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Judgment
Sunil Kumar Sinha, J.—These appeals are directed against a common order dated 8th of April, 2013 passed in two writ petitions namely- W.P. (S) Nos. 1195/2012 and 1533/2012 by the learned single Judge of this Court.
The facts:
The facts, briefly stated, are as under:--
1.1 Writ Appeals No. 388 & 361 of 2013:
1.1-a These appeals relate to W.P.(S) No. 1195 of 2012. Appellant-Chandra Shekhar Kotriwar, petitioner in the writ petition, claimed himself belonging to ''Chattri'' Tribe and got a caste certificate from Sub-Divisional Officer, Balod, District Durg on 14.6.1978. He was appointed as District Organizer, Tribal Development, in the year 1983 against a post reserved for Scheduled Tribe candidate. He was promoted to the post of Assistant Commissioner and Deputy Commissioner. A complaint was made against his social status and an enquiry was conducted by the High Power Caste Scrutiny Committee (the Committee). The Committee, by its order dated 29.8.2005 found that the caste certificate issued by Sub-Divisional Officer was wrong and the same was cancelled. It was also directed that his appointment against the reserved post of Scheduled Tribe be cancelled. He preferred W.P.(S) No. 4951 of 2005. The said writ petition was allowed on 19.8.2010 and the matter was remitted back to the Committee to consider his case afresh after following the guidelines/directions of the Supreme Court as also various circulars issued in this regard. The Committee applied affinity test and recorded a finding that there was no affiliation of the members of the caste of the appellant with the members of other castes mentioned at serial No. 20 of the Order, therefore, a wrong caste certificate was issued to the appellant by the Sub-Divisional Officer. His caste certificate thus was cancelled by the Committee vide order dated 29.2.2012 and the Committee directed the concerned Government to take action against him as per the guidelines issued in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others,
2.1-b The appellant challenged the validity of the said order by filing W.P.(S) No. 1195 of 2012. The appellant, thereafter, was dismissed vide order dated 26.3.2012. The Writ Court, held that the order passed by the Committee was just and proper and no interference was required. However, applying the principles laid down in State of Maharashtra Vs. Milind and Others, and many other judgments of the Supreme Court, the Writ Court gave protection to the appellant and the order of dismissal dated 26.3.2012 was quashed and it was directed that the appellant be reinstated in service forthwith. The appellant/petitioner has challenged the order passed by the Caste Scrutiny Committee and the State has challenged the order of protection granted by the Writ Court.
2.2 Writ Appeals No. 528 & 392 of 2013:
2.2-a These appeals relate to W.P.(S) 1533 of 2012. Appellant- Anurag Lal, petitioner in the writ petition, claimed himself to be a member of ''Gond'' Tribe. He got a caste certificate of Gond Tribe from Sub-Divisional Officer, Bilaspur on 28.6.1989 and was appointed as Deputy Collector (State Administrative Service) on 11.12.1993 on a post reserved for Scheduled Tribe candidate. On a complaint regarding his status, an enquiry was conducted by High Power Caste Scrutiny Committee (the Committee) and the certificate issued to him was cancelled vide order dated 26.5.2008. It was also directed that his appointment against the reserved post of Scheduled Tribe be cancelled. This order was challenged in W.P.(S) No. 3206 of 2008. On certain grounds the writ petition was allowed by order dated 19.8.2010 and the order passed by the Caste Scrutiny Committee was set-aside and the matter was remitted back to the Committee to consider his case afresh after following the guidelines/directions of the Supreme Court as also the circulars of the State Government and the Central Government in this regard.
2.2-b The matter was again enquired into by the Committee and after a full enquiry the Committee recorded the finding that the appellant/petitioner was not a member of ''Gond'' Tribe and the caste certificate was obtained by fraud. Various instances of fraud were also considered by the Committee. The Committee, therefore, cancelled the caste certificate issued to the appellant/petitioner by an order dated 29.2.2012 with a further recommendation to take action against the appellant/petitioner as per directions contained in Kumari Madhuri Patil (supra).
2.2-c This order was challenged by the appellant/petitioner in W.P.(S) No. 1533 of 2012. The Writ Court did not find any infirmity in the order and findings recorded by the Committee. The order passed by the Committee, therefore, was upheld. However referring to the judgment passed in Milind (supra), the Writ Court gave protection to the appellant/petitioner to continue in service with certain orders/directions. The appellant/petitioner has challenged the findings recorded by the Committee and the State has challenged the protection given to the appellant/petitioner even after holding that the caste certificate was obtained by fraud.
Maintainability of the Writ Appeals:
These appeals were filed on different dates. W.A. No. 361/2013 was filed first in time. While admitting it for hearing on 2.7.2013, this Court observed that it will be open to the respondents to take objection regarding maintainability of the writ appeal. Though, this objection may not survive on the logic that the respondents (all opposite parties) have also filed writ appeals against the same order, however, in view of the provisions of The Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 ( No. 1 of 2007) this point needs consideration and final opinion of this Court.
In Madhuri Patil (supra), while laying down the general procedure for issuance of status certificates and their scrutiny and approval, it was directed that the order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. It was further directed that and in case, as per the procedure of the High Court, the writ petition/misc. petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench, but subject to special leave under Article 136.
In Dayaram Vs. Sudhir Batham and Others, , it was held that the Scrutiny Committee is not an adjudicating authority like a court or tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the Scrutiny Committee are also open to challenge in proceedings under Article 226 of the Constitution. The maintainability of a writ appeal, in the light of the provisions of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, was considered in this case and it was held that the second sentence of Direction 13 of Madhuri Patil providing that where the writ petition is disposed of by a Single Judge, no further appeal would lie against the order to the Division Bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper, and therefore, to that extent it was held to be not a good law. The second sentence of Direction 13, therefore, was overruled and it was laid down that wherever the writ petitions against the orders of the Scrutiny Committee are heard by a Single Judge and the State law or Letters Patent permits an intra-court appeal, the same would be available. This was on the logic that the right to file a writ appeal under the statute was a "vested right", to any person filing a writ petition and that right can be taken away only by an express amendment to the Act or by repeal of that Act, or by necessary intendment, that is, where a clear inference could be drawn from some legislation that the legislature intended to take away the said right. Therefore, the right of appeal to a Division Bench, made available to a party to a writ petition, either under a statute or Letters Patent, cannot be taken away by a judicial order.
The Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (hereinafter referred to as the Act 2006) provides for an appeal to the Division Bench. Section 2 of the Act 2006 reads as under:--
Appeal to the Division Bench of the High Court from a Judgment or order of one judge of the High Court made in exercise of original jurisdiction.- (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original Jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court:
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
(2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge:
Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period.
Explanation.- The fact that the petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may by sufficient cause within the meaning of this sub-section.
(3) An appeal under sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court.
According to the proviso to sub-section (1), there are two conditions when no such appeal shall lie, they are if it is filed against an interlocutory order or it is against an order passed in exercises of supervisory jurisdiction under Article 227. The objection regarding maintainability appears to have been taken on the ground that the Committee, in the above manner, exercises jurisdiction like an adjudicating authority and the writ petition then would be entertained under Article 227 thereby attracting the proviso to sub-section (1) of Section 2 of the Act 2006. However, after the decision in Dayaram (supra) it is quite clear that the Caste Scrutiny Committee is neither an adjudicating authority nor a Tribunal, but is simply an administrative body which verifies the facts relating to claim of caste/tribe by a person.
In State of Maharashtra and Others Vs. Ravi Prakash Babulalsing Parmar and Another, it was held that the Caste Scrutiny Committee is a Quasi-judicial body. However, after the subsequent decision in Dayaram (supra) and in the light of Madhuri Patil (supra), according to which a petition under Article 226 has to be filed against the order of the Committee, it is now clear that the Committee does not function like a Tribunal and it cannot be held that while considering the validity of the order passed by the Committee, the High Court exercises jurisdiction only under Article 227 and therefore, a writ appeal to the Division Bench would not be maintainable in the light of the proviso to sub-section (1) of Section 2 of the Act 2006.
That apart, an other question would be relevant as to what jurisdiction the single Judge has exercised in the matter. In the instant case, while upholding the orders passed by the Committee, the learned single Judge has quashed the order of dismissal of appellant - Chandra Shekhar Kotriwar and has directed for his reinstatement in service forthwith. Likewise about appellant-Anurag Lal, it has been directed that no dismissal order shall be passed against him. The single Judge has also directed that both the appellants would not be entitled to any further benefits on the basis of their claims belong to Scheduled Tribe. It is the substance of the order passed by the Court that determines whether the order was passed under Article 226 or 227 of the Constitution. In the instant case, in addition to refusing to interfere with the orders of the Committee, the learned single Judge has issued mandamus in favour of both the appellants after quashing the orders of dismissal of Chandra Shekhar Kotriwar. Thus the single Judge has exercised jurisdiction under Article 226 of the Constitution. Therefore, on this account also the writ appeals are maintainable and we hold it accordingly.
Discussion on the case of Appellant- Chandra Shekhar Kotriwar:
Appellant- Chandra Shekhar Kotriwar claimed himself to be a member of ''Chattri'' tribe which finds place at in serial No. 20 of the concerned Order. Serial No. 20 of the Order includes the following castes namely- ''Kawar'', ''Kanwar'', ''Kaur'', ''Cherwa'', ''Rathia'', ''Tanwar'', ''Chattri''. The inquiry in his case was conducted by the concerned Vigilance Cell by applying affinity test. The Vigilance Cell took the evidence of (1) Krit Kumar Singh, (2) Vijay Pal Singh, (3) Chatrapal Singh and (4) Bhuneshwar Singh all belonging to Tanwar, Chattri. The Committee found that according to their evidence, they had no affiliation with the people of Chattri caste. Appellant- Chandra Shekhar Kotriwar was also granted opportunity to prove that he was a member of Chattri Scheduled Tribe which finds place at serial No. 20 in the concerned Order. The Committee on the overall evidence has recorded a finding that their gotranam, deities, folk dances, folk songs and language pattern are quite different. The Committee thus held that the appellant was unable to prove by way of affinity test that he belongs to the Chattri Scheduled Tribe. It was held that the wrong caste certificate, therefore, was issued in favour of the appellant. On due consideration of the entire material on record, we find that there is no procedural fault committed by the Committee while recording the above finding. The above finding has been recorded after following due procedure and guidelines provided in Madhuri Patil (supra) and after giving full opportunity of hearing to the appellant. The finding is neither perverse nor improper. Therefore, we uphold the finding recorded by the Committee and affirmed by the learned single Judge.
Mr. Tiwari, learned Senior Counsel appearing on behalf of the appellant, has argued that the case of the appellant was not of obtaining the caste certificate by fraud or misrepresentation. Therefore, the protection granted to the appellant should be maintained. He cited the decision of Dattu Thakur Vs. State of Maharashtra and Others,
On the other hand, learned Deputy Advocate General(s) appearing on behalf of the State have opposed these arguments and have prayed for setting-aside the protection granted to the appellant. They cited the decisions of Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and Others, Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar and Others, and Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde,
In Dattu (supra), the caste certificate was cancelled after 9 years. It was mainly cancelled on the ground that the petitioner was unable to prove by way of affinity test that he belonged to the Thakur Scheduled Tribe. It was held that even if the findings to that effect are accepted, other circumstances that have intervened between issuance of caste certificate and the cancellation thereof cannot be ignored. The advantages derived by the petitioner on the basis of his caste certificate, therefore, were directed to be undisturbed, however, it was held that the petitioner would not be entitled to take any further advantage of reservation in future either for studies or for employment.
In Madhulika (supra), relying on various other decisions, it was held that when the selection of the employee was conceived in deceit and, therefore, could not be saved by equitable considerations, in that situation the fact that a very long time has elapsed after issuance of the caste certificate would have no meaning. Incidentally it was also observed that an act of deliberate deception with a design to secure something which is otherwise not due, tantamounts to fraud.
In Raju Ramsing (supra), it was held that to fulfill the constitutional norms, a person must belong to a tribe before he can stake his claim to be a member of a notified Scheduled Tribe. When an advantage is obtained by a person in violation of the constitutional scheme, a constitutional fraud is committed.
In Suresh Ramkrishna (supra), it was observed that where a person secures an 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.
After going through the above principles, and applying them to the facts of the appellant''s case, we find that a caste certificate was granted to the appellant in the year 1978, on which, he got service in the year 1983. A complaint was made and his caste certificate was cancelled on 29.2.2012 on the ground that it was a wrong caste certificate issued in favour of the appellant holding that he belongs to Chattri Scheduled Tribe mentioned against serial No. 20 of the concerned Order. There are no allegations of fraud against the appellant and the contents of the order of the Committee would show that since the appellant failed to prove by way of affinity test that he was belonging to the Chattri Scheduled Tribe, therefore, the caste certificate was wrongly issued to him. Thus the case of the appellant was distinguishable from those cases in which either an allegation of fraud was made or a finding of fraud or deception in any manner was recorded.
I Kavita Solunke Vs. State of Maharashtra and Others, , meeting the arguments rendered on the basis of Suresh Ramkrishna (supra), it was held in Paras 19 and 22 as follows:--
Our attention was drawn by the counsel for the respondents to the decision of this Court in Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, in which the protection against ouster granted by the decisions in State of Maharashtra Vs. Milind and Others, was not extended to the respondent therein. A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration. In Burde case, the Scrutiny Committee had found that the caste certificate was false and, therefore, invalid. That was not the position either in Milind case nor is that the position in the case at hand. In Milind case, the Scrutiny Committee had never alleged any fraud or any fabrication or any misrepresentation that could possibly disentitle the candidate to get relief from the Court. In the case at hand also there is no such accusation against the appellant that the certificate was false, fabricated or manipulated by concealment or otherwise. Refusal of a benefit flowing from the decision of this Court in Milind case may, therefore, have been justified in Burde case but may not be justified in the case at hand where the appellant has not been accused of any act or omission or commission of the act like the one mentioned above to disentitle her to the relief prayed for. The reliance upon Burde case, therefore, is of no assistance to the respondent.
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.
In our opinion, the case of appellant- Chandra Shekhar Kotriwar would be governed by the principles laid down in Kavita Solunke (supra) and Dattu (supra). The caste certificate granted to the appellant in the year 1978 was cancelled in the year 2012. Among this period the appellant was working as a government servant from 1983. Thus, the events taken place in between this period cannot be ignored. We are of the view that in the above facts and circumstances, the protection against the ouster with certain restrictions was rightly granted to him by the writ Court.
Discussion on the case of Appellant- Anurag Lal:
Appellant- Anurag Lal claimed himself to be a member of ''Gond'' Scheduled Tribe. A caste certificate dated 28.6.1989 was granted to him on which he entered in State Administrative Service on 11.12.1993 against a post reserved for Scheduled Tribe. After the remand of the matter in the first round, his case was also examined by the Scrutiny Committee. Various certificates relating to many educational institutions were examined. It was found that father of appellant- Anurag Lal, namely Munnalal had studied in Middle School Manendragarh, District Korea. He passed Class 8th from the said institution on 1.4.1952. However, thereafter he again took admission in Middle School Vishrampur, Tehsil Simga, District Raipur on 17.9.1953 in Class 8th and left that institution on 21.10.1953. In the admission registered, his name was written after cutting the name of one Prem Prakash with an entry of caste Gond. Taking admission in particular school for such short span in the same class was held to be suspicious. Entry of his name in the said document i.e. in admission register was the last entry after cutting. Likewise, it was also found that in the relevant register of Manendragarh school, in which caste Telanga " " was mentioned, was manipulated and two words namely- " " & " " were scratched and " " was made ''Gond'' by necessary manipulation and ink was poured over it. Not only this, it was also found that on 4.5.2005 an affidavit was produced before the Head Master, BSP Primary School, Hirri Mines, Bilaspur (CG) and word ''Gond'' was added on that affidavit in the school document of the appellant in the year 2005.
The copy of report of Vigilance Cell was dully served upon the appellant. We find from the records that full opportunity of hearing was granted to the appellant by the Committee. Many witnesses were examined. It is after all this, the Committee has recorded finding that appellant- Anurag Lal had obtained the caste certificate by playing fraud. Even he tried to justify the issuance of caste certificate in his favour by playing fraud and indulging himself in manipulation of the old documents subsequent to the issuance of the caste certificate when the inquiry was being conducted.
It was argued by Mr. Ottwani that the school documents are kept in the custody of concerned authority, therefore, the authority would be responsible for the manipulations. The argument does not appear to be appealing. The appellant was the beneficiary of the result of the alleged manipulations, therefore, the manipulations were rightly attributed to him. That apart, what inspired the appellant to submit an affidavit in the year 2005 to the Head Master of Primary School, Hirri Mines, Bilaspur and to get an entry of caste ''Gond'' in the school register. This conduct of the appellant also supports the allegations of fraud found prove by the Committee. On due consideration of the entire evidence on record, we do not find any infirmity in the finding recorded by the Caste Scrutiny Committee that the appellant had obtained a false caste certificate by fraud. We are of the view that the learned single Judge was fully justified in affirming the findings of the Caste Scrutiny Committee.
Mr. Ottwani has vehemently argued in support of the protection granted to the appellant. He also relied on the decisions which were relied by Mr. Tiwari (Sr. Adv.). His arguments were opposed by Dy. Advocate Generals on the principles laid down in the cases referred to above.
So far as protection against ouster is concerned, the case of appellant-Anurag Lal is distinguishable from the case of appellant- Chandra Shekhar Kotriwar. The law applicable in the facts and circumstances of the case, has been discussed by us while discussing the case of appellant- Chandra Shekhar Kotriwar. In case of appellant- Anurag Lal, his caste certificate has been cancelled on the ground that he had played fraud and committed manipulations to justify the claim of he being a member of ''Gond'' Tribe. We have affirmed those findings. We are of the view that in light of the various judgments discussed supra, appellant- Anurag Lal was not entitled to get benefit of protection against ouster in view of the decisions of the Supreme Court in Kavita Solunke (supra) and Dattu (supra), which was vehemently claimed by Mr. Ottwani while advancing the argument in this regard.
Conclusion:
(I) Writ Appeals No. 388/2013 & 361/2013 filed by appellant-Chandra Shekhar Kotriwar and State of Chhattisgarh & Others both are dismissed and protection granted against the ouster, with all other directions, by the writ Court is upheld.
(II) Writ Appeal No. 528/2013 (Anurag Lal v. State of Chhattisgarh & Others) is dismissed. However, Writ Appeal No. 392/2013 (State of Chhattisgarh & Others v. Anurag Lal) is allowed and the protection granted against the ouster of Anurag Lal by the writ Court is set-aside.
No orders as to cost(s).