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2018 DIGILAW 1093 (PAT)

Moti Vishwakarma v. Union of India

2018-07-16

JYOTI SARAN

body2018
JUDGMENT : Jyoti Saran, J. The petitioner prays for quashing of the order dated 09.06.2000 passed by the Deputy Inspector General, C.R.P.F. Patna whereby the services of the petitioner have been terminated. A copy of the order is impugned at Annexure-4. The petitioner is also aggrieved by the order dated 26.03.2001 issued by the office of the Director General, C.R.P.F., C.G.O. Complex, Lodhi Road, New Delhi whereby the appeal filed by the petitioner has been rejected. A consequential relief has been made for reinstatement with consequential benefits. 2. Facts as it transpires from the pleadings in the writ petition is that the petitioner is a "Lohar" by caste and applied for the post of A.S.I. (Ministerial) with the Central Reserve Police Force (hereinafter referred to as the "C.R.P.F") as a Scheduled Tribe candidate, on the basis of the caste certificate issued from the office of the Circle Officer dated 24.11.1995, a copy of which is enclosed at Annexure-2. The petitioner was appointed as ASI (Ministerial) through appointment order dated 23.12.1996, enclosed at Annexure-1. The stipulation present at paragraph 2(ix) does confirm that the respondents aware of the pending dispute regarding the status of "Lohars" as a Scheduled Tribe community in the Supreme Court, made the appointment conditional, subject to the outcome of the proceedings with specific stipulation that in case the decision goes otherwise, the service would be terminated. 3. I am persuaded to reproduce paragraph 2(ix) of the appointment letter for ready reference. "(ix) You appeared and qualified in the recruitment test/examination for appointment against post of ASI (M) in CRPF which was purely reserved for ST candidates. As no proper caste certificate as produced by you at the time of recruitment, the matter was got verified from concerned authorities. As a result of verification it has been found that being a resident of Bihar State you are belonging to Lohar Caste and the facilities of Scheduled Tribe category have been extended to Lohar Caste by Bihar Govt. authority provisionally in the light of decision of Patna High Court, subject to finalization of SLP by the Supreme Court of India filed by Bihar State Govt. against the said decision of Patna High Court. Hence this offer of Appointment is subject to finalization of SLP and declaration of Lohar Caste of Bihar State as schedule tribe. authority provisionally in the light of decision of Patna High Court, subject to finalization of SLP by the Supreme Court of India filed by Bihar State Govt. against the said decision of Patna High Court. Hence this offer of Appointment is subject to finalization of SLP and declaration of Lohar Caste of Bihar State as schedule tribe. In case the decision will not be in favour then your services would be liable to be terminated." 4. The issue whether "Lohars" in the State of Bihar would come under the Scheduled Tribe category came up for consideration in the case of Nityanand Sharma versus State of Bihar, (1996) 3 SCC 576 . The Supreme Court in consideration of Articles 341, 342 and 348 of the Constitution of India as well the Constitution (Scheduled Castes and Scheduled Tribes) Order, 1950 together with the Constitution (Scheduled Castes and Scheduled Tribes) Orders (Amendment) Act, 1976, while observing that the Court could not give any declaration that "Lohars" are equivalent to "Loharas" or "Lohra", held that they come under the Backward Class and not under the Scheduled Tribe category. 5. It is following the judgment of the Supreme Court settling the issue that the services of the petitioner was terminated under the orders of I.G. C.R.P.F. in exercise of power vested under Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965. A copy of the order of termination is impugned at Annexure-4. Feeling aggrieved the petitioner moved this court in C.W.J.C. No. 5725 of 2000 and which was dismissed by a Coordinate bench vide order passed on 15.02.2002 enclosed at Annexure-6. While dismissing the writ petition the learned Single Judge noted the submissions of the counsel that a matter was yet pending before the Supreme Court filed by the Lohara Kalyan Samity, Bihar in Writ Petition (Civil) No. 488 of 2000. It is taking note of the submissions and while holding that there was no scope for interference with the termination order, a liberty was given to the petitioner to seek his remedy in case any decision of the Supreme Court gives him a cause of action. A copy of the judgment and order passed in C.W.J.C. No. 5725 of 2000 is enclosed at Annexure-6. The judgment and order of the writ court dismissing the writ petition of the petitioner was never appealed against before a superior forum and has attained finality. 6. A copy of the judgment and order passed in C.W.J.C. No. 5725 of 2000 is enclosed at Annexure-6. The judgment and order of the writ court dismissing the writ petition of the petitioner was never appealed against before a superior forum and has attained finality. 6. It is after a lapse of 16 years that the petitioner returns to question the same very order of termination dated 09.06.2000 as affirmed by the appellate authority which was not interfered with by this Court while dismissing the writ petition of the petitioner at Annexure-6. 7. Understandably, a preliminary objection has been raised by Mr. Satyabrat Verma, learned Central Government counsel on the maintainability of the writ petition as according to him there is no change in circumstance in between the dismissal of the writ petition on 15.02.2002 by a coordinate bench in refusing to interfere with the termination order and today. According to learned counsel the only liberty given by the learned single Judge of this Court to the petitioner rested in the eventuality of the favourable decision by the Supreme Court on the caste status of "Lohars" which is not forthcoming. He submits that the position as regarding the caste status of "Lohars" settled in the judgment and order of the Supreme Court rendered in the case of Nityanand Sharma has been reiterated in a subsequent judgment of the Supreme Court (Prabhat Kumar Sharma versus U.P.S.C. & Ors., (2006) 10 SCC 587 ). According to Mr. Verma since no other liberty was given to the petitioner except in case of a favourable decision, there being no change in circumstance, the writ petition is not maintainable. 8. Mr. Shahi while not disputing the factual position existing in the matter and while admitting that the learned Single Judge while dismissing the writ petition of the petitioner had given a liberty to move again in case any judgments of the Supreme Court comes to his rescue and though the judgments referred to by Mr. Verma holds that the "Lohars" would fall in the Backward Class category and not Scheduled Tribe category but according to Mr. Shahi, the circumstances have changed since after the passing of the judgments of the Supreme Court which gives a cause of action to the petitioner to maintain this writ petition. 9. Verma holds that the "Lohars" would fall in the Backward Class category and not Scheduled Tribe category but according to Mr. Shahi, the circumstances have changed since after the passing of the judgments of the Supreme Court which gives a cause of action to the petitioner to maintain this writ petition. 9. Learned counsel in support of his arguments that the objection as to the maintainability of the writ petition raised by Mr. Verma does not hold substance, has relied upon the Hindi text of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, (hereinafter referred to as the "1976 Amendment Act") published in the Gazette of India (Extraordinary) dated 1.10.1979. A copy of the notification is enclosed at Annexure-10 to the writ petition. In reference to the second schedule attached to the "1976 Amendment Act" with particular reference to the caste coming under the Scheduled Tribe category in so far as the State of Bihar is concerned, he submits that Item No.22 confirms that "Lohar" and "Lohra" were put under the Scheduled Tribe category. He submits that these entries after its publication in the gazette are unassailable under Section 8(2) of the Amendment Act. He next refers to the Gazette of India (Extraordinary) dated 29.11.1979 at Annexure 10/A to submit that Hindi text so published vide Annexure 10 was held authoritative. 10. In reference to another amendment at Annexure- 15 dated 13.12.2006, he submits that it is in view of the position settled by the Supreme Court in the case of Nityanand Sharma that Item 22 of the Constitution of India (Scheduled Tribe) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 was substituted to include the caste "Lohara" and Lohra and renumbered as Item No. 21. According to Mr. Shahi even if by virtue of this amendment, the "Lohar" caste got relegated to the category of Backward Class but vide the Repealing and Amending Act, 2016 (Act No. 23 of 2016), a number of enactments were repealed including the Constitution (Scheduled Tribes) Order (Amendment) Act, 2006 (hereinafter referred to as "the Amendment Act, 2006") as manifest from running page 93 of the proceedings. 11. According to Mr. 11. According to Mr. Shahi by the repeal of "the Amendment Act, 2006", the status of the Lohars got restored to the same position as it existed under the "1976 Amendment Act" at Annexure-10 which in its second Schedule at Item No. 22 includes "Lohars". He submits that the State of Bihar having recognized this position has vide order dated 8.8.2016 of the General Administration Department published in the Bihar Gazette Extraordinary dated 23.08.2016 granted approval for issuance of Scheduled Tribe Caste certificate to those belonging to the "Lohar" castes. He submits by a subsequent letter dated 05.09.2016, directions were issued by the General Administration for removing the "Lohar" caste from the list of Extremely Backward Class and following which a certificate has been issued to the petitioner belonging to Scheduled Tribe category on 24.09.2016. The Gazette dated 23.08.2016 together with the letter dated 5.9.2016 of the General Administration Department and the caste certificate are enclosed at Annexures-17, 18 and 19 respectively to the writ petition. 12. It is the argument of Mr. Shahi that in view of these changed circumstances whereby the State of Bihar has accepted the "Lohar" caste coming under the Scheduled Tribe, whatsoever be the confusion prevailing, stands removed and the termination order needs to be considered in the background of such development. 13. The argument of Mr. Prabhat Kumar Verma, learned AAG 3, to contest the submissions of Mr. Shahi, supports the argument advanced by Mr. Verma. As regarding the decision taken by the State of Bihar to give Scheduled Tribe status to "Lohar", he submits that this does not operate retrospectively. 14. I have heard learned counsel for the parties and I have perused the records. 15. Though rather exhaustive arguments have been advanced by Mr. Shahi in support of the case of the petitioner but the issue lies in a very narrow compass in view of the earlier round of proceedings which has attained finality. 16. I have consciously reproduced the relevant extract of the appointment order at Annexure-1 which makes it known to the petitioner that since there was a confusion as regarding the caste status of "Lohar" as a Scheduled Tribe, his appointment as a Scheduled Tribe candidate would be governed by the outcome of the decision by the Supreme Court in the matter and in case of an unfavourable decision, his services was liable to be terminated. 17. 17. The judgment in the case of Nityanand Sharma came in the year 1996 and it is soon thereafter that the petitioner was removed from service on 09.06.2000 in exercise of power vested under Central Civil Services (Temporary) Service Rules, 1965 (hereinafter referred to as the "Temporary Service Rules" vide Annexure 4. In my opinion in view of the stipulation present in the appointment order coupled with the nature of order of termination passed under the "Temporary Service Rules", the termination was not open to challenge. 18. Be that as it may, the challenge was examined by a coordinate bench of this Court and taking note of the stipulations present in the appointment order as well the judgment of the Supreme Court in the case of Nityanand Sharma that the coordinate bench did refuse to interfere with the termination order. This order was never appealed against. 19. Even when the Hindi text of the "Amendment Act 1976" has been a subject matter of discussion in each of the two cases referred to above, yet heavy reliance has been placed by Mr. Shahi on the Hindi text of the "1976 Amendment Act", to canvass that the authoritative mandate of the text as manifest from Annexure-10A, perhaps escaped the notice of the Supreme Court while passing the judgments. According to Mr. Shahi, though following the judgment of the Supreme Court, an amendment was made in the year 2006, vide "Amendment Act, 2006" at Annexure 15 to clarify the caste status at item No.22 of the "1976 Amendment Act", and for its substitution as "Lohara and Lohra", this substitution was wiped out by the "Amendment Act, 2016" and thus the position of "Lohars" as a Scheduled Tribe was restored in terms of "1976 Amendment Act". According to Mr. Shahi, the Gazette of India (Extraordinary) dated 29.11.1979 at Annexure 10A confirms the Hindi text as authoritative and was never brought to the notice of the Supreme Court. 20. In my opinion it is to late in the day for Mr. Shahi to canvass these issues because the Supreme Court having decided the issue of caste status of "Lohars" in the case of Nityanand Sharma , even the plea made for reconsideration of the said judgment by a larger bench, in the case of Prabhat Kumar Sharma and when all issues as raised by Mr. Shahi to canvass these issues because the Supreme Court having decided the issue of caste status of "Lohars" in the case of Nityanand Sharma , even the plea made for reconsideration of the said judgment by a larger bench, in the case of Prabhat Kumar Sharma and when all issues as raised by Mr. Shahi including the correctness of the Hindi text came up for consideration, the Supreme Court noticing each and every aspect of the challenge including the correctness of the Hindi text, has not been persuaded for a change in opinion rather has confirmed the legal position settled in the case of Nityanand Sharma to dismiss the case. 21. In view of the position so settled in the judgments of the Supreme Court rendered in the case of Nityanand Sharma and Prabhat Kumar Sharma, the reliance by Mr. Shahi to the "1976 Amendment Act" on its authoritativeness cannot be upheld and has to succumb in view of the opinion of the Supreme Court. In view of the position so noted, the second round challenge by the petitioner to the termination order has no legs to stand because the only liberty granted by the coordinate bench in the previous round of litigation, the decision of which is enclosed at Annexure-6 is, in case of a subsequent judgment coming in favour of the petitioner which situation never has arisen rather the adversity faced, has become conclusive. 22. In the circumstances so noted it is to be seen whether the argument of Mr. Shahi relying upon the Repealing and Amending Act, 2016 at Annexure 16 whereby the "Amendment Act, 2006" at Annexure 15 has been repealed and following which the State has recognized "Lohar" as a Scheduled Tribe community vide Annexure 17 and 18, gives any help to the petitioner to challenge the termination order on this ground. The document on record at Annexure 22 does confirm that this change in situation was taken note of by the Deputy Inspector General, Administration on the representation filed by the petitioner at Annexure 20 but having noted thus, vide communication dated 22.05.2017 and 23.05.2017 at Annexure 21 & 22 respectively, the petitioner was informed that since on the date of appointment the "Lohar" caste did not come under the Schedule Tribe category, rather came under the Other Backward category, the petitioner cannot derive benefit of the subsequent developments. 23. 23. I find no infirmity in the opinion expressed by the Deputy Inspector General, C.R.P.F. present at Annexures-21 and 22 for a plain look of the advisory issued by the General Administration Department dated 23.08.2016 at Annexure 17 would confirm that even if the State of Bihar has chosen to bring "Lohar" caste within Schedule Tribe category it is with prospective effect and the amendment has not been applied retrospectively. In my opinion, had the amendments been made retrospective perhaps the petitioner had a cause of action because the basis for upholding the termination order by the coordinate bench in the previous round of litigation would have been removed but such is not the case here and since the benefit to the "Lohar" caste community as a Scheduled Tribe community if any, is being given with effect from 02.01.2016 as reflecting from Annexure 17, it cannot be applied retrospectively. 24. In my opinion thus, neither in the nature of liberty granted by the coordinate bench while dismissing the writ petition, is the issue raised by the petitioner sustainable nor the intendment shown by the State of Bihar in its advisory at Annexure 17 provides any relief to the petitioner. The records as it stands, "Lohar" was not treated as a Scheduled Tribe on the date the petitioner was appointed and in which circumstances the order impugned requires no interference, The writ petition is dismissed.