IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 23.07.2009 Coram The Honourable Mrs. Justice PRABHA SRIDEVAN and The Honourable Mr. Justice C.T. SELVAM W.P. No.23638 of 2008 and M.P. No.1 of 2008 Usha Rani Sukumar ... Petitioner Vs. 1. The Chief General Manager, State Bank of India, Local Head Office, 16, College Lane, Chennai 600 006. 2. The Assistant General Manager, State Bank of India, Coimbatore. ... Respondents. Writ petition filed under Article 226 of Constitution of India, seeking to issue a writ of Certiorarified Mandamus, calling for the proceedings of the 1st respondent dated 5.11.2007 communicated in the proceedings PER/KJ of the 2nd respondent dated nil and quash the same and direct the respondents to accept her voluntary retirement with effect from 21.09.2006 and release all consequent and attendant terminal benefits such as pension, commutation, DCRG, leave encashment, provident fund etc. For Petitioner : Mr. V. Vijay Shankar For Respondents: Mr. P.D. Audikesavalu for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by PRABHA SRIDEVAN, J) The writ petitioner, who was appointed as Clerk-cum-Cashier on 01.04.1980, was subsequently promoted in 2005. She lost her son and she applied for voluntary retirement on health grounds with effect from 21.09.2006, by giving three months notice. A Medical Board was constituted to assess her health condition and the Medical Board found that she suffered from chronic depressive disorder in addition to other physical illness. 2. Since no order was passed on her request, she filed W.P. No.24544 of 2007 for a mandamus and the same was disposed of by an order dated 27.09.2007, directing the respondents to pass appropriate orders. Thereafter, by proceedings dated 05.11.2007, the first respondent communicated to her that since her community certificate was still under verification, her claim for voluntary retirement cannot be accepted. 3. As against the order dated 5.11.2007, she filed the present writ petition to quash the said order and for a direction to the respondents to accept her voluntary retirement with effect from 21.09.2006 and release all consequent and attendant terminal benefits such as pension, commutation, DCRG, leave encashment, provident fund etc. 4. A counter has been filed by the Bank, in which it is stated that the petitioner was appointed to the post of Clerk against the vacancy reserved for "Scheduled Tribes" on the basis of caste certificate, which certifies that she belongs to "Konda Reddi" (Schedule Tribe). On 23.03.1990, the Government of India, Ministry of Finance, Department of Economic Affairs directed all the Public Sector Banks/financial institutions to get the caste certificates verified in accordance with the extant Rules then in vogue. Hence, the petitioner's caste certificate was also sent for verification to the Revenue Divisional Officer, Tiruppur, who observed that the petitioner does not belong to "Konda Reddy" community. 5. Thereafter an enquiry was conducted by the Sub- Collector, Tirupur, who submitted his recommendations on 29.07.1998. Thereafter, she filed W.P. No.15347 of 1998 before this Court and this Court, by an order dated 01.04.2002, directed the District Level Caste Scrutiny Committee to conduct a fresh enquiry. The Committee issued notice to her to appear for enquiry. This notice was challenged by her by filing another writ petition and that was https://hcservices.ecourts.gov.in/hcservices/ dismissed. As against the said order, she filed a writ appeal to restrain the District Level Caste Scrutiny Committee from proceeding with the verification of her certificate. 6. But, subsequently, the Government issued G.O. (2D) No.108 dated 12.9.2007, which revised the earlier Government Order in G.O.Ms.No.111 dated 6.7.2005. Thereafter, for verification of Scheduled Tribe Community Certificate, a State Level Scrutiny Committee was constituted in accordance with the decision reported in the case of KUMARI MADHURI PATIL v. ADDITIONAL TRIBAL COMMISSIONER (A.I.R. 1995 SC 94). The Committee has not yet verified her certificate and the Bank is awaiting the result. According to the respondent-Bank, this is the reason as to why the petitioner's plea for voluntary retirement could not be accepted. 7. Learned counsel appearing for the petitioner submitted that the petitioner had obtained sufficiently good mark, when she appeared for the Banking Service Recruitment Examination and therefore, she was entitled to be appointed in the general category and not against the vacancy reserved for 'Scheduled Tribe" category. According to the learned counsel, if the records are produced from the Bank Service Recruitment Board, it would be clear that she was appointed only in the open category and not against the Scheduled Tribe category and if so, the necessity for verifying her community certificate would not arise. She was holding the post not as a person belonging to the Scheduled Tribe community, but she had competed in the open category and succeeded. 8. Learned counsel also submitted that much earlier, she had submitted her application for voluntary retirement and the said request ought to have been accepted, especially when her mental condition has also been accepted by the Medical Board. Learned counsel submitted that following the decision reported in the case of UNION OF INDIA v. DATTATRAY ((2008)4 SCC 612), which was almost a similar case, the respondents may be directed to accept her voluntary retirement application. give her contribution of the provident fund and also the gratuity withholding all other benefits. 9. On a perusal of records, it could be clear from the endorsement made in the bio-data form of the petitioner for recruitment to the Bank, the word "Schedule Caste" was shown and she has also enclosed her caste certificate. When she was appointed in general category, the necessity of producing the caste Certificate does not arise. For this purpose, in the decision reported in the case of UNION OF INDIA v. S. KRISHNAN ((2008) 3 SCC177, the Supreme Court held that if the employee is appointed to the post belonging to the general category, there is no need for filing any community certificate. According to the learned counsel for the second respondent, it is just the presumption of the petitioner that she has https://hcservices.ecourts.gov.in/hcservices/ not been appointed in the Scheduled Tribe category. Learned counsel also submitted that the submission made regarding the marks of the petitioner are not supported by any evidence and therefore the same cannot be accepted. Learned counsel submitted that the proceedings had not been concluded only because of the repeated writ petitions filed by the petitioner, who prevented the Committee, appointed in this regard, from concluding the proceedings. 10. Learned counsel submitted that the decisions reported in the case of R. VISHWANATHA PILLAI v. STATE OF KERALA (A.I.R. 2004 SC 1469), REGIONAL MANAGER, CENTRAL BANK OF INDIA v. MADHULIKA GURU PRASAD DAHIR (AIR 2008 SC 3266) and UNION OF INDIA v. S. KRISHNAN ((2008) 3 SCC 177) are to the effect that a person, who has been appointed on the basis of fake Certificate, will not be entitled to any right either in obtaining service or for any other benefits flowing from the said Certificate obtained by her. The Bank will keep the amount payable to the petition in a fixed deposit and if the State Lever Committee certifies that she does belong to the Konda Reddi community, then alone this amount would be disbursed to her. 11. It is seen from the copies of the documents enclosed in the type set of papers that the petitioner had addressed the bank on 04.09.2006, requesting the bank to relieve her, withholding Bank's portion of contributory provident fund and pension and releasing other amounts due to her. A copy of the medical report also enclosed, which shows that she had a chronic depressive disorder. The copy of bio- data form of the petitioner for recruitment to clerical cadre shows the words "Cashier Coimbatore Scheduled Tribe". Even in the earlier writ petition, the stand of the bank seems to be that she was appointed in the Scheduled Tribe category and even in the affidavit filed in support of the said writ petition, there is nothing to indicate that the petitioner thought that she was appointed in the general category. 12. Therefore, it is difficult for us to presume that she might have been appointed in the general category at this stage without any record to support that. Further in the decision reported in (2008) 3 SCC 177 cited supra, the petitioner claimed that he belongs to Malayalee Community and the learned counsel for the employee took the stand that he was appointed as a general category candidate and not as a member of the Scheduled Tribe. The original service records of the respondent were produced and the Supreme Court observed that it appears from the appointment order that he was appointed in respect of a post earmarked for Scheduled Tribe and if in reality the respondent was appointed in respect of a post belonging to the general category, there was no need for filing a community certificate. This apply to this case. We find from the bio-data form that she was appointed as Cashier from Coimbatore as Scheduled Tribe and she had also produced her certificate to the effect that she https://hcservices.ecourts.gov.in/hcservices/ belongs to the Konda Reddis community. The Supreme Court in that case allowed the appeal filed by the Union of India. This has been followed by this Court in W.P. No.11042 of 2008 decided on 11.11.2008. 13. In R. VISHWANATHA PILLAI v. STATE OF KERALA (A.I.R. 2004 SUPREME COURT 1469), the appellant has entered the service against the reserved post on the basis of false caste Certificate. The Supreme Court held that the equity jurisdiction cannot be exercised in the case of a person, who got the appointment on the basis of false caste Certificate, by playing a fraud and the appointment was void and non est. The right to salary or pension after retirement flow 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 and there was no equity jurisdiction for a person who obtained the appointment on the basis of false caste certificate. 14. Similarly in REGIONAL MANAGER, CENTRAL BANK OF INDIA v. MADHULIKA GURUPRASAD DAHIR & ORS. (AIR 2008 SC 3266), the Supreme Court held that the selection of the employee was conceived in deceit and therefore could not be saved by equitable consideration. 15. In UNION OF INDIA v. DATTATRAY ((2008) 4 SCC 612), which is strongly relied on by the learned counsel for the petitioner, a person who claimed belong to a Scheduled Tribe – Halba, was appointed as Assistant Professor of Phychiatry and subsequently, this Certificate was found to be false. But, in that case, even before the writ petition was decided, he had submitted his resignation and had not attended to duty. Therefore, the Supreme Court directed that the terminal benefits may be settled, but he will not be entitled to any pensionary benefits. Learned counsel appearing for the respondent- Bank submitted that the decision in (2008) 4 SCC 612 cited supra cannot be said to be laying down law that in all cases of fake Certificates they should be entitled to terminal benefits. The Supreme Court had exercised its discretion in this particular case. 16. We accept the Bank's stand that the petitioner was appointed only in a post reserved for Scheduled Tribe. Therefore, her appointment would be valid only if her Certificate is genuine. The genuineness of the Certificate is pending consideration. In the meantime, she submitted her application for voluntary retirement and had not attended to the work from 2006. It is also clear that the Medical Board had certified that she suffered from chronic depressive disorder. 17. Considering the facts of this case and also the judgment produced before us, we feel that the following order would be appropriate :- " The respondents will accept her application https://hcservices.ecourts.gov.in/hcservices/ for Voluntary Retirement, pay to the petitioner her contribution to the provident fund alone. All other amounts that may be payable to her will be invested in a fixed deposit till the State Level Committee gives its decision on the Certificate. The Bank will disburse the amounts if the certificate is found to be true. We earnestly hope that the State Level Committee will dispose of the matter within three months." 18. The writ petition is allowed to the extent indicated above. Consequently, the connected M.P. is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To: 1. The Chief General Manager, State Bank of India, Local Head Office, 16, College Lane, Chennai 600 006. 2. The Assistant General Manager, State Bank of India, Coimbatore. 3.The Chairman, State Level Committee, Coimbatore. +1cc to Mr.P.D.Audikesavalu, Advocate Sr 34292 +1cc to Mr.V.Vijay Shankar, Advocate Sr 34083 KJI(CO) km/21.8. W.P. No.23638 of 2008 and connected M.P. https://hcservices.ecourts.gov.in/hcservices/