A.K. Bhardwaj, J.
The applicant was appointed in New Delhi Municipal Council (NDMC) as Junior Stenographer in the year 1994 against a vacancy reserved for scheduled tribe. On 9th January 2014, the Chairman, NDMC (disciplinary authority) issued a notice for his removal from service, thus he filed the present Original Application praying therein:
(A).Quash / Set aside the Notice bearing No.88/ Vig./Imp./ IOV-II (M)/13 dated 09.01.2004 issued by the Chairman/ Disciplinary Authority, NDMC;
(B).Pass such other order/orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. Mr. Mohit Kumar Shah, learned counsel for applicant contended:
i). the impugned show cause notice is violative of principles of natural justice and suffers from the vice of procedural defects/unfairness,
ii). the action of respondent No.2, i.e., Chairman, NDMC is within the teeth of the judgment of Honble Supreme Court in Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, (1994) 6 SCC 241 wherein it has been held that in the event of there being any dispute regarding the genuineness of the caste certificate of an employee, the matter should be referred to the Caste Scrutiny Committee, which is the only competent authority to inquire into the genuineness of the same,
iii). respondent No.2 has no authority to declare the caste certificate of the applicant herein to be fake,
iv).the notice of removal is without jurisdiction and authority,
v). the steps taken by the respondents to bring an end to the service of the applicant on the allegation of producing forged caste certificate without following the laid down procedure, i.e., the regular departmental inquiry, would be contrary to the view taken by the Honble Supreme Court in Punjab State Electricity Board and others v. Leela Singh, (2007) 12 SCC 146.
vi).the respondents had earlier verified the correctness of the caste certificate of the applicant from Zila Dandaadhikari, Chhapra, Saran, Bihar and the certificate was found genuine,
vii).the applicant is in service for almost 20 years and was appointed after due verification of the original caste certificate and at this belated stage, the correctness of the caste certificate cannot be questioned,
viii). the opinion of the learned senior counsel for respondents, referred to in the show cause notice, is not correct,
ix).the judgments referred to in the show cause notice are misinterpreted, as the view taken by the Honble Supreme Court in said judgments would support the stand taken by the applicant in the Original Application.
3. Albeit on 16th January 2014, learned senior counsel for respondents sought an opportunity to file counter reply, on 5th February 2014 she submitted that since the facts are not in dispute and only legal propositions are required to be determined in the matter, there was no need for filing the reply, thus the Original Application was heard on 19th February 2014. Nevertheless, since learned senior counsel for respondents could produce the letter dated 20th January 2014 written by the General Secretary, NDMC and Karamchari Bachao Morcha (Regd.), New Delhi (applicant herein) to the Chairperson, NDMC, Palika Kendra, New Delhi wherein derogatory allegations were made against her, learned counsel for applicant fairly stated that a proper affidavit withdrawing the allegations made against learned senior counsel would be filed. In view of the statement made by learned counsel for applicant, hearing was deferred to 22nd February 2014. As per the stand taken by learned counsel for applicant, an affidavit was filed. Paragraphs 3, 4 and 5 of the affidavit filed by the applicant on 20th February 2014 read as under:-
3. That during the course of hearing before this Honble Tribunal, held on 19.02.2014, a letter dated 20.01.2014 written by the applicant herein to the Chairperson, NDMC, in the capacity of General Secretary, NDMC Avam Karamchari Bachao Morcha was produced by the learned Senior Counsel for the respondents wherein certain remarks had been made against the said learned Senior Counsel which were not in good taste.
4. That it is humbly submitted that the intention of the applicant herein was neither to hurt the sentiments of the learned Senior Counsel or this Honble Tribunal or offend the learned Senior Counsel. In such view of the matter the applicant herein tenders unqualified apology for the same and undertakes not to make any remarks against the said learned Senior Counsel in future. It is submitted that the applicant herein is under a huge mental stress on account of the impugned notice dated 09.01.2014 which has threatened his livelihood and the future of his 3 young children, hence, any inadvertence on the part of the applicant be excused.
5. That the facts stated in the above affidavit are true to my knowledge and belief. No part of the same is false and nothing material has been concealed therefrom.
4. The applicant also filed supplementary affidavit dated 12th March 2014 withdrawing the contents of the letter dated 20th January 2014. After filing of the aforementioned affidavits, the arguments were finally concluded on 17th March 2014. While concluding the submissions, learned counsel for applicant relied upon the judgment of the Honble Supreme Court in Dattu s/o Namdev Thakur v. State of Maharashtra and others, (2012) 1 SCC 549.
5. During the course of arguments advanced on 19th February 2014, learned senior counsel for respondents had submitted:
i). the show cause notice dated 9th January 2014 has not given rise to any cause of action for filing the present Original Application,
ii). as has been viewed by the Honble High Court of Delhi in Kendriya Vidyalaya Sangathan v. Shanti Acharya Sisingi, 176 (2011) DLT 341 (DB), the guidelines issued by Honble Supreme Court in Kumari Madhuri Patils case (supra) lay down the procedure to be followed for issuance of fresh caste certificates or verification of caste certificates already issued by the authorities and by no stretch of imagination in the said case the Apex Court ruled that wherever the issue of correctness of a caste certificate comes up in question, no authority other than Caste Scrutiny Committee can inquire into the matter.
iii). in view of the law laid declared by the Honble Supreme Court in R. Vishwanatha Pillai v. State of Kerala and others, (2004) 2 SCC 105, the appointment obtained on the basis of a false caste certificate is void from its inception and it cannot be said that the said void appointment would enable the employee 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 practicing fraud or deceit, such an appointment is no appointment in service in the eyes of law and in such a situation Article 311 of the Constitution is not attracted at all.
6. We heard the learned counsels for the parties and perused the records.
7. As has been mentioned in the impugned show cause notice dated 9.1.2014, at the time of his appointment, the applicant submitted scheduled tribe certificate issued by Saran, Samaharanalya Welfare Branch, Chapra, Bihar (bearing No.136 dated 12th July 1985). According to the said certificate, he belongs to khariya caste, which exists in the modified scheduled list of scheduled caste and scheduled tribe vide order of 1956, Government of India. The complaint dated 27th February 2013 was received in the Vigilance Department of NDMC wherein it was alleged that the caste certificate produced by the applicant was fake. Similar complaints were received from various other sources also. NDMC sent a letter to District Welfare Officer, Saran, Chapra, Bihar for verification of the certificate. The Establishment Branch of NDMC received a response from Zila Dandaadhikari Chapra, Saran, Bihar vide letter No.C-864/13 dated 19th June 2013 that the scheduled tribe certificate was issued by the Department. The certificate was also certified by them to be in order. Nevertheless, the reply was not considered by the Council as reliable and yet another letter was sent to the District Welfare Officer, Saran, Chapra, Bihar to provide certified copies of all related records but no reply was received thereto. Thus to ascertain the authenticity of the certificate, the Council deputed Mr. Kumar Hrishikesh, the then Director (Tax), NDMC to Saran, Chapra, Bihar for verification of the records as well as for ascertaining authenticity of the scheduled tribe certificate (ibid). Mr. Kumar Hrishikesh visited the office of Zila Kalyan Padaadhikari Saran, Chapra, Bihar and obtained a report from the concerned office issued vide letter No.907 dated 16th September 2013. The English version of the report, as reproduced in the show cause notice, is extracted hereinbelow:-
In connection with verification of Caste Certificate:
With reference to the above cited subject regarding Caste Certificate it is to state that the concerned Scheduled Caste Certificate register was searched out pertaining to Khariya caste and no such register is maintained / available in this office. The caste certificate No.136 dated 12.07.1985 of Shri Mahatma Mehto S/o Shri Perdeshi Mehto R/o Village Pandeypur, Police office and letter No.C/864/13 dated 19.06.2013 which was shown to be issued from Saran Samaharta (Kalyan Sakha) Chhapra and which bears the signatures of District Samaharta, Saran, is also wrong.
8. Having received the said letter, the NDMC sought opinion of learned Senior Advocate regarding further course of action in the matter and in view of the judgments of the Honble Supreme Court in R. Vishwanatha Pillais case (supra) and Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690, Additional General Manager Human Resources, BHEL v. Suresh Ram Kirshna Burde, (2007) 5 SCC 336 and Union of India v. Dattartray, (2008) 4 SCC 612 as also the opinion of the learned Senior Advocate, the respondents issued the impugned show cause notice to the respondents.
9. In view of the rival contentions put forth by the learned counsels for the parties, following questions arise to be determined by us:
Whether it is only the Caste Scrutiny Committee, which can go into the correctness of the caste certificate Whether in the wake of the allegations of producing false caste certificate the disciplinary authority could remove the applicant from service on the basis of the report received by it from Zila Kalyan Padaadhikari Saran, Chapra, Bihar or before doing so, it need to conduct a regular inquiry, as prescribed under CCS (CCA) Rules, 1965 read with the provisions of NDMC Act, 1994. Whether the applicant could have approached the Tribunal against a notice to show cause.
10. As far as the first question is concerned, we need to refer to the judgment of the Apex Court in Kumari Madhuri Patils case (supra) and the facts thereon. In the said case, applicant No.2, Suchita had applied through her father Laxman Patil to Tehsildar, Andheri on 30th November 1989 for issuance of caste certificate as Mahadeo Koli a scheduled tribe. The Sub-Divisional Officer, Bombay Suburban District by his proceeding dated 22nd June 1989 refused to issue caste certificate sought for by Ms. Suchita and informed her that she was not a scheduled tribe - Mahadeo Koli. She filed an appeal before the Additional Commissioner, Konkan Division, Bombay. As she had applied for admission into the MBBS course and the time for her admission was running out, she filed Writ Petition No.3516/1990 in the High Court and quested for direction to the Additional Commissioner to dispose of her appeal and further direction to the Dean of D.Y.C. Naik Medical College to permit her to appear for interview and admit her in the college if she was found fit. In view of the directions issued by the High Court, she was admitted in the MBBS course and the Additional Commissioner directed the Tehsildar to issue the certificate. She applied to the Verification Committee for confirmation of her status as scheduled tribe. The first appellant, Ms. Madhuri applied for the scheduled tribe certificate before the Divisional Executive Magistrate, Greater Bombay, enclosing the order passed by the High Court in Writ Petition No.3516/1990 dated 4th December 1990 passed in favour of her sister, which was issued on 23rd August 1990 certifying her status to be Mahadeo Koli. She got admission to BDS in the year 1992. Thereafter she applied to the Verification Committee for confirmation. The Verification Committee conducted common proceedings into the claims of appellants. The father of the appellants was called upon to furnish, in the prescribed form, the detailed information regarding his family background, ancestry and anthropology of Mahadeo Koli, scheduled tribe, to verify the veracity of his claim of status as scheduled tribe. Mahadeo Koli was declared to be a scheduled tribe by Bombay Province as early as 1933 and the President of India declared in 1950 under Article 342, in consultation with the Government of Bombay (Maharashtra) and as amended from time to time. Laxman submitted the particulars along with his school and college certificates, junior college certificate and school certificates of the appellants, the certificates of his sister and appellants maternal aunt, Jyotsana Pandurang Patil dated 3rd March 1978 and maternal uncle, Balakrishna Pandurang Naik dated 22nd October 1954 and a statement by the Caste Association. The Committee in their order dated 26th June 1992 considered the entire evidence placed before them and viewed that the appellants were Koli, i.e., OBC and not Mahadeo Koli, and their claim for that social status was rejected. The certificates issued by the respective Executive Magistrates were cancelled and confiscated, thus, in the said case, the issue for consideration before the Apex Court was whether the caste to which the appellants belong was scheduled tribe or not In this backdrop their Lordships viewed that each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police as over-all in charge and such number of Police Inspectors to investigate into the social status claims. For easy reference, paragraphs 5 to 15 of the said judgment are reproduced hereinbelow:-
5. The Committee as well as the Additional Commissioner relied upon a report of expert committee which had gone into the sociology, anthropology and ethnology of the Scheduled Tribes including 'Mahadeo Koli' which formed the basis for the pro forma questionnaire prepared by the Government and as given to and answered by the father of the appellants. On the basis of the information furnished by the father of the appellants and the anthropological and ethnological findings in that behalf, the Additional Commissioner, in our view rightly, held that an argument of social mobility and modernisation often alluringly put forth to obviate the need to pass the affinity test is only a convenient plea to get over the crux of the question. Despite the cultural advancement, the genetic traits pass on from generation to generation and no one could escape or forget or get them over. The tribal customs are peculiar to each tribe or tribal communities and are still being maintained and preserved. Their cultural advancement to some extent may have modernised and progressed but they would not be oblivious to or ignorant of their customary and cultural past to establish their affinity to the membership of a particular tribe. The Mahadeo Koli, a Scheduled Tribe declared in the Presidential Notification, 1950, itself is a tribe and is not a sub-caste. It is a hill tribe, may be like 'Koya' in Andhra Pradesh. Kolis, a backward class, are fishermen by caste and profession and reside mostly in Maharashtra coastal area. Kolis have different sub-castes. Mahadeo Kolis reside in hill regions, agriculture, agricultural labour and gathering of minor forest produce and sale thereof is their avocation. Therefore, the cancellation of the social certificate issued by the Executive Magistrates concerned by the Scrutiny Committee was legal.
6. The appellants' Writ Petition No. 1849 of 1993 was dismissed by the Division Bench by its order dated 17-8-1993 with brief reasons. Shri Ganesh, the learned counsel for the appellants contended that in the affidavit filed by the appellant's father before the Verification Committee he has explained the circumstances in which he came to be described as Hindu Koli. Prior to 1950, there was no necessity to describe sub-caste. For the first time in 1976 under the Scheduled Castes Scheduled Tribes (Amendment) Act, 1976, Mahadeo Koli was introduced as a Scheduled Tribe in the State of Maharashtra. The certificates issued to the maternal uncle Balakrishna Naik as Mahadeo Koli in the year 1954 and entries in his service record and to maternal aunt, Jyotsana in the year 1979 probabilise the omission to describe Laxman Patil as Mahadeo Koli, though they, as a fact, belong to Scheduled Tribe. In the school registers the appellants had enjoyed the status as Scheduled Tribe which provides probative value. The Committee, the Additional Commissioner and the High Court had not appreciated the evidence in proper perspective before declining to confirm the social status of the appellants as Scheduled Tribes and the High Court ought to have gone into these aspects as was done in Subhash Ganpatrao Kabade casel. it is further contended that Suchita has completed her final year course of study. Madhuri is in midway and that, therefore, justice demands that their education should not be dislocated with the denial of the social status as Scheduled Tribes. The sheet-anchor for the counsel's argument is the judgment of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case'. We find no force in the contentions.
7. From the counter-affidavit filed by the State which has not been disputed by filing any rejoinder and as is borne out from the public notification issued by the President in the year 1950 in exercise of the power under Article 342 read with Article 366(25) of the Constitution that Mahadeo Koli is declared as a Scheduled Tribe. Article 366(25) defines Scheduled Tribes, as meaning such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are declared under Article 342 to be Scheduled Tribes for the purposes of the Constitution. Article 342 gives power to the President to specify the tribe with respect to any State or Union Territory, after consultation with the Governor where it is a State, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, this Court declared that subject to the law made by Parliament under sub-section (2) of Section 342, the tribes or tribal communities or parts of or groups within tribes or tribal communities specified by the President by a public notification shall be final for the purpose of the Constitution. They are the tribes in relation to that State or Union Territory and that any tribe or tribes or tribal communities or parts of or groups within such tribe or tribal communities, not specified therein in relation to that State, shall not be Scheduled Tribes for the purpose of the Constitution. The father of one Chandra Shekhar Rao who hailed from Tenali in Guntur District of Andhra Pradesh is a Settibalija by caste which is recognised as a backward class. His father obtained a certificate from the Tahsildar, Tenali that he belonged to Scheduled Tribe and had got an appointment in a public undertaking of Bombay. On the basis of social status certificate obtained by his father and entries in service record of his father, he applied for admission into medical college as Scheduled Tribe. When he was not admitted, he filed the writ petition in this Court under Article 32 seeking a declaration that Settibalija though was not declared to be Scheduled Tribe in Maharashtra it was a Scheduled Tribe for the purpose of the Constitution and that he was entitled to the admission into the medical college on the basis of his social status as a Scheduled Tribe. This Court did not uphold the contention. This Court held that the declaration by the President by a public notification in relation to a State in consultation with the Governor of that State is conclusive and court cannot give such a declaration. The same view was reiterated by another Constitution Bench in Action Committee on issue of Caste Certificate to SCs and STs in the State of Maharashtra v. Union of India.
9. The Preamble to the Constitution promises to secure to every citizen social and economic justice, equality of status and of opportunity assuring the dignity of the individual. The Scheduled Tribes are inhabitants of intractable terrain regions of the country kept away from the mainstream of national life and with their traditional moorings and customary beliefs and practices, they are largely governed by their own customary code of conduct regulated from time to time with their own rich cultural heritage, mode of worship and cultural ethos. The Constitution guarantees to them, who are also Indian citizens, equality before law and the equal protection of law. Though Articles 14 and 15(1) prohibit discrimination among citizens on certain grounds, 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 matters of appointments to an office or a post under the Union or a State Government or public undertakings etc. But Article 16(4) empowers the State to make provision for reservation of appointments or posts in favour of classes of citizens not adequately represented in the services under the State. Article 46 enjoins the State by mandatory language employed therein, to promote with special care the educational or economic interest of the Scheduled Tribes and Scheduled Castes and to protect them from "social injustice" and "all forms of exploitation". Article 51-A(h) enjoins every citizen to develop scientific temper, humanism and the spirit of inquiry and reform. Again Article 51-A(h) requires every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. It is, therefore, a fundamental duty of every citizen to develop scientific temper and humanism and spirit of inquiry to reform himself in his onward thrust or strive to achieve excellence in all spheres of individual and collective activity. Since the Scheduled Tribes are a nomadic class of citizens whose habitat being generally hilly regions or forests, results in their staying away from the mainstream of the national life. Therefore, the State is enjoined under our Constitution to provide facilities and opportunities for development of their scientific temper, educational advancement and economic improvement so that they may achieve excellence, equality of status and live with dignity. Reservation in admission to educational institutions and employment are major State policies to accord to the tribes, social and economic justice apart from other economic measures. Hence, the tribes, by reason of State's policy of reservation, have been given the exclusive right to admission into educational institutions or exclusive right to employment to an office or post under the State etc. to the earmarked quota. For availment of such exclusive rights by citizens belonging to tribes, the President by a notification specified the Scheduled Tribes or tribal communities or parts of or groups of tribes or tribal communities so as to entitle them to avail of such exclusive rights. The Union of India and the State Governments have prescribed the procedure and have entrusted duty and responsibility to Revenue Officers of gazetted cadre to issue social status certificate, after due verification. It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status. The case in hand is a clear instance of such pseudo-status. Kolis have been declared to be OBC in the State of Maharashtra being fishermen, in that their avocation is fishing and they live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes and it is not a sub-caste. Even prior to independence, the Maharashtra Government declared Mahadeo Koli to be criminal tribe as early as 29-5-1933 in Serial No. 15 in List II thereof. In 1942 Resolution in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled Tribe. It was later amended as Serial No. 13. In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was reiterated. A slight modification was made in that behalf by the Presidential Notification dated 29-10-1956. In the 1976 Amendment Act, there is no substantial change except removing the area restriction. Thus Mahadeo Koli, a Scheduled Tribe continued to be a Scheduled Tribe even after independence. The Presidential Notification, 1950 also does recognise by public notification of their status as Scheduled Tribes. The assumption of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case', that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible.
10. The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records, as the then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste was one of the predominant factors during pre-Constitution period. Unfortunately instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end to by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis. The father of the appellants admittedly described himself in 1943 and thereafter as a Hindu Koli. In other words his status was declared a Koli by caste and Hindu by religion. Kolis are admittedly OBCs. His feigned ignorance of the ancestry is too hard to believe. The averment in the affidavit that the entries were mistakenly made as Hindu Koli is an obvious afterthought. The anthropological moorings and ethnological kinship affirmity (sic) gets genetically ingrained in the blood and no one would shake off from past, in particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the society. The ingrained tribal traits peculiar to each tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the officer or authority concerned would get an opportunity to test the claim for social status of particular caste or tribe or tribal community or group or part of such caste, tribe or tribal community. It or he would reach a satisfactory conclusion on the claimed social status. The father of the appellant has failed to satisfy the crucial affinity test which is relevant and germane one. On the other hand the entries in his school and college registers as Hindu Koli positively belies the claim of his social status as Scheduled Tribe.
11. It is seen that admittedly the appellants reside in Muland area. In the first instance Suchita rightly approached the Tahsildar having jurisdiction over the area concerned who refused to give her social status certificate as Mahadeo Koli, she filed an appeal and the High Court directed the Deputy Commissioner to dispose of the appeal who in turn without deciding the facts, directed the Tahsildar to issue the certificate. In the meanwhile she had, by orders of the court, got admission into the college and pursued her study. The Caste Certificate Scrutiny Committee, consists of the Secretary as Chairman and two members, and a Research Officer-cum-Director who have intimate knowledge in the identification of the specified tribes, considered the entire material. The Committee has stated and as is seen that the appellant's father clearly accepted that his caste is recorded in the college as well as secondary school and college records as Hindu Koli only. This fact is strengthened by the candidate's father's school record (document at Serial No. 1). In the new English School locality at Thane, the name of the candidate's father appeared in the admission register at Serial No. 3733, and the caste clearly shown there was as H. Koli. This school record, comparatively, is not only oldest but it being the record pertaining to candidate's father's admission to school prior to independence, it carries greatest probative evidentiary value, The caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth. When the school record of the candidate's father shows his caste as Koli, the documents which the candidates have produced (documents quoted at Serial Nos. 3, 5 to 8, 11, 13 to 16) showing their caste as Mahadeo Koli cannot be relied upon. All these documents furnished by the candidates are those manipulated and fabricated with to knock of the seats in educational institutions defrauding the true Scheduled Tribes to their detriment and deprivation. As the school record of the candidate's father shows his caste as 'Koli', the caste certificates which have been issued to the appellants and their relatives by the Executive Magistrate, Greater Bombay (documents at Serial Nos. 9, 10, 12, 17 to 19) are without proper enquiry and investigation, besides being without jurisdiction. Its reiteration in service record would not carry any credibility or a ground to accept the caste as Scheduled Tribe. The caste certificate issued by Samaj being self-serving and subject to scrutiny, they cannot be held to be conclusive proof to determine the caste claim. The finding recorded by the Committee is based on consideration of the entire material together with sociological, anthropological and ethnological perspectives which Mahadeo Kolis enjoy and of the OBC castes and sub- caste of the Kolis. The Additional Commissioner as well, has minutely gone into all the material details and found that when a section of the society have started asserting themselves as tribes and try to earn the concession and facilities reserved for the Scheduled Tribes, the tricks are common and that, therefore, must be judged on legal and ethnological basis. Spurious tribes have become a threat to the genuine tribals and the present case is a typical example of reservation of benefits given to the genuine claimants being snatched away by spurious tribes. On consideration of the evidence, as stated earlier, both the Committee and the appellate authority found as a fact that the appellants are not tribe 'Mahadeo Koli' entitled to the constitutional benefits. In Subhash Ganpatrao Kabade case', the approach of the Division Bench of the High Court appears to be legalistic in the traditional mould totally oblivious of the anthropological and ethnological perspectives and recorded their findings with unwarranted strictures on the approach rightly adopted by the Scrutiny Committee and the Additional Commissioner to be '(funny)' "obviously incorrect" and "queer reasoning". Admittedly the petitioner therein, in days preceding the Constitution, described himself in the service book as well as school leaving certificate as a Hindu Koli. The High Court also found that they were backward class but proceeded on the erroneous footing that Mahadeo Koli was introduced for the first time through 1976 Amendment Act and that, therefore, they were the genuine Scheduled Tribes entitled to the benefits. In view of the above, we cannot help holding that the reasoning of the High Court is wholly perverse and untenable.
12. We have seen that Scrutiny Committee proceedings although started on 8-12-1989 were prolonged till 26-6-1992. We do not have record to scan the reasons for the delay. It would appear that the constitution of a Committee with large number of members and Secretary as Chairman must have greatly contributed for the delay in deciding the claims for the social status. A right of appeal provided thereafter compounded further delay though the Additional Commissioner on the facts of this case has disposed of the appeal very expeditiously. However, all of them are the contributory factors for the delay.
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:
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional 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.
2. 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 non-gazetted officer with particulars of castes and sub-castes, 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.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) 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.
5. 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.
6. 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 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.
7. 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.
8. 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.
9. 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.
10. 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 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.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. 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.
14. 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.
15. 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.
14. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons.
15. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.
11. As can be seen from the aforementioned, the Caste Scrutiny Committee was meant to go into the veracity of the claim of applicant regarding his caste being scheduled caste / scheduled tribe or not and whether he belongs to the caste claimed by him or not. In such cases, where the question is not regarding the caste of an individual being scheduled caste / scheduled tribe or his being from any particular caste but pertained to the genuineness of a certificate, i.e., whether the certificate is validly issued or not, the Caste Scrutiny Committee has no role to play. In other words, the Committee is meant to pronounce upon the caste of an individual and its status of being scheduled caste / scheduled tribe and not to go into the fact whether the certificate is properly issued or not. In the present case, the issue involved is not whether the applicant belongs to khariya caste or not but is whether the scheduled tribe certificate produced by him was genuinely issued or not. The genuineness of caste and genuineness of issuance of a certificate are two different questions. In the detailed judgment of Honble High Court in Shanti Acharya Sisingis case (supra), it has been viewed thus:-
23. Having examined the decision of Supreme Court in Madhuris case (supra), we are afraid, it cannot be said that Madhuris case lays down that the Inquiry Officer committed an error in returning a finding upon the social status of the respondent for the same was a matter which exclusively falls in the domain of Caste Scrutiny Committee. The guidelines issued by Supreme Court in Madhuris case (supra) lays down the procedure to be followed for issuance of fresh caste certificates or verification of caste certificates already issued by the authorities. By no stretch of imagination, Madhuris case (supra) lays down that wherever the issue of correctness of a caste certificate comes up in question, no authority other than Caste Security Committee can enquire into the same. It appears that the Tribunal has been swayed by the guidelines Nos. (11) and (12) issued by Supreme Court in holding that no authority other than Caste Scrutiny Committee can examine the correctness of a caste certificate. The purport of said guidelines is that the finding arrived at by Caste Scrutiny Committee regarding genuineness of a caste certificate can only be assailed by way of filing a petition under Article 226 of Constitution of India before the High Court and that the said finding cannot be assailed in a suit or in any other proceeding.
24. In view of the aforesaid, we have no hesitation in concluding that the view taken by the Tribunal that the Inquiry Officer committed an error in returning a finding upon the social status of the respondent is palpably wrong.
xxxxxx xxx xxx xxx
36. From the afore-noted two judicial decisions, it is evident that a distinction has been drawn by Supreme Court between the persons who had secured admission or appointment on the basis of false caste certificates obtained by them by playing fraud upon the authorities and the persons who had secured admission or appointment on the basis of caste certificates obtained by them on a bona fide belief that they are Scheduled Caste/Scheduled Tribe. In the former category, Supreme Court has refrained from exercising equity jurisdiction in favor of such persons and granting any relief to them whereas in the latter category Supreme Court has exercised equity jurisdiction in favor of such persons and granted concessions to them.
(emphasis supplied)
12. As far as the judgment of Honble Supreme Court in the case of Dattu s/o Namdev Thakur (supra) is concerned, in the said case also, the issue involved was not of fakeness of the caste certificate but was of status of the petitioners, i.e., whether the caste to which they belonged was scheduled tribe or not, thus, the judgment has no application to the facts of the present case.
13. In view of the aforementioned order of the Honble High Court of Delhi, it is held that there being no issue regarding the status of the caste of the applicant, i.e., whether he belongs to khariya caste or not, or the said caste is scheduled tribe or not, and the issue being of production of forged certificate (not issued by the competent authority), the plea of the applicant that the same should have been referred to the Caste Scrutiny Committee is not accepted.
14. On the question whether before removal of applicant from service a detailed regular inquiry into the charge of production of false certificate should be held or not, learned senior counsel for respondents vehemently relied upon the judgment of Apex Court in R. Vishwanatha Pillais case (supra). In the said case, in the school record the caste of the appellant was recorded as Veduvar Pillai. His father was one Radhakrishna Pillai and was a Nair by caste. His mother's caste was Veduvar Pillai. Nair as well as Veduvar Pillai are forward castes. The caste of his brother and other two sisters in the school record was also recorded as belonging to forward caste. The appellant obtained a community certificate on 14th October 1969 from the Tahsildar, Ambalappuzha stating that he was a member of the Vettuvan community. On the basis of this certificate he was able to get an appointment as Assistant in the Legislative Secretariat in the year 1973 against a post reserved for scheduled caste. In the year 1977 he was selected as direct recruit to the post of Deputy Superintend of Police against a seat reserved for scheduled caste on the basis of caste certificate obtained by him. He was subsequently promoted and included in the cadre of Indian Police Service (IPS). The Government of Kerala on the basis of a complaint received, ordered a full fledged anthropological inquiry into the caste status of the appellant. It was alleged that the appellant did not belong to the Scheduled Caste and had usurped the post meant for scheduled caste. The preliminary investigation was conducted by the Kerala Institute for Research, Training and Development Studies of Scheduled Caste and Scheduled Tribes (for short KIRTADS) which is a department under SC/ST Development Department which conducts anthropological investigation into the caste status of individual, whenever it is doubted. He was served with a notice, thus participated in the inquiry conducted by the KIRTADS and during the inquiry (1992) the appellant claimed that he belonged to "Kuruvan" community which is also a scheduled caste community as per the scheduled caste order of Kerala. KIRTADS after examining both the oral and documentary evidence submitted a report stating that the appellant did not belong to scheduled caste community, as claimed. In view of the judgment of Apex Court in Kumari Madhuri Patils case (supra), the Government of Kerala constituted a Scrutiny Committee by a notification dated 8th May 1995. The inquiry into the caste status was referred to the said Scrutiny Committee. The appellant submitted 117 documents before it but the Committee by an order dated 18th November 1995 rejected the claim of the appellant by way of a well considered and elaborate order. The order was challenged before the Honble High Court of Kerala in O.P. No. 963 of 1996, which was dismissed by the Division Bench on 26th February 1997 by a reasoned order. The special leave petition filed against the order of the High Court was dismissed on 1st May 1998. Thereafter, the appellant filed O.A No.340 of 1997 before this Tribunal (Ernakulam Bench) seeking direction against the respondents not to terminate his services. The Tribunal allowed the said O.A. on 24th April 1997 and directed that the service of the applicant be not terminated without following the procedure laid down in Article 311 and also under the Rules. The said decision of this Tribunal was challenged before the Honble High Court of Kerala by the State of Kerala in O.P. No. 10840 of 1997 and the High Court reversed the order of the Tribunal. The view taken by the High Court was that since the question of caste status of the appellant stood settled in the earlier proceedings upto Apex Court and was no longer debatable, the appellant would not be entitled to the protection under Article 311 of the Constitution as well as the Rules framed thereunder. The Apex Court could upheld the view taken by the High Court with a view that the appellant was given due opportunity to put forth his point of view and defend himself before the Caste Scrutiny Committee and the issuance of the fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of the Apex Court would be repetitive as well as futile. For easy reference, paragraph 13 of the said judgment is extracted hereinbelow:
13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (1) 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 having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority.
15. Though in paragraph 15 of the said judgment, it could be held that a person, who had disqualified himself to hold the post, cannot claim the benefit of Article 311 of the Constitution but such view was taken in view of the findings recorded by the Caste Scrutiny Committee. For easy reference, paragraph 15 of the said judgment is extracted hereinbelow:-
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its 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 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.
16. In the present case, it is not so that any such Committee, which gave an opportunity to the applicant to defend himself, could arrive at a conclusion that caste certificate produced by him was forged and not issued by the Zila Kalyan Padaadhikari Saran, Chapra, Bihar. It is borne out from the Notice of removal itself that the reply was received by the Establishment Branch of the Council from Zila Dandaadhikari Chapra, Saran, Bihar vide letter No.C-864/13 dated 19th June 2013 that the scheduled tribe certificate produced by the applicant had been issued by their Department. It is a different issue that subsequently vide letter dated 16th September 2013 it was clarified that the said letter dated 19th June 2013 was also wrong. Nevertheless, in such situation, it is imperative to give full opportunity to an employee to defend himself. The opportunity may include the detailed regular inquiry as per prescribed procedure.
17. On the issue whether the show cause notice gives rise to a cause of action or not, learned counsel for applicant relied upon the judgment of the Honble High Court of Delhi in Mohammad Rizwanul Haque v. Central Wakf Council and others, 186 (2012) DLT 421. In the said case, it could be viewed by the Hon'ble High Court that the Court should not quash a show cause notice or a charge-sheet and it is only in exceptional cases such as the charge-sheet having been issued without jurisdiction or being otherwise illegal that the Court can interfere at the interim stage. For easy reference, paragraphs 8 to 14 of the said judgment are reproduced hereinbelow:-
8. The learned Counsel for the petitioner, in support of his contention that respondent needs to supply the CBI report to the petitioner, has placed reliance upon the decision of the Supreme Court in Union of India and Others vs. S.K. Kapoor, (2011) 4 SCC 589. A perusal of the judgment would show that in the case before Supreme Court, copy of report of Union Public Service Commission(UPSC) was not made available to the respondent and therefore Central Administrative Tribunal when approached by him quashed the dismissal order passed against him and directed the Disciplinary Authority to make available a copy of the report to the respondent and proceed from the stage of making available the copy of the report to him. Rejecting the appeal filed by Union of India against the order of the Tribunal, Supreme Court inter alia held as under:
"6. Mr. Qadri, learned Counsel for the Appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India v. T.V. Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula v. Union of India, (2011) 4 SCC 591."
It would be seen that in the case before Supreme Court the Disciplinary Authority had taken into consideration and relied upon the report of the UPSC. That precisely was the reason why the Tribunal directed the Government to make copy of the report available to the respondent. The Supreme Court was of the view that where report of UPSC is not relied upon by the Disciplinary Authority in that case it would not be necessary to supply the copy of the same to the concerned employee. In the case before this Court since the Disciplinary Authority is not seeking to rely upon the Enquiry Report of the CBI, it would not be necessary for him to supply a copy of that report to the petitioner. I therefore find no merit in this ground as well.
9. Coming to the last ground taken by the petitioner before this Court, a perusal of the petition would show that though in Para 2.5 of the Petition it is stated that after a gap of six years, from the date the petitioner relinquished charge of the Office of the Administrator, Punjab Wakf Board, a memorandum dated 5th December, 2008 was received in the office of the Central Wakf Council, containing charges against the petitioner, delay in initiating disciplinary proceedings is not one of the grounds taken in the petition for quashing the charge sheet against him. There is no averment in the Petition that the petitioner has been prejudiced on account of the delay in initiating disciplinary proceedings. There is no submission in the petition that the disciplinary proceedings have been got vitiated on account of delay in initiation by the disciplinary proceedings. Even otherwise, I find from the reply filed by respondent no.2 and 3 that CBI made a recommendation on 22nd December, 2004 to Ministry of Social Justice and Empowerment to initiate major penalty proceedings against the petitioner. It is further stated in the reply that Ministry of Minority Affairs which is the concerned administrative Ministry supervising the affairs of the Central Wakf Council at present, came into existence only on 29th January, 2006 and it was after creation of this Ministry that the work relating to minorities was allocated to it. It is also stated in the reply that initially the Ministry was in a nascent stage without necessary staff and infrastructure. The Ministry made a reference to the CVC on 22nd August, 2006 to obtain first stage advice regarding initiation of disciplinary proceedings against the petitioner. CVC rendered its advice on 3rd October, 2006 recommending major penalty proceedings against the petitioner. Based on the recommendations of the CVC disciplinary authority took a decision on 4th December, 2008 to initiate disciplinary proceedings against the petitioner under Rule 14 of the CCS(CCA) Rules, 1965.
10. In my view, even after giving show cause notice to the petitioner, the disciplinary authority was justified in awaiting the outcome of enquiry which was being separately conducted by CBI, on receipt of complaint from Mr. Fardeen Iqbal. In all probability, had CBI given a clean chit to the petitioner, the Disciplinary Authority would not have even initiated disciplinary proceedings against him. Therefore the period up to submission of CBI report stands adequately explained. Though it can hardly be disputed that there is some delay on the part of the respondents in processing the matter since CBI report was received on 22nd December, 2004 whereas Ministry of Minority Affairs was set up on 29th January, 2006 and in the interregnum period, the Ministry of Social Justice and Empowerment could have processed the matter and there was some delay even after receipt of the advice of CVC, the delay, in the facts and circumstances of the case, including the nature of the charges leveled against the petitioner, cannot be WP(C) 2444/2010 Page 11 of 19 said to be so abnormal as to vitiate the enquiry. This is more so when the petitioner has not alleged any prejudice to him on account of delay in initiating enquiry and there is no allegation that the delay was actuated by any mala fide or was on account of some extraneous reasons.
11. The learned Counsel for the petitioner has relied upon the decision of the Supreme Court in P.V. Mahadevan vs. MD, T.N. Housing Board, (2005) 6 SCC 636, in support of his contention on delay in initiating the enquiry. In the case before Supreme Court, no action was taken against the appellant for about 10 years and there was absolutely no explanation whatsoever by the Housing Board which was the employer of the appellant, for such inordinate delay in initiating the disciplinary action. Relying upon its earlier decisions in State of Madhya Pradesh v. Bani Singh, 1990 Supp SCC 738 and State of Andhra Pradesh v. N. Radhakishan, (1998) 4 SCC 154, the Supreme Court held that allowing the respondent to proceed further with the departmental proceedings at that distance of time would be very prejudicial to the appellant. It would be appropriate at this stage to refer to certain observations made by Supreme Court in the case of N. Radhakishan (Supra). Supreme Court in the above referred case inter alia observed as under:-
"19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
12. In U.P. State Sugar Corporation Ltd. and Others v. Kamal Swaroop Tandon, (2008) 2 SCC 41, Supreme Court, after considering its decision in the case of P.V. Mahadevan (Supra), inter alia, held as under:-
"30. In our opinion, Mahadevan does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a particular period, they must necessarily be quashed."
In the case before this Court, considering the quantum of delay, and the fact that delay in initiating the enquiry has neither been made a ground for quashing the charge sheet nor has the petitioner has alleged any prejudice or vitiation of enquiry on account of delay, I find no ground to quash the charge sheet on this ground alone.
13. The learned Counsel for the respondents has also contended that the Writ Petition is rather premature at this stage when the petitioner having not even filed parawise reply to the charge sheet. This is not the case of the petitioner that he does not propose to file a detailed parawise reply to the memorandum of charge delivered to him. Though he generally refuted the allegations against him, he reserved to him the right to file a detailed reply when he responded to the charge sheet vide his letter dated 17th December, 2008. It is possible that after considering the detailed parawise reply of the petitioner, the Disciplinary Authority may be satisfied with the explanation offered by him and may decided to drop the disciplinary proceedings initiated against him.
In Union of India v. Ashok Kacker, 1995 Supp(1) SCC 180, the respondent filed a petition before the Central Administrative Tribunal WP(C) 2444/2010 Page 15 of 19 without replying to the charge sheet and waiting for the decision of the Disciplinary Authority thereon. The charge sheet was quashed by the Tribunal. In appeal, setting aside the order of the Tribunal, Supreme Court inter alia held as under:-
"4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him."
In Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, a charge sheet was issued to the respondent who, instead of reply to the charge memo, filed an OA before the Central Administrative Tribunal which disposed of the petition by directing him to file reply to the charge memo and further directing that on submission of the reply the same would be considered by the Disciplinary Authority. Instead of filing a reply the respondent filed a writ petition in the High Court which was allowed. On Union of India approaching Supreme Court, the order passed by the High Court in the writ petition was set aside. While allowing the appeal Supreme Court inter alia held as under:
"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
14. It would thus be seen that normal rule is that the court should not quash a show cause notice or a charge sheet and it is only in exceptional cases such as the charge sheet having been issued without jurisdiction or being otherwise illegal that the court can interfere at the interim stage. In the present case, it cannot be said that the disciplinary proceedings has been initiated by an authority which did not have jurisdiction to do so. The petitioner was appointed by the Chairperson of the Central Wakf Council and disciplinary proceedings have been initiated by that very authority. The petitioner has failed to show that the charge sheet issued to him or the disciplinary proceedings initiated against him are otherwise illegal. Hence, applying the normal rule the court should not interfere in the disciplinary proceedings at this initial stage.
18. In the present case, it is not so that the show cause notice has been issued by an incompetent authority or is patently illegal. Once the authority competent to issue the caste certificate could authenticate that no certificate was ever issued to the applicant, the disciplinary authority genuinely believed that no detailed inquiry is required into the matter and in view of the law declared by the Apex Court in R. Vishwanatha Pillais case (supra), he could be removed from service. Such view was strengthened by the judgment of the Honble High Court of Delhi in Union of India and another v. Durjan Mehto, (2006) 131 DLT 282 (DB) wherein it has been held thus:
2. The tribunal in its impugned judgment by relying upon the judgment reported as R. Vishwanatha Pillai V. State of Kerala and Ors. 2004 SCC (LandS) 350, observed that it was incumbent upon the concerned Government department where the employee was alleged to have obtained appointment on forged caste certificate, to refer the matter to the Verification Committee constituted in each State to verify the genuineness of the caste certificate. In the present case the finding as to the respondent's certificate was based upon an investigation held by the CBI which the tribunal noted had even not contacted its Collector for the verification and was further merely based upon a finding by the District Welfare and Circle Officer.
3. In our view since the petitioner had not referred for the verification of the caste certificate of the respondent before the Verification Committee required to be formed after the judgment of the Hon'ble Supreme Court in Madhuri Patil's case(supra) the tribunal has rightly given an opportunity to the petitioner, Union of India, to refer the caste certificate of the applicant to the verification committee and pass a further direction on the basis of the findings of the verification committee.
4. The learned Counsel for Union of India Mr. Gangwani submits that there is no Verification Committee in existence in the State of Bihar. Such a plea was not taken before the tribunal and has been raised for the first time in this court. Even if it is so no State can ignore the mandate of the Hon'ble Supreme Court judgment given for all States for formation of the Verification Committee, and Verification Committee if not already in existence ought to be formed immediately. Consequently it will be open to the petitioner Union of India to require the State of Bihar to form the Verification Committee in accordance with the direction of the Hon'ble Supreme Court in Madhuri Patil's case.
5. We find no fault in this finding of the tribunal since the tribunal's impugned judgment is based upon the position of law laid down in Madhuri Patil and Vishwanath Pillai's case. Thus the writ petition has no merit and the CA Tribunal's order dated 6th July, 2004 is affirmed. However, taking into account the fact that the allegations against the respondents are serious about forging a caste certificate, if and when a reference is made for verification to the verification committee by the petitioners, such verification shall be done by the concerned Verification Committee in the state of Bihar not later than 8 weeks from the receipt of the reference from the petitioner. The respondents are directed to fully co-operate with the process of verification by the Verification Committee. The writ petition is accordingly disposed of with the above direction.
19. Now it is for the applicant to put forth his case before the disciplinary authority. While doing so, he may either produce the material to show that the certificate produced by him at the time of appointment was genuinely issued by the competent authority or to establish that in view of the facts of the present case where no such report regarding validity of his caste certificate wherein he was given opportunity to defend himself is there, he need to be given opportunity to defend himself by cross examining the PWs and leading the evidence in regular disciplinary inquiry.
20. Being bound by the judgment of the Honble High Court in Mohammad Rizwanul Haques case (supra), we decline to interfere with the show cause notice. Nevertheless, we are sanguine that the disciplinary authority will keep in view the response to be put forth by the applicant to the show cause notice as also the observations made by the Honble High Court in paragraph 38 of the judgment in Shanti Acharya Sisingis case (supra) while taking the final decision.
21. Subject to said observations, the present Original Application is dismissed. It goes without saying that the applicant would have liberty to assail the final decision of the disciplinary authority on all such grounds available to him, including the one of requirement of regular disciplinary inquiry into the misconduct before the imposition of penalty. No costs.