Chattisgarh High Court
Purshottam Patwar vs State Of Chhattisgarh And Others on 16 June, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No.1142 of 2008
Purshottam Patwar, S/o Shri M.P. Patwar, Aged about 36 years,
Presently working as Steno/Typist, O/o Secretary, Department of
Public Health Engineering, Mantralaya, D.K.S. Bhawan, Raipur (C.G.),
R/o Sector-1, H/19, Kashiram Nagar, Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, Through its Secretary, General Administration
Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
2. State of Chhattisgarh, Through its Secretary, Department of Public
Health Engineering, Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
3. The State Level Caste Certificate Scrutiny Committee, Chhattisgarh,
Raipur (C.G.)
4. The Commissioner, Scheduled Tribe, Scheduled Caste, Other
Backward Classes & Minority Development Department, Raipur (C.G.)
5. The Collector, Tribal Welfare, Koriya, District Koriya (C.G.)
---- Respondents
AND
Writ Petition (S) No.4971 of 2008
Purshottam Patwar, S/o Shri M.P. Patwar, Aged about 36 years,
Steno/Typist, Office of Secretary, Department of Public Health
Engineering, Mantralaya, D.K.S. Bhawan, Raipur (C.G.), R/o Sector-1,
H/19, Kashiram Nagar, Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, Through its Secretary, General Administration
Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
2. State of Chhattisgarh, Through its Secretary, Department of Public
Health Engineering, Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
---- Respondents
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For Petitioner: Mr. Aman Pandey, Advocate.
For Respondents/State: Mr. Animesh Tiwari, Deputy Advocate General.
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Hon'ble Shri Justice Sanjay K. Agrawal
Order On Board
16/06/2021
1. Since common question of law and fact is involved in both the writ
petitions, they were clubbed together and heard together and are
being disposed of by this common order.
2. The petitioner was issued caste certificate by the District Coordinator
in Scheduled Tribe (ST) category on 18-1-1993 and thereafter, he was
appointed as Steno-Typist under the ST category on 9-12-1997.
Thereafter, the Caste Scrutiny Committee verified the caste of the
petitioner and on 9-4-2002, after issuing notice to the petitioner held
that the petitioner is Kevat by caste and he does not belong to ST
category and accordingly annulled the caste certificate granted in
favour of the petitioner. Subsequently, on the basis of that order, the
Additional Collector, Distt. Koriya, on 26-10-2004, also cancelled the
caste certificate dated 18-1-1993 issued in favour of the petitioner.
Challenging legality, validity and correctness of the order declaring
him to be non-ST category, the petitioner filed W.P.(S)No.1142/2008
and thereafter, his services have been terminated by order dated 23-
8-2008 which has been challenged in W.P.(S)No.4971/2008.
3. Mr. Aman Pandey, learned counsel appearing for the petitioner in both
the writ petitions, would submit that the caste scrutiny committee did
not grant proper opportunity to the petitioner to adduce oral evidence
in terms of the decision of the Supreme Court in the matter of Kumari
Madhuri Patil and another v. Addl. Commissioner, Tribal Development
and others1 and also the Caste Scrutiny Committee did not consider
the notification of the State Government dated 7-9-1998 in which the
State of M.P. has clearly directed that coercive action should not be
taken against the persons who belong to Majhi caste and caste
1 (1994) 6 SCC 241
certificate has been issued in their favour. Even the notice issued to
the petitioner by the Caste Scrutiny Committee was not in accordance
with the decision of the Supreme Court in Kumari Madhuri Patil
(supra) which has been followed by the Supreme Court in the matter
of State of Maharashtra and others v. Ravi Prakash Babulalsing
Parmar and another2. As such, the impugned order declaring the
petitioner not belonging to ST category and the order dated 26-10-
2004 cancelling the caste certificate deserve to be set aside and
consequently, the order of termination of the petitioner dated 23-8-
2008 also deserves to be set aside.
4. Mr. Animesh Tiwari, learned State counsel, would submit that the
order of the Caste Scrutiny Committee as well as the order cancelling
the caste certificate, dated 26-10-2004 was questioned by the
petitioner before this Court in W.P.No.4347/2004 and this Court has
dismissed the said petition filed by the petitioner on 16-12-2004
declaring him not belonging to ST category and thus, cancellation of
his caste certificate has been found to be in accordance with law and
therefore the petitioner is bound by that order. As such, these writ
petitions are barred by the principle of res judicata / constructive res
judicata and the petitioner cannot be allowed to raise the point again
which has already been concluded by the earlier decision of this
Court. Accordingly, both the writ petitions deserve to be dismissed on
that ground only.
5. I have heard learned counsel for the parties and considered their rival
submissions made herein-above and also went through the records
with utmost circumspection.
6. It is not in dispute that the petitioner was issued caste certificate on
2 (2007) 1 SCC 80
18-1-1993 that he belongs to ST category and he was appointed on
the post of Steno-Typist under the ST category. The Caste Scrutiny
Committee thereafter declared that the petitioner does not belong to
ST category and further on the basis of the said recommendation of
the committee, on 26-10-2004, his caste certificate has also been
revoked by the competent authority and on the basis of revocation of
caste certificate, his services have also been terminated on 23-8-2008
which has been challenged in W.P.(S)No.4971/2008.
7. It is also not in dispute that earlier, the petitioner herein filed a
substantive writ petition namely, W.P.No.4347/2004 before this Court
questioning the order of the Caste Scrutiny Committee / the order of
the Additional Collector dated 26-10-2004 cancelling his caste
certificate on the basis of the order of the Caste Scrutiny Committee.
A copy of the order dated 16-12-2004 passed by this Court in W.P.
No.4347/2004 has been placed on record in both the present writ
petitions {Annexure P-13 at page 53 in W.P.(S)No.1142/2008 and
Annexure P-14 at page 55 in W.P.(S)No.4971/2008}, which states as
under: -
"16/12/2004
Shri C.S. Kanoje, Counsel for the petitioner.
Smt. Fouzia Mirza, Panel Lawyer for the State.
Heard on admission as well as on M.W.P.
No.4700/2004.
Petitioner in the year 1993 obtained a Caste
Certificate from the District Organizer Tribal Welfare,
Ambikapur wherein his caste was mentioned as "Manzhi".
Thereafter, the said certificate on the application of the
petitioner himself was enquired and in that enquiry show
cause notice was issued and in reply to that notice, the
petitioner admitted that in all the records the caste of his
father has been mentioned as "Kewat" and that is also
correct. He simply advanced that Kewat also includes
"Manzhi". On the basis of decision of High Power
Committee, Additional Collector, Dist. Korea, cancelled the
caste certificate obtained by the petitioner in the year 1993
vide his order dated 26/10/2004. Petitioner has challenged
that order.
Whether any person belongs to Scheduled Caste or
Scheduled Tribe that can be determined only in
accordance with the Articles 341 and 342 of the
Constitution of India and if any caste has not been included
therein to be listed as Scheduled Caste or Scheduled
Tribe, that whatever the arguments may be, cannot be
accepted as Scheduled Caste or Tribe.
Admittedly, when the petitioner himself admits that
his father has been recorded as "Kewat". In that case,
prima facie, the caste of the petitioner will be treated as
"Kewat" and the Commission coming to the conclusion
neither erred nor the Additional Collector on the basis of
the report of Commission, cancelling the caste certificate
vide impugned order violates his jurisdiction or committed
any error or passed any order causing any miscarriage of
justice.
In my opinion, there is no material to invoke the writ
jurisdiction, therefore, petition filed by the petitioner is liable
to be dismissed and is accordingly dismissed summarily.
Consequently, M.W.P.No.4700/2004 and I.A.
No.8799/2004 stand disposed of."
8. A careful perusal of the aforesaid order would show that this Court has
clearly held that the order of the Caste Scrutiny Committee declaring
the petitioner not belonging to Scheduled Tribe as well as that of the
competent authority cancelling his caste certificate has been held to
be valid and finding no merit in the writ petition, the writ petition has
been dismissed summarily. It is stated at the Bar that the order
passed in the writ petition has attained finality as it has not been
questioned further by availing further remedy available under the law.
Since the order of the Caste Scrutiny Committee and the order
cancelling the caste certificate of the petitioner, both, have been
affirmed by this Court in a duly constituted proceeding, that will
operate as res judicata for the petitioner in subsequent proceeding
and raising further argument / additional argument is also barred by
the principle of constructive res judicata and accordingly, W.P.(S)
No.1142/2008 deserves to be dismissed on that sole ground alone.
W.P.(S)No.4971/2008
9. It is the contention of the petitioner that merely because he has not
been found to be member belonging to Scheduled Tribe category and
his caste certificate has been cancelled, he could not have been
terminated from service. This submission is no longer available to the
petitioner in view of the authoritative judgment rendered by the
Supreme Court in the matter of Chairman and Managing Director
Food Corporation of India and others v. Jagdish Balaram Bahira and
others3 in which their Lordships of the Supreme Court have clearly
held that if a person had been appointed to a reserved post on the
basis of caste certificate granted in his or her favour and thereafter the
caste certificate is annulled, as a necessary consequence, his / her
service is liable to be terminated. In paragraph 48 of the report, it has
been observed as under: -
"48. The regime postulated in the judgment of this Court
in Madhuri Patil (supra) took effect from 2-9-1994, which
was the date of the judgment. Eventually in the State of
Maharashtra, these directions received legislative
recognition upon the enactment of the Maharashtra Act 23
of 2001 which came into force in the State on 18-10-2001.
However, it is important to notice that even before the State
Legislature stepped in to confer a statutory form to the
directions which were issued by this Court in Madhuri Patil
(supra) the regime, as it then obtained prior to the
enactment of the law, also envisaged consequences upon
a caste or tribe claim being found to be false upon a
verification by the Scrutiny Committee. The cancellation of
a certificate would, as a necessary consequence, involve
the invalidation of the appointment to a post or admission
3 (2017) 8 SCC 670
to an educational institution. Where a candidate had been
appointed to a reserved post on the basis of the claim that
he or she was a member of the group for which the
reservation is intended, the invalidation of the claim to
belong to that group would, as a necessary consequence,
render the appointment void ab initio. The rationale for this
is that a candidate who would otherwise have to compete
for a post in the general pool of unreserved seats had
secured appointment in a more restricted competition
confined to the reserved category and usurped a benefit
meant for a designated caste, tribe or class. Once it was
found that the candidate had obtained admission upon a
false representation to belong to the reserved category, the
appointment would be vitiated by fraud and would be void
ab initio. The falsity of the claim lies in a representation
that the candidate belongs to a category of persons for
whom the reservation is intended whereas in fact the
candidate does not so belong. The reason for depriving
the candidate of the benefit which she or he has obtained
on the strength of such a claim, is that a person cannot
retain the fruits of a false claim on the basis of which a
scarce public resource is obtained. The same principle
would apply where a candidate secures admission to an
educational institution on the basis of a false claim to
belong to a reserved category. A candidate who does so
causes detriment to a genuine candidate who actually
belongs to the reserved category who is deprived of the
seat. For that matter, a detriment is caused to the entire
class of persons for whom reservations are intended, the
members of which are excluded as a result of an admission
granted to an imposter who does not belong to the class.
The withdrawal of benefits, either in terms of the revocation
of employment or the termination of an admission was
hence a necessary corollary of the invalidation of the claim
on the basis of which the appointment or admission was
obtained. The withdrawal of the benefit was not based on
mens rea or the intent underlying the assertion of a false
claim. In the case of a criminal prosecution, intent would
be necessary. On the other hand, the withdrawal of civil
benefits flowed as a logical result of the invalidation of a
claim to belong to a group or category for whom the
reservation is intended. This was the position under the
regime which prevailed following the decision in Madhuri
Patil (supra)."
10. The aforesaid decision has been followed by the Supreme Court
subsequently in the matter of Chief Regional Officer, Oriental
Insurance Company Limited v. Pradip and another4.
11. In the light of the aforesaid decisions of the Supreme Court, the
argument that the petitioner's services could not have been terminated
on the basis of annulling of caste certificate, deserves to be rejected.
12. As a fallout and consequence of the aforesaid discussion, both the
writ petitions deserve to be and are accordingly dismissed, leaving the
parties to bear their own cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
Soma
4 (2020) 11 SCC 144
