JAYASHREE versus THE DIRECTOR COLLEGIATE EDUCATION on 22 February 2022

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SUPREME COURT REPORTS

[2022] 2 S.C.R.

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JAYASHREE

v.

THE DIRECTOR COLLEGIATE EDUCATION(Civil Appeal No. 1559 of 2022)

BFEBRUARY 22, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Karnataka Scheduled Castes, Scheduled Tribes and OtherBackward Classes (Reservation of Appointments, etc.) Act, 1990 –s.4(4) – Respondent-State terminated the services of the appellantCon the basis that she was found to be not belonging to the ScheduledTribe community to which she had applied and was givenappointment – Held: s.4(1) of the Act declares that appointment inrespect of reserved categories are to be made as provided therein –s.4(4) of the Act provides that appointment made in contraventionDof s.4(1) is ‘voidable’ – The expression ‘voidable’ in the contextand object of the Act and more importantly constitutional value ofequality would mean that appointments to the reserved vacanciesare meant only for those who are deserving by being members ofthe said community alone – Under the Rules, an applicant forappointment seeking reservation is expected to make an applicationEfor obtaining a validity certificate of his caste certificate – Asappellant secured a caste certificate prior to the enactment of theAct, it required validation under r.7 – Thus, appointment of theappellant was clearly tentative and dependent on her producingthe proof of her valid certificate – There is no dispute that the aspectFof the appellant not belonging to the Scheduled Tribe communityhad attained finality for the reason that though the appellantchallenged the order of the Scrutiny Committee before the DivisionalCommissioner, he had affirmed the order and in fact, there was nochallenge to these decisions holding that the appellant did not belongto the Scheduled Caste Community – Once it is found that theGappellant did not belong to the Scheduled Tribe community, itattracted s.4(4) – The appointment became voidable – Giving anopportunity to the appellant under these circumstances when thefinding as regards her not belonging to the Scheduled Tribe becamefinal, would have been a futile exercise – Her continuance in serviceHwould deprive a member of the Schedule Tribe Community of an opportunity which was usurped by the appellant – Thus, order oftermination was not bad in law – However, interest of justice wouldrequire that the amounts sought to be recovered shall not berecovered from the appellant – Service law – Karnataka ScheduledCastes, Scheduled Tribes and Other Backward Classes (Reservationof Appointment, etc.) Rules, 1992 – r.7.

Disposing of the appeal, the Court

Conclusion

HELD: 1. It is true that section 4(1) of the Act declaresthat appointment in respect of reserved categories are to be madeas provided therein. The impact of a contravention is dealt within section 4(4). It may be that the appointment made incontravention of Section 4(1) of the Act has to be avoided. Butthe mere fact that the Law Giver has used the word ‘voidable’,cannot, in the context, detract from the gravity of the matter.The matter is not to be judged from the need for an act by theemployer. The scheme of the Act appears to be in tune with theConstitutional mandate which is to reserve appointments in favourof the deserving categories as are covered under Articles 341and 342 of the Constitution, inter alia. In other words,appointments are to be made inter alia in favour of the ScheduledTribes. If an appointment is made in contravention of the saidmandate then it is, no doubt, declared voidable. The expression‘voidable’ in the context of the Act and the object of the Act andmore importantly, and the constitutional value of equality wouldmean that appointments to the reserved vacancies are meantonly for those who are deserving by being members of the saidcommunity alone. If any person other than a member of thereserved community is appointed, it would clearly constitute aninfringement of the rights of the genuinely deserving membersof the said Scheduled Tribes. Furthermore, even the applicantsapplying under the general categories could be adversely affected.[Paras 7, 9][740-B; 741-E-H; 742-A]

2. Under the Rules, an applicant for appointment seekingreservation is expected to make an application for obtaining avalidity certificate of his caste certificate. In this case, the appellantsecured a caste certificate from a Tehsildar under an Executive A

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AOrder prior to the Act being enacted. The Rules contemplate anapplicant seeking a validity certificate. In other words, the castecertificate relied upon by a candidate had to be validated underRule 7. The appointment could not have been made under Rule9 of the Rules which proscribes appointment except uponproduction of a validity certificate. Therefore, the scheme of theBRules, in short, appears to be that the applicant must obtain avalidity certificate contemplated under Rule 7 and only thereupon,the appointment could be made as contemplated under Rule 9. Itwould appear, however, that the appellant who was appointed byorder dated 16.01.1996 did not as such produce the validityCcertificate. The appointments were being made on the basis thatthe verification will be done under Rule 7 in connection with thevalidity certificate. It is in 2001 that the competent committeecame to the conclusion that the appellant did not belong toScheduled Tribe community. Therefore, appointment of theappellant was clearly tentative and dependent on the appellantDproducing the proof of her certificate being valid and genuine.[Paras 11, 12, 13][742-E-H; 743-A-C]

3. Giving an opportunity to the appellant under thecircumstances in question when the finding as regards her notbelonging to the Scheduled Tribe has become final would haveEbeen a futile exercise. No other course could have been adoptedby the employer in the circumstances concerned. Keeping in mindthe fact that her continuance in service would deprive a memberof the Scheduled Tribe community of an opportunity which wasusurped by the appellant in the first place would be sufficientFanswer to the case that it would not have been a futile exercise.The termination of service of the appellant in the face of the finalityattained regarding her not belonging to Scheduled Tribecommunity is a crucial fact which deprives an employer of anydiscretion in the matter of terminating her services. At the time of the termination of service, the appellant was 40 years. It is notGas if the appellant was on the verge of retirement. Being voidableunder Section 4(4) of the Act, and bereft of any choice, the factsnot being in dispute, and to allow an usurper to continue being apalpable illegality and a constitutional sin, in the context, action H

by the competent authority terminating the services is perfectlyvalid. Therefore, this Court did not agree with the argument thatthe order of termination was bad in law. [Para 16][745-D-G]

Chairman and Managing Director, Food Corporationof India and Others v. Jagdish Balaram Bahira andOthers 2017 (8) SCC 670 : [2017] 11 SCR 27;Dhurandhar Prasad Singh v. Jai Prakash Universityand others (2001) 6 SCC 534 : [2001] 3 SCR 1129 –relied on.

R. v. Paddington Valuation Officer, ex p PeacheyProperty Corpn. Ltd. (1965) 2 All ER 836 – referredto.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1559of 2022.

From the Judgment and Order dated 11.12.2018 of the High Courtof Karnataka, Dharwad Bench in Writ Petition No. 101462 of 2018(S-KAT).

S.N. Bhat, Sr. Adv., D.P. Chaturvedi, Tarun Kumar Thakur, Ms.Parvati Bhat, Ms. Anuradha Mutatkar, Advs. for the Appellant.

V.N. Raghupathy, Adv. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Leave granted.

2. By the impugned order, the High Court has dismissed the writpetition filed by the appellant against the order passed by the KarnatakaAdministrative Tribunal, Bengaluru rejecting the OA filed by the appellantagainst the order dated 24.03.2014. By order dated 24.03.2014, therespondent-State has purported to terminate the services of the appellanton the basis that the appellant was found to not belong to the Scheduled A

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ATribe community purporting to belong to which the appellant applied andwas given appointment. Further by the impugned order, the appellanthas been called upon to pay the amounts which she has received.

3. Heard Mr. S. N. Bhat, learned senior counsel appearing for theappellant, and Mr. V. N. Raghupathy, learned counsel appearing for theBrespondent.

4. Learned senior counsel for the appellant would submit that theHigh Court has proceeded on the basis of the judgment of this Courtreported in Chairman and Managing Director, Food Corporation ofIndia and Others v. Jagdish Balaram Bahira and Others 2017(8)CSCC 670. The complaint is that the High Court has not examined thescope of The Karnataka Scheduled Castes, Scheduled Tribes and OtherBackward Classes (Reservation of Appointments, etc.) Act, 1990(hereinafter referred to as ‘Act’ for brevity) and The KarnatakaScheduled Castes, Scheduled Tribes and Other Backward Classes(Reservation of Appointment, etc.) Rules, 1992 (hereinafter referred toDas ‘Rules’ for brevity).

5. He would draw our attention to Sections 4(1) and 4(4) of theAct which reads as follows:

“4. Reservation of appointments or posts etc.- (1) After theEappointed day, while making appointments to any office in a civilservice of the State of Karnataka or to a civil post under the Stateof Karnataka, appointments or posts shall be reserved for themembers of the Scheduled Castes, Scheduled Tribes and otherBackward Classes to such extent and in such manner as may bespecified from time to time in the order made by the GovernmentFunder clause (4) of Article 16 of the Constitution of India.

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(4) All appointments made in contravention of the provisions ofthis section shall be voidable.”

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On the basis of the same, he pointed out Section 4(4) contemplatesthat the appointment in contravention of Section 4(1) is not void, but itwill be voidable. This goes to the root of the matter and had it been acase where the law declares it would be void, it would have been different.In conjunction with this aspect of the matter, learned senior counselHwould complain again that no notice was served on the appellant before the order of termination was issued. He would, undoubtedly, point outthat under the Act and the Rules, authorities have purported to find thatthe appellant did not deserve appointment under the quota of reservationmade for the Scheduled Tribe community. He would submit that appellantwas at the time, under the impression that the appellant whose caste is‘Talawara’, was to be treated as belonging to the ‘Hindu Tokare Koli’community which is a Scheduled Tribe. Thereafter, he took us to thejudgment of this Court in Chairman and Managing Director, FoodCorporation of India and Others (supra). He would point out that theprinciples enunciated in the said case countenancing recovery of thebenefits received may not be applicable. In this regard, he harnessed theplea that there was no fraud practiced by the appellant in securing theappointment in question and the Scheduled Tribe certificate. Therefore,this would warrant his submission that no recovery should be made. Infact, besides pointing out that even the termination was illegal as it wasdone without following the principles of nature justice, he would pointout that had the appellant been provided with an opportunity, she couldhave placed circumstances which may have dissuaded the authoritiesfrom issuing the order of termination. Another argument which he raisedis based on Rule 7B of the Rules. Rule 7B reads as follows:

“7B. Monetary benefits secured on the basis of false castecertificate to be withdrawn: -Any amount paid to any person bythe Government or any other agency by way of scholarship, grant,allowances or other financial benefits on the basis of false castecertificate shall without prejudice to any ‘other action be liable tobe recovered from such person.”

He would contend that the amount which could be recoveredunder the Rules would not cover the salary and allowances which aresought to be recovered.

He would further contend that should this Court not be inclined toaccept his argument, in exercise of power under Article 142 of theConstitution, the Court may grant relief against the order for recovery.He pointed out that the appellant has worked all these years and hasearned the salary.

6. Learned counsel for the respondent, on the other hand, wouldpoint out that it is self-evident from the order which has been producedbefore this Court also that ample opportunity was given to the appellant A

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Ato make good her case that she belongs to the Scheduled Tribecommunity. She having failed in the matter cannot now set up a case asprojected. He supports the impugned Judgment.

FINDINGS

7. It is true that section 4(1) of the Act declares that appointmentBin respect of reserved categories are to be made as provided therein.The impact of a contravention is dealt with in section 4(4). The contentionthat the legislature has only made it voidable and not void and, therefore,it is sufficient to salvage the appointment of the appellant unless anduntil, an opportunity is granted to the appellant and therefore, the principlesCin Chairman and Managing Director, Food Corporation of Indiaand Others (supra) would not apply, does not appeal to us.

8. We may notice, no doubt, that in a case where a valuation listcame to be impugned, contending that it was void, Lord Denning, M.R.held[1]:D“It is necessary to distinguish between two kinds of invalidity.The one kind is where the invalidity is so grave that the list is anullity altogether. In which case there is no need for an order toquash it. It is automatically null and void without more ado. Theother kind is when the invalidity does not make the list voidEaltogether, but only voidable. In that case it stands unless and untilit is set aside. In the present case the valuation list is not, andnever has been, a nullity. At most the first respondent — actingwithin his jurisdiction — exercised that jurisdiction erroneously.That makes the list voidable and not void. It remains good until itis set aside.”F9. This Court, after referring to the aforesaid case, inter alia, inthe decision reported in Dhurandhar Prasad Singh vs. Jai PrakashUniversity and others, (2001) 6 SCC 534, held:

“22. Thus the expressions “void and voidable” have been thesubject-matter of consideration on innumerable occasions byGcourts. The expression “void” has several facets. One type ofvoid acts, transactions, decrees are those which are wholly withoutjurisdiction, ab initio void and for avoiding the same no declaration 1 R. v. Paddington Valuation Officer, ex p Peachey Property Corpn. Ltd. [(1965) 2 AllHER 836 : (1966) 1 QB 380 : (1965) 3 WLR 426 (CA)]

is necessary, law does not take any notice of the same and it canbe disregarded in collateral proceeding or otherwise. The othertype of void act, e.g., may be transaction against a minor withoutbeing represented by a next friend. Such a transaction is a goodtransaction against the whole world. So far as the minor isconcerned, if he decides to avoid the same and succeeds in avoidingit by taking recourse to appropriate proceeding the transactionbecomes void from the very beginning. Another type of void actmay be which is not a nullity but for avoiding the same a declarationhas to be made. Voidable act is that which is a good act unlessavoided, e.g., if a suit is filed for a declaration that a document isfraudulent and/or forged and fabricated, it is voidable as theapparent state of affairs is the real state of affairs and a partywho alleges otherwise is obliged to prove it. If it is proved that thedocument is forged and fabricated and a declaration to that effectis given, a transaction becomes void from the very beginning.There may be a voidable transaction which is required to be setaside and the same is avoided from the day it is so set aside andnot any day prior to it. In cases where legal effect of a documentcannot be taken away without setting aside the same, it cannot betreated to be void but would be obviously voidable.”

It may be that the appointment made in contravention of Section4(1) of the Act has to be avoided. But the mere fact that the Law Giverhas used the word ‘voidable’, cannot, in the context, detract from thegravity of the matter. The matter is not to be judged from the need for anact by the employer.

The scheme of the Act appears to be in tune with the Constitutionalmandate which is to reserve appointments in favour of the deservingcategories as are covered under Articles 341 and 342 of the Constitution,inter alia. In other words, appointments are to be made inter alia infavour of the Scheduled Tribes. If an appointment is made in contraventionof the said mandate then it is, no doubt, declared voidable. The expression‘voidable’ in the context of the Act and the object of the Act and moreimportantly, and the constitutional value of equality would mean thatappointments to the reserved vacancies are meant only for those whoare deserving by being members of the said community alone. If anyperson other than a member of the reserved community is appointed, itwould clearly constitute an infringement of the rights of the genuinely AB

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Adeserving members of the said Scheduled Tribes which is the categorywith which we are concerned. Furthermore, even the applicants applyingunder the general categories could be adversely affected.

10. No exception can be taken to the termination of the servicefor another reason. The vacancy which would result upon the terminationBof the appointment of the appellant would become available to a deservingmember of the reserved category. We may also notice that in theappointment order of the appellant, it has been communicated thatappointments are temporary and liable to the cancelled and subject toverification.

C“2. These appointments are purely temporary in nature, if any ofthe information are proved to be false appointment will be cancelledand legal actions will be taken against such candidates.

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11. In fact, under the Rules, an applicant for appointment seekingreservation is expected to make an application for obtaining a validitycertificate of his caste certificate. In this case, the appellant secured acaste certificate from a Tehsildar under an Executive Order prior to theFAct being enacted. The Rules contemplate an applicant seeking a validitycertificate. In other words, the caste certificate relied upon by a candidatehad to be validated under Rule 7.

12. The appointment could not have been made under Rule 9 ofthe Rules which proscribes appointment except upon production of aGvalidity certificate. Therefore, the scheme of the Rules, in short, appearsto be that the applicant must obtain a validity certificate contemplatedunder Rule 7 and only thereupon, the appointment could be made ascontemplated under Rule 9. It would appear, however, that the appellantwho was appointed by order dated 16.01.1996 did not as such producethe validity certificate. The appointments were being made on the basisH

that the verification will be done under Rule 7 in connection with thevalidity certificate. It is in 2001 that the competent committee came tothe conclusion that the appellant did not belong to Scheduled Tribecommunity.

Whatever, that may be, the fact remains that the appellant doesnot have a case that the appellant produced a validity certificate ascontemplated under Rule 7 read with Rule 9 at the time of herappointment.

13. Therefore, appointment of the appellant was clearly tentativeand dependent on the appellant producing the proof of her certificatebeing valid and genuine. There is no dispute that the aspect of theappellant not belonging to the Scheduled Tribe community has attainedfinality for the reason that though the appellant challenged the order ofthe Scrutiny Committee before the Divisional Commissioner, he hasaffirmed the Order and in fact, there is no challenge to these decisionsholding that the appellant does not belong to the Scheduled CasteCommunity. Once it is found that the appellant does not belong to theScheduled Tribe community, it attracted Section 4(4). The appointmentbecame voidable.

14. In a situation where the law provides that the appointment isvoidable, an act of the employer seeking to avoid the appointment is allthat is required. As to whether it should be accompanied by compliancewith natural justice is a different matter. The decision taken by theappointing authority to avoid the appointment is in keeping with therequirement under Section 4(4). Therefore, we see no merit in thecontention of the appellant that since section 4(4) does not declare theappointment void, it would not attract the power of respondent to terminatethe appointment of the appellant or that the principles in FCI (supra), willnot apply.

15. In fact, in this regard, we notice another circumstance. TheGovernment of the respondent-State issued circular dated 11.03.2002by which it gave an opportunity to surrender the certificate with certainbenefits. It, inter alia, reads as follows:

“Preamble:

In Government Order read at (1) above the following benefitsavailable to the Scheduled Tribes were extended to the personsbelonging to the Nayak, Naik, Beda, Valmiki, Priwara and A

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Talawara communities pending decision of Government of Indiato treat these communities as synonyms of Nayaka.

a) Reservation in admission to educational institutions.

b) Educational concessions.

It was also directed that no penal or disciplinary action shallbe taken and prosecution if any launched shall be kept inabeyance and shall not be pursued against persons belonging tothese communities for having obtained caste certificates asbelonging to ‘Nayaka’ community. Suspension orders if any insuch cases shall be revoked and persons retrenched if any shallbe reinstated.

GOVERNMENT ORDER NO: SWD 713 SAD 93,BANGALORE, DATED: llTH MARCH, 2002

In partial modification of Government Order read at (1) and(2) Government are pleased to order as under;

1. The benefits of reservation in admission to educationalinstitutions and educational concessions extended to Pariwara,Talwara, Maaleru, communities in G.Os read at (1) and (2)and Besta and Koli Communities accordingly cease. All personsof these communities who have obtained ST caste certificatesshall surrender them immediately to the issuing authority forcancellation. They shall not be liable for penal action providedthey surrender their certificates. The issuing authority shallcancel such certificates.

2. Whether it comes to the notice of the appointing authoritythat ST certificate has been issued to a persons belonging tothese communities and which has not been surrendered orcancelled necessary action shall be taken for cancellation ofsuch certificate by the issuing authority, with due regard to theprinciples of justice.

The benefits of reservation obtained by the persons in para(1) in educational and employment based on the wrong castecertificate issued by the competent authorities as ST andwhich have become final may also be not disturbedaccordingly.

1. Enquires pending before the various Departments,Verification Committee, Appellate authorities, CRE cell andother authorities stands abated or dropped.

2. Action shall be taken to withdraw the cases filed beforeany court.

3. Suspension orders if any in such cases stands revoked.

4. Pensionary benefits that are withheld shall be released.”

There is no case of the appellant that she surrendered her certificateafter 2001 when the findings went against her. Therefore, the appellantcannot have a cause of action based on the said order also.

16. The High Court has proceeded on the basis that it is futile tohave given the appellant an opportunity before the order of termination.True, the principles of natural justice have been highlighted by the appellantwhich is a part of the mandate of Article 14 itself. However, an exceptionto the principle would be a case where it is entirely futile to provide anopportunity. Giving an opportunity to the appellant under thecircumstances in question when the finding as regards her not belongingto the Scheduled Tribe has become final, in our view would have been afutile exercise. No other course could have been adopted by the employerin the circumstances concerned. We are of the view that keeping inmind the fact that her continuance in service would deprive a memberof the Scheduled Tribe community of an opportunity which was usurpedby the appellant in the first place would be sufficient answer to the casethat it would not have been a futile exercise. The termination of serviceof the appellant in the face of the finality attained regarding her notbelonging to Scheduled Tribe community is a crucial fact which deprivesan employer of any discretion in the matter of terminating her services.At the time of the termination of service, the appellant was 40 years. Itis not as if the appellant was on the verge of retirement. Being voidableunder Section 4(4) of the Act, and bereft of any choice, the facts notbeing in dispute, and to allow an usurper to continue being a palpableillegality and a constitutional sin, in the context, action by the competentauthority terminating the services is perfectly valid. Therefore, we donot agree with the argument that the order of termination was bad inlaw.

17. As far as the argument that Rule 7B does not empower theemployer to recover the allowances is concerned, we are not inclined to A

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Aaccept the same. We notice that the Rule is widely worded. The words‘financial benefits’ and ‘allowances’ would, at any rate, particularlyhaving regard to the context of the Act and the object of the Act whichis to deter persons who set up false claims and claim reservation fromreaping the fruits of illegal appointments. We may also notice that section10 (2) of the Maharasthra Act which was the subject matter of theBjudgment in Chairman and Managing Director, Food Corporationof India and Others (supra) is a pari materia with Rule 7B of theRules. Therefore, we see no merit in this argument.

18. No doubt, this Court in Chairman and Managing Director,Food Corporation of India and Others (supra) has been persuadedCby the reasoning that Section 7 is to be read with Section 10 of the saidAct. The Court concluded that there is no need to esablish mens reaon the part of the employee in the matter of securing of appointment.The Court noted that Section 7 required that it be established that therewas fraud. Such a provision as such which is pari materia with SectionD7 is conspicuous by its absence in the Act and the Rules.

The fact is that the certificate of the appellant does not evenshow that she actually belongs to the Scheduled Tribe community inquestion. The authority has found that the family members of the appellantare shown as belonging to the Talawara community and in none of theEcaste certificates it is shown that any of her relatives belongs to theScheduled Tribe community in question. All her relatives were ‘Talawara’by caste. We do not think we should accede to the said argument.She did not also surrender the certificate also. The appellant evenperseveres in her claim in the special leave petition that she belongs to‘Tokare Koli’, (the scheduled tribe in question) even after cancellationFof her certificate has attained finality.

19. The only question which remains is whether the appellantshould be called upon to pay the entire amount which she has earned onthe basis of her appointment. The fact remains that the appellant hasworked and has been paid salary. It is not conceivable that the appellantGwould have expended the amounts which she would have earned. Nor itis a case where she has been paid for a period for which she has notworked. There is an appeal to exercise our powers under Article 142 ofthe Constitution made with reference to the judgment in Chairman andManaging Director, Food Corporation of India and Others (supra),Hwhich power, is undoubtedly not available to the High Court.

In the circumstances of this case, while finding the order impugnedAotherwise flawless, we would think that the interest of justice wouldrequire that we order that the amounts sought to be recovered shall notbe recovered from the appellant. Thus, while we confirm the impugnedorder of the High Court, we direct that in the circumstances of this case,no recovery shall be made from the appellant based on the impugnedBorder.

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No orders as to costs.

Appeal is disposed of in the above terms.

Devika Gujral

Appeal disposed of.

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