Jayashree G. Naik vs Union Of India And Ors.
2001 Latest Caselaw 1948 Del

JUDGMENT

Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner seeking for quashing of the show cause notice issued by respondents 3 & 4 directing the petitioner to show cause as to why she should not be reverted back to the clerical cadre. In the writ petition, the petitioner also seeks for quashing and setting aside the proceedings initiated and concluded by the Tehsildar, respondent No. 2 whereby the Scheduled Tribe certificate issued to the petitioner was cancelled.

2. The petitioner joined the clerical cadre int he respondents 3 & 4 bank on 30.12.75. It is alleged that the petitioner married a Scheduled Tribe on 9.10.1978 and thereafter she was accepted sone of the members of the said community and, therefore, laid a claim that she has for all intent and purpose has become a member of the scheduled tribe. The father-in-law of the petitioner filed an affidavit on 11.3.1983 to the effect that the petitioner is a member of the schedule tribe community and on the basis of the aforesaid affidavit, the Tehsildar, Puttur, Karnataka issue a scheduled tribe certificate to the petitioner on the basis of the aforesaid declaration filed by the father-in-law of the petitioner. The aforesaid certificate issued on 11.3.1983 declares the petitioner to be belonging to the scheduled tribe community. On the basis of the aforesaid certificate, the petitioner submitted an application for consideration of her case in the special promotion test conduced exclusively for scheduled castes and scheduled tribes categories. The case of the petitioner was also considered on the basis of the particulars furnished by the petitioner in the application submitted to the respondent bank. The petitioner was selected and was promoted to the post of Assistant Manager as against scheduled tribe quota, on 9.6.83. The respondents, however, brought to the knowledge of the petitioner by letter dt. 26.2.1983 that all promotions shall be subject to verification of caste certificate and an employee who is promoted on the strength of his/her statement that he/she belongs to scheduled caste/scheduled tribe categories, would be liable for termination in accordance with relevant rules and regulations, if after verification it is found that the claims of scheduled casted/scheduled tribes are found to be false. In terms thereof, the respondent bank issued a letter to the petitioner on 10.5.1984 directing her to produce her caste certificate for verification. In response to the said communication, the petitioner submitted her caste certificate to the respondent bank, which was considered and during the verifications made by the respondents bank, it came to light that the aforesaid certificate issued to the petitioner, treating her as a member of the scheduled tribe community, was cancelled by the Collector, Puttur, Karnataka. Accordingly, the aforesaid show cause notice dt. 27.6.1984 was issued to the petitioner by the respondent bank intimating the petitioner that the declaration made by her as belonging to scheduled tribe category in her application submitted in response to Circular No. 51/83/BC/PER/14/HRD, on the basis of which she was promoted to the officer cadre, was not true and correct. Accordingly, she was asked to show cause as to why she should not be reverted to clerical cadre. Immediately, on receipt of the aforesaid communication the petitioner filed the present petition in this court seeking for the aforesaid reliefs from this court.

3. While issuing notice, this court passed an interim order directing the respondent bank not to demote the petitioner till further orders and accordingly till date the petitioner continues to hold the said officer cadre post.

4. Mr. Rishikesh, appearing for the petitioner submitted that the enquiry by the Collector, Puttur, Karnataka was held behind the back of the petitioner and without issuing any notice to her and, therefore, the said enquiry initiated and conducted by the Collector, respondent No. 2 herein, should be set aside and quashed. It was also submitted by him that respondents 3 & 4 could not have issued the said show cause notice to the petitioner as the petitioner is entitled to the benefits available to a member of the scheduled tribe community as for all intent and purposes, she has become a member of the said scheduled tribe community after her marriage and she having been accepted by the said community.

5. In support of his contention, Mr. Rishikesh relied upon the decisions of the Supreme Court in N.E. HORO v. SMT. JAHAN ARA JAIPAL SINGH , KHAZAN SINGH v. UNION OF INDIA reported in AIR 1980 Delhi 60 and K.S. AMEENA SHAPIR v. STATE OF TAMIL NADU AND ORS. reported in 1983 Labour Industrial Cases 1674.

6. Counsel appearing for the respondents 3 & 4, however, submitted that so far cancellation of the scheduled tribe certificate to the petitioner is concerned the same was one by the Collector, Puttur, Karnataka on receiving definite information that before issuance of the said certificate no verification was done by the competent authority and that the said certificate was issued only on the basis of the affidavit filed by the father-in-law of the petitioner on 11.3.1983 and peculiarly enough the said certificate was issued on 11.3.1983 declaring the petitioner to be belonging to the scheduled tribe community only on the basis of the declaration filed by the father-in-law of the petitioner, without making any further enquiry. He also submitted that the said respondent No. 2 is an officer of the Government of Karnataka and is discharging his duties beyond the territorial jurisdiction of this court and, this court cannot exercise any jurisdiction in respect of the mater relating to cancellation of the said certificate of the petitioner. He further submitted that the petitioner could not have claimed to be a member of the scheduled tribe community as she was born and brought up and belongs to a forward class community. In support of his contention, counsel relied upon the decision of the Supreme Court in VALSAMMA PAUL v. COCHIN UNIVERSITY AND ORS. and T. RAJESHWARI v. VICE-CHANCELLOR-CUM-CHAIRMAN, SREE VENKETESWARA UNIVERSITY reported in 1999 Labour Industrial Cases 1205.

7. In the light of the aforesaid submissions of the counsel appearing for the parties, I have also considered the records of the case placed before me. The petitioner was born in a forward class community and she joined the bank, namely, respondents 3 & 4 in the clerical cadre as a forward class candidate. At that stage she did not clam the benefit, which is available to a scheduled tribe candidate. The petitioner joined the bank on 30.12.1975 and got married allegedly to a scheduled tribe on 9.10.1978. The petitioner obtained a certificate from the Tehsildar, Puttur, Karnataka declaring the petitioner as belonging to scheduled tribe community, on 11.3.1983. It is also established from the records that the aforesaid certificate was issued on the basis of an affidavit filed by the father-in-law of the petitioner, which is also dt. 11.3.1983. Therefore, it is clearly established that the aforesaid certificate was issued by the Tehsildar, Puttur, Karnataka exclusively based on the affidavit filed by the father-in-law of the petitioner and without making any further enquiry in respect of the same. Interestingly enough, the process for selection and the special promotion test conducted exclusively for scheduled castes/scheduled tribes categories was held and considered near about the same time. It is, thus, proved and established that in order to avail of the special benefits available to scheduled castes/scheduled tribes category persons in the bank, the petitioner obtained the said certificate, which is proximate in point of time from the date of holding of the aforesaid promotion test. The said certificate was also issued on the same date on which the affidavit was filed by the father-in-law of the petitioner and,therefore, the certificate was exclusively based on the affidavit filled by the father-in-law of the petitioner without making any further verification. However, the said certificate dt. 11.3.1983 was cancelled by the respondent No. 2 on 10.5.84 after appropriate verification and after it was found that the petitioner is not a member of the scheduled tribes community.

8. The respondent bank issued a circular on 26.2.1983 calling for applications for special promotion test to be conducted exclusively for scheduled castes/scheduled tribes categories. In response to the same the petitioner submitted her application for consideration of her case as against the aforesaid promotion test, claiming herself to be a scheduled tribe candidate. In the aforesaid circular issued by the respondent bank it was specifically mentioned that all promotions shall be subject to verification of caste certificates and an employee who is promoted on the strength of his/her statement that he/she belongs to scheduled caste/scheduled tribe categories, would be liable for termination in accordance with relevant rules and regulations, if after verification it is found that the claims of scheduled caste/scheduled tribes are found to be false. In the application filed by the petitioner as against the aforesaid circular, the petitioner mentioned that she belongs to scheduled tribe category and on the strength of the aforesaid particulars furnished by the petitioner in her application, she was permitted by the respondent bank to appear in the said promotion test held exclusively for scheduled caste/scheduled tribe employees. Thereafter, she was declared as promoted from clerical cadre to officer cadre and she was posted as Assistant Manager in Cantonment Branch, New Delhi of the respondent bank. In the application submitted by the petitioner to the respondent bank, the petitioner had declared that the information regarding her caste status is true and correct and therein she had agreed that in case the information furnished by her is found to be incorrect, she would be liable for termination. When a verification was made by the respondent bank, it was found that the certificate issued to her was cancelled by the competent authority on 10.5.84 and, therefore, the aforesaid show cause notice was issued to the petitioner asking him to show cause as to why she should not be demoted.

9. One of the reliefs, as sought for by the petitioner in this writ petition, is for quashing of the proceedings and the order passed by the Collector cancelling the certificate issued to the petitioner on 11.3.83. The aforesaid certificate, as mentioned above, was issued on 11.3.83 without making any further verification by the competent authority and solely relying upon an affidavit filed by the father-n-law of the petitioner, which came to be cancelled on 10.5.84, after verification. The action was taken at Karnataka by an officer of the Government of karnataka and, therefore, this court shall have no territorial jurisdiction to examine the aforesaid plea of the petitioner. The certificate issued to the petitioner is cancelled by the competent authority and, therefore, if in case the petitioner is aggrieved, it is open for her to move the appropriate forum or the court having territorial jurisdiction in the matter.

10. The petitioner cannot seek for quashing of the proceedings and the certificate issued by an authority/officer at Karnataka, by filing the present writ petition in Delhi. Accordingly, the said plea of the petitioner cannot be entertained in this writ petition. However, it shall be open to the petitioner to challenge the same before the appropriate forum or court having territorial jurisdiction in the matter.

11. The petitioner has also challenged the legality of the show cause notice issued to the petitioner by the respondent bank. In terms of the provisions of the circular calling for applications, it was open for the respondent bank to make a verification, of the claim of the petitioner that she belongs to the scheduled tribe community.When a verification was made by the respondent bank with regard to the caste certificate, it was found that the claim of the petitioner is incorrect and that the caste certificate issued to her was cancelled by the competent authority. Therefore, no infirmity is found in the aforesaid action by the respondent bank in issuing show cause notice to the petitioner, which is in accordance with the provisions of the circular dt. 26.2.83 and also in terms of the declaration made by the petitioner herself in the application submitted by her.

12. It was vehemently argued by the counsel appearing for the petitioner that the petitioner acquired membership of scheduled tribe community by marrying a member of the scheduled tribe community. In support of the aforesaid contention the counsel drew my attention to para 23 of the judgment of the Supreme Court in the case of N.E. Horo (supra). It was held in the said decision that even if a female is not a member of a tribe by virtue of birth she having been married to a tribal after due observance of all formalities and after obtaining the approval of the elders of the tribe would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husband's domicile.

However, the Supreme Court in a subsequent decision in the case of Valsamma Paul (supra) has held that recognition of a person by the member of Latin Catholic would not be relevant for the purpose of her entitlement to the reservation under Article 16(4) for the reason that she, as a member of the forward caste, had advantageous start in life and after her completing eduction and becoming major married a Latin Catholic and so she is not entitled to the facility of reservation given to the Latin Catholic, a backward class. It was further held that a candidate, who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15 (4) or 16(4), as the case my be. It was further held that acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution and would frustrate the benign constitutional policy under Articles 15(4) and 16 (4) of the Constitution. While coming to the aforesaid conclusions, the Supreme Court considered the case of N.E.Horo (supra) as also the decision of this court in Khazan Singh's case (supra). The Supreme Court not only noticed the aforesaid decisions but also noticed many other earlier decisions of the Supreme Court as also of Kerala High Court.In the said decision it was further held that in Khazan Singh's case (supra) the Single Judge of Delhi High Court did not lay the law correctly.

13. I am bound by the later decision of the Supreme Court on the subject, which governs this case. In terms thereof, the petitioner is held to be not entitled to any benefit and she can have no entitlement to the reservation either under Article 15 or 16 of the Constitution of India. The writ petition, therefore, has not merit and is dismissed accordingly. Interim order 11.9.1984 stands vacated.