Smt.shanti Bais Vs State Of Chhattisgarh And Ors.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 817 of 2013

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Smt. Shanti Bais(Before Marriage Pradhan), W/o Pradeep Bais Aged About 53 Years Terminated Head Master, R/o Virandavan Colony, Post And Thana and Tahsil-Jagdalpur, Distt-Bastar At Jagdalpur, Chhattisgarh.

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---- Petitioner

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Versus

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1. State of Chhattisgarh Through Secretary, Scheduled Tribes And Scheduled Cast Development Department, Mahanadi Bhawan, New Raipur, Chhattisgarh.

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2. High Level Caste Scrutiny Committee, Pt. Dindayal Upadhyay Nagar, Raipur, Distt Raipur, Chhattisgarh.

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3. The District Collector South Baster, Dantewada, District- South Baster, Dantewada, Chhattisgarh.

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4. The Commissioner, Scheduled Tribes And Scheduled Cast Development Department, Pt. Ravi Shanker University Premises, Raipur, Chhattisgarh.

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5. The Assistant Commissioner Tribal Welfare Department, South Bastar, Dantewada, Distt-South Bastar, Dantewada, Chhattisgarh.

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---- Respondents

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CAUSE TITLE TAKEN FROM CIS PERIPHERY

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----------------------------------------------------------------------------------------------For Petitioner : Mr. Rajat Agrawal, Advocate. For State/Respondent : Mr. Amandeep Singh, Panel Lawyer.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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20/03/2024

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1. This Petition has been filed challenging the Termination Order dated 25.02.2013 passed by the Collector, District-

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South Baster, Dantewada(Annexure P/1) whereby on the basis of enquiry conducted by Sub-Divisional Officer(Revenue), Dantewada, the caste-certificate submitted by the petitioner was found to be forged and the petitioner was found ineligible for the post. Through this petition, it is also prayed that petitioner be reinstated with full back wages.

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2. Brief facts of the case are that petitioner was appointed as Upper Division Teacher vide order dated 08.02.1990 (Annexure P/2) and she was promoted to the post of Head Master of Govt. Middle School on 14.12.05(Annexure P/3).

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Petitioner belongs to 'भतरा�' caste which falls under Schedule Tribes category. She obtained the entire education in the Chhattisgarh State and to demonstrate the same, the petitioner has filed mark-sheet, domicile and her castecertificate collectively as Annexure-P/4. Thereafter, one Budh Ram Sodhi moved a complaint before the Commissioner, Baster Division regarding caste of the petitioner, pursuant to which, Sub-Divisional Officer(Revenue), Dantewada was appointed as an Enquiry Officer. The Enquiry officer found that the petitioner belongs to aboriginal tribe of Orrisa State. On 27.02.1986, District Organizer, Tribal Welfare Department, Dantewada District Bastar issued caste-certificate in favour of the

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petitioner but the petitioner fraudulently obtained employment on the basis of that caste certificate which was issued to her. Further the Enquiry officer recommended to terminate the services of the petitioner and also to lodge F.I.R. under Section 420 of I.P.C. Even when the petitioner was granted promotion by Assistant Commissioner, DistrictSouth Bastar, Dantewada, the petitioner got the benefit of reservation. The Collector has further observed in its order dated 22.08.2012(Annexure P/5) that the brother of petitioner namely Mr. Sano Pradhan, S/o late Narsingh Pradhan is an employee of N.M.D.C. Limited, Kirandul and as per the office records of N.M.D.C Limited, Mr. Sano belongs to General category and has not availed the benefit of reservation in the said organisation.

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3. Deputy Superintendent of Police, Vigilance Cell, High Level Caste Certificate Scrutiny Committee, Raipur had also issued notice bearing No.3385 dated 14.09.2011 to the petitioner for producing relevant documents(Annexure P/9). As per the office of Collector, status of the said case pending before the High Level Caste Scrutiny Committee is not updated in the said office. The Collector afforded opportunity to the petitioner for producing the photocopies of the relevant documents which the petitioner failed to file within the stipulated time, thereafter by the impugned order,

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the petitioner was terminated from her services.

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4. Learned counsel for the petitioner submits that petitioner was granted promotion and was posted as a Head Master in the Govt. Middle School. The post of Head Master has been characterized as Gazetted Officer Class-2 (Annexure P/11) vide order dated 11.08.2008 issued by the State Government, and further new rules namely NRrhlx<+ tutkfr ,oa vuqlwfpr tkfr fodkl foHkkx 'kS{kf.kd laoxZ ¼jktif=r½ lsok HkrhZ fu;e] 2011(for short ‘the Rules, 2011’) has been enacted by the State Government and the same was published on 20.12.2011(Annexure D/2) and rule 23 of the said rules says that the corresponding rules which were in force prior to the commencement of the present Rules shall be repealed and in Schedule 1 at serial No.7 appended with the said rules, the post of Head Master, Middle School is mentioned as Gazetted Second Class and the appointing authority for the said post has been described as Commissioner/Director as the powers have been delegated by the Scheduled Castes and Scheduled Tribes Welfare Department of the Chhattisgarh State and therefore the Collector was not competent authority to terminate the services of the petitioner. Learned counsel would further submit that law relating to scrutiny of caste-certificate and verification of tribal status is well settled in the matter of Kumari Madhuri Patil And

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Another vs. Addl. Commissioner, Tribal Development And Others [ (1994) 6 SCC 241]. He draws attention of this Court towards para 13 of the said judgment, whereby the procedure and direction has been issued to determine the social status claim and verification of caste-certificates. The said para is reproduced hereunder for ready reference:-

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" 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. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

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The application for grant of social status certificate shall be made to the Revenue SubDivisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

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The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or nongazetted officer with particulars of castes and subcastes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

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Application for verification of the caste certificate by the Scrutiny Committee shall be filed

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at least six months in advance before seeking admission into educational institution or an appointment to a post.

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All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

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Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

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The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the

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date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

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In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

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Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

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The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant."

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In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before

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the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

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The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

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No suit or other proceedings before any other authority should lie.

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The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.

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In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

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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 registered post with acknowledgement 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.

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5. Learned counsel for the petitioner would further submit that

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State of Chhattisgarh has enacted the Act namely Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Act, 2013 (Act No. 13 of 2013)(for short 'the Act of 2013') to protect the interest of persons belonging to the Scheduled Castes, the Scheduled Tribes and the Other Socially and Educationally Backward Classes in the State, Section 4 of the said Act deals with 'Procedure for Issuance of Social States Certificate' and Section 6 of the said Act deals with 'District Level Certificates verification Committee and its powers', Clause (2) of Section 6 provides that 'A district Level Certificates Verification Committee shall on its own motion or on receipt of any information or reference made to it, in regard to Social Status Certificate(s) issued by the competent Authority, verify such Certificate(s) in the manner as may be prescribed.

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6. Learned counsel for the petitioner would further submit that if the District Level Certificates Verification Committee finds prima facie reasons to believe that certificate is wrongly or fraudulently obtained, they may refer the matter for further determination before the High Power Certification Scrutiny Committee as prescribed under Section 7 of the Act of 2013. The aforesaid Act also states that when the District Level Certificates Verification

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Committee does not find prima facie evidence, then it shall not refer the case to the High Power Certification Scrutiny Committee.

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7. Learned counsel for the petitioner would further submit that after completion of Enquiry, said committee has only power to cancel and confiscate the said certificate and the order passed by the High Power Certification Scrutiny Committee shall be final and conclusive subject to the proceedings under Article 226 of the Constitution of India only. He would further submit that Sub-Divisonal Officer(Revenue) has no authority to enquire and cancel or to recommend the appointing authority for termination of the petitioner on the basis of the caste-certificate. He would further submit that the petitioner has completed more than twenty two years of service and without any enquiry the petitioner was terminated from her services. Therefore, considering all these aspects, the impugned order be set-aside and the petitioner be reinstated in services.

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8. In the return filed by the State, it has been stated that the petitioner has obtained appointment by submitting a castecertificate issued by the District Organizer, Tribal Welfare Department, Dantewada District-Bastar which was issued for specific purpose namely Scholar-ship/stipend only. After receiving the complaint, an enquiry was conducted and the

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report thereof was placed before the Divisional Commissioner, Bastar Division. Thereafter the Commissioner directed disciplinary action against the petitioner and in turn the Collector, District South Bastar Dantewada issued a show-cause notice dated 11.10.2012(Annexure P/10) whereby the petitioner was directed to submit the Caste Certificate duly verified from the competent authority within 3 days, failing which, appropriate action of her removal from services would be taken. A final reminder letter was also issued to the petitioner, prior to it, notices were issued to her thrice on 04.06.2012, 22.08.2012 and 04.09.2012. However, the petitioner has failed to submit the requisite Caste Certificate duly verified from the Caste Scrutiny Committee. The petitioner has also failed to submit necessary documents to show that in her favour valid caste-certificate has been issued. As a result, on the basis of enquiry report, the petitioner was terminated from services vide order dated 25.02.2013(Annexure P/1). Therefore, this Petition is without any merit and is liable to be dismissed.

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9. Learned State counsel would submit that the petitioner secured appointment on the basis of fraudulent castecertificate issued by the District Organizer, Tribal Welfare department, Dantewada District-Bastar which was issued to

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her for scholarship and stipend only. Since the petitioner was appointed on the post of Upper Division Teacher by the Collector, the Collector is the competent authority to terminate the services of the petitioner. He would further submit that the petitioner has secured appointment on the basis of certificate which was not issued for the purpose of appointment. As the petitioner belongs to the Orissa State, therefore, she cannot avail the benefit of reservation in the State of Chhattisgarh and as such, the appointment of the petitioner is void ab initio. He also placed reliance in the matter of Chairman And Managing Director, Food Corporation of India And Others vs. Jagdish Balaram Bahira And Others [(2017) 8 SCC 670).

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10. Upon being asked, learned State counsel fairly submitted that as per memo communicated by the Collector, DistrictSouth Bastar, Dantewada on 22.08.2012 to the Commisioner, Division Baster, Jagdalpur(Annexure P/5) the matter has been seized by the High Level Caste Scrutiny Committee for verification of the caste and at the time of passing of the impugned order, status of the said case was not updated in the Office of the Collector and at present, he is also not aware about the status of the case which is pending before the High Level Caste Scrutiny Committee.

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11. I have heard submissions of learned counsel for the parties

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and perused the material available on record with utmost circumspection.

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12. It is indisputable that in the enquiry conducted by SubDivisional Officer(Revenue), Dantewada vide its report dated 23.08.2012, in pursuance of the complaint, it was found that the petitioner has obtained appointment by submitting forged certificate, whereas, she belonged to the Orissa State. It is well settled that the social status certification is determined as per the procedure established under the law and prior to the enactment by the State in this regard. The procedure has been prescribed as per the guidelines issued in the matter of Kumari Madhuri Patil And Another (supra) relating to scrutiny of caste certificate and verification of tribal status.

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13. In the present case, the respondent authorities without obtaining the decision of the committee terminated the services of the petitioner on the ground that she is not entitled for the post on the basis of certificate produced by her, though she belongs to 'भतरा�' caste, as she claims. SubDivisional Officer(Revenue) is not the competent authority to determine the validity of the certificate for reservation in the State of Chhattisgarh and the High Level Caste Scrutiny Committee only is having power to determine such issue, and the decision of the said committee shall be final and

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conclusive. Moreover, the Collector has terminated the petitioner and a new rule has been framed by the State, vide Rules 2011, wherein the appointing authority of the petitioner has been prescribed, as per schedule 1 of the Rule 5 of the said rules, as the Commissioner/Director after the delegation of powers by the Tribal and Scheduled Caste Welfare Department of the State of Chhattisgarh. So the Collector is not the appointing authority.

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14. Learned State counsel has also failed to demonstrate that the Collector is superior to the office of the Commissioner/Director to terminate the services of the petitioner. This Petition has been filed in the year 2013 and at the time of filing of the petition, petitioner had already completed the age of about 53 years and her caste-certificate is also pending before the High Level Caste Scrutiny Committee. When the said committee finds that the petitioner is not entitled for the said appointment on the basis of the reservation policy of the State, would as a necessary consequence, involve the invalidation of the appointment of the petitioner, and if the said committee decides otherwise, in such circumstances only, this Court observes in the fact and circumstances of the case, the impugned order shall be treated as a non est in the eye of law. Considering the claim of her backwages, as the law

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relating to backwages is well settled, backwages shall not be claimed only on the ground of the reinstatement in service. It all depends on the facts and circumstances of each case.

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15. On the basis of no work no pay, this Court only observes that if the finding of the said committee goes in the favour of the petitioner, she shall be entitled for back wages to the tune of 50% from the date of her termination i.e. 25.02.2013 till her date of superannuation. The petitioner would also be entitled for all other consequential benefits i.e. pensionary benefits and the said period shall be counted for the said purpose

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16. For the foregoing, this Court further observes that the petitioner may approach to the High Level Caste Scrutiny Committee to decide the said case, if not yet decided at the earliest.

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17. This Court further observes that the said committee shall make an endeavour to complete the said inquiry and pass a speaking order within an outer limit of eight months and the petitioner shall cooperate with the committee and furnish all the requisite documents before it in a prompt manner. The respondent employer shall also supply the requisite documents to the committee by deputing a responsible officer and also appoint a Nodal Officer to assist the High Level Caste Scrutiny Committee.

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18. It is further observed that after the decision of the committee, if the same is in favour of the petitioner after passing of the order by the said committee, the respondent authority shall settle all the claims within a further period of three months.

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19. With the aforesaid observations, this Petition is disposed of.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Avinash

Smt.shanti Bais v. State Of Chhattisgarh And Ors.

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Smt.shanti Bais v. State Of Chhattisgarh And Ors.

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