to revoke them is limited to the Designated Authorities and that power could not have been exercised by the Enquiry Authority appointed by the Bank.
38. It is held that caste certificate can be invalidated only by the Court or the caste scrutiny committee. This case has no application to the facts of the case at hand because the respondents have not declared the caste certificate invalidated.
39. Leared counsel placed reliance on the case of Kishore son of Bhikan Singh Rajput versus Kirti Wife of | kishore Rajput , Writ Petition No. 7052/2006 (Bombay High Court Bench at Aurangabad) in which following observations are made:-
"8. Normally, when this Court is ceased of the matter, it is expected of the subordinate courts to stay their hands away, It is difficult to understand as to what was an alarming urgency to proceed further and dismiss the petition when the learned Judge of the Family Court was very well aware that the order dated 15th September 2006 was challenged before this Court by the present petitioner No doubt, that the learned Family Court is right in observing that there was no stay by this Court. But 28 a matter of proprizty and when learned Juage was very much aware about pendency of or Me 2 theta fina et th i Freed eimind thy tf 4 Pei OETOrE this Our rae lagenad YRGEE Dusit the the to 33 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
have stayed his hands away and waited till further orders to be passed by this Court. In that view of the matter. I am inclined to allow the petition. "
40. On the basis of these observations, learned counsel for the applicant argued that the Tribunal cannot proceed when _ the constitutional validity of the Act is challenged before the High Court. On careful perusal of this judgement, we do not _ find that any such observation has been made by the High Court. The facts in the case of Kishore son of Bhikaji Rajput (supra) are that the petitioner, Kishore had filed petition for dissolution of marriage. The petitioner Kishore had filed an application for amendment which was allowed by the Family _ Court. The respondents wife also amended the written statement. The petitioner husband filed an application for. framing additional issues which came to be rejected and by the same order, the Family Court disallowed the amendment application which was already allowed. The petitioner had filed an application for adjoumment. This application was rejected by the Family Court and dismissed the petition in default. On these facts, the observations extracted above have 34 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577. of 2021.
been made by the High Court. Therefore, this decision of the Bombay High Court is not applicable to the facts of the case at hand.
41. The contention of the learned counsel for the applicant that the OM dated 19° March, 2021 and 20% March, 2007 of the DoPT to the effect that Ministry / Departments should get the caste certificate timely verified and there is no mention about validity of caste certificate is stated to be rejected, AS indicated earlier, the caste verification for validation of caste has to be done on the basis of the directions issued by the Apex Court in Kumari Madhuri Patil Case (Supra).
42. Learned counsel further submitted that the applicant belongs to Halba community and the certificate to that effect was issued way back in the year 1980-90 by the Executive Magistrate, Nagpur / Competent Authority. The said certificate was issued on the basis of GR dated 31 july, 1981 issued by Government of Maharashtra wherein the Government of Maharashtra directed that until further orders, so far as Halbas : fo 4h OAR AAT Fo aeast as Cert 7 honid 3 HORTEOG, ine oohod Leaving Certificates SHOUIG DE 55 OA Nos. 258,259.260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
accepted as valid for the purpose of their caste. This submission is of no assistance to the learned counsel for the applicant. He has placed reliance' on the chapter 13 of Brochure Act on Reservation for SCs & STs in services dated _ 20 March, 2007 in which it is stated in para 13.1 as under:-
' 13.1 The Caste/Tribe certificate issued by the Jollowing authorities in the prescribed form in Appendix 14 will only be accepted by the appointing authorities as sufficient proof in support of a candidate's claim as belonging to ) the Scheduled | Caste or the Scheduled Tribe:
(1) District Magistrate/ Additional District Magistrate/ Collector/Deputy Commissioner/Additional Deputy Comissioner/ Deputy Collector/I* Class -- Stipendary Magistrate/SubDivisionalMagistrate/TalukaMagistrate/Executi ve Magistrate/Extra Assistant Commissioner.
(2) Chief Presidency Magistrate/Additional Chief Presidency Magistrate/Presidency Magistrate;
(3) Revenue Officer not below the rank of Tehsildar;and (4) Sub-Divisional Officer of the area where the candidate and/or his family normally resides."
43. The certificate in the case at hand has not been issued by any of the authorities mentioned hereinabove. It has been issued by the Additional Metropolitan Magistrate. Therefore, it cannot be said that the certificate was issued by any of the authorities mentioned above. It was further contended by the learned counsel that in the case of State of Maharashtra versus Milind and Others in (2001) I Supreme Court Cases 36 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
4, it has been held in para 38 thus:-
44. already completed the course and may be he is Practising as a doctor. In this view and at this length of time it is Jor nobody's benefit to annul his admission, luge amount is spent on such course by the admission given to Respondent 1. Lf any action is taken against Respondent 1, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his Practising as a doctor, But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled T ribes Order. In other words, he cannot take gadvantage of the Scheduled Tribes Order any further or for any other constitutional Purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372 of 1985 and other related matters, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this Judgment."
In the case of Gajanan Marotrao Nimje & Ors. Versus The Reserve Bank of India & Ors. in Civil Appeal No. 18396/2018, it has been held that:-
"9. There is no case for anybody leave alone the writ petitioners that at the time of entry in service, the appellants Played any fraud There was no case that the petitioners therein had played any fraud in obtaining the certificate or employment. In any case the appellants, it is pointed out that, even assuming that they do not belong to Scheduled Caste or Scheduled Tribe, fall either under the most backward or under the backward category, who were also entitled to some reservation at the time of recruitment. In order to avoid ary litigation on this aspect only, the High Court in its wisdom bassed the judgment dated 1.1] 2012, thot cll the petitioners L. orotag wap hl 5 fag dhe a tee noe Weel wili be nut im the general CGIELCINV, 57 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
12. Therefore, these appeals are disposed of as follows:-
In partial modification of the impugned judgements, it is ordered that all the appellants shall be placed below the last of: the general category candidate as on 28.11.2000 and will be continued as such till their superannuation. All the benefits which the appellants earned as reserved category candidates after after 28.11.2000 will be surrenderd/recovered. After 28.11.2000 the benefits available to the reserved category candidates will be given to the members of the reserved category regarding whom there is no dispute. There shall be no recovery of any benefits Jrom the " employees who are already superannuated Action, if any, taken pursuant to the impugned judgment(s) .will stand recalled and modified to the extent indicated hereinabove.
Needless to say that the notification dated 24.12.2023 will be appropriately reconsidered."
45. He has placed reliance on the case of SG. Barapatre & Ors. Versus Shri Ananta Gajanan Gaiki & Ors. in Civil Appeal No. 10387-10388/2018. He argued that the applicant did not play any fraud in obtaining the certificate, Therefore, they should not be forced to obtain caste validity certificate, We do not find any force in these submissions. To deal with these submissions, we would like to quote the conclusions of the Apex Court in Jagdish Balaram Bahira (supra) case:-
"09. For these reasons, we hold and declare that:
69.1, The directions which were issued by the Constitution Bench of this Court in para 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article J42 of the Constitution;
69.2. Since the decision of this Court in Madhuri Patil which 58 OA Nos. 258,259,260,261 of 20] 9, 418,420 of 2022 and 740,577 of 2021.
was rendered on 2-9-1994, the regime which held the field in pursuance of those directionsenvisaged a detailed procedure jor: |
(a) the issuance of caste certificates;
(0) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the: State Government;
(c) the procedure Jor the conduct of investigation into the authenticity of the claim;
(a) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine;
(e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and () Prosecution for a criminal offence.
69.3. The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by Benches of three Judges laid down the Principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution- on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est. 69.4. The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice; 69.5. By Maharashtra Act 23 of 2001 there is a legislative codification of the broad Principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees Jor verification of claims (Section 6): submission of applications for verification of caste certificates [Sections 6(2) and 6(3)}; cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of presecution (Section Lt), amongst other things;
69.6. The power conferred by Section 7 upon the Serutiry aaa ; «ype . Prete ot 4b Of : ~ :
Committee to verify a claim is both In respect of caste 59 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
certificates issued prior to and subsequent to the enforcement of the Act on 18-10-2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee; 69.7, Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise; 69.8. The decisions in Kavita Solunke and Shalini of two _ learned Judges are overruled. Shalini insojar as it stipulates a _ requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct Position in law;
69.9. Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and: would apply in those situations where the act constituting the offence has taken place after the date of its enforcement; 69.10. The judgment of the Full Bench of the Bombay High Court in Arun is manifestly erroneous and is overruled: and 69.11. Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the Jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act 23 of 2001 holds the field."
Thus, it is clear that directions issued by the Constitution. . 46. Bench in the case of Milind in para 38 were in pursuance of the power vested in the Supreme Court under Article 142 of the Constitution. In the case of §.G Barapatre (supra), it is held that the directions were issued only to the petitioners. In para 6 and 9 of the judgement, Supreme Court held thus:-
"6. In paragraph 18 of the judgment, the Division Bench of the High Court heid as under:-60 OA Nos. 258,259,260,261 of 2019,
418,420 of 2022 and 740,577 of 2021, "18. In that view of the matter, we Jind that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to Protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the Position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith,"
category as on 28.11.2000 and Placed below the last of the general category. candidate as on that date." .
47. These are the directions limited to the petitioners in the case of Barapatre and these are not directions in rem.
48. In the case of Dr, Sadique Hussai Sheikh Azim Qureshi Versus Divisional Caste Certificate Scrutiny Committee & Others in Writ Petition No. 3368/2018 decided on 9% September, 2010, Bombay High Court in Para 10 held thus:-
"10. We are thus of the view that Sub-section' (3) of Section 6 Confers on the appointing authority a power coupled with a duty to make an application to the concerned Scrutiny Committee for validation of the caste certificate of a person selected for appointment where such a person has not obtained such a validity certificate. It is not open jor the appointing authority to avoid the step of referring such a castle certificate for verification to the Scrutiny Committee Ging IS8HE a Show-cause notice for taking action agains an wf « i = LAs ef it = Af. aire et POOF emplovee on the basis this sho CGNGGGIE GOES M0; DE10K LO G 61 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Scheduled Caste, etc. howsoever justified the appointing authority may be in entertaming a doubt about the genuineness of a caste certificate.
49. We have already held that employer can make application to the caste scrutiny committee only when information required in form E & F is furnished.
50. It was contended that the applicant got appointment prior to the Act which was brought in force in the year 2001 and, therefore, the applicant cannot be subjected to the jurisdiction of the Act. We do not find any force in this submission. In Jagdish Balaram Bahira Case, in para 69.6 it has been held that the power conferred by section 7 upon the scrutiny committee to verify the claim in both respect of caste _ certificates issued prior to and subsequent to enforcement of Act on 20" October, 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to the reserved caste, tribe or class is yet to be verified by the scrutiny committee.
51. Learned counsel further contended that the very issue was presented to Lok Sabha on 20" December, 2022 by the 62 OA Nos. 258,255,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Parliamentary Committee in respect of the issue involved in the present applications. The Parliamentary Committee noticed that if a certificate has been issued by competent authority and that has not been verified till his retirement due to the absence of record or any other reasons, verification of caste certificate at the fag end of his service would lead to mental / physical / financial harassment of the retiring employee. The Committee noted that it is grave injustice on SCs/STs to insist on verification of their caste certificate and consequential denial of retirement benefits to them. The Committee recommended that the DoPT should publish suitable guidelines in consultation with the State Government. DoPT replied that instructions have already been given for timely verification of caste certificate. In the case at hand, the applicant was asked to get the caste certificate verified eight years before his retirement. Therefore, it cannot be said that at the time of retirement, he was asked to furnish the caste validity certificate. He further contended that this committee * aT cin ol Abe rurrher bhi pid CTiGeG BELGE 63 OA Nos. 258,259,260,26] of 2019, 418,420 of 2022 and 740,577 of 2021.
thereby caste certificate of an employee is verified within six months of his joining the service failing which his service should be treated authentic unless otherwise ruled before his confirmation. He further argued that while issuing the order of appointment, it is categorically stated that his appointment is provisional subject to the caste being verified through proper channel. Thereafter, the applicant is granted confirmation of service meaning thereby caste was verified and found to be genuine. Therefore, there is no question of re-verifying the same that too after 25-30 long years. We are not impressed with the submission. Supreme Court in the case of Jagdish Babaram Bahira has held that finality is not attached to the certificate as long as it is not verified by the scrutiny committee. |
52. He further submitted that the Government of Maharashtra by GR dated 14" December, 2022 has considered the cases in respect of those employees whose caste is declared invalid / who has not submitted that caste validity and those who have given up the claim of Scheduled Tribe, 64 OANos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,877 of 2021.
such employee should' be given service related and retiral benefits. He submits. that when the Act is being applied, the GR issued under this Act should also be made applicable. This GR states that Government officers / employees who have been classified at supernumerary post due to invalidation of Scheduled Tribe caste certificate should be given service related and retirement benefits. It further states that government officers and employees working in supermumerary posts should be given | day technical break and continue their services for a period of 11 months til] the date of retirement, The concemed departments should plan a time-bound program and conduct a special recruitment drive to fill the vacant Scheduled Tribe posts. This GR applies only to Maharashtra Government employees. Even if this argument is accepted that if the Act is made applicable to central government employees, the GR of Maharashtra Government should also be made applicable to the Centra] Government employees, his submission needs no consideration because it HpLoyees whose caste has been 65 OA Nos. 258,259,260,261 of 2019. 418,420 of 2022 and 740,577 of 2021, deciared invalid. In the case at hand, the applicant has not applied to the caste scrutiny committee despite asking him several times.
53. Learned counsel for the applicant further contended that in the case of Union of India Versus Vimal Murlidhar Kumbhre & ORS. in Petition (s) for Special Leave to Appeal (Civil) No. (5), 1070/2000, it has been held relying on the decision in the case of Milind (supra) as under:-_ "Having regard to the passage of time, in the given circumstances including interim orders passed by this Court in SLP (C) No. 16372 of 1985 and other related matters. We make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgement."
54. As already indicated, the directions in the case of Milind (supra) have been held to be under Article 142 of the Constitution of India in Jagdish Balaram Bahira case (supra). Therefore, these directions are also under Article 142 of the Constitution of India.
55. Learned counsel for the applicant further submitted that if the applicant had been asked in the initial period of his 66 OA Nos. 258,259,260, 261 of 2019, 418,420 of 2022 and 740. 77 of 202}, service to get the caste certificate verified, he would have sought employment somewhere else. It is unfair and unreasonable on the part of the respondents to ask the applicant to submit caste validity certificate after putting in 25-30 years of service. He submitted that the delay in asking the applicant to get the caste validity certificate itself is fatal and inquiry cannot be initiated on this basis. We do not agree with this submission. The antithesis of this arguments is that the applicant does not have the record to make application to the caste scrutiny committee. Thus, he admits that he doesn't have sufficient record to enable him to make an application to caste scrutiny committee. First of all, the certificate granted to the applicant is not by competent authority but it is granted by Additional Metropolitan Magistrate who has no jurisdiction to issue such certificate. In the case of Kumari Madhuri Patil versus Commissioner Tribal Development, 1994 6 SCC 241 ; the caste certificate was issued by Judicial Magistrate, Supreme Court held in the case of Kumar Madhuri Fatil foe . thet Terdiatal istrate has no foriedintiqe ca foun (SEPPA) wel Judicial Magistrate has no jurisdiction <c iSSue 67 = OANos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, caste certificate and it is a void certificate. In the case at hand also, the certificate is a void certificate because it is issued by Additional Metropolitan Magistrate.
56. In the light of the above, it is clear that the applicant has failed to apply to the caste scrutiny committee nor did he | provide information in form E and F to the respondents on promulgation of the Act, in terms of Section 4 of the Act, certificate issued by any other party shall stand invalid. Therefore, inquiry initiated against the applicant is valid and no fault can be found with the order of the respondents. Now ~ we shall deal with all the other applications.
OA No. 258/2019Applicant was appointed as Superintendent on 12" November, 1990. On 5" July, 2018, he was asked to supply caste validity certificate. His caste certificate was issued by Executive Magistrate of Halba Community. On 16% January, 2019, charge sheet was submitted.
OA No. 259/2019Applicant was appointed on 7" July, 1992 as Assistant Chief 68 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021.
Accounts Officer. He belongs to Halba caste in support of which he has produced caste certificate issued by Executive Magistrate, Umre. He was appointed on 7" July, 1992 as Assistant Chief Accounts Officer. On 11" July, 2018, a communication was addressed to him to produce caste validity certificate. On 16" September, 2019, charge memorandum was served on him.
OA NO. 260/2019The applicant was of Halba community, He was appointed as Superintendent on 2" July, 1990. His caste certificate was issued by the Executive Magistrate. On 5% July, 2018, he was asked to produce caste validity certificate. He was again asked to make online application for caste validity certificate by the communication dated 5" November, 2018. On 16" January, 2019, Charge Memorandum was served on him.
OA NO. 261/2019Applicant belongs to Halba Community in proof of which he has produced certificate of caste issued by Executive 69 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 746,577 of 2021.
Superintendent. On 5° July, 2018, a communication was _ addressed to him for getting the caste validity certificate. On 16" January, 2019, Charge memorandum was served on him.
OA NO. 418/2022Applicant belongs to Halba caste in support of which he has produced caste certificate issued by Executive Magistrate. On 6° July, 1992, he was appointed as LDC. In 1997, he was promoted as LDC. Respondents issued letters dated 4° May, 2017, 16" May, 2017, 1* June, 2021, 24® December, 2021 and 23" February, 2022 calling upon him to apply online and to provide information in form E & F. He retired on superannuation in the year 2017. On 11" March, 2022, charge memorandum was served on him.
OA NO. 577/2021Applicant belongs to Halba community in proof of which he has produced certificate issued by Executive Magistrate. On 28" August, 1995, applicant was appointed as LDC. He was promoted as Junior Superintendent. Subsequently, his promotion was withdrawn. On 07° January, 2015, while 70 OA Nos. 258,259,260,261 of 2019, 418,420 of 2022 and 740,577 of 2021, restoring promotion he was directed to get caste certificate validated. On 15% January, 2016 and 30% September, 2014, | competent authority i.e. Revenue Officer verified the caste certificate and the review authority confirmed that the said certificate was issued from his office, Applicant was again reverted the amount which was paid to him 48 Salary on promotion was recovered. He has prayed for refund of the amount recovered. | OA NO. 740/2021 Applicant in this OA belongs to Halba Community in support of which he has produced the certificate issued by the Executive Magistrate. The applicant was appointed on 12"
October, 1987 as LDC. Various letters were written to the applicant to produce the caste validity certificate. The letters issued were on 28% September, 2018, 01" April, 2019 and 23% | May, 2019. On gt April, 2019, charge memorandum was served on him.
57. In all these Cases, certificates have been issued by a fotenta Fi SUTIN ay at Rae 2.
Frecutive magisirate, fy OA No, $7 202), the confirmation 71 OA Nos. 258,259.260.261 of 2019, 418,420 of 2022 and 740,577 of 2021.
from revenue office that it was the certificate issued by that office. Question is whether these certificates are valid certificates. In terms of section 4(2) of the Act, the certificates issued by the authority other than caste scrutiny committee have been declared to be invalid. For ease of reference, we deem it appropriate to quote sub-section 4(2) of the Act:-
"A caste certificate issued by any person, officer or authority other than the Competent Authority shall be invalid. The Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the scrutiny committee."
58. From this section, it is apparent that the certificate issued by any authority other than the caste scrutiny committee is declared to be invalid. As indicated earlier, in terms of judgement of Bombay High Court in the case of BSNL & | Advasi Samaj (supra), the provisions of the Act are applicable to the Central Government servants. Therefore, these certificates are no longer valid and the applicants are required to get these certificates verified / validated from caste scrutiny committee. As held earlier, Supreme Court in the case of Jagdish balram bahira... in para 69.6 has clearly held that a 72 OA Nos. 258,259,260,261 of 2019, ~ 418,420 of 2022 and 740,577 of 2021, certificate has not attained finality unless and until it is validated by the caste scrutiny committee.
59. Having regard to what is discussed hereinabove, we do not think that the respondents committed any error in issuing charge memorandum to the applicants. In case of OA No. 571/2021, if the caste certificate of the applicant is validated, he is entitled to get the refund of the amount which has been recovered from him. In this view of the matter, all the applications are devoid of any substance. Hence, they are dismissed with no orders as to cost. Pending MAs, if any, Stand closed.
(Rajinder Kashyap) (J usticls M.G.Sewlikar) Member (A) . Member (J) nk, AY Are KON