M.K. Raghuvaran and others v. State of Kerala and Others

W.P(c).No.21205/2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **WP(C).No. 21205 of 2015** ## **PETITIONER/S:** |1|**M.K.RAGHUVARAN**| |---|---| ||**AGED 70 YEARS**| ||**S/O.KOCHO, 'ROHINI', PULLERIPARAMBIL, MARADU NORTH,**| ||**MARADU.P.O., ERNAKULAM.(DIED)**| |2|**LALITHA P.K, W/O.M.K.RAGHUVARAN,**| ||**AGED 62, “ROHINI”, KOLLERIPARAMBIL,**| ||**MARADU NORTH, MARADU P.O, ERNAKULAM.**| |3|**SREEJITH K.R, S/O.M.K.RAGHUVARAN,**| ||**AGED 34, “ROHINI”, KOLLERIPARAMBIL,**| ||**MARADU, NORTH, MARADU P.O,**| ||**ERNAKULAM.**| |4|**SUJITH, S/O.M.K.RAGHUVARAN,**| ||**AGED 32, “ROHINI”,**| ||**KOLLERIPARAMBIL, MARADU NORTH,**| ||**MARADU.P.O, ERNAKULAM.**| **(PETITIONERS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 12.12.2018 IN I.A.NO.2/2018) BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**TRIVANDRUM. PIN-695 001.**| |**2**|**THE KERALA INSTITUTE OF RESEARCH TRANING AND**| ||**DEVELOPMENT STUDIES**| ||**SCHEDULE CASTE AND SCHEDULE TRIBES (KIRTHADS),**| ||**KOZHIKODE-17, REP. BY ITS DIRECTOR.**| W.P(c).No.21205/2015 2 **3 THE SCRUTINY COMMITTEE FOR VERIFICATION OF SC/ST CLAIMS REPRESENTED BY ITS CHAIRMAN, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.** **4 COCHIN PORT TRUST REPRESENTED BY ITS SECRETARY, WILLINGTON ISLAND,KOCHI-682 003.** **5 CONTROLLER OF STORES OFFICE OF THE CONTROLLER OF STORES, COCHIN PORT TRUST, PIN-682 003.** **BY ADVS. SPECIAL GOVT.PLEADER SRI.K.V.PRAKASHAN SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS, SC,COCHIN PORT TRUST SRI.BINU MATHEW, SRI.ISAAC THOMAS, SRI.NOBY THOMAS CYRIAC, SRI.TOM THOMAS (KAKKUZHIYIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2018, THE COURT ON 31.10.2018, DELIVERED THE FOLLOWING:** W.P(c).No.21205/2015 3 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.21205 of 2015-A ------------------------------------------- _Dated this the 31[st] day of October, 2018_ ## _**JUDGMENT**_ The orders Exts.P13, P17 and P18 by which the community certificate issued to the deceased 1[st] petitioner is cancelled and a declaration is issued to the effect that the deceased 1[st] petitioner and members of his family do not belong to Scheduled Tribe, are under challenge in this writ petition. 2. The deceased 1[st] petitioner (hereinafter referred to as petitioner) joined the Port Trust on 25.6.1970 as a Lower Division Clerk and he retired from service on 31.8.2002 while working as Manager, Office of the Controller of Stores under the 4[th] respondent. The case of the petitioner was that he was born to one Kocho in Chammanampathy, Chittoor Taluk in Palakkad district, who belonged to Scheduled Tribe community “Eravalan”. His father settled in Maradu in Ernakulam district and died 60 years ago and his mother also died about 30 years ago. Petitioner's mother belonged to `Valan' community. He was admitted in Government Junior Basic School, Kundannoor in the year 1950. In the admission register of that School, his community was entered as “Valan”, which is the community of his mother and included among Other Eligible Communities (OEC). However, the caste name was changed in the admission register as 'Eravalan' which is the caste of his father as per order No.L.Dis.2641/58/D1 dt.20.3.1958 of the District Educational Officer and in his SSLC book the caste name is shown as 'Eravalan' which is a Scheduled Tribe W.P(c).No.21205/2015 4 community. On 30.4.1965, the District Magistrate, Ernakulam had issued Ext.P3 certificate to the effect that the petitioner belonged to Eravala community which is recognised as a Scheduled Tribe. On his appointment in the Port Trust, the Labour Officer, Navy Office, Cochin had issued Ext.P4 certificate on 18.6.1970, in which it was certified that he belonged to Eravala community which is recognised as a Scheduled Tribe and that he had been residing in Ernakulam district. The petitioner submitted that he was promoted as Divisional Store Keeper in the year 1989, against a vacancy reserved for Scheduled Tribe community, subject to verification of caste status. On verification, the District Collector, Ernakulam, after calling for a report from the Tahsildar informed the Secretary of the Cochin Port Trust, as per Ext.P5 letter dated 27.07.1990 that the petitioner's family was originally from Chittoor, Palakkad and they migrated and settled in Maradu village about 35 years back and there was no evidence to confirm his claim of Scheduled Tribe status. He therefore, requested to ascertain the caste of the petitioner from the Director of KIRTADS, Kozhikode, who is the competent authority. Thereafter, the 2[nd] respondent issued a notice to the petitioner with respect to an enquiry regarding his caste status and he had submitted his explanation. It is stated that the Vigilance Officer of the 2[nd] respondent submitted a report dated 16.02.2000 and on receipt of the report, the petitioner submitted his reply on it on 2.6.2000. It is stated that the 3[rd] respondent thereafter issued Ext.P6 proceedings on 03.03.2001, accepting the report of the Vigilance Officer in which the claim of the petitioner was repelled. The 3[rd] W.P(c).No.21205/2015 5 respondent recommended action against the petitioner. Government issued Ext.P7 order on 13.11.2001, withdrawing the Scheduled Tribe status of the petitioner. The petitioner challenged Ext.P7 order, filing O.P.No.38663/2001 alleging that no enquiry was conducted in his birth place and no enquiry was conducted in accordance with law. In Ext.P8 judgment dated 02.03.2006, this Court found that the scrutiny committee, which passed Ext.P6 proceedings was not one constituted in terms of the Kerala (SC & ST) Regulation of Issue of Community Certificates Act, 1996 (hereinafter referred to as `the Act 11 of 1996' for short). Thereupon, this Court set aside Ext.P7 order, leaving it open to the competent authority to proceed under Act 11 of 1996. In the meanwhile, the petitioner had retired from service on 31.8.2002. However, by Ext.P9 letter the Port Trust informed him that his retirement would be without prejudice to the disciplinary action already initiated against him. Ext.P11 show cause notice was issued on 25.10.2006 referring to the report dated 16.02.2000 of the Vigilance Officer of KIRTADS and Ext.P8 judgment dated 2.3.2006. The petitioner was asked to show cause against the proposal to refuse his claim as a member of the Scheduled Tribe community and to confiscate the certificates wrongly secured by him as per the provisions contained in Act 11 of 1996 and he was directed to submit his explanation within two weeks. The petitioner thereupon submitted Ext.P12 explanation pointing out that his father belonged to Chammanapathy Oooru, Chittur Taluk, Palakkad District in the Eravallan community and migrated to Maradu 85 years back in search of employment and he got shelter in the residence of one W.P(c).No.21205/2015 6 Ayyappan. The petitioner stated the name of his father's parents, brother of his father and the family members and produced the caste certificates of his relatives, community certificates and the extracts of admission register. Further he stated that he had completed 10[th] standard in the year 1965 and passed the examination only in the year 1967. In the SSLC book and transfer certificate, his caste name was shown as Eravalan. In the year 1970, when he joined service in the Cochin Port Trust he had produced the certificates issued by the District Magistrate. He also pointed out that when a vacancy of Sub Store-keeper arose in the year 1976, he was overlooked and on the basis of his complaint he was granted promotion. Thereafter, he was promoted as Divisional Store Keeper in the year 1989 subject to verification of his caste status. The Tahsildar had reported that he originally hailed from Palakkad district and thereafter shifted to Maradu Village. The petitioner stated that the KIRTADS had not conducted a proper enquiry in the matter and no field enquiry was conducted in his presence or at the birth place of his father. Producing affidavits in respect of the caste status of his father, the petitioner pointed out that the report of the KIRTADS was liable to be rejected and that the story put up by the KIRTADS is baseless. The petitioner stated that Sri Ayyappan, who gave shelter to his father, was a Valan and the petitioner's mother belonged to Valan community. As, nothing was heard on the enquiry and the petitioner did not get his pensionary benefits, the petitioner filed this writ petition on 13.7.2015. He was granted provisional pension. On receipt of the notice in the writ petition, the respondent Government issued Ext.P13 notice on W.P(c).No.21205/2015 7 18.9.2015 fixing a hearing on 7.10.2015 by the Scrutiny Committee for verification of community certificates. The petitioner appeared for the hearing and submitted Ext.P14 written submissions. The petitioner expired on 07.12.2015. Thereafter his legal heirs got impleaded in this writ petition as additional petitioners. 3. Along with I.A.No.16745 of 2016 the 4[th] respondent produced Ext.R4(a) proceedings dt.16.7.2016 issued by the Government declaring that the petitioner and members of his family do not belong to Scheduled Tribe Eravallan community but belong to Valan OBC and that none of the members of his family would be eligible for any of the benefits exclusively intended for members of the Scheduled Tribes and if any such benefits are granted it shall be stopped. It was also directed that the corresponding correction shall be carried out in the academic records of the members of the family and all the Scheduled Tribe certificates secured by them shall be declared as cancelled. The petitioner thereafter incorporated the challenge against the same producing the order of Government as Ext.P18 and the proceedings dated 28.12.2015 of the Scrutiny Committee as Ext.P17, filing I.A.No.3639/2017. The scrutiny committee passed Ext.P17 order, referring to the anthropological report dated 16.02.2000 of the Vigilance Officer, KIRTADS, proceedings dated 03.03.2001 and order dated 13.11.2001 as well as the judgment Ext.P8. Referring to the orders dt.3.3.2001 and 13.11.2011 (Exts.P6 and P7) it was stated that the Government had already rejected the S.T claim in respect of the petitioner and directed the Cochin Port Trust to terminate the services of the petitioner as he was appointed on consideration W.P(c).No.21205/2015 8 as a member of the Scheduled Tribe. It is stated that subsequent to the judgment, a show cause notice was issued on 4.10.2006 and the scrutiny committee had forwarded his explanation to the expert agency for remarks on 5.3.2007. Stating that the petitioner was admitted in Std.I declaring his caste as Valan and that in the T.C issued to him on completion of the 5[th] standard, the caste status was shown as Valan and he continued to be in the status of Valan till it was changed as per order dt.20.3.1958 of the DEO, Ernakulam; it was stated that the prefix “Era” to the caste name 'Valan' was added in order to avail the benefits which are exclusively available to members of Scheduled Tribes. It was further stated that as per the enquiry report referring to genealogical as well as documentary evidence, the petitioner did not belong to Eravalan community and the scrutiny committee had thereupon decided to reject the S.T claim of the petitioner and to cancel the community certificate issued to him, in exercise of their powers under Section 11(1) of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act 1996. In Ext.P18 order passed thereafter the Government while rejecting the claim of the petitioner, ordered as follows: _“xxxxx xxxxx xxxxx xxxxx xxxxx I. It is declared that Sri.M.K.Raghuvaran, S/o.Kocho, “Rohini”, Pulleriparambil Maradu North, Maradu.P.O, Ernakulam and members of his family do not belong to Scheduled Tribe (Eravallan) community, but belong to Valan (OBC)._ _II. None of the members of his family shall be eligible for any of the benefits exclusively intended for members of the Scheduled Tribes. If any of them has availed of the benefits meant for members of the Scheduled Tribes, all such benefits shall be stopped._ _III. If the caste name in respect of any of the family members of Sri.M.I.Raghuvaran, S/o.Kocho, “Rohini”, Pulleriparambil, Maradu North, Maradu.P.O, Ernakulam is recorded in their academic records as Scheduled Tribe (Eravallan) it shall be got corrected as Valan (OBC). IV. Scheduled Tribe Certificates shall not be issued to any of the members of his family hereinafter. All the Scheduled Tribe certificates secured by them, shall be_ W.P(c).No.21205/2015 9 _treated as cancelled.”_ 4. Respondents 1 and 3 filed a counter affidavit stating that the KIRTADS had already conducted an anthropological enquiry in which it was found that the petitioner does not belong to S.T Eravalan community. The genealogical and documentary evidences collected by the KIRTADS proved that the petitioner and his consanguineal and affinal relatives belong to Valan Fisherman community classified under OBC/OEC. It was found that the petitioner's father and his wife belonged to Valan community; the studies conducted by the 2[nd] respondent proved that the petitioner's father was born in the Valan community and hailed from Maradu Village and not from Chittur Taluk of Palakkad district. Producing Ext.R1(a) admission register of Govt. Junior Basic School at Kundannur where the petitioner joined, it was stated that his caste was shown as Valan. It was only in the high school level that the caste name was changed to Eravalan as per the order of the D.E.O, Ernakulam. It is stated that the 1[st] petitioner was recruited as Chowkidar in 1964 in the office of the Garrison Engineer, Military Engineering Service, Cochin Naval Base, Cochin against the quota reserved for S.T. He was appointed as a Net Mentor at the offshore fishing station in Central Marine Fisheries Department in 1965; he was recruited as a Peon in the office of Naval Armament Inspectorate of Southern Naval Commandant against the vacancy reserved for S.T. Thereafter he was recruited as LDC in the Cochin Port Trust against the quota reserved for S.T. At the time of promotion as Divisional Store Keeper in the Cochin Port Trust in 1989, the petitioner had produced S.T (Eravallan) W.P(c).No.21205/2015 10 community certificate issued by the District Magistrate, which was issued without conducting verification or enquiry. It is stated that under Section 9 of the Kerala Scheduled Caste and Scheduled Tribes) Regulation of Issue of Community Certificates Act (Act 11 of 1996), the expert agency – KIRTADS is empowered to conduct enquiries as it may deem fit, into the claim of an individual or group of individuals, as to their caste status and a report of the expert agency would be conclusive proof as to their status unless otherwise found by the scrutiny committee after observing the stipulated procedure. It is stated that after the KIRTADS furnished the report after enquiry, the Government issued a show cause notice on 25.10.2006 against cancellation of his claim to which the petitioner had submitted his explanation. A hearing was conducted before issuing orders. It is stated that on receipt of Ext.P12 representation, copy of the same was forwarded to Expert Agency for remarks and further proceedings were taken against the petitioner after the remarks were received from KIRTADS. It is stated that the petitioner secured his job under pseudo caste certificate. Producing Exts.R1(d) and R1(e) orders issued, the respondents stated that the 1[st] petitioner cannot have any claim on the basis of the S.T certificate issued to him and that he belonged to Valan community was found on the basis of the genealogical as well as documentary evidences. 5. In the counter affidavit of the 4[th] respondent it is stated that as a doubt was raised as to the caste certificate produced by the petitioner, the matter was taken up with the SC/ST Development Department of the State Government to determine W.P(c).No.21205/2015 11 his caste status in accordance with the Kerala (Scheduled Caste and Scheduled Tribe) Regulation of issue of Community certificate Act. The Scrutiny Committee considered the matter thereafter and after hearing the petitioner, issued Ext.P6 proceedings. The Government thereafter issued Ext.P7 order directing the 4[th] respondent to initiate action against the petitioner for raising false claim. However, as the petitioner challenged the same in O.P. No. 38663 of 2001, the 4[th] respondent, though issued a memo of charge to the petitioner on 11.12.2001, could not proceed with it, on account of the stay order passed in that Original Petition. By Ext.P8 judgment, this Court quashed Ext.P7 order with liberty to the respondents to conduct the proceedings in accordance with rules. The petitioner retired from service during the pendency of the writ petition. As disciplinary action was already initiated against the petitioner, he was granted provisional pension, as provided under Sub Rule 4 of Rule 9 of CCS(Pension) Rules, from 01.09.2002, subject to the final orders of the competent authority on his caste status. The 4[th] respondent thereafter filed I.A.No.16745 of 2016 producing Ext.R4(a)/(Ext.P18) order of the SC/ST Development Department in which it was informed that the scrutiny committee rejected the S.T claim of the petitioner and recommended to take further action. It was directed that the petitioner and his family are not eligible for any benefits exclusively intended to members of S.T and that if any of them had availed any such benefits it shall be stopped. The 4[th] respondent stated that the very appointment of the petitioner under it was against a post reserved for Scheduled Tribe and therefore his W.P(c).No.21205/2015 12 appointment itself has become void. Therefore, the 4[th] respondent requested for permission to stop the family pension. But as per order dated 04.11.2016, the 4[th] respondent was directed to continue the payment subject to further orders. 6. I heard the learned Counsel for the petitioner and the learned Special Government Pleader for respondents 1 and 3 and the learned Standing Counsel for the 4[th] respondent. 7. The contention of the petitioner is that he never made any fraudulent claim or obtained the certificate Ext.P3 fraudulently so as to take away the benefits of his caste status. 8. Relying on the judgment in _**Vijayan P.S and Ors. v. State of Kerala & Ors.**_ [2013 (2) KHC 149] and _**Haridasan K.N v. State Bank of Travancore & Ors.**_ [2017 KHC 318] it was argued that as long as there is no finding that the petitioner has obtained any certificate fraudulently or obtained any employment fraudulently, none of the benefits can be taken away from him. It is also pointed out that show cause notice was issued to him subsequent to the filing of the writ petition and Exts.P17 and P18 proceedings were issued at a time when he was no more and therefore such an order cannot be invoked against him for depriving the service benefits. 9. On the other hand, the learned Special Government Pleader argued that the report of the KIRTADS is arrived at after an elaborate study in accordance with law and the Government has accepted it as a conclusive proof against the claim of the W.P(c).No.21205/2015 13 petitioner. Relying on the judgment of the Apex Court in _**Food Corporation of India v. Jagadish Balram Bahira and Ors**_ **:** (2017) 8 SCC 670, it was argued that the judgments relied on by the learned Counsel for the petitioner can no longer be applied. 10. The Act 1996 has been enacted to effectively curb the evil practices of securing certificates by persons other than those belonging to the Scheduled Castes and Scheduled Tribes for claiming the benefits of reservation and other benefits exclusively meant for them. Section 6 provides for the constitution of a screening committee. Section 8 provides for constitution of a scrutiny committee for verification of community certificates by the Government. Section 9 provides for an enquiry by expert agency into the claim of an individual or group of individuals that he or they belongs or belong to the Scheduled Caste or Scheduled Tribe community, either suo motu or on petitions or complaints received by it or references or requisitions or directions or proposals received from the State and Central Governments. Subsection 2 provides that the report of the expert agency shall be conclusive proof for or against the Scheduled Caste or the Scheduled Tribe claim, and the person reported shall be entitled for a copy of the report of the expert agency if requested. Under Section 10, the burden of proving that one belongs to such caste or tribe shall be on the claimant. Section 11 provides for cancellation of false community certificate which reads as follows: W.P(c).No.21205/2015 14 _“11. Cancellation of false ommunity certificate:-- (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes or the Scheduled Tribes has obtained a false community certificate to the effect that either himself or his children belongs or belong to such Caste or the Tribe, the Scrutiny Committee may either suo motu or on a written complaint or report by any person or authority, call for the records and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by order, cancel the certificate after giving the person concerned an opportunity of making a representation, if any._ _(2) The powers of the nature referred to in sub-section (1) may also be exercised by the Government._ _(3) The Scrutiny Committee while performing its functions for verification and cancellation of community certificates shall follow such procedure as may be prescribed.”_ Sub section 3 of Section 12 provides for an appeal against an order under Section 11 of the Scrutiny Committee, before the High Court. Sub section 4 provides for a review by the Government. Section 16 of the Act provides for withdrawing the benefits enjoyed by persons who got appointment based on such false certificates, once the certificate was cancelled. Section 16 A provides that in the event the incumbent retires from service pending enquiry by the scrutiny committee, into his caste stastus, the authority under whom he works shall have the power to defer or withhold his pensionary benefits. 11. It is pertinent to note that a Division Bench of this court had in _**Vijayan'**_ s case ( _supra_ ) interpreted the words and expression “fraudulently” occurring in Section 11 of the Act, as pointed out by the learned counsel for the petitioner, and had held that the cancellation of caste certificate is permissible only if it was found to have been obtained fraudulently. The said dicta can no longer be applied in the light of the judgment of the Apex Court in _**Jagdish Balram Bahira'**_ s case( _supra_ ). The W.P(c).No.21205/2015 15 judgment in _**Haridasan**_ 's case ( _supra_ ) will also not apply, because there was already a direction in the MFA filed by him that the benefits received by him shall not be recovered and they shall not be prosecuted. However, the observations with respect to requirement to commit fraud in obtaining the certificate, can longer have any force in the light of the judgment of the Apex Court. Once the very appointment itself was made against a post exclusively reserved for a candidate belonging to Scheduled Tribe Community, thereby depriving the opportunity of a member belonging to that tribe, the said appointment becomes void. 12. The Apex Court, after discussing almost all the judgments rendered hitherto in respect of such appointments of persons, who were subsequently found to be non-members of the SC or ST, by the scrutiny committee, has held that the appointment itself would be void and there is no question of granting any equitable relief to such persons who deprived the opportunities and benefits which were legitimately due to the concerned reservation categories. 13. It is seen from the counter affidavit of the 4[th] respondent that the very appointment of the petitioner was against a post reserved for Scheduled Tribe Community. In the judgment in _**Food Corporation of India v. Jagdish Balaram Bahira**_ [ **(** 2017) 8 SCC 670] **,** the Apex Court was dealing with the cases covered by Maharashtra _S_ cheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category W.P(c).No.21205/2015 16 (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 enacted pursuant to the judgment in _**Madhuri Patil**_ **v.** _**Commr., Tribal Development** :_ (1994) 6 SCC 241 _._ Sections 7 and 10 of the Maharashtra Act are more or less similar to Sections 11 and 16 respectively of the Act, 1996 of the State of Kerala, relating to cancellation of the community certificate and withdrawal of the benefits secured based on the certificate. It was held that when a person, who does not belong to a caste, tribe or class for whom reservation is meant, enjoys the benefits legitimately due to a member of that particular caste, tribe or community, it constitutes a fraud on the Constitution, a fraud on the statute, as well as a fraud on the State policy. Various judgments in such cases and the jurisdiction of the courts under Articles 226, 32 and 142 in protecting the individuals who enjoyed the benefit of reservation in spite of the fact that they do not belong to the Scheduled caste/tribe/community or class, were elaborately discussed in the judgment **.** It was held that in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle. As the nation evolves, the role of the court must be as an institution which abides by constitutional principle, enforces the rule of law and reaffirms the belief that claims based upon fraud, expediency and subterfuge will not be recognised. Once these parameters are established with a clear judicial formulation, individual cases should pose no problem. Usurpation of constitutional benefits by persons who are not W.P(c).No.21205/2015 17 entitled to them must be answered by the court in the only way permissible for an institution which has to uphold the rule of law. Unless the courts were to do so, it would leave open a path of incentives for claims based on fraud to survive legal gambits and the creativity of the disingenuous. After discussing a series of judgments, the Apex Court reiterated the proposition in the judgment in _**R. Vishwanatha Pillai v. State of Kerala**_ : (2004) 2 SCC 105, of a 3 judge Bench of the Apex Court in which it was held that the appointment itself became void once it was found that he did not belong to Scheduled caste, as the appointment was made against a post reserved for Scheduled Caste community and that when an appointment in a service was acquired by practising fraud it is not an appointment in law, in service and Article 311 of the Constitution would not be attracted in such circumstances. It was held that the right to salary or pension accrues only if the appointment was valid and legal. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing fraud. No sympathy and equitable consideration can come to his rescue. The judgments in _**R. Vishwanatha Pillai v. State of Kerala**_ **:** (2004) 2 SCC 105, _**Bank of India v. Avinash D. Mandivikar**_ **:** (2005) 7 SCC 690 **,** _**BHEL v. Suresh Ramkrishna Burde**_ **:** (2007) 5 SCC 336 **,** _**State of Maharashtra v. Sanjay K. Nimje**_ **:** (2007) 14 SCC 481 **,** _**Union of**_ _**India v. Dattatray**_ **:** (2008) 4 SCC 612, _**Yogesh Ramchandra Naikwadi v. State of Maharashtra**_ **:** (2008) 5 SCC 652, _**Anjan Kumar v. Union of India**_ **:** (2006) 3 SCC W.P(c).No.21205/2015 18 257, _**State of Maharashtra v. Ravi Prakash Babulalsing Parmar**_ **:** (2007) 1 SCC 80, _**Central Bank of India v. Madhulika Guruprasad Dahir**_ **:** (2008) 13 SCC 170, **B.H. Khawas v. Union of India:** (2016) 8 SCC 715, where the Apex Court denied relief to the employee based on the scrutiny committees finding and consequential cancellation of caste certificate, were approved. 14. The Apex Court observed that the employees involved in the judgments in _**Central Warehousing Corpn. v. Jagdishkumar Vithalrao Panjankar**_ : (2017)14 SCC 500 (in 2007) and _**State of Maharashtra v. Om Raj**_ : (2017)14 SCC 488 (in 2009), _**Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar**_ : (2008) 9 SCC 54, _**Punjab National Bank v. Vilas**_ :(2008) 14 SCC 545, _**Vijakumar v. State of Maharashtra**_ : (2010) 14 SCC 489, _**Damodhar v. State of Maharashtra**_ : (2010) 15 SCC 537, _**Raiwad Manojkumar Nivruttirao v. State of Maharashtra**_ : (2011) 9 SCC 798; _**Dattu v. State of Maharashtra**_ : (2012) 1 SCC 549, were allowed to continue on the basis of a resolution of the Government/as general candidate, etc., on directions issued under Article 142 of the Constitution of India. 15. At the same time the judgment in **K** _**avita Solunke**_ **v.** _**State of Maharashtra**_ , (2012) 8 SCC 430 by a 2 Judges Bench allowing her continuance, observing that she had not committed any fraud, etc. was found to be rendered without noticing the Maharashra Act 23 of 2001. The Apex Court discussed a similar view adopted in **Shalini v. New English High School Assn :** (2013) 16 SCC 526, W.P(c).No.21205/2015 19 even after taking note of the 3 Judge judgment in **Dattatray'** _s case_ and overruled both those judgments. After discussing the judgment in _**Kavitha Sounke**_ 's case and _**Salini**_ 's case ( _supra_ ), it was observed that once a caste certificate is cancelled by the Scrutiny Committee under Section 7 of the Maharashtra Act, the withdrawal of the benefit under Section 10 is its normal consequence. In paragraph 52 of the judgment it was held that 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. It was observed that in case the affected party seeks the protection of service, or of the admission to the course, even after the cancellation under Section 7 of the Act 2001, such protective relief would be impermissible. In paragraph 54 of the judgment it was held as follows: _“54.The object and purpose underlying the enactment of the State legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. xxxxxxxxxx. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained, form the basis of a cancellation under Section 7. xxxxxxxxxx the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. The expression “false” must be construed in contradistinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.”_ It was held that the judgment in _**Salini**_ 's case did not lay down the correct principle. In paragraph 55 it was held that the grant of the benefit to the candidate is fraudulent W.P(c).No.21205/2015 20 ## because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled. In paragraph 56 it was held as ## follows: _56. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence, the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the Constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28-11-2000. The State law has been enforced from 18-10-2001. Judicial directions must be consistent with law. Several decisions of two-Judge Benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it.”_ It was held that the circulars of the Government protecting those who got appointed against vacancies reserved for SC/ST/a community, even after it was found that he does not belong to that community or tribe would substantially encroach upon legal W.P(c).No.21205/2015 21 rights of genuine members of the reserved communities and therefore such Government circulars or resolutions cannot operate to their detriment. The Apex Court reiterated the law laid down in _**R. Viswanatha Pillai**_ 's case and in _**Dattatray**_ 's case ( _supra_ ) overruling the judgment in _**Kavita Solunke**_ and in _**Salini**_ 's case, specifically holding that requirement of dishonest intent is erroneous. 16. In the present case the KIRTADS had already found that the petitioner did not belong to Scheduled Tribe Community. However, the order passed by the Government was set aside by this Court. Thereafter, even though show cause notice and explanation were issued and submitted in 2006 itself but for further proceedings the Scrutiny committee waited till the filing of the writ petition in 2015 and an order was passed only after his death. However, the orders were passed after he was given a personal hearing. It would appear that none of the members of the family of the petitioner invoked the statutory remedy of filing MFA against the order or even a review petition before the Government. The 4[th] respondent had approached the SC ST Development Department in the year 1989 when the petitioner was granted promotion as Divisional Store Keeper subject to verification of the caste status. Even though orders were issued in 2001 cancelling his community certificate and memo of charges were issued to him in 2001, the proceedings were stayed as per order passed in O.P which ultimately resulted in Ext.P8 judgment. Though the order Exts.P17 and P18 were passed subsequent to the death of the petitioner, it applies to all including W.P(c).No.21205/2015 22 the legal heirs of the petitioner. 17. In the circumstances of the case, the judgment in _**Vijayan**_ 's case or in _**Haridasan**_ 's case cannot have any force in the light of the judgment of the Apex Court in _**Jagdish Balaram Bahira**_ 's case ( _supra_ ). The proceedings of the scrutiny committee or the consequential orders passed by the Government do not suffer from any illegality. Once the findings of the KIRTADS are accepted by the scrutiny committee and the community certificate is cancelled, the appointment of the deceased petitioner became void and he or his legal heirs would not be entitled to receive any benefits out of a void appointment. For denying such benefits it is not necessary for the 4[th] respondent to initiate any separate proceedings. Therefore, no further benefit need be granted to the family members of the petitioner, There is no direction to recover the benefits already received. In the circumstances of the case it is not warranted also. The writ petition is accordingly dismissed. Sd/- **==> picture [196 x 13] intentionally omitted <==** _rtr/_ **APPENDIX** W.P(c).No.21205/2015 23 ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1- TRUE COPY OF EXTRACT OF ADMISSION REGISTER, MAINTAINED IN THE MANGAYIL HIGH SCHOOL, MARADU. EXHIBIT P2 P2- TRUE COPY OF 3RD PAGE OF SSLC BOOK OF PETITIONER. EXHIBIT P3 P3- TRUE COPY OF CASTE CERTIFICATE DATED 30.04.1965 ISSUED BY DISTRICT MAGISTRATE, ERNAKULAM. EXHIBIT P4 P4- TRUE COPY OF VERIFICATION STATEMENT DATED 18.06.1970 ATTESTED BY LABOUR OFFICER, NAVY OFFICE. EXHIBIT P5 P5- TRUE COPY OF VERIFICATION REPORT DATED 27.07.1990 OF DISTRICT COLLECTOR ERNAKULAM. EXHIBIT P6 P6- TRUE COPY OF PROCEEDINGS DATED 03.03.2001 OF 3RD RESPONDENT. EXHIBIT P7 P7- TRUE COPY OF G.O.(MS)NO.64/2001/SC ST DD DATED 13.11.2001 OF THE 1ST RESPONDENT. EXHIBIT P8 P8- TRUE COPY OF JUDGMENT IN O.P.NO.38663/01 DATED 02.03.2006 OF THIS HON'BLE COURT. EXHIBIT P9 P9- TRUE COPY OF NOTICE DATED 16.08.2002 OF 5TH RESPONDENT. EXHIBIT P10 P10- TRUE COPY OF ORDER NO.P2/OP3866/MKR/06S DATED 05.02.2007. EXHIBIT P11 P11- TRUE COPY OF SHOW CAUSE NOTICE DATED 25.10.2006 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P12 P12- TRUE COPY OF REPLY STATEMENT DATED 04.11.2006 SUBMITTED BY THE PETITIONER. EXHIBIT P13 P13 – TRUE COPY OF NOTICE DT.18.9.2015. EXHIBIT P14 P14 – TRUE COPY OF DETAILED STATEMENT SUBMITTED BY THE PETITIONER.** **EXHIBIT P15** **TRUE COPY OF ORDER DT.2.5.2016 OF THE 4TH RESPONDENT.** W.P(c).No.21205/2015 24 **EXHIBIT P16 TRUE COPY OF RELEVANT PAGES OF THE PENSION PAYMENT ORDER DT.2.5.2016.** |**EXHIBIT P17**|**TRUE COPY OF THE PROCEEDINGS**| |---|---| ||**NO.18364/93/2003/SCSTDD DATED 28.12.15 BY**| ||**THE 3RD RESPONDENT.**| |**EXHIBIT P18**|**TRUE COPY OF ORDER DT.16.7.16 BEARING**| ||**NO.GO(MS) 46/2016/SCSTDD OF THE 1ST**| ||**RESPONDENT.**| |**1ST RESPONDENTS'**|| |**EXHIBITS**|| |**EXT.R1(a)**|**TRUE COPY OF THE ADMISSION REGISTER.**| |**EXT.R1(b)**|**TRUE COPY OF THE TRANSFER CERTIFICATE.**| |**EXT.R1(c)**|**TRUE COPY OF THE APPLICATION FORM.**| |**EXT.R1(d)**|**TRUE COPY OF THE PROCEEDINGS OF THE SCRUTINY**| ||**COMMITTEE FOR VERIFICATION OF COMMUNITY**| ||**CERTIFICATE NO.18364/G3/03 SCSTDD**| ||**DT.28.12.2015.**| |**EXT.R1(e)**|**TRUE COPY OF THE ABSTRACT OF THE GOVERNMENT**| ||**ORDER G.O(MS)NO.46/2016/SCSTDD DATED**| ||**16.7.2016.**| |**EXT.R1(f)**|**TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT CARD.**| |**EXT.R1(g)**|**TRUE PHOTOCOPY OF THE ENVELOPE WITH THE**| ||**POSTAL ENDORSEMENT.**| |**4TH RESPONDENTS'**|| |**EXHIBITS**|| |**EXT.R4(a)**|**TRUE COPY OF THE ORDER DT.16.7.2016 ISSUED**| ||**BY THE SCHEDULED CASTES/SCHEDULED TRIBES**| ||**DEVELOPMENT (G) DEPARTMENT.**|