IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
4. 7-2014 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.21396 of 2013 P.Ayyappan .. Petitioner. Versus 1. The General Manager Indian Bank, No.31, Rajaji Salai, Chennai-31.
2. The Deputy General Manager (HRM) Indian Bank, No.254-360, Avvai Shanmugam Salai, Royapettah, Chennaik-14.
3. The State Level Scrutiny Committee Rep. by its Secretary cum Chairman Adi-Dravidar and Tribal Welfare Department, Secretariat, Chennai-9. (R3 Impleaded as per order, dated 13.6.2014 by MJJ and MVJ in M.P.No.1 of 2014) .. Respondents. Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the proceedings of the 2nd respondent in Ref:GR:O:17118:2013-14 dated 27.6.2013 and quash the same and consequently direct the respondents to release Full Pension, Commutation, Gratuity, Leave Salary and Employers share of Provident Fund Contribution and all other terminal benefit along with interest at 12% per annum to the petitioner. For Petitioner : Mr.V.Vijay Shankar For Respondents : Mrs.Rita Chandrasekar for M/s.Aiyar and Dolia (R1 and R2) Mr.S.P.Prabakaran Government Advocate (R3)
ORDER(Order of the Court was made by M.Jaichandren,J.) Heard the learned counsel appearing for the petitioner and the learned counsels appearing on behalf of the respondents.
2. The learned counsel appearing on behalf of the petitioner had stated that the petitioner belongs to `Konda Reddy' community, which is a Scheduled Tribe. The petitioner had been issued with a community certificate, on 2.9.1973, by the Tahsildar, Nanguneri. It had been further stated that many of the petitioner's relatives had been found to be belonging to `Konda Reddy' community.
3. It had been further submitted that the petitioner had been appointed, as a Clerk-cum-Shroff, during the month of March, 1979, in the Indian Bank. The petitioners services had been confirmed, after a period of six months. The petitioner had been given promotion, as a Scale-I officer, during the year, 1988. Thereafter, he had been promoted as a Scale-II officer, during the year, 2005. After serving the bank for a period of nearly 34 years he had retired from service, on 30.6.2003, on attaining the age of superannuation. At the time of his retirement the petitioner has been working as a Senior manager at Kothaval Bazaar Branch of the bank at Chennai.
4. The learned counsel had further stated that, while the petitioner was in service, during the year, 2005 the Revenue Divisional Officer, Cheranmahadevi had proposed to initiate proceedings against the petitioner for the cancellation of the community certificate issued in his favour, on the basis of the discreet enquiries made by the said officer. As the Revenue Divisional Officer concerned had no jurisdiction to initiate action for the cancellation of the community certificate after the formation of the State Level Scrutiny Committee, the petitioner had filed a writ petition before this court, in W.P.(MD) No.6421 of 2005. The order of interim stay had been granted and a final order had been passed, on 25.7.2008, allowing the writ petition. However, this court had granted liberty to the State Level Scrutiny Committee to verify and pass appropriate orders, with regard to the claim made by the petitioner, within a period of six weeks.
5. The learned counsel had further stated that after the order had been passed by this court no authority, including the State Level Scrutiny Committee had summoned the petitioner for an enquiry. While so, the second respondent had issued a letter, dated 27.6.2013, informing the petitioner that the process of verification of the community status of the petitioner was pending and therefore, the petitioner was being kept under cessation of service. It had also been stated that the terminal benefits payable to the petitioner could not be released, except the contribution made by the petitioner for the Provident Fund.
6. The learned counsel appearing on behalf of the petitioner had further stated that the second respondent had no authority or jurisdiction to issue the impugned proceedings as he had no jurisdiction to do so. The terminal benefits due to the petitioner should be paid on the petitioner on attaining the age of superannuation. Therefore, the impugned letter issued by the second respondent, dated 27.6.2013, is liable to be set aside.
7. The learned counsel appearing on behalf of the petitioner had submitted that the community certificate issued in favour of the petitioner remains valid, as it had not been cancelled, till date. It is a well settled position in law that when a community certificate had not been cancelled, in the manner known to law, by the competent authority, the contents of the said certificate have to be accepted as true and valid, by the authorities concerned. It had also been submitted that the petitioner cannot be punished for any alleged misconduct as the validity and the genuineness of the community certificate issued in his favour had not been cancelled, by the authorities concerned , in the manner known to law.
8. The learned counsel appearing on behalf of the petitioner had further submitted that, under the regulations of the respondent bank, the power to withhold or withdraw the terminal benefits is available only when departmental or criminal proceedings were pending against an employee. Regulation 46 of the respondent bank enables the grant of provisional pension to such an employee. However, in the present case no departmental or criminal proceedings are pending in respect of the petitioner. Therefore, the respondent bank cannot invoke the regulations of the bank to withhold the payment of retiral benefits stating that the community certificate issued in favour of the petitioner is under scrutiny. It has been further submitted that, as long as the community certificate, issued in favour of the petitioner, is not cancelled, it is deemed to be valid in the eye of law for all practical purposes. Therefore, withholding of terminal benefits of the petitioner, by the respondent bank, is arbitrary and illegal.
9. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions. 9.1. In V.Balasubramanian Vs. The Assistant General Manager, State Bank of India and another, (Order dated 29.2.2011, in W.P.No.17184 of 2011) the Division Bench of this court had held as follows: ".7. The general rule is that, the vacancies earmarked for Scheduled Caste/Scheduled Tribe candidates should be made available only to such of those candidates, who belong to that community and for that purpose, they should produce the community certificate issued by the competent authority. On the part of the employer once the employment is given on the strength of the community certificate produced by the employee, it should be forwarded to the competent authority for verification. If the employer has made a request for verification as to the genuineness of the certificate immediately showing his bonafides, it is for the State to explain as to why such verification process has not been completed. The payment of terminal benefits in respect of an employee, who has attained the age of superannuation while the community certificate is under verification depends upon the facts of the case.......
16. In view of the above, we direct the Direct Level Vigilance Committee, Coimbatore to forward all the records pertaining to the verification of the community certificate of the petitioner within a period of fifteen days from the date of receipt of a copy of this order either from the petitioner or from the first respondent. On receipt of the records, the State Level Scrutiny Committee shall pass orders in a period of two months therefrom. The payment of terminal benefits to the petitioner would depend upon the order that may be passed by the State Level Scrutiny Committee. As the matter is pending from the year 2005 and the petitioner has also retired on attaining the age of superannuation the time fixed by this Court shall be strictly adhered to by the State Level Scrutiny Committee and the matter has to be considered on preference basis. No costs.". 9.2. In S.P.Sakthi Devi Vs. The Collector of Salem, Salem, 1998 LW (MS) 105, this court had held as follows: ".10....
1. A Caste/Community certificate issued by an empowered public authority under seal continues to be a valid document till it is cancelled by the said authority or by his superior authority.
2. Their contents are to be treated as correct and every public authority, undertakings, bodies, institutes, etc., which are bound by instructions relating to such certificates, are bound to act upon them, so long as they are not cancelled.
3. In no disciplinary proceedings, their genuineness or correctness of their contents can be gone into. It is open to the department or employer or organisation, to ask the issuing authority or District Collector, as the case may be, to verify whether the certificate as issued could be still vaid, on materials which have since come to their knowledge. They can appear to the verification enquiry and place the materials.
4. Appointing authorities have the right to verify the genuineness of the certificates by approaching the District Magistrate - Collector of the District or such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further harassed to prove his caste/community in any other manner.
5. Appointing authorities have the right to verify the genuineness of the certificates by approaching the District Magistrate-Collector of the District or such other constituted authority and once the report is received that the certificate is genuine, thereafter the certificate holder cannot be further harassed to prove his caste/community in any other manner.
6. In causing verification, the Collector is bound to follow the procedure laid down in letter dated 7th July, 1983, of Government of Tamil Nadu.
7. In view of what is stated in Chapter 19 of Brochure on Reservation for Scheduled Castes and Scheduled Tribes, in services, 6th edition (1982), the instructions issued by the Central Government from time to time relating to Scheduled Castes and Scheduled Tribes, pertaining to issue of caste certificates are binding upon public sector undertakings, statutory and semi-Government bodies and voluntary agencies receiving grant-in-aid from the Central Government, as provided therein.". 9.3. In E.Mani Vs. The Revenue Divisional Officer, Tiruvannamalai, (Order dated 25.11.2013, in W.P.Nos.25963 and 25964 of 2013) the Division Bench of this court had held as follows:
6. Learned Advocate General appeared and in response to the query on the above aspect, fairly conceded that there is no community as ".KURUMBAR". finding place in the list of most backward class, backward class or scheduled caste/scheduled tribe community in the Presidential Notification.
7. In view of the above factual matrix, this Court directs the learned Advocate General to take up the matter with the Government for appropriate steps to correct the error that has occasioned by issuance of certificates bearing the name of ".KURUMAR". (Most backward class). This exercise, if done, can avoid confusion and litigations at various levels. It will also ensure that the competent authorities do not adjudicate or refer to the community ".KURUMBAR". in any proceedings. A circular can also be issued not to refer or, rely upon the name ".KURUMBAR". in any proceedings.
8. We find much force in the plea made by the petitioners that the competent authority has relied upon the community ".Kurumbar". for rejecting the application for Scheduled Tribe community certificate and we once again reiterate that the competent authority is not entitled to refer to the name of ".Kurumbar". (IMBC) for the purpose of deciding the claim for issuance of Scheduled Tribe Community Certificate. Even assuming that there are certificates issued in favour of one or other persons bearing the name of ".Kurumbar". with or without MBC tag, the authority shall independently verify the claim as to whether the petitioner falls under the Scheduled Tribe community on the basis of relevant materials that would be submitted by the petitioner in the relevant case and also shall follow the procedures prescribed in G.O.Ms.No.106 dated 15.10.2012. The Director of Adi Dravidar and Tribal Welfare Department is directed to inform all the competent authorities to cease and desist from referring to the name of the community as ".Kurumbar". (allegedly said to be MBC) for the purpose of deciding any claim whatsoever.
9. In view of the fact that there is no such community as ".Kurumbar". in the Presidential Notification under any category, more particularly under the Scheduled Tribe category or MBC category, the reference to the word ".Kurumbar". is itself causing more confusion and series of litigation, which can be avoided if the authority is directed not to refer to this community at all. Any certificate bearing the name ".Kurumbar". by any applicant or their relatives is to be eschewed as totally invalid in law. The authority is, however, directed to pass orders on merits in each one of the case, taking note of other relevant particulars, that may be presented and following the procedure as already mentioned above.". 9.4. In Union of India, rep. by The General Manager, Southern Railway, Chennai and others Vs. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai and another, (Order dated 28.4.2010, in W.P.No.7991 of 2010), a Division Bench of this Court had held as follows: ".We have heard Mr.R.Thiagarajan, learned senior counsel appearing for the petitioners. It is by now well settled that so long as the community certificate issued in favour of the second respondent is not cancelled in the manner known to law, the employer, viz., the petitioners herein, has no right to deprive whatever the service benefits to which he is otherwise entitled to. Admittedly, the certificate that was produced by the second respondent for securing the employment has not been cancelled and the issue relating to the genuineness of that certificate is pending before the State community certificate, by itself, would not disentitle the second respondent his pension and other benefits. The Tribunal has allowed the application only on the above finding, which we do not find any interference is required.". 9.5. In Union of India, rep. by The Additional Central PF Commissioner (TN& KR), EPF Organisation), (Order dated 26.8.2013, in W.P.No.22714 of 2013) a Division Bench of this Court had held as follows:
7. As pointed out earlier, the verification of the community certificate of the second respondent was referred way back in 2001 and in turn, the same was referred to State Level Scrutiny Committee, which was constituted as per G.O.Ms.No.108, dated 12.9.2007 notwithstanding that the verification of the community certificate is pending with the State Level Scrutiny Community. The fact remains that the second respondent was permitted to go on voluntary retirement. Even though the said order dated 4.1.2010 states that the order is issued ".without prejudice to the outcome of her community status verification/confirmation by the newly constitued Committee as per G.O.Ms.108 dated 12.09.2007"., the order does not specifically state that pending community status verification by the committee, the terminal benefits will not be disbursed. It is fairly well settled that so long as the community certificate is not cancelled by the duly constituted committee, the said community certificate is deemed to be valid for all purposes. Since the second respondent has been permitted to go on voluntary retirement and a provisional pension at the rate of Rs.7,220/- per month was also released to the second respondent with effect from 4.1.2010, we are of the view that the Department was not justified in refusing to disburse the terminal benefits. Taking note of the fact that process of verification of the genuineness of the community certificate is still pending and that the community certificate has not been cancelled by a competent authority, the Tribunal rightly directed the petitioner Department to disburse the terminal benefits.". 9.6. In Union of India, rep. by S.Ramasamy Vs. The Chairman, Chennai Port Trust, Chennai and others, (Order dated 31.0.2013, in W.P.No.18724 of 2013) a Division Bench of this Court had held as follows: ".10. The genuineness of the community certificate of the petitioner had already undergone a test earlier and it was found in favour of the petitioner. Unless and until there is a clear finding that the community certificate produced by the petitioner is invalid, the regulations cannot be pressed into service.".
10. Per contra, the learned counsel appearing on behalf of the first respondent Bank had submitted that the petitioner had obtained the community certificate from the Tahsildar, Nanguneri, on 2.9.1973. He had been appointed as a Clerk-cum-Shroff during the month of March, 1979 and he had attained the age of superannuation, on 30.6.2013. By the communication, dated 27.6.2013, he had been informed that the payment of is terminal benefits, except his contribution to the Provident Fund, had been withheld and that his entitlement to draw the terminal benefits would be determined based on the outcome of the verification based on the outcome of the verification and the order to be passed by the appropriate authorities of the Government of Tamil Nadu.
11. It has been further stated that the case of the petitioner is that his community certificate had not been cancelled by the competent authority, till date. Therefore, as long as the community certificate has not been cancelled it is presumed to be genuine and valid. As the petitioner had attained the age of superannuation, after completing over 30 years of unblemished service in the first respondent bank, the said bank is not justified in withholding the payment of terminal benefits, for which he is eligible. The petitioner had further claimed that, as per the service regulations of the first respondent bank, if an employee attains the age of superannuation he is entitled to the terminal benefits, as applicable to him.
12. It had been further stated, by the petitioner, that the bank has no right or authority to withhold the pensionary benefits due to him, as such an act would be contrary to Regulation 43 of the Bank (Employees') Pension Regulations, 1995. The petitioner had further stated that the pension payable to an employee can be withheld only if he is convicted of a serious crime or criminal breach of trust or forgery or if he was found to have acted fraudulently or guilty of grave misconduct. It had been further stated, on behalf of the petitioner, that since the petitioner is not disqualified, as per number 43 of the Regulations, the first respondent bank is not entitled to delay the payment of the pensionary benefits. Further, under Regulations 45 and 46 of the Indian Bank (Officers) Service Regulations, 1979, the petitioner is eligible for the payment of Provident Fund and Gratuity on his attaining the age of superannuation.
13. The learned counsel appearing on behalf of the first respondent bank had further submitted that the petitioner had submitted that there had been a long delay of nearly two decades in referring the matter to the authority concerned, for the verification of the community certificate issued in favour of the petitioner. Such a claim is not maintainable in view of the fact that if it is found that the petitioner had got the appointment in the respondent Bank, fraudulently, by obtaining a community certificate, by misrepresentation. In such a case, the petitioner would not be validly entitled to get the terminal benefits, as claimed by him. If the State Level Scrutiny Committee, which is to verify the genuineness and the validity of the certificate issued in favour of the petitioner, comes to the conclusion that the petitioner had obtained the community certificate by playing fraud and that the said certificate is not genuine in nature, it would be as though the appointment of the petitioner itself would be void and non est in the eye of law, as per the decision of the Supreme Court, in R.Viswanatha Pillai Vs. State of Karnataka, 2004 AIR SCW419 14. The learned counsel had further submitted that the Supreme Court had held, in Bank of India Vs. Avinash Mundi Vihar, 2005(7)SCC690 that if the appointment had been made on the basis of the certificate which was later found to be faulty the very foundation of the appointment would collapse. The appointment made, based on the false certificate, cannot be construed to be an appointment in the eye of law.
15. The learned counsel had relied on a decision of a Division Bench of this court, dated 29.9.2011, made in W.P.No.17184 of 2011 (V.Balasubramanian Vs. The Assistant General Manager (Administration) State Bank of India and another), wherein it had been held that, where the employer had made a request for the verification, with regard to the genuineness of the community certificate, in a bona fide manner, it is for the State to explain as to whether the verification process had not been completed, promptly. The payment of terminal benefits in respect of an employee who had attained the age of superannuation, while the community certificate is under verification, would depend upon the facts of each case. Even though a number of letters had been issued, by the first respondent Bank, requesting the authorities concerned to verify the genuineness of the community certificate of the petitioner, there has been no proper response from them, till date. However, the delay on the part of the authorities concerned, in verifying the genuineness of the community certificate, issued in favour of the petitioner, cannot be a proper reason for the petitioner to demand the payment of his terminal benefits. As this court had found it fit to implead the State Level Scrutinty Committee, as one of the respondents, this court may direct the said committee to verify the genuineness of the community certificate issued in favour of the petitioner, before directing the first respondent Bank to pay the terminal benefits said to be due to the petitioner.
16. It had been further state that the Supreme Court had held, in Director of Tribal Welfare, Government of Andhra Pradesh Vs Laveti Giri, AIR1995SC1560 that the burden of proof of the social status of a person is always on the person who propounds to seek constitutional socio-economic advantages and it is not the duty of the State to disprove the claim of the person concerned. As such, it is for the petitioner to prove that he belongs to the community, as stated in the community certificate issued in his favour, based on which he had got the appointment in the first respondent Bank. In such circumstances, it is clear that the claims made by the petitioner, in the present petition, cannot be sustained. As such, the present writ petition, filed by the petitioner, is devoid of merits and therefore, it is liable to be dismissed.
17. The learned counsel appearing on behalf of the respondents had relied on the following decisions in support of his contentions:
17. 1. In R.Vishwanatha Pillai Vs. State of Kerala, 2004 AIR SCW419 it had been held as follows: ".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. 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........
19. It was then contended by Shri Ranjit Kumar, learned senior counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionery benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud........
27. In this case we find that the appellant had joined the Regional Engineering College in the year 1992. He completed the course of his studies in the year 1996 under the interim orders of this Court which were subject to the final orders to be passed in the writ petition. No purpose would be served in withholding the declaration of the result on the basis of the examination already taken by him or depriving him of the degree in case he passes the examination. In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra Vs. Milind & Ors., (Supra) we direct that his result be declared and he be allowed to take his degree with the condition he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes.". 17.2. In Bank of India and another Vs. Avinash D.Mandivikar and others, 2005 7 SCC690 it had been held as follows:
8. Stand of the respondent no.1-employee is to the effect that he has put in nearly three decades of service and has about three years to go before retirement, and in terms of the High Court's order he has been denied promotion. Therefore, the order of the High Court is an equitable order. A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai v. State of Kerala and Ors. 2004(2) SCC105 to be inconsequential. In para 19 it was observed: ".It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.".
11. We find the conclusions of the High Court to be contradictory. On one hand the High Court faulted the reference which was made after about ten years and on the other hand accepted the findings of the Scrutiny Committee that the respondent no.1 did not belong to Scheduled Tribe as was held by the Scrutiny Committee. Mere delay in making a reference does not invalidate the order of the Scrutiny Committee. If the High Court felt that the reference was impermissible because of long passage of time, then that would have made the reference vulnerable. By accepting the findings of the Scrutiny Committee that the respondent no.1- employee did not belong to Scheduled Tribe, the observations about the delayed reference loose significance. The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (JT2005(7) SC530 dealt with effect of fraud. It was held as follows in the said judgment: ".14. .............Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'.
15. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC100 Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC311, Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC1.
16. Suppression of a material document would also amount to a fraud on the court. (seeGowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC310 and S.P. Chengalvaraya Naidu's case (supra).
17. ".Fraud". is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
18. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB702 Lord Denning observed at pages 712 & 713, ".No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.". In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722) 19. These aspects were recently highlighted in the State of Andhra Pradesh and Anr. v. T. Suryachandr Rao (2005 (5) SCALE621". Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect legality of the reference.".
18. In view of the submissions made by the learned counsels appearing on either side and on a perusal of the records available, and on considering the decisions cited supra, we are of the considered view that certain disputed factual issues have arisen in the present case. There is no doubt that, if the parents of the applicant, who is seeking to obtain a community certificate from the authority concerned, have already been issued with community certificates stating that they belong to a particular community, there would be a presumption in favour of the applicant that he or she would also belong to the same community, as that of his or her parents. However, when there are certain serious irregularities or discrepancies noticed, with regard to the community certificates issued in favour of the parents of the applicant, or if there are serious discrepancies found in the records submitted by the applicant in support of his or her claims, then it may be appropriate to refer the matter for further consideration, by the State Level Scrutiny Committee, for further verification and enquiry and for passing appropriate orders on the request made by the applicant concerned.
19. We are of the considered view that the issuance of a community certificate, in favour of the applicant, based on the certificates issued in favour of his or her parents cannot be an empty formality, without proper application of mind. The issuance of community certificate, in favour of the applicant, cannot be an automatic exercise, especially, when serious doubts have been raised, either by the employer or by any other person or entity, or by the authority concerned, with regard to the genuineness or validity of the certificates issued in favour of the applicant. Such an empty exercise would be a clear infringement of the provisions enshrined in the Constitution of India relating to the principles relating to equality and social justice.
20. We are also aware of the fact that if a community certificate is issued, erroneously, it would be an infringement of the concomitant rights vested in some other person, who may claim certain privileges recognised by the Constitution of India and the other laws applicable to the creation of equal opportunity in public employments and in educational institutions and in certain other areas, where the policy of reservation is being followed. Therefore, it is important that the authorities concerned should be extremely careful in issuing a community certificate in favour of an applicant, especially, when the applicant makes a claim for granting him or her the status of a person belonging to scheduled castes and scheduled tribe communities.
21. In such view of the matter, we find it appropriate to direct the State Level Scrutiny Committee, which has been impleaded as the third respondent herein, to consider the claims made by the petitioner, for the issuance of the community certificate, stating that he belongs to `Konda Reddy' community, by following the necessary procedures and by giving an opportunity of hearing to the petitioner and to pass appropriate orders thereon, by giving an opportunity of hearing to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order. If the State Level Scrutiny Committee, the third respondent herein finds that the claim of the petitioner that he belongs to Konda Reddy Scheduled Tribe community and the certificate already issued in his favour is genuine and valid, the respondent bank shall disburse the retiral benefits due to the petitioner within a period of four weeks thereafter.
22. It is made clear that the second respondent Bank duty bound to pay the retiral benefits due to the petitioner till the State Level Scrutiny Committee passes an order, as directed by this court. However, if the third respondent, the State Level Scrutiny Committee, finds that the community certificate, which had already been issued in favour of the petitioner, is not genuine or valid, or that the said certificate had been obtained by misrepresentation or fraud, there would be no obligation on the part of the respondent bank to disburse the retiral benefits, in accordance with the direction issued by this court, as the petitioner would not be entitled to any payment, in respect of the terminal benefits, as held by the Supreme Court, in R.Vishwanatha Pillai Vs. State of Kerala, 2004 AIR SCW419 In such a case, it is made clear that, it would be open to the petitioner to work out his remedies, if any, before the appropriate forum or authority, in the manner known to law. The writ petition is ordered accordingly. No costs. (M.J.J.) (M.V.J.) Index:Yes/No 4-7-2014 Internet:Yes/No csh M.JAICHANDREN,J.
AND M.VENUGOPAL,J.
csh W.P.No.21396 of 2013 4-7-2014