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2018 DIGILAW 113 (ORI)

Madhumita Das v. Collector, Khurda

2018-01-25

BISWANATH RATH

body2018
JUDGMENT : BISWANATH RATH, J. 1. W.P. (C) No. 9664 of 2012 has been filed by the petitioner challenging the impugned orders passed by the opposite party no. 1 therein vide Annexure-11 and opposite party no. 3 vide Annexure-7 seeking further declaration that the proceeding initiated against the petitioner vide Annexure-8 and the dismissal order of the petitioner vide Annexure-12 based on the Tahasildar’s order vide Annexure-7 as illegal and void. 2. Similarly, W.P. (C) No. 16433 of 2015 is filed by the very same petitioner to quash the subsequent proceeding initiated against the petitioner involving an allegation on her caste status by the opposite party no. 2 and in the alternative if the proceeding found to be maintainable, the opposite party no. 2 be directed to allow the petitioner represented/ assisted by a lawyer of her choice by allowing her application vide Annexure-10. 3. Short background involved in the case is that on the application of the petitioner for grant of a caste certificate to the then Tahasildar, Bhubaneswar, the Tahasildar initiating a proceeding under the Miscellaneous Certificate Rules bearing Misc. Case No. 7 of 1996 after conducting due enquiry and involving a report of the R.I. issued a caste certificate in favour of the petitioner recording her caste as Scheduled Caste and sub caste as ‘Dewar’ on 5.1.1996 appearing at Annexure-1. Petitioner applied for a job in the B.D.A. taking help of the caste certificate and being selected in a duly constituted recruitment process joined as Junior Assistant on 17.10.1998. While the petitioner was continuing as such, it is alleged by the petitioner that involving some misbehavior and ill comments relating to caste and gender by the Vice Chairman, Bhubaneswar Development Authority (hereinafter in short called as V.C., B.D.A.) on 27.3.2011 the petitioner lodged F.I.R. against the V.C., B.D.A. in Mahila P.S. at Bhubaneswar which was registered as Mahila P.S. Case No. 133 dated 29.7.2011. It is alleged that the V.C., B.D.A. misutilizing his official position and power with an intention to take revenge wrote a letter to the Sub-Collector, Bhubaneswar in W.P. (C) No. 9664 of 2012 for having an investigation regarding caste certificate of the petitioner. Based on the direction of the Sub-Collector, the Tahasildar opposite party no. 3 initiated Rev. Misc. It is alleged that the V.C., B.D.A. misutilizing his official position and power with an intention to take revenge wrote a letter to the Sub-Collector, Bhubaneswar in W.P. (C) No. 9664 of 2012 for having an investigation regarding caste certificate of the petitioner. Based on the direction of the Sub-Collector, the Tahasildar opposite party no. 3 initiated Rev. Misc. Case No. 47 of 2011 against the petitioner and issued notice to the petitioner on 5.8.2011 asking the petitioner to appear on 12.8.2011 and show cause on the allegations against her. Petitioner in order to strengthen her show cause applied for copies of relevant orders and documents. Petitioner was denied with such opportunity on the other hand, the Tahasildar fixed the case to 16.8.2011 for filing of the show cause. Under constrained on 16.8.2011 the petitioner filed her show cause denying all the allegations and further took the stand that the Tahasildar has no authority to review its earlier order rather following the Rule 9 of the Orissa Caste Certificate Rules 1980 hereinafter in short called as Rules 1980 a person is required to move the Collector involving any such issue. It is alleged that the Tahasildar, Bhubaneswar without considering the submissions of the petitioner passed an order on 16.8.2011 rejecting the caste certificate issued in favour of the petitioner appearing at Annexure-7. It is further alleged that basing on the order of the Tahasildar, the V.C., B.D.A. initiated a departmental proceeding against the petitioner to remove her from service and for realization of her entire salary, she has received since the date of her joining till date of such order. Petitioner at this juncture filed a writ petition bearing W.P. (C) No. 23511 of 2011. This High Court entertaining the writ petition stayed the impugned order directing for no coercive action against the petitioner till disposal of the writ petition. On 1.11.2011 this High Court disposing the writ petition observed that since the petitioner has the provisions for appeal involving the impugned order to the Collector permitted the petitioner to file an appeal. The petitioner, accordingly, preferred appeal before the Collector and the Collector finally dismissed the appeal vide its order vide Annexure-11. 4. In the meantime, the petitioner has been removed from her service by order dated 3.3.2012 as appearing at Annexure-12. 5. The petitioner, accordingly, preferred appeal before the Collector and the Collector finally dismissed the appeal vide its order vide Annexure-11. 4. In the meantime, the petitioner has been removed from her service by order dated 3.3.2012 as appearing at Annexure-12. 5. Assailing all these orders passed by the two independent authorities, one under the Orissa Caste Certificate Rules, 1980 being registered as Rev. Misc. Case No. 47 of 2011 went up to appeal involving the orders at Annexure-7 and 11 and the other a proceeding at the instance of the employer appearing at Annexure-12 involving dismissal of the petitioner from her service, also with a direction to recover all the amounts involved towards her salary and perks during her service in B.D.A. The petitioner moved W.P. (C) No. 9644 of 2012. 6. Assailing the aforesaid orders, Shri A. Mishra, learned counsel for the petitioner contended that the petitioner was granted a caste certificate showing her to be belonging to scheduled caste by the Tahasildar. The competent authority initiated a duly constituted Misc. Case No. 7/96. The caste certificate vide Annexure-1 was granted following due procedures and after entering into necessary enquiry, thus, the petitioner contended that there is no question of petitioner’s playing any fraud or obtaining the caste certificate by misleading or under misrepresentation of facts. Shri Mishra, also contended that the petitioner’s case was considered for employment by the B.D.A. being a sponsored candidate by the employment exchange, there was no problem with the certificate of the petitioner until and unless a rift arose between the V.C., B.D.A. and the petitioner involving the alleged misbehavior to the petitioner. He further contended that for the decision of the Hon’ble Apex Court in the case of Kumari Madhuri Patil and Another vs. Additional Commissioner Tribal Development and Others, AIR 1995 SC 94 , the case of the petitioner instead of being disposed by the Tahasildar should have been referred to the State Level Scrutiny Committee. Petitioner thus alleged that the initiation of the proceeding by the Tahasildar is contrary to the decision of the Hon’ble Apex Court involving AIR 1995 SC 94 . Petitioner thus alleged that the initiation of the proceeding by the Tahasildar is contrary to the decision of the Hon’ble Apex Court involving AIR 1995 SC 94 . While assailing the order of the B.D.A. in the matter of termination of the petitioner from her services, the petitioner alleged that since there was a rift between the petitioner and the V.C., B.D.A. involving the misbehavior of the V.C. to the petitioner in all fairness the departmental proceeding should have been kept away from the V.C. Further, taking aid of the decisions of the Hon’ble Apex Court in AIR 1995 SC 94 and the other decision in the case of Shri Harisankar Prasad Ram vs. State of Odisha and Others, 2017 (2) OLR 991 a decision of the Hon’ble Apex Court in the case of Shalini vs. New English High School Assn. and Others involving Civil Appeal No. 10997 of 2013 decided on 12.12.2013 and in the case of Kavita Solunke vs. State of Maharashtra and Others, (2012) 8 SCC 430 Shri Mishra, contended that for the decisions of this Court as well as of the Hon’ble Apex Court, referred to hereinabove, the position involving such matters has been settled to the extent restraining any action against the delinquent or the person involved in the event there is no dishonest intention and use of fabricated materials in obtaining such certificates. 7. Shri Mishra, thus claimed that the petitioner’s case is squarely covered by the above decisions and consequently, the order of dismissal and the direction for recovery of entire salary and perks involved therein should be interfered with and set-aside. 8. In filing another writ petition vide W.P. (C) No. 16433 of 2012 learned counsel for the petitioner for the aforesaid developments contended that a proceeding having already been initiated to check the genuineness in the caste certificate granted in favour of the petitioner and the proceeding having ended with some outcome up to the level of appellate authority, there was no question of initiation of a proceeding by the State Level Scrutiny Committee appearing at Annexure-11 and Shri Mishra, learned counsel for the petitioner thus contended that for all the above developments, the notice vide Annexure-11 should be interfered with and quashed. 9. 9. In his opposition Shri D. Mohapatra, learned counsel for the Bhubaneswar Development Authority (B.D.A.) taking this Court to the discussions involved in the order passed by the Tahasildar vide Annexure-7 and also the order passed by the Collector in disposal of the appeal at Annexure-7 contended that there has been a threadbare consideration of the case of the petitioner on the illegal issuance of a caste certificate and for the detail discussions made therein and the findings therein, Shri Mohapatra submitted that there is absolutely no infirmity in either of the orders passed by the Tahasildar or the Collector appearing at Annexure-7 and Annexure-11. Further, the initiation of the departmental proceeding and the final outcome resulting dismissal of the petitioner as well as recovery of entire salary involved and the perks becomes a natural fall out and dependent on the outcome of the Annexure-7 and Annexure-11 leaving no scope for this Court for interfering in the same. 10. Learned State Counsel supporting the stand taken by Shri Mohapatra so far it relates to challenge of the orders vide Annexure-7 and 8, submitted that for the concurrent finding of fact by both the authorities arriving with one conclusion that there has been grant of illegal caste certificate in favour of the petitioner, both the orders do not stand to any scrutiny any further. 11. Considering the rival contentions of the parties, this Court finds, the factual matrix involved here is, the petitioner is a lady candidate taking aid of the caste certificate in favour of her by the then competent authority applied for a post in the B.D.A. Finding her suitable, she was appointed as a Junior Assistant in the B.D.A. The proceeding initiated involving examination of the genuineness of the caste certificate granted in her favour is based on a complaint of the employer regarding the genuineness of the caste certificate involving the petitioner. It is at this stage of the matter, taking into consideration the provisions contained in the Orissa Caste Certificate (Scheduled Caste and Scheduled Tribe) Rules, 1980 (hereinafter in short called as the Rules, 1980), this Court finds, the Rules, 1980 has scope for grant of caste certificate by the competent authority includes Revenue Officer not below the rank of Tahasildar/Additional Tahasildar. Under Rule 4 therein provides a verification before the grant of caste certificate. Rule 8 prescribes for issue of caste certificates. Under Rule 4 therein provides a verification before the grant of caste certificate. Rule 8 prescribes for issue of caste certificates. Rule 8 Sub-Rule 5 makes the provision for penalizing the Officer for issuing wrong caste certificate carelessly and deliberately without proper investigation. Similarly Rule 9 therein prescribes any person aggrieved by an order passed by a competent authority subordinate to that of District Magistrate/Collector may prefer appeal before the District Magistrate/Collector concerned and to the concerned R.D.C. where the order is passed but however, within a period of thirty days of passing of such orders and the order passed by the appellate authority shall remain final. Looking to the factual background involved herein, this Court finds, the caste certificate involving Annexure-1 was issued in favour of the petitioner by the Tahasildar following the provisions at Sub- Rule 5 of Rule 6 of the Rules 1980 basing on an enquiry and depending on the materials support supporting the claim of the petitioner. Rule 8 (2) makes provision for enquiring the allegations involving the genuineness in the case the service authorizing the competent authority who issued the caste certificate shall have the right to cancel the same and pass orders for revocation of the benefits that might have acquired by the person concerned. It is at this stage, this Court finds, raising the doubt on the caste certificate in favour of the petitioner vide Annexure-2, the B.D.A. made a complaint to the Sub-Collector, Bhubaneswar to enquire into the genuineness of the caste certificate indicating the reasons therein and it appears, the complain to the Sub-Collector vide Annexure-2 was made on 2nd of August, 2011. Basing on this complaint, a Misc. Case was registered as Rev. Misc. Case No. 47/11 involving the Misc. Case No. 7/96 purported to be under Rule 8(2) of Orissa Caste Certificate Rules, 1980. On being noticed the petitioner filed her objection and considering her objection the competent authority i.e. the Tahasildar, Bhubaneswar in disposal of the Rev. Misc. Case No. 47/11 while holding that the proceeding before him is maintainable following the provisions at Sub-Rule 2 of Rule 8 of Rules, 1980, recorded the admission of the petitioner that she was ‘Brahim’ by caste at the time of her birth and she having married to one Scheduled Caste person claimed to be belonging to the Scheduled Caste category. Case No. 47/11 while holding that the proceeding before him is maintainable following the provisions at Sub-Rule 2 of Rule 8 of Rules, 1980, recorded the admission of the petitioner that she was ‘Brahim’ by caste at the time of her birth and she having married to one Scheduled Caste person claimed to be belonging to the Scheduled Caste category. The Tahasildar after taking into consideration the decision of the Hon’ble Apex Court in the case of Mrs. Valsamma Paul vs. Cochin University and Others, AIR 1996 SC 1011 and in another decision in the case of Anjan Kumar vs. Union of India and Others, AIR 2006 SC 1177 further, taking into consideration the Government of India in the Ministry of Home Affairs in their directives vide Letter No. 35/1/72-RV (ACT-V) dated 2nd May, 1975 where the Government has circulated that no person, who was not a Scheduled Caste or a Scheduled Tribe by birth, will be deemed to be a member of the Scheduled Caste or Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe, further after coming to hold that since the husband of the petitioner belonging to ‘Kaibarta’ by caste, it appears, under no circumstance, the wife could become ‘Dewar’ by caste. The Tahasildar thus observed that the petitioner has obtained the caste certificate by misleading the authority. This view of the Tahasildar has been affirmed by the Collector in his order in the Appeal at Annexure-11. For the concurrent finding of fact and for the concurrent material establishing that the petitioner was ‘ Brahmin’ that too for her own admission and for the settled position of Law on this score by the Hon’ble Apex Court, this Court, therefore, observes, under no circumstance, the petitioner could have been granted a caste certificate. However, considering that the Tahasildar being a responsible officer having granted the caste certificate in favour of the petitioner after required enquiry and materials produced by the petitioner at the relevant point of time, the petitioner cannot be held to be obtaining the caste certificate applying fraud or misrepresentation of facts and it may be a case of mistaken consideration of the claim of the petitioner and based on improper conducting of inquiry, for which no responsibility can be attributed to the petitioner. Further, there is also no finding by either of the competent authorities on the misrepresentation of facts at the time of initial issuance of the caste certificate. It may thus be a case of grant of caste certificate under mistaken consideration of the case of the petitioner. 12. For the aforesaid observation, there is no illegality involving the orders vide Annexure- 7 and 11 and accordingly, this Court refuses to interfere in the same. 13. For the refusal of interference in the order vide Annexure-7, this Court now proceeds to find out the validity of the dismissal of the order at Annexure-12 and initiation of the proceeding involved therein vide Annexure-8. For the holding of this Court in the above paragraphs, there is no illegality or infirmity in the order vide Annexure-7 being passed on 16.8.2011, this Court finds, there is no illegality in the initiation of the disciplinary proceeding by the employer basing on the findings and the declaration vide Annexure-7. Therefore, there is no scope for interfering in the initiation of the proceeding vide Annexure-8. For the established allegation vide Annexure-7 and 11, this Court also finds, the employer justified in holding a disciplinary proceeding involving the petitioner but for the orders therein ending with the direction for dismissal of the petitioner and recovery of entire entitlements of the petitioner in the meantime and also the perks involving her, this Court is now inclined to examine the decision relied on by the petitioners and going through the decisions in the case of Kavita Solunke vs. State of Maharashtra and Others, (2012) 8 SCC 430 , this Court finds, in paragraph nos. 20 to 23, the Hon’ble Apex Court has observed as follows: “20. The decision of this Court in State of Maharashtra vs. Sanjay K. Nimje relied upon by the learned counsel for the respondents was distinguished even by V.S. Sirpukar, J. in Vilas case. The distinction is primarily in terms whether the candidates seeking appointment or admission is found guilty of a conduct that would disentitle him/her from claiming any relief under the extraordinary powers of the Court. This Court found that if a person secures appointment or admission on the basis of false certificate, he cannot retain the said benefit obtained by him/her. The courts will refuse to exercise their discretionary jurisdiction depending upon the facts and circumstances of each case. 21. This Court found that if a person secures appointment or admission on the basis of false certificate, he cannot retain the said benefit obtained by him/her. The courts will refuse to exercise their discretionary jurisdiction depending upon the facts and circumstances of each case. 21. The following passage from the decision in Nimje case is apposite: (SCC p. 487, para 18) “18.........In a situation of this nature, whether the Court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate vs. State of Maharashtra. 22. Applying the above to the case at hand we do not see any reason to hold that the appellant had fabricated or falsified the particulars of being a Scheduled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a teacher. There is, therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the appellant shall not be ousted from service and shall be reinstated if already ousted, but she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue cancelled by the Scrutiny Committee. 23. In the result, we allow this appeal, set aside the order passed by the High Court and direct the reinstatement of the appellant in service subject to the condition mentioned above. We further direct that for the period the appellant has not served the institution which happens to be an aided school she shall not be entitled to claim any salary/back wages. She will, however, be entitled to continuity of service for all other intents and purposes. The respondent shall do the needful within a month from the date of this order. The parties are left to bear their own costs.” 14. Similarly, going through the decision vide Shalini vs. New English High School Assn. and Others involving Civil Appeal No. 10997 of 2013 decided on 12.12.2013 this Court finds, in a similar situation, the observation made in sub-paragraph no. 4 of paragraph no. The parties are left to bear their own costs.” 14. Similarly, going through the decision vide Shalini vs. New English High School Assn. and Others involving Civil Appeal No. 10997 of 2013 decided on 12.12.2013 this Court finds, in a similar situation, the observation made in sub-paragraph no. 4 of paragraph no. 7 reads as follows: “In essence, the Section cancels with pre-emptive effect any benefit that may have been derived by a person based on a false caste certificate. Whilst Caste Certificate has been defined in Section 2(a) of the 2000 Act, False Caste Certificate has not been dealt with in the Definitions clause. There is always an element of deceitfulness, in order to derive unfair or undeserved benefit whenever a false statement or representation or stand is adopted by the person concerned. An innocent statement which later transpires to be incorrect may be seen as false in general sense would normally not attract punitive or detrimental consequences on the person making it, as it is one made by error. An untruth coupled with a dishonest intent however requires legal retribution.” 15. In the above case, considering that there was no fraud or misleading of facts adopted in the matter of obtaining of caste certificate, the Hon’ble Apex Court in paragraph no. 10 directed that in the event, the post falls vacant before the appellant reaches the age of retirement or superannuation, she shall be reappointed to the post but with no further promotion as a scheduled tribe candidate. This Court in earlier occasion in deciding a case in similar situation as reported in 2017 (2) OLR 991 considering the continuance of the petitioner in service on the basis of such wrong certificates preventing the petitioner from getting any future benefit, permitted for continuance of the petitioner in the service but however, without any future promotion or benefits. 16. This Court in earlier occasion in deciding a case in similar situation as reported in 2017 (2) OLR 991 considering the continuance of the petitioner in service on the basis of such wrong certificates preventing the petitioner from getting any future benefit, permitted for continuance of the petitioner in the service but however, without any future promotion or benefits. 16. For the observation of this Court that the petitioner has not obtained the caste certificate in dishonest or fabricated manner, but for the grant of the certificate in favour of the petitioner under mistaken impression and considering that there is no stay order permitting the continuance of the petitioner in her employment pursuant to the order of termination vide Annexure-12 involving W.P. (C) No. 9664 of 2012, while interfering with the order vide Annexure-12 therein, this Court sets aside the same and directs for consideration of the case of the petitioner regarding her continuance in the post as she was holding at the time of dismissal order, in the event, the same is still laying vacant and in the event, the said post is not laying vacant for the selection of a fresh candidate in the meantime, then consider her absorption in the said post or a parallel post immediately on vacation of the post by the incumbent further provided she has not attended the age of superannuation. This Court makes it clear that in the event, the petitioner is reinstated in future, she will be disentitled to any future promotion or benefit. 17. Now coming to take a decision on W.P. (C) No. 16433 of 2015 for the observations of this Court made hereinabove holding the proceedings initiated by the Tahasildar and the appeal involved in Annexure-7 and Annexure-11 maintainable in the eye of law, answering the dispute involving in W.P. (C) No. 16433 of 2015, this Court declares the further initiation of the proceeding vide Annexure-11 in the above writ petition becomes bad and set aside the same. 18. Both the writ petitions succeed to the extent indicated hereinabove, but however, there is no order as to cost.