Madhya Pradesh High Court
Jitu Prasad vs Industrial Development Bank Of India ... on 6 December, 2012
HIGH COURT OF MADHYA PRADESH : JABALPUR.
WRIT PETITION NO.6440/2011
Jitu Prasad
Vs
Industrial Development Bank
and another.
PRESENT : Hon'ble Shri Justice K.K. Trivedi. J.
Shri Akash Choudhary, learned counsel for the
Petitioner .
Shri Anoop Nair, learned counsel for respondents.
ORDER
(6.12.2012) This writ petition under Article 226 of the Constitution of India is directed against the order dated 22.2.2011, said to be issued by the respondents, by which the services of the petitioner have been terminated with immediate effect. It is alleged that the petitioner took part in selection for appointment on the post of Assistant Manager (Executive- Grade-A) and on selection an offer of appointment was issued to him. The petitioner reported on duty on 1.12.2010. The relevant documents were produced by him. However, after scrutiny of his documents, it was observed by the Bank that the petitioner belongs to "Roniyar" (Baniya) caste from the State of Jharkhand. Finding that the said caste was not appearing in the Central list of Other Backward Class for the State of Jharkhand, as per the Notification issued by the Government of India, Ministry of Social Justice and Empowerment, it was treated that the petitioner is not belonging to said OBC category and, therefore, could not have been appointed under the said 2 category. The order of termination was, thus, issued. It is contended that in the State of Bihar, before re-organisation of the State, "Roniyar" (Baniya) was enlisted as a caste in the OBC category. The process of recruitment was started and at the time when the application was so submitted by the petitioner, the said caste was included in the list of OBC. However, because of the formation of the new State of Jharkhand, the area in which the petitioner was living falls within the State of Jharkhand, where the said caste was not included as OBC in the list so issued, but subsequently a modification was done and this particular caste was again included in the list of the State of Jharkhand. It is contended that under the provisions of the Bihar Re-organisation Act, 2000 (hereinafter referred to as the Act for brevity), such benefits are protected under the circumstances and, as such, the petitioner would be one who belongs to the OBC category in particular State and would entitle to the benefit of appointment. It is contended that the cancellation of appointment of the petitioner on this count is not justified and, as such, the order impugned is bad in law and is liable to be quashed.
2: A return has been filed by the respondents raising the preliminary objection with respect to the maintainability of the writ petition on the ground that the respondent Bank is not a State within the meaning of Article 12 of the Constitution of India and no writ petition would be maintainable against the said Bank. It is contended that the petitioner has no fundamental right to claim appointment or reinstatement in the services. There were conditions mentioned in the offer of appointment extended to the petitioner by the Bank wherein it was specifically provided that in case it is found that the caste certificate produced by the petitioner was invalid or not acceptable, 3 his services would be terminated. It is contended that in terms of the scrutiny when the fact was found that the caste to which the petitioner belongs is not included as OBC in the State of Jharkhand, rightly the appointment of the petitioner was cancelled. It is contended that no wrong is committed by the respondents and, as such, the order impugned is just and proper.
3: A rejoinder has been filed by the petitioner along with which articles of association of the Bank have been produced. It has been pointed out by referring certain classes of Article of Association that respondent is a Company registered under the Companies Act, but is discharging the banking functions as have been delegated by the Reserved Bank of India and, as such, is discharging the public duties. Thus, it is contended that the Bank is a Company of the State function and is covered as an authority within the meaning of Article 12 of the Constitution of India. Thus, it is contended that the writ petition is maintainable. As far as the applicability of the provisions of the Act, it is contended that the benefit is still available to the petitioner under the provisions of the said Act.
4: Heard learned counsel for the parties at length and perused the record.
5: As far as the first objection of the respondents is concerned, the same is liable to be rejected outrightly. The Board of Director of the Bank is constituted in the manner prescribed in the Article of Association wherein it is provided that 51% members of the Board of Director would be the Central Government officials. It is provided that the Reserved Bank of India may have the power to remove the Chairman or whole time Director of the Bank. In Clause 4 122 of the Article of Association, it is provided that election of the Director is to be made for a period of three years and the control over the Bank is to be supervised by the Reserved Bank of India. The respondent Bank is not only recognised as other public sector Bank by the Reserved Bank of India, but its Board of Director is constituted by taking the Government officials in its folds. The Bank is required to discharge many functions which are entrusted to the Nationalised Bank. Thus, since the respondent Bank is discharging the public function as well though it is a Commercial Bank, the same is an authority within the meaning of Article 12 of the Constitution of India. No much debate is necessary in this respect.
6: As far as the other objection is raised, the provisions of Section 84 of the Act would make it clear that the provisions of Part-II of the Act are not deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies. Yet another power is there to make the adaption of laws as prescribed under Section 85 of the Act. The provisions of Section 84 and 85 of the Act are reproduced for ready reference :-
"84. Territorial extent of laws.- The provisions of Part-II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day.
85. Power to adapt laws.- For the 5 purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptions and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation.- In this section the expression "appropriate Government" means as respects any law relating to a matter enunciated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government."
7: By virtue of such adaption, the State list which was in existence and on the basis of which the certificate was issued to the petitioner with respect to his caste category certifying that he belongs to OBC caste cannot be said to be invalid or illegal. It is not in dispute that subsequently for the State of Jharkhand also "Roniyar" (Baniya) caste was specifically added as OBC category. Thus, merely because of such a fact that for certain period, the list was not revalidated, it cannot be said that the petitioner is not belonging to a particular caste, and that he will not get the benefit of reservation made for the said caste. The order impugned, therefore, does not hold good. The respondents have not verified the said certificate at the time when the selection process was going on. Had it been done, the petitioner would have been informed about such a fact. As 6 far as the selection part is concerned, it is not in dispute that the petitioner has qualified the selection test successfully. The law is well settled in this respect as well that the process of recruitment if started, the same would be conducted and completed under the existing Rules which were in vogue when the process of selection was started. This being so, it cannot be said that the appointment of petitioner was fraudulent or bad in law in any manner. The cancellation of such an appointment was not permissible.
8: The issue whether a particular person belongs to a particular category or not was dealt with by the Apex Court in the case of Mathuri Patil Vs. Additional Commissioner, Tribal Development and others (AIR 1994 SC 94). The Apex Court has held that validity of a caste certificate has to be examined by a High Power Screening Committee. It is not a case that an enquiry was got conducted with respect to the validity of the caste certificate of the petitioner from a High Power Screening Committee and then only the action was taken by the respondents for termination of the services of the petitioner. If in the opinion of the respondents, the petitioner was not belonging to the particular caste or that particular caste was not included in the list of OBC category in the State of Jharkhand even then a certificate was issued to him, it was necessary to get such a fact enquired by the High Power Screening Committee. The caste certificate issued in favour of the petitioner by the competent authority was not cancelled at any time. That being so, merely because description of the caste for the time being was not in the list, termination of services of the petitioner was not justified.
79: In view of the aforesaid enunciation of law by the Apex Court, the action of the respondents in terminating the services of the petitioner cannot be sustained. The order impugned is, thus, liable to be quashed.
10 : Consequently, the writ petition is allowed. The order dated 22.2.2011 (Annx.P/1) is, hereby, quashed. The respondents are directed to reinstate the petitioner in service forthwith, with all the consequential benefits.
11 : The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. TRIVEDI) Judge /12/2012 8 HIGH COURT OF MADHYA PRADESH : JABALPUR.
WRIT PETITION NO.6440/2011Jitu Prasad Vs Industrial Development Bank and another.
ORDER
Post it for /12/2012
(K. K. Trivedi)
Judge
/12/2012