IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/07/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.10556 of 2006
W.P.M.P.No.11939 of 2006
W.P.M.P.No.11940 of 2006
S. Srinivasalu ...Petitioner
-Vs-
1.The Food Corporation
of India,
rep.by its Zonal Manager (South),
Zonal Office,
No.3, Haddows Road,
Chennai 6.
2.The Food Corporation of India,
rep.by its Deputy General Manager (Personnel),
Zonal Office,
No.3, Haddows Road,
Chennai 6. ... Respondents
Writ petition filed under Article 226 of Constitution of India,
praying this Court to issue a writ of Certiorarified Mandamus calling for the
records erlating to the impugned order in O.O.No.32(1)/2005-CR Cell dated
31.10.2005 passed by the second respondent and quash the same and consequently
direct the respondents to grant all terminal, service benefits and all other
attendant benefits arising therefrom to the petitioner.
!For Petitioner : Mr.W.M.Abdul Majeed
^For Respondents : Mr.S.Vijayakumar
:ORDER
Petitioner seeks to quash the order of the second respondent dated 3
1.10.2005 and to direct the respondents to grant all terminal, service
benefits and all other attendant benefits to him.
2. The brief facts necessary for disposal of the writ petition as
stated in the affidavit are as follows.
(i) Petitioner belongs to Kurumans Community, which is one of the
Scheduled Tribes. He joined the services of the Ministry of Food and
Agriculture Department, Government of India at Madras as a Peon as per the
order dated 19.12.1966, after his name was sponsored by the District
Employment Exchange, North Madras, Madras-1. In the year 1971, the Food
Corporation of India was formed and the petitioner’s services were transferred
to the said Corporation. In the year 1977, petitioner’s services along with
others were confirmed by the Food Corporation of India, by order dated
28.7.1977. Later on, petitioner was promoted as Daftry in the year 1983; as
Gestetner Operator in the year 2 000; and again as Senior Gestetner Operator
in the same year 2000. He reached the age of superannuation on 31.10.2005 and
on the said date the impugned order of cancellation of petitioner’s
appointment was issued by the second respondent.
(ii) The said order of cancellation of appointment was passed on
the ground that the Community certificate which was required to be produced by
the petitioner in terms of his order of appointment dated 19.1 2.1966 did not
find place in the service records and therefore it was confirmed that the
petitioner had not submitted the Community Certificate at the time of his
subsequent three promotions and the petitioner having failed to comply with
the terms and conditions of the appointment order/promotion orders, he is not
eligible for enjoying the benefits of initial appointment and subsequent
promotions in the Food Corporation of India under the Scheduled Tribes
category and therefore the appointment order issued by the Regional Director,
Southern Region, Ministry of Food and Agriculture Department, Government of
India, Madras is cancelled. The said order is challenged in this writ
petition.
(iii) The case of the petitioner is that he is a Scheduled Tribe
candidate belonging to Hindu Kurumans community and he produced the community
certificate issued by the competent authority as per the conditions contained
in the order of appointment dated 19.12.1966. The petitioner’s two sons have
been issued with community certificates to the effect that they belong to
Hindu Kurumans Community and the said certificates were found valid by the
District level Caste Scrutiny Committee. The petitioner also served as Zonal
Secretary in the then FCI Class IV Employees Union and he was one of the
National Negotiating Member for South Zone for the Scheduled Tribes in FCI and
also held high positions in the Food Corporation of India Executive Staff
Union, which is a recognised Union.
(iv) It is stated that because of the petitioner’s involvement in
the Union activities in the year 2005 i.e., on 24.10.2005, the second
respondent issued a show cause notice and called upon the petitioner to show
cause before the first respondent as to why action should not be taken for
having failed to produce the community certificate so far and the petitioner
was directed to produce the same within two days. The said show cause notice
was issued to the petitioner before five days of his retirement and thereafter
on 31.10.2005 the impugned order was passed alleging that the petitioner has
not produced community certificate during the time of his appointment in the
year 1966 and also on subsequent three occasions when he was promoted.
(v) The specific case of the petitioner is that he had already
produced the community certificate in the year 1966 itself at the time of his
initial appointment before the Regional Director (Food), Southern Region,
Ministry of Food and Agriculture, Government of India, Madras, and therefore
no demand can be made to produce community certificate on promotion and
therefore the allegation that the petitioner had not produced the community
certificate at the time of his subsequent promotions is not tenable. The
reason stated in the impugned order that some squad/committee was constituted
and the same had conducted enquiry and therefore the notice was issued on
24.10.2005 is unsustainable because neither the report submitted by the
Enquiry committee was forwarded to the petitioner nor he was asked to submit
any remarks. The show cause notice dated 24.10.2005 gives only two days time
to produce new community certificate, which is not a reasonable time and the
said action of the respondents show the pre-determined mind of the second
respondent in cancelling petitioner’s appointment.
3. The first respondent has filed a counter affidavit wherein it
is stated that when the petitioner was appointed in the Regional Directorate
of Food Corporation of India, he was directed to produce community certificate
and it was informed that if the condition is not complied with, the appointing
authority has powers to cancel his appointment without notice. Subsequent to
the formation of Food Corporation of India, petitioner’s services were
transferred to the Corporation and he was promoted in the year 1983 on
condition that he should furnish community certificate confirming his status
as Scheduled Tribe. The contention of the petitioner that he had produced
community certificate even at the time of joining in the service in the year
1966 is false. It is further stated that the community certificate issued to
the petitioner’s daughter was cancelled by the District Vigilance Committee in
its proceedings dated 20.12.2004 wherein community certificate issued to the
petitioner’s sons were also referred to, though not cancelled. It is stated
that the petitioner was given several opportunity to produce the community
certificate, which the petitioner willfully failed to produce the same. The
allegations that the principles of natural justice is violated is denied in
the counter affidavit.
4. The learned counsel appearing for the petitioner, apart from
reiterating the contentions raised in the affidavit, submitted that the
petitioner was employed by the Government of India and he was permanently
absorbed in the Food Corporation of India without any precondition and the
second respondent cannot now contend that the petitioner has not produced
community certificate before the Regional Director ( Food), Southern Region,
Ministry of Food and Agriculture, Government of India, Madras. Learned
counsel further contended that by virtue of the impugned order, the
petitioner’s service from 29.12.1966 to 3 1.10.2005 is nullified and the
petitioner’s retirement benefits are denied and therefore the said impugned
order affects the civil rights of the petitioner, for which no enquiry was
conducted as contemplated under Article 311 of the Constitution of India and
Section 12A of the Food Corporation of India Act. Therefore, according to the
learned counsel for the petitioner, the impugned order is unsustainable on
several grounds.
5. The learned counsel for the petitioner cited the decision
reported in 1993 (2) LW 143 (S.Prabhavathi v. The Revenue Divisional Officer,
Thiruppathur) wherein Hon’ble Mr.Justice AR.Lakshmanan (as he then was) held
that if a person’s close relative belongs to a particular community, the said
person should also be deemed to belong to the same community. In the decision
reported in AIR 1999 Madras 241 (S. Natarajan v. District Collector,
Tuticorin) Hon’ble Mr.Justice S.S. Subramani held that if the father is
issued with a community certificate, his children are also entitled to be
issued with similar community certificate. The said decision was followed by
the Hon’ble Mr.Justice P.Sathasivam in the case of N.Rajeswari v. The
District Collector, Nellai Kattabomman District, Tirunelveli and Others,
reported in (2000 ) 1 MLJ 267. In the said decision this Court held that if a
close relative of a person is given a certificate by the competent authority
certifying that he belongs to a particular community, the community status of
the relative cannot be doubted. The learned counsel also submitted that in
the decision reported in JT 1997 (7) SC 660 (R. Kandasamy v. The Chief
Engineer, Madras Port Trust) the Honourable Supreme Court held that the
community certificate issued by the competent authority so long as are not set
aside, the same will hold good for all purposes and every authority is bound
to accept the same as valid.
6. The learned counsel appearing for the respondents reiterated
the contentions raised in the counter affidavit and cited the decision of the
Honourable Supreme Court reported in (2004) 2 SCC 105 (R. Vishwanatha Pillai
v. State of Kerala) and (2005) 7 SCC 690 (Bank of India and another v.
Avinash D.Mandivikar and others) to show that if an appointment order is
obtained by producing a false community certificate by a person holding civil
post, he can be dismissed without following the due process of law as
conferred under Article 311 of Constitution of India as the appointment order
itself is a nullity.
7. I have considered the rival submissions made by the learned
counsel for the petitioner as well as the learned counsel for the respondents.
The appointment order issued to the petitioner by the Regional Director
(Food), Southern Region, Ministry of Food and Agriculture Department,
Government of India, Madras-6 dated 19.12.1966 states that the appointment
will be subject to production of certain documents at the time of reporting to
duty. One of the document required to be submitted, as per clause 7 was
Community Certificate in the prescribed form in respect of the candidates
claims to be SC, ST or Anglo Indian community.
8. It is the specific case of the petitioner that he had produced
the community certificate before the Regional Director (Food), Southern
Region, Madras-6, even at the time of joining duty and the same was accepted
and the petitioner’s service was also confirmed by the Regional Director
(Food), Southern Region, Ministry of Food and Agriculture Department,
Madras-6. The service register dated 2.8.1967 maintained by the Regional
Director of Southern Region clearly states that the petitioner is a Hindu ST.
The respondent Corporation passed an order on 28.7.1977 wherein 74 persons
were absorbed in the services of FCI and they are regularly appointed to the
post shown in Column No.5 and are confirmed from the date shown against each
in terms of regulation 5(5) of FCI Staff Regulation. Petitioner’s name is
found in Sl.No.5 in the list of persons. The said confirmation order nowhere
contain a condition that the person should produce community certificate or
their confirmation is subject to production of community certificate. Now,
the petitioner is on dialysis twice a week and a certificate dated 2.3.2004 to
this effect is produced from Dr.V.Siranjeevi, Professor and Head of the
Department of Nephrology, Kilpauk Medical College, Kilpauk, Chennai.
9. The learned counsel for the respondents also produced the file
on circulation which contains the appointment order issued by the Regional
Director (Food), Southern Region, Ministry of Food and Agriculture, Government
of India, Madras, dated 19.12.1966, the promotion order issued to the
petitioner on 22.12.1992 by the first respondent, the promotion order dated
23.12.2000 issued by the first respondent and final promotion order issued on
19.1.2001. Only in the final promotion order dated 19.1.2001 it is stated
that the candidates promoted against the reserved points including the
petitioner shall produce latest community certificate within a month.
10. As rightly argued by the learned counsel for the petitioner
submitted that pursuant to the Supreme court decision JT 1997 (7) SC 660
(cited above), the community certificate issued once, so long as the same is
not cancelled, is valid for all purposes and every authority is bound to
accept the same as valid and th erefore the request made by the first
respondent in the year 2001 to produce the latest community certificate is not
valid.
11. The decision cited by the learned counsel for the petitioner
fully supports his case particularly when the cancellation of community
certificate of petitioner’s daughter is not valid in the eye of law because
the said cancellation is made by two member Committee, which is contrary to
the judgment of the Supreme Court reported in AIR 1995 SC 94 = (1994) 6 SCC
241 (Kumari Madhuri Patil and another v. Additional Commissioner, Tribal
Development and others). The Government itself accepted the said position and
issued a revised order in G.O.Ms. No.111 dated 26.10.2005 and constituted a
three member Committee to verify the community status of the candidates.
12. The decision cited by the learned counsel for the respondents
are clearly distinguishable since in the said cases the community status of
the candidates were verified by the competent authorities and the
cancellations were found valid by the High Court of Kerala and by the
Honourable Supreme Court. Para 11 of the decision reported in (20 04) 2 SCC
105 (cited supra) can be usefully referred to for proper appreciation of the
facts in the said decision, which reads as under,
“In Kumari Madhuri Patil case ((1994) 6 SCC 241) the admissions were
taken by two sisters to professional courses on the basis of false caste
certificates produced by them, which were cancelled after the report submitted
by the Verification Committee to the effect that the certificates produced by
the appellants therein were false and that the appellants did not belong to
Scheduled Caste/Scheduled Tribe. The Court observed that all citizens were to
be treated equally. That the Constitution guaranteed to the citizens equality
before law and the equal protection of law. Though Articles 14 and 15(1)
prohibit discrimination among citizens but Article 15(4) empowers the State to
make special provisions for advancement of Scheduled Castes and Scheduled
Tribes. Article 16(1) requires equality of opportunity to all citizens in the
matters of appointment to an office or a post under the Union or a State
Government or a public undertaking etc. But Article 16(4) empowers the State
to make provision for reservation of appointments or posts in favour of castes
not adequately represented in the services under the State. That 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 Caste or Scheduled Tribe or OBC candidates as enjoined in the
Constitution, of the benefits conferred on them by the Constitution.
Thereafter, the Court laid down the procedure for the grant of social status
certificate, its due verification and the examination by the Scrutiny
Committee of its genuineness. If the certificate was found to be genuine,
then no further action was required to be taken but if the caste certificate
produced was found to be false or fraudulently obtained, then immediate action
was required to be taken. The findings recorded by the Scrutiny Committee
were made final and conclusive which could not be challenged in any suit or
any proceedings except in the High Court under Article 226 of the Constitution
of India. The Scrutiny committee was required to communicate its report under
a registered cover to the educational institution as well as the appointing
authority. The educational institution or the appointing authority on receipt
of the said report was required to cancel the admission/ appointment without
any further notice to the candidate and debar the candidate from further
studying or continuing in office in a post. This was done to simplify the
procedure for grant of the social status certificate as well as its scrutiny,
and, if found to be false, the followup action to be taken. It was done
primarily for quick disposal of such matters so that the genuine Scheduled
Caste and Scheduled Tribe persons are not deprived of the benefits conferred
on them under the Constitution of India and to debar the non-genuine Scheduled
Castes and Scheduled tribes from taking advantage of the benefit conferred
under the Constitution on the basis of false caste certificate obtained by
them by committing a fraud. The persons who had obtained admission or got the
appointment on the basis of false caste certificate thereby usurping the seat/
post reserved for the Schedule Castes/ Scheduled Tribes were required to be
weeded out by prompt action. It was held (SCC p.254, para 13)
“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.” ”
13. In the decision reported in (2005) 7 SCC 690 (cited supra)
also the facts are that the duly constituted committee found that the
candidate was not belonged to that community and in such a situation, the
Honourable Supreme Court held that the appointment obtained by the candidate
was not valid and mere delay in making verification will not justify the
candidate for reinstatement. It is specifically held that the finding of the
Scrutiny Committee having been accepted, the delay in making reference loses
its significance.
14. Here in this case, petitioner’s community status was not
determined by any duly constituted Committee as if he do not belong to ST
community. Therefore the said decisions of the Honourable Supreme Court are
factually not applicable to the facts in the present case.
15. Taking into consideration the over all view of the matter
including the confirmation order given by the respondents in the year 1977
while absorbing the petitioner along with other employees in the FCI, I am of
the firm view that the request of the respondents to produce a community
certificate just six days prior to the date of his retirement is unauthorised
since it is not proved that the petitioner has not produced community
certificate before the Regional Director ( Food), Southern Region, Ministry of
Food and Agriculture, Government of India, Madras-6, in the year 1966. Even
assuming the petitioner has not produced the community certificate in the year
1966 as per the condition in the appointment order, petitioner’s appointment
could have been cancelled then itself by the authority who appointed the
petitioner. Therefore the contention of the respondents that the petitioner
has not produced the community certificate before the appointing authority is
not justified. The said conclusion is arrived at by the second respondent
only on presumption.
16. For the reasons stated above, the impugned order dated
31.10.200 5 is set aside and the respondents are directed to treat the
petitioner as retired from service from 31.10.2005. All retirement benefits
payable to the petitioner shall be calculated and paid to him within a period
of eight weeks from the date of receipt of copy of this order.
The writ petition is ordered in the above terms. No costs. Connected
miscellaneous petitions are closed.
vr
To
1. The Zonal Manager (South),
Food Corporation of India,
Zonal Office,
No.3, Haddows Road, Chennai 6.
2. The Deputy General Manager (Personnel),
Food Corporation of India, Zonal Office,
No.3, Haddows Road, Chennai 6.