Umapathy Ramaswamy vs The Dy. General Manager, Canara Bank, Disciplinary Section Cell and The Tamil Nadu State Scrutiny Committee, Adi Dravida and Tribal Welfare Department

V. Kanagaraj, J.—The above writ petition has been filed praying to issue a writ of certiorarified mandamus, to call for the proceedings of the

first respondent in CNC/DAC/590/CF - 350 PS dated 5.6.2002 and quash the same and direct the first respondent to reinstate the petitioner as

Clerk with all consequential benefits.

Today, when the above matter was taken up for consideration, learned counsel for the petitioner would submit that the petitioner belongs to a

Scheduled Caste community and obtained community Certificate on 5.12.1978 to that effect; that she was selected as Clerk in Telecom

department in the quota reserved for Scheduled Caste and worked in that capacity from 1979 to 1985; that on 2.11.1979, the petitioner married

one Ramasamy, who belongs to Malayali community; that according to law, the wife would embrace the husband''s community after marriage and

hence the petitioner obtained community Certificate on 27.1.84 that she is a Malayali; that she got appointment in the first respondent''s Bank as

Clerk-cum-Cashier under the Scheduled Tribe quota; that the District Level Vigilance Committee, consisting of two members, without holding

proper enquiry and without affording sufficient opportunity to the petitioner, by an order dated 24.7.2000, cancelled the community Certificate;

that the petitioner filed an appeal before the second respondent viz. the State Level Scrutiny Committee; that when the appeal was pending, the

first respondent terminated the services of the petitioner without any show cause notice; that the petitioner filed W.P. No. 18669 of 2000 before

this Court, challenging the order of termination and the said writ petition was dismissed; that the petitioner has filed W.A. No. 2258 of 2001 before

this Court and the same was admitted and is pending; that the appeal filed before the second respondent was rejected, holding that the petitioner

belongs to Scheduled Caste community only and wanted the first respondent to objectively consider the case of the petitioner for appointment in

the Scheduled Caste quota and pass necessary orders to that effect; that the first respondent without considering the case of the petitioner,

rejected her request for appointment and hence she would seek for the relief extracted supra.

In support of his submissions, learned counsel for the petitioner would rely on the decisions reported in Kumari Madhuri Patila and another Vs.

Addl. Commissioner, Tribal Development and others, , wherein it is held that the order passed by the second respondent, consists of two member

Committee, is not valid. The committee should consist of three members. He also relied on the decision reported in Mrs. Valsamma Paul Vs.

Cochin University and others, in support of his submission and submits that the respondent-Bank is not in any way prejudiced in appointing the

petitioner.

Per contra, learned counsel appearing for the first respondent would submit that as per the decision of the Supreme Court, the Bank has no

choice, but to issue the order of termination, because of the cancellation of the community Certificate; that the petitioner filed writ petition, which

came to be dismissed, after contest; that unless that judgment is set aside by the Division Bench, the termination has become final; that though the

District level committee consists of two members, the State Level Committee consists of three members, which, after giving opportunity to the

petitioner and perusal of the materials available, cancelled the community Certificate and held that a genuine SC should not be penalised for her

ignorance and requested the Bank to consider the case of the petitioner; that the Bank has considered the case of the petitioner and found that it is

impossible to change the character and hence rejected the petitioner''s request for appointment.

In support of his submissions, learned counsel for the respondents relied on the decision reported in Mrs. Valsamma Paul Vs. Cochin University

and others, , particularly paragraphs 6(e), 6(g), 10, 16, 32, 67 and the decision reported in Kumari Madhuri Patila and another Vs. Addl.

Commissioner, Tribal Development and others, .

So far as the first judgment is concerned in paragraph 6 e, it is reads thus:

...Social and economic justice is a right enshrined for the protection of society. The right to social and economic justice envisaged in the Preamble

and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular, Articles 14, 15, 16, 21, 38, 39 and 46 of the

Constitution, is to make the quality of the life of the poor, disadvantaged and disabled citizens of society, meaningful. Equal protection in Article 14

requires affirmative action for those unequals by providing facilities and opportunities. While Article 15(1) prohibits discrimination on grounds of

religion, race, caste, sex, place of birth, Article 15(4) enjoins upon the State, despite the above injunction and the one provided in Article 29(2), to

make special provision for the advancement of any socially and educationally backward classes of citizens or for the Dalits and Tribes. Equally,

while Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,

Article 16(4) enjoins upon the State to make provision for reservation for these sections which in the opinion of the State are not adequately

represented in the services under the State. Article 335 of the Constitution mandates that claims of the members of the Dalits and Tribes shall be

taken into consideration in making appointments to services and posts in connection with affairs of the Union or of a State consistent with the

maintenance of efficiency of administration....

Paragraph 10 of the judgment reads thus:

The question, therefore is: Whether a candidate, by marriage, adoption or obtaining a false certificate of social status would be entitled to an

identification as such member of the class for appointment to a post reserved under Article 16(4) or for an admission in an educational institution

under Article 15(4)? In Madhuri Patil v. Addl. Commr. Tribal Development, the appellants were daughters of one Laxman Patil who was a Hindy

Koly (forward class).They obtained social status certificates as Mahadeo Koli, Scheduled Tribe and were admitted into Medical College. When it

was found that they belonged to Forward Class, their admissions were cancelled and writ petitions were dismissed culminating in the aforesaid

judgment. This Court had held that for the purpose of entitlement to admission under Article 15(4), the identification by the President as a

Scheduled Tribe under Article 342(1) subject to the law under Article 342(2) as amended by the Scheduled Castes and Scheduled Tribes

(Amendment) Act, 1976, is conclusive. In other words, this Court had not accorded to a member of Forward Class, by obtaining a false

certificate, the status of a Scheduled Tribe. Admission given on the basis of false certificate was declared unconstitutional.

Paragraph 16 of the judgment is as follows,

The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity, to

promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers

fostering fraternity among them in an integrated Bharat. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity

of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the

citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R. Bommai v. Union of India) and

egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers,

establishment of secular socialist order becomes difficult. In State of Karnataka v. Appa Balu Ingale, this Court has held in para 34 that judiciary

acts as a bastion of the freedom and of the rights of the people. The Judges are participants in the living stream of national life, steering the law

between the dangers of rigidity and formlessness in the seamless web of life. A Judge must be a jurist endowed with the legislator''s wisdom,

historian''s search for truth, prophet''s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to

decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adapt purposive interpretation of

the dynamic concepts under the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. Social

legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law one must enter into its spirit, its

setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the

underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing

social needs. The existing social inequities or imbalances are required to be removed readjusting the social order through rule of law. In that case,

the need for protection of right to take water, under the Civil Rights Protection Act, and the necessity to uphold the constitutional mandate of

abolishing untouchability and its practice in any form was emphasised.

Paragraph 32 of the judgment reads as follows:

The immediate question arises: Whether recognition of the community is a per-condition? Though it was consistently held that recognition is a

circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the

knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light of the

constitutional philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India, on

marriage of a man and a woman, they become members of the family and are entitled to the social status as married couple, recognition per se is

not a pre-condition but entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic

status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or

both the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status.

So far as the second judgment is concerned, viz. Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others,

, it is held that,

The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of

depriving the genuine Scheduled Castes or Scheduled Tribes or OBC Candidates as enjoined in the Constitution of the benefits conferred on them

by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State

for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in

completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by

a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status

certificate. It is therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude.

One of the procedures suggested to streamline the issuance of the social status certificates, their scrutiny and their approval is that the inquiry

should be completed as expeditiously as possible preferably within such period not exceeding two months. The order passed by the Committee

shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution of India. No suit or other proceedings before any

other authority should lie. The High Court would dispose of these cases as expeditiously as possible within a period of three months.

On such arguments, the learned Government Advocate would pray to dismiss the above writ petition with costs.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner and

the respondent as well, what this court is able to assess from the writ petition is that the petitioner is seeking to quash the proceedings of the first

respondent dated 5.6.2002 whereby the Deputy General Manager, Canara Bank remarking that the petitioner''s appointment was based on her

declaration and caste certificate that she belonged to Scheduled Tribe Category. The said certificate was found to be false and cancelled by the

District Caste Verification Committee and further confirmed by the State Scrutiny Committee. In view of the above, the very recruitment itself is

void abinitio. Hence, the request for reinstatement could not be complied with as sought for by the petitioner.

It is relevant to consider the petitioner''s prayer since being confined only to reinstate the petitioner as a clerk in the first respondent bank, at

the outset, it is open to the petitioner to explain as to why the petitioner''s services were terminated. Without going into such vital aspect, it is

difficult to arrive at a conclusion regarding the refusal to reinstatement of the petitioner.

From the averments, one could understand that for having made false declaration causing petition on a false caste certificate to the effect that

the petitioner was a Scheduled Tribe, she got appointment to the post of Clerk in the first respondent Bank in the quota meant for ST and since the

District Level Committee and State Level committee have concurrently decided that the petitioner is not Scheduled Tribe, having filed a writ

petition in WP. 18669 of 2000, which ultimately came to be dismissed, now the petitioner has come forward to initiate this writ petition with

fervent hopes to get interim order or so. It is further made known by the petitioner that Writ Appeal filed against the dismissal of the writ petition is

pending before this Court itself. Unless the said Writ Appeal is disposed of, till such time, taking into consideration of the concluded decision of the

District Committee and State Committee in cancelling the Caste Certificate of the petitioner that she is belonging to the community of Scheduled

Tribe the writ court dismissed the writ petition and therefore no decision could be made out regarding reinstatement of the petitioner in the office of

the first respondent bank. Therefore the above writ petition need not have been filed by the petitioner at all since to decide the question of

reinstatement in a job as a clerk in the first respondent bank would arise only if her caste certificate as Scheduled Tribe is ascertained. So far as it

has only been cancelled by authorities concerned, question of reinstatement does not arise at all. Therefore, the only conclusion that this Court

could arrived at in the circumstances of the case is that since the refusal to reinstate her by the first respondent as per impugned order is based on

the cancellation of the Scheduled Tribe Caste Certificate, unless the same is validated by an order of the competent authorities or the Court, there

is no point in directing the first respondent bank to reinstate the petitioner. Hence, the writ petition with the above prayer has to fail and hence, the

following order:-

In result, the above writ petition is without merit and the same is liable to be dismissed as such, and is dismissed accordingly. No costs.