(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, to call for the records relating to the proceedings in HRMD.Che.No/1574/02.02.033/2017-18, dated 6.12.2017 of the respondent, and quash the orders passed therein and consequently direct the respondent to disburse all the terminal benefits such as provident fund, leave encashment, gratuity etc., including pension with reasonable interest from the date of the dues, in the light of the principles of law laid down by the Division Bench in W.P.No.19234 of 2014, by order dt.07.07.2015.)
M. Venugopal, J.
1. The Petitioner has preferred the instant Writ Petition seeking to call for the records pertaining to the Proceedings in HRMD.Che.No/1574/02.02.033/2017-18, dated 6.12.2017 of the First Respondent and to quash the same. Further he has sought for passing of an order by this Court in directing the Respondent to disburse all the terminal benefits, such as Provident Fund, Leave Encashment, Gratuity etc., including Pension with reasonable interest from the date of the dues, in the light of the Principles laid down by the Division Bench in W.P.No.19234 of 2014, dated 07.07.2015.
2. Heard the Learned Senior Counsel for the Petitioner, the Learned Counsel for the First Respondent and the Learned Additional Government Pleader appearing for the Second Respondent.
3. According to the Petitioner, he belongs to 'Konda Reddy' Community, which is one of the Communities listed as a Scheduled Tribe, under the Constitution (Scheduled Tribes) Order, 1950. As early as on 11.06.1973, he had obtained the 'Community Certificate' issued by the Taluk Office, Uthiramerur, in support of his claim that he belongs to Scheduled Tribe Community. During 1977, he joined as Typist in Southern Railways under the quota reserved for 'Scheduled Tribes' and continued there till 1981. In November 1981, he was selected and appointed in the services of the First Respondent/Reserve Bank of India, Chennai, as Typist under the quota reserved for 'Scheduled Tribes'. As directed by the First Respondent, at the time of his appointment, he obtained and produced another Community Certificate, dated 07.11.1981 issued by the Tahsildar, Uthiramerur Taluk. The District Collector of Chengalpet, by means of an Order dated 25.02.1985 had passed an order cancelling his 'Community Certificate', which was set aside by this Court in W.P.No.4018 of 1985.
4. The stand of the Petitioner is that after several years, once again an enquiry was started by the District Vigilance Committee, in 2007, as regards the genuineness of his 'Community Certificate'. Because of the reason that the said Committee was not constituted as per directions of the Judgment in Madhuri Patel's case (AIR 1994 SC 95), the Petitioner and others had filed a batch of Writ Petitions, wherein a direction was issued for the constitution of State Level Scrutiny Committee, which alone is empowered to conduct an enquiry. In the meanwhile, the Petitioner was promoted as Assistant Manager in the office of the First Respondent.
5. The Petitioner comes out with a stand that again his Community Certificate verification was taken up by the Second Respondent/State Level Scrutiny Committee and that the said Committee passed an order cancelling his Community Certificate. As a matter of fact, he approached this Court in W.P.No.23190 of 2015 and this Court, on 10.12.2015, had passed the following Order:
'4. Learned Government advocate appearing for the respondents 1 and 2, on instructions, would submit hat the first respondent, while examining the case of the petitioner, had not referred the matter to the Vigilance Cell, as required under law. Hence, the matter may be remitted back to the State Level Scrutiny Committee, to examine the case of the petitioner afresh in the light of the Government Orders as well as the judicial mandate.'
6. During the interregnum, the Petitioner attained Superannuation on 31.10.2017. In this connection, the Learned Senior Counsel for the Petitioner submits that the Petitioner had not received any notice from the Second Respondent/Committee and as such, his Certificate was not cancelled in the eye of Law. Although, he had received a relieving Order dated 24.10.2017 to the effect that he was demitting office on 31.10.2017 without any adverse remark, to his shock and surprise, the Second Respondent had passed the impugned Order dated 06.12.2017 withholding all his terminal benefits on the ground that his Community verification is yet to receive finality before the State Level Scrutiny Committee.
7. The Learned Senior Counsel for the Petitioner contends that the action of the First Respondent in withholding the Petitioner's terminal and Pension benefits, after satisfactory completion of nearly 36 years of service, is illegal, unlawful and unsustainable one. Added further, the Learned Senior Counsel for the Petitioner proceeds to point out that the First Respondent is expected to expedite the process of verification of Petitioner's Community Certificate, immediately after his appointment and as such, they are not entitled to withhold the Terminal and Pentionary benefits, after a lapse of numerous years of service, that too, at the time of Petitioner's superannuation.
8. The Learned Senior Counsel for the Petitioner projects an argument that the Impugned Order of the First Respondent/Reserve Bank of India, Chennai, dated 06.12.2017, is quite contra to the judgment of the Hon'ble Supreme Court in Madhuri Patel's case, reported in AIR 1994 SC 95, whereby and whereunder, it is observed that the Certificate has to be verified at the earliest, i.e. within a period of six months, by application to the relevant Committee, in matters relating to employment, but not at the fag end of service of an employee.
9. The Petitioner, in the Memorandum of Grounds of Writ Petition, has also raised a plea that he had not received any communication from the Second Respondent/State Level Scrutiny Committee till date and no fault can be attributed against him for not taking a final decision by the said Committee and viewed in that perspective, withholding of his terminal benefits, by the First Respondent, is an unconstitutional and illegal one.
10. The Learned Senior Counsel for the Petitioner contends that inasmuch as the Petitioner's Community Certificate is not cancelled as on date by he appropriate/competent authority, the action of the First Respondent/Reserve Bank of India, Chennai, in not disbursing Petitioner's share of Provident Fund, Gratuity, Leave Encashment and other terminal benefits, to which he is entitled to, is an illegal and unlawful one.
11. The Learned Senior Counsel for the Petitioner proceeds to point out that right to pension is a property right and that right to property is no longer a fundamental right and in this regard, places reliance on the decision of the Hon'ble Supreme Court in STATE OF JHARKAND AND OTHERS VS. JITENDRA KUMAR SRIVASTAVA AND ANOTHER, reported in [(2013) 12 SCC 210]. Apart from that, the Learned Senior Counsel for the petitioner seeks in aid of the decision of the Hon'ble Supreme Court in Dr.UMA AGARWAL VS. STATE OF UP reported in [(1999) 3 SCC 438], wherein it is held that grant of pension is not a Bounty, but a right of the Government servant and hence, the First Respondent is not justified in denying such right to the Petitioner. Besides this, the Learned Senior Counsel for the Petitioner refers to the Order dated 07.07.2015, in W.P.No.19234 of 2014, between 1.The Union of India, Ministry of Railways, rep.by the Divisional Personnel Officer, Southern Railways, Tiruchirappalli Division Tiruchirappalli vs. 1.The Central Administrative Tribunal, rep.by its Registrar and two others, wherein it is observed at Paragraph No.29 that 'the pendency of the proceedings for verification before the State Level Scrutiny Committee cannot impede the settlement of terminal benefits and pensionary benefits'.
12. The Learned Senior Counsel for the Petitioner refers to the decision of a Division Bench of this Court between Union of India, Principal Controller of Communication Accounts, Ministry of Communication and IT vs. D.Sowbagiamani and Others in W.P.No.2554 of 2015, dated 14.09.2015, wherein, it is held that inasmuch as no finality is reached in regard to the verification of Community Certificate and having attained Superannuation, the Petitioner is entitled for disbursement of terminal benefits. Hence, the Petitioner has filed the present Writ Petition.
13. Conversely, it is the submission of the Learned Counsel for the First Respondent that the petitioner was employed in the First Respondent/Reserve Bank of India, Chennai and retired as Assistant Manager, on 31.10.2017. Further it is represented on behalf of the First Respondent that the Reserve Bank Scheduled Caste Uplift Union lodged a complaint alleging among other things that the Petitioner's claim to be Scheduled Tribe candidate and securing a job in the First Respondent/Reserve Bank of India, during the year 1981, is based on a false Community Certificate. As a matter of fact, the post was reserved for 'Scheduled Tribe' persons only and the Petitioner secured the job by submitting a false Certificate, claiming himself to be a Scheduled Tribe Candidate.
14. The Learned Counsel for the First Respondent points out that the First Respondent/Reserve Bank of India, Chennai, had referred the subject matter in issue to the Social Welfare Department (SWD), Government of Tamil Nadu, for verification of the genuineness of the Petitioner's Community Certificate and during the year 1985, the Social Welfare Department (SWD), after verification, recommended for cancellation of Petitioner's Community Certificate, as the same was found to be false. Indeed the District Collector, Chengalpet, passed an order, on 25.2.1985, cancelling the Petitioner's Certificate.
15. The Learned Counsel for the First Respondent/Reserve Bank of India, Chennai, brings it to the notice of this Court that the Petitioner challenged the cancellation order passed by the District Collector, Chengalpet, in W.P.No.4018 of 1985 before this Court and this Court on 25.3.1991 disposed of the said Writ Petition by issuing a direction to the District Collector, Chengalpet, to make necessary enquiry in accordance with law and consistent with the Principles of natural justice.
16. The Learned Counsel for the First Respondent contends that the Petitioner's Community Certificate was cancelled for the second time by the District Collector, Kancheepuram, as per Order dated 26.10.1992, which was assailed by the Petitioner in W.P.No.17730 of 1992, which was disposed of by this Court on 26.7.2001, with a direction to the District Collector, Kancheepuram to conduct a fresh enquiry and since then, the First Respondent/Reserve Bank of India, Chennai, is following up with the District Collector, Kancheepuram, through several reminders.
17. The Learned Counsel for the First Respondent/Reserve Bank of India, Chennai, takes a plea that the First Respondent/Reserve Bank of India, Chennai, issued several Letters dated 13.2.2017, 23.06.2017, 28.08.2017, 7.11.2017 and 2.1.2018 to the Deputy Secretary, Adi Dravidar and Tribal Welfare Department, Government of Tamil Nadu, whereby a request was made to expedite the process/status of verification of the Petitioner's caste Certificate by the Second Respondent/State Level Scrutiny Committee. But, finality is yet to be received from the Second Respondent/Committee in respect of veracity of the Petitioner's caste Certificate. In this regard, the Learned Counsel for the First Respondent submits that the delay caused in completing the verification of the petitioner's Community Certificate by the Second Respondent/Committee is for reasons beyond the control of the First Respondent/Reserve Bank of India, Chennai and the First Respondent is not responsible in any manner for the same. Therefore, pending verification of Petitioner's Community Certificate, his retirement benefits were withheld by the First Respondent/Bank.
18. The Learned Counsel for the First Respondent seeks in aid of the decision of this Court between N.Balu vs. Chairman, State Bank of India, reported in 2014(3) LLJ 31(Mad), wherein it is observed and held as under:
'unless and until the issue relating to the Community Certificate is decided, the terminal benefits of the petitioners need not be part with by the Bank and till the issue is decided by the State Level Committee, there is no need for the Bank to release terminal benefits. The benefit should reach the Downtrodden Community, namely, Scheduled Tribe. Whether the petitioner belonging to Scheduled Tribe or not has to be decided only by the State Level Committee. Admittedly, in this case, the State Level Committee is not a party to the writ petitions.'
19. That apart, the Learned Counsel for the First Respondent refers to the Order of the Division Bench of this Court, dated 20.03.2017, in W.P.No.15666 of 2014, between S.Ulaganathan vs. State of Tamil Nadu and Others, wherein, at Paragraph Nos.52 and 53, it is observed and held as under:
'52. Apart from this, the Hon'ble Apex Court held that if a person is appointed against a reserved category on the basis of a community certificate, which is later found to have been false, such appointment to the post is void and non est in the eyes of law, that the right to salary or pension after retirement flow from a valid and legal appointment, that the consequential right of pension and monetary benefits can be given only if he appointment was valid and legal and such benefits cannot be given in a case where the appointment is found to have been obtained fraudulently and rested on false caste certificate. Therefore, it is absolutely correctness of the respondent/bank that it is not possible to disburse the withheld terminal benefits of the petitioner without first determining the correctness and validity of his initial appointment in the services of the State Bank of India, for which the outcome of the decision of the State Level Caste Scrutiny Committee on the Scheduled Tribe Community Certificate of the petitioner is awaited. Therefore, it is absolutely correct that the impugned orders of the State Bank of India, who is employer of the petitioner, which is in accordance with law, based upon the relevant considerations and absolutely justified, cannot be assailed in any respect. Therefore, this writ petition is not maintainable.
53. It is our absolute view that when the petitioner status of the community was under the consideration of the State Level Scrutiny Committee, this writ petitioner ought to have wait till the outcome of the status of the petitioner and the order of the respondent/bank for the payment of the writ petitioner's terminal benefits kept in abeyance is absolutely correct and the writ petition filed by the writ petitioner is liable to be dismissed. The impugned letter dated 08.05.2014, by the first respondent directing the petitioner to appear an enquiry and it is bounden duty of the petitioner to appear and produce all the relevant records for deciding his community status by the State Level Scrutiny Committee.'
20. The Learned Counsel for the First Respondent refers to the Order of Division Bench of this Court dated 07.07.2011, in W.P.No.23650 of 2005 (R.Komala @ Gomala @ Komila vs. 1.Senior Regional Manager, Food Corporation of India and two others, wherein, at Paragraph Nos.3 and 4 it is observed as under:-
'3. Admittedly, the petitioner has been appointed as against the vacancy earmarked for scheduled tribe candidates. In that view of the matter, the petitioner has to necessarily wait for the outcome of the enquiry into the genuineness of the certificate. On the date when the verification was sought by the respondent-employer, the competent authority was the District Level Vigilance Committee. That power has now been vested with the State Level Scrutiny Committee in view of G.O.Ms.No.108, Adi Dravidar and Tribal Welfare Department, dated 12.09.2007.
4. In view of the above, we direct the District Collector, Chennai,to immediately forward all the records to the State Level Scrutiny Committee after holding enquiry and giving opportunity to the petitioner and on receipt of the records, the State Level Scrutiny Committee shall pass final orders in a period of two months therefrom. We are constrained to observe that as the petitioner had since retired i the year 2004 itself and still he has not taken the terminal benefits only due to the pendency of verification of the community certificate, the State Level Scrutiny Committee shall strictly adhere to the time fixed by this Court.'
21. The Learned Counsel for the First Respondent banks on the Division Bench Order of this Court dated 29.09.2011, in W.P.No.17184 of 2011, between V.Balasubramanian vs. 1.The Assistant General Manager (Administration), State Bank of India, Kurunchi Complex, Coimbatore and another, wherein, at Paragraph No.16, it is observed as follows:
'16 . . . . .we direct the District Level Vigilance Committee, Coimbatore, to forward all the records pertaining to the verification of the Community Certificate of the petitioner within a period of fifteen days from the date of receipt of a copy of this order either from the petitioner or from the first respondent. On receipt of the records, the State Level Scrutiny Committee shall pass orders in a period of two months therefrom. The payment of terminal benefits to the petitioner would depend upon the order that may be passed by the State Level Scrutiny Committee. As the matter is pending from the year 2005 and the petitioner has also retired on attaining the age of superannuation the time fixed by this Court shall be strictly adhered to by the State Level Scrutiny Committee and the matter has to be considered on preference basis. No costs.'
22. The Learned Counsel for the First Respondent cites the Division Bench Order of this Court dated 03.11.2011 in W.P.No.19615 of 2008 between Vimala vs. 1.The Chief General Manager, State Bank of India, First Line Beach, Chennai, and another, wherein at Paragraph Nos.8 and 9, it is observed and held as under:
'8. Mr.Vijay Shankar learned Counsel appearing for the petitioner would fairly submit that neither the petitioner nor her children would claim the benefits of the community certificate issued in favour of her husband to seek similar certificate and in the event of receiving any such application, they would independently establish their right to get the certificate. This statement is recorded.
9. We are also informed that there is a rival claim. Therefore, extension of benefits and other entitlements if any, shall be as per the Rules and the said process shall be completed in a period of two months from the date of receipt of a copy of this order and production of the same by the petitioner.'
23. The Learned Counsel for the First Respondent cites the decision of the Hon'ble Supreme Court in Chairman and Managing Director, Food Corporation of India and Others vs. Jagdish Balaram Bahira and Others [reported in (2017) 8 Supreme Court Cases 670], wherein it is observed and held as under:
'7. Detailed guidelines were formulated in the judgment of this Court for the constitution of committees by the State Governments for scrutinizing claims of candidates to belong to a Scheduled caste or tribe or, as the case may be, to a backward community designated for reservations. The directions issued by this Court envisaged the constitution of Vigilance Cells which would conduct local enquiries to determine the authenticity of a claim to belong to a designated caste or tribe. The court, among other things, issued the following directions:
'13 (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/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.'
C. The Halba / Halbi controversy
8. The Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950 provide in relation to each State a list of Scheduled Castes and Scheduled Tribes for the purpose of constitutional reservations. In the list of Scheduled Tribes for the State of Maharashtra, Entry 19 is : Halba, Halbi
24. The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai Vs. State of Kerala4. In that case the appellant who did not belong to a designated reserved community obtained a caste certificate and was selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes. However, it was found upon a complaint that the appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the appellant the Central Administrative Tribunal directed that he should not be terminated from service without following the procedure under Article 311. The High Court reversed that decision and the appellant was dismissed from service. Before this Court the appellant inter alia sought protection since he had rendered nearly 27 years of service. Rejecting the submission this Court held that:
'15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India, As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.' (emphasis supplied)
The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court observed:
'19.. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who, seeks equity must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.'
31. The following decisions of this Court, the act of obtaining a benefit reserved for designated castes, tribes and classes by an individual who does not belong to the designated community, on the basis of a false caste claim has been held to constitute an egregious violation, even a fraud on the Constitution:
31.1. In Anjan Kumar v. Union of India, this Court held that (SCC p.265 para 14)
'14. A person not belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/bogus caste certificate and obtaining appointment/admission from the reserved quota will have far-reaching grave consequences. The meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hand of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution of India.'
31.2. In State of Maharashtra & Ors. Vs. Ravi Prakash Babulalsing Parmar & Anr11, this court observed thus:
"23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
31.3. Similar observations are contained in the judgment of this Court in Central Bank of India v. Madhulika Guruprasad Dahir (SCC p.176, para 14)
'14. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour ..'
54. The object and purpose underlying the enactment of the state legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini (supra) is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. Section 7 provides for the cancellation of a caste certificate where before or after commencement of the Act, a person who does not belong to a reserved category has obtained a false caste certificate and the Scrutiny Committee, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation under Section 7. Section 10 prescribes that a person who does not belong to a reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits while sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub-section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny Committee (invalidating a caste or tribe certificate) may fail or succeeds. If the challenge before the High Court succeeds, no question of the consequence under Section 10 arises. If the challenge fails, the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. Similarly, if the order under Section 7 is not challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression false must be construed in contra-distinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.
56. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves 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 demands 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 to 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 to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent 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 the 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 XXIII of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it.
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.
69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 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 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;
77. Chhaya Nimje obtained a caste certificate on 20 July 1991 from the Executive Magistrate, Narkhed to the effect that she belongs to the Halba Scheduled Tribe. On the basis of the caste certificate she obtained appointment as an Assistant Teacher on 24 December 1996 in Bhimrao Bapu Deshmukh Adarsh Vidyalaya. On 9 March she filled up an application in Form E together with an affidavit in Form F under Rule 11 of the Maharashtra ST (Regulation of Issuance & Verification of) Caste Certificate Rules, 2003. The Vigilance Cell submitted a report showing that her records were of the Koshti community. Before the Scrutiny Committee could decide her claim she approached the High Court in a writ petition seeking protection of service. The High Court disposed of the writ petition on 30 January 2013, on the statement of the employer that her services will not be terminated unless the caste certificate is invalidated by the Scrutiny Committee. She again filed a Writ Petition before the High Court seeking protection of her services.
78. The respondent has no right to claim protection of her services. The respondent has misused the process of law by filing successive writ petitions to pre-empt an adjudication by the Scrutiny Committee and then confining the claim only to the protection of her services.'
24. The Learned Counsel for the First Respondent refers to the Division Bench Order of this Court dated 04.07.2014, in W.P.No.21396 of 2013, between P.Ayyappan vs. The General Manager, Indian Bank, wherein, at Paragraph Nos.19 to 21, it is observed and held as follows:-
'19. We are of the considered view that the issuance of a community certificate, in favour of the applicant, based on the certificates issued in favour of his or her parents cannot be an empty formality, without proper application of mind. The issuance of community certificate, in favour of the applicant, cannot be an automatic exercise, especially, when serious doubts have been raised, either by the employer or by any other person or entity, or by the authority concerned, with regard to the genuineness or validity of the certificates issued in favour of the applicant. Such an empty exercise would be a clear infringement of the provisions enshrined in the Constitution of India relating to the principles relating to equality and social justice.
20. We are also aware of the fact that if a community certificate is issued, erroneously, it would be an infringement of the concomitant rights vested in some other person, who may claim certain privileges recognised by the Constitution of India and the other laws applicable to the creation of equal opportunity in public employments and in educational institutions and in certain other areas, where the policy of reservation is being followed. Therefore, it is important that the authorities concerned should be extremely careful in issuing a community certificate in favour of an applicant, especially, when the applicant makes a claim for granting him or her the status of a person belonging to scheduled castes and scheduled tribe communities.
21. In such view of the matter, we find it appropriate to direct the State Level Scrutiny Committee, which has been impleaded as the third respondent herein, to consider the claims made by the petitioner, for the issuance of the community certificate, stating that he belongs to `Konda Reddy' community, by following the necessary procedures and by giving an opportunity of hearing to the petitioner and to pass appropriate orders thereon, by giving an opportunity of hearing to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order. If the State Level Scrutiny Committee, the third respondent herein finds that the claim of the petitioner that he belongs to Konda Reddy Scheduled Tribe community and the certificate already issued in his favour is genuine and valid, the respondent bank shall disburse the retiral benefits due to the petitioner within a period of four weeks thereafter.'
25. Yet another Division Bench order of this Court dated 04.07.2014 in W.P.No.19006 of 2013, between R.Sundaram vs. The General Manager Indian Bank, is cited on behalf of the First Respondent, wherein, at Paragraph Nos.19 to 21, it is observed as follows:
'19. We are also aware of the fact that if a community certificate is issued, erroneously, it would be an infringement of the concomitant rights vested in some other person, who may claim certain privileges recognised by the Constitution of India and the other laws applicable to the creation of equal opportunity in public employments and in educational institutions and in certain other areas, where the policy of reservation is being followed. Therefore, it is important that the authorities concerned should be extremely careful in issuing a community certificate in favour of an applicant, especially, when the applicant makes a claim for granting him or her the status of a person belonging to scheduled castes and scheduled tribe communities.
20. In such view of the matter, we find it appropriate to direct the State Level Scrutiny Committee, which has been impleaded as the third respondent herein, to consider the claims made by the petitioner, for the issuance of the community certificate, stating that he belongs to `Konda Reddy' community, by following the necessary procedures and by giving an opportunity of hearing to the petitioner and to pass appropriate orders thereon, by giving an opportunity of hearing to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order. If the State Level Scrutiny Committee, the third respondent herein finds that the claim of the petitioner that he belongs to Konda Reddy Scheduled Tribe community and the certificate already issued in his favour is genuine and valid, the respondent bank shall disburse the retiral benefits due to the petitioner within a period of four weeks thereafter.
21. It is made clear that the second respondent Bank duty bound to pay the retiral benefits due to the petitioner till the State Level Scrutiny Committee passes an order, as directed by this court. However, if the third respondent, the State Level Scrutiny Committee, finds that the community certificate, which had already been issued in favour of the petitioner, is not genuine or valid, or that the said certificate had been obtained by misrepresentation or fraud, there would be no obligation on the part of the respondent bank to disburse the retiral benefits, in accordance with the direction issued by this court, as the petitioner would not be entitled to any payment, in respect of the terminal benefits, as held by the Supreme Court, in R.Vishwanatha Pillai Vs. State of Kerala, 2004 AIR SCW 419. In such a case, it is made clear that, it would be open to the petitioner to work out his remedies, if any, before the appropriate forum or authority, in the manner known to law. The writ petition is ordered accordingly. No costs.'
26. The Learned Counsel for the First Respondent cites the decision of the Bombay High Court (Nagpur Bench), dated 13.04.2018 between All Indian Adivasi Employees Federation and Others vs. The Reserve Bank of India and Others (W.P.No.1562 of 2004, Manu/MH/0696/2018), wherein it is observed as follows:
'59. Food Corporation of India v. Jagdish Balaram Bahira, (supra) [(2017 (8) SCC 670, at Special Page 139], in paragraph 69.6 observes-
"69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste 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;"
We have reproduced following portion already but are constrained to quote it again in this context. In paragraph 55, during discussion, Hon'ble Court observes-
"The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved."
60. Thus, the Respondents before us are the persons who have consciously avoided "verification" and therefore there is no finality to their caste certificate and caste claim. There caste certificate therefore is deemed to be canceled and benefits released to them i.e undue treatment as reserved employees from day one are liable to be withdrawn as fraudulent. Grant of employment to them being itself found to be a fraud, it can not be perpetrated or allowed to be accomplished by permitting them to continue even as open category employees. Treating them or counting them in open category may itself seen as adding or furthering their dishonest intention entertained on the date of staking claim as reserved candidate. Portion in bold letters emphasized supra from paragraph 56 of Food Corporation of India v. Jagdish Balaram Bahira,(supra) militates with the defence of the Respondents before us. It is definitely a fraud on the Nation, the Constitution and also on open category candidates whose prospects Judgment wp1562.04 of getting a post are diminished. Other open employees like Petitioners before us therefore can make a grievance and seek their ouster. Their grievance is not a simple cause of action arising in an ordinary service matter. They are pointing out to this Court a design by which wrongdoers are cheating and continue to enjoy the fruits of their wrong. Objections to locus of open category Petitioners or to tenability of present writ petitions are therefore misconceived. This elaboration is necessary to show manifest fallacy in objections like Petitioners are not prejudiced because of promotion given to protected employees who become senior to Petitioners because of date 28.11.2000 assigned to them, that the protected employees performed better in departmental examinations or then Petitioners failed in it and hence Petitioners are not aggrieved. Very fact that there can not be in law, an occasion to compare such "protected" with the Petitioners is sufficient to put at rest all these frivolous contentions. If posts, promotional or otherwise, are not filled as Petitioners do not qualify, the vacancies need to be subjected to fresh process, thereby bettering the chances of open Petitioners. In this view of matter, it is not necessary to look into individual details of the promotions etc. of the respective rival claimants. The contention or justification of the employer Food Corporation of India that it initially did place such protected employees in a distinct cadre and it is because of the directions issued by this Court that they were amalgamated in the "open" cadre and treated accordingly also therefore does not hold any water in these petitions.
63. We direct Respondents 1 to 3 in Writ Petition No. 1562 of 2004 to initiate necessary steps within next two months to discontinue and terminate the "void" recruitment of all those on its roll who have given up their castes and Judgment wp1562.04 continuing in service on the basis of "protection".
65. The Food Corporation of India or the Reserve Bank Of India shall forthwith discontinue and not release any payments or dues to the Respondent employees before this Court who have given up their castes and were/are still continued by them.
66. The Food Corporation Of India or the Reserve Bank Of India shall also initiate necessary steps within next two months to recover payments or dues released, from to the Respondent employees before this Court who have given up caste claim.
27. In pith and substance, the stand of the First Respondent/Reserve Bank of India, Chennai, is that in the instant case when the Petitioner's Community Certificate is under verification and scrutiny by the Second Respondent/State Level Scrutiny Committee and until the genuineness of the Certificate is finalised, the Petitioner is not entitled to claim his terminal benefits.
28. At this juncture , the Learned Additional Government Pleader for the Second Respondent submits that the Secretary of the Second Respondent Committee had addressed a Letter in No.13324/CV-4(1)/2015-3, dated 18.3.2016, to the Director, Tribal Welfare, Chennai-600 005 and The Deputy Superintendent of Police, SC/ST Vigilance Cell, Chennai Region, Collectorate, Chennai, (with a copy being marked to the Petitioner), wherein, the Director of Tribal Welfare, Chennai, was requested to issue show cause notice to the Petitioner, if he finds the claim for social status to be 'not genuine' or 'doubtful' or 'spurious' or falsely or wrongly claimed.
29. A reminder Letter in D.O.Letter No.13324/CV-4(1)/2015, dated 19.06.2018 was issued to the Director, Tribal Welfare, Chennai (with a copy being marked to The Deputy Superintendent of Police, SJ & HR Wing, District Police Office, Kancheepuram District, and The Deputy Superintendent of Police, SC/ST Vigilance Cell, Collectorate, Chennai-600 001), whereby and whereunder a request was made to obtain the Vigilance Cell Report from the Deputy Superintendent of Police, SJ & HR Wing, Kancheepuram District and arrange to send the same to Government immediately.
30. In the D.O. Letter aforestated, dated 19.06.2018, addressed to the Director Tribal Welfare, Chennai, the Secretary of the Second Respondent had clearly stated that . . . . . even after a lapse of more than 2 years, no reply/reports have been received so far. Therefore, the State Level Scrutiny Committee is not in a position to verify the genuineness of the above Community Certificate.'
31. At this stage, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Kumari Madhuri Patil and Another vs. Addl.Commissioner, Tribal Developmente and Others (1994) 6 Supreme Court Cases 241, at Special pages 255 and 256, wherein at Paragraph Nos.(5) to (9), it is observed as follows:
'13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
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 Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has 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 from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he
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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 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 etc. 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 representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case 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. After 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 order 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 fraudulently 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 to 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 period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false 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.' 32. It is to be remembered that an issuance of Community Certificate to and in favour of the Petitioner cannot either be a matter of routine or an automatic exercise when some cloud is cast on the Certificate issued in favour of the Petitioner. It is needless for this Court to make a pertinent mention that if a Community Certificate in favour of a person is issued on a wrong premise and in an incorrect manner, then it will be a negation of the right vested in some other individual, who is entitled to claim such Privileges/Benefits, under the Constitution of India and other Laws quite applicable thereto, pertaining to the aspect of providing an equal opportunity in Public Employment and in Educational Institutions and in areas where the 'Policy of Reservation' is pressed into service. Hence, it is of primordial importance that the 'Concerned Authority' is to act with utmost care, caution and circumspection while issuing a 'Community Certificate' in favour of the concerned person, considering the fact that the said person stakes a claim for issuance of Community Certificate to the effect that he belongs to SC and ST Community. 33. In view of the aforestated discussions and considering the surrounding facts and circumstances of the present case, this Court deems it fit and proper in directing the Second Respondent/State Level Scrutiny Committee, to verify the Community Certificate of the Petitioner, by scrupulously adhering to the necessary procedures and formalities also by providing an 'opportunity of Hearing' to the Petitioner and to pass appropriate reasoned speaking orders, within a period of eight weeks from the date of receipt of copy of this Order. Within the time adumbrated by this Court, the Deputy Superintendent of Police, Social Justice and Human Rights Wing, District Police Office, Kancheepuram District, is directed to conduct an 'Enquiry' and to submit his complete and comprehensive Report to the Second Respondent/Chairman of State Level Scrutiny Committee, who in turn, after receipt of the said Report, shall pass necessary orders. Before parting with the case, this Court directs the Petitioner to take part in the enquiry proceedings before the authority concerned and he is to extend his unstinted co-operation and assistance in an effective and efficacious manner, so as to enable the authorities to do the needful in the subject matter in issue. With the above Observations/Directions, the Writ Petition stands disposed of. There is no order as to costs.