Judgment:
ORDER
S.B. Sinha, CJ
1. Obtaining ofemployment by filing a false caste certificate resulting in an order of removal was the subject-matter of an application before the Tribunal and the order passed therein being dated 24-1-2001 in OA No.1678 of 1999 is the subject-matter of this writ petition.
2. The short fact of the matter is as follows: The petitioner claims to have married a person belonging to Konda Kapu community - a community recognized as a Scheduled Tribe. Her husband obtained a caste certificate from the then Member of Legislative Assembly of Secunderabad Assembly Constituency. A similar certificate was obtained on the basis of the former one by the petitioner from the Special Tahsildar, MIGH Scheme, Hyderabad on 4-11-1977. She was appointed in July, 1980 as Lower Division Clerk in a post which was reserved for Scheduled Tribe candidates.
3. The Joint Collector later on cancelled the said certificate. The petitioner's husband faced an order of dismissal. A proceeding was also initiated against the petitioner culminating in imposition of penalty of removal from service. An appeal preferred by her was dismissed. Before the learned Tribunal below the said orders were challenged on the grounds:
'a. There was delay in concluding theinquiry proceedings;
b. There was delay in initiating disciplinary proceedings;
c. The applicant was appointed in the year 1980 and disciplinary proceedings were initiated on 11-9-1990;
d. Even the Inquiry Officer conducted the enquiry in utter violation of theprocedure contemplated in the CCS (CCA) Rules;
e. Copies of the documents mentioned in Annexure-III to the charge memo were not supplied. She has requested to furnish a copy of the memo No.14013/1/86-Estt dated 10-10-1991 referred to in the memo but the same was not supplied;
f. The Inquiry Officer conducted the enquiry with a prejudiced mind. The findings recorded by the Inquiry Officer are arbitrary and perverse;
g. The documents relied upon by the disciplinary authority were not marked during the course of evidence. The documents which were not marked could not have been relied upon by the respondent authorities;
h. She had not played fraud in claiming to be belonging to ST community on the basis of the caste certificate dated 4-11-1977 issued by the Special Tahsildar MIGH Scheme, Hyderabad district.
i. She had not misrepresented theauthorities;
j. The caste certificate dated 4-11-1977 is a genuine and valid one. Even now the said certificate dated 12-1-1975 is in force;
k. She has not suppressed any factual information from the department either at the time of appointment or later. As and when she was called upon to furnish any information she furnished the same with all factual details; She had correctly answered column 9(b) of the attestation form; She was not asked to explain how she acquired ST status; either by birth or by marriage;
l. For the first time the respondent authorities asked her to inform whether she belonged to ST community by birth or because of her marriage to a person belonging to ST community. She explained to the said memo by letter dated 21-7-1987 wherein the respondent authorities relied upon certain instructions of Ministry of Home Affairs circular dated 2-5-1975 and informed her that she could not be treated as belonging to ST community merely on account of her marriage with a person belonging to ST community in accordance with the established tradition in the community and that she became a full-fledged ST candidate. She relies upon the decision of the Honourable Supreme Court reported in : [1972]3SCR361 and STR 1987 (1) CAT 163. The instructions issued by the Ministry of Home Affairs in letter dated 2-5-1975 could not be a bar for her being regarded as a member of the ST community because she was not born in that community. Thus the charge memo issued to her was irregular.
m. That the findings of the Inquiry Officer holding her guilty of the charges are not correct. The Inquiry Officer gave importance to the document marked as S.10 to which she was not a party and which had not valid as the same was secured behind her back;
n. The applicant narrates the case of one Smt. K. Rajya Lakshmi applicant in OA 465 of 1992 and submits that same benefits could have been extended to her; she had completed 19 years of service, she is aged about 49 years and she is the only earning member in the family;
o. The disciplinary authority on 10-10-1991 remanded back to the same Inquiry Officer who held her guilty of the charges. The disciplinary authority should have nominated a different Inquiry Officer.
p. While imposing the punishment of removal the disciplinary authority had not considered the various points raised by her in the representation dated 7-5-1999. As there is nearly seven years delay in furnishing the copy of the report of the Inquiry Officer, the punishment of removal imposed on her is too severe and harsh.
q. The appellate authority passed the order on appeal on 26-10-1999. It appears the applicant had remained absent from duties w.e.f. 2-11-1999. Taking these factors into consideration the Assistant Director of the respondent department by his proceedings No.C.16013/1/99-Estt dated 9-11-1999 observed that the applicant stood relieved from the post w.e.f. 9-11-1999 AN.
r. On 10-11-1999 the OA came up for hearing. This Tribunal passed the interim order which reads as under:
'The order No.C.16013/1/99-Estt 9-11-1999 will not be insisted upon and the applicant will be taken back to duty submitted the learned Counsel for the respondents. In view of the above submission Admit. The impugned order passed by appellate authority is suspended until further order.
s. By virtue of this interim order the applicant is working on the post'.
4. It is not in dispute that the order of the Joint Collector cancelling the certificate was questioned by the petitioner in a writpetition before this Court which was dismissed.
5. The learned Tribunal rejected all the contentions raised by the petitioner herein. The learned Counsel appearing on behalf of the petitioner inter alia submitted that the learned Tribunal ought to have considered the case having regard to the principles of equity particularly having regard to the fact that the charge memo was issued after 12 years. In this connection our attention has been drawn to the judgment of the Central Administrative Tribunal in the case of Mrs. L. Rajyalakshmi in OA No.465 of 1992 wherein it was held:
'7. It may be noted that while the applicant got job in 1979, the actual charge memo, was issued in 1990 i.e., about 12 years after securing the appointment. As the applicant is naturally overaged for appearing for any post now it will naturally cause prejudice to her in case of removal from service. As we feel that it is not a case where a mis-statement of fact was made by the applicant either before the Employment Exchange Officer or before the Tahsildar who issued the caste certificate in 1978. It will be just and proper to pass the following orders:
'In the result, the order dated 19-4-1992 removing the applicant from service is set aside'.
6. The learned Counsel submitted that the petitioner had produced the said certificate as she believed that by marriage she acquires the caste or tribe of her husband. In support of the said contention reliance has been placed in Smt. D. Neelima v. The Dean of P.G. Studies, : AIR1993AP47 . A Division Bench of this Court in the aforementioned case upon consideration of various decisions inter alia held:
'31. From the principles laid down above, we are inclined to hold that onmarriage the bride acquires the caste or tribe of her husband and the question whether there was acceptance for such acquisition of caste or tribe from the members of that caste or tribe, as the case may be, is irrelevant inasmuch as this is not an acquisition on reconversion to Hinduism nor a change over simplicitor, but by the virtue of her marriage'.
7. The said decision cannot have any application in the instant case as it has been found as of fact that the petitioner's husband also did not belong to the Scheduled Tribe community. He obtained a certificate from a member of the Legislative Assembly who has no jurisdiction to issue such certificate. The petitioner followed her husband and obtained a certificate in her favour relying on the said certificate granted by the Member of Legislative Assembly.
8. In any event the aforementioned question came up for consideration in Mrs. Valsamma Paul v. Cochin University, : [1996]1SCR128 , wherein it is held:
'32. The immediate question arises: Whether recognition of the community is a pre-condition Though it was consistently held that recognition is a circumstance to be taken into consideration, @ page-SC 1022 marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light of the constitutional philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India on marriage by man and woman, they become members of the family and entitled to the social status as married couple, recognition per se is not a pre-conditionbut entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both of the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status.
33. However the question is : whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educational backward; the OBC also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities.
34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, (1995) 3 JT (SC) 563 = 1995 AIR SCW 2224; and R. Chandevarappa v. State of Karnataka, (1995) 7 JT (SC) 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institution, or incase of other economic benefits under Articles 15(4) and 46 or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) status of Scheduled Caste etc., by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution'.
9. Yet again in State of Tamil Nadu v. A. Gurusamy, : [1997]2SCR104 , it is inter alia that in a case of this nature, having regard to the provisions of Articles 341 and 342 of the Constitution of India, even a civil suit will not be maintainable to declare a community as belonging to Scheduled Caste and even in a situation like this the principles of estoppel will have no application. In T. Rajeswari v. V.C., S.V. University, : 1999(2)ALD69 , a learned Judge of this Court held that a woman of a forward community marrying a man of backward community does not acquire the caste of her husband to claim protective discrimination under Article 16(4) of the Constitution.
10. The aforementioned decisions are authorities for the decision that the petitioner had no right to obtain a job claiming herself to be a member of the Scheduled Tribe at the cost of somebody else. As the status certificate of her husband had been cancelled by the competent authority it was not evennecessary to initiate any proceedings. In Director of Tribal Welfare v. Laveti, : [1995]3SCR430 , the Apex Court laid down the procedure for issuance of social status certificate, their scrutiny and their approval inter alia stating:
'15. As soon as the findings 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 acknowledgment due with a request to cancel the admission of the appointment. The Principal etc., of the educational institution responsible for making the admission or @ page-SC 1512 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'.
11. Thus even the appointment obtained by the petitioner could have been cancelled. Having regard to the fact that the petitioner played fraud upon the concerned authorities for obtaining an appointment it is not even a case where we should exercise our equitable jurisdiction.
12. For the reasons aforementioned there is no merit in the writ petition and it is accordingly dismissed. But in the facts and circumstances of the case there will be no order as to costs.