Allowed

The Reserve Bank of India, v. a.H.Thankappan

Kerala HC14 Nov 2019WA/1075/2019

Case brief

AI extract

What is this about?

The Court allowed appeals filed by the Reserve Bank of India against orders directing the payment of retirement benefits to an employee who fraudulently claimed Scheduled Caste status. Relying on the Supreme Court's decision in C&MD v. Bahira, the High Court held that invalidating a false caste claim renders the appointment void non est and mandates withdrawal of all benefits, including pension, i

What did the court decide?

Writ Appeals allowed; directions to disburse retirement benefits set aside; service not disturbed but benefits withdrawn; costs awarded.

The Reserve Bank of India, Vs a.H.Thankappan — Caste Atrocities | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941

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WA.No.1164 OF 2019

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AGAINST THE JUDGMENT IN WP(C).22501/2009(G) DATED 28.01.2019 OF HIGH COURT OF KERALA

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APPELLANT/ RESPONDENT NO.6:

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REGIONAL DIRECTOR, RESERVE BANK OF INDIA, BAKERY JUNCTION, THIRUVANANTHAPURAM 695 033.

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BY ADVS.

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SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI

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RESPONDENTS/ PETITIONERS 1 TO 3 & RESPONDENTS 1 TO 5:

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1 A.H.THANKAPPAN, T.C. 16/1715 (12), KUZHIVAYAL LANE, GOUREESAPATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004.

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2 DR. SANGEETHA, D/O. A.H. THANKAPPAN, ALAKAPURI, T.C. 16/1715 (12), KUZHIVAYAL LANE, GOUREESAPATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004.

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3 SARATH BABU, S/O. A.H. THANKAPPAN, ALAKAPURI, T.C. 16/1715 (12) KUZHIVAYAL LANE, GOUREESAPATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004.

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4 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM 695 001.

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5 DIRECTOR, SCHEDULED CASTE DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM 695 001.

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W.A.1164 of 2019 & 1075 of 2019

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6 CHAIRMAN, SCRUTINY COMMITTEE FOR VERIFICATION OF COMMUNITY CERTIFICATES, THIRUVANANTHAPURAM 695 001.

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7 TAHSILDAR, TALUK OFFICE, MUKUNDAPURAM, THRISSUR DISTRICT, PIN - 680 733.

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8 DIRECTOR, KIRTADS, DIRECTORATE OF KIRTADS, KOZHIKODE 673 017.

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R1-R2 BY ADV. SRI.A.X.VARGHESE (BY ORDER) R4-R8 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2019, ALONG WITH W.A.1075/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.1164 of 2019 &

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1075 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941

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WA.No.1075 OF 2019

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AGAINST THE JUDGMENT IN W.P(C) 18515/2011(L) DATED 28.01.2019 OF HIGH COURT OF KERALA.

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APPELLANTS/ RESPONDENT NOS.1 TO 4:

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1 THE RESERVE BANK OF INDIA, REPRESENTED BY GOVERNOR, RBI, CENTRAL OFFICE, CENTRAL OFFICE BUILDING, MUMBAI - 1.

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2 THE REGIONAL DIRECTOR, REGIONAL OFFICE, RESERVE BANK OF INDIA, THIRUVANANTHAPURAM - 695 033.

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3 THE CHIEF GENERAL MANAGER, RESERVE BANK OF INDIA, DEPARTMENT OF ADMINISTRATION AND PERSONAL MANAGEMENT, BAKERY JUNCTION, P.B.NO.6507, THIRUVANANTHAPURAM - 695 033.

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4 THE ASSISTANT GENERAL MANAGER, RESERVE BANK OF INDIA, DEPARTMENT OF ADMINISTRATION AND PERSONNEL MANAGEMENT, BAKERY JUNCTION, P.B.NO.6507, THIRUVANANTHAPURAM - 695 033.

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BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI.

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W.A.1164 of 2019 & 1075 of 2019

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RESPONDENT/ PETITIONER:

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A.H.THANKAPPAN, AGED 68 YEARS, S/O.HANUMAN, ALAKAPURI, T.C.16/1715, GRA 445, GOWREESAPATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004.

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BY ADV. SRI.A.X VARGHESE (B/O)

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2019, ALONG WITH W.A.1164/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.1164 of 2019 & 1075 of 2019

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" C.R”

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K.Vinod Chandran & V.G.Arun, JJ.

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----------------------------------W.A.Nos.1164 of 2019 & 1075 of 2019

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Dated this the 14^th day of November, 2019

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JUDGMENT

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K.Vinod Chandran,J:

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The controversy in the above appeals has its genesis in the dispute relating to the caste status of the 1^st respondent, whose children are the 2^nd and 3^rd respondents in W.A.No.1164 of 2019. The 3^rd respondent sadly, is no more and we desist from making any observations about him. The 1^st respondent, father, claimed that he belongs to the 'Boyan' community, which is included in the list of Scheduled Castes as item No.13 in the First Schedule of the Constitution. The 1^st respondent's caste status was noted in the school registers as 'Hindu Naickan', which belonged to Other Backward Communities [OBC]. It was at the time when the 1^st respondent was in college that he managed to change the caste status to Boyan, which had Scheduled Caste status. The change was asserted to be based on the order of the Tahsildar, who is asserted to have conducted an enquiry on orders issued by the Government.

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W.A.1164 of 2019 & 1075 of 2019

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2. The 2^nd respondent, who was the daughter, applied for admission to the MBBS course, again claiming such caste status, upon which the Controller of Entrance Examinations raised a doubt as to the Scheduled Caste status of the candidate. The matter was referred to Kerala Institute for Research, Training and Development Studies (KIRTADS); but, however, the 2^nd respondent was allowed to be admitted to the MBBS course on the said caste status on the strength of orders issued in an Original Petition filed before this Court. The 2^nd respondent has completed her education.

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3. The Scrutiny Committee completed the proceedings and by order dated 15.07.2009 found that the Scheduled Caste status claimed by the party respondents was without any basis. They were held to be belonging to the 'Odde Naickan' community, which is an OBC. Based on Exhibit P10 order issued by the Scrutiny Committee, the Government passed Exhibit P11 dated 31.07.2009 directing the Reserve Bank of India [RBI] to terminate the services of the 1^st respondent, who was working as a Manager with the RBI, the initial appointment in the RBI being on reservation. WP(C).No.22501 of 2009 was filed, in which there was an

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W.A.1164 of 2019 & 1075 of 2019

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interim order directing continuance of the 1^st respondent without any promotion. The 2^nd respondent was also allowed to continue. Second respondent has completed her studies and there is no question raised in this appeal on that aspect.

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4. The 1^st respondent challenged the order passed by the Scrutiny Committee in W.P.(C) No. 22501 Of 2009, continued in service and retired on superannuation on 30.06.2011. His retirement benefits were not paid and it was ordered that the retirement benefits would not be disbursed to him unless he produce specific orders from Court directing the RBI to release such benefits. The said order passed by the RBI was challenged in W.P(C) No.18515 of 2011.

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5. On consideration of both the writ petitions together, the learned Single Judge first considered the issue of caste status of the party respondents. On facts, it was found that when the 1^st respondent was admitted to school, his caste was entered as 'Hindu Naickan' in the admission register of the school. Throughout his school days he continued with the status of an OBC and only when he reached College, attempts were made to correct his caste

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W.A.1164 of 2019 & 1075 of 2019

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status to that of a Scheduled Caste. Though the specific contention of the 1^st respondent was that the Tahsildar had conducted an enquiry on orders issued by the Government, there was no such order produced. The proceedings of the enquiry said to have been conducted by the Tahsildar was also not produced. Even the caste certificate said to have been issued by the Tahsildar was not produced along with the writ petition, but later produced along with I.A.No.1031 of 2012, as Exhibit P12. Exhibit P12 did not have a date and the recitals showed that the 1^st respondent is a member of Boyan community in the list of Scheduled Castes and that the entry made as a member of the Naickan community in the SSLC book was a mistake. The certificate issued was disbelieved, according to us, rightly so. We fail to comprehend the certification; of the entry in the SSLC Book as incorrect, when obviously it is that reflected in the school records and would have been made by the parents or guardian of the 1^st respondent when he was first admitted to the School.

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6. While passing Exhibit P10 order, the report of

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the KIRTADS was also perused, which was based on an anthropological research conducted. The enquiry report

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W.A.1164 of 2019 & 1075 of 2019

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revealed that the claim of Scheduled Caste asserted by the party respondents was bogus. The Genealogical study conducted by the KIRTADS proved beyond doubt that the party respondents and their family, belonged to 'Odde Naickan' community. The father of the 1^st respondent was found to belong to that community and was engaged in earth work, i.e., digging of wells and tanks, as the members of the community were usually engaged in. The mother of the 1^st respondent also belonged to the same community and the 1^st respondent had five siblings, all of whom are shown to be belonging to the 'Naickan' community and also married into that community. The 1^st respondent's maternal grandparents also belonged to such community. The learned Single Judge, hence, concluded, on the basis of the above facts, that the claim asserted by the respondents 1 to 3, who were the petitioners in the writ petition, was clearly false and bogus. There is no appeal filed from the said findings and we need not go into that issue at all.

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7. We are in these appeals only concerned with the consequences of the finding that the 1^st respondent falsely claimed Scheduled Caste status and obtained benefits on that count. The question is as to whether the 1^st respondent

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W.A.1164 of 2019 & 1075 of 2019

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was entitled to the retirement benefits; the 2^nd respondent being saved by State of Maharashtra v . Milind [ (2001) 1 SCC 4 ], despite she being also dis-entitled from claiming Scheduled Caste status any further. The learned Single Judge relied on the decisions of this Court in Prakash v . State of Kerala [ 2002 (2) KLT 580 ] and Anila v . State of Kerala [ 2009 (4) KLT 112 ] to find that there is no proof of fraud employed by the 1^st respondent to obtain the status of a Scheduled Caste. It was also observed that the 1^st respondent having retired from service, there is no possibility of the post being now resumed to a candidate who actually belongs to the Scheduled Caste. It was found that the retirement benefits are liable to be disbursed to him.

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8. We have to immediately notice that the change effected at the time of college studies itself establishes the subterfuge and fraud employed in raising a false claim; when all the other relatives including his siblings continued as OBC. There can be no further proof obtained, required or necessary to establish that a fraud was perpetrated, at the hands of the 1^st respondent who managed to obtain a certificate of belonging to a Scheduled Caste

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W.A.1164 of 2019 & 1075 of 2019

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community, when all his family members continued as OBC. The appeal is filed by the employer - RBI – who has forfeited the entire retirement benefits due to the 1^st respondent. We have heard Smt.Sumathy Dandapani, learned Senior Counsel for the appellant-RBI and Sri.A.X.Varghese, learned Counsel appearing for the party respondents.

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9. The learned Senior Counsel would refer to Chairman and Managing Director, Food Corporation of India v . Jagdish Balaram Bahira [ (2017) 8 SCC 670 ] to contend that identical provisions of a statute in Maharashtra was considered therein. There is no requirement of an allegation or finding of fraud having been employed, since a false certificate obtained of a status of Scheduled Caste

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or Scheduled Tribe, by any person would entail the termination of all benefits obtained by him by virtue of such a false certificate. The statutes in Maharashtra and Kerala are referred specifically to point out in pari materia provisions. Even earlier directions issued by the Hon'ble Supreme Court under Article 142 of the Constitution was frowned upon by the three-Judge Bench, is the specific contention raised.

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W.A.1164 of 2019 & 1075 of 2019

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10. Learned Counsel Sri.A.X.Varghese relies on the decisions of the Hon'ble Supreme Court in R.Unnikrishnan v . V.K.Mahanudevan [ (2014) 4 SCC 434 ] and an unreported decision in Gajanan Marotrao Nimje & Ors . v . The Reserve Bank of India & Ors . [ Civil Appeal No.10396/2018 dated 10.10.2018]. The learned Counsel also takes us to paragraphs 71 to 73 of C&MD, FCI [ (2017) 8 SCC 670 ] to urge that similar reliefs can definitely be granted by this Court.

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11. C&MD, FCI considered the question as to whether the stratagem employed by a person, who does not belong to a class, tribe or caste, to pass off as its member and thus claim reservation, would constitute a fraud. It was found at the outset that when a person, who is dis-entitled to the benefit of a welfare measure, obtains such benefit, it deprives one who is genuinely entitled to receive it legally and that constitutes an egregious constitutional fraud and a fraud on the statute implementing the provisions of the Constitution as also one on State policy. The Hon'ble Supreme Court, examining the question in depth, held that by sheer lapse of time, those persons, who arrogated to themselves a benefit, not

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W.A.1164 of 2019 & 1075 of 2019

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actually and legally due to them, cannot claim equities, enabling protection of what was obtained by fraud; on giving up such benefits prospectively. The High Court under Article 226 and even the Hon'ble Supreme Court under Article 142 of the Constitution of India cannot protect such persons; was the categorical finding. The large body of precedents evolved were considered and an authoritative pronouncement made by the Hon'ble Supreme Court.

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12. Madhuri Patil v. Commissioner, Tribal

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Development [(1994) 6 SCC 241] was noticed to dwell upon the regulatory regime brought in by the various States, with enactments, in tune with the detailed guidelines formulated in the said judgment, for scrutinizing claims of candidates belonging to a Scheduled Caste or Tribe. The statute in point which was considered by the Hon'ble

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Supreme Court in C&MD, FCI was the Maharashtra Act No.23/2001, the provisions of which are in pari materia with the Kerala Act, 11/1996 [The Kerala (Scheduled Caste & Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996].

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13. The Hon'ble Supreme Court referred to the

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Constitution Bench decision in Milind (supra), the three

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W.A.1164 of 2019 & 1075 of 2019

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Judge Bench decisions in R.Viswanatha Pillai v. State of Kerala [(2004) 2 SCC 105] , Union of India v. Dattatray [(2008) 4 SCC 612], the two Bench decisions in Shalini Gajananrao Dalal v. New English High School Association [(2013) 16 SCC 526] , R. Unnikrishnan ( supra ) Kavita Solunke v. State of Maharashtra [(2012) 8 SCC 430] , B.H. Khawas v. Union of India [(2016) 8 SCC 715] and a host of others. We specifically refer to these cited decisions for reason of the emphasis laid in C&MD FCI , on the equity extended in some of these, which was found to be an exercise under Article 142 of the Constitution of India.

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14. R.Viswanatha Pillai was a case in which despite the finding of the appellant having obtained an appointment on a false claim of Scheduled Caste, the Central Administrative Tribunal found that he should not be terminated from service without following the procedure under Article 311 of the Constitution of India. The Hon'ble Supreme Court held so in paragraph 15:

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"15. ... The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its

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inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all".

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The Hon'ble Supreme Court thus upheld the termination made of the Officer, who had 27 years' service and refused even a modification of the order of dismissal to an order of compulsory retirement or removal, to protect his pensionary benefits. It was held “ We are of the view that equity of pension cannot be allowed to bent the arms of law in a case, where an individual acquired a status by practising fraud" (sic para 19).

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15. In Dattatray [supra], the High Court, though upheld the invalidation of the tribal claim and found the respondent not entitled to the benefits of the false claim

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W.A.1164 of 2019 & 1075 of 2019

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from then on, directed the services of the respondent to be not disturbed. Relying on Milind [supra], the three Judge Bench of the Hon'ble Supreme Court found that the High Court had misconstrued the decision of the Constitution Bench and held so:

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"5. ... When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation".

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16. The learned Judges in C&MD, FCI also looked at

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the various decisions, wherein protection from termination was granted under Article 142 of the Constitution of India. R.Unnikrishnan [supra] stood out insofar as there was no evidence of lack of bonafides, since the claim of the petitioners as belonging to 'Thandan Community', which was one of the Scheduled Castes notified, had been removed by the Constitution Scheduled Caste Order, 2007. The position was not clear till the Amendment Act of 2007, which made a clear distinction between Thandans as such and Ezhavas and

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Thiyyas known as Thandans, the latter of whom were only included under the Other Backward Communities [OBC]. This was a case in which prior to amendment even those who were not really belonging to the Scheduled Caste and who were not exposed to the disabilities and inequalities of a Sceduled Caste, applied under the category for reason only of the terminology employed with respect to them, being included in the list of Scheduled Castes. Pertinenltly in C&MD FCI , but for referring to this decision the declaration therein was not upset despite certain other decisions having been interfered with, hence we said it stands out in the plethora.

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17. Shalini Gajananrao Dalal [supra] was

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specifically referred to and overruled. It was found that Dattatray was the only three Bench decision, which held pre-eminence of the mandate for termination of a person, who obtained an appointment on the basis of a false claim of reservation. It was noticed that there were many two Judge Bench decisions, which extended protection under Article 142, which was not dealt with or overruled by Dattatray . It was held that despite the two Judge Bench decisions having been not noticed or overruled, the per

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incurium principle would not apply, because Dattatray was a larger bench decision of three Judges. However it was

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held that Dattatray having remained undisturbed, the exercise of jurisdiction under Article 142, in conflict with the statutory position, was not a correct interpretation of law.

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18. The learned Judges in C&MD, FCI found that Shalini imported a requirement of dishonest intent, before the withdrawal of benefits mandated by Section 10 of the Maharashtra Act. It was also indicated that right from the decision of a Bench of three Judges in R. Viswanatha Pillai the position of law was that where an appointment to a post or admission to an educational institution is made against a reserved vacancy, the invalidation of the claim of the candidate to reservation would result in the appointment or the admission being void and non est . This principle was followed by another decision of three Judges in Dattatray . Considering the provisions of the Maharashtra Act, it was held so:

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“52. ... If the provisions of Maharashtra Act 23 of 2001 were to be considered by the Bench of two Judges, it would be apparent that under the provisions of Section 7 of the Scrutiny Committee

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is empowered to verify a caste certificate whether issued before or after the commencement of the Act and if it comes to the conclusion that the caste certificate is false and is obtained fraudulently it is empowered to order its cancellation and confiscation. Section 10 provides for the withdrawal of benefits secured when a caste certificate is concerned for its falsity. Falsity is adjudicated upon when an order of cancellation is passed under Section 7. Once a caste certificate is cancelled by the Scrutiny Committee under Section 7, the individual affected by the order has a remedy to challenge its cancellation before the High Court under Article 226. If the challenge fails or if the challenge is given up, and the only relief sought is of the protection of service, or of the admission to the course, the grant of such protective relief simpliciter would be impermissible. The withdrawal of the benefit under Section 10 follows an order of cancellation under Section 7. Once the conditions for cancellation are fulfilled and an order of cancellation is passed under Section 7, withdrawal of all benefits which have accrued on the basis of the claim (which stands invalidated) cannot be opposed on a theory that there was an absence of dishonest intent”.

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[underlining by us for emphasis]

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19. The learned Judges disapproving Shalini held so in paragraph 56 and overruled the said judgment along with the decision in Kavita Solunke :

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"56. 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

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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 [ (2001) 1 SCC 4 ] spoke on 28-11-2000. The State law has been enforced from 18-10-2001. 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 [(2013) 16 SCC 526] noted the statute but misconstrued it".

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20. In conclusion, inter alia , C&MD, FCI affirmed the view in R.Viswanatha Pillai and Dattatray , holding that the invalidation of the claim for reservation would result in the appointment or admission obtained by virtue of reservation being rendered void and non est ; without there being any requirement for a fraudulent or false intent being proved. It was also held that the exception is only in those cases where the Hon'ble Supreme Court exercised its power under Article 142 of the Constitution to render complete justice.

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21. If we look at paragraph 73 in this context, it is evident that there the Hon'ble Supreme Court was exercising its jurisdiction under Article 142 of the Constitution, which power this Court lacks. It is also to be noticed that while the litigation was pending, Jagdish Balaram Bahira , in whose favour paragraph 73 was rendered, had retired from service and had also been paid his terminal benefits. It was hence, their Lordships refused to order any recovery from that person. In the present case, the applicant has not been paid the retirement benefits and the direction to disburse, has been challenged in appeals by the RBI.

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22. As contended by the learned Senior Counsel the Maharashtra Act XXIII of 2001 and the Kerala Act XI of 1996 have in pari materia provisions, respectively Section 10 and Section 16. Both of the enactments speak of debarring from the educational institution/cancelling the irregular admission in the educational institution or discharge/ removal from the employment/service forthwith, as also withdrawal of other benefits enjoyed by the person. Going by the three-Judge Bench decision of the Hon'ble Supreme Court, there is no requirement for a further proof that the appointment was obtained fraudulently and that there was a dishonest intention in obtaining a false certificate. The proof of the claim having been asserted on the basis or strength of a false certificate; thus dis-entitling a valid claimant, presupposes and makes explicit the fraudulent intent.

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23. We also notice Gajanan Marotrao Nimje [C.A.No.10396 of 2018], where a two-Judge Bench looked into

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the three-Judge Bench decision in C&MD, FCI , but allowed the claim of disbursal of retirement benefits in the case of appointments made to RBI itself. Therein, the learned Judges specifically noticed the Circular issued by

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the RBI based on the judgment of the High Court of Bombay in Writ Petition No.1512 of 2004 dated 01.11.2012 to extend such protection; despite the three-Judge Bench judgment, which again is a power exercised under Article 142 of the Constitution and a similar exercise by the High Court is well-nigh impossible.

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24. Considering the binding precedent in C&MD,

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FCI , we are unable to uphold the judgment of the learned Single Judge insofar as it grants protection to the 1^st respondent to the extent of permitting him to be disbursed with the entire retirement benefits. We, hence allow the Writ Appeals setting aside the directions issued to disburse the retirement benefits but not the findings rejecting the claim of belonging to a scheduled caste as false; against which there is also no appeal filed. The parties are directed to suffer their respective costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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[ true copy ]

The Reserve Bank of India, v. a.H.Thankappan

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