1. The applicant challenges an order dated 26.5.98 relating to the termination of the applicant. The facts are: The applicant was working as Senior Clerk in the office of the first respondent. The applicant states that she belongs to Schedule Tribe and hails from Sholagar Community and that her father who worked in the Transport Department of the Government of Tamil Nadu also had been treated as ST candidate, who had retired from service. Accordinng to the applicant, in school and college records she was treated as a Schedule Tribe candidate and the school and college records show that she belongs to Sholagar Community.
It seems that after the completion of the college studies she was selected and appointed as a Junior Clerk in the first respondent's office in a vacancy earmarked for S.T. candidate. At the time of initial appointment, her caste certificate and education qualification had been verified as per the laid down procedure. After completing the probation as on 19.9.91 by an order dated 24.3.94 she was declared as successfully completed her probation and by proceedings dated 9.1.98 her services were regularised appointed in the substantive post of Junior Clerk with effect from 20.9.91. She was promoted to the post of Senior Clerk on 24.5.95 against a vacancy reserved for Scheduled Tribe candidate in roster. At this point of time, the first respondent has sent the caste certificate for verification to the Collector of Salem now the second respondent by a letter dated 2.7.96. The applicants states that the second respondent in his communication dated 27.1.98 informed the applicant that the Revenue Divisional Officre has submitted a report to the effect that the applicant belongs to 'Solia Pillai' and called the applicant to appear for a personal hearing on 5.2.98 to show the genuineness of her caste status as Sholagar.
Ultimately, by order dated 19.5.98, the Community Certificate issued by the Tahsildar, Rasipuram on 19.11.96 was cancelled. Against this cancellation, the applicant seems to have preferred W.P.No.7701/98 before the High Court and a rule nisi has been issued. However, the first respondent by the impugned order terminated the services of the applicant immediately on receipt of the communication from the second respondent on 19.5.1998 that her community certificate has been cancelled. This is under challenge before us.
2. Mr. V. Subramaniam, learned Counsel for the applicant contends that the whole proceedings are unwarranted and against the principles of natural justice and the impugned order is liable to be set aside.
According to the learned Counsel, the initial appointment has been given based on the certificate issued by the Tahsildar in 1986 and after the applicant has been appointed permanently in a post and has been promoted such an order of termination , cannot be passed. The learned Counsel went to the extent of saying that the re-verification of caste status is unwarranted. According to the learned Counsel for the applicant that O.M.No.36011716/80-Est. (SCT) dated 27.2.1981 is not applicable to the facts of this case. According to the applicant that the Sholagar Community is Schedule Tribe in Tamil Nadu and the conclusion arrived by the Revenue Divisional Officer that she belongs to Sholia Pillai is not correct. According to the learned Counsel that the original certificate issued by the Tahsildar Rasipuram on 19.11.1986 was not cancelled by any competent authority and also points out that the Supreme Court in R. Kandaswamy v. The Chief Engineer, Madras Port Trust (1997 WLR 806) has held that the Community Certificate issued by the Tahsildar prior to 1989 are valid. The learned Counsel also pointed out that the applicant is appointed in the substantive capacity in the post of Junior Clerk with effect-from 20.9.91 and her services cannot be terminated abruptly without any notice. The learned Counsel also contended that the principle of natural justice has not been followed while the second respondent conducted the enquiry.
3. Percountra, Mr. R. Ganesan, learned Counsel for first respondent contended that once the authority decides about the community and has come to the conclusion that the applicant did not belong to Sholagar Community, the services of the applicant can be terminated and relies upon a judgment of the Supreme Court in Director of Tribal Welfare Government of A.P. v. Laveti Ciri and Another ((1995) 30 ATC 166) for the proposition that the termination order is not vitiated. The learned Counsel for the first respondent also relies upon a judgment of the Supreme Court in Kumari Madhuri Patil and Anr. v. Addl. Commissioner Tribal Development and Ors. (1994 SCC (L.&.S.) 1349) for the very same proposition. The learned Counsel for the first respondent points out that the applicant produced a false community certificate and got an appointment on 20.9.89 in the Scheduled Tribe quota and even at the time of initial appointment, the applicant was asked to produce the community certificate in the prescribed form but the applicant produced the community certificate issued by the Tahsildar dated 19.11.1986 which did not even contain the Tower seal. It is also pointed out by the learned Counsel that no verification has been done about the community certificate when she was appointed. According to the learned Counsel for the respondents, only when the applicant was promoted as Senior Clerk on 24.5.95 the verification of the community certificate was found necessary as per the instructions contained on O.Ms, dated 27.2.1981, 14.10.87, 16.6.89 and 24.4.90 issued by the G.I. Department of Personnel and Training, Government of India. Further according to the learned Counsel at the time of her promotion as Senior Clerk to ascertain the genuineness of the community certificate, it was sent to the District Collector, Namakkal for verification and the Collector of Namakkal entrusted the work to the Revenue Divisional Officer, Namakkal for an enquiry and the Revenue Divisional Officer sent the report to the Collector stating that the applicant does not belong to Scheduled Tribe Community of 'Sholagar' but belongs to backward community of Solia Pillai. As such, the community certificate was cancelled by the Collector by order dated 19.5.98. It is also pointed out by the learned Counsel for the first respondent that the National Commission for Scheduled Casts and Scheduled Tribes also requested the first repondent to terminate the services of the applicant immediately. It is stated that even before the initial appointment, the applicant was warned in the attestation form that furnishing of false information would be a disqualification and is likely to render the candidate unfit for employment. In O.M. dated 30.4.1965, it has been stated that if any declaration given or information furnished proved false comes to notice at any time during the services of the person, his/her services would be liable to be terminated. It is also pointed out by the learned Counsel for the first respondent that the community certificate issued to the applicant by Tahsildar, Rasipuram on 19.11.1986 was found to the false and has been cancelled then only the impugned order of termination has been passed. According to the first respondent's Counsel, furnishing a false certificate relating to caste is a Constitutional violation as held in Kumari Madhuri Patil and Anr. v.Addl Commissioner Tribal Development and Ors.The Director of Tribal Welfare Government of A.P. v. Laveti Giri and Anr.
(supra), As such, the first respondent terminated the services of the applicant as per the judgments of the Supreme Court. It is pointed out that the termination order is not vitiated and no notice is necessary before terminating her services.
4. We have gone through the application, reply filed by the first respondent and we have considered the arguments of Mr. V. Subramaniam, learned Counsel for the applicant and Mr. R. Ganesan, learned Counsel for the first respondent.
5. The short point for consideration is; whether the order of termination dated 19.5.1998 is bad in law as no opportunity has been given to the applicant.
6. First of all it is necessary to refer to the O.M. dated 27.2.1981 which has been issued with regard to verification of caste certificate at the time of making subsequent promotions. Para 2 of the O.M. reads as follows: " 2. It has now been decided that the appointing authorities should verify the caste status of a Scheduled Caste/Tribe officer at the time of initial appointment and promotion against a vacancy reserved for Scheduled Caste/Tribe. For this purpose, the caste and the community to which an SC/ST person belongs, his place of residence and the name of the State should be pasted on the top of the service book, personal file or any other relevant document covering its employee to facilitate such verification. It may be mentioned that a Scheduled Caste person, whose caste has been descheduled after his initial appointment as a Scheduled Caste, is no longer entitled to enjoy the benefit of reservation in promotions. This verification of caste status at every important up-lurn of employee's career is necessary so that the benefit of reservation and other scheme of concessions, etc., meant for SC/ST should go only to the rightful claimants and not to those become disentitled to them." "The undersigned is directed to invite reference to the instructions contained in Chapter 13 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services (7th edition) on the subject mentioned above and to say that despite clear instructions to the effect that appointing authorities should verify the caste status of a Scheduled Caste/Scheduled Tribe officers at the time of initial appointment and promotion against a reserved vacancy, instances have come to the notice of this Department where due to non-observance of these instructions, the benefits meant for SC/ST candidates have gone to non-SC/ST candidates thereby defeating the purpose of providing reservation for SC/ST." Again in 1989 O.M. dated 16.9.89 has been issued. Para 2 of the O.M.reads as follows: " 2. In order to ensure that benefits meant for SC/ST candidates in services are not enjoyed by non-SC/ST candidates who have entered service on production of false caste certificates and that stringent action is taken against such persons/ all the Ministries/Departments are requested to ensure strict compliance of the instructions contained in Chapter 13 of the Brochure referred to above and also ensure their compliance by the offices under their control." "3. It has now been decided that henceforth the certificates as mentioned in para, 2 above should not be accepted as proof of caste at the time of initial appointment. The Caste/Tribe certificates issued by the following authorities in the prescribed form in Appendix 14 of the Brochure on Reservation for Scheduled Castes/Scheduled Tribes (Seventh Edition) will only be accepted:- Magistrate/Collector/Deputy Commissioner/Additional Deputy Commissioner/Deputy Collector/I Class Stipendiary Magistrate/Sub-Divisional Magistrate/Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner.
(2) Chief Presidency Magistrate/Additional Chief Presidency Magistrate/Presidency Magistrate.
(4) Sub-Divisional Officer of the area where the candidate and/or his family normally resides." A reading of all these instructions would show what has to be done with regard to issuance of certificates for SC/ST. It is true that the Supreme Court has given certain guidelines in Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. (supra), Para 15 of the judgment reads as follows: " 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."In Director of Tribal Welfare, Government of A.P. v. Laveti Giri and Anr. (supra), the Supreme Court followed the earlier judgment issued in Kumari Madhuri Patil's case (supra) and held as follows at para 8 page "8. While reiterating the above guidelines to be workable principles, it is high time that the Government of India should have the matter examined ingreater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits reserved for the tribals, etc. etc. so that the menace of fabricating the false records and to gain unconstitutional advantages by plain/ spurious persons could be prevented. Lest they would defeat the constitutional objective of rendering socia-economic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39." But so far as the facts on hand is concerned, we are of the view that the cancellation order of the Revenue Divisional Officer is under challenge before the High Court in W.P.7701/98 and rule nisi has been issued by the High Court which is pending. So the order passed by the Revenue Divisional Officer has not attained a finality. The effect of issue of rule nisi has been considered by a Division Bench of the Madras High Court in Lokkaju Satyanarayana v. Majati Venkatarattamma and Anr. (1951 (II) MLJ 477). The learned Chief Justice P. V.Rajamannar, J. has explained the effect of issue a rule nisi at pages 478 and 479 as follows: "We are clear, however, that Section 20 applies to this case, because we agree with Mr. Ramachandra Rao that the appeal preferred to the Subordinate Judge must be deemed to be pending so long as the application to quash the order is pending in this Court. In Halsbury's Laws of England, Volume 9, page 838 (Section 1420), the nature of a writ of certiorari is thus set out: "The writ of certiorari issues out of a superior Court and is directed to the Judge, or other officer of an inferior Court of record. It requires that the record of the proceedings in some cause or matter depending before such inferior Court shall be transmitted into the superior Court to be there dealt with, in order to insure that the applicant for the writ may have the more sure and speedy justice." See also Short and Mellor's Crown Practice (Second Edition) page 14.
The rule nisi in this case in terms calls upon the Subordinate Judge of Tenali to send for the use of this Court all the records with all things touching the same as fully and perfectly as they have been made by the learned Judge. It is obvious that the decision in the appeal is again set at large, as it lost its finality the moment this Court issued the rule nisi. This Court can on this application for certiorari set aside by quashing the order in the appeal. Surely, in such circumstances, it must be said that the appeal is pending. In re Clagett's estate: Fordham v. Clagett ((1882 20 Ch.D.637 (653)) Jessel, M.R., when discussing the question when an insolvency can be treated as pending observed thus; "What is the meaning of the word 'pending'? In my opinion, it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of this word 'pending. A cause is said to be pending in a Court of justice where any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. 'Pending' does not mean that it has not been tried. It may have been tried years ago." This has been followed by a Division Bench of the Madras High Court in Sree Annapoorna and Anr. v. The State of Tamil Nadu and Anr. (1988 Vol.63 STC 18). The Division Bench reiterated the principles after referring to the principles laid down in Lookaju Satyanarayana v.Majati Venkatarattamma and Anr. (supra) and at page 39 held as follows; "In view of the rule nisi issued in writ proceedings and the pendency of the tax cases it cannot be said that the assessments had become final.
It is also worthwhile to refer to another judgment of Veeraswami, J. as he then was, in an unreported decision in W.P.Nos.59 and 800 of 1962 (N.P. Sundaram Chettiar v. Tiruchi Everest Automobiles (P) LTD.Tiruchirapalli W.P.59 of 1962) dated 19.12.1962 referred to by the learned Counsel for the applicant. The learned Judge has held as follows: "The Tribunal, in taking that view and proceeding to dispose of the revision petitions, notwithstanding the rule nisi issued by this Court in W.P.No. 59 of 1962, seems to have wholely misunderstood the effect of grant of a rule nisi by this Court in a petition for certiorari. Certiorari is a direction issued by a superior Court to a Court or Tribunal of inferior jurisdiction to send up to the superior Court the records along with the order in a proceeding, so that the superior Court may deal with them and correct the error of law appearing on the fact of the record or order or an error of jurisdiction. The judicial or quasi judicial authority to which the direction is given is, therefore, obliged to send up the records in obedience to the rule nisi to the Court from which it emanased. The effect of a rule nisi in a petition for certiorari is that the order against which it is directed, is set at large. But this is not to say that a rule nisi automatically destroys an order in respect of which it has been issued. Its effect is merely that the finality of the order sought to be quashed is as it were suspended and the matter is open for scrutiny by this Court. This effect taken along with the fact that pursuant to a rule nisi the records are required to be sent up to this Court, points to the position that the inferior Court or Tribunal while the position is pending is not, free, unless specifically directed or permitted by this Court, to proceed to deal with the very order or proceeding or record to which the rule nisi relates. Refusal of stay by this Court pending a petition for certiorari makes no difference to this position. The Tribunal was not right, therefore, in thinking that it was free to proceed with the revision petitions and deal with the order which had already been directed this Court by a rule nisi to be sent up to this Court to be dealt with under Article 226 of the Constitution.
So in our view to rely upon the order of the Revenue Divisional Officer for termination of applicant's services at this stage is not correct.
It is true that in Sree Annapoorna and Anr. v. The State of Tamil Nadu and Anr. (supra) an assessment under the Sales Tax Act was quetioned and in that context, the Division Bench followed the principles laid down by the earlier Division Bench of the Madras High Court. If this principle is applied to the facts of this case, the order cancelling the community certificate has not become final as a rule nisi has been issued by the High Court in W.P.No.7701/98 filed by the applicant and the same is pending before the High Court. It may be true that the applicant has made a false representation and by playing fraud upon the respondents have entered the service as a S.T. candidate but yet the applicant has been appointed to a permanent post having completed the probation and has been promoted also. Now the applicant as a permanent Government servant has got the protection under Article 311 of the Constitution, apart from the question of the principles of natural justice. If the applicant has produced a false community certificate, it is open to the first respondent to proceed against the applicant under the Central Civil Services (Classification, Control arid Appeal) Rules, 1965 and take disciplinary proceedings. So the Constitutional protection given to a Government Servant under Article 311 of the Constitution has been given a go by on the facts and circumstances of the case by abruptly terminating the service of the applicant. In our view, the first respondent ought to have initiated disciplinary proceedings against the applicant and after giving a reasonable opportunity should have passed an appropriate order. That has not been done. As such, in this view, also the impugned order is bad in law.
7. A similar issue came up before the Bombay High Court in Bhausaheb Dattatraya Holkar v. Municipal Corporation (1996 (3) SLR 722). In that case also a permanent employee was removed from service on the ground that he had secured employment by fabricating a caste certificate and he was guilty of fraud. The Bombay High Court has held that removal from service is a major penalty and cannot be passed without complying with the rules of natural justice. With respect, we agree with the view of the Division Bench judgment of the Bombay High Court, in Bhausaheb Dattatraya Holkar v. Municipal Corporation (supra). Similarly in Uptron India Limited. v.Shammi Bhan and Anr. (1998 AIR SCW 1447), the Supreme Court has considered a question with regard to the termination of a permanent employee in accordance with Section 5 of the Certified Standing Orders of a Company, the Supreme Court followed the judgment of the Constitution Bench in Delhi Transport Corporation v. D.T.C.Mazdoor Congress (AIR 1991 SC 101). In para 18 the Supreme Court has held as follows: "18. The whole case law as reviewed by the Constitution Bench in Delhi Transport Corporation v. D.T. C. Mazdoor Congress, 1991 Supp (1) SCC 600: (AIR 1991 SC 101), and except the then Chief Justice Sabyasachi Mukharji, who dissented, the other 4 Judges reiterated the earlier view that the services of aconfirmed employee could not be legally terminated by a simple notice." Even that notice has not been given to the applicant in this case. So we have no hesitation to hold that the order has been passed in violation of the principles of natural justice.'In Union of India and Ors. v. Jayakumar Parida (1996 SCC (L&S) 320), the Supreme Court was concerned with the termination of an Extra-Departmental Branch Postmaster, the service was terminated on the ground that he had produced a false income certificate to procure appointment. The Supreme Court held after referring to Rule 6 of the Posts and Telegraphs Extra-Departmental Agents (Conduct and Salaries) Rules, 1964 as follows: "5. The question is whether the termination of the respondent is in accordance with this rule. There appears to be acomplaint laid against the respondent that he had produced a false income certificate before seeking appointment. That was taken into account while making the appointment of the respondent as Extra-Departmental Branch Postmaster. It is settled law that if any material adverse to the respondent formed a foundation for termination, principles of natural justice may necessarily require that prior opportunity of notice be given and after considering his reply appropriate order may be passed giving reasons in support thereof. If it is only a motive for taking action, in terms of Rule 6, since that rule provides that such a termination could be made within three years without any notice, there would be no obligation on the part of the appellant to issue any notice and to give opportunities before termination. So each case requires to be examined on its own facts." As such we are of the view that the impugned order has got to be set aside on another ground also that the principles of natural justice has not been followed and the procedure contemplated under Article 311 of the Constitution has not been followed before terminating the services of a permanent Government Employee. In the judgments relied upon by the respondents in Director of Tribal Welfare, Government of A.P. v. Laveti Gin and Anr.Kumari Madhuri Patil and Anr. v. Addl.
Commissioner Tribal Development and Ors. (supra) the Supreme Court has given certain guidelines to form a Committee to go into the genuineness of the certificate but the case before us is not a case where a Committee has decided about the genuineness of the certificate and though we are told that a Committee has been formed, the order cancelling the certificate has been passed only by the Collector, Namakkal. Apart from that Annexure R. 14 relied upon by the learned Counsel for the first respondent, a communication from the National Commission for Scheduled Castes and Scheduled Tribes, stating that the services of the applicant to be terminated cannot be relied upon as the order has been passed behind the back of the applicant. At the same time, we have to observe that the judgment relied upon by the learned Counsel for the applicant in R. Kandaswamy v. The Chief Engineer, Madras Port Trust (supra) may not be applicable to the facts of this case, because the learned Judges of the Supreme Court has held in that case that certificates issued by the Tahsildar prior to 11.11.89 are valid unless it is cancelled but on the facts of this case, though the certificate has been issued by the Tahsildar prior to 11.11.89, it has been cancelled by the competent authority, according to the O.M.referred to above.
8. In the result, the impugned order dated 26.5.1998 stands set aside.
It is open to the respondents to take appropriate proceedings against the applicant under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, so that it will be in compliance of Article 311 of the Constitution of India. The applicant shall be reinstated in service by the first respondent, on the producting of the copy of this order. But on the facts and circumstances of this case, we do not propose to order back-wages for the applicant. The application is allowed. No costs.