Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Appointment On The Basis Of False Caste Certificate Is Void. Petition Dismissed.
JUDGEMENT TITLE : B.S. Negi Vs. General Manager Syndicate Bank And Others On 12/01/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 29283 OF 1994
CORAM : Hon'ble B.S. Chauhan,J. And Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 34
Civil Misc. Writ Petition No. 29283 Of 1994
B.S. Negi
Vs.
Syndicate Bank & Ors.,
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Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
This Writ Petition Has Been Filed For Quashing The Order Dated 12th March, 1994 Passed By The Deputy General Manager Of The Syndicate Bank By Which The Petitioner Was Dismissed From The Services Of The Bank With Immediate Effect And The Order Dated 14th June, 1994 Passed By The Appellate Authority Dismissing The Appeal Filed By The Petitioner Against The Aforesaid Order.
The Petitioner Was Served With A Charge-sheet Dated 14th January, 1988 Containing The Charge That He Had Joined The Services Of The Bank On 29th January, 1980 As A Clerk By Declaring That He Belonged To The Scheduled Tribe Community Which Fact Was Not True And, Therefore, By Wrongly Deriving The Benefit Meant For Candidates Belonging To Scheduled Tribe He Had Committed Act Of Gross Misconduct. An Enquiry Was Held And The Enquiring Authority Submitted A Detailed Report Dated 2nd December, 1993. It Mentions That The Petitioner Had Submitted An Application On 26th October, 1979 For Seeking Appointment Stating That He Belonged To Scheduled Tribe Category And After Getting Through The Examination He Submitted The Application Dated 14th February, 1980 Enclosing Certain Documents Including The Certificate Dated 20th January, 1977 Purported To Have Been Issued By Sri Pratap Singh Negi M.P. Lok Sabha Certifying That The Petitioner Belongs To Naik Caste Which Comes Under Scheduled Tribe. The Petitioner Was Asked To Submit A Certificate From The Competent Authority, As M.P. Was Not The Competent Authority To Issue The Certificate. The Petitioner Then Submitted A Certificate Purported To Have Been Issued By The Tehsildar Garh Mukteshwar Stating That The Petitioner Belongs To Village Haripur, Tehsil Kotdwara, District Pauri Garhwal And Belongs To Naik Caste Which Has Been Recognised As Scheduled Tribe. The Regional Office, However, Informed The Bank On The Basis Of Information Received From The Commission For SCs/STs, Government Of India, New Delhi That Naik Community Is Neither Scheduled Caste Nor Scheduled Tribe In Uttar Pradesh. The Petitioner Was, Therefore, Asked To Submit A Certificate Of The Competent Authority Where He Or His Family Normally Resided. The Petitioner This Time Submitted A Certificate Dated 31st December, 1984 Issued By The Tehsildar Meerut That The Petitioner Belongs To Boksha Naik Which Is A Scheduled Tribe. The Report Of The Enquiry Officer Further Mentions That On Making Enquiries By The Authority It Was Revealed That The Petitioner Does Not Belong To Boksha Naik But Belongs To Sawarna Hindu Rajpoot Jati Which Is Not A Backward Caste. This Fact Was Also Confirmed By The Certificate Issued By The District Magistrate Garhwal To Which Place The Petitioner Belongs. It Has Also Been Stated That The Earlier Certificate Issued By The Tehsildar Meerut Was, Accordingly, Annulled. In These Circumstances The Enquiry Officer Has Concluded That The Petitioner Has Wrongly Derived Benefit Which Was Made Available To SC/ST Category By Producing False Certificates. The Enquiry Officer Has Also Noted That Initially The Evidence Was Recorded Ex-parte As The Petitioner Did Not Appear But Subsequently The Petitioner Made An Application Before The Disciplinary Authority To Advice The Enquiry Officer To Permit Him To Depose With The Stipulation That He Will Not Seek Permission For Cross Examination Of The Management Witnesses. On Such An Application Having Been Filed, The Petitioner Was Given An Opportunity To Place His Case.
The Disciplinary Authority Thereafter Issued Notice To The Petitioner To Submit His Comments On The Report Of The Enquiry Officer As To Why The Proposed Punishment Should Not Be Imposed Upon Him. The Petitioner Submitted A Reply And The Disciplinary Authority After A Careful Analysis Of The Materials Available On Record Concluded That The Petitioner Was Guilty Of The Misconduct And Imposed The Punishment Upon The Petitioner. The Petitioner Filed An Appeal Against The Said Order. The Appellate Authority After Noticing The Factual Position Concluded That The Documents Produced During The Enquiry Amply Prove That The Petitioner Did Not Belong To Scheduled Tribe As Wrongly Declared By Him For The Purposes Of Seeking Appointment In The Bank And Thus The Very Appointment Of The Petitioner Was On The Basis Of Misrepresentation Of Facts.
We Have Heard Learned Counsel For The Petitioner And Sri P.K. Singhal Learned Counsel Appearing For The Respondent Bank And Have Perused The Materials Available On Record.
Learned Counsel For The Petitioner Submitted That The Certificate Issued By The Member Of Parliament Was Valid And It Was On The Basis Of This Certificate That Appointment Had Been Given To Him. He Contended That In Such A Situation It Was Not Open To The Respondent Bank To Impose The Punishment Subsequently On The Basis That He Did Not Belong To The Scheduled Tribe Category. He Also Submitted That The District Magistrate, Meerut Had Wrongly Cancelled The Earlier Certificate Declaring Him To Be A Scheduled Tribe Category And That The Enquiry Stood Vitiated As He Had Not Been Given Opportunity To Cross-examine The Witnesses Produced On Behalf Of The Bank. Learned Counsel For The Bank, However, Submitted That As The Petitioner Had Wrongly Obtained Appointment On The Basis That He Belonged To ST Category, The Bank Was Justified In Imposing The Punishment; That The District Magistrate, Meerut Committed No Illegality In Cancelling The Earlier Certificate On The Basis Of Enquiry And That As The Petitioner Himself Had Specifically In His Application Before The Disciplinary Authority Stated That He Would Not Cross-examine The Witnesses Of The Bank It Was Not Open To Him To Now Raise Any Grievance About The Same.
We Find From The Records That The Enquiry Officer Had Given Ample Opportunity To The Petitioner To Substantiate His Claim That He Belonged To Scheduled Tribe Category. The Certificates Submitted By The Petitioner Were Not Found To Be Valid After Enquiry By The Authorities Which Had Issued The Certificates. The District Magistrate, Garhwal To Which Place The Petitioner Belonged, On The Other Hand, Had Issued The Certificate That The Petitioner Belonged To Sawarna Hindu Rajpoot Jati Which Is Not A Scheduled Tribe Or Backward Caste. In Such Circumstances, In The Face Of The Findings Which Has Been Recorded On The Basis Of The Material Available On The Record, Particularly When The Learned Counsel For The Petitioner Has Not Been Able To Substantiate Any Infirmity In The Findings, We See No Good Reason To Interfere With The Punishment Order Imposed By The Disciplinary Authority Or The Appellate Order Rejecting The Appeal Filed By The Petitioner.
The Tehsildar, Meerut, In Our Opinion, Was Not The Competent Authority To Issue The Certificate As The Petitioner Belonged To Garhwal Area And Not Meerut. In Such Circumstances, There Is No Infirmity In The Order Of The District Magistrate, Meerut Cancelling The Certificate Issued By The Tehsildar, Meerut. The Hon'ble Supreme Court Has Time And Again Considered The Validity Of Appointments Secured By Filing Forged Caste Certificates.
In Kumari Madhuri Patil Vs. Addl. Commr., Tribal Development (1994) 6 SCC 241, The Hon'ble Supreme Court Pointed Out The Object For Granting Certain Benefits To Persons Belonging To Scheduled Castes And Scheduled Tribes And The Approach To Be Adopted In Matters Where Benefits Are Fraudulently Obtained Was Highlighted. In Paragraph 13 Of The Judgment It Was, Inter Alia, Noted As Follows:-

"13. The Admission Wrongly Gained Or Appointment Wrongly Obtained On The Basis Of False Social Status Certificate Necessarily Has The Effect Of Depriving The Genuine Scheduled Castes Or Scheduled Tribes Or OBC Candidates As Enjoined In The Constitution Of The Benefits Conferred On Them By The Constitution. The Genuine Candidates Are Also Denied Admission To Educational Institutions Or Appointments To Office Or Posts Under A State For Want Of Social Status Certificate. The Ineligible Or Spurious Persons Who Falsely Gained Entry Resort To Dilatory Tactics And Create Hurdles In Completion Of The Inquiries By The Scrutiny Committee. It Is True That The Applications For Admission To Educational Institutions Are Generally Made By A Parent, Since On That Date Many A Time The Student May Be A Minor. It Is The Parent Or The Guardian Who May Play Fraud Claiming False Status Certificate. It Is, Therefore, Necessary That The Certificates Issued Are Scrutinised At The Earliest And With Utmost Expedition And Promptitude. For That Purpose, It Is Necessary To Streamline The Procedure For The Issuance Of Social Status Certificates, Their Scrutiny And Their Approval, Which May Be The Following:

1. The Application For Grant Of Social Status Certificate Shall Be Made To The Revenue Sub-Divisional Officer And Deputy Collector Or Deputy Commissioner And The Certificate Shall Be Issued By Such Officer Rather Than At The Officer, Taluk Or Mandal Level.
2. The Parent, Guardian Or The Candidate, As The Case May Be, Shall File An Affidavit Duly Sworn And Attested By A Competent Gazetted Officer Or Non-gazetted Officer With Particulars Of Castes And Sub-castes, Tribe, Tribal Community, Parts Or Groups Of Tribes Or Tribal Communities, The Place From Which He Originally Hails From And Other Particulars As May Be Prescribed By The Directorate Concerned.
3. Application For Verification Of The Caste Certificate By The Scrutiny Committee Shall Be Filed At Least Six Months In Advance Before Seeking Admission Into Educational Institution Or An Appointment To A Post.
4. All The State Governments Shall Constitute A Committee Of Three Officers, Namely, (I) An Additional Or Joint Secretary Or Any Officer Higher In Rank Of The Director Of The Department Concerned, (II) The Director, Social Welfare/Tribal Welfare/Backward Class Welfare, As The Case May Be, And (III) In The Case Of Scheduled Castes Another Officer Who Has Intimate Knowledge In The Verification And Issuance Of The Social Status Certificates. In The Case Of The Scheduled Tribes, The Research Officer Who Has Intimate Knowledge In Identifying The Tribes, Tribal Communities, Parts Of Or Groups Of Tribes Or Tribal Communities.
5. Each Directorate Should Constitute A Vigilance Cell Consisting Of Senior Deputy Superintendent Of Police In Over-all Charge And Such Number Of Police Inspectors To Investigate Into The Social Status Claims. The Inspector Would Go To The Local Place Of Residence And Original Place From Which The Candidate Hails And Usually Resides Or In Case Of Migration To The Town Or City, The Place From Which He Originally Hailed From. The Vigilance Officer Should Personally Verify And Collect All The Facts Of The Social Status Claimed By The Candidate Or The Parent Or Guardian, As The Case May Be. He Should Also Examine The School Records, Birth Registration, If Any. He Should Also Examine The Parent, Guardian Or The Candidate In Relation To Their Caste Etc. Or Such Other Persons Who Have Knowledge Of The Social Status Of The Candidate And Then Submit A Report To The Directorate Together With All Particulars As Envisaged In The Pro Forma, In Particular, Of The Scheduled Tribes Relating To Their Peculiar Anthropological And Ethnological Traits, Deity, Rituals, Customs, Mode Of Marriage, Death Ceremonies, Method Of Burial Of Dead Bodies Etc. By The Castes Or Tribes Or Tribal Communities Concerned Etc.
6. The Director Concerned, On Receipt Of The Report From The Vigilance Officer If He Found The Claim For Social Status To Be ''not Genuine' Or ''doubtful' Or Spurious Or Falsely Or Wrongly Claimed, The Director Concerned Should Issue Show-cause Notice Supplying A Copy Of The Report Of The Vigilance Officer To The Candidate By Registered Post With Acknowledgment Due Or Through The Head Of The Educational Institution Concerned In Which The Candidate Is Studying Or Employed. The Notice Should Indicate That The Representation Or Reply, If Any, Would Be Made Within Two Weeks From The Date Of The Receipt Of The Notice And In No Case On Request Not More Than 30 Days From The Date Of The Receipt Of The Notice. In Case, The Candidate Seeks For An Opportunity Of Hearing And Claims An Inquiry To Be Made In That Behalf, The Director On Receipt Of Such Representation/reply Shall Convene The Committee And The Joint/Additional Secretary As Chairperson Who Shall Give Reasonable Opportunity To The Candidate/parent/guardian To Adduce All Evidence In Support Of Their Claim. A Public Notice By Beat Of Drum Or Any Other Convenient Mode May Be Published In The Village Or Locality And If Any Person Or Association Opposes Such A Claim, An Opportunity To Adduce Evidence May Be Given To Him/it. After Giving Such Opportunity Either In Person Or Through Counsel, The Committee May Make Such Inquiry As It Deems Expedient And Consider The Claims Vis-à-vis The Objections Raised By The Candidate Or Opponent And Pass An Appropriate Order With Brief Reasons In Support Thereof.
7. In Case The Report Is In Favour Of The Candidate And Found To Be Genuine And True, No Further Action Need Be Taken Except Where The Report Or The Particulars Given Are Procured Or Found To Be False Or Fraudulently Obtained And In The Latter Event The Same Procedure As Is Envisaged In Para 6 Be Followed.
8. Notice Contemplated In Para 6 Should Be Issued To The Parents/guardian Also In Case Candidate Is Minor To Appear Before The Committee With All Evidence In His Or Their Support Of The Claim For The Social Status Certificates.
9. The Inquiry Should Be Completed As Expeditiously As Possible Preferably By Day-to-day Proceedings Within Such Period Not Exceeding Two Months. If After Inquiry, The Caste Scrutiny Committee Finds The Claim To Be False Or Spurious, They Should Pass An Order Cancelling The Certificate Issued And Confiscate The Same. It Should Communicate Within One Month From The Date Of The Conclusion Of The Proceedings The Result Of Enquiry To The Parent/guardian And The Applicant.
10. In Case Of Any Delay In Finalizing The Proceedings, And In The Meanwhile The Last Date For Admission Into An Educational Institution Or Appointment To An Officer Post, Is Getting Expired, The Candidate Be Admitted By The Principal Or Such Other Authority Competent In That Behalf Or Appointed On The Basis Of The Social Status Certificate Already Issued Or An Affidavit Duly Sworn By The Parent/guardian Candidate Before The Competent Officer Or Non-official And Such Admission Or Appointment Should Be Only Provisional, Subject To The Result Of The Inquiry By The Scrutiny Committee.
11. The Order Passed By The Committee Shall Be Final And Conclusive Only Subject To The Proceedings Under Article 226 Of The Constitution.
12. No Suit Or Other Proceedings Before Any Other Authority Should Lie.
13. The High Court Would Dispose Of These Cases As Expeditiously As Possible Within A Period Of Three Months. In Case, As Per Its Procedure, The Writ Petition/miscellaneous Petition/matter Is Disposed Of By A Single Judge, Then No Further Appeal Would Lie Against That Order To The Division Bench But Subject To Special Leave Under Article 136.
14. In Case, The Certificate Obtained Or Social Status Claimed Is Found To Be False, The Parent/guardian/the Candidate Should Be Prosecuted For Making False Claim. If The Prosecution Ends In A Conviction And Sentence Of The Accused, It Could Be Regarded As An Offence Involving Moral Turpitude, Disqualification For Elective Posts Or Offices Under The State Or The Union Or Elections To Any Local Body, Legislature Or Parliament.
15. As Soon As The Finding Is Recorded By The Scrutiny Committee Holding That The Certificate Obtained Was False, On Its Cancellation And Confiscation Simultaneously, It Should Be Communicated To The Educational Institution Concerned Or The Appointing Authority By Registered Post With Acknowledgment Due With A Request To Cancel The Admission Or The Appointment. The Principal Etc. Of The Educational Institution Responsible For Making The Admission Or The Appointing Authority, Should Cancel The Admission/appointment Without Any Further Notice To The Candidate And Debar The Candidate From Further Study Or Continue In Office In A Post."

In The Case Of R. Vishwanatha Pillai Vs. State Of Kerala & Ors,. (2004) 2 SCC 105, The Hon'ble Supreme Court Observed As Follows:-
"This Apart, The Appellant Obtained The Appointment In The Service On The Basis That He Belonged To A Scheduled Caste Community. When It Was Found By The Scrutiny Committee That He Did Not Belong To The Scheduled Caste Community, Then The Very Basis Of His Appointment Was Taken Away. His Appointment Was No Appointment In The Eye Of Law. He Cannot Claim A Right To The Post As He Had Usurped The Post Meant For A Reserved Candidate By Playing A Fraud And Producing A False Caste Certificate."
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The Rights To Salary, Pension And Other Service Benefits Are Entirely Statutory In Nature In Public Service. The Appellant Obtained The Appointment Against A Post Meant For A Reserved Candidate By Producing A False Caste Certificate And By Playing A Fraud. His Appointment To The Post Was Void And Non Est In The Eye Of The Law. The Right To Salary Or Pension After Retirement Flows From A Valid And Legal Appointment. The Consequential Right Of Pension And Monetary Benefits Can Be Given Only If The Appointment Was Valid And Legal. Such Benefits Cannot Be Given In A Case Where The Appointment Was Found To Have Been Obtained Fraudulently And Rested On A False Caste Certificate. A Person Who Entered The Service By Producing A False Caste Certificate And Obtained Appointment For The Post Meant For A Scheduled Caste, Thus Depriving A Genuine Scheduled Caste Candidate Of Appointment To That Post, Does Not Deserve Any Sympathy Or Indulgence Of This Court. A Person Who Seeks Equity Must Come With Clean Hands. He, Who Comes To The Court With False Claims, Cannot Plead Equity Nor Would The Court Be Justified To Exercise Equity Jurisdiction In His Favour. A Person Who Seeks Equity Must Act In A Fair And Equitable Manner. 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 A Fraud. No Sympathy And Equitable Consideration Can Come To His Rescue. We Are Of The View That Equity Or Compassion Cannot Be Allowed To Bend The Arms Of Law In A Case Where An Individual Acquired A Status By Practicing Fraud." (Emphasis Supplied)

In Bank Of India & Anr. Vs. Avinash D. Mandivikar & Ors,. (2005) 7 SCC 690 The Hon'ble Supreme Court Again Considered The Consequences Of Filing A False Certificate For Seeking Appointment And In This Connection It Was Observed As Follows:-
"Respondent 1 Employee Obtained Appointment In The Service On The Basis That He Belonged To A Scheduled Tribe. When The Clear Finding Of The Scrutiny Committee Is That He Did Not Belong To The Scheduled Tribe, The Very Foundation Of His Appointment Collapses And His Appointment Is No Appointment In The Eye Of Law. There Is Absolutely No Justification For His Claim In Respect Of The Post He Usurped, As The Same Was Meant For A Reserved Candidate.
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The Matter Can Be Looked Into From Another Angle. When Fraud Is Perpetrated The Parameters Of Consideration Will Be Different. Fraud And Collusion Vitiate Even The Most Solemn Proceedings In Any Civilised System Of Jurisprudence. This Court In Bhaurao Dagdu Paralkar V. State Of Maharashtra (2005) 7 SCC 605 Dealt With The Effect Of Fraud. It Was Held As Follows In The Said Judgment :-
"12[14]. ... ''Fraud Is Proved When It Is Shown That A False Representation Has Been Made (i) Knowingly, Or (ii) Without Belief In Its Truth, Or (iii) Recklessly, Careless Whether It Be True Or False.'
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13[15]. This Aspect Of The Matter Has Been Considered By This Court In Roshan Deen V. Preeti Lal (2002) 1 SCC 100, Ram Preeti Yadav V. U.P. Board Of High School And Intermediate Education (2003) 8 SCC 311, Ram Chandra Singh Case (2003) 8 SCC 319 And Ashok Leyland Ltd. V. State Of T.N. (2004) 3 SCC 1.

14[16]. Suppression Of A Material Document Would Also Amount To A Fraud On The Court. (See Gowrishankar V. Joshi Amba Shankar Family Trust (1996) 3 SCC 310 And S.P. Chengalvaraya Naidu V. Jagannath (1994) 1 SCC 1).

15[17]. ''Fraud Is A Conduct Either By Letter Or Words, Which Induces The Other Person Or Authority To Take A Definite Determinative Stand As A Response To The Conduct Of The Former Either By Words Or Letter. Although Negligence Is Not Fraud But It Can Be Evidence On Fraud; As Observed In Ram Preeti Yadav Case.

16[18]. In Lazarus Estates Ltd. V. Beasley (1956) 1 QB 702 Lord Denning Observed At QB Pp. 712 And 713: (All ER P.345-C)
"No Judgment Of A Court, No Order Of A Minister, Can Be Allowed To Stand If It Has Been Obtained By Fraud. Fraud Unravels Everything.'

In The Same Judgment Lord Parker, L.J. Observed That Fraud Vitiates All Transactions Known To The Law Of However High A Degree Of Solemnity. (p. 722)

[19]. These Aspects Were Recently Highlighted In State Of A.P. V. T. Suryachandra Rao (2005) 6 SCC 149." (Emphasis Supplied)

The Same View Was Reiterated By The Hon'ble Supreme Court In The Case Of Lillykutty Vs. Scrutiny Committee, SC & ST & Ors. (2005) 8 SCC 283 And It Was Observed :-
"When, Thus, A Person Who Is Not A Member Of A Scheduled Caste Or A Scheduled Tribe Obtains A False Certificate With A View To Gain Undue Advantage To Which He Or She Was Not Otherwise Entitled To, Would Amount To Commission Of Fraud. Fraudulent Acts Are Not Encouraged By The Courts.
.........Any Action By The Authorities Or By The People Claiming A Right Privilege Under The Constitution Which Subverts The Constitutional Purpose Must Be Treated As A Fraud On The Constitution. The Constitution Does Not Postulate Conferment Of Any Special Benefit On Those Who Do Not Belong To The Category Of People For Whom The Provision Was Made."

From The Aforesaid Decisions Of The Supreme Court It Is Clear That Where It Is Found That The Petitioner Does Not Belong To The Caste Indicated By Him While Seeking Appointment Then The Very Basis Of His Appointment Is Taken Away And Such Appointment Is No Appointment In The Eye Of Law And Such A Person Also Does Not Deserve Any Sympathy And Indulgence Of The Courts.
In View Of The Proposition Of Law Laid Down By The Supreme Court In The Aforesaid Decisions, We Are Of The Opinion That The Very Foundation Of The Appointment Of The Petitioner Was Void And Non-est And, Therefore, The Disciplinary Authority Was Justified In Imposing The Punishment.
Learned Counsel For The Petitioner Then Submitted That The Petitioner Was Not Given Any Opportunity To Cross Examine The Witnesses Produced On Behalf Of The Bank. We Are Not Inclined To Accept This Contention. In The First Instance, As The Petitioner Earlier Remained Absent During The Enquiry It Was Held Ex-parte. The Petitioner, However, Submitted A Representation Before The Disciplinary Authority With The Clear Stipulation That He Would Not Cross-examine The Witnesses Already Examined By The Bank. The Petitioner, Therefore, Waived His Right To Cross-examine The Witnesses. We Further Find That The Enquiry Officer Has Also Recorded A Categorical Finding That Even After The Matter Was Reopened At The Instance Of The Disciplinary Authority, The Petitioner Did Not Express Any Desire To Cross Examine The Management Witnesses. In Such Circumstances The Contention Of The Learned Counsel For The Petitioner Cannot Be Accepted.
For All The Reasons Stated Above, There Is No Merit In This Petition. It Is, Accordingly, Dismissed.

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