THE HONOURABLE MR v. The Chairman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.04.2005CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAWrit Petition No.3309 of 1998S.Swigaradoss... Petitionervs.1.The Chairman, Food Corporation of India, 16-20, Barakhamba Lane, New Delhi.2.The Managing Director, Food Corportion of India, 16-20, Barakhamba Lane, New Delhi.3.The Zonal Manager (South), Food Corporation of India, No.2 Haddows Road, Nungambakkam, Madras. ... RespondentsWrit Petition under Article 226 of the Constitution ofIndia praying for issuance of writ of certiorarifid mandamuscalling for the records relating to the order of respondent No.2 inRef.No.7-3/83-RPI, dated 01.10.1996 relating to the termination ofthe petitioner from service and quash the same and consequentlydirect the respondents to reinstate the petitioner in service withall backwages, promotion, retirement benefits and any suchpecuniary gain to the petitioner.For Petitioner ... Mr.S.KanagasabaiFor Respondents ... Mr.P.D.Audikesavalu of M/s.P.A.Daivasigamani and AssociatesJ U D G M E N T The petitioner has prayed for issuing a writ ofcertiorarified mandamus for quashing the order passed by the secondin Proceedings No.7-3/83-RPI, dated 01.10.1996, wherein the https://hcservices.ecourts.gov.in/hcservices/ petitioner has been terminated from service. The petitioner hasalso prayed for further consequential direction regarding paymentof all backwages, promotion, retirement benefits, etc.2.The facts giving rise to the present writ petition areas follows:The petitioner claims that his parents, who were Adi Dravida,had converted themselves to Christianity and the petitioner wasborn as such. But, he was re-converted to Hinduism in the year1956 and continued as a member of Adi Dravida. Such conversion waspublished in the Gazette, dated 25th July, 1956. The petitionerfurther claims that he was selected by the Food Corporation ofIndia on the basis of merit and not on the basis of any reservationand he was accordingly first appointed in 1968 and subsequently hewas promoted as such not on the basis of any reservation.Itis further claimed by him that in the year 1981, there was anAdvertisement regarding Direct Recruitment to the post of D.M.(Deputy Manager). By then, since certain controversies had arisenregarding the caste of the petitioner, a suit had been filed byhim, numbered as O.S.7926 of 1979 in the City Civil Court, Madras.An order had been passed regarding status-quo and in order to avoidcontempt proceedings, Food Corporation of India by order, dated11.06.1981, appointed the petitioner. It is claimed by thepetitioner that the said selection was based on merits. However,in the appointment order a clause was unilaterally incorporated,indicating as if the selection was based upon the assumption thatthe petitioner belonged to scheduled caste and disputes werepending and further indicating that the petitioner would berequired to refund all the benefits in case the judicial decisionwent against the petitioner. It is further claimed that theunilateral clause is not binding on him. It is further assertedthat in fact at that time, two other persons had been appointedagainst reservation vacancies and the petitioner has not been soappointed. Even though the suit was initially decided in favour ofthe petitioner, ultimately the first appellate court held that thepetitioner did not belong to scheduled caste community and allowedthe appeal and dismissed the suit. The Second Appeal No.270 of1984, filed by the petitioner was also dismissed on the ground thatCivil Court had no jurisdiction to decide such dispute andultimately the matter was taken to the Supreme Court by thepetitioner. The Supreme Court in SLP No.27571 of 1995 decidedagainst the petitioner. Thereafter, the Food Corporation of Indiapassed the impugned proceedings terminating the services of thepetitioner on the ground that even though he did not belong toscheduled caste, he had secured employment on that basis andtherefore he has no right to continue. It was also indicated thatthe petitioner was not entitled to any terminal benefits. Suchorder is under challenge. https://hcservices.ecourts.gov.in/hcservices/

3.The main contentions raised by the petitioner are tothe following effect:(a) The order of termination is illegal and void, as suchorder was passed unilaterally without holding any enquiry andwithout giving any opportunity to the petitioner.(b) In the Supreme Court Case only it was decided that thecivil court had no jurisdiction to decide on such question, but thequestion relating to the actual caste of the petitioner was notfinally decided.(c) He was appointed on merits as Deputy Manager andtherefore even assuming that there was any irregularity in theinitial appointment in the year 1968, there was no justification interminating the services of the petitioner.4. A counter affidavit has been filed on behalf of therespondents denying the assertions made in the writ petition. Itis stated that the initial selection and appointment of thepetitioner was against reservation quota on the assumption that thepetitioner belong to scheduled caste. Since the status of thepetitioner was under dispute, an office order bearing No.26(M-39)77-Vig., dated 04.10.1979 was issued. However, at that stage, thepetitioner had filed O.S.No.7926 of 1979. While the matter stoodthus, the petitioner had applied for direct recruitment to the postof Deputy Manager in vacancies exclusively reserved for scheduledcaste community. In the appointment order, dated 11.06.1981, itwas specifically indicated : "... This offer of appointment is based upon the assumptionthat Sh.Swigaradoss is a member of the Scheduled Castes asnotified by the Government of India. His attention is drawnto the fact that certain proceedings in this regard arepending disposal before the competent court of law. In theevent of the judicial verdict being finally against suchassumption, he should refund unconditionally, after acceptingthis offer of appointment, such extra amounts as might havebeen paid in the meanwhile to him in post of Deputy Manager(General) or any other higher appointment he might meanwhilecome to occupy in the normal course. This would be withoutprejudice to the other consequences, if any, in terms of theFood Corporation of India (Staff) Regulations, 1971, asamended from time to time." It is further indicated that the Collector of Madras, byproceedings dated 29.06.1983 verified the communal status of thepetitioner and reported that the petitioner being a Christian https://hcservices.ecourts.gov.in/hcservices/ cannot claim status of scheduled caste. Similar communication wassent by the Revenue Divisional Officer by proceedings, dated09.07.1983. The said orders passed by the Collector and theRevenue Divisional Officer were challenged by the petitioner inW.P.Nos.8640 and 8641 of 1983. the aforesaid two petitions weretaken along with Second Appeal No.270 of 1984 and all such matterswere dismissed by order, dated 19.07.1995 and thereafter SLPNo.27571 of 1995 was also dismissed. Since it was clearlyconcluded that the petitioner did not belong to scheduled castecommunity and since the appointment was on that basis, the order oftermination had been passed. It has been further clarified thatsince the question of caste had been finalised in legalproceedings, which had gone upto the Supreme Court, there was nonecessity of holding any formal enquiry before passing the order oftermination.5.In the background of the aforesaid facts, thecontentions raised by the petitioner are required to be examined.The question as to whether the petitioner after being re-convertedto Hinduism could have been treated as a member of the scheduledcaste or not is no longer open to be agitated in view of thedismissal of the two writ petitions and the second appeal filed bythe petitioner. Particularly in the two writ petitions specificchallenge had been made to the orders passed by the DistrictCollector and the Revenue Divisional Officer regarding the communalstatus. Since the decisions in such writ petitions have becomefinal, it is not open to the petitioner to re-agitate the very samequestion.6.In the decision reported in (2004) 2 SCC 105(R.Vishwanatha Pillai v. State of Kerala), the Supreme Court hasheld as follows:"15. This apart, the appellant obtained theappointment in the service on the basis that he belongedto a Scheduled Caste community. When it was found by theScrutiny Committee that he did not belong to theScheduled Caste community, then the very basis of hisappointment was taken away. His appointment was noappointment in the eye of law. He cannot claim a rightto the postas he had usurped the post meant for areserved candidate by playing a fraud and producing afalse caste certificate. Unless the appellant can lay aclaim to the post on the basis of his appointment hecannot claim the constitutional guarantee given underArticle 311 of the Constitution. As he had obtained theappointment on the basis of a false caste certificate hecannot be considered to be a person who holds a postwithin the meaning of Article 311 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India. Finding recorded by the Scrutiny Committee thatthe appellant got the appointment on the basis of a falsecaste certificate has become final. The position,therefore, is that the appellant has usurped the postwhich should have gone to a member of the ScheduledCastes. In view of the finding recorded by the ScrutinyCommittee and upheld up this Court, he has disqualifiedhimself to hold the post. The appointment was void fromits inception. It cannot be said that the said voidappointment would enable the appellant to claim that hewas holding a civil post within the meaning of Article311of the Constitution of India. As the appellant hadobtained the appointment by playing a fraud, he cannot beallowed to take advantage of his own fraud in enteringthe service and claim that he was holder of the postentitled to be dealt with in terms of Article 311 of theConstitution of India or the Rules framed thereunder.Where an appointment in a service has been acquired bypractising fraud or deceit, such an appointment is noappointment in law, in service and in such a situationArticle 311 of the Constitution is not attracted at all."7. The ratio of the aforesaid decision is squarelyapplicable to the present case.8. Once it is concluded that the petitioner cannot claima status as belonging to scheduled caste, holding of a furtherenquiry to determine his caste would have been an empty formality.Respondents have merely passed the order of termination on thebasis of the conclusions in various legal proceedings whichattained finality on dismissal of the SLP filed by the petitioner.Therefore, the order of termination cannot be said to be illegalmerely because no enquiry had been held. In view of the aforesaidconclusion, the writ petition is liable to be dismissed.9. Accordingly, the writ petition is dismissed. Nocosts. 07.04.2005gb/dpkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Chairman, Food Corporation of India, 16-20, Barakhamba Lane,New Delhi.2.The Managing Director, Food Corportion of India, 16-20, Barakhamba Lane, New Delhi.3.The Zonal Manager (South), Food Corporation of India, No.2 Haddows Road, Nungambakkam, Madras.1 cc to Mr.P.A.Deivasigamani, Advocate, SR.16706rd (co)dv Writ Petn.No.3309/1998