K. Harischandra vs The New India Assurance Company Limited

B.S. Patil, J.—In this writ petition, petitioner is seeking a direction to the respondent-New India Assurance Company Limited to release all the pensionary benefits payable to him including the provident fund.

Facts leading to this writ petition, stated in nut shell are that petitioner joined services of the respondent as an Assistant on 30-12-1978. He was appointed based on the certificate issued by the Tahsildar, Karkala Taluk to the effect that he belonged to Maleru community which was treated as Scheduled Tribe. During the year 2001, Civil Rights Enforcement Cell (for short, ''the CRE cell"), Bejai, Mangaluru, issued a notice calling upon the petitioner to participate in an enquiry with regard to his caste along with all documents. It appears, this notice was issued based on a complaint given by Scheduled Caste and Scheduled Tribe Association.

Petitioner participated in the enquiry and produced the relevant documents. According to the petitioner, nothing was done till 2-12-2012, when the Additional Director, CRE Cell wrote a letter to the respondent-Company to remove him from service as he did not belong to Scheduled Tribe. The said communication issued by the CRE Cell was challenged by the petitioner before this Court in W.P. No. 5953 of 2009. Writ petition was allowed on 7-9-2011. The said order is produced at Annexure-E. This Court took note of the fact that State of Karnataka had issued a notification dated 23-1-1986 and constituted a Committee to decide existence of two communities namely Maleru and Maaleru and that it had been decided by the State Government to drop all actions against the members of community whether considered as Maleru or Maaleru, after referring to the judgment of the Apex Court in the case of M. Narayanappa v. Government of Karnataka and Another, (1998) 8 SCC 321, and the direction issued by the State Government to its authorities to drop all criminal proceedings pending against the members of the community. The Court found that action taken by the Tahsildar, in the meanwhile, cancelling the Caste Certificate issued to the petitioner based on the direction of the Additional Director of CRE Cell could not be sustained.

This Court thus disposed of the writ petition quashing the direction issued by the Additional Director, CRE Cell and the order passed by the Tahsildar cancelling the verification certificate issued in favour of the petitioner in the year 1978. It is useful to extract the observations made in paragraph 8 of the order passed by this Court in W.P. No. 5953 of 2009 which is as under:

"8. In the above facts and circumstances, the argument that by virtue of the law as laid down in State of Maharashtra v. Milind, AIR 2001 SC 393, no authority or Tribunal would have jurisdiction to vary or modify the social status granted to a Tribe or Caste by virtue of a Presidential Order and that any report by a Committee, which is yet to be furnished would, in effect, be a modification of the Presidential Order, is an argument that cannot be readily accepted. The Supreme Court in the two judgments referred to by the learned Counsel for the petitioner in M. Narayanappa v. Government of Karnataka and Another, (1998)8 SCC 321 and Union of India v. H. Ramakrishna, (1998) 8 SCC 322, in identical situations, has directed that the decision of the Committee as to the actual status of the ''Maleru'' community be awaited. In Milind''s case, the said decisions could not be said to be disturbed or deemed to have been overruled. This is fortified by the fact that while deciding the Punjab National Bank v. Vilas, (2008)14 SCC 545, the Supreme Court has again held that a notification issued by the State Government would not be incompetent. Therefore, the thrust of the argument on behalf of the first respondent to the effect that all directions and notifications issued by the State Government are invalid and would render counter to the law of the land, cannot be accepted. In any event, the same having been challenged on that ground by the first respondent and the same having been allowed to stand, it cannot be said that the petitioner is precluded from relying upon the same. The circumstance that a Committee which is addressing the very question being seized of the matter and a report being awaited from such a Committee, the question is not finally determined and the respondents proceeding to act on the basis of a report said to have been submitted by the Superintendent of Police, CREC, and the Tahsildar proceeding to act on the basis of the same in cancelling the Verification Certificate issued in favour of the petitioner in the year 1984, while the certificate issued in favour of the petitioner originally in 1978 continues to be in force and the petitioner not having been afforded an opportunity of hearing nor having been placed on notice by the Tahsildar in proceeding to cancel the certificates, would render the same bad in law. In that view of the matter, the petitioner could no longer claim the status of a Scheduled Tribe as directed by the Supreme Court in the aforesaid cases, and as stated by the learned Counsel for the petitioner, the petitioner has not claimed the status in seeking promotion in his present employment right from the year 1989 and on account of his continuation in the present service, the petitioner can, at best, continue as a General Merit Candidate and in the event, it is found as a fact, that the petitioner belonged to a forward community Maaleru and was not in a position to avail the benefit of a Scheduled Tribe status, the petitioner would have to be proceeded with appropriately at the relevant point of time. Since the matter has not attained finality in this respect, the action of the respondents is, therefore, held to be premature and not bind the petitioner.

Accordingly, the petition is allowed. Annexures-A and H stand quashed. While it is open for the respondents to initiate appropriate action if there is a finding against the petitioner in the ultimate analysis."

Thereafter, again on 28-11-2013, Tahsildar cancelled the Caste Certificate. This was challenged by the petitioner in W.P. No. 8984 of 2013. By order dated 15-7-2014, this Court allowed the writ petition setting aside the order passed by the Tahsildar holding that Tahsildar did not have jurisdiction to pass such an order in view of the judgment of the Division Bench of this Court rendered in the case of Smt. Geethanjali v. Canara Bank (A Government of India Undertaking), Head Office, Bangalore and Others, ILR 2012 Kar. 4354 because it was the District Caste Verification Committee which was the Competent Authority to look into the genuineness or otherwise of any Caste Certificate even though the same had been issued by the Tahsildar. Thereafter, Caste Verification Committee has passed an order on 18-10-2014 holding that as per the report of the Tahsildar, Karkala, dated 28-11-2013, petitioner belonged to Maaleru which was a sub-caste of Brahmin and hence, the certificate issued showing that he belonged to Scheduled Tribe was cancelled.

In the background of these facts, question that has been raised for consideration in this case is:

"Whether petitioner, who had obtained employment in the respondent-company on 30-12-1978 by producing the Caste Certificate showing that he belonged to Maaleru community and attained the age of superannuation on 3-1-2013, is entitled to claim retiral benefits?"

Question whether members belonging to Nayaka, Koli, Kuruba, Maaleru and certain others were entitled for benefit of Scheduled Tribe/Schedule Caste was the subject-matter of dispute in number of matters before this Court. At one stage, the State Government was faced with a situation as to whether persons similarly placed as that of the petitioner herein, who had been issued with such Caste Certificate, based on which, they had claimed benefit of reservation had to be proceeded against by terminating their services. The State Government having taken note of the fact that many such candidates had been issued with Scheduled Tribe Certificate on the basis that both the names i.e., maleru and maaleru and certain other castes and communities were synonyms and they belonged to Schedule Tribe, issued a notification dated 23-1-1986 constituting a committee to go into the existence of two communities and their entitlement to claim the benefit of status of Scheduled Tribe. In the meanwhile, a direction was issued to the authorities to drop all criminal proceedings and departmental actions against the candidates who had obtained appointment in Government establishments and public undertakings on the strength of such certificate obtained from the jurisdictional Tahsildar.

However, insofar as petitioner is concerned, complaint was lodged before the CRE Cell, Mangaluru, stating that he had obtained appointment by virtue of Scheduled Tribe Certificate and this made the Additional Director, CRE Cell to initiate action and write to the respondent-company to take action to remove the petitioner from service. Therefore, proceedings wore initiated against the petitioner which culminated in the orders passed by this Court in the two writ petitions referred to supra. Be that as it may, fad remains that State Government issued a Government Order bearing No. SWD 713 SAD 93, dated 11-3-2002 modifying the earlier Government Order and making it clear that benefit of reservation given to different communities vide Government Order issued earlier including to the members of Koli, Maaleru, etc. ceased to have any effect and all persons belonging to such community who had obtained Scheduled Tribe Certificate shall surrender them immediately to the issuing authority for cancellation and that they shall not be liable for penal action provided they surrender their certificate and the issuing authority shall cancel such certificate. Indeed, in the decision rendered by the High Court (Dharwad Bench) in W.P. No. 72291 of 2012, disposed of on 28-3-2012, this Court, while referring to the background of similar dispute that was raised and the various notifications that the State Government had issued, has found that Government Order dated 11-3-2002 had made it clear that: (i) enquiries pending before various Departments, Verification Committee, Appellate Authorities, CRE Cell and other authorities stood abated or dropped; (ii) action shall be taken to withdraw the cases filed before any Court; (iii) suspension orders, if any, in such cases stood revoked; (iv) pensionary benefits that were withheld shall be released. It is useful to extract paragraphs 8 and 9 of the said order passed by the Division Bench which reads as under:

"8. Taking note of this aspect and also keeping in mind the order already passed by the State Governments based on which several Public Sector

Undertakings/Banks/Corporations/Departments who and appointed many employees were initiating action against those employees whose Caste Certificates had been later on found to be incorrect on verification of the Directorate of Civil Rights Enforcement, the State Government issued a Government Order dated 11-3-2002 in G.O. No. SWD 713 SAD 93 modifying the earlier Government Order and making it clear that benefit of reservation given to different communities vide Government Order issued earlier including to the members of Koli community ceased to have any effect and all persons belonging to such community who had obtained Scheduled Tribe certificate shall surrender them immediately to the issuing authority for cancellation and that shall not be liable for penal action provided they surrendered (heir certificates and the issuing authority shall cancel such certificate. The said Government Order further made it clear that benefits of reservation obtained by such persons shall not be disturbed. In this connection, the Government Order made following four aspects very clear. It is useful to extract the same here:

Enquiries pending before various Departments, Verification Committee, Appellate Authorities, CRE Cell and other authorities stand abated or dropped;

Action shall be taken to withdraw the cases filed before any Court;

Suspension orders, if any, in such cases stand revoked;

Pensionary benefits that are withheld shall be released.

In Para 4 of the Government Order it is again made clear that appointments already made in respect of persons belonging to Pariwara, Talawar, Maaleru, Kuruba, Besta and Koli communities who had obtained employment under ST quota shall be treated as appointments under General Merit category with effect from the date of the Government Order; they shall not be eligible for any promotion or any other benefits as STs in future. However, they could claim benefits under the respective category of other Backward Classes to which they belonged as per the existing Government Order."

It thus emerges that appointments already made in respect of persons belonging to Pariwara, Talawar, Maaleru, Kuruba, Besta and Koli communities who had obtained employment under Scheduled Tribe quota shall be treated as appointments under General Merit category with effect from the date of the Government Order and they shall not be eligible for any promotion or any other benefits as Scheduled Tribes in future. It was, however, made clear in the Government Order that they could claim the benefits under the respective category of other Backward Classes to which they belonged as per the existing Government Order. The said Government Order also made it clear that separate orders shall be issued regarding the manner in which vacancy lost to Scheduled Tribes on account of Government Orders issued by the State Government to treat the aforementioned castes as synonyms of Nayaka for reservation under the Scheduled Tribes category had to be restored. It thus emerges that apparently on account of the Government Order several matters referred to Caste Verification Committee were not proceeded with and such of the employees who had secured employment under Scheduled Tribe category were allowed to continue in their employment and retire from service, but without claiming any further benefit for promotion, etc., on the basis of reservation.

However, in respect of petitioner, because of the complaint filed before the CRE Cell and as the Additional Director, CRE Cell had issued a communication to the respondent-Company to remove the petitioner from his service on the ground that he had obtained Schedule Tribe Certificate though he did not belong to Scheduled Tribe, petitioner was forced to approach this Court in the past. The caste verification committee has also proceeded with the enquiry without even referring to the Government Order dated 11-3-2002 which has made it clear that enquiries pending before various Departments, Verification Committee, Appellate Authorities, CRE Cell and other authorities stood abated or dropped.

The order of caste verification committee does not make any reference, nor does it state that petitioner had obtained Caste Certificate showing him as person belonging to Scheduled Tribe by suppressing any material factor by misrepresenting the authorities. It is nobody''s case that petitioner had misrepresented any fact in that regard while obtaining appointment. Indeed, the dispute was whether maleru and maaleru were synonyms and whether the Caste Certificate issued to persons belonging to the said castes as Scheduled Tribes could be justified. The State Government, having realised the fact that Caste Certificate had been issued in favour of persons belonging to both these castes by the Competent Authorities showing them as Scheduled Tribe, without any role played by the applicants, protected the interest of such candidates who were beneficiaries of such certificates. Thus there was no element of fraud, deceit or misrepresentation by them. Therefore, what emerges in this case from the facts involved is that petitioner had not played any fraud; he has not misrepresented any facts while obtaining the Caste Certificate. The fact that persons belonging to maaleru, regarding being had to historical facts is a sub-caste of Brahmin, hence not entitled for status of Scheduled Tribe has been realised by the authorities subsequently and it is in this background, the State Government issued a direction to all the authorities not to issue any such certificate henceforth, while at the same time protecting the interest of the candidates. In such circumstances, as held by the Apex Court in the case of Dattu Namdev Thakur v. State of Maharashtra and Others, AIR 2012 SC 360 and Kavita Solunke v. State of Maharashtra and Others, 2012 AIR SCW 4472 and in the judgment of Division Bench of this Court in W.P. No. 2870 of 2012 disposed of on 15-11-2012 (Project Director, Project Directorate of Biological Control, Bangalore and Others v. P. Vanaraju alias P. Vandaiah), it has to be staled that the petitioner, who had joined service by producing the Caste Certificate duly issued by the Competent Authority which was not obtained by practicing fraud or by way any misrepresentation and attained the age of superannuation on 3-1-2013, would be entitled for the retiral benefits, in the light of Government order dated 11-3-2002, by virtue of which, similarly placed persons have been treated as appointed under General Merit category and have been continued till they attained superannuation.

Learned Counsel for the respondent has relied upon the judgment of the Apex Court in the case of R. Vishwanatha Pillai v. State of Kerala and Others, AIR 2004 SC 1469, to contend that right to payment of salary and other benefits spring from a valid and legal appointment to the post and once it is found that the appointment is illegal and was non est in the eye of law, there is no statutory entitlement for salary including pension and other monetary benefit. In this regard he has also placed reliance on the judgment of the Apex Court in the case of Shoba Lakshmi v. Divisional Commissioner and Others, wherein it has been categorically recorded that petitioner therein had played fraud with Sahitya Academy to secure appointment against the vacancy reserved for Scheduled Tribe by producing a false Caste Certificate issued by the Tahsildar and in that background, proceedings had been initiated against her culminating in the order passed by the Deputy Commissioner cancelling the Caste Certificate issued in her favour to the effect that the Deputy Commissioner and the Divisional Commissioner had rightly found that Tahsildar, Shimoga, who had issued the Caste Certificate did not have jurisdiction to issue Caste Certificate in favour of the petitioner, so as to enable her to secure appointment against the vacancy reserved for Scheduled Tribe and that such appointment obtained based on such certificate could not be regarded as legally tenable.

In both the judgments referred above on which reliance has been placed by learned Counsel for respondent question that fell for consideration before the Apex Court was whether the employee, who was dismissed from service based on the findings recorded by the Caste Verification Committee holding that he did not belong to scheduled caste and the Caste Certificate obtained by him was illegal, was entitled for benefit of protection under Article 311 of the Constitution of India and the rules framed thereunder. The Apex Court answering the said question has found that on facts the said appointment had been obtained by the candidate concerned based on a false Caste Certificate and therefore, after giving him opportunity, Competent Authority had held that the Caste Certificate obtained was false and deserved to be cancelled and hence, he was dismissed from service. Such order of dismissal, it was held, would not entitle the person who occupy the civil post in civil service to claim benefit of protection under Article 311 of the Constitution. The Apex Court has observed in this context in R. Vishwanatha Pillai''s case that misconduct alleged against the appellant therein was that he had entered service against reserved post meant for Scheduled Caste/Scheduled Tribe on the basis of a false Caste Certificate and when he was appointed as Deputy Superintendent of Police during the year 1977, he was considered as person belonging to Scheduled Caste. This was found to be wrong and his appointment was treated as cancelled and this action not having been taken for any misconduct of the person concerned during his tenure as civil servant, but on the finding that he did not belong to Scheduled Caste as claimed by him before his appointment to the post, he was not entitled for the safeguards provided under Article 311 of the Constitution.

Facts involved in the present case are totally different and have no parallel to the (acts involved in the cases referred above. There is no element of fraud, misrepresentation or deceit involved in this case. In fact petitioner has been subsequently treated as a General Merit Candidate and has not claimed or given any promotion treating him as reserved candidate. State has corrected the mistake that occurred in treating this caste as Scheduled Tribe after appointing a committee and examining all the historical facts.

In view of the judgment rendered by the Division Bench of this Court in W.P. No. 2870 of 2012, disposed of on 15-11-2012 wherein reliance has been placed on the two judgments of the Apex Court in the cases of Dattu Namdev Thakur v. State of Maharashtra and Others, AIR 2012 SC 360 and Kavita Solunke v. State of Maharashtra and Others, 2012 AIR SCW 4472, and having regard to the tact that the official who has since retired from service had not obtained the appointment by misrepresenting any fact regarding his caste he cannot be penalised by withholding his retiral benefits. Therefore, contentions urged by Counsel for respondent are not tenable.

Contention of the Counsel for respondent that as petitioner was appointed by the New India Assurance Company, a public undertaking not falling within the control and jurisdiction of the State Government, the Government Orders or Government Notifications issued saving the appointments made based on the Caste Certificate issued in favour of persons belong to maaleru caste showing it as Scheduled Tribe have no application and therefore, the respondent is entitled to take action against the petitioner in accordance with law to deny the retiral benefits is concerned, it has to be slated that as is evident from the pleadings and materials on record, petitioner has not obtained the Caste Certificate by misleading the authoritit''s or playing fraud against them. The Tahsildar, Karkala, has issued the Caste Certificate and indeed, as is evident from the Government orders such Caste Certificates were issued in favour of persons belonging to Maleru/Maaleru treating them as Scheduled Tribe. Petitioner has served in the respondent-company from 30-12-1978 and retired on 3-1-2013 on attaining the age of superannuation. In such circumstances, irrespective of whether the State Government notification applies to the respondent-company or not, significant aspect being the conduct of the petitioner i.e., absence of any misrepresentation or fraud on his part in obtaining the Caste Certificate, he cannot be denied benefit to which he is entitled upon his retirement. It has to be, however, made clear that action of the authorities in cancelling the Caste Certificate and in holding that he does not belong to Scheduled Tribe pales into insignificance as it becomes irrelevant for the purpose of the case of the petitioner. However, I must hasten to add that he cannot make use of the Caste Certificate for any other purpose.

In the result and for the foregoing reasons, this appeal is allowed. Respondent is directed to pay the retiral benefits to which petitioner is entitled within two months.