Billo Ji Bhagat vs Union of India

Mohammad Yaqoob Mir, J.—Petitioner belonging to a Kashmiri Pandit family got married in the year 1983 to Mr. Tirath Ram Bagat who

belongs to a Scheduled Caste community. After marriage petitioner obtained Scheduled Caste certificate which was issued in her favour on

05.07.1985 by the competent authority (Tehsildar) in terms of SRO 272 dated 03.07.1982. Subsequently, in the year 1994 SRO 272 was

repealed. Again the competent authority (Tehsildar) has issued fresh Scheduled Caste certificate in favour of the petitioner on 03.04.1995. An

advertisement notice was issued by respondent Kendriya Vidyalaya Sangathan in the month of June, 1996 for the posts of Trained Graduate

Teacher (TGT) in English under category Scheduled Caste. Petitioner also applied, in the selection process got selected and finally appointed vide

order No. AC-KVS JR 4231 dated 25.09.1997. In pursuance whereof, she was posted as TGT(English) at Kendriya Vidyalaya No. 1

Udhampur where she joined on the same date i.e. 25.09.1997.

On 13.08.2007, Principal of Kendriya Vidyalaya No. 2, Jammu Cantt, J&K, issued a memorandum where-under petitioner was informed that

the Scheduled Caste certificate attached with her application form would reveal that prior to her marriage she did not belong to Scheduled Caste

community, as such, has been asked to produce certificate by birth in original latest by 24.08.2007, which he could not, therefore, articles of

charge were framed and served upon her to which she has submitted her reply wherein she has stated that 10 years prior to the date of

advertisement notice she had obtained Scheduled Caste certificate. Amongst other things she has also stated that on appointment she was posted

at Udhampur where she taught English subject to the students of 6th and 7th standard for three and a half years, her second posting was at KV

No. 1 Akhnoor where she taught English at the level of 6th to 9th standard and served there for two and a half years. Since 2003 she has been

serving at KV No. 2, Jammu Cantt. She has been awarded trophy on the occasion of annual day for 100% results during 2004-05. Her service

records would reveal that she has attended Seminars and orientation programmes, she has ten years of regular and unblemished service, now her

children are grownup, has adjusted her children in accordance with the social status commensurate with her job. Contract of marriage in the year

1983 was not aimed to procure any benefit, she has undergone rigorous stress, strains, environments disadvantages for being apart of an SC

family, therefore, grant of SC certificate in her favour is not with any design. Her act in any manner does not fall within the ambit of misconduct

under Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.

The Disciplinary Authority passed an order of termination on 11.08.2009 which was challenged by the petitioner by medium of OA No.

220/JK/2009 before Central Administrative Tribunal, Chandigarh (Circuit at Jammu) but without success as the said petition stands dismissed vide

detailed order dated 23rd September, 2011. Dissatisfied therewith, the instant writ petition has been filed on 9th March, 2012.

During the currency of this petition, the Appellate Authority-Joint Commissioner (Adm.) vide detailed order dated 30th July, 2012 has upheld

the order dated 11.08.2009 passed by the Disciplinary Authority. Such development necessitated the amendment of the writ petition so as to

challenge the said order, same has been allowed vide order dated 27.11.2012.

The pivot to the whole litigation is as to whether after marriage petitioner could be treated as member of the Scheduled Caste community so as

to be eligible and entitled to the benefit of reservation in service. It is settled that no person who was not a Scheduled Caste by birth will be

deemed to be a member of Scheduled Caste merely because he or she married a person belonging to a Scheduled Caste or a Scheduled Tribe.

Such position is clear from the guidelines for authorities empowered to issue Scheduled Caste and Scheduled Tribe certificates. The issue i.e. when

a member is transplanted in Dalits, Tribes, OBCs, whether can be entitled to the category certificate, has been considered in number of judgments

by the Hon'ble Apex Court, as have been cited by the learned counsel for the parties.

Learned counsel for the petitioner placed much reliance on the judgment rendered by the Division Bench of the Delhi High Court in the case of

Kendriya Vidyalaya Sangathan Vs. Shanti Acharya Sisingi, , decided on, 16.11.2010, the said judgment had also been relied before the Central

Administrative Tribunal and the Tribunal while noticing the law laid down in the said judgment has opined that the same is contrary to the Supreme

Court judgment, so is of no help to the petitioner.

Learned counsel for the petitioner first projected that the petitioner being a Kashmiri migrant Pandit has contracted marriage in the year 1983

with a member of Schedule Caste community, she is entitled to be treated as a member of that community eligible for obtaining Scheduled Caste

certificate. She has suffered a lot, she has been in a disadvantageous position, the reservation is available to the persons who have suffered social

and educational backwardness, the grant of Scheduled Caste certificate and thereafter to become eligible for obtaining job on said basis has an

object of removing handicaps, disadvantages and sufferings of the members of such communities. The petitioner has served as a teacher for 10

long years with excellent performance, now she has reached to a stage where it shall not be possible for her to get any job, all doors are closed for

her, therefore, otherwise on equitable grounds she is entitled to protection.

The contentions raised and the position as projected, no doubt are attractive but the issues have been settled in various authoritative

pronouncements of the Hon'ble Apex Court, as have been rightly referred to and relied upon by the learned counsel for the respondents. It shall be

quite relevant to refer to these judgments one by one.

In Mrs. Valsamma Paul Vs. Cochin University and others, , decided on 4th January, 1996, two posts of Lecturers in Law Department of

Cochin University were notified for recruitment, one of which was reserved for Latin Catholics (Backward Class Fishermen). The appellant, a

Syrian Catholic (a Forward Class), having married a Latin Catholic, had applied for selection as a reserved candidate. On selection she was

appointed against the reserved post. The issue has been threadbare dealt with. It shall be quite relevant to quote Para 34 and 36 of the judgment:

In Murlidhar Dayandeo Kesekar v. Vishwanath Panda Barde and R. Chandevarappa v. State of Karnataka this court had held that economic

empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus,

education, employment and economic empowerment are some of the programmes the State has evolved and also provided reservation in

admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post

under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits. Tribes and OBCs, he/she must of necessity also

have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to

entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had

march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit

of reservation either under Article 15(4), as the case may be. Acquisition of the status of Scheduled Caste etc, by voluntary mobility into these

categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the

Constitution.

The recognition of the appellant as a member of the Latin Catholics would not, therefore, be relevant for the purpose of her entitlement to the

reservation under Article 16(4), for the reason that she, as a member of the Forward Caste, had an advantageous start in life and after her

completing education and becoming major, married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholics, a

Backward Class.

In the judgment Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and Others, , the employee was appointed to the

post of Clerk in the Bank with effect from 18th March, 1981 against a post reserved for ""Scheduled Tribes'"" as she had claimed to be belonging to

Thakur Scheduled Tribe"". It was found by the Scrutiny Committee that the she did not originally belong to ""Thakur Scheduled Tribe"". It was

discovered that she had studied at Jeevan Shikshan Vidyalaya, Nagpur and by blotting out the original caste ""Rajput Dahayat"" as mentioned in the

school leaving certificate, noted down the caste as ""Thakur"" and thus took admission in college on the basis of caste certificate ""Thakur"". Her

certificate was cancelled and services terminated. She had projected various grounds including long tenure of service which has not been accepted.

It shall be quite relevant to quote para 13 and 16 of the reported judgment:

Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and

we deem it unnecessary to launch on exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions,

where the admission/appointment was not cancelled because of peculiar factual matrix.

Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As

noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was

false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in

service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect

of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she

usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for

verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence

inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment.

In the judgment Union of India (UOI) Vs. Dattatray Mendhekar and Others, (rendered by a Bench of three Hon'ble Judges), the first

respondent claimed that he belonged to a Scheduled Tribe-Halba, was appointed as an Assistant Professor of Psychiatry in G.B. Pant Hospital,

New Delhi, in a post reserved for Scheduled Tribes. On verification, vide communication dated 9.5.1991, Tehsildar had informed that he did not

belong to Halba community. The first respondent resisted that he belonged to Halba community, in alternative projected that having along stay of

service, he be protected. Para 6 of the judgment is relevant to be quoted:

In this context, we may also refer to the decisions in Bank of India and Another Vs. Avinash D. Mandivikar and Others, and Additional

General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, , wherein this Court held that when a person

secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his

services are liable to be terminated. In the latter case, this Court explained Milind thus:

The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this

Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures

an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an

undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.

This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only

where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is

detected within a short period from the date of admission.

In Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, , respondent had secured

appointment by producing a false certificate which showed him to be belonging to Habla Schedule Tribe to which he did not belong. His services

were terminated. Para 12 of the judgment is relevant to be quoted:

In the case in hand the respondent got appointment on 31.5.1982 on a post, which was reserved for a member of Scheduled Tribe. On

receiving complaints the employer referred the matter to the District Collector, Nagpur and also to Scrutiny Committee in March, 1991. The

subsequent period has been spent in making enquiry and in litigation as the respondent filed three writ petitions. In view of the principle laid down

by this Court we are clearly of the opinion that his services were rightly terminated by the appellant and the High Court was in error in directing his

reinstatement. The order passed by the High Court, therefore, has to be set aside.

In the judgment Lilly Kutty Vs. Scrutiny Committee, S.C. and S.T. and Others, , Caste certificate for SC community was obtained by fraud.

Para 7 of the judgment is relevant to be quoted:

Any action by the authorities or by the people claiming a right privilege under the Constitution which subverts the constitutional purpose must be

treated as a fraud on the Constitution. The Constitution does not postulate conferment of any special benefit on those who do not belong to the

category of SC/ST people for whom the provision was made.

In the judgment Sandhya Thakur Vs. Vimla Devi Kushwah and Others, , the appellant was born a Maharashtrian Brahmin. She married to one

Naresh Kumar Thakur who is a Namdev by caste. She filed her nomination for election for the post of Corporator for Ward No. 50, a ward

reserved for backward communities and got elected. It was held that she was not entitled to contest a seat reserved for a backward class or

community merely on the basis of her marriage to a male of that community.

From the judgment Punit Rai Vs. Dinesh Chaudhary, , decided by a Bench of three Hon'ble Judges, para 32 is relevant to be quoted:

A person in fact not belonging to Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be

committing fraud on Constitution. No court of law can encourage commission of such fraud.

Petitioner, no doubt, has obtained Scheduled Caste certificate in the year 1985 in terms of SRO 272 as was applicable at that time. Later the

said SRO was repealed by SRO 126 in the year 1994 and then again in terms of said SRO 126, she again obtained Scheduled Caste certificate in

the year 1995. The post against which petitioner got appointed was advertised in the year 1996. In such background, her contention that she has

acted with all bona fides may be acceptable but on closer scrutiny, it appears that there has been some sort of negligence or design in the process.

The mode and method provided for applying and issuance of Scheduled Caste certificate is prescribed by SRO 272. Form-I is a proforma for an

applicant to seek certificate of being Scheduled Caste, wherein it is clearly indicated that the applicant has to record his/her name, then his/her

father's name, has not to show husband's name. Then Form-VI is a proforma prescribed for issuing the certificate of being a member of Scheduled

Caste category wherein it is prescribed that:

this is to certify that............S/o/D/o............Resident of.....................is a member of Scheduled Caste.

So it clearly shows that the Tehsildar has to record parentage of the applicant. The certificate issued in favour of the petitioner, as available on the

records, has been issued in the same proforma i.e. Form-VI but the words ""S/o/D/o"" have been crossed over which word ""W/o"" has been

recorded which was not permissible. When a person does not belong to a community by birth, he or she is not entitled to the category certificate.

Petitioner, a Kashmiri Pandit girl, belonged to good community, as such, has been brought up in a good atmosphere, has not suffered the

disadvantages as are being suffered educationally and socially by the persons belonging to SC category. It is after marriage she has become

member of the Scheduled Caste community as her husband belongs to the said community but that does not entitle her to the benefit of reserved

category certificate in view of the law laid down by the Hon'ble Apex Court, more particularly in the judgment reported in Mrs. Valsamma Paul

Vs. Cochin University and others, , as referred to hereinabove.

The Division Bench judgment of the High court of Delhi rendered in Kendriya Vidyalaya Sangathan Vs. Shanti Acharya Sisingi, , with respect,

cannot be applied to the present case in view of the law laid down by the Hon'ble Apex Court in the judgments as referred to hereinabove, more

particularly the judgment reported in Mrs. Valsamma Paul Vs. Cochin University and others, does not leave any scope for deviation so as to

extend the benefit of aforesaid Division Bench judgment of the Delhi High Court to the petitioner, The writ petitioner has been terminated from

service in the year 2009, so she continues to be out of service, That apart, her termination order in light of the law laid down by the Hon'ble Apex

Court is un-interferable. For the facts, reasons and circumstances stated above, no case is made out so as to interfere with the judgment passed by

the Central Administrative Tribunal dated 23.09.2011. Accordingly, petition fails, as such, dismissed.