IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11..11..2008 CORAM HON’BLE Mr.A.K.GANGULY, CHIEF JUSTICE and HON’BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.P.No.11042 of 2008 ---------- H.Rani ..Petitioner Vs. The General Manager (South) & Disciplinary Authority, Food Corporation of India, 3, Haddows Road, Chennai – 600 006. ..Respondent PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records in the order bearing No.4(18)/2005/CR Cell dated 15.09.2007 passed by the respondent and praying to quash the same. ----------- For Petitioner :: Mr.M.Radhakrishnan For Respondent :: Mr.A.S.Thambusamy ----------- O R D E R THE HON’BLE CHIEF JUSTICE This writ petition has been filed by H.Rani challenging inter alia the order dated 15.09.2006 passed by the Food Corporation of India (hereinafter, as “FCI”) whereby it has been ordered that as the petitioner’s community certificate has been cancelled by the State Level Scrutiny Committee her appointment is not legal and non-est in the eye of law, and as such the General Manager (South), who is the competent authority under FCI (Staff) Regulation, 1971 (hereinafter, as the “said Regulation”) passed an order cancelling the extension of her daily rated service as Sweeper by letter dated 22.3.1977 and the order regularizing her service as Sweeper with effect from 13.6.1978 under Reserved Category and also terminated her from the rolls of the Corporation with immediate effect and https://hcservices.ecourts.gov.in/hcservices/ also ordered that the writ petitioner will not entitled to retrial benefits. 2. The case which has been made out in the writ petition is that the writ petitioner was appointed a Sweeper by the FCI by an order dated 11.2.1977 with effect from 17.12.1976. At the time of joining, the writ petitioner produced a community certificate dated 5.6.1975 to the effect that she belongs to Scheduled Tribe. However, it is alleged in the affidavit that the writ petitioner’s appointment is not on the basis of her community certificate, but she was appointed as a General Candidate. Thereafter, the writ petitioner was regularized in the said post in the category of general candidate in the year 1978 with effect from 17.12.1976. Then, she was promoted to the post of Assistant Grade-III (General) as a general candidate, and not against the vacancy reserved for Scheduled Tribe. Thereafter, for the first time, in August, 1994, after the writ petitioner served in the FCI for 18 years, she was promoted against the vacancy reserved for Scheduled Tribe as Assistant Grade II (General) and in the year 2000, she was promoted as Assistant Grade I (General) against a vacancy reserved for Scheduled Tribe. 3. The writ petitioner has submitted that her community certificate was sent for verification to the competent authority and the State Level Scrutiny Committee by its order dated 31.08.2006 cancelled the said community certificate by order dated 5.6.1975. The grievance of the writ petitioner is that pursuant to such cancellation of her community certificate, the respondent instead of reverting her from the post of Assistant Grade I to the post of Assistant Grade III straightaway terminated her services by order dated 15.09.2006, which according to the writ petition is illegal, inasmuch as her initial appointment as Sweeper with effect from 17.12.1976 is not on the basis of her belonging to Scheduled Tribe. 4. In this matter, a counter-affidavit has been filed by the respondent-authority. In the said affidavit, which is affirmed on 18th July, 2008, it has been stated that the petitioner was sponsored by the Employment Exchange as a Scheduled Tribe candidate and was appointed on ad-hoc basis as Sweeper with effect from 17.12.1976. Subsequently, by an office order dated 11.2.1977, the appointment of the writ petitioner along with others were extended for a short term basis with effect from 1.6.1976 to 31.3.1977 on the time scale of pay. Subsequently, by another office order dated 13.06.1978 her services were regularized with effect from 17.06.1976 and the writ petitioner produced the community certificate dated 5.6.1975 to the effect that she belongs to Kattu Naicken community, which is a Scheduled Tribe community. The case of the FCI is that based on the said community certificate she was appointed in the post reserved for Scheduled Tribe. In the combined seniority list of Sweeper in Tamil Nadu Region, Office of the Joint Manager (P.O), Madras and Zonal Office (Madras) as on 30.06.1978 and 31.12.1980, the writ petitioner was shown as belonging to Schedule Tribe community in the seniority list of AG.III, II and I. On that basis, she was promoted to the post of Assistant Grade III by the officer under order dated https://hcservices.ecourts.gov.in/hcservices/ 27.12.1988. In her service register, it has been recorded that she belongs to Kattu Naicken community, and she has signed the Cardex Card to that effect. It has been made very clear in the counter affidavit that only persons who belong to reserved category are called upon to produce the necessary certificates from the Competent Authority, and there is no requirement for persons coming under open category to produce such certificates to the effect that the candidate belongs to either Scheduled Caste or Scheduled Tribe community. The Community Certificate, which has been produced by the petitioner, dated 05.06.1975, finds a place at page-1 of the typed set of papers filed along with the petition. The combined seniority list of Sweeper in the Tamil Nadu Region, Office of Joint Manager (PO), Madras and Zonal Office, Madras as on 30.06.1978 has been produced and in the said list the name of the petitioner figures in Sl.No.63, and it is shown against her name that she belongs to Scheduled Tribe community (please see page-7 of the typed set of papers). Similarly, in the Combined Seniority List of Sweeper in Tamil Nadu Region/Office of the Joint Manager (PO), Madras/Zonal Office, Madras as on 31.12.1980, the name of the petitioner figures in Sl.No.40 and it is shown that she belongs to Scheduled Tribe community (please see page-11 of the typed set of papers). The Cardex Card, which has to be filled in by the employee, shows that the petitioner belongs to Scheduled Tribe, and the said card has been signed by the petitioner and in the said card the petitioner has given a declaration that she belongs to the Scheduled Tribe (please see page-14 of the typed set of papers). 5. The stand of the FCI is that the writ petitioner was promoted to the post of Assistant Grade II against the vacancy reserved for Scheduled Tribe for the first time in the year 1994 and only in the year 2000, she was promoted to the post of Assistant Grade I against the vacancy reserved for Schedule Tribe, and from the beginning of appointment she was treated as a Scheduled Tribe candidate. The further stand of the FCI is that when the writ petitioner was promoted to the post of Assistant Grade I in the year 2000 she was called upon to produce the fresh community certificate based on the Circular of Union of India to verify as to whether an employee still belongs to Scheduled Community or the said Community has been de- notified. As the petitioner failed to comply with the same, she was served with a show cause notice asking to show cause why disciplinary action should not be initiated against her. 6. The petitioner filed a writ petition being W.P.No.35754 of 2003 challenging the said show cause notice. However, the said show cause notice was withdrawn and the community certificate of the petitioner was sent for verification to the State Level Scrutiny Committee. The State Level Scrutiny Committee, after considering all the relevant facts and available records, and after affording an opportunity to the petitioner, by its order dated 31.08.2006 gave a finding that the petitioner does not belong to Kattu Naicken community, which falls under the category of Scheduled Tribe, resulting in the cancellation of the community certificate of the petitioner dated 05.06.1975. https://hcservices.ecourts.gov.in/hcservices/ 7. Challenging the same, the petitioner filed a writ petition before this Court (W.P.No.32951/2006). This Court by order dated 20.02.2007 upheld the order of the State Level Scrutiny Committee dated 31.08.2006 and dismissed the writ petition, against which no appeal has been filed by the petitioner. The Corporation has taken a stand that the allegation of the petitioner that she ought to have been reverted as Assistant Grade III, is contrary to law. On the other hand, it has been stated that the petitioner was always treated as a Scheduled Tribe candidate and she was given the benefits of reserved category candidates. The further stand of the Corporation is that having admitted under oath that she was sponsored and appointed as Sweeper under Scheduled Tribe category, the petitioner cannot now claim that she was appointed as an open category candidate. 8. The petitioner has filed a rejoinder, wherein she has stated that the FCI has not produced any order to show that she was appointed initially against a vacancy reserved for Scheduled Tribe, and in the absence of any such evidence, oral or documentary, her statement in the affidavit accompanying the writ petition that she was appointed to the post of Sweeper as a general candidate deserves to be accepted. She has further stated that in the two earlier writ petitions she has only stated that her name was sponsored by the Employment Exchange for appointment to the post of Sweeper under the quota reserved for Schedule Tribe. She has further stated that requisition for candidates and sponsorship of candidates were within the exclusive knowledge of the employer and the employment exchange, and the said statement made by her may be ignored. Her case is that the onus is on the respondent to prove that she was appointed against a vacancy reserved for Scheduled Tribe, and as the respondent failed to prove the same, her initial appointment as Sweeper should not have been cancelled by the respondent without prior notice. She further states that the policy of reservation would not apply to casual employment, but will apply only to regular post. She submits that since her first promotion to the post of Assistant Grade III (G) was as a general candidate, at the most she could have been reverted to the post of Assistant Grade III(G). 9. In the facts of this case, it is difficult to sustain the contentions of the writ petitioner. In the typed set filed by FCI, the affidavit filed by the petitioner has been annexed and in the said affidavit filed by the petitioner in W.P.No. 35754 of 2003, the petitioner has stated as follows: - “3. I respectfully submit that my name was sponsored by the Employment Exchange for appointment to the post of Sweeper under the quota reserved for scheduled tribes. At the time of my appointment, I have submitted a community certificate dt.05.06.75 issued by the Revenue Divisional Officer, Dindigul to the effect that I belong to the Kattunayakan scheduled tribe community. https://hcservices.ecourts.gov.in/hcservices/ 4. I respectfully submit that after being satisfied with the certificate produced by me, the respondent was pleased to appoint me and my services were also confirmed in time.” 10. Another affidavit was also filed by the petitioner in W.P.No. 32951 of 2006, which is at page 32 of the typed set, where also the petitioner has made the following statement: - “3. I respectfully agree that my name was sponsored by the Employment Exchange for appointment to the post of Sweeper under the quota reserved for scheduled tribes. At the time of my appointment, I have submitted a community certificate dt.05.06.75 issued by the Revenue Divisional Officer, Thindivanam to the effect that I belong to the Kattunayakan scheduled tribe community. 4. I respectfully submit that after being satisfied with the certificate produced by me, the second respondent appointed me as a Sweeper. Subsequently, I was given further promotions and presently I am serving as Assistant Gr.I.” Therefore, the consistent stand of the petitioner is that she was appointed initially as a Sweeper against the reserved candidate. She was treated as reserved candidate in all other proceedings of the FCI. 11. Now it appears that her community certificate was cancelled by the State Level Scrutiny Committee by order dated 31.08.2006. Against that a writ petition was filed by the petitioner and the same has been dismissed on 20.02.2007 holding that she does not belong to Kattu Naicken Community. As noted above, that order has not been challenged by the writ petitioner. Therefore, that order has become final. This writ petition has been filed after about 14 months of the order dated 20.02.2007. 12. Reference in this connection can be made to the decision of the Supreme Court in the case of Kumari Madhuri Patil and another v. Addl.Commissioner, Tribal Development and others, 1994 (6) SCC 241. In paragraph-13 of the said judgment, the learned Judges streamlined the procedure to be followed once it is found that the Scheduled Caste or Scheduled Tribe or OBC certificates are not genuine. One of the said guidelines is as follows: - “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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 13. Following the aforesaid direction of the Hon’ble Supreme Court, the impugned order dated 15.09.2006 has been passed by the authorities of the FCI. In the said impugned order, it has been stated that the community certificate has been cancelled by the State Level Scrutiny Committee by order dated 31.08.2006 and the same has been communicated to the petitioner by letter dated 01.09.2006. Relying on the same, the impugned order was passed by the FCI authorities in terms of Guideline No.15. There is no infirmity in the said order especially when the order of State Level Scrutiny Committee has been upheld by this Court by dismissing on 20.02.2007 the petitioner’s writ petition (W.P.No.32951 of 2006) which challenged the order of the State Level Scrutiny Committee. 14. Same principles have been followed by the Supreme Court in the case of R.Vishwanatha Pillai Vs. State of Kerala and Others, reported in AIR 2004 SC 1469. In paragraph – 13 at page 1474 of the said report the learned Judges held where a misconduct alleged against an employee is that he entered the service against reserved post meant for SC or ST on the basis of false caste certificate, the issuance of a fresh notice under the Rules for proving the same misconduct which has been examined by an independent body constituted under the direction of the Court and which has already been upheld by a Court would be repetitive and futile. 15. In paragraph – 15 at page 1475 of R.Viswanatha Pillai’s Case the learned Judges held that when an appointment is obtained on the basis of a false caste certificate, the position in law is that the person obtaining such appointment has usurped the post which should have gone to a genuine member of the Scheduled Tribe. Such appointment is “void from its inception”. Therefore, the question of further hearing before terminating the said appointment does not arise. 16. The learned counsel for the petitioner also relied on a constitution Bench judgment of the Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, reported in 1991 Supp (1) SCC 600. He relied on paragraph – 294 at page 749 where the learned Judges relied on the principle decided by the Hon’ble Supreme Court in the case of Basheshar Nath Vs. CIT, reported in AIR 1959 SC 149. In Basheshar Nath a Constitution Bench of the Supreme Court held that there can be no waiver of fundamental rights, especially the rights under Article 14. This Court is of the opinion that the said principle has subsequently also been reiterated https://hcservices.ecourts.gov.in/hcservices/ by the Hon’ble Supreme Court in various other judgments, particularly in Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 180. But the said principle is not attracted in the present case. In the instant case, the petitioner’s right under Article 14 has not at all been infringed. Rather, it is clear from the facts discussed above that the petitioner obtained her appointment on the basis of a false caste certificate, and therefore, it was an illegal appointment, and the said illegality was present from the very inception of her appointment. This position cannot be disputed. That being the accepted position, the principle in the case of Basheshar Nath is not at all attracted in the facts of the present case. 17. The learned counsel for the respondent relied on a judgment of the Supreme Court in the case of Union of India and Others Vs. S.Krishnan and Another, reported in (2008) 3 SCC 177. In paragraph – 8 of the said judgment the learned Judges held that if an employee was appointed in respect of a post belonging to the general category, there is no need for filing any community certificate. If the community certificate produced was found to be bogus, the learned Judges held that “essentially is the end of the matter” (See page – 179 of the report). In the instant case, the community certificate has been produced by the petitioner has been found to be fake by the State Level Scrutiny Committee and on a challenge the High Court has also held that the same is fake and upheld the finding of the Scrutiny Committee. That finding is final between the parties. 18. Therefore, considering the views of the Hon’ble Supreme Court in S.Krishnan, we also agree that is the end of the matter. This writ petition, which has been filed 14 months after the decision of the High Court in W.P.No.32951 of 2006, which also held that the caste certificate is fake, is wholly without any merit. As such this writ petition fails and accordingly, it is dismissed. But, in the facts and circumstances of the case there will no order as to costs. The impugned order dated 15.09.2006 is upheld. Interim order, if any, is vacated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pv/sm To The General Manager (South) Disciplinary Authority, Food Corporation of India, 3, Haddows Road, Chennai - 6 https://hcservices.ecourts.gov.in/hcservices/ 1 cc To Mr.M.Radhakrishnan, Advocate, SR.63411 1 cc To Mr.A.S.Thambuswamy, Advocate, SR.62711 W.P.No.11042 of 2008. SCD(CO) SRA(18/11/2008) https://hcservices.ecourts.gov.in/hcservices/