W.P.(C) No.4743/2008 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 1st November, 2010 Judgment Delivered On: 16th November, 2010 + W.P.(C) 4743/2008 KENDRIYA VIDYALAYA SANGATHAN ..... Petitioner Through: Mr.S.Rajappa, Advocate versus SHANTI ACHARYA SISINGI .....Respondent Through: Mr.M.P.Raju, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Shorn of unnecessary details, the facts leading to filing of the present petition are that on 03.03.1988 the respondent applied to the petitioner for being appointed as Primary Teacher against the Schedule Tribe quota. After sometime the respondent submitted caste certificate dated 22.06.1988 issued by Deputy Commissioner, Singhbhum, Chaibasa inter- alia recording that the respondent is the wife of one Shri Nawal Kishore Sisingi and belongs to Munda Tribe which is a recognized Scheduled Tribe. It may be highlighted that the certificate refers to it being certified that the petitioner belongs to the Scheduled Tribe „Munda‟ being the wife of a man who belongs to the Tribe „Munda‟. W.P.(C) No.4743/2008 Page 2 of 25 2. On 16.08.1988 the respondent got appointed as Primary Teacher under the petitioner against a post in the Scheduled Tribe quota. 3. After more than 15 years of the appointment of the respondent, Assistant Commissioner, Kendriya Vidyalaya Sangathan issued memorandum dated 27.05.2003 to the respondent. The same reads as under:- “Whereas Smt. Shanti Acharya Sisingi has been appointed as Primary Teacher in Kendriya Vidyalaya Sangathan with initial posting at Kendriya Vidyalaya Tatanagar and Smt. Shanti Acharya Sisingi has joined her duties on 05.10.1988. Whereas Smt. Shanti Acharya Sisingi, PRT is appointed to the post under Scheduled Tribe quota based on the Caste Certificate issued by Deputy Commissioner, Singhbhum, Chaibasa. Whereas the certificate submitted by Smt. Shanti Acharya Sisingi shows & is issued as Wife of Sri Naval Kishore Sisingi as per Certificate dated 22.06.1988. Whereas in accordance with the instructions issued by the Department of Personnel and Training and in accordance with the provisions of the Reservations and Concessions for Scheduled Castes and Scheduled Tribes, a person not belonging to SC/ST by birth will not be deemed to be a member of SC/ST by virtue of marriage with a person belonging to SC/ST. Similarly, a person belonging to SC/ST by birth will continue to belong to that category even after marriage with a person not belonging to SC/ST. Now, therefore in view of above clarification given by Govt. of India, Smt. Shanti Acharya Sisingi is hereby directed to submit the Caste Certificate in the name of her father instead of husband within 02 months from date of receipt of this memorandum.” 4. In response to the aforesaid memorandum dated 27.05.2003, the respondent submitted a reply to the petitioner W.P.(C) No.4743/2008 Page 3 of 25 inter-alia stating that on 16.02.1981 she got married to her husband Nawal Kishore Sisingi who is a member of Munda tribe and that the said marriage was approved by Munda tribe. She was accepted by the community. That in view of dictum of law laid down by the Supreme Court in the decision reported as N.E. Horo v Jahan Ara Jaipal Singh AIR 1972 SC 1840 and the fact that the respondent was married to a male person belonging to Munda tribe and that the said marriage received the approval of Munda tribe the respondent became a member of Munda tribe after her marriage. The relevant portion of the reply submitted by the respondent reads as under:- “2. I was validly married with Mr.Nawal Kishore Sisingi, on the 16th day of February 1981 according to Munda customs and adopted the culture of the Munda Community and my marriage with Mr.Nawal Kishore Sisingi was duly approved and I was recognized as a member of Munda Community by marriage. In the said matter as to whether I have become a member of the Munda Community by my marriage with a Munda male, duly approved by the Munda Community, I have been advised to refer to the authority reported in A.I.R. 1972 Supreme Court at page 1840. The Hon‟ble Supreme Court, in the above mentioned authority, at para 22, Page 1849, has held that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Munda Panchayat (Prabha Panchayat), the female after the marriage will become a member of the Munda Community….. 3. Since after my marriage, I bonafidely and in good faith, believe that I have also become a member of the Munda Community by marrying a Munda male and adopting the Munda culture and hence I applied for the post under Scheduled Tribe quota…….” (Emphasis Supplied) 5. In view of the aforesaid reply submitted by the respondent, the petitioner sought a clarification from National Commission for Scheduled Castes and Scheduled Tribes W.P.(C) No.4743/2008 Page 4 of 25 (herein after referred to as the “Commission”) on the said matter. In response thereto, the Commission issued letter dated 02.09.2003 to the petitioner, relevant portion whereof reads as under:- “....It is the guiding principle that no person, who is not a Sch. Caste or Sch. Tribe by birth, can become a member of SC or ST because he or she married a person belonging to SC & ST. Similarly a person who is a member of SC or ST would continue to be a member of SC or ST, as the case may be, even after his or her marriage with a person who does not belong to a SC or ST. Hence, the claim of Smt. Shanti Acharya Sisingi that she belongs to ST (Munda) community by virtue of her marriage to a ST person is not genuine and valid as per the extant rules. She is not entitled to get any benefit as ST in service under the Reservation policy….” 6. In view of the afore-noted response received from the Commission, on 19.09.2003 Assistant Commissioner, Kendriya Vidyalaya Sangathan, Disciplinary Authority issued a charge sheet to the respondent for initiation of disciplinary inquiry against the respondent under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. The charge framed against the respondent reads as under:- “Article-I Smt. Shanti Acharya Sisingi while functioning as Primary Teacher in Kendriya Vidyalaya Sangathan failed to maintain absolutely integrity and acted in a manner which is unbecoming of a KVS employee in as much as she misled the department by submitting a false Scheduled Tribe Community certificate (Caste certificate) on the basis of which she secured employment in KVS as Primary Teacher under ST category. Smt. S.A. Sisingi, PRT has thus committed misconduct and contravened Rule 3(1)(i) and (iii) of CCS (Conduct) Rule, 1964.” W.P.(C) No.4743/2008 Page 5 of 25 7. Vide report dated 28.03.2005, the Inquiry Officer indicted the respondent of the charge framed against her. In a nutshell, it was opined by the Inquiry Officer that:- (i) in order to claim Scheduled Tribe status it was incumbent upon the respondent to establish that her marriage with Nawal Kishore Sisingi was solemnized as per customs of Munda community and that she was accepted as a member of Munda community by Parha Panchayat of Munda community and that the respondent failed to prove said two facts; (ii) no evidence was led by the respondent to establish that her marriage with Nawal Kishore Sisingi was solemnized as per customs of Munda community, on the contrary the marriage certificate produced by the respondent shows that the marriage of the respondent with Nawal Kishore Sisingi was solemnized at Church under Christian marriage laws; (iii) no evidence, oral or documentary, was led by the respondent to establish that she was accepted as a member of Munda community by Parha Panchayat of Munda community and (iv) the witnesses examined by the respondent to prove acceptance of her marriage by Parha Panchayat of Munda community namely Jorong Surin DW-1 and Binkas Ecke DW-2 were not trustworthy for the reason there were contradictions between their testimonies regarding the factum of existence of records of Parha Panchayat pertaining to acceptance of the respondent as a member of Munda community by Parha Panchayat. 8. At this juncture, it is most apposite to quote the following portion of the report of the Inquiry Officer:- “On the basis of documentary and oral evidences adduced in the case as recorded and in view of the reasons given above I hold that since the C.O. could not prove that her marriage was solemnized under the customs of Munda Community and that she was W.P.(C) No.4743/2008 Page 6 of 25 accepted in the Munda Community as a member by the Parha Panchayat which are the prime conditions to be accepted as a member of the Community, the Caste Certificate acquired by her on her misrepresentation of facts cannot be accepted as valid. Accordingly, I find the C.O. guilty of the charge framed against her. However, I feel inclined to point out here that the present case might not have to be initiated had the anomaly in the Caste Certificate submitted by the C.O. more than a decade back in 1988 was properly got verified and clarification sought from the Certificate issuing authority before the appointment letter was issued to the C.O. who had produced the same.” (Emphasis Supplied) 9. After considering the aforesaid report dated 28.03.2005 submitted by the Enquiry Officer and the representation filed by the respondent against the said report, vide order dated 10.10.2005 the Disciplinary Authority held that the charge leveled against the respondent has been proved and inflicted the punishment of removal from service upon the respondent. 10. Aggrieved by the order dated 10.10.2005 passed by the Disciplinary Authority, the respondent filed an appeal before the Appellate Authority, which appeal was dismissed vide order dated 19.03.2007. 11. Aggrieved by the orders dated 10.10.2005 and 19.03.2007 passed by the Disciplinary Authority and Appellate Authority respectively, the respondent filed an application under Section 19, Administrative Tribunals Act, 1985 before Principal Bench, Central Administrative Tribunal, New Delhi. 12. After holding that in view of dictum of law laid down by Supreme Court in the decisions reported as Kumari Madhuri Patil v Additional Commissioner, Tribal Development (1994) 6 SCC 241, Director of Tribal Welfare, Government of AP v Laveti Giri (1995) 4 SCC 32, Lillykutty v Scrutiny Committee, SC & ST W.P.(C) No.4743/2008 Page 7 of 25 & Ors (2005) 8 SCC 283 and Union of India v Dattatray 2008 (3) SCALE 235 that the only authority which is empowered under law to examine genuineness of the caste certificate is Caste Scrutiny Committee the Inquiry Officer committed a jurisdictional error in returning a finding upon the validity of the caste certificate submitted by the respondent and that the orders passed by the Disciplinary Authority and the Appellate Authority are also vitiated inasmuch as they are predicated upon the report submitted by the Inquiry Officer, vide judgment dated 13.03.2008 the Tribunal allowed the application filed by the respondent. 13. Aggrieved by the impugned judgment dated 13.03.2008 passed by the Tribunal the petitioner has filed the present petition under Articles 226 and 227 of Constitution of India. 14. In support of the present petition, the learned counsel for the petitioner submitted that the learned Tribunal had not correctly appreciated the ratio laid down by Supreme Court in the decisions relied upon by the Tribunal and committed an error in not examining the matter on merits and allowing the application filed by the respondent on the ground of scope of jurisdiction of the Inquiry Officer. 15. Per contra, learned counsel for the respondent supported the impugned judgment passed by the Tribunal. 16. Whether the Inquiry Officer committed a jurisdictional error in returning a finding upon the social status of the respondent? 17. In order to find an answer to the question posed above, we proceed to examine the decisions of Supreme Court relied upon by the Tribunal. W.P.(C) No.4743/2008 Page 8 of 25 18. In Madhuri‟s case (supra) following guidelines were laid down by Supreme Court regarding procedure for issuance, scrutiny and approval of social status certificates:- “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 W.P.(C) No.4743/2008 Page 9 of 25 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 a registered post with acknowledgement 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 W.P.(C) No.4743/2008 Page 10 of 25 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 finalising 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 W.P.(C) No.4743/2008 Page 11 of 25 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 acknowledgement 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. 14. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons.” W.P.(C) No.4743/2008 Page 12 of 25 19. In Laveti Giri‟s case (supra), Supreme Court reiterated the guidelines laid down in Madhuri‟s case (supra) regarding the procedure for issuance, scrutiny and approval of social status certificates. 20. In Lillykutty‟s case (supra), it was held by Supreme Court that while exercising jurisdiction under Article 136 of Constitution of India it cannot interfere with a finding of fact arrived at by Scrutiny Committee regarding the genuineness of a caste certificate except in cases where such finding is based on no evidence or is arbitrary or perverse. 21. In Dattatray‟s case (supra), it was held by Supreme Court that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. 22. From the aforesaid, it is crystal clear that the only decision which may have some relevance on the issue in hand is the decision of Supreme Court in Madhuri‟s case (supra). Laveti Giri‟s case (supra) merely reiterates the guidelines laid down by Supreme Court in Madhuri‟s case (supra). Lillykutty and Dattatray‟s cases (supra) has no application whatsoever on the issue in hand. 23. Having examined the decision of Supreme Court in Madhuri‟s case (supra), we are afraid, it cannot be said that Madhuri‟s case lays down that the Inquiry Officer committed an error in returning a finding upon the social status of the respondent for the same was a matter which exclusively falls in the domain of Caste Scrutiny Committee. The guidelines issued by Supreme Court in Madhuri‟s case (supra) lays down W.P.(C) No.4743/2008 Page 13 of 25 the procedure to be followed for issuance of fresh caste certificates or verification of caste certificates already issued by the authorities. By no stretch of imagination, Madhuri‟s case (supra) lays down that wherever the issue of correctness of a caste certificate comes up in question, no authority other than Caste Security Committee can enquire into the same. It appears that the Tribunal has been swayed by the guidelines Nos. (11) and (12) issued by Supreme Court in holding that no authority other than Caste Scrutiny Committee can examine the correctness of a caste certificate. The purport of said guidelines is that the finding arrived at by Caste Scrutiny Committee regarding genuineness of a caste certificate can only be assailed by way of filing a petition under Article 226 of Constitution of India before the High Court and that the said finding cannot be assailed in a suit or in any other proceeding. 24. In view of the aforesaid, we have no hesitation in concluding that the view taken by the Tribunal that the Inquiry Officer committed an error in returning a finding upon the social