H.Rani v. The General Manager (South) & Disciplinary Authority, Food Corporation of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11..11..2008CORAMHON’BLE Mr.A.K.GANGULY, CHIEF JUSTICEandHON’BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLAW.P.No.11042 of 2008----------H.Rani ..PetitionerVs.The General Manager (South) & Disciplinary Authority,Food Corporation of India,3, Haddows Road,Chennai – 600 006. ..Respondent PRAYER: Petition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of certiorari to call for therecords in the order bearing No.4(18)/2005/CR Cell dated 15.09.2007passed by the respondent and praying to quash the same. ----------- For Petitioner :: Mr.M.RadhakrishnanFor Respondent :: Mr.A.S.Thambusamy ----------- O R D E R THE HON’BLE CHIEF JUSTICEThis writ petition has been filed by H.Rani challenging interalia the order dated 15.09.2006 passed by the Food Corporation ofIndia (hereinafter, as “FCI”) whereby it has been ordered that asthe petitioner’s community certificate has been cancelled by theState Level Scrutiny Committee her appointment is not legal andnon-est in the eye of law, and as such the General Manager (South),who is the competent authority under FCI (Staff) Regulation, 1971(hereinafter, as the “said Regulation”) passed an order cancellingthe extension of her daily rated service as Sweeper by letter dated22.3.1977 and the order regularizing her service as Sweeper witheffect from 13.6.1978 under Reserved Category and also terminatedher from the rolls of the Corporation with immediate effect and https://hcservices.ecourts.gov.in/hcservices/ also ordered that the writ petitioner will not entitled to retrialbenefits. 2. The case which has been made out in the writ petition is thatthe writ petitioner was appointed a Sweeper by the FCI by an orderdated 11.2.1977 with effect from 17.12.1976. At the time of joining,the writ petitioner produced a community certificate dated 5.6.1975to the effect that she belongs to Scheduled Tribe. However, it isalleged in the affidavit that the writ petitioner’s appointment isnot on the basis of her community certificate, but she was appointedas a General Candidate. Thereafter, the writ petitioner wasregularized in the said post in the category of general candidate inthe year 1978 with effect from 17.12.1976. Then, she was promoted tothe post of Assistant Grade-III (General) as a general candidate, andnot against the vacancy reserved for Scheduled Tribe. Thereafter, forthe first time, in August, 1994, after the writ petitioner served inthe FCI for 18 years, she was promoted against the vacancy reservedfor Scheduled Tribe as Assistant Grade II (General) and in the year2000, she was promoted as Assistant Grade I (General) against avacancy reserved for Scheduled Tribe. 3. The writ petitioner has submitted that her communitycertificate was sent for verification to the competent authority andthe State Level Scrutiny Committee by its order dated 31.08.2006cancelled the said community certificate by order dated 5.6.1975. Thegrievance of the writ petitioner is that pursuant to suchcancellation of her community certificate, the respondent instead ofreverting her from the post of Assistant Grade I to the post ofAssistant Grade III straightaway terminated her services by orderdated 15.09.2006, which according to the writ petition is illegal,inasmuch as her initial appointment as Sweeper with effect from17.12.1976 is not on the basis of her belonging to Scheduled Tribe. 4. In this matter, a counter-affidavit has been filed by therespondent-authority. In the said affidavit, which is affirmed on 18thJuly, 2008, it has been stated that the petitioner was sponsored bythe Employment Exchange as a Scheduled Tribe candidate and wasappointed on ad-hoc basis as Sweeper with effect from 17.12.1976.Subsequently, by an office order dated 11.2.1977, the appointment ofthe writ petitioner along with others were extended for a short termbasis with effect from 1.6.1976 to 31.3.1977 on the time scale ofpay. Subsequently, by another office order dated 13.06.1978 herservices were regularized with effect from 17.06.1976 and the writpetitioner produced the community certificate dated 5.6.1975 to theeffect that she belongs to Kattu Naicken community, which is aScheduled Tribe community. The case of the FCI is that based on thesaid community certificate she was appointed in the post reserved forScheduled Tribe. In the combined seniority list of Sweeper in TamilNadu Region, Office of the Joint Manager (P.O), Madras and ZonalOffice (Madras) as on 30.06.1978 and 31.12.1980, the writ petitionerwas shown as belonging to Schedule Tribe community in the senioritylist of AG.III, II and I. On that basis, she was promoted to thepost of Assistant Grade III by the officer under order dated https://hcservices.ecourts.gov.in/hcservices/

27.12.1988. In her service register, it has been recorded that shebelongs to Kattu Naicken community, and she has signed the CardexCard to that effect. It has been made very clear in the counteraffidavit that only persons who belong to reserved category arecalled upon to produce the necessary certificates from the CompetentAuthority, and there is no requirement for persons coming under opencategory to produce such certificates to the effect that thecandidate belongs to either Scheduled Caste or Scheduled Tribecommunity. The Community Certificate, which has been produced by thepetitioner, dated 05.06.1975, finds a place at page-1 of the typedset of papers filed along with the petition. The combined senioritylist of Sweeper in the Tamil Nadu Region, Office of Joint Manager(PO), Madras and Zonal Office, Madras as on 30.06.1978 has beenproduced and in the said list the name of the petitioner figures inSl.No.63, and it is shown against her name that she belongs toScheduled Tribe community (please see page-7 of the typed set ofpapers). Similarly, in the Combined Seniority List of Sweeper inTamil Nadu Region/Office of the Joint Manager (PO), Madras/ZonalOffice, Madras as on 31.12.1980, the name of the petitioner figuresin Sl.No.40 and it is shown that she belongs to Scheduled Tribecommunity (please see page-11 of the typed set of papers). TheCardex Card, which has to be filled in by the employee, shows thatthe petitioner belongs to Scheduled Tribe, and the said card has beensigned by the petitioner and in the said card the petitioner hasgiven a declaration that she belongs to the Scheduled Tribe (pleasesee page-14 of the typed set of papers).5. The stand of the FCI is that the writ petitioner was promotedto the post of Assistant Grade II against the vacancy reserved forScheduled Tribe for the first time in the year 1994 and only in theyear 2000, she was promoted to the post of Assistant Grade I againstthe vacancy reserved for Schedule Tribe, and from the beginning ofappointment she was treated as a Scheduled Tribe candidate. Thefurther stand of the FCI is that when the writ petitioner waspromoted to the post of Assistant Grade I in the year 2000 she wascalled upon to produce the fresh community certificate based on theCircular of Union of India to verify as to whether an employee stillbelongs to Scheduled Community or the said Community has been de-notified. As the petitioner failed to comply with the same, she wasserved with a show cause notice asking to show cause why disciplinaryaction should not be initiated against her. 6. The petitioner filed a writ petition being W.P.No.35754 of2003 challenging the said show cause notice. However, the said showcause notice was withdrawn and the community certificate of thepetitioner was sent for verification to the State Level ScrutinyCommittee. The State Level Scrutiny Committee, after considering allthe relevant facts and available records, and after affording anopportunity to the petitioner, by its order dated 31.08.2006 gave afinding that the petitioner does not belong to Kattu Naickencommunity, which falls under the category of Scheduled Tribe,resulting in the cancellation of the community certificate of thepetitioner dated 05.06.1975. https://hcservices.ecourts.gov.in/hcservices/

7. Challenging the same, the petitioner filed a writ petitionbefore this Court (W.P.No.32951/2006). This Court by order dated20.02.2007 upheld the order of the State Level Scrutiny Committeedated 31.08.2006 and dismissed the writ petition, against which noappeal has been filed by the petitioner. The Corporation has taken astand that the allegation of the petitioner that she ought to havebeen reverted as Assistant Grade III, is contrary to law. On theother hand, it has been stated that the petitioner was always treatedas a Scheduled Tribe candidate and she was given the benefits ofreserved category candidates. The further stand of the Corporation isthat having admitted under oath that she was sponsored and appointedas Sweeper under Scheduled Tribe category, the petitioner cannot nowclaim that she was appointed as an open category candidate. 8. The petitioner has filed a rejoinder, wherein she has statedthat the FCI has not produced any order to show that she wasappointed initially against a vacancy reserved for Scheduled Tribe,and in the absence of any such evidence, oral or documentary, herstatement in the affidavit accompanying the writ petition that shewas appointed to the post of Sweeper as a general candidate deservesto be accepted. She has further stated that in the two earlier writpetitions she has only stated that her name was sponsored by theEmployment Exchange for appointment to the post of Sweeper under thequota reserved for Schedule Tribe. She has further stated thatrequisition for candidates and sponsorship of candidates were withinthe exclusive knowledge of the employer and the employment exchange,and the said statement made by her may be ignored. Her case is thatthe onus is on the respondent to prove that she was appointed againsta vacancy reserved for Scheduled Tribe, and as the respondent failedto prove the same, her initial appointment as Sweeper should not havebeen cancelled by the respondent without prior notice. She furtherstates that the policy of reservation would not apply to casualemployment, but will apply only to regular post. She submits thatsince her first promotion to the post of Assistant Grade III (G) wasas a general candidate, at the most she could have been reverted tothe post of Assistant Grade III(G). 9. In the facts of this case, it is difficult to sustain thecontentions of the writ petitioner. In the typed set filed by FCI,the affidavit filed by the petitioner has been annexed and in thesaid affidavit filed by the petitioner in W.P.No. 35754 of 2003, thepetitioner has stated as follows: -“3. I respectfully submit that my name wassponsored by the Employment Exchange forappointment to the post of Sweeper under thequota reserved for scheduled tribes. At the timeof my appointment, I have submitted a communitycertificate dt.05.06.75 issued by the RevenueDivisional Officer, Dindigul to the effect that Ibelong to the Kattunayakan scheduled tribecommunity. https://hcservices.ecourts.gov.in/hcservices/

4. I respectfully submit that after beingsatisfied with the certificate produced by me,the respondent was pleased to appoint me and myservices were also confirmed in time.”10. Another affidavit was also filed by the petitioner in W.P.No.32951 of 2006, which is at page 32 of the typed set, where also thepetitioner has made the following statement: -“3. I respectfully agree that my name wassponsored by the Employment Exchange forappointment to the post of Sweeper under thequota reserved for scheduled tribes. At the timeof my appointment, I have submitted a communitycertificate dt.05.06.75 issued by the RevenueDivisional Officer, Thindivanam to the effectthat I belong to the Kattunayakan scheduled tribecommunity.4. I respectfully submit that after beingsatisfied with the certificate produced by me,the second respondent appointed me as a Sweeper.Subsequently, I was given further promotions andpresently I am serving as Assistant Gr.I.”Therefore, the consistent stand of the petitioner is that she wasappointed initially as a Sweeper against the reserved candidate. Shewas treated as reserved candidate in all other proceedings of theFCI. 11. Now it appears that her community certificate was cancelledby the State Level Scrutiny Committee by order dated 31.08.2006.Against that a writ petition was filed by the petitioner and the samehas been dismissed on 20.02.2007 holding that she does not belong toKattu Naicken Community. As noted above, that order has not beenchallenged by the writ petitioner. Therefore, that order has becomefinal. This writ petition has been filed after about 14 months of theorder dated 20.02.2007. 12. Reference in this connection can be made to the decision ofthe Supreme Court in the case of Kumari Madhuri Patil and another v.Addl.Commissioner, Tribal Development and others, 1994 (6) SCC 241.In paragraph-13 of the said judgment, the learned Judges streamlinedthe procedure to be followed once it is found that the ScheduledCaste or Scheduled Tribe or OBC certificates are not genuine. One ofthe said guidelines is as follows: -“15. As soon as the finding is recorded by theScrutiny Committee holding that the certificateobtained was false, on its cancellation andconfiscation simultaneously, it should becommunicated to the educational institutionconcerned or the appointing authority by https://hcservices.ecourts.gov.in/hcservices/ registered post with acknowledgment due with arequest to cancel the admission or theappointment. The Principal etc. of theeducational institution responsible for makingthe admission or the appointing authority shouldcancel the admission/appointment without anyfurther notice to the candidate and debar thecandidate from further study or continue inoffice in a post.” 13. Following the aforesaid direction of the Hon’ble SupremeCourt, the impugned order dated 15.09.2006 has been passed by theauthorities of the FCI. In the said impugned order, it has beenstated that the community certificate has been cancelled by the StateLevel Scrutiny Committee by order dated 31.08.2006 and the same hasbeen communicated to the petitioner by letter dated 01.09.2006.Relying on the same, the impugned order was passed by the FCIauthorities in terms of Guideline No.15. There is no infirmity in thesaid order especially when the order of State Level ScrutinyCommittee has been upheld by this Court by dismissing on 20.02.2007the petitioner’s writ petition (W.P.No.32951 of 2006) whichchallenged the order of the State Level Scrutiny Committee. 14. Same principles have been followed by the Supreme Court inthe case of R.Vishwanatha Pillai Vs. State of Kerala and Others,reported in AIR 2004 SC 1469. In paragraph – 13 at page 1474 of thesaid report the learned Judges held where a misconduct allegedagainst an employee is that he entered the service against reservedpost meant for SC or ST on the basis of false caste certificate, theissuance of a fresh notice under the Rules for proving the samemisconduct which has been examined by an independent body constitutedunder the direction of the Court and which has already been upheld bya Court would be repetitive and futile. 15. In paragraph – 15 at page 1475 of R.Viswanatha Pillai’s Casethe learned Judges held that when an appointment is obtained on thebasis of a false caste certificate, the position in law is that theperson obtaining such appointment has usurped the post which shouldhave gone to a genuine member of the Scheduled Tribe. Suchappointment is “void from its inception”. Therefore, the question offurther hearing before terminating the said appointment does notarise. 16. The learned counsel for the petitioner also relied on aconstitution Bench judgment of the Supreme Court in the case of DelhiTransport Corporation Vs. D.T.C. Mazdoor Congress and Others,reported in 1991 Supp (1) SCC 600. He relied on paragraph – 294 atpage 749 where the learned Judges relied on the principle decided bythe Hon’ble Supreme Court in the case of Basheshar Nath Vs. CIT,reported in AIR 1959 SC 149. In Basheshar Nath a Constitution Benchof the Supreme Court held that there can be no waiver of fundamentalrights, especially the rights under Article 14. This Court is of theopinion that the said principle has subsequently also been reiterated https://hcservices.ecourts.gov.in/hcservices/ by the Hon’ble Supreme Court in various other judgments, particularlyin Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 180. Butthe said principle is not attracted in the present case. In theinstant case, the petitioner’s right under Article 14 has not at allbeen infringed. Rather, it is clear from the facts discussed abovethat the petitioner obtained her appointment on the basis of a falsecaste certificate, and therefore, it was an illegal appointment, andthe said illegality was present from the very inception of herappointment. This position cannot be disputed. That being theaccepted position, the principle in the case of Basheshar Nath is notat all attracted in the facts of the present case. 17. The learned counsel for the respondent relied on a judgmentof the Supreme Court in the case of Union of India and Others Vs.S.Krishnan and Another, reported in (2008) 3 SCC 177. In paragraph –8 of the said judgment the learned Judges held that if an employeewas appointed in respect of a post belonging to the general category,there is no need for filing any community certificate. If thecommunity certificate produced was found to be bogus, the learnedJudges held that “essentially is the end of the matter” (See page –179 of the report). In the instant case, the community certificatehas been produced by the petitioner has been found to be fake by theState Level Scrutiny Committee and on a challenge the High Court hasalso held that the same is fake and upheld the finding of theScrutiny Committee. That finding is final between the parties. 18. Therefore, considering the views of the Hon’ble SupremeCourt in S.Krishnan, we also agree that is the end of the matter.This writ petition, which has been filed 14 months after the decisionof the High Court in W.P.No.32951 of 2006, which also held that thecaste certificate is fake, is wholly without any merit. As such thiswrit petition fails and accordingly, it is dismissed. But, in thefacts and circumstances of the case there will no order as to costs.The impugned order dated 15.09.2006 is upheld. Interim order, if any,is vacated. Sd/Asst.Registrar/true copy/Sub Asst.Registrarpv/smToThe General Manager (South)Disciplinary Authority,Food Corporation of India,3, Haddows Road,Chennai - 6 https://hcservices.ecourts.gov.in/hcservices/ 1 cc To Mr.M.Radhakrishnan, Advocate, SR.634111 cc To Mr.A.S.Thambuswamy, Advocate, SR.62711 W.P.No.11042 of 2008. SCD(CO)SRA(18/11/2008)