HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION S No 12 of 2010
Vishnu Prasad Dhakate
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents! Shri Manoj Paranjape Advocate for the petitioner
^ Shri Praveen Das Deputy Government Advocate for the State
CORAM: Honble Shri Satish K Agnihotri J
Dated; 30/11/2010
: Judgement
ORDER ORAL
Passed on 30th day of November 2010
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. By this petition, the petitioner seeks quashing of
the order dated 29-12-2009 (Annexure
P/1) passed by the Secretary, Department of Rural
Industries, by which the petitioner has been terminated
from the service.
2. The indisputable facts, in nutshell, as projected by
the petitioner for adjudication of the case, are that
initially the petitioner was appointed on the post of
Inspector, Handloom against the general category on
22-02-1983 (Annexure P/2). In the year 1981-82, the
competent authority issued the caste certificate in favour
of the petitioner treating the petitioner member of Halba
community i.e. Scheduled Tribe category. Cast certificate
is Annexure P/5. For the first time after the appointment
on 26-09-1986 (Annexure P/6) the petitioner requested the
Director, Handlooms, to enter the caste certificate in his
service record. Thereafter, in the year 1990 and 1997,
the petitioner was promoted to the posts of Senior
Inspector, Handlooms and Assistant Director, Handlooms,
respectively on the basis of his caste certificate.
3. According to the petitioner, after formation of the
new State of Chhattisgarh, on the basis of option
submitted by the petitioner, his services were allocated
to the State of Chhattisgarh. The caste certificate of
the petitioner was referred to the High Power Caste
Scrutiny Committee (for short “the Committee”) for
verification. The Committee by its order dated 16-03-2007
(Annexure P/11), observed that the petitioner belongs to
Kosti community and the same does not comes within the
purview of Scheduled Tribe. Thus, the caste certificate
submitted by the petitioner was not found genuine.
4. Being aggrieved by the said order, the petitioner
preferred a writ petition before the High Court of Madhya
Pradesh at Jabalpur being W.P.No.14285/2007 (Vishnu Prasad
Dhakate, S/o Shri Sunder Lal Dhakate v. State of M.P. &
Others). The said writ petition was dismissed by order
dated 29-04-2008 (Annexure P/12). Thereagainst, the
petitioner preferred a writ appeal before the High Court
of Madhya Pradesh at Jabalpur being W.A.No. 643/2008
(Vishnu Prasad Dhakate v. State of Madhya Pradesh &
Others). The said appeal was also dismissed by order
dated 23-07-2008 (Annexure P/13).
5. The respondent authorities issued the show cause
notice to the petitioner on 16-06-2008 (Annexure P/16)
calling upon the petitioner to offer his explanation
within a period of 15 days. Thereafter, on
03-12-2007 (Annexure P/17) again issued the show cause
notice to the petitioner. On 16-06-2008, the petitioner
submitted his reply and stated that he had not secured the
appointment against the reserved category of Scheduled
Tribe on the basis of a caste certificate. On receipt of
reply, it appears that the petitioner was removed from the
service vide order dated 29-12-2009 (Annexure – P/1).
Thus, this petition.
6. Shri Paranjape, learned counsel appearing for the
petitioner, submits that the impugned order is illegal,
arbitrary and against the principles of natural justice,
as before passing the impugned order, the opportunity of
hearing was not afforded to the petitioner. In fact, the
petitioner has not obtained the service against the
reserved category i.e. Scheduled Tribe. Even by letter
dated 28-02-2009 (Annexure P/23), the Joint Director,
Handlooms, Madhya Pradesh, Bhopal, intimated the Director,
Handlooms, Chhattisgarh, Raipur, that at the time of
filling the application form for appointment, the
petitioner has not mentioned his caste and the petitioner
has not attached any caste certificate along with the said
application form. Thus, the impugned order is illegal and
not at all sustainable in the eye of law and the same may
be quashed.
7. On the other hand, Shri Das, learned Deputy
Government Advocate appearing for the State, submits that
after following the due process of law and after affording
proper opportunity of hearing to the petitioner, the
impugned order was passed. Thus, the petitioner is not
entitled to any relief and the petition may be dismissed.
8. Shri Paranjape, learned counsel appearing for the
petitioner, in rejoinder, submits that the respondent
State itself in para 11 of the return has admitted that
the petitioner has not secured the appointment against the
reserved category i.e. Scheduled Tribe community. In para
22 of the return also the State admitted the fact that the
petitioner was appointed in open category. The
respondents failed to appreciate the law laid down by the
Supreme Court as well as this Court in catena of
decisions.
9. I have heard learned counsel appearing for the
parties, perused the pleadings and the documents appended
thereto.
10. It is indisputable that the petitioner was appointed
on the post of Inspector, Handloom, against the general
category, not against the reserved Scheduled Tribe
category. The promotion, thereafter, to the higher posts,
was granted on the basis of Scheduled Tribe social status
certificate granted to the petitioner, later on. The said
certificate was rejected by the Committee. Thereagainst
the writ petition filed in the High Court of Madhya
Pradesh was rejected on 29-4-2008 and further writ appeal
was also dismissed on 23-7-2008.
11. As a sequel, it appears that the promotion to the
higher posts was granted on the basis of Scheduled Tribe
social status certificate, which was cancelled
subsequently. The petitioner is not entitled to hold the
promoted post against the reserved Scheduled Tribe
category on the ground that he was promoted against the
reserved Scheduled Tribe category. Thus, termination of
his initial appointment against the general category is
illegal. Since the petitioner was selected and appointed
in open category and he has also not represented to the
authorities that he belongs to Scheduled Tribe community
at the time of initial appointment, the initial
appointment cannot be cancelled on any account. Thus, the
order dated 29-12-2009 (Annexure – P/1) terminating the
services of the petitioner is quashed.
12. So far as promotion to the higher posts is concerned,
the petitioner is not entitled to continue on the
promotional posts, as the same was granted against the
reserved ST category. The authorities are at liberty to
take appropriate steps for cancellation of promotion of
the petitioner after affording proper opportunity of
hearing to the petitioner, if so advised.
13. In State of Maharashtra v. Milind and Others1, Milind
joined the medical course against the reserved category,
which was later on found false. The Supreme Court held
that Milind cannot take advantage of the Scheduled Tribes
Order any further or for any other constitutional purpose.
In view of the fact that he had obtained medical education
and huge amount was spent on completion of medical course,
he was permitted to continue and the degree obtained by
Milind on submission of wrong certificate was not quashed.
14. In R.Vishwanatha Pillai v. State of Kerala and
Others2, in an identical case, where the appointment was obtained
on the basis that the petitioner belongs to Scheduled
Tribe community was held as void from its inception.
15. In the case on hand, the initial appointment was not
obtained on misrepresenting or on the basis that he
claimed to be Scheduled Tribe candidate. Thus, the
initial appointment of the petitioner cannot be
terminated. However, the subsequent promotions on the
post of wrong certificate may be quashed, as aforestated.
16. In the result, the writ petition is allowed to the
above extent. No order asto costs.
J u d g e