CoramThe Honourable Mr v. The Food Corporation of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 21-7-2006CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARWrit Petition No.10556 of 2006W.P.M.P.No.11939, 11940 of 2006S.Srinivasalu...PetitionerVs.1.The Food Corporation of India,rep.by its Zonal Manager (South),Zonal Office,No.3, Haddows Road,Chennai – 6.2.The Food Corporation of India,rep.by its Deputy General Manager (Personnel),Zonal Office,No.3, Haddows Road,Chennai – 6....RespondentsWrit petition filed under Article 226 of Constitution f India,praying this Court to issue a writ of Certiorarified Mandamus callingfor the records erlating to the impugned order in O.O.No.32(1)/2005-CR Cell dated 31.10.2005 passed by the second respondent and quashthe same and consequently direct the respondents to grant allterminal, service benefits and all other attendant benefits arisingtherefrom to the petitioner.For Petitioner:Mr.W.M.Abdul MajeedFor Respondents:Mr.S.VijayakumarO R D E RPetitioner seeks to quash the order of the second respondentdated 31.10.2005and to direct the respondents to grant allterminal, service benefits and all other attendant benefits to him. https://hcservices.ecourts.gov.in/hcservices/

2.The brief facts necessary for disposal of the writ petitionas stated in the affidavit are as follows.(i)Petitioner belongs to Kurumans Community, which is one ofthe Scheduled Tribes. He joined the services of the Ministry of Foodand Agriculture Department, Government of India at Madras as a Peonas per the order dated 19.12.1966, after his name was sponsored bythe District Employment Exchange, North Madras, Madras-1. In theyear 1971, the Food Corporation of India was formed and thepetitioner's services were transferred to the said Corporation. Inthe year 1977, petitioner's services along with others were confirmedby the Food Corporation of India, by order dated 28.7.1977. Lateron, petitioner was promoted as Daftry in the year 1983; as GestetnerOperator in the year 2000; and again as Senior Gestetner Operator inthe same year 2000. He reached the age of superannuation on31.10.2005 and on the said date the impugned order of cancellation ofpetitioner's appointment was issued by the second respondent.(ii)The said order of cancellation of appointment was passed onthe ground that the Community certificate which was required to beproduced by the petitioner in terms of his order of appointment dated19.12.1966 did not find place in the service records and therefore itwas confirmed that the petitioner had not submitted the CommunityCertificate at the time of his subsequent three promotions and thepetitioner having failed to comply with the terms and conditions ofthe appointment order/promotion orders, he is not eligible forenjoying the benefits of initial appointment and subsequentpromotions in the Food Corporation of India under the ScheduledTribes category and therefore the appointment order issued by theRegional Director, Southern Region, Ministry of Food and AgricultureDepartment, Government of India, Madras is cancelled. The said orderis challenged in this writ petition.(iii)The case of the petitioner is that he is a ScheduledTribe candidate belonging to Hindu Kurumans community and heproduced the community certificate issued by the competent authorityas per the conditions contained in the order of appointment dated19.12.1966. The petitioner's two sons have been issued withcommunity certificates to the effect that they belong to HinduKurumans Community and the said certificates were found valid by theDistrict level Caste Scrutiny Committee. The petitioner also servedas Zonal Secretary in the then FCI Class IV Employees Union and hewas one of the National Negotiating Member for South Zone for theScheduled Tribes in FCI and also held high positions in the FoodCorporation of India Executive Staff Union, which is a recognisedUnion.(iv)It is stated that because of the petitioner's involvementin the Union activities in the year 2005 i.e., on 24.10.2005, the https://hcservices.ecourts.gov.in/hcservices/ second respondent issued a show cause notice and called upon thepetitioner to show cause before the first respondent as to why actionshould not be taken for having failed to produce the communitycertificate so far and the petitioner was directed to produce thesame within two days. The said show cause notice was issued to thepetitioner before five days of his retirement and thereafter on31.10.2005 the impugned order was passed alleging that the petitionerhas not produced community certificate during the time of hisappointment in the year 1966 and also on subsequent three occasionswhen he was promoted.(v)The specific case of the petitioner is that he had alreadyproduced the community certificate in the year 1966 itself at thetime of his initial appointment before the Regional Director (Food),Southern Region, Ministry of Food and Agriculture, Government ofIndia, Madras, and therefore no demand can be made to producecommunity certificate on promotion and therefore the allegation thatthe petitioner had not produced the community certificate at the timeof his subsequent promotions is not tenable. The reason stated inthe impugned order that some squad/committee was constituted and thesame had conducted enquiry and therefore the notice was issued on24.10.2005 is unsustainable because neither the report submitted bythe Enquiry committee was forwarded to the petitioner nor he wasasked to submit any remarks. The show cause notice dated 24.10.2005gives only two days time to produce new community certificate, whichis not a reasonable time and the said action of the respondents showthe pre-determined mind of the second respondent in cancellingpetitioner's appointment.3.The first respondent has filed a counter affidavit whereinit is stated that when the petitioner was appointed in the RegionalDirectorate of Food Corporation of India, he was directed to producecommunity certificate and it was informed that if the condition isnot complied with, the appointing authority has powers to cancel hisappointment without notice. Subsequent to the formation of FoodCorporation of India, petitioner's services were transferred to theCorporation and he was promoted in the year 1983 on condition that heshould furnish community certificate confirming his status asScheduled Tribe. The contention of the petitioner that he hadproduced community certificate even at the time of joining in theservice in the year 1966 is false. It is further stated that thecommunity certificate issued to the petitioner's daughter wascancelled by the District Vigilance Committee in its proceedingsdated 20.12.2004 wherein community certificate issued to thepetitioner's sons were also referred to, though not cancelled. It isstated that the petitioner was given several opportunity to producethe community certificate, which the petitioner willfully failed toproduce the same. The allegations that the principles of naturaljustice is violated is denied in the counter affidavit. https://hcservices.ecourts.gov.in/hcservices/

4.The learned counsel appearing for the petitioner, apartfrom reiterating the contentions raised in the affidavit, submittedthat the petitioner was employed by the Government of India and hewas permanently absorbed in the Food Corporation of India without anypre-condition and the second respondent cannot now contend that thepetitioner has not produced community certificate before the RegionalDirector (Food), Southern Region, Ministry of Food and Agriculture,Government of India, Madras. Learned counsel further contended thatby virtue of the impugned order, the petitioner's service from29.12.1966 to 31.10.2005 is nullified and the petitioner's retirementbenefits are denied and therefore the said impugned order affects thecivil rights of the petitioner, for which no enquiry was conducted ascontemplated under Article 311 of the Constitution of India andSection 12A of the Food Corporation of India Act. Therefore,according to the learned counsel for the petitioner, the impugnedorder is unsustainable on several grounds.5.The learned counsel for the petitioner cited the decisionreported in 1993 (2) LW 143 (S.Prabhavathi v. The Revenue DivisionalOfficer, Thiruppathur) wherein Hon'ble Mr.Justice AR.Lakshmanan (ashe then was) held that if a person's close relative belongs to aparticular community, the said person should also be deemed to belongto the same community. In the decision reported in AIR 1999 Madras241 (S.Natarajan v. District Collector, Tuticorin) Hon'ble Mr.JusticeS.S.Subramani held that if the father is issued with a communitycertificate, his children are also entitled to be issued with similarcommunity certificate. The said decision was followed by the Hon'bleMr.Justice P.Sathasivam in the case of N.Rajeswari v. The DistrictCollector, Nellai Kattabomman District, Tirunelveli and Others,reported in (2000) 1 MLJ 267. In the said decision this Court heldthat if a close relative of a person is given a certificate by thecompetent authority certifying that he belongs to a particularcommunity, the community status of the relative cannot be doubted.The learned counsel also submitted that in the decision reported inJT 1997 (7) SC 660 (R. Kandasamy v. The Chief Engineer, Madras PortTrust) the Honourable Supreme Court held that the communitycertificate issued by the competent authority so long as are not setaside, the same will hold good for all purposes and every authorityis bound to accept the same as valid.6.The learned counsel appearing for the respondentsreiterated the contentions raised in the counter affidavit and citedthe decision of the Honourable Supreme Court reported in (2004) 2 SCC105 (R.Vishwanatha Pillai v. State of Kerala) and (2005) 7 SCC 690(Bank of India and another v. Avinash D.Mandivikar and others) toshow that if an appointment order is obtained by producing a falsecommunity certificate by a person holding civil post, he can bedismissed without following the due process of law as conferred under https://hcservices.ecourts.gov.in/hcservices/ Article 311 of Constitution of India as the appointment order itselfis a nullity.7.I have considered the rival submissions made by the learnedcounsel for the petitioner as well as the learned counsel for therespondents. The appointment order issued to the petitioner by theRegional Director (Food), Southern Region, Ministry of Food andAgriculture Department, Government of India, Madras-6 dated19.12.1966 states that the appointment will be subject to productionof certain documents at the time of reporting to duty. One of thedocument required to be submitted, as per clause 7 was CommunityCertificate in the prescribed form in respect of the candidatesclaims to be SC, ST or Anglo Indian community.8.It is the specific case of the petitioner that he hadproduced the community certificate before the Regional Director(Food), Southern Region, Madras-6, even at the time of joining dutyand the same was accepted and the petitioner's service was alsoconfirmed by the Regional Director (Food), Southern Region, Ministryof Food and Agriculture Department, Madras-6. The service registerdated 2.8.1967 maintained by the Regional Director of Southern Regionclearly states that the petitioner is a Hindu ST. The respondentCorporation passed an order on 28.7.1977 wherein 74 persons wereabsorbed in the services of FCI and they are regularly appointed tothe post shown in Column No.5 and are confirmed from the date shownagainst each in terms of regulation 5(5) of FCI Staff Regulation.Petitioner's name is found in Sl.No.5 in the list of persons. Thesaid confirmation order nowhere contain a condition that the personshould produce community certificate or their confirmation is subjectto production of community certificate. Now, the petitioner is ondialysis twice a week and a certificate dated 2.3.2004 to this effectis produced from Dr.V.Siranjeevi, Professor and Head of theDepartment of Nephrology, Kilpauk Medical College, Kilpauk, Chennai.9.The learned counsel for the respondents also produced thefile on circulation which contains the appointment order issued bythe Regional Director (Food), Southern Region, Ministry of Food andAgriculture, Government of India, Madras, dated 19.12.1966, thepromotion order issued to the petitioner on 22.12.1992 by the firstrespondent, the promotion order dated 23.12.2000 issued by the firstrespondent and final promotion order issued on 19.1.2001. Only inthe final promotion order dated 19.1.2001 it is stated that thecandidates promoted against the reserved points including thepetitioner shall produce latest community certificate within a month.10.As rightly argued by the learned counsel for the petitionersubmitted that pursuant to the Supreme court decision JT 1997 (7) SC660 (cited above), the community certificate issued once, so long asthe same is not cancelled, is valid for all purposes and every https://hcservices.ecourts.gov.in/hcservices/ authority is bound to accept the same as valid and therefore therequest made by the first respondent in the year 2001 to produce thelatest community certificate is not valid.11.The decision cited by the learned counsel for thepetitioner fully supports his case particularly when the cancellationof community certificate of petitioner's daughter is not valid in theeye of law because the said cancellation is made by two memberCommittee, which is contrary to the judgment of the Supreme Courtreported in AIR 1995 SC 94 = (1994) 6 SCC 241 (Kumari Madhuri Patiland another v. Additional Commissioner, Tribal Development andothers). The Government itself accepted the said position and issueda revised order in G.O.Ms.No.111 dated 26.10.2005 and constituted athree member Committee to verify the community status of thecandidates.12.The decision cited by the learned counsel for therespondents are clearly distinguishable since in the said cases thecommunity status of the candidates were verified by the competentauthorities and the cancellations were found valid by the High Courtof Kerala and by the Honourable Supreme Court. Para 11 of thedecision reported in (2004) 2 SCC 105 (cited supra) can be usefullyreferred to for proper appreciation of the facts in the saiddecision, which reads as under,"In Kumari Madhuri Patil case ((1994) 6 SCC241) the admissions were taken by two sisters toprofessional courses on the basis of false castecertificates produced by them, which werecancelled after the report submitted by theVerification Committee to the effect that thecertificates produced by the appellants thereinwere false and that the appellants did not belongto Scheduled Caste/Scheduled Tribe. The Courtobserved that all citizens were to be treatedequally. That the Constitution guaranteed to thecitizens equality before law and the equalprotection of law. Though Articles 14 and 15(1)prohibit discrimination among citizens butArticle 15(4) empowers the State to make specialprovisions for advancement of Scheduled Castesand Scheduled Tribes. Article 16(1) requiresequality of opportunity to all citizens in thematters of appointment to an office or a postunder the Union or a State Government or a publicundertaking etc. But Article 16(4) empowers theState to make provision for reservation ofappointments or posts in favour of castes notadequately represented in the services under the https://hcservices.ecourts.gov.in/hcservices/ State. That the admission wrongly gained orappointment wrongly obtained on the basis offalse social status certificate necessarily hasthe effect of depriving the genuine ScheduledCaste or Scheduled Tribe or OBC candidates asenjoined in the Constitution, of the benefitsconferred on them by the Constitution.Thereafter, the Court laid down the procedure forthe grant of social status certificate, its dueverification and the examination by the ScrutinyCommittee of its genuineness. If the certificatewas found to be genuine, then no further actionwas required to be taken but if the castecertificate produced was found to be false orfraudulently obtained, then immediate action wasrequired to be taken. The findings recorded bythe Scrutiny Committee were made final andconclusive which could not be challenged in anysuit or any proceedings except in the High Courtunder Article 226 of the Constitution of India.The Scrutiny committee was required tocommunicate its report under a registered coverto the educational institution as well as theappointing authority. The educationalinstitution or the appointing authority onreceipt of the said report was required to cancelthe admission/appointment without any furthernotice to the candidate and debar the candidatefrom further studying or continuing in office ina post. This was done to simplify the procedurefor grant of the social status certificate aswell as its scrutiny, and, if found to be false,the follow-up action to be taken. It was doneprimarily for quick disposal of such matters sothat the genuine Scheduled Caste and ScheduledTribe persons are not deprived of the benefitsconferred on them under the Constitution of Indiaand to debar the non-genuine Scheduled Castes andScheduled tribes from taking advantage of thebenefit conferred under the Constitution on thebasis of false caste certificate obtained by themby committing a fraud. The persons who hadobtained admission or got the appointment on thebasis of false caste certificate thereby usurpingthe seat/ post reserved for the ScheduleCastes/Scheduled Tribes were required to beweeded out by prompt action. It was held (SCCp.254, para 13) https://hcservices.ecourts.gov.in/hcservices/ "13.The admission wrongly gained orappointment wrongly obtained on the basis offalse social status certificate necessarilyhas the effect of depriving the genuineScheduled Castes or Scheduled Tribes or OBCcandidates as enjoined in the Constitutionof the benefits conferred on them by theConstitution. The genuine candidates arealso denied admission to educationalinstitutions or appointments to office orposts under a State for want of socialstatus certificate. The ineligible orspurious persons who falsely gained entryresort to dilatory tactics and createhurdles in completion of the inquiries bythe Scrutiny Committee. It is true that theapplications for admission to educationalinstitutions are generally made by a parent,since on that date many a time the studentmay be a minor. It is the parent or theguardian who may play fraud claiming falsestatus certificate. It is, therefore,necessary that the certificates issued arescrutinised at the earliest and with utmostexpedition and promptitude." "13.In the decision reported in (2005) 7 SCC 690 (cited supra)also the facts are that the duly constituted committee found that thecandidate was not belonged to that community and in such a situation,the Honourable Supreme Court held that the appointment obtained bythe candidate was not valid and mere delay in making verificationwill not justify the candidate for reinstatement. It is specificallyheld that the finding of the Scrutiny Committee having been accepted,the delay in making reference loses its significance.14.Here in this case, petitioner's community status was notdetermined by any duly constituted Committee as if he do not belongto ST community. Therefore the said decisions of the HonourableSupreme Court are factually not applicable to the facts in thepresent case.15.Taking into consideration the over all view of the matterincluding the confirmation order given by the respondents in the year1977 while absorbing the petitioner along with other employees in theFCI, I am of the firm view that the request of the respondents toproduce a community certificate just six days prior to the date ofhis retirement is unauthorised since it is not proved that thepetitioner has not produced community certificate before the RegionalDirector (Food), Southern Region, Ministry of Food and Agriculture, https://hcservices.ecourts.gov.in/hcservices/ Government of India, Madras-6, in the year 1966. Even assuming thepetitioner has not produced the community certificate in the year1966 as per the condition in the appointment order, petitioner'sappointment could have been cancelled then itself by the authoritywho appointed the petitioner. Therefore the contention of therespondents that the petitioner has not produced the communitycertificate before the appointing authority is not justified. Thesaid conclusion is arrived at by the second respondent only onpresumption.16.For the reasons stated above, the impugned order dated31.10.2005 is set aside and the respondents are directed to treat thepetitioner as retired from service from 31.10.2005. All retirementbenefits payable to the petitioner shall be calculated and paid tohim within a period of eight weeks from the date of receipt of copyof this order.The writ petition is ordered in the above terms. No costs.Connected miscellaneous petitions are closed.vrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Zonal Manager (South), Food Corporation of India,Zonal Office, No.3, Haddows Road, Chennai – 6.2.The Deputy General Manager (Personnel),Food Corporation of India,Zonal Office,No.3, Haddows Road, Chennai – 6.+ one cc to Mr.W.M.Abdul Majeed, Advocate Sr.No.28404.+ one cc to Mr.S.Vijayakumar, Advocate Sr.No.32162.W.P.Nos.10556 of 2006 RSM/27.7.2006