Chattisgarh High Court
Bhilai Steel Plant vs Ganpati on 18 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH BILASPUR
Writ Petition (S) No.4070 of 2018
1. Bhilai Steel Plant, Through its General Manager, Bhilai Steel
Plant, Bhilai, District Durg (Chhattisgarh) 491000.
2. The General Manager, Bhilai Steel Plant, (Personnel),
Bhilai, District Durg (Chhattisgarh) 491000.
---- Petitioners
Versus
Ganpati, S/o Shri M. Rammurti, Aged about 50 years,
Operator CO and CCD Bhilai Steel Plant, R/o Road S-4,
Block 27/A, Zone-2, Bhilai, District Durg (Chhattisgarh)
---- Respondent
(Cause-title taken from Case Information System)
For Petitioners : Mr. Ashish Surana, Advocate
For Respondent : Mr. Govind Ram Miri, Senior Advocate
assisted by Mr. K.R. Nair, Advocate
Date of hearing : 02.11.2022
Date of order : 18.11.2022
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Sanjay Agrawal, Judge
C A V Order
Per Arup Kumar Goswami, Chief Justice
Heard Mr. Ashish Surana, learned counsel for the petitioners.
Also heard Mr. Govind Ram Miri, learned senior counsel assisted by
Mr. K.R. Nair, learned counsel, appearing for the respondent.
2. The writ petition is filed by the petitioners, who shall
hereinafter, be referred as the employer, challenging the order dated
11.04.2018 passed by the Central Administrative Tribunal, Jabalpur
Bench, Jabalpur (for short, 'CAT') in Original Application
No.200/00056/2016, whereby the learned CAT directed reinstatement
of the respondent herein, who shall, hereinafter be referred as the
employee, in service forthwith, without any salary / back wages for the
period he had not served the Department. However, the intervening
period (from the date of dismissal till the date of reinstatement) was
directed to be regularized for the purpose of pension, etc. The
respondents therein was directed to do the needful within a period of
two months from the date of receipt of certified copy of the order.
3. The employee was appointed to the post of Plant Attendant on
23.01.1995 and he came to be confirmed on 09.02.1998. He was
appointed on the basis of a caste certificate dated 15.10.1993 issued
by the Naib Tehsildar, Rajnandgaon. Subsequently, the caste
certificate submitted by the employee was found to be forged, and
accordingly, he was removed from service by an order dated
09.05.2007 passed by the Deputy General Manager, P. (Coke Ovens)
Coke Ovens and C.C.D. Steel Authority of India, Bhilai Steel Plant,
Durg.
4. Being aggrieved, the employee filed a writ petition being
Writ Petition (S) No.3117 of 2007. The learned Single Judge of this
Court disposed of the writ petition by an order dated 07.04.2008,
setting aside the order dated 09.05.2007 holding that question of
determination of the caste cannot be examined by any authority except
the State Level Caste Scrutiny Committee, (for short, 'SLCSC') and
accordingly, the employee was held entitled to receive all the benefits
flowing from the order. However, liberty was reserved to respondents
No.5 & 6 to the said writ petition to refer the matter to the SLCSC for
decision in accordance with law laid down by the Hon'ble Supreme
Court in the case of Kumari Madhuri Patil and Another v. Additional
Commissioner, Tribal Development and Others , reported in (1994) 6
SCC 241 and State of Maharashtra and Others v. Ravi Prakash
Babulalsing Parmar and Another, reported in 2006 AIR SCW 6093.
5. The employer preferred an appeal against the said order dated
07.04.2008, being Writ Appeal No.115 of 2008. It appears that while
the employee was reinstated in service, an interim order was passed in
the writ appeal to the effect that the employee was not entitled to all
the benefits. The said writ appeal was disposed of on 25.08.2009
providing that the interim order passed on 19.06.2008 shall remain in
force till the SLCSC, to which the matter was already referred to, gives
its finding with respect to social status of the employee.
6. The SLCSC, vide an order dated 17.08.2015, held that the
employee did not belong to Pardhi caste in the State of Chhattisgarh,
and accordingly, caste certificate issued by the Naib Tehsildar,
Rajnandgaon was cancelled.
7. The employee had challenged the said order dated 17.08.2015
by filing a writ petition, numbered as Writ Petition (S) No.3815 of 2015
before this Court. In the meantime, based on the order dated
17.08.2015, the employer had cancelled the appointment order of the
employee by an order dated 18.12.2015. It is relevant to note that by
an order dated 06.01.2016, Writ Petition (S) No.3815 of 2015 was
allowed to be withdrawn with a liberty to challenge the order of removal
dated 18.12.2015.
8. The employee had challenged the said order dated 18.12.2015
before the CAT and by the impugned order dated 11.04.2018, as
discussed earlier, Original Application of the employee was disposed
of as noticed above.
9. The CAT observed that the appointment of the employee was
cancelled as the caste certificate was not in terms of the provisions of
sub-rule (2) & (5) of Rule 23 of the Chhattisgarh Scheduled Castes,
Scheduled Tribes and Other Backward Classes (Regulation of Social
Status Certification) Rules, 2013, (for short, 'Rules of 2013'). The CAT,
without there being assailment to the order dated 17.08.2015 of the
SLCSC and despite the employee having earlier abandoned the
challenge made to the decision of the SLCSC, recorded an uncalled
for finding that present was not a case of fraudulent caste certificate
being obtained by the employee for procuring appointment.
10. The CAT, in coming to the eventual conclusion, relied on the
decisions of the Hon'ble Supreme Court in Dattu Thakur v. State of
Maharashtra and Others, reported in (2012) 1 SCC 549 and Kavita
Solunke v. State of Maharashtra and Others , reported in (2012) 8 SCC
430.
11. Mr. Ashish Surana, learned counsel for the petitioners submits
that the SLCSC having held that the caste certificate of the employee
is not valid and this finding having not been set aside in a duly
constituted proceeding, the CAT committed manifest illegality in setting
aside the order of removal dated 18.12.2015. It is submitted by him
that when the employee secured appointment on the basis that he
belongs to a reserved category, invalidation of the claim of the
employee would result in the appointment being void and non-est. In
support of his submission, Mr. Surana places reliance on the decision
of the Hon'ble Supreme Court in Chairman and Managing Director,
Food Corporation of India and Others v. Jagdish Balaram Bahira and
Others, reported in (2017) 8 SCC 670. He submits that Kavita Solunke
(supra) was overruled in Jagdish Balaram Bahira (supra). He also
places reliance on the judgment of Hon'ble Supreme Court in Chief
Executive Officer, Bhilai Steel Plant, Bhilai v. Mahesh Kumar Gonnade
and Others, reported in 2022 SCC Online SC 866.
12. Mr. Govind Ram Miri, learned senior counsel, appearing for
the respondent employee supports the impugned order of the CAT. He
places reliance on the judgment of Hon'ble Supreme Court in Dattu
Thakur (supra) and the decision dated 06.09.2010, rendered in the
case of Swati v. State of Maharashtra (Civil Appeal No.7411 of
2010). He has also made a reference to the judgment in Jagdish
Balaram Bahira (supra) and in State of Maharashtra v. Milind and
Others, reported in (2001) 1 SCC 4.
13. We have considered the submissions of learned counsel for
the parties and have perused the materials on record.
14. In order to protect the interest of persons belonging to the
Scheduled Castes, the Scheduled Tribes and the Other Socially and
Educationally Backward Classes of citizens in the State from those
who fraudulently obtain false Social Status Certification, certifying that
the person belongs to these sections of populations, and to provide for
punishment for issuing and obtaining false Social Status Certification;
and for matters connected therewith or incidental thereto, the
Legislature enacted the The Chhattisgarh Scheduled Castes,
Scheduled Tribes and Other Backward Classes (Regulation of Social
Status Certification) Act, 2013, (for short, 'Act of 2013') and the State
Government appointed 29.04.2013 as the date on which the said Act
comes into force.
15. Chapter III of the Act of 2013 is under the heading "Verification
of Social Status Certificate". Section 7(1) provides that the State
Government shall constitute, by notification in the Official Gazette, one
or more High Power Certification Scrutiny Committee or Committees,
for conducting enquiry into Social Status Certificate(s) referred to it by
District Level Certificates Verification Committee under Section 6 or by
the State Government, and it shall be the duty of the High Power
Certification Scrutiny Committee to examine the report of the District
Level Certificates Verification Committee and to proceed in this matter
as prescribed under Chapter IV of the Act of 2013.
16. Chapter IV of the Act of 2013 is under the heading
"Cancellation and Confiscation of False Social Status Certificate".
Sections 8(1) provides that if after enquiry under Section 7 of the Act
of 2013, High Power Certification Scrutiny Committee is of the opinion
that, the Social Status Certificate was obtained wrongfully or
fraudulently, it shall, by an order in writing, cancel and confiscate the
certificate by following such procedure as may be prescribed.
17. Section 9(1) of the Act of 2013 provides that whoever secures
admission against a reserved seat or secures public appointment
against a reserved post meant for such Castes, Tribes or Classes by
producing a Social Status Certificate obtained wrongfully or
fraudulently, shall on cancellation of such certificate be liable to be
rusticated from the educational institution or dismissed from the public
employment, as the case may be, forthwith or be denied any other
benefit or advantage enjoyed by virtue of such admission or
appointment.
18. Section 9(4) of the Act of 2013 provides that notwithstanding
anything contained in any Act of State Legislature for the time being in
force, Degree, Diploma, Certificate or any other educational
qualification acquired by a person by obtaining admission against a
reserved seat in any educational institution, on the basis of Social
Status Certificate, which is cancelled under Section 8, shall be
deemed to have been cancelled and never been awarded.
19. In Milind (supra), respondent No.1 had joined MBBS course for
the year 1985-86 based on a caste certificate issued. As per
procedure, his caste certificate was sent for verification, whereupon a
finding was recorded that respondent No.1 did not belong to Halba
Scheduled Tribe community, and consequently, caste certificate
issued to him was rejected. Respondent No.1 therein had filed a writ
petition challenging invalidation of his caste certificate issued to him as
belonging to the Scheduled Tribe, i.e., 'Halba' caste. Decision of the
High court allowing the writ petition was put to challenge before the
Hon'ble Supreme Court. Noticing that 15 years had gone by in the
meantime and respondent No.1 had already completed the medical
course, it was observed by the Hon'ble Supreme Court at paragraph
38 that if any action was taken against respondent no. 1 at that
juncture might lead to depriving the service of a doctor, on whom
public money had already been spent, to the society, and accordingly,
it was held that the decision pronounced shall not affect the degree
obtained by him and his practicing as a doctor. However, it was made
clear that he cannot claim to belong to the Scheduled Tribe and cannot
take advantage under the provisions of the Constitution (Scheduled
Tribes) Order, 1950 any further or for any other constitutional purpose.
20. In Swati (supra), the appellant had obtained admission to BDS
course claiming herself to be belonging to Bairagi Caste. However, the
Caste Scrutiny Committee of the State, by an order dated 03.01.2007,
invalidated the said claim. The Hon'ble Supreme Court, while
dismissing the appeal preferred by the appellant against the order of
the High Court, relied on the judgment of Milind (supra), and observed
that admission of the appellant to the BDS course and completion of
the said course shall not be affected. It was also made clear that the
protection was given only in regard to the educational qualification
secured by the appellant and she shall not claim or receive any other
benefit as a person belonging to a Scheduled Tribe and none of her
relatives would be entitled to take any benefit extended to Scheduled
Tribe on the ground that the appellant had been permitted to retain the
benefit of her educational qualification.
21. In Dattu Thakur (supra), along with the Special Leave Petition
filed by Dattu Thakur, Special Leave Petitions filed by his son and
daughter were also taken up together. Their caste certificates were
invalidated by the Caste Scrutiny Committee. The same were
challenged by them by filing writ petitions, in which, High Court upheld
the finding of the Caste Scrutiny Committee. The Hon'ble Supreme
Court had noted that cancellation of the caste certificate had taken
place after 9 years of issuance and that Dattu Thakur was allowed to
continue in service by the respondents and that the other two
petitioners were allowed to continue their studies and in that
circumstance, placing reliance on Swati (supra), while dismissing the
three Special Leave Petitions, it was observed that whatever
advantage the three petitioners in the three Special Leave Petitions
may have derived on the basis of their caste certificates shall not be
disturbed and the cancellation of their respective caste certificates
would not deprive them of the benefits which they had already
enjoyed. It was, however, made clear that none of the three petitioners
in the three respective Special Leave Petitions would be entitled to
take any further advantage of reservation in future.
22. In R. Vishwanatha Pillai v. State of Kerala, reported in (2004)
2 SCC 105, the appellant, who did not belong to a designated
reserved community, obtained a caste certificate and was selected as
a Deputy Superintendent of Police on a vacancy reserved for the
Scheduled Caste. However, on a complaint, it was found that the
appellant did not belong to Scheduled Caste and ultimately, the Caste
Scrutiny Committee rejected his claim. The order of the Caste Scrutiny
Committee was upheld by the High Court and by the Hon'ble Supreme
Court. Subsequently, on an application filed by the appellant, the CAT
directed that he should not be terminated from service without
following the procedure under Article 311. The High Court reversed
that decision and the appellant was dismissed from service. Before the
Hon'ble Supreme Court, the appellant sought protection since he had
rendered nearly 27 years of service. Rejecting the submission, the
Hon'ble Supreme Court, at paragraph 15, held as follows :
"15. 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."
(emphasis supplied by us)
23. The Hon'ble Supreme Court also rejected the submission that
the order of dismissal should be substituted with an order of
compulsory retirement or removal to protect his pensionary benefits. It
was held that the rights to salary, pension and other service benefits
are entirely statutory in nature in public service. The right to salary or
pension after retirement flow 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 false caste certificate.
24. In Bank of India v. Avinash D. Mandivikar, reported in (2005) 7
SCC 690, the first respondent obtained an appointment in the service
of the bank in October 1976 on a post reserved for the Scheduled
Tribe. The Scrutiny Committee found that he did not belong to a
Scheduled Tribe and, therefore, invalidated his caste certificate.
Following the termination of his services, the first respondent moved
the High Court which accepted his plea that the initiation of
proceedings against him by the Scrutiny Committee for verification of
the caste certificate in 1987 was beyond a reasonable period. The
High Court, while allowing the plea, reinstated him in service with
back-wages. In an appeal by the employer, the Hon'ble Supreme
Court held that once a claim of the employee to belong to a Scheduled
Tribe had been rejected, the employment was no appointment in eye
of law and that he had no justification for his claim in respect of the
post he usurped. Distinguishing the directions issued in Milind (supra),
at paragraph 10, it was held as follows :
"10. The protection under the Milind's case
(supra) 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."
25. In Additional General Manager/Human Resources, Bharat
Heavy Electricals Ltd. v. Suresh Ramakrishna Burde, reported in
(2007) 5 SCC 336, the decision of a Division Bench of the Bombay
High Court which had ordered reinstatement subject to the condition
that the employee would not stake a claim to belong to the Scheduled
Tribe in future was put to challenge before the Hon'ble Supreme Court.
The claim of the employee that he belongs to the Halba Scheduled
Tribe was rejected by the Scrutiny Committee. The employee was
appointed in May 1982 to a clerical post. On 06.08.1995 the Scrutiny
Committee had invalidated the caste claim initially and again in August
2001 following an order of remand. A Writ Petition filed against the
order of invalidation was withdrawn but thereafter, relying on the
observations at paragraph 38 in Milind (supra), the employee
submitted a representation for the protection of his services. After the
representation was rejected, the employee had moved the High Court.
While construing the decision in Milind (supra), upon which the High
Court had placed reliance in coming to the eventual conclusion as
noticed above, the Hon'ble Supreme Court, while setting aside the
order of the High Court, observed as follows :
"7. 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 Milind (supra). 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 reserved category.
......................................................."
26. The Hon'ble Supreme Court in State of Maharashtra v.
Sanjay K. Nimje, reported in (2007) 14 SCC 481, considered a case
where the respondent was appointed to the service of the state in June
1995 on a claim that he belonged to the Halba Scheduled Tribe. The
Scrutiny Committee upon verifying the caste certificate, recorded in its
order of August 1989 that the employee was a Koshti (a Special
Backward Class) and not a Halba. On 07.12.1994, Koshtis were
declared to be a Special Backward Class. The respondent accepted
the findings of the Scrutiny Committee but on the basis of a
Government Resolution dated 15.06.1995, sought protection of his
service. Before the High Court, an undertaking was given by the
petitioner that he or his legal heirs / progeny would not claim any
benefit as a Scheduled Tribe candidate either in education or in
employment. The High Court allowed the petition protecting his
service. As regards the G.R. dated 15.06.1995, the Hon'ble Supreme
Court held that since the respondent was appointed on 29.06.1995,
which was after issuance of the G.R., he was not entitled to protection
in terms thereof. Moreover, adverting to Section 10 of the Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 (for short "the
Maharashtra Act of 2001"), which, amongst others, provides that
whoever not being a person belonging to any of the Scheduled
Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes of Special Backward
Category secures admission in any educational institution against a
seat reserved for such Castes, Tribes or Classes, or secures any
appointment in the Government, local authority or in any other
Company or Corporation, owned or controlled by the Government or in
any Government aided institution or Co-operative Society against a
post reserved for such Castes, Tribes or Classes by producing a false
caste certificate shall, on cancellation of the caste certificate by the
Scrutiny Committee, be liable to be debarred from the concerned
educational institution, or as the case may be, discharged from the
said employment forthwith and any other benefits enjoyed or derived
by virtue of such admission or appointment by such person as
aforesaid shall be withdrawn forthwith, the Hon'ble Supreme Court
observed that the Maharashtra Act of 2001 being a legislative Act
would prevail over any government resolution. A government
resolution may be beneficent in nature but a benefit under a
government resolution cannot be extended to a person who does not
satisfy the conditions precedent thereof. It was further held that
ordinarily a person, who has obtained appointment on the basis of a
false certificate, cannot retain the said benefit.
27. In the case of Union of India v. Dattatray, reported in (2008) 4
SCC 612, the respondent was appointed as an Assistant Professor of
Psychiatry in a government hospital on the strength of a claim that he
belongs to a Scheduled Tribe. The Scrutiny Committee found that the
claim that he belonged to the Halba Tribe was false. The High Court
upheld the invalidation of the tribe claim but held that the respondent
would not be entitled to any benefit as a member of the Scheduled
Tribe from the date of its decision. In consequence, the service of the
respondent was directed not to be disturbed. The Hon'ble Supreme
Court held that the High Court had misconstrued the decision of the
Constitution Bench in Milind (supra). Distinguishing Milind (supra) and
while setting aside the judgment of the High Court directing the
continuance of the first respondent in service, the Hon'ble Supreme
Court observed as follows :
"5...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 a
candidate who is entitled to the benefit of
reservation." (emphasis supplied by us)
28. In Yogesh Ramchandra Naikwadi v. The State of Maharashtra ,
reported in (2008) 5 SCC 652, the direction contained in paragraph 38
of the decision of the Constitution Bench in Milind (supra) was held to
be referable to the power conferred upon by the Hon'ble Supreme
Court by Article 142 of the Constitution of India.
29. The decision in the case of Kavita Solunke (supra) involved a
situation where the appellant applied for the post of a teacher in a high
school which was reserved for a Scheduled Tribe claiming to be a
Halba. She was appointed on probation in August 1995 and was
confirmed in service. The proceeding before the Scrutiny Committee
revealed that the appellant was a Koshti by caste and not a Halba as a
result of which the caste certificate was cancelled. This led to the
termination of the services of the appellant on 23.11.2008. The School
Tribunal dismissed the appeal filed by the appellant on 28.09.2008 and
the writ petition before the High Court resulted in an order of rejection.
The Hon'ble Supreme Court observed that the Scrutiny Committee had
not found that the caste certificate was false, fabricated or manipulated
and in the circumstances, it was directed that the services of the
appellant be protected but that she would not be entitled to any further
benefits on the basis of the caste certificate cancelled by the Scrutiny
Committee. It was observed as follows :
"22. Applying the above to the case at hand we
do not see any reason to hold that the appellant
had fabricated or falsified the particulars of being
a Scheduled Tribe only with a view to obtain an
undeserved benefit in the matter of appointment
as a teacher. There is, therefore, no reason why
the benefit of protection against ouster should not
be extended to her subject to the usual condition
that the appellant shall not be ousted from service
and shall be reinstated if already ousted, but she
would not be entitled to any further benefit on the
basis of the certificate which she has obtained
and which was 10 years after its issue cancelled
by the Scrutiny Committee."
30. In Jagdish Balaram Bahira (supra), the Hon'ble Supreme
Court observed that observations in Avinash Mandivikar (supra) at
paragraph 10 is an indication that paragraph 38 of the decision in
Milind (supra) was construed as consisting of directions issued under
Article 142. It was on that basis held that no case was made out for
protecting the services of a bank employee who had obtained
employment on the basis of a false claim. With regard to Kavita
Solunke (supra), it was observed that the said decision did not
indicate that the provisions of the Maharashtra Act of 2001 was
brought to the notice of the Court. Accordingly, the decisions in Kavita
Solunke (supra) as well as Shalini v. New English High School
Association, reported in (2013) 16 SCC 526, were overruled. It will be
appropriate to extract hereinbelow the conclusions, which are relevant
for the purpose of this case, as follows:
"69.1 The directions which were issued by the
Constitution Bench of this Court in paragraph 38
of the decision in Milind (supra) were in pursuance
of the powers vested in this Court under Article
142 of the Constitution;
x x x x
69.3 The decisions of this Court in R.
Vishwanatha Pillai (supra) and in Dattatray
(supra) which were rendered by benches of three
Judges laid down the principle of law that where a
benefit is secured by an individual - such as an
appointment to a post or admission to an
educational institution - on the basis that the
candidate belongs to a reserved category for
which the benefit is reserved, the invalidation of
the caste or tribe claim upon verification would
result in the appointment or, as the case may be,
the admission being rendered void or non est.
69.4 The exception to the above doctrine was in
those cases where this Court exercised its power
under Article 142 of the Constitution to render
complete justice."
31. In Mahesh Kumar Gonnade (supra), at paragraphs 17 and 19,
it was observed as follows :
"17. As we notice, the High Court disregarded
the Government's circular dated 11.01.2016
whereby the previous circular (01.10.2011) was
cancelled with the specific observation that
Milind's judgment was clarified subsequently in
Dattatray (supra), by declaring that when a person
secures appointment on the basis of a false
certificate, he cannot be permitted to retain the
benefit of wrongful appointment. In fact,
necessary actions were expected to be taken
against those who secured unmerited
appointment on the basis of false caste certificate.
Pertinently, the respondent no.1 could have (but
never did) challenge, the circular dated
11.01.2016 which required the Government to
cancel such unmerited appointment.
x x x
19. The above would show that the High Court
clearly fell into an error by granting relief to the
respondent no.1 who is disentitled to claim any
right to continue in a post earmarked for the ST
category. The ratio in Milind (supra) was
incorrectly applied in the impugned judgment
since it is not the case of the respondent no.1 that
he belongs to the ST category. According to our
understanding of the circumstances, the High
Court instead of granting equitable relief to the
Respondent no. 1, should have held that he
cannot continue to usurp the benefits meant for a
ST category person. Indeed the Division Bench
should have said "the game is up" as was
pronounced by Shakespeare in the play
Cymbeline when the character stood exposed for
what he actually was. Consequently we are of the
opinion that the Respondent no. 1 being an OBC
cannot be retained in a ST category post.
However the emoluments paid to him should not
be recovered. It is further held that the respondent
no.1 is disentitled to any pensionary benefit by
virtue of his wrongful appointment. It is ordered
accordingly. The appeal therefore stands allowed,
leaving the parties to bear their own costs."
32. In view of the above discussions, the order of the CAT dated
11.04.2018 cannot be sustained in law. Accordingly, the order dated
11.04.2018 is set aside and order of removal dated 09.05.2007 of the
employee is upheld. Resultantly, the writ petition is allowed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Sanjay Agrawal)
Chief Justice Judge
Anu
