Hindustan Aeronautics Limited vs Hemavathy

The first respondent herein had preferred two writ petitions, in W.P.No.6383/2014, she had questioned the order of the District Caste Verification

Committee and the Appellate Authority, while in W.P.No.29850/2014, the first respondent had questioned the order of dismissal passed by the

appellant-employer. Since the orders passed in both the writ petitions arise out of the caste claim made by the first respondent, both the writ appeals

are heard and disposed of by this common judgment.

The first respondent, in response to an advertisement made by the appellant-Company, made an application seeking appointment as Engineer

(Grade- II) in a single vacant post which was reserved for Scheduled Tribe category. The first respondent furnished a caste certificate dated

14.01.1991 certifying that she belonged to ‘Jenu Kuruba’ community which falls under the Scheduled Tribe category.

It appears that the first respondent was visited with a notice dated 05.10.2005 issued by the Social Welfare Office, Mandya District, calling upon

her to appear in person and produce documents pertaining to her caste status for verification, which had been submitted by her at the time of joining

service. After enquiry the District Caste Verification Committee, by order dated 11.11.2009 held that the first respondent does not belong to ‘Jenu

Kuruba’ community but she belongs to ‘Kuruba Gowda’ community which is not a Scheduled Tribe category. The appellant-Company,

having received the order of caste verification, issued a notice to the first respondent to show cause within ten days as to why she should not be

dismissed from service. On considering the reply given by the first respondent, the appellant-Company, on holding that the first respondent had

submitted a false caste certificate, proceeded to dismiss the first respondent from service, by order dated 14.01.2014. Aggrieved by the order of

dismissal, the first respondent preferred an appeal before the Appellate Authority, Scheduled Tribes Welfare, challenging the order dated 11.11.2009

passed by the third respondent-District Caste Verification Committee. In the meanwhile, the first respondent also made an appeal before the

Chairman and Appellate Authority of the appellant-Company and the appeal came to be rejected on 04.03.2014. The first respondent filed two writ

petitions, challenging the orders of the Caste Verification Committee and the Appellate Authority thereto and the other writ petition was with respect

to the order of dismissal and order of the Appellate Authority. Both the writ petitions being allowed by separate orders, the appellant-Company is

before this Court assailing the orders passed by the learned Single Judges.

Learned Counsel for the appellant submits that a larger Bench of three Judges of the Hon’ble Apex Court, in the case ofC hairman and

Managing Director, FCI and Ors. Vs. Jagdish Balaram Bahira and Others reported in AIR 2017 SC 327 h1as considered all the earlier judgments of

the Apex Court in matters of securing appointments on the basis of false caste certificate and the consequences thereto. The learned Counsel for the

appellant would further submit that the decisions of the Apex Court in the case of State of Maharashtra Vs. Milind and Others reported in AIR 2001

SC 393, Geeta Vs. State of Madhya Pradesh & Ors. reported in AIR 2007 SCW 389,2 Ritesh Tewari and Another Vs. State of Uttar Pradesh and

Others reported in (2010) 10 SCC 677, Punjab National Bank and Another Vs. Vilas S/o Govindrao Bokade and Another reported in (2008) 14 SCC

545, Shalini Gajananrao Dalal Vs. New English High School Assocation and Others reported in (2013) 16 SCC 52, 6Bank of India Vs. Avinash D.

Mandivikar reported in (2005) 7 SCC 690, and all other decisions have been considered in Chairman and Managing Director, FCI (supra). The learned

Counsel would further submit that the basis of the contention put forth by the first respondent having regard to the Circular dated 11.03.2002, issued

by the State Government has been considered by the Hon’ble Apex Court, although with respect to Government Orders/Circulars issued by other

State Governments and Government of India and the Hon’ble Apex Court has categorically held that no Government resolution or Circular can

override constitutional or statutory norms. In the light of the latest decision of the Hon’ble Apex Court, it is contended by the learned Counsel for

the appellant that the writ petition filed by the first respondent deserves to be dismissed, while setting aside the order passed by the learned Single

Judge.

Per contra, the learned Counsel for the first respondent would submit that the school records of the first respondent evidence the fact that she

belongs to ‘Jenu Kuruba’ community which is a Scheduled Tribe category. It is vehemently submitted that the first respondent believes that she

belongs to ‘Jenu Kuruba’ community and her family and forefathers belong to the said community. In other words, it is submitted that the first

respondent has not acted with malicious intent and she could not be accused of making a false claim. She genuinely believes the information given by

her parents to be true and therefore there is no element of mens rea to hold the first respondent guilty of falsehood or criminal intent.

As an alternative submission, the learned Counsel for the first respondent would submit that the State Government had issued a Circular No.SWD

713 SAD 93 dated 11.03.2002 affording a one-time amnesty to all such persons who had secured caste certificates that they belonged to ‘Jenu

kuruba’ community or ‘Nayaka’ community which were categorised as Scheduled Tribe under the Presidential Orders. It is submitted that

the preamble to the Circular dated 11.03.2002 would clearly indicate that there was confusion prevailing in the society with respect to certain category

of communities like ‘Kadu Kuruba’, ‘Jenu Kuruba’ etc. It was admitted by the State Government that because of the prevailing

confusion, persons who belonged to ‘Kuruba’ community and ‘Kadu Kuruba’ community had secured caste certificates of Scheduled

Tribes. Therefore, as a one-time amnesty, the State Government announced the amnesty and called upon all such persons to surrender their caste

certificates and the authorities were directed not to terminate the services of such persons on the ground of submission of false caste certificates.

Further, the Circular would provide that no criminal proceedings shall continue against such persons. In the light of the said Circular, the learned

Counsel would submit that since benefit was given to several such persons, the same benefit should have been given to the first respondent also. In

this regard, the learned Counsel would submit that the appellant-Company had given such a benefit to one of the employees, while the same was

denied to the first respondent herein.

On the other hand, Sri C.Jagadish, learned Special Government Advocate appearing for the second respondent-District Caste Verification

Committee submits that the State Government issued a Circular dated 14.06.2011 clarifying that the benefit of the Circular dated 11.03.2002 cannot be

extended to Central Government employees. It was therefore submitted that the first respondent could not have sought for the benefit under the

Circular dated 11.03.2002.

We have heard the learned Counsels for the appellant, respondent No.1 and the Special Government Advocate. We have perused the writ papers

and the decisions cited by the learned Counsels.

One of us, sitting single, in a batch of matters in the case of Smt.H.R.Sumangala and Others Vs. the Addl. Director General of Police, Directorate

of Civil Rights Enforcement and Others, reported in ILR 2019 KAR 1708 had the occasion to consider similar issues. The decision has been upheld by

a co-ordinate Division Bench in W.A.No.319/2019 c/w W.A.Nos.189-193/2019.

The contention such as benefits flowing from the Circulars issued by the State Government as a one-time measure cannot be revisited; the

subsequent Circular dated 14.06.2011 issued by the State Government clarifying the position regarding Central Government employees; it is not a case

of misrepresentation or playing fraud to obtain the caste certificate and therefore, protection of saving the appointment etc., have been considered in

the said decision.

It is pertinent to reiterate that two Division Benches of this Court in the case of Paduthota Ramachandra Vs. Union of India reported in ILR 1995

KAR 2712 and The General Manager, The New India Assurance Company Ltd. and Others Vs. Sri Prakash Keshav Ganguli and Others, in

W.A.No.2828/2011 which was decided on 13.05.2014 had categorically held that the Government orders/Circulars passed by the State Government

could be simply ignored as the State Government had neither the authority nor the competence to amend or alter the Presidential orders.

Similar contention as is raised in this Writ Appeal was raised before Their Lordships in the case of Chairman and Managing Director FCI (supra).

It would be beneficial to extract paragraph-4 of the judgment, which would succinctly capture the crux of the dispute.

Paragraph-4 reads as follows:

The batch of cases with which the court is confronted involves individuals who sought the benefit of public employment on the basis of a claim to

belong to a beneficiary group which has, upon investigation been found to be invalid. Despite the invalidation of the claim to belong to a Scheduled

Caste or, as the case may be, a Scheduled Tribe of backward community, the intervention of the Court is invoked in the exercise of the power of

judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of

being protected either by the High Court (in the exercise of its jurisdiction under Article 226) or by this Court (when it discharges the constitutional

function of doing complete justice under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are

sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of

reservation in spite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended.

The Hon’ble Apex Court has painstakingly dissected all the previous judgments on the issue, starting from Kumari Madhuri Patil’s case

(supra) to Nidhi Kaim’s case (supra). It was contended before the Apex Court that mere invalidation of the caste claim by the scrutiny committee

would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments which have become final

prior to the decision of the Apex Court in State of Maharashtra Vs. Milind and Others reported in AIR 2001 SC 39.3 Protection was sought on similar

grounds that Government circulars, orders and resolutions had granted one time amnesty, while punitive action could be taken only in cases where

false caste certificates were obtained subsequent to the respective State enactments.

So far as the protection sought under Government orders is concerned, the same has been authoritatively negated by the Apex Court. In the case

of Chairman and Managing Director, FCI (supra), at paragraph No.53, it is held as under:

Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or

statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or

class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual

cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the

constitutional scheme as well as to statutory mandate. No Government resolution or circular can override constitutional or statutory norms. The

principle that Government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a

candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of

genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation

where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, Government circulars or resolutions

cannot operate to their detriment.

Finally, when the intervention of the Apex Court was invoked in exercise of the power of judicial review, under Article 142 of the Constitution, it

was held at paragraph-54 as under:

“54. ……When a candidate is found to have put forth a false claim of belonging to a designated case, tribe or class for whom a benefit is

reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring

probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those

who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated

castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. The credibility not

merely of the legal system but also of the judicial process will be eroded if such claims are protected in exercise of the constitutional power conferred

by Article 142 despite the state law.â€​

However, in the case of Jagdish Balaram Bahira, at paragraph-58 (individual case No.1) in Chairman and Managing Director, FCI (supra), the

Hon’ble Supreme Court having noticed that the respondent had retired from service and had even been paid terminal dues, and in the peculiar

facts, declined to order recovery from the respondent. In conclusion the Hon’ble Supreme Court held that the directions which were issued by the

constitution Bench of the Supreme Court in para-38 of the decision in Milind (AIR 2001 SC 393) were in pursuance of the powers vested in the

Supreme Court under Article 142 of the Constitution. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the

claim of the individual who belong to a reserved caste or tribe or class is yet to be verified by the Scrutiny Committee. Withdrawal of benefits secured

on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the

caste claim and no issue of retrospectivity would arise. Mens rea is an ingredient of the penal provisions contained in the respective legislations of the

State. Such penal provisions would apply in those situations where the act constituting the offence has taken place after the date of its enforcement.

In the present case, the District Caste Verification Committee has held that the first respondent belongs to ‘Kuruba Gowda’ community. It

is also seen in the order of the Caste Verification Committee that the first respondent’s father Sri M.Jayaram surrendered his caste certificate and

also that of his children on 23.05.2008 to the Mandya Tahsildar to secure the benefit of the Circular dated 11.03.2002. That being the admitted

position, the first respondent cannot be allowed to continue in service, in the light of the decision of the Hon’ble Supreme Court in the case of

Chairman and Managing Director, FCI (supra).

For the reasons stated above, the writ appeals are allowed and the impugned orders dated 06.09.2016 and 18.08.2016 passed by the learned Single

Judges in W.P.No.29850/2014 and W.P.No.6383/2014 respectively are set aside.