IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.16595 of 2001 BETWEEN M. Siddaramappa. ... PETITIONER AND The Chairman and Managing Director, Syndicate Bank and others. ...RESPONDENTS Counsel for the Petitioner: MR. G.V. SHIVAJI Counsel for the Respondents: MR. DEEPAK BHATTACHARJEE The Court made the following: ORDER: Petitioner, who was working as an Officer in Syndicate Bank, has filed this writ petition questioning the orders of cancellation/termination of appointment passed against him by the respondent – bank dated 19.04.2001. 2. The brief facts are that the petitioner joined the respondent – bank as a trainee on 07.07.1975 and was later given appointment vide proceedings dated 17.09.1975 as probationary clerk. He had submitted caste certificate at that time stating that he belongs to Scheduled Tribe and is a resident of Gulbarga village and district of Karnataka State. Petitioner was later promoted as Officer, Junior Management Grade I with effect from 20.06.1983 and thereafter, further, promotions from Grade I to Grade II were in the offing in the year 2001. It appears that at that stage the respondent – bank was informed that the petitioner has obtained a false case certificate whereupon the Deputy Divisional Manager of the respondent – bank under his proceedings dated 26.08.1992 requested the Deputy Commissioner, Gulbarga to have the genuineness of the petitioner’s caste certificate verified. Accordingly, the Tahsildar, Gulbarga was required to consider the genuineness and report accordingly. The Revenue Inspector and the Village Accountant of Gulbarga was entrusted with the enquiry and a notice was issued to the petitioner also by Tahsildar dated 20.01.1998 and 12.02.1998 to attend the enquiry. The petitioner appeared on 12.02.1998 and confirmed the caste certificate obtained by him during the year 1974 and also accepted that he belongs to Kurba caste. The Tahsildar in his proceedings dated 24.03.1998, in the preamble, recorded that on enquiries it was found that the petitioner belongs to Kurba caste. Petitioner, further, claimed that he was appointed in the respondent – bank on the basis of educational qualifications and merit only but not on the basis of caste certificate. He, therefore, stated before the Tahsildar that he has no objection if the caste certificate is cancelled. Based on that the Tahsildar vide his aforesaid proceedings recorded that the said caste certificate issued on 02.08.1974 is withdrawn and cancelled with immediate effect. The said report was communicated to the respondent – bank, which, thereafter, passed the impugned order dated 19.04.2001 canceling/terminating the initial appointment of the petitioner in the respondent – bank on the ground that petitioner had secured appointment against the vacancy reserved for SC/ST during 1975 and had also secured promotion, thereafter, in the reserved category in 1993. It appears that the petitioner preferred an appeal dated 14.05.2001 against the said order but the appeal was also dismissed by the Chief Manager vide proceedings dated 22.06.2001. Questioning the order dated 19.04.2001 the present writ petition is filed. 3. Heard both sides. 4. Learned counsel for the petitioner submitted that there is no finding by the Tahsildar or by any other competent authority that the said caste certificate of the petitioner was secured by playing fraud or misrepresentation. Learned counsel asserts that the petitioner belongs to Kurba caste, which belong to ST and as such, it cannot be said that there is any fraud or misrepresentation in securing appointment. Learned counsel also states that it is the specific case of the petitioner even before the Tahsildar that he was appointed in the respondent – bank on the basis of his educational qualifications and merit and not on account of any reservation on the basis of caste. Learned counsel, therefore, submits that the appointment itself not being as a reserved candidate, even assuming that the certificate is specifically cancelled or withdrawn, the same cannot have any affect on the appointment and the respondent – bank committed clear error of law in canceling initial appointment of the petitioner. Alternatively, the learned counsel contended that when the initial appointment was as a general candidate on the basis of merit, even if petitioner has secured any promotion on the basis of caste certificate held by him, at the most petitioner could have been held not entitled for the said promotional post and in support of that the learned counsel relies upon clauses (8) and (12) of the promotion order dated 10.06.1983 promoting the petitioner to the cadre of Junior Management Grade scale I. Learned counsel also relies upon a decision of this Court in K. RAJAIAH v. STATE OF AP[1] wherein also this Court had noticed that initial appointment was not based on the caste status but was on merits and therefore, the subsequent promotion on the basis of the caste status of the petitioner therein, alone can be said to be affected by cancellation of the caste certificate. The learned counsel points out that in the aforesaid decision their Lordships have held that at the most the petitioner’s promotion can be cancelled by reverting him back to the position which he was holding prior to the first promotion based on the ST certificate and to consider the case of petitioner therein in the General category for further promotions. Similar analogy is sought to be drawn in the present case also. 5. Learned counsel also questions the impugned order on the ground that the said order dated 19.04.2001 is issued by the General Manager, whereas under the Syndicate Bank (Officers’) Service Regulations, 1979, under Regulation 20 (c) the competent authority designated, so far as officer employee is concerned, is the Chairman and Managing Director. The said Regulation 20(c) is extracted hereunder for convenience: “Termination of Service: 20. (1) a)… b)… c) The decision to terminate the services of an Officer Employee under Sub-regulation (a) above will be taken only by the Chairman & Managing Director.” 6. Learned counsel also questions the impugned order on the ground that there was no notice and enquiry before the impugned order is passed and thereby the principles of natural justice are violated. He also submitted that in the year 1990, Government of India, Ministry of Finance, had issued guidelines requiring option from the employees belonging to SC/ST communities to treat them as General candidates and prescribed certain forms and rules for that purpose. Based on the same, the respondent – bank also issued circular No.296/90/BC/HRDD/25/MPRDS dated 08.11.1990 and submits that based on that petitioner exercised the option and has given an affidavit in the required proforma to the Assistant General Manager, Syndicate Bank dated 10.03.1993. Learned counsel says that this voluntary act of the petitioner, not to claim the status is being misinterpreted and misread by the respondent – bank and while the petitioner was at the verge of securing further promotion on the basis of anonymous complaints the impugned proceedings were issued on the basis of the report of Tahsildar, Gulbarga. 7. Learned counsel for the respondents, who filed counter affidavit, justified the impugned order by stating that even as per the impugned order itself petitioner was appointed in the initial stage in the quota reserved for ST and as such, it cannot be said that the petitioner belongs to General category. He, further, submits that the Tahsildar himself found on enquiry and the petitioner himself gave willingness to cancel his caste certificate, which concludes the aspect of caste status against the petitioner. So far as the competency of the General Manager in issuing orders of cancellation impugned are concerned, it is stated that General Manager, who is arrayed as respondent no.2, is the competent appointing authority for the petitioner’s cadre and as such, the impugned order does not suffer from lack of competency on his part. In support of the order of canceling the initial appointment reliance is placed on the decision of the Supreme Court in KUMARI MADHURI PATIL v. ADDITIONAL COMMISSIONER, TRIBAL DEVELOPMENT[2] 8. Since the learned counsel for the petitioner has elaborately made various submissions, as above, and keeping in view the fact that the petitioner, who has worked in the respondent-bank for several years but suffered the impugned order at the fag end of his career, I have very carefully considered the contentions of the learned counsel for the petitioner, but I regret my inability to agree with him and reasons therefor are as follows: 1. The proceedings of the Tahsildar, Gulbarga shows that due enquiry was conducted and report was obtained by the Tahsildar from the Revenue Inspector as well as Village Accountant and on the basis of local enquiries. Further, in the said enquiry petitioner himself participated on 12.02.1998 and categorically stated that he has no objection if the said certificate is cancelled, which is obtained as ST. In view of the said categorical statement, the Tahsildar passed orders withdrawing and canceling the said certificate with immediate effect and informed the respondent-bank for necessary further action. Petitioner does not dispute the said proceedings before the Tahsildar and his no objection recorded thereat for the cancellation of caste certificate. The only defence of the petitioner in this writ petition is that his initial appointment in the category of clerk was as a General candidate but not under reserved quota. The petitioner himself, however, gave an affidavit to the Assistant General Manager of the respondent-bank dated 10.03.1993 specifically stating as follows: “a) I belong to Kurba (ST) caste which is a Scheduled Caste/Tribe under. i) Constitution (Scheduled Castes) Order 1950. ii) Constitution (Scheduled Tribes) Order 1950. iii) Constitution (Scheduled Caste-Union Territories) Order 1951. iv) Constitution (Scheduled Tribes-Union Territories) Order 1951. b) I have secured appointment in Syndicate Bank as clerk on 25.09.1975 against vacancies reserved for SC/ST secured promotion against vacancies reserved for SC/ST during 1983.” 2. Further, the impugned order dated 19.04.2001 specifically refers to the said affidavit extracted above and proceeds on the petitioner’s admitted position that he had secured appointment against a reserved vacancy on 25.09.1975 and promotion thereafter in 1993 also in the reserved vacancy. There is no material produced by the petitioner to substantiate that his appointment was as a General category candidate and even during the hearing, learned counsel for the petitioner was not in a position to substantiate the said statement. Thus, in view of the petitioner’s own statement in affidavit, as extracted above, the petitioner’s contention cannot be accepted that he was selected in General category as a clerk in 1975. The said affidavit, further says, that on his own free will he is voluntarily foregoing the benefits and advantages available to SC/ST candidates and is prepared to get himself treated as a General candidate with effect from the date of the affidavit. The said affidavit being dated 10.03.1993 also confirms that till that date the petitioner did claim status in the reserved category and only prospectively has proposed to give up and forego the benefits and advantages of such reserved category. The petitioner’s own conduct, therefore, establishes that he had secured the appointment in the reserved category, which clearly amounts to misrepresentation and fraud in securing appointment. The impugned order, therefore, cannot be faulted on the said contention of the petitioner. 3. So far as the other contention regarding the competency of the General Manager in issuing the impugned order is concerned, the decision of the Supreme Court MADHURI PATIL’s case (2 supra), itself states in para 15 as follows: “15. … The Courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. He who comes to the Court with false claim, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the social status is made by the State when a false plea was put forth by the Presidential Order under the Constitution as amended by the SC and ST Amendment Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have no application. When it is found to be a case of fraud played by the concerned, no sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and vary in considering such cases.” 4. The issue can also be looked at from another angle. It is evident from the facts above that the petitioner secured appointment in the reserved category and when enquiry was sought to be conducted, he sought withdrawal and cancellation of the certificate so as not to claim the said status. Evidently, the appointment secured by the petitioner is by misrepresenting the essential fact as to his status. It has been held by the Honourable Supreme Court in R. VISHWANATHA PILLAI v. STATE OF KERALA[3] in similar circumstances that the appointment itself is void and no protection, which is normally available under Article 311 of the Constitution of India to a Government servant is available with respect to such appointees. The ratio of the said decision equally applies to the present case as well and even from this point of view the petitioner is not entitled to any relief. 9. Applying the tests, as above, to the present case it is evident that the appointment secured by the petitioner in the reserved category is clearly by misrepresentation and fraud and in law the appointment itself is void and even the protection as available similar to Article 311 of the Constitution of India is not applicable to such appointment. Regulation 20 relied upon by the petitioner’s counsel, firstly, does not apply on the basis of the principle above and secondly, the said Regulation will apply in case of termination whereas the present case is one of cancellation of initial appointment, petitioner’s appointment as clerk itself is liable to be treated as non-est. The petitioner, therefore, is not entitled to question the impugned order on the ground of violation of principles of natural justice. The second respondent, who issued the impugned order, undisputedly is the appointing authority and as such, it cannot be said that he was not competent to issue the impugned order. The writ petition, therefore, is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 10, 2010 DSK [1] 1998 (6) ALT 494 (DB) [2] AIR 1995 SC 94 [3] AIR 2004 SC 1469