Smt. Kalavathi S. Nergi Vs. the District Commissioner, District Caste Verification Committee, - Court Judgment

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- code of civil procedure, 1908. section 9: [mohan shantanagouder, j] jurisdiction of civil court - suit challenging the legalitry of domestic enquiry and penalty imposed - held, civil court has got jurisdiction to find out regularity of proceedings of enquiry and question as to whether there is violation of principles of natural justice. it is also open to the civil court to go into the question as to jurisdiction of inquiring authority and disciplinary authority either to hold disciplinary proceedings or to impose penalty. however, it cannot appreciate evidence adduced before the inquiring authority. it can go into a question whether the penalty impose is proportionate to the misconduct proved.anand byrareddy, j.1. heard the counsel for the parties.2. the facts leading up to these appeals are as follows:banajiga naidu by birth. she married one shankar nergi, in the year 1977, who belonged to the adi dravida community, which is a scheduled caste. it is recognised as such by the state government of karnataka. on the basis of her marital states, the appellant claiming to belong to the caste other husband, had sought for a caste certificate from the tahsildar. udupi and such a certificate dated 30.7.1977 was issued in her favour. she had secured employment on the basis of the said certificate with the new india assurance company, represented by the third respondent herein.3. it however, transpires that on the basis of a report submitted by the civil rights enforcement cell of the office of the district commissioner. district caste verification committee. udupi. the said authority had by an order dated 25.8.2003, cancelled the caste certificate issued by the tahsildar. udupi of the year 1977 and thereby terminated the scheduled caste status given to the appellant.4. the appellant fad challenged the said order by way of a writ petition before this court in wp 45131/2003 which was disposed of on 12.2.2004 granting liberty to the appellant to prefer an appeal before the appellate authority. the appellant accordingly having approached the appellate authority, the appeal was dismissed by the appellate authority, while placing reliance on a notification issued by the government of india bearing no. 35:1:72:ru(sct.v) dated 2.3.1975. that order was carried in a fun her appeal by the appellant before the commissioner. social welfare department, government of karnataka which, in turn, was rejected, confirming the order passed in the district caste verification committee.5. the appellant thereafter preferred yet another writ petition in wp 43046/2004. in the said petition, the appellant filed a memo to place on record an alternative prayer and her willingness to resign from the services of the third respondent-company if the-company would settle her terminal benefits. it was in this background that i he learned single judge observed hat the appellant had not committed any fraud as she had acted on the bona - fide belief that site was entitled to claim the caste of her husband by virtue of marriage and it is on that basis that she had obtained a certificate and employment and therefore, it would be in the interest, of justice, if the appellant is pen nil led to resign without prejudice to the terminal benefits that she was entitled to. accordingly the learned single judge passed an order dated 14.11.2008. the appellant promptly tendered her resignation on 24.11.2008. the third respondent company, however, did not communicate the acceptance of her resignation nor did seek to challenge her order of the learned single judge. it is in this background that the appellant has preferred this appeal hi w.a. no. 392/2009.contentions of the appellant:6.1 shri k.kasturi, senior advocate, appearing for the counsel for the appellant in wa 392/2009. contends that even assuming the appellant was not entitled to claim the status of belonging to a scheduled caste on account of her marriage she was a banajiga naidu by birth and the said community has been declared as belonging to 'other backward classes' an per the notification issued by the government oi india beating no. om no. 36012/22/93 (sct) dated 8th september 1993. hence, the appellant could claim as a person belonging to a notified backward community and therefore was in any event entitled to continue in employment. notwithstanding that the order of the learned single judge was invited by the appellant herself by filing a memo to suggest a via-media, the declaration by the learned single judge that she was not entitled to claim the scheduled caste status was a gloss placed on the order which has seriously prejudiced the case of the appellant. the senior advocate would contend that the judgment of the supreme court in the case of state of maharashtra v. milind (2001) 1 scc 4, wherein the supreme court has held that in a case where the caste certificate was found to be invalid, the candidate's admission to a course or a degree conferred ought hot to be cancelled and that the candidate be permitted to continue without seeking the advantage of the scheduled caste certificate for all future purposes. this ought to have been applied by the learned single judge. it is also glossed over by the learned single judge that the appellant who belongs to the 'other backward classes' by birth and this not having been disputed by the employer and the appellant also having filed a memo as on 03.7.1998. to be permitted to continue in her job without seeking further advantage of scheduled caste status has been completely ignored by the learned single judge.6.2 it is also contended that there are a line of cases, decided by this court. involving circumstances where a caste certificate is issued prior to the coming into force of the karnataka scheduled castes, scheduled tribes and other backward classes (reservation of appointments) rules, 1992, cannot be cancelled and the district verification committee would have no jurisdiction to connect the same. one such judgment of a division bench is reported in the case of the divisional commissioner, belgaum division and ors. v. bhovi samaja seva sangha, sirsi and ors. : ilr 2003 kar 1584.6.3 shri kasturi, senior advocate would also place reliance on the judgment in the case of the state of maharashtra v. reshma ramesh meher and anr. 2008(4) lln 127. in that case the respondents had filed applications for caste certificate in the year 1980 claming to belong to mahadeo koli a scheduled tribe and on the strength of caste certificates issued, the respondents had appeared in the competitive examination held by the maharashtra state public service commission. they were selected and appointed with effect from the year 1982. however, in the year 1986, the general administrative department department sought for verification of caste certificates of the respondents. on verification, by an order, in the year 1992, the caste certificates issued by the respondents were cancelled arid accordingly, they were also informed that their services stood terminated on completion of one month from the date of issuance of a memorandum. these orders were challenged before the administrative tribunal. the tribunal however, held that the divisional commissioner having in the meanwhile set aside the order cancelling the caste certificates, the application did not survive for consideration and they were directed to be reinstated. however, in the meanwhile, the caste scrutiny committee which was constituted, in terms of the decision of the supreme court in kumari madhuri patil and anr. v. additional commissioner, tribal development and ors. : 1994(6) sc 241, undertook the exercise of reverification of the caste status of the respondents. on an enquiry, it was held that the claim of the respondents as belonging to 'mahadeo koli' was not verifiable and in fact, they had changed their caste from 'mangel koli' to 'mahadeo koli' to benefit from the concessions available to the latter scheduled tribe. the scrutiny committee had hence proceeded to cancel the caste certificates issued to the respondents. it. however, transpires that by virtue of the governmental decision dated 7th december 1994, a resolution was notified in the year june 1995, declaring 'mangel koli' to be a 'special backward category', entitled to ail special concessions, with effect from december 1994, as were being enjoyed by other notified castes and tribes. in the above background, apart from other controversies that were raised, the question for consideration before the supreme court was as to whether die protection granted under the resolution dated june 1995 would be available to the respondents. the supreme court held thru as on the date of the said notification, there was an order directing reinstatement of tire respondents and , therefore, they would be deemed to be in service as on the effective date when the notification was brought into, force and hence, the resolution dated 15.h.1995 was applicable to them and they were entitled lo protection, though the respondents were denied their claim for backwages on account of the supreme court having found that there was suppression of material and information from the court, bordering on fraud, the senior advocate would submit .hat the appellant in the present case on hand, on the other hand. would be on a stronger footing as there is no element of fraud on the part, of the appellant and she is entitled to claim the status of belonging to other backward classes by birth and she ought to be given the benefit of the same.contentions of the respondent no. 37.1 shri s. ramadas, senior advocate appearing for the counsel for the appellant in the connected appeal arid for respondent no. 3 in the first of ihesv appeals, on the oilier hand, seeks to contend dial the learned single judge having come to a conclusion that the cancellation of the caste certificate issued in favour of the appellant, who is also respondent no. 1 in the connected appeal was justified, and that she was not entitled to secure employment on the basis of the said certificate, could not have proceeded to grant the benefit of service till 30.11.2008 and in enabling the first respondent to resign from services. there was certainty suppression of fact at the tine of her initial application seeking employment as to her actual caste. the appellant was not in a position to seek employment on the basis of her marital status and in the belief that she belonged to scheduled caste category. the very assertion was fraudulent. hence, the contention that there was no fraud involved is incorrect. the appellant employee having no legal rigid to continue in service, there was no justification for the learned single judge to have granted any relief. the order of dismissal ought to have been confirmed. the benefit of reservation is only meant for those who belonged to that category. for any person, not so belonging to the category, taking benefit would deprive a person who is entitled to that employment. it is therefore a matter of serious concern that the employee had falsely indicated her caste and that there was no justification in finding a scope for any relief for the employee. it is in this background that the employer has not chosen to confer any benefit on the employee as she is not entitled to in law to the same.7.2 mr. s. ramadas, senior advocate would seek to draw our attention to the case of shobha hymavathi devi v. setti gangadhara swamy and ors. : (2005)2 scc 244. the appellant in that case was elected to sringavarapukota 28 st assembly constituency in vizianagaram to the legislative assembly of andhra pradesh. the said election was challenged before the high court of andhra pradesh under the representation of peoples act, 1951. the election petitions were allowed upholding the challenge on the ground that the appellant was not qualified to contest from a constituency reserved for scheduled tribe candidates. those orders were challenged before the supreme court in appeals. the question that arose was whether the appellant belonged to a scheduled tribe and hence qualified to contest the election from a constituency reserved for a scheduled tribe candidate. according to the election petitioners, the appellant belonged to patnaik sistu karnam, a forward community. while according to the appellant, she belonged to the bhagatha community which was notified as a scheduled tribe. it was found by the high court that the appellant was a patnaik sistu karnam and did not belong to a scheduled tribe community. the undisputed facts were that one sobha rama raju belonged to the bhagatha community. he had two wives, maliamma and gowramrna. through mallamma he had a daughter simhachalam. the appellant is the daughter of simhachalam. according to the election petitioners, simhachalam had married one murahari rao belonging to patnaik sistu karnam caste and the appellant was their child. the appellant had admitted that she was the daughter of simhachalam through murahari rao. but site pleaded that she was the illegitimate child of murahari kao. since simhachalam had earlier manned ladda appala swamy who belonged to the bhagatha community and that marriage not having been terminated the marriage between simhachalam and murahari rao could not be recognised, though there was intimacy and cohabitation between them. the appellant also contended that murahari rao had himself earlier married one kalavathi and that marriage also subsisted. therefore, murahari rao could not be considered as the husband of simhachalam without there being a formal marriage between simhachalam and murahari rao. therefore, it was claimed that she was in fact, a scheduled tribe and hence, qualified to contest election. the high court, on evidence concluded that there was no material to prove that simhachalam had earlier married ladda appala swamy and that the child took the caste of her lather and the appellant was to be considered as the daughter of murahari rao. the further contention of the appellant that the appellant having married a tribal belonging to the bhagatha community, it ought to be taken that she acquired die membership of the community of her husband and consequently to be treated as a member of that community was negatived.7.3 reliance was placed on the judgment in the case of n.e. horo v. j. jahanara jaipal singh : 1972 (1) scc 771, which was a case relating to an election dispute, wherein it was held that on the basis of the marriage, the wile is taken to have acquired membership in the community of the husband and consequently is to be treated as a member of that community. the supreme court placing reliance on the decision in valsamma paul v. cochin university : (1996) 3 scc 545 held that to permit a non-tribal under cover of a marriage to contest a seat reserved for scheduled tribe in the legislative assembly, would tend to defeat the very object of such a reservation. neither the fact that a non-backward female married a backward male nor the fact that it was recognised by the community thereafter as a member of the backward community would enable a non-backward to claim reservation-in terms of article 15(4) or article 16(4) of the constitution of india and laid down that recognition of a woman as a member of a backward community in view of her marriage would not be relevant for purposes of entitlement to reservation under article 16(4) of the constitution, for the reason that she as a member of the forward class, had an advantage of a good start in life and a marriage with a male belonging to a backward community would not be entitled to the facility of a reservation given to a. backward community.7.4 shri. s. ramdas. senior advocate would therefore submit that the appellant - employee could not have claimed the benefit of her marital status to secure employment. the alternative argument that even otherwise she belonged to a notified backward class by birth and therefore, she ought to be continued in employment in that capacity even if she could not claim as a person belonging to the scheduled caste community, is a contention that would perpetuate an illegality. it her initial appointment was bad as she did not belong to a scheduled caste community, her community by birth being declared as a backward class entitled to certain benefits at a later point of lime could not be pressed into service and therefore, there is serious infirmity in the order of the learned single judge in conferring any benefit on the employee and hence, the appeal by the employer be allowed and the appeal filed by the employee be dismissed with costs.8. we have given our careful consideration to the submissions of both sides.9.1 in the above background, the first question that would arise for consideration is, whether the appellant-employee could seek the benefit available to a scheduled caste candidate on the basis of her marriage to a person of that community. given the law of the land, as it stood that the decision of the supreme court in the case of n.e. horo. supra, where a woman could be considered as belonging to a backward community, in view of her marriage to a man of that community, thought by birth, she may have belonged to forward caste, held the field till the view was overturned by the decision in valsamma paul's case in the year 1996. the appellant-employee having made an application for employment in the belief that she was entitled to claim the status of a scheduled caste community on account of her marriage to a person from that community was therefore legal and tenable and in line with the law of the land at the relevant point of time. this legal position was upset only in the year 1996. in the meanwhile, the appellant-employee's community by birth also having been notified as one of the other backward classes, entitled to benefits, the appellant's could continue to claim the benefit of reservation. this, aspect of the matter, is overlooked; in the case of the appellant - employee in the earlier proceedings as well as before the learned single judge. hence, in our view, the appellant's employment on the basis of her caste certificate cannot be held to be illegal or irregular.9.2 the appellant - employee also having been conferred the benefit as a person belonging to a notified other backward class, would have the benefit to claim under that category even if, at a later point of lime, the change in the legal position as to a wife not being able to claim the status of the community to which her husband belonged is declared. in this view of the matter, having regard to the ratio of the decision in reshma romesh supra, the appellant would be entitled to claim the benefit of belonging to a. notified backward class notwithstanding the declaration of law when she was no longer entitled to claim benefit available to the scheduled caste community on the basis of her marital status.10. hence, the appeal in wa 392/2009 is allowed and the appeal in wa no. 2050/2008 is dismissed. the order of the learned single judge dated 14.11.2008 is set aside and the order of dismissal of the appellant in wa 392/2009 is also set aside. the third respondent - employer is directed to reinstate the appellant in service with all consequential benefits and continue her till superannuation. consequently the orders at annexures f and j are set aside.