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2023 DIGILAW 240 (UTT)

Anandi Panchpal v. State of Uttarakhand

2023-03-28

MANOJ KUMAR TIWARI

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. By means of this writ petition, petitioner has sought the following relief:- (i) Issue a writ, order or direction in the nature of certiorari quashing the termination order dated 19.04.2022 (Annexure – 10) passed by respondent no. 2. (ii) Issue a writ, order or direction in the nature of certiorari quashing the recommendation of Scrutiny Committee dated 29.06.2017 as well as the approval dated 4.7.2017 (Annexure-5) given by respondent no. 3. (iii) Issue a writ, order or direction in the nature of mandamus directing/commanding the respondents to reinstate the petitioner with all consequential benefits. 3. It is not in dispute that petitioner was married to a person belonging to Scheduled Tribe Community in the year 1989 and, after her marriage, she applied for caste certificate. On 08.02.1990, Tehsildar Bageshwar issued a certificate, declaring that petitioner belongs to Scheduled Tribe Community. On the strength of the caste certificate, petitioner was appointed on 27.07.1996 as Instructor against a post reserved for Scheduled Tribes. 4. In the year 2011, a complaint was made that petitioner does not belong to Scheduled Tribe and caste certificate has wrongly been obtained by her. Based on the complaint, a preliminary enquiry was held by Sub- Divisional Magistrate, Kanda, and thereafter the matter was referred to Caste Scrutiny Committee. Petitioner was given a show cause notice, but instead of submitting reply, petitioner sought copy of certain correspondence made between different Authorities during 2016-17. The Scrutiny Committee recommended for cancelling petitioner’s caste certificate and, based on the report of the committee, caste certificate issued to her was cancelled. 5. Since petitioner was holding a post reserved for Scheduled Tribe, therefore, Director, Training & Employment, Uttarakhand terminated her services by an order dated 19.04.2022. In this writ petition, petitioner has challenged the termination order passed by Director, the recommendation made by the Caste Scrutiny Committee and the decision taken by the Competent Authority to cancel her caste certificate. 6. Learned counsel for the petitioner contended that termination of petitioner’s service amounts to removal from service, which is a major punishment under Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, therefore, Article 311(2) of the Constitution of India is attracted, therefore the order of termination passed without holding disciplinary enquiry, is illegal and unsustainable. 6. Learned counsel for the petitioner contended that termination of petitioner’s service amounts to removal from service, which is a major punishment under Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, therefore, Article 311(2) of the Constitution of India is attracted, therefore the order of termination passed without holding disciplinary enquiry, is illegal and unsustainable. He further contended that documents sought by the petitioner were not supplied to her by the Caste Scrutiny Committee, thus reasonable opportunity of hearing was not given to her, as such the report of the Scrutiny Committee and also the decision, based on such report, deserves to be quashed. 7. Law is well settled that caste status is acquired by birth and not by marriage as held in Valsamma Paul (Mrs) Vs. Cochin University, (1996) 3 SCC 545 . In the case of Sunita Singh Vs. State of Uttar Pradesh and Others, reported in (2018) 2 SCC 493 , the aforesaid view was reiterated. Relevant extract of the said judgment is reproduced below:- “5. There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste. Undoubtedly, the appellant was born in “Agarwal” family, which falls in general category and not in scheduled caste. Merely because her husband is belonging to a scheduled caste category, the appellant should not have been issued with a caste certificate showing her caste as scheduled caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted.” 8. Admittedly, both parents of the petitioner do not belong to Scheduled Tribe Community. In other words, petitioner was not a member of Scheduled Tribe by birth and she claimed benefit available to Scheduled Tribe based on her marriage with a person belonging to said community. Thus, petitioner was not entitled to caste certificate, which was wrongly issued in her favour by Tehsildar Bageshwar; as such she was not entitled to benefit of reservation which she availed on the strength of caste certificate. 9. Upon enquiry, when it was revealed that caste certificate as well as benefit of reservation has been wrongly given to her, concerned Authority took necessary corrective measures. 9. Upon enquiry, when it was revealed that caste certificate as well as benefit of reservation has been wrongly given to her, concerned Authority took necessary corrective measures. Thus, it is a case of correction of mistake, which has resulted in her termination from service and it is not a case of dismissal or removal for some misconduct as Government Servant, for which disciplinary enquiry, in terms of Article 311(2) of the Constitution of India, would be needed. 10. In the case of Chairman and Managing Director, Food Corporation of India & others Vs. Jagdish Balaram Bahira and others, reported in (2017) 8 SCC 670 , Hon’ble Supreme Court has held that a person appointed against a reserved post has no right to retain such post, upon cancellation of caste certificate. Paragraph no. 48 of the said judgment is reproduced below: “48. The regime postulated in the judgment of this Court in Madhuri Patil [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] took effect from 2-9-1994, which was the date of the judgment. Eventually in the State of Maharashtra, these directions received legislative recognition upon the enactment of Maharashtra Act 23 of 2001 which came into force in the State on 18- 10-2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] the regime, as it then obtained prior to the enactment of the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter, a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservation is intended. This was the position under the regime which prevailed following the decision in Madhuri Patil [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349].” 11. Thus, this Court does not find any merit in the writ petition. Since petitioner does not belong to Scheduled Tribe community, therefore, merely by her marriage to a person belonging to Scheduled Tribe community, she cannot acquire status of Scheduled Tribe. Thus, petitioner should not have applied for caste certificate. The caste certificate was wrongly given to petitioner, therefore, the Competent Authority was well within his right to correct the mistake by cancelling the certificate. The order of termination passed by Appointing Authority is consequential to cancellation of caste certificate, as petitioner was not eligible to be appointed against a reserved post. Thus, there is no scope for interference with the impugned orders. 12. Learned counsel for the petitioner contended that the order of termination passed against the petitioner may be modified and instead respondents be directed to pass order of compulsory retirement. He relied upon the judgment rendered by Hon’ble Supreme Court in the case of Sunita Singh (Supra). 13. In the case of Sunita Singh, Hon’ble Supreme Court exercised power under Article 142 of the Constitution of India, which is not available to this Court. Thus, the prayer made on behalf of petitioner to convert the order of termination to compulsory retirement also cannot be granted. 14. In such view of the matter, the writ petition fails and is dismissed. There will be no order as to costs.