Ashok Das vs State Of Tripura And Ors

[1] Petitioner has challenged an order dated 17.06.2017 passed by the State Government terminating the service of the petitioner on the ground that the petitioner had secured Government service as a Scheduled Caste candidate. However, his caste certificate was subsequently cancelled.

[2] Brief facts are as under:

Petitioner was appointed on the post of Agricultural Officer, Grade-I under the Department of Agriculture, Government of Tripura on 01.02.1999 on a reserved vacancy for SC candidate. In the year 2005, an inquiry was conducted by the vigilance cell of the State Government regarding the caste status of the petitioner. The State Level Scrutiny Committee (SLSC for short) issued a show cause notice to the petitioner on 22.07.2010 alleging that the caste certificate issued in favour of the petitioner was invalid and the petitioner did not belong to SC the community. Proposal was to cancel the caste certificate. The petitioner resisted the show cause notice proceedings. The petitioner also approached this Court by filing W.P(C) No.565 of 2010 challenging the jurisdiction of the caste scrutiny certificate, which petition was dismissed on 5.01.2011. The SLSC passed an order dated 21.05.2011 cancelling the SC certificate of the petitioner. The petitioner challenged the said order before the High Court by filing Writ Petition (c) No.275 of 2011. This petition was dismissed by the learned Single Judge by a Judgment dated 22.09.2016. Petitioner challenged this judgment in Writ Appeal No.108 of 2016 which was dismissed on 13.02.2017. The letter patent appeal against the said judgment was also dismissed by the Supreme Court on 13.04.2017. That apart, the respondent No.2 passed the impugned order dated 17.06.2017 whereby the service of the petitioner was terminated in terms of Rule-7A(9) of the Tripura Scheduled Castes & Scheduled Tribes Reservation Rules, 1992. This order of the petitioner has been challenged in the present petition.

[3] Appearing for the petitioner, learned counsel Mr. Arijit Bhowmik submitted that the petitioner had put in several years of satisfactory service. He is now over aged. He cannot secure any other employment in Government organisations. He submitted that in any case, on the basis of service already put in by the petitioner, he must be given pensionary benefits. He has drawn my attention to the decision of the Supreme Court in case of Chairman and Managing Director, Food Corporation of India and others Vrs. Jagdish Balaram Bahira and others: reported in (2017) 8 SCC 670 and contended that when the rules do not prohibit, the Court can exercise discretionary powers and retain the benefits of past service already put in, even though the caste certificate may have been cancelled. He lastly contented that the State of Tripura the Government has adopted different yardsticks. In the majority of the cases of similar nature past services are not forfeited. He has drawn my attention to the judgment of Division Bench of this Court in case of Sri Nepal Majumder Vrs. The State of Tripura and another in Writ Petition(C) No.68/2015 where the Division Bench directed that the punishment of dismissal be converted into one of compulsory retirement where the caste certificate of the Government servant was cancelled.

[4] Learned Additional Government Advocate, Mr. D. Sharma opposed the petition contending that the petitioner had secured a service through fraud producing false caste certificate, he cannot retain any benefit of the past service.

[5] The facts are not in dispute. The petitioner secured his service on a post reserved for SC candidates on the strength of a caste certificate which was later on found to be false. On an inquiry the SLSC after putting in the petitioner to a notice, came to the conclusion that the petitioner did not belong to the SC community. His caste certificate was, therefore, cancelled. The SLSC was constituted pursuant to the decision of the Supreme Court in case of Kumari Madhuri Patil and another Vrs. Addl. Commr. Tribal Development, Thane and others: reported in (1997) 5 SCC 437. The decision of the said committee could be challenged only before the High Court. The Petitioner availed such an opportunity. His writ petition was dismissed by the learned Single Judge. The Division Bench, in appeal, upheld the judgment. SLP against such judgment was also dismissed by the Supreme Court. Insofar as the question of validity of the caste certificate is concerned, the same achieved finality. Only thereafter, the State machinery decided to terminate the service of the petitioner since it was conclusively held that the petitioner did not belong to the SC community and the caste certificate was, therefore, cancelled.

[6] In such a background, the petitioner cannot retain any benefit of the service already put in. Of course, the pay and allowances paid cannot be and are not even sought to be withdrawn by the Government. However, once it is held that the caste certificate was false, obtained fraudulently and on the basis of such fraudulent caste certificate the petitioner obtained Government service, the benefit of the past service cannot be retained. The Supreme Court in case of Chairman and Managing Director, Food Corporation of India and others Vrs. Jagdish Balaram Bahira and others(Supra) has discussed the law on the point at considerable length and made the following observations:

"54. The object and purpose underlying the enactment of the state legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini [(2013) 16 SCC 526] is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. Section 7 provides for the cancellation of a caste certificate where before or after commencement of the Act, a person who does not belong to a reserved category has obtained a false caste certificate and the Scrutiny Committee, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation under Section 7. Section 10 prescribes that a person who does not belong to a reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits while sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub-section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny Committee (invalidating a caste or tribe certificate) may fail or succeed. If the challenge before the High Court succeeds, no question of the consequence under Section 10 arises. If the challenge fails, the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. Similarly, if the order under Section 7 is not challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression "false" must be construed in contradistinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.

Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The State law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two-Judge Benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it."

[7] These aspects have also been discussed by the Supreme Court in a recent decision in case of State of Bihar and Others Vrs. Devendra Sharma: reported in 2019 SCC OnLine SC 1360 making following observations:

In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India V. Jagdish Balaram Bahira, the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under:

"69. For these reasons, we hold and declare that:

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69.3 The decisions of this Court in R. Vishwanatha Pillai [R. Vishwanatha Pillai V. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L & S) 350] and in Dattatray [Union of India V. Dattatray, (2008) 4 SCC 612 : (2008) 2 SCC (L & S) 6] which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.

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69.7 Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;"

[8] The Division Bench of this Court in case of Sri Nepal Majumder Vrs. The State of Tripura and another (supra) was rendered before the judgment of the Supreme Court in case of Chairman and Managing Director, Food Corporation of India and others Vrs. Jagdish Balaram Bahira and others (Supra). It is unfortunate that the State Government has adopted different standards for different employees. However, full facts are not before this Court. In any case, an employee whose caste certificate is found to be false and on the basis of such fraudulently obtained caste certificate he has obtained a Government service, cannot argue that the benefits of the past service so obtained by him through fraudulent means may be allowed to be retained for the purpose of pensionary and other benefits, simply because the Government had shown leniency in case of some other cases.

[9] For these reasons, the petition is dismissed. Pending application(s), if any, also stands disposed of.