Karnataka High Court

Smt. G D Sukanya vs State Of Karnataka on 14 July, 2023

Bench: K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2023

                          BEFORE

         THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

         WRIT PETITION No.37222/2018 (GM-CC)

BETWEEN:

SMT. G.D. SUKANYA
S/O. SRI GANGADHAR,
AGED ABOUT 64 YEARS,
R/O. NO.2, TELECOM LAYOUT,
BOGADI II STAGE NORTH,
MYSORE - 570 026.                            ... PETITIONER

(BY SRI A. KESHAVA BHAT, ADVOCATE)

AND:

1.     STATE OF KARNATAKA,
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF SOCIAL WELFARE,
       VIDHANA SOUDHA,
       BANGALORE - 560 001.

2.     THE DISTRICT CASTE VERIFICATION COMMITTEE,
       CHIKKAMANGALUR AND
       DY. DIRECTOR SOCIAL WELFARE DEPARTMENT,
       CHIKKAMANGALURU - 575 216
       REPRESENTED BY ITS SECRETARY.      ... RESPONDENTS

(BY SRI C. JAGADISH, SPECIAL COUNSEL)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL THE ENTIRE
RECORDS PERTAINING TO CASE NO.Jha. Pa. Sa: CR 51 2017-18
FROM THE FILE OF THE R-2 AND ON PERUSAL OF THE SAME; SET
ASIDE THE IMPUGNED NOTICE DATED 09.08.2018 AND FURTHER
ALL PROCEEDINGS IN PURSUANCE TO THE SAID NOTICE IN
CASE NO.Jha. Pa. Sa CR 51 2017-18 ISSUED BY R-2 VIDE
ANNEXURE-L.
                            -2-


     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 09/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                       ORDER

The petitioner herein is seeking to quash the

impugned notice dated 09/08/2018 in Jha.Pa.Sa:C.R-

51:2017-18 issued by respondent No.2 at Annexure-L.

2. Brief facts of the case are that, the petitioner

joined the services of BSNL company (then known as

P&T Department) as a T.S. Clerk after completing SSLC

in the year 1975. The petitioner served as a Chief

Section Supervisor (Operation) and retired from service

after completion of 39 years on 31/07/2014. It appears

that the CRE Cell Mangalore issued notice to the

petitioner herein for an enquiry regarding the caste

certificate after the petitioner retired from service.

Assailing the said notice, W.P.No.56417/2017 was filed

before this Court and there was an interim order

staying all further proceedings initiated by the CRE Cell,

Mangalore. This being so, the petitioner was issued with

one more notice in the year 2018 to appear before

respondent No.2 regarding the caste certificate and the

petitioner replied to the said notice. Again a fresh

notice appears to have been issued by respondent No.2

for an enquiry regarding the caste certificate. It is

stated that, the issuance of notice by respondent No.2

calling upon the petitioner to participate in the enquiry

regarding the caste certificate of the petitioner is an

abuse of the process of law and harassment to the

petitioner who has retired for more than four years

back and the entire exercise of respondent No.2 is one

without jurisdiction.

3. It is stated by the petitioner that the

petitioner was issued with the caste certificate by the

Tahsildar as belonging to the caste called "Maleru" and

at the time of appointment, she has produced the caste

certificate, "Maleru" community, which is a Scheduled

Tribe under the Presidential Notification and therefore,

the petitioner was entitled to claim the benefit of

reservation while joining the service. It appears that

there was objection to the fact that there was another

community called "Maaleru" and it is a forward

community and on the said pretext, the community

members had obtained the caste certificate as "Maleru"

Community, which is undoubtedly a Scheduled Tribe.

In the meanwhile, the State of Karnataka issued a

notification in the year 1986 and constituted a

committee to decide about the existence of the two

communities. Thereafter, the Apex Court directed the

authorities to drop all the criminal and departmental

actions till a positive conclusion is reached in that

regard. The Apex Court in the case of Wasim Beg vs.

State of U.P. & others [1998(3) SCC 321] [Wasim

Beg] held that till the dispute with regard to the

existence of two separate entities is resolved, no

criminal proceedings or departmental action shall be

initiated. Subsequently, the State Government issued

notification directing the persons, who had obtained the

caste certificate as belonging to "Maleru" caste to

surrender the same and to continue as a person

belonging to general category.

4. It is further stated that prior to the

retirement of the petitioner, the District Social Welfare

Officer, Chickamangaluru, issued notice to the Assistant

General Manager, BSNL, to furnish the caste certificate

produced by the petitioner while initially joining the

service. To the said notice, the AGM of the BSNL

issued reply stating that the caste certificate produced

by the petitioner at the time of appointment is not

available in the file and furnished the first page of the

service book of the District Social Welfare Office.

Thereafter, there was no reply or further enquiry by

respondent No.2 after 07/07/2014. It appears that the

petitioner has produced the caste certificate to the

department while joining the service and the petitioner

has not kept any copy of the caste certificate.

Subsequently, after retirement of the petitioner from

service i.e., on 31/07/2014 and after having received

all the terminal benefits, the Superintendent of Police,

CRE Cell Mangalore issued a notice to the petitioner

calling upon her to appear for an enquiry regarding the

caste status of the petitioner. The petitioner challenged

the said notice in W.P.No.56417/2014 and an interim

order was passed staying further proceedings pursuant

to the notice issued by the CRE Cell.

5. Subsequently, again respondent No.2 issued

a notice on 19/07/2018 (Annexure-J) after five years of

retirement to enquire about the caste certificate.

Though after reply to the said notice, respondent No.2

issued further notice vide Annexure-L dated

09/08/2018 and proceeded for enquiry. Aggrieved by

which, the present writ petition is preferred.

6. Heard Sri A.Keshava Bhat, learned counsel

for the petitioner and Sri C. Jagadish, learned special

counsel for the respondents.

7. Learned counsel for the petitioner would

contend that the issuance of notice by the respondents

is one without jurisdiction as the petitioner had joined

the service at Mysore in the year 1975 and the

petitioner has retired from service in the year 2014 and

after more than four years, the petitioner was issued

with the said notice by the CRE Cell for enquiring into

the caste certificate. The notice issued by the CRE Cell

is one without jurisdiction, as the competent authority

to issue notice is the DCVC and not the Superintendent

of Police, Civil Rights Enforcement Directory (CRE) and

in support of his contention, learned counsel would

contend that the petition is squarely covered by the

judgment of Division Bench of this Court in

W.A.No.36/2021 dated 30/08/2021 in the case of

Sri T.S. Ramachandra vs. Additional Director

General of Police & others (Sri T.S. Ramachandra).

Reliance is also placed on the following judgments:

(i) Chairman & Managing Director, FCI and

others vs. Jagdish Balaram Bahira and others

[AIR 2017 SC 3271] (Chairman & Managing

Director, FCI);


(ii)    R.S.Mahadev        vs.   B.R.Gopamma            &   others

        [W.A.No.1242/2019                      disposed          on

        03/06/2021] (R.S.Mahadev);

(iii) Smt. G.D. Sukanya vs. The Superintendent of

Police CRE Cell & others

[W.P.No.56417/2014 disposed on

04/04/2019] (Smt. G.D. Sukanya)

8. Per contra, Sri C.Jagadish, learned special

counsel appearing for the respondents would contend

that by producing the false caste certificate

appointment was secured by the petitioner as against

the vacancy reserved for the Scheduled Tribe and that

the petitioner belongs to the Brahmin Community called

"Maaleru" and not to the Scheduled Tribe called

"Maleru" as stated by the petitioner by producing a

false certificate. Learned counsel would also contend

that the petitioner does not belong to "Maleru"

Community and she cannot claim to be as Scheduled

Tribe. Learned counsel would contend that, the

petitioner cannot seek protection on the ground that

she has completed 37 years of service, since once a

false claim is made by the candidate that he or she

belongs to a particular designated caste, tribe or class

and any benefit obtained pursuant to such producing

the false certificate would not enure to their benefit and

the competent authority, having satisfied that there is

no genuineness in the claim of the petitioner, has

rightly called upon the petitioner to appear for enquiry

regarding the false certificate and would contend that

appointment is void ab initio and once a fraud is always

a fraud and the benefit cannot be given to the

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particular person. In support of his contention, learned

counsel has placed reliance on the following judgments:

(i) Sri J.Madegowda vs. The Additional Director,

Bangalore & others [W.A. No.16698/2011

disposed on 29/11/2012] (Sri J.Madegowda);

(ii) Smt. Geethanjali vs. The Canara Bank, rep.

by its General Manager, Bangalore & others

[ILR 2012 Kar. 4384] (Smt. Geethanjali);

(iii) Smt. Shoba Lakshmi vs. Divisional

Commissioner, Bangalore Division [W.A.

No.530/2007 disposed on 31/07/2012]

(Smt. Shoba Lakshmi)

9. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

and perused the material on record.

10. The undisputed fact is that the petitioner

was appointed as a Clerk in the year 1975 and has put

in 39 years of service and retired as a Chief Section

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Supervisor in the year 2014. The CRE Cell, Mangalore

issued notice calling upon the petitioner regarding the

verification of Caste Certificate. Assailing the said

notice by the CRE, writ petition was preferred before

this Court in W.P.No.56417/2014, which came to be

disposed of holding that the impugned notice issued by

the CRE is unsustainable and the writ petition came to

be allowed. Pursuant to which, the impugned notice at

Annexure - L was issued by respondent No.2 for

enquiry regarding the caste certificate. What is

relevant to be gathered from the material on record is

that, the entire process of the DCVC is pursuant to the

notice issued by the CRE Superintendent of Police,

which is contrary to Rule 7 of the Karnataka Scheduled

Castes, Scheduled Tribes and other Backward Classes

(Reservation of Appointment Etc.) Rules, 1992 and the

said Rule reads as under:

"7. Issue of Validity Certificate.-(1) After getting a report on a reference made under Rule 6-A, the Caste Verification

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Committee and the Caste and Income Verification Committee shall hold an enquiry after giving opportunity to the parties concerned.

(2) The Committee may examine school records, birth registration certificate if any, and such other relevant materials and may also examine any other person who has the knowledge of the community of the applicant:

Provided that in case of an applicant who belongs to the Scheduled Tribes, the Committee may also examine the anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies and such other matters.

(3) If on such enquiry the Committee finds that the applicants claim is genuine it may issue the certificate sought for, in Form I-A, but where the committee finds that the applicant obtained the Caste Certificate or Income and Caste Certificate by making a false representation, it shall pass an order rejecting the application indicating the reasons therefore for such refusal. An order under this sub-rule shall be passed within one month from the date of receipt of the application.

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(4) Where the Committee even after the enquiry referred to in sub-rules (2) and (3) finds that the claim is doubtful, and is not in a position to come to a conclusion it shall refer the matter to the Directorate of Civil Rights Enforcement for detailed investigation and report. On receipt of the report from the Directorate of Civil rights enforcement, the Committee shall dispose off the case on merit, after holding such enquiry as it deems fit and after giving the applicant an opportunity of being heard. An order under this sub-rule shall be made within one month from the date of receipt of the application.

(5) Any person aggrieved by an order of the Caste Verification Committee or Caste and Income Verification Committee may appeal to the Divisional Commissioner. The Divisional Commissioner shall after giving an opportunity of being heard to both the parties pass such order as he deems fit within forty-five days from the date of filing of such appeal.

7-A. Prosecution for obtaining false caste certificate.-(1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the

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Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a Copy of the order in appeal rejecting such claim, to the Directorate of Civil Rights Enforcement.

(2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate.

7-B. Monetary benefits secured on the basis of false caste certificate to be withdrawn.-Any amount paid to any person by the Government or any other agency by way of scholarship, grant, allowances or other financial benefits on the basis of a false Caste Certificate shall without prejudice to any other action, be liable to be recovered from such person."

11. Perusal of Rule 7 of the Rules makes it

evident that the Director of Civil Rights Enforcement

has to take steps for prosecution against a person who

has obtained a false caste certificate on the basis of the

report submitted by the DCVC. In the instant case,

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though the DCVC has issued a letter, prior to that the

CRE Cell issued notice to the petitioner wherein this

Court has held that the notice issued by the CRE Cell is

the one without jurisdiction and that is squarely

covered by the decision of the Division Bench of this

Court in the case of Sri T.S. Ramachandra at para

Nos.10 and 11 has stated as under:

"10. The learned Single Judge, therefore, has traveled beyond the scope of the proceeding before him and has held that the appellant is liable for prosecution under Rule 7A of the Rules which was not the issue before the learned Single Judge. The learned Single Judge has not taken note of the decision of the Division Bench of this Court in WA No.100375/2017 dated 17.08.2020. Therefore, the impugned order passed by the learned Single Judge cannot be sustained.

11. In view of the preceding analysis, the initiation of enquiry against the appellant is sans jurisdiction. The show cause notice dated 12.11.2014 suffers from jurisdictional infirmity."

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12. What is relevant to note here is that,

whether the initiation of the proceedings is by the DCVC

pursuant to the notice of the CRE Superintendent of

Police is justifiable? The petitioner belongs to the

community called "Maleru" which is a Scheduled Tribe

under the Presidential Notification. The material on

record reveals that, during her service, enquiry was

conducted about her belonging to "Maleru" Community

which is undoubtedly Scheduled Tribe. The issuance of

notice by the DCVC pursuant to the earlier issuance of

notice during her service to enquire about the caste

certificate had already been concluded and the

petitioner had retired from service in the year 2014 and

the internal communication would reveal that the

petitioner at the time of appointment had produced the

caste certificate which showed that she belonged to

Scheduled Tribe "Maleru". Annexure - D is the

communication issued by the AGM of BSNL to show that

the original caste certificate was physically seen by the

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appointing authority and necessary attestation has

been done by this authority in the first page of service

book. The relevant portion of Annexure - D is as

under:

"With reference to the subject & reference cited above, it is to intimate that the Caste Certificate submitted by Smt.G.D.Sukanya CSS O/o GMTD BSNL Mysore at the time of appointment is not available in this Office. As per the procedure followed during the time of appointment of the official the original Caste Certificates were being physically seen by the appointing authority and necessary attestation was done by this authority in the first page of the Service Book.

However a certified copy of the first page of service Book mentioning Caste Status of the official as ST (MALERU) is herewith enclosed for your perusal."

13. The material is evident that the appointment

was on the ground that she belonged to "Maleru"

community and till the date of retirement and pursuant

to the date of retirement after four years, such a

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proceeding has been initiated by the respondent herein.

The CRE Cell, Mangalore had issued a notice in the first

instance, subsequently, the present notice is issued in

the year 2018, which on the face of it is unsustainable.

It is for the respondent to ascertain from the material

and looking into the social status of the community

whether the petitioner is belonging to "Maleru"

community or "Maaleru" community. Without any

material on record, the action taken or issuance of

notice pursuant to retirement of the petitioner is

unsustainable. The Apex Court in the case of

Chairman & Managing Director, FCI has held at

para No.42 as under:

"42. In Kavita Solunke (AIR 2012 SC 3016) (supra) the appellant had been appointed on the strength of a claim to belong to the Halba Scheduled Tribe in August 1995. After the tribe claim was verified by the Scrutiny Committee it was found that the appellant was in fact a Koshti and not a member of the Halba Scheduled Tribe following which an order of termination was

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issued. The sole ground on which the termination was challenged and which was accepted by the Bench of two Judges was that since the appointment of the appellant had attained finality, it could not have been set aside on the ground that the appellant did not belong to a Scheduled Tribe. Maharashtra Act XXIII of 2001 was evidently not placed before the court in Kavita Solunke (AIR 2012 SC 3016) (supra) and has not been noticed. Upon the enactment of the Act, the invalidation of a caste certificate by the Scrutiny Committee would as a statutory mandate result in the withdrawal of the benefits which had accrued on the strength of the claim and where a candidate had been appointed to a reserved post, termination would follow the finding that the candidate did not belong to the category for whom the post was reserved. If the provisions of Maharashtra Act XXIII of 2001 were to be considered by the bench of two judges, it would be apparent that under the provisions of Section 7 the Scrutiny Committee is empowered to verify a caste certificate whether issued before or after the commencement of the Act and if it comes to the conclusion that the caste certificate is false and is obtained fraudulently it is empowered to order

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its cancellation and confiscation. Section 10 provides for the withdrawal of benefits secured when a caste certificate is concerned for its falsity. Falsity is adjudicated upon when an order of cancellation is passed under Section 7. Once a caste certificate is cancelled by the Scrutiny Committee under Section 7, the individual affected by the order has a remedy to challenge its cancellation before the High Court under Article 226. If the challenge fails or if the challenge is given up, and the only relief sought is of the protection of service, or of the admission to the course, the grant of such protective relief simpliciter would be impermissible. The withdrawal of the benefit under Section 10 follows an order of cancellation under Section 7. Once the conditions for cancellation are fulfilled and an order of cancellation is passed under Section 7 withdrawal of all benefits which have accrued on the basis of the claim (which stands invalidated) cannot be opposed on a theory that there was an absence of dishonest intent."

14. What makes it clear is that, if a caste

certificate has been obtained falsely by a person either

claiming himself or herself to have been belonging to

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certain designated Caste, Tribe or Class. The Scrutiny

Committee is empowered to cancel it upon the opinion

formed that it was obtained fraudulently. In the

absence of any such opinion or any such complaint, the

DCVC had no authority to call upon the petitioner to

come forward and state regarding the falsity of the

caste certificate. The petitioner was appointed as a

Clerk in the year 1975 and the class claimed by the