Nafr High Court
Case Details
YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.02.12 11:42:29 +0530 1 2025:CGHC:5889 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4618 of 2024 1 - Smt. Shirin Kawar W/o Late Muchand Kawar Aged About 55 Years R/o Village Bundeli Tahsil Pithora, District Mahasamund Chhattisgarh 2 - Lakish (Mulraj) Kawar S/o Late Mulchand Kawar Aged About 38 Years R/o Village Bundeli Tehsil Pithora, District Mahasamund Chhattisgarh 3 - Ujjwalta Kuwar D/o Late Mulchand Kawar Aged About 25 Years R/o Village Bundeli, Tehsil Pithora, District Mahasamund Chhattisgarh versus ... Petitioners 1 - State of Chhattisgarh Through Secretary, Department of School Education, Mahanadi Bhawan, Naya Raipur, Raipur Chhattisgarh 2 - Collector Mahasamund, District Mahasamund Chhattisgarh 3 - District Education Officer Mahasamund District Mahasamund Chhattisgarh 4 - Directorate of Treasury Accounts and Pension, Through Joint Director, First Floor, Block A Indrawati Bhawan, Naya Raipur Atal Nagar, Chhattisgarh 5 - Block Education Officer Pithora, District Mahasamund Chhattisgarh (Cause-title taken from Case Information System) ... Respondents For Petitioner : Ms. Surya Kawalkar Dangi, Advocate For Respondents-State : Mr. Kanwaljeet Singh Saini, Panel Lawyer 2 Hon'ble Shri Amitendra Kishore Prasad, Judge
Decision
Order on Board 31.01.2025 1. Heard Ms. Surya Kawalkar Dani, Advocate for the petitioner. Also heard Mr. Kanwaljeet Singh Saini, Panel Lawyer appearing for the State/respondents. 2. The petitioner by way of this writ petition has challenged the legality, validity and propriety of the impugned order dated 22.04.2024, by which the petitioner has been refused to grant retiral dues alleging that since his caste is under challenge, as such, the retiral dues of the Late Mulchand Kawar cannot be given to his legal heirs i.e. the petitioners. 3. The petitioner has prayed for following reliefs:- “I. That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to release the pensionary and retirement benefits of Late Mulchand Kawar. II. That, the Hon'ble Court may kindly be pleased to direct the respondent authorities to not to interpret the order passed in WPS no. 2586/2016, in their own way. III. That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to dispose of the pending representations of the petitioners, with regard to the back wages in light of fundamental rule 54, without waiting for the report of caste working committee. 3 IV. Any other relief, which this Hon'ble Court deems, fit in the facts and circumstances may also be granted in favour of the petitioner.” 4. Brief facts of the case, in a nutshell, are that the husband of petitioner No. 1 and father of the petitioners No. 2 and 3 namely Mulchand Kawar who was granted appointment in the respondent Department on the post of Upper Division Teacher in the year 1987, was terminated from the services vide order dated 31.05.2016 while he was holding the post of Principal, Government School, Khedigao on the recommendation of Chhattisgarh State Schedule Tribe Commission (for short, ‘Commission’) as the said Commission held that the caste certificate of the petitioner was forged. 5. Being aggrieved by the said termination order, Late Shri Mulchand Kawar preferred a writ petition before this Court bearing WPS No.2586/2016. During the pendency of said WPS No.2586/2016, Shri Mulchand Kawar died on 08.11.2020 and to contest the writ petition, legal heirs of Shri Mulchand Kawar, i.e. present petitioners were allowed to be brought on record vide order dated 06.01.2022. WPS No.2586/2016 came up for hearing on 25.08.2023, wherein, the matter was finally heard and allowed vide order dated 23.11.2023 setting aside the termination order dated 31.05.2016, enquiry report dated 17.11.2015 as also the order dated 22.12.2015. 6. Learned counsel for the petitioner submits that the petitioners are 4 legal heirs of Late Shri Mulchand Kawar, i.e. widow, son and daughter, who are claiming retrial dues in respect of Late Shri Mulchand Kawar, who was working as Principal in the Government School, Khedigao. Some objections were made against him alleging that he does not belong to Schedule Tribe community, as such, the Chhattisgarh Scheduled Tribe Commission recommended for verification of his caste certificate and he has been removed from service vide order dated 31.05.2016. Late Shri Mulchand Kawar preferred a writ petition bearing WPS No.2586/2016 against his termination, which was allowed vide order dated 23.11.2023, however, during pendency of the said petition, Late Shri Mulchand Kawar expired and as such, the legal heirs have pursued the present petition. She further submits that upon passing the said order, the petitioners approached the respondent authorities for grant of retiral dues of Late Shri Mulchand Kawar, however, the retiral dues are not given stating that in the last paragraph of the order dated 23.11.2023 passed in WPS No.2586/2016, a recommendation has been made, according to which, the petitioners can only be given retiral dues after verification of caste certificate of Late Shri Mulchand Kawar and since it is yet to be decided, as such, retiral dues cannot be given. It has been contended that no such observation has been made against Late Shri Mulchand Kawar in the said order, whereas in the order itself, it has been stated that since Late Shri 5 Mulchand Kawar has expired, the authorities may verify the caste certificate of the ancestral as well as present petitioners. In the preceding paragraph of the order, it has been held that Late Shri Mulchand Kawar was entitled to all his service benefits, however while wrongly interpreting the said order, the claim has been rejected. Therefore, the present petition is liable to be allowed. Reliance has been placed upon the judgment rendered by Hon’ble Supreme Court in the matter of R. Sundaram v. Tamil Nadu State Level Scrutiny Committee and others reported in 2023 SCC OnLine SC 287 to buttress her submissions. 7. On the other hand, learned State counsel opposes the submissions advanced on behalf of the learned counsel for the petitioners and submits that in the last paragraph of the order dated 23.11.2023 passed in WPS No.2586/2016, a recommendation has been made, according to which, the petitioners can only be given retiral dues after verification of caste certificate of Late Shri Mulchand Kawar and since it is yet to be decided, as such, retiral dues cannot be given. 8. I have heard learned counsel for the parties, considered their rival contentions and perused the documents annexed along with this writ petitions. 9. It is an admitted fact that feeling aggrieved with the termination order, Late Shri Mulchand Kawar preferred a writ petition before this Court bearing WPS No.2586/2016, but during the pendency of 6 said WPS No.2586/2016, Shri Mulchand Kawar died on 08.11.2020 and present petitioners were allowed to contest the case. Vide order dated 23.11.2023, WPS No.2586/2016 was allowed while setting aside the termination order dated 31.05.2016, enquiry report dated 17.11.2015 as also the order dated 22.12.2015. Relevant portion of the order dated 23.11.2023 reads as follows:- “11. Having regard to the totality of facts and circumstances of the case and the aforesaid orders passed by the Hon’ble Supreme Court and this Court on the issue, the petition deserves to be and is, accordingly, allowed. The impugned order dated 31.5.2016 as also the enquiry report dated 17.11.2015 and the order dated 22.12.2015 (Annexure P/1) are hereby set aside. Since the original petitioner Mulchand Kanwar has died and this petition is being contested by his legal heirs – petitioners herein, they are held entitled for getting the consequential monetary benefits except the backwages. The question of backwages shall be considered by the competent authority within a period of 45 days from the date of receipt of copy of this order in accordance with applicable Rules/Regulations/Standing Orders. The respondent authorities are directed to refer the matter to the appropriate Caste Scrutiny Committee constituted by the 7 appropriate State Government to verify the validity of caste certificate and also for determination of caste status of the petitioner as per direction of the Hon’ble Supreme Court in the matter of Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241 followed in the matter of Collector, Bilaspur v. Ajit P.K. Jogi and others, (2011) 10 SCC 357, within a period of six weeks. Upon receipt of report from the Caste Scrutiny Committee, the respondents are at liberty to proceed further in accordance with law against the caste certificate of family members of the deceased petitioner i.e. the petitioners herein.” 10. In the matter of R. Sundaram (supra), while deciding the matter, Hon’ble Supreme Court has held thus:- “11. Keeping in mind the submissions of both the parties, at the very outset we would like to state that the right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification as has been held in the case of State of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr., (2013) 12 SCC 210. The relevant paragraph of the judgment is being extracted herein: “15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this Court recognised that even when, after the repeal of Article 19(1)(f) and Article 8 31(1) of the Constitution vide Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. 16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”…Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” 12. Further, in the case of Dr. Uma Agarwal 9 vs. State of U.P., (1999) 3 SCC 438, the grant of pensionary benefits is not a bounty, but a right of the employee, and as such cannot be denied without proper justification. 13. At the very beginning, we would like to state that this Court is appalled at the treatment given to the Appellant by the Respondents herein. The Appellant, before applying to the post reserved for ST candidates supplied all documents required in support of his claim as a ST candidate, and got the documents verified and approved. After being given employment however, the re evaluation of the authenticity of the documents of the Appellant have been kept pending for 19 years, dangling like a sword on the Appellants head. 14. After serving the Respondent bank for 38 years, the Appellant, two days before his superannuation received his cessation order without there being any proper enquiry. Further, on communication made to the respondent no.1, it was found that on the date of passing the cessation order, no case was pending against the Appellant. To us, a very clear pattern of harassment is visible, and there appears to be a sinister motive against the Appellant and his right to pensionary benefits. Even after 38 years of service, irrespective of the merits of the case, the fact that the Appellant has not been treated with any respect is sad to see, and the use of 10 delayed procedure as a dangling sword can only be interpreted as harassment. 15. In the case of Madhuri Patil and Another Vs Additional Commissioner, Tribal Development and Others, (1994) 6 SCC 241, this Court gave fifteen guidelines as to how the exercise of verification of community certificate ought to be completed. The relevant extract from the said judgment are reproduced hereunder: “The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has 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 11 that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: (emphasis supplied) 9…The inquiry should be completed as expeditiously as possible preferably by day- to-day proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/ candidate before the competent officer or non-official and such admission or appointment should 12 be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 15…. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post.” 11. A community certificate in cases of scheduled tribe communities, unlike any other piece of paper, is an acknowledgment of a person belonging to a community which has faced years of oppression. The Constitution of India guarantees certain rights to people from Scheduled Tribe communities on grounds of historical injustice, and for the translation of such rights from paper to real life, the community certificate in most cases becomes an essential document. This certificate, whilst being an acknowledgment of history, is also a document that tries to rectify such historical injustice by becoming a tool that fabricates constitutional rights 13 into reality. In such a scenario where the validity of a community certificate is put to question, keeping in mind the importance of the document and the effect it has on people’s rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte. 12. Any person, whose entire identity, and their past, present and future rights are challenged, must at least be given an opportunity to be fairly heard. In the case at hand, while deciding WPS No.2586/2016, the learned Judge has directed the respondent authorities to refer the matter to the appropriate Caste Scrutiny Committee constituted by the appropriate State Government to verify the validity of caste certificate and also for determination of caste status of the petitioner as per direction of the Hon’ble Supreme Court in the matter of Madhuri Patil (supra) followed in the matter of Ajit P.K. Jogi (supra), within a period of six weeks and upon receipt of report from the Caste Scrutiny Committee, the respondents are at liberty to proceed further in accordance with law against the caste certificate of family members of the deceased petitioner i.e. the petitioners herein. But, the respondent authorities have wrongly interpreted the order and not given any retiral dues to the legal heirs of Late Shri Mulchand Kawar i.e. the present petitioners. 13. On the basis of the above-mentioned discussions as well as the law laid down by the Hon’ble Supreme Court in the matter of R. 14 Sundaram (supra), this Court is of the considered opinion that the impugned order dated 22.04.2024 passed by respondent No.4 is liable to be set aside, and the petitioners are held to be entitled to the post-retirement benefits accrued to Late Shri Mulchand Kawar. The respondent authorities are directed to grant all post-retirement benefits to the petitioners along with 6% Simple Interest on account of unnecessary withholding of retiral dues, from the date of the retirement due to the date of actual payment. 14. As a consequence, the writ petition stands allowed. No order as to costs. Yogesh Sd/- Sd/- (Amitendra Kishore Prasad) Judge