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The Hindustan Aeronautics Limited, Represented by its Chairman v/s Hemavathy & Others

    Writ Appeal Nos. 3666, 3483 of 2016 (S-DIS)

    Decided On, 03 July 2019

    At, High Court of Karnataka


    For the Appellant: Pradeep S. Sawkar, Advoctae. For the Respondents: R1, K.V. Dhananjay, R2 to R4, C. Jagadish, Spl. Govt. Advocate.

Judgment Text

(Prayer: This Writ Appeal filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the writ petition 29850/2014 dated 06/09/2016 and etc.,

This Writ appeal filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the writ petition 6383/2014 dated 18/08/2016 and etc.,)

Devdas, J.

Common Judgment

1. The first respondent herein had preferred two writ petitions, in W.P.No.6383/2014, she had questioned the order of the District Caste Verification Committee and the Appellate Authority, while in W.P.No.29850/2014, the first respondent had questioned the order of dismissal passed by the appellant-employer. Since the orders passed in both the writ petitions arise out of the caste claim made by the first respondent, both the writ appeals are heard and disposed of by this common judgment.

2. The first respondent, in response to an advertisement made by the appellant-Company, made an application seeking appointment as Engineer (Grade- II) in a single vacant post which was reserved for Scheduled Tribe category. The first respondent furnished a caste certificate dated 14.01.1991 certifying that she belonged to 'Jenu Kuruba' community which falls under the Scheduled Tribe category.

3. It appears that the first respondent was visited with a notice dated 05.10.2005 issued by the Social Welfare Office, Mandya District, calling upon her to appear in person and produce documents pertaining to her caste status for verification, which had been submitted by her at the time of joining service. After enquiry the District Caste Verification Committee, by order dated 11.11.2009 held that the first respondent does not belong to 'Jenu Kuruba' community but she belongs to 'Kuruba Gowda' community which is not a Scheduled Tribe category. The appellant-Company, having received the order of caste verification, issued a notice to the first respondent to show cause within ten days as to why she should not be dismissed from service. On considering the reply given by the first respondent, the appellant-Company, on holding that the first respondent had submitted a false caste certificate, proceeded to dismiss the first respondent from service, by order dated 14.01.2014. Aggrieved by the order of dismissal, the first respondent preferred an appeal before the Appellate Authority, Scheduled Tribes Welfare, challenging the order dated 11.11.2009 passed by the third respondent-District Caste Verification Committee. In the meanwhile, the first respondent also made an appeal before the Chairman and Appellate Authority of the appellant-Company and the appeal came to be rejected on 04.03.2014. The first respondent filed two writ petitions, challenging the orders of the Caste Verification Committee and the Appellate Authority thereto and the other writ petition was with respect to the order of dismissal and order of the Appellate Authority. Both the writ petitions being allowed by separate orders, the appellant-Company is before this Court assailing the orders passed by the learned Single Judges.

4. Learned Counsel for the appellant submits that a larger Bench of three Judges of the Hon'ble Apex Court, in the case of Chairman and Managing Director, FCI and Ors. Vs. Jagdish Balaram Bahira and Others reported in AIR 2017 SC 3271 has considered all the earlier judgments of the Apex Court in matters of securing appointments on the basis of false caste certificate and the consequences thereto. The learned Counsel for the appellant would further submit that the decisions of the Apex Court in the case of State of Maharashtra Vs. Milind and Others reported in AIR 2001 SC 393, Geeta Vs. State of Madhya Pradesh & Ors. reported in AIR 2007 SCW 3892, Ritesh Tewari and Another Vs. State of Uttar Pradesh and Others reported in (2010) 10 SCC 677, Punjab National Bank and Another Vs. Vilas S/o Govindrao Bokade and Another reported in (2008) 14 SCC 545, Shalini Gajananrao Dalal Vs. New English High School Assocation and Others reported in (2013) 16 SCC 526, Bank of India Vs. Avinash D. Mandivikar reported in (2005) 7 SCC 690, and all other decisions have been considered in Chairman and Managing Director, FCI (supra). The learned Counsel would further submit that the basis of the contention put forth by the first respondent having regard to the Circular dated 11.03.2002, issued by the State Government has been considered by the Hon'ble Apex Court, although with respect to Government Orders/Circulars issued by other State Governments and Government of India and the Hon'ble Apex Court has categorically held that no Government resolution or Circular can override constitutional or statutory norms. In the light of the latest decision of the Hon'ble Apex Court, it is contended by the learned Counsel for the appellant that the writ petition filed by the first respondent deserves to be dismissed, while setting aside the order passed by the learned Single Judge.

5. Per contra, the learned Counsel for the first respondent would submit that the school records of the first respondent evidence the fact that she belongs to 'Jenu Kuruba' community which is a Scheduled Tribe category. It is vehemently submitted that the first respondent believes that she belongs to 'Jenu Kuruba' community and her family and forefathers belong to the said community. In other words, it is submitted that the first respondent has not acted with malicious intent and she could not be accused of making a false claim. She genuinely believes the information given by her parents to be true and therefore there is no element of mens rea to hold the first respondent guilty of falsehood or criminal intent.

6. As an alternative submission, the learned Counsel for the first respondent would submit that the State Government had issued a Circular No.SWD 713 SAD 93 dated 11.03.2002 affording a one-time amnesty to all such persons who had secured caste certificates that they belonged to 'Jenu kuruba' community or 'Nayaka' community which were categorised as Scheduled Tribe under the Presidential Orders. It is submitted that the preamble to the Circular dated 11.03.2002 would clearly indicate that there was confusion prevailing in the society with respect to certain category of communities like 'Kadu Kuruba', 'Jenu Kuruba' etc. It was admitted by the State Government that because of the prevailing confusion, persons who belonged to 'Kuruba' community and 'Kadu Kuruba' community had secured caste certificates of Scheduled Tribes. Therefore, as a one- time amnesty, the State Government announced the amnesty and called upon all such persons to surrender their caste certificates and the authorities were directed not to terminate the services of such persons on the ground of submission of false caste certificates. Further, the Circular would provide that no criminal proceedings shall continue against such persons. In the light of the said Circular, the learned Counsel would submit that since benefit was given to several such persons, the same benefit should have been given to the first respondent also. In this regard, the learned Counsel would submit that the appellant-Company had given such a benefit to one of the employees, while the same was denied to the first respondent herein.

7. On the other hand, Sri C.Jagadish, learned Special Government Advocate appearing for the second respondent-District Caste Verification Committee submits that the State Government issued a Circular dated 14.06.2011 clarifying that the benefit of the Circular dated 11.03.2002 cannot be extended to Central Government employees. It was therefore submitted that the first respondent could not havesought for the benefit under the Circular dated 11.03.2002.

8. We have heard the learned Counsels for the appellant, respondent No.1 and the Special Government Advocate. We have perused the writ papers and the decisions cited by the learned Counsels.

9. One of us, sitting single, in a batch of matters in the case of Smt.H.R.Sumangala and Others Vs. the Addl. Director General of Police, Directorate of Civil Rights Enforcement and Others, reported in ILR 2019 KAR 1708 had the occasion to consider similar issues. The decision has been upheld by a co-ordinate Division Bench in W.A.No.319/2019 c/w W.A.Nos.189- 193/2019.

10. The contention such as benefits flowing from the Circulars issued by the State Government as a one- time measure cannot be revisited; the subsequent Circular dated 14.06.2011 issued by the State Government clarifying the position regarding Central Government employees; it is not a case ofmisrepresentation or playing fraud to obtain the caste certificate and therefore, protection of saving the appointment etc., have been considered in the said decision.

11. It is pertinent to reiterate that two Division Benches of this Court in the case of Paduthota Ramachandra Vs. Union of India reported in ILR 1995 KAR 2712 and The General Manager, The New India Assurance Company Ltd. and Others Vs. Sri Prakash Keshav Ganguli and Others, in W.A.No.2828/2011 which was decided on 13.05.2014 had categorically held that the Government orders/Circulars passed by the State Government could be simply ignored as the State Government had neither the authority nor the competence to amend or alter the Presidential orders.

12. Similar contention as is raised in this Writ Appeal was raised before Their Lordships in the case of Chairman and Managing Director FCI (supra). It would be beneficial to extract paragraph-4 of the judgment, which would succinctly capture the crux of the dispute. Paragraph-4 reads as follows:

4. The batch of cases with which the court is confronted involves individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been found to be invalid. Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe of backward community, the intervention of the Court is invoked in the exercise of the power of judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of being protected either by the High Court (in the exercise of its jurisdiction under Article

226) or by this Court (when it discharges the constitutional function of doing complete justice under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation in spite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended.

13. The Hon'ble Apex Court has painstakingly dissected all the previous judgments on the issue, starting from Kumari Madhuri Patil's case (supra) to Nidhi Kaim's case (supra). It was contended before the Apex Court that mere invalidation of the caste claim by the scrutiny committee would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments which have become final prior to the decision of the Apex Court in State of Maharashtra Vs. Milind and Others reported in AIR 2001 SC 393. Protection was sought on similar grounds that Government circulars, orders and resolutions had granted one time amnesty, while punitive action could be taken only in cases where false caste certificates were obtained subsequent to the respective State enactments.

14. So far as the protection sought under Government orders is concerned, the same has been authoritatively negated by the Apex Court. In the case of Chairman and Managing Director, FCI (supra), at paragraph No.53, it is held as under:

53. Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No Government resolution or circular can override constitutional or statutory norms. The principle that Government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, Government circulars or resolutions cannot operate to their detriment.

15. Finally, when the intervention of the Apex Court was invoked in exercise of the power of judicial review, under Article 142 of the Constitution, it was held at paragraph-54 as under:

"54. ......When a candidate is found to have put forth a false claim of belonging to a designated case, tribe or class for whom a benefit is reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. The credibility not merely of the legal system but also of the judicial process will be eroded if such claims are protected in exercise of the constitutional power conferred by Article 142despite the state law."

16. However, in the case of Jagdish Balaram Bahira, at paragraph-58 (individual case No.1) in Chairman and Managing Director, FCI (supra), the Hon'ble Supreme Court having noticed that the respondent had retired from service and had even been paid terminal dues, and in the peculiar facts, declined to order recovery from the respondent. In conclusion the Hon'ble Supreme Court held that the directions which were issued by the constitution Bench of the Supreme Court in para-38 of the decision in Milind (AIR 2001 SC 393)

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were in pursuance of the powers vested in the Supreme Court under Article 142 of the Constitution. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual who belong to a reserved caste or tribe or class is yet to be verified by the Scrutiny Committee. 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. Mens rea is an ingredient of the penal provisions contained in the respective legislations of the State. Such penal provisions would apply in those situations where the act constituting the offence has taken place after the date of its enforcement. 17. In the present case, the District Caste Verification Committee has held that the first respondent belongs to 'Kuruba Gowda' community. It is also seen in the order of the Caste Verification Committee that the first respondent's father Sri M.Jayaram surrendered his caste certificate and also that of his children on 23.05.2008 to the Mandya Tahsildar to secure the benefit of the Circular dated 11.03.2002. That being the admitted position, the first respondent cannot be allowed to continue in service, in the light of the decision of the Hon'ble Supreme Court in the case of Chairman and Managing Director, FCI (supra). 18. For the reasons stated above, the writ appeals are allowed and the impugned orders dated 06.09.2016 and 18.08.2016 passed by the learned Single Judges in W.P.No.29850/2014 and W.P.No.6383/2014 respectively are set aside.