Kalawati Ramtek vs State of M.P. (now CG) and Others

Pritinker Diwaker, J.�Challenge in the present petition is to the orders dated 19.7.2000 (Annexure A-28) and 24.7.2000 (Annexure A-29) passed by the Project Officer, Integrated Tribal Welfare Department, Ambikapur and the Collector Sarguja, respectively. By order dated 19.7.2000 the Project Officer has cancelled the caste certificate dated 1.3.1989 issued in favour of the petitioner on the ground that she had obtained the same fraudulently showing herself to be of Kori caste which comes within the scheduled caste category whereas by order dated 24.7.2000 her services have been terminated on the ground that she secured the appointment on the basis of a false caste certificate showing her to be belonging to Scheduled Caste category though in fact being Bania by caste she belongs to OBC category. Facts of the case in brief are that under the special recruitment drive for people belonging to the SC/ST category, the petitioner herein had also applied for the post of Assistant Grade-II (for short "AG-II") showing herself to be belonging to SC category and subsequently she was selected as such. According to the petitioner, prior to marriage she was Bania by caste which comes within the OBC category but after marriage with one Samru Ramtek belonging to SC category, she also attained the status of scheduled caste and being so obtained the caste certificate (Annexure A-3) from the office of Project Officer, Tribal Welfare Department, Ambikapur showing her to be Kori by caste falling in SC category. On the basis of caste certificate (Annexure A-3), on 03.10.1989 vide Annexure A-7 she was appointed on the post of AG-II against the reserved vacancy which was to be filled-up by the candidates belonging to SC category. From the pleadings it appears that after certain complaint against the petitioner with regard to securing appointment against the post meant for SC category though she did not belong thereto, a question was raised in the State Assembly and pursuant to that certain information was sought from the petitioner on 09.07.1999 (Annexure A-13). On 12.07.1999 a show-cause notice (Annexure A-26) was issued to the petitioner asking her to explain as to why her caste certificate showing her to be Kori by caste falling within the SC category, be not cancelled when she did not belong to the said caste. Reply to the said show-cause notice was submitted by the petitioner on 17.07.2000 (Annexure A-27) mentioning that as she married a person belonging to SC category, the caste certificate was issued in her favour showing her as Kori by caste which falls within the SC category and being so she was not at fault in obtaining the caste certificate. Her reply also mentions that there was no suppression of any fact on her part before the authority issuing the caste certificate and therefore she cannot be held responsible in any manner if such certificate has been issued in her favour. On 19.07.2000 vide Annexure A-28 the caste certificate of the petitioner was cancelled and consequently on 24.07.2000 vide Annexure A-29 her appointment too resulted in termination. It is these two orders which are assailed in this writ petition.

Counsel for the petitioner submits-

"(i) that before marriage the petitioner was Bania by caste which comes within the OBC category;

(ii) that on 15.11.1987 she got married to Samru Ramtek belonging to SC category and therefore after marriage she has also attained the said status and therefore the Project Officer, Tribal Welfare Department has rightly issued the caste certificate showing her to be Kori by caste falling in SC category;

(iii) that as the petitioner married Samru Ramtek belonging to an untouchable caste, an appreciation certificate (Annexure A-5) was also issued in her favour by the Tribal Welfare Department and thus for all practical purposes she has attained the status of scheduled caste;

(iv) that though the petitioner was appointed against a post meant for SC category under the special recruitment drive launched by the State Government, she cannot be said to be at fault as there was no suppression on her part that her original caste is Bania falling in OBC category;

(v) that once the certificate has been issued in favour of the petitioner after examining all the aspects of the matter, no adverse inference can be drawn against her;

(vi) that during service the petitioner was also promoted on the post of Upper Division Clerk (for short "UDC") and if any adverse order is passed against her at this stage she will be in great difficulty;

(vii) that the appointment order was issued in favour of the petitioner on 03.10.1989 whereas the order terminating her services was passed on 24.07.2000 but pursuant to the stay order passed by the State Administrative Tribunal dated 04.08.2000 she is still performing her duties;

(viii) that if the petitioner is ousted after putting in around 25 years of service she would be in lurch resulting in an irreparable loss to her and her family. Placing reliance on the order dated 08.04.2013 passed by this Court in WP (S) No. 1195/2012 counsel for the petitioner submits that in future the petitioner may not be given any benefit of Kori caste which comes within the SC category but her appointment may be protected treating her to be the candidate of OBC category. In support of his contentions, counsel for the petitioner placed reliance on the decisions of the Apex Court in the matter of State of Maharashtra Vs. Milind and Others, , in the matter of Dattu Thakur Vs. State of Maharashtra and Others, , in the matter of Kavita Solunke Vs. State of Maharashtra and Others, and on the order of Punjab and Haryana High Court dated 13.10.2009 in CWP No. 15723/2009 (Rita K. Singh v. New India Assurance Co. Ltd.)"

Supporting the orders impugned it has been submitted by the counsel for the respondents as under :

"(i) that caste of a person is determined on the basis of birth and not on the basis of his/her marital status;

(ii) that originally the petitioner is Bania by caste which comes in OBC category and therefore under no circumstance a certificate can be issued in her favour declaring her to be of Kori caste falling within the SC category;

(iii) that the caste certificate annexed to the writ petition has been issued by the Project Officer who is not competent to do so and it can be issued by the revenue authorities only;

(iv) that the caste certificate (Annexure A-1) has been issued by the revenue authorities but showing her to be Bania by caste which comes within OBC category;

(v) that on the basis of certificate showing her to be Kori falling in SC category the petitioner was appointed in the special recruitment drive meant for SC/ST candidates only, and had the correct facts been disclosed, she could not have secured the appointment;

(vi) that the orders impugned (Annexures A-28 and A-29) are strictly in accordance with law and do not suffer from any legal flaw;

(vii) that appointment order was cancelled after giving due opportunity to the petitioner and once her caste certificate itself has been found forged/false, she cannot derive any benefit of the same.

(viii) Countering the submission of the counsel for the petitioner that before passing the orders impugned the departmental enquiry should have been conducted, it is submitted by the State counsel that looking to the facts of the case in hand, conducting departmental enquiry would have been a futile exercise because whatever stand the petitioner has taken before this Court, she, at best, would have used the same in her defence before the department also.

(ix) State counsel submits that as soon as the complaint was received regarding appointment of the petitioner and question was raised in the State Assembly, reply was sought from her and on receipt thereof the orders impugned were passed. He submits that mere continuation of the petitioner in service for 14 long years by virtue of protective order of the State Administrative Tribunal does not entitle her to further continue on the post.

(x) According to the State counsel in catena of decisions the Apex Court has categorically held that any appointment secured on the basis of false caste claim, does not make him/her entitled to continue in service. He further submits that the order passed by this Court in WP (S) No. 1195/2012 (reported in 2013 Lab IC 3143 (Chh)) is quite distinguishable because the facts of the present case are entirely different from the said case and further that number of important decisions of the Apex Court holding entirely otherwise, have not been taken into consideration while passing the said order. He submits that even the judgments of Supreme Court in State of Maharashtra Vs. Milind and Others, ; in Kavita Solunke Vs. State of Maharashtra and Others, , in Dattu Thakur Vs. State of Maharashtra and Others, cited by this Court while writing the order, are altogether different and do not clinch the issue involved herein."

Heard counsel for the parties and perused the documents on record.

There is no dispute that the petitioner was appointed as AG-II on the basis of caste certificate (Annexure A-3) issued in her favour by the Project Officer, Tribal Welfare Department and that her appointment was made in special recruitment drive launched to fill-up the posts through the candidates hailing from SC/ST category only. Had the petitioner not been in possession of caste certificate (Annexure A-3) showing her Kori by caste which comes in the SC category, she would not have secured appointment. Said caste certificate appears to be have been obtained by the petitioner only on the basis of her marriage to a person belonging to scheduled caste category. It is also not disputed that before marriage the petitioner was Bania by caste which comes within OBC category.

It is a settled legal position that a person acquires the caste status on the basis of his/her birth and not on the basis of subsequent development like getting married to a person belonging to the other caste. In the matter of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Others, it has been held by the Apex Court as under:

"10. What then remains is the fact that the appellant though assigned the caste of her father Murahari Rao, namely, the Sistu Karnam community, had married a tribal belonging to the Bhagatha Community. On the basis of this marriage, it is argued that she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community. It is in that context that the decision in N.E. Horo Vs. Smt. Jahanara Jaipal Singh, was relied on. It is also contended that the decision in Horo (supra) related to an election dispute and consequently, the ratio of that decision should govern the present case. We have already indicated that there is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha Community or the concerned Panchayat or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul (Mrs.) v. Cochin University and others (supra), supports this view. Neither the fact that a non-backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a non-backward to claim reservation in terms of Articles 15(4) or 16(4) of the Constitution. Their Lordships after noticing Bhoobun Moyee v. Ram Kishore, (1865) 10 MIA 279 , and Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, (1879-80) 7 IA 212 , held that a woman on marriage becomes a member of the family of her husband and thereby she becomes a member of the caste to which she has moved. The caste rigidity breaks down and would stand as no impediment to her becoming a member of the family to which the husband belongs and to which she gets herself transplanted. Thereafter, this Court noticed that recognition by the community was also important. Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court should not be extended to the constitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the really underprivileged and not those who come to the class by way of marriage. To the extent the decision in Horo (supra) can be said to run counter to the above view, it cannot be accepted as correct. Even otherwise, in the absence of evidence on the relevant aspects regarding marriage in tribal form and acceptance by the community, the decision in Horo (supra) cannot come to the rescue of the appellant. On a consideration of the relevant aspects, we are of the view that whether it be a reservation under Articles 15(4) or 16(4) or 330 and 332, the said reservation would benefit only those who belong to a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage, like the appellant in this case. Thus, in our view, the High Court was fully justified in coming to the conclusion that the appellant could not claim the right to contest a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of her marriage to a person belonging to a Scheduled Tribe.

Further in the matter of Sandhya Thakur Vs. Vimla Devi Kushwah and Others, it has been held by the Apex Court as under :

"2. In the light of the decision in Mrs. Valsamma Paul Vs. Cochin University and others, and our decision rendered today in Civil Appeal Nos. 4413-14 of 2003, which were heard along with this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be 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. Therefore, it is not possible to accept the argument that the appellant was entitled to contest a seat reserved for a backward community merely because of her marriage to a person belonging to the Namdev community or caste. We also see no reason to differ from the High Court in its view that the Circular dated 12.03.1997 was not restricted in its operation to employment and admission to an educational institution, but was also relevant and applicable in elections to local bodies. It is, thus, found that both the reasons given by the High Court for affirming the decision of the District Judge setting aside the election of the appellant are sustainable. In view of this we have no hesitation in confirming the decision of the High Court and in dismissing this appeal. Hence, we dismiss this appeal with costs."

In the present case, once the petitioner was Bania by caste which falls within the OBC category, under no circumstance she could acquire the status of scheduled caste just because she got married to a person belonging to that category. Yet another important aspect of the case is that the caste certificate has been issued by the Project Officer, Tribal Welfare Department and not by the revenue authorities as is required under the law. Even the petitioner has not disputed that before marriage she belonged to Bania caste falling within the OBC category and only after marriage with Samru Ramtek belonging to Kori caste which comes within the category of scheduled caste she acquired the status as such. Considering the pleadings made by the parties, this Court has no hesitation to hold that by caste the petitioner is Bania which comes in OBC category and being so she cannot at all be treated as a scheduled caste candidate.

The next question to be decided by this Court is as to the fate of the services of the petitioner. True it is that the petitioner is continuing in her services since 1989 but for last 14 years she is in service only on the strength of interim order dated 4.8.2000 passed by the State Administrative Tribunal. In the matter of Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and Others, it has been held by the Apex Court as under :

"13. Similarly, the plea regarding tendering 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 cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity" nor the Court would be justified to exercise equity jurisdiction in his favour. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. (See: R. Vishwanatha Pillai Vs. State of Kerala and Others, Bank of India and Another Vs. Avinash D. Mandivikar and Others, , Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, , Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and Others, and Bhaurao Dagdu Paralkar Vs. State of Maharashtra and Others, .

Having considered the matter in the light of the afore-stated 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 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."

Further clarifying the applicability of Milind''s case (supra) it has been held by the Apex Court in the matter of Union of India (UOI) Vs. Dattatray Mendhekar and Others, as under:

"5. State of Maharashtra Vs. Milind and Others, related to a medical college admission. The question that arose for consideration in that case was whether it was open to the State Government or Courts or other authorities to modify, amend or alter the list of scheduled tribes and in particular whether the '' Halba-Koshti'' was a sub-division of ''Halba'' tribe. This Court held that it was not permissible to amend or alter the list of scheduled tribes by including any sub-divisions or otherwise. On facts, this Court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a scheduled tribe student of a medical seat, the benefit of that seat could not be offered to scheduled tribe student at that distance of that time even if respondent''s admission was to be annulled; and that if his admission was annulled, it will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by respondent or his practice as a doctor but made it clear that he could not claim to belong to a scheduled tribe. But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for scheduled tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe of employment. In such a situation the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by the candidate who is entitled to the benefit of reservation.

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 Vs. Milind and Others, . 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 the 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 competed 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."

Further, in the case of Bank of India and Another Vs. Avinash D. Mandivikar and Others, it has been held by the Apex Court as under :

"6. Respondent No. 1 - employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate.

It was urged by learned counsel for the respondent No. 1-employee that there was no fraud practiced and it was, in fact, under a bona fide belief that the claim was made and there is no finding about any fraud having been practiced by the employee. The Scrutiny Committee examined the various documents and came to a definite conclusion that documents were manipulated to present false claim.

Stand of the respondent No. 1-employee is to the effect that he has put in nearly three decades of service and has about three years to go before retirement, and in terms of the High Court''s order he has been denied promotion. Therefore, the order of the High Court is an equitable order.

A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai Vs. State of Kerala and Others, to be inconsequential. In para 19 it was observed;

"It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."

The protection under the State of Maharashtra Vs. Milind and Others, cannot be extended to the respondent No. 1- employee as the protection was given under the peculiar factual background of that case. The employee concerned was a doctor and had rendered long years of service. This Court noted that on a doctor public money has been spent and, therefore, it will not be desirable to deprive the society of a doctor''s service. Respondent No. 1- employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him."

So far as question of conducting departmental enquiry before cancelling her caste certificate and then terminating her services is concerned, the record reveals that a show cause notice was given to the petitioner which was even duly replied by her. From the beginning the case of the petitioner has been that she acquired status of scheduled caste only after marriage to Samru Ramtek belonging to scheduled caste category. The petitioner has not disputed that before her marriage to Samru Ramtek she was Bania by caste falling within the OBC category. Even assuming that the proper departmental enquiry was conducted, the reply of the petitioner would have been the same as the reply to the show-cause notice. Thus, keeping in view the fact that the show cause notice was already issued to the petitioner which was duly replied to by her, the departmental enquiry becomes a useless formality.

Law in respect of compliance of principle of natural justice is that looking to the facts and features of each case it has to be decided by the Court whether observance of that rule was necessary for a just decision of the case and if ultimately it is found that by giving opportunity of hearing to the affected employee, possibility of some different finding to be recorded was there or that non-affording of such opportunity of hearing is likely to cause some prejudice to the affected person, such compliance is very much warranted.

Petitioner was well aware that she was belonging to OBC category and therefore under no circumstance she could secure the job which is meant for SC category. As already held, merely by marrying a person belonging to SC category, the petitioner does not get the right to work on the post meant for a candidate belonging to SC category. Though technically it cannot be said that the petitioner has played fraud by securing appointment but the fact remains that being of OBC category, she has deceived the authorities and obtained appointment. In such a case where the consistent stand of the petitioner is that she was belonging to OBC category before marriage, it was not incumbent on the part of the respondents to conduct regular departmental enquiry against her because it would have been a futile exercise in view of the decision of the Apex Court in the matter of R. Vishwanatha Pillai Vs. State of Kerala and Others, , relevant portion of which reads as under:

"12. Article 311 provides that a member of a civil service of the Union or the State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. That the employee shall not be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and give a reasonable opportunity of being heard in respect of those charges. In exercise of the power conferred by sub-section (1) of Section 3 of the All India Services Act, 1951, the Central Government, in consultation with the Governments of the States concerned, framed the All India Services (Discipline and Appeal) Rules, 1969. These Rules lay down the detailed procedure as to the manner in which the action is required to be taken against a delinquent public servant. Relying upon the Article 311 and provisions of the Rules, it was contended by Shri Ranjit Kumar, learned senior counsel for the appellant, that the service of the appellant could not be terminated without following the procedure laid therein.

We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts, we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry, the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes, another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.

This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment, he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate, he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court, he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation, Article 311 of the Constitution is not attracted at all."

Further, the legal position with respect to compliance of principle of natural justice is that the Court of law should not insist on the same if ultimately it is going to be a useless formality. Taking support of its earlier decision in the matter of Aligarh Muslim University and Others Vs. Mansoor Ali Khan, , it has been held by the Apex Court in the matter of Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, , as under :

"29. In Aligarh Muslim University and Others Vs. Mansoor Ali Khan, , the law is stated in the following terms:

"25. The ''useless formality'' theory, it must be noted, is an exception. Apart from the class of cases of ''admitted or indisputable facts leading only to one conclusion'' referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this court in M.C. Mehta Vs. Union of India (UOI) and Others, referred to above. This court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper in these issues. In the ultimate analysis, it may depend upon the facts of a particular case."

In Karnataka State Road Transport Corporation and Another Vs. S.G. Kotturappa and Another, , this Court held

"The question as to what extent principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straightjacket formula. The principles of natural justice are furthermore required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."

In Punjab National Bank and Others Vs. Manjeet Singh and Another, , this court opined

"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice."

In P.D. Agrawal Vs. State Bank of India and Others, , this court observed :

"30. The principles of natural justice cannot be put in a straightjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent times also undergone a sea change."

It was further observed :

"39. Decisions of this Court in S.L. Kapoor Vs. Jagmohan and Others, whereupon Mr. Rao placed strong reliance to contend that non-observance of the principles of natural justice itself causes prejudice or the same should not be read ''as it causes difficulty of prejudice'', cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decision of this Court in State Bank of Patiala and others Vs. S.K. Sharma, and Rajendra Singh Vs. State of Madhya Pradesh and others, , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alterm partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was more technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. (See Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, , and State of U.P. Vs. Neeraj Awasthi and Others, . See also Mohd. Sartaj and Another Vs. State of U.P. and Others, .

The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy as is well known should not be misplaced."

Thus in the case in hand where the petitioner has not been able to substantiate as to what new material she would have brought in support of her stand had she been provided an opportunity of hearing by the respondents and no prejudice is shown to have been caused to the petitioner due to non-compliance of the principle of natural justice and that too only one conclusion was possible even after such compliance, writ for setting aside the order impugned cannot be issued because the principle of natural justice is not meant to be applied in vacuum. Even otherwise, once it is held that the caste certificate of the petitioner was not genuine, applicability of Article 311 of the Constitution of India becomes an impossibility. However, issuance of show cause notice and reply given thereto by the petitioner is not in dispute.

As far as the order passed by this Court in Chandra Shekhar Kotriwar Vs. State of Chhattisgarh and Others, cited by the petitioner is concerned, it would not be of any help to the petitioner because each case is required to be considered on its own factual background. That apart, it seems that the subsequent pronouncements of the Apex Court have not been brought to the knowledge of this Court at the time of passing of order in the said case wherein it has been categorically reiterated that the appointment obtained on the basis of a false caste certificate is liable to be terminated as it deprives a genuine candidate to be appointed against the post which is meant for him/her and no sympathy can be available to such fraud playing persons.

Considering all the aspects of the matter in the light of the judicial pronouncements of the Apex Court which consistently hold the field, this Court arrives at the conclusion that the orders impugned cancelling the caste certificate of the petitioner and ultimately terminating her services are fully justified and cannot be interfered with by this Court even though the petitioner has put in more than two decades of uninterrupted service and her ouster at this stage would pose a peril for her and her family. Petition thus fails and is dismissed accordingly. However, payment already made to the petitioner by way of salary or whatever would not be liable for recovery at the hands of respondents while executing this order.